Worth v. Selchow & Righter Co.
| Decision Date | 08 September 1987 |
| Docket Number | No. 86-5909,86-5909 |
| Citation | 827 F.2d 569 |
| Parties | , 1987 Copr.L.Dec. P 26,161, 4 U.S.P.Q.2d 1144 Fred L. WORTH, Plaintiff-Appellant, v. SELCHOW & RIGHTER COMPANY, Horn Abbott, Ltd., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Joseph F. Hart, Beverly Hills, Cal., for plaintiff-appellant.
James P. Ryther, Chicago, Ill., for defendants-appellees.
Appeal from the United States District Court for the Central District of California.
Before NELSON, HALL and THOMPSON, Circuit Judges.
Fred L. Worth, the author of two encyclopedias on trivia, appeals the district court's grant of summary judgment, and denial of his concurrent motion for partial summary judgment, on a copyright infringement claim against the designers and marketers of the game Trivial Pursuit. We note jurisdiction under 28 U.S.C. Sec. 1291 (1982) and affirm.
Fred L. Worth, a California resident, is the author and owner of all rights in two books on trivia entitled The Complete Unabridged Super Trivia Encyclopedia ("Super Trivia I"), and The Complete Unabridged Super Trivia Encyclopedia, Volume II, ("Super Trivia II"). Worth's books are compilations of facts, alphabetically arranged under headings that are followed by explanations of the particular entry. Each book contains 6,000 entries. Worth allegedly derived the information from books, films, and television shows after extensive research. The two volumes were first published in 1977 and 1981, respectively, and were registered in the copyright office in 1984. Worth's purpose for writing the books, as expressed in the introduction to his first book, was "one, to compile in one reference work a collection of interesting and trivial facts; and second, to collect interesting and perhaps not so trivial facts, facts that are difficult to find."
Worth alleges that Horn Abbott, Ltd., and its principals, the designers of the game Trivial Pursuit, and Selchow & Righter Company ("Selchow"), the marketer of the game, infringed the copyright in his books in their "Genus," "Baby Boomer," and "Silver Screen," editions of the game. Trivial Pursuit is a board game utilizing question and answer cards, in which the object of the game is to answer correctly "trivia questions" in various subject areas in order to roll the dice, advance around the board, and collect color-coded wedges. Each edition of the game contains 6000 questions and answers arranged on 1000 cards. The game tests the players' knowledge of facts in areas such as geography, art, literature, sports, and history (the subjects vary with each edition), and is designed to be entertaining.
Worth contends that 1,675 questions (27.9%) in the Genus edition were taken from Super Trivia I, 1,293 questions (21.6%) in the Silver Screen edition were taken from Super Trivia I and/or II, and 828 questions (13.8%) in the Baby Boomer edition were taken from Super Trivia I and/or II. 1 The following example is representative of the use of Worth's books:
Worth's entry:
Abel, Colonel Rudolf
Russian spy exchanged February 10, 1962 for F. Gary Powers, U-2 pilot.
Q. What Russian spy was exchanged for U-2 pilot Gary Powers in 1962?
A. Rudolf Abel.
The original creators of the game, Chris Haney and Scott Abbott, do not deny consulting Worth's books in the development of their board game. They merely state that Worth's books were among numerous reference sources they consulted in developing Trivial Pursuit (including other books, newspapers, television, radio, theater, and their own general knowledge).
The game was first conceived in 1979. John Haney participated in the early game development along with Chris Haney and Scott Abbott. In April, 1981, the three originators, together with Ed Werner, formed a Canadian corporation, Horn Abbot, Ltd., to market Trivial Pursuit. Abbot and Chris Haney assigned their rights to the corporation, and Horn Abbot, Ltd., obtained a Canadian copyright in the game. In November, 1982, Horn Abbot, Ltd., signed an agreement with Selchow to distribute Trivial Pursuit in the United States. By the end of 1984, sales volume for the game reached $256 million.
In October, 1984, Worth initiated a suit against Horn Abbot, Ltd., Selchow, Chris and John Haney, Scott Abbott, and Ed Werner, alleging copyright infringement and unfair competition and requesting $300 million in damages. The individual defendants (all Canadian residents) filed a motion to dismiss for lack of personal jurisdiction, which the district court granted on March 22, 1985. 2 The remaining parties filed cross-motions for summary judgment: The defendants moved for summary judgment on both the copyright infringement and unfair competition claims; Worth sought partial summary judgment only on the copyright infringement claim. 3 The court granted the defendants' motion and denied Worth's motion. Worth timely appealed.
