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Docket Number

No. 63.

Attorney(S)

Lind, Shlivek, Marks Brin, of New York City (Max Shlivek and Saul S. Brin, both of New York City, of counsel), for appellants. Phillips Nizer, of New York City (Louis Nizer, Arthur B. Krim, and Robert S. Benjamin, all of New York City, of counsel), for appellees.

Judges

Martin Thomas Manton

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Smart Summary

Case Summary: Fleischer Studios, Inc., et al. v. Ralph A. Freundlich, Inc., et al.

Factual and Procedural Background

The appellees (Fleischer Studios, Inc., and others) obtained a copyright for a book of cartoons depicting the character "Betty Boop." The copyright was obtained on July 29, 1931. Under licenses granted by the copyright owner, exclusive rights to make and distribute toys and dolls representing the copyrighted material were conferred upon Fleischer Art Service, Inc., and subsequently to Joseph P. Kallus, who distributed thousands of such dolls.

The appellants manufactured dolls that the appellees alleged were reproductions of the copyrighted "Betty Boop" cartoons. The District Court entered a decree finding copyright infringement, issued an injunction, and referred the matter of damages and profits to a master (see 5 F. Supp. 808). The defendants appealed. The Court of Appeals affirmed the decree.

Legal Issues Presented

Whether the copyright was invalid for failure to comply with the statutory notice requirements (17 U.S.C. § 9 and § 18), specifically whether the notice as affixed to appellees' dolls—reading "Betty Boop des. and copyrighted by Fleischer Studios"—was insufficient because it omitted "Inc." from the corporate name and omitted the year of the copyright.
Whether the manufacture of a three-dimensional doll reproducing the appellees' two-dimensional copyrighted cartoons constitutes actionable copyright infringement.

Arguments of the Parties

Appellants' Arguments

They denied that their dolls infringed the appellees' copyright.
They contended the copyright was invalid because the appellees published copies of the copyrighted work without complying with sections 9 and 18 of the Copyright Law (17 U.S.C. §§ 9, 18), making the notice of copyright insufficient.
Specifically, appellants argued that the notice placed on the dolls was defective because (a) it used "Fleischer Studios" rather than the corporate name "Fleischer Studios, Inc.," and (b) it omitted the year in which the copyright was secured—thus failing strict statutory requirements and causing a dedication to the public.

Appellees' Position (as presented in the opinion)

