353 F.2d 41 (9th Cir. 1965), 18997, Richmond v. Weiner

Docket Nº:18997.
Citation:353 F.2d 41, 147 U.S.P.Q. 8
Party Name:Virginia RICHMOND, Appellant, v. Albert WEINER, as Executor of the Estate of Harry Soforenko,[*] Appellee.
Case Date:September 09, 1965
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 41

353 F.2d 41 (9th Cir. 1965)

147 U.S.P.Q. 8

Virginia RICHMOND, Appellant,

v.

Albert WEINER, as Executor of the Estate of Harry Soforenko, [*] Appellee.

No. 18997.

United States Court of Appeals, Ninth Circuit.

Sept. 9, 1965

Rehearing Denied Dec. 15, 1965.

Page 42

Virginia Richmond, in pro. per.

Sidney Dorfman, Beverly Hills, Cal., for appellees.

Before CHAMBERS and JERTBERG, Circuit Judges, and BOWEN, District judge.

BOWEN, District Judge.

Before us is appellant's appeal from the Trial Court's judgment adverse to appellant (plaintiff below) in her action for infringement of copyrights, delivery up to appellant of the copyrights and recovery of damages for appellant, and in appellee's counterclaim, he sues for declaration of appellee's asserted rights in the copyrights.

The Trial Court had jurisdiction under 17 U.S.C.A. § 1 et seq. This Court has jurisdiction under 28 U.S.C.A. §§ 1291 and 1294.

Early in the trial below, the Court directed that in order to better conserve the Court's work time and for its convenience, the important issue as to whether appellant was the sole owner or, with appellee (defendant below), a joint owner of the copyrights in question should first be tried, because if it should be determined that appellee is such a joint owner, this infringement action might be ended without further trial, since a copyright owner cannot infringe against his own copyright.

The principal issue on this appeal as at the trial is whether appellee is a joint owner with appellant of the copyrights, particularly those related to Medical Practice Informant and its parts recorded in appellant's name in the patent office, although other issues and alleged errors dealt with in the trial will be reviewed.

Both parties admit, as did appellant's counsel during the trial, that since about June-July, 1957 and during approximately the first eight months, and until their business breakup, in 1958, they were engaged in a joint venture (at first oral and later written) producing, publishing and selling General Practice magazine, originated by appellee, and Medical Practice Informant and its parts in her name copyrighted by appellant. The parties, however, since their breakup, have been adamant in their respective contentions, appellee claiming joint ownership with appellant of the copyrights and appellant denying such claim of appellee and asserting appellant's exclusive ownership of the copyrights.

Although admitting the joint venture for the production and sale of the copyrighted materials, appellant at all material times has denied and now denies that she ever did convey or intend to convey to appellee any proprietary title or interest in or to the copyrights relating to Medical Practice Informant (also called MPI) or to any of its parts. Appellee has at all such times claimed for himself a one-half joint ownership interest in all such copyrights.

Appellant claims that prior to her becoming a business associate of appellee she owned two publishing houses, a recording company and numerous copyrights, and had written the musical comedy 'Cheesecake and Horses', and songs, words, music and medical poetry. The appellee, a licensed physician, at the trial claimed to have for about twenty years since 1938 published medical magazines, including General Practice Magazine.

Pursuant to their June-July 1957 oral joint venture, appellee provided qualified personnel to do the researching, compiling and editorial work of MPI, supplied money and credit for printing and sales work, was in charge of sales, and made three sales of excerpts from MPI to pharmaceutical houses in 1958, one in February, one in May and one in August.

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All of these sales were made and paid for before appellant undertook to repossess the copyrights and while she and appellee were still working together in pursuance of the joint venture.

In furtherance of the plans and purposes of the June-July 1957 oral joint venture, the parties signed a written agreement dated February 7, 1958, in evidence as Plaintiff's Exhibit 71, also sometimes called Exhibit A, by which appellee agreed to transfer all of his right, title and interest in the General Practice magazine and appellant agreed to convey all her right, title and interest in Medical Practice Informant to General Practice Publishing Co., Inc., a corporation to be created and used by them in their joint venture.

At the trial the parties stipulated that the General Practice Publishing Co., Inc., was formed as contemplated in the February 7, 1958 written agreement, and that the Commissioner of Corporations granted a permit to the corporation to issue 250 shares of stock alike to appellant and appellee, but none of the stock was actually issued because of later disputes between the parties. However, with the help of both of them, the production and sale of MPI continued through the General Practice Publishing Co., Inc., each of the parties co-signed checks for the corporation on a bank account in the corporate name, some of those co-signed checks so drawn were payable to appellant in substantial amounts, she had the use of a company car, she continued to be and is still secretary-treasurer of the corporation and more significantly she as such corporate officer transacted in the corporate name important corporate business.

Both appellant and appellee were called as witnesses and gave testimony at the trial. Appellant testified that she at all times expressly stated and emphasized to appellee that she wished to retain and in all her related acts intended to and did retain all proprietary interests in her copyrights, and that all she ever granted or intended to grant to appellee were rights for him to share equally with appellant in the use and production of her copyrights and in the profits realized from such use and production and from sales of copyrighted products. She as a witness at the trial and as appellant on this appeal has vehemently contended and does contend that she has not by any written or oral statement or by any conduct conveyed, intended to convey or in any manner transferred to appellee any proprietary right in any of her copyrights including the ones respecting Medical Practice Informant and its parts.

Appellee at the trial also testified with equal vehemence and now on this appeal in substance and effect contends that, in the parties' 1957 oral joint venture agreement, in the written terms of their February 7, 1958 joint venture and in their conduct and attitude regarding their mutual property interests and at all material times until their disagreement which occasioned this litigation, the parties mutually agreed that appellee would and he did transfer to the joint venture all of his right, title and interest in appellee's magazine General Practice, and that appellant would and did transfer to the joint venture all her right, title and interest in Medical Practice Informant and its parts copyrighted in her name, and that appellee in joint venture with appellant was a joint owner of such copyrights.

As he contended in the Trial Court and now contends, appellee at the trial in substance and effect orally testified (1) that in March 1957 appellee employed appellant to, and appellant did, perform certain services in connection with the publication of General Practice magazine; (2) that thereafter, prior to February 1958, appellee and appellant together conceived the idea for, compiled, edited, co-authored and arranged for publication of, the book Medical Practice Informant, as to which and its related business the parties were co-owners and joint venturers; (3) that to further their...

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