F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS FEB 7 2000 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk
PHILIP CONDON FISHER,
Plaintiff-Appellant,
v. No. 99-1162 (D.C. No. 96-D-1895) UNITED FEATURE SYNDICATE, (D. Colo.) INC., a Scripps Howard company; DENVER PUBLISHING COMPANY; E.W. SCRIPPS COMPANY; CHARLES SCHULTZ; LEE MENDELSON, Producer; BILL MELENDEZ; BARR ARTHUR PRODUCTIONS, INC.; WHOLESALE WAREHOUSING OF CANADA; CBS, INC.; NEWS AMERICA PUBLISHING, INC.; KELLOGG COMPANY; METROPOLITAN LIFE INSURANCE COMPANY; CAPITAL CITIES/ABC, INC.; TCI OF COLORADO; GENERAL ELECTRIC COMPANY; TURNER BROADCASTING SYSTEM, INC.; UNIVERSAL PRESS SYNDICATE, INC.; SEARS, ROEBUCK AND COMPANY; MONTGOMERY WARD & COMPANY; KACEY FINE FURNITURE; SOUNDTRACK; FINGERHUT CORPORATION; BEST BUY COMPANY; TYSON FOODS, INC.; WALT DISNEY COMPANY; ADVANCE PUBLICATIONS INCORPORATED; S.I. HOLDINGS INC.; THOMSON CONSUMER ELECTRONICS,
Defendants-Appellees,
and
KARTES VIDEO COMMUNICATIONS; CYCLONE INCORPORATED; KING FEATURES SYNDICATE, INC.; COWLES SYNDICATE, INC.,
Defendants.
ORDER AND JUDGMENT *
Before EBEL , KELLY , and BRISCOE , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). Therefore,
plaintiff’s request for oral argument is denied and the case is ordered submitted
without oral argument.
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
-2- Plaintiff Philip Condon Fisher, appearing pro se, brought this action against
defendants, claiming that defendants had infringed copyrights Fisher held in
a comic strip character named “Chipper” and a comic strip named “Langsyne.”
After considering Fisher’s many objections, the district court affirmed and
adopted the magistrate judge’s recommendation that defendants’ various
motions to dismiss be granted and that Fisher’s motions for summary judgment
be denied. See Fisher v. United Feature Syndicate, Inc. , 37 F. Supp. 2d 1213
(D. Colo. 1999).
Fisher appeals, claiming that the district court erred (1) in dismissing his
claims that United Feature Syndicate’s 1974 feature “It’s A Mystery Charlie
Brown,” starring “Snoopy” as a Sherlock Holmes-type detective dog infringed
his copyrights; (2) in dismissing his claims that Metropolitan Life Insurance
Company’s television advertisements starring “Snoopy” as a Sherlock
Holmes-type detective dog infringed his copyrights; (3) in dismissing his claims
against several defendants owned by RCA (the RCA defendants) for copyright
infringement; (4) in dismissing his claims that defendant Tyson Foods infringed
his copyright by use of its “CHICK’N CHIPPERS” label on one of its chicken
products; (5) in dismissing his claims that defendant Universal Press Syndicate’s
“For Better Or For Worse” comic strip plagiarized his copyrighted “Langsyne”
comic strip; and (6) in dismissing his claim that United Feature Syndicate
-3- infringed his copyright in its comic strip “DRABBLE.” 1 We have jurisdiction
pursuant to 28 U.S.C. § 1291, and, following a careful review of this case,
we affirm.
We review de novo the sufficiency of a complaint to survive a
Fed. R. Civ. P. 12(b)(6) motion to dismiss for failure to state a claim for which
relief may be granted. See Bauchman ex rel. Bauchman v. West High Sch. ,
132 F.3d 542, 550 (10th Cir. 1997). Accepting any well-pleaded allegations of
the complaint as true and construing them in the light most favorable to the
plaintiff, the district court may appropriately dismiss a complaint only when it
appears that the plaintiff can prove no set of facts in support of his claims that
would entitle him to relief. See Yoder v. Honeywell, Inc. , 104 F.3d 1215, 1224
(10th Cir. 1997). We construe Fisher’s pro se pleadings liberally. See Haines v.
Kerner , 404 U.S. 519, 520-21 (1972).