The appellees asserted a valid copyright for a series of original unpublished cartoons of the character "Betty Boop."
They relied on the copyright obtained July 29, 1931, and the exclusive licenses granted, and they claimed that the appellants' dolls were reproductions of the copyrighted character and therefore infringing.
The appellees implicitly defended the sufficiency of the notice used on their dolls and maintained the copyright's validity under the statute.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Caliga v. Inter Ocean Newspaper Co., 215 U.S. 182	Illustration that copyright law is statutory and notice requirements are important to protection.	Cited by appellants to argue strict compliance is required; the court referenced it as part of the background on statutory notice requirements.
American Tobacco Co. v. Werckmeister, 207 U.S. 284	Support for strict compliance with notice provisions of the statute.	Noted among authorities asserting the statute's notice provisions must be complied with.
Universal Film Mfg. Co. v. Copperman, D.C., 212 F. 301; affirmed C.C.A. 218 F. 577	"Publication without such notice amounts to a dedication to the public" (i.e., absence of notice defeats subsequent copyright protection).	Quoted to show the potential consequence of publication without notice; court considered this line of authority but distinguished it as not controlling where notice was sufficient to identify proprietor.
Mifflin v. R.H. White Co., 190 U.S. 260	Authority concerning statutory notice and publication.	Referenced as part of the body of law on notice requirements; used to contextualize the statutory scheme.
Thompson v. Hubbard, 131 U.S. 123	Illustration of works classified as printed literary works for which the year must be included in notice.	Used to contrast works that require a year in the notice with the appellees' cartoons, which the court found not to be a printed literary work.
Haas v. Leo Feist, Inc., D.C., 234 F. 105	Authority cited regarding notice requirements.	Listed among decisions concerning notice obligations under the statute.
Burrow-Giles Litho. Co. v. Sarony, 111 U.S. 53	Notices that use a surname or abbreviation (rather than full legal name) can be sufficient.	Applied to support the conclusion that omitting "Inc." did not disguise the identity of the proprietor and was not fatal to notice.
Woodman v. Lydiard-Peterson Co., C.C., 192 F. 67	Support for permissive construction of proprietor's name in notice.	Used alongside Burrow-Giles to show abbreviated names may suffice for notice.
W. H. Anderson v. Baldwin Law Pub. Co., 27 F.2d 82 (C.C.A.6)	Explains statutory purpose: to protect innocent persons unaware of the copyright.	Relied on to interpret the notice requirement reasonably—sufficient if it informs a person seeking the truth to avoid infringement.
Stecher Litho. Co. v. Dunston Litho. Co., D.C., 233 F. 601	Support for the purpose of notice provisions to prevent inadvertent infringement.	Used to reinforce the court's view that notice should be judged by whether it reasonably informs an observer.
Werckmeister v. Springer Litho. Co., C.C., 63 F. 808	Examples where proprietor name sufficed to give notice.	Cited in support of the conclusion that "Fleischer Studios" would lead a reasonably diligent person to the owner.
Scribner v. Henry G. Allen Co., C.C., 49 F. 854	Similar example of sufficiency of proprietor name in notice.	Applied to bolster the court's view that omission of "Inc." did not materially affect notice.
Record Guide Co. v. Bromley, C.C., 175 F. 156	Authority within the classification of printed literary or similar works.	Cited to show contrast with the present work; these cases required the year where the work fell within the printed literary classification.
West Pub. Co. v. Edward Thompson Pub. Co., C.C., 169 F. 833	Authority concerning printed literary works and notice year requirement.	Used to show those authorities were within printed literary classification and thus distinguishable.
Hoertel v. Raphael Tuck Sons Co., C.C., 94 F. 844	Another case within the printed literary/dramatic/musical category.	Referenced to demonstrate the kinds of works for which section 18 requires a year in the notice.
King Features Syndicate v. Fleischer, 229 F. 533 (C.C.A.2)	Holds that a three-dimensional reproduction of a two-dimensional picture may infringe the original drawing.	Applied directly to support that manufacturing a three-dimensional doll based on the two-dimensional cartoon is an actionable infringement.
Nutt v. National Institute, 31 F.2d 236 (C.C.A.2)	Supports that an ordinary observer recognizing the source indicates infringement.	Used to show that what appellants constructed was recognizable as taken from the copyrighted source.
Gerlach-Barklow Co. v. Morris Bendien, 23 F.2d 159 (C.C.A.)	Illustrates recognition by an ordinary observer as evidence of infringement.	Cited to support the court's finding that the dolls reproduced essential characteristics of the copyrighted character.
Gross v. Seligman, 212 F. 930 (C.C.A.2)	States that slight differences and variations will not serve as a defense to infringement.	Applied to reject the defense that minor differences in the dolls avoided infringement.

Court's Reasoning and Analysis

The court proceeded in a two-part analysis: (1) whether the notice on the dolls satisfied the statutory requirements; and (2) whether the dolls infringed the appellees' copyrighted cartoons.

On notice, the court reviewed the statutory text of sections 9 and 18 of the Copyright Law (17 U.S.C. §§ 9, 18), which prescribe that publication with notice is necessary and define the form of notice. Section 18 prescribes that the notice for a printed literary, musical, or dramatic work include the year of copyright. The appellants relied on the principle that copyright law is statutory and that strict compliance with notice requirements is necessary to preserve protection.

The court rejected the contention that omission of "Inc." from the proprietor's name was fatal. The opinion explained that the statutory requirement is satisfied if the proprietor is identified in a manner sufficient to disclose identity; omitting the corporate suffix did not disguise who the proprietor was. The court relied on precedents where abbreviated or partial names were held sufficient, and emphasized the statutory purpose of notice—to inform a reasonably diligent person who seeks to avoid infringement. Thus "Fleischer Studios" would lead a person to the owner and adequately serve as notice.

