Fleischer Studios v. Ralph A. Freundlich, Inc.

• Decision Date: 09 February 1934
• Citation: 5 F. Supp. 808
• Parties: FLEISCHER STUDIOS, Inc., et al. v. RALPH A. FREUNDLICH, Inc., et al.
• Court: U.S. District Court — Southern District of New York

5 F. Supp. 808

FLEISCHER STUDIOS, Inc., et al. v. RALPH A. FREUNDLICH, Inc., et al.

District Court, S. D. New York.

February 9, 1934.

Phillips & Nizer, of New York City (Louis Nizer, of New York City, of counsel), for plaintiffs.

Lind, Shlivek, Marks & Brin, of New York City (Max Shlivek, of New York City, of counsel), for defendants.

WOOLSEY, District Judge.

My judgment in this case is in favor of the plaintiffs and I will give them a decree embodying an injunction, providing for a reference to a master for an accounting to determine what are the damages, if any, the plaintiffs have suffered. The decree may also provide for the delivery up, on oath, for destruction of the objects mentioned in paragraph E of the plaintiffs' prayers in the complaint.

I. The embodiment of the artist's concept and not the artist's concept is what is protected by copyright. That embodiment here is shown in the animated cartoons which were copyrighted and which have been marked plaintiffs' Exhibit 1. Those cartoons are, of course, flat; that is, two dimensional.

The teaching of the Spark Plug Case, so called, King Features Syndicate v. Fleischer, 299 F. 533 (C. C. A. 2), is that there may be a three-dimensional infringement of a two-dimensional copyrighted drawing.

II. The case here, in my opinion, would be unchanged if the plaintiffs' doll, Exhibit 5, were entirely omitted from it. In fact, the introduction of that exhibit merely renders the infringement of the cartoons more noticeable to the ordinary eye which often finds it difficult to project the image of flat drawings into three-dimensional figures, whether such drawings be artistic or mechanical. Thus the plaintiffs' doll, made by the Cameo Doll Company, bridges the space between the plaintiffs' copyrighted animated cartoons and the defendant's infringement thereof by the doll which it made. It must be as a kind of visual bridge that the plaintiffs' doll must be regarded in this cause.

III. Here the plaintiff had created and embodied in his drawings a very much individualized little character whose popularity, according to the evidence, was wide and of which the knowledge was spread throughout this country, and, indeed, I believe it was testified, throughout the world by the production of these animated cartoons in moving picture houses.

The character which was depicted combined in appearance the childish with the sophisticated — a large round baby face with big eyes and a nose like a button, framed in a somewhat careful coiffure, with a very small body of which perhaps the leading characteristic is the most self-confident little bust imaginable. The result is very taking, and the cartoon, shown all over the world, presented a strong temptation to an infringer.

IV. The defendants, I find, yielded to this temptation and infringed the plaintiffs' copyright. It is quite true that they did not make an exact copy of the embodiment of the plaintiffs' character as depicted by Fleischer, but what they did make gives precisely the same impression because there is really no essential difference between the plaintiffs' drawing and the defendants' doll except that the hair is somewhat differently arranged.

What Mr. Freundlich did, as, I think, the evidence illustrates, was to make enough differences to create an argument but not enough to create an alibi.

The defendants' doll, therefore, comes within the definition of a...