{ "id": 186471, "name": "CHICAGO STYLE PRODUCTIONS, INC., Plaintiff-Appellant, v. CHICAGO SUN TIMES, INC., Defendant-Appellee", "name_abbreviation": "Chicago Style Productions, Inc. v. Chicago Sun Times, Inc.", "decision_date": "2000-05-02", "docket_number": "No. 1\u201499\u20142526", "first_page": "45", "last_page": "50", "citations": [ { "type": "official", "cite": "313 Ill. App. 3d 45" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "481 N.E.2d 953", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "pin_cites": [ { "page": "956" } ], "opinion_index": 0 }, { "cite": "135 Ill. App. 3d 288", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3600201 ], "year": 1985, "pin_cites": [ { "page": "293" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/135/0288-01" ] }, { "cite": "26 F. 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CHICAGO SUN TIMES, INC., Defendant-Appellee." ], "opinions": [ { "text": "PRESIDING JUSTICE COUSINS\ndelivered the opinion of the court:\nThe plaintiff brought this action under the Illinois Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505/1 et seq. (West 1996)). The plaintiff alleged that the defendant newspaper had stolen its idea for a television show to be produced in conjunction with a series of newspaper articles. The trial court granted the defendant\u2019s motion to dismiss under section 2 \u2014 619 of the Code of Civil Procedure (735 ILCS 5/2 \u2014 619 (West 1996)), on the basis that the plaintiffs action was preempted by the federal Copyright Act (17 U.S.C. \u00a7 101 et seq. (1976)). The trial court did not reach the defendant\u2019s additional argument that the exhibits demonstrated that the series of newspaper articles it published was not similar enough to the television show to support any charge that it had copied the plaintiffs work.\nThe plaintiff now appeals, arguing that the trial court erred in finding that its cause of action was preempted.\nWe affirm.\nBACKGROUND\nThe plaintiff, Chicago Style Productions, Inc. (Chicago Style), prepared a television show about local people and events called \u201cChicago Style.\u201d The television program was to emphasize \u201clighthearted personality-driven features.\u201d The distinctive characteristic of the show was that it was designed to promote a newspaper and to be tied in with articles from the newspaper. Chicago Style attempted to market its show to the defendant, the Chicago Sun Times, Inc. (the Sun Times).\nJim Elliott, the president of Chicago Style, presented the idea to the defendant in a meeting with George Berger, the Sun Times\u2019 director of special events, in April 1997. About a month later, Elliott and Steve Grein, the vice president of Chicago Style, met with Eve Minogue, the marketing director for the Sun Times. Minogue expressed interest in the idea of the television show, and Elliott and Grein agreed to put together a formal proposal and a pilot production video.\nElliott and Grein presented the proposal and showed the pilot video in another meeting with Berger and Minogue in February 1998. The presentation outlined the cost of the program to the defendant, as well as projected revenues. Nine days later, the defendant notified the plaintiff that it had decided not to participate in the proposed venture. The plaintiff then decided to market its proposal to other newspapers.\nFour days later, a series of articles entitled \u201cChicago Style\u201d commenced in the Sunday Chicago Sun Times. The plaintiff alleges that the articles reflected the \u201cessence, strategy and focus\u201d of its proposed program. According to the plaintiff, the Sun Times stole the \u201cChicago Style\u201d idea and presented it as its own. The plaintiff claims that this has destroyed its ability to market the program to other newspapers.\nThe plaintiff filed a one-count complaint alleging violation of the Illinois Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505/1 et seq. (West 1996)) (Consumer Fraud Act). The defendant filed a section 2 \u2014 619 motion to dismiss on the grounds that: (1) the plaintiffs Consumer Fraud Act claim was preempted by the federal Copyright Act (17 U.S.C. \u00a7 101 et seq. (1976)); and (2) even if the claim were not preempted, the exhibits clearly showed that the defendant had not copied the plaintiffs idea. The trial court granted the motion on the preemption grounds. The defendant now appeals.\nANALYSIS\nIn 1976 Congress amended federal copyright law by adding a preemption provision.\n\u201cOn and after January 1, 1978, all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103, whether created before or after that date and whether published or unpublished, are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any state.\u201d 17 U.S.C. \u00a7 301(a) (1976).