Geo-Physical Maps v. Toycraft Corporation

• Decision Date: 16 May 1958
• Citation: 162 F. Supp. 141
• Parties: GEO-PHYSICAL MAPS, Inc., Plaintiff, v. TOYCRAFT CORPORATION, Harry Cohn, and Sigmund Koch, Defendants.
• Court: U.S. District Court — Southern District of New York

162 F. Supp. 141

GEO-PHYSICAL MAPS, Inc., Plaintiff, v. TOYCRAFT CORPORATION, Harry Cohn, and Sigmund Koch, Defendants.

United States District Court S. D. New York.

May 16, 1958.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

David Kallman, New York City, for plaintiff.

Harry Price, New York City, for defendants Toycraft Corp. and Harry Cohn, Leonard S. Knox, Chicago, Ill., of counsel.

FREDERICK van PELT BRYAN, District Judge.

In this action for infringement of copyright under 17 U.S.C. § 112 and unfair competition plaintiff moves for a preliminary injunction.

Plaintiff, a New York corporation is engaged in the manufacture and sale of a terrestrial globe on which the physical features of the world are depicted in relief, and which is known as "The Geo-Physical Globe—The Work Globe". Plaintiff produces two globes of this character, one six feet in diameter which is used by scientific institutions, universities and others interested in the geographical sciences, including various large industrial companies. The other is twelve inches in diameter and is designed for more general distribution, principally in the educational field. The relief map on each of these globes is the same except that each conforms to the respective scales of the two sizes of globes.

The physical features of the earth's surface appear in detail upon these globes and are modeled with gradual vertical exaggeration ranging from two hundred to one at sea level.

The geographical material depicted in relief upon the globes was developed by the plaintiff with the cooperation of well known geographers and cartographers and was compiled from numerous documentary sources such as other maps, surveyors' notes, sketches, photographs, travelers' reports, statistics and the like. The physical features of the earth, such as mountain ranges, rivers, lakes, seas, plains, elevations, coast lines, etc., are modeled to conform to the scientific data assembled, but necessarily represent an artist's conception of these features seen from a point in space. The techniques used in developing this material and depicting it in this manner are difficult and complicated, require highly specialized knowledge and extended research, and are plainly unique.

This is illustrated by such features as the Southern Arabian Peninsula which was prepared on the basis of landform maps made by Dr. Raisz and Professor Fairbridge of Columbia University on the basis of approximations from data obtained through actual observation of the area. Similarly the relief features of the Antarctic regions are prepared on the basis of information collated by Dr. Briesemeister obtained from Operation Deep Freeze. This area of the globe depicts mountain ranges discovered as late as January 14, 1956 by plane observation during that operation, and the data concerning these features was not available to the public until January 1958.

The plaintiff's globe was duly registered with the Register of Copyrights and, as manufactured and sold, contained a statutory copyright notice stamped upon the rim at the equator.

The defendant Toycraft, an Illinois corporation, of which defendant Cohn is president, has produced and now is offering for sale and selling a terrestrial relief globe twelve inches in diameter which is for all practical purposes a Chinese copy of the plaintiff's globe. Defendant Koch is alleged to be selling the same globe on behalf of another company.

Comparison of the physical features of the two globes leads to the inescapable conclusion that the defendants' globe was merely a copy of the plaintiff's copyrighted product.

This is fortified, and indeed established, by the comparison of various specific physical features. For example, Kodiak Island in the Aleutian chain is depicted as a peninsula on the plaintiff's globe. It is similarly depicted on the defendants' globe. The Yucatan Peninsula, which has only a slight elevation above sea level, has precisely the same swirls, ridges and exaggerated elevation on both globes. The Arabian Peninsula, though the conformation of the southern area is an approximation, has precisely the same conformations on each.

The engraving of the rivers of the Mississippi and Russian plains is somewhat different from that of the other river systems depicted on the globe and the character of the lines of these rivers is quite distinctive. They are plainly identical on both globes. The same can be said of the plains of Poland and India, the coast line of Malabar, of the Himalayas and the other enormous mountain ranges in Southern Asia, which are perhaps the most striking features of the relief projection. Bermuda, Christmas Island, the Lesser Antilles, Trinidad, Guam, Okinawa, Midway and other islands are all missing on both globes.

