MM Business Forms Corporation v. Uarco, Incorporated

• Decision Date: 07 February 1973
• Docket Number: No. 72-1669.,72-1669.
• Citation: 472 F.2d 1137
• Parties: M. M. BUSINESS FORMS CORPORATION, Appellant, v. UARCO, INCORPORATED, Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

472 F.2d 1137 (1973)

M. M. BUSINESS FORMS CORPORATION, Appellant, v. UARCO, INCORPORATED, Appellee.

No. 72-1669.

United States Court of Appeals, Sixth Circuit.

Argued December 5, 1972.

Decided February 7, 1973.

Jerome R. Cox, Columbus, Ohio, for appellant; Cennamo, Kremblas & Foster, Columbus, Ohio, Fay, Sharpe & Mulholland, Cleveland, Ohio, of counsel; Frank H. Foster, Columbus, Ohio, on brief.

James C. Wood, Chicago, Ill., for appellee; Eugene J. Mahoney, Columbus, Ohio, of counsel.

Before PHILLIPS, Chief Judge, PECK, Circuit Judge, and O'SULLIVAN, Senior Circuit Judge.

JOHN W. PECK, Circuit Judge.

Peter Fabbri has owned and operated a television and radio repair business in Detroit, Michigan, for over fifteen years. In May 1967, Fabbri established the appellant corporation with himself as President, Treasurer, and principal shareholder. The purpose of this enterprise was to sell business forms, particularly a form for television servicemen. After composing and obtaining a copyright for the form in question, appellant approached appellee, a nationwide printer of business forms, and arranged to have a large quantity of the forms printed. These, however, were ultimately rejected by appellant on the apparent grounds that appellee refused to print a copyright notice thereon. The forms, with the copyright notice, were printed elsewhere. Appellant then passed out several promotional packages to television service dealers. Subsequently, one of appellee's salesmen conferred with one of those dealers, stated appellant's copyright was meaningless and produced a form which appellant claims is ". . . almost an exact duplicate of appellant's form." Suit was filed in the District Court alleging unfair competition and infringement of plaintiff-appellant's copyright. Jurisdiction was invoked under Title 28, U.S.C. § 1338. The District Court, 347 F.Supp. 419, found the form was not copyrightable. Only that part of the judgment relating to the copyright is appealed from.

The form in question is composed of two layers of paper and a bottom layer of cardboard, with each layer separated by carbon paper. Each layer contains the same printing. The cardboard layer has two additional, detachable side flaps. One is a customer's claim check and the other is to be attached to the equipment. The form allows a repairman to record the nature of the repairs performed and the corresponding expense. Spaces are included for such items as authorized repairs, miscellaneous services, deferred payment charge, sales tax, subtotal, deposit, balance and special instructions. Customer authorized repairs performed by the serviceman can be reflected by an appropriate notation on the form. Space is provided for entry of the customer's name, address and signature. The dealer's name appears at the top right of the form. In addition, three paragraphs of printing entitled "Guarantee"¹, "Storage Fee Provisions"² and "Chattel Mortgage Provisions"³ appear on the form.

Appellant claims it is the author's manner of expression and not the intellectual content of his writing which must be novel and which is protected by a valid copyright. It contends the District Court mistakenly examined the creativity, the meaning and the legal effect of the author's work rather than the novel arrangement of words, style and manner of presentation. Appellant argues that if the words could achieve the same end, but are stated in different language, then they are copyrightable. Originality, according to appellant, lies in differences of language or manner of expression and not in differences in ideas, concepts and legal arrangements.

Appellee argues the language in question is but standard, usual legal language in the public domain which is used to establish chattel mortgage rights and which has proven effective through prior use.

Generally, forms, including blank forms, which are intended to be used for recording facts are not the proper subjects of copyright. See, 37 C.F.R. § 202.1(c) and (d). Thus, based on this regulation, the arrangement of vertical and horizontal lines on a business form is not copyrightable and appellee's reproduction of a form similar to appellant's form could not be the basis for an infringement action. As noted by the District Court, the degree of protection afforded to a form by a copyright is determined by what is actually copyrightable and not by the document's entire contents. See, Jackson v. Quickslip Co., 110 F.2d 731 (2d Cir. 1940). Accordingly, the issue before this Court must be restricted to the copyrightability of the "Guarantee", the "Storage Fee Provisions" and the "Chattel Mortgage Provisions."

To obtain a valid copyright, the material in question must be an original product.⁴ Roth Greeting Cards v. United Card Co., 429 F.2d 1106 (9th Cir. 1970); Gelles-Widmer Co. v. Milton Bradley Co., 313 F.2d 143 (7th Cir.1963), cert. denied 373 U.S. 913, 83 S.Ct. 1303, 10 L.Ed.2d 414; Alfred Bell Co. v. Catalda Fine Arts, 191 F.2d 99 (2d Cir. 1951). Of course, copyright protection is not available for ideas but only for the expression of ideas. Mazer v. Stein, 347 U.S. 201, 74 S.Ct. 460, 98 L.Ed. 630 (1954). The degree of originality required to obtain a copyright has been held to be ". . . little more than a prohibition of actual copying." Alfred Bell Co., supra, 191 F.2d at 103. Clearly the contribution by an author must amount to more than a trivial variation; any "distinguishable variation" resulting from an author's independent creative endeavor will constitute sufficient originality.⁵ Alfred Bell Co., supra, 191 F.2d at 102-103; Amsterdam v. Triangle Publications, Inc., 189 F.2d 104 (3d Cir. 1951).

We agree with the District Court that the provisions in question do nothing more than make a mosaic of the language appearing on other existing forms already in the public domain. Mr. Fabbri testified he drafted the "Guarantee" provision without copying from any other form but felt he "wasn't capable" of preparing the other provisions. As a result, he hired an attorney to draft the remaining provisions. The attorney testified his efforts consisted of examining other storage fee and chattel mortgage provisions prepared either by his office or by other attorneys and...