Reyher v. Children's Television Workshop

• Citation: 533 F.2d 87
• Decision Date: 05 April 1976
• Docket Number: D,No. 143,143
• Parties: Rebecca REYHER and Ruth Gannett, Plaintiffs-Appellants, v. CHILDREN'S TELEVISION WORKSHOP and Tuesday Publications, Inc., Defendants-Appellees. ocket 75-7278.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 87

533 F.2d 87

190 U.S.P.Q. 387

Rebecca REYHER and Ruth Gannett, Plaintiffs-Appellants, v. CHILDREN'S TELEVISION WORKSHOP and Tuesday Publications Inc., Defendants-Appellees.

No. 143, Docket 75-7278.

United States Court of Appeals Second Circuit.

Argued Oct. 31, 1975.

Decided April 5, 1976.

Eleanor Jackson Piel, New York City, for plaintiffs-appellants.

Eugene L. Girden, New York City (Carleton G. Eldridge, Jr., Paul B. Jones, Coudert Brothers, New York City, of counsel), for defendants-appellees.

Paul P. Selvin, Butler, Jablow & Geller, New York City, for amicus curiae, Writers Guild of America.

Before MULLIGAN, OAKES and MESKILL, Circuit Judges.

MESKILL, Circuit Judge:

Plaintiffs below, Rebecca Reyher and Ruth Gannett, appeal from an order of the District Court for the Southern District of New York, John M. Cannella, Judge, dismissing their copyright infringement complaint after a two day trial without a jury. We affirm the district court's disposition of this case on the ground that there was no substantial similarity between the two works as to copyrightable matter.

Appellants Reyher and Gannett are the author and illustrator respectively of a children's book entitled My Mother Is The Most Beautiful Woman In The World which was published with notice of copyright on August 24, 1945. Appellee Children's Television Workshop ("CTW") is the producer of the educational children's television program known as "Sesame Street" and the publisher of Sesame Street Magazine. Appellee Tuesday Publications, Inc. ("TPI") is the publisher of a monthly periodical known as Tuesday At Home, which is distributed by several newspapers across the country.

The complaint alleges that CTW and TPI infringed and are continuing to infringe plaintiffs' copyright by publishing an illustrated story entitled "The Most Beautiful Woman In The World," which plaintiffs claim was copied from their book without their knowledge or consent. The plaintiffs further assert that CTW infringed their copyright by producing, performing, taping, and televising, without knowledge or authorization, a television skit entitled "The Most Beautiful Woman In The World."

The defendants deny any infringement of plaintiffs' copyright. They contend that a thematic idea is not protected by copyright and further, that as a "retold" folk tale, the story line involved here is in the public domain. A two day trial was held before Judge Cannella. The three key witnesses were appellant Reyher, Jon Stone, author of the allegedly infringing script and executive producer and head writer for "Sesame Street," and Tibor Gergely, the artist who illustrated the script for Sesame Street Magazine.

Reyher testified that her book My Mother Is The Most Beautiful Woman In The World had its genesis in a story told to her as a child in Russian by her Russian mother. While she could not repeat this story verbatim, she stated that she had "taken a storyline . . . (and) adapted it . . . . (It was her) treatment . . . even though it was (her) mother's story." Later in her testimony, Reyher said she had only "assumed" that the story was a Russian folktale known to others.

Stone testified that he remembered the theme used in his script from a story told to his younger sister more than 20 years ago. Denying that he had ever seen appellants' work in any form, Stone stated that he used no source for his script other than his memory. Tibor Gergely, the artist who had sketched the allegedly infringing illustration of the reunion scene between mother and child, testified that he had referred to no outside materials when illustrating the story, although he remembered the story from a book read during his childhood in Europe; further, he stated that since he had never seen appellant Gannett's illustrations, any similarity in the drawings of the reunion scene was coincidental.

Judge Cannella dismissed the infringement claim. He noted that there was substantial similarity between the two works because "(w)hile defendants' rendition of the story takes place in a different locale and is told with fewer frills . . . both stories present an identical sequence of events." He concluded, however, that since Reyher testified that the story line in her book was "substantially taken from, if not identical with, the story told to her by her mother" and since she failed to show that she had added anything to the story or changed it in any significant way, Reyher's book was a derivative work, i. e., one "substantially copied from a prior work in the public domain." Reyher's copyright thus protected only her original product, which did not include the plot. The court found no textual copying. ¹ In comparing the two illustrations, the district court concluded that the differences between them were so substantial as to preclude a finding of infringement. 387 F.Supp. 869 (S.D.N.Y.1975).