1 Fisher filed a mostly unintelligible 128-page, 300-paragraph, 43-claim complaint against forty-one defendants seeking over $3 billion in damages. Fisher filed two large boxes of exhibits with his complaint which were not served on defendants. In an amended complaint, he incorporated the exhibits by reference, but still failed to serve defendants with the exhibits. Following an unsuccessful appeal of the district court’s order requiring service of the exhibits, the court granted the defendants’ motions to quash service based on Fisher’s failure to serve all defendants with copies of the exhibits. Although it is unclear as to whether Fisher ever properly served defendants with the exhibits, the magistrate judge addressed the merits of Fisher’s claims because the defendants addressed the merits in their various motions to dismiss. See Fisher , 37 F. Supp. 2d at 1222 and n.2.
-4- I. Copyright Infringement
“In order to prevail on [his] copyright infringement claim, [p]laintiff must
establish both: (1) that [he] possesses a valid copyright and (2) that [d]efendants
‘copied’ protectable elements of the copyrighted work.” Country Kids ‘N City
Slicks, Inc. v. Sheen , 77 F.3d 1280, 1284 (10th Cir. 1996) (quoting Feist Pubs.,
Inc. v. Rural Tel. Serv. Co. , 499 U.S. 340, 361 (1991)). Initially, our inquiry here
focuses on whether, as a factual matter, defendants copied Fisher’s comic strip.
See id. Second, we must determine, as a mixed issue of fact and law, if the
copied elements of Fisher’s work, if any, were protectable under his copyright.
See id. The Copyright Act provides that copyright protection does not extend to
“any idea, procedure, process, system, method of operation, concept, principle, or
discovery, regardless of the form in which it is described, explained, illustrated,
or embodied in such work.” 17 U.S.C. § 102(b). “One of the fundamentals of
copyright law is that a copyright does not protect an idea, but only the expression
of the idea.” Autoskill Inc. v. National Educ. Support Sys., Inc. , 994 F.2d 1476,
1491 (10th Cir. 1993). Fisher can prove copying either directly, or indirectly by
establishing that defendants “had access to the copyrighted work and that there
are probative similarities between the copyrighted material and the allegedly
copied material.” Country Kids ‘N City Slicks, Inc. , 77 F.3d at 1284 .
-5- In making a determination of whether defendants’ work is substantially
similar to the protected elements of Fisher’s work, this circuit applies an
“‘abstraction-filtration-comparison’” test, requiring that we (1) “separate the
ideas (and basic utilitarian functions), which are not protectable, from the
particular expression of the work[;]” (2) “filter out the nonprotectable
components of the product from the original expression[;]” and (3) “compare the
remaining protected elements to the allegedly copied work to determine if the two
works are substantially similar.” 2 Id. at 1284-85; see also Gates Rubber Co. v.
Bando Chem. Indus., Ltd. , 9 F.3d 823, 834-42 (10th Cir. 1993). In determining
whether the two works are substantially similar, the court inquires “‘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 [sic] expression by taking material of substance and value.’” Country
Kids ‘N City Slicks, Inc. , 77 F.3d at 1288. (quoting Atari, Inc. v. North Am.
Philips Consumer Elecs. Corp. , 672 F.2d 607, 614 (7th Cir. 1982)).
2 We reject, as did the district court, Fisher’s urging that we abandon the abstraction-filtration-comparison test in favor of a “parallel column analysis” which purports to show by means of comparison of parts and portions of Fisher’s comic strip and defendants various depictions, the similarity between the two.
-6- A. “Snoopy” v. “Chipper”
In his complaint, Fisher alleged that United Feature Syndicate, Inc. Charles
Schultz, and various other individuals and entities associated with the “Peanuts”
comic strip character, “Snoopy,” and the story “It’s A Mystery Charlie Brown,”
infringed his copyrights by depicting “Snoopy” in the role of a detective clad in a
Sherlock Holmes hat and cape with a large horn pipe and magnifying glass.
Fisher alleged that this depiction infringed his copyrighted comic strip portraying
a “cowardly” detective dog named “Chipper.” Fisher also claimed that a
television commercial for Metropolitan Life Insurance Company using “Snoopy”
in his Sherlock Holmes role infringed on his “Chipper” copyrights. Both claims
are without merit.
