Hesse v. Grossman

• Decision Date: 16 July 1957
• Docket Number: O-R
• Citation: 152 Cal.App.2d 536,313 P.2d 625
• Court: California Court of Appeals Court of Appeals
• Parties: , 114 U.S.P.Q. 412 Paul A. HESSE, Three Dimensionals, Inc., Victory Vending Company, and Monique Pictures Corp., Plaintiffs and Respondents, v. George GROSSMAN and Sam Le Winter, individually and as co-partners doing business under the fictitious name and style of Tri-ama, Tri-ama, a California corporation, Alfred S. Klausner and Jack Klausner, d/b/a Kay-Mar Co., Defendants, George Grossman, Appellant. Civ. 22087.

Page 625

313 P.2d 625

152 Cal.App.2d 536, 114 U.S.P.Q. 412

Paul A. HESSE, Three Dimensionals, Inc., Victory Vending Company, and Monique Pictures Corp., Plaintiffs and Respondents, v. George GROSSMAN and Sam Le Winter, individually and as co-partners doing business under the fictitious name and style of Tri-O-Rama, Tri-O-Rama, a California corporation, Alfred S. Klausner and Jack Klausner, d/b/a Kay-Mar Co., Defendants, George Grossman, Appellant.

Civ. 22087.

District Court of Appeal, Second District, Division 2, California.

July 16, 1957.

Murray Jackson, Los Angeles, for appellant.

Laurence J. Rittenband and Morris Kastle, Los Angeles, for respondents.

MOORE, Presiding Justice.

From a judgment for damages in the sum of $4,700 and for an injunction against defendant Grossman permanently enjoining him from reproducing or dealing in any of the three-dimensional pictures produced by respondents, comes this appeal.

Paul A. Hesse since 1949 has been and now is engaged in the experimentation with and improvement of the French camera, preparatory to the manufacture of three-dimensional pictures and photographs. They are made after an ingenious fashion and since 1953 respondents have more particularly manufactured pictures depicting religious themes. At great expense, Hesse assembled the sets and objects to be used in making three-dimensional pictures. He was joined by one Harvey Prever who is part owner of the Three Dimensional Corporation. Together they improved the patented camera. They made it so that it took three-dimensional pictures. After designing and building elaborate miniature stage sets, they made many photographs in order to obtain the most artistic and desirable picture. Much time and money were consumed in the creation and assembly of the materials used and in lighting and photographing the sets. For illustration: in preparing to make a picture of 'The Last Supper' they employed a New York sculptor who modeled Christ and His disciples at the Supper against the background appearing in the great work of Leonardo da Vinci. Exclusive of the time of Hesse and Prever in that work, the cost to them of that picture alone was $5,000.

After a photograph has been taken, the original film is sent to a film laboratory for development. Numerous duplicate slides may be obtained from the master, the original always being used from which the duplicates are processed. The duplicate slide or transparency is then laminated between panes of glass. The top pane, or lenticular glass, contains screen coordinates which are instrumental in producing the three-dimensional effect. Thereafter the duplicate slide is mounted in a picture frame to which is attached a shadow box. The three-dimensional effect is produced when the bulb behind the picture is lighted.

Photographs made by respondents copied and pirated by appellant included The Last Supper, Crucifixion, Lady Fatima, and Lady Guadalupe. All except the Last Supper were Hesse's own artistic conception and were not copied from any particular painting. At times a statuette was purchased or borrowed and the remainder of the scene was built around it. The products of respondents are of unique design and have never been previously distributed.

After Hesse and Prever had perfected the photography of the religious subjects, Three Dimensionals granted to Victory Vending Company exclusive rights to sell the pictures throughout the United States and it in turn appointed Monique Pictures Corporation as its exclusive distributor in the sixteen western states. Pursuant to its contract, Victory purchased the duplicate slides from Three Dimensionals at $5 each, prepared the frames and installed them in the shadow boxes. Prior to the trial, Victory had expended $37,000 in constructing a film laboratory wherein to make the duplicates from the originals. Also, the distributors have invested in advertising and promoting the pictures and creating a consumer demand therefor in excess of $50,000. Such expenditures were in a large measure made in California where the pictures have become known and accepted as creations of Hesse.

As to appellant Grossman, he had been previously employed as a salesman by one Victor Ansaldo who had rented a three-dimensional camera from Hesse and made pictures of his own. When he moved to San Jose, Grossman took over the premises formerly occupied by his employer in Los Angeles. He had never used the three-dimensional camera which had been improved by Hesse and Prever, but he merely purchased at retail the three-dimensional religious pictures that had been created by Three Dimensionals, Inc. and removed a duplicate of the mother slide from the shadow box, used it as a master from which to make duplicates by 'contact printing' whereby an unexposed piece of film was placed on the master and light was passed through. The reproduction resulting from such process was inferior to the copies processed from the original slide.

Appellant knew that the slides which he copied had been created by Hesse. Also, his distributors had the same knowledge and they and appellant allowed the ultimate purchasers to believe they were buying copies of the three-dimensional religious photographs. Such incited belief was important in that Paul A. Hesse's name had become synonymous with superior quality in the production of such pictures by reason of their excellence and of the extensive advertising of respondents. It was proved also that some of plaintiff Monique's distributors had lost customers because Grossman's distributors were able to sell at a lesser price.

Now, appellant has emphasized certain issues that are not significant in this controversy as appears from the following findings:

'That the defendant George Grossman had committed acts of unfair competition against the plaintiffs and had engaged in fraudulent trade practices against the plaintiffs in copying and simulating religious three-dimensional pictures manufactured and distributed by the plaintiff and diverted customers from the plaintiffs to himself.

'That the three-dimensional pictures being distributed and sold by such defendants, and each of them, are calculated to deceive and mislead the purchasers and consumers of plaintiffs' pictures and actually has deceived and continues to deceive and mislead the purchasing public and caused them to buy the inferior pictures sold by such defendants in the belief that they are products manufactured, sold and distributed by the respective plaintiffs; that thereby the general reputation of said pictures of the plaintiffs has been injured and will continue irreparably to be injured thereby.'

The evidence is ample to sustain such findings. Grossman violated the rules of common honesty and accepted business ethics as codified in the Civil Code, section 3369(3). His proceeding without seeking legal advice, his copying the three-dimensional religious pictures and so copying them as to make them appear as creations of Hesse; his attempt to purchase the slides directly from the very laboratory with which Hesse had contracted to process the original films; his indication that he would employ the same laboratory to do his developing and processing; his removal of the slide and using it as a master to duplicate it by 'contact printing'; his counterfeiting respondents' pictures--these were such acts under the circumstances of case as were clearly calculated to convince a disinterested mind that his intentions were seriously resolved to...