UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CEZANNE C. DALLIER,
Plaintiff-Appellant,

v.
                                                                    No. 95-2551
LEVI STRAUSS & COMPANY; FOOTE,
CONE & BELDING COMMUNICATIONS,
INCORPORATED,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, District Judge.
(CA-95-70-A)

Argued: April 3, 1996

Decided: May 28, 1996

Before ERVIN, Circuit Judge, LAY, Senior Circuit Judge of the
United States Court of Appeals for the Eighth Circuit, sitting by
designation, and TRAXLER, United States District Judge for the
District of South Carolina, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Bernard Lawrence Sweeney, BIRCH, STEWART,
KOLASH & BIRCH, L.L.P., Falls Church, Virginia, for Appellant.
Henry Lowell Mason, III, SIDLEY & AUSTIN, Chicago, Illinois, for
Appellees. ON BRIEF: Robert J. Kenney, BIRCH, STEWART,
KOLASH & BIRCH, L.L.P., Falls Church, Virginia, for Appellant.
Michael V. Casaburi, SIDLEY & AUSTIN, Chicago, Illinois; Ann K.
Adams, SIDLEY & AUSTIN, Washington, D.C., for Appellees.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Cezanne Dallier appeals the district court's1 grant of summary
judgment to Levi Strauss & Co. ("Levi's") and Foote, Cone & Beld-
ing, Inc. ("FCB") on her claim of copyright infringement and pendent
state law claims of breach of implied contract and unfair competition.

Copyright Infringement

Dallier alleges that Levi's and FCB, Levi's advertising agency,
infringed her copyright by copying a number of advertising
storyboards--which she submitted to Levi's during a teaser campaign
soliciting advertising ideas for Levi's 501 Button-Fly Jeans--for a
subsequent Levi's "Jeans For Women" advertising campaign. A suc-
cessful copyright infringement claim must show "ownership of the
copyright by the plaintiff and copying by the defendant." Keeler
Brass Co. v. Continental Brass Co., 862 F.2d 1063, 1065 (4th Cir.
1988). If there is no direct evidence of copying, a plaintiff may prove
a prima facie case of copying by showing that the defendant had
access to the copyrighted material and the defendant's product is sub-
stantially similar to the copyrighted material. Id. Dallier does not offer
any direct evidence of copying by the defendants, but contends she
has presented sufficient evidence of a prima facie case of copying to
sustain her claim.
_________________________________________________________________
1 The Honorable Claude M. Hilton, United States District Judge for the
Eastern District of Virginia.

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Levi's and FCB deny the allegations and have offered evidence of
independent creation. The defendants also urge that Dallier has not
made a showing of a prima facie case because the"Jeans For
Women" advertising materials are not substantially similar to Dalli-
er's copyrighted materials. The district court ruled that Dallier failed
to produce any evidence to rebut the defendants' claim of independent
creation and also failed to show substantial similarity. After reviewing
the briefs and the record, we agree with the district court that the
advertisements are not substantially similar to Dallier's copyrighted
materials, and thus we conclude that Dallier failed to make a prima
facie showing of copying.

The substantial similarity test involves two prongs: first, an objec-
tive test comparing the ideas, or patterns, themes, organization, and
other objective details, of the copyrighted materials with the alleged
copy; and second, a subjective test comparing the expression of those
ideas, or the "total concept and feel," of the two works from the per-
spective of the intended audience. See Dawson v. Hinshaw Music
Inc., 905 F.2d 731, 732-33 (4th Cir.), cert. denied, 498 U.S. 981
(1990); Litchfield v. Spielberg, 736 F.2d 1352, 1356 (9th Cir. 1984),
cert. denied, 470 U.S. 1052 (1985); cf. Shaw v. Lindheim, 919 F.2d
1353, 1357 (9th Cir. 1990) (noting the expansion of the objective test
to "encompass all objective manifestations of creativity"). Dallier
urges she has shown the copyrighted materials and the alleged copies
are substantially similar because they both depict women, in similar
poses, wearing jeans while engaged in "various activities." In addi-
tion, Dallier contends, both the storyboards and the advertisements
use distinctive spot blue coloring on the jeans in contrast with the rest
of the drawings, which are in black and white. Finally, Dallier argues
that one of the Levi's advertisements, J.A. 285, which features a bare-
foot woman with long hair "in a deep crouch or seated position, hold-
ing her left leg with her left arm," is particularly similar in positioning
to the female character in one of her storyboards, J.A. 302.

