APPEAL from the Circuit Court of Cook County; the Hon.
NICHOLAS J. BUA, Judge, presiding.
MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied July 26, 1972.
Plaintiff, Sylvia Roberts, appeals from a summary judgment entered in favor of defendants, Arlene Dahl et al., in an action to recover damages for the infringement of a common law copyright in certain unpublished scripts for a television series on beauty hints. In addition to Miss Dahl, defendants are: American Broadcasting Companies, Inc., the broadcaster of the allegedly infringing television show; Clairol, Inc. and Clairol, a division of Bristol-Myers Co., the sponsors of the show; Foote, Cone & Belding, Inc., the advertising agency for Clairol; Ruder & Finn of Chicago, Inc., a public relations firm of which Clairol was a client; Gamut Productions, the producer of the allegedly infringing television series and Victor Morris.
Plaintiff, who resides in Chicago, Illinois, alleged in her complaint that prior to March 28, 1966, she created a series of television scripts entitled "The Beauty Spot"; that the scripts were her original creation and of substantial value to her; that she never published or consented to the publication of the scripts; that prior to March 28, 1966, the defendants come into possession of the detailed contents of the scripts without the knowledge or consent of plaintiff, and that on March 28, 1966, and for approximately sixteen weeks subsequent thereto, defendants caused substantially similar scripts to be published on a nationwide television show known as "Arlene Dahl's Beauty Spot". Plaintiff further alleged that as a direct and proximate result of the acts of defendants, she had been deprived of her literary property, and prayed for $500,000 damages. The defendants filed answers denying plaintiff's charges.
The record reveals that plaintiff, Sylvia Roberts, is an accomplished beauty and fashion consultant, a former model and an expert in the field of cosmetics and hairstyling. She has appeared on several television shows and has traveled throughout the United States as a fashion and modeling consultant. Plaintiff has been employed by various large cosmetic manufacturers, has held executive positions at the Patricia Stevens School for Models in Chicago, and has had experience in both copywriting and script work. She testified on deposition that she studied advertising, journalism, drama and television writing at Northwestern University. Miss Roberts has been involved in the field of fashion and beauty consultation for approximately twenty years.
Plaintiff stated that in 1960, she began to think about a television series involving beauty hints for women. By April, 1963, she had completed several scripts and had conceived of the idea of calling her series "The Beauty Spot." In July, 1964, plaintiff met defendant, Victor Morris in Detroit. Morris was a frequent visitor in her home until the fall of 1965. Plaintiff testified that Victor Morris saw her scripts at least a dozen times and that she had discussed the format and outline of the show with him.
In September, 1965, Morris was employed by defendant, Ruder & Finn, a public relations agency which represented defendant Clairol. In his deposition, Morris testified that he had never worked on the Clairol account. He stated that Miss Roberts told him of her idea for a television beauty show, but denied ever seeing plaintiff's scripts or knowing where she kept them. When plaintiff asked him in 1966 if he had ever spoken to anyone at Ruder & Finn about her idea for a television series, he assured her that he had not.
Defendant, Arlene Dahl, a resident of Hollywood, California, is the movie and television personality featured on the "Beauty Spot" television show broadcast on ABC-TV from March 28, 1966, to June 24, 1966. Her affidavit discloses that she has been active in the beauty consulting field for the past fifteen years and has become known as a beauty and fashion expert. Since 1954, she has written syndicated feature articles dealing with a variety of beauty tips for women. In 1960-61, Miss Dahl began began working on a book, "Always Ask a Man The Key to Femininity," which was published by Prentice-Hall in 1965. In 1962, she began giving beauty clinics for women in which she offered advice and counsel on beauty and fashion, using women from the audience as models.
In April, 1965, Arlene Dahl conceived of the idea of a television show featuring her beauty consulting services and disclosed the idea and format to Noel Rubaloff, her agent. She and Rubaloff contacted defendant, Gamut Productions, which taped a beauty clinic given by Miss Dahl in San Francisco in June, 1965. From the tape, Gamut made five 30-minute shows which were telecast in San Francisco on station KGO-TV. From the five 30-minute shows, a single 30-minute pilot film was made. Television networks, television stations and advertising agencies were contacted. In June or July, 1965, defendant Dahl's show was presented to Foote, Cone & Belding, an advertising agency whose clients included defendants Clairol and Clairol, a division of Bristol-Myers. Foote, Cone & Belding was not interested in the half-hour format, but was interested in a five-minute format. In December, 1965, defendant Foote, Cone & Belding bought Miss Dahl's beauty program, comprising 65-five-minute shows. Various topics were selected from defendant's syndicated newspaper articles and from her book. These topics were submitted to Foote, Cone & Belding, which made the final selection. The scripts were written between January and March, 1966, by the same writers Miss Dahl had used to help her write her newspaper features and her book. From March 28 through June 24, 1966, defendant's television shows were broadcast on ABC-TV.
