O'Neill v. Dell Pub. Co., Inc., 80-1147

• Decision Date: 18 November 1980
• Docket Number: No. 80-1147,80-1147
• Citation: 630 F.2d 685
• Parties: , 1978-81 Copr.L.Dec. 25,204 Daniel J. O'NEILL, Plaintiff-Appellant, v. DELL PUBLISHING CO., INC., Neal R. Burger, and George E. Simpson,Defendants-Appellees. *
• Court: U.S. Court of Appeals — First Circuit

Page 685

630 F.2d 685

208 U.S.P.Q. 705, 1978-81 Copr.L.Dec. 25,204

Daniel J. O'NEILL, Plaintiff-Appellant, v. DELL PUBLISHING CO., INC., Neal R. Burger, and George E.

Simpson,Defendants-Appellees. ^*

No. 80-1147.

United States Court of Appeals,

First Circuit.

Argued Sept. 5, 1980.

Decided Nov. 18, 1980.

J. Joseph Nugent, Jr., Providence, R. I., with whom Nugent & Nugent, and W. Albert Martin, Providence, R. I., were on brief, for appellant.

Patricia S. Nelson, Boston, Mass., with whom John R. Hally, and Nutter, McClennen & Fish, Boston, Mass., were on brief, for appellees.

Before CAMPBELL and BOWNES, Circuit Judges, KEETON, ^* District judge.

BOWNES, Circuit Judge.

In this copyright case, plaintiff-appellant, Daniel J. O'Neill, appeals from summary judgment in favor of defendant-appellee, Dell Publishing Co., Inc., and the dismissal for lack of jurisdiction as to defendants-appellees, Neal R. Burger and George E. Simpson. Plaintiff claims that the defendants violated his common law copyright in his unpublished manuscript novel, Return to Nowhere, by publication of the book, Ghost Boat, written by Burger and Simpson and published by Dell. We affirm the grant of summary judgment on the basis of lack of substantial similarity and find it unnecessary to reach the jurisdictional issue.

The legal principles applicable to determining whether summary judgment is appropriate were enumerated and explicated by us in Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir. 1975), cert. denied, 425 U.S. 904, 96 S.Ct. 1495, 47 L.Ed.2d 54 (1976). In determining whether the requirements of Fed.R.Civ.P. 56(c) ¹ have been met, the court must look at the record in the light most favorable to the opposing party and indulge all inferences favorable to that party. To defeat the motion, the opposing party must show that there is a genuine and material issue of fact. The evidence as to the dispute must be substantial and go beyond the allegations of the complaint. Id.

In order to determine the summary judgment issue, we must first outline the basic principles of copyright law. To establish a prima facie case of wrongful appropriation of expression by common law copyright infringement, ² the plaintiff must prove substantial similarity and access. Walker v. University Books, Inc., 602 F.2d 859, 864 (9th Cir. 1979). "Ordinarily, wrongful appropriation is shown by proving a 'substantial similarity' of copyrightable expression." Hoehling v. Universal City Studios, Inc., 618 F.2d 972, 977 (2d Cir. 1980) (emphasis in original). The basic issue in a copyright action is whether there has been a wrongful appropriation of expression. Copyright protection extends only to the expression of the idea; it does not protect the idea itself. "It must be remembered that copyright protection does not extend to ideas, plots, dramatic situations and events. Rather, it is limited to the arrangement of words the author uses to express his ideas." Scott v. WKJG, Inc., 376 F.2d 467, 469 (7th Cir.), cert. denied, 389 U.S. 832, 88 S.Ct. 101, 19 L.Ed.2d 91 (1967). See Franklin Mint Corp. v. National Wildlife Art Exchange, 575 F.2d 62, 64 (3d Cir.), cert. denied, 439 U.S. 880, 99 S.Ct. 217, 58 L.Ed.2d 193 (1978); Sid & Marty Krofft Television v. McDonald's Corp., 562 F.2d 1157, 1163 (9th Cir. 1977); Reyher v. Children's Television Workshop, 533 F.2d 87, 91 (2d Cir.), cert. denied, 429 U.S. 980, 97 S.Ct. 492, 50 L.Ed.2d 588 (1976); Morrissey v. The Proctor & Gamble Co., 379 F.2d 675, 678 (1st Cir. 1967); Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir. 1930).

In deciding the motion for summary judgment, the district court concentrated on the issue of substantial similarity of expression. The court read the manuscript, Return To Nowhere, and the claimed infringing book, Ghost Boat. It found no similarity of copyrightable expression between the two works: "Assuming access and copying, the only part of Return To Nowhere that is incorporated in Ghost Boat is the idea or concept of a lost World War II submarine that mysteriously surfaces thirty years later."

