Opinion
No. 00-CV-70916
November 17, 2000.
This matter came before the court on Defendants' August 15, 2000 motion to dismiss defendant John Robinson and counts II and III against Fronthne Gear, and Defendant's motion for summary judgment under Fed.R.Civ.P. 56(b). Plaintiff filed her response October 12, 2000; and Defendants filed their reply October 17, 2000. Oral argument was heard October 20, 2000.
Plaintiff filed an action for copyright infringement under the Copyright Act of the United States, Title 17, U.S.C. § 1 et seq. Plaintiff Habiba Burns is an artist who created the painting "Evening Stroll." "Evening Stroll" was published and made available for sale in private exhibitions, art galleries, select displays and to private collectors. Defendant Fronthne Gear is a company engaged in the business of manufacturing and selling clothing, apparel and miscellaneous retail items throughout the United States. Plaintiff claims that Defendant's apparel from their "Positive Culturewear" clothing line carries an unauthorized reproduction of protected expression of characters, mood, message and arrangement from the piece "Evening Stroll."
Defendant John Robinson argues that due to his non-resident status, the Michigan courts lack personal jurisdiction over him. In determining whether it can assert personal jurisdiction over a non-resident defendant, the district court must apply the law of the state in which it sits subject to due process limitations.Mott v. Schelling and Co., 966 F.2d 1453 (6th Cir. 1992) citingCreech v. Roberts, 908 F.2d 75 (6th Cir. 1990).
The district court acquired personal jurisdiction over defendant John Robinson under two provisions of Mich.Comp. Laws Ann. § 6000.705. The statute provides personal jurisdiction for individuals (1) by their transacting any business in the state or (2) the doing or causing an act to be done, or consequences to occur in the state resulting in a tort for purposes of applying the long-arm statute.
Defendant Robinson has admitted coming to Michigan for trade shows at least once a year for the past five years to assist with the sale of merchandise. Furthermore, defendant Robinson acknowledged contacting Michigan customers on behalf of Frontline. Either of these acts is sufficient to qualify as the transaction of any business and bring defendant Robinson under the personal jurisdiction of the district court pursuant to Mich. Comp. Laws Ann. § 600.705(1).
Defendants also argue that Michigan is an improper venue because neither Brian Randolph nor John Robinson resides in Michigan. The proper venue for copyright actions is governed by 28 U.S.C. § 1400, which provides that venue for any civil action arising under any act of Congress relating to copyrights is proper in the district in which the Defendant or his agents reside or may be found.
In copyright infringement actions, a defendant can be found in the state where he is subject to personal jurisdiction under the state's long-arm statute. Lipton v. The Nature Co., 781 F. Supp. 1032 (S.D.N.Y. 1992). Applying the standard set forth in Lipton, Michigan is a proper venue for Plaintiff's claim for copyright infringement against both defendants.
Since this court does have jurisdiction, the court will now consider Defendant's motion for summary judgment. A motion for summary judgment under Rule 56(b) of the Federal Rules of Evidence is appropriate where the moving party demonstrates that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Celotex Corp.v. Catrett, 477 U.S. 317, cert. denied, 484 U.S. 1066 (1988);Anderson v Liberty Lobby, Inc., 477 U.S. 242, (1986). A factual dispute is genuine only if, on the entire of the record, a reasonable jury could resolve the factual matter in favor of the non-moving party. Anderson at 252.
For a plaintiff to succeed in a copyright infringement suit, he must be the owner of a valid copyright and show that the defendant copied the protected material. Feist Publication, Inc.v Rural Telephone Service Company, 111 S.Ct. 1282, 1296 (1991);Robert R. Jones Associates, supra, 858 F.2d at 276. Because direct evidence of unauthorized duplication is rare, a plaintiff may prove that a defendant copied this work by showing that the defendant had access to the material, and that the defendant's work is substantially similar to the protected work. Jones, 858 F.2d at 277.
Summary judgment for defendant is appropriate even if the court concludes that the similarity between the works concerns a shared idea, if the court also concludes that no reasonable jury, properly instructed, could find the works substantially similar.Warner Brother v American Broadcasting Company, 720 F.2d 231, 247 (2d Cir. 1983). The question of whether or not there exists a genuine issue of material fact with respect to the issue of substantial similarity is one of law for the Court. Mihalek Corporaition v. State of Michigan, 638 F. Supp. 9,. 13-14 (E.D. Mich. 1985); aff'd 814 F.2d 290, on rehg, 821 F.2d 327, cert. denied, 484 U.S. 986, 981 F.2d 502, r'hrg denied, 484 U.S. 1083, 981 F.2d 1027.
The court, when faced with a motion for summary judgment, must conduct a side-by-side examination of the two sets of works and determine if a reasonable jury could find substantial similarity.Id. at 13-14. Summary judgment is appropriate where the court concludes as a matter of law that the two works are not substantially similar. Mihalek, supra, 814 F.2d 290, 294 (6th Cir. 1987).
Since the Plaintiff has no direct evidence that defendants copied her work, she must rely on the criteria of Feist Publication and Jones Associates,. Access however, is clear for such a well known work as "Evening Stroll." Proving the works are "substantially similar" is a much more difficult burden for the Plaintiff to carry.
The test for determining-whether there is substantial similarity between Plaintiff's material and defendant's material is whether upon viewing the two works an "reasonable person would conclude that the defendant unlawfully appropriated the plaintiff's protected expression by taking material of substance and value". Wildlife Express Corporation v. Carol Wright Sales, Inc., 18 F.3d 502, 508-509 (7th Cir. 1994). It is true that at first glance the Plaintiff's and Defendant's works seem to have some similarities. However, "a general impression of similarity is not sufficient to make out a case of infringement." Mihalek Corp. v Michigan, 814 F.2d 290 (6th) Cir. 1987). Because ideas and general concepts themselves cannot be copyrighted, 17 U.S.C. § 102;Wickham v Knoxville International Enerny Exposition, Inc., 739 F.2d 1094, 1097 (6th Cir. 1984), it is the court's task to examine the expression of the shared idea for substantial similarity of treatment. Id.
In a close, side by side examination of the two works, it is clear that no reasonable jury could find substantial similarity. Although both works do contain the silhouette of a woman with a young child dressed in traditional African clothing in a rural setting, the similarities stop there. Major differences between the two works include such things as the number and location of the trees, position and appearance of the women and children, pattern of the women's clothing, style of the women's jewelry, and the size and style of the mountains in the background. Plaintiff's and Defendant's works are of a similar scene and in a similar style. However, one is clearly not a copy of the other. Whatever basic similarities exist are very likely a result of the popularity of this general type of art. The plaintiff may have helped popularize this type of art, but that does not give her exclusive rights to it.
It is hereby ORDERED that Defendants' motions to dismiss based on personal jurisdiction and improper venue are DENIED.
It is further ORDERED that Defendant's motion for summary judgment is GRANTED.