irrelevant. Unless Charlene Products can show me what germane subject it is relevant to, the document will be excluded under Rule 401.
A.10. Pivot Point believes that Charlene Products copied descriptions out of its catalogs. It sought, in discovery, to learn of any independent source Charlene Products had for its product numbers and descriptions. When the answers were not satisfactory, Pivot Point sought by motion in limine to exclude evidence of any such alternative sources.
Magistrate Judge Keys denied this motion on the ground that the sources of catalog numbers and descriptions are relevant to the originality of Pivot Point's long neck mannequin head and to the originality of the catalog itself. This seems to me both doubtful (for reasons covered immediately above) and beside the point of the motion. But the motion is itself miscaptioned. Pivot Point really wants either a discovery sanction under Fed. R. Civ. P. 37, which it should seek by motion addressed to that possibility, or an admission that Charlene Products has no other source. The best way to pin this down would be for Pivot Point to file a request for admission under Fed. R. Civ. P. 36, and if Charlene Products does not admit that its source was the 1988 Pivot Point catalog, then Charlene Products must come up with some other source (or face the heavy penalties associated with wrongful failure to admit). Perhaps Pivot Point will explain in the process why it calls the catalog claim one for unfair trade practices, rather than copyright infringement.
A.11. I agree with Judge Keys that Cy Kennedy's testimony concerning a conversation with Peter Yau on the subject of Pivot Point's supposed intent to drive Charlene Products out of business must be excluded as hearsay. I grant the motion to exclude Kennedy's further proposed testimony, as "lay opinion," that large companies often sue small competitors. There is no foundation for this testimony; it is not a proper subject of expert testimony (see Fed. R. Evid. 702); and whatever marginal relevance the testimony has would be swamped by its potential for distraction of the jury and undue prejudice, so the evidence will be excluded under Rule 403.
B.4. Pivot Point wants Professor Lloyd Weinreb to testify as an expert witness about the copyright process in general, and the copyrightability of mannequin heads in particular. Judge Keys granted Charlene Products' motion in limine to exclude any testimony about the copyrightability of these mannequin heads, but he otherwise denied the motion. Pivot Point objects to what it sees as undue restrictions on Professor Weinreb's testimony, but I think that the motion should have been granted in full. Professor Weinreb is a distinguished scholar, but he will not be allowed to testify in this case.
Whether mannequin heads in general, or these mannequin heads in particular, are copyrightable is a question of law, which the court will decide (perhaps in response to dispositive motions soon to be filed). A jury has nothing to do with this subject. Cf. Markman v. Westview Instruments, Inc., 134 L. Ed. 2d 577, 116 S. Ct. 1384 (1996). If the court determines that mannequin heads are copyrightable subject matter, the jury will be so instructed. Similarly, the court will provide the jury with any necessary general information about the operation of the copyright system. There is no need for expert testimony on this subject; in a trial there is only one legal expert--the judge.
Citing Carol Barnhart Inc. v. Economy Cover Corp., 773 F.2d 411 (2d Cir. 1985), Pivot Point observes that several cases have permitted expert legal testimony of the kind Professor Weinreb would deliver. What Pivot Point omits is the fact that the second circuit's position on legal-expert testimony has been disapproved by the seventh. Bammerlin v. Navistar International Transportation Corp., 30 F.3d 898, 900-01 (7th Cir. 1994). See also, e.g., Urso v. United States, 72 F.3d 59, 60 (7th Cir. 1995); Roulo v. Russ Berrie & Co., 886 F.2d 931, 940 (7th Cir. 1989). Even in the second circuit, the admission of such testimony is within the trial court's discretion, see United States v. Bilzerian, 926 F.2d 1285, 1294-95 (2d Cir. 1991), and whatever discretion I may possess under seventh circuit law is now exercised adversely to its use in this case.
These rulings should cut down on the complexity of trial, and it may be that rulings on dispositive motions now to be filed can make additional headway.
Frank H. Easterbrook
August 2, 1996
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