DeSilva Construction Corp. v. Herrald

• Citation: 213 F. Supp. 184
• Decision Date: 05 December 1962
• Docket Number: 4145.,Civ. No. 4146
• Parties: DeSILVA CONSTRUCTION CORP., a Florida corporation, Plaintiff, v. Arthur E. HERRALD and J. Alice Herrald, husband and wife, and Eugene R. DeAngelis, Defendants. DeSILVA CONSTRUCTION CORP., a Florida corporation, Plaintiff, v. Calvin LaHURD and Margaret LaHurd, husband and wife, and Edwin Wentzel, Jr., Defendants.
• Court: United States District Courts. 11th Circuit. United States District Court of Middle District of Florida

213 F. Supp. 184

DeSILVA CONSTRUCTION CORP., a Florida corporation, Plaintiff, v. Arthur E. HERRALD and J. Alice Herrald, husband and wife, and Eugene R. DeAngelis, Defendants.

DeSILVA CONSTRUCTION CORP., a Florida corporation, Plaintiff, v. Calvin LaHURD and Margaret LaHurd, husband and wife, and Edwin Wentzel, Jr., Defendants.

Civ. Nos. 4146, 4145.

United States District Court M. D. Florida, Tampa Division.

December 5, 1962.

COPYRIGHT MATERIAL OMITTED

Ezra J. Regen, Sarasota Fla., for plaintiff.

Carrol F. Dillon, of Wood & Scheb, Sarasota, Fla., for defendants.

LIEB, District Judge.

These cases, consolidated for trial by a previous order of this Court, came on for final hearing upon the complaint filed by the plaintiff, DeSilva Construction Corp., a Florida corporation, claiming an infringement of a copyright of an architectural plan entitled "McCall Colonial Ranch," allegedly owned by the plaintiff, and unfair competition, and upon the answer filed by the defendants, respectively, denying all material allegations of the complaint, and upon the counterclaim filed by the defendant, Eugene R. DeAngelis, in case No. 4146 Civ.T.

The Court heard testimony of witnesses and considered the evidence submitted in these cases, together with the briefs of counsel for the respective parties; and the cases are now ripe for final determination.

The record reveals that a corporation named "DeSilva Construction Corporation" was for many years engaged in the construction of family homes in New York State, the state of its incorporation. This corporation, which is not the plaintiff, will be referred to hereinafter as the "New York corporation." Frank Weissman was its president and the other two members of his family, his son, Alan, and his wife, Myrtle, constituted the other officers and all of the stockholders of said corporation. Sometime during the summer of 1960, Frank Weissman moved to Sarasota, Florida, with his family. Shortly thereafter, Alan Weissman prepared some sketches and drawings of a one-story dwelling while still in the employ of the New York corporation. A draftsman named Williamson thereafter prepared a set of architectural plans from said sketches and drawings for the New York corporation.

On November 21, 1960, Frank Weissman, as owner, applied for a building permit from the City of Sarasota, Florida, to build a house on Lot 11, Block 2, Bird Key Subdivision, Sarasota, Florida, otherwise described as 242 Robin Drive, Sarasota, Florida. The said application for the building permit was signed by Frank Weissman in the capacity of owner, and was also signed by Frank Weissman in the capacity of builder of the proposed structure. On November 22, 1960, the Building Inspection Department of the City of Sarasota, through H. J. Russell, Chief Building Inspector, issued the requested permit for the construction of said house and said building permit cited Frank Weissman as builder and owner. The building permit mentioned was issued pursuant to ordinance No. 628 of the City of Sarasota, Florida, which ordinance was enacted under the City Code, providing for permits for "sole owners." In connection with this application, Frank Weissman filed with the Building Inspection Department of the City of Sarasota the said set of plans designed by his son, Alan Weissman, on November 22, 1960. Said plans did not reflect any indication that they were copyrighted, and there was no statutory copyright notice affixed to said plans.

Frank Weissman began construction of a three-bedroom family home, utilizing the plans previously mentioned, sometime in December, 1960. The material and labor for said construction was paid by the DeSilva Construction Corporation, the New York corporation, and the actual work of construction was performed by various subcontractors. The evidence is uncontradicted that said subcontractors had free access to the architectural plans of the house for use in the performance of their respective jobs, and at least six of said subcontractors were given complete copies of said architectural plans. The record is devoid of any evidence that any of the subcontractors were admonished or put on notice that the plans were the sole exclusive property of anyone, especially of the DeSilva Construction Corporation, the New York corporation, or that the said plans were protected by any copyright. As previously mentioned, neither the original plans deposited with the City of Sarasota, nor the copies of the plans, reflected a statutory copyright notice. Construction of said house was completed on February 14, 1961. Title to said house was at no time in the New York corporation, and it was sold directly by Frank Weissman to third parties sometime in May, 1962. At no time during the period of construction of said house was the public barred or prohibited from viewing or inspecting the features of said house.

