TORRUELLA, Chief Judge.
CMM Cable Rep., Inc. ("CMM") appeals from the district court's grant of summary judgment dismissing all but one of its claims for federal copyright, trademark, and trade dress infringement and related state law claims. See CMM Cable Rep., Inc. v. Ocean Coast Properties, Inc., 888 F.Supp. 192 (D.Me.1995). CMM brought suit against Ocean Coast Properties, Inc. (radio station WPOR), several of WPOR's executives, and its graphic design consultant (collectively referred to as "WPOR") alleging infringement of CMM's employment theme-based radio promotional contest by WPOR's similar promotion. The only claim to survive summary judgment — copyright infringement by WPOR's direct mail brochure — was tried to a jury, whose verdict CMM also appeals. Also before us is WPOR's cross-appeal from the district court's denial of summary judgment on CMM's only surviving claim. We affirm the district court's summary judgment and the jury verdict. In so doing, we address CMM's copyright arguments but neither address its trademark nor trade dress arguments
As this is primarily an appeal from the grant of summary judgment, we review the summary judgment materials
CMM produces and markets direct mail promotional campaigns to assist radio stations in preserving and increasing listenership. Operating on a national level, CMM markets its services to radio stations nationwide by sending radio stations sample promotional materials that bear copyright and trademark notifications. Its services are provided on a "market exclusive" basis, as its promotions are only effective if sold to a single radio station in a particular market.
At the center of this litigation are two of CMM's most successful direct mail radio promotions, entitled "Payroll Payoff®" and "Paycheck Payoff®," which it registered as servicemarks in 1991. CMM owns registered copyrights for its promotional materials prepared in connection with these promotions.
Direct mail radio contest promotions having an accumulating cash prize, such as those involved in the instant case, have certain standard, inherent characteristics, which include: (i) inviting a potential listener to enter the promotional contest, (ii) requiring the contestant to listen to the station to determine the right moment to participate, and (iii) requiring the contestant to telephone the station at a designated time. CMM's principal, Nancy Izor ("Izor"), "borrowed" the idea for its payroll promotions from an earlier radio promotion she heard called "Working Women's Wednesday," in which female listeners called in on Wednesday to be placed on the radio station's "payroll" to earn an "hourly wage" (the "WWW promotion" or "WWW"). Izor had in her possession the radio station's typewritten sheet of contest rules for the WWW promotion, of the kind stations make available to participants upon request. In contrast to the WWW promotion, CMM's version runs all week, is open to men as well as women, and the cash prize accumulates hourly. Another difference is that CMM's version involves supporting "printed collateral" materials; the WWW promotion was an on-air promotion only without any accompanying promotional materials. CMM's direct mail brochures are original work products of CMM.
WPOR is a popular country music radio station operating out of Portland, Maine, and serving the greater metropolitan area and eight surrounding counties. In the summer of 1994, WPOR contacted CMM to inquire about running one of CMM's payroll promotions with a view to bolstering its listenership ratings. WPOR admitted to having in its possession, prior to contacting CMM, one of CMM's brochures, identified during the preliminary injunction hearing as the brochure prepared for radio station WKIX in Punta Gorda, Florida (the "KIX brochure"). CMM declined to license its promotion to WPOR, out of loyalty to one of WPOR's competitors in the Portland, Maine, market, and also informed WPOR of its copyrights and trademarks for its payroll promotions. After being informed by its independent media consultant, McVay Media Consultants ("McVay Media"), that payroll-type games were not original to or conceived by CMM, WPOR decided to create its own promotion based upon the employment analogy of earning an "hourly wage." WPOR's promotion, entitled "Payday Contest," involved a direct mail brochure as well as various supporting materials, consisting of newspaper and television advertisements, faxes and on-air script.
Competing against other local radio stations for listeners in the Portland-based market, WPOR ran its promotion from late September through December 14, 1994, during a period known in the radio industry as the fall "sweeps period," when the rating firm Arbitron measures the listenership share of each station in the Portland market. Despite running the Payday Contest, WPOR's listenership in the fall 1994 sweeps period declined from its previous levels. CMM received two phone calls from WPOR's competitors inquiring whether WPOR's promotion was produced by CMM.
WPOR's Payday Contest brochure was designed and produced by Graphics North, Inc. ("Graphics North"). Before it was designed, WPOR gave Graphics North's James Spizuoco
As the district court noted, a comparison
CMM Cable Rep., 888 F.Supp. at 196 (internal record citations omitted). In addition, on the detachable entry form, which requests the same standard information (name, address, telephone number and birthday), CMM's brochure reads: "P.S. Make copies for friends and co-workers. They can listen and win, too! Save postage and enter faster ... FAX entries to (fax number)." WPOR's analogue reads: "P.S. Feel free to make copies for your friends and neighbors so they have a chance to listen and win too!"
A comparison also reveals differences between the two brochures, including typestyle, colors, and certain layout elements. CMM's KIX brochure uses a cowboy boot and lariat motif with the boot overflowing with dollar bills while WPOR's uses a time clock. The text on the front page above the grand prize also differs in accordance with their different underlying motifs: while CMM's reads "[r]ound up your share of over (grand prize)," WPOR's reads "[i]t's time to punch in for your share of more than (grand prize)." In addition to dissimilar layouts, the entry forms request different information: CMM's includes two separate boxes requesting information regarding the listener's home address as well as employment while WPOR's does not include any address boxes and does not request employment information. Also unlike CMM's brochure, WPOR provides six little boxes to be checked in response to the statement: "Here's when I'm most likely to be listening to [WPOR]." The entry forms also differ in that CMM refers to it as a "time card" while WPOR refers to it simply
On October 3, 1994, CMM filed its complaint seeking damages and injunctive relief against WPOR, claiming infringement of CMM's copyrights, trademarks, and trade dress in violation of federal law, and making similar state law claims. After three days of hearings, the district court granted a preliminary injunction against WPOR's use of its Payday Contest brochure,
Prior to trial, on March 13, 1995, WPOR moved for summary judgment on all of CMM's claims. With respect to CMM's copyright claims, WPOR moved for summary judgment on the grounds that the elements allegedly infringed — the radio promotion itself, the employment metaphor, the employment language and the promotion's instructions — were unprotectable for a variety of reasons. On June 1, 1995, the district court entered its amended order on WPOR's motion for summary judgment, granting summary judgment in favor of WPOR on all counts of CMM's complaint, except for the claim for copyright infringement relating to the Payday Contest brochure. See CMM Cable Rep., 888 F.Supp. at 203.
As in its preliminary injunction decision, the district court based its copyright analysis in its summary judgment decision only upon the KIX brochure as it was the only brochure to which WPOR had admitted access and upon which CMM ultimately based its copyright infringement claim. Specifically, the district court held that "[g]iven the striking similarities in the two brochures, CMM easily [met] its summary judgment burden of showing that there is a triable issue of copying."
With respect to CMM's trademark claims, the district court applied this Circuit's eight-factor confusion test, see 15 U.S.C. § 1114(1)(a); Boston Athletic Ass'n v. Sullivan, 867 F.2d 22, 29 (1st Cir.1989), and concluded that no reasonable jury could find a likelihood of confusion based on the facts presented. CMM Cable Rep., 888 F.Supp. at 202.
