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STEPHEN E. POE,
v. ROY TRAYWICK YOUNG, a natural
Before the court is defendant Roy Young's ("Young") motion for
summary judgment (#19) and related motions. Plaintiff Stephen Poe
("Poe") alleges that Young's version of a concordance entitled "Big
Book Concordance," which is an index of every significant word used
in the book entitled "Alcoholics Anonymous" (a.k.a. the "Big
Book"), infringes upon a concordance prepared by Poe. Poe asserts
five claims for relief: negligence, interference with present
contractual relationships, interference with prospective
contractual relationships, copyright infringement, and conversion.
Poe is a Nevada resident who has a copyright on his 1990 book
entitled "A Concordance to Alcoholics Anonymous." Poe claims that
he used the third edition of the Big Book to make his concordance.
Currently, the third edition, first printed in 1976, is the edition
that is being printed. Poe states that he used a complex computer
program to establish his concordance. He maintains the process was
difficult and time consuming. Young, a New York resident, used his
personal computer to make a concordance of the Big Book. Young
made his version available on the Internet in 1997, and shortly
thereafter was contacted by Poe's attorney, who claimed that Young
was infringing on Poe's copyright.
Summary judgment is appropriate where the pleadings,
discovery, and 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). The initial
burden is on the moving party to show the absence of material
factual issue. De Homey v. Bank of America National Trust and
Savings, 879 F.2d 459, 464 (9th Cir. 1989). An issue is genuine
only "if the evidence is such that a reasonable jury could return a
verdict for the non-moving party. Anderson v. Liberty, Inc., 477
U.S. 242, 248-50 (1986). The burden on the moving party defendant
"may be discharged by 'showing'--that is, pointing out to the
district court--that there is an absence of evidence to support the
nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317,
Once the moving party meets its burden, the burden then shifts
to the non-moving party to set forth specific facts demonstrating a
genuine issue for trial. Program Engineering v. Triangle
Productions, 634 F.2d 1188, 1193 (9th Cir. 1980) . A party opposing
a motion for summary judgment must introduce `sufficient evidence
supporting the claimed factual dispute...to require a jury or judge
to resolve the parties' differing versions of the truth at trial.'
A mere scintilla of evidence will not do, for a jury is permitted
to draw only those inferences of which the evidence is reasonably
susceptible; it may not resort to speculation. British Airways
Board v. Boeing Company, 585 F.2d 946, 952 (9th Cir. 1978) (citation
omitted). When considering a motion for summary judgment, the
court must view the facts and inferences drawn therefrom most
favorable to the non-moving party. Baker v. Centennial Ins. Co.,
970 F.2d 660, 662 (9th Cir. 1992)
To succeed on the merits of a copyright infringement
claim, Poe must prove 1) ownership of a valid copyright, and 2)
copying of constituent elements of the work that are original.
Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S.
340, 361 (1991) (citation omitted). The first requirement is not
contested. Poe has a valid copyright. The second requirement,
that there is copying of original material, is dispositive of the
motion for summary judgment. To prove copying, Poe must
demonstrate that Young had access to Poe's concordance and that
Young's concordance is substantially similar to the protectable
expression in Poe's concordance. Apple Computer v. Microsoft Corp.,
35 F.3d 1435, 1442 (9th Cir. 1994).
Poe cannot establish that Young's concordance is substantially
similar to Poe's protectable expression. First, Young contends
that Poe's version is entitled to little or no protection. Poe's
concordance is considered a "compilation" under the Copyright Act
of 1976 because it was created by collecting and assembling
existing data. The scope of protection afforded a compilation is
set forth expressly in § 103 of the Copyright Act and "extends only
to the material contributed by the author of such work,
distinguished from the preexisting material employed in the work,
and does not imply any exclusive right in the preexisting
material." 17 U.S.C. § 103(b). (emphasis added)
Poe actually states in the preface of his concordance that
"All text on every page of the Concordance is pure Third Edition
Big Book text. There are no changes, interpretations, or
modifications whatsoever." Thus, whatever material Poe copied from
the Big Book is not original. The page numbers that he copied are
not original. Merely creating an alphabetical listing of the words
that appear in the Big Book is not original. As the Supreme Court
has stated, alphabetizing names in listings is "an age-old
practice, firmly rooted in the tradition and so commonplace that it
has come to be expected as a matter of course." Feist, 499 U.S. at
363 (listing of names in white pages of telephone book not
original, nor deserving of protection). Therefore, Poe's creation
of listing each word alphabetically and providing the corresponding
page number is not original material deserving of protection. Poe
claims that putting the words in bold typeface in the Big Book was
original expression. However, this does not constitute protectable
expression. Putting the subject word in bold type to set it apart
from the accompanying definition is a standard practice. Moreover,
Poe bolded every single cited word, thus he did not demonstrate
original expression by choice of arrangement.
