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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND BARBARA BROWN, Plaintiff, v. : : : : PATRICIA A. McCORMICK, et al.,: Defendants. :

CIVIL NO. L-96-3450

MEMORANDUM Introduction This is the opinion in a copyright infringement case that was tried before the Court, sitting without a jury. Because of the complexity of the facts, a brief summary is in order. In 1994, Defendants, Universal City Studios, Inc. ("Universal Studios") and Amblin' Entertainment, Inc. ("Amblin"), were producing a motion picture entitled, How to Make an American Quilt ("the Movie"). Universal Studios

hired Defendant Patricia McCormick as a technical consultant. One of McCormick's assignments was to obtain As stated in the

the quilts that were to be used as props.

contract between Universal and McCormick, any prop that McCormick obtained would be the property of Universal. One of the quilts called for in the script was an African-American story quilt entitled, "The Life Before." The quilt was to comprise of a series of blocks, each of

which would depict a chapter in the family history of one of the characters, including life in Africa, capture and transhipment, slavery, and emancipation. When the designs

created by the studio art department proved unsatisfactory, McCormick contacted the plaintiff, Barbara Brown, a wellknown professional quilter. McCormick, on behalf of Universal, and Brown entered into a written agreement providing that Brown, in exchange for $750, would create patterns for fifteen blocks. The

agreement contemplated that other quilters would select the fabrics and colors and provide the labor needed to translate Brown's designs into a completed quilt. The agreement

stated that Brown would retain the copyrights to the patterns, but that Universal was authorized to create two prop quilts for the Movie.1 Using Brown's designs,

McCormick and another quilter named Dora Simmons fashioned "The Life Before" quilt displayed in the Movie. The script called for another quilt, "Where Love Resides," whose sixteen blocks would depict the Movie's main pictorial themes. McCormick and Universal's production team

As described herein, the agreement permitted Universal to make two copies of "The Life Before." The script required two copies of the same quilt: one was to be distressed to appear more than 100 years old, and one was to appear new. 2

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designed the blocks, only one of which, the Marriage Block, is at issue in this litigation. In designing the Marriage

Block, McCormick essentially copied, although in a somewhat altered form, a block (the Wedding Block) that Brown had created for "The Life Before" quilt. In this lawsuit, Brown does not contend that displaying "The Life Before" in the Movie violates the contract between herself and McCormick. Brown does, however, complain of the

following ancillary displays of the quilt: (i) quilting exhibitions; (ii) pictures of "The Life Before" in a tie-in book McCormick's display of "The Life Before" at

entitled, Where Love Resides; and (iii) McCormick's display of "The Life Before" on cable television programs. Brown objects to all displays of "Where Love Resides" because the quilt includes the derivative Wedding Block. Thus, her suit complains of the following: (i) (ii) and tote bags promoting the Movie; 3 display of "Where Love Resides" in the Movie; a rendering of "Where Love Resides" on t-shirts

(iii) display of "Where Love Resides" in the tie-in book, Where Love Resides; (iv) a rendering of "Where Love Resides" in a painting by Defendant John Simpkins and in prints of the

painting; and (v) cable television programs. This case was vigorously litigated. filed on November 1, 1996. The lawsuit was McCormick's display of "Where Love Resides" on

Following extensive discovery

and the filing of an amended complaint, the parties filed cross-motions for summary judgment, which the Court granted in part and denied in part on October 8, 1998. McCormick, 23 F. Supp.2d 594 (D. Md. 1998). Following summary judgment, sixteen counts of alleged copyright infringement remained in the case.2 counts can be divided into seven groups: (i) claims solely against McCormick for copying the The sixteen See Brown v.

Wedding Block to create the Marriage Block (Counts I-

The amended complaint contains 25 counts. Six counts were dismissed at summary judgment and three were voluntarily dismissed by Brown after reaching a settlement with two defendants who were only tangentially involved. 4

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II); (ii) "The Life Before" and "Where Love Resides" quilts at exhibitions (Count III); (iii) claims relating to the display of "Where Love Resides" on promotional items, specifically t-shirts and tote bags (Counts IX-X); (iv) claims relating to the Where Love Resides book featuring the quilts used in the Movie (Counts XI-XIV); (v) claims relating to an art print painted by Defendant John Simpkins(Count XVI-XIX); (vi) claims against McCormick for the unauthorized display of the two quilts on two cable television shows (Count XX); and (vii) claims that the display of the Marriage Block in the Movie itself infringes Brown's copyright (Count XXIVXXV). The parties participated in a settlement conference with 5 claims solely against McCormick for displaying

a Magistrate Judge in April 1999, but were unable to resolve the case. Accordingly, the case came before this Court for Final

a five-day bench trial beginning May 24, 1999. arguments were held on July 2 and July 19, 1999.

