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KREGOS v. ASSOCIATED PRESS

February 12, 1990

GEORGE L. KREGOS, D.B.A. AMERICAN SPORTS WIRE, PLAINTIFF,
v.
THE ASSOCIATED PRESS AND SPORTS FEATURES SYNDICATE, INC., DEFENDANTS.



The opinion of the court was delivered by: Goettel, District Judge.

For many sports fans, simply watching or listening to a ball game is sufficient to quench their enthusiasm. The true devotee demands more, however, and poring over daily, weekly, and yearly "stat sheets" becomes an obsession. Each year, it seems, commentators and analysts devise more numerous criteria for measuring the performance of one player against another and one generation against another. This trend is readily apparent in the baseball world, where the simple box score of yesteryear has been supplemented by statistics measuring game winning runs batted in, batting averages with men in scoring position, and relief pitchers' success rates in save situations.*fn1 The case presented before this court involves a dispute over these beloved statistics. Specifically, this action involves copyright and trademark disputes over "pitching forms," which calculate and categorize various statistics for the starting pitchers scheduled to appear in upcoming baseball games. These forms are then utilized by members of the general public, including, of course, gamblers and bookmakers.

I.  FACTS

In 1983, plaintiff, George L. Kregos, created a "pitching form" to be published in various newspapers throughout the country. The form listed various statistics in a tabular format with a legend at the bottom to explain the categories. Developing such a form was not unique to plaintiff as other individuals, including plaintiff himself in 1979, previously had created similar forms. Each of these preexisting forms listed various statistics for the pitchers scheduled to appear upcoming games. Differences existed, however, among the forms and, in fact, plaintiff received two copyrights for his 1983 form.*fn2

The 1983 Kregos form, see Appendix 1, which is still published today, contains the following statistics. The first four columns list the teams, the scheduled starting pitchers, the game time, and the odds on the game, respectively. These four categories are contained in virtually every form that has been created, including defendant's, and are not specifically at issue in this case. The remaining nine columns on plaintiff's form represent the primary grounds of contention. Within these nine columns are three general categories that are each further divided. The first major category lists each pitcher's statistics for the current season. Under this heading are the sub-categories of wins, losses, and earned run average. The second general category represents the pitcher's performance during his career against the scheduled opponent. Plaintiff further tailors this category to only include the pitcher's statistics against this opponent at the particular site where the upcoming game is to be played. This category is then divided into wins, losses, innings pitched, and earned run average. Finally, the last of the main categories lists various statistics for the pitcher's last three starts. Included within this category are wins, losses, innings pitched, earned run average, and men on base average ("MBA").*fn3

In 1984, the Associated Press ("AP") began to publish its own pitching form. See Appendix 2. The statistics for its form were compiled by defendant Sports Features Syndicate, Inc. pursuant to a contractual agreement. AP's 1984 form was identical in virtually every sense to plaintiff's form. One distinction was that AP's form renamed certain categories and sub-categories. For example, the MBA was called average hits and walks per game ("AHWG"), and while plaintiff's form generally refers to odds, AP listed these same odds under a column called "line." Despite these cosmetic distinctions, the categories in both forms analyzed and tabulated the same statistics. One other distinction between the two forms was that plaintiff's form offered a slightly more detailed analysis in its legend.*fn4

Plaintiff contacted AP upon learning of this competing form but his complaint fell on deaf ears as AP suggested plaintiff had no copyrightable interest in his form. In 1986, however, AP amended its form to the one it uses today.*fn5 See Appendices 3 & 4.*fn6 This new form is of the same basic format as its earlier form with some modifications. The new form retains the teams, pitchers, time, and line categories, although the line is occasionally listed below the time, rather than as a separate column. The new form also includes the same three general categories as the old form and plaintiff's form. In the first category, the current season's statistics, AP includes wins, losses, earned run average, and a new sub-category, team record. This new column represents the team's record in games started by the particular pitcher during the specific season.*fn7 The second major category, the record against the scheduled opponent, still includes wins, losses, innings pitched, and earned run average. However, AP made two changes to this category. First, while AP's old form and plaintiff's current form calculate these statistics against the upcoming opponent at the site of the scheduled game, AP's new form includes any results against that opponent, regardless of where the games were played. Moreover, AP's new form only lists this statistic for the current season, rather than for the pitcher's entire career as its previous form did and plaintiff's form continues to do. With respect to the last major category, the last three starts, AP's new form still includes wins, losses, innings pitched, earned run average, and AHWG.*fn8

In March 1989, plaintiff instituted this action for both copyright infringement under the Copyright Act of 1976, 17 U.S.C. § 101 et seq. (1988), and trademark infringement for false designation of origin under section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a) (1988). Plaintiff claims that both the old and new forms produced by AP violate his property rights. Plaintiff seeks declaratory, injunctive, and monetary relief, as well as costs and attorney's fees.

