## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 7 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

PHILIP CONDON FISHER,

Plaintiff-Appellant,

v. UNITED FEATURE SYNDICATE, INC., a Scripps Howard company; DENVER PUBLISHING COMPANY; E.W. SCRIPPS COMPANY; CHARLES SCHULTZ; LEE MENDELSON, Producer; BILL MELENDEZ; BARR ARTHUR PRODUCTIONS, INC.; WHOLESALE WAREHOUSING OF CANADA; CBS, INC.; NEWS AMERICA PUBLISHING, INC.; KELLOGG COMPANY; METROPOLITAN LIFE INSURANCE COMPANY; CAPITAL CITIES/ABC, INC.; TCI OF COLORADO; GENERAL ELECTRIC COMPANY; TURNER BROADCASTING SYSTEM, INC.; UNIVERSAL PRESS SYNDICATE, INC.; SEARS, ROEBUCK AND COMPANY; MONTGOMERY WARD & COMPANY; KACEY FINE FURNITURE; SOUNDTRACK; FINGERHUT CORPORATION; BEST BUY COMPANY; TYSON FOODS, INC.; WALT DISNEY COMPANY; ADVANCE PUBLICATIONS INCORPORATED; S.I. HOLDINGS No. 99-1162 (D.C. No. 96-D-1895) (D. Colo.)* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. -2- INC.; THOMSON CONSUMER ELECTRONICS,

Defendants-Appellees, and
KARTES VIDEO COMMUNICATIONS; CYCLONE INCORPORATED; KING FEATURES SYNDICATE, INC.; COWLES SYNDICATE, INC.,

Defendants.

ORDER AND JUDGMENT *

Before EBEL , KELLY , and BRISCOE , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T herefore, plaintiff’s request for oral argument is denied andthe case is ordered submitted without oral argument.-3-

Plaintiff Philip Condon Fisher, appearing pro se, b rought this action against defendants, claiming that defendants had infringed copyrights Fisher held in a comic strip character named “Chipper” and a comic strip named “Langsyne.” After considering Fisher’s many objections, the di strict court affirmed and adopted the magistrate judge’s recommendation that defendants’ various motions to dismiss be granted and that Fisher’s mot ions for summary judgment be denied. See Fisher v. United Feature Syndicate, Inc. , 37 F. Supp. 2d 1213 (D. Colo. 1999). Fisher appeals, claiming that the district court erred (1) in dismissing his claims that United Feature Syndicate’s 1974 feature “It’s A Mystery Charlie Brown,” starring “Snoopy” as a Sherlock Holmes-type detective dog infringed his copyrights; (2) in dismissing his claims that M etropolitan Life Insurance Company’s television advertisements starring “Snoop y” as a Sherlock Holmes-type detective dog infringed his copyrights; (3) in dismissing his claims against several defendants owned by RCA (the RCA de fendants) for copyright infringement; (4) in dismissing his claims that def endant Tyson Foods infringed his copyright by use of its “CHICK’N CHIPPERS” labe l on one of its chicken products; (5) in dismissing his claims that defendant Universal Press Syndicate’s “For Better Or For Worse” comic strip plagiarized h is copyrighted “Langsyne” comic strip; and (6) in dismissing his claim that U nited Feature Syndicate1 Fisher filed a mostly unintelligible 128-page, 300- paragraph, 43-claim