Briefly stated, the Court finds that McCormick infringed Brown's copyrighted Wedding Block. Accordingly, all This

displays of the Marriage Block are infringing.

includes the display of the "Where Love Resides" quilt in the Movie, in the t-shirts and tote bags promoting the Movie, and in the tie-in book, Where Love Resides. Further,

McCormick was not entitled to display the "Where Love Resides" quilt on television or at quilt shows. The John

Simpkins fine art print, however, does not infringe Brown's copyright. The "Where Love Resides" quilt as it appears in

the print is rendered suggestively and with insufficient detail to infringe. With respect to "The Life Before"

quilt, the Court finds that the defendants were entitled to display it in the Movie, but not on television, at quilt shows, or in the tie-in book. The Court concludes that none of the defendants' infringements were willful. Moreover, the substantial

damages sought by Brown are not supported by the evidence, including Brown's requests for injunctive relief and award 6

of attorneys' fees. however, award Brown (i) of $50; (ii) $2.35;

By separate Order, the Court shall,

actual damages against McCormick in the amount

actual damages against Amblin in the amount of

(iii) statutory damages against McCormick in the amount of $ 7,000; and (iv) statutory damages against Universal, M&FM, and

Patchwork in the amount of $ 7,000. Having heard the testimony of the witnesses and the oral arguments of counsel, and having reviewed and considered the exhibits submitted at trial, the Court makes the following findings of fact and conclusions of law.

FINDINGS OF FACT The Parties 1. Plaintiff Barbara Brown is a professional quilt

maker and designer who is a resident of the State of Maryland. Brown conducts her quilt business in Odenton,

Maryland under the name "The Quilt Connection." 2. Defendant Patricia A. McCormick is a quilter and

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quilt book author who is a resident of the State of California. 3. Defendant Amblin' Entertainment, Inc. ("Amblin") is

a Delaware corporation, with its principal place of business in Universal City, California. Amblin produces motion

pictures for distribution and viewing in movie theaters and on television throughout the United States, including the State of Maryland. 4. Defendant Universal City Studios, Inc. ("Universal

Studios") is a Delaware corporation, with its principal place of business in Universal City, California. Universal

Studios produces motion pictures and television films for distribution and viewing throughout the United States, including the State of Maryland. 5. Defendant MCA/Universal Merchandising, Inc. (now

known as Universal Studios Consumer Products, Inc., and referred to here as "Universal Merchandising") is a California corporation, with its principal place of business in Universal City, California. 6. Defendant Marketing and Financial Management

Enterprises, Inc. ("M&FM") is a California corporation, with its principal place of business in Woodland Hills, California.

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7.

Defendant That Patchwork Place, Inc., (now known as

Martingale & Co., Inc., and referred to here as "Patchwork") is a Washington corporation, with its principal place of business in Woodinville, Washington. Patchwork is a quilt

book publisher that distributes and sells its quilt books in quilt shops and bookstores throughout the United States, including the State of Maryland. 8. Defendant The Greenwich Workshop, Inc. ("Greenwich")

is a Connecticut corporation, with its principal place of business in Shelton, Connecticut. Greenwich distributes and

sells its art prints in art and gift shops throughout the United States and has authorized dealers located in the State of Maryland. 9. Defendant John Simpkins is a contemporary folk

artist and a resident of the state of Oregon.

Beginning of the Movie Project 10. In June 1994, Universal Studios and Amblin began

the production and filming of the motion picture How to Make an American Quilt. 11. The Movie was based on a 1991 Whitney Otto novel of The plot centers on a young woman, Finn, who

the same name.

spends a summer living in a small California town with her 9

grandmother and great aunt.

