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ARICA INSTITUTE, INC. v. PALMER

April 9, 1991

ARICA INSTITUTE, INC., PLAINTIFF,
v.
HELEN PALMER AND HARPER & ROW PUBLISHERS, INC., DEFENDANTS.



The opinion of the court was delivered by: Robert P. Patterson, Jr., District Judge.

OPINION AND ORDER

Plaintiff, a non-profit educational institution, charges defendants with copyright infringement in violation of the Copyright Act of 1976, 17 U.S.C. § 101 et seq., trademark infringement in violation of section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), and common law unfair competition. Plaintiff moved by order to show cause for a preliminary injunction pursuant to Rule 65 of the Federal Rules of Civil Procedure. For the reasons set forth below, plaintiff's motion is denied.

BACKGROUND

Plaintiff Arica Institute, Inc. ("Arica") is a not-for-profit tax-exempt educational institution founded in the state of New York in 1971 by Oscar Ichazo ("Ichazo"). According to Arica's Executive Director Elliott Dunderdale ("Dunderdale"), Arica offers training for the whole human being focused on the clarification of consciousness. Tr. at 270.*fn1 Arica operates forty franchise training centers throughout the United States, South America, Europe and Australia which have enrolled from 1971 to present approximately 250,000 students. Tr. at 279-80.

The history of Arica dates back to April 1971 when Oscar Ichazo conducted the first Arica training in the city of Arica, Chile.*fn2 Ichazo, born in Bolivia in 1931 and trained in Zen, Sufism, Yoga, Buddhism, Confucianism, I Ching and the Kabbalah, taught a system that is now known within Arica as the system of "ego fixations." Tr. at 272-73, 290-291. Fifty-five people, including John Lilly ("Lilly"), Joseph Hart ("Hart") and Claudio Naranjo ("Naranjo"), attended the 1971 seminar in Chile and tape recorded Ichazo's lectures. Tr. at 274-76. Upon returning to the United States, every student except Naranjo returned his or her tapes to Arica's archives. Arica transcribed the lecture tapes and in 1973 registered them with the Copyright Office as eight separate volumes which share the title The Lectures of Oscar Ichazo. Pl. Exh. 15.

"Enneagons" or "enneagrams" are nine-pointed stars typically surrounded by a circle.*fn3 It is undisputed that enneagrams have appeared throughout history, although Elliott Dunderdale ("Dunderdale"), Executive Director of Arica since 1989, testified that no one has used the enneagram in the way Arica uses it "in terms of the process of the ego fixations as it applies to human psyche." Tr. at 369. Dunderdale testified that Arica uses enneagrams as "a map of process or a guide to process." Tr. at 292. In simplest terms, the Arica system uses a total of 108 enneagrams,*fn4 which Ichazo claims to have "discovered,"*fn5 as a "method of working with the nine parts of the body and nine parts of the human psyche," Tr. at 273, and as a method of explaining "the [ego] fixations and the ideas that cure them." Interviews with Oscar Ichazo (Arica Institute Press 1982) at 13.

From the student's perspective, Arica training comprises nine successive levels of dietary, physical, meditative, logical and analytical instruction which can be completed in approximately three years.*fn6 Tr. at 373. Tuition for each training ranges in price from $75 to $750 and several training levels are offered as intensive two-week residential programs. Tr. at 370-73.

In addition to conducting training sessions, Arica publishes various training manuals, books by Ichazo, and a journal entitled The Arican. Over the years, Arica has obtained copyright registrations for approximately 46 of these works. Pl. Exh. 15. The copyrighted training manuals, including the "Manual of the Arica Forty Day Training" and the "Three Month Manual," are not available to the public — students are required to return the manuals to Arica at the end of the training. The student manuals, home study manuals and The Arican can be purchased at Arica training centers and the book Interviews with Oscar Ichazo is sold publicly in bookstores. Tr. at 281-82.

