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CASE 0:05-cv-00987-MJD-RLE Document 40 Filed 08/24/06 Page 1 of 22
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`UNITED STATES DISTRICT COURT
`DISTRICT OF MINNESOTA
`________________________________________________________________
`
`DANIEL G. WOODS,
`
`Plaintiff,
`
`v.
`
`MEMORANDUM OF LAW & ORDER
`Civil File No. 05-987 (MJD/RLE)
`
`PRO VIDEO PRODUCTIONS, INC.,
`TOM LIVINGSTON, and
`JACK LIND,
`
`Defendants.
`________________________________________________________________
`
`Kyle H. Torvinen and Parrish Jones, Knudson Gee Torvinen & Watson, Counsel for
`Plaintiff Daniel G. Woods.
`
`John D. Kelly, Hanft Fride PA, Counsel for Defendants Pro Video Productions, Inc.,
`Tom Livingston, and Jack Lind.
`_________________________________________________________________
`
`I.
`
`INTRODUCTION
`
`This matter is before the Court on Defendants’ Motion for Summary
`
`Judgment. [Docket No. 20] The Court heard oral argument on July 12, 2006.
`
`II.
`
`FACTUAL BACKGROUND
`
`A.
`
`Parties
`
`Plaintiff Daniel Woods and Defendants Tom Livingston and Jack Lind are
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`filmmakers. Defendant Pro Video Productions, Inc. (“Pro Video”), is a company
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`CASE 0:05-cv-00987-MJD-RLE Document 40 Filed 08/24/06 Page 2 of 22
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`that was formed by Livingston and Lind as a partnership in 1982 and incorporated
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`in 1989. Pro Video and Woods worked together on several commercial projects in
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`the 1980’s and early 1990’s, and again during the period 1997 through 2002.
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`B.
`
`Project Fatal Choices/NHTSA Project
`
`In 1997, two representatives from the Minnesota Department of
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`Transportation (“MDOT”) returned from a trip to Australia, where they had
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`viewed an Australian public road safety ad campaign. John Bray, with MDOT,
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`contacted Woods seeking to meet with Woods and Pro Video regarding mimicking
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`high impact public service announcements from Australia.
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`Woods, Livingston, and Lind began planning such a large-scale campaign
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`dubbed Project Fatal Choices. They hoped to create a project that would generate
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`approximately three million dollars in revenue. Woods claims that, after the initial
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`meeting, he began writing scripts and thinking about how to organize the project.
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`He also contacted persons involved in the Australian public service announcement
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`project.
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`Woods and Pro Video soon determined that the State of Minnesota could
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`not fund such a large project and began to seek private funding and financial
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`backing from the National Highway Traffic Safety Administration (“NHTSA”).
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`However, the NHTSA rejected their unsolicited proposal.
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`Pro Video’s lobbyist, Sante Esposito, informed them that the NHTSA might
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`CASE 0:05-cv-00987-MJD-RLE Document 40 Filed 08/24/06 Page 3 of 22
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`entertain a smaller scale research project, so they prepared a new proposal for the
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`NHTSA. By June 2001, Woods had provided a summary of his research to
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`Defendants.
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`Before awarding the contract, the NHTSA required Pro Video to provide a
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`statement of work based on an NHTSA template. Based on that template, Woods
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`created a draft Statement of Work, which he shared with others at Pro Video. On
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`July 12, 2001, Woods e-mailed a draft Statement of Work to Doug Gurin at the
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`NHTSA with the comment, “Please find attached a draft Statement of Work which
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`incorporates your key input of yesterday.” Gurin then revised the draft Statement
`
`of Work “with a heavy hand.”
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`In February 2002, Woods and Livingston traveled to Washington to meet
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`with the NHTSA. After the meeting, which included Woods, Livingston, and
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`Esposito, the NHTSA revised the Statement of Work to reflect the meeting
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`discussion.
