CITE:  379 F.2d 675
CMON:  June 1967
PLAIN: Frank Morrissey
DEFND: The Procter & Gamble Company
COURT: United States Court of Appeals First Circuit
DATE:  June 28, 1967

Appeal for infringement of copyrighted set of rules.  The United States
District Court for the District Court for the District of Massachusetts,
Andrew A. Caffrey, Judge, 262 F.Supp. 737, entered a summary judgment in
favor of the defendant corporation and the copyright owner appealed.  The
Court of Appeals, Aldrich, Chief Judge, held that examination of matters
embraced in owner's set of rules for sales promotional contest of the
"sweepstakes" type involving social security numbers of the participants,
a contest whose substance was not copyrightable, were so straight-forward
and simple as to require application of principle holding uncopyrightable
a form of expression of uncopyrightable subject matter where there is
available at best only a limited number of forms of expression of
substance of subject matter.  AFFIRMED.

  An idea ("subject matter") with at best only a "limited", "mere handful",
  number of forms of expression, is not copyrightable, because someone
  could control the idea by copyrighting the limited number of forms.

Before ALDRICH, Chief Judge, MCENTEE and COFFIN, Circuit Judges.


This is an appeal from a summary judgment for the defendant.  The plaintiff,
Morrissey, is the copyright owner of a set of rules for a sales promotional
contest of the "sweepstakes" type involving the social security numbers of
the participants.  Plaintiff alleges that the defendant, Procter & Gamble
Company, infringed, by copying, almost precisely, Rule 1.  In its motion
for summary judgment, based upon affidavits and depositions, defendant
denies that plaintiff's Rule 1 is copyrightable material, and denies
access. The district court held for the defendant on both grounds.

Taking the second ground first, the defendant offered affidavits or
depositions of all of its allegedly pertinent employees, all of whom
denied having seen plaintiff's rules. Although the plaintiff, by deposition,
flatly testified that prior to the time the defendant conducted its contest
he had mailed to the defendant his copyrighted rules with an offer to sell,
the court ruled that the defendant had "proved" nonaccess, and stated that
it was "satisfied that no material issue as to access  *  *  *  lurks
 *  *  * [in the record.]"

The court did not explain whether it considered defendant's showing to
have constituted proof overcoming the presumption of receipt arising
from plaintiff's testimony of mailing, or whether it felt there was
an unsatisfied burden on the plaintiff to show that the particularly
responsible employees of the defendant had received his communication.
Either view would have been error. A notice to the defendant at its  
principal office, as this one assertedly was, is proper notice. There is
at least an inference that the letter reached its proper destination. Even
if we assume that if, at the trial of the case, it should be found that
the particular employees of the defendant responsible for the contest were
in fact without knowledge of plaintiff's rules, defendant would be free of
a charge of copying, cf. Pinci v. Twentieth Century-Fox Film Corp., S.D.
N.Y., 1951, 95 F.Supp. 884; Dezendorf v. Twentieth Century-Fox Film Corp.,
S.D.Cal., 1940, 32 F.Supp. 359, aff'd, 9 Cir., 118 F.2d 561, on a motion
for summary judgment a plaintiff should not have to go to the point of
showing that every employee of a corporate defendant received his
notification. Nor can it be said that no issue of fact as to access
"lurks" merely because it seems to the court that plaintiff's own proof
has been satisfactorily contradicted. Nothing is clearer than this on a
motion for summary judgment; if a party has made an evidentiary showing
warrantinb a favorable inference, contradiction cannot eliminate it.
Summary judgment may not be granted where there is the "slightest doubt
as to the facts." Peckham v. Ronrico Corp., 1 Cir., 1948, 171 F.2d 653,
657; Arnstein v. Porter, 2 Cir., 1946, 154 F.2d 464, 468. Defendant's
argument misreads Dressier v. MV Sandpiper, 2 Cir. 1964, 331 F.2d 130.
The presumption arising from mailing remained in the case. {1}

[5] It is true that we have, on rare occasion, held that even though there
is some slight evidence favoring a plaintiff, the evidence contrary may be
so overpowering that a verdict for the plaintiff cannot be permitted, and
judgment must be ordered for the defendant, Dehydrating Process Co. v.
A.O. Smith Corp., 1 Cir., 1961, 292 F .2d 653, cert. den. 368 U.S. 931,
82 S.Ct, 368, 7 L.Ed.2d 194; see Magnat Corp. v. B & B Electroplating Co.,
1 Cir., 1966, 358 F.2d 794. We have never suggested that such a principle
is applicable to a motion for summary judgment, and we do not now. {2}
Cf. Robbins v. Milner Enterprises, Inc., 5 Cir., 1960, 278 F.2d 492,

The second aspect of the case raises a more difficult question. Before
discussing it we recite plaintiff's Rule 1, and defendant's Rule 1, the
italicizing in the latter being ours to note the defendant's variations
or changes.