Defendant Helen Palmer ("Palmer") is a psychology professor who currently resides in California. According to Palmer, Claudio Naranjo, a Chilean psychologist, had a personal falling out with Ichazo after the 1971 training in Chile because Naranjo wanted to apply psychological ideas to Ichazo's material in order to "bring[] it into contemporary life and out of secrecy." Tr. at 183-84. Palmer testified that it was Naranjo who chose the English words associated with the points on Ichazo's enneagrams because Ichazo spoke little English when he lectured in Chile. Tr. at 201, 205.*fn7

After 1971, Ichazo and Naranjo both taught enneagram theory using a method described as "intense, small group psychological growth work." Pl. Exhs. 1, 9 at xiv (C. Tart, Preface to H. Palmer, The Enneagram); Tr. at 225-28. Palmer began studying under Claudio Naranjo in 1973. Tr. at 184. However at that time, she was already familiar with enneagrams. Since 1965 Palmer had been associated with the Gurdjieff Society, an international organization named for a scholar born in 1870 in Russia named G.I. Gurdjieff. Tr. at 180. Palmer testified that the enneagram diagram "is almost synonymous with Gurdjieff." Tr. at 186. According to Palmer, Gurdjieff taught that the nine points of an enneagram represented the Seven Deadly Sins (anger, pride, envy, greed, gluttony, lust and sloth) plus two additional sins Palmer believes were classified by Ichazo as self-love and fear. Tr. at 186-87. Using the enneagram as a guide, Gurdjieff identified nine "chief features" of "temperament," Tr. at 191, or nine personality types. Palmer testified that after studying with Naranjo she concluded that Ichazo was teaching Gurdjieff-based material but claiming he "got it on his own." Tr. at 207.

Palmer began teaching enneagram theory in 1974 when she founded the Center for the Investigation and Training of Intuition ("CITI"). Tr. at 172-73. CITI is located in Berkeley, California and has a yearly enrollment of approximately 1500 students primarily from the psychological community, i.e., persons with bachelor's, master's or PhD degrees in psychology. Tr. at 173-74.

Palmer's book The Enneagram, published by HarperCollins in hardback in November 1988,*fn8 opens with the passage:

  The Enneagram is an ancient Sufi teaching that
  describes nine different personality types and
  their interrelationships. The teaching can help us
  to recognize our own type and how to cope with our
  issues; understand our work associates, lovers,
  family, and friends; and to appreciate the
  predisposition that each type has for higher human
  capacities such as empathy, omniscience, and love.

Pl. Exhs. 1, 9 at 3. The Enneagram is 392 pages long and is divided into two sections, "Orientation to the Enneagram" and "The Nine Points of the Enneagram." The book also contains a preface by Charles Tart, a short appendix and notes.

Palmer equates Ichazo's nine "ego fixations" with nine basic personality types. Tr. at 224. Palmer credits Ichazo with correctly placing the types around the nine-pointed star "so that the relationships among the types could be verified through interviews." Pl.Exhs. 1, 9 at 47. Palmer's nine personality types are described at length in the nine central chapters of The Enneagram which have titles such as "Point One: The Perfectionist," "Point Two: The Giver," "Point Three: The Performer," etc.*fn9 Palmer testified that she chose the chapter titles from terms currently used in psychological typing. Tr. at 212-13. Each chapter contains a banner listing the main features of that particular personality type. The terms in the banners features are derived from an all-inclusive chart on page 50 of The Enneagram showing seven enneagrams. The text of each chapter profiles that personality type and concludes with two lists, "What helps [Ones, Twos, etc.] Thrive" and "What [Ones, Twos, etc.] Should Be Aware Of."

