Howard Leslie PENDLETON
v.
ACUFF-ROSE PUBLICATIONS, INC., Fred Rose, Algee Music Corp., Elizabeth Jane Anderson, CBS, Inc., Buzz Cason, Publications, Inc., James E. Cason, Let There Be Music, Gary S. Paxton, Johnny Paycheck, George A. Robertson, Jr., Scorpio Enterprises, Billy N. Sherrill, Bradley L. Williamson, Hument Productions, Bright Blue Productions, Inc., Southern Writers Group, Inc., and Bob Montgomery.
No. 82-3668.
United States District Court, M.D. Tennessee, Nashville Division.
October 31, 1984.*478 *479 Steven H. Strain, Nashville, Tenn., Thomas J. Pitman, Jacksonville, N.C., Michael E. Weddington, Raleigh, N.C., Alan Turk, Nashville, Tenn., for plaintiff.
Thomas E. Harris, New Bern, N.C., John D. Warlick, Jacksonville, N.C., Samuel G. Thompson, Raleigh, N.C., Jean Nelson, Valerius Sanford, Richard H. Frank, Jr., Rich ard H. Frank, III, Herbert R. Rich, Mark A. Schneider, Tyree Harris, Nashville, Tenn., for defendants.
MEMORANDUM
JOHN T. NIXON, District Judge.
This action for copyright infringement was originally filed in the United States District Court for the Eastern District of North Carolina on July 25, 1980. The original defendants subsequently moved for dismissal based on lack of personal jurisdiction, and plaintiff was granted a voluntary dismissal of the complaint. On February 13, 1981, the complaint was re-filed, and defendants renewed their motions to dismiss. After an amended complaint was filed naming additional defendants, the case was transferred to this Court by order of the North Carolina court dated July 28, 1982. Currently pending before this Court are independent motions for summary judgment from (1) defendants Acuff-Rose Publications, Inc., Fred Rose Music, Inc., Elizabeth Jane Anderson, James E. Cason, Buzz Cason Publications, Inc., Let There Be Music, Robert C. Jennings, Bob Montgomery, and Southern Writers Group, Inc., (2) defendants Billy N. Sherrill and Algee Music Company, and (3) defendant CBS, Inc. Defendants Scorpio Enterprises, Bradley L. Williamson, and George A. Robertson, Jr. adopt and join in the motions and supporting documents filed by other defendants. This cause came on to be heard on October 4, 1984. For the reasons that follow, defendants' motions for summary judgment are hereby GRANTED, and this case is ORDERED DISMISSED.
Plaintiff, Howard Leslie Pendleton, is a citizen and resident of Jacksonville, Onslow *480 County, North Carolina. In 1974, plaintiff wrote three compositions entitled "Just a Blue Box," "Dear Dolly," and "Angel." In 1975, plaintiff played a tape recording of the songs for defendant George Robertson and in 1976 played a similar recording for defendant Robert C. Jennings. The gravamen of plaintiff's complaint is that defendants Robertson and Jennings, as well as numerous recording artists, producers, publishers, and record companies, illegally appropriated the lyrics of the three songs. Plaintiff does not allege infringement of the music accompanying these songs.
Plaintiff contends that, in 1977, defendant Elizabeth Jane Anderson wrote and assigned to defendant Fred Rose Music, Inc., the composition "Mama's Shoe Box." Plaintiff contends that the lyrics to this composition infringe upon the lyrics of his composition "Just a Blue Box." Plaintiff further asserts that defendants James E. Cason and George Robertson wrote and assigned to defendants Buzz Cason Publications, Inc. and Let There Be Music the composition "Dolly," which was written in 1978. Plaintiff alleges that the lyrics to "Dolly" infringe upon the lyrics of his composition "Dear Dolly." Lastly, plaintiff maintains that, in 1978, defendants Billy Sherrill and Johnny Paycheck wrote and assigned to Algee Music Corporation the composition "Friend, Lover, Wife." Plaintiff asserts that the lyrics of "Friend, Lover, Wife" infringe upon the lyrics of his composition "Angel." It is the position of the defendants that the lyrics in question contain no similarities other than the idea or theme about which the compositions are written.