In affirming the magistrate judge’s dismissal recommendation on this
claim, the district court rejected Fisher’s contention that because both “Snoopy”
and “Chipper” were portrayed as “cowardly detective dog[s],” the two were
“substantially similar.” Fisher , 37 F. Supp. 2d at 1218. The court concluded that
Fisher relied exclusively on the cowardly detective dog similarity and did not
satisfy the “abstraction-filtration-comparison” test under the reasonable observer
standard. See id. at 1219. We agree.
As defendants point out in their brief, “Snoopy” was on the scene in 1950,
more than twenty years before Fisher copyrighted his “Chipper” character in
-7- 1974. See Appellees’ Jt. Br. at 12. Defendants also noted that during those
twenty years “Snoopy” was depicted in numerous roles, including a 1962
“Peanuts” episode, submitted as an exhibit by Fisher, depicting “Snoopy” dressed
in a Sherlock Holmes hat and pipe. See id. at 12 n.5. Defendants also contend
that while Fisher portrays “Chipper” as a “humanized” dog, see id. at 20,
“Snoopy” is, and always has been, depicted as a dog, “Charlie Brown’s” pet,
see id. at 12. Fisher alleges that “Snoopy’s” depiction as “cowardly” in “It’s A
Mystery, Charlie Brown,” was a departure from his usual depiction as heroic, and
was therefore, evidence of copying. Defendants’ respond, and we agree, that
while the “Snoopy” detective character has been depicted as running away if
startled, he has always been depicted as a character with “bravado” and has never
been depicted as either particularly heroic or cowardly.
Here, it is undisputed that Fisher holds a valid copyright on his “Chipper”
comic strip character. See Feist Pubs. Inc. , 499 U.S. at 361. However, we agree
with the district court that Fisher failed to establish sufficient similarities between
his “Chipper” comic strip and the detective dog portrayed by “Snoopy” in “It’s A
Mystery Charlie Brown” to support his claim that defendants copied his work.
See Gates Rubber Co. , 9 F.3d at 832. Moreover, even if we were to assume that
defendants copied portions of Fisher’s work, we cannot conclude that those
-8- portions are “protected expression and of such importance to the copied work that
the appropriation is actionable.” Id.
Copyright protection is afforded only to original works. See 17 U.S.C.
§ 102(a); Feist Pubs., Inc. , 499 U.S. at 345 (“To qualify for copyright protection,
a work must be original to the author. Original, as the term is used in copyright,
means only that the work was independently created by the author (as opposed to
copied from other works), and that it possesses at least some minimal degree of
creativity.”) (citation omitted). Under the “ scenes a faire doctrine,” expressive
elements of a work are not entitled to copyright protection if they “are standard,
stock, or common to a particular topic, or . . . necessarily follow from a common
theme or setting.” Gates Rubber Co. , 9 F.3d at 838; see also Autoskill , 994 F.2d
at 1494. Here the Sherlock Holmes treatment is an expression which is common
to the detective idea, and “is lacking in the originality that is the sine qua non for
copyright protection.” Gates Rubber Co. , 9 F.3d at 838; see also Mitel, Inc. v.
Iqtel, Inc. , 124 F.3d 1366, 1374-75 (10th Cir. 1997) (noting that “the Irish cop” in
“often-recurring themes of police fiction,” are unprotected scenes a faire )
(quotation omitted).
Likewise, Fisher’s claim that the appearance of the misspellings of the
legal terms “baratry” (barratry) and “repleven” (replevin), in the “It’s a Mystery,
Charlie Brown” book is prima facie evidence of infringement fails for the same
-9- reason. Fisher contends that these are copies of “clerical and typographical
errors” proving piracy. Appellant’s Br. at 6. If there was no other justification
for the errors appearing in the book, they could, as Fisher contends, suggest
copying. See Central Tele. Co. of Va. v. Johnson Pub. Co. , 526 F. Supp. 838, 844
(D. Colo. 1981) (opining that the existence of common errors in two telephone
directories was strong evidence of copying). As defendants argue, however, these
errors appear to be in line with the comic strip characters’ proclivity for misuse
and mispronunciation of legal terms in the Charlie Brown strip. As such, they
could be construed as an integral part of the humor or subject matter, a
construction that would not give rise to a suggestion of copying. See Gates
Rubber Co. , 9 F.3d at 838. Moreover, even if we were to consider the common
errors to be some evidence of copying, this does not relieve Fisher of his burden
of proving more substantial similarities between the works, a burden he did not
meet. See Country Kids ‘N City Slicks, Inc. , 77 F.3d at 1288.
