Blumcraft of Pittsburgh v. Newman Brothers, Inc.

• Decision Date: 15 March 1967
• Docket Number: No. 16914.,16914.
• Citation: 373 F.2d 905
• Parties: BLUMCRAFT OF PITTSBURGH, Plaintiff-Appellant, v. NEWMAN BROTHERS, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

373 F.2d 905 (1967)

BLUMCRAFT OF PITTSBURGH, Plaintiff-Appellant, v. NEWMAN BROTHERS, INC., Defendant-Appellee.

No. 16914.

United States Court of Appeals Sixth Circuit.

March 15, 1967.

James C. McConnon, Philadelphia, Pa., for appellant, Taft, Stettinius & Hollister, John H. Clippinger, David W. Matthews, Cincinnati, Ohio, on the brief, Henry N. Paul, Jr., Paul & Paul, Philadelphia, Pa., of counsel.

Burton Perlman, Cincinnati, Ohio, for appellee, Robert P. Goldman, of Paxton & Seasongood, Cincinnati, Ohio, on the brief.

Before O'SULLIVAN and PHILLIPS, Circuit Judges, and CECIL, Senior Circuit Judge.

PER CURIAM.

Blumcraft of Pittsburgh, a partnership and plaintiff-appellant, brought this action in the United States District Court for the Southern District of Ohio against Newman Brothers, Inc., a corporation and defendant-appellee, for an injunction and for damages for the infringement of a copyright. Jurisdiction is invoked under Section 1338(a) and 1400(a), Title 28, U.S.C.

At the time the action was brought, Blumcraft was, and for more than sixty years prior thereto had been, active in the creation of ornamental iron designs for use in the architectural field. After 1945, Blumcraft entered upon the development of a new railing system. This railing system was described as being "based upon an entirely new concept wherein the handrails `float' in space away from the supporting posts." Coincident with the development of the railing system, Blumcraft developed an advertising catalog designed to present its product in a new and different manner. This catalog contained a carefully prepared, unique and distinctive illustration of the railing. This illustration was used in the 1953 catalog and with some variations in the subsequent catalogs issued annually thereafter through 1959. This unique illustration became known to the architects of the country as a Blumcraft design. This 1959 catalog was copyrighted and on November 27, 1959, Blumcraft received from the Register of Copyrights a Certificate of Registration, identified as Class A Registration, No. A 417619. (Sections 11 and 209, Title 17, U.S.C.)

Newman Brothers was also engaged in the ornamental design and railing business and had been for many years. It too put out annual catalogs. Its 1962 catalog was the first catalog in which it advertised a floating railing concept alleged by Blumcraft to be similar to their design. This catalog was published under the title of "Econo Rail, New Distinctive Aluminum Extruded Quality Railing." It is alleged by Blumcraft that this catalog contained an illustration bearing the expression and the manner of illustration employed by them in their copyrighted catalog.

Specifically it is charged that the illustrations on the front cover and in the upper lefthand corner of page two of the 1962 Newman Brothers' catalog were copied from the illustration on the lefthand side of page 12 of the 1960 copyrighted catalog of Blumcraft. Both parties moved for summary judgment. The motions were submitted to the district judge on the pleadings, answers to interrogatories submitted by both parties, affidavits submitted on behalf of both parties and depositions submitted on behalf of Newman Brothers. Upon consideration, the district judge granted judgment to Newman Brothers. This appeal followed.

The basic question before us is whether there is any genuine issue as to any material fact from which it might be determined that Newman Brothers copied or caused to be copied the copyrighted illustration of Blumcraft. (Rule 56(e) F.R.Civ.P.)

The registration certificate establishes a prima facie case of originality of the copyrighted article in the holder thereof and a prima facie presumption as to all of the facts stated therein. Section 209, Title 17, U.S.C.; Drop Dead Co. v. S. C. Johnson & Son, Inc., 326 F.2d 87 (C.A. 9), cert. den. 377 U.S. 907, 84 S.Ct. 1167, 12 L.Ed.2d 177; Rohauer v. Friedman, 306 F.2d 933 (C.A. 9); Vance v. American Society of Composers, Etc., 271 F.2d 204 (C.A. 8), cert. den. 361 U.S. 933, 80 S.Ct. 373, 4 L.Ed.2d 355; Nimmer on Copyright, Sections 139.1 and 139.2. Infringement is established when one copies without authority from a copyrighted article of another. Copying by a defendant can rarely be proven by direct evidence. It is proper to consider all of the facts and circumstances in connection with the development of the accused article. Evidence of access and substantial similarity are in themselves sufficient to create an inference of copying and to establish a prima facie case of copying. When a plaintiff has made a strong prima facie case of copying by proving access and similarity, the burden of going forward shifts to the defendant and he must offer evidence to negative the probability of copying. Bradbury v. Columbia Broadcasting System, Inc., 287 F. 2d 478 (C.A. 9), cert. dismissed 368 U.S. 801, 82 S.Ct. 19, 7 L.Ed.2d 15; Overman v. Loesser, 205 F.2d 521 (C.A. 9), cert. den. 346 U.S. 910, 74 S.Ct. 241, 98 L.Ed. 407; Arnstein v. Porter, 154 F.2d 464 (C.A. 2); Nimmer on Copyright, Section 139.4.

In this case access is established beyond any question. Elmer S. Newman, Vice President of Newman Brothers, stated in his affidavit that prior to the preparation of the 1962...