Analyzing the objective details of Dallier's storyboards and the
Levi's advertisements, we find no substantial similarity that would
allow a jury to find copying without direct evidence of copying. First,
the Levi's advertisements use an abstract form of presentation resem-
bling the art work of Henri Matisse, whereas Dallier's storyboards
feature realistic drawings of actual women intended to appear in tele-

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vision commercials. Second, the Levi's advertisements mostly place
women in various acrobatic, contorted, or crouched positions,
whereas Dallier's storyboards present women in more typical stand-
ing or sitting positions. Third, the blue in the Levi's advertisements
is a solid dark blue on the jeans, whereas the blue in Dallier's story-
boards is lightly sketched onto the jeans. Fourth, there is no obvious
similarity in the "activities" in which the female characters are
engaged. Fifth, to the extent that the common use of spot blue color-
ing on jeans suggests Levi's borrowed a thematic concept from Dal-
lier, this fact can readily be explained by the widespread use of spot
coloring in advertising and the nature of the product to be sold, i.e.,
blue jeans, and thus is not sufficient to allow a jury to infer copying.
See, e.g., Aliotti v. R. Dakin & Co., 831 F.2d 898, 901 (9th Cir. 1987)
(summary judgment proper where similarities in stuffed dinosaurs
result only "from either the physiognomy of dinosaurs or from the
nature of stuffed animals"); Eden Toys, Inc. v. Marshall Field & Co.,
675 F.2d 498, 500 (2d Cir. 1982) (summary judgment proper where
similarities in stuffed toy snowmen are the result of the "traditional
characteristics" of all snowmen).

Finally, the fact that the female character in one of Dallier's seven
storyboards (J.A. 302) is arguably in the same position as a female
character in one of Levi's several dozen advertisements (J.A. 285)
does not overcome the basic differences between Dallier's story-
boards and the Levi's advertisements. Given the large number of
drawings involved, it is not unexpected that the positioning of the
female character in one of the Levi's advertisements would bear some
resemblance to one of Dallier's storyboards. Cf. Towler v. Sayles, 76
F.3d 579, 584 (4th Cir. 1996) ("[C]omparing`random similarities
scattered throughout [two screenplays]' is`inherently subjective and
unreliable.'" (quoting Litchfield, 736 F.2d at 1356)). Moreover, the
specific drawings to which Dallier directs our attention have substan-
tial differences that seriously undermine any possible inference of
copying.2 In summary, we find the strained resemblance between this
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2 Specifically, unlike the woman in Dallier's storyboard (J.A. 302), the
woman depicted in the Levi's advertisement (J.A. 285) is crouched, not
sitting; is facing the ground, not looking at the audience with a smile; is
bent over at the waist, not sitting erect; is grabbing her left leg solely
with her left arm, not with both arms; has her left foot on the ground, not
in the air; has her left leg bent, not straight; and has her right foot tucked
under her body, not bent in front of her body.

                    4
single pair of drawings insufficient for Dallier to withstand the defen-
dants' motion for summary judgment without direct evidence of
copying to support her claims.

Pendent State Law Claims

Dallier contends that even if there is insufficient evidence of copy-
ing by the defendants, there is a triable issue of fact as to whether they
used or appropriated her materials in unfair competition or in breach
of an implied contract. Assuming for purposes of summary judgment
that the defendants saw Dallier's storyboards and actually used gener-
alized ideas or themes from them in developing the"Jeans For
Women" campaign, although in a manner not amounting to a copy-
right violation, we nonetheless affirm the district court's grant of
summary judgment.

