394 F.Supp. 1389 (S.D.N.Y. 1975), 75 Civ. 2036, L. Batlin & Son, Inc. v. Snyder
|Docket Nº:||75 Civ. 2036.|
|Citation:||394 F.Supp. 1389|
|Party Name:||187 U.S.P.Q. 91 L. BATLIN & SON, INC., Plaintiff, v. Jeffrey SNYDER, d.b.a. JSNY, et al., Defendants.|
|Case Date:||May 12, 1975|
|Court:||United States District Courts, 2nd Circuit, Southern District of New York|
Jacobs & Jacobs, New York City, for plaintiff; Mark H. Sparrow, New York City, of counsel.
Ostrolenk, Faber, Gerb & Soffen, New York City, for defendants Jeffrey Snyder, d.b.a. JSNY, Etna Products Co., Inc.; Robert C. Faber, New York City, of counsel.
Paul J. Curran, U.S. Atty., Southern District of New York, New York City, for United States Customs Service; Patrick Barth, Asst. U.S. Atty., of counsel.
METZNER, District Judge:
Plaintiff in this action moves for a preliminary injunction to compel defendants
Jeffrey Snyder, doing business as JSNY, and Etna Products, Inc., to cancel the recordation of Copyright No. GP95881 with defendant United States Customs Service, thereby allowing the entry of plaintiff's product into this country.
At the evidentiary hearing on the motion, the court was shown a cast iron 'Uncle Sam Mechanical Bank,' admittedly in the public domain, and defendants' plastic version of the bank on which they have a copyright. The latter reproduces the former except that it proportionally reduces the height from approximately eleven inches to approximately nine inches with trivial variations. Plaintiff manufactures outside the United States an identical plastic bank which, it is alleged by defendants, infringes their valid copyright, and which is presently in the process of being shipped into this country in quantity.
In copyright cases, the standard for granting a preliminary injunction is a clear showing of probability of success on the merits. Robert Stigwood Group Ltd. v. Sperber, 457 F.2d 50 (2d Cir. 1972); Concord Fabrics, Inc. v. Marcus Brothers Textile Corp., 409 F.2d 1315 (2d Cir. 1969); Uneeda Doll Co. v. Goldfarb Novelty Co., 373 F.2d 851 (2d Cir. 1967).
I have already held in Etna Products Co., Inc. v. E. Mishan & Sons, 75 Civ. 428 (S.D.N.Y. February 13, 1975), that I find little probability that defendants' copyright will be found valid in a trial on the merits. I reaffirm that opinion here.
The court agrees with the legal proposition advanced by the defendants that to support a valid copyright as a reproduction of a work of art, only originality is required. Gardenia Flowers...
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