218 F.2d 434 (2nd Cir. 1955), 123, Rushton v. Vitale

Docket Nº:123, 23221.
Citation:218 F.2d 434, 104 U.S.P.Q. 158
Party Name:Mary Phillips RUSHTON as sole general partner of The Rushton Company, a limited partnership, and the Rushton Company, Plaintiffs-Appellants, v. Joseph VITALE and Benny Rosano, individually and as copartners doing business under the firm name and style of Smile Novelty & Toy Company, Defendants-Appellees.
Case Date:January 26, 1955
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 434

218 F.2d 434 (2nd Cir. 1955)

104 U.S.P.Q. 158

Mary Phillips RUSHTON as sole general partner of The Rushton Company, a limited partnership, and the Rushton Company, Plaintiffs-Appellants,

v.

Joseph VITALE and Benny Rosano, individually and as copartners doing business under the firm name and style of Smile Novelty & Toy Company, Defendants-Appellees.

Nos. 123, 23221.

United States Court of Appeals, Second Circuit.

January 26, 1955

Argued Jan. 14, 1955.

Page 435

Eugene L. Bondy, New York City (Bondy & Schloss and Bertram Braufman, New York City, on the brief), for plaintiffs-appellants.

Sam Panish, Brooklyn (Liebowitz, Cobert & Deixel, New York City, on the brief), for defendants-appellees.

Before CLARK, Chief Judge, and FRANK and HINCKS, Circuit Judges.

CLARK, Chief Judge.

Plaintiffs are suing to enjoin the infringement of a copyright, issued May 10, 1954, on a doll in the form of a chimpanzee named Zippy. This toy has been marketed by them, after a considerable expenditure of time, effort, and money, to fulfill a seasonal demand created by the Howdy Doody television program, on which a chimpanzee named Zippy appears. Despite the fact that defendants' doll is substantially identical to, and was obviously copied from, that of plaintiffs, the judge below refused to grant a preliminary injunction before full trial. His memorandum of decision stated: 'From the papers submitted I am satisfied that there is a genuine triable issue as to the validity of plaintiffs' copyright and in view of plaintiffs' failure to show irreparable damage, the granting of the drastic remedy of a preliminary injunction is not justified in advance of a trial of the issues.' Plaintiffs appeal pursuant to 28 U.S.C. § 1292, controverting both assumptions on which the denial of injunction rested.

From the pleadings and affidavits before us, on which Judge Inch based his decision, there seems little doubt as to the validity of plaintiffs' copyright or as to its infringement. Copyright protection extends to any production of some originality and novelty, regardless of its commercial exploitation or lack of artistic merit. Mazer v. Stein, 347 U.S. 201, 74 S.Ct. 460, 98 L.Ed. 630; see also Notes in 68 Harv.L.Rev. 517 (1955) and 66 id. 877 (1953). Indeed, we have said: 'All that is needed to satisfy both the Constitution and the statute is that the 'author' contributed something more than a 'merely trivial' variation,...

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