The opinion of the court was delivered by: BRIEANT
By motion docketed February 2, 1982, plaintiff seeks preliminary injunctive relief preventing defendant from further printing, publishing, distribution, licensing, or sale of a book entitled "How to Organize Your Work and Your Life". Plaintiff seeks damages and permanent injunctive relief for copyright infringement and false representation.
By motion docketed May 18, 1982, defendant seeks to dismiss the complaint for failure to state a claim.
Subject matter jurisdiction is predicated upon 28 U.S.C. § 1338(a) & (b) and 15 U.S.C. § 1121.
Plaintiff Januz Marketing Communications, Inc. ("Januz") is a Delaware Corporation with its principal place of business located in Lake Bluff, Illinois. Defendant Doubleday & Company, Inc. ("Doubleday") is a New York corporation with its principal place of business in this district.
The facts as set forth below are not disputed. Both sides have submitted briefs and affidavits which have been considered by the Court.
At issue in this case are the rights to two charts or forms ("the Charts") devised by Mr. Robert A. Moskowitz ("Moskowitz"), not a party to this action. One Chart is entitled "Time Log" and the other is entitled "To Do Today". Plaintiff claims that it owns all rights in the Charts, and that these rights are protected under the copyright laws of the United States. Defendant claims that the Charts are not protected under the copyright laws, and that even if they are protected, Mr. Moskowitz retains all rights to the Charts and gave defendant lawful permission to use the Charts.
In 1977, according to Moskowitz, he was President of the "Public Interest Media Project", a non-profit organization which conducted educational seminars throughout the United States. Mr. Moskowitz claims, and the Court assumes, that he designed, prepared and distributed the Charts in 1977 as a part of seminars he gave for the Public Interest Media Project and, when distributed, the Charts bore the following notice: "(c) 1977 by Robert Moskowitz".
As distributed in 1977, the "Time Log" chart consists of a large graph to be filled in by the user. Along the top of the page are spaces to enter the user's name and the date. The ordinate, or vertical axis, of the graph contain a listing of the hours of working day, from 7 a.m. to 10 p.m. The abscissa, or horizontal axis, contain blank lines or spaces within which the user is to enter "Your Projects and Activities" for a particular business day. The user is then instructed: "At each [hourly] interval, place an "X" to record what [projects and activities] you are doing". There is a blank space at the right end of each horizontal hourly line for "comments", and at the bottom of each vertical activities column space for the "column totals".
The purpose of this "Time Log" is to enable the user to determine, after several days work has been recorded, how much time each day is spent or wasted on "trivial" items compared with "important" items. Thereby the user is helped to organize and manage his or her time.
The 1977 version of the "To Do Today" chart is comprised of four sections containing various blank columns. The top of the page contains space to enter the user's name and date. The largest box, on the upper left, contains columns in which to enter the tasks for the day, their "priority", when "due", "time estimate", and "results time needed". The next largest box contains blanks in which to enter "People to See/Things to Talk About". the two remaining boxes contain space in which to list "Telephone Calls. To? Why?" and "Writing Letters/Reports". The purpose of this chart is to enable the user to plan for the most effective use of each day.
Beginning some time in 1978, MRH Associated, Inc. ("MRH") published a bi-weekly newsletter entitled, "Execu*Time -- The Newsletter On Effective Use of Time" ("Execu*Time"). On June 8, 1978, Moskowitz entered into a written employment contract with MRH whereby Moskowitz was employed as the Editor of Execu*Time. The contract also provided that:
"1. Editor to provide copy for Execu*Time each month. Copy to deal with the effective use of executive time and be fresh, lively and relevant.
4. This agreement to be in effect from May 1, 1978 to April 30, 1979.
6. Publisher to retain copyright ownership of all editorial material appearing in the newsletter." (Ex. A to Complaint docketed Feb. 2, 1982.)
In September, 1978, MRH published and distributed to its subscribers an issue of Execu*Time, Volume 1, Number 5, which contained, among other things, "Bonus Insert #1" and "Bonus Insert #2". Bonus Insert #1 was the 1977 "Time Log" chart in typeset form with very minor changes, preceded by a page of instructions. Bonus Insert #2 was the "To Do Today" chart in typeset form with minor changes in the column headings and the addition of one new section entitled "Long Range (task, when due)" preceded by a page of instructions. From time to time, MRH ...