dissenting:
I respectfully dissent to the holding affirming summary judgment in favor of the defendants. I believe the impact of the majority opinion will foreclose the right to trial by jury in copyright cases.
In conjunction with the facts mentioned in the majority opinion, the following are pertinent.
Miss Roberts’ television scripts for the five minute segments were completed prior to April, 1963, at which time a pilot television tape of these segments was made. For the purposes of this appeal, defendants have admitted that Miss Roberts’ scripts were original and were authored and owned by Miss Roberts. Also, there is no dispute concerning the contents of the plaintiff’s scripts.
Miss Roberts’ scripts for these segments were about one page of single space type, each containing dialogue, camera directions, theme song choice, opening logo, and time allotment. There were six scripts.
Miss Roberts testified on deposition that she kept her scripts in a white cabinet in her apartment. Defendant Victor Morris became acquainted with Miss Roberts in 1964 and thereafter became a regular visitor to her home. Admittedly, he had regular access to the plaintiff’s apartment, both when the plaintiff was home as well as when she was not. Miss Roberts testified that Morris saw her working on her scripts from time to time and actually viewed tire scripts themselves. Morris admitted having discussed the idea for the TV show with the plaintiff, and that he knew of the pilot tape of her series. In August of 1965, Morris, who had previously been active in advertising and public relations, secured employed with the Chicago office of Ruder & Finn, which represented the Clairol account in Chicago. A regular working relationship existed between the defendant Clairol and the Chicago office of Ruder & Finn, whose chief executive assigned to the Clairol account was in New York. Ruder & Finn’s Chicago office directed numerous Clairol activities, including “a rather massive promotion” during the summer of 1966. Tire Ruder & Finn account executive in charge of the Chicago based Clairol promotion had direct contact with the Clairol Account Supervision in New York as well as direct personal contract with the defendant Morris, who also on occasion traveled to New York on business for Ruder & Finn. The head of Ruder & Finn also admitted that the Clairol account was frequently serviced out of the Chicago office.
Morris admits this in his deposition and says he went to work for Ruder & Finn in September 1965. He said he knew about plaintiffs script and the taping of the show in Milwaukee, but denied telling anyone in his organization about it. How many other people he knows in the advertising field or in show business or if he talked to them is not disclosed.
Turning now to Miss Dahl’s works. In April, 1965 (two years after Miss Roberts’ segments had been completed), Miss Dahl conceived of a television show featuring her beauty consulting services. Miss Dahl taped five 30-minute shows, which were later discarded. In December of 1965 (four months after Morris joined Ruder & Finn), the 5-minute format was selected by the New York advertising firm of Foote, Cone & fielding, for use on behalf of their client, the defendant Clairol. It is also noteworthy that Ruder & Finn was the public relations firm for Foote, Cone & fielding and that there was considerable contact between personnel of the two firms. The scripts for Miss Dahl’s 5-minute segments were written during January-March, 1966, by the same writers who had helped Miss Dahl write her book (published in 1965) entitled “Always Ask A Man — The Key To Femininity.”
The majority opinion refers to Arlene Dahl’s scripts with her book published in May, 1965, and says the language is similar. This applies to the general ordinary language, but does not explain the ten verbatim quotes from the plaintiffs script which appear in the Dahl script as follows:
“1. Is your face your fortune?
2. The darker shade should never be * * *.
3. You apply the darker foundation * * *.
4. So there is no line of demarcation.
5. Remember * # *. No matter how busy you are, take time for beauty, (repeated at the close of each script)
6. Bed time.
7. * * * The boudoir.
8. * * # It’s really your fault if your husband
9. Today we are going to concentrate on eyes
10. We are going to apply an eyeliner.”
Every word in every sentence appears in exactly the same form in defendants’ script and can hardly be called accidental or a coincidence. Furthermore, there are 43 instances of similar sentences of clauses appearing in plaintiff’s script that also appear in defendants’ script. In addition, the similarities of format must be noted as follows:
TIME:
Both shows are 5 minutes in length OPENING BILLBOARD:
Both shows open with camera closeup of “Beauty Spot” logo OPENING SHOT:
Both shows open with short introduction by star (Miss Roberts or Miss Dahl) followed by a commercial.
BODY OF SHOW:
Both shows have a body of dialog of about 3Vz minutes MUSIC:
Both shows end with the same theme song.
FINAL REMARK:
Both shows are ended with the identical remark made by the stars, “Remember ladies, no matter how busy you are, take time for beauty.”
TIME SLOT:
Both shows were to be programmed for a mid-day audience, to be presented 5 days a week. Defendants’ show was actually aired at 11:55 A.M.
Again, this format appearing in plaintiff’s work, later is used on defendants’ show.