The only remaining element in examining Poe's concordance is
his word selection. Poe indicated that he included every word
except those that are excluded generally due to their common usage,
such as a, an, and, any, are, as, at, etc. This is not original
material that he contributed that deserves protection.
Accordingly, there appears to be no creativity deserving of
protection in this concordance.1 (emphasis added)
Second, Poe cannot establish that Young substantially copied
the similar words. While Poe excluded words that are most commonly
used in the English language, Young excluded words based on their
frequency and significance in the Big Book. As a result of the
different criteria employed by Young and Poe, their concordance
versions contain many differences in word structure. For example,
Young's version contains the words did, can, any, too, said,
himself, I'm, I've, it's, and that's. The inclusion of words in
Young's version that are not contained in Poe's version suggests
the work was not copied.
Also, there is no evidence of tell-tail signs of copying. For
example, Poe does not point to any common errors between the two
works that would be evidence of copying. In fact, in examining 50
random words (the first and last 25) of Poe's concordance and
comparing it to Young's version, it results in a different number
of references to that word in 18 of the 50 words (36%). These
differences further show that Young did not copy Poe's work.
Because there is no evidence that there is a substantial similarity
between the protectable expression of Poe's version and Young's
1The forward, preface, and acknowledgments and appendices are
original in Poe's version, thus deserving of protection. However,
these aspects of the work were not contained in Young's work, and are
not the subject of this litigation.
version, Poe has failed to show that a material issue of fact
exists upon which he can prove copying of original material. (emp. added)
In addition to the copyright infringement claim, Poe asserts
four state law claims against Young. The Copyright Act provides
that state law claims are preempted if they create "legal or
equitable rights that are equivalent to any of the exclusive rights
within the general scope of copyright as specified by Section 106."
17 U.S.C. § 301(a). A state law claim is preempted by the
Copyright Act unless the state law contains an extra element that
is not included in the federal copyright claim and which changes
the nature of the state law claim so that it is qualitatively
different from a copyright infringement claim. Summit Tool Mfg.
Corp. v. Victor CNC Systems, Inc., 7 F.3d 1434, 1442 (9th Cir.
Poe asserts a claim of negligence. Poe contends that Young
had a duty to refrain from copying the page numbers from Poe's
concordance and had a duty to search the literature to ensure no
copyright violations occurred. In Dielsi v. Falk, 916 F. Supp. 985
(C.D. Cal. 1996), the court held that a negligence claim was
preempted by the Copyright Act where the claim "merely
recharacterizes a copyright infringement claim as one for
negligence." Id. at 992. Here, Poe's negligence claim is
qualitatively similar to Poe's copyright infringement claim, thus
the negligence claim is preempted by the copyright claim.
Poe also asserts a claim for intentional interference with
present contractual relationships in count 2 and intentional
interference with prospective business relationships in count 3.
Claims for intentional interference with contractual relationships
are preempted by the Copyright Act where the alleged interference
is based on copyright infringement. See Worth v. Universal
Pictures, Inc., 5 F. Supp.2d. 816, 822 (C.D. Cal 1997); Motown
Record Corp. v. George A. Hormel & Co., 657 F. Supp. 1236, 1240
(C.D. Cal. 1987). In this case, Poe's claim for intentional
interference with contractual relationships and prospective
business relationships are based upon the act of copyright
infringement. Essentially, the same conduct Poe alleges for the
copyright infringement claim is alleged for the intentional
Finally, Poe asserts a claim of conversion in count 5.
Conversion is also preempted by the Copyright Act if the acts
alleged as to conversion are the same as those underpinning the
copyright claim. See Worth v. Universal Pictures, Inc., 5 F.
Supp.2d. 816, 822-823 (C.D. Cal 1997); Dielsi v. Falk, 916 F. Supp.
985 (C.D. Cal. 1996). In this case, there is nothing in the
conversion claim that would render it qualitatively different from
the copyright infringement claim. The same alleged facts are the
basis for both causes of action.
Therefore, Young's motion for summary judgment (#19) is
granted on all claims (emp. add.). Young's request for attorney's fees and
costs under 17 U.S.C. § 505 is denied. Poe's objection to
defendant's affidavits (#25) is denied. Poe's motion for leave to
supplement (#32) is denied.
It is so ORDERED.
DATED: This 18th day of August, 1999.
RYAA page 2/29/00