Ketcham v. NEW YORK WORLD'S FAIR 1939

• Decision Date: 11 July 1940
• Docket Number: Civ. No. 581.
• Citation: 34 F. Supp. 657
• Parties: KETCHAM v. NEW YORK WORLD'S FAIR 1939, Inc.
• Court: U.S. District Court — Eastern District of New York

34 F. Supp. 657

KETCHAM v. NEW YORK WORLD'S FAIR 1939, Inc.

Civ. No. 581.

District Court, E. D. New York.

July 11, 1940.

Morgan, Finnegan & Durham, of New York City (George B. Finnegan, Jr., of New York City, of counsel), for plaintiff.

Lord, Day & Lord, of New York City (Woodson D. Scott, of New York City, of counsel), for defendant.

MOSCOWITZ, District Judge.

Howard Ketcham, the plaintiff, a resident of Connecticut, brings this action against the New York World's Fair 1939, Incorporated, a corporation organized under the laws of the State of New York, for an injunction and an accounting.

The plaintiff, a color engineer, furnished the defendant with a color chart, Exhibit 6, and the accompanying written description and directions. Exhibit 6 is a disclosure of a complete colored plan or map of the Fair together with numerous written suggestions of the application, function and manner of use of that color design.

Had the defendant made use of plaintiff's color chart, Exhibit 6, he would be entitled to recover as, undoubtedly, the plaintiff's disclosure constitutes substantial intellectual property. Palmer v. DeWitt, 47 N.Y. 532, 7 Am.Rep. 480. The cause of action having arisen in New York, the New York law applies. It is the law of New York, as claimed by the plaintiff, that an individual has a property right in his original unpublished intellectual productions. The Court in the case of Palmer v. DeWitt, decided:

"The rights of authors in respect to their unpublished works, have been so frequently and elaborately considered and carefully adjudicated by the courts of this country and of England, and are now so well understood and established that there is but little to do in passing upon the merits presented by the record before us, save to apply the rules clearly deducible from adjudged cases of conceded authority.

* * *

"The right is well defined and succinctly stated by the author of a recent work as follows: `Every new and innocent product of mental labor which has been embodied in writing, or some other material form, being the exclusive property of its author, the law securing it to him as such, and restraining every other person from infringing his right. Whether the ideas thus unpublished take the shape of written manuscripts of literary, dramatic or musical compositions, or whether they are the designs for works of ornament or utility planned by the mind of an artist, they are equally inviolable while they remain unpublished, and the author possesses an absolute right to publish them or not as he thinks fit (and if he does not desire to publish them), to hinder their publication either in whole or in part, by any one else.' Shortt on the Law of Literature, 48."

See Tabor v. Hoffman, 118 N.Y. 30, 23 N.E. 12, 16 Am.St.Rep. 740. The doctrine in Palmer v. DeWitt, supra, and Tabor v. Hoffman, supra, has been generally followed by the Courts.

The Court in the case of Werckmeister v. American Lithographic Co., 2 Cir., 134 F. 321, 324, 68 L.R.A. 591, decided: "The author of a work of art has at common law a property therein until it is published with his consent. He may withhold or communicate it, and in communicating it he may impose such restrictions upon its use as he sees fit. Drone on Copyright, 103; Parton v. Prang, 3 Cliff. 537 548, Fed. Cas. No. 10,784. The right to make copies before publication and the right of first publication are common-law rights. The right to multiply copies after publication to the exclusion of others is the creature of statute. Palmer v. DeWitt, 47 N.Y. 532-536, 7 Am.Rep. 480."

Judge Coxe very recently held infringement of common law copyright in part of the music of an unpublished song. Wilkie v. Santly Bros., D.C., 13 F.Supp. 136. An author is entitled to his original unpublished intellectual work. See Ferris v. Frohman, 223 U.S. 424, 32 S.Ct. 263, 56 L.Ed. 492; Booth v. Stutz Motor Car. Co. of America, 7 Cir., 56 F.2d 962; American Ornamental Bottle Corp. v. Orange-Crush, 4 Cir., 76 F.2d 969; Hoeltke v. C. M. Kemp Mfg. Co., 4 Cir., 80 F.2d 912; A. O. Smith Corporation v. Petroleum Iron Works Co., 6 Cir., 73 F.2d 531; and Id., 6 Cir., 74 F.2d 934; Thompson v. Famous Players-Lasky Corporation, D.C., 3 F.2d 707; Healey v. R. H. Macy & Company, Inc., 251 App.Div. 440, 297 N.Y.S. 165.

The Court is in accord with the statement made by the plaintiff that it is the law that one who has worked out an embodiment of a design for a work of art or plans for a large building program possesses a property right in his original production.

The proof shows that there are fundamental differences between plaintiff's plan as shown in plaintiff's Exhibit 6 and the plan actually put in use by the defendant. The only similarity is the graduated tone of blue along Constitution Mall. The differences are fully pointed out in the following testimony of Mr. Ernest S. Peixotto, Consultant on Mural Paintings of the Fair, who testified:

"A. In my plan the idea was to keep the Theme Center white, and from it step the colors down in gradation toward the left, toward yellow, towards the center, towards red and toward the right towards blue, as clearly indicated by the chart, Defendant's Exhibit A. So when the full color was reached you had Rainbow Avenue as a prismatic chord that went through the three colors of the spectrum, yellow, red and blue. I see no relation between this color plan before me and the one which the Fair adopted. The strong colors come in immediately at the Theme Center, and no spectrum or rainbow is visible as in that.

"Also I would add that in the Fair's consideration of the color scheme so based properly upon esthetic grounds, it had no scientific reason, or socalled reason for existence, but was intended to bind together the buildings of different shapes into a certain unity and yet a variety of ensemble."

The color plan for the Fair was conceived by Mr. Peixotto and was carried out by Mr. Julian E. Garnsey, Color Consultant of the Fair, and the lighting was coordinated by Mr. Bassett Jones, Consultant on Lighting. Mr. Peixotto, Mr. Garnsey and Mr. Jones are the Color Committee of the Fair, appointed on January 29, 1937, and had complete charge of the color scheme of the Fair.

Plaintiff's idea upon which this suit is brought is contained in the descriptive matter shown in Exhibit 6. In this he discusses the advantages of a color scheme for the Fair. He states, among other things, the following:

"Today, color is a magic key to progress in a wide variety of activities. Through the scientific application of color, sensations of heat, cold, light, darkness, spaciousness, and physical well-being are induced. . actions, directions of movement, and rates of speed are suggested . . . locations, classifications, divisions of buildings are indicated . . . and interest, inquiry and sales of various products are stimulated.

"Today, the psychological effects of colors are being put to useful purposes. Subconscious reactions to colors are being directed to desired objectives by engineers familiar with their phenomena. How timely, how attractive and how directly useful it would be to have psychologically correct, scientifically applied colors greet the expected fifty million visitors to New York's World's Fair of 1939!

"How easy it would be for visitors to find their way with all Recreational activities one certain hue — with Education, Arts, Religion, Industry, Sanitation, Transportation each in its own individual, distinctive hue! And with subdivisions of these activities tied-in with variations of the basic hue; as, for example, Arts in a certain hue of blue (purple-blue, green-blue or pure blue) with Machine Arts, Graphic Arts, Crafts, Photography, the Theatre, the Dance, Opera and Puppets in variations of that hue! The entire Fair a magnificent harmony of pleasing color!

"Pleasing color on the outsides of the buildings, and on the insides...