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`On August 1, 2002, the NHTSA awarded Pro Video a contract for hire for
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`approximately $180,000 for a research project studying whether the Australian ad
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`campaign caused a significant reduction in highway traffic deaths (“Cooperative
`
`Agreement”). By the time the NHTSA awarded the contract, Pro Video and
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`Woods had a falling out, and Woods was no longer participating in the project.
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`The NHTSA set the boundaries of the research project, including whom to contact
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`in Australia and which interview questions to ask. Livingston, Gudrun Hartig, a
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`Pro Video employee, and Alex Wagenaar, traveled to Australia for three weeks to
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`interview those involved in the Australian ad campaign. The final research report
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`was principally authored by Hartig, based on the interviews and the statistical
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`information that she had gathered in Australia. Pro Video’s final research report
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`for the NHTSA was entitled “Impact of Traffic Safety Paid Advertising Campaigns
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`in Victoria and New South Wales, Australia, 1989-2001” (“Final Report”).
`
`C.
`
`Changing Faces of Aviation/FAA Project
`
`In 1999, Livingston heard Congressman Oberstar give a speech on
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`improvements to the air transportation system. This gave Livingston the idea of
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`creating a documentary on how the air transportation system had become safer
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`and more efficient. The day of the speech, Livingston had lunch with Woods and
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`discussed turning the speech into a possible project. Livingston also discussed the
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`idea with Pro Video lobbyist, Esposito, who was then working for Pro Video on the
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`NHTSA project. The idea for a four-part documentary, dubbed “Changing Face of
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`Aviation,” was submitted to the Federal Aviation Administration (“FAA”) in 2001.
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`
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`After September 11, 2001, the FAA was less interested in funding a
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`substantial documentary. However, it did indicate that it might fund a shorter
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`documentary dealing with efficiency improvements in aviation.
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`In February 2002, Woods and Livingston met with the FAA in Washington,
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`D.C., regarding the smaller scale project. Before the meeting, Livingston and
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`Woods met with Esposito in his office and revised the treatment and production
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`plan. At the meeting with the FAA, Livingston submitted a proposal, including
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`the revised treatment, to the FAA.
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`On April 18, 2002, and again on April 25, 2002, Woods submitted newly
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`revised treatments to the FAA for a twenty-to-thirty-minute video with a budget
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`of $275,000. These revisions reflected comments by the FAA.
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`In July 2002, Pro Video obtained an FAA contract for $275,000 to create a
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`twenty-five-minute documentary on efficiency improvements in the air
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`transportation system. Before the FAA awarded the contract, Pro Video and
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`Woods had a falling out and Woods was no longer involved in the project.
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`The final documentary was based on a treatment created by filmmaker
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`John Hanson, written after the FAA contract was executed. The documentary
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`was filmed in five or six different locations after site visits and interviews.
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`D.
`
`Dispute Between Woods and Pro Video
`
`Throughout the NHTSA and FAA projects, Woods wanted Pro Video to
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`create a business structure with him to carry out the projects. However,
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`Defendants did not want to enter into a business structure until funding was
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`approved and the government contracts were awarded.
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`Woods claims that by November 1, 2000, he had spent over nine hundred
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`hours on the NHTSA and FAA projects. As he worked on the projects, he
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`copyrighted documents representing his background research.
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`On September 30, 2001, Woods wrote a letter to Livingston, as president of
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`Pro Video, stating:
`
`The absence of a well-defined, explicit business agreement as the
`foundation for our work together on Project Fatal Choices and ‘The
`Changing Face of Aviation’ is unacceptable to me.
`
`* * *
`
`This letter constitutes notice to you that my intellectual property, or
`any work based on or deriving from my intellectual property, may not
`be used by Pro Video Productions, Inc., or any other individual or
`entity, for any purpose, without my specific written agreement. I
`have previously provided you with complete sets of the materials
`submitted by me for copyright registration. . . . You will also be
`provided with complete sets of the additional materials that I will
`shortly be submitting for copyright registration.
`
`Woods and Defendants continued to negotiate as they worked together.