CMM subsequently moved for reconsideration of the summary judgment, which was denied. WPOR's alleged infringement of four of CMM's brochures was tried to a jury on July 18-21, 1995.
Before us then is CMM's appeal of the district court's June 1, 1995, grant of summary judgment in WPOR's favor, its June 23, 1995, denial of CMM's motion for reconsideration, the jury verdict and the court's August 17, 1995, final judgment rendered thereon disposing of all remaining issues. Also before us is WPOR's cross-appeal from the district court's holding in its grant of summary judgment that "the employment metaphor is protectable expression ... [and] that the use of employment-related terms and images in the various tangible works associated with CMM's promotions is protectable expression." Id. at 197.
The district court had jurisdiction by virtue of 15 U.S.C. §§ 1121 and 1125, 28 U.S.C. §§ 1331 and 1338(a), 28 U.S.C. §§ 1332(a) and 1338(b), and the doctrine of pendent jurisdiction. We have jurisdiction pursuant to 28 U.S.C. § 1291.
I. SUMMARY JUDGMENT — COPYRIGHT INFRINGEMENT
CMM contends that the district court improperly granted WPOR's motion for summary judgment on its copyright infringement claim with respect to all of WPOR's Payday Contest materials, except the brochure.
A. Standard of Review
We review the district court's grant of motion for summary judgment de novo, according no deference to the district court's decision. Henley Drilling Co. v. McGee, 36 F.3d 143, 144 (1st Cir.1994); Sheinkopf v. Stone, 927 F.2d 1259, 1262 (1st Cir.1991). Summary judgment is appropriate when "`the pleadings, depositions, answers to interrogatories, and admissions on file, together
B. The Legal Framework
To establish copyright infringement, a plaintiff must prove (i) ownership of a valid copyright, and (ii) copying of constituent elements of the work that are original. Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 1295-96, 113 L.Ed.2d 358 (1991); Lotus Dev. Corp. v. Borland Int'l, Inc., 49 F.3d 807, 813 (1st Cir.1995) (collecting cases), aff'd, ___ U.S. ___, 116 S.Ct. 804, 133 L.Ed.2d 610 (1996); Concrete Machinery, 843 F.2d at 605; 3 Nimmer § 13.01, at 13-5 to 13-6. To show ownership of a valid copyright and thus satisfy the first prong under Feist, a plaintiff must prove that the work as a whole is original and that the plaintiff complied with applicable statutory formalities. Id.
Once the plaintiff produces a certificate of copyright, which constitutes prima facie evidence of copyrightability in judicial proceedings, the burden shifts to the defendant to demonstrate why the claim of copyright is invalid. See 17 U.S.C. § 410(c); Lotus, 49 F.3d at 813; Folio Impressions, Inc. v. Byer California, 937 F.2d 759, 763 (2d Cir.1991). "At this juncture, it is incumbent upon a putative infringer to establish that the work in which copyright is claimed is unprotectable (for lack of originality) or, more specifically, to prove that the portion of the copyrighted work actually taken is unworthy of copyright protection." Bateman v. Mnemonics, Inc., 79 F.3d 1532, 1541 (11th Cir. 1996). Upon defendant's proof of lack of originality by plaintiff through evidence that the plaintiff copied from prior works, the burden shifts back to the plaintiff to prove originality. See, e.g., Masquerade Novelty, Inc. v. Unique Industries, Inc., 912 F.2d 663, 667 (3d Cir.1990); Midway Mfg. Co. v. Bandai-America, Inc., 546 F.Supp. 125, 140 (D.N.J.1982); Nimmer, § 12.11[B] at 165-67. "The burden on the defendant to rebut the presumption varies depending on the issue bearing on the validity of the copyright. Where, for example, the issue is whether the copyrighted article is `original,' the presumption will not be overcome unless the defendant offers proof that the plaintiff's product was copied from other works or similarly probative evidence as to originality." Masquerade Novelty, 912 F.2d at 668-69; see Nimmer, § 12.11[B], at 165-67.
To show actionable copying and thereby satisfy Feist's second prong, "a plaintiff must first prove that the alleged infringer copied plaintiff's copyrighted work as a factual matter; to do this, he or she may either present direct evidence of factual copying or, if that is unavailable, evidence that the alleged infringer had access to the copyrighted work and that the offending and copyrighted works are so similar that the court may infer that there was factual copying (i.e., probative similarity)." Lotus Development, 49 F.3d at 813. Next, a plaintiff must "prove that the copying of copyrighted material was so extensive that it rendered the offending and copyrighted works substantially similar." Id. "Even if both showings are made, however, the trier of fact may nonetheless find no copying if the defendant shows independent creation." Grubb, 88 F.3d at 3.
The crux of this appeal stems from WPOR's arguments below that CMM's brochure is unprotectable for lack of originality and/or that the "heart" of CMM's Payroll Payoff® which WPOR allegedly infringed is unworthy of copyright protection. See, e.g., Bateman, 79 F.3d at 1541. As we noted above, the district court agreed with most of WPOR's arguments when it dismissed all of CMM's claims except its claim that WPOR infringed its brochures. See CMM Cable Rep., 888 F.Supp. at 197-98. On appeal,
We address each in turn, beginning with the last, as we review de novo whether CMM "escape[s] the swing of the summary judgment axe," Mack v. Great Atlantic and Pacific Tea Co., Inc., 871 F.2d 179, 181 (1st Cir.1989), keeping in mind that CMM has the burden of proving that a genuine issue of material fact exists that would preclude judgment as a matter of law.
i. The District Court's "Dissection Analysis"
CMM first states in a footnote that the district court erred when it applied a "dissection analysis" of protected and unprotected elements which, while logically used in compilation cases, was inappropriate here. See Lotus Development, 49 F.3d at 812 (requiring a showing of "constituent elements of the work that are original"). Then, in its reply brief, CMM adds that, because the brochures and, by extension, the supporting materials, combine both fact and fiction, under both Feist and Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985), "even if a direct mail brochure is deemed to have factual elements ... WPOR was obligated to disseminate those facts in a manner which did not impede the most expressive elements of CMM's work — its text, its layout and its `heart'." CMM's Reply Brief, p. 16. Because the brochure design and copy constituted the "heart" of CMM's work, and because its inability to sell it in the Portland market diminished its copyright value, CMM concludes, copyright infringement occurred through WPOR's brochure and, by extension, its supporting materials.
As an initial matter, CMM seems to be making two distinct arguments. The first faults the "dissection" of the copyrighted and accused works in order to identify protectable elements such that the court might determine as a matter of law whether or not the alleged infringer copied protected elements. The second seems to urge us to find copyright infringement on the ground of "unfair use" within the meaning of copyright law. See 17 U.S.C. § 107; Harper & Row, 471 U.S. at 547 n. 2, 105 S.Ct. at 2223 n. 2. We address only the first, finding the second waived to the extent that it can be interpreted as advancing a fair use argument: CMM "is not entitled to raise arguments on appeal that it failed to present to the district court." Equine Technologies, Inc. v. Equitechnology, Inc., 68 F.3d 542, 546 (1st Cir.1995) (citing cases).
