King Features Syndicate v. Fleischer, 290.

• Citation: 299 F. 533
• Decision Date: 07 April 1924
• Docket Number: 290.
• Parties: KING FEATURES SYNDICATE v. FLEISCHER et al.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

299 F. 533

KING FEATURES SYNDICATE v. FLEISCHER et al.

No. 290.

United States Court of Appeals, Second Circuit.

April 7, 1924

William A. De Ford, of New York City (John T. Sturdevant, of New York City, of counsel), for appellant.

Joseph A. McLaughlin, of New York City (Rex Frye, of Detroit, Mich of counsel), for appellees.

Before ROGERS, HOUGH, and MANTON, Circuit Judges.

MANTON Circuit Judge.

Appellant the owner of the copyright of a book of cartoons known as 'Barney Google and Spark Plug,' sues the appellees who are manufacturers of toys, and who manufacture a toy horse which they have fashioned after, labeled, and sold as 'Spark Plug' and 'Sparky.' The appellant has been and is engaged, among other things, in selling publishing, and syndicating to the publishers of newspapers, cartoons and comic strips, which are in turn published under a license from appellant. These newspapers have a wide and large reading public, and the cartoons and comic strips have great value to the publishers. The appellant's employee prepared cartoons-- that is, sketches and drawings--in series of representations of a male character known as 'Barney Google,' which depicts a character in a variety of ludicrous situations coupled with descriptive reading matter or dialogue. From July, 1922, these cartoons appeared almost daily, and included a characteristic representation of a new grotesque and comic race horse called 'Spark Plug,' sometimes referred to as 'Sparky.' Both figures, the man and the horse, are found to be the creation of the appellant's employee. By a contract of employment, the appellant has had the exclusive rights of this employee's productions, including the right to copyright in its own name, vend, sell, and reproduce such productions. On July 7, 1922, it copyrighted and published a book delivered to it by this employee containing the cartoons and comic strips as originated and published. The book was sold extensively, and therefore gave wide publicity to and familiarized the subject of 'Barney Google' and the horse 'Spark Plug' to millions of readers.

The appellees' infringement consisted of the reproduction of a substantial portion of the copyright, and also in publishing it as an advertisement in the trade paper entitled 'Plaything' and in the newspaper called 'Billboard.' The principal act of infringement, however, is the manufacturing and sale of a grotesque figure or toy, an exact reproduction of the horse 'Spark Plug,' or 'Sparky,' as copyrighted by the appellant. The appellees are the licensees under a design patent application for a stuffed doll filed February 9, 1923, the design of which duplicates the horse 'Spark Plug,' or 'Sparky.' The appellant moved for a preliminary injunction pending the trial of the suit, and the appellees moved to dismiss the complaint. The court below denied the motion for an injunction, and granted the motion to dismiss. The appeal is from the order entered thereon.

The record satisfactorily demonstrates that the appellant's employee had the original conception of the idea of the concept of humor embodied in the original cartoons, which consisted of a male character, 'Barney Google,' and the weather-beaten horse, called 'Spark Plug.' The first publication of the cartoons was in July, 1922, whereas the applicant of the design patent in her affidavit said she made her first horse doll in August, 1922. Indeed, her affidavit indicates that her 'perfected horse doll,' like 'Spark Plug,' was not made until six months after appellant's cartoon was published and copyrighted. In view of the admissions made by the appellees' licensor, she is not the original inventor of the idea of the design of 'Spark Plug,' or 'Sparky.'

The question presented to us is whether manufacturing and duplicating the horse as a figure doll is a copy of the copyrighted idea of the appellant's. The Copyright Act (Comp. St. Sec. 9517) provides that any person, having complied with the provisions of the act, shall have exclusive right 'to print, reprint, publish, copy, and vend the copyrighted work. ' A copy is that which ordinary observation would cause to be recognized as having been taken from or the reproduction of another. In White-Smith Co. v. Apollo Co., 209 U.S. 17, 28 Sup.Ct. 323, 52 L.Ed. 655, 14 Ann.Cas. 628, the court said:

'What is meant by a copy? We have already referred to the common understanding of it as a reproduction or duplication of a thing. A definition was given by Bailey, J., in West v. Francis, 5 B. & A. 743, quoted with approval in Boosey v. Whight, 80 L.T.R. 561. He said: 'A copy is that which comes so near to the original as to give to every person seeing it the idea created by the original."

Section 3 of the Copyright Act of March 4, 1909 (35 Stat. 1075 (Comp. St. Sec. 9519)), provides protection for all the copyrightable component parts of the thing copyrighted, and the proprietor has all the rights in respect thereto which he would have, if each part were individually copyrighted under the act. The courts have given this meaning to this section. Da Prato Statuary Co. v. Guiliani Co. (C.C.) 189 F. 90; Mail & Express Co. v. Life Pub. Co., 192 F. 899, 113 C.C.A. 377. Copying is not confined to a literary repetition, but includes various modes in which the matter of any publication may be adopted, imitated, or transferred with more or less colorable alteration. The disguise of the source from which the material was derived does not defeat the protection of the copyright, nor does taking a part of the work constitute an evasion of the copyright. Lawrence v. Dana, Fed. Cas. No. 8, 136, 4 Cliff. 80. The appellees did not take all of the copyrighted matter, or all its principal characters, but took one, the idea of the horse 'Sparky.'

We do not think it avoids the infringement of the copyright to take the substance or idea, and produce it through a different medium, and picturing in shape and details in sufficient imitation to make it a true copy of the character thought of by the appellant's employee. Doing this is omitting the work of the artisan, but appropriating the genius of the artist. Falk v. Howell & Co. (C.C.) 37 F. 202. In the cited case, the court said: 'That their design is copied directly from the copyrighted photograph is not denied, but it is urged that infringement is avoided, because it is larger than the photograph, and is stamped on leather, and is intended for the bottom or back of a chair. It is thought that this proposition cannot be maintained. Differences which relate merely to size and material are not important. * * * '

There the photograph was a work of art, and the chair that of manufacture. A piece of statuary may be infringed by the picture of the statuary for the Copyright Act secured to the author the original and natural rights, and it is the intendment of the law of copyrights that they shall have a liberal construction in order to give effect to what may be considered as an inherent right of the author in his work.

'The question is not whether the photograph contains...