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ARICA INSTITUTE, INC. v. PALMER

August 5, 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

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.

DISCUSSION

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.

a.  Access

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 240.

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 240.

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
  cultivating his
  essence."
  (p. 14)
  ". . . he feels how far
  he is from being able
  to love and act
  authentically."
  (p. 14)
  "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
  deprived of;
  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 ...

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