American Visuals Corporation v. Holland, 75

• Decision Date: 12 December 1958
• Docket Number: No. 75,Docket 25100.,75
• Citation: 261 F.2d 652
• Parties: AMERICAN VISUALS CORPORATION, Plaintiff-Appellee, v. Frederick A. HOLLAND and Sam Schwartz, Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

261 F.2d 652 (1958)

AMERICAN VISUALS CORPORATION, Plaintiff-Appellee, v. Frederick A. HOLLAND and Sam Schwartz, Defendants-Appellants.

No. 75, Docket 25100.

United States Court of Appeals Second Circuit.

Argued November 13-14, 1958.

Decided December 12, 1958.

Joseph M. Cohen, New York City (Charles B. Seton and Rosen & Seton, New York City, on the brief), for plaintiff-appellee.

Armand E. Lackenbach, New York City (Burton Perlman, New York City, on the brief), for defendants-appellants.

Before HINCKS, LUMBARD and MOORE, Circuit Judges.

LUMBARD, Circuit Judge.

The principal question for decision is whether a cartoon booklet entitled "It Can't Happen To Us," dealing in story form with traffic accidents and published by defendant Frederick A. Holland, a former employee of plaintiff, American Visuals Corporation, infringed a similar booklet copyrighted by the company under the title of "Killer In The Streets." Judge Murphy held that there was infringement and that defendant Holland misused confidential information imparted to him during his employment by American Visuals. 162 F.Supp. 14, 15. We find ample support in the record for the judgment entered in the Southern District of New York and accordingly we affirm the judgment for $5,000 damages, $1,500 counsel fees, and costs.

Although the parties differ as to inferences and conclusions to be drawn from the facts, the basic facts are virtually undisputed and may be summarized briefly.

American Visuals Corporation has been engaged in the business of creating, designing, producing and selling special purpose booklets of a visual nature for industrial purposes. In 1950 its president, William Eisner, created an illustrated cartoon booklet on highway safety first entitled "Sudden Death," and later changed to "Killer In The Streets." Attempts to sell this in dummy form were unsuccessful. Distribution was restricted to the few people who were solicited. The dummy form, in black and white, portrayed by cartoons the automobile accidents of a family composed of a father, a mother and their teen age son. The father caused a fatal accident by speeding and hogging the road. The mother was an inattentive driver who caused a rear end collision with her car, and then a few minutes later ran down a pedestrian. The son raced downhill and, when the brakes failed to work, crashed into a truck killing himself and two companions.

Obviously the mere idea of depicting the more common kinds of automobile accidents in the form of a story in cartoon form was not copyrightable. But it is plaintiff's claim that it validly copyrighted the means of expressing this idea in the form of pictures and dialogue and arrangement built around a road hog father, an inattentive mother, and a teen age son unconcerned with mechanical imperfections, and that this copyright was infringed by defendant's copying.

Holland was employed by American Visuals in February 1952 as a salesman and "director of publications" and commencing in August 1952 he attempted to interest various casualty insurance companies in "Sudden Death." He called on Mr. N. P. Browne of the Aetna Casualty Group, who thought the idea had merit and suggested a change of name and certain improvements. Eisner then changed the name of the booklet to "Killer In The Streets" and under that name it was copyrighted on September 8, 1952. At the same time the defendant, Sam Schwartz, employed from November 1950 as plaintiff's art director, was directed to clean up the art work. Thereafter several hundred copies of "Killer In The Streets" were photostated in dummy form and Holland took them to an insurance convention where 112 were distributed. Following this Holland interested Thoman N. Boate of the Association of Casualty and Surety Companies. Boate's budget at that time did not permit him to purchase the booklet but he sent copies of it to each of the Association's members.

On October 1, 1953, several weeks after Holland had secured plaintiff's agreement to eliminate from his employment contract a covenant which precluded him from competing during six months following termination of his employment, Holland gave notice of termination effective October 31. He then opened his own office on November 1, notified Boate that he was in business for himself, and in the third week of November Boate asked him to produce a booklet about traffic accidents.

To make up the booklet requested by Boate, Holland then engaged Schwartz, who had left plaintiff's employ in early September to set up his own business as a commercial artist. Schwartz testified that he could not remember whether, during his talks with Holland about the booklet and what it should contain, Holland had had with him a copy of "Killer In The Streets." Schwartz admitted that on his deposition he had testified that he saw "Killer In The Streets" while he was working on "It Can't Happen To Us," the booklet sold and copyrighted by Holland. In view of Schwartz's testimony and because of the close similarity of the two booklets, Judge Murphy's finding that Schwartz had "Killer In The Streets" before him while working on "It Can't Happen To Us" is well supported by the record.

"It Can't Happen To Us" was produced in two or three days and on December 2, 1953 Boate sent Holland an order for 100,000 copies. Altogether Holland sold to the Association and to Western Electric and other companies a total of 319,000 copies for which he grossed $12,610. After paying Schwartz $1,800, on which Schwartz made a profit of $600 to $800, Holland made a profit of $6,595.

After commencing this action in June 1954 for copyright infringement and misuse of confidential information, the plaintiff moved immediately for a preliminary injunction. In an opinion reported at D.C., 126 F.Supp. 513, 514, Judge Dawson, in August 1954, denied the preliminary injunction and we affirmed 2 Cir., 219 F.2d 223. The case came before us a second time after Judge Sugarman had granted the defendants' motion for summary judgment on the ground that no publication had taken place and that the form of the work rendered it not copyrightable. We reversed, 2 Cir., 239 F.2d 740. Thus the case is now before us for the third time...