Campbell v. Wireback

• Decision Date: 04 November 1920
• Docket Number: 1811.
• Citation: 269 F. 372
• Parties: CAMPBELL et al. v. WIREBACK et al.
• Court: U.S. Court of Appeals — Fourth Circuit

269 F. 372

CAMPBELL et al. v. WIREBACK et al.

No. 1811.

United States Court of Appeals, Fourth Circuit.

November 4, 1920

Arthur P. Greeley, of Washington, D.C. (Horace P. Whitworth, of Westernport, Md., on the brief), for appellants.

Edward A. Lawrence, of Pittsburgh, Pa. (A. Taylor Smith, of Cumberland, Md., on the brief), for appellees.

Before KNAPP, Circuit Judge, and SMITH and WATKINS, District Judges.

KNAPP Circuit Judge.

In the court below the appellees were plaintiffs and the appellants defendants; they will be so designated in this opinion. The material facts are not in dispute and may be summarized as follows:

Plaintiffs are partners doing business at Pittsburgh, Pa., under the firm name of Pittsburgh Orthopedic Company. For some years they have been engaged in the manufacture of orthopedic devices, including an 'extension shoe' patented by the plaintiff Wireback, and have built up a large and valuable trade. Their products are sold by mail order and by traveling salesmen, and in both methods they make use of illustrated catalogues, of which two appear to have been issued, one in 1911 and another in 1916, and which were copyrighted in those years respectively. These catalogues are of considerable artistic merit; they are printed on tinted paper of fine quality, and the original drawings from which the cuts are reproduced were made by persons especially skilled in work of that kind.

One of the salesmen employed by plaintiffs was C. Russell Cox. He had a relative at Barton, Md., by the name of Hoffa, whom he visited in the early part of 1918. Believing the World War would create a great demand for artificial limbs, they agreed to go into the business of making them, under the firm name of Maryland Orthopedic Company; Hoffa furnishing the capital and Cox the experience. Thereupon Cox left the plaintiffs' service and proceeded to get up a catalogue for the new concern. Among other things he went to the Pittsburgh engraver, who had made the cuts for plaintiffs from the artist's drawings, and arranged for copies of some of the copyrighted cuts, including those of the extension shoe. For some reason, however, Cox seems to have dropped out about the time operations were commenced, and the business was actually carried on by the present defendants. There is no doubt, as the trial court finds, that they intended 'to make and sell goods just like those of the plaintiffs'; and the fact of infringement, if the cuts in question were properly copyrighted, is not open to dispute.

In April, 1919, this suit was brought to restrain the further infringement of plaintiffs' copyrights and for damages. The decree of the court below grants the injunction prayed for and awards damages in the sum of $4,000.

It is contended here, first, that the cuts reproduced in defendant's catalogue are not copyrightable matter, but this contention is refuted by abundant authority. It is sufficient to cite Westermann Co. v. Dispatch Co., 249 U.S. 100, 39 Sup.Ct. 194, 63 L.Ed. 499, in which the Supreme Court assumes the validity of a copyright of pictorial illustrations of styles in women's apparel, and which therefore seems controlling of the instant case. Among other cases of like import and directly in point are Bleistein v. Donaldson Lithographing Co., 188 U.S 239, 23 Sup.Ct. 298, 47 L.Ed. 460, which sustains a copyright on circus posters showing groups of performers; Da Prato Statuary Co. v. Guiliani Statuary Co. (C.C.) 189 F. 90 holding that a catalogue of cuts of pieces of statuary was copyrightable; White Co. v. Shapiro (D.C.) 227 F. 957, sustaining the copyright of a catalogue containing cuts of lighting fixtures; and Stecher Lithographic Co. v. Dunston Lithographic Co. (D.C.) 233 F. 601, upholding the copyright of chromos or lithographs of certain vegetable products. Bearing in mind that plaintiffs' cuts are made from drawings which 'were originally designed and prepared by persons of skill and artistic capacity,' as the court below finds, the case in hand comes clearly within the rule which we believe to be stated correctly in Weil on Copyrights, p. 226, as follows:

'A mere advertisement of a bare list of articles, prices or facts would seem not to be copyrightable. It would lack the minimum of originality necessary for copyright. On the other hand, catalogues or other advertisements having originality, or quasi artistic character, are copyrightable. It requires very little originality indeed to render proposed advertising matter copyrightable.'

It is further contended that no action can be maintained on plaintiffs' copyrights because they were not registered in accordance with the Copyright Law. The only defects alleged are in the applications for the copyrights of 1911 and 1916. In the former, the Pittsburgh Orthopedic Company without naming the persons composing that firm, is given as the applicant and author, and 'no statement is made as to whether the author is native-born or naturalized citizen or permanent resident of the United States'; in the latter the Pittsburgh Orthopedic Company is likewise named as applicant and author, and the country of...