Kregos v. Associated PressKregos v. Associated Press
For many sports fans, simply watching or listening to a ball game is sufficient to quench their enthusiasm. The true devotee demands more, however, and poring over daily, weekly, and yearly “stat sheets” becomes an obsession. Each year, it seems, commentators and analysts devise more numerous criteria for measuring the performance of one player against another and one generation against another. This trend is readily apparent in the baseball world, where the simple box score of yesteryear has been supplemented by statistics measuring game winning runs batted in, batting averages with men in scoring position, and relief pitchers’ success rates in save situations.1 The case presented before this court involves a dispute over these beloved statistics. Specifically, this action involves copyright and trademark disputes over “pitching forms,” which calculate and categorize various statistics for the starting pitchers scheduled to appear in upcoming baseball games. These forms are then utilized by members of the general public, including, of course, gamblers and book-makers.
I. FACTS
In 1983, plaintiff, George L. Kregos, created a “pitching form” to be published in various newspapers throughout the country. The form listed various statistics in a tabular format with a legend at the bottom to explain the categories. Developing such a form was not unique to plaintiff as other individuals, including plaintiff himself in 1979, previously had created similar forms. Each of these preexisting forms listed various statistics for the pitchers scheduled to appear upcoming games. Differences existed, however, among the forms and, in fact, plaintiff received two copyrights for his 1983 form.2
The 1983 Kregos form, see Appendix 1, which is still published today, contains the following statistics. The first four columns list the teams, the scheduled starting pitchers, the game time, and the odds on the game, respectively. These four categories are contained in virtually every form that has been created, including defendant‘s, and are not specifically at issue in this case. The remaining nine columns on plaintiff‘s form represent the primary grounds of contention. Within these nine columns are three general categories that are each further divided. The first major category lists each pitcher‘s statistics for the current season. Under this heading are the sub-categories of wins, losses, and earned run average. The second general category represents the pitcher‘s performance during his career against the scheduled opponent. Plaintiff further tailors this category to only include the pitcher‘s statistics against this opponent at the particular site where the upcoming game is to be played. This category is then divided into wins, losses, innings pitched, and earned run average. Finally, the last of the main categories lists various statistics for the pitcher‘s last three starts. Included
In 1984, the Associated Press (“AP“) began to publish its own pitching form. See Appendix 2. The statistics for its form were compiled by defendant Sports Features Syndicate, Inc. pursuant to a contractual agreement. AP‘s 1984 form was identical in virtually every sense to plaintiff‘s form. One distinction was that AP‘s form renamed certain categories and sub-categories. For example, the MBA was called average hits and walks per game (“AHWG“), and while plaintiff‘s form generally refers to odds, AP listed these same odds under a column called “line.” Despite these cosmetic distinctions, the categories in both forms analyzed and tabulated the same statistics. One other distinction between the two forms was that plaintiff‘s form offered a slightly more detailed analysis in its legend.4
Plaintiff contacted AP upon learning of this competing form but his complaint fell on deaf ears as AP suggested plaintiff had no copyrightable interest in his form. In 1986, however, AP amended its form to the one it uses today.5 See Appendices 3 & 4.6 This new form is of the same basic format as its earlier form with some modifications. The new form retains the teams, pitchers, time, and line categories, although the line is occasionally listed below the time, rather than as a separate column. The new form also includes the same three general categories as the old form and plaintiff‘s form. In the first category, the current season‘s statistics, AP includes wins, losses, earned run average, and a new sub-category, team record. This new column represents the team‘s record in games started by the particular pitcher during the specific season.7 The second major category, the record against the scheduled opponent, still includes wins, losses, innings pitched, and earned run average. However, AP made two changes to this category. First, while AP‘s old form and plaintiff‘s current form calculate these statistics against the upcoming opponent at the site of the scheduled game, AP‘s new form includes any results against that opponent, regardless of where the games were played. Moreover, AP‘s new form only lists this statistic for the current season, rather than for the pitcher‘s entire career as its previous form did and plaintiff‘s form continues to do. With respect to the last major category, the last three starts, AP‘s new form still includes wins, losses, innings pitched, earned
In March 1989, plaintiff instituted this action for both copyright infringement under the Copyright Act of 1976,
AP now moves for summary judgment and plaintiff cross-moves for such relief.9 AP contends that plaintiff lacks any cognizable rights in his form under the copyright laws since the form is not original. Moreover, it suggests that under the idea/expression merger doctrine, the form is not copyrightable. Finally, it claims that the form is actually a “blank form” for recording facts and is explicitly precluded from copyright protection. Alternatively, AP contends that even if plaintiff‘s form is copyrightable, it has not infringed any of plaintiff‘s rights since its new form is not substantially similar to plaintiff‘s. With respect to trademark infringement, AP contends that a finding of non-copyrightability similarly requires a finding of non-protectibility under the trademark laws. Plaintiff counters these arguments by claiming he is entitled to summary judgment or, alternatively, that existing questions of fact prevent the grant of summary judgment to AP.10
II. DISCUSSION
A. Copyright Claims
The Copyright Act of 1976 affords a right to sue to the holder of a registered copyright.