Palmer testified that her sources for The Enneagram included (1) information she learned from lectures given by Claudio Naranjo in the early 1970's;*fn10 (2) the Gurdjieff ideas and material with which she was already familiar;*fn11 (3) a chapter entitled "The Arica Training" by Hart and Lilly first published in Charles Tart's Transpersonal Psychologies (Harper & Row 1975);*fn12 (4) Interviews with Oscar Ichazo (Arica Institute Press 1982), a collection of interviews by journalists and members of Arica;*fn13 and (5) conclusions she has reached from interviews of her students since 1976.*fn14 Palmer has never attended an Arica training and testified that she has never inspected any Arica works deposited in the Library of Congress nor seen copies of any of plaintiff's works other than Interviews with Oscar Ichazo. Tr. at 237-40, 300.

On February 20, 1991, six months after the initiation of this lawsuit, HarperCollins decided to print 35,000 paperback copies of The Enneagram for tentative release on March 12, 1991. Tr. at 449; Pl.Exh. 30. The paperback version of The Enneagram is substantially identical to the hardcover version except for its soft cover. Def.Exh. DD. The paperback does, however, contain a newly-added one-page notice appearing after the preface relating to this litigation which states that neither Palmer nor HarperCollins is affiliated with Arica and that The Enneagram is neither endorsed nor authorized by Arica Institute or Oscar Ichazo.*fn15 HarperCollins shipped approximately 21,000 copies of the paperback from its central warehouse on March 11-14, 1991, primarily to fill back orders dating from September 1990. Tr. at 449-51.*fn16

Lewis Gillenson, a publishing expert, testified that unlike mass paperbacks, which are sold primarily in drugstores or transit stations, trade paperbacks are more expensive and are sold in college and general bookstores. Tr. at 158. Gillenson testified that as a general rule, a trade paperback will outsell the hardcover edition of the same book by a ratio of 5:1 or 6:1. Tr. at 159. William Baker, HarperCollins' vice-president/controller responsible for book distribution in and after 1971, testified that there is a 1:1 relationship between sales of hardcovers and trade paperbacks published by HarperCollins. Tr. at 461.

Arica and HarperCollins began exchanging letters in June 1988, prior to the publication of the hardcover edition of The Enneagram, when attorneys for Arica were supplied with galleys and thereafter sent HarperCollins various copyright and trademark registrations and a copy of Conversations with Oscar Ichazo. Def.Exh. P; Tr. at 147, 316. On April 13, 1989 Arica provided HarperCollins with simple charts comparing phrases appearing in The Enneagram with phrases appearing in Arica's copyrighted material. Pl.Exh. 4; Tr. at 79-80; Pl.Exhs. 23-25 (full-size charts). On March 9, 1990 Arica provided HarperCollins with 23 pages of written comparisons which substantially repeated the information contained in the charts. Pl.Exh. 5.

Arica filed its complaint in this action on August 6, 1990. On August 24, 1990 defendants served interrogatories requesting Arica to identify the specific copyrighted expression it alleges was copied (and its source) and the corresponding material in Palmer's The Enneagram. Arica's interrogatory answers and objections, in the form of a 388-page list of comparisons (Pl.Exh. 26) which Dunderdale claims he and his wife compiled for over four months, Tr. at 341, were not served on defendants until a March 12, 1991 hearing before this Court at which plaintiff requested a temporary restraining order to halt release of the paperback edition of The Enneagram. The Court denied plaintiff's request and held a preliminary injunction hearing on March 15 and 18, 1991.

DISCUSSION

Defendants label plaintiff's attempt to halt the release of the paperback edition of The Enneagram as an effort to prevent "heresy" not copyright infringement.*fn17 The Court agrees.

  Elliott Dunderdale, Executive Director of Arica, testified
that Palmer's The Enneagram:

    . . created a tremendous confusion among those
  people who have taken Arica trainings, people who
  are likely to take Arica trainings and people who
  have taken her trainings. . . . [T]he only person
  who picks the fixation in the Arica system is
  still Oscar Ichazo. . . . [P]eople are led to
  believe that they can pick their own fixation
  arbitrarily and they do. . . ...

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