Jackson v. Quickslip Co., 242.
| Citation | 110 F.2d 731 |
| Decision Date | 25 March 1940 |
| Docket Number | No. 242.,242. |
| Parties | JACKSON v. QUICKSLIP CO., Inc. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Albert J. Fihe, of Chicago, Ill., and Sydney G. Berry, of New York City, for appellant.
Maxwell E. Sparrow and Philip Davis, both of New York City, for appellee.
Before SWAN, CLARK, and PATTERSON, Circuit Judges.
The action is for infringement of copyright on a greeting card and for unfair competition. The card is of such a shape that when folded it has the outline of a travelling bag, but in two dimensions only. One side is printed to look like a bag, with a tag "It's in the bag," and with "Greetings from Chicago", or some other city. The opposite side has spaces for a postage stamp, for the name and address of the person to whom the card is sent, and for the name of the sender; it also has a picture of a jockey on a horse, with the words "They're off." On opening the card one finds a pair of doll's rubber pants pasted to the card. The card is supposed to amuse sender and recipient. It seems to have had a measure of popularity.
The defendant's card is in general similar to Jackson's. It too is cut and folded so as to resemble a travelling bag, and a pair of doll's rubber pants are fastened inside the folded card. In details it is different. The card is much larger, and the bag is of different appearance. The defendant's card does not have Jackson's slogans, nor does it show the racing picture. The defendant proved that a greeting card shaped like a travelling bag was not original with Jackson. A year or two earlier a concern in California had put out a greeting card resembling a travelling bag and designed to be mailed, with the words "It's in the bag"; on the inside of the card humorous suggestions for travelling were printed. The picture of the bag was precisely like Jackson's in outline and printing.
We assume that Jackson's card may be deemed enough of a book and Jackson enough of an author to warrant copyright. Rule 4, Copyright Rules, 17 U. S.C.A. following section 53. We also give his card the benefit of the rule that courts do not examine a copyrighted work for intrinsic worth or merit. Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 23 S.Ct. 298, 47 L.Ed. 460. But the degree of protection afforded by the copyright is determined by what is actually copyrightable in the card and not by its entire contents. American Code Co. v. Bensinger, 2 Cir., 282 F. 829; Dorsey v. Old Surety Life Ins. Co., 10 Cir., 98 F.2d 872, 119 A.L.R. 1250. The rubber pants inside the folded card were not within the copyright,...
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