1. Originality
The copyright statute protects “original works of authorship fixed in any tangible medium of expression.”
Evidence has been presented suggesting that prior to plaintiff‘s creation of his 1983 form, three other individuals, plus Kregos himself, had published pitching forms. In attempting to show his form to be original, plaintiff goes through a detailed analysis of the distinctions between his form and the other three. He attempts to suggest that his work is original since no other form includes all the statistics he uses in the exact same order. Moreover, he claims there has been no showing that any preexisting form included the men on base average.
In Financial Information, Inc. v. Moody‘s Investors Service, 808 F.2d 204 (2d Cir.1986), cert. denied, 484 U.S. 820, 108 S.Ct. 79, 98 L.Ed.2d 42 (1987), plaintiff published Daily Bond Cards that listed five statistics on certain municipal bonds that were being redeemed. These cards were sold to plaintiff‘s subscribers. Defendant then began producing its own set of cards, which included significantly more data than plaintiff‘s cards. Initially, the court restated its general reluctance to grant copyrights to non-fictional works. Id. 808 F.2d at 207 (citing Eckes v. Card Prices Update, 736 F.2d 859, 862 (2d Cir.1984)). Thereafter, the court affirmed the district court‘s determination and concluded that plaintiff‘s cards did not exhibit the requisite selection or coordination to copyright a compilation. All plaintiff‘s employees did was cull various statistics from the tombstone ads that were published in conjunction with the bond redemptions and this was insufficient to satisfy the requirement of “independent creation.” Id. 808 F.2d at 207-08.
In the case at bar, the same analysis can be applied. Every statistic used by plaintiff is readily available to a person willing to read the box scores of the preceding day‘s games. Moreover, virtually every nuance supposedly created by plaintiff existed in prior forms. For example, one of the preceding forms, the Eckstein form, contained the same three general categories used by plaintiff. Moreover, with respect to sub-divisions of these general categories, even though Eckstein‘s form does not include wins, losses, and earned run average in his current season category, a form previously published by Fratas does. Similarly, in the versus opponent category, Fratas’ form again includes the same categories as does plaintiff‘s, including the “at site” limitation, the only difference being that Fratas’ form limits this category to the specific season, rather than the pitcher‘s entire career. Finally, in the last three starts category, Eckstein‘s form includes three of the four columns used by plaintiff, the exception being plaintiff‘s inclusion of the men on base average. We recognize that none of these forms is precisely the same as plaintiff‘s. However, the key issue is whether the form in its entirety can be considered sufficiently original in light of the selection or coordination of the plaintiff. Although this determination of originality is a question of fact, Financial Information, 808 F.2d at 207, we find that the evidence offered by AP, and not adequately rebutted by plaintiff, as to plaintiff‘s lack of selection or coordination permits us to grant summary judgment in favor of AP. Cf. Durham Indus. v. Tomy Corp., 630 F.2d 905, 918 (2d Cir.1980) (although “substantial similarity” is generally factual question, court can determine it as a matter of law on summary judgment motion). Were we to find otherwise, any mere reordering of the facts contained in a pitching form would give rise to copyrightable interests.12
In relying on Financial Information, Inc. v. Moody‘s Investors Service, we expressly distinguish the Second Circuit‘s ruling in Eckes v. Card Prices Update, 736 F.2d 859 (2d Cir.1984). In Eckes, the court held that plaintiff‘s selection of 5,000 baseball cards from a total of 18,000 to be included on its “premium” card list was a sufficient exercise of selection, creativity, and judgment. Id. at 863 (citing with approval Roy Export Co. v. Columbia Broadcasting Sys., 672 F.2d 1095, 1103 (2d Cir.), cert. denied, 459 U.S. 826, 103 S.Ct. 60, 74 L.Ed.2d 63 (1982); Dow Jones & Co. v. Board of Trade, 546 F.Supp. 113, 115 (S.D.N.Y.1982)). In the case at bar, however, plaintiff did not exercise such creativity as most of the statistics, as well as the coordination of these statistics, had been established in previously existing forms. Moreover, as will be further discussed in the next section of this opinion, the newspapers that publish the forms strictly limit the number and organization of the statistics to be included, thereby further curtailing the possibility of originality based on selection or arrangement.