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`Despite ongoing negotiations, they could not resolve their dispute. Woods was
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`not compensated for his work on either project.
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`E. Wisconsin Litigation
`
`In 2003, Woods and his company, Clarity Films, Inc., sued Pro Video,
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`Livingston, Lind, Hanson, and Northern Pictures, Inc., in Douglas County Circuit
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`Court in Wisconsin, alleging copyright infringement, breach of contract,
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`misrepresentation, promissory estoppel, and unjust enrichment. The copyright
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`CASE 0:05-cv-00987-MJD-RLE Document 40 Filed 08/24/06 Page 7 of 22
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`infringement claim was dismissed because it was within the exclusive subject
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`matter jurisdiction of the federal court. The remaining state law claims were tried
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`in a bench trial in January 2006. On May 9, 2006, the court issued its decision,
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`finding for Defendants on the breach of contract, misrepresentation, and
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`promissory estoppel. The court found for Woods on his unjust enrichment claim
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`and awarded $56,750 in damages.
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`F.
`
`Procedural Background
`
`Plaintiff Woods filed this Complaint against Defendants Pro Video
`
`Productions, Inc., Livingston, and Lind, on May 23, 2005. He alleges Count I:
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`Copyright Infringement of “Project Fatal Choices,” and Count II: Copyright
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`Infringement of “The Changing Face of Aviation” a/k/a “Aviation Efficiency.” In
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`his Complaint, Woods alleges infringement of hundreds of documents. However,
`
`in the context of this summary judgment motion, Woods focuses on a handful of
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`documents.
`
`In Count I, he focuses on alleged infringement of his July 12, 2001
`
`Statement of Work by the NHTSA Cooperative Agreement and the Final Report.
`
`He also alleges infringement upon a collection of documents found in Exhibit D to
`
`the Affidavit of John D. Kelly.
`
`In Count II, Woods focuses on alleged infringement of his April 25, 2002,
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`Treatment by the final FAA Memorandum Agreement and film.
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`CASE 0:05-cv-00987-MJD-RLE Document 40 Filed 08/24/06 Page 8 of 22
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`III.
`
`DISCUSSION
`
`A.
`
`Standard
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`Summary judgment is appropriate if, viewing all facts in the light most
`
`favorable to the non-moving party, there is no genuine issue as to any material
`
`fact, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ.
`
`P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The party seeking
`
`summary judgment bears the burden of showing that there is no disputed issue of
`
`material fact. Celotex, 477 U.S. at 323. Summary judgment is only appropriate
`
`when “there is no dispute of fact and where there exists only one conclusion.”
`
`Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir. 1994) (citation omitted).
`
`To establish copyright infringement, Woods must prove two elements: “(1)
`
`ownership of a valid copyright, and (2) copying of constituent elements of the
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`work that are original.” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S.
`
`340, 361 (1991) (citation omitted). Woods bears the burden of proving both
`
`elements. Taylor Corp. v. Four Seasons Greetings, LLC, 403 F.3d 958, 962-63 (8th
`
`Cir. 2005).
`
`B.
`
`Project Fatal Choices/NHTSA Project
`
`1. Whether the Woods’s Writings Are Entitled to Copyright
`Protection
`
`Defendants assert that Woods’s claim of copyright infringement based on
`
`Project Fatal Choices cannot survive because his works are not entitled to
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`CASE 0:05-cv-00987-MJD-RLE Document 40 Filed 08/24/06 Page 9 of 22
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`copyright protection. Copyright law protects originality, not effort and “sweat of
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`the brow.” Feist Publ’ns, Inc., 499 U.S. at 359-60. Further, copyright protection
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`does not extend to ideas, concepts, or discoveries. 17 U.S.C. § 102(b). If an idea
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`is recorded at a general level of abstraction, little of that work will be protectable.