A comparison between the six one-page scripts of Miss Roberts with the scripts of Miss Dahl reveals astonishing similarity. The plaintiff has demonstrated fifty-three separate examples of either identical or substantially identical excerpts. When we consider that these fifty-three examples of identical or substantially identical language occur in as few as six pages of script, one is inescapably led to the conclusion that there could be a closer connection than mere coincidence and customary phraseology within the industry. In addition to identical words and phraseology, the scripts appear similar in exact continuity, sequence of thought and presentation. This even includes the same opening logo, the same closing remarks and the same theme song.
Although defendants argue that some of the language contained in Miss Dahl’s scripts is also contained in her book (which was written, in part, by the same writers who collaborated in Miss Dahl’s television scripts and was published after Miss Roberts’ scripts were written) tire argument is not convincing. For one example, it does not explain where (if not from Miss Roberts’ scripts) Miss Dahl obtained the “key phrase,” used at the end of each of Miss Dahl’s segments: “In the meantime, remember no matter how busy you are, take time for beauty.” This “key phrase” admittedly does not appear in Miss Dahl’s books or other works. This “key phrase” does appear in Miss Roberts’ scripts, written some two years before Miss Dahl’s. Neither does it explain that concurrent with defendants’ change from a half-hour show to a five-minute segment there was a title change from “Let’s Be Beautiful” to “Beauty Spot.” This is the title of Miss Roberts’ originally conceived five-minute show. Nor does it explain that this significant change took place after Morris’ association with Ruder & Finn.
Bearing in mind that Miss Dahl’s book was copyrighted in 1965, two years after Miss Roberts’ TV scripts, the book would not support defendants’ claim to originality. Miss Dahl’s book consists of 209 pages, each page having approximately 35 to 40 lines of print. It would be strange indeed, considering the mass of verbiage, if some of the language did not appear in the book.
On the other hand, the numerous and striking similarities (not only in language and syntax, but in order and treatment of ideas and sequence and manner of expression as well) between Miss Roberts’ six one-page scripts and Miss Dahl’s scripts, casts extreme doubt if not impossibility upon defendants’ claim that the similarities arise by coincidence or independent creation.
Defendants argue vehemently that plaintiff has not shown their access to the Roberts’ scripts. However, in so arguing, they overlook Morris’ admitted access to them as well as his relationship to the other defendants. A jury would be entirely justified in finding that defendants, and each of them, had access to the contents of the scripts through Morris, who was employed by the public relations firm of Clairol, whose product Miss Dahl was advertising. The jury would not be required to believe the self-serving and subjective denials of knowledge of defendants and their agents.
Turning now to the applicable law.
Summary judgment can be entered only when there is no genuine issue as to any material fact. It should not be entered where to do so would require the trial judge to decide controverted questions of fact. Borgeson v. Fairhaven Christian Home (1971), 1 Ill.App.3d 323; Giampa v. Sunbeam Corp. (1966), 68 Ill.App.2d 425.
In determining the right to summary judgment, all doubts must be resolved against the moving party. (Breen v. Peck (1958), 28 N.J. 351, 146 A.2d 665.) The burden of proof is on the moving party. (Monmouth Lumber Co. v. Indemnity Ins. Co. of N. America (1956), 21 N.J. 439, 122 A.2d 604.) There is no burden on the plaintiff, upon a motion for summary judgment by the defendant, to establish his entire case by depositions and affidavits. (Champlin v. Oklahoma Furniture Mfg. Co. (1959), 269 F.2d 918 (10th Cir.).) The purpose of summary judgment procedure is not to try an issue of fact, but rather to determine whether there is an issue of fact. Moroni v. Gulf, Mobile and Ohio R.R. Co. (1967), 86 Ill.App.2d 426; Frick v. O’Hare-Chicago Corp. (1966), 70 Ill.App.2d 303.
The majority opinion says the defendants’ affidavits are uncontradicted. All they do is deny the allegations in the complaint and the plaintiff is not required to deny a denial to create an issue of fact. The majority opinion also says the plaintiff’s argument that the credibility of each affiant is a jury question ignores Supreme Court Rule 191. That statement, in my opinion, is incorrect. The rule states: “Affidavits shall not consist of conclusions, but of facts admissible in evidence.” The affidavits were self-serving and as to those parts relating to affiants’ coworkers was hearsay. How much are facts that are admissible in evidence is decided at the trial by the trial judge when the testimony is offered. The credibility of the witness is determined by the jury, after cross-examination. The affiants are interested parties; therefore the plaintiff has the right to have their credibility judged by a jury. In Sartor, et al. v. Arkansas Natural Gas Corporation (1944), 321 U.S. 620, the United States Supreme Court said:
“It may well be that the weight of the evidence would be found on trial to be with defendant. But it may not withdraw these witnesses from cross-examination, the best method yet devised for testing trustworthiness of testimony. And their credibility and the weight to be given to their opinions is to be determined, after trial, in the regular manner.”