A related limitation of the copyright laws is that ideas cannot be copyrighted. Rather, it is only the expression of these ideas that is protectible. Eden Toys, Inc. v. Marshall Field & Co., 675 F.2d 498, 500 (2d Cir.1982); see
Plaintiff‘s idea in this case is to publish an outcome predictive pitching form. The form itself represents the expression of this idea. Plaintiff suggests that there are infinite means of expressing this idea due to the variety of statistics actually available and the sundry possibilities for organizing these statistics. For example, plaintiff represents that statistics such as balks, wild pitches, and total pitches thrown can all be included in a pitching form. Moreover, while plaintiff selected the past three starts as his third general category, he argues that another statistician could just as easily choose the four or five preceding starts. Therefore, plaintiff contends the merger doctrine is inapplicable to the facts presented in this case.
While it may be theoretically possible to include numerous statistics in a form and to organize them in multiple fashions, in reality there are an extremely limited number of ways of practically expressing such statistics. This limitation stems predominantly from the severe space restrictions imposed by the newspapers that publish these forms. Generally, only seventy-eight characters, including spaces, are allotted. Plaintiff‘s Memo. at 20. In fact, plaintiff testified that “if you give them something too big, they won‘t publish it. They want something concise and to the point.” Kregos Depo. at 57. Thus, even though there are an infinite number of theoretical statistics that can be included, the newspapers prevent analysts from going too far afield. This restriction, in turn, requires analysts to be sure to include only the most pertinent statistics within their forms.
The suppliers of these forms are apparently quite cognizant of these restrictions since before plaintiff published his 1983 form, the Siegel, Fratas, and Eckstein forms included wins, losses, innings pitched, and earned run average on their forms, but, with one exception, never any of the theoretically possible statistics like balks or pitches thrown.13 Moreover, none of the forms created subsequent to 1983 ever included these theoretical categories, nor has any form ever included anything other than the last three starts in the final general category. With respect to the actual order of presenting the statistics, once again we note that the customary fashion is to list wins, losses, innings pitched, and earned run average. Notwithstanding the obvious mathematical possibilities for reordering such statistics, the public and the newspapers apparently have come to expect this standard order and most of the forms that include these four statistics list them in this very order. In fact, plaintiff testified that this “is the normal way of putting [these statistics] in.” Kregos Depo. at 92. Granted, all the existing forms are not identical and distinctions can be drawn. For the most part, however, these trivial variations show that there are an extremely limited number of practical means of publishing an outcome predictive pitching form. Therefore, the idea/expression merger doctrine is applicable.
We are influenced by the analysis of Judge Conner in Matthew Bender & Co. v. Kluwer Law Book Publishers, 672 F.Supp. 107 (S.D.N.Y.1987). In that case, plaintiff published a nine-volume set of books, which included a chapter on personal injury damage awards. This chapter tabulated various personal injury awards according to the injured body part, listing such criteria
In reaching this conclusion, we distinguish the facts presented before Judge Kocoras of the Northern District of Illinois in Wabash Publishing Co. v. Flanagan, No. 89-C-1923, 1989 WL 32939 (N.D.Ill. Apr. 3, 1989). In Wabash Publishing, plaintiff sought copyright protection for a racetrack guide that listed numerous statistics relating to the past performances of racehorses. As in the case at bar, plaintiff‘s form was often used as an aid to gamblers. Although it later ruled in favor of the defendant, the court found the form copyrightable, relying on the fact that “an abundance of data exists regarding horse races and there are many ways to select and arrange such data.” Id.; see also Triangle Publications, Inc. v. Sports Eye, Inc., 415 F.Supp. 682, 684 (E.D.Pa.1976) (dictum) (horse racing form validly copyrighted) (citing Triangle Publications v. New England Newspaper Publishing Co., 46 F.Supp. 198, 201-02 (D.Mass.1942)). Notwithstanding the similarities between outcome predictive forms for horse racing and baseball, the facts in Wabash Publishing are distinguishable due to the absence of true selection or arrangement by plaintiff in the case at bar.