`
`Attia v. Soc’y of New York Hosp., 201 F.3d 50, 55 (2d Cir. 1999). However,
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`compilation of fact can entail originality. Harper & Row Publishers, Inc. v. Nation
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`Enters., 471 U.S. 539, 547 (1985). “What is protected is the manner of expression,
`
`the author’s analysis or interpretation of events, the way he structures his material
`
`and marshals facts, his choice of words, and the emphasis he gives to particular
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`developments.” Wainwright Sec., Inc. v. Wall St. Transcript Corp., 558 F.2d 91,
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`95-96 (2d Cir. 1977).
`
`Much of Woods’s work is not protected by copyright. Particular facts that
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`he found regarding the Australian ad campaign, broad, general questions that he
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`posed, such as identifying underlying principles that impacted the results in the
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`Australian ad campaign, and lists of panelists’ credentials are either too abstract or
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`factual to warrant protection. However, Woods’s arrangement of his ideas and his
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`manner of expression could be entitled to copyright protection. The Court’s
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`decision on summary judgment is based on the next question, whether
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`Defendants copied protected aspects of Woods’s work.
`
`2. Whether Defendants Copied Protected Elements of
`Woods’s Works
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`CASE 0:05-cv-00987-MJD-RLE Document 40 Filed 08/24/06 Page 10 of 22
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`a.
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`Introduction
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`Woods may prove copying by either direct evidence of copying or by
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`proving that Defendants had access to the copyrighted works and there is
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`substantial similarity between the copyrighted works and Defendants’ works.
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`Taylor Corp. v. Four Seasons Greetings, LLC, 403 F.3d 958, 964 (8th Cir. 2005).
`
`The parties agree that Defendants had access to Woods’s work. The Court must
`
`determine whether substantial similarity exists.
`
`Determination of substantial similarity involves a two-step analysis.
`There must be substantial similarity not only of the general ideas but
`of the expressions of those ideas as well. First, similarity of ideas is
`analyzed extrinsically, focusing on objective similarities in the details
`of the works. Second, if there is substantial similarity in ideas,
`similarity of expression is evaluated using an intrinsic test depending
`on the response of the ordinary, reasonable person to the forms of
`expression.
`
`Thus, . . . we first determine whether the details of the works contain
`objective similarities, and if they do, then we examine the works to
`ascertain if they are so dissimilar that ordinary, reasonable minds
`[can]not differ as to the absence of substantial similarity in
`expression.
`
`Moore v. Columbia Pictures Indus., Inc., 972 F.2d 939, 945 (8th Cir. 1992)
`
`(citations omitted).
`
`“The discovery of a fact, regardless of the quantum of labor and expense, is
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`simply not the work of an author.” Applied Innovations, Inc. v. Regents of the
`
`Univ. of Minn., 876 F.2d 626, 636 (8th Cir. 1989) (citation omitted). “Because
`
`authors who wish to express ideas in factual works are usually confined to a
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`CASE 0:05-cv-00987-MJD-RLE Document 40 Filed 08/24/06 Page 11 of 22
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`narrow range of expression[,] . . . similarity of expression may have to amount to
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`verbatim reproduction or very close paraphrasing before a factual work will be
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`deemed infringed.” Id. (citation omitted). Additionally, certain elements of a
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`work are not protectable, such as
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`“ideas,” as distinguished from the “expression” of those ideas; facts,
`historical events, or other information over which no individual is
`entitled to claim a monopoly (though original compilations or
`arrangements of facts may be protectable); elements borrowed from
`another author or from the “public domain”; instances in which a
`particular “expression” at issue “merges” with the “idea” being
`expressed; and/or a similar instance in which the form of the
`“expression” is so “standard” in the treatment of a given “idea” that it
`constitutes a scenes a faire, or a “scene which must be done.”
`
`Idema v. Dreamworks, Inc., 162 F. Supp. 2d 1129, 1176-77 (C.D. Cal. 2001)
`
`(footnotes and citation omitted).
