Goodson-Todman Enterprises, Ltd. v. Kellogg Company and Leo Burnett Company, Inc., (Two Cases)

*914 OPINION

In No. 73-2756, Goodson-Todman Enterprises, Ltd. (“Goodson-Todman”) appeals from the judgment of the district court, granting a motion for summary judgment against it and in favor of defendant Kellogg Company. The action is for infringement of copyright under 17 U.S.C. § 101 and for infringement of common law copyright. Goodson-Tod-man contends on appeal that the district court erred in holding as a matter of law that there is no substantial similarity between any protectible expression in its copyrighted half-hour television show and Kellogg’s television commercial. Goodson-Todman further contends that the court erred .in dismissing the common law infringement counts on a motion directed only to the federal copyright issue.

In No. 74-2009, Goodson-Todman also appeals from the granting of Kellogg’s motion for summary judgment in a second common law infringement action, on the basis of res judicata with respect to the dismissal in the earlier case (No. 73—2756). We reverse in both cases. The case is reported below in Goodson-Todman Enterprises, Ltd. v. Kellogg Company, 358 F.Supp. 1245 (1973).

Goodson-Todman is the creator and producer of the television show “To…

(concurring and dissenting):

I agree that the judgment relating to the issue of infringement should be reversed. I do not, however, agree that the controversy in that respect requires that an evidentiary hearing be conducted. The viewing of the films in question left me with the inescapable conviction that the appellees have, undeniably, pirated the “expression of the idea” of the appellant’s copyrighted television production. The films themselves supply the most adequate and convincing evidence for my conclusion, and I cannot conceive that additional testimony could alter the resolution that I think proper on that issue. Thus, I would direct the District Court to enter a judgment of infringement and to enter a decree enjoining additional infringement.

While I doubt that the appellant could establish more than minimal damages accruing to it as a result of the appellees’ wrong, I agree that the District Court must conduct a trial on the damage issue, assuming, as I believe, that infringement has occurred.

513 F.2d 913 185 U.S.P.Q. 193 GOODSON-TODMAN ENTERPRISES, LTD., Plaintiff-Appellant, v. KELLOGG COMPANY and Leo Burnett Company, Inc., Defendants-Appellees (two cases). Nos. 73-2756, 74-2009. United States Court of Appeals, Ninth Circuit. March 3, 1975. Howard S. Smith (argued), of Mitchell, Silberberg & Knupp, Los Angeles, Cal., for plaintiff-appellant. Anthony E. Liebig (argued), of Lillick, McHose, Wheat, Adams & Charles, Los Angeles, Cal., for defendants-appellees. Before ELY, CARTER and GOODWIN, Circuit Judges.OPINION PER CURIAM: 1 In No. 73-2756, Goodson-Todman Enterprises, Ltd. ("Goodson-Todman") appeals from the judgment of the district court, granting a motion for summary judgment against it and in favor of defendant Kellogg Company. The action is for infringement of copyright under 17 U.S.C. § 101 and for infringement of common law copyright. Goodson-Todman contends on appeal that the district court erred in holding as a matter of law that there is no substantial similarity between any protectible expression in its copyrighted half-hour television show and Kellogg's television commercial. Goodson-Todman further contends that the court erred in dismissing the…