
    David HOCH and Joseph Marble, Plaintiffs, v. MASTERCARD INTERNATIONAL INCORPORATED and McCann-Erickson USA, Inc., Defendants.
    No. Civ.01-2104(JNE/JGL).
    United States District Court, D. Minnesota.
    Sept. 19, 2003.
    
      Rita Coyle DeMeules, Ronald J. Schütz and Carrie M. Smith, Robins, Kaplan, Miller & Ciresi L.L.P., Minneapolis, MN, for Plaintiffs.
    Richard Dannay, and Susan R. Schick, Cowan, Liebowitz & Latman, P.C., New York City, and Calvin L. Litsey, and Michelle A. Paninopoulos, Faegre & Benson LLP, Minneapolis, MN, for Defendants.
   ORDER

ERICKSEN, District Judge.

This is an action by David Hoch and Joseph Marble (collectively, Plaintiffs) against MasterCard International Incorporated and McCann-Erickson USA, Inc. (collectively, Defendants) for copyright infringement and unjust enrichment. The case is before the Court on Defendants’ Motion for Summary Judgment. For the reasons set forth below, the Court grants the motion.

I. BACKGROUND

Plaintiffs are two life-long friends in their forties who share a love of baseball and, in particular, the Minnesota Twins Major League Baseball team (Minnesota Twins). In 1998, they formed an organization, Citizens United for Baseball in Minnesota (CUBM) with the goal of keeping Major League Baseball (MLB) in Minnesota. Their efforts included a campaign to build a new baseball stadium to keep the Minnesota Twins in Minnesota. In support of this goal, Plaintiffs made a thirty-minute documentary in 1998 entitled Twins-Now and Forever (Twins). Plaintiffs created Twins by filming a ten-day road trip that included visits to baseball stadiums in Cleveland, Baltimore, and Denver, all of which had built stadiums in urban settings. In each city, Plaintiffs interviewed stadium representatives, civic leaders, residents, and fans. The interviews emphasized that a MLB team and stadium can be an important community asset. Plaintiffs copyrighted Twins in 2001.

McCann-Erickson is an advertising agency that created a series of ads known as the “Priceless” campaign for MasterCard, a credit-card service company. As part of that series, McCann-Erickson created six ads, called the Trip ads, highlighting MasterCard’s sponsorship of MLB. The Trip ads feature two twenty-something male friends on a road trip to visit all thirty MLB stadiums in one summer, purchasing necessities along the way with their MasterCard credit card. McCann-Erickson developed the idea in February 2001, and, after receiving approval from MasterCard and MLB, filmed the Trip ads shortly thereafter. MLB ballparks in five cities are depicted in the Trip ads: Cincinnati, Boston, Baltimore, San Francisco, and Seattle. Plaintiffs allege that the Trip ads infringe on their copyright for Twins.

II. DISCUSSION

Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R.Civ.P. 56(c). The moving party “bears the initial responsibility of informing the district court of the basis for its motion,” and must identify “those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party satisfies its burden, Rule 56(e) requires the nonmoving party to respond by submitting evidentiary materials that designate “specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). In determining whether summary judgment is appropriate, a court must look at the record and any inferences to be drawn from it in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The elements of a claim for copyright infringement are: (1) ownership of the copyright by the plaintiffs; and (2) copying by the defendants. Feist Publ’ns v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991). The parties do not dispute that Plaintiffs own a valid copyright in Twins, so the Court’s inquiry is limited to the second element. When, as is the case at hand, there is not direct evidence of copying, a plaintiff may use circumstantial evidence to prove copying. Moore v. Columbia Pictures Indus., 972 F.2d 939, 941-42 (8th Cir.1992). To establish copying through circumstantial evidence, Plaintiffs must show that Defendants had access to the work and that there is substantial similarity between the works. See id.

A. Access

Access is established by showing that a defendant had an “opportunity to view or to copy” plaintiffs work. Id. at 942. Establishing a “bare possibility of access is not enough; rather, [plaintiff] must prove that defendant! ] had a reasonable possibility of viewing his work.” Id. Access may not be inferred based on conjecture and speculation. Selle v. Gibb, 741 F.2d 896, 901 (7th Cir.1984). Here, Plaintiffs assert two theories of access: widespread dissemination and corporate receipt.

