The opinion of the court was delivered by: Norgle, District Judge.
The parties have filed cross motions for summary judgment.
Plaintiff moves for summary judgment on Counts II (breach of
contract) and III (breach of fiduciary duty). Defendants move
for summary judgment on all counts of the complaint. A brief
description of the relevant facts precedes a discussion of the
Plaintiff, Doris Ekern ("EKERN"), is a self-employed
dressmaker, sewing teacher and author. Defendant, Sew/Fit
Company ("SEW/FIT"), is a publisher of books on the subject of
sewing and fitting garments using the "Sew/Fit Method."
Defendant, Ruth Oblander ("OBLANDER"), is the founder, sole
shareholder and president of Sew/Fit. Oblander also teaches
and has experience in the sewing and fitting of garments using
the "Sew/Fit Method." She is also the author of a number of
books on the subject of sewing.
Plaintiff began "Slacks" in 1975 and finished the work
sometime in late 1976. "Slacks" was apparently a successful
publication. From 1977 through 1981 "Slacks" sold over 124,000
copies and placed at a respectable number three (3) on the
Sew/Fit list of "top sellers." Despite the success of her book,
however, Ekern's full-time employment with Sew/Fit was
terminated on December 1, 1980.
Prior to Plaintiff's termination, Oblander began to work on
a book entitled "Slacks for a Perfect Fit" ("PERFECT FIT").
Some four weeks after Plaintiff's termination, on January 9,
1981, Defendants decided to discontinue publication of
"Slacks" and to begin publication of Oblander's book
"Perfect Fit." Oblander completed the book in the last two
weeks of January (along with her usual travel and lecture
activities). Spring of 1981 saw the publication of over 10,000
copies of "Perfect Fit." Further, the Oblander book was
substituted for Plaintiff's book on the April 1981 Sew/Fit
publication list. Thereafter Oblander's book replaced "Slacks"
on all subsequent Sew/Fit publication lists and orders
requesting copies of "Slacks" were consistently filled with
copies of Oblander's "Perfect Fit."
The party moving for summary judgment has the burden of
establishing that no genuine issue of material fact exists and
that he is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56. Cedillo v. International Association of Bridge
and Structural Iron Workers, 603 F.2d 7, 10 (CA 7 1979). All
factual doubts are resolved against the movant. Although some
courts have expressed a preference that certain copyright
issues be decided by a jury (viz. "substantial similarity"),
the nature of the action does not, in and of itself, preclude
summary disposition. E.g., Hoehling v. Universal City Studios,
Inc., 618 F.2d 972, 977 (CA 2), cert. denied, 449 U.S. 841, 101
S.Ct. 121, 66 L.Ed.2d 49 (1981).
I. Defendants' motion for summary judgment
Counts I and IV allege that Oblander's book ("Perfect Fit")
and the "Sew/Fit Manual" infringe on the Ekern copyright to
"Slacks." In order to establish an infringement Ekern must
prove 1) ownership of a valid copyright and 2) copying of the
work by the Defendants. Atari, Inc. v. North American Phillips
Corp., 672 F.2d 607, 614 (CA 7) cert. denied, 459 U.S. 880, 103
S.Ct. 176, 74 L.Ed.2d 145 (1982). See generally 3 M. Nimmer,
Nimmer on Copyright § 13.-01, at 13-3 (1983) (hereinafter
"NIMMER"). "Because direct evidence of copying is often
unavailable, copying may be inferred where the defendant had
access to the copyrighted work and the accused work is
substantially similar to the copyrighted work." Atari, supra,
Initially Defendants contend Ekern asserts no protectable
copyright interest and therefore she may not maintain an
action for infringement. We address this issue before
proceeding to a discussion of the elements identified in
Atari. Copyright provides no protection to such broad areas as
theories, writing styles and technical explanations. Atari,
supra, at 615. "Unlike a patent, a copyright gives no exclusive
right to the art disclosed, protection is given only to the
expression of the idea — not the idea itself." Mazer v. Stein,
347 U.S. 201, 217, 74 S.Ct. 460, 470, 98 L.Ed. 630 (1954).
Likewise, instructional vocabulary and thematic elements are
not protected. Reyher v. Children's Television Workshop,
533 F.2d 87, 90 (CA 2), cert. denied, 429 U.S. 980, 97 S.Ct. 492,
50 L.Ed.2d 588 (1976); McMahon v. Prentice-Hall, Inc.,
486 F. Supp. 1296, 1304 (E.D.Mo. 1980). Defendants argue that
certain "trade dress" common to Sew/Fit publications and
elements of "common expressions within the vocabulary of
sewing" cannot serve as a basis for Ekern's infringement claim.
This is a correct statement of the law (E.g., See v. Durang,
711 F.2d 141, 143 (CA 1983)), but the alleged infringement in
this case does not consist solely of "trade dress" and common
Plaintiff complains Defendants have appropriated specific
text and artwork from her book; text and artwork which is
subject to her copyright. Therefore, the issue we must address
is whether the artwork identified by Plaintiff, in conjunction
with the supporting text, warrants copyright protection. For
the purpose of this motion the court finds Ekern is the owner
of the copyright in the illustration contained in "Slacks."
Moreover, we find the identified text and artwork are
sufficiently removed from the realm of theories, ideas and
concepts to warrant copyright protection.
As Nimmer explains, the copyrightability of a work's subject
matter is one of the elements of "ownership." Nimmer §
1301.[A]. Registration of a copyright constitutes prima facie
proof of ownership. 17 U.S.C. § 410(c). Baldwin Cooke Co. v.
Keith Clark, Inc., 383 F. Supp. 650, 655 (N.D.Ill., aff'd.
505 F.2d 1250 (7th Cir. 1974). Defendants, therefore, have the
burden of overcoming Plaintiff's prima facie proof of the
copyrightability of the subject matter of her work. The Ninth
Circuit's decision in Landsberg v. Scrabble Crossword Game
Players, Inc., 736 F.2d 485 (CA 9), cert. denied, ___ U.S. ___,
105 S.Ct. 513, 83 L.Ed.2d 403 (1984) provides an instructive
analysis of the copyrightability issue. See also Reyher v.
Children's Television Workshop, 533 F.2d 87, 91 (CA 2 1976).
The Plaintiff in Landsberg developed a strategy for the
playing of Scrabble and, in the course of publishing an account
of his strategy, requested permission of the Defendant, Selchow
and Richter ("S & R"), to use the Scrabble trademark. In order
to evaluate Plaintiff's reques>t, S & R requested and received
a copy of Plaintiff's manuscript.
At the time it received Plaintiff's manuscript S & R was in
the process of formulating its own instruction book on the
playing of Scrabble (the "Scrabble Handbook"). The employee
reported Plaintiff's manuscript had merit and S & R initiated
negotiations with Landsberg for the rights to the manuscript.
Negotiations, however, broke off and S & R severed ...