\nIn Baltimore Orioles, Inc. v. Major League Baseball Players Ass\u2019n, 805 F.2d 663 (7th Cir. 1986), the seventh circuit outlined a two-prong test for determining whether a state law claim was preempted under section 301 of the Copyright Act. \u201cFirst, the work in which the right is asserted must be fixed in tangible form and come within the subject matter of copyright as specified in \u00a7 102. Second, the right must be equivalent to any of the rights specified in \u00a7 106.\u201d Baltimore Orioles, 805 F.2d at 674. In order for a claim under a state statute not to be considered \u201cequivalent\u201d to a copyright claim under this test, the state claim must require an additional element that is qualitatively different from those necessary for copyright infringement. Xerox Corp. v. Apple Computer, Inc., 734 F. Supp. 1542, 1550 (N.D. Cal. 1990); Maro bie\u2014FL, Inc. v. National Ass\u2019n of Fire Equipment Distributors, 983 F. Supp. 1167, 1180 (N.D. Ill. 1997). The plaintiff cites cases that seem to enunciate a narrower test for preemption. Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 40 L. Ed. 2d 315, 94 S. Ct. 1879 (1974); F.E.L. Publications, Ltd. v. National Conference of Catholic Bishops, 466 F. Supp. 1034 (N.D. Ill. 1978). However, these cases dealt with facts that arose before section 301(a) was added in 1976.\nWith regard to the first prong of the Baltimore Orioles test, in our view the ideas that were allegedly copied in the instant case were fixed in tangible form and came within the subject matter of copyright. The plaintiff, correctly noting that one cannot copyright an idea, as opposed to a particular expression of that idea (Nash v. CBS, Inc., 899 F.2d 1537, 1542 (7th Cir. 1990)), argues that its idea was not fixed in a particular form of expression and thus it did not come within the protective scope of copyright law. In fact, however, the pilot video and the formal proposal constituted a tangible expression of the plaintiffs idea. The plaintiff in effect admitted as much in its complaint when it alleged similarity between the pilot video and the newspaper articles \u201cdown to the accompanying graphics.\u201d\nThe plaintiff responds that even if the defendant copied some of its expression, this suit concerns the copying of its idea, which it could not copyright. But we do not think that the plaintiff can separate out the idea that was stolen in this alleged act of copying and base a separate state law claim on that. \u201cCopyrightable material often contains uncopyrightable elements within it, but Section 301 preemption bars state law misappropriation claims with respect to uncopyrightable as well as copyrightable elements.\u201d National Basketball Ass\u2019n v. Motorola, Inc., 105 F.3d 841, 849 (2d Cir. 1997).\nWith regard to the second prong of the Baltimore Orioles test, we agree with the trial court that the plaintiff is attempting in this suit to vindicate rights equivalent to those protected by the Copyright Act. Many states prohibit by statute the \u201cpassing off\u2019 of products. \u201cPassing off\u2019 occurs when the defendant misleads the public into thinking that the defendant\u2019s product is actually the plaintiffs. Xerox, 734 F. Supp. at 1550. But the activity allegedly engaged in by the Sun Times is the opposite \u2014 \u201creverse passing off.\u201d In other words, the plaintiff alleges that the defendant misled the public into thinking that the plaintiffs product was the defendant\u2019s. Xerox, 734 F. Supp. at 1550. The case law is clear that \u201c[cjlaims premised on reverse passing off are preempted under the Act.\u201d Marobie\u2014FL, 983 F. Supp. at 1181.\nIn support of its argument that its claim is not preempted, the plaintiff cites Stillman v. Leo Burnett Co., 720 F. Supp. 1353 (N.D. Ill. 1989). The plaintiff in Stillman created a distinctive \u201csilent\u201d television commercial for Eastern Airlines. The commercial aired in Canada. The defendant, after seeing the commercial, produced a similar one for United Airlines to be shown in the United States. In subsequent interviews the defendant claimed that it had come up with the idea for the commercial by \u201clucky inspiration.\u201d Stillman, 720 E Supp. at 1356. The plaintiff sued for copyright infringement as well as for violation of the Consumer Fraud Act. The basis for the Consumer Fraud Act claim was that the defendant had falsely claimed credit for the idea of the commercial. Stillman, 720 F. Supp. at 1362. The defendant moved for summary judgment on the Consumer Fraud Act claim, arguing that it was preempted by the Copyright Act. The court denied the motion. Judge Duff allowed the Consumer Fraud Act claim, not on the basis that the defendant had falsely claimed credit for the plaintiffs idea in the very act of making its similar commercial (he expressly declined to reach that issue), but on the basis that the defendant had falsely claimed credit for the plaintiffs idea in the subsequent interviews. Stillman, 720 F. Supp. at 1362.