3. Blank Form
A third limitation on the availability of copyright protection is the so-called “blank form” doctrine. This doctrine, having its roots in Baker v. Selden, 101 U.S. (11 Otto) 99, 25 L.Ed. 841 (1879), prevents the copyrighting of a “blank form” that is merely used to record information. John H. Harland Co. v. Clarke Checks, Inc., 711 F.2d 966, 971 (11th Cir.1983).14 The regulations promulgated pursuant to the Copyright Act codify this doctrine, prohibiting copyright protection for:
Blank forms, such as time cards, graph paper, account books, diaries, bank checks, scorecards, address books, report forms, order forms and the like, which are designed for recording information and do not in themselves convey information.
Once again we agree with the defendant. While we recognize that plaintiff‘s form is not a true “blank form” for recording information since people generally do not purchase it with the intent of filling it in themselves, the form is sufficiently analogous in that it fails to convey information. As noted, the categories selected by plaintiff do not show the necessary arrangement
We conclude, therefore, that under any of the three tests we have discussed, plaintiff lacks a copyrightable interest in his pitching form and summary judgment can be granted in favor of AP.15 Thus, we need not consider the issues of access and substantial similarity.
B. Trademark Claims
Plaintiff has also brought a claim under section 43(a) of the Lanham Act,16 claiming that AP‘s form infringes his trademark rights.17 Protection under the statute generally requires a showing of both secondary meaning and a likelihood of confusion as to the source of the product. Centaur Communications, Ltd. v. A/S/M Communications, Inc., 830 F.2d 1217, 1221 (2d Cir.1987). This two-pronged inquiry permits the determination of whether a plaintiff has a protectible interest and whether that interest is being infringed. Id. at 1221. A defendant, in turn, can raise the defense of functionality, which eliminates protection under the statute.
A functional feature is one that “`is essential to the use or purpose of the article or [that] affects the cost or quality of the article.‘” Warner Bros. v. Gay Toys, Inc., 724 F.2d 327, 331 (2d Cir.1983) (quoting Inwood Laboratories v. Ives Laboratories, 456 U.S. 844, 850-51 n. 10, 102 S.Ct. 2182, 2187 n. 10, 72 L.Ed.2d 606 (1982)). The purpose of precluding trademark protection for functional elements is to encourage competition by eliminating the monopolization of the essential elements of a product. LeSportsac, Inc. v. K Mart Corp., 754 F.2d 71, 77 (2d Cir.1985). In the case at bar, plaintiff seeks protection for the overall form he has produced, not for its individual components. Granting plaintiff the protection it seeks would preclude any other supplier from publishing an authentic pitching form. Any successful pitching form necessarily requires the inclusion of, for example, the pitcher‘s records for the season and against the particular opponent. Moreover, as plaintiff himself recognizes, within
III. CONCLUSION
We conclude that plaintiff‘s form is neither copyrightable under the Copyright Act nor protectible under the Lanham Act. Summary judgment in favor of AP is, therefore, granted as there are no genuine issues of material fact existing as to either of these causes of action. Accordingly, the claims brought by plaintiff against AP are dismissed.
SO ORDERED.
