Vargas v. Esquire, Inc., 9359.

• Decision Date: 05 December 1947
• Docket Number: No. 9359.,9359.
• Citation: 164 F.2d 522
• Parties: VARGAS v. ESQUIRE, Inc.
• Court: U.S. Court of Appeals — Seventh Circuit

164 F.2d 522 (1947)

VARGAS v. ESQUIRE, Inc.

No. 9359.

Circuit Court of Appeals, Seventh Circuit.

December 5, 1947.

Earle E. Ewins and Edward S. Price, of Chicago, Ill. (Musgrave, Ewins, Price & Notz, of Chicago, Ill., of counsel) for appellant.

Edward R. Johnston, James A. Sprowl and Allen R. Johnston, all of Chicago, Ill. (Poppenhusen, Johnston, Thompson & Raymond, of Chicago, Ill., of counsel) for appellee.

Before MAJOR, KERNER, and MINTON, Circuit Judges.

MAJOR, Circuit Judge.

This appeal is from an order, entered December 17, 1946, dismissing plaintiff's complaint and supplemental complaint for failure to state a cause of action.

Plaintiff, an artist, sued to enjoin the reproduction of certain pictures made by him and delivered to defendant, a publisher, upon the ground that the same were wrongfully used in that they were published without the signature of plaintiff and without being accredited to him. Plaintiff also sued for damages on account of such publication alleged to violate his contract and his property right in the pictures and unfairly to represent them as the work of others. Defendant moved to dismiss on the ground that the plaintiff at the time of publication had no property right in the pictures and no right to control or to direct their disposition.

The facts alleged by the complaint center about and relate largely to two contracts of which the plaintiff and defendant were parties. The complaint sets forth that in June, 1940, the parties entered into a contract, "Exhibit A," attached to and made a part of the complaint, wherein and whereby plaintiff was employed as an artist for three years, to produce art work for use by defendant in its publication and also for use in publications of a commercial nature, for a certain monthly compensation and in addition thereto a certain percent of the proceeds realized by defendant for work of a commercial nature. Under this contract plaintiff made and delivered certain pictures, one of which was reproduced each month, beginning October 1, 1940, in the magazine Esquire, published by defendant. Plaintiff also made and delivered twelve pictures each year, beginning in the fall of 1940, for a calendar published and sold the following year by defendant.

At first the pictures furnished bore plaintiff's name or signature, "Vargas," and they were reproduced and published with his name thereon. Later, by agreement of the parties, the name "Vargas" was changed to "Varga." Thereafter, the pictures made by plaintiff and published by defendant were called "Varga Girls," and the name of the plaintiff appearing thereon was "A. Varga." The name was used only in connection with pictures made by plaintiff and was thus used by the defendant until March 1, 1946. No name was on the pictures when they were furnished by plaintiff to the defendant.

The contract "Exhibit A," expired on June 30, 1943, but plaintiff continued to furnish pictures to defendant without a contract, which were published in the same manner as when the contract was in force, until May 25, 1945, when the parties entered into a second contract, "Exhibit B," attached to and made a part of the complaint.

On or about January 14, 1946, plaintiff notified the defendant that he was no longer bound by the contract, "Exhibit B," and refused to longer furnish it with pictures. Defendant at that time had twenty pictures made by plaintiff which had not as yet been published. On February 11, 1946, plaintiff caused to be instituted in the United States District Court an action by which he sought a cancellation of such contract. On May 20, 1946, the court entered its decree, allowing the relief sought by the plaintiff, finding among other things that the contract had been fraudulently obtained by defendant and ordering the same cancelled and set aside as of January 10, 1946.

It was alleged that by reason of such publication by the defendant persons seeing said magazine came to know the work of the plaintiff and that as a result plaintiff became known to millions of persons, acquired a world-wide reputation and his name, "A. Varga," likewise became known throughout the world.

The complaint alleged that on March 1, 1946, the defendant published its magazine, Esquire, which contained a two-page reproduction of a picture made by the plaintiff. At the top thereof instead of the words, "The Varga Girl," appeared the words, "The Esquire Girl." The reproduction did not bear plaintiff's signature, "A. Varga," or any other signature. The supplemental complaint made a similar allegation as to a picture produced by plaintiff appearing in Esquire for the month of May, 1946. It was also alleged in the supplemental complaint that on October 1, 1946, defendant published a certain calendar enclosed in an outside envelope on which appeared the words and figures, "The 1947 Esquire Calendar 35¢ Copyright Esquire Inc. 1946 Printed in U. S. A." On the envelope was a reproduction of a picture painted for defendant by plaintiff. The calendar contained in said envelope was composed of the reproduction of twelve pictures of plaintiff made and intended to be used for the Varga Esquire 1947 calendar. Each of the said pictures bore the words, "The Esquire Girl Calendar." None of such pictures carried plaintiff's name or any name, word or legend indicating them to be the work of plaintiff or any other person.

All the pictures used by the defendant both in its magazine and in connection with its 1947 calendar were furnished by plaintiff to the defendant in accordance with the terms of "Exhibit B," prior to the time that plaintiff gave notice of its cancellation. All of such pictures had been paid for by the defendant in accordance with the terms of the contract, and as to those used in defendant's magazine, plaintiff had no further monetary interest. As to those used in connection with defendant's calendar, plaintiff was entitled to a share of the proceeds derived from the sale thereof. There is no allegation, however, and no claim that defendant had refused to pay or is likely to refuse to pay to plaintiff his share of such proceeds.

It was further alleged that there was a duty upon the defendant to refrain from publishing reproductions of plaintiff's pictures without their bearing his signature and giving him due credit; that defendant, in violation of its duty in this respect, published plaintiff's work without using his name and without giving him credit therefor, and that the same constituted a misrepresentation in that it represented the pictures to be the work of another and not that of plaintiff.

"Exhibit A" (the first contract) expired long prior to the inception of the instant controversy and we think it is of little consequence insofar as it affects the issues for decision. The rights of the parties must be determined from "Exhibit B" (the second contract), which was in effect at the time that plaintiff furnished the pictures to defendant which were reproduced by it subsequent to the time that plaintiff gave notice of cancellation of such contract.

In a preamble to "Exhibit B," it is stated that Vargas for approximately three years had been preparing and furnishing to Esquire drawings for use by Esquire in connection with its publications and other printed merchandise:

"In connection with certain of these drawings, the name `Varga,' `Varga Girl,' and similar names have been given national publicity by Esquire and have become well known to the public. Vargas acknowledges that the success of the drawings has been due primarily to the guidance which Esquire has given him and to the publicity given to them by Esquire's publications * * *."

The contract, after expressing the desire of the parties to enter into an agreement defining their mutual rights and obligations, contains a paragraph around which this controversy...