Eloise Toby Marcus v. Shirley Rowley and San Diego Unified School District

This is an appeal from a dismissal on the merits of a suit for copyright infringement brought by a public school teacher who is the owner of a registered copyright to a booklet on cake decorating. The defendant, also a public school teacher, incorporated a substantial portion of the copyrighted work into a booklet which she prepared for use in her classes. Both parties moved the district court for summary judgment. The district court denied both motions and dismissed the action on the merits on the ground that defendant’s copying of plaintiff’s material constituted fair use. We reverse.

Cite as 695 F.2d II71 (1983)

I. FACTUAL BACKGROUND

From September 1972 to June 1974, plaintiff, Eloise Toby Marcus was employed by the defendant, San Diego Unified School District (“District”) as a teacher of home economics. Plaintiff resigned from the District’s employ in 1974 and taught adult education classes intermittently from 1975 to 1980. Shortly after leaving her teaching position with the District, she wrote a booklet entitled “Cake Decorating Made Easy”. Plaintiff’s booklet consisted of thirty-five pages of which twenty-nine were her original creation. The remaining six pages consisted…