Reyher v. Children's Television Workshop, 72 Civ. 627 JMC.

• Decision Date: 25 January 1974
• Docket Number: No. 72 Civ. 627 JMC.,72 Civ. 627 JMC.
• Citation: 377 F. Supp. 411
• Parties: Rebecca REYHER and Ruth Gannett, Plaintiffs, v. CHILDREN'S TELEVISION WORKSHOP and Tuesday Publications, Inc., Defendants.
• Court: U.S. District Court — Southern District of New York

377 F. Supp. 411

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

No. 72 Civ. 627 JMC.

United States District Court, S. D. New York.

January 25, 1974.

Stoll & Stoll, New York City, for plaintiffs.

Coudert Brothers, New York City (Eugene L. Girden and Carleton G. Eldridge, Jr., New York City, of counsel), for defendants.

MEMORANDUM

CANNELLA, District Judge.

Motion by the defendants for summary judgment dismissing the complaint as a matter of law, made pursuant to Rule 56(b) of the Federal Rules of Civil Procedure, is denied.

In this copyright infringement action the plaintiffs, author and illustrator, allege that the defendants unlawfully copied their work, "My Mother Is The Most Beautiful Woman In The World" by virtue of the defendants' television production and subsequent magazine publication of a "substantially similar" folk story. On this motion it is not necessary to fully set forth the facts of this case or to state the allegations of the parties, indeed, to do so would disserve the interests of judicial economy. All that is necessary to preclude summary judgment is the existence of a genuine issue as to a material fact or facts. Such facts are here present and the instant motion is denied.

A defendant's motion for summary judgment in a copyright infringement case should be granted only in the rarest instances. See, Arnstein v. Porter, 154 F.2d 464 (2d Cir. 1946); S. Rothenberg, Legal Protection of Literature, Art and Music, § 188 at 203 (1960); M. Nimmer, Nimmer on Copyright, § 138 at 599-600 (1965). Arnstein v. Porter, supra, clearly the leading national authority on motions of the instant nature, is controlling here. The following excerpts from Judge Frank's opinion in Arnstein, in which Judge Learned Hand joined, interlineated to reflect the facts of the instant case, are dispositive on this motion. 154 F.2d at 468-470.

The principal question on this appeal is whether the lower court, under Rule 56, properly deprived plaintiff of a trial of his copyright infringment action. The answer depends on whether "there is the slightest doubt as to the facts." Citations omitted In applying that standard here, it is important to avoid confusing two separate elements essential to a plaintiff's case in such a suit: (a) that defendant copied from plaintiff's copyrighted work and (b) that the copying (assuming it to be proved) went so far as to constitute improper appropriation.

As to the first — copying — the evidence may consist (a) of defendant's admission that he copied or (b) of circumstantial evidence — usually evidence of access — from which the trier of the facts may reasonably infer copying. Of course, if there are no similarities, no amount of evidence of access will suffice to prove copying. If there is evidence of access and similarities exist, then the trier of the facts must determine whether the similarities are sufficient to prove copying. On this issue, analysis ("dissection") is relevant, and the testimony of experts may be received to aid the trier of the facts. If evidence of access is absent, the similarities must be so striking as to preclude the possibility that plaintiff and defendant independently arrived at the same result.

If copying is established, then only does there arise the second issue, that of illicit copying (unlawful appropriation). On that issue (as noted more in detail below) the test is the response of the ordinary lay hearer; accordingly, on that issue, "dissection" and expert testimony are irrelevant.

In some cases, the similarities between the plaintiff's and defendant's work are so extensive and striking as without more, both to justify an inference of copying and to prove improper appropriation. But such double-purpose evidence is not required; that is, if copying is otherwise shown, proof of improper appropriation need not consist of similarities which, standing alone, would support an inference of copying.

Each of these two issues — copying and improper appropriation — is an issue of fact.

. . . . . .

We turn first to the issue of copying. After listening to the compositions as played in the phonograph recordings submitted by defendant, after reading plaintiffs' book and defendants' television script and magazine stories we find similarities; but we hold that unquestionably, standing alone, they do not compel the conclusion, or permit the inference, that defendant copied. The similarities, however, are sufficient so that, if there is enough evidence of access to permit the case to go to the jury, the jury may properly infer that the similarities did not result from coincidence.

Summary judgment was is then, proper if indubitably defendant did not have access to plaintiff's compositions. Plainly that presents an issue of fact . . . Even if we were to disregard the improbable aspects of plaintiff's story, no tale of thugs or stooges is told herein there remain parts by no means "fantastic." On the record now before us, more than a million copies of one of his compositions were sold; copies of others were sold in smaller quantities or distributed to radio stations or band leaders or publishers, or the pieces were publicly performed. Plaintiff's book was first published 28 years ago. It enjoys

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