UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

HARRY PALMER and STAR'S EDGE,

INC.

Plaintiffs

--vs-- Case No. 6:00-cv-1662-Orl-31JGG

ELDON BRAUN,

Defendant

ORDER

THIS CAUSE comes before the Court on Plaintiffs Motion for Preliminary I1ljunction (Doc. 25, filed March 9, 2001). After reviewing the verified pleadings, supporting affidavits, and evidence presented at the hearing on this matter, the Court concludes that the motion must be DENIED.

I. BACKGROUND

Plaintiff. Harry Palmer, (palmer), is the founder and president of Star's Edge~ Inc. (Star's Edge). Star's Edge is the corporate entity that promotes and administers the Avatar course, a course intended to instruct students on how to effect positive changes in 1heir lives through the management of their beliefs. (Palmer Aff. at ¶ 4). Defendant. Eldon Braun, (Braun}. Is a former Avatar course instructor who developed his own "workbook for self-exploration" entitled 'The Source Course." (Ex. 37). At the heart of this lawsuit is Plaintiff’s claim that "The Source Course" infringes the Avatar copyright. Before addressing the legal issues at hand, the Court will first provide a brief background on Palmer and Braun, and the events which led to the instant lawsuit.

Harry Palmer is an educational psychologist who, for many years, was a Scientology instructor in Elmira, New York. After leaving the Church of Scientology in 1986, Palmer engaged in experimental research to explore the functioning of [his] own consciousness.”¹(Palmer Aff. at ¶ 4). Using his background in education and psychology, together with the insights gained from his research, Palmer developed a series of lesson plans, which eventually became the Avatar course. Since its introduction in 1987, over 50,000 people have taken the Avatar course, and the course materials have been translated from English into 14 other languages and taught in more than 55 countries (id. at ¶ 14),

The basic Avatar course materials are contained in three sections and are taught by trained and licensed instructors called ’Masters.” Section I is an introductory course taught over a period of two days at a cost of$295,OO. This section, which consists of264 pages of material entitled.” Resurfacing: Techniques for Exploring Consciousness,” explains the Avatar concept and contains a series of exercises designed to explore the underlying structure of the students’ consciousness and beliefs. (Ex. 4).

¹ At the evidentiary hearing on this motion, Palmer testified that his "research" included a

Period of eight weeks of sensory deprivation:

[I] engaged in a process called sensory deprivation tanking, which was floating in a

sealed tank where the sensory input that's coming from the senses of your body are

shut off, so that basically you are just consciousness. You are floating in Epsom salts

solution that's at the same temperature as your skin, so you can't feel the difference

between the water and your skin. 11le tank is dark, All of the sound is baffled out, so

really the only thing in the tank is your consciousness. You don't have any sense of

your body….

(Tr. at 21-22).

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After completing the introductory course, Avatar students are encouraged to take Sections II and Ill. These sections, which are taught over a period of six to nine days, cost $2,000.00.Section II, consisting of 39 pages and entitled “The Exercises,” teaches about the principles governing creation and experience. (Ex.35). Section II seeks to “enhance the perception of creation and to restore the ability to create reality,” (Ex. 4 at 147), and purports to lead the student

to “reconnect with an experiential awareness of [his or her] own existence and to recover the effortless ability to create personal reality.” (Ex. 35 at ii). Section III consists of 77 pages and is entitled “The Procedures.” This section “explores the foundational beliefs that create the universe and presents a simple and effective technique for managing beliefs.” (Ex. 36 at ii).³

Sections II and III of the Avatar course materials are confidential. Prior to taking the course, students arc required to sign a confidentiality agreement. At the conclusion of the course, students must return the course materials. According to Palmer, the reason for confidentiality is twofold: (1) quality control -~ Palmer claims the materials cannot be meaningfully understood without the assis1ance of a trained master; and (2) economic—confidentiality helps ensure that Avatar will maintain its value to future students. (Tr. at 28-29).