As to CMM's first argument, we simply do not agree that the district court's "dissection analysis" vitiates the letter and intent of copyright law in this case. Rather, it comports with a key tenet of copyright law: "[i]nfringement is shown by a substantial similarity of protectible expression, not just an overall similarity between the works." 3 Nimmer § 13.03[F], at 13-124 (footnotes omitted). Indeed, we note that the Copyright Act itself seems to mandate the "dissection" of works into copyrightable and uncopyrightable elements. See, e.g., 17 U.S.C. § 103(b) (1995) (providing that copyright in compilation or derivative work extends only to material contributed by author as distinguished from preexisting material). In other words, "[e]ven when [as here] extended similarity exists between [the works] when taken as a whole, the analysis is not finished. To the extent that such similarity inheres in ideas, which are by definition unprotected, or
With this in mind, the district court's alleged application of the "dissection analysis" can be understood thus:
Concrete Machinery, 843 F.2d at 608-09 (concrete statues and ornamental articles); see Lotus Development, 49 F.3d at 813 (computer program).
The foregoing notwithstanding, we certainly recognize the potential "danger ... that courts ... will so `dissect' the work as to classify all its elements as unprotectable ... [thereby possibly] blind[ing it] to the expressiveness of their ensemble." Jane C. Ginsburg, Four Reasons and a Paradox: The Manifest Superiority of Copyright over Sui Generis Protection of Computer Software, 94 Colum.L.Rev. 2259, 2561 (1994) (noting that when courts distinguish public domain "idea" from protected "expression" this danger is not limited to computer software); cf. Knitwaves, Inc. v. Lollytogs Ltd., 71 F.3d 996, 1002 (2d Cir.1995) (noting that dissection analysis, extended to its logical conclusion when determining work's copyrightability, might result in conclusion of no originality). We do not think, however, that this danger is present in the instant case: at both the preliminary injunction and summary judgment stages, the district court "ke[pt] sight of the [brochure] as a whole," Ginsburg, 94 Colum.L.Rev. at 2561, recognized it was undisputedly an "original work of CMM," focused on the "striking similarities" between the parties' brochures, and permitted the infringement question to go to the jury, despite concluding that most — if not all of the text — consisted of uncopyrightable elements. See CMM Cable Rep., 888 F.Supp. at 197. Furthermore, as we discuss below, we do not think that the lower court's approach resulted in the supporting materials being unfairly taken away from the jury or necessarily led to an inconsistent jury verdict.
Finally, as we view this case, because the parties do not dispute the validity of CMM's copyrights in its brochures or otherwise appeal from the jury's verdict so finding, resolution of this appeal essentially turns on the infringement issue of whether WPOR's alleged copying was of protected elements and, more specifically, of any "original contributions" by CMM. At its core, what drives CMM's appeal is the district court's conclusion that the employment metaphor and CMM's expression thereof — the fictional element of "Payroll Payoff"® — was not original within the meaning of copyright law. This conclusion resulted in there being very few, if any, copyrightable elements beyond graphics, selection and/or arrangement, upon which the jury could base a verdict for copyright infringement. In turn, the "dissection analysis" undercut, as we discuss below, CMM's copyright infringement claim regarding WPOR's supporting materials.
ii. CMM's Employment Metaphor & Expression Originality: Waiver
A threshold issue is whether, as WPOR maintains, CMM has waived this argument. WPOR asserts that to the extent that CMM argues that it is appealing the district court's ruling that the employment theme was not protected by copyright law due to a lack of originality, CMM has waived its right to appeal this issue by its failure to object to the court's jury instructions on this point: "there is no copyrightable interest in ... the work or employment metaphor." WPOR argues that an appeal of a prior determination of the trial court that is repeated in the court's instructions to the jury is, in essence, a revisiting of the point and requires an
Originality: The Law and The District Court's Decision
Before addressing CMM's arguments, we review the applicable law and the district court's opinion. As the district court noted, the Supreme Court has made clear that
Feist, 499 U.S. at 345, 111 S.Ct. at 1287. As CMM correctly points out, the threshold of creativity within the meaning of the copyright statute is very slight:
Id. (emphasis added). Furthermore, "copyright protection may extend only to those components of a work that are original to the author..... [I]f the selection and arrangement are original, these elements of the work are eligible for copyright protection." Id. at 348-49, 111 S.Ct. at 1289 (internal citations omitted). What is protectible then is the "author's original contributions," id. at 350, 111 S.Ct. at 1290. "No matter how original the [contribution], however, the [unprotectable elements] themselves do not become original through association." Id. at 349, 111 S.Ct. at 1289.
Despite this low threshold, the district court concluded that neither the employment metaphor itself nor CMM's expression of it were "original" within the meaning of copyright law and, thus, that neither were copyrightable. As to the employment metaphor itself, the district court concluded that it was not an original contribution of CMM, because Izor, the "creator" of CMM's payroll games, testified during the hearing on the preliminary injunction that the employment concept originated from WWW. As to CMM's expression of the employment metaphor, the district court rejected CMM's argument that Izor added a sufficient modicum of originality by expanding the promotion to include both sexes, to run all week (as opposed to only Wednesdays) and to add a grand prize. According to the district court, "these `original' contributions do not extend or vary the employment metaphor; they simply expand the operating scope of the promotion." CMM Cable Rep., 888 F.Supp. at 198. In addition, the district court concluded that these contributions lacked the minimal quantum of creativity required for copyright, reasoning that expanding the promotion to include men and to run for five days "is of the same magnitude as the geographic selection and alphabetic arrangement of telephone numbers in Feist." Id. at 198 (citing Feist, 499 U.S. at 363, 111 S.Ct. at 1296-97). In reaching its conclusion it also noted that CMM admitted that radio promotions generally run five days a week and are open to men and women.
With this in mind, we turn now to CMM's arguments.
Originality: A Jury Question?
CMM first argues that the district court erred by ruling as a matter of law on the
While we do not dispute that the question of originality can be a question of fact for the jury, it is not necessarily so. Feist itself makes this clear. There, the Supreme Court decided the question of originality as a matter of law when it held that the white page listings in a telephone directory were not entitled to copyright protection because they lacked the requisite originality. Feist, 499 U.S. at 364, 111 S.Ct. at 1297; see, e.g., American Dental Assoc. v. Delta Dental Plans Assoc., No. 92 C 5909, 1996 WL 224494, at *17 n. 2 (N.D.Ill.1996) (noting that "[w]hether a work is original is treated by some courts as a question of fact and others as a question of law"). We reject CMM's first claim of error, because courts clearly may determine the question of originality and, in turn, copyrightability so long as they do so in accord with the familiar rules governing summary judgment: where there are no genuine issues of material fact as to the originality of the work, such that no reasonable trier-of-fact could find originality, then the movant is entitled to judgment as a matter of law. See, e.g., Superior Form Builders, Inc. v. Dan Chase Taxidermy Supply Co., Inc., 74 F.3d 488, 495 (4th Cir.) (finding no reversible error in court's instruction that "jury need not concern themselves with [question of copyrightability]" given court's ruling as a matter of law that works were "original" and, thus, subject to copyright protection), cert. denied, ___ U.S. ___, 117 S.Ct. 53, ___ L.Ed.2d ___ (1996); Mid America Title Co. v. Kirk, 867 F.Supp. 673, 681 (N.D.Ill.1994), aff'd, 59 F.3d 719 (7th Cir.), cert. denied, ___ U.S. ___, 116 S.Ct. 520, 133 L.Ed.2d 428 (1995); Magic Marketing, Inc. v. Mailing Services of Pittsburgh, Inc., 634 F.Supp. 769, 771-72 (W.D.Pa.1986) (noting that issue of copyrightability is typically resolved by a motion for summary judgment). Indeed, we note that in North Coast, relied upon by CMM, the Ninth Circuit noted that it "has not hesitated in granting summary judgment where no reasonable trier-of-fact could find substantial similarity." 972 F.2d at 1034.