Substantial similarity is measured by the standard of the "ordinary reasonable person." Sid & Marty Krofft Television v. McDonald's Corp., 562 F.2d at 1164. The standard has also been phrased as that of the "ordinary observer." Novelty Textile Mills v. Joan Fabrics Corp., 558 F.2d 1090, 1093 (2d Cir. 1977). The issue, therefore, is whether the district court was correct as a matter of law that the ordinary reasonable person would not find any substantial similarity between the two works. Even though the ultimate issue of "substantial similarity," in contrast with issues about subsidiary facts, is a mixed question of fact and law, any factual element of that issue must be decided in the trial court and reviewed on appeal as issues of fact are decided and reviewed. See Sweeney v. Board of Trustees of Keene State College, 604 F.2d 106, 109 n.2 (1st Cir. 1979). Whether or not a jury has been demanded, it is, of course, inappropriate for a court to weigh evidence and make a finding on a disputed question of fact when ruling upon (or when reviewing a ruling upon) a motion for summary judgment. Thus, the relevant question before the trial court on defendant Dell's motion for summary judgment, and before us on appeal, is whether the only finding that could be reached by a fact finder, correctly applying the applicable legal standard, is that there is no "substantial similarity" between the two works.

In comparing two literary works to determine if there is substantial similarity, it must be borne in mind that "the essence of infringement lies in taking not a general theme but its particular expression through similarities of treatment, details, scenes, events and characterization." Reyher v. Children's Television Workshop, 533 F.2d at 91. Our comparison of the two novels is made in the light most favorable to the plaintiff and indulging all inferences in his favor. Hahn v. Sargent, 523 F.2d at 464.

As the district court noted, Return To Nowhere uses the Rip Van Winkle theme of a sleep that lasts for years. Instead of taking place in the Catskill Mountains and being induced by strong drink quaffed during a game of "bowls" with little men, the sleep in Return To Nowhere takes place off the coast of Alaska when a submarine with its entire crew is trapped under a massive ice formation. Unlike old Rip, however, the submariners do not age as the years pass. When awakened from their frozen state, they are the same age as when the submarine dove under the ice pack on Christmas Eve, 1942, to avoid Japanese destroyers. The return of the submarine and the awakening of its crew is the result of underground nuclear tests held in Amchitka in the Aleutian Islands in May of 1974. The test causes a severe earthquake which frees the submarine from its ice tomb. As it drifts southerly, the crew awakens, unaware that thirty-two years have passed. They promptly torpedo the first Japanese ship they sight. This results in the submarine and crew being "captured" by the United States Navy and brought to the Navel base at San Diego.

The novel is divided into two parts. The first part is devoted mainly to character portrayals of different members of the crew. The second part is a study of the crew's struggle to adjust to life in 1974. The author focuses on four of the crew members: James Michael Shannon, the commander of the submarine; the Chief Petty Officer, Jack Brindle; and two enlisted men, John Stykowski and Bill Frazer.

Shannon is an Annapolis graduate, a devoted husband and father and a devout Catholic. Chief Brindle is a stereotypical Navy C.P.O., a thoroughly competent noncommissioned officer with a penchant for brawling and drinking when not on duty. He has an unfaithful wife considerably younger than himself; he is delighted when he realizes that, now, the tables will be turned. Stykowski is a big man of great strength. His main attributes are his devotion to the Navy and his friends and his unquestioning acceptance of the moral code of America during World War II. Frazer is a sensitive intellectual type who comes from a home dominated by a nagging mother who makes no bones about her preference for his older brother, a ne'er-do-well with an eye for the quick buck. Frazer is in love, or at least thinks he is in love, with a young lady, but the romance makes little progress.

The reaction of the main characters to life in the United States in 1974 is predictable. Chief Brindle gets drunk; coming upon a gala opening of a Toyota distributorship in New York City, he smashes the showroom window. Stykowski learns that his brother has been killed in a robbery. The police have no information as to the killer. While wandering around aimlessly he stops at a restaurant which is invaded by a motorcycle gang attired in neo-Nazi trappings. When the gang starts to beat up a helpless policeman, Stykowski jumps into the fray. He kills one of the gang and renders the rest hors de combat. The police are, of course, delighted with his display of citizen courage and fighting ability. It is hinted that the dead cyclist, who was a Vietnam veteran, was the one who robbed and killed Stykowski's brother.

Frazer returns to New London, Connecticut, his home as well as the home berth of the submarine. He thinks he recognizes his former girlfriend who is now in her late 50's or early 60's. Overwhelmed by the changes in her and his home town, he becomes depressed and commits suicide by jumping into the river. As an ironic touch, the commander of a nuclear submarine moving up the river is asked to keep a lookout for his body.

On his return to Hyannis, Shannon finds both his and his son's names on a monument to those who were killed in World War II and the Korean War. Confronted with the death of his namesake, a Marine corporal who died in the Korean conflict, and overcome with the changes time has wrought, Shannon turns to a priest for help....