Whether the district court erred in granting summary judgment in favor of the defendants on the copyright infringement claim.
Summary judgments in copyright infringement actions are reviewed de novo. Frybarger v. International Business Machines Corp., 812 F.2d 525, 528 (9th Cir.1987). Although summary judgment is disfavored on the substantial similarity issue in copyright cases, id., it is "clearly appropriate ... if, after viewing the evidence and drawing every inference in the light most favorable to the nonmoving party, the court concludes that no reasonable jury could find substantial similarity of both ideas and expression between the works at issue." Id. For examples of Ninth Circuit cases affirming summary judgment on the substantial similarity issue, see id. at 527; Berkic v. Crichton, 761 F.2d 1289, 1291 (9th Cir.), cert. denied, 474 U.S. 826, 106 S.Ct. 85, 88 L.Ed.2d 69 (1985); Litchfield v. Spielberg, 736 F.2d 1352, 1354 (9th Cir.1984), cert. denied, 470 U.S. 1052, 105 S.Ct. 1753, 84 L.Ed.2d 817 (1985); See v. Durang, 711 F.2d 141, 142 (9th Cir.1983). The plaintiff bears the burden of proving substantial similarity. Frybarger, 812 F.2d at 528.
To establish copyright infringement, the plaintiff must prove ownership of the work in question, access to the work by the defendant, and substantial similarity of both the general ideas and the expression of those ideas between the plaintiff's and defendant's work. Sid & Marty Krofft Television Prods., Inc. v. McDonald's Corp., 562 F.2d 1157, 1164 (9th Cir.1977); see also Frybarger, 812 F.2d at 529. For the purposes of the summary judgment motion, the defendants conceded Worth's copyright ownership and defendants' access to Worth's books. Our review, therefore, focuses on the issue of substantial similarity.
This circuit applies an "extrinsic test" to determine substantial similarity of ideas between two works. Berkic, 761 F.2d at 1292; Krofft, 562 F.2d at 1164. The test focuses on a comparison of the objective details of the works. Litchfield, 736 F.2d at 1356. Although the plaintiff is required to establish that the ideas in the works are substantially similar to prevail in a copyright infringement claim, the ideas alone are not copyrightable. 17 U.S.C. Sec. 102(b) (1982) (); Frybarger, 812 F.2d at 529. Therefore, if the similarities between two works are confined to nonprotectible ideas, there is no infringing similarity. Id.
The district court found that even if the ideas are substantially similar in Worth's books and Trivial Pursuit, the expression in the game is not substantially similar to the protectible expression in the books. It therefore did not apply the extrinsic test and confined its analysis to the expression prong of the Krofft test. See Landsberg v. Scrabble Crossword Game Players, Inc., 736 F.2d 485, 488 (9th Cir.), cert. denied, 469 U.S. 1037, 105 S.Ct. 513, 83 L.Ed.2d 403 (1984) ().
To determine substantial similarity of expression, this circuit applies a subjective, "intrinsic" test. Berkic, 761 F.2d at 1292; Krofft, 562 F.2d at 1164. The test focuses on "whether 'an ordinary reasonable person' ... would find that the 'total concept and feel' of the works showed substantial similarity." Cooling Sys. & Flexibles, Inc. v. Stuart Radiator, Inc., 777 F.2d 485, 492 n. 9 (9th Cir.1985) ().
Worth asserts that because his books were used as a reference source for a certain percentage of the questions and answers in defendants' game cards, and because certain words were repeated, that the expression in the books and game cards is substantially similar. 4 He further contends that the game cards infringed his selection and arrangement of the facts, which is protected by the copyright in his compilation. 5 Although, selection and arrangement may constitute original authorship in compilations, 1 M. Nimmer, Nimmer on Copyright Sec. 3.04, at 3-20, Worth's analysis of the expression prong of the substantial similarity test reveals a misapprehension of the scope of copyright protection.
Factual works receive distinct treatment from fictional works under copyright law. Landsberg, 736 F.2d at 488. Indeed, facts, like ideas, are never protected by copyright law. Cooling Sys., 777 F.2d at 491; see also 17 U.S.C. Sec. 102(b) (1982) (). Because authors who wish to express ideas in factual works are usually confined to a "narrow range of expression ..., similarity of expression may have to amount to verbatim reproduction or very close paraphrasing before a factual work will...
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