FED.R.CIV.P. 56 provides for the entry of summary judgment in a case where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. FED.R. CIV.P. 56(c). A court must view the evidence and inferences therefrom in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157-59, 90 S. Ct. 1598, 1608-09, 26 L. Ed. 2d 142 (1970). The summary judgment procedure is used to eliminate unnecessary trials, curb the threat of coercive settlement, eliminate claims which lack merit, and provide a just, speedy, and efficient disposition of a lawsuit. Federal Procedure, L.Ed. § 62:532. A defendant's motion for summary judgment on a copyright claim may be granted "if, after assuming copying, the Court finds that any similarity between the works is insubstantial." Smith v. Weinstein, 578 F. Supp. 1297, 1302 (S.D.N.Y. 1984) (quoting Musto v. Meyer, 434 F. Supp. 32, 36 (S.D.N.Y.1977), aff'd, 598 F.2d 609 (2d Cir.1979)).
In order to establish a prima facie case of wrongful appropriation of expression by copyright infringement, a plaintiff must prove substantial similarity and access. Walker v. University Books, Inc., 602 F.2d 859, 864 (9th Cir.1979). "Ordinarily, wrongful appropriation is shown by proving a `substantial similarity' of copyrightable expression." Hoehling v. Universal City Studios, Inc., 618 F.2d 972, 977 (2d Cir.) (emphasis in original), cert. denied, 449 U.S. 841, 101 S. Ct. 121, 66 L. Ed. 2d 49 (1980). Copyright protection extends only to the expression of the idea; it does not protect the idea itself. O'Neill v. Dell Publishing Co., Inc., 630 F.2d 685, 686 (1st Cir.1980). "It must be remembered that copyright protection does not extend to ideas, plots, dramatic situations, and events. Rather, it is limited to the arrangement of words the author uses to express his ideas." Scott v WKJG, Inc., 376 F.2d 467, 469 (7th Cir.), cert. denied, 389 U.S. 832, 88 S. Ct. 101, 19 L. Ed. 2d 91 (1967). See Sid & Marty Krofft Television v. McDonald's Corp., 562 F.2d 1157, 1163 (9th Cir.1977) (protection granted to a copyrighted work extends only to the particular expression of the idea and never to the idea itself); Reyher v. Children's Television Workshop, 533 F.2d 87, 91 (2d Cir.) (although the writer's monopoly exceeds an exact reproduction of the words, the copyright extends not to the ideas disclosed but *481 to their expression), cert. denied, 429 U.S. 980, 97 S. Ct. 492, 50 L. Ed. 2d 588 (1976); see also Mazer v. Stein, 347 U.S. 201, 217, 74 S. Ct. 460, 470, 98 L. Ed. 630 (1954). Obviously, no principle may be enunciated that will reveal when an imitator has gone beyond copying the "idea," and has infringed upon its "expression." Decisions must, therefore, necessarily be ad hoc. See Reyher, 533 F.2d at 91; Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir.1960).
Plaintiff argues that substantial similarity necessarily presents a close factual issue that cannot be disposed of on summary judgment. See Hoehling, 618 F.2d at 977 (because substantial similarity is customarily an extremely close question of fact, summary judgment has traditionally been frowned upon in copyright litigation). However, although the issue of substantial similarity is frequently a fact issue for jury resolution, Twentieth Century-Fox Film Corp. v. MCA, Inc., 715 F.2d 1327, 1330 n. 6 (9th Cir.1983), a court may determine non-infringement as a matter of law on a motion for summary judgment in at least two instances: first, when all alleged similarity relates to non-copyrightable elements of the plaintiff's work, Hoehling, 618 F.2d at 977; second, when no reasonable jury could find that the two works are substantially similar. See Warner Brothers v. American Broadcasting Companies, 720 F.2d 231, 239-40 (2d Cir. 1983). Thus courts in copyright cases may dismiss meritless litigation and avoid lengthy and costly trials. Hoehling, 618 F.2d at 977; Weinstein, 578 F.Supp. at 1302.