Originality: Is CMM's Expression Original?
On appeal, CMM does not dispute that it "borrowed" the employment metaphor, but instead insists that the district court erred in concluding that the employment metaphor itself and its expression thereof was not original within the meaning of copyright law. It essentially advances two arguments: (i) the district court misapplied the copyright concept of originality, imposing instead the higher patent-derived standard of novelty; and (ii) it failed to focus on the "true differences" between WWW and Payroll Payoff®, maintaining that the features contributed by CMM went far beyond the full week, both sexes, and grand prize features. According to CMM, it meets the low originality threshold because "Izor['s] expan[sion of] the employment phraseology she heard ..., translat[ion of] the idea graphically and independent creat[ion of] employment images such as the time clock and newspaper classified ads" cannot be considered trivial additions, especially when coupled with other standard radio direct mail features never previously used together in one campaign. CMM's Brief, pp. 22-23. Finally, it also claims that whether payroll campaigns were
At the outset, we dismiss CMM's claim that the district court imposed the patent-derived standard of novelty. As we noted above, the district court set forth the correct applicable law, see CMM Cable Rep., 888 F.Supp. at 197-98, and, as we discuss, it did not err in its analysis.
That said, we turn first to the originality of the employment metaphor itself. Upon de novo review, we conclude that, by CMM's own admission, the similarity between the two promotions' employment concept — the use of the metaphor of earning an hourly wage — was, to borrow from Feist, not fortuitous but, rather, the result of copying. See Feist, 499 U.S. at 345, 111 S.Ct. at 1287. Indeed, not only does CMM concede that it "borrowed" the employment metaphor from WWW, it also concedes in its Statement of Disputed Facts that the WWW campaign used the employment phraseology to "get on the clock" which it also uses and claims WPOR infringed. Because "copyright protection may extend only to those components of a work that are original to the author," Feist, 499 U.S. at 348, 111 S.Ct. at 1289, we agree with the district court that the employment metaphor itself does not enjoy copyright protection as it was not an original contribution of CMM within the meaning of copyright law.
In so concluding, we do not dispute that, as CMM points out, "the mere borrowing of elements from previous works will not defeat copyrightability as long as the author has devised a new version of the work or has otherwise rearranged or transformed it so as to have made an original contribution." Towle Mfg. Co. v. Godinger Silver Art Co., Ltd., 612 F.Supp. 986, 992 (S.D.N.Y.1985) (citing 1 Nimmer § 3.01, at 3-10 (1985 ed.)); cf. Eden Toys, Inc. v. Florelee Undergarment Co., Inc., 697 F.2d 27, 35 (2d Cir.1982) (holding that variations, although minor, to preexisting copyrighted sketch of "Paddington Bear" were "original"). We also do not dispute that CMM, as it insists, devised its own embellished version of a payroll contest using an employment metaphor. However, as we discuss below, CMM's contributions building upon the borrowed employment metaphor are either insufficient to satisfy the minimal requirements of originality or are unprotectable elements.
Before explaining why we reach this conclusion, we add this: Because we affirm the district court's conclusion that the employment metaphor itself was not original to CMM and, thus, not copyrightable, we accept WPOR's invitation not to address its cross-appeal from the district court's conclusion that the "employment metaphor is protectable expression ... [and] that the use of the employment related terms and images in the various tangible works associated with CMM's promotions is protectable expression." CMM Cable Rep, 888 F.Supp. at 197. We prefer to do what the district court did at the preliminary injunction stage: decline to answer the "more difficult question" — determining whether copyright protection extends to the employment metaphor for the idea of an accumulating jackpot radio promotional sweepstakes on the basis that the metaphorical terminology of employment is protected expression — because we conclude that, even if protectible expression, it is not copyrightable here due to CMM's failure to meet the originality prong required for copyright protection. See CMM Cable Rep., 879 F.Supp. at 135. By not addressing WPOR's cross-appeal, we neither address its merits nor comment on the correctness of the district court's conclusion nor, for that matter, the similar determination made by an earlier court. See CMM Cable Rep., Inc., 888 F.Supp. at 197; CMM Cable Rep., Inc., 870 F.Supp. at 633-34 (same).
We turn next to the originality of CMM's contributions expanding the scope of the WWW promotion. Upon de novo review, we affirm the district court's conclusion that CMM's expansion of the promotion's scope does not constitute the modicum of originality necessary for copyright protection, finding no error in its reasoning. We note that, even assuming, as we read the record most favorably to CMM, that there were few, if any, prior payroll campaigns and even assuming that CMM's expansive contributions were
Finally, we turn to the originality of CMM's alleged expansion of the employment phraseology, which, as CMM explains, is part of the "heart" of its expression which WPOR allegedly infringed. In response to WPOR's observation that CMM fails to point to any record evidence regarding what specific employment phraseology was original to Izor as opposed to having been "lifted" from the WWW promotion, CMM insists it had nothing tangible to copy when it created Payroll Payoff®.
It is axiomatic that copyright law denies protection to "fragmentary words and phrases" and to "forms of expression dictated solely at functional considerations" on the grounds that these materials do not exhibit the minimal level of creativity necessary to warrant copyright protection. 1 Nimmer, 2.01[B], at 2-13-18; see, e.g., Arica Inst., Inc. v. Palmer, 970 F.2d 1067, 1072-73 (2d Cir. 1992) (noting that single words and short phrases in copyrighted text are not copyrightable); Magic Marketing, 634 F.Supp. at 771 (noting that phrases describing envelope contents and instructing recipients are unprotectable); Alberto-Culver Co. v. Andrea Dumon, Inc., 466 F.2d 705, 711 (7th Cir. 1972) (holding that "most personal sort of deodorant" is short phrase or expression, not an "appreciable amount of text," and thus not
Here, the phraseology about which CMM claims infringement involves cliched language that is typically used to convey the idea of employment: "if you're still `on the clock' at quitting time" and "clock in and make $50 an hour." In addition, CMM's "call in, clock in, and win" is nothing less than a slogan as it is clearly "a phrase expressing the aims or nature of an enterprise ... [and/or] a catch phrase used in advertising or promotion." Webster's II New Riverside Univ. Dictionary (1988). Even viewing the text as a whole, as CMM urges, it simply does not involve an appreciable amount of text or the minimal level of creativity necessary to warrant copyright protection; indeed, this is particularly true given CMM's concession that the phraseology to "get on the clock" was used in the WWW promotion. Furthermore, we cannot disregard the fact that, while perhaps not "dictated solely at functional considerations," the phraseology is nonetheless inescapably functional in that it tells potential participants how to participate and how the contest works; as such, it essentially communicates the promotion's "rules of the game". In addition, we are also cognizant that the limited space on, and costs of producing, the brochures favor (presumably) simple, catchy or hackneyed phrases. Accordingly, we conclude that the phraseology used by CMM in its expression of the employment metaphor, which itself was unoriginal to CMM in the first instance, is not protectible expression. See, e.g., Magic Marketing, 634 F.Supp. at 771 (noting that even "colorful descriptions, such as advertising slogans, are not accorded copyright protection").
