The opinion of the court was delivered by: GRADY
JOHN F. GRADY, UNITED STATES DISTRICT JUDGE.
This copyright case comes before us on two motions: (1) the defendants' motion for summary judgment on Count I, and (2) the defendants' motion to dismiss or, in the alternative, for judgment on the pleadings with respect to Counts II and III. We grant the first motion. We grant in part and deny in part the second motion.
COUNT I: COPYRIGHT INFRINGEMENT
In order to recover for copyright infringement, plaintiff Jay Robert Nash ("Nash") must prove (1) that he owns a valid copyright in the subject material and (2) that the defendants copied such material. In our previous opinion, Nash v. CBS, 691 F. Supp. 140 (N.D. Ill. 1988), we addressed only Nash's ability to prove the first element of a copyright cause of action. We concluded that Nash's books contain his "copyrightable" Dillinger Story and that, assuming he possesses all other necessary attributes of copyright ownership,
he holds a valid copyright on the Dillinger Story. On this motion, the defendants switch their focus and challenge Nash's ability to prove the second element of his copyright infringement claim. Defendants argue that there is no genuine issue of material fact as to whether they copied Nash's Dillinger Story. Specifically, they assert that "The Dillinger Print" ("The Print") episode of their television series "Simon and Simon" is not substantially similar to Nash's Dillinger Story.
Before we consider the similarity, if any, between The Print and Nash's books, a brief review of copyright doctrine may be helpful. The parties devote much of their briefs to doctrinal arguments, and a review of the law should clear up these arguments. Moreover, a review should clarify where our decision fits within the overall framework of copyright law.
As we noted, in order to prove copyright infringement, a plaintiff must prove (1) ownership of a valid copyright and (2) copying. Atari v. North American, 672 F.2d 607, 614 (7th Cir.), cert. denied, 459 U.S. 880, 74 L. Ed. 2d 145, 103 S. Ct. 176 (1982). Because direct evidence of copying is rare, the plaintiff normally proves this element by circumstantial evidence. Id. Under Seventh Circuit case law, there appear to be at least two recognized methods to prove copying circumstantially. Under the first method, the plaintiff proves (1) that the defendant had "access" to the copyrighted material and (2) that the accused material is "substantially similar" to plaintiff's copyrighted expression. Id. The second method is a variation on the first. If the plaintiff shows that his material is "strikingly similar" to the defendant's, then he has a reduced burden in proving "access." See Selle v. Gibb, 741 F.2d 896 (7th Cir. 1984).
How much the second method reduces the plaintiff's burden in showing access is unclear under current case law. However, it is certain that the plaintiff must produce some evidence from which a reasonable inference of "access" can be drawn, no matter how "strikingly similar" the works are. Id. at 901. In the words of the Seventh Circuit, a plaintiff must show more than a "bare possibility," "conjecture" or "speculation" of "access." Id. at 902-903. Conversely, the Seventh Circuit has suggested that where evidence of access is strong, the plaintiff's burden in showing "striking similarity" may be reduced. See Id. at n.4. Fortunately, this case does not require us to parse the distinctions between these relative burdens of proof. See Nimmer, Nimmer on Copyright, § 13.02 (criticizing the Seventh Circuit's reasoning in Selle). The Seventh Circuit and all commentators agree that, even if a plaintiff utilizes this second method of circumstantial proof, he must show that his copyrighted expression is "substantially similar" to the defendant's accused work. Id. at 900-901; Nimmer, Nimmer on Copyright, § 13.02[B], § 13.03[A]. Therefore, if Nash cannot show, as the defendants contend, that The Print is "substantially similar" to the Dillinger Story, he cannot prove "copying" by means of either recognized method of circumstantial proof.
