Alva Studios, Inc. v. Winninger

• Decision Date: 16 October 1959
• Parties: ALVA STUDIOS, INC., Plaintiff, v. Robert WINNINGER, doing business as Wynn's Warehouse, and Austin Productions, Inc., Defendants.
• Court: U.S. District Court — Southern District of New York

177 F. Supp. 265

ALVA STUDIOS, INC., Plaintiff, v. Robert WINNINGER, doing business as Wynn's Warehouse, and Austin Productions, Inc., Defendants.

United States District Court S. D. New York.

October 16, 1959.

Paskus, Gordon & Hyman, New York City, for plaintiff.

Jacob S. Linett, New York City, for defendants.

RYAN, Chief Judge.

Plaintiff in this suit for copyright infringement moves for an injunction pendente lite.

Plaintiff is a New York corporation and has its studios and offices in New York City. It reproduces three-dimensional works of art, the originals of which are owned by various museums throughout the United States and several foreign countries. Plaintiff is authorized by these museums to reproduce these works of art and pays royalties to them for this privilege. Plaintiff works in collaboration with the museum which owns the particular work being reproduced, and the curatorial staff of each such museum exercises close control over the quality and detail of a scaled reproduction of its sculpture works.

Defendant Winninger sells decorative accessories under the trade name of Wynn's Warehouse. Defendant Austin Productions is a New York corporation, engaged in the business of manufacturing and selling decorative accessories.

The plaintiff alleges of its works in its complaint that:

"These reproductions are made through the use of special techniques, skills and judgment developed by plaintiff and are hand finished to duplicate as closely as possible the exact shape, patina, color and texture of the original."

The complaint further alleges that:

"Prior to December 12, 1958 plaintiff caused to be created by its officers and employees a reproduction of a certain three-dimensional work of art approximately 18½ inches in height, which it designated `Hand of God'."

The plaintiff's product is not an exact replica, however, in that the original work has been reduced in size by the plaintiff. Describing the originality of the work in suit, plaintiff avers that

"Rodin's `Hand of God' is one of the most intricate pieces of sculpture ever created. Innumerable planes, lines and geometric patterns are all interdependent in this multidimensional work. In reduction they all have to be carried over with supreme exactness into smaller scale."

It is in the successful accomplishment of this reduction in size that plaintiff claims, with apparent support, that the originality and validity of the copyright of his work rests. It takes "an extremely skilled sculptor" many hours working directly in front of the original. If there is a small discrepancy in any part of the work of this reduction, the "overall appearance would be altered."

A certificate of registration of copyright claim in a reproduction of Auguste Rodin's sculpture, "The Hand of God", issued to the plaintiff on April 17, 1959. The "replica"—plaintiff's copyrighted work—is unquestionably based upon the Rodin sculpture in bronze, which is owned by the Department of Fine Arts of the Carnegie Institute.

Plaintiff claims that defendant Austin infringed plaintiff's copyright by copying its work and marketing products embodying this copying through the retail operations of defendant Winninger. Defendant Austin, however, claims that the piece it marketed was its own original interpretation and representation of the Rodin sculpture which is currently on exhibit at the Metropolitan Museum of Art in New York City.

It is undisputed that the Metropolitan and Carnegie sculptures were in the public domain for some time prior to plaintiff's copyright. Rodin's "Hand of God" was first placed on public exhibit at the New Gallery in London, England, in 1905. The sculptor died on November 17, 1917.

It is hornbook that a new and original plan or combination of existing materials in the public domain is sufficiently original to come within the copyright protection (Allegrini v. De Angelis, D.C., 59 F.Supp. 248, at page 250). However, to be entitled to copyright, the work must be original in the sense that the author has created it by his own skill, labor and judgment without directly copying or evasively imitating the work of another (Hoffman v. Le Traunik, D.C., 209 F. 375). The plaintiff has the burden of establishing these elements when demanding the preliminary injunction (ibid. at page 379).

Plaintiff has sustained this burden. Its copyrighted work embodies and resulted from its skill and originality in producing an accurate scale reproduction of the original. In a work of sculpture, this reduction requires far more than an abridgement of a written classic; great skill and originality is called for when one seeks to produce a scale reduction of a great work with exactitude.

It is undisputed that the original sculpture owned by the Carnegie Institue is 37 inches and that plaintiff's copyrighted work is 18½ inches.

The originality and distinction between the plaintiff's work and the original also lies in the treatment of the rear side of the base. The rear side of the original base is open; that of the plaintiff's work is closed. We find that this difference when coupled with the skilled scaled sculpture is itself creative.

Alfred Wolkenberg, president of the plaintiff corporation, states in his supporting affidavit that:

"The quality of its reproductions are constantly subject to the approval of the curatorial

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