Vic Alexander & Associates v. Cheyenne Neon Sign Co.

• Decision Date: 06 September 1966
• Docket Number: No. 3485,3485
• Parties: VIC ALEXANDER & ASSOCIATES, a Wyoming Corporation, Appellant (Defendant below), v. CHEYENNE NEON SIGN COMPANY, a Wyoming Corporation, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 921

417 P.2d 921

151 U.S.P.Q. 438

VIC ALEXANDER & ASSOCIATES, a Wyoming Corporation, Appellant (Defendant below), v. CHEYENNE NEON SIGN COMPANY, a Wyoming Corporation, Appellee (Plaintiff below).

No. 3485.

Supreme Court of Wyoming.

Sept. 6, 1966.

Lathrop, Lathrop & Tilker, Carl L. Lathrop, Cheyenne, for appellant.

Roncalio, Graves & Smyth, Charles E. Graves, Cheyenne, for appellee.

Before PARKER, C. J., and HARNSBERGER, GRAY and McINTYRE, JJ.

Mr. Justice McINTYRE delivered the opinion of the court.

The Cheyenne Neon Sign Company sued Vic Alexander & Associates in connection with the design of a store sign for defendant's jewelry store in Laramie, Wyoming. Plaintiff sought, for a violation of its literary property rights and a misappropriation of its property, $2,218.27 actual damages and $5,000 punitive damages. In the alternative a cause of action in quantum meruit was stated, the plaintiff seeking to recover the value of its services in preparing the design, $2,218.27, on the theory of an implied agreement, and the $5,000 punitive damages.

Trial was to the court without a jury. There was a general finding for plaintiff and it was given judgment in the amount of $1,225. Defendant has appealed claiming: (1) The court erred in granting judgment under either theory asserted by plaintiff; and (2) there was no basis for the assessment of damages against the defendant.

Right to Compensation

It is well settled at common law that an author or creator of a literary or intellectual production has a property right thereto which exists independently of and notwithstanding copyright statutes and entitles him to the exclusive use of his production before publication, such property right being commonly referred to as a common-law copyright. Annotation 77 A.L.R.2d 1048, 1048-1049; 5 Am.Jur.2d, Architects, § 10, p. 672. ¹

Counsel for appellant do not challenge this principle of law. Instead, they argue the design in question was not so movel and original as to allow a common-law copyright to attach. This presents a fact situation, and we have reviewed the record with a view of determining whether there was sufficient evidence for the trial court to find that plaintiff had a property right (in the nature of a common-law copyright) in the design used.

The evidence discloses that plaintiff-sign company designed and constructed a sign for defendant at its Cheyenne, Wyoming, store. Under its contract with the Alexander company, plaintiff retained ownership in the sign and leased it to the Alexander firm for a period of years, with an option to purchase being granted to lessee.

The designing started out to be for a sign at defendant's store in Laramie. A decision was made by the jewelry company, however, to have similar signs at Cheyenne and Laramie, and the Cheyenne sign was constructed first. Plexiglass was to be used in the construction of the signs, and both were to have an awning-appearing design, with bright blue and white vertical stripes running from the top of the store to a marquee over the entrance. The essential difference in the two signs was to be in the height. In Cheyenne, the striped awning reached a height of about fifteen feet above the sidewalk. In Laramie, the awning was to reach a height of thirty feet above the sidewalk; and since this awning was to cover the upper windows of the building, there were additional design problems with reference to light and ventilation.

In addition to the contract for Cheyenne, a contract was entered into between plaintiff and defendant for the construction of a sign at Laramie, which would be leased by defendant under terms similar to those in effect on the Cheyenne sign. While construction of the Cheyenne sign was underway and before construction of the Laramie sign began, a flooding at defendant's store in Cheyenne occurred. Apparently the sign company was blamed for causing this flooding, and defendant being displeased sought to cancel its contract for the Laramie store. The cancellation was agreed to by plaintiff, and the Laramie contract was rescinded by mutual agreement.

Within a few days after cancellation of the Laramie contract the Alexander company entered into a contract with Casper Neon Sign Co. for the construction of its sign at Laramie. We think the evidence is sufficient to show the sign actually built at defendant's Laramie store was substantially a copy and duplication of the one designed by plaintiff-sign company for defendant-jewelry company.

There was testimony tending to show the design for the Alexander signs was worked out by architectural, engineering and designing personnel of plaintiff-sign company. Although this was not done without explanations and suggestions from Vic Alexander, president of the Jewelry company, as to what his company desired in the way of signs, there was sufficient evidence from which the trial court could reasonably conclude that the designing was the work of plaintiff's agents and employees.

As to whether the evidence sufficiently established that the design was unique and original, Jackson Brooks, president of defendant-sign company and an architectural and industrial designer, testified the general idea had been in the back of his mind for some time as a means of modernizing and covering an old and unsightly building front. He was asked whether this type of awning effect was common, and in response he testified he had never seen this sort of thing done before or since.

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