Monogram Models, Inc. v. Industro Motive Corporation

• Decision Date: 12 March 1974
• Docket Number: No. 73-1454.,73-1454.
• Citation: 492 F.2d 1281
• Parties: MONOGRAM MODELS, INC., Plaintiff-Appellee, v. INDUSTRO MOTIVE CORPORATION and Henry G. Michael, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

492 F.2d 1281 (1974)

MONOGRAM MODELS, INC., Plaintiff-Appellee, v. INDUSTRO MOTIVE CORPORATION and Henry G. Michael, Defendants-Appellants.

No. 73-1454.

United States Court of Appeals, Sixth Circuit.

Argued December 13, 1973.

Decided March 12, 1974.

Dee Edwards, Detroit, Mich., on brief, for defendants-appellants.

Lloyd C. Fell, Bodman, Longley, Bogle, Armstrong & Dahling, Detroit, Mich., Michael G. Berkman, Esther O. Kegan, and Glenn E. Klepac, Kegan, Kegan & Berkman, Chicago, Ill., on brief, for plaintiff-appellee.

Before WEICK and MILLER, Circuit Judges, and O'SULLIVAN, Senior Circuit Judge.

WEICK, Circuit Judge.

This is an appeal from a judgment of the District Court finding that appellants infringed appellee's copyrights on its scale model airplane kits, and awarding damages and injunctive relief. The issue of infringement was determined by a jury.

Monogram Models, Inc. (Monogram) sued Industro Motive Corporation and its president, Henry G. Michael (hereinafter both defendants will be referred to as "Industro"), charging Industro with infringing copyrights held by Monogram on its F-105 Thunderchief kit which was registered with the Copyright Office on July 22, 1968, in Class "A", Registration No. A8254, and on its A1-E Skyraider kit which was registered on July 19, 1968, in Class "G", Registration No. Gp 59925.

The District Court granted Monogram's motion for summary judgment, and Industro appealed to this Court. We held that the District Court was correct in its decision that the plastic scale model airplane kits were the proper subject matter for copyright protection, but reversed for error in entering summary judgment, and we remanded for "trial and resolution of certain factual disputes and questions." Monogram Models, Inc. v. Industro Motive Corp., 448 F.2d 284 (6th Cir. 1971).

We delineated four questions to be among the issues to be resolved at trial:

1 — Did the registration for copyright filed by plaintiff and the copyright certificate cover the actual plastic model airplane and not simply the instruction sheet for assembly and the decorative container packaging the plastic pieces of the model airplane?

2 — Was there sufficient and adequate legal notice of copyright on all the subject matter (instruction sheets, containers and plastic models) for which plaintiff seeks copyright protection?

3 — Was there ever a period during which the alleged copyrighted subject matter was manufactured without copyright notice, and if so was there an abandonment to the public domain?

4 — If valid, were plaintiff\'s copyrights infringed by defendants\' models?

On remand the parties stipulated the facts relating to the first two questions. The District Court held that the copyrights were effective as to the plastic scale model parts, as well as to the container boxes and instruction sheets for each of Monogram's kits. The District Court further held that the copyrights on the two kits were properly protected by the copyright notices that appeared on the container boxes and instruction sheets of each kit. (As to one kit, the A1-E Skyraider kit, there was also a notice on the inside of one wing part.)

The issue of infringement was submitted to a jury which rendered a verdict that Industro had infringed Monogram's copyrights on its two scale model airplane kits. The District Court defaulted Industro on the issue of damages because of Industro's failure to respond to an order of the Court to provide information pertinent to damages requested by Monogram in interrogatories duly submitted to Industro. The District Court then determined damages on the basis of available information, and rendered judgment against Industro in the amount of $45,644.81, which judgment included $25,000 assessed in lieu of actual damages, and $20,644.81 for reasonable attorney's fees.

The District Court issued a permanent injunction against further infringement and required deliverance by Industro to Monogram of all infringing kits on hand, including molds, dies, and other matter for making infringing copies. Industro appealed, asserting five issues for review by this Court. We affirm.

The action arose under the copyright laws of the United States, Title 17 U.S. C. § 1 et seq., and jurisdiction was predicated on Title 28 U.S.C. § 1338.

Monogram and Industro are competitors, engaged in the production, manufacture and sale of scale model airplane kits.