`
`Woods’s works contain some objective similarities in detail to the
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`Cooperative Agreement and the Final Report. All address the same issue - the
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`impact of the same Australian public safety campaign on traffic deaths and injuries
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`- and seek to address that issue through research into Australian sources. The
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`Final Report cites to some of the same sources as Woods cites in his works, such as
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`a January 8, 1996 email from Len Quinhivian and Report Number 177 from the
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`Monash University Accident Research Centre. However, general ideas, or facts or
`
`elements borrowed from another source, are not protectable under copyright law.
`
`See Hartman v. Hallmark Cards, Inc., 833 F.2d 117, 121 (8th Cir. 1987)
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`CASE 0:05-cv-00987-MJD-RLE Document 40 Filed 08/24/06 Page 12 of 22
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`(upholding grant of summary judgment when “apparent similarities are either
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`noncopyrightable ideas, scenes a faire, or of an insubstantial nature”).
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`Additionally, the Court concludes that the “works express their ideas so differently
`
`that ordinary, reasonable minds could not find them substantially similar.”
`
`Schoolhouse, Inc. v. Anderson, 275 F.3d 726, 731 (8th Cir. 2002). The Court now
`
`addresses the specific works allegedly infringed.
`
`b.
`
`Statement of Work
`
`The July 12 Statement of Work is not substantially similar to the
`
`Cooperative Agreement or the Final Report. The idea of conducting research on a
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`particular advertising campaign in Australia is not a protectable expression.
`
`As evidence that Woods’s Statement of Work is substantially similar to the
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`final Cooperative Agreement, Woods notes examples such as the following: the
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`July 12, 2001 Statement of Work proposed to “document, analyze, and compare
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`the pros, cons, costs and benefits of the diverse traffic safety campaigns of
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`Australia and possibly other countries between 1989 and 2001.” The Cooperative
`
`Agreement served to “document and determine the benefits and costs of traffic
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`safety advertising campaigns within Victoria, which had a graphic ad campaign,
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`and New South Wales, which did not have a graphic ad campaign, between 1989
`
`and 2001.”
`
`The final Cooperative Agreement does not copy protected language or
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`CASE 0:05-cv-00987-MJD-RLE Document 40 Filed 08/24/06 Page 13 of 22
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`expressive themes from the Statement of Work. The examples of quotations that
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`Woods provides are not substantially similar. The Cooperative Agreement does
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`copy Woods’s general ideas, such as documenting the auto safety campaigns in
`
`Australia during a particular time period, conducting a literature review,
`
`determining the background demographic and political information of Australia,
`
`and interviewing Australian experts. However, copying of ideas, and of the basic
`
`steps to any research project, is not barred by the Copyright Act. Additionally,
`
`some manners of expression and organization are repeated in the final
`
`Cooperative Agreement; however “[s]imilarity in expression cannot be used to
`
`show copyright infringement when there is only one way or only a few ways of
`
`expressing an idea. Numerous courts have cited this principle in denying
`
`copyright infringement claims to prevent an author from monopolizing an idea
`
`merely by copyrighting a few expressions of it.” Schoolhouse, Inc. v. Anderson,
`
`275 F.3d 726, 730 (8th Cir. 2002) (citations omitted). Any NHTSA statement of
`
`work to conduct research regarding the Australian safety campaign will inevitably
`
`contain some similarity of expression. The Court concludes that, whether viewing
`
`the particular phrases cited by Woods or viewing the works as a whole, any
`
`similarity of expression does not begin to approach the type of “verbatim
`
`reproduction or very close paraphrasing [necessary] before a factual work will be
`
`deemed infringed.” Applied Innovations, Inc. v. Regents of the Univ. of Minn.,
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`CASE 0:05-cv-00987-MJD-RLE Document 40 Filed 08/24/06 Page 14 of 22
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`876 F.2d 626, 636 (8th Cir. 1989).
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`Similarly, while the original Statement of Work does pose some of the broad
`
`questions that were answered in the Final Report, the Final Report is an extensive
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`research report, based mostly on independent interview research conducted after
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`Woods’s involvement with the project ceased, expressed in dissimilar language,
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`organization, and format. The Court concludes that the works could not meet
`
`either prong of the substantial similarity test.
