Read v. Turner

Decision Date20 January 1966
Citation48 Cal.Rptr. 919,40 A.L.R.3d 237,239 Cal.App.2d 504
CourtCalifornia Court of Appeals Court of Appeals
Parties, 40 A.L.R.3d 237, 148 U.S.P.Q. 453 Charles B. READ, Jr., and Jean Read, Plaintiffs, Respondents and Appellants, v. D. K. TURNER and T & T Investment Corp., Defendants and Appellants, Dorothy Fullmer, Defendant, Cross-Appellant and Respondent. Civ. 7547.

Irwin O. Spiegel, Beverly Hills, and Noel G. Conway, Santa Ana, for plaintiffs, respondents and appellants, Read.

Fulwider, Patton, Rieber, Lee & Utecht, and Francis A. Utecht, Long Beach, for defendants and appellants D. K. Turner and T & T Investment Corp.

Dorothy Fullmer, in pro. per.

COUGHLIN, Justice.

This is an action for damages resulting from an alleged infringement of a copyright.

Plaintiffs, Mr. and Mrs. Read, are husband and wife; conceived a floor plan for a split-level, four-bedroom residence, which they contemplated building at 1705 Catalina Street in Seal Beach; and caused their plan to be expressed in a drawing. Mr. Read was a consulting engineer, building contractor and licensed real estate salesman. Mrs. Read also had a real estate salesman's license.

Defendant Turner was an excavation and concrete work contractor; also was President of the defendant T & T Investment Corp.; in April, 1961, in preparing a bid on the excavation and concrete work for plaintiffs' proposed residence, sought and obtained from them a copy of their plans and specifications therefor which included a copy of the floor plan; was told by plaintiffs that the plans and specifications were to be returned to them and were to be under their control, but was not told that the floor plan was not to be copied; and in due course was awarded the subcontract for the work in question. Contemporaneously, Turner and T & T Investment Corp. decided to build a number of residences in the tract where plaintiffs' residence was being constructed; asked defendant Fullmer, a designer, to draw floor plans for these residences; furnished Fullmer with the copy of plaintiffs' floor plan drawing which Turner had in his possession; and suggested the use of this plan as a guide. Fullmer prepared drawings accordingly which incorporated, in substance, the floor plan expressed in the copy of plaintiffs' drawing.

By June 7, 1961, Fullmer had completed drawings for six residences. Shortly after the concrete work on plaintiffs' residence was completed one of Turner's employees told Mr. Read: 'Turner is using your plans and is planning on building homes in the area from a copy of your plans.' When the first two of defendants' residences were in the course of framing, one being located on the lot next to plaintiffs' and the other being located two lots distant, they were viewed by Mr. Read who noticed a similarity between their and his floor plan. This was in August or September, 1961. He made no complaint to defendants respecting the use of his plan until February, 1962, when he obtained a copy of the floor plan used in defendants' residences; concluded it was substantially similar to his floor plan; consulted an attorney; and, through the latter, notified defendants their use of the floor plan was a violation of his copyright. He testified the reason he did not complain sooner was because before doing so he wanted to make sure of the similarity in plans.

In the meantime, i. e., November, 1961, plaintiffs had sold their residence on Catalina Street. The purchaser asked for a copy of the floor plan; was given the same, which he kept; and was not told it might not be copied or used by anyone else. Read testified that the purchaser wanted a drawing of the floor plan to obtain rug measurements therefrom. Preliminary to the sale, viz, in August, 1961, plaintiffs listed their residence with two realty boards under a multiple listing arrangement which permitted access thereto by 750 brokers or salesmen who were members of these boards. The real estate listing did not provide for a limited or restricted showing of the house, which could have been done. Also prior to the sale there had been a dozen or more open house showings when any member of the public desiring to view the premises had the opportunity of doing so. During some of these showings the plaintiffs were present and during others they were not present.

In all, Fullmer made 10 drawings which were used in the construction of 10 houses by defendants. The floor plan in each of these drawings, although not identical, was substantially similar to plaintiffs' floor plan. Defendants' first residence was completed about a month before the sale of plaintiffs' residence. The remaining 9 residences were completed thereafter. Construction of some thereof commenced before receipt of plaintiffs' February, 1962 notice of copyright infringement; of others following such notice; and of all prior to filing the complaint herein on May 14, 1962.

