Local Trademarks v. Price
| Decision Date | 26 November 1948 |
| Docket Number | No. 12236.,12236. |
| Citation | 170 F.2d 715 |
| Parties | LOCAL TRADEMARKS, Inc. v. PRICE et al. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Frank J. Dishuck and Jane Kimbrough Dishuck, both of Tuscaloosa, Ala., for appellant.
Hyman Rosenfeld and C. W. Gross, both of Tuscaloosa, Ala., for appellees.
Before McCORD and LEE, Circuit Judges, and MIZE, District Judge.
This is an appeal from a judgment of the court for the Northern District of Alabama. Appellant, a corporation, plaintiff in the court below, sought damages for the infringement of a copyright. Recovery was denied upon the ground that its cause of action was barred by the one year statute of limitations of the State of Alabama.
Appellant on June 2, 1947, filed its complaint against Robert D. Price, doing business as Tuscaloosa Flower Shop, in which complaint it averred that it was engaged in the business of originating and preparing books containing advertising material including cuts and plates for advertising purposes by business firms under contract with it. That for these purposes it has originated, written, prepared and produced an original book entitled "Miss Flora Series of Newspaper Advertisements, Vol. 5," and that same was duly copyrighted and registered in the office of Copyrights of the United States and a certificate of such registration was duly issued to plaintiff by the registrar of Copyrights on the 26th day of January 1940, and that there was thereby secured to plaintiff the exclusive right to the aforesaid copyrighted book including the exclusive right to print, publish, and vend all illustrations, cuts, and engravings pertaining thereto.
Plaintiff averred that since the 19th day of December 1939, the book published by it and all copies made by plaintiff or under its authority had contained the notice of the copyright, as prescribed by Title 17, Section 18, U.S.C.A. and that all matrices or plates made for the purpose of multiplying copies of any parts of the copyrighted book for use in newspapers or other advertising media, furnished to persons licensed by it to multiply copies thereof, contained notice of the copyright. That it is now the sole owner of the copyrighted book and has been at all times since its publication.
Plaintiff alleged that the appellee, Robert D. Price, is the owner of the Tuscaloosa Flower Shop, doing business as the Tuscaloosa Flower Shop, and that on the 13th day of November, 1941, contracted with the plaintiff for the use of mats with which to make copies of plaintiff's copyrighted advertising material contained in the copyrighted book, Miss Flora Series of Newspaper Advertisements, Vol. 5, and was thereby granted the license to use the cuts, prints, and illustrations of the copyrighted work in newspapers and other advertising media in the City of Tuscaloosa for a period of one year only, beginning December 1, 1941, and ending November 31, 1942, and that all rights of defendant thereunder expired on that date. Plaintiff averred further that thereafter the defendant without right used the mats and material of plaintiff and infringed plaintiff's copyright on numerous occasions beginning December 6, 1942, and continuing till May 12, 1946, by publishing or causing to be published, without authority, component parts, consisting of copyrighted cuts, plates, illustrations or engravings of plaintiff's copyrighted book. Plaintiff did not claim that defendant had infringed at any time since May 12, 1946, or that he was threatening to do so.
The prayer of the complaint was for an injunction and for such damages as plaintiff may have sustained as a consequence of the infringements and to account for all the gains and profits derived by the defendant by virtue of the infringements or for such damages as to the court would appear proper within the Copyright Statutes but for not less than $250 for each infringement, and that the defendant be required to deliver up for destruction all infringing copies and all plates, molds, matrices and other matter for making such infringing copies.
Defendant filed a motion to dismiss the complaint setting up the claim that he was not the owner of the Tuscaloosa Flower Shop nor doing business as the Tuscaloosa Flower Shop but that in fact Mrs. Alva J. Rogers was the sole owner and proprietor of said business and had been at all times complained of. That he owned no interest therein and had not at any time. He also asserted the claim that the cause of action, if any, was barred by the Statute of Limitations of the State of Alabama. Accompanying the motion was his affidavit that he owned no interest in the Tuscaloosa Flower Shop and had not at any time, but that as a matter of fact, Mrs. Alva J. Rogers was the sole owner and the proprietor thereof and that she was a separate and distinct person from himself and that she was the only person known to him who was doing business as the Tuscaloosa Flower Shop.
Upon the filing of this motion and affidavit, and before it was ruled upon by the court, the plaintiff filed a motion to bring in new parties, to wit: Mrs. J. M. Rogers, Roberta Rogers Price, also known as Mrs. Robert D. Price, Richard Roe and John Doe, and all other parties whose names were unknown to it, but would be supplied as soon as ascertained who might be found to own any interest in the Tuscaloosa Flower Shop, and moved the court for an order to make these parties defendants along with Robert D. Price. The court sustained the motion and permitted the plaintiff to file an amended complaint against Mrs. J. M. Rogers, Roberta Rogers Price, Richard Roe and John Doe and all other parties who own a proprietary interest in the Tuscaloosa Flower Shop. The amended complaint was filed by which these new parties were brought in as defendants. The amended complaint contained substantially the same allegations as the original complaint and averred that all the defendants owned and operated the Tuscaloosa Flower Shop and had infringed plaintiff's copyright. The dates of the alleged infringements by all the defendants were the same as alleged in the original complaint. The prayer was substantially the same.
The defendants filed separate motions to dismiss the amended complaint for various reasons, one of which is that the claim is barred by the one year Statute of Limitations of Alabama but before this motion was considered by the court, the defendants, reserving unto themselves the rights under their motions, filed a motion for a summary judgment based upon the pleadings and affidavits of Roberta Rogers Price and of Glenn Jones....
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United States v. Hubbard
...(1973). First, there is clear precedent that the copying of any document does not constitute conversion. See Local Trademarks, Inc. v. Price, 170 F.2d 715, 718-19 (5th Cir. 1948); Pickford Corp. v. DeLuxe Laboratories, Inc., 169 F.Supp. 118, 120 (S.D.Cal.1958). Second, whereas there are pen......
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...action was brought." (Emphasis added.) Brady v. Daly, 175 U.S. 148, 158, 20 S.Ct. 62, 66, 44 L.Ed. 109. See also Local Trademarks, Inc. v. Price, 5 Cir., 1948, 170 F.2d 715; D. O. Haynes & Co. v. Druggists' Circular, 2 Cir., 1929, 32 F.2d 215; Carew v. Melrose Music, Inc., D.C.S.D.N.Y., 195......
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Coca-Cola Company v. Howard Johnson Company, Civ. A. No. C 74-870 A.
...is determined by looking to the law of the forum state. McGuire v. Baker, 421 F.2d 895, 898 (5th Cir. 1970); Local Trademarks v. Price, 170 F.2d 715, 717 (5th Cir. 1948). Neither party has, however, pointed to a Georgia statute of limitations that should apply to this case. Since the partie......
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U.S. v. Smith
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