Initially we feel that we must note our grave doubts about the district court's characterization of Reyher's book as a derivative work. In addition to the classes of works eligible for copyright protection under 17 U.S.C. § 5, Section 7 of Title 17 permits copyrighting "adaptations' . . . translations, or other versions of works in the public domain," so long as the contributions made by the author to the previously existing work are not merely trivial. The protection afforded by § 7, however, is limited solely to the author's additions to the prior underlying work. Generally, "(a) work is not derivative unless it has substantially copied from a prior work. If that which is borrowed consists merely of ideas and not of the expression of ideas, then although the work may have in part been derived from prior works, it is not a derivative work." 1 M. Nimmer on Copyright § 39 at 166-167 (1975) (hereinafter "Nimmer"). This statement presents, we think, the proper perspective from which to evaluate Reyher's book.

Reyher admittedly borrowed the "idea" embodied in the story from her mother. The basic plot of this children's book is very simple. See discussion infra. Reyher's presentation of the story line was entirely her own. Aside from its theme, she could neither recall the exact story her mother told nor the precise language used. More importantly, no tangible or intangible prior work was proved with sufficient detail to enable a court to judge either whether substantial copying of anything other than the idea of the prior work had occurred or which part of her adaptation constituted her own new, and thus protected, material. In light of the absence of such evidence, to characterize Reyher's work as derivative merely because she used memories of her mother's story would create problems in protecting any literary endeavor as well as exacerbate the difficulty in determining the protection to be afforded a particular effort.

Although we disagree with the district court's "derivative work" rationale, we nevertheless affirm its dismissal of this case on the ground that any similarities between the two works related only to non-copyrightable matter. In reaching this conclusion, we must overturn the trial court's factual finding that there were substantial similarities between the two works. While we recognize that our appellate function usually does not include factfinding, where, as here, the determination of similarity rests solely on a comparison of the works in issue rather than on credibility of witnesses or other evidence only for the factfinder, "we are in as good a position as the trial judge" to determine the issue. Soptra Fabrics Corp. v. Stafford Knitting Mills, Inc., 490 F.2d 1092, 1093 (2 Cir. 1974); Concord Fabrics, Inc. v. Marcus Brothers Textile Corp., 409 F.2d 1315, 1317 (2 Cir. 1969) (per curiam ); Millworth Converting Corporation v. Slifka, 276 F.2d 443, 445-446 (2 Cir. 1960); cf. Orvis v. Higgins, 180 F.2d 537, 539 (2 Cir.), cert. denied, 340 U.S. 810, 71 S.Ct. 37, 95 L.Ed. 595 (1950). See 1 Nimmer § 140 at 607.

In an infringement action, a plaintiff must establish ownership of the copyright and copying by the defendant. McGraw-Hill, Inc. v. Worth Publishers, Inc., 335 F.Supp. 415, 419 (S.D.N.Y.1971); 1 Nimmer § 141 at 611. As was done in the instant case, ownership is commonly proved by production of the copyright registration certificate. Because of the inherent difficulty in obtaining direct evidence of copying, it is usually proved by circumstantial evidence of access to the copyrighted work and substantial similarities as to protectible material in the two works. Arnstein v. Porter, 154 F.2d 464 (2 Cir. 1946); Bevan v. Columbia Broadcasting System, Inc., 329 F.Supp. 601 (S.D.N.Y.1971). "(I)f there are no similarities, no amount of evidence of access will suffice to prove copying." Arnstein v. Porter, supra, 154 F.2d at 468.

It is an axiom of copyright law that the protection granted to a copyrightable work extends only to the particular expression of an idea and never to the idea itself. Mazer v. Stein, 347 U.S. 201, 217, 74 S.Ct. 460, 470, 98 L.Ed. 630, 642 (1954); Baker v. Selden, 101 U.S. 99, 102-103, 25 L.Ed. 841, 843 (1879). This principle attempts to reconcile two competing societal interests: rewarding an individual's ingenuity and effort while at the same time permitting the nation to benefit from further improvements or progress resulting from others' use of the same subject matter. "In the case of verbal 'works' it is well settled that although the 'proprietor's' monopoly extends beyond an exact reproduction of the words, there can be no copyright in the 'ideas' disclosed but only in their 'expression.' Obviously, no principle can be stated as to when an imitator has gone beyond copying the 'idea,' and has borrowed its 'expression.' Decisions must therefore inevitably be ad hoc." Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2 Cir. 1960) (L. Hand).

The difficult task in an infringement action is to distill the nonprotected idea from protected expression. In ...