Recently the Illinois Appellate Court, in State Farm Mutual Auto. Ins. Co. v. Short (1970), 125 Ill.App.2d 97, in reversing a summary judgment, discussed the principles involved and the use of supporting affidavits. On page 106, the court said:
“A judge may not, on a motion for summary judgment, draw fact inferences. Such inferences may be drawn only on a trial. Cross v. United States, 336 F.2d 431, 433; Empire Electronics Co. v. United States, 311 F.2d 175, 180.”
On page 107, the court said:
“Clearly these affidavits are admissible to impeach Loren’s testimony and the question of Loren’s credibility is raised. Under these circumstances summary judgment is inappropriate. Cross v. United States, supra, Arnstein v. Porter, 154 F.2d 464. Courts cannot overestimate the importance of having the witness examined and cross-examined before the court and jury.”
On page 108, the court also said:
“The right of the moving party to summary judgment must be free from doubt. Miller v. Owens-Illinois Glass Co., 48 Ill.App.2d 412, 199 N.E.2d 300. The affidavits filed in support of a motion for summary judgment will be strictly construed and must leave no question of the movant’s right to judgment, but the affidavits filed in opposition thereto will be liberally construed. Tansey v. Robinson, 24 Ill.App.2d 227, 164 N.E.2d 272.”
In my opinion, summary judgment should not be granted in favor of the defendants because, to say the least, factual issues are present in regard to the following elements of the case, among others: substantial similarity between the scripts of plaintiff and defendants; defendants’ access to plaintiff’s scripts; credibility of witnesses and defendants’ alleged independent development.
Copying is often impossible to establish directly. It would be absurd to hold, as a prerequisite to recovery, that a plaintiff must produce a witness who actually saw the very act of defendants’ copying or require an admission from defendants that they copied the work. To require by affidavit a denial of a denial would be equally absurd.
The plaintiff has a right to prove her allegations by circumstantial evidence. There is no question circumstantial evidence is competent evidence in that circumstantial evidence, like any evidence, depends on its tendency to prove an ultimate fact in issue. (Ladd v. Ruck (1969), 108 Ill,App.2d 379.) Where there is no eyewitness, a fact in issue may be proved by circumstantial evidence; such evidence consists of proof of facts and circumstances from which the court may infer other connected facts which usually and reasonably follow. (Golden v. Big Bear Foods, Inc. (1968), 102 Ill.App.2d 237.) In a summary judgment proceeding it is not the function of the motion judge to weigh the evidence as was done in the instant case, and is being concurred in by the majority opinion here.
The common law copyright cases have established that an inference of copying can be established by a showing of substantial similarity and access (both of which plaintiff had demonstrated). Going even further, the cases hold that, in some situations, access itself can be inferred from substantial similarities. Christie v. Harris (1942), 47 F.Supp. 39, aff'd. 154 F.2d 827, cert. den., 329 U.S. 734; Arnstein v. Porter (2d Cir., 1946), 154 F.2d 464; Golding v. RKO Pictures (1950), 35 Cal.2d 690, 221 P.2d 95; Kovacs v. Mutual Broadcasting System (1950), 99 Cal. App.2d 56, 221 P.2d 108.
The point is demonstrated in Kovacs v. Mutual Broadcasting System, 221 P.2d 108, as follows:
“There was no direct evidence of access. Defendants denied access and copying. Access may, however, be proved indirectly. A charge of piracy does not fail merely because the infringer was not caught in the act of copying. Access may be inferred from the surrounding circumstances or it may be found from similarities in the plan, arrangement, and combination of the materials, or from the identity of phraseology or from other evidentiary facts. Ball, Law of Copyright and Literary Property, 601, Section 263; Wilkie v. Santly Bros., 2d Cir., 91 F.2d 978, 979; Dam v. Kirk LaShelle Co., 2d Cir., 175 F. 902, 907, 41 L.R.A.N.S. 1002, 20 Ann. Cas. 1173; Christie v. Harris, D.C.N.Y., 47 F.Supp. 39, 40; Simonton v. Gordon, D.C.N.Y. 12 F.2d 116, 123.
