Katz Dochtermann & Epstein, Inc. v. Home Box Office

50 U.S.P.Q.2d (BNA) 1957 (1999)

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Nature of the Case

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Facts

P alleges that in June of 1992, D contacted P to request advertising ideas to help D reverse sagging business and subscription cancellations among its subscribers. P conceived an ad campaign focused on the theme 'It's Not TV, It's HBO,' designed to distinguish HBO from other TV stations. P conceived and created sample print ads, storyboards, and advertising copy ('the literary work'), and recorded an original music composition, all based on the marketing concept, 'It's Not TV, It's HBO.' A meeting was then held at D's offices on June 30, 1992. P executives presented their marketing concept to D executives, exhibited the literary work, and played the original music composition. All the literary work exhibited at the meeting was clearly marked with copyright and agency identification stamps. D expressed interest in the campaign idea but told D that they would get back to them. A copy of the literary work was left with D for their review. P followed up periodically for over a year. D allegedly expressed continued interest but said that they wanted more time to make a final decision. On August 15, 1996, D announced that it would run a new ad campaign around the concept, 'It's Not TV, It's HBO,' and that the new ad campaign began running around September 5, 1996, and has run continuously ever since. D claimed that the ad concept was created independently by D's advertising agency, BBDO, without any knowledge of P's presentation. On August 8, 1997, P duly registered its claim to a copyright in the literary work with the Register of Copyrights. D moved to dismiss P's state law claims of unfair competition, breach of contract implied in fact, and unjust enrichment are preempted by 17 U.S.C. § 301(a).