The idea of a detective dog is an element which is not included in copyright
protection. See 17 U.S.C. § 102(b). Moreover, an expression of that idea in a
manner which is as common in the public domain as Sherlock Holmes falls under
the scenes a faire doctrine, is not entitled to copyright protection, and “cannot
serve as the basis for ultimate liability for copyright infringement,” Gates Rubber
Co. 9 F.3d at 832 n.7.
-10- This same rationale applies equally to Fisher’s contention that defendant
Metropolitan Life Insurance Company infringed his copyright when they used
“Snoopy” in his role as a detective dog in its televison commercials. Therefore,
the district court’s dismissal of these claims for failure to state a claim upon
which relief may be granted was correct.
B. “Chipper” the comic strip v. “Chipper” the puppy
Fisher claimed that newspaper and television advertisements for various
RCA defendants featuring a picture of a puppy named “Chipper” infringed on
his copyright to the name and label of his comic strip. In rejecting this argument,
the district court concluded that Fisher had neither met his “burden of establishing
access by showing that defendant had a reasonable opportunity to view or
copy the allegedly infringed work,” or shown substantial similarity. Fisher ,
37 F. Supp. 2d at 1219. We agree, and affirm the district court on this claim for
the reasons stated in its order. See id.
C. “Chicken Chipper” v. “Chick ‘n Chipper”
Next, Fisher asserts that the district court erred in dismissing his copyright
infringement claim against defendant Tyson Foods. Fisher contends that
defendant’s use of the phrase “Chick ‘N Chippers” on one of is food products is
a copy of the phrase “Chicken Chipper” which Fisher used in his copyrighted
comic strip. Again the district court found that Fisher failed to allege access,
-11- see Country Kids ‘N City Slicks, Inc. , 77 F.3d at 1284, and failed to address this
deficiency in his objections to the magistrate judge’s recommendation. Fisher
does not provide any more support on appeal. Therefore, we affirm the district
court’s dismissal of this claim for the reasons stated in its order. See Fisher ,
37 F. Supp. 2d at 1220.
D. “Langsyne” v. “For Better or For Worse”
In his fifth claim of error, Fisher contends that the district court erred in
dismissing his claim against defendant Universal Press Syndicate, alleging that
defendant’s comic strip of November 15, 1992, “For Better or For Worse,”
infringed Fisher’s copyright of his 1975 comic strip “Langsyne.” This claim was
dismissed by the district court as outside the applicable statute of limitations.
See Fisher , 37 F. Supp.2d at 1222-23. On appeal, Fisher continues to argue the
merits of his claim, while neglecting to address any error in the district court’s
finding that the claim was barred by the statute of limitations. We, therefore,
affirm the district court’s dismissal of this claim for the reasons stated in its
order. See id.
E. “Chipper” v. “Drabble”
Finally, Fisher contends that defendant United Feature Syndicate infringed
his copyright in its October 10, 1993, comic strip “Drabble.” In affirming the
magistrate judge’s recommendation that this claim be dismissed, the district court
-12- agreed that Fisher continues to misunderstand the scope of copyright protection in
his allegations that the appearance of similar ideas, words, and phrases in other
comic strips proves copyright infringement. The court concluded that none of the
alleged offending comic strips could be found to be substantially similar to
Fisher’s “Chipper” strip. See id. at 1220. We agree, and affirm the district court
on this claim also.
II. Conclusion
In conclusion, we affirm the district court’s dismissal of Fisher’s claims
for the reasons stated above and for substantially the same reasons stated in
the magistrate judge’s recommendation and the district court’s order, Fisher ,
37 F. Supp. 2d 1213. Insofar as Fisher attempts to pose new arguments in his
reply brief, this court does not consider issues not raised and argued in the
opening brief. See State Farm Fire & Casualty Co. v. Mhoon , 31 F.3d 979, 984
n.7 (10th Cir. 1994); Codner v. United States , 17 F.3d 1331, 1332 n.2 (10th Cir.
1994).
Fisher’s motion to strike portions of appellees’ joint answer brief is
DENIED. Defendant Tyson Foods’ motion to strike “addendum I” to appellant’s
-13- reply brief is GRANTED. The judgment of the United States District Court for
the District of Colorado is AFFIRMED.
Entered for the Court
David M. Ebel Circuit Judge
-14-