Miss Dahl's account of the development of her television program was substantially corroborated by the affidavits of Noel Rubaloff, her agent; Richard Gottlieb, a principal in Gamut Productions; John Owen, Vice President and Director of Broadcast for Foote, Cone & Belding; Jack Shor, Vice President and Director of Public Relations for Clairol; David Sacks, General Manager of KGO-TV, and James Shaw, a sales account executive at ABC.
In her affidavit, Miss Dahl further stated that since 1946 she has used a beauty spot and lip imprint as her personal "logo" and that she first used the name "Beauty Spot" on her syndicated feature articles in 1963. It was her idea to use the same name for the television program in order to continue her personal "logo". She also asserted that prior to the filing of this action, she was never aware of the existence of Sylvia Roberts or of Miss Roberts' idea for a television show. Nor was she aware of the existence of Victor Morris. She stated that her television series was conceived solely by her and developed completely independently of and without knowledge of Sylvia Roberts' idea or scripts. She also asserted that the idea and format for the Arlene Dahl beauty show was original with her and in no way derived from either Sylvia Roberts or Victor Morris, and that the format was substantially identical to that which she had used in her beauty clinics throughout the United States. In their affidavits, Richard Gottlieb, Jack Shor, John Owen, Noel Rubaloff, David Sacks and James Shaw, each denied being aware of the existence of either Sylvia Roberts or Victor Morris, and stated that to the best of the affiant's knowledge, the Arlene Dahl television beauty show was created and developed by Arlene Dahl independently of and without knowledge of Sylvia Roberts' idea or scripts.
Harry F. Hunter testified on deposition that he was employed by the firm of Ruder & Finn from 1957-1970 as Vice President and General Manager of the Chicago office, and that he hired Victor Morris in September of 1965 as account executive. In his affidavit, Hunter stated that Morris was under his supervision and that at no time did Morris report to anyone but him. He also asserted that Morris had never had contact with the Clairol account. He said, "in fact, the Clairol account was serviced exclusively from the New York office." Hunter stated that prior to the filing of this lawsuit, he was unaware of the existence of Sylvia Roberts or of her idea for a television beauty series.
Dee Granger testified on deposition that she was employed by the firm of Ruder & Finn from 1964-1970 as an account executive. From 1964-66, she worked on the Clairol account, including the Clairol Color Carousel, a massive promotion at the Randhurst Shopping Center. She testified that Victor Morris had driven her to the Randhurst Center in a company car because he had an account located beyond Randhurst, but she denied being aware of the existence of Sylvia Roberts or of her idea for a beauty show prior to the filing of this lawsuit.
The trial court considered the entire record, including the pleadings, depositions of the respective parties, and affidavits of the defendants. In granting summary judgment to the defendants, it held, in a comprehensive memorandum opinion, that Miss Dahl had independently developed her scripts without the benefit of plaintiff's ideas or scripts. Furthermore, the court found that Miss Dahl and the persons who assisted her did not have access to plaintiff's scripts, and that there was no evidence that Victor Morris had disclosed the contents of plaintiff's scripts to anyone involved in developing Arlene Dahl's television series. The court went on to say that, "Where, as here, there is clear evidence of `independent development' and no `access', summary judgment must be granted." Although the court noted that because of the foregoing conclusions, any discussion of the similarities between the two sets of scripts was moot, it asserted that a side-by-side comparison of plaintiff's scripts with those of defendant, revealed that much of what was common was either old and therefore in the public domain or was the subject of Miss Dahl's proprietary rights in her own published works. Specifically, the court found that nearly all the similar language could be found in Miss Dahl's book, "Always Ask a Man The Key to Femininity," which was published before Victor Morris was employed at Ruder & Finn; that Miss Dahl had written syndicated newspaper articles on the identical subjects covered in plaintiff's scripts long before plaintiff claims she authored her scripts, and that much of the language in plaintiff's scripts was part of the routine phraseology used in the beauty consulting field.
