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June 14, 1985


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 cross motions.

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.

In the summer of 1975 Oblander asked Ekern to write a book on the subject of the fitting of women's slacks using the Sew/Fit method. Beginning on December 21, 1976 Ekern and Oblander entered into a series of written agreements by which Defendants became entitled to the exclusive right to publish Ekern's book ("Slacks Cut-to-Fit Your Figure" ("SLACKS")) in return for the payment of certain royalties.

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, at 614.

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 sewing expressions.

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 ...

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