APPENDIX 1
THE HARTFORD COURANT: Sunday, May 6, 1984
Today‘s Games -------------------------------------------------------------------------------------------------------------------------------- | AMERICAN LEAGUE | | vs.team at site Last 3 starts | | -------------------- --------------------- | | Probable 1984 | | Team Pitcher (H) Time Odds W/L ERA W/L IP ERA W/L IP ERA MBA | |------------------------------------------------------------------------------------------------------------------------------| | DET Wilcox (R) Even-6 3-0 3.34 0-2 10 9.00 2-0 22 2.05 11.05| | CLEV Blyleven (R) 1:35 * 3-2 3.14 0-0 6 3.00 1-1 22 3.68 12.68| |------------------------------------------------------------------------------------------------------------------------------| | K.C. Gura (L) * 4-0 2.55 0-2 9 2/3 9.31 2-0 21 1/3 1.69 9.28| | TORN Alexander (R) 1:35 5½-6½ 1-1 3.82 * * * 1-1 21 2/3 2.91 9.97| |------------------------------------------------------------------------------------------------------------------------------| | CHIC Bannister (L) Even-6 2-2 5.12 0-1 8 2.25 1-1 19 2/3 5.03 15.10| | BOST Hurst (L) 2:05 * 3-3 2.02 1-1 13 1/3 4.73 2-1 18 1.50 15.00| |------------------------------------------------------------------------------------------------------------------------------| | OAK Warren (R) Even-6 3-3 3.82 * * * 2-1 18 5.00 15.50| | MINN Hodge (L) 2:15 * 0-0 7.20 * * * 0-0 5 7.20 23.40| |------------------------------------------------------------------------------------------------------------------------------| | N.Y. Fontenot (L) * 0-4 4.88 1-0 7 5.14 0-2 16 1/3 2.76 13.22| | MIL Cocanower (R) 2:30 5½-6½ 0-4 3.00 * * * 0-3 23 2/3 1.90 12.55| |------------------------------------------------------------------------------------------------------------------------------| | BALT Boddicker (R) 6-7 1-3 3.19 1-0 6 4.50 1-1 23 1.57 10.17| | TEX Darwin (R) 3:05 * 3-0 2.40 1-0 6 2/3 0.00 2-0 25 1.08 7.54| |------------------------------------------------------------------------------------------------------------------------------| | CAL John (L) 5½-6½ 2-2 2.04 * * * 1-1 21 1/3 2.11 11.39| | SEAT Young (L) 4:35 * 2-2 6.52 1-0 11 2/3 0.77 0-1 11 2/3 8.49 20.83| |------------------------------------------------------------------------------------------------------------------------------| | NATIONAL LEAGUE | |------------------------------------------------------------------------------------------------------------------------------| | ATL McMurtry (R) * 2-3 3.58 1-0 7 3.86 1-1 20 1/3 3.10 13.28| | MONT Lea (R) 1:05 6-7 4-1 2.61 0-1 7 6.43 2-0 20 2.70 13.05| |------------------------------------------------------------------------------------------------------------------------------| | ATL Camp (R) * 2-0 2.31 0-1 4 4.50 2-0 11 2/3 2.31 10.03| | MONT Palmer (R) 6-7 2-0 2.29 * * * 1-0 14 2/3 2.45 5.52| |------------------------------------------------------------------------------------------------------------------------------| | L.A. Pena (R) * 4-1 1.41 0-0 7 2/3 2.35 3-0 24 2/3 1.11 7.40| | PITT McWilliams (L) 1:35 Pick ‘em 0-3 3.24 0-0 8 2.25 0-2 17 3.18 12.18| |------------------------------------------------------------------------------------------------------------------------------| | L.A. Valenzuela (L) 5½-6½ 3-2 2.93 0-0 7 1/3 3.68 3-0 27 0.67 6.33| | PITT Tudor (L) * 1-1 2.91 * * * 0-1 19 1/3 4.19 14.43| |------------------------------------------------------------------------------------------------------------------------------| | CINN Russell (R) * 1-3 3.14 * * * 0-2 22 1.23 11.45| | PHIL Carlton (L) 1:35 7½-8½ 1-1 2.50 1-0 8 4.50 0-1 21 2.14 11.57| |------------------------------------------------------------------------------------------------------------------------------| | HOUS Ryan (R) * 1-2 3.65 2-0 15 1/3 2.30 0-1 16 5.06 12.94| | METS Gooden (R) 1:35 Pick ‘em 2-1 2.63 * * * 1-0 19 0.47 