In September 1989, Braun signed a license agreement and became an Avatar Master.(Ex. 7). Braun also executed a “Confidential Materials Security Contract” wherein he agreed to maintain the Avatar course materials in confidence and to return the materials at the request Star’s Edge. (Ex..8). Yet, Braun’s tenure as an Avatar Master was short-lived. In 1991, Braun had a

²Star’s Edge is a for-profit corporation and makes no apology for its financial success. Its

philosophy is that “prosperity and good works belong together." (Ex. 4 at 143).

³There are two additional sections of the Avatar course. Section IV is the Masters course, and

Section V is the Wizards Course, which teaches would-be Wizards the "ability to transform

civilization." (Ex. 4 at 147). Only Sections I, II, and III of the basic Avatar course are at issue here.

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falling-out with Palmer, and Star’s Edge suspended Braun’s Avatar license. As a result, Star’s

Edge asked Braun to return his Avatar materials. (Ex.9). When Braun did not return the

materials, Star’s Edge assumed they had been destroyed pursuant to the Confidentiality

Agreement.⁴

For the 10 years following the suspension of his Avatar license, Braun engaged in a

Persistent campaign to discredit Palmer. This effort is evidenced in the Record by numerous

letters, faxes, e-mails and internet postings, (Ex. 10-34). including an expose entitled “The Wiz of

Orlando.’ (Ex. 11). The Palmer-Braun feud escalated in the summer of 2000 when postings on the

internet under the name “Free Tars” threatened to publish the confidential Avatar materials.’ In an

internet posting dated August 13, 2000, Braun wrote, “I have a nearly completed manuscript that is

an analog of the Avatar course called The Source Course.” (Ex. 15).⁶ On October 5, 2000, Braun

posted another note indicating that he had finished a first draft of The Source Course and

acknowledged that his target market would include “Avatar graduates who lack a take-home

manual “ (Ex. 21 at I),

‘ Subsequently, on October 28, 2000, Braun posted another message, stating that “[t]he

excuses Star’s Edge uses for keeping the materials secret are, in my opinion, utter self-serving

bullshit. That’s why I am about to end the secrecy.” (Ex, 23). On that same day, another posting

from “Frce Avatar” said that “[t]he Source Course could serve as the ‘take home materials’ that

⁴ Braun claims that he did indeed destroy the materials years ago and, although an excerpt of

the Master's notes recently began circulating on the internet, Palmer and Star's Edge do not allege that

Braun is responsible for the posting,

⁵ The threat turned out to be a hoax, and the publication never occurred.

⁶ Braun began writing The Source Course in 1991, at the same time he wrote "The Wiz of

Orlando," and presumably while still in possession of the Avatar materials.

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are missing from the Avatar course." (Ex. 24 at 1). Finally, on November 9, 2000, Braun posted

yet another note indicating that The Source Course was now availab1e for purchase. (Ex. 28).

Braun so1d the course for $25.00 and even offered to provide it for free to persons who could not

afford it. (Ex.. 24,32). In the November 9 posting, Braun wrote, "[i]f you've taken the

confidentia1 Avatar course, and wished you had received take-home materials, The Source Course

can servc as a refresher for further work on your own." (Ex.28).

As a result of this posting, Star's Edge wrote to Braun on November 20,2000, claiming

that The Source Course infringed its copyright-protected work and demanding that Braun cease

and desist from further infringement. (Ex. 30). Palmer and Star's Edge filed this action on

December 15, 2000. On March 9,2001, Plaintiffs moved for a preliminary injunction--almost

three months after the complaint was filed. On April 10, 2000, the Court scheduled a hearing on

the motion for preliminary injunction for April 26; however. Plaintiffs requested a continuance

because "Palmer ha(d] a pre-existing obligation requiring him to be out of the country on the

hearing date." (Dec. 33). [SIC] Further scheduling conflicts of counsel prevented the Court from

hearing this matter until June 28, 2000.