AP now moves for summary judgment and plaintiff cross-moves for such relief.*fn9 AP contends that plaintiff lacks any cognizable rights in his form under the copyright laws since the form is not original. Moreover, it suggests that under the idea/expression merger doctrine, the form is not copyrightable. Finally, it claims that the form is actually a "blank form" for recording facts and is explicitly precluded from copyright protection. Alternatively, AP contends that even if plaintiff's form is copyrightable, it has not infringed any of plaintiff's rights since its new form is not substantially similar to plaintiff's. With respect to trademark infringement, AP contends that a finding of non-copyrightability similarly requires a finding of non-protectibility under the trademark laws. Plaintiff counters these arguments by claiming he is entitled to summary judgment or, alternatively, that existing questions of fact prevent the grant of summary judgment to AP.*fn10

II. DISCUSSION

Federal Rule of Civil Procedure 56(c) provides that summary judgment is appropriate if "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The burden is on the moving party to demonstrate the absence of a material, factual dispute. Fed.R. Civ.P. 56(e). If that burden is met, the non-moving party cannot simply contend that its complaint sets forth a valid cause of action. Id. It "must set forth specific facts showing that there is a genuine need for trial," id., and there must be more than "some metaphysical doubt as to [those] material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355, 89 L.Ed.2d 538 (1986). In determining whether that burden is met, however, the court must draw all reasonable inferences and resolve all ambiguities in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962) (per curiam). Against this backdrop of summary judgment jurisprudence, we turn to the instant motions.

A.  Copyright Claims

The Copyright Act of 1976 affords a right to sue to the holder of a registered copyright. 17 U.S.C. § 501(b) (1988). The plaintiff must show he possesses a valid copyright that has been infringed by the defendant. Weissmann v. Freeman, 868 F.2d 1313, 1320 (2d Cir.), cert. denied, ___ U.S. ___, 110 S.Ct. 219, 107 L.Ed.2d 172 (1989). Infringement generally can be shown by proffering evidence of both access to the copyrighted work and a substantial similarity between the protected work and the infringing work. Business Trends Analysts, Inc. v. Freedonia Group, Inc., 887 F.2d 399, 402 (2d Cir. 1989). Nonetheless, even if infringement could be proven, the fact that a plaintiff may have a registered copyright does not mandate a conclusion that the copyright is valid. The issuance of a certificate of registration merely creates "prima facie evidence of the validity of the copyright and of the facts stated in the certificate." 17 U.S.C. § 410(c) (1988). A rebuttable presumption of validity is created, which shifts to the defendant the burden of disproving the copyright's validity. Weissmann, 868 F.2d at 1320-21; Past Pluto Prods. Corp. v. Dana, 627 F. Supp. 1435, 1440 (S.D.N.Y. 1986). In the context of a motion for summary judgment, the courts have held that while the issues of access and substantial similarity are generally questions of fact, summary judgment can be granted to a defendant when the substantial similarities are of non-copyrightable elements. Walker v. Time Life Films, Inc., 784 F.2d 44, 48 (2d Cir.), cert. denied, 476 U.S. 1159, 106 S.Ct. 2278, 90 L.Ed.2d 721 (1986); Hoehling v. Universal City Studios, Inc., 618 F.2d 972, 977 (2d Cir.), cert. denied, 449 U.S. 841, 101 S.Ct. 121, 66 L.Ed.2d 49 (1980). Thus, in the case at bar, the fact that plaintiff's form is copyrighted only creates a rebuttable presumption of validity. If AP can prove the form is actually not copyrightable, notwithstanding any similarities between the forms, summary judgment is as appropriate as in any other context.