9.95| |------------------------------------------------------------------------------------------------------------------------------| | S.F. Laskey (R) * 0-3 2.20 * * * 0-2 19 2/3 2.29 10.98| | STL Andujar (R) 2:15 6½-7½ 4-2 3.09 0-1 15 2/3 2.87 2-1 25 3.24 10.08| |------------------------------------------------------------------------------------------------------------------------------| | S.D. Show (R) * 4-1 1.89 2-0 14 1.93 2-1 17 1/3 1.56 10.90| | CUBS Ruthven (R) 2:20 Even-6 2-2 5.35 * * * 0-2 17 1/3 7.79 12.98| |------------------------------------------------------------------------------------------------------------------------------| | Bottom team is home team. Favored team is designated by odds beside pitcher‘s name. All pitching data reflects the pitcher‘s | | past performance as a “starter.” 1984 — Pitcher‘s 1984 record as “starter.” Vs Team at site — Pitcher‘s past performance vs. | | today‘s opponent at the site of today‘s game. Last 3 Starts — Reflects how pitcher is currently going. Details his performance| | over his last three starts. W/L — Won/lost record as a “starter“. IP — Innings pitched. ERA — Earned run average. MBA — Men | | on base average. (Average number of men allowed to reach base via hits and walks per nine innings pitched.) The odds are | | estimated lines. Time is Eastern Daylight Time | --------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------- | FRIDAY‘S PITCHERS | | American | |--------------------------------------------------------------------------------------------------------------| | Away | Probable | | | 1983 | vs. opp. at site | last 3 starts | | Home | Pitcher | Time | Line | W-L ERA | W-L IP ERA | W-L IP ERA AHWG | |---------|---------------------|-------|---------|-------------|----------------------|-----------------------| | DET | Matt Wilcox (R) | | EV-6 | 11-10 .397 | 0-0 90 0.00 | 0-0 00.0 0.00 0.0| | at CHI | Rich Dotson (R) | 1:30 | | 22-7 3.22 | 1-0 80 2.25 | 0-0 00.0 0.00 0.0| |---------|---------------------|-------|---------|-------------|----------------------|-----------------------| | NY | John Montefusco (R) | | 5.5-6.5 | 14-4 3.31 | 0-0 00 00 | 000 00.0 0.00 0.0| | at TEX | Frank Tanana (L) | 7:35 | | 7-9 3.05 | 0-1 71 6.14 | 0-0 00.0 0.00 0.0| |---------|---------------------|-------|---------|-------------|----------------------|-----------------------| | CLE | Bert Blyleven (R) | | | 7-10 3.91 | 0-0 00 00 | 00.0 0.00 0.00 0.0| | at KC | Mark Gubicza (R) | 7:35 | PK | 0-0 0-0 | 0.0 00 00.0 | 0.00 0.00 0.00 0.0| |---------|---------------------|-------|---------|-------------|----------------------|-----------------------| | BALT | Mike Boddiker (R) | | 5.5-6.5 | 16-8 2.77 | 1-0 70 0.0 | 0-0 00.0 0.00 0.0| | at MINN | Mike Smithson (R) | 7:35 | | 10-11 3.91 | 0-0 00 0-0 | 00.0 0.00 0.00 0.0| |---------|---------------------|-------|---------|-------------|----------------------|-----------------------| | TOR | Doyle Alexander (R) | | 5.5-6.5 | 7-8 4.41 | 1-0 111 1.59 | 0-0 00 0.00 0.0| | at CAL | Steve Brown (R) | 9:30 | | 3-4 4.50 | 1-1 32 7.36 | 0.0 00.0 0.00 0.0| |---------|---------------------|-------|---------|-------------|----------------------|-----------------------| | BOST | Dennis Boyd (R) | | | 4-8 3.34 | 0-0 00 0-0 | 00.0 00.0 0.00 0.0| | at OAK | Larry Sorensen (R) | 9:35 | EV-6 | 12-11 4.24 | 0-0 00 0-0 | 0.00 00.0 0.00 0.0| |---------|---------------------|-------|---------|-------------|----------------------|-----------------------| | MILW | Moose Haas (R) | | 7.5-8.5 | 13-3 3.27 | 0-0 70 129 | 0-0 00.0 0.00 0.0| | at SEA | Matt Young (L) | 9:35 | | 11-15 3.27 | 0-0 00 0-0 | 00.0 0.00 0.00 0.0| |--------------------------------------------------------------------------------------------------------------| | National | |--------------------------------------------------------------------------------------------------------------| | PHIL | Charles Hudson (R) | | EV-6 | 8-8 3.35 | 0-0 52 9.53 | 0-0 00.0 0.00 0.0| | at CINN | Joe Price (L) | 6:35 | | 