73 F.2d 276 (2nd Cir. 1934), 63, Fleischer Studios, Inc. v. Ralph A. Freundlich, Inc.

Docket Nº:63.
Citation:73 F.2d 276, 23 U.S.P.Q. 295
Party Name:FLEISCHER STUDIOS, Inc., et al. v. RALPH A. FREUNDLICH, Inc., et al.
Case Date:November 05, 1934
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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73 F.2d 276 (2nd Cir. 1934)

23 U.S.P.Q. 295




No. 63.

United States Court of Appeals, Second Circuit.

November 5, 1934

Lind, Shlivek, Marks & Brin, of New York City (Max Shlivek and Saul S. Brin, both of New York City, of counsel), for appellants.

Phillips & Nizer, of New York City (Louis Nizer, Arthur B. Krim, and Robert S. Benjamin, all of New York City, of counsel), for appellees.

Before MANTON, L. HAND, and SWAN, Circuit Judges.

MANTON, Circuit Judge.

A decree for copyright infringement was entered below, together with an injunction and reference to a master for the purpose of establishing damages and profits. Infringement resulted from the manufacture by the appellants of dolls copying the appellees'

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copyrighted book of cartoons, picturing a character called 'Betty Boop,' which had been popularized on the motion picture screen. The copyright, the complaint alleges, is for a series of original unpublished cartoons in various poses and expressions of a certain female character having a unique and original face, pouting in baby fashion.

Fleischer Studios, Inc., obtained a copyright for this book on July 29, 1931, and it granted to Fleischer Art Service, Inc., an exclusive right to make and publish throughout the world under this copyright copies of prints and reprints, forms, versions, alterations of the work, depicted in copyright, in the form of toys, figures, dolls, statutes, models, and playthings in three dimensional objects. Fleischer Art Service, Inc., later granted to Joseph P. Kallus the exclusive right to make and distribute under the copyright for five years copies thereof, in the form of toys and dolls. He did so, distributing thousands of them.

Appellants deny infringement, and argue that the copyright is invalid because the appellees published copies of the copyrighted work without complying with sections 9 and 18 of the Copyright Law (USCA title 17, Secs. 9 and 18). This alleged invalidity presents the question of the sufficiency of notice as required by the statute (USCA title 17, Sec. 9). Any person entitled thereto may secure a copyright for his work by publication thereof with notice of copyright as required by the act. The 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 21 of this title. ' Section 18 provides that the notice required by section 9 'shall consist either of the word 'Copyright' or the abbreviation 'Copr.,' 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.'

The appellant argues that the notice, in the form of 'Betty Boop des. and copyrighted by Fleischer Studios,' which was placed upon the front of the doll's skirt, was insufficient to comply with the statute, and that each appellee assumed direct responsibility for the form of the notice so affixed to the appellees' doll. The notice is claimed to be insufficient, in that it fails to use the correct name, Fleischer Studios, Inc., instead of Fleischer Studios, and omits the year of the grant of the copyright. The argument proceeds that the law of copyright is statutory and demands strict compliance with the requirements of notice if the copyright is to receive protection under this statute. Caliga v. Inter Ocean Newspaper Co., 215 U.S. 182, 30 S.Ct. 38, 54 L.Ed. 150; American Tobacco Co. v. Werckmeister, 207 U.S. 284, 28 S.Ct. 72, 52 L.Ed. 208, 12 Ann.Cas. 595. The provisions of the statute, as to notice, must be complied with in making and selling a copyrighted article, or otherwise there is a...

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