In reaching this conclusion, we simply disagree with CMM that the foregoing cases do not support this result. While certainly distinguishable on their facts, these cases nonetheless stand for, or otherwise support, the proposition that copyright protection simply does not extend to "words and short phrases, such as names, titles, and slogans." 37 C.F.R. § 202.1(a) (1994). That said, we understand — and do not dispute — CMM's point that it has not claimed copyright protection in the phraseology alone but rather in its brochure as a whole. This, however, does not alter our conclusion. Alberto-Culver is particularly instructive. Just as CMM alleges that WPOR copied "the entire essence" or "heart" of CMM's brochures, in Alberto-Culver the plaintiff similarly alleged that the defendant copied the "same general image and thought." Alberto-Culver, 466 F.2d at 708. More important is the court's response to what it considered to be plaintiff's "strongest case[:] ... that [its] label copyright as a whole was infringed." Alberto-Culver, 466 F.2d at 710. While the court affirmed the district court's conclusion that "the label as a whole — as a pictorial composition — is copyrightable," id. it nonetheless reversed on the ground that the phrase "most personal sort of deodorant" is uncopyrightable as, inter alia, it is "a `short phrase or expression' ... hardly qualify[ing] as an `appreciable amount of original text.'" Id. (quoting Kitchens of Sara Lee, Inc. v. Nifty Foods Corp., 266 F.2d 541, 544 (2d Cir.1959)). Similarly, here, although CMM may have obtained a copyright in the brochures as a whole, the fact remains that copyright protection does not extend to its ordinary employment phraseology which lacks the minimal level of originality.
We also reach this conclusion despite CMM's implicit assertion, which we in no way doubt, that CMM and Izor invested a
iii. Supporting Materials
CMM argues that a side-by-side comparison of WPOR's supporting media — which consists of a newspaper ad, faxes, television advertisements, and on-air script — with CMM's brochures reveals that "direct plagiarism of the heart of CMM's work occurred." CMM's Reply Brief, at 9. It further contends that, "because the supporting media parroted the WPOR brochure which the district court found likely to be a direct copy, the entry of summary judgment with respect to this media was incongruous error." Id. Upon de novo review, we affirm the district court's grant of summary judgment on WPOR's supporting materials.
As an initial matter, we note that, contrary to CMM's characterization, the district court did not "find" that WPOR's brochure was likely to be a direct copy; rather, it described their "striking similarities" and subsequently made a sua sponte observation that "summary judgment could also — but not quite — go in CMM's favor." CMM Cable Rep., 888 F.Supp. at 197. Not only is this observation not "controlling,"
Exposed, the "heart" consists essentially of "how to" elements, conveyed through the use of the unoriginal employment metaphor, that inform potential listeners about both the promotion and how to participate. In a somewhat similar scenario, we have previously held that where the rules of a promotional contest of the sweepstakes type were so straight-forward and simple, copyright protection did not extend to those rules. See Morrissey, 379 F.2d at 678 (questioned in Nimmer, § 13.03[B], at 13-81); see also American Dental, 1996 WL 224494 at *12 ("[W]hile there are no hard and fast rules about when merger occurs, the consensus is that the `shorter a phrase is, the less likely it is to have accep[table] substitutes, thus barring protection under the [m]erger [d]octrine.'") (quoting Paul Goldstein, 1 Copyright § 2.7.3, at 2:100 (2d ed.1996)). Without going so far as to hold that the "rules" here are uncopyrightable per se under the "merger doctrine," see id. (discussing merger doctrine); Concrete Machinery, 843 F.2d at 606-07 (same); Nimmer, § 13.03[B], at 13-81, we nonetheless conclude that CMM cannot succeed on its infringement claim with respect to the text of the supporting materials. We do so under the "scenes a faire" doctrine as the complained-of similarities consist of unoriginal elements flowing from the undisputed standard and inherent characteristics of direct mail radio promotions and, as such, "flow from the logic and necessities of [these radio] game[s]." Barris/Fraser, 5 USPQ.2d at 1891 (stating that to prevail in infringement claim of television show copied material must be more than stock element).
Thus, while the parties are essentially operating the same promotion, and while WPOR may well have decided to "copy" the ideas underlying CMM's promotion, WPOR's supporting materials do not constitute actionable copying to the extent that the similarities arise from uncopyrightable elements, such as the unoriginal employment metaphor or de minimis phraseology, or involve standard "how to" features of a direct mail radio promotion. Because the basis of CMM's infringement claim regarding the supporting materials boils down to alleged copying of uncopyrightable similarities, the district court properly granted summary judgment. This conclusion is not altered by CMM's claim that WPOR's access to other CMM brochures remained a genuine disputed fact. In its Reply Brief, CMM compares its KTK brochure with WPOR's newspaper advertisement, pointing out that its KTK brochure contains a time clock similar to that in WPOR's advertisement, suggesting copying by WPOR of, among other elements, that image. Even assuming, without deciding, that access remained a disputed fact or that WPOR had access to the KTK brochure, we would nonetheless affirm the district court's grant of summary judgment on the supporting materials. Not only is the image of the time clock an uncopyrightable familiar symbol used to express the unoriginal employment phraseology to "get on the clock," the
Furthermore, CMM has failed to show how it was prejudiced by the district court's failure to consider the KTK brochure when it ruled on the supporting materials. CMM states that, while the advertisements "closely track the KTK piece in layout and graphics, [ ... it] track[s] the text of KIX most closely," CMM's Reply Brief, pp. 6-7 n. 1, and the court did consider the latter. Moreover, the KTK brochure was actually given to the jury for consideration and, thus, the jury was able to take into consideration the layout and graphics of the KTK brochure when rendering its verdict. Finally, although CMM sought to have its claims with respect to the supporting materials get to the jury, we are hard pressed to think that — in light of its verdict of non-infringement of the brochures — the jury would have found any differently were it to consider the supporting materials.
