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BRANCH v. OGILVY & MATHER

November 23, 1990

SUSAN BRANCH, PLAINTIFF,
v.
OGILVY & MATHER, INC. AND PEPPERIDGE FARM, INC., DEFENDANTS.



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

OPINION AND ORDER

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.

BACKGROUND

Plaintiff Susan Branch is the author and illustrator of a cookbook entitled Heart of the Home.*fn1 The cookbook is handwritten in script and contains recipes, pictures, poems, quotations, and notes to the reader. Most of the recipes are enclosed in borders, usually consisting of lines, dots, flowers, hearts, or combinations of the same. Branch possesses a certificate of copyright registration for "the entire text and illustrations" of Heart of the Home.

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 meeting.

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.

DISCUSSION

(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 constitute hearsay.

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.


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