Plaintiff contends that summary judgment was improperly entered in this case because there are issues of material fact which should have been determined by a jury. She argues that whether the two sets of scripts are substantially similar, whether defendants had access to plaintiff's work and whether defendants copied from plaintiff, are issues of fact. Defendants counter that there is no genuine issue as to any material fact and that they are therefore entitled to judgment as a matter of law. They contend that no amount of similarity between two literary works can give rise to an inference of copying when the undisputed facts show that the allegedly appropriated material was independently developed. Defendants claim further that plaintiff's access argument is based on unsupported speculation and that there is no evidence that the similarities in the scripts are the result of anything other than the nature of the subject matter of Miss Dahl's use of her own earlier published materials.
The record establishes that plaintiff did have a common law copyright in her scripts since she had not published them or consented to their publication. For purposes of their motion for summary judgment, defendants did not contest plaintiff's ownership of the scripts.
Illinois courts have not been the forum for extensive copyright litigation. Plaintiff's counsel states that he is unaware of an Illinois case which disposes of the precise questions before us on this appeal, other than those dealing in general with the propriety of summary judgment. Both parties have cited numerous opinions on the subject of copyrights from other jurisdictions.
• 1-4 Plaintiff recognizes that the basic legal proposition which she must establish in order to sustain her action for common law copyright infringement is proof of copying by defendants. She argues that copying is often impossible to establish directly. Therefore, the cases have established the rule that an inference of copying arises upon the showing of a substantial similarity between the two works and access to plaintiff's work by the defendants. Where there is strong evidence of substantial similarity, a lesser showing of access will suffice. Conversely, if the evidence of access is weak, stronger proof of substantial similarity will be required. Moreover, access can, in some cases, be inferred from substantial similarities. Arnstein v. Porter, 154 F.2d 464; Christie v. Harris, et al., 47 F. Supp. 39, aff'd. 154 F.2d 827; cert. den. 329 U.S. 734; Golding v. RKO Pictures, 221 P.2d 95; Kovacs v Mutual Broadcasting System, 221 P.2d 108.
• 5 In the field of common law copyright, however, the concept of copying coexists with a related legal concept known as independent development. As stated by Judge Learned Hand in Fred Fisher, Inc. v. Dillingham, 298 F. 145, 147.
"* * * the law imposes no prohibition upon those who, without copying, independently arrive at the precise combination of words or notes which have been copyrighted."
The record reveals that Arlene Dahl's use of a beauty spot and lip imprint as her personal logo, the publication of her newspaper articles, the initial work on her book, and her beauty clinic activities all took place long before any personal relationship developed between plaintiff and Victor Morris. Moreover, Miss Dahl had conceived the disclosed her idea and format for a television program, the five 30-minute tapes were broadcast on KGO-TV and the Arlene Dahl beauty show concept was presented to Foote, Cone & Belding before Morris was employed by Ruder & Finn.
• 6-8 As stated in O'Rourke v. RKO Radio Pictures, 44 F. Supp. 480, 482, "* * * even an exact counterpart of another's work does not constitute plagiarism, providing that such counterpart was arrived at independently and without in fact resorting to the other's work." In the instant case, the uncontradicted affidavits of the defendants establish that the Arlene Dahl television beauty program was developed independently and without knowledge of plaintiff's work. Thus, even if plaintiff on defendants' motion for summary judgment presented sufficient evidence of similarity and access to raise an inference of copying, that inference was necessarily dispelled by defendants' uncontradicted evidence of independent development. (Teich v. General Mills, Inc., 339 P.2d 627.) Where a defendant interposes an absolute defense involving no triable issue of fact, the court may enter summary judgment in his favor. Rock Finance Co. v. Central Nat. Bank, 339 Ill. App. 319, 89 N.E.2d 828.
• 9 We agree with the court below, however, that the evidence of similarity and access presented by plaintiff was insufficient to raise an inference of copying. On the matter of access, it is uncontested that plaintiff informed Victor Morris of her idea and scripts for a television show on beauty counseling. Plaintiff contends that Victor Morris, as an employee of Ruder & Finn, initiated a chain which eventually led to the disclosure of her idea and the contends of her scripts to Arlene Dahl. As the trial court pointed out, however, there is no evidence that Morris disclosed or communicated his knowledge of plaintiff's idea and scripts to anyone. Plaintiff stated on deposition that Arlene Dahl came into possession of the detailed contents of her scripts, but when pressed to be more specific, she admitted that she did not know when, under what circumstances, or to whom Morris had disclosed this information. When asked if she had any tangible evidence that Morris had transmitted the contents of her scripts to Arlene Dahl, plaintiff replied, "The scripts themselves." Conversely, those individuals responsible for writing and producing the Arlene Dahl scripts all stated on affidavit that they had no knowledge of Victor Morris or plaintiff, or of plaintiff's idea or scripts for a television beauty program.