1. Originality

The copyright statute protects "original works of authorship fixed in any tangible medium of expression." 17 U.S.C. § 102(a) (1988). Recognizing this, the courts have unequivocally held that facts cannot be copyrighted. See Financial Information, Inc. v. Moody's Investors Serv., 808 F.2d 204, 207 (2d Cir.1986), cert. denied, 484 U.S. 820, 108 S.Ct. 79, 98 L.Ed.2d 42 (1987); Hoehling, 618 F.2d at 979. A contrary view would unreasonably limit the public's right to use information existing in the public domain. Id. Plaintiff claims he is not attempting to copyright facts, but rather, is attempting to copyright a form that is a compilation of these facts. A compilation, which is defined as "the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged," 17 U.S.C. § 101 (1988), is copyrightable provided "the resulting work as a whole constitutes an original work of authorship." Id. Protection is, therefore, available for a compilation if it involves "a modicum of selection, coordination, or arrangement," such that it becomes an "independent creation." Financial Information, Inc. v. Moody's Investors Serv., 751 F.2d 501, 507 (2d Cir.1984).*fn11 This standard is interpreted broadly and while more than a trivial variation is required, Weissmann, 868 F.2d at 1321 (quoting Alfred Bell & Co. v. Catalda Fine Arts, 191 F.2d 99, 102-03 (2d Cir.1951)), uniqueness, novelty, or ingenuity are not. Financial Information, 751 F.2d at 507. AP contends that plaintiff's form does not satisfy these minimal standards. It argues that plaintiff's organization of the statistics is not sufficiently different from forms existing prior to the 1983 creation of plaintiff's form. Moreover, it contends that practical restrictions on the size of the forms prevent plaintiff from actually exercising any real selectivity. Plaintiff, of course, disputes these contentions.

Evidence has been presented suggesting that prior to plaintiff's creation of his 1983 form, three other individuals, plus Kregos himself, had published pitching forms. In attempting to show his form to be original, plaintiff goes through a detailed analysis of the distinctions between his form and the other three. He attempts to suggest that his work is original since no other form includes all the statistics he uses in the exact same order. Moreover, he claims there has been no showing that any preexisting form included the men on base average.

In Financial Information, Inc. v. Moody's Investors Service, 808 F.2d 204 (2d Cir.1986), cert. denied, 484 U.S. 820, 108 S.Ct. 79, 98 L.Ed.2d 42 (1987), plaintiff published Daily Bond Cards that listed five statistics on certain municipal bonds that were being redeemed. These cards were sold to plaintiff's subscribers. Defendant then began producing its own set of cards, which included significantly more data than plaintiff's cards. Initially, the court restated its general reluctance to grant copyrights to non-fictional works. Id. 808 F.2d at 207 (citing Eckes v. Card Prices Update, 736 F.2d 859, 862 (2d Cir.1984)). Thereafter, the court affirmed the district court's determination and concluded that plaintiff's cards did not exhibit the requisite selection or coordination to copyright a compilation. All plaintiff's employees did was cull various statistics from the tombstone ads that were published in conjunction with the bond redemptions and this was insufficient to satisfy the requirement of "independent creation." Id. 808 F.2d at 207-08.

In the case at bar, the same analysis can be applied. Every statistic used by plaintiff is readily available to a person willing to read the box scores of the preceding day's games. Moreover, virtually every nuance supposedly created by plaintiff existed in prior forms. For example, one of the preceding forms, the Eckstein form, contained the same three general categories used by plaintiff. Moreover, with respect to sub-divisions of these general categories, even though Eckstein's form does not include wins, losses, and earned run average in his current season category, a form previously published by Fratas does. Similarly, in the versus opponent category, Fratas' form again includes the same categories as does plaintiff's, including the "at site" limitation, the only difference being that Fratas' form limits this category to the specific season, rather than the pitcher's entire career. Finally, in the last three starts category, Eckstein's form includes three of the four columns used by plaintiff, the exception being plaintiff's inclusion of the men on base average. We recognize that none of these forms is precisely the same as plaintiff's. However, the key issue is whether the form in its entirety can be considered sufficiently original in light of the selection or coordination of the plaintiff. Although this determination of originality is a question of fact, Financial Information, 808 F.2d at 207, we find that the evidence offered by AP, and not adequately rebutted by plaintiff, as to plaintiff's lack of selection or ...


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