1. Widespread Dissemination

A reasonable possibility of access may be established by evidence that prior to the creation of the infringing work, the copyrighted work was widely disseminated to the public. Janel Russell Designs, Inc. v. Mendelson & Assocs., Inc., 114 F.Supp.2d 856, 864 (D.Minn.2000). Plaintiffs made approximately 500 copies of Twins. They argue Twins achieved widespread dissemination based on the following: (1) Twins was shown once per day for one week at the Baseball Hall of Fame in Cooperstown, New York; (2) it was shown continuously in Minnesota at a CUBM booth for two days at “Twins Fest,” a meet-the-players event for fans of the Minnesota Twins; (3) several hundred copies were handed to public officials in Minnesota; (4) Minnesota public television showed at least a portion of Twins; (5) Plaintiffs were interviewed on local radio shows and in local papers; and (6) clips of Twins were available on CUBM website.

The Court’s review of the case law reveals several reoccurring considerations in determinations of widespread dissemination: number of copies distributed, commercial success or notoriety, and national performances or distribution. See, e.g., Cholvin v. B. & F. Music Co., 253 F.2d 102, 103 (7th Cir.1958) (access found where 2,000 sheets of music and 200,000 records sold and several nationwide broadcasts); Janel Russell Designs, 114 F.Supp.2d at 864 (access found where product was nationally sold, generated substantial revenue, and was nationally advertised to the public as well as the trade); Bright Tunes Music Corp. v. Harrisongs Music, Ltd., 420 F.Supp. 177, 179 (S.D.N.Y.1976) (access found where plaintiffs song was number one in the United States for five weeks and top thirty in England for seven weeks); cf. McRae v. Smith, 968 F.Supp. 659, 560, 565 (D.Colo.1997) (no access where 200-500 copies distributed, song won an award, was included in musical compilation tape, and song was performed regionally); Jewel Music Pub Co. v. Leo Feist, Inc., 62 F.Supp. 596, 598 (S.D.N.Y.1945) (no access where over 10,000 copies of song had been sold or distributed and music had been broadcast on national performances).

The evidence in this case reveals that Twins’ distribution was limited in number and geography, was regionally broadcast, and met with virtually no commercial success. Most of the 500 copies were distributed in the Twin Cities and with the exception of the performances at the Baseball Hall of Fame, all the showings were in Minnesota. It is undisputed that no one associated with the creation of the Trip ads was in Cooperstown, New York, or in Minnesota during any of the showings of Twins. As to the airings on Minnesota public television, the record reveals that the broadcast took place after the onset of this litigation. Plaintiffs’ regional notoriety gained from their appearances on radio and in print does not by itself create an opportunity for Defendants to view Twins. Turning to the CUBM website, notwithstanding Plaintiffs ability to track the number of site visits, the record contains no such information for months of February and March 2001 when Defendants created the ads. Without regard to the number of site visits, the clips of Twins available on the website contain less than 10% of the film. Indeed, Plaintiffs’ letter to Allen Selig, Chief Executive Officer and Commissioner of Baseball, dated January 28, 2000, discloses Plaintiffs’ difficulties in distributing Twins and in getting people to watch it. Viewing the evidence in the light most favorable to Plaintiffs, the Court concludes that Twins failed to obtain a level of widespread dissemination.

2. Corporate Receipt Doctrine

Plaintiffs assert that a reasonable possibility of access is established through the corporate receipt doctrine. Nimmer on Copyright describes the doctrine as follows:

[E]vidence that a third party with whom both the plaintiff and defendant were dealing had possession of plaintiff’s work is sufficient to establish access by defendant. But the proof must show that both plaintiffs and defendant’s dealings took place concurrently, in order to give rise to an imputation of access. If the defendant is a corporation, the fact that one employee of the corporation has possession of plaintiffs work should warrant a finding that another employee (who composed defendant’s work) had access to plaintiffs work, where by reason of the physical propinquity between the employees the latter has the opportunity to view the work in the possession of the former.

3 Melville B. Nimmer, Nimmer on Copyright § 13.02(A) (1992); accord Moore, 972 F.2d at 942-44. At its most basic level, the corporate receipt doctrine allows an inference of access to be drawn when there is a relationship-either based on a common employer or other dealings-between an intermediary who knows of plaintiffs work and the alleged copier. See Meta-Film Assocs., Inc. v. MCA Inc., 586 F.Supp. 1346, 1357 (C.D.Cal.1984). However, this relationship cannot be too attenuated so that access is established only “through a ‘tort[u]ous chain of hypothetical transmit-tals.’ ” Moore, 972 F.2d at 944 (quoting Meta-Film, 586 F.Supp. at 1355).

