Ideal Toy Corporation v. Fab-Lu Ltd.(Inc.)

• Decision Date: 23 May 1966
• Docket Number: Docket 29759.,No. 328,328
• Parties: IDEAL TOY CORPORATION, Plaintiff-Appellant, v. FAB-LU LTD. (INC.) and David Faber, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

360 F.2d 1021 (1966)

IDEAL TOY CORPORATION, Plaintiff-Appellant, v. FAB-LU LTD. (INC.) and David Faber, Defendants-Appellees.

No. 328, Docket 29759.

United States Court of Appeals Second Circuit.

Argued May 2, 1966.

Decided May 23, 1966.

Morton Amster, Amster & Rothstein, New York City, for appellant.

Edward Halle, Garden City, N. Y., Hubbell, Cohen, Stiefel & Fiddler, New York City, for defendants-appellees.

Before LUMBARD, Chief Judge, and MOORE and FEINBERG, Circuit Judges.

MOORE, Circuit Judge:

On October 13, 1964 appellant, Ideal Toy Corp., filed a complaint in the district court seeking relief from alleged acts of copyright infringement and unfair competition on the part of appellees, Fab-Lu Ltd. and David Faber, with respect to two toy dolls manufactured by appellant. Subsequently, appellant made a motion for a preliminary injunction restraining the sale of two dolls, "Randy," a teenage fashion doll, and "Mary Lou," a pre-teen fashion doll, by appellees, on the grounds that (a) appellees' dolls infringed appellant's copyright on two dolls, "Tammy," a teenage fashion doll, and "Pepper," a pre-teen fashion doll, in violation of 17 U.S.C. § 101, and (b) that appellees were using reproductions of appellant's "Tammy" doll in advertising the "Randy" doll in violation of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a). The district court issued an order restraining the sale of the "Randy" doll based on the claim of unfair competition. It refused, however, to grant a preliminary injunction based on the claim of copyright infringement finding that "although the accused dolls are similar to * * * (appellant's) dolls in size and shape, and indeed some features (such as hands and arms) are virtually identical, we think the total effect of the image conveyed to an ordinary observer by the accused dolls is quite distinct from that of * * * (appellant's) dolls." Thereafter, the court granted a motion for reargument¹ concerning the infringement claim and, in an order dated March 17, 1965 it adhered to its original decision. This appeal concerns the propriety of the court's disposition of the infringement claim. We affirm.

"This court's function in reviewing the grant or denial of a preliminary injunction is a limited one. A motion for such relief is directed to the sound discretion of the district judge whose decision will not be reversed unless an abuse of discretion is apparent." Joshua Meier Co. v. Albany Novelty Mfg. Co., 236 F.2d 144, 146 (2d Cir. 1956); see American Visuals Corp. v. Holland, 261 F.2d 652 (2d Cir. 1958); Nimmer, Copyright § 157.1 (1964). Moreover, we cannot lose sight of the fact that "the test for infringement of a copyright is of necessity vague * * * (and) decisions must therefore inevitably be ad hoc." Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir. 1960) (L. Hand, J.); see Uneeda Doll Co. v. P & M Doll Co., 353 F.2d 788 (2d Cir. 1965). It is well established, however, that in order to sustain a claim of copyright infringement the claimant is required to demonstrate a substantial similarity between the copyrighted work and the alleged copy. American Visuals Corp. v. Holland, 219 F.2d 223 (2d Cir. 1954); Ideal Toy Corp. v. Adanta Novelties Corp., 223 F.Supp. 866 (S.D.N.Y.1963); see Comptone Co. v. Rayex Corp., 251 F.2d 487 (2d Cir. 1958); Nimmer, supra § 143. This is a factual question and the appropriate test for determining whether substantial similarity is present is whether an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work. See, e. g., Peter Pan Fabrics, Inc. v. Martin Weiner Corp., supra; Arnstein v....