10-6 3.38 | 1-0 81 1.08 | 0-0 0.00 00.0 0.0| |---------|---------------------|-------|---------|-------------|----------------------|-----------------------| | MONT | Bryn Smith (R) | | | 6-11 .349 | 0-0 12 5.40 | 0-0 00.0 0.00 0.0| | at ATL | Ken Dayley (L) | 6:40 | 6-7 | 5-8 4.30 | 0-1 61 2.84 | 0-0 00.0 0.00 0.0| |---------|---------------------|-------|---------|-------------|----------------------|-----------------------| | NY | Walt Terrell (R) | | | 8-8 3.50 | 1-0 60 1.50 | 0-0 00.0 0.00 0.0| | at HOU | Tony Scott (R) | 7:35 | 7.5-8.5 | 10-6 3.72 | 1-1 161 2.20 | 0-0 00.0 0.00 0.0| |---------|---------------------|-------|---------|-------------|----------------------|-----------------------| | CHI | Scott Sanderson (R) | | | 6-7 .445 | 0-0 10 27.00 | 0-0 00.0 0.00 0.0| | at SD | Tim Lollar (L) | 9:05 | 6.5-7.5 | 7-12 4.58 | 1-1 131 3.38 | 0-0 00.0 0.00 0.0| |---------|---------------------|-------|---------|-------------|----------------------|-----------------------| | PITT | John Tudor (L) | | | 13-12 4.05 | 0-3 00 0-0 | 00.0 0.00 0.00 0.0| | at LA | Bob Welch (R) | 9:35 | 6.5-7.5 | 15-12 2.65 | 0-0 70 2.57 | 0-0 00.0 0.00 0.0| |---------|---------------------|-------|---------|-------------|----------------------|-----------------------| | ST L | Joaquin Andujar (R) | | | 7-16 4.00 | 0-1 80 5.63 | 0-0 00.0 0.00 0.0| | at SF | Bill Laskey (R) | 10:05 | EV-6 | 13-10 4.19 | 1-0 90 1.00 | 0-0 00.0 0.00 0.0| |--------------------------------------------------------------------------------------------------------------| | Legend W-L Won-Lost IP Innings pitched ERA Earned run average AHWG Average hits and walks per nine innings | ----------------------------------------------------------------------------------------------------------------
APPENDIX 3
1987 TEAM 1987 VS OPP LAST 3 STARTS ----------------------------------------------------------------------------------------------------------------- PITCHERS LINE W-L ERA REC W-L IP ERA | W-L IP ERA AHWG | Minnesota Niekro (R) 2:35p 7-12 5.00 6-11 1-1 10.0 3.60 1-1 17.2 4.58 13.2 Kansas City Gubicza (R) 6-7 12-18 4.10 14-20 0-1 6.0 7.50 1-2 23.0 2.35 12.1 Seattle Langston (L) 3:05p 18-13 3.86 20-14 2-0 18.0 1.00 1-2 21.0 3.00 15.4 Texas Hough (R) 5½-6½ 18-12 3.78 22-17 1-0 12.0 4.50 1-1 25.0 2.88 9.7 Cleveland Farrell (R) 3:10p 4-1 3.21 3-5 No Record 0-1 21.0 4.71 14.1 California Witt (R) 6-7 16-13 3.85 18-17 No Record 1-1 23.0 3.91 11.3 KEY = TEAM REC—Team‘s record in games started by today‘s pitcher. AHWG — Average hits and walks allowed per 9 innings. VS OPP — Pitcher‘s record versus this opponent, 1987 statistics. Copyright 1987 Sports Features Syndicate, Inc. and Computer Sports World. AP-NY-01-25-89 1635 EST
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Today‘s games and pitching matchups
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AMERICAN LEAGUE Vs Opp Last 3 Starts
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Probable 1987 Team | | | |
Team Pitchers (H) Time Line W-L ERA Rec. W-L IP ERA W-L IP ERA MBA
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Toronto Cerutti (L) Even-6 10-4 4.16 13-7 1-1 10 2/3 10.13 1-1 17 4.76 13.8
New York Filson (L) 7:30p 0-0 7.88 0-0 0-0 0 1/3 0.00 --- --- --- ---
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Seattle Bankhead (R) 9-8 5.12 12-11 2-1 19 2/3 3.66 2-0 20 1.80 7.2
Chicago Long (R) 8:00p Even-6 8-8 4.17 11-10 1-2 15 1/3 5.87 0-2 15 1/3 8.22 16.4
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California Witt (R) 15-12 3.85 17-15 0-2 16 3.38 0-3 25 2/3 3.86 12.3
Kansas City Leibrandt (L)8:35p 6-7 15-10 3.04 18-13 2-0 15 2.40 2-1 21 2/3 4.15 12.9
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NATIONAL LEAGUE
Chicago Moyer (L) 11-13 4.98 12-17 2-1 27 3.33 1-2 19 1/3 3.72 10.7
Philadelphia Carman (L) 1:35p 6-7 10-10 4.62 15-15 0-1 5 3.60 2-1 14 2/3 5.52 16.0
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Atlanta Z. Smith (L) 15-8 3.97 21-12 1-0 9 1.00 1-1 19 3.79 12.3
