The opinion of the court was delivered by: Tenney, District Judge.
This is an action for copyright infringement. Defendants have
moved in limine for an order (1) prohibiting plaintiff from
introducing into evidence certain letters from members of the
public, and any reviews or advertisements relating to
plaintiff's book Heart of the Home or her subsequent book
Vineyard Seasons; (2) prohibiting plaintiff from arguing to
the jury that "individual elements" of her book are protectible
or were copied by defendants; (3) ruling that the "total
concept and feel" of plaintiff's work is not copyrightable; and
(4) limiting plaintiff's use of expert testimony. For the
reasons set forth below, the motion is granted in part and
denied in part.
Defendant Ogilvy & Mather, Inc. ("Ogilvy & Mather") is the
advertising firm for defendant Pepperidge Farm, Inc.
("Pepperidge Farm"). In the fall of 1987, Ogilvy & Mather
decided to solicit a print advertising campaign for Pepperidge
Farm which would emphasize Pepperidge Farm which fashioned"
image. To facilitate this effort, the agent in charge of the
Pepperidge Farm account, Christopher Quillen, went to a
bookstore to research folk art for the campaign. He purchased
Heart of the Home because he was interested in possibly
hiring the author to execute the illustrations. Subsequently,
Quillen met with Branch, and offered her the opportunity to
illustrate the campaign contingent on Pepperidge Farm's
approval. Branch accepted the offer.
Branch then executed preliminary drawings of the ads which are
referred to by the parties as "comps." Although Quillen liked
the comps, he could not use them because Branch had changed the
Pepperidge Farm logo in one ad and had diverged from Quillen's
directions in others. Since the ad presentation for Pepperidge
Farm was scheduled for the next day, Quillen and other
illustrators revised Branch's comps. In addition to using
Branch's book as a reference, Quillen traced Branch's
handwriting and cut and pasted several of her illustrations
onto the comps. When Quillen showed the revised comps to
Pepperidge Farm representatives, they reacted enthusiastically
and agreed that Branch should illustrate the campaign.
After this point, the facts are in dispute. According to Ogilvy
& Mather, Quillen called Branch to commence work, but she said
that she could not start immediately because she was going on
vacation. Since the ads had to be produced right away, Quillen
told Branch that he would have to find someone else to do the
job, but that she should call him when she returned because he
still wanted her to work on some of the ads. Branch contends,
however, that Quillen told her he was going on vacation, and
that she called him when he returned in order to arrange a
Ogilvy & Mather ultimately hired Lisa Ernst (a children's book
illustrator) to execute the advertisements for the campaign.
Quillen sent her a copy of Heart of the Home, instructing her
to base the handwriting on the book since the layout space for
the ads had already been calculated according to the dimensions
of Branch's handwriting.
On April 12, 1989, plaintiff commenced this suit alleging that
defendants infringed her copyright in Heart of the Home,
diluted its trade dress, and competed unfairly. In an opinion
and order dated May 30, 1990, Judge Stanton granted defendants'
motion for summary judgment with respect to plaintiff's claim
of unfair competition, but denied the motion with respect to
the copyright and dilution claims. On August 21, 1990, the case
was transferred to this court's docket.
(1) Exclusion of Evidence
Defendants seek to exclude from evidence certain letters which
were sent to plaintiff by various members of the public
including her friends, as well as certain advertisements and
reviews of plaintiff's cookbook. Defendants argue that these
items should be excluded because they are not relevant and
Plaintiff has offered the letters, reviews, and advertisements
to prove the value of her work in light of her claim that her
work was worth far more than the going rate for an unknown
illustrator. According to plaintiff, this evidence as to the
value of her cookbooks would permit the jury to make the
inference that defendants copied her work found therein. Such a
contention, however, is not supported by the case law.