Here, Plaintiffs offer two avenues under which the corporate receipt doctrine might applies: first through Selig, and second via David Mona, Chairman of the Minneapolis office of Weber Shandwick, a public relations firm. Plaintiffs contend Selig’s admitted receipt of Twins acts as a corporate receipt because MLB has approval rights over MasterCard’s MLB ads. It is undisputed that Selig is not, and has never been, involved with MasterCard’s sponsorship deal. Selig’s only role in relation to sponsorships is receipt of a report upon conclusion of a new sponsorship. The record further reflects MLB’s first contact with McCann-Erickson regarding approval of the Trip ads took place after McCann-Erickson conceptualized the Trip ads into storyboards. Plaintiffs fail to offer any facts that could give rise to an inference of access through Selig.

With regard to Mona, it is undisputed that he received a copy of Twins from Plaintiffs. Plaintiffs assert the corporate receipt doctrine is satisfied insofar as: (1) the Interpublic Group is the parent company to both Mona’s employer and McCann-Erickson, and (2) at some point in the early 1990s, Mona’s company had a MasterCard account. First, it is undisputed that Mona has no relationships-business or personal-with anyone involved in the Trip ads. Additionally, Mona is located in Minnesota and has no physical proximity to the New York based Defendants. Second, although Mona’s firm dealt with a MasterCard campaign in the early 1990s, the record reflects that Mona had no part in it. Plaintiffs have failed to produce evidence of a relationship that could tie Mona to McCann-Erickson or to MasterCard. Viewed in the light most favorable to the Plaintiffs, the evidence shows only the barest possibility based on hypothetical speculation and conjecture that Defendants had access to Twins.

B. Substantial Similarity

Even if Plaintiffs had shown a reasonable possibility of access, their claim would still fail as matter of law because the two works are not substantially similar. The Eighth Circuit follows a two-step analysis for substantial similarity. Hartman v. Hallmark Cards, Inc., 833 F.2d 117, 120 (8th Cir.1987). The first step, an objective extrinsic test, analyzes the similarity of ideas. Id. If there is a substantial similarity of ideas, the second step, a subjective intrinsic test, evaluates the similarity of expression based on the response of a reasonable, ordinary person. Id. Summary judgment is appropriate where “reasonable minds could not differ as to the absence of substantial similarity in expression.” Litchfield v. Spielberg, 736 F.2d 1352, 1355-56 (9th Cir.1984); see also Hartman, 833 F.2d at 120 (no error in district court’s “proceeding to the [intrinsic test] to make its determination at summary judgment stage”).

1. Extrinsic Test

The extrinsic test focuses on alleged similarities in the objective details of the works. Litchfield, 736 F.2d at 1356. It requires a comparison of plot, theme, dialogue, mood, pace, setting, and sequence. Id. A court applying the extrinsic test must “filter out and disregard the non-protectible elements in making its substantial similarity determination.” Cavalier v. Random House, Inc., 297 F.3d 815, 822 (9th Cir.2002). The Court decides the extrinsic test as a matter of law, Sid & Marty Krofft Television Prods., Inc. v. McDonald’s Corp., 562 F.2d 1157, 1164 (9th Cir.1977), and may rely on expert testimony to conduct the analysis. Moore, 972 F.2d at 945.

Plot, Theme and Dialogue

Copyright law only protects the expression of ideas, not the ideas themselves. 17 U.S.C. § 102(b). Accordingly, general plots or stock themes are not protected. See Cavalier, 297 F.3d at 823; Williams v. Crichton, 84 F.3d 581, 587-90 (2d Cir.1996). The distinction between an idea and its expression is often difficult to ascertain. In Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d Cir.1930), Judge Learned Hand provided the guiding principle to this inquiry:

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 perhaps be no more than the most general statement of what the [work] is about, and at times might consist only of its title; but there is a point in this series of abstractions where they are no longer protected, since otherwise the [author] could prevent the use of his ‘ideas,’ to which, apart from their expression, his property is never extended.

