Rushton v. Vitale

• Decision Date: 26 January 1955
• Docket Number: Docket 23221.,No. 123,123
• Citation: Rushton v. Vitale, 218 F.2d 434 (2nd Cir. 1955)
• Parties: Mary Phillips RUSHTON as sole general partner of The Rushton Company, a limited partnership, and The Rushton Company, Plaintiffs-Appellants, v. Joseph VITALE and Benny Rosano, individually and as copartners doing business under the firm name and style of Smile Novelty & Toy Company, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

218 F.2d 434 (1955)

Mary Phillips RUSHTON as sole generalpartner of The Rushton Company, a limited partnership, and The Rushton Company, Plaintiffs-Appellants, v.Joseph VITALE and Benny Rosano, individually and as copartners doing business under the firm name and style of Smile Novelty & Toy Company, Defendants-Appellees.

No. 123, Docket 23221.

United States Court of Appeals, Second Circuit.

Argued January 14, 1955.

Decided January 26, 1955.

Eugene L. Bondy, New York City(Bondy & Schloss and Bertram Braufman, New York City, on the brief), for plaintiffs-appellants.

Sam Panish, Brooklyn (Liebowitz, Cobert & Deixel, New York City, on the brief), for defendants-appellees.

Before CLARK, Chief Judge, and FRANK and HINCKS, Circuit Judges.

CLARK, Chief Judge.

Plaintiffs are suing to enjoin the infringement of a copyright, issued May 10, 1954, on a doll in the form of a chimpanzee named Zippy.This toy has been marketed by them, after a considerable expenditure of time, effort, and money, to fulfill a seasonal demand created by the Howdy Doody television program, on which a chimpanzee named Zippy appears.Despite the fact that defendants' doll is substantially identical to, and was obviously copied from, that of plaintiffs, the judge below refused to grant a preliminary injunction before full trial.His memorandum of decision stated: "From the papers submitted I am satisfied that there is a genuine triable issue as to the validity of plaintiffs' copyright and in view of plaintiffs' failure to show irreparable damage, the granting of the drastic remedy of a preliminary injunction is not justified in advance of a trial of the issues."Plaintiffs appeal pursuant to 28 U.S.C. § 1292, controverting both assumptions on which the denial of injunction rested.

From the pleadings and affidavits before us, on which Judge Inch based his decision, there seems little doubt as to the validity of plaintiffs' copyright or as to its infringement.Copyright protection extends to any production of some originality and novelty, regardless of its commercial exploitation or lack of artistic merit.Mazer v. Stein, 347 U.S. 201, 74 S.Ct. 460, 98 L. Ed. 630; see also Notes in 68 Harv.L. Rev. 517(1955)and66 id. 877(1953).Indeed, we have said: "All that is needed to satisfy both the Constitution and the statute is that the `author' contributed something more than a `merely trivial' variation, something recognizably `his own.'Originality in this context `means little more than a prohibition of actual copying.'No matter how poor artistically the `author's' addition, it is enough if it be his own."Alfred Bell & Co. v. Catalda Fine Arts, 2 Cir., 191 F.2d 99, 102, 103, per Circuit Judge Frank.Here, moreover, mere judges can hardly risk condemning Zippy for lack of artistry and thus prove themselves false prophets to the far-flung faithful Howdy Doody audience, which seemingly adores his bizarre features and funny face.The mere fact that these were based on a live model does not deprive them of the necessary amount of originality.

Nor can we agree with defendants' contention that plaintiffs waived their copyright by permitting photographs of Zippy to appear in...