Misappropriation

Dallier alleges the defendants engaged in unfair competition when
they misappropriated her thematic concepts for the"Jeans For
Women" advertising campaign. Under California law,3 the elements
of misappropriation are (1) plaintiff's investment of "`substantial time
and money'" to develop her property, (2) defendant's appropriation
of her property "`at little or no cost,'" and (3) injury to the plaintiff
as a result of the defendant's action. See Self Directed Placement
Corp. v. Control Data Corp., 908 F.2d 462, 467 (9th Cir. 1990) (quot-
ing Balboa Ins. Co. v. Trans Global Equities, 267 Cal. Rptr. 787, 795
(Cal. Ct. App.), cert. denied, 498 U.S. 940 (1990) (quotation omit-
ted)). It is well settled under California law, however, that "an idea
is not recognized as a property right." Whitfield v. Lear, 751 F.2d 90,
92 (2d Cir. 1984) (citing Weitzenkorn v. Lesser , 256 P.2d 947, 956
(Cal. 1953) (en banc)); Desny v. Wilder, 299 P.2d 257, 265-66 (Cal.
1956) (en banc). The generalized themes and ideas in Dallier's story-
boards, which the defendants allegedly misappropriated, thus provide
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3 Dallier argues that Virginia law, not California law, applies, but does
not cite any Virginia law governing implied contracts, nor have we found
any authority under Virginia law contrary to California's laws. Because
no conflict of laws is apparent, we apply California law to Dallier's state
law claims.

                     5
no basis for an unfair competition or misappropriation claim, although
such generalized themes and ideas can form the basis of a contract
claim. See Whitfield, 751 F.2d at 92; Desny, 299 P.2d at 266.

Breach of Contract

If there does not exist substantial similarity between the plaintiff
and the defendants' work, no breach of an implied contract can be
shown. See Whitfield, 751 F.2d at 93-94; Weitzenkorn, 256 P.2d at
957-58. As we have previously held, there is no evidence of substan-
tial similarity between the submission of the plaintiff and the defen-
dants' advertisements and thus this claim fails as a matter of law.

Furthermore, an implied contract requires actual or constructive
awareness on the part of the offeree that the goods or services are
being provided "`to the offeree for sale.'" See Aliotti, 831 F.2d at 902
(quoting Faris v. Enberg, 158 Cal. Rptr. 704, 709 (Cal. Ct. App.
1979)); see also Desny, 299 P.2d at 267 (a person who uses another's
valuable idea "knowing that it is tendered for a price" should compen-
sate the person who conveyed the idea under implied contract theory).
However, "no contract may be implied where an idea has been dis-
closed not to gain compensation for that idea but for the sole purpose
of inducing the defendant to enter a future business relationship."
Aliotti, 831 F.2d at 902 (citing Faris, 158 Cal. Rptr. at 709-10).

In this case, Dallier submitted her storyboards in response to Levi's
teaser campaign soliciting advertising ideas from the general public.
There is no evidence of an industry custom to compensate for ideas
submitted in such a manner. Cf. Whitfield, 751 F.2d at 93 (industry
custom to pay for actual use of unsolicited television scripts). Dallier
did not negotiate for the use of her ideas, nor did she inform the
defendants that her storyboards were copyrighted, and thus no request
for compensation for use of her ideas may be inferred. Rather, Dallier
told Levi's only that she was "interested in commercial representation
with your agency" and that she "hope[d] to hear from [Levi's] soon."
J.A. 308. Under these circumstances, the defendants would have rea-
sonably read this statement not as a demand for present compensation
for her ideas, but as a request for a future business relationship. Thus,
Dallier's claim for breach of an implied contract fails as a matter of
law.

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For the reasons stated, the judgment is

AFFIRMED.

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