Peter Pan Fabrics, Inc. v. Brenda Fabrics, Inc.

• Decision Date: 21 January 1959
• Citation: 169 F. Supp. 142
• Parties: PETER PAN FABRICS, INC. and Henry Glass & Co., Plaintiffs, v. BRENDA FABRICS, INC., Defendant.
• Court: U.S. District Court — Southern District of New York

169 F. Supp. 142

PETER PAN FABRICS, INC. and Henry Glass & Co., Plaintiffs, v. BRENDA FABRICS, INC., Defendant.

United States District Court S. D. New York.

January 21, 1959.

Helfat & Helfat, New York City, for plaintiffs.

Harry Price, New York City, for defendant.

DIMOCK, District Judge.

This is a motion for a preliminary injunction in a copyright infringement action. Plaintiff Peter Pan Fabrics, Inc. has obtained certificate of copyright No. H 7290, covering a design printed upon dress fabric. The design is known as "Style 680, Range 1, Byzantium". Defendant is producing and selling a printed fabric almost indisguishable from plaintiff's.

Plaintiff Peter Pan Fabrics, Inc. is the wholly owned subsidiary of plaintiff Henry Glass & Co., a New York corporation. The parent markets the goods which bear the copyrighted design.

Style 680, Range 1, Byzantium is a solid design made up of motifs suggestive of the Near East: arches reminiscent of Arabic architecture, figures much like those in Oriental rugs, tablets covered with palpable imitations of Arabic script and other unidentifiable but similar decorations.

Defendant's design is substantially identical in form. Plaintiffs have submitted samples of the two products which are substantially identical in color. The differences in the design are only those which would result from free-hand rather than from photographic copying.

An affiant for plaintiffs makes oath that plaintiffs' design is original. This is not denied so that defendant's design must have been copied from plaintiffs' rather than from some common source. The design is sufficiently intricate so that independent genesis of the two products would have been impossible.

I find that defendant has deliberately infringed plaintiffs' copyright and plaintiffs are entitled to relief if that copyright is valid.

The problem to be decided is whether a design printed upon dress fabric is a proper subject of copyright. Much help can be obtained from section 5 of Title 17 U.S.Code, which requires that the application for registration for copyright shall specify that the work in which copyright is claimed belongs to one of thirteen enumerated classes lettered (a) to (m). Class (g) is described as "Works of art; models or designs for works of art." Class (k) is described as "Prints and pictorial illustrations including prints or labels used for articles of merchandise."

In Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 23 S.Ct. 298, 47 L. Ed. 460, Mr. Justice Holmes dispelled the idea that the word "art" in the Copyright Act imported any idea of merit or high degree or appeal to the better educated classes. There he ruled that circus posters were a proper subject for copyright. He held, 188 U.S. at page 250, 23 S.Ct. at page 300, that, assuming that the Act then in effect limited the application of the word "print" to "pictorial illustrations * * * connected with the fine arts", the circus posters nevertheless would be copyrightable material. He said on page 251 of 188 U.S., on page 300 of 23 S.Ct., "Certainly works are not the less connected with the fine arts because their pictorial quality attracts the crowd, and therefore gives them a real use, — if use means to increase trade and to help to make money. A picture is none the less a picture, and none the less a subject of...