Seay v. Vialpando

Decision Date03 August 1977
Docket NumberNo. 4738,4738
Citation567 P.2d 285
PartiesDonald SEAY and Ingrid Seay, Appellants (Plaintiffs below), v. Augustin VIALPANDO and Ralph Anderson, Appellees (Defendants below).
CourtWyoming Supreme Court

Stuart S. Healy, of Kennedy, Connor & Healy, Sheridan, for appellants.

John E. Stanfield, of Smith, Stanfield & Scott, Laramie, for appellee-Augustin Vialpando.

George J. Millett, of Pence, Millett & MacMillan, Laramie, appeared for oral argument; and Horace M. MacMillan, II, Laramie, signed the brief, for appellee-Ralph Anderson.


ROSE, Justice.

Donald and Ingrid Seay brought suit against Augustin Vialpando and Ralph Anderson in connection with the design of a home, which Anderson had built for appellants. Appellants sought actual and punitive damages for a violation of their common-law copyright in certain architectural blueprints. In the alternative, appellants sought damages for conversion of the blueprints, and stated a further cause of action seeking quantum meruit recovery. Appellees filed separate motions for summary judgment, and appellants filed a cross-motion for summary judgment. Appellees' motions were granted. We will reverse the summary judgments since we find that there is a genuine issue as to the material fact concerning the publication of the blueprints.

In 1973, Donald Seay, according to his own talents and initiative, drew the plans and blueprints for the home he intended to build for himself in Laramie, Wyoming; and he hired Mr. Ralph Anderson to construct the exterior of the house. Vialpando was hired to paint the exterior. During the course of construction, copies of the blueprints were supplied to Messrs. Vialpando and Anderson, as well as to a bank loan officer and to other contractors constructing various parts of the home. Some minor changes were made in the original plans after consultation with Anderson and his wife, but the appellants' basic, original, Spanish-motif exterior design was retained. The record discloses that the plan copies bore only Seay's name and a date, and that when such copies were distributed the Seays neither granted nor denied appellees the right to copy the ideas expressed in them. Sometime after the Seay home was completed, Anderson used the appellants' plans to construct the exterior of a home for Vialpando. In their depositions, both appellees represented that they did not think they were doing anything wrong by incorporating exterior features of the Seay home into the Vialpando house, and they admitted using the plans for this purpose.

In reviewing the record on appeal from the granting or denial of a summary judgment, we must look at the record from a viewpoint most favorable to the party opposing the motion. Tri-State Oil Tool Industries, Inc. v. EMC Energies, Wyo., 561 P.2d 714; Shrum v. Zeltwanger, Wyo., 559 P.2d 1384; and Bluejacket v. Carney, Wyo., 550 P.2d 494. When a motion for summary judgment is before us, we have exactly the same duty as the trial judge and, assuming the record is complete, we have exactly the same material and information in front of us as he did. Hunter v. Farmers Insurance Group, Wyo., 554 P.2d 1239, 1244. The moving party has the burden of showing the absence of a genuine issue of material fact. Hunter v. Farmers Insurance Group, supra, at 1243; and Knudson v. Hilzer, Wyo., 551 P.2d 680, 685. The fact that both parties have moved for summary judgment does not mean that there is no genuine issue of fact. This determination is a question of law that must be decided by the court, irrespective of what either of the parties may have thought about the matter. 10 Wright and Miller, Federal Practice and Procedure: Civil § 2720, at 459-461 (1973). Our task, then, is to first determine whether appellees sustained their burden of showing that there was no genuine issue of fact. If not, and there is a genuine issue of fact, then neither party was entitled to summary judgment. In pursuing this inquiry, we are guided by certain principles which we established in Johnson v. Soulis, Wyo., 542 P.2d 867, 872:

". . . (F)or purposes of ruling upon a motion for summary judgment a fact is material if proof of that fact would have the effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties. Such a fact would necessarily affect the application of the appropriate principle of law to the rights and obligations of the parties. In considering a motion for summary judgment it is appropriate for a court to identify the essential elements of the plaintiff's cause or of the defense asserted, and to then determine the materiality of any fact in the light of whether it will establish or refute one of those essential elements. If it does not have that effect, it would not be a material fact in the controversy, and a genuine issue with respect to that fact, no matter how sharp, would not foreclose the granting of a motion for summary judgment."

We have previously recognized the property right commonly referred to as a common-law copyright, and have applied it to blueprints and drawings. Vic Alexander & Associates v. Cheyenne Neon Sign Co., Wyo., 417 P.2d 921. The appellees do not challenge this principle of law. Rather, they contend that Seay's failure to advise them of his property interest in the blueprints and construction of the Seay home constituted a publication of his work, barring his right to recover. When faced with a similar contention in Vic Alexander, supra, we stated:

"The term 'publication,' as used in connection with common-law copyrights, is employed to denote those acts of an author or creator which evidence a dedication of his work to the public and on which depends the loss of his common-law copyright. See 18 Am.Jur.2d, Copyright and Literary Property, § 76, p. 366.

"In this case we cannot say the mere leaving of drawings in defendant's store and the construction of its Cheyenne sign would, as a matter of law, evidence an intention on the part of plaintiff to dedicate its work to the public generally. This determination is necessarily for the trier, and in this instance there is an absence of a finding that publication took place. Thus, it is unnecessary for us to decide whether publication can be urged as a defense without being pleaded as an affirmative defense." 417 P.2d at 923.

Similarly, in the instant case we are unable, as a matter of law, to say that the mere leaving of blueprints with a contractor for the construction of a house constitutes a publication which is destructive of the common-law copyright. Rather, there is a genuine question as to whether appellants' acts with respect to the blueprints constituted a general publication of the plans.

In copyright law, there are two forms of publication: one, general publication; the other, limited publication. Only the former type of communication divests one of his common-law rights to his work. Katz, "Copyright Protection of Architectural Plans, Drawings, and Designs," 19 Law and Contemporary Problems 225, 233 (1954); Nimmer on Copyright, § 58, at 224 (1976); Smith v. Paul, 174 Cal.App.2d 744, 345 P.2d 546, 549, 77 A.L.R.2d 1036 (1959). A general publication is

". . . such a disclosure, communication, circulation, exhibition, or distribution of the subject of copyright, tendered or given to one or more members of the general public, as implies an abandonment of the right of copyright or its dedication to the public. . . ." Werckmeister v. American Lithographic Co., 2 Cir., 134 F. 321, 326.

As stated in Edgar H. Wood Associates, Inc. v. Skene, 347 Mass. 351, 197 N.E.2d 886, 892:

". . . A limited publication is 'one which communicates a knowledge of its contents under conditions expressly or impliedly precluding its dedication to the public' (134 F. p. 324). Further, to be general a publication must be such ' "* * * as to justify the belief that it took place with the intention of rendering * * * (the) work common property. " ' American Tobacco Co. v. Werckmeister, 207 U.S. 284, 299-300, 28 S.Ct. 72, 77, 52 L.Ed. 208. Continental Cas. Co. v. Beardsley, 253 F.2d 702, 707 (2d Cir.), cert. den., 358 U.S. 816, 79 S.Ct. 25, 3 L.Ed.2d 58. See White v. Kimmell, 193 F.2d 744, 747 (9th Cir.). As more recently stated, 'a * * * publication which communicates the contents of a manuscript to a definitely selected group and for a limited purpose, and without the right of diffusion, reproduction, distribution or sale, is considered a "limited publication," which does not result in loss of the author's common-law...

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