On the 14th day of February, 1961, the public was invited to view and inspect said house as a model house. Beginning on February 16, 1961, and for sometime thereafter, a guest book was kept at the model house by Alan Weissman, showing that a large number of people visited the model house. The record shows that there were no restrictions whatsoever upon such visitors, and none were advised that the architectural plans to the model house were protected by copyright. On February 26, 1961, the Weissmans caused an advertisement to be inserted in the "News," a newspaper of general circulation in the Sarasota area, depicting a picture and floor plan of the said house built on the above mentioned location entitled the "McCall's Colonial." Said advertisement failed to show any notice of copyright or any language indicating that the plans from which the house was built were claimed to have been protected by copyright of any kind.

Sometime toward the end of March, 1961, Alan Weissman instructed Williamson, the draftsman, to revise the set of plans which were originally deposited in the Building Inspection Department of the City of Sarasota, in order to conform them to the model house as the same was actually built; and on or about that time, after Williamson completed this revision, Alan Weissman instructed him to affix a notice of copyright on said revised plans. Shortly thereafter, Alan Weissman caused said revised set of plans to be mailed to the United States Copyright Office at Washington, D. C., together with an application for a certificate of copyright on said plans. At no time did the New York corporation publicly distribute, sell, give away or circulate said revised plans, or the original plans; and the record is totally devoid of any evidence that there was any publication, public distribution, sale or circulation on behalf of the New York corporation of said revised plans.

On May 8, 1961, the Copyright Office issued a certificate of registration of a claim to copyright in the said drawing. The certificate of registration bore registration number I p 5536, Class I. The certificate reflects the name of the claimant of the copyright as DeSilva Construction Corp., P. O. Box 2386, Sarasota, Florida. The title of the work was designated as "The McCall Colonial Ranch" and the author of said architectural drawings as Alan Weissman with residence at 2921 Bentley Road, Sarasota, Florida. The certificate of registration further reflects that the claimant claimed the copyright in a published work allegedly published by the DeSilva Construction Corporation of Sarasota, Florida, and indicates as the first date of publication the date of March 30, 1961. Although there is no indication whether or not the claimant was the New York corporation, it is reasonable to infer that it was, inasmuch as the record and testimony reveal that the New York corporation had maintained at that time a post office box in Sarasota, Florida, and the plaintiff, a Florida corporation, was not then in existence.

Mrs. J. Alice Herrald, one of the defendants in case No. 4146 Civ. T., visited the model house on Bird Key in the early state of construction sometime in January, 1961. At that time she inquired about a proposed purchase price on the house, but Frank Weissman, who was at the site of construction at that time, stated that he could not quote a price since the cost of construction was not yet finally determined. When the model house was opened to the public. Mrs. Herrald again visited it and evinced a great interest in purchasing a house of that type. She discussed the price with a salesperson on the premises on several occasions. However, she could not come to terms with the representative of the New York corporation on the premises. In early February, 1961, Mrs. Herrald contacted Eugene R. DeAngelis, one of the defendants in case No. 4146 Civ. T., who is a general contractor in the City of Sarasota, Florida, and discussed the possibility of having a house built. The defendant, DeAngelis, commenced to draw his preliminary plans and sketches. Afterwards, he left some drawings and magazine clippings with Mrs. Herrald in order to help her decide the type of house she wanted him to build. The defendant, DeAngelis, then prepared a set of plans for the proposed construction of the house in accordance with directions given to him by Mrs. Herrald; and his building plans were completed and finalized shortly before March 7, 1961.

On March 7, 1961, a contract to construct a home for the Herralds was signed between the defendant, DeAngelis, and defendants Mr. and Mrs. Herrald. Mr. Herrald immediately took the plans to a lending institution in St. Petersburg, Florida, for an appraisal and for the purpose of obtaining the necessary funds for the construction of the proposed house. DeAngelis did not at that time file said set of plans in the Building Inspection Department of the City of Sarasota, since he was waiting for the approval of the construction loan. The defendant, DeAngelis, distributed his proposed plan of construction to various...