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SABIN v. REGARDIE

June 27, 1991

DONALD SABIN, et al., Plaintiffs,
v.
REGARDIE, REGARDIE & BARTOW, et al., Defendants


George H. Revercomb, United States District Judge.


The opinion of the court was delivered by: REVERCOMB

GEORGE H. REVERCOMB, UNITED STATES DISTRICT JUDGE

 The plaintiffs publish a real estate directory for realtors in Florida, The Real Estate Agents' INDEX of New Home Communities ("the INDEX"), and have for almost ten years. For over 20 years the defendants have published the New Homes Guide ("the New Homes Guide" or "Guide") for prospective buyers in the suburban Maryland area. Although the defendants' Guide is not published specifically for use by real estate agents, agents represent one third of the Guide's total circulation.

 The following is a chronology of the events that led to this suit. On June 22, 1989, plaintiff Donald Sabin contacted the defendants to suggest that the two parties meet to discuss a possible joint venture in publishing a guide for real estate agents in the Washington area. The call lasted 2-3 minutes and was the first contact between the parties. The proposed meeting was held on June 23, 1989. The meeting lasted approximately one hour, during which time the defendants expressed interest in Sabin's proposal.

 On June 26, 1989, Sabin called the defendants to acknowledge their general interest in the joint venture and to discuss the possibility of another meeting. The second meeting took place on July 21, 1989 and lasted for two hours. According to the plaintiffs, at the July 21 meeting the parties "essentially agreed" to the joint venture and specifically agreed to the following aspects of their proposed project: *fn1" they agreed to publish a joint directory; their agreement was to be for an infinite duration; the parties would share the costs and profits 50/50; the defendants were to be responsible for marketing/sales, office space and production facilities; and the plaintiffs were to "administer" the guide once in publication. To implement this "agreement", the parties decided that the plaintiffs would produce a pro forma of expenses and revenues for the joint venture and would send the defendants its Index media kit. *fn2" The defendants were not assigned any initial tasks at this meeting.

 On November 3, 1989, Sabin called the defendants and learned that they had decided to publish a Washington, D.C. index without the plaintiffs. Plaintiffs filed this suit on August 9, 1990, *fn3" raising claims of copyright infringement, breach of contract, fraud and quantum meruit. The Court denied the defendants' Motion to Dismiss the plaintiffs' copyright infringement claims on October 4, 1990. The defendants have now moved for summary judgment as to all of the plaintiffs' causes of action. In addition, the plaintiffs have moved to add claims for violation of Section 2 of the Sherman Act; Contract, Combination and Conspiracy in Restraint of Trade; violation of the D.C. Antitrust Act; and tortious interference with plaintiffs' business. Finally, the plaintiffs have filed a Motion to Compel Discovery.

 I. DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

 1. Copyright Infringement

 The Court considered the merits of the plaintiffs' copyright infringement claim in its earlier order denying dismissal of that claim. In its October 4, 1990 Order, the Court refused to dismiss the claim without affording the plaintiffs an opportunity for discovery on the infringement issue. The Court held that the plaintiffs' Guide format was copyrightable but noted that plaintiffs "may be hard-pressed, even through discovery and argument" to establish that the two guides are "substantially similar".

 A high standard for determining "substantial similarity" applies to factual works which, by their nature, contain "a great many unprotectible facts and very little protectible expression of arrangement of those facts." Cooling Sys. and Flexibles, Inc. v. Stuart Radiator, Inc., 777 F.2d 485, 491 (9th Cir. 1985). The Ninth Circuit has held that "the author of a factual work ultimately must show that what has been taken from his expression is something more than what 'must unavoidably be produced by anyone who wishes to use and restate' the facts from the greater part of the work." Id. at 492 (citing Landsberg v. Scrabble Crossword Game Players, Inc., 736 F.2d 485, 489 (9th Cir.), cert. denied, 469 U.S. 1037, 83 L. Ed. 2d 403, 105 S. Ct. 513 (1984)).

 In justifying the plaintiffs' claim of infringement, Sabin claims

 
Defendants' Guide is substantially similar to the INDEX in the following manner: it duplicates my two-page format, it copies my separate treatment of community information and model information, the elements included in the community information section block are similar, (for example both publications include the name, address and telephone number of the community, phone numbers and hours of operation, price range of homes and information about nearby amenities such as schools and shopping), both publications have a separate Co-op Policy block and both publications contain floor plans and renderings of homes.

 The Court finds that in this case, as in Cooling Systems, the alleged similarities between the plaintiffs' INDEX and the defendant's Guide are either "inevitable (and thus non-infringing) or trivial." Id. Therefore, as a matter of law, the Court holds that the defendants are ...


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