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Israel v. Strassberg

United States District Court, D. Utah

September 7, 2018




         This matter is before the Court on Defendants' Motion for Summary Judgment. For the reasons that follow, the Court will grant the Motion.

         I. BACKGROUND

         Pro se Plaintiff Esther Israel (“Plaintiff”) was admitted to the Ph.D. Psychology program at the University of Utah in 2002. Defendant Donald Strassberg was Israel's assigned research advisor. The University dictated that, prior to pursuing a doctoral degree, Plaintiff needed to meet the University's requirements for a master's degree in clinical psychology. Accordingly, Plaintiff was required to complete a master's thesis.

         During her studies, Plaintiff researched the concept of relying on viewing time to measure a subject's sexual interest. This research became the subject of her master's thesis. In developing a study that would form the basis of her thesis, Plaintiff selected and arranged a set of images, wrote instructions and survey questions, and created the syntax necessary for the study to be administered by a computer program called DirectRT. The images, text, and syntax ultimately used in her study are the subject of this copyright infringement suit.[1]

         Israel's master's thesis, entitled “Viewing Time as an Objective Measure of Sexual Interest, ” was approved in June 2006. Strassberg felt the work was important to the field of study and, in 2007, Strassberg submitted Plaintiff's master's thesis in an academic journal with his name included as second author. At some point during the time Plaintiff and Strassberg worked together, their relationship became strained.

         In 2005, Defendant Jordan Rullo joined the graduate program and began working with Strassberg, who was assigned to be her graduate advisor. Plaintiff alleges that Strassberg began sharing Plaintiff's original materials with Rullo around this time, and that the two Defendants used Plaintiff's thesis materials without her knowledge or consent. Defendants assert that Plaintiff willingly gave them permission to use the materials, and also assisted Rullo in the development of Rullo's thesis.

         Rullo published her master's thesis in 2008. Rullo's thesis utilized Plaintiff's study materials and methods and built upon Plaintiff's viewing time study by examining the relevant data as to gay and lesbian populations.[2] Strassberg felt Rullo's thesis was also important to the field of study and submitted it . Rullo's thesis was published in March 2009 and included Strassberg as second author and Plaintiff as third author. Plaintiff alleges she did not agree to being listed as third author, though Defendants maintain she specifically requested attribution and agreed to be third author, given her significant contributions to the work.

         In 2009, Plaintiff left the University on contentious terms without completing her Ph.D. program. However, a number of graduate students working under the advisement of Strassberg continued to build on Plaintiff's original research after Plaintiff left the University.

         Israel filed this suit in October 2015, naming the University of Utah, Strassberg, Rullo, and several other graduate students that worked under the advisement of Strassberg as Defendants. Plaintiff alleges Defendants Strassberg, Rullo, and the other named individuals produced peer-reviewed publications, academic papers, or presentations that infringed on her copyright without her consent, and further misappropriated the use of her name. Plaintiff also alleged that Defendant University of Utah repeatedly failed to address her reports of copyright infringement.

         The University of Utah filed a Motion to Dismiss Plaintiff's claims based on Eleventh Amendment sovereign immunity. Plaintiff's Motion was granted on April 18, 2017, and Defendant University of Utah was dismissed from the case.

         The remaining Defendants filed a Motion for Summary Judgment on April 10, 2018, seeking dismissal of each of Plaintiff's claims as a matter of law. Plaintiff opposes the Motion, arguing that a number of disputed facts prevent the Court from granting summary judgment.


         Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”[3] The materiality requirement dictates that “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.”[4]

         “At the summary judgment stage, a complainant cannot rest on mere allegations, but must set forth by affidavit or other evidence specific facts, which for purposes of the summary judgment motion will be taken to be true.”[5] The Court is required to construe all facts and reasonable inferences in the light most favorable to the nonmoving party.[6] “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.”[7]


         Plaintiff alleges that Defendants (1) infringed on her copyright in violation of 17 U.S.C. § 501; (2) violated the Federal Lanham Act, 15 U.S.C. § 1225, by misattributing or failing to attribute Plaintiff's name in the authorship of various publications; and (3) violated Utah's false endorsement law codified in Utah Code Ann. § 13-11a-3.


         Claims one and five in Plaintiff's Complaint allege copyright infringement. “In order to prevail on a claim of copyright infringement, the plaintiff must show: (1) ownership of a valid copyright, and (2) copying by the defendant of protected components of the copyrighted material.”[8]

         1. Valid copyright

         “A Certificate of Registration, if timely obtained, constitutes prima facie evidence of the validity of the copyright. Once the presumption . . . is established, the defendant has the burden of overcoming it.”[9] “Defendant may rebut the presumption by presenting evidence casting doubt on the validity of the copyright. If defendant makes a sufficient showing, then the presumption dissolves and the burden shifts back to plaintiff.”[10]

         It is undisputed that Plaintiff obtained a Certificate of Registration for the following components of her master's thesis: (1) the arrangement and compilation of the images used in the viewing time study; (2) the written instructions and surveys included in the viewing time study; and (3) the DirectRT syntax, which allowed Plaintiff to administer the study via computer. Defendants argue none of these components are eligible for copyright protection. For purposes of this Motion, the Court can assume that these components are protectable.

         Plaintiff did not, however, obtain a Certificate of Registration for the authored work of her master's thesis or the published article by Plaintiff and Strassberg. It is not clear whether Plaintiff's infringement claims are based, at least in part, on infringement of her master's thesis and article.

