Pittman v. American Greeting Corp.

W.D. Kentucky

Pittman v. American Greeting Corp.

619 F. Supp. 939, 1986 Copyright L. Dec. (CCH) 25,884

CourtDistrict Court, W.D. Kentucky

DecidedMarch 13, 1985

DocketC 83-0001-L(B)

StatusPublished

This text of 619 F. Supp. 939 (Pittman v. American Greeting Corp.) is published on Counsel Stack Legal Research, covering District Court, W.D. Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Pittman v. American Greeting Corp., 619 F. Supp. 939, 1986 Copyright L. Dec. (CCH) 25,884 (W.D. Ky. 1985).

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Opinion

MEMORANDUM

BALLANTINE, District Judge.

This copyright infringement and unjust enrichment action is before the Court on *940 cross-motions of the parties for summary judgment and on the motion of the plaintiff to hold in abeyance pending a ruling on her motion to compel. For the reasons hereinafter set out, plaintiffs motions will be denied and defendant’s motions will be granted.

On December 11, 1984, the Court entered an order granting plaintiff an extension of time to January 11, 1985, to respond to defendant’s motion for summary judgment. On January 11, 1985, instead of responding to the pending motion, plaintiff moved to compel answers to certain interrogatories and to hold defendant’s motion in abeyance pending ruling on her motion. On February 5, 1985, plaintiff responded to defendant’s motion and on March 1, 1985, unencumbered by compliance with the local rules, plaintiff filed a reply to defendant’s reply memorandum.

Defendant markets a line of greeting cards and related products consisting of a cast of characters whose names reflect certain desserts or otherwise sugar and fruit-oriented foods. These characters live in a realm known as Strawberryland and are tagged with such names as Strawberry Shortcake, Raspberry Tart, and the character in issue, Angel Cake. 1

In March, 1981, plaintiff submitted about 40 rough sketches to Carl Goeller, who was the individual charged with responsibility for the editorial copy which appeared on defendant’s cards, stationery and the like. Goeller had no responsibility for the development of characters depicted on defendant’s products.

The development of the characters on defendant’s products was the responsibility of a group called Those Characters From Cleveland (TCFC).

Upon receipt and examination of plaintiff’s submissions, Goeller concluded that they were not suitable for defendant’s purposes and returned them to plaintiff. The sketches were not shown to any of the TCFC personnel before they were returned to plaintiff. 2

At plaintiff’s deposition it was stipulated that the only character which plaintiff contended was infringed was her character called Little Angel Food Cake.

The affidavits accompanying defendant’s motion establish that in February, 1981, TCFC prepared a list of proposed new characters for Strawberryland, including Angel Cake. That list was submitted to defendant’s legal department for trademark clearance. After submission to an outside firm for a trademark search, TCFC was notified that Angel Cake had been cleared for use except on food products.

In February, 1981, TCFC’s creative consultant, Muriel Fahrion, was assigned to prepare drawings of Angel Cake. 3 As drawn by Fahrion, Angel Cake was depicted as having lavender hair tied about with a gold hair ribbon. She was depicted in a light blue or green smock-like garment worn over a white blouse, the sleeves of which are bunched and, arguably at least, may be said to resemble wings. Beneath the smock Angel Cake’s bloomers extend to about her knees. She wears green and white striped stockings and lavender shoes. 4

Plaintiff’s creation, Little Angel Food Cake, is depicted with a halo unattached to her head, and readily identifiable wings. She is clad in a garment resembling a toga and footwear described by plaintiff as Roman sandals which appear to be laced up to about the knees.

We turn to the issues presented by defendant’s motion.

I.

The United States Court of Appeals for the Sixth Circuit has recently addressed *941 similar issues in Wickham v. Knoxville Intern. Energy Exposition, 739 F.2d 1094 (6th Cir.1984). In that case the court was confronted with a claim that defendants, promoters of an exposition in Knoxville, had utilized copyrighted drawings of a tower prepared by plaintiff. In affirming a summary judgment for defendant, the court wrote:

“This Court recognizes that granting summary judgment, particularly in favor of a defendant, is a practice to be used sparingly in copyright infringement cases. See Arnstein v. Porter, 154 F.2d 464 (2d Cir.1946). 3 M. Nimmer, Nim-mer on Copyright, [Section] 12.10 (rev’d 1983). However, a court may compare the two works and render a judgment for the defendant on the ground that as a matter of law a trier of fact would not be permitted to find substantial similarity. (Citations omitted.)

Reduced to most fundamental terms two elements are necessary to plaintiffs case in a copyright infringement action: ownership of the copyright by the plaintiff and copying by the defendant. (Citations omitted.) In order to prove copying by the defendant, the plaintiff must prove access as well as substantial similarity. (Citation omitted.) Thus, copying is an essential element of infringement and substantial similarity between the plaintiffs and defendants’ works is an essential element of copying. * * * * * * * * * *

Similarity is determined by a comparison of plaintiff’s and defendants’ works. ‘[A]n appellate court may reverse a lower court’s grant of summary judgment to the defendant based upon a finding of lack of substantial similarity if the appellate court, upon a comparison of the two works, concludes that absence of substantial similarity is not so clear as to warrant such a conclusion as a matter of law.’ 3 Nimmer, supra, at [Section] 12.-12.” 739 F.2d at 1097.

Assuming that plaintiff owned a copyright to Little Angel Food Cake, she must establish the second element of infringement, that is, copying. As the Wickham court noted, to establish copying plaintiff must prove access and substantial similarity-

The only evidence of access is found in a letter from Goeller to plaintiff in which he stated:

“Thanks for letting us review these suggestions for additional characters for our line.

We’ve reviewed them with our Marketing and Licensing people and they don’t feel any of these characters are strong enough to add to our ‘stable’.

Thanks for thinking of us ... and good luck with them elsewhere.”

In his affidavit appended to defendant’s motion for summary judgment and in his deposition Goeller denies ever showing the sketch to anyone at TCFC:

“Q What did you do with Ms. Pittman’s ideas after you received them?

A After I received, I looked at them, decided they weren’t for us, and returned them.

Q Did you have your marketing and licensing people review her ideas?

A No, I did not.

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