• 10 It is well established that the courts will not engage in speculation or conjecture in order to make a finding of access. (Alexander v. Irving Trust Co., 132 F. Supp. 364, affd. 228 F.2d 221; Sarkadi v. Wiman, 43 F. Supp. 778, affd. 135 F.2d 1002.) Moreover, the courts have refused to find access where, as here, the uncontroverted evidence of the persons directly involved in the preparation of defendant's work was that they had never seen or heard of plaintiff's scripts. (Lapsley v. American Institute of Certified Public Account., 246 F. Supp. 389; Columbia Pictures Corporation v. Krasna, 65 N.Y.S.2d 67.) Thus in Lapsley, Judge Sirica, granting defendant's motion for a directed verdict on the ground that no evidence of access had been presented, noted,
"As indicated earlier, the defendant corporation had access to the plaintiff's manual when it was submitted to its employee, Mr. Hickey. However, the plaintiff has introduced no evidence tending to show that the persons directly involved in the preparation of the defendant's publications had ever seen or heard of the plaintiff's manuscript. In fact, the persons who wrote the defendant's publications testified that they had neither seen nor heard of the plaintiff's material until after they had completed their assignments for the defendant." 246 F. Supp. 389, 390.
In Jacobs v. Hill, 26 Cal.Rptr. 591, plaintiff brought an action for damages for infringement of her common law copyright in a literary composition. Defendants filed a motion for summary judgment on the grounds
"(1) that as a matter of law there is no similarity between plaintiff's manuscript and anything in the alleged infringing production, (2) that none of the defendants, except Medford [a literary agent], had access to the manuscript and that Medford had nothing to do with the creation of the alleged infringing production; and, therefore, there is no triable issue of fact and the action has no merit." 26 Cal.Rptr. 591, 592.
The Appellate Court, affirming the trial court's entry of summary judgment for defendants, stated,
"Plaintiff has not contradicted the statements of Catto [author of the alleged infringing script] or Medford regarding non-access to the manuscript, and has not shown by affidavit or deposition that there was a triable issue as to access." 26 Cal.Rptr. 591, 593.
• 11, 12 Plaintiff stresses that proof of substantial similarities can in some cases give rise to an inference of access. (Kovacs v. Mutual Broadcasting System, 221 P.2d 108.) She has presented to this court a side-by-side comparison of both sets of scripts in an effort to show substantial similarities. We have also been presented by defendants with a side-by-side comparison of Arlene Dahl's scripts with her book entitled "Always Ask A Man The Key to Femininity," which was published in May, 1965. We find virtually all of the similar language relied on by plaintiff can be found in Miss Dahl's book. In addition, Miss Dahl had been writing syndicated newspaper articles on the identical subjects covered in plaintiff's scripts long before plaintiff claims she authored her scripts. Moreover, certain descriptive words claimed by plaintiff to be original are but the routine phrases commonly used in the beauty consulting field. The inference of copying does not exist "where the similarity between the two works arises because of the nature of the subject matter and the fact that both authors used materials available to all." Greenbie v. Noble, 151 F. Supp. 45, 68.
• 13 Plaintiff claims that substantial similarity is a fact issue which cannot be decided as a matter of law. (Kovacs v. Mutual Broadcasting System, 221 P.2d 108; Golding v. RKO Pictures, Inc., 221 P.2d 95; Stanley v. Columbia Broadcasting System, 221 P.2d 73.) Plaintiff fails to note, however, that in Weitzenkorn v. Lesser, 256 P.2d 947, the Supreme Court of Californial specifically considered the Kovacs, Golding and Stanley decisions, and determined that the question of similarity could be dealt with as a matter of law. There the court stated,
"* * * whether there is any question to present to the trier of fact is, in the first instance, a question of law.
Having both productions before it * * *, the court may determine whether there is substantial similarity between them. If, as a matter of law, there is no such similarity, no question of fact is in issue and the demurrers to each count of ...