Ring v. Estee Lauder, Inc.

• Decision Date: 04 May 1989
• Docket Number: No. 1007,D,1007
• Parties: 1989 Copr.L.Dec. P 26,422, 10 U.S.P.Q.2d 1796 Jane RING, Plaintiff-Appellant, v. ESTEE LAUDER, INCORPORATED, Defendant-Appellee. ocket 89-7043.
• Court: U.S. Court of Appeals — Second Circuit

Page 109

874 F.2d 109

1989 Copr.L.Dec. P 26,422, 10 U.S.P.Q.2d 1796

Jane RING, Plaintiff-Appellant, v. ESTEE LAUDER, INCORPORATED, Defendant-Appellee.

No. 1007, Docket 89-7043.

United States Court of Appeals Second Circuit.

Argued April 13, 1989.

Decided May 4, 1989.

Penny Shemtob, New York City (Stephen A. Weingrad, Weingrad & Weingrad, New York City, on the brief), for plaintiff-appellant.

Allan Zelnick, New York City (Weiss Dawid Fross Zelnick & Lehrman, New York City, on the brief), for defendant-appellee.

Before NEWMAN, CARDAMONE, and WINTER, Circuit Judges.

PER CURIAM:

Jane Ring appeals from a judgment of the District Court for the Southern District of New York (David N. Edelstein, Judge) dismissing on motion for summary judgment her complaint against Estee Lauder, Inc. Ring v. Estee Lauder, Inc., 702 F.Supp. 76 (S.D.N.Y.1988). Ring alleged copyright infringement and state law claims all arising out of defendant's use of an idea that plaintiff contends she furnished to the defendant in confidence. The essence of the idea is to furnish a cosmetics customer a videotape cassette of a "makeover" session at which a cosmetician instructs the customer as to appropriate application of cosmetics.

The copyright claim fails, as the District Court concluded, because the defendant's videotapes do not use any of the protectable expression contained in the plaintiff's videotape. The similarity is limited to the idea of having a cosmetician apply make-up to a customer, instruct her in the proper application, and furnish her with a videotape of the procedure. Plaintiff attempts to establish similarity beyond these unprotectable elements by pointing to such factors as the camera position, the angle of photography, and the closeness of the lens. These elements sometimes may be protectable expression in the context of visual works such as photographs, television advertisements, or videocassettes. See Chuck Blore & Don Richman, Inc. v 20/20 Advertising, Inc., 674 F.Supp. 671, 677 (D.Minn.1987); Kisch v. Ammirati & Puris Inc., 657 F.Supp. 380, 382 (S.D.N.Y.1987). But in this case, where the purpose of both the defendant's tapes and the plaintiff's tape is to demonstrate the application of make-up, none of the similarities between the tapes reflect anything other than the ordinary means of implementing the underlying idea, means that are too inseparable from the idea itself to warrant protection as expression. Cf. Affiliated Hospital Products, Inc. v. Merdel Game Manufacturing Co., 513 F.2d 1183, 1188-89 (2d Cir.1975) (rules of a game unprotectable and protected scope of expression of rules is narrow); Frybarger v. International Business Machines Corp., 812 F.2d 525, 530 (9th Cir.1987) ("indispensable" expression of similar ideas protected only against virtually identical copying). We agree with the District Court that as a matter of law, no reasonable jury could find the similarities between the tapes extended beyond these unprotectable elements. The copyright claim therefore was properly rejected.

The District Court rejected the state law claims on the ground that Ring's idea lacked the requisite novelty to be protected under state law. ¹ See Downey v. General Foods Corp., 31 N.Y.2d 56, 334 N.Y.S.2d 874, 286 N.E.2d 257 (1972); Murray v. National Broadcasting Co., 844 F.2d 988 (2d Cir.1988) (applying New York law). Undisputed evidence revealed that prior to 1983, when plaintiff first conveyed her idea to defendant, defendant had been videotaping makeovers and telecasting them for viewing by other customers at Estee Lauder co...