`
`c.
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`Other Works by Woods and Final Report
`
`Woods also claims that Defendants incorporated an amalgam of his
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`copyrighted works into their Final Report, “Impact on Traffic Safety Paid
`
`Advertising Campaigns in Victoria and New South Wales, Australia, 1989-2001.”
`
`Woods admits that some of his work researching the proposed project was derived
`
`from other research. However, he notes that derivative work is entitled to
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`copyright protection, although the protection “extends only to the material
`
`contributed by the author of such work, as distinguished from the preexisting
`
`material employed in the work, and does not imply any exclusive right in the
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`preexisting material.” 17 U.S.C. § 103.
`
`Woods claims that the following works were infringement by the Final
`
`Report:
`
`“Proposal Action Step Outline,” a one-page list of general “action
`steps” for approaching research for a study of the Australian public
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`CASE 0:05-cv-00987-MJD-RLE Document 40 Filed 08/24/06 Page 15 of 22
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`service announcements;
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`“Research Objectives,” a one-page outline describing the possible
`research project in general terms;
`
`“Comparison of the Australian Experience and the NHTSA Experience
`in the Use of Television as a Public Education Tool, and the
`Application of Lessons Learned in Project Fatal Choices,” an outline
`summarizing the use of traffic safety ads in Australia, analyzing an
`Australian-type campaign in the United States, and advocating for a
`particular approach to such ads in the United States;
`
`“Briefing paper Outline: Learning from the Australian Traffic Safety
`Experience,” an outline of a little more than two pages summarizing
`the Australian ad campaign and its possible application to the United
`States;
`
`“Project Fatal Choices Design Team Presentation,” a two-page
`document containing panelist information and an outline of a
`presentation regarding the Australian ad campaign and its possible
`application to the United States;
`
`“Draft NSC Presentation Outline,” a one-page outline for a
`presentation regarding the Australian ad campaign and its possible
`application to the United States;
`
`“Au Crash Info Summary,” a compilation of Woods’s research on the
`Australian ad campaign with summaries and citations;
`
`two flow charts depicting an approach to production of an American
`ad campaign based on the Australian campaign;
`
`“Project Fatal Choices: Planning Framework,” an outline of a work
`plan to study to Australian ad campaign and produce a similar
`campaign for the United States;
`
`“Fatal Choices: What Do We Know and Where Do We Go from
`Here?,” an outline regarding the project’s attempts to obtain
`financing, evaluating strengths and weaknesses of the Fatal Choices
`project, and stating project goals; and
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`CASE 0:05-cv-00987-MJD-RLE Document 40 Filed 08/24/06 Page 16 of 22
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`“Thinking Out Loud,” an outline regarding the parameters of the
`project and attempts to build a relationship with the insurance
`industry.
`
`Woods also alleges infringement of “Fatal Choices: A Public/Private Partnership,”
`
`a proposal to create a road safety campaign in Minnesota based on the Australian
`
`campaign; and “Strategy Regarding $125,000 Proposal,” a memorandum
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`regarding funding strategy and a project plan.
`
`These various documents do contain some protected elements, such as their
`
`organization, expressive language, and, in some cases, conclusions. However, no
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`verbatim copying or close paraphrasing of these documents occurred and the
`
`documents, other than the “Au Crash Info Summary,” are mostly comprised on
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`unprotected broad, abstract ideas. The points of comparison that Woods provides
`
`for these works consist of typical questions that any researcher would ask in such
`
`a research project, such as “Identify underlying principals impacting results,”
`
`which were “answered” in the Final Report. These answers represent
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`independent research and dissimilar expression. Similarly, Woods’s organization
`
`of the proposed project found in various outlines and charts is not similar to the
`
`organization found in the Final Report.
