The opinion of the court was delivered by: Robert P. Patterson, Jr., District Judge.
In an opinion and order dated April 9, 1991 the Court denied
plaintiff's motion to enjoin release of the paperback edition
of defendants' book The Enneagram in this copyright
infringement action. Defendants now move pursuant to Rule 56 of
the Federal Rules of Civil Procedure for summary judgment
dismissing the complaint which also asserts claims for false
designation of origin and common law unfair competition. The
parties have asked the Court to decide the motion on the basis
of the briefs, affidavits and evidence submitted in connection
with the preliminary injunction motion and have waived oral
argument. The facts are fully set forth in the Court's prior
opinion, Arica Inst., Inc. v. Palmer, 761 F. Supp. 1056
(S.D.N.Y. 1991). For the reasons set forth below, defendants'
motion is granted.
Summary judgment is appropriate if the evidence offered
demonstrates that there is no genuine issue as to any material
fact and the moving party is entitled to judgment as a matter
of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106
S.Ct. 2505, 91 L.Ed.2d 202 (1986). The burden rests on the
moving party to demonstrate the absence of a genuine issue of
material fact, Adickes v. S.H. Kress & Co., 398 U.S. 144, 157,
90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970), and the Court must
view the facts in the light most favorable to 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).
1. Copyright Infringement
It is undisputed that plaintiff has valid copyrights in its
various training manuals, books and journals. To prove
infringement, plaintiff must also demonstrate unauthorized
copying by the defendant. See Warner Bros. Inc. v. American
Broadcasting Cos., 654 F.2d 204, 207 (2d Cir. 1981). Copying
may be inferred where a plaintiff establishes that the
defendant had access to the copyrighted works and that there is
substantial similarity between protected expression in the
respective works. Id.
Access to a copyrighted work may be inferred when the
defendant has had a "reasonable opportunity to view"
plaintiff's work before creating his or her
own work. See Gaste v. Kaiserman, 863 F.2d 1061, 1067 (2d Cir.
1988). On a motion for summary judgment, plaintiff must show
"'a reasonable possibility of access, not a bare possibility.'"
Novak v. National Broadcasting Co., 752 F. Supp. 164, 168
(S.D.N.Y. 1990) (quoting Ferguson v. National Broadcasting Co.,
584 F.2d 111 (5th Cir. 1978)). In other words, a finding of
access to plaintiff's work may not be based on speculation or
conjecture. See Ferguson, 584 F.2d at 113.
At the hearing, Helen Palmer ("Palmer") testified that she
possessed only one of plaintiff's copyrighted works,
Interviews with Oscar Ichazo, prior to writing The Enneagram, a
guide to understanding human personality based on nine dominant
personality types. Palmer has never enrolled in any training
session offered by Arica. Arica's Executive Director Elliott
Dunderdale testified that certain copyrighted works are not
disseminated to the public at all and other works have limited
dissemination. Plaintiff has failed to adduce any evidence
raising a genuine issue of fact as to access to any work other
than Interviews with Oscar Ichazo. See Vantage Point, Inc. v.
Parker Bros., Inc., 529 F. Supp. 1204, 1213 (E.D.N.Y. 1981),
aff'd, 697 F.2d 301 (2d Cir. 1982).
b. Substantial Similarity
The test of substantial similarity is whether "the ordinary
observer, unless he set out to detect the disparities, would
be disposed to overlook them, and regard [the] aesthetic
appeal [of the two works] as the same." Peter Pan Fabrics, Inc.
v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir. 1960).
Although substantial similarity is often a factual issue
precluding summary judgment, the Second Circuit has recognized
that summary judgment may be appropriate in copyright
infringement actions "either because the similarity between the
two works concerns only 'non-copyrightable elements of the
plaintiff's work' or because no reasonable jury, properly
instructed, could find that the two works are substantially
similar." Warner Bros. Inc. v. American Broadcasting Cos.,
720 F.2d 231, 240 (2d Cir. 1983) (quoting 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)) (citations
omitted). See also Walker v. Time Life Films, Inc.,
784 F.2d 44, 49 (2d Cir.) (district court may determine noninfringement
as a matter of law), cert. denied, 476 U.S. 1159, 106 S.Ct.
2278, 90 L.Ed.2d 721 (1986).
The Court in its prior opinion found numerous aspects of
plaintiff's works uncopyrightable: Ichazo's system of nine ego
fixations, the sequence or arrangement of the ego fixations
within that system, individual words describing the traits of
each ego fixation and the one- and two-word labels for points
on the various enneagrams from which the system of ego
fixations is derived. Any similarity between Ichazo's works
and The Enneagram based on these non-copyrightable elements
does not constitute copyright infringement. See Ring v. Estee
Lauder, Inc., 874 F.2d 109, 109-10 (2d Cir. 1989); Walker v.
Time Life Films, Inc., 784 F.2d at 50-51. Accordingly,
defendants' motion for summary judgment is granted insofar as
plaintiff's infringement claim is based on these
non-copyrightable elements. See Warner Bros. Inc., 720 F.2d at
i. Interviews with Oscar Ichazo
Plaintiff submitted with its motion for a preliminary
injunction a 388-page list of comparisons between text in
plaintiff's various works and passages from The Enneagram. The
list contains approximately 250 examples of expression
allegedly copied from Interviews with Oscar Ichazo. Because
Palmer concedes she had access to this work, these comparisons
warrant careful scrutiny.
At least 200 of the 250 examples charge that Palmer copied
single words such as "anger" or "indecision" from the labels
appearing on the five enneagrams depicted in Interviews with
Oscar Ichazo. Another 35 comparisons allege that Palmer copied
ordinary phrases including "defensive," "personality,"
"essence," "absence," "false," "emotional life," "holy origin,"
"to gain love" and "he vacillates." Because neither the
one-word enneagram labels nor the words and phrases common to
psychological analysis possess the minimal level
of creativity necessary for copyright protection, these
instances of similarity do not support plaintiff's claim for
copyright infringement. See Alexander v. Haley, 460 F. Supp. 40,
46 (S.D.N.Y. 1978) ("Words and metaphors are not subject to
copyright protection."). See also Salinger v. Random House,
Inc., 811 F.2d 90, 98 (2d Cir.) (copyright protects a "sequence
of creative expression" but not an ordinary phrase in
isolation), reh'g denied, 818 F.2d 252 (2d Cir.), cert. denied,
484 U.S. 890, 108 S.Ct. 213, 98 L.Ed.2d 177 (1987).
Accordingly, defendants' motion for summary judgment is granted
insofar as plaintiff's infringement claim is based on
similarities between these non-copyrightable elements. See
Warner Bros. Inc. v. American Broadcasting Cos., 720 F.2d at
A smaller number of comparisons — fewer than twenty —
allege that Palmer copied longer passages from Interviews with
Oscar Ichazo. Even viewing these comparisons in the light most
favorable to the plaintiff, no reasonable jury could find
substantial similarity of copyrighted expression:
Interviews with Oscar Ichazo
". . . but he does not
take responsibility for
". . . he feels how far
he is from being able
to love and act
"In the same way, the
remedy for indolence is in
come way the remedy which
cures all egos — the idea of holy love." (p. 14)
"The indolent type goes
out looking for the love
and meaning he feels
The indolent fixation
is at the head of the
enneagon because it
focuses on the most universal
aspect of the ego's
deprivation. . . . — the idea of holy love." (p. 14) "But in
a perverse way, the seeker is ignorant about ...