The only differences to which defendants point are that the plaintiff's globe is white in color and the defendants' is blue; that the meridian lines running through the water areas on plaintiff's globe are raised whereas on defendants' globe they are depressed; that there is a land mass in the Arctic region on defendants' globe which is not on plaintiff's; that defendants have stuck in a few obscure islands which plaintiff's globe omits; that the plaintiff's globe is of thin plastic in two halves which can be put together by the user, whereas defendants' globe is a ready-made hollow sphere of somewhat heavier material, and that the degrees of longitude on the equatorial rim are more frequently numbered on defendants' globe than on plaintiff's.

The points which defendants cite to indicate differences and lack of copying in fact indicate just the opposite. For example, in several places on defendants' globe where the meridian lines run through islands there are traces of some raised meridian lines which are used on plaintiff's globe which defendant evidently failed to remove when it made the copy. The crude splotch of land mass at the North Pole added on the defendants' globe does not in fact exist for there is merely pack ice there. Plainly this was added merely to try to insert some feature which would not be an exact copy. The addition of a few Pacific islands which do not appear on plaintiff's globe but which are mere dots, is in the same category. The fact that degrees of longitude on the equatorial rim are more frequently numbered on defendants' globe than on plaintiff's is one of those mechanical distinctions without a difference which merely serve to emphasize that for all practical purposes the globes are identical. In sum, the material on the defendants' globe has been appropriated lock, stock and barrel from the plaintiff's.

The affidavits submitted by defendants in opposition include an affidavit of one Rush which is significant for its omissions rather than otherwise. Rush, describing himself as a commercial sculptor, states that he spent 167½ hours in modeling defendants' globe from July 18, 1957 to November 10, 1957, which was some months after plaintiff's copyright was obtained. But Rush could not have prepared the model from his own imagination. It is plain that the only place he could have gotten the material from which the model was made was from the plaintiff's globe which he reproduced.

Some light is thrown on what he may have done by the half of the plaintiff's globe submitted by the defendants upon the argument, which defendants claimed did not have upon it the requisite copyright notice. An examination of this exhibit shows traces of green plasteline on the rim of the northern hemisphere indicating that this or similar material had been used to make a bed prior to pouring plastic for a mold to be taken of plaintiff's globe. Moreover, an examination of the place on this exhibit where the copyright notice appeared on plaintiff's globe (and such notice was part of the mold from which the globe was prepared) shows evidence that raised lettering at this point had been removed, indicating that the copyright notice had been deliberately taken off by someone before the submission of this exhibit to the court.

The defendants show nothing of any substance which would call into question the validity of plaintiff's copyright. They refer to an article in "The Military Engineer" which was published prior to the filing of notice of copyright concerning the plaintiff and the plastic and relief globes which it was developing which they claim constitute prior publication without copyright of the material which plaintiff seeks to have protected. There is no merit in this claim. The article in question merely describes in general terms the type of planning and the techniques which were being used to assemble the material for the globe and to model it. There is no discussion in the article of the material itself or any of its details. No one reading the article could possibly produce the plaintiff's globe from what it disclosed. There was no prior publication. This article does not remotely indicate prior dedication to the public, nor did it place the plaintiff's globe in the public domain. Cf. American Tobacco Co. v. Werckmeister, 207 U.S. 284, 299-300, 28 S.Ct. 72, 52 L.Ed. 208; Patterson v. Century Productions, 2 Cir., 93 F.2d 489, 492, certiorari denied 303 U.S. 655, 58 S.Ct. 759, 82 L.Ed. 1114; Alfred Bell & Co. v. Catalda Fine Arts, D.C.S.D.N.Y., 74 F.Supp. 973, 976, affirmed 2 Cir., 191 F.2d 99; Ziegelheim v. Flohr, D.C.E.D.N.Y., 119 F.Supp. 324; Ball, Law of Copyright & Literary Property, §§ 60-65, 190, 222.

It is plain that defendants are selling and marketing their globe in competition with the plaintiff's and are attempting to do so among plaintiff's own agents, dealers and distributors. The defendants' globe was exhibited at the Toy Fair in New York in March of this year and defendant Toycraft had a room at the Hotel New Yorker at that time which it used for sales purposes. During this period one of plaintiff's officers talked with defendant Cohn, president of defendant Toycraft, who sold one...