`
`“Au Crash Info Summary,” merely lists facts from other sources. Facts that
`
`Woods researched and discovered in the public domain that were used in the
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`Final Report are not protected, but the arrangement and phrasing of those facts
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`CASE 0:05-cv-00987-MJD-RLE Document 40 Filed 08/24/06 Page 17 of 22
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`could be protected. However, the order and expression of these facts in the Final
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`Report is not similar to that in Woods’s documents. Furthermore, the facts and
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`sources used in Woods’s work that also are used in the Final Report are a small
`
`percentage of the facts and sources used in the Final Report, much of which is
`
`based on independent interviews.
`
`Although Defendants used some of the broad ideas and facts contained in
`
`Woods’s documents in the Final Report, they did not use protected elements of his
`
`documents. Further, no reasonable person could find that the works contain
`
`substantially similar expression.
`
`The Court grants Defendants’ motion for summary judgment on Count I of
`
`the Complaint. Because the Court determines that Woods’s works were not
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`copied by Defendants, it does not reach Defendants’ alternative arguments that an
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`implied nonexclusive license existed or that Woods did not author the works
`
`himself.
`
`C.
`
`Changing Faces of Aviation/FAA Project
`
`1. Whether Woods’s Works Are Protected
`
`Defendants assert, as they did in the NHTSA project, that Woods’s April 25,
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`2002 Treatment simply contains unoriginal facts or broad ideas that cannot be
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`protected. While Woods’s Treatment is short and contains broad language, it is
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`not so short or unexpressive as to be entirely excepted from copyright protection.
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`CASE 0:05-cv-00987-MJD-RLE Document 40 Filed 08/24/06 Page 18 of 22
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`The Court must determine whether protected elements of the Treatment were
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`copied.
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`2. Whether Defendants Copied Woods’ Protected Works
`
`a.
`
`Infringement by the Final FAA Documentary
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`Woods asserts that the April 25, 2002 Treatment was infringed by the final
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`Pro Video-FAA documentary; however, he provides no points of comparison
`
`between the documentary and his works and makes no arguments regarding any
`
`particular substantial similarity to his works. The parties have not submitted a
`
`copy of the final documentary to the Court. Additionally, Woods himself testified
`
`that “[t]he important creative elements [from the April 25, 2002 Treatment] were
`
`absent generally from the final film.” (Woods Trial Tr., Ex. F to Kelly Aff., at 17.)
`
`A plaintiff opposing summary judgment “must substantiate allegations with
`
`sufficient probative evidence that would permit a finding in the plaintiff's favor.”
`
`Davidson & Assocs. v. Jung, 422 F.3d 630, 638 (8th Cir. 2005) (citation omitted).
`
`“[I]n order to survive summary judgment, [the plaintiff] must not only
`
`demonstrate access but also must establish a substantial similarity between his
`
`work and the alleged copy. ” Moore v. Columbia Pictures Indus., Inc., 972 F.2d
`
`939, 945 (8th Cir. 1992). See also Frybarger v. Int’l Bus. Machs. Corp., 812 F.2d
`
`525, 528 (9th Cir. 1987) (“Because plaintiff bears the burden of proving that the
`
`works at issue are substantially similar in a copyright infringement case, summary
`
`18
`
`

`
`CASE 0:05-cv-00987-MJD-RLE Document 40 Filed 08/24/06 Page 19 of 22
`
`judgment for defendant is appropriate when plaintiff fails to make a sufficient
`
`showing that the ideas and expressive elements of the works are substantially
`
`similar after defendant has properly identified in a motion for summary judgment
`
`that plaintiff has failed to do so.”) (citations omitted). The Court concludes that
`
`Woods has failed to show a genuine issue of material fact as to the substantial
`
`similarity between his Treatment and the final film.
`
`b.
