Esquire, Inc. v. Varga Enterprises, 47 C 1175.

• Decision Date: 14 December 1948
• Docket Number: No. 47 C 1175.,47 C 1175.
• Parties: ESQUIRE, Inc. v. VARGA ENTERPRISES, Inc., et al.
• Court: U.S. District Court — Northern District of Illinois

81 F. Supp. 306

ESQUIRE, Inc. v. VARGA ENTERPRISES, Inc., et al.

No. 47 C 1175.

United States District Court N. D. Illinois, E. D.

December 14, 1948.

Chritton, Schroeder, Merriam & Hofgren, of Chicago, Ill., for plaintiff.

Musgrave, Ewins, Price & Notz, of Chicago, Ill., for defendant.

CAMPBELL, District Judge.

Plaintiff brought this action, seeking both legal and equitable relief, for alleged copyright and trade mark infringement. Defendants denied such infringement and, issue having been joined, a trial of the cause was had upon its merits. Since the rights and liabilities of all the defendants are derivative from Alberto Vargas, he alone will be referred to hereinafter as defendant. Prior to trial, consent decrees were entered against Globe Poster Corporation, Elvin Inc., Varga Calendars, Inc., and William R. Johnston, all of whom had been named as defendants.

Plaintiff corporation has, since its inception in 1933, carried on the business of publishing and selling magazine periodicals, and, since 1940, calendars, both wall-type and desk-type. One of the principal features of these publications has been what is commonly known as a "girl" painting or drawing. This particular form of art portrays women in a state of semi-nudity and emphasizes, or rather over-emphasizes, many of the physical details peculiar to the female anatomy.

From 1933 to 1940, plaintiff corporation hired several artists for the purpose of producing these "girl" paintings, and engaged defendant under a three-year contract in June, 1940. Under this contract defendant made and delivered certain pictures, one of which was reproduced each month, beginning October 1, 1940, in the magazine Esquire. Defendant also made and delivered twelve pictures each year, commencing in the fall of 1940, for the calendars published and sold by plaintiff during the following year. Originally, the pictures furnished bore defendant's name or signature, "Vargas", and were reproduced and published with his name thereon. Later by agreement of the parties, the name "Vargas" was changed to "Varga". Thereafter, the pictures created by defendant and published by plaintiff were called "Varga Girls", and the name of the defendant appearing thereon was "A. Varga" with a small "Esq." inserted in the large lower loop of the letter "g" of the name. This was placed upon the drawings by the plaintiff. No name appeared on the drawings when defendant delivered them to plaintiff. The name was used only in connection with pictures created by the defendant and was thus used by plaintiff until March 1, 1946.

The 1940 contract expired on June 30, 1943, but defendant continued to furnish pictures to plaintiff without a contract, which were published in the same manner as when the contract was in full force and effect, until May 23, 1944, when the parties entered into a new contract for a period of ten years and six months, commencing January 1, 1944. In January of 1946, defendant notified plaintiff that he was no longer bound by the contract, and refused thereafter to submit pictures to plaintiff. Since that time the present defendant instituted two different suits against plaintiff involving the validity of the contract and the right to use of the names "Varga", "Varga Girl" and "Varga Esquire", both of which suits resulted in judgments for the present plaintiff.

In the case at bar plaintiff bases its right of action on the claim that, subsequent to defendant's repudiation of the contract, he caused to be published calendars bearing the legend "The Varga Girl", and that four of the paintings contained therein were copied from paintings previously submitted to plaintiff by defendant and registered by the latter pursuant to the Copyright laws under Reg. Nos. 409,742; 422,342; 689,144 and 703,925.

The first issue to be determined is whether this Court has jurisdiction over Alberto Vargas individually. In view of the testimony and briefs of the parties, I believe that question can be disposed of summarily. The evidence appears to be sufficiently clear that he has submitted to the jurisdiction of the Court, and that he is actually and adequately represented as to his individual interest by counsel.

On the issue of copyright infringement, it should be noted that plaintiff alleges that four paintings in particular were copied. Plaintiff claims that plaintiff's Exhibit 3A is a copy of 3B; that 8A is a copy of 28; that 10A is a copy of 27B; and that 14A is a copy of 14B. Any attempt to point out the distinguishing elements of the various paintings should be prefaced by the observation that the over one hundred paintings by defendant in evidence reveal that defendant's artistic talent is limited to the portrayal of the female figure in varying degrees of undress. His success in this line of endeavor can undoubtedly be attributed to the remarkable physical characteristics of his finished product, e. g., the exaggerated torso and the subtly curved but unduly long leg. It is apparent from the testimony that this is all he has ever drawn and seems to be all he ever will draw. It follows, therefore, that all his future drawings will bear some similarity to his previous work, whether or not his past creations are before him at the time he is painting. He has a certain type of art in his mind and, consequently, that is all he is able to express on the drawing board. It can be seen, therefore, that if the first painting submitted by him to the plaintiff could properly be considered a work of creative art, his subsequent paintings should probably be accorded a similar status.

In any...