The visit gives Finn time and

space to finish her Master's thesis and also debate her impending marriage. Finn encounters the women in her

grandmother's quilting circle, who are sewing a quilt for Finn as a wedding present. The women reminisce about men,

love, and marriage, and the film, primarily through flashbacks, tells the story of each. The wedding quilt,

"Where Love Resides," is a unifying plot device because each of the women sews into the quilt a block depicting her own story. 12. As McCormick would later relate in her

behind-the-scenes book, Pieces of an American Quilt: "[t]he original script called for five quilts, but gave very little description of what they were to look like." (Def. Ex. 43,

Patty McCormick, Pieces of an American Quilt 11 (1996).) McCormick hired several other quilters ("the nonparty quilters") to create the patterns for three of the movie quilts, Marianna's Baby Quilt, the Grasse Quilting Bee Quilt, and the Crazy Quilt. The contracts between the

nonparty quilters and McCormick provide more detailed instructions than the contract with Brown, and do not give copyrights to the nonparty quilters. (See Pl. Ex. 13-16.)

The final two quilts are at issue in this case. 10

13.

The first is an "African-American story quilt" One of the characters, Anna, The movie

entitled "The Life Before."

had inherited this quilt as a family heirloom.

script (again, based on Otto's novel) described "The Life Before" as laid out in fifteen squares which are filled with scenes in native, appliqued form. We see angels blowing trumpets, blazing suns, Adam and Eve and the snake, elephants and giraffes, African warriors doing battle, men and women in chains inside a ship on a choppy sea . . . a scene with a black bird flying over a man and a woman holding hands. (Def. Ex. 2 at 2.) 14. The Court had the pleasure of viewing the quilts

created by Ms. Brown and the other quilters who worked on the Movie. execution. 15. The script describes a "folk-art" style similar to "Bible Quilts" that a former slave named (See generally The quilts are impressive in design and

the renowned

Harriet Powers created in the late 1800's.

Def. Ex. 56, Regina A. Perry, Harriet Powers's Bible Quilts (1994)). 16. "The Life Before" quilt created for the Movie was

made from patterns designed by Brown, pursuant to a contract with McCormick and Universal. Brown's patterns are also

done in the "folk-art" style, but are materially different 11

from and, therefore, not copies of Powers' designs. 17. The second quilt at issue is the "Where Love The infringement claims

Resides" quilt mentioned above.

concern only one of the sixteen component blocks of "Where Love Resides." The contested block is generally referred to

as the Marriage Block. 18. As pre-production for the Movie proceeded in August

1994, the studio retained McCormick, then President of the Southern California Council of Quilt Guilds, as a technical consultant. 19. (See Def. Ex. 48.)

Prior to McCormick's involvement, the studio art

department, using the descriptions in the script, had attempted to create quilt patterns for the five movie quilts. As McCormick explained at trial, however, the

studio artists knew practically nothing about quilts, and their designs proved unsatisfactory. Accordingly, the

studio asked McCormick to work with the art department in designing or acquiring the necessary quilts. McCormick also

consulted on other technical aspects of the Movie so that the quilting scenes would have an authentic look. 20. quilt. McCormick turned her attention to "The Life Before" Although the studio art department had attempted

some designs for this quilt, the designs were off the mark. 12

As McCormick would later relate, [t]he art department struggled with ["The Life Before"] quilt. Their only reference was the Smithsonian Museum Bible Quilt by Harriet Powers, and everything they designed looked just like that quilt. These five men in the art department who didn't sew or quilt were also not African-American. This quilt was just not coming together for them, and we didn't have a lot of time. (McCormick, Pieces of an American Quilt 21. 26.)

At trial, Brown explained another problem with the The proposed

designs produced by the art department.

designs for "The Life Before" contained many intricate curves and angles, which would have been very difficult to execute in fabric. Only someone with knowledge of quilt-

making can design a pattern that can be effectively translated onto a quilt.

Brown's Involvement with the Movie Project 22. In September 1994, McCormick became aware of the

work of Brown, an African-American quilt designer living in Maryland. McCormick telephoned Brown to propose that Brown

design patterns for the fifteen quilt blocks of "The Life Before." 23. McCormick explained in the telephone conversation

"that the production team wanted a quilt similar to the

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style of Harriet Powers' Bible Quilt . . . could not duplicate Powers' Bible Quilts,

[but] the quilt because they were (Def.

cultural icons which would be recognized if copied."

Summ. Judg. Motion Ex. C (McCormick Decl. of May 19, 1998 at

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