As to the absence of a year in the notice, the court examined section 18's language and concluded that the year is required only for printed literary, musical, or dramatic works. The court found the copyrighted material here—a book of cartoons consisting of unconnected poses without story or continuity—not to be a "printed literary" work within the meaning of section 18 and therefore not subject to the year requirement. The court distinguished prior authorities cited by the appellants as involving works that plainly fit within the printed literary or related classifications that do require a year in the notice.

On infringement, the court held that the manufacture of a three-dimensional doll which reproduces the distinctive features of a two-dimensional copyrighted cartoon can constitute infringement. The court found that the dolls reproduced the essential characteristics of the appellees' character: the broad baby face, large round flirting eyes, low-placed pouting mouth, small nose, imperceptible chin, and mature bosom. The opinion stated that an ordinary observer would recognize the dolls as taken from the copyrighted source, and that slight differences would not avoid infringement. Consequently, the court affirmed the District Court's decree finding infringement, upholding the injunction and the reference to a master for damages and profits.

Holding and Implications

Holding: Decree affirmed.

The Court of Appeals affirmed the District Court's decree finding copyright infringement. The injunction entered below remains in force, and the reference to a master for determination of damages and profits stands.

Implications: As applied here, (1) an omission of a corporate suffix such as "Inc." from the proprietor's name on a copyright notice does not automatically invalidate the notice when the proprietor's identity remains apparent; (2) the statutory requirement to include the year in the notice applies to printed literary, musical, or dramatic works, and was held not to apply to this book of disconnected cartoons; and (3) producing a three-dimensional doll that reproduces the distinctive, essential characteristics of a copyrighted two-dimensional character constitutes infringement, and small variations will not necessarily avoid liability. The opinion did not announce a broader new rule beyond these applications to the facts before the court.

Panel: Before Judges Manton, Learned Hand, and Swan. Decision authored by Judge Manton. Counsel for appellants and appellees are recorded in the opinion.

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FLEISCHER STUDIOS, Inc., et al. v. RALPH A. FREUNDLICH, Inc., et al.

MANTON, Circuit Judge.

A decree for copyright infringement was entered below, together with an injunction and reference to a master for the purpose of establishing damages and profits. Infringement resulted from the manufacture by the appellants of dolls copying the appellees' copyrighted book of cartoons, picturing a character called "Betty Boop," which had been popularized on the motion picture screen. The copyright, the complaint alleges, is for a series of original unpublished cartoons in various poses and expressions of a certain female character having a unique and original face, pouting in baby fashion.

Fleischer Studios, Inc., obtained the copyright for this book on July 29, 1931, and it granted to Fleischer Art Service, Inc., an exclusive right to make and publish throughout the world under this copyright copies of prints and reprints, forms, versions, alterations of the work, depicted in copyright, in the form of toys, figures, dolls, statutes, models, and playthings in three dimensional objects. Fleischer Art Service, Inc., later granted to Joseph P. Kallus the exclusive right to make and distribute under the copyright for five years copies thereof, in the form of toys and dolls. He did so, distributing thousands of them.

Appellants deny infringement, and argue that the copyright is invalid because the appellees published copies of the copyrighted work without complying with sections 9 and 18 of the Copyright Law (USCA title 17, §§ 9 and 18). This alleged invalidity presents the question of the sufficiency of notice as required by the statute (USCA title 17, § 9). Any person entitled thereto may secure a copyright for his work by publication thereof with notice of copyright as required by the act. The 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 21 of this title." Section 18 provides that the notice required by section 9 "shall consist either of the word `Copyright' or the abbreviation `Copr.,' accompanied by the name of the copyright proprietor, and if the work be a printed literary, musical, or dramatic work, the notice shall include also the year in which the copyright was secured by publication."