Id. at 121. In the case at hand, the two works share the similar idea of two male friends traveling on a road trip to visit baseball stadiums. Plaintiffs assert that the two works are substantially similar in that both feature, “adventure-seeking friends who embark on a road trip that has at its heart the love of baseball, as shown through tradition, history and legends associated with the national pastime.” Defendants produced expert testimony detailing numerous examples of road trips in film and literature, and travel books devoted entirely to baseball stadium road trips. Indeed, Plaintiffs’ characterization applies with equal force to the film Field of Dreams. Plaintiffs’ expert did not conduct analysis relevant to the extrinsic test, and he admits his lack of expertise in the areas of visual arts and baseball. The Court thus concludes that the idea of a baseball stadium road trip by automobile is an example of general, unprotected stock theme.

Similarly, scenes a faire, sequences of events that flow necessarily from the choice of a setting or situation, are not protected by copyrights. See Williams, 84 F.3d at 589 (finding common elements of electrified fences, automated tours, dinosaur nurseries and uniformed workers were scenes a faire that flowed from the concept of a dinosaur zoo). In the case at hand, this includes the visuals that flow from the basic idea of a road trip-highway signs, service stops, landmarks for geographic identification, and transportation by automobile. Plaintiffs argue that these “obvious similarities” preclude summary judgment. The Court disagrees and concludes the similarities are nothing more than scenes a faire.

Disregarding the unprotected stock themes and scenes a faire, a review of the plot, theme and dialogue reveals significant dissimilarity between the two works. Plaintiffs’ thirty-minute film is a methodical journey that investigates the economic benefits to a community that builds a downtown baseball stadium. Plaintiffs spend a considerable portion of the film developing this plot by interviewing people involved with the stadiums, fans on the street, and local merchants. The narrative in Twins contains an explicit message as to the community benefits of urban baseball stadiums. On the other hand, the two friends in the Trip ads have a rather minimalist plot of visiting all thirty MLB ballparks in one summer. Their intent is to create “priceless” memories and to have fun. The characters in the Trip ads have little or no dialogue and the story telling depends significantly on the end-titles (e.g., “26 stadiums down, 4 to go: priceless”).

Mood and pace

The mood of Twins earnestly reflects its purpose. Although Plaintiffs occasionally joke around with each other, their trip maintains a practical, orderly attitude commensurate with the goals of CUBM. In contrast, the three-and-one-half minutes of Trip ads moves at a lightning pace. The Trip ads evoke an entirely happy-go-lucky feel, comporting with freedoms associated with summertime youth.

Setting and Sequence

Plaintiffs assert that the geographic sequence is substantially similar between the works. A review of the paths taken in the works reveals no such similarity. Twins starts in Minnesota, goes through Chicago (exterior shot of Wrigley Field), to Cleveland, to Baltimore, to Denver and back to Minnesota. The Trip ads carve a path that starts in Cincinnati, goes to Boston, to Baltimore, to San Francisco, and then to Seattle. Plaintiffs also contend substantial similarities exist because both the Trip ads and Twins use similarly colored Volkswagen mini-buses decorated with stickers to effectuate their road trips. The Court agrees that there is clear similarity between the automobiles used. However, this lone common element does not justify a finding of substantial similarity under the extrinsic test.

2. Intrinsic Test

The intrinsic test is subjective and asks whether an ordinary, reasonable person would find the “total concept and feel of the works” to be substantially similar. Krofft, 562 F.2d at 1167. In the instant case, the concept and feel of the two works are completely different. Whereas the Trip ads are snapshots of carefree youths pursuing a summertime goal, Twins explores the economic benefits of urban baseball fields with the intent to raise money and support for Plaintiffs’ organization, CUBM. No reasonable person could find these two works to be substantially similar.

In short, Plaintiffs have not submitted any evidence to create an issue of fact as to whether Defendants had access to Twins and whether Twins and the Trip ads are substantially similar. Viewing the record in the light most favorable to Plaintiffs, no reasonable trier of fact could find that Defendants copied Twins. The Court therefore grants Defendants’ motion.

III. CONCLUSION

Based on the files, records, and proceedings herein, and for the reasons stated above, IT IS ORDERED THAT:

1. Defendants’ Motion for Summary Judgment [Docket No. 28] is GRANTED.

LET JUDGMENT BE ENTERED ACCORDINGLY. 
      
      . In response to Defendants' motion, Plaintiffs abandon their claim for unjust enrichment. The Court therefore grants Defendants’ motion as to this claim.
     