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RESPECT INC. v. COMMITTEE ON THE STATUS OF WOMEN

January 2, 1992

RESPECT INCORPORATED and COLEEN MAST, Plaintiffs,
v.
COMMITTEE ON THE STATUS OF WOMEN, d/b/a PROJECT RESPECT, Defendant.


Shadur


The opinion of the court was delivered by: MILTON I. SHADUR

Coleen Mast ("Mast") and Respect Incorporated (together referred to as "Respect," *fn1" treated after this sentence as though it were a singular collective noun) have filed an eight-count Complaint against Committee on the Status of Women ("Committee"). Respect claims a host of violations of its rights: copyright infringement (Count I), service mark/trademark infringement (Count II), breach of contract (Count III), common-law unfair competition (Count IV), violations of Lanham Act ยง 43(a) (Count V), conversion (Count VI) and fraud in the inducement of a contract (Count VII). Respect seeks an accounting as well (Count VIII).

 Committee has now moved under Fed. R. Civ. P. ("Rule") 56 to obtain a partial summary judgment dismissing Counts III and VI. Even though the parties' submissions range far beyond the limited scope of that motion, instead addressing all aspects of the parties' relationship in global terms, this Court will--like the good shoemaker--stick to its last. For the reasons stated in this memorandum opinion and order, Committee's motion is granted as to both counts.

 Facts2

 This District Court's General Rule ("GR") 12(m) requires the Rule 56 movant to submit a statement of assertedly uncontested facts, with citations to the record in support of each fact alleged. GR 12(n) requires the nonmoving party to respond point by point, with citations to the record in support of (1) any claimed contest of the movant's version of the facts and (2) any additional facts that the nonmovant chooses to assert. Facts must be deemed uncontested if the responding party does not cite supporting documentation for any objections to the movant's version--a rule that is strictly enforced ( Maksym v. Loesch, 937 F.2d 1237, 1240-41 (7th Cir. 1991) and cases cited there)).

 What follows is a quick overview of the facts as developed under GR 12. Additional facts are elucidated as necessary in the later text discussion. *fn3"

 Sexual abstinence education, a novel component of school curricula across the United States, provides the backdrop for this lawsuit. Respect developed a program called "Sex Respect" ("the program") designed to promote abstinence among schoolchildren. One component of the program was a set of three books entitled Sex Respect: The Option of True Sexual Freedom: a teacher's manual, a parent's manual and a student workbook ("the books"). Committee obtained federal funds from the United States Department of Health and Human Services ("HHS") to carry out a pilot expansion of the program in selected public schools in Illinois.

 Committee and Respect now disagree over the legal nature of their business relationship. Committee maintains that Mast was its employee, not its consultant; that Sex Respect was a work for hire in which Respect retained no rights; that under HHS regulations Committee was free to produce its own copies of the program materials notwithstanding Respect's assertion of copyright; and that Committee never entered into a binding contract to buy books from Respect. On each of those points Respect contends the converse: that Mast was an independent consultant; that Respect retained certain rights in the books and the program; that the use of HHS funds did not erase Respect's rights in the program and books; and that Respect and Committee entered into a binding and far-reaching contract governing the development of both the books and the program.

 Things turned sour at some point. Committee produced and distributed copies of the books without getting Respect's permission or paying Respect any compensation. Respect then brought this lawsuit.

 Rule 56 requires this Court to rule in the movant's favor if "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." To demonstrate that an issue is "genuine," the moving party must cite to evidence in the record sufficient to suggest that its view of the issue might be adopted by a reasonable factfinder ( Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Billups v. Methodist Hosp. of Chicago, 922 F.2d 1300, 1304 (7th Cir. 1991)). To demonstrate that an issue is "material," the moving party must show that the issue is outcome-determinative under the applicable substantive law ( Pritchard v. Rainfair, Inc., 945 F.2d 185, 191 (7th Cir. 1991))

 Respect's Contract Claim

 Mast developed the initial version of the Sex Respect program and taught it for several years before entering into negotiations with Committee (P. Ex. 10 (hereafter cited "Mast Aff.") para. 1; P. Ex. 8 at 2). Evidently Mast wanted to upgrade the quality of her teaching materials and to disseminate them more widely. It is not clear just when Committee entered the picture, *fn4" but by early 1985 Committee advised Mast that federal funds might be available to test or expand the program in public schools. Committee's President Kathleen Sullivan introduced Mast to Douglas Hofmeister, the head of a publishing company called United Communications of America, Inc. ("UCA"), to see whether Mast could arrange to have her teaching materials reproduced commercially (Mast Aff. para. 4). *fn5"

 On July 29, 1985 Mast entered into a publishing contract with UCA (P. Ex. 2) *fn6" under which UCA agreed to publish three books related to the program: the workbook, a teacher handbook and a parent handbook. Under the contract Mast assigned to UCA the sole right to publish the three works, as well as assigning the copyrights themselves. She began writing the books in August 1985 (Mast Aff. para. 9). *fn7"

 On October 15, 1985, at a meeting attended by Mast and members of Committee, the parties allegedly entered into a comprehensive oral contract. Mast Aff. para. 13 offers a 15-point recitation of the contract provisions, but the essence of the agreement is more briefly summarized in these terms:

 1. Committee agreed to conduct a pilot program to test the effectiveness of Sex Respect by teaching the program in selected public schools (Mast Aff. para. 13(a)). Committee also agreed to conduct several detailed evaluations of the pilot program and to provide those evaluations to Mast (id. para. 13(j)-13(o))


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