The appellant argues that the notice, in the form of "Betty Boop des. and copyrighted by Fleischer Studios," which was placed upon the front of the doll's skirt, was insufficient to comply with the statute, and that each appellee assumed direct responsibility for the form of the notice so affixed to the appellees' doll. The notice is claimed to be insufficient, in that it fails to use the correct name, Fleischer Studios, Inc., instead of Fleischer Studios, and omits the year of the grant of the copyright. The argument proceeds that the law of copyright is statutory and demands strict compliance with the requirements of notice if the copyright is to receive protection under the statute. Caliga v. Inter Ocean Newspaper Co., 215 U.S. 182, 30 S. Ct. 38, 54 L. Ed. 150; American Tobacco Co. v. Werckmeister, 207 U.S. 284, 28 S. Ct. 72, 52 L. Ed. 208, 12 Ann. Cas. 595. The provisions of the statute, as to notice, must be complied with in making and selling a copyrighted article, or otherwise there is a dedication to the public and the copyright protection is lost. "Publication with notice of copyright is the essence of compliance with the statute, and publication without such notice amounts to a dedication to the public sufficient to defeat all subsequent efforts at copyright protection." Universal Film Mfg. Co. v. Copperman (D.C.) 212 F. 301, 302, affirmed (C.C.A.) 218 F. 577. See Mifflin v. R.H. White Co., 190 U.S. 260, 23 S. Ct. 769, 47 L. Ed. 1040; Thompson v. Hubbard, 131 U.S. 123, 9 S. Ct. 710, 33 L. Ed. 76; Haas v. Leo Feist, Inc. (D.C.) 234 F. 105.

However, failure to add "Inc." to the name Fleischer Studios was not fatal to the notice as to the proprietor of the copyright. The omission in no way disguised the identity of the party who had registered the copyright. The notice as given disclosed the identity of the proprietor. It is no different from instances where the copyright is taken out in the full name of the owner and the notice on copies included only the surname or some abbreviation. Such notices have been held sufficient. Burrow-Giles Litho. Co. v. Sarony, 111 U.S. 53, 4 S. Ct. 279, 28 L. Ed. 349; Woodman v. Lydiard-Peterson Co. (C.C.) 192 F. 67. The purpose of the statute's requirement as to notice is to prevent innocent persons who are unaware of the existence of the copyright from suffering for making use of the copyrighted article. W.H. Anderson v. Baldwin Law Pub. Co., 27 F.2d 82 (C.C.A. 6); Stecher Litho. Co. v. Dunston Litho. Co. (D.C.) 233 F. 601. A reasonable construction of the statutory requirement shows that the name of the copyright proprietor, is sufficient in form, if it gives notice of copyright to one who is looking for the truth and who desires to avoid infringement. This name, "Fleischer Studios," would lead such a person to the owner and would sufficiently aid in tracing his title if need be. Werckmeister v. Springer Litho. Co. (C.C.) 63 F. 808; Scribner v. Henry G. Allen Co. (C.C.) 49 F. 854. No one would have been better forewarned or informed by adding the word "Inc." to the corporate name of Fleischer Studios. Certainly there was enough notice given thereby to guard against infringement.

As to the notice of date required by the statute, section 18 of the Copyright Law (17 USCA § 18) provides that the year in which the copyright was secured by publication shall be inserted in the notice if it be a printed literary, musical, or dramatic work. This section does not require notice of the year in other copyrightable articles. What was copyrighted here did not come within the statutory classification. The cartoon characters displayed in bound leaf form constitute neither a printed literary, musical, nor dramatic work. To say that the appellees' article is a book and as such is a literary work would be incorrect. The copyright of April 29, 1802 (chapter 36, 2 Stat. 171), specifically mentioned a book. Section 18 of the present law does not. USCA title 17, § 18. A book is one of the classifications of the present law and is copyrightable as such. USCA title 17, § 5(a). This book of cartoons depicting a series of unconnected poses is without story or continuity, and may not be said to be a printed literary work as referred to in section 18.

The authorities to which appellant refers us (Thompson v. Hubbard, 131 U.S. 123, 9 S. Ct. 710, 33 L. Ed. 76; Mifflin v. R.H. White Co., 190 U.S. 260, 23 S. Ct. 769, 47 L. Ed. 1040; Record Guide Co. v. Bromley (C.C.) 175 F. 156; West Pub. Co. v. Edward Thompson