Kurfiss v. Cowherd

• Decision Date: 03 October 1938
• Parties: SELBY KURFISS, APPELLANT, v. FLETCHER COWHERD AND CHATTEN COWHERD, RESPONDENTS
• Court: Kansas Court of Appeals

121 S.W.2d 282

233 Mo.App. 397

SELBY KURFISS, APPELLANT, v. FLETCHER COWHERD AND CHATTEN COWHERD, RESPONDENTS

Court of Appeals of Missouri, Kansas City

October 3, 1938

Appeal from Jackson Circuit Court.--Hon. Ben Terte, Judge.

Judgment affirmed.

Milton Schwind, W. Raleigh Gough and Allan M. Fisher for appellant.

(1) A party moving for judgment upon the pleadings admits, for the purposes of the motion, all facts well pleaded by the opposite party, and it is only where, under the admitted and conceded facts--irrespective of those in dispute--the moving party is entitled to the judgment, that the motion should be sustained. Cammann v. Edwards (Mo.), 100 S.W.2d 846. (2) The petition states sufficient facts to constitute a cause of action. (a) Under the common law, the creator of an artistic production had a property right therein. 13 C. J 947-950. (b) This common-law right extends to architectural plans. 13 C. J. 955. (c) Under the common law, an architect as the creator of an artistic production, owned the plans designed by him. 13 C. J. 963; Walsh v. St. Louis Expedition Co., 101 Mo. 534, 14 S.W. 722. (d) The property in such plans remains in the architect, until he disposes of his rights or until he loses them by publication. 13 C. J. 961, 974-975. (e) The burden of pleading and proving publication is upon the defendants. New Jersey State Dental Soc. v. Dentacura Co., 57 N.J.Eq. 593, 596; Daly v. Walrath, 40 A.D. 220, 57 N.Y.S. 1125. (f) The petition herein contains every element of a cause of action for infringement of common-law copyright. (3) The affirmative defenses alleged in the answer were by the reply sufficiently denied or met with countervailing facts. (a) The reply sufficiently puts in issue the allegations that plaintiff had transferred his title to the plans. Manrel v. Smith, 271 F. 211, 214; Packard v. Fox Film Corp., 202 N.Y.S. 164, 165; Paige v. Banks (U S.), 13 Wall. 608, 614, 20 L.Ed. 709; Dickinson v. Gay (Mass.), 7 Allen 29, 36, 83 Am. Dec. 656; Jacobs v. Danciger, 328 Mo. 458, 41 S.W.2d 389; 17 C. J. 492, et seq. (b) Plaintiff's reply sufficiently denies the allegations in the answer as to publication of the plans. (4) There was no publication arising from the facts that a house was constructed by use of plaintiff's plans and such house was opened to public inspection. (a) "Publication" implies a dedication or communication to the public generally. Werckmeister v. American Lith. Co., 134 F. 321, 324, 69 C. C. A. 553, 68 L.R.A. 591; American Tobacco Co. v. Werckmeister, 207 U.S. 284, 299, 28 S.Ct. 72. (b) Whether or not there has been a publication, is largely determinable by the author's legal intent--that is, the intent implied by the law from the acts claimed to constitute publication. 13 C. J. 978-979; Universal Film Co. v. Copperman, 212 F. 301, 303. (c) The question of publication, as applied to architectural plans, is to be determined in accordance with the general rules governing publication of other works of artistic or literary merit. (d) There was no publication in this case. Werckmeister v. American Lith. Co., 134 F. 321, 69 C. C. A. 553, 68 L.R.A. 591; American Tobacco Co. v. Werckmeister, 207 U.S. 284, 28 S.Ct. 72; Ferris v. Frohman, 223 U.S. 424, 32 S.Ct. 263; Universal Film Co. v. Copperman, 212 F. 301, 303; O'Neill v. General Film Co., 157 N.Y.S. 1028, 1033.

Meredith & Harwood for respondents.

(1) When an architect prepares plans and specifications for a building for a client, for an agreed compensation, such plans, if valuable as property after their publication, belong to the client and not to the architect. 13 Corpus Juris 963, sec. 31; 988, sec. 55 (8); 6 Corpus Juris Secundum 303, sec. 10; Wright v. Eisle, 86 A.D. 356, 83 N.Y.S. 887; Walsh v. St. Louis Exposition Ass'n, 101 Mo. 534. (2) The construction of a building from plans and specifications is a publication of them, which terminates the architect's common-law right of property in the plans. Gendell v. Orr (Pa.), 13 Phila. 191; Wright v. Eisle, 86 A.D. 356, 83 N.Y.S. 887. (3) If the use authorized or licensed, amounts to a general publication, all common-law rights are thereby terminated and the work falls into the public domain subject to unrestricted use by any member of the public. 13 Corpus Juris 996, sec. 33. (4) A general publication consists in making known to the public, offering to the public notice, or rendering it accessible to public scrutiny. The mode of publication of the question as to what amounts to publication, must be determined by the nature and character of the property right in the thing published. 13 Corpus Juris 978, sec. 46; Werckmeister v. American Lith. Co., 134 F. 321.

