352 F.2d 298 (9th Cir. 1965), 19883, Lin-Brook Builders Hardware v. Gertler

Docket Nº:19883.
Citation:352 F.2d 298, 147 U.S.P.Q. 264
Party Name:LIN-BROOK BUILDERS HARDWARE, Appellant, v. Evelyn GERTLER and Irving Gertler, individually, and dba All-American Home Center, Appellees.
Case Date:October 26, 1965
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 298

352 F.2d 298 (9th Cir. 1965)

147 U.S.P.Q. 264



Evelyn GERTLER and Irving Gertler, individually, and dba All-American Home Center, Appellees.

No. 19883.

United States Court of Appeals, Ninth Circuit.

October 26, 1965

Rehearing Denied Dec. 20, 1965.

Page 299

Lee Landrum, Greenwald, Landrum & Baim, Los Angeles, Cal., for appellant.

L. E. McManus, Dowey, Cal., for appellees.

Before KOELSCH and ELY, Circuit Judges, and BEEKS, District Judge.

BEEKS, District Judge.

Appellant is engaged in the business of retailing hardware and other goods in Anaheim, California. To advertise its establishment appellant has been publishing illustrated catalogues of its merchandise since 1957. Many of the illustrations were drawn by a commercial artist, H. L. Baxter, whom appellant employed as an independent contractor. Beginning in 1961 appellant made it a practice to copyright the catalogues by placing the words 'Copyright 1961 Lin-Brook Hardware' on the cover of each catalogue and by registering the copyrights with the appropriate Government offices. Appellees operate a hardware store in Downey, California, about 12 to 15 miles from appellant's store. They deal in similar or identical items of merchandise. Appellees also publish an illustrated catalogue to advertise their merchandise. Appellant, believing its copyright to have been infringed by the appellees, gave notice thereof on February 5, 1962, and commenced this lawsuit on August 13, 1962. The trial court severed the issues of liability and damages and at the conclusion of the trial the court found against appellant and dismissed the complaint. The trial court did not make formal findings of fact but it did issue a

Page 300

memorandum decision which was to be considered as the findings of the court.

In essence, appellant attacks the conclusions of the trial court that (1) appellant was not the proprietor of the copyright to the drawings made by H. L. Baxter and was therefore not entitled to copyright them, (2) the drawings by H. L. Baxter were not copyrightable, and (3) the alleged copyrights were invalid because of insufficient notice of copyright.

The basis of the trial court's holding as to the proprietorship of the copyright to Baxter's drawings is two-fold. First, the court apparently indulged in the presumption that since Baxter was an independent contractor and not an employer, he was the 'copyright proprietor' within the meaning of the statute. 1 Secondly, Baxter executed an assignment 2 in favor of appellant of all right, title and interest in the drawings. The assignment was dated May 24, 1962, less than three months before the commencement of the lawsuit. The court apparently concluded that the assignment demonstrated a prior lack of title in the assignee, Lin-Brook Hardware. Appellant here contends that the assignment was merely a 'quit-claim' assignment...

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