At this juncture it is pertinent to note the limited scope of the copyright infringement issue imposed by the allegations in the complaint and by the pretrial order. The complaint alleges that 'Commencing in or about the month of September, 1961 and thereafter to and including the date hereof * * * defendants * * * and each of them, used, copied and appropriated substantial parts and portions of plaintiffs' property in drawings and specifications, * * * and said defendants, and each of them, did furthermore use, copy and appropriate plaintiffs' property in the construction of nine or more split level dwelling houses * * *.' 1 (Italics ours.) The pretrial order, based on a joint pretrial statement adopted as part of that order, provided:

'The issues of fact and law to be determined at trial are as follows:

'* * *

'3. Whether or not defendants * * * used, copied or appropriated plaintiffs' said interior floor plan and design and said drawings and specifications based thereon in whole or in part in the construction of residences * * *, and if so, whether such use, copying or appropriation amounts to an infringment [sic] of plaintiffs' common law property rights.' (Italics ours.)

Thus the issue of liability is limited by the complaint as to time of infringement to that 'Commencing in or about the month of September, 1961' and, by the pretrial order as to the manner of infringement, regardless of when it may have occurred, to that arising out of the use, copying and appropriation of plaintiffs' floor plan in the construction of defendants' residences. The issue as thus defined appears to eliminate any claimed liability on account of the use of plaintiffs' drawings by defendant Fullmer at the request of defendants Turner and T & T Investment Corp., in designing floor plans for the latter's residences, except insofar as Fullmer's drawings were executed after September 1, 1961. In any event, the scope of the copyright infringement liability issue is ambiguously defined by the allegations in the complaint and the pretrial order. The significance of this ambiguity is reflected in a claimed dual infringement in (1) using and copying plaintiffs' floor plan in the designs drawn by Fullmer, and (2) in using and copying plaintiffs' floor plans in the construction of Turner and T & T Investment Corp. residences.

The issues of fact were tried by a jury which rendered a verdict in favor of plaintiffs and against all defendants assessing compensatory damages in the sum of $15,000, punitive damages against defendant Turner in the sum of $10,000, and punitive damages against the defendant T & T Investment Corp. in the sum of $7500. All defendants moved for a new trial. The motion of defendants Turner and T & T Investment Corp. was denied upon condition plaintiffs would stipulate to a reduction in the amount of the compensatory damages to $5000 and the punitive damages to $5000, otherwise it was granted. Plaintiffs stipulated to the reduction and, pursuant to the order, the motion for a new trial was denied. The motion by defendant Fullmer was granted upon the ground the evidence was insufficient to support the verdict. Defendants Turner and T & T Investment Corp. appealed from the judgment; and plaintiffs appealed from the order granting Fullmer's motion for a new trial.

Defendants Turner and T & T Investment Corp. contend: (1) The evidence establishes as a matter of law that there was a general publication of plaintiffs' floor plan resulting in a termination of their common law copyright; (2) the evidence is insufficient to sustain the award of $5000 compensatory damages; and (3) the evidence is insufficient to support any award for punitive damages.

Plaintiffs contend, in connection with their appeal, the evidence supporting the verdict against defendants Turner and T & T Investment Corp. also supports the judgment against Fullmer.

Pertinent provisions of the Civil Code, applicable to the case at bench, provide that the creator of a design 'has an exclusive ownership therein, and in the representation or expression thereof, which continues so long as the * * * design and the representations or expressions thereof made by him remain in his possession' (Civ.Code § 980(b)); and that if the creator of a design 'intentionally makes it public, a copy or reproduction may be made public by any person, without responsibility to the owner, so far as the law of this State is concerned.' (Civ.Code § 983(b).) These provisions adopt, in general, the common law copyright rule; 2 confer a copyright upon the designer of a house plan, protecting his property in the plan designed; and terminate the copyright upon publication when control by the owner over the subject thereof ceases. (Shanahan v. Macco Constr. Co., 224 Cal.App.2d 327, 333-334, 36 Cal.Rptr. 584; Smith v. Paul, 174 Cal.App.2d 744, 746-747, 757, 345 P.2d 546, 77 A.L.R.2d 1036; Werckmeister v. American Lithographic Co., 2 Cir., 134 F. 321, 323-326; Edgar H. Wood Associates, Inc. v. Skene, 347 Mass. 351, ...

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