SPERRY, C. Campbell, C., concurs.

OPINION

SPERRY, C.

Plaintiff is an architect and sued defendants for damages for the alleged unlawful and unauthorized appropriation and use of certain architectural plans created by plaintiff and in which he claims a right of property by reason of common-law copyright. Defendants filed answer in the nature of a general denial, and, also set up an affirmative defense. To the answer plaintiff filed reply, denying every allegation of fact contained in said answer, specifically denying certain allegations, and setting up certain countervailing facts. Defendants then moved for judgment on the pleadings, which motion was by the court sustained. From the adverse ruling on the motion for judgment defendants have appealed.

This being a unique case in Missouri and one of first impression, we believe the pleadings are of sufficient interest and importance as to justify their being herewith reproduced in full, at the expense of the brevity of this opinion. (Learned counsel have not asserted a copyright, common law or statutory, thereon).

"FIRST AMENDED PETITION.

"Comes now the plaintiff and for his cause of action against the defendants, says that plaintiff is now, and for many years last past been, an architect and has been continuously engaged in the practice of his said profession in Kansas City, Missouri, and that during said time the defendants have been engaged in the business of constructing and selling residences buildings in Kansas City and vicinity.

"That on or about the -- day of April, 1935, the defendants constructed for their own profit, a residence building at 62nd Street and Morningside Drive in Kansas City, Missouri, and that thereafter and on or about the -- day of September, 1935, another residence at 55th Street and Wornall Road, in said city on the basis and by the use and means of certain plans owned by plaintiff, which said plans expressed and set forth certain ideas for the construction of a residence building.

"Plaintiff further avers that said plans had theretofore been made by the plaintiff to be the physical expression of certain definite and unique ideas and conceptions for the construction of residences of the more expensive type and which said ideas so embodied in said physical plans constituted an exceptional and unique design for construction of high artistic merit and of great value to the plaintiff and the same were the property of the plaintiff, which fact was at all times well known to defendants and each of them, and plaintiff avers that defendants, in violation of plaintiff's rights therein, and of his right to the sole and exclusive control, possession, use and dominion thereof, as the author, originator, owner and proprietor thereof, without the consent of plaintiff took the same and constructed therefrom said residence buildings for their own profit as aforesaid; that on or about -- day of April, 1935, and again on or about the -- day of September, 1935, the plaintiff, being informed that the said defendants were using or about to use the said plans as the physical expression of his said ideas, protested to the defendants and denied to defendants the right to use the same, but defendants, well knowing the plaintiff's rights and claim of right thereto, used said plans and by means thereof infringed and appropriated the ideas therein incorporated and expressed, as aforesaid to plaintiff's actual damage in the sum of Eight Hundred Eighty Dollars ($ 880); and plaintiff further avers that by reason of the wanton and reckless disregard by defendants of plaintiff's said property rights and the circumstances attending the violation thereof by defendants as herein alleged, the plaintiff should recover of and from defendants punitive damages in the further sum of Five Thousand Dollars ($ 5000).

"WHEREFORE, plaintiff prays judgment against the defendants and each of them in the sum of Eight Hundred Eighty Dollars ($ 880) as actual or compensatory damages, and the further sum of Five Thousand Dollars ($ 5000), as punitive damages and his costs herein."

"AMENDED ANSWER.

"I.

"Come now the defendants, Fletcher Cowherd and Chatten Cowherd, and for answer to plaintiff's First Amended Petition herein deny each and every allegation therein contained.

"II.

"Come now the defendants, Fletcher Cowherd and Chatten Cowherd, and for further answer to plaintiff's First Amended Petition herein allege:

"That in the early part of the year 1934, The Ladies Home Journal offered a prize for the best modernization and/or reconditioning of an old residence into a modern residence. The Safety Savings and Loan Association, a corporation, entered this contest and modernized and reconditioned the property at 3312 East 63rd Street, in Kansas City, Missouri;

"That said Association employed the plaintiff, Selby H. Kurfiss, an architect, to prepare the plans for the modernization of said residence on 63rd Street, which plans are the plans referred to in plaintiff's First Amended Petition as having been subsequently used by defendants in the construction of other residences;

"That...