The test for substantial similarity has been articulated as "whether an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work." Ideal Toy Corp. v. Fab-Lu Ltd., 360 F.2d 1021, 1022 (2d Cir.1966). See also Warner Brothers, 720 F.2d at 244; Atari, Inc. v. North American Philips Consumer Electronics Corp., 672 F.2d 607, 614 (7th Cir.), cert. denied, 459 U.S. 880, 103 S. Ct. 176, 74 L. Ed. 2d 145 (1982); Wickham v. Knoxville International Energy Expositions, Inc., 555 F. Supp. 154, 155 (E.D.Tenn.1983). The existence of similarities limited to the general idea or theme will not, as a matter of law, support a claim for copyright infringement. 17 U.S.C. § 102(b). See O'Neill, 630 F.2d at 686. "It is an axiom of copyright law that the protection granted to a copyrightable work extends only to the particular expression of an idea and never to the idea itself." Reyher, 533 F.2d at 90. Although the demarcation between idea and expression is not susceptible to a litmus test determination, the essence of infringement lies in its particular expression through similarities of treatment, detail, scenes, events, and characterization. Id. at 91. "An infringement is not confined to literal and exact repetition or reproduction; it includes also the various modes in which the matter of any work may be adopted, imitated, transferred, or reproduced, with more or less colorable alterations to disguise the piracy." Sid & Marty Krofft Television, 562 F.2d at 1167 (quoting Universal Pictures Co., Inc. v. Harold Lloyd Corp., 162 F.2d 354, 360 (9th Cir.1947)).
The basic facts in this case are not in dispute. An examination of the record reveals that at least some of the defendants had access to plaintiff's songs. Additionally it is apparent that plaintiff's work is validly copyrighted. See Reyher, 533 F.2d at 90. Plaintiff's work as well as the allegedly infringing work are before the Court, and there is no dispute as to their authenticity. Thus, the only issue left for resolution is whether, as a matter of law, a comparison of the compositions reveals substantial similarity. Overman v. Universal City Studios, Inc. and Richard Pryor, 1984 Copyright Law Decisions ¶ 25,660, at 18,958 (C.D.Cal.1984). Even though the issue of similarity is factual, when only one jury verdict could be upheld, summary judgment is appropriate. See Warner Brothers, 720 F.2d at 239-40.
The lyrics of plaintiff's composition, "Just a Blue Box," and the lyrics of "Mama's Shoe Box," are as follows:
*482
"JUST A BLUE BOX" "MAMA'S SHOE BOX"
Words and music by Les Pendleton Liz Anderson
Just a blue box with a few old pictures Mama was a dear sweet lady
Grey love letters and a couple of scriptures Finest woman ever born
Memories from a time my mamma loved so well Spry and bright but nearly eighty
Just a blue box or so it seems On the day that she passed on
It held all of her sweet dreams As we went through her possessions
Just a blue box with a few old things from days gone by. Her last wishes to fulfill
We just happened on a shoe box
Well, I got home just this morning Never mentioned in the will
Mamma had died without a warning
Sixty-five years of workin' hard, she's going to rest In a shoe box, on the top shelf
Well, the last thing that she said In the closet, in the hall
"Gotta little box under my old bed Her whole lifetime in a shoe box
And it holds all the things that your mamma loves the best". Mama's shoebox held it all.
Just a blue box with a few old pictures There was her picture as a baby
Grey love letters and a couple of scriptures Dancing eyes and shiny curls
Memories fom a time my mama [sic] loved so well Sometime in the eighteen nineties
Just a blue box or so it seems When she came into this world
It held all of her sweet dreams She was ten and seven summers
Just a blue box with a few old things from days gone by. When she met dad, her only man
There was a picture of their wedding
Never had much but mama [sic] tried As they faced life hand in hand
To keep us together after papa died
Whenever she got down here's what she'd do Old birth records, maybe pictures
She'd get out her old pictures As we kids came, one, two three
Talk about pa and read the scriptures Of the milestones of mama's lifetime
Memories she kept in a little box so blue. Tucked away so lovingly
Just a blue box with a few old pictures There was her picture at the depot
Grey love letters and a couple of scriptures With the son who went to war
Memories fom a time my mama [sic] loved so well And the gold star with the letter
Just a blue box or so it seems From the white house in forty four
It held all of her sweet dreams One old clipping from the paper
Just a blue box with a few old things from days gone by. When our daddy passed away
And the locket he once gave her
In some far off yesterday
Old report cards, graduations
One red pressed and faded rose
Mama's memories in a shoe box
Tied with love and satin bows
In a shoe box, on the top shelf
In the closet, in the hall
Her whole lifetime in a shoe box
Mama's shoe box held it all.