By their motion, Plaintiffs seek to preliminarily enjoin Defendant from, among other

Things, publishing The Source Course or revealing any of the contents of the Avatar materials to

any other person. At the June 28 evidentiary hearing, the two protagonists. Palmer and Braun,

testified and introduced various exhibits; This matter has been fully briefed and is ripe for .

determination. .

II. PRELIMINARY INJUNCTION STANDARD

Injunctive relief is an extraordinary and drastic remedy. See United States v. Lambert. 695

F.2d 536,539 (11th Cir. 1983). As such, “no grant is the exception rather than the rule, and

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plaintiff must clearly carry the burden of persuasion.” Id. To prevail on a motion for preliminary

injunction, a plaintiff must show: (I) a substantial likelihood of success on the merits; (2) a

substantial threat of irreparable injury; (3) plaintiffs injury outweighs the injury to the defendant;

and (4) the requested relief would not disserve the public interest. Lucero v. Operation Rescue of

Birmingham, 954 F .2d 624, 627 (11th Cir. 1992). In copyright infringement cases, irreparable

injury is generally presumed if the plaintiff can demonstrate a substantial likelihood of success on

the merits. CBS.Inc. v. Primetime 24 Joint Venture, 9 F. Supp. 2d 1333, 1344-45 (S.D. Fla.

1998).

To carry its burden, a plaintiff seeking a preliminary injunction must offer proof beyond

unverified allegations in the pleadings. Bascom Food Products Corp. v. Reese Finer Foods, Inc.,

715 F. Supp. 616,624 n.14 (D.N.J. 1989). Moreover, vague or conclusory affidavits are

insufficient to satisfy the plaintiff's burden. See Atari Games Corn. v. Nintendo of Am., Inc., 897

F.2d 1572, 1575 (Fed. Cir. 1990). Furthermore, affidavits based on personal knowledge are

accorded more weight than affidavits based upon mere belief or hearsay. See 13 Moore's Federal

Practice ß 65.23[2] (3d ed. 2000).

III. APPLICATION

The first issue for this Court's determination is whether Plaintiffs have shown a substantial

likelihood of success on the merits of their copyright claim. The elements of a copyright

infringement claim are "(1) ownership of a valid copyright; and (2) copying of constituent

elements of the work that are original." Feist Publications. Inc, v. Rural Tel. Serv. Co., 499 U.S.

340, 361 (1991). There is apparently no dispute concerning Plaintiffs' ownership of the copyright

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at issue.⁷ Therefore, the Court will focus on whether the Avatar course is an original work of

authorship entitled to copyright protection and whether any infringement of that work has

occurred.

Originality is the touchstone of copyright protection. ~, 499 U.S. at 345. As the

Supreme Court explained in Feist:

To qualify for copyright protection, a work must be original to the author. Original,

as the term is used in copyright, means only that the work was independently

created by the author (as opposed to copied from other works), and that it possesses

at least some minimal degree of creativity. To be sure, the requisite level of

creativity is extremely low; even a slight amount will suffice.

Id. at 345-46 (citations omitted).

Although the threshold of originality required for copyright protection is low, copyright

protection does not extend to all aspects of an author's work. Herzog v. Castle Rock Entm't, 193

F.3d 1241,1248 (11th Cir. 1999). Sectionl02(b) of the Copyright Act of 1976 provides that "[i]n

no case does copyright protection for an original work of authorship extend to any idea, procedure,

process, system, method of operation, concept, principle, or discovery, regardless of the form in

which it is described, explained, illustrated, or embodied in such work." 17 U.S.C. ß 102(b).

Thus, copyright protection does not extend to the author's idea but only to the author's particular

expression of the idea, i.e.” the unique style and arrangement of words the author selects to convey- ..

the idea. The idea/expression dichotomy is a very elusive concept. As Judge Learned Hand wisely

recognized, “[o}bviously, no principle can be stated as to when an imitator has gone beyond

⁷At the hearing, Plaintiffs introduced the copyright registration certificates for the Avatar

materials. (Ex. 1-3). Production of these certificates raises a rebuttable presumption of originality and

copyrightablility of the subject matter and shifts the burden to the Defendant to demonstrate why

Plaintiffs' claim of copyright is invalid. Bateman v. Mnemonics. Inc.. 79 F.3d 1532,1541 (llth Cir.