CMM also claims error alleging that WPOR's access to CMM's other copyrighted Payroll Payoff® promotions remained in question at the summary judgment phase. CMM points to WPOR's admission that it had access to both the KIX and KHEY brochures. First, WPOR's access to the KIX brochure was never in dispute, as WPOR admitted access. Second, we dispose of CMM's claim that access to other promotional brochures was a disputed material fact in the same way the district court did when it denied CMM's motion for reconsideration: CMM's record citations provide no support for any inference whatsoever that, at the summary judgment phase, WPOR had such access. CMM provides three fruitless record citations in its discussion of access in its principal brief: The first we disregard as irrelevant as it supports the undisputed fact of access to the KIX brochure; the second is a citation to the Jury Trial Transcript as evidence of WPOR's admission that it had access to the WHEY brochure, which we dismiss as utterly irrelevant and inappropriate in an appeal from summary judgment; and the third is an inexplicable citation to "footnote 11, supra," which we ignore as a typographical error given that footnote 11 addresses CMM's trademark infringement claim and no other footnote is relevant. CMM's Brief, at 27. Nor do any of the additional record citations CMM provides in its reply brief persuade us differently. CMM's Reply Brief, at 6-7 n. 1.
Finally, even drawing all reasonable inferences in CMM's favor and assuming as true that, as CMM argues elsewhere in its brief, WPOR had access to CMM's promotions both by virtue of its prior use of CMM's services in 1991 and through McVay Media which received CMM promotional materials used by its customers, these inferences do not change the outcome of this appeal. Given our position that access to other brochures does not alter the outcome vis-a-vis the supporting materials, we consider — with some bewilderment — these inferences in connection with CMM's final argument that "the question of access to (and therefore copying of) these other protected brochures was another matter that should have been left to the jury." CMM's Brief, at 27. Even taking them as true, we reject CMM's claim of error thus: Given that the Jury Verdict Form shows that the question of copying of all four of CMM's brochures was in fact submitted to the jury, we fail to understand CMM's claim that "the question of access (and therefore copying of) [the] other protected brochures" should have been left for the jury. While the jury did not address the question of access, it did address the ultimate question of whether WPOR copied any copyrightable elements of four of CMM's brochures — including those about which it claims access was in dispute.
v. Verdict Inconsistency
CMM also argues that the district court's disparate treatment of the brochure and the supporting materials resulted in an inconsistent verdict. CMM may well have waived its right to raise this issue here, because it failed to raise this Fed.R.Civ.P. 49(b) argument in a timely manner before the district court. "Previously we have held that a defendant may not argue verdict inconsistency if he or she failed to object `after the verdict was read and before the jury was discharged.'" Coastal Fuels of Puerto Rico, Inc. v. Caribbean Petroleum Corp., 79 F.3d 182, 201 (1st Cir.1996) (quoting McIsaac v. Didriksen Fishing Corp., 809 F.2d 129, 134 (1st Cir. 1987)), cert. denied, ___ U.S. ___, 117 S.Ct. 294, ___ L.Ed.2d ___ (1996). We note that CMM did not even explicitly raise the inconsistency issue in its post-judgment motion as a matter of law. The possibility of waiver notwithstanding, we nonetheless address CMM's contention to the extent that it is inextricably intertwined with the issues raised by its appeal of the district court's ruling on the supporting materials.
CMM essentially argues that the jury's verdict that CMM had a valid copyright in its brochures is inconsistent with the court's ruling as a matter of law at the summary judgment stage that the supporting materials were not copyrightable. There is an inconsistency, CMM explains, because the brochure and the supporting materials contain the same language. In addition, CMM complains that "when the district court determined and the jury was informed by defendant's counsel that WPOR's supporting media had been deemed non-infringing as a matter of law, the jury had to find that the accused brochure was non-infringing as well, since the accused brochure and the supporting media contain the same text and similar graphics." CMM's Reply Brief at 4.
We disagree. As an initial matter, when we consider the jury's instructions, we find no inconsistency between the jury's verdict that CMM had a valid copyright in its brochures and the court's prior ruling regarding the supporting materials. Without objection by CMM, the jury was instructed thus on the issue of copyrightability:
Trial Transcript, Vol. IV at 738-39. First, we note that these instructions are consistent with the law of the case regarding the supporting materials. See CMM Cable Rep., 888 F.Supp. at 198. Second, the fact that the jurors found CMM to have a valid copyright in its brochures despite the court's ruling on the supporting materials suggests that — in following the instructions — they made a permissible and reasonable distinction between, on the one hand, the brochure's language or text and, on the other, its graphics or arrangement. While the law of the case held that the former did not constitute copyrightable elements, it did not preclude the jury
In addition, we are unconvinced that the district court's grant of summary judgment on the supporting materials necessarily affected — let alone adversely to CMM — the jury's deliberations: One could just as reasonably think that if the district court's prior ruling had any effect at all, it would be more likely to have prejudiced the jury's determination of the existence of a valid copyright; but, instead, the fact that the supporting materials and the brochure contain the same language did not preclude the jury from finding that CMM had a valid copyright in its four brochures. In any event, CMM's contention ignores the fact that the district court's prior ruling said nothing about the brochures' layout and/or design, aspects which the jury also considered in determining both the existence of a valid copyright and infringement.
Finally, it is well established that even if both access and substantial similarity are demonstrated, "the trier of fact may nonetheless find no copying if the defendant shows independent creation." Grubb, 88 F.3d at 3. Here, viewing the evidence in the light most favorable to the jury's verdict, United States v. Staula, 80 F.3d 596, 599 (1st Cir.), cert. denied, ___ U.S. ___, 117 S.Ct. 156, ___ L.Ed.2d ___ (1996), the verdict that WPOR did not infringe CMM's copyrights could also be understood as a reasonable determination that, uncopyrightable elements aside, there was no substantial similarity between the two brochures; indeed, based upon our own comparison of the brochures (as set forth above), we do not find them to be substantially similar. In the alternative, the jury could also have reasonably found that access and substantial similarity aside, WPOR's Payday Contest brochure was, in fact, an independent creation, crediting Spizuoco's corroborated testimony that he put away CMM's KIX brochure because he did not want to copy it as per the instructions he had received. Based upon our own review of the evidence, in the light most favorable to the jury verdict, see id., we affirm the jury's verdict as we find no inconsistency.
II. SUMMARY JUDGMENT — TRADEMARK
CMM also contends that the district court erred in granting WPOR's motion for summary judgment on its trademark infringement claim. Although CMM concedes that the district court applied the correct legal standard by addressing the eight "likelihood of confusion" factors set forth in Boston Athletic Ass'n v. Sullivan, 867 F.2d 22, 29 (1st Cir.1989), see 15 U.S.C. § 1114(1)(a), it raises a number of arguments challenging the district court's reasoning and conclusion. We only address one of its arguments, however, as we find that the others have been waived.
In CMM's twenty-page memorandum in opposition to WPOR's motion for summary judgment, a mere three sentences with three undiscussed citations were dedicated to trademark issues. The only argument advanced in its skeletal discussion was that likelihood of confusion is a factual issue for the jury, not a legal issue determinable by the court as a matter of law on summary judgment.
In its reply brief, CMM insists that it preserved the additional trademark arguments it now advances. Pointing out that it challenges the district court's decision on the grounds that the district court "used faulty reasoning," it first argues that we cannot find waiver because it could not possibly waive a challenge to the court's reasoning as it did not know what that reasoning would be ex-ante. The second reason CMM advances in support of its contention that its arguments were properly preserved is that its verified complaint alleged a likelihood of confusion between Payroll Payoff® and WPOR's "Payday Contest" and that its twenty-page memorandum in support of its preliminary injunction motion contained an "exhaustive analysis" of the Boston Athletic factors.