The underlying theme of each composition is a box of memorabilia belonging to the writer's deceased mother. The expression of this idea in each song is quite different. Plaintiff's lyrics refer to a sixty-five year old woman who informs her children before her death of a blue box in which she kept various personal items. These include old pictures, love letters, and scriptures. Ms. Anderson's composition, on the other hand, concerns a woman "nearly eighty" whose children happen upon a shoebox containing mementoes of her lifetime after her death. The lyrics of this song, composed of seven stanzas as opposed to plaintiff's five, are considerably more descriptive. The shoe box contained pictures of herself, her wedding, and her children, birth records, a letter from Washington reporting her son's death in the war, a newspaper clipping *483 about her husband's death, a locket, report cards, a pressed rose, graduation documents, and satin bows. Plaintiff's composition contains three repetitions of the chorus and two independent stanzas. Ms. Anderson's lyrics reflect two repetitions of the chorus and five independent verses. It is the opinion of this Court that any similarity between the songs stems solely from the underlying theme or idea and that the separate manners of expression of that ideaclearly do not constitute an infringement. See O'Neill, 630 F.2d at 686; Scott, 376 F.2d at 469. As a matter of law, a substantial similarity does not exist. Warner Brothers, 720 F.2d at 239-40.
The lyrics of plaintiff's composition, "Dear Dolly" and the lyrics of "Dolly", are as follows:
"DEAR DOLLY" "DOLLY"
Words and music by Les Pendleton Buzz Cason Austin Roberts
Many nights all alone She came down from the mountains of Eastern Tennessee
In a place where I don't have a friend
Your voice I would hear and the lonliness [sic] all To a place called Music City, just to see what she
goes away could be.
I owe you so much for the warmth and the feelings And I was there the first day she played her first
you brought to me song
The memories you've stirred in my heart always She sang and played so sweetly I just had to sing
cause me to say along
Country girl sing Dolly, sweet songbird in your flight
Sing of love On your way from nowhere soon to be a star so
And the hard times that you knew bright
Just a sweet simple girl with a voice like you'd hear Dolly, I've loved you all along
in a dream And shared your tears and laughter in the heartbeat
From a farm long ago in a coat of rags your mother of your song
made
A poor girl seeker she said It didn't happen right away, the making it was slow
But now she's a queen. 'Til a man named Porter Wagoner [sic] finally put
you on his show
From your songs I can tell Your records started selling more you were traveling
You must be someone who cares night and day
To be sad and alone I know can surely be hell Soon all the country loved you honey, you were on
And some nights your songs your way.
Were the only things that got me through
And Dolly for that I wish you well Dolly, sweet songbird in your flight
The mountains now are far behind your star is shining
Country girl sing bright
Sing of love Sweet Dolly we've loved you all along
And the hard times that you knew And shared your tears and laughter in the heartbeat
Just a sweet simple girl with a voice like you'd hear of your song.
in a dream
From a farm long ago in a coat of rags your mother One night you finished playing with the crowd still
made going wild
A poor girl seeker she said I came backstage to see you and you flashed that
But now she's a queen. pretty smile
It surprised me when you told your friends how you
Well I must say goodbye now its late knew me well
And tomorrow's another day You said Lord them was the good old days, hey and
These things that I've told you the stories we could tell.
I promise are true
And if someday things don't go your way or you Now you're on the pop charts with your records all
need a friend around
I'll always be here to return the kindness to you. Singing "Here You Come Again" and "Two Floors
Down"
Country girl sing And you may be out in Hollywood but you'll be back,
Sing of love they say
And the hard times that you knew You've never lost your sweetness, you've still got
Just a sweet simple girl with a voice like you'd hear your country way
in a dream
*484
From a farm long ago in a coat of rags your mother Dolly, sweet songbird in your flight
made You've come so far from nowhere, now your star is
A poor girl seeker she said shining bright
But now she's a queen. Sweet Dolly, your love is in your songs
You've given us so much and how we love to sing
along with you
Dolly, sweet songbird in your flight
You've come so far from nowhere, now your star is
shining bright
Sweet Dolly, your love is in your song
You've given us so much and how we love to sing
along.
