O'Neill v. Dell Pub. Co., Inc., No. 80-1147

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Writing for the CourtBefore CAMPBELL and BOWNES; BOWNES
Citation630 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. *
Docket NumberNo. 80-1147
Decision Date18 November 1980

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.

Page 686

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 Plaintiff claims that the defendants violated his common law copyright in his unpublished manuscript novel, Return to Nowhere, by publication of the book, Ghost Boat, written by Burger and Simpson and published by Dell.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

Page 687

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...

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49 practice notes
  • Knickerbocker Toy Co., Inc. v. Winterbrook Corp., Civ. No. 81-521-D.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of New Hampshire
    • September 30, 1982
    ...the record in the light most favorable to the nonmoving party (Knickerbocker). Rule 56, Fed.R.Civ.P.; O'Neil v. Dell Publishing Company, 630 F.2d 685, 686 (1st Cir.1980); 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 754 (1976). The......
  • Lyons v. Gillette, Civil Action No. 11–12192–WGY.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • July 31, 2012
    ...copyright infringement, the plaintiff must prove substantial similarity and access” to an original work. O'Neill v. Dell Pub'g Co., Inc., 630 F.2d 685, 686 (1st Cir.1980) (citation and footnote omitted) (alleging infringement of common law copyright in unpublished manuscript novel); see, ge......
  • Schiller v. Strangis, Civ. A. No. 77-3116-K.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • June 4, 1982
    ...determinations are made by the factfinder, whether judge or jury, as questions of fact are decided. E.g., O'Neill v. Dell Publishing Co., 630 F.2d 685 (1st Cir. 1980) (application of standard of "substantial similarity" in action for copyright infringement, on motion for summary judgment); ......
  • Ramos v. Gallo, Civ. A. No. 81-281-K.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • October 24, 1984
    ...Board, 553 F.2d 720, 722 (1st Cir.1977). The court cannot weigh the evidence to dispose of the motion. O'Neill v. Dell Publishing Co., 630 F.2d 685, 687 (1st Cir.1980). The court rules only on questions of law and fact-based questions as to which the evidence would not support a finding aga......
  • Request a trial to view additional results
49 cases
  • Knickerbocker Toy Co., Inc. v. Winterbrook Corp., Civ. No. 81-521-D.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of New Hampshire
    • September 30, 1982
    ...the record in the light most favorable to the nonmoving party (Knickerbocker). Rule 56, Fed.R.Civ.P.; O'Neil v. Dell Publishing Company, 630 F.2d 685, 686 (1st Cir.1980); 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 754 (1976). The......
  • Lyons v. Gillette, Civil Action No. 11–12192–WGY.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • July 31, 2012
    ...copyright infringement, the plaintiff must prove substantial similarity and access” to an original work. O'Neill v. Dell Pub'g Co., Inc., 630 F.2d 685, 686 (1st Cir.1980) (citation and footnote omitted) (alleging infringement of common law copyright in unpublished manuscript novel); see, ge......
  • Schiller v. Strangis, Civ. A. No. 77-3116-K.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • June 4, 1982
    ...determinations are made by the factfinder, whether judge or jury, as questions of fact are decided. E.g., O'Neill v. Dell Publishing Co., 630 F.2d 685 (1st Cir. 1980) (application of standard of "substantial similarity" in action for copyright infringement, on motion for summary judgment); ......
  • Ramos v. Gallo, Civ. A. No. 81-281-K.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • October 24, 1984
    ...Board, 553 F.2d 720, 722 (1st Cir.1977). The court cannot weigh the evidence to dispose of the motion. O'Neill v. Dell Publishing Co., 630 F.2d 685, 687 (1st Cir.1980). The court rules only on questions of law and fact-based questions as to which the evidence would not support a finding aga......
  • Request a trial to view additional results

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