In Wilkie v. Santly Bros., supra 2d Cir., 91 F.2d 978, although there was no direct evidence of access, it was held that access could be inferred, the court saying 91 F.2d at page 979: ‘Where similarities or identities are relied upon they must do more than engender a suspicion of piracy; they must establish piracy with reasonable certainty. There was some evidence here of the possibility of physical access by the appellants; the court below did not so find. But the charge of infringement does not fail merely because the infringer is not caught in the act, for access may be inferred or found circumstantially from the plan, the arrangement, and the combination of materials contained in the composition. Edwards & Deutsch Lithographing Co. v. Boorman (7th Cir.) 15 F.2d 35, certiorari denied 273 U.S. 738, 47 S.Ct. 247, 71 L.Ed. 867 * * *. Internal proof of access may rest in an identity of words or in the parallel character of incidents or in a striking similarity which passes the bounds of mere accident. General Drafting Co. v. Andrews (2d Cir.) 37 F.2d 54; W. H. Anderson Co. v. Baldwin Law Publishing Co. (6 Cir.) 27 F.2d 82; Simonton v. Gordon, D.C.S.D. N.Y., 12 F.2d 116.”
Also see Arnstein v. Porter, 154 F.2d 464.
Such similarity exists in this case.
Defendants’ defense of independent development is, at most, an issue of fact to be determined upon a proper trial of this cause. Considering the striking similarities between plaintiff's admittedly original scripts and defendants’ scripts, at this point the defense would appear doubtful at best. But this dissent could not make this factual determination at this stage. However, to the contrary, the motion judge below and the majority here give complete credence to the defense of independent development. Independent development is a proper defense only where there is little or no similarity in the contested literary product. (Weitzenkorn v. Lesser (Supreme Ct. Calif. 1953), 256 P.2d 947; Kovacs v. Mutual Broadcasting System, 221 P.2d 108; Jacobs v. Hill (1962), 26 Cal. Rept. 591.) The majority here says the plaintiff’s evidence of similarity was insufficient. However, in a motion for summary judgment we are not to test the sufficiency of the evidence. Ruby v. Wayman (1968), 99 Ill.App.2d 146; Lumbermans Mutual Casualty Co. v. Poths (1968), 104 Ill.App.2d 80.
Defendants take the position that their admittedly self-serving affidavits denying knowledge of the plaintiff’s scripts prove beyond all doubt that Miss Dahl’s scripts were the product of independent development. This argument overlooks the admitted knowledge of the defendant Morris and his close relationship with other defendants. It overlooks the obvious fact that most of defendants’ affidavits were made by persons who had not taken part in the actual writing of the defendants’ scripts and therefore they would not necessarily know from whence came the material for the Dahl scripts.
Granting Miss Dahl has been active in the beauty consulting field for the past fifteen years and that she has become known as a beauty and fashion expert, and that since 1954 she has written syndicated feature articles dealing with beauty tips for women, Miss Dahl has admitted that the television scripts in question were written in collaboration with other writers. It is entirely possible that Miss Dahl knew nothing of the Roberts’ scripts; nevertheless, the Roberts’ scripts might still have been used in the creation of the Dahl scripts.
In the case of Weitzenkorn v. Lesser, 256 P.2d 947, upon which both plaintiff and defendants rely, the court stated:
“Having both productions before it * * * the court may determine whether there is substantial similarity between them. If, as a matter of law, there is no such similarity, no question of fact is in issue and the demurrers to each count of the complaint were properly sustained. But if, from a comparison of the two productions, such similarity reasonably might be found, that issue, and also the question as to copying, should have been submitted to the jury for determination.” 256 P.2d at 957.
The motion judge wrote a lengthy opinion in which he weighed the “evidence” as if there had been a trial. For example, he writes: “Plaintiff has developed no evidence to the contrary,” and also says: “Furthermore, plaintiff has not established that Victor Morris disclosed her idea or her scripts for a television show on beauty to anyone,” thus applying the Pedrick standards for a directed verdict. He was not sitting as a trial judge who heard the case and could look at the “evidence,” but only as a motion judge to consider whether there were facts alleged and denied to join the issue for a jury to decide. He further wrote in his opinion: “Thus the fact that Victor Morris had access to plaintiff’s scripts and worked for the public relations firm of Ruder and Finn, who had a client named Clairol, is not determinative of the access question.” This is an issue to be decided by a jury. The defendants admit in their brief that Morris had access to plaintiff’s scripts.
In the majority opinion is cited the case of Lapsley v. American Institute of Certified Public Accountants (1965), 246 F.Supp. 389, where the judge granted a motion for directed verdict on the ground that no evidence of access had been presented. A directed verdict is not in point in the instant case; however, that is what the motion judge did.
In the instant case, substantial similarity exists. Under the facts present here (notwithstanding defendants’ denial) a jury should determine whether or not the plaintiff’s scripts were copied. The trial judge erroneously weighed the evidence in rendering his opinion.
I would reverse the summary judgment entered by the trial court and remand the cause for trial.