373 F.2d 851 (2nd Cir. 1967), 396, Uneeda Doll Co. v. Goldfarb Novelty Co.
|Docket Nº:||396, 31165.|
|Citation:||373 F.2d 851, 153 U.S.P.Q. 88|
|Party Name:||UNEEDA DOLL CO., Inc., Plaintiff-Appellant, v. GOLDFARB NOVELTY CO., Inc. and Walgreen Eastern Co., Inc., Defendants-Appellees.|
|Case Date:||March 09, 1967|
|Court:||United States Courts of Appeals, Court of Appeals for the Second Circuit|
Argued March 6, 1967.
Leonard Zissu, New York City (Zissu, Marcus & Stein, New York City, on the brief), for plaintiff-appellant.
Thomas R. Farrell, New York City (Martin Kleinbard, and Paul, Weiss, Rifkind, Wharton & Garrison, New York City, on the brief), for defendant-appellee Goldfarb Novelty.
Before LUMBARD, Chief Judge, and WATERMAN and SMITH, Circuit Judges.
J. JOSEPH SMITH, Circuit Judge:
The Uneeda Doll Company, Inc. appeals pursuant to 28 U.S.C. § 1292(a)(1) from an order of the United States District Court for the Eastern District of New York, John F. Dooling, Judge, which denied its motion to enjoin preliminarily the Goldfarb Novelty Company, Inc. and the Walgreen Eastern Company from infringing the copyright on appellant's 'Pee Wee' doll. Judge Dooling found that Goldfarb's 'Mini-Doll,' which was sold in Walgreen's stores, was directly copied from appellant's Pee Wee doll and that appellant was threatened with irreparable injury, but concluded that appellant had forfeited its copyright by failing to comply with the notice provisions of the Copyright Act, 17 U.S.C. §§ 10, 19 and therefore was not entitled to a preliminary injunction. We uphold the finding of direct copying. Contrary to Judge Dooling's conclusion, however, we hold that appellant has adequately complied with the notice requirements of the Act. Consequently, provided appellant posts a $30,000 bond, we order that a preliminary injunction issue forthwith. 1
The notice sections are the cornerstone of the formal prerequisites to obtaining a copyright. Section 10 establishes the general requirement.
§ 10. Publication of work with notice
Any person entitled thereto by this title may secure copyright for his work by publication thereof with the notice of copyright required by this title; and such notice shall be affixed to each copy thereof published or offered for sale in the United States by authority of the copyright proprietor, except in the case of books seeking ad interim protection under section 22 of this title.
Section 19 delineates the notice provisions for particular works.
§ 19. Notice; form
The notice of copyright required by section 10 of this title shall consist either of the word 'Copyright', the abbreviation 'Copr.', or the symbol accompanied by the name of the copyright proprietor, and if the work be a printed literary, musical, or dramatic work, the notice shall include also the year in which the copyright was secured by publication. In the case, however, of copies fo works specified in subsections (f) to (k), inclusive, of section 5 of this title, the notice may consist of the letter C enclosed within a circle, thus accompanied by the initials, monogram, mark, or symbol of the copyright proprietor: Provided, That on some accessible portion of such copies or of the margin, back, permanent base, or pedestal, or of the substance on which such copies shall be mounted, his name shall appear. But in the case of works in which copyright was subsisting on July 1, 1909, the notice of copyright may be either in one of the forms prescribed herein or may consist of the following words: 'Entered according to Act of Congress, in the year , by A.B., in the office of the Librarian of Congress, at Washington, D.C.,' or, at his option, the word 'Copyright,' together with the year the copyright was entered and the name of the party by whom it was taken out; thus, 'Copyright, 19 , by A.B.'
' The purpose of a copyright notice is to prevent innocent persons who are unaware of the existence of the copyright from incurring the penalties of infringers by making use of the copyrighted work.' Shapiro, Bernstein & Co. v. Jerry Vogel Music Co., 161 F.2d 406, 409 (2d Cir. 1946), cert. denied 331 U.S. 820, 67 S.Ct. 1310, 91 L.Ed. 1837 (1947), Fleischer Studios, Inc. v. Ralph A. Freundlich, Inc., 73 F.2d 276 (2d Cir. 1934), cert. denied 294 U.S. 717, 55 S.Ct. 516, 79 L.Ed. 1250 (1935), Davis v. Du Pont de Nemours & Co., 240 F.Supp. 612 (S.D.N.Y. 1965)
. In keeping with this purpose, courts generally, and particularly those of this circuit, have afforded protection to one who has substantially complied with sections 10 and 19. 2
Appellees do not dispute the fact that appellant's Pee Wee doll is copyrightable as a work of art under section 5(g) of the Act. Mazer v. Stein, 347 U.S. 201, 74 S.Ct. 460, 98 L.Ed. 630 (1954), Ideal Toy Corp. v. Sayco Doll Corp., 302 F.2d 623 (2d Cir. 1962), Rushton v. Vitale, 218 F.2d 434 (2d Cir. 1955), Alfred Bell & Co. v. Catalda Fine Arts, Inc., 191 F.2d 99 (2d Cir. 1951). The dispute, rather, is centered on the question of whether the abbreviation 'U.D. Co. Inc. 1965' which appears on the sole of the doll's left foot 3 when read in conjunction with the legend 'Uneeda Doll Co., Inc. 1966' printed on the cardboard display package...
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