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SWEET v. CITY OF CHICAGO

December 20, 1996

EDWARD SWEET AND KIMBERLY SWEET, Plaintiffs,
v.
CITY OF CHICAGO, Defendant.



The opinion of the court was delivered by: ANDERSEN

 The plaintiffs are authors of a guidebook entitled "Eat Your Art Out, Chicago" (the "Guidebook"), published in 1989, which lists restaurants and bars in the Chicago region that exhibit art for sale and sets forth their terms of exhibition. The sole criterion for listing in the Guidebook is the establishment's active interest in showing art.

 Discussion

 On a motion to dismiss, we accept as true all well-pleaded factual allegations of the complaint, and draw all reasonable inferences therefrom in favor of the plaintiff. Midwest Grinding Co. v. Spitz, 976 F.2d 1016, 1019 (7th Cir. 1992). The court need not, however, ignore facts alleged in the complaint that undermine the plaintiff's claim. Arazie v. Mullane, 2 F.3d 1456, 1465 (7th Cir. 1993) (citing Roots Partnership v. Lands' End, 965 F.2d 1411, 1416 (7th Cir. 1992)). The complaint will not be dismissed unless "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984). "Nevertheless, a plaintiff must allege sufficient facts to outline the cause of action, proof of which is essential to recovery." Ellsworth v. City of Racine, 774 F.2d 182, 184 (7th Cir. 1985), cert. denied, 475 U.S. 1047, 89 L. Ed. 2d 574, 106 S. Ct. 1265 (1986) (citations omitted).

 A. Copyright Infringement

 The City first contends that Count I of the complaint should be dismissed because the plaintiffs fail to allege ownership of the copyright. It notes that according to the copyright notice in the Guidebook, the copyright is held by Urbs in Photo, Inc. and that the cover illustration, which is alleged to be infringed by the City's advertising for the Art Fair, is credited to Millie Sweet. The City argues that since the complaint alleges no transfer or assignment of copyright ownership, the plaintiffs have not stated a claim for copyright infringement. It further argues that even the explanation offered by the plaintiffs in their response brief and supporting documentation that as successors to the now dissolved Urbs in Photo, Inc. ("Urbs"), they are the owners of the copyright and that Millie Sweet's work on the cover illustration was a work done for hire for Urbs cannot cure the alleged defects in the complaint because matters not raised in the pleadings themselves are not appropriate for consideration on a motion to dismiss.

 It is well settled that in order to state a claim of copyright infringement, a complaint need allege only ownership, registration, and infringement. Friedman, Eisenstein, Raemer & Schwartz v. Afterman, 599 F. Supp. 902, 903 (N.D. Ill. 1984). Other details of the claim may be obtained by discovery. Id. at 904. Where the complaint alleges these elements, the complaint need not specifically allege the derivation of the plaintiffs' ownership of the copyright. Bobrecker v. Denebeim, 25 F. Supp. 208, 209 (W.D. Mo 1938); see also Wright & Miller, Federal Practice and Procedure: Civil 2d at § 1237 (1990). The complaint alleges in paragraphs 4 and 6 that the plaintiffs hold a valid copyright to their book, that it was registered with the United States Copyright Office, and that the defendant infringed their copyright. Thus, the plaintiffs have properly alleged ownership and registration of the copyright.

 The City then contends that the complaint fails to allege that it infringed any of the exclusive rights protected by copyright. Plaintiffs allege that they are the authors of a book. Thus, their work is categorized under the Copyright Act as a literary work. 17 U.S.C. §§ 101, 102(1). The exclusive rights applicable to a literary work are: (1) to reproduce the copyrighted work; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies of the copyrighted work; (4) to perform the copyrighted work publicly; and (5) to display the copyrighted work publicly. 17 U.S.C. § 106.

 The plaintiffs do not allege that the Art Fair or the associated advertising and publicity reproduces, distributes, performs, or displays any of the contents of the Guidebook. Nor do they allege that the restaurants or other establishments represented at the "Taste of Chicago" festival are the same as those included in the Guidebook or that they are arranged in the same or similar manner. Thus, the only one of these exclusive rights that is conceivably applicable here is the second: the preparation of derivative works. A "derivative work" is defined as

 
a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work has been recast, transformed, or adapted.

 17 U.S.C. § 101. It is difficult to see how an outdoor art fair could be a "derivative work" *fn1" of a guidebook to certain Chicago area restaurants and bars, unless the art fair somehow indicates which restaurants or bars in Chicago display art for sale. Even if it did so, that would be merely the expression of an idea, which is insufficient in itself, as we shall see, to establish copyright infringement. But the plaintiffs do not allege that.

 Instead, what the plaintiffs allege is that the City infringes upon their copyright by "using the title, derivative works and strikingly similar graphics of 'art works' in connection with Defendant's art fairs," Compl. at P 7, that "Defendant's 'Eat Your Art Out' event similarly [to the Guidebook] connects local restaurants, clubs, and public eateries and establishments with the display of works of art by local artists, which works of art are available for viewing and purchase by the patrons of these establishments," Compl. at P 9, that the City's Art Fair and the "advertising and marketing relating thereto and written promotional materials and books are the natural extension of and a protected derivation of [the Guidebook], by connecting all, or as many as practicable, of the regional restaurants and all, or as many as practicable, of the local artists with common patrons," Compl. at P 11, and that the Art Fair 'is a combination of local eating and drinking establishments with the viewing and sale of works of art by local, juried artists, which is derived from [the Guidebook]." Compl. at P 13. Plaintiffs state further that their "expression of the idea that there are places which encourage art patrons and food patrons to enjoy both pursuits at the same time and place is the essence of [the Guidebook], which was the first and unique written presentation thereof." Compl. at P 14.

 In essence, these allegations claim that the City copies the title of the Guidebook, appropriates the idea of connecting art and dining establishments, and uses similar graphics in its advertising. The plaintiffs do not explain what they mean by the words "connects" or "connecting" in paragraphs 9 and 11 of the complaint. As we have already noted, there are no allegations that the Art Fair or its publicity somehow indicates which restaurants or bars in Chicago display art for sale. What we are left with seems to be no more than the complaint that, ...


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