         “Copyright registration is not a prerequisite for copyright protection.”[11] However, registration is necessary as a prerequisite for an infringement suit, [12] excepting three circumstances not present in this case.[13] Because she did not obtain a copyright registration for her master's thesis, Plaintiff cannot rely on her thesis or published articles as a basis for copyright infringement.[14]

         2. Actual copying

         Having deemed certain parts of Plaintiff's thesis materials copyrightable, for purposes of this Motion, the Court must now determine if the Defendants actually copied protectable elements of the copyrighted work. This requires the Court to determine: “(1) whether the defendant, as a factual matter, copied portions of the plaintiff's [material]; and (2) whether, as a mixed issue of fact and law, those elements of the [material] that have been copied are protected expression and of such importance to the copied work that the appropriation is actionable.”[15]

         The Court will first discuss which elements of Plaintiff's work are protectable. Once the protectable elements have been determined, the Court will assess the evidence showing actual copying of the protectable elements for each of the alleged offending materials.[16]

         a. Protectable elements

         “The mere fact that a work is copyrighted does not mean that every element of the work may be protected.”[17] “Unlike a patent, a copyright gives no exclusive right to the art disclosed; protection is given only to the expression of the idea-not the idea itself.”[18] “The writings which are to be protected are the fruits of intellectual labor, embodied in the form of books, prints, engravings, and the like.”[19] “No matter how much original authorship the work displays, the facts and ideas it exposes are free for the taking. The very same facts and ideas may be divorced from the context imposed by the author, and restated or reshuffled by second comers, even if the author was the first to discover the facts or to propose the ideas.”[20] “Thus, courts comparing works must first distill the protectable elements of the copyrighted work-i.e., determine what aspects constitute protectable expression.”[21] This distinction is commonly referred to as the “idea/expression dichotomy.”[22]

         “The idea/expression dichotomy traces back to the Supreme Court's decision in Baker v. Selden.”[23] In Baker, Selden obtained copyrights on a series of books setting out a new system of bookkeeping. The books included an explanation of the system and blank forms with ruled lines and headings designed for use with that system. Selden sued Baker for copyright infringement after Baker published account books making use of a system with similar forms.

         The Supreme Court framed the issue as “whether the exclusive property in a system of book-keeping can be claimed, under the law of copyright, by means of a book in which that system is explained?”[24] In concluding that Baker had not infringed Selden's copyright, the Court explained the following:

The copyright of a book on perspective, no matter how many drawings and illustrations it may contain, gives no exclusive right to the modes of drawing described, though they may never have been known or used before. . . . [Similarly, ] [t]he copyright of a work on mathematical science cannot give to the author an exclusive right to the methods of operation which he propounds, or to the diagrams which he employs to explain them, so as to prevent an engineer from using them whenever occasion requires. . . .
[W]hilst no one has a right to print or publish his book, or any material part thereof, as a book intended to convey instruction in the art, any person may practice and use the art itself which he has described and illustrated therein. The use of the art is a totally different thing from a publication of the book explaining it.[25]

         The case at hand is factually similar to Baker. Plaintiff seeks to protect the study she wrote, arranged, and implemented. While Plaintiff is entitled to protection from copyright infringement of her thesis materials, she is only entitled to protection of the work as it is expressed. The ideas underlying the written expression-the use of images of attractive individuals and scenery, tracking viewing time as a measure of sexual interest, asking participants to rate images on a scale, inquiring as to participants' sexual orientation and/or sexual interests and comfort levels, and other elements related to the process and method of Plaintiff's study-are not protectable elements of the copyright. As stated in Feist,

It may seem unfair that much of the fruit of the compiler's labor may be used by others without compensation . . ., however, . . . [t]he primary objective of copyright is not to reward the labor of authors, but to promote the Progress of Science and useful Arts. To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work.[26]

         b. Evidence of copying

         The Court must now determine if any of the accused works infringe on the protectable elements of Plaintiff's thesis materials, namely the images, text, and syntax as expressed by Plaintiff. Finding direct proof of copying is rarely feasible.[27] “Therefore, a plaintiff can indirectly prove copying (in a factual sense) ‘by establishing that Defendants had access to the copyrighted work and that there are probative similarities between the copyrighted material and the allegedly copied material.'”[28] Absent a showing of both elements, the Court must deny the claim.

         Proving a probative or substantial similarity “is primarily a qualitative rather than a purely quantitative analysis and must be performed on a case-by-case basis.”[29] “The proper focus is on the similarities between the works, not their minute differences.”[30] “[A] court may grant summary judgment for the defendant if the protectable expression in the copyrighted work and the allegedly infringing work is ‘so dissimilar that no reasonable jury could find for the plaintiff on the question of substantial similarity.'”[31]

         Plaintiff's first cause of action specifically lists four alleged infringing works and then references an attached list that includes all of the alleged infringing works. Plaintiff's fifth cause of action alleges that there are a number of additional unnamed documents that relied on her thesis materials and thus infringed on her copyright. The Court will assess the validity of the claims against each of the offending works.

         i. Jordan Rullo's master's thesis entitled “Category Specificity in Sexual Arousal/Interest as a Complex Function of Sex and Sexual Orientation”

         In Plaintiff's deposition, Plaintiff makes a number of allegations of infringement regarding Rullo's thesis. These allegations include that Rullo's thesis copied the substance of portions of Plaintiff's literature review, [32] that Rullo's thesis explains the same stimulus and procedure as that used by Plaintiff in her study, including references to the DirectRT program, [33] that Rullo's thesis made use of her data, copied her methods, and recited many of her original ideas, [34] and that Rullo explains an identical procedure for conducting her study.[35]

         Unquestionably, Rullo's thesis makes significant use of Plaintiff's original materials. Notably, Plaintiff is cited numerous times in Rullo's thesis. In spite of this, Rullo has not infringed on any of the protectable elements of Plaintiff's copyright.

         As explained above, the methods, ideas, processes, findings, etc. of Plaintiff's materials and study are not protected elements of Plaintiff's copyright. The protectable ...

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