`
`Infringement by the Memorandum of Agreement
`
`Woods also argues that the FAA contract was obtained through use of his
`
`copyrighted material. He claims that Attachment 1 to the FAA-Pro Video
`
`Memorandum of Agreement, dated July 12, 2002, is copied from a document he
`
`authored and submitted to the FAA entitled “Treatment: Aviation Efficiency
`
`Documentary,” dated April 25, 2002. Woods asserts that similarities include his
`
`suggestions that the video be twenty to thirty minutes long, that it focus on the
`
`inter-connectivity of the aerospace industry combined to make it more efficient,
`
`that it contain images of the National Command Center, that it include a weather
`
`scenario revealing how weather, runway, and air traffic control issues can
`
`combine to create congestion and delay, and that the interactive nature of
`
`congestion be revealed through interviews with members of the aviation
`
`community. Both documents also contain the same “goals” and “issues,” including
`
`instances of identical wording.
`
`19
`
`

`
`CASE 0:05-cv-00987-MJD-RLE Document 40 Filed 08/24/06 Page 20 of 22
`
`The Court concludes that the comparisons that Woods makes between his
`
`April 25 Treatment and the Memorandum of Agreement do not support a viable
`
`copyright claim. The length of the video, for example, cannot be a copyrighted.
`
`Further, the idea of focusing on aviation efficiency, derived from Congressman
`
`Oberstar’s speech, not from Woods’s original expression, makes the identical
`
`elements, such as revealing collaboration and focusing on inter-connectivity and
`
`images of the National Command Center, basic, non-original elements that would
`
`be included in any such documentary on the subject. “[A] copyright offers no
`
`protection to ‘scènes à faire’, i.e., incidents, characters, or settings which are as a
`
`practical matter indispensable, or at least standard, in the treatment of a given
`
`topic.” Kretschmer v. Warner Bros., No. 93 CIV. 1730 (CSH), 1994 WL 259814, at
`
`*7 (S.D.N.Y. June 8, 1994) (citing Hoehling v. Universal City Studios, 618 F.2d
`
`972, 979 (2d Cir. 1980)). For example, “[f]oot chases and the morale problems of
`
`policemen, not to mention the familiar figure of the Irish cop, are venerable and
`
`often recurring themes of police fiction.” Walker v. Time Life Films, Inc., 784 F.2d
`
`44, 50 (2d Cir.1986), cited in Kretschmer, at *7. Similarly, the idea of basing the
`
`video on interviews with members of the aviation community, such as pilots,
`
`passengers, and air traffic controllers, is too broad and unoriginal to be protected.
`
`c.
`
`Infringement by Pro Video’s August 13, 2002
`Treatment and by Pro Video’s October 22, 2002
`Final FAA Treatment and Production Plan
`
`20
`
`

`
`CASE 0:05-cv-00987-MJD-RLE Document 40 Filed 08/24/06 Page 21 of 22
`
`Woods also provides a “Points of Comparison” of his April 25, 2002
`
`Treatment and an August 13, 2002 Treatment and an October 22, 2002
`
`Treatment and Production Plan. The Points of Comparison does not provide the
`
`Court with copies of the August 13, 2002 Treatment or the October 22, 2002
`
`Treatment and Production Plan from which to judge substantial similarity.
`
`Furthermore, the comparisons provided in the Points of Comparison chart cannot
`
`support a finding of substantial similarity. As explained in the previous section,
`
`broad ideas and scenes a faire are not subject to copyright protection.
`
`Thus, the Court grants Defendants’ motion for summary judgment on Count
`
`II of the Complaint.
`
`Because the Court determines that no protected portions of Woods’s work
`
`were copied, it does not need to reach Defendants’ other arguments, such as
`
`whether Woods solely authored his claimed works, whether the NHTSA and FAA,
`
`not Defendants, copied Woods’s work, and whether an implied license to use
`
`Woods’s work existed. As the Court noted at the outset of this Opinion, copyright
`
`law protects originality, not effort and sweat of the brow. Another court has
`
`already determined that Woods is entitled to compensation for the effort and
`
`research that he provided to Defendants in connection with the NHTSA and FAA
`
`projects. However, by using Woods’s efforts, Defendants did not commit
`
`21
`
`

`
`CASE 0:05-cv-00987-MJD-RLE Document 40 Filed 08/24/06 Page 22 of 22
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`copyright infringement.
`
`According, based upon the files, records

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