Gottlieb Development Llc. v. Paramount Pictures Corporation

590 F. Supp. 2d 625 (2008)

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Nature of the Case

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Facts

P distributes and sells the 'Silver Slugger' pinball machine. The Silver Slugger features three original copyrighted designs. The trademark GOTTLIEB also appears on the Silver Slugger, in several places. In December 2000, D released the motion picture 'What Women Want.' D has shown the Film in theaters and sold and otherwise distributed it worldwide since then on DVD and VHS tapes and television. Mel Gibson plays an advertising executive who acquires the ability to 'hear' what women are thinking. In one scene, Gibson and his co-star Helen Hunt brainstorm with other employees to develop ideas for marketing certain consumer products to women. At various points during the three-and-a-half-minute scene, a pinball machine -- the 'Silver Slugger' -- appears in the background. The meeting takes place in a large room with a relaxed and casual atmosphere -- the room contains recliner chairs and bar stools, and on the far wall there is a large poster board prominently displaying the word 'PLAY.' A mini basketball hoop appears on one side of the room, and a statue of a penguin appears on the other. Approximately eight people are sitting in a circle. Behind one woman is a table soccer -- or 'foosball' -- game. As Gibson's character pitches various ideas for advertisements, the 'Silver Slugger' appears intermittently in the background, next to another pinball machine. It appears only for seconds, always in the background, and always partially obscured by Gibson, a recliner chair, or a bar stool. It is not part of the plot nor does it appear by itself. It is part of the background in the scene. P sued D for (1) copyright infringement, (2) trademark infringement, (3) unfair competition, (4) unjust enrichment, and (5) deceptive trade practices. D never had permission from P to use its machine. D filed a Fed. R. Civ. P. 12(b)(6) motion to dismiss.