Taylor, et al v. IBM, et al

REVISED DECEMBER 12, 2002
UNITED STATES COURT OF APPEALS
For the Fifth Judicial Circuit
No.02-10391
Summary Calendar
JOHN D. TAYLOR; STEVE K. TAYLOR; RAY GENE SMITH,
Plaintiffs-Appellants,
VERSUS
IBM; IBM GLOBAL SERVICES; CASH CARDS INTERNATIONAL
IBM PARTNER; AMERICAN TELEPHONE AND TELEGRAPH COMPANY,
Owner of IBM Global Services; CASH X PREPAID; PAXELL
PREPAID CASH CARDS & GIFT CARDS; VALUE CASH CARDS (SVM)
STORED VALUE MARKETING; CONOCO PREPAID CASH CARDS; CITGO
PREPAID CASH CARDS; EXXON DRIVER CASH CARDS; AMOCO BP
PREPAID CASH CARDS; 76 PREPAID CASH CARDS; ARCO PUMP
PASS CASH CARDS; MOBIL GO PREPAID CASH CARDS; SHELL
PREPAID CASH CARDS; WESTERN UNION; METAVANTE PREPAID
CASH CARDS; MASTERCARD PREPAID CASH CARDS; AMERICAN
EXPRESS, Cobalt cash cards; PRENET CORPORATION PREPAID
CASH CARDS; SPRINT, Cash Cards; ADAVANCE; INTERNET CASH
CORPORATION; BIZPURSE-SURICH TECHNOLOGIES; AT&T
CORPORATION; VISA CORPORATE, The Associates, Product
Development
Defendants-Appellees,
INT MEDIA GROUP INC; CHRISTINA GRIESINGER
Movants-Appellees.
Appeal from the United States District Court
For the Northern District of Texas
(USDC No. 7:01-CV-216-R)
December 10, 2002

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*Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
**The complaint contained patent infringement claims as well
as copyright infringement claims. However, appellants are not
appealing the dismissal of their patent infringement claims.
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Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
John D. Taylor, Steve K. Taylor, and Ray Gene Smith appeal the
district court’s dismissal of their copyright infringement action
for failure to state a claim.** See FED. R. CIV. P. 12(b)(6).
Appellants contend that the appellees have infringed their
copyright by making, promoting, and issuing “pre paid cash cards.”
Appellants point to several pages of text for which they obtained
a registered copyright. The text describes their idea of prepaid
cash cards and explains how to promote, distribute, and sell
prepaid cash cards.
Appellants failed to allege specific acts of infringement by
each defendant, thereby failing to adhere to the requirements of
Fed. R. Civ. P. 8(a). See Plunket v. Doyle, 2001 Copyright L. Dec.
(CCH) ¶ 28,237, 2001 WL 175252 at *4 (S.D.N.Y. 2001). They have
also failed to show that any allegedly copied text was
copyrightable. The Copyright Act does not protect fragmentary
words or short phrases, such as “pre paid cash cards.” 37 C.F.R.
§ 202.1(a)(2001); see CMM Cable Rep, Inc. v. Ocean Coast
Properties, Inc., 97 F.3d 1504, 1519-20 (1st Cir. 1996). Moreover,

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where all that has been copied is plaintiffs’ idea, there is no
copyright infringement. See e.g., Kepner-Tregoe, Inc. v.
Leadership Software, Inc., 12 F.3d 527, 533-34 (5th Cir. 1994);
Engineering Dynamics, Inc. v. Structural Software, Inc., 26 F.3d
1335, 1344 (5th Cir. 1994), opinion supplemented by, 46 F.3d 408
(1995); Cont’l Cas. Co. v. Beardsley, 253 F.2d 702, 705-06 (2d Cir.
1958). To the extent plaintiffs’ copyright claims are based on
defendants’ alleged use of parts of their copyrighted textual
description, those claims are insufficient as a matter of law
because use of that description was only incidental to defendants’
alleged use of the idea of prepaid cash cards and because the
allegedly copyrighted expression is inseparable from the idea for
prepaid cash cards. See Cont’l Cas. Co., 253 F.2d at 706;
Morrissey v. Procter & Gamble Co., 379 F.2d 675, 678-79 (1st Cir.
1967); Kepner-Tregoe, Inc., 12 F.3d at 533.
Because plaintiffs failed to plead an actionable claim, there
were no questions of fact for a jury to decide. Thus, plaintiffs’
Seventh Amendment rights were not violated. See Baltimore &
Carolina Line v. Redman, 295 U.S. 654, 657 (1935); Hoshman v. Esso
Std. Oil Co., 263 F.2d 499, 502 (5th Cir. 1959). Appellants
argue that the district court judge, Jerry Buchmeyer, had a
conflict of interest, and they request a hearing on the issue.
However, the basis of the alleged conflict of interest, i.e., Judge
Buchmeyer’s prior partnership in Thompson & Knight, a firm which
represents one of the defendants herein, is insufficient to justify

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Judge Buchmeyer’s disqualification. See e.g., Chitimacha Tribe of
La. v. Harry L. Laws Co., Inc., 690 F.2d 1157, 1167 & n.5 (5th Cir.
1982); see also, Bumpus v. Uniroyal Tire Co., 385 F. Supp. 711,
713-14 (E.D. Pa. 1974).
In light of the time and money expended by appellees in
defending this wholly frivolous lawsuit, appellants are hereby
ordered to pay to this court the sum of $500. See Farguson v.
MBank Houston, N.A., 808 F.2d 358, 360 (5th Cir. 1986); Prather v.
Neva Paperbacks, Inc., 410 F.2d 698, 700 (5th Cir. 1969).
Appellants’ motion for appointment of counsel is DENIED.
Appellants’ motion seeking statutory damages on the basis that the
appellees have not made a settlement offer is DENIED. Appellees'
motion for leave to file record excerpts in excess of the page
limitation is GRANTED; but their motion to strike appellants’
motion for statutory damages is DENIED. Appellants' motion to
strike appellees' record excerpts is DENIED.
APPEAL DISMISSED; SANCTIONS ORDERED.

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