1996),

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copying the 'idea,' and has borrowed its 'expression.' Decisions must therefore inevitably be ad

hoc." Peter Pan Fabrics.lnc. v. Martin Weiner corp., 274 F. 2d 487, 489 (2d Cir. 1960).

Applying this nebulous standard to the instant case, the Court has reviewed all 380 pages

of the Avatar course materials, and has compared those pages with The Source Course's 55-page

workbook.⁸ As a whole, the Avatar materials arguably include original expression entitled to

unoriginal expression which is not subject to copyright. For example, a large portion of Avatar's

Section I contains a personality profile form, Braun includes a similar form in The Source Course

materials which Plaintiffs characterize as infringement. Yet, anyone pursuing the idea of a

personality profile would likely use a similar form to elicit the same basic information. These and

other mere exemplification of ideas, procedures, or processes are not original works subject to

to record information rather than to explain information was not eligible for copyright protection).

Although Plaintiffs could arguably establish that a portion of its copyrighted Avatar

materials contain the minimal level of originality required for copyright protection, the more

difficult question is whether Plaintiffs can produce sufficient evidence to prove infringement. To

prove infringement. a plaintiff must demonstrate that the defendant actually copied plaintiff’s work

and that there is a substantial similarity between the defendant's work and the plaintiff's protected

work. Herzog v. Castle Rock Entm't, 193 F .3d at 1248. .'If the plaintiff does not have direct proof

of copying, the plaintiff may show copying by demonstrating that the defendant[] has access to the

copyrighted work and that the works are 'substantially similar." Id at 1248, Two works are

⁸ ln order to preserve the confidentiality of Sections n and III, these materials, together with

Defendant's Source Course, were filed under seal.

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considered substantially similar when "an average lay observer would recognize the alleged copy

as having been appropriated from the copyrighted work," Original Appalachian Artworks. Inc. v.

Toy Loft.lnc., 684 F.2d 821,829 (11th Cir. 1982).

Clearly, The Source Course is not a blatant copy of Avatar. Thus, the issue is whether

Defendant’s work is substantially similar to Plaintiffs' .At the hearing on this matter, Plaintiffs

introduced an exhibit summarizing Defendant's alleged plagiarism. (Ex.39). In this exhibit,

Plaintiffs provide examples of the two works to illustrate that The Source Course follows the same

sequence of topics, includes the same procedural steps, and paraphrases the same expressions,

explanations, and instructions as Avatar.⁹ Of the examples provided, only a handful contain

identical expressions. Of the balance, some are similar, while others appear to differ significantly.

Although the Court will not detail here every instance where Plaintiffs claim that Defendant has

infringed the Avatar materials, several examples of the alleged infringement bear discussion.

Plaintiff directs the Court to Exercise 23 of Avatar Section It entitled "Transparent

Beliefs," (Ex. 4 at 111 ), and claims that Defendant essentially copied this section on page six of

The Source Course. For ease of comparison, the two versions are set forth side-by-side below:

Avatar The Source Course

Transparent Beliefs Your life and how you create it

A belief is transparent when you are operating You've already been asked to write down

through the belief without noticing it. some personal history and a few observations

Transparent beliefs are seldom helpful and, in for future reference. Here are some more

fact, can be fatally debilitating. Most are self- questions about your feelings and beliefs.

sabotaging, adopted in a moment when you

were something less than rational.

⁹On cross-examination, Palmer conceded that the examples provided to the Court in exhibit

39 are the only examples of infringement of which he is presently aware.

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The first impression you have of a transparent Note that "beliefs" may also be called facts,

belief is that it is unquestionably true. That's opinions, attitudes, emotions or thoughts. Any

just the way life is. That's the way I am. general statement that can be preceded by the .

Here's the proof. But then something funny word "because...'. is a belief of one sort or .

happens: you discover that the proof for another. The word "should" is often part of a

holding the belief is actually produced by the genera1ized, broadly shared belief.

belief itself. A pattern begins to unfold.

Transparent beliefs are discovered by tricking When you come across a belief or "fact" that

yourself into expressing them and then seems absolutely true--one that many people

stepping back and looking at what you said. would agree describes "the way things are"--

Transparent beliefs are often hidden under the you have hit on a transparent belief that may

desire to be right, so finding transparent be manufacturing your own reality or a shared

beliefs requires a degree of vulnerability. reality created within the mass consciousness

of your culture or group. Generally accepted

(Ex. 4 at 111 ). . beliefs arc worth checking out, just in case.

(Ex. 37 at 6).

A review of these two passages may indeed lead to the conclusion that the same notion --- transparent beliefs—is being discussed. However, since Plaintiffs cannot copyright the underlying idea or concept referred to as “transparent beliefs” and since Defendant’s expression of this idea is not substantially similar to Plaintiffs’, this example does not sufficiently demonstrate an infringement so as to warrant injunctive relief..

Another example of infringement, according to Plaintiffs, may be found by comparing Section III of the Avatar materials with page 42 of The Source Course. Section ill of the Avatar materials, entitled “Creation Handling Procedure,” outlines six steps for grasping the creation handling procedure concept. (Ex. 36 at 1-5). The Source Course expresses a corresponding idea under the heading “TOP, the key process.” (Ex. 37 at 42). Before revealing his own step-by-step process for “dissolving thoughts,’. Defendant openly acknowledges that this same idea or procedure has been discussed by others including Avatar:

What follows is a procedure known as the Tibetan Void Gem. It is a

way of dissolving thought forms. It is described in the works of

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Tarthang Tulku, a Tibetan Buddhist leader, and has been included in

many works. It is also related to the Sedona Method. A version

called the "Creation Handling Procedure" is taught on the Avatar

Course. Here we'll call it the "Thought Dissolving Process," or

TDP for short.

(Id.)

The TDP process set forth in The Source Course contains eight steps, compared to the six

steps of Avatar's Creation Handling Procedure. Plaintiffs claim that the steps outlined in The

Source Course are a thinly veiled copy of the steps outlined in Avatar. Step one of each work is

reproduced below.

Avatar The Source Course

1. Identify with and experience. 1. Grok it.

Awareness within a creation is consciousness, To dissolve a belief, you sense and enter the

Every creation contains consciousness and is thought form in order to fully accept and

connected with every other creation through experience it. You may feel you are entering

its beginning in awareness, Awareness is the center of an energy field or moving toward the

without definition; it cannot be described as to vortex of the belief or feeling. Just do a

this or that, existing or not, Only the creations little circular breathing, and settle into it. Get

of awareness exist. Consciousness is the full feeling as intensely as possible,

awareness being limited (defined) by a form without any opinion or judgment. Enjoy the

or quality. ride.

In the Feel-It Exercises of Section II, you (Ex. 37 at 42).

learned to merge with a creation and feel how

it feels. This is the essence of' ”identify with

and experience." It requires that you surrender

any resistance you might have to existing as

the belief, the feeling, the emotion, the idea,

the identity, the time, the space, or the mass of

whatever you are seeking to identify with and

experience. You become the limited

expression of consciousness that is being the

creation. ...

(Ex, 36 at 4).

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Frankly, after scrutinizing and comparing the steps of Avatar's Creation Handling

procedure with the steps of The Source Course's TDP process, the Court concludes that both

passages are virtually incomprehensible. What is clear, however, is that these passages are not so

similar that an ordinary observer would likely detect the resemblance,

Plaintiffs direct the Court to another example of the Defendant's alleged infringement in

Section II of the Avatar materials. This portion of the course is entitled, "Creation Exercise #3 -

Sourcing Originations." (Ex. 35 at 32). Its stated purpose is "[t]o allow the student to identify and

assume control over any secondary originations that act to curb or modify his/her ability to source

origination." (~). The Avatar procedure for this exercise contains two steps, In contrast, The

Source Course uses a nine-step procedure to capture this concept. According to Plaintiffs,

Defendant has plagiarized the Avatar materials by simply substituting the terms "affirmations" and

.'yeah, buts," for the Avatar terms "primary origination"¹⁰ and "secondary origination."¹¹ (Ex.37

at 33). Step one of the Avatar passage and step one of the offending Source Course passage are set

forth below::

¹⁰ Palmer defines primary origination as "a creation or communication invested with sufficient

intention and effort to create a reality." (Ex. 35 at 35).

¹¹ Palmer defines secondary origination as:

1. an unintended creation that is triggered by the creation one intends

2. an effort or intention concerned with how a primary origination is,

was, or will be received

3. an effort to monitor or modify the origin point or receipt point of a

communication

4. something that is there other than what is knowingly being created

5. an unaligned effort

(Id.)

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Avatar The Source Course

Procedure.... The Procedure:

1. The student voices a statement from the 1. State the affirmation as a declaration of

Source List as a primary origination and then truth. You want the feeling that this is

discovers any secondary originations that are absolutely true, with no reservations. Repeat

occurring spontaneously before, during, or it until you get a thought that opposes or

after the primary origination, qualifies the statement; or until you find a

reaction like a physical sensation or twitch.

(Ex. 35 at 32). (emphasis in original) There is your first .'Yeah, but."

(Ex. 37 at 33), (emphasis in original)

Here, again, although a spiritually enlightened lay observer might possibly conclude that

the two authors are discussing the same general concept, the expression of the concept is not the

same. Without substantial similarity, there can be no infringement.

Plaintiffs also direct the Court to a single page of The Source Course, (Ex. 37 at 34), which

seems to copy, verbatim, 15 short sentences found in Section II of the Avatar materials, (Ex. 35 at

34, 37). Although these sentences have been rearranged and ordered differently. (sequential

numbering versus bullets). and the number of sentences varies in each work, (31 versus 34), both

works display the sen1ences in the form of a list and both works use the lists as a tool for students

to identify and control their thoughts in order to transform their reality. The relevant Avatar

sentences are shown below, alongside their counterparts from The Source Course:

Avatar The Source Course

I have everything I need. I have what I need.

The past doesn't exist, My past doesn't exist.

I create what I experience. I own what I experience.

I am right here. I am right here.

I don't know where I am. I don't know where I am.

I am relaxed. I am relaxed.

Everything I see is illusion. Everything I see is illusion.

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What I see is real. Everything I see is real.

My mind is still. My mind is quiet.

1 am happy to be me. I'm happy being who I am.

I am not a victim. I am not a victim.

I feel like a victim. I feel like a victim,

1 am me. I am just me.

I create it all. I create everything.

...

(Ex. 35 at 34, 37) (Ex. 37 at 34)

Any lay person would observe that these sentences, where not identical, are strikingly

similar. However, that does not resolve the infringement inquiry. Rather, the question becomes at

what point does a defendant who copies a small portion of a copyrighted work, virtually verbatim,

cross the line from de minimus duplication to substantial similarity constituting copyright

infringement? Although "[n]o easy role of thumb can be stated as to the quantum of fragmented

literal similarity permitted without crossing the line of substantial similarity," the answer turns on

both quantitative and qualitative considerations. 4 M. Nimmer & D. Nimmer, Nimmer on

Quantitative refers to the amount of the plaintiff's total work that has been reproduced,

whereas qualitative refers to the importance of the portion taken to the value of the original work.

IQ. "If so much is taken that the value of the original is sensibly diminished, or the labors of the

original author are substantially to an injurious extent appropriated by another, that is sufficient in

point of law to constitute a piracy pro tanto." Folsom v. Marsh, 9 F. Cas. 342, 348, No.4901

(C.C.D. Mass. 1841) (Story, J.). This standard, like so many others in copyright law, is far from

clear and thus presents the "classic jury question." Roy Export Co.. Establishment v. Columbia

Broad. Sys.. Inc., 503 F. Supp. 1137.1145 (S.D.N.Y. 1980), affd. 672 F.2d 1095 (2d Cir. 1982),

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cert. denied, 459 U.S. 826 (1982). Indeed, a review of the cases addressing this issue hardly

reveals a crystalline standard for determining "how much is too much.'.¹²

In the instant case, the instances in which Plaintiffs' copyrighted materials have been

literally reproduced in Defendant's workbook are relatively few in comparison to the length and

breadth of Plaintiffs’ overall works. The Court does not decide today whether Plaintiffs can

ultimately establish that Defendant's copying of 15 sentences from the Avatar materials crossed

the threshold from de minimis piracy to substantial taking and thereby significantly diminished the

value of the Avatar course. However, for purposes of this motion, where Plaintiffs request the

drastic remedy of injunctive relief, the Court concludes that Plaintiffs' likelihood of success on

this issue is tenuous at best.

Both Avatar and The Source Course are rooted in generic psychological and metaphysical

principles, with a principal focus on the power of the human mind over one's life experiences.

These concepts have been pondered, discussed, expounded upon, and written about since time

immemorial. Although Braun clearly modeled The Source Course after Avatar, there are

considerable differences between the two works. The relative length and format of the two works

¹²See. e.g.,.’Rosemont Enters.. Inc. v. Random House. !nc... 366 F.2d 303 (2d Cir.1966), cert.

denied, 385 U.S. 1009 (1967) (appellate court, reversing district court's grant of preliminary

injunction, expressed .”considerable doubt" that defendant's act of copying 31 lines verbatim and

paraphrasing eight additional lines from plaintiff's work was material and substantial enough to

constitute copyright infringement); Martin Luther King Jr.Ctr.for SocialChange inc. v.American

Heritage Prods.. Inc., 508 F. Supp. 854 (N.D. Ga. 1981), rev'd on other grounds, 694 F.2d674 (llth

Cir. 1983) (copying of eight sentences sufficient to warrant preliminary injunction); Roy Export Co,

Establishment v. Columbia Broad. Sys.. Inc.. 503 F. Supp.1137, 1145 (S.D.N.Y.1980) (subsequent

history omitted) (infringement found where defendant copied one minute and 15 seconds from

plaintiffs' motion picture); .Suid v. Newsweek Magazine, 503 F. Supp. 146 (D.D.C. 1980)

(defendant's verbatim copying of 16-word quotation found de minimis); Rokeach v. Avco Embassy

Pictures Corp., 197 U.S.P.Q. 155 (S.D.N.Y. 1978) (defendant's copying of 100 words out of 70,000

found de minimis); Amana Refrigeration.lnc. v. Consumers Union of U.S., Inc., 431 F. Supp. 324

(N.D. Iowa 1977) (infringement found where defendant copied one paragraph, consisting of three

I sentences, ftom plaintiff’s work). .

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differ significantly. Further, those portions which are ostensibly similar contain different

expressions of common concepts. Additionally. the Court is not confident that Plaintiffs can

ultimately establish that Defendant's appropriation of 15 short sentences from two pages of the

180 pages of Avatar materials constitutes the substantial similarity required to prove infringement.

Consequently, because the Court has considerable doubt that Plaintiff can prevail on the merits of

its copyright infringement claim, injunctive relief is not available.¹³

IV. CONCLUSION

.Based on the foregoing discussion, it is hereby ORDERED and ADJUDGED that

Plaintiff’s Motion for Preliminary Injunction (Doc. No.25) is DENIED.

DONE and ORDERED in Chambers, Orlando, Florida this 30 day of July, 2001.

UNITED STATES DISTRJCT JUDGE

Copies furnished to:

Counsel of Record

Unrepresented party

¹³The Court’s conclusion that Plaintiffs have not established a substantial likelihood of success

on the merits obviates the need to discuss the other preliminary injunction factors.

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