Triangle Publications, Inc. v. Sports Eye, Inc.

415 F. Supp. 682, 193 U.S.P.Q. (BNA) 50, 1976 U.S. Dist. LEXIS 14834
CourtDistrict Court, E.D. Pennsylvania
DecidedJune 1, 1976
DocketCiv. A. 76-533
StatusPublished
Cited by18 cases

This text of 415 F. Supp. 682 (Triangle Publications, Inc. v. Sports Eye, Inc.) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Triangle Publications, Inc. v. Sports Eye, Inc., 415 F. Supp. 682, 193 U.S.P.Q. (BNA) 50, 1976 U.S. Dist. LEXIS 14834 (E.D. Pa. 1976).

Opinion

OPINION

JOSEPH S. LORD, III, Chief Judge.

This action centers around two elusive and uncertain processes, handicapping horse races and application of the copyright law. Plaintiff, publisher of the Daily Racing Form (hereafter “Form ”), claims that defendant’s publications infringe upon its copyrights and violate state unfair competition laws. Plaintiff seeks a preliminary injunction to stop the alleged infringements. We will deny the motion. 1

The Form, which is published either six or seven days per week, 2 contains, inter alia, a section entitled Past Performances. A sample of Past Performances is reproduced in the appendix to this opinion. This section contains a wealth of information about horse races which are to be run at various tracks around the country. The information compiled in Past Performances includes certain facts about each race, 3 a mass of biographical data 4 for each horse entered in the race, and, in horizontal rows, detailed information concerning up to the ten most recent races in which the horse has been entered. 5

The information published in plaintiff’s paper is gathered at considerable expense and effort. Plaintiff 'has employees at all operating tracks in North America and receives reports from them for each race. *684 Plaintiff compiles and maintains these star tistics using data processing equipment at its plant in New Jersey. The raw data is in the form of racing charts, 6 and it is from these charts that plaintiff makes up its Past Performances.

Plaintiff has obtained proper copyright registration for all relevant issues of the Form. There is no dispute as to the validity of plaintiffs copyright of the Form and, more specifically, Past Performances. See Triangle Publications, Inc. v. New England Newspaper Publishing Co., 46 F.Supp. 198, 201-02 (D.Mass.1942).

Defendant publishes a newspaper known as Sports Eye. This paper includes a section known as Fast Performances. In addition Fast Performances is published and sold separately. Defendant has been publishing Fast Performances since June, 1975. A copy of Fast Performances is included in the appendix.

Fast Performances contains some thirty-two categories in four broad areas for each race covered. For each such ■ race, Fast Performances names only those horses which fall into these categories. For example, one category is “Beaten. Within One Length of Winner Last Race.” Every horse that falls within this category is listed for each race. Other categories are comparative, such as “Fastest Comparative Speed in Recent Races.” Thus, unlike Past Performances which gives a plethora of facts about each and every horse entered in a given race, Fast Performances only mentions a given horse if it falls within one or more of its categories.

It is clear that defendant obtains the information which it uses to prepare Fast Performances from plaintiffs publication. When the Form is first published, an employee of defendant 7 purchases a copy and, using blank forms, prepares a draft copy of Fast Performances. The information is then telephoned to defendant in New York.

There is conflicting evidence about the degree of judgment involved in preparing Fast Performances from Past Performances. Defendant’s employee was apparently able to prepare an issue of Fast Performances in less than an hour and, upon occasion, in fifteen or twenty minutes. At times he would be eating dinner or talking simultaneously with his preparation of the charts.

On the other hand, the editor of the Form, Fred Grossman, attempted from the stand to predict the entries that would be made in certain categories in Fast Performances from an examination of his paper, Past Performances. Mr. Grossman made a substantial number of errors in trying to do this. For example, in the category, “Fastest Comparative Speed in Recent Races,” Mr. Grossman only picked four of the nine entries correctly.

Given this conflicting evidence, and the early stage of the proceedings, we do not think it wise to' attempt to resolve- this judgmental issue. Resolution is not critical to the present determination on whether a preliminary injunction will issue. Should it become relevant at a final hearing, further discovery should enable the parties to shed more light on this subject.

I. Copyright Infringement

The first hurdle which plaintiff must clear before it can obtain a preliminary injunction is a clear showing of probability of success on the merits. Robert Stigwood Group Limited v. Sperber, 457 F.2d 50, 55 (2d Cir. 1972); L. Batlin & Son, Inc. v. Snyder, 394 F.Supp. 1389, 1390 (S.D.N.Y.1975), aff’d, 536 F.2d 486, 44 U.S.L.W. 2502 (2d Cir. April 12, 1976) (en banc). Generally, once a copyright holder has made such a showing, there is a presumption of irreparable harm. American Metropolitan Enterprises, Inc. v. Warner Bros. Records, 389 F.2d 903, 905 (2d Cir. 1968). While the most recent Third Circuit decision would *685 appear to require some affirmative showing of irreparable injury even in copyright eases, Kontes Glass Co. v. Lab Glass, Inc., 373 F.2d 319, 320 (3d Cir. 1967), 8 we need not resolve this issue because we have concluded that plaintiff has failed to demonstrate a sufficient probability of success on the merits.

In Universal Athletic Sales Co. v. Salkeld, 511 F.2d 904, 907 (3d Cir.), cert. denied, sub nom. Universal Athletic Sales Co. v. Pinchock, 423 U.S. 863, 96 S.Ct. 122, 46 L.Ed.2d 92, 44 U.S.L.W. 3204 (1975), Judge Weis set out the test for a copyright infringement:

“To establish a copyright infringement, the holder must first prove that the defendant has copied the protected work and, second, that there is a substantial similarity between the two works.

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Bluebook (online)
415 F. Supp. 682, 193 U.S.P.Q. (BNA) 50, 1976 U.S. Dist. LEXIS 14834, Counsel Stack Legal Research, https://law.counselstack.com/opinion/triangle-publications-inc-v-sports-eye-inc-paed-1976.