These compositions refer to the popular singer and performer, Dolly Parton. The lyrics reveal an admiration and affection for Parton and allude to her rise to stardom from humble beginnings. Comparison reflects some similarity between the ideas, plots, or themes on which the compositions are based; however, the scope of copyright protection does not extend to these limits. Sid & Marty Krofft Television, 562 F.2d at 1163.
A fundamental objective of copyright law is to foster creativity. However, the application of that law may both augment and curtail such prospects. The idea-expression dichotomy attempts to reconcile two competing social interests: rewarding individual creativity, while at the same time permitting the public to enjoy the benefits from use of the same subject matter. Id. See Warner Brothers, 720 F.2d at 240.
Upon any work ... a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out. The last may be perhaps no more than the most general statement of what the [work] is about, and at times might consist of only its title; but there is a point in this series of abstractions where they are no longer protected, since otherwise the [writer] could prevent the use of his "ideas," to which, apart from their expression, his property is never extended.
Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir.1930), cert. denied, 282 U.S. 902, 51 S. Ct. 216, 75 L. Ed. 795 (1931).
The similarity between "Dear Dolly" and "Dolly" does not go beyond the idea to write a laudatory song about Dolly Parton. The expression of that idea is entirely different in each composition. "Dear Dolly" speaks of a lonely devotee from afar who is inspired by the singing of a "sweet simple girl." Conversely, "Dolly" tells a tale of an admirer who knew Dolly before she "came down from the mountains of Eastern Tennessee." A major premise of "Dear Dolly" is the loneliness and depression of the admirer, while "Dolly" is an optimistic and upbeat composition. This Court does not discern a substantial similarity of expression between the two sets of lyrics and finds no basis in law to extend the bounds of copyright law protection to encompass the story of an international celebrity such as Dolly Parton. As a matter of law, a substantial similarity is not evident between these compositions. See Twentieth Century-Fox Film Corp., 715 F.2d at 1330.
The lyrics of plaintiff's composition, "Angel" and the lyrics of "Friend, Lover, Wife," are as follows:
"ANGEL" "FRIEND, LOVER, WIFE"
Words and music by Les Pendleton Billy SherrilJ. Paycheck
I'm not the kind of man I know Let me tell you about a woman I know
That I'm supposed to be She don't drink, she don't smoke
And I'll never know why God above She can't stand a dirty joke
Sent an angel here for me She don't hang out 'til the morning light
She don't have to get high, Lord to get right
She's a friend, she's a lover, she's my wife
*485
I like to gamble, I like to smoke
I like to drink and tell a dirty joke
How'd an old stray dog like me But I'll take a drink, Lord
Meet an angel like you. And I'll have a smoke
And I've told some downright filthy jokes
I like to go out every night I've been known to hang out 'til the morning light
To the card games or maybe a fight Been known to get high trying to get right
And when they let those horses run you know But that's just me, son, that's just me
It's the only place that I will go
I lost my money like a fool Well, If you don't know my woman
On a horse that ran like a mule You might think she's square
I'm worthless now as I can be But you ought to see that woman
But if she cares, she ain't told me. When she lets down her hair
She's the damnest thing that ever walked into my
I like to gamble, I like to smoke life, heh, Lord
I like to drink and tell a dirty joke She's a friend, she's a lover, she's my wife.
How'd an old stray dog like me Tell them about my wife, son, and yours too!
Meet an angel like you.
I wear jeans, she wears silk
Well, my friends have said for years I like beer and she likes milk
That I must keep my angel in tears She can be soft like a summer rain
It isn't so, you see she understands But lock them doors at night, she's a hurricane
She's not the kind to even change her man She's a friend, she's a lover, she's my wife
She likes me happy all the time
Even if it takes some cards and wine Lord, it's still a mystery what she sees in me
She's sweet, kind, lovin' and awful pretty She says long as I want her
Even likes George Wallace and Richard Petty She'll never set me free
She's the damnest thing that's ever walked into my
I like to gamble, I like to smoke life, hey, Lord
I like to drink and tell a dirty joke She's a friend, she's a lover, she's my wife.