San Diego Show (R) 4:05p 5½-6½ 7-16 4.00 11-20 2-1 21 1/3 4.22 1-1 21 2/3 1.66 12.0
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Houston Darwin (R) 8-9 3.60 16-11 0-0 13 1/3 7.43 0-2 11 2/3 5.40 15.4
San Francisco Reuschel (R)4:05p 7-8 12-7 2.75 4-1 --- --- --- 3-0 25 1.44 5.4
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Cincinnati Rasmussen (L) 2-1 5.40 2-1 --- --- --- 2-1 18 1/3 5.40 10.3
Los Angeles Valenzuela (L)7:05p 5½-6½ 12-13 4.10 13-17 1-3 29 5.28 1-2 26 1/3 3.76 12.3
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Cincinnati Power (R) DH 10-11 4.33 17-13 2-1 23 2.74 0-3 17 5.82 13.2
Los Angeles Welch (R) 5½-6½ 11-9 3.46 18-13 2-0 13 4.15 0-1 21 5.57 11.6
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St. Louis Mathews (L) Even-6 10-9 4.02 13-15 0-1 12 3.75 1-1 23 2.74 9.4
Pittsburgh Dunne (R) 7:35p 12-5 2.86 11-8 1-0 9 1.00 3-0 23 2.74 11.3
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New York Cone (R) Even-6 5-3 3.78 6-4 0-0 5 5.40 2-0 19 2/3 1.83 9.6
Montreal Perez (R) 7:35p 3-0 2.29 5-0 --- --- --- 3-0 21 1/3 2.53 10.5
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Bottom team is home team. Favored team is designated by odds beside pitcher‘s name. All pitching data reflects the pitcher‘s
past performance as a “starter.” 1987 — Pitcher‘s 1987 record as “starter.” Team Rec — Team‘s record in games started by today‘s
pitcher. Vs OPP — Pitcher‘s performance this year vs. today‘s opponent. Last 3 Starts — Pitcher‘s performance over last three
starts. W/L—Won/lost record as a “starter“. IP — Innings pitched. ERA — Earned run average. MBA — Average number of men allowed
to reach base via hits and walks per nine innings pitched. The odds are estimated ones.
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Notes
It appears that plaintiff was the first person to list this last category, men on base average, in a pitching form. There is evidence, however, that an Associated Press supplier had calculated the statistic in a different context prior to plaintiff‘s publication of his form. Plaintiff contends that he never saw this statistic before and that he was its creator. We need not resolve this dispute and only point out that the statistic represents the average number of men to reach base via hits and walks per nine innings. Earned run average, we note, represents the average number of earned runs (i.e., those attributable to the pitcher and not his teammates’ errors) per nine innings. The other categories need no further explanation.
We note AP‘s totally inconsistent arguments as to the copyrightability of these explanations. While in one respect AP agrees that such explanations are not copyrightable, Def. Memo. at 21, at the same time, in response to plaintiff‘s charge that AP actually puts a copyright notice on its own form, AP argues that its copyright notice is only to reserve its rights in, for example, its “written description in the lower margin of the form.” Def. Reply Memo. at 3 n. 2.
Any person who shall affix, apply, or annex, or use in connection with any goods or services, or any container or containers for goods, a false designation of origin, or any false description or representation, including works or other symbols tending falsely to describe or represent the same, and shall cause such goods or services to enter into commerce, and any person who shall with knowledge of the falsity of such designation of origin or description or representation cause or procure the same to be transported or used in commerce or deliver the same to any carrier to be transported or used, shall be liable to a civil action by any person doing business in the locality falsely indicated as that of origin or in the region in which said locality is situated, or by any person who believes that he or she is or is likely to be damaged by the use of any such false description or representation.