The standard for determining "substantial similarity," is somewhat nebulous. The Seventh Circuit has framed the inquiry as a two-part test: "(1) whether the defendant copied from the plaintiff's work and (2) whether the copying, if proven, went so far as to constitute an improper appropriation." Atari, 672 F.2d at 614. At first blush, it appears that the first prong of this test is simply a restatement of the second element of a copyright cause of action, i.e., "copying." Indeed, the Seventh Circuit has not clearly described the nature of the first prong inquiry. See e.g., Scott v. WKJG, 376 F.2d 467 (7th Cir.), cert. denied, 389 U.S. 832, 19 L. Ed. 2d 91, 88 S. Ct. 101, 155 U.S.P.Q. (BNA) 768 (1967). Other circuits have suggested alternative formulations for this inquiry. See Arnstein v. Porter, 154 F.2d 464, 468 (2d Cir. 1946) (holding that dissection and expert testimony is proper) and Sid and Marty Krofft Television v. McDonald's Corp., 562 F.2d 1157, 1164 (calling for "extrinsic-intrinsic test"). Fortunately, we can again dodge the bullet on a tough question of copyright law. As the defendant has agreed to assume "copying" (as that term is used in the first prong of the "substantial similarity" test), Defendants' Memorandum Supporting Motion for Summary Judgment on Issue of Substantial Similarity at 3, we need not address this issue.
Therefore, our focus on this motion is the second prong of the "substantial similarity" test, i.e. "unlawful appropriation." Courts have developed a "test" for assessing unlawful appropriation. The Seventh Circuit refers to it as the "lay observer test" and defines the inquiry as "whether the accused work is so similar to the plaintiff's work that an ordinary reasonable person would conclude that the defendant unlawfully appropriated the plaintiff's protectible expression by taking material of substance and value." Atari, 672 F.2d at 614.
Nash argues that, in making this determination, the trier of fact should compare the "total concept and feel" of his books with that of The Print. He would thus have us consider similarities between his books in their entirety, including their unprotected portions, and The Print. We disagree. The Seventh Circuit has clearly stated that "the ordinary observer test, in application, must take into account that the copyright laws preclude appropriation of only those elements of the work that are protected by the copyright." Id. Thus, Nash cannot show unlawful appropriation on the basis that his books and The Print share unprotected expression, e.g., "ideas" and "facts." As we have already held that the only relevant copyrightable material in Nash's books is his Dillinger Story, we look only to whether a reasonable trier of fact could find that The Print "unlawfully appropriated" Nash's Dillinger Story.
We need to discuss only one more legal issue before turning to our comparison of The Print and The Dillinger Story. Because "unlawful appropriation" can be such an elusive concept, courts have suggested numerous approaches by which to compare a copyrighted work and allegedly infringing material. With respect to literary works, the Seventh Circuit has approved the "abstractions test" and its "refinement," the so-called "pattern test." Atari, 672 F.2d at n.8. Judge Learned Hand described the abstractions test as follows:
"Upon any work . . . a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out. . . . There is a point in this series of abstractions where they are no longer protected, since otherwise the playwright could prevent the use of his "ideas," to which, apart from their expression, his property is never extended. Nobody has ever been able to fix that boundary, and nobody ever can. . . . As respects plays, the controversy chiefly centers upon the characters and sequence of incident, these being the substance."
Atari, 672 F.2d at 615-16, quoting Nichols v. Universal Pictures, 45 F.2d 119, 121 (2d Cir. 1930), cert. denied, 282 U.S. 902, 75 L. Ed. 795, 51 S. Ct. 216 (1931) (emphasis added).
Building on Judge Hand's analysis, Professor Chafee articulated his pattern test: "No doubt the line does lie somewhere between the author's idea and the precise form in which he wrote it down. . . . Protection covers the "pattern" of the work . . . the sequence of events, and the development of the interplay of characters." Atari, 672 F.2d at n.8, quoting Chafee, Reflections on the Law of Copyright, 45 Colum.L.Rev. 503, 513 (1945).
In sum, on this motion we must examine whether a reasonable trier of fact could find that The Print unlawfully appropriated The Dillinger Story. To do so, we will compare the works at issue by using the abstractions and pattern tests approved by the Seventh Circuit. We now turn to the works at issue.
Nash contends that his Dillinger Story appears in four of his books: Dillinger: Dead or Alive ? (" DDOA "), The Dillinger Dossier (" TDD "), Citizen Hoover ("CH"), and Bloodletters and Badmen ("BAB"). Indeed, each book contains passages asserting ...