We have little trouble, however, in concluding that there is absolutely no merit to CMM's preservation arguments or, for that matter, to another argument it could have advanced: i.e., that we should find its arguments preserved because they were advanced in its motion for reconsideration. All of these arguments are insufficient to prevent a finding of waiver and fall on deaf ears. As we have explained before, not only can parties not claim error based on arguments which the district court never had a chance to timely consider, but courts are also entitled to expect represented parties to incorporate all relevant arguments in the papers that directly address a pending motion. See generally McCoy v. Massachusetts Inst. of Techn., 950 F.2d 13, 22 & n. 7 (1st Cir.1991) (citing cases), cert. denied, 504 U.S. 910, 112 S.Ct. 1939, 118 L.Ed.2d 545 (1992).
Despite our well-established rules and "customary practice," Boston Beer, 9 F.3d at 181, CMM nonetheless insists in its reply brief that we should not find waiver, suggesting that, because it has not raised any new theory on appeal that was not presented in its memorandum of law in support of its preliminary injunction motion, it has not "ambushed" WPOR or the district court. See, e.g., McCoy, 950 F.2d at 22. We are unpersuaded by this argument for two reasons. First, contrary to CMM's contention, we note that the "exhaustive analysis" submitted in connection with its preliminary injunction motion does not contain "much of that same analysis and case law [that] is reused in [its] initial [appellate] brief." CMM's Reply Brief, p. 24. Second, CMM's contention misses the point that concerns about parties and courts being "ambushed" is not the only reason for the raise-or-waive rule: In opposing motions, parties "cannot expect a trial court to do [their] homework for [them]." McCoy, 950 F.2d at 22 (noting as much in Rule 12(b)(6) context). Thus, notwithstanding the possibility that this case does not implicate concerns about "ambush," CMM simply cannot expect to shirk its "affirmative responsibility to put [its] best foot forward in an effort to present some legal theory that will support [its] claim," id., 950 F.2d at 23, that WPOR is not entitled to summary judgment on CMM's trademark claim. The district court was under no obligation to rummage through CMM's preliminary injunction filings made more than seven months earlier. Cf. id. at 22 n. 7. ("the district court was under no obligation to rummage through later-filed items pertaining to other matters in an attempt to vitalize [an] anemic argument" contained in an opposition to dismissal motion). While CMM arguably did advance the seeds of its legal theories underlying its appellate arguments, the dispositive fact remains that CMM failed to advance any of these appellate arguments to the district court in connection with the summary judgment motion: "Overburdened trial judges cannot be expected to be mind readers." Id. at 22. CMM cannot expect the district court to transform CMM's preliminary injunction arguments into a substantive opposition to WPOR's motion for summary judgment, speculating as to what CMM would argue and developing its arguments.
Because we see no reason to diverge from these rules, we treat all but one of CMM's trademark arguments as waived. We only
We turn then to CMM's only preserved argument: that the Boston Athletic factors cannot be determined as a matter of law in this case by reason of the likelihood-of-confusion prong. As the district court noted in rejecting this argument, this court has upheld the grant of summary judgment on the issue of likelihood of confusion on more than one occasion. See, e.g., Astra Pharmaceutical Prods., Inc. v. Beckman Instruments, 718 F.2d 1201, 1204-09 (1st Cir. 1983); Pignons S.A. de Mecanique de Precision v. Polaroid Corp., 657 F.2d 482, 487-92 (1st Cir.1981). Although CMM argues on appeal that Astra, at least, is distinguishable, CMM failed to make this argument below; indeed, it utterly failed to explain (much less with any specificity) why this case is distinguishable or, for that matter, why it should not be decided on summary judgment. Because this argument was presented below in only the "merest of skelet[al]" forms, see McCoy, 950 F.2d at 22, we decline to consider its merits. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.), cert. denied, 494 U.S. 1082, 110 S.Ct. 1814, 108 L.Ed.2d 944 (1990).
III. SUMMARY JUDGMENT — TRADE DRESS
CMM also contends that the district court erred in both its reasoning and conclusion when it granted WPOR's motion for summary judgment on its federal unfair competition/trade dress claim. In addition to making the argument that likelihood of confusion is not a question to be resolved on summary judgment, CMM's trade dress arguments in its memorandum of law in opposition to WPOR's motion for summary judgment consisted of a mere five sentences and one citation.
IV. SUMMARY JUDGMENT — LOCAL RULE 19
CMM also argues on appeal that it was deprived of a meaningful opportunity to oppose WPOR's motion for summary judgment due to the district court's application of Local Rule 19. That rule provides that a party filing a summary judgment motion must also file a statement of the material facts upon which there is no genuine issue for trial. Local Rule 19(b)(1). A party opposing a summary judgment motion must file a statement of the material facts which are in dispute and, unless controverted by the opposing party's statement of material facts, the material facts properly included in the moving party's statement will be deemed to be admitted. Local Rule 19(b)(2); see generally Carreiro v. Rhodes Gill and Co., Ltd., 68 F.3d 1443, 1446 n. 3 (1st Cir.1995) (citing Stepanischen v. Merchants Despatch Transp. Corp., 722 F.2d 922, 930-32 (1st Cir.1983) (sanctioning such local rules that
Before we address CMM's arguments, we review the pertinent facts. On March 13, 1995, WPOR filed its motion for summary judgment as well as its statement of undisputed material facts. On March 27, 1995, CMM filed its response and its statement of disputed material facts. On April 24, 1995, the district court informed the parties it could not determine from the summary judgment papers what the factual disputes were. Noting that the Local Rule 19 procedure "seems not to have worked here," the parties were directed to "meet and confer to try and generate a list of what matters are disputed so that we can determine indeed what is going to be involved in this trial." Transcript of 4/25/95 Conference in Chambers, pp. 3-4. The district court further noted that "in fairness ..., both sides are at fault here." Id. at 5. On April 27, 1995, counsel for both parties filed letters informing the district court of their respective versions regarding their attempts to reach agreement on the disputed and undisputed facts. WPOR enclosed a copy of its proposed joint statement, indicating that CMM did not believe the document reflected their discussions and had not agreed to sign it. In turn, CMM enclosed a list of the material facts which WPOR contends support its motion for summary judgment and a list of disputed facts. It also submitted a chart identifying whether issues are factual or legal. Both parties indicated a willingness to further discuss the matter. On May 1, 1995, WPOR filed a brief response, taking issue with certain aspects of CMM's letter.
In its summary judgment decision, the district court noted that "[t]he filings by the lawyers in this case have made the task of ruling on summary judgment much more difficult than it should be." CMM Cable Rep., 888 F.Supp. at 194. Citing to Stepanischen, 722 F.2d at 930-32, and chastising both parties for their respective failures, the court ruled that "[t]he parties are bound by their Rule 19 Statements of Fact, however, and my summary judgment decision will be based solely upon facts properly presented therein." CMM Cable Rep., 888 F.Supp. at 194. In its denial of CMM's motion for reconsideration, the district court reiterated that its summary judgment ruling was
Order of [CMM's] Motion for Reconsideration, R. 95, p. 2.