  (Plaintiff's Rule)

  "1. Entrants should print name, address and social security number on  
  a boxtop, or a plain paper. Entries must be accompanied by boxtop or
  by plain paper on which the name  *  *  *  is copied from any source.
  Official rules are explained on  *  *  *  packages or leaflets obtained
  from dealer. If you do not have a social security number you may use
  the name and number of any member of your immediate family living with
  you. Only the person named on the entry will be deemed an entrant and
  may qualify for prize.

  "Use the correct social security number belonging to the person named
  on entry *  *  *  wrong number will be disqualified."

  (Defendant's Rule)

  "1. Entrants should print name, address and Social Security number on  
  a Tide boxtop, or on [a] plain paper. Entries must be accompanied by
  Tide boxtop (any size) or by plain paper on which the name 'Tide' is
  copied from any source. Official rules are available on Tide Sweepstakes
  packages, or on leaflets at Tide dealers, or you can send a stamped,
  self-addressed envelope to: Tide 'Shopping Fling' Sweepstakes, P.O. Box
  4459, Chicago 77, Illinois.

  "If you do not have a Social Security number, you may Use the name and
  number of any member of your immediate family living with you. Only the
  person named on the entry will be deemed an entrant and may qualify for
  a prize.

  "Use the correct Social Security number, belonging to the person
  named on the entry-wrong numbers will be disqualified."

The district court, following an earlier decision, Gaye v, Gillis, D.Mass.,  
1958, 167 F.Supp. 416, took the position that since the substance of the
contest was not copyrightable, which is unquestionably correct,
Baker v. Selden, 1879, 101 U,S. 99, 25 L.Ed. 841; Affiliated Enterprises
v. Gruber, 1 Cir. 1936, 86 F.2d 958; Chamberlin v, Uris Sales Corp., 2 Cir.,
1945, 150 F.2d 512, and the substance was relatively simple, it must follow
that plaintiff's rule sprung directly from the substance and "contains no
original creative authorship."  262 F.Supp. at 738.  This does not follow.
Copyright attaches to form of expression, and defendant's own proof,
introduced to deluge the court on the issue of access, itself established
that there was more than one way of expressing even this simple substance.
Nor, in view of the almost precise similarity of the two rules, could
defendant successfully invoke the principle of a stringent standard for
showing infringement which some courts apply when the subject matter
involved admits of little variation in form of expression. E. g., Dorsey v.
Old Surety Life Ins. Co., 10 Cir., 1938, 98 F.2d 872, 874, 119 A.L.R. 1250
("a showing of appropriation in the exact form or substantially so.");
Continental Casualty Co. v. Beardsley, 2 Cir., 1958, 253 F.2d 702, 705,
cert. denied, 358 U.S. 816, 79 S.Ct. 25, 3 L.Ed.2d 58 ("a stiff standard
for proof of infringement,").

Nonetheless, we must hold for the defendant. When the uncopyrightable
subject matter is very narrow, so that "the topic necessarily requires",  
Sampson & Murdock Co, v. Seaver-Radford Co., 1 Cir., 1905, 140 F. 539, 541;
cf. Kaplan, An Unhurried View of Copyright, 64-65 (1967), if not only one
form of expression, at best only a limited number, to permit copyrighting
would mean that a party or parties, by copyrighting a mere handful of forms,
could exhaust all possibilities of future use of the substance.  In such
circumstances it does not seem accurate to say that any particular form
of expression comes from the subject matter.  However, it is necessary to
say that the subject matter would be appropriated by permitting the
copyrighting of its expression.  We cannot recognize copyright as a game
of chess in which the public can be checkmated.  Cf. Baker v. Selden, supra.

Upon examination the matters embraced in Rule 1 are so straightforward
and simple that we find this limiting principle to be applicable. 
Furthermore, its operation need not await an attempt to copyright all
possible forms.  It cannot be only the last form of expression which is
to be condemned, as completing defendant's exclusion from the substance.
Rather, in these circumstances, we hold that copyright does not extend
to the subject matter at all, and plaintiff cannot complain even if his
particular expression was deliberately adopted.



{1}  The court did not discuss, nor need we, the additional fact that the
almost exact following of plaintiff's wording and format in an area in
which there is at least some room for maneuverability, might be found of
itself to contradict defendant's denial of access.  Cf. Arnstein v. Porter,

{2}  Defendant seeks to attach weight to thirteen letters introduced
through its witness who testified he had received them from thirteen other
companies in contradiction of plaintiff's testimony that he had sent
copies of his rules to them, as well as to the defendant.  In the first
place, in spite of defendant's elaborate argument, the letters so
introduced were rank hearsay as to the truth of their content, in
contravention to Rule 56's fundamental requirement that the party's
position be sustained by competent and admissible evidence.  Fed.R.Civ.P.
56(e).  But even more elementary, had they been admissible affidavits of
thirteen bishops they could not have varied the principle that issues of
fact are not to be resolved on summary judgment.