That's How an old stray dog like me Hey, she's a friend, she's a lover, she's my wife.
Met an angel like you. She's a fox, she's a mother, she's my friend, she's my
lover
Well, I remember the night and the neon lights She's my wife, that's my wife I'm talking about.
In a place called the Devil's Den
How the boys would all shout as any angel stepped
out
Show us how you take it off again
I like to gamble, I like to smoke
I like to drink and tell a dirty joke
That's how an old stray dog like me
Met an angel like you.
These compositions impart a story of a seemingly paradoxical couple. Despite the propensity of the male character to smoking, drinking and telling dirty jokes, the women remains loyal to him; however, in each song, the woman ultimately is revealed to be a bit scurrilous herself.
Even an occasional country music listener will encounter myriads of ballads alluding to similar ideas. Although the perfect country and western song has been described as including drinking, mother, prisons, trains, and trucks,[1] this Court can add to that list, without reservation, smoking, gambling, loving, and telling dirty jokes. However, a comparison of the two songs reveals similarity in the use of the words "smoke," "drink," and "dirty jokes":
"Angel"
I like to gamble, I like to smoke
I like to drink and tell a dirty joke
"Friend, Lover, Wife"
She don't drink, she don't smoke
She can't stand a dirty joke
Plaintiff contends that the work "Friend, Lover, Wife" infringes his copyright in *486 "Angel" because of the substantial similarity between the works.
Courts have consistently held that common words and clichéd language are not subject to copyright protection. See Alexander v. Haley, 460 F. Supp. 40, 46 (S.D.N.Y.1978). Moreover, summary judgment is appropriate when such circumstances are demonstrated. Id. at 44. "Similarity of expression, whether literal or nonliteral, which necessarily results from the fact that the common idea is only capable of expression in more or less stereotyped form will preclude a finding of actionable similarity." 3 M. Nimmer, Nimmer on Copyright § 1303[A][1] (1981). See Atari, Inc., 672 F.2d at 616. The use of particular words or common phrases does not constitute an infringement; it is in the arrangement of words on which a cause of action must be based. Jackson v. Washington Monthly Co., 481 F. Supp. 647, 649 (D.D.C.1979), aff'd, 675 F.2d 1340 (D.C. Cir.), cert. denied, 459 U.S. 909, 103 S. Ct. 215, 74 L. Ed. 2d 172 (1982).
The English language is not broad enough so that similarity of phraseology and word usage will not appear in material on the same topic.... It would be ridiculous to consider such similarity a copyright infringement. Plaintiff has no monopoly on the words or phrases he has used. Plaintiff's right is to the arrangement of the words he has selected to express his ideas, not to the ideas or words themselves.
Id. at 649 n. 7 (citations omitted). In O'Brien v. Chappel & Co., 159 F. Supp. 58 (S.D.N.Y.1958), the complainant contended that the phrase "night and noon" was susceptible to copyright protection. Id. at 58. The court held that copyright protection does not extend to words or phrases isolated from their context. A common phrase in and of itself is not susceptible to copyright nor of appropriation. Id. at 59.
It cannot be contested that a finite number of themes surface in country music songs. The terms "drink," "smoke," and "dirty joke" are not subject to the proscriptions of copyright law, and a comparison of their arrangement in "Angel" and "Friend, Lover, Wife" does not indicate substantial similarity. "Angel" speaks in the first person and refers to a gambling man who is known to smoke, drink, and tell dirty jokes. "Friend, Lover, Wife," on the other hand, describes a woman who does not drink or smoke and cannot tolerate dirty jokes. As a matter of law, a substantial similarity does not exist between the two. See Warner Brothers, 720 F.2d at 239-40. Moreover, as noted above, because the theme or idea of the two songs is not copyrightable, O'Neill, 630 F.2d at 686, and because the manner of expression utilized in each song is clearly dissimilar, Sid & Marty Krofft Television, 562 F.2d at 1163, this action must be dismissed.
An appropriate Order shall enter.
NOTES
[1] Steve Goodman, You Never Even Call Me By My Name (1975).