On appeal, CMM contends that, although it filed a statement of disputed facts which it believed complied with Local Rule 19, it was "denied its `day in court'" because the district court did not take into account "issues of material fact as well as important inferences arising from those facts that were properly before the court or otherwise in the record." CMM Brief, p. 48. Specifically, CMM claims error by the district court's reliance on Stepanischen when entering summary judgment, given CMM's effort to comply with the local rule and the court's request for an agreed-upon statement. CMM also contends that WPOR's "preemptive filing of supplement summary judgment papers" prompted the district court to apply Local Rule 19 in a manner wholly inconsistent with the policies of the Federal Rules of Civil Procedure, see Fed.R.Civ.P. 1 (providing that federal rules "shall be construed and administered to secure the just, speedy, and inexpensive determination of every action."), and
After reviewing the relevant submissions and based on our independent review of the summary judgment record, we find no merit to CMM's arguments, failing to see how the district court abused its discretion in applying Local Rule 19. First, while we agree with CMM's general proposition that summary judgment is not appropriate where the parties in good faith disagree about material factual inferences that properly may be drawn from undisputed facts, see, e.g., Coyne v. Taber Partners I, 53 F.3d 454, 460-61 (1st Cir.1995), we disagree that this is such a case. Although CMM insists that the record was rich with disputes concerning the originality of CMM's promotion, the similarity between the two promotions, access to CMM's copyrighted brochures and the likelihood of confusion between the names and the source of WPOR's promotion, the Local Rule 19 filings reveal that, as the district court noted, many of the listed "disputed" items were not factual disputes but disputes over the legal conclusions to be drawn from the facts.
Second, when the parties could not reach agreement as to what was factually in dispute and what was not, the district court simply, and quite appropriately, disregarded the subsequent "flurry of papers" and, in accordance with Local Rule 19, held the parties to their original arguments and facts properly presented with record citations. This is not a case where summary judgment was granted because the non-moving party failed to oppose the moving party's statement of non-disputed facts. See, e.g., Coastal Savings Bank, 686 F.Supp. at 19-20. Indeed, it is a case where the judge was already familiar with the factual record, having heard three days of testimony regarding CMM's motion for preliminary injunction.
Third, we find no merit to CMM's contention that "[r]ather than being given several chances to cure a deficient filing as was the case in Coastal Savings, CMM was barred from fully complying with the court's request for supplemental filings by WPOR's unilateral submission of `its side' of the facts." CMM Brief, p. 48. As an initial matter, nothing in Coastal Savings suggests that the party there was given "several chances" to cure its failure to comply with Local Rule 19. See Coastal Savings Bank, 686 F.Supp. at 19-20 (noting only that the party opposing summary judgment had not filed a statement of material facts). Furthermore, the district court here did not request "supplemental filings," as CMM suggests; instead, it directed the parties "to meet and confer to try and generate a list of what matters are disputed.... I really need counsel to sit down in good faith and to say, what are the factual disputes." Transcript of 4/24/95 Conference, p. 4. Despite their efforts to generate a joint statement, the parties simply could not reach agreement. Based on our understanding of what transpired, WPOR's "unilateral submission" in no way prevented CMM from complying with Local Rule 19 or the court's directive. At most, WPOR's submission, informing the court that the parties had conferred but had not reached agreement, sparked the "flurry of papers" which generated a reprimand by the district court of both parties. See Order denying CMM's motion for reconsideration, p. 1.
Fourth, even assuming any abuse of discretion on the part of the district court, we fail to see how CMM was prejudiced, let
To be sure, as CMM correctly points out, this is not the end of the inquiry, given that "[i]t is well established that [Fed.R.Civ.P. 56] requires the [c]ourt to examine the merits of a motion for summary judgment even though a nonmoving party fails to object in a manner consistent with Local Rule 19." Maillett v. Phinney, 755 F.Supp. 463, 464 (D.Me.1991); see Stepanischen, 722 F.2d at 930. In other words, application of Local Rule 19 does not, and did not in this case, bar CMM from obtaining a favorable ruling based on the issues of law presented if it was entitled to one. While the summary judgment opinion does indeed state that the court's decision is "based solely upon facts properly presented [in the Local Rule 19 filings]," this does not necessarily mean that summary judgment was inappropriate. Based upon our independent review of the Local Rule 19 filings as well the pleadings, affidavits, exhibits, depositions and transcripts from the preliminary injunction hearing, we simply cannot agree with CMM that the district court failed to consider the merits of WPOR's motion. In light of the district court's careful opinion, our own review of the record (however defined), and CMM's failure to demonstrate prejudice, we are simply unconvinced that the district court's application of Local Rule 19 in this case limited its inquiry into the factual record in a prejudicial manner, let alone denied CMM its day in court.
V. JURY VERDICT & FINAL JUDGMENT
CMM also seeks reversal of the jury verdict and the district court's final judgment. Although it does not explicitly state why it seeks this relief, we interpret CMM to be essentially arguing on appeal what it argued in its post-judgment motion for a judgment as a matter of law under Fed.R.Civ.P. 50(a) and (b): that there was "no legally sufficient basis for a reasonable jury to find that there was no copying of the text, layout and/or design of CMM's brochures." We decline to consider this sufficiency of the evidence argument, finding that it has been waived.
CMM's implicit, if not explicit, contention on appeal that it deserved a verdict as a matter of law on the issue of copying is deemed waived by CMM's failure to move on this ground for a directed verdict under Fed. R.Civ.P. 50(a). While CMM did move for judgment under Rule 50(a) at both the close of its case and that of WPOR, which were renewed by its post-judgment motion as a matter of law, CMM did not base its motions on the argument that there was no triable
VI. NEW TRIAL
CMM also seeks an order granting a new trial. To the extent that CMM seeks a retrial on the issue of WPOR's infringement of the brochures, CMM's failure to move for a new trial under Fed.R.Civ.P. 59(a) — on any ground — forecloses review in this court. "[A] motion for a new trial must be made in the first instance before the trial court, particularly where the weight of the evidence is at issue." Wells Real Estate, 850 F.2d at 811 (citing 6A Moore's Federal Practice § 59.15, at 326-27 (2d ed. 1987)).
For the foregoing reasons, the district court's summary judgment and final order in favor of WPOR is
Without resolving this disagreement, we review the district court's grant of summary judgment based on the Local Rule 19 filings, noting particularly that CMM maintains that it is entitled to prevail "even with such a sparse snippet of the entire record under consideration." CMM's Reply Brief, p. 38. Furthermore, as we discuss below, we find no abuse of discretion by the district court in its application of Local Rule 19 in this case. Finally, we add that irrespective of how the summary judgment record is characterized, based on our independent review the outcome of this appeal would be the same.
CMM's Memorandum of Law in Opposition to [WPOR's] Motion for Summary Judgment, pp. 34 (footnote containing citation to Boston Athletic omitted).
CMM's memorandum of law in opposition, p. 4 (footnote containing citation to Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 112 S.Ct. 2753, 120 L.Ed.2d 615 (1992) omitted).