\nAccording to Stillman, the state law claim and the copyright claim had two different purposes:\n\u201cThe copyright laws serve to protect Stillman\u2019s right to reap the benefits of the particular expression he employed in creating the Eastern silent commercial. The state laws, by contrast, will protect Stillman\u2019s right to prevent others from fraudulently taking credit for, and presumably benefitting in the fixture from Stillman\u2019s ability to develop novel ideas.\u201d Stillman, 720 F. Supp. at 1363.\nThe plaintiff claims that it is only pursuing the latter type of claim and, thus, copyright law preemption should not apply.\nWe do not find Stillman controlling in the instant case, for the plaintiff has not alleged that the Sun Times did anything to claim credit for the \u201cChicago Style\u201d idea, apart from its putting out the series of articles entitled \u201cChicago Style.\u201d There is nothing in the instant case analogous to the interviews in Stillman. The plaintiffs failure to allege that the Sun Times made affirmative misrepresentations about the origin of its \u201cChicago Style\u201d series renders its Consumer Fraud Act claim identical to a copyright claim. See Tensor Group, Inc. v. Global Web Systems, Inc., No. 96 C 4606 (N.D. Ill. August 11, 1999) (not reported in F. Supp. 2d).\nMoreover, any claim of the plaintiff that the defendant misrepresented the source of the \u201cChicago Style\u201d idea by the very act of publishing its \u201cChicago Style\u201d series of articles is preempted under the Copyright Act. Although Stillman did not reach the issue of whether the misrepresentation of authorship naturally incident to the publication of the copied work could support a separate state law claim, other cases have gone on to decide the issue. Every act of copyright infringement by its nature involves some misrepresentation as to the identity of the author. Balsamo/Olson Group, Inc. v. Bradley Place Ltd. Partnership, 950 F. Supp. 896, 898 (C.D. Ill. 1997). But this type of misrepresentation does not constitute a qualitatively distinct element that would remove the claim from the scope of copyright. \u201c[A]n allegation of misrepresentation that is solely based in the alleged infringer\u2019s reproduction and sale of a work as its own creation does not qualitatively alter the nature of the infringement enough to remove the state claim from the preemptive scope of copyright law.\u201d Goes Lithography Co. v. Banta Corp., 26 F. Supp. 2d 1042, 1048 (N.D. Ill. 1998). Accordingly, any claim by the plaintiff under the Consumer Fraud Act that the defendant misrepresented that it was the originator of the \u201cChicago Style\u201d idea by putting out the \u201cChicago Style\u201d series of articles is preempted.\nFinally, in our view, even if some Consumer Fraud Act claim that the defendant took credit for the plaintiffs idea survived preemption, that claim would have been properly dismissed. The plaintiffs idea was for a television show that would promote a newspaper and tie in with articles from the newspaper. But the plaintiff has not alleged that the Sun Times produced its own television show or did anything with regard to television. The plaintiff cannot seriously claim that it came up with the idea of a newspaper writing about local entertainment events and celebrities. Moreover, the exhibits show that the series of articles put out by the Sun Times under the title \u201cChicago Style\u201d focused on the fine arts, rather than the \u201clighthearted personality-driven features\u201d that were to be the focus of the television show. Exhibits that conflict with allegations in a pleading negate those allegations. First National Bank v. Shape Magnetronics, Inc., 135 Ill. App. 3d 288, 293, 481 N.E.2d 953, 956 (1985). Accordingly, the trial court would have been justified in dismissing the complaint after examining the exhibits even if some part of the claim was not preempted.\nFor the foregoing reasons, we affirm the judgment of the trial court.\nAffirmed.\nGORDON and McBRIDE, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE COUSINS" } ], "attorneys": [ "Arthur S. Gold, of Gold, Rosenfeld & Coulson, of Chicago, for appellant.", "Damon E. Dunn, Glenn A. Rice, and Maria DiStravolo Elliott, all of Levin & Funkhouser, Ltd., of Chicago, for appellee." ], "corrections": "", "head_matter": "CHICAGO STYLE PRODUCTIONS, INC., Plaintiff-Appellant, v. CHICAGO SUN TIMES, INC., Defendant-Appellee.\nFirst District (2nd Division)\nNo. 1\u201499\u20142526\nOpinion filed May 2, 2000.\nArthur S. Gold, of Gold, Rosenfeld & Coulson, of Chicago, for appellant.\nDamon E. Dunn, Glenn A. Rice, and Maria DiStravolo Elliott, all of Levin & Funkhouser, Ltd., of Chicago, for appellee." }, "file_name": "0045-01", "first_page_order": 63, "last_page_order": 68 }