complaint against forty-one defendants seeking over$3 billion in damages. Fisher filed two large boxes of exhibits with his c omplaint which were not served on defendants. In an amended complaint, he incorpo rated the exhibits by reference, but still failed to serve defendants wit h the exhibits. Following an unsuccessful appeal of the district court’s order r equiring service of the exhibits, the court granted the defendants’ motions to quash service based on Fisher’s failure to serve all defendants with copies of the exhibits. Although it is unclear as to whether Fisher ever properly served defendant s with the exhibits, the magistrate judge addressed the merits of Fisher’s c laims because the defendants addressed the merits in their various motions to dismiss. See Fisher , 37 F. Supp. 2d at 1222 and n.2. -4- infringed his copyright in its comic strip “DRABBLE.” 1 We have jurisdiction pursuant to 28 U.S.C. § 1291, and, following a care ful review of this case, we affirm. We review de novo the sufficiency of a complaint to survive a Fed. R. Civ. P. 12(b)(6) motion to dismiss for fail ure to state a claim for which relief may be granted. See Bauchman ex rel. Bauchman v. West High Sch. , 132 F.3d 542, 550 (10th Cir. 1997). Accepting any well-pleaded allegations of the complaint as true and construing them in the li ght most favorable to the plaintiff, the district court may appropriately dis miss a complaint only when it appears that the plaintiff can prove no set of fact s in support of his claims that would entitle him to relief. See Yoder v. Honeywell, Inc. , 104 F.3d 1215, 1224 (10th Cir. 1997). We construe Fisher’s pro se pleadings liberally. See Haines v.
Kerner , 404 U.S. 519, 520-21 (1972).-5- I. Copyright Infringement “In order to prevail on [his] copyright infringement claim, [p]laintiff must establish both: (1) that [he] possesses a valid cop yright and (2) that [d]efendants ‘copied’ protectable elements of the copyrighted work.” Country Kids ‘N City Slicks, Inc. v. Sheen , 77 F.3d 1280, 1284 (10th Cir. 1996) (quoting Feist Pubs., Inc. v. Rural Tel. Serv. Co. , 499 U.S. 340, 361 (1991)). Initially, our inquiry here focuses on whether, as a factual matter, defendants copied Fisher’s comic strip. See id. Second, we must determine, as a mixed issue of fa ct and law, if the copied elements of Fisher’s work, if any, were prot ectable under his copyright. See id. The Copyright Act provides that copyright protect ion does not extend to “any idea, procedure, process, system, method of op eration, concept, principle, or discovery, regardless of the form in which it is de scribed, explained, illustrated, or embodied in such work.” 17 U.S.C. § 102(b). “O ne of the fundamentals of copyright law is that a copyright does not protect an idea, but only the expression of the idea.” Autoskill Inc. v. National Educ. Support Sys., Inc. , 994 F.2d 1476, 1491 (10th Cir. 1993). Fisher can prove copying ei ther directly, or indirectly by establishing that defendants “had access to the cop yrighted work and that there are probative similarities between the copyrighted material and the allegedly copied material.” Country Kids ‘N City Slicks, Inc. , 77 F.3d at 1284

.2 We reject, as did the district court, Fisher’s urgi ng that we abandon the

abstraction-filtration-comparison test in favor of a “parallel column analysis” which purports to show by means of comparison of parts and portions of Fisher’s comic strip and defendants various depictions, the similarity between the two. -6- In making a determination of whether defendants’ wo rk is substantially similar to the protected elements of Fisher’s work, this circuit applies an “‘abstraction-filtration-comparison’” test, requiri ng that we (1) “separate the ideas (and basic utilitarian functions), which are not protectable, from the particular expression of the work[;]” (2) “filter o ut the nonprotectable components of the product from the original express ion[;]” and (3) “compare the remaining protected elements to the allegedly copie d work to determine if the two works are substantially similar.” 2 Id. at 1284-85; see also Gates Rubber Co. v. Bando Chem. Indus., Ltd. , 9 F.3d 823, 834-42 (10th Cir. 1993). In determin ing whether the two works are substantially similar, th e court inquires “‘whether the accused work is so similar to the plaintiff’s work that an ordinary reasonable person would conclude that the defendant unlawfullyappropriated the plaintiff’s protectible [sic] expression by taking material of substance and value.’” Country Kids ‘N City Slicks, Inc. , 77 F.3d at 1288. (quoting Atari, Inc. v. North Am. Philips Consumer Elecs. Corp. , 672 F.2d 607, 614 (7th Cir. 1982)).-7- A. “Snoopy” v. “Chipper” In his complaint, Fisher alleged that United Featur e Syndicate, Inc. Charles Schultz, and various other individuals and entities associated with the “Peanuts” comic strip character, “Snoopy,” and the story “It’ s A Mystery Charlie Brown,” infringed his copyrights by depicting “Snoopy” in the role of a detective clad in a Sherlock Holmes hat and cape with a large horn pipe and magnifying glass. Fisher alleged that this depiction infringed his co pyrighted comic strip portraying a “cowardly” detective dog named “Chipper.” Fisheralso claimed that a television commercial for Metropolitan Life Insuran ce Company using “Snoopy” in his Sherlock Holmes role infringed on his “Chipp er” copyrights. Both claims are without merit. In affirming the magistrate judge’s dismissal recom mendation on this claim, the district court rejected Fisher’s content ion that because both “Snoopy” and “Chipper” were portrayed as “cowardly detective dog[s],” the two were “substantially similar.” Fisher , 37 F. Supp. 2d at 1218. The court concluded that Fisher relied exclusively on the cowardly detective dog similarity and did not satisfy the “abstraction-filtration-comparison” tes t under the reasonable observer standard. See id. at 1219. We agree. As defendants point out in their brief, “Snoopy” wa s on the scene in 1950, more than twenty years before Fisher copyrighted hi s “Chipper” character in-8-