Monogram contended that the copyright on its F-105 Thunderchief kit, registered with the Copyright Office on July 22, 1968 under Class A, was infringed by Industro's production and sale of Industro's F-105D Thunderchief kit; and Monogram further contended that the copyright on its A1-E Skyraider kit, registered with the Copyright Office on July 19, 1968 under Class G, was infringed by Industro's production and sale of Industro's A-1 H Skyraider kit.

It was uncontroverted that Industro had access to, had seen, and had examined Monogram's two kits before designing and producing its own kits. Industro even admitted to some copying, but contended that the copying was not substantial and that the judgment of infringement cannot be sustained for several reasons.

Industro first asserts that Monogram does not have valid copyrights on its Thunderchief and Skyraider kits. The basis for this assertion is predicated on three arguments: First, that Congress has no power to provide for copyrighting of anything other than "an author's writing"; Second, that scale model airplane kits cannot be included in any classification of articles which may be protected by copyright under 17 U.S.C. § 1 et seq., and therefore they are not copyrightable; and Third, that Monogram failed to meet the statutory and regulatory requirements for notice of copyrights on either kit.

In the earlier appeal in this action we held that Congress has the power to provide for copyrights on things not strictly termed "author's writing," and that the term should be given a broad construction. 448 F.2d 284 at 287. We have found no reason to depart from that holding now.

We further held that "the copyrightability of plastic scale model airplanes" was a legal question, and then we went on to determine that "scale plastic model airplanes are proper subject matter for copyright protection." 448 F.2d at 285, 288.

In speaking of scale plastic model airplanes this Court was referring to scale model airplane kits as the proper subject for copyright protection. It is the originality in the expression and embodiment of the design and structure of the kit that satisfies the originality requirement of copyrightability as stated in Mazer v. Stein, 347 U.S. 201, 214, 74 S.Ct. 460, 98 L.Ed. 630 (1953). Thus it is neither the assembled plane, as a structure, nor the individual pieces of the unassembled plane, that are the proper subject for copyright protection. It is the scale model airplane kit, as a kit, that is copyrightable.

As to the question of what is the proper classification of the scale model kits under 17 U.S.C. § 5, we previously noted:

The fact that these classifications are perhaps not accurate descriptions of the subject matter sought to be copyrighted apparently is of no consequence. (448 F.2d at 287)

See also 17 U.S.C. § 5; Day-Brite Lighting, Inc. v. Sta-Brite Fluorescent Mfg. Co., 308 F.2d 377 (5th Cir. 1962).

Industro further contended that monogram's copyrights on the two kits were invalid because Monogram failed to meet the statutory and regulatory requirements for notice of copyright for both kits. Notice of Monogram's copyright was placed on the boxes containing the pieces of the plane and on the instruction sheets of the kits for both the Thunderchief and Skyraider kits of Monogram. As to the Skyraider kit, notice was also placed on the inside of a wing part, but after the model plane is assembled this notice is not visible.

The basic requirement as to the placement of a copyright notice is stated in 17 U.S.C. § 10:

§ 10 Publication of work with notice

Any person entitled thereto by this title may secure copyright for his work by publication thereof with the notice of copyright required by this title; and such notice shall be affixed to each copy thereof published or offered for sale in the United States by authority of the copyright proprietor, except in the case of books seeking ad interim protection under section 22 of this title.

As we have just previously noted, the "work" with which this cause is concerned is scale model airplane kits. In order to comply with Section 10 there must be publication with notice of the copyright, and such notice "shall be affixed to each copy thereof published or offered for sale . . . ." For both of Monogram's kits, the A1-E Skyraider and the F-105 Thunderchief, there was publication of the work with notice of the copyright affixed to the container boxes and the instruction sheets of the kits. In our opinion such publication and notice comply with Section 10.

The form of the copyright notice is delineated in 17 U.S.C. § 19. The copyright notice on the container boxes and instruction sheets for both of Monogram's models complies with the form required in Section 19. Because the instruction sheets and the container boxes are integral parts of the model airplane kits and the notice on these parts complies with the necessary form for notice of copyright, the notices of copyright on the two kits were adequate.

The purpose of a copyright notice is to prevent innocent persons who are unaware of the existence of the copyright from incurring the penalties of infringers by making use of the copyrighted work. (Uneeda Doll Co. v. Goldfarb Novelty Co., 373 F.2d 851, 852 (2d Cir. 1967)).

The notices provided on the kits were certainly adequate to give notice to anyone who reasonably used the kits; it is not necessary to place a notice on each of the plastic airplane parts themselves.

In our opinion Monogram has a valid copyright on its A1-E Skyraider and F-105 Thunderchief scale...