1974. See Appellees’ Jt. Br. at 12. Defendants also noted that during those twenty years “Snoopy” was depicted in numerous role s, including a 1962 “Peanuts” episode, submitted as an exhibit by Fishe r, depicting “Snoopy” dressed in a Sherlock Holmes hat and pipe. See id. at 12 n.5. Defendants also contend that while Fisher portrays “Chipper” as a “humanized” dog, see id. at 20, “Snoopy” is, and always has been, depicted as a dog , “Charlie Brown’s” pet, see id. at 12. Fisher alleges that “Snoopy’s” depiction a s “cowardly” in “It’s A Mystery, Charlie Brown,” was a departure from his u sual depiction as heroic, and was therefore, evidence of copying. Defendants’ re spond, and we agree, that while the “Snoopy” detective character has been dep icted as running away if startled, he has always been depicted as a characte r with “bravado” and has never been depicted as either particularly heroic or cowa rdly. Here, it is undisputed that Fisher holds a valid co pyright on his “Chipper” comic strip character. See Feist Pubs. Inc. , 499 U.S. at 361. However, we agree with the district court that Fisher failed to estab lish sufficient similarities between his “Chipper” comic strip and the detective dog portrayed by “Snoopy” in “It’s A Mystery Charlie Brown” to support his claim that de fendants copied his work. See Gates Rubber Co. , 9 F.3d at 832. Moreover, even if we were to assu me that defendants copied portions of Fisher’s work, we can not conclude that those-9-

portions are “protected expression and of such impo rtance to the copied work that the appropriation is actionable.” Id. Copyright protection is afforded only to original works. See 17 U.S.C. § 102(a); Feist Pubs., Inc. , 499 U.S. at 345 (“To qualify for copyright protec tion, a work must be original to the author. Original, a s 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.”) (citation omitted). Under the “ scenes a faire doctrine,” expressive elements of a work are not entitled to copyright pr otection if they “are standard, stock, or common to a particular topic, or . . . ne cessarily follow from a common theme or setting.” Gates Rubber Co. , 9 F.3d at 838; see also Autoskill , 994 F.2d at 1494. Here the Sherlock Holmes treatment is an expression which is common to the detective idea, and “is lacking in the originality that is the sine qua non for copyright protection.” Gates Rubber Co. , 9 F.3d at 838; see also Mitel, Inc. v. Iqtel, Inc. , 124 F.3d 1366, 1374-75 (10th Cir. 1997) (noting that “the Irish cop” in “often-recurring themes of police fiction,” are unprotected scenes a faire ) (quotation omitted). Likewise, Fisher’s claim that the appearance of the misspellings of the legal terms “baratry” (barratry) and “repleven” (re plevin), in the “It’s a Mystery, Charlie Brown” book is prima facie evidence of infr ingement fails for the same-10-

reason. Fisher contends that these are copies of “ clerical and typographical errors” proving piracy. Appellant’s Br. at 6. If there was no other justification for the errors appearing in the book, they could, a s Fisher contends, suggest copying. See Central Tele. Co. of Va. v. Johnson Pub. Co. , 526 F. Supp. 838, 844 (D. Colo. 1981) (opining that the existence of comm on errors in two telephone directories was strong evidence of copying). As de fendants argue, however, these errors appear to be in line with the comic strip ch aracters’ proclivity for misuse and mispronunciation of legal terms in the Charlie Brown strip. As such, they could be construed as an integral part of the humoror subject matter, a construction that would not give rise to a suggestion of copying. See Gates Rubber Co. , 9 F.3d at 838. Moreover, even if we were to cons ider the common errors to be some evidence of copying, this does no t relieve Fisher of his burden of proving more substantial similarities between th e works, a burden he did not

meet. See Country Kids ‘N City Slicks, Inc. , 77 F.3d at 1288. The idea of a detective dog is an element which is not included in copyright protection. See 17 U.S.C. § 102(b). Moreover, an expression of th at idea in a manner which is as common in the public domain as S herlock Holmes falls under the scenes a faire doctrine, is not entitled to copyright protection, and “cannot serve as the basis for ultimate liability for copyright infringement,” Gates Rubber
Co. 9 F.3d at 832 n.7.-11-

This same rationale applies equally to Fisher’s contention that defendant Metropolitan Life Insurance Company infringed his c opyright when they used “Snoopy” in his role as a detective dog in its tele vison commercials. Therefore, the district court’s dismissal of these claims for failure to state a claim upon which relief may be granted was correct.

B. “Chipper” the comic strip v. “Chipper” the puppy Fisher claimed that newspaper and television advert isements for various RCA defendants featuring a picture of a puppy named“Chipper” infringed on his copyright to the name and label of his comic strip. In rejecting this argument, the district court concluded that Fisher had neithe r met his “burden of establishing access by showing that defendant had a reasonable o pportunity to view or copy the allegedly infringed work,” or shown substantial similarity. Fisher , 37 F. Supp. 2d at 1219. We agree, and affirm the d istrict court on this claim for the reasons stated in its order. See id.

C. “Chicken Chipper” v. “Chick ‘n Chipper” Next, Fisher asserts that the district court erred in dismissing his copyright infringement claim against defendant Tyson Foods. Fisher contends that defendant’s use of the phrase “Chick ‘N Chippers” o n one of is food products is a copy of the phrase “Chicken Chipper” which Fisherused in his copyrighted comic strip. Again the district court found that F isher failed to allege access,-12-

see Country Kids ‘N City Slicks, Inc. , 77 F.3d at 1284, and failed to address this deficiency in his objections to the magistrate judg e’s recommendation. Fisher does not provide any more support on appeal. There fore, we affirm the district court’s dismissal of this claim for the reasons stated in its order. See Fisher , 37 F. Supp. 2d at 1220.

D. “Langsyne” v. “For Better or For Worse” In his fifth claim of error, Fisher contends that the district court erred in dismissing his claim against defendant Universal Pr ess Syndicate, alleging that defendant’s comic strip of November 15, 1992, “For Better or For Worse,” infringed Fisher’s copyright of his 1975 comic stri p “Langsyne.” This claim was dismissed by the district court as outside the appl icable statute of limitations. See Fisher , 37 F. Supp.2d at 1222-23. On appeal, Fisher cont inues to argue the merits of his claim, while neglecting to address any error in the district court’s finding that the claim was barred by the statute of limitations. We, therefore, affirm the district court’s dismissal of this claimfor the reasons stated in its order. See id. E. “Chipper” v. “Drabble” Finally, Fisher contends that defendant United Feature Syndicate infringed his copyright in its October 10, 1993, comic strip “Drabble.” In affirming the magistrate judge’s recommendation that this claim b e dismissed, the district court-13-

agreed that Fisher continues to misunderstand the s cope of copyright protection in his allegations that the appearance of similar idea s, words, and phrases in other comic strips proves copyright infringement. The co urt concluded that none of the alleged offending comic strips could be found to be substantially similar to Fisher’s “Chipper” strip. See id. at 1220. We agree, and affirm the district court on this claim also.

II. Conclusion In conclusion, we affirm the district court’s dismi ssal of Fisher’s claims for the reasons stated above and for substantially the same reasons stated in the magistrate judge’s recommendation and the district court’s order, Fisher , 37 F. Supp. 2d 1213. Insofar as Fisher attempts to pose new arguments in his reply brief, this court does not consider issues no t raised and argued in the opening brief. See State Farm Fire & Casualty Co. v. Mhoon , 31 F.3d 979, 984 n.7 (10th Cir. 1994); Codner v. United States , 17 F.3d 1331, 1332 n.2 (10th Cir. 1994). Fisher’s motion to strike portions of appellees’ jo int answer brief is DENIED. Defendant Tyson Foods’ motion to strike “a ddendum I” to appellant’s-14-

reply brief is GRANTED. The judgment of the UnitedStates District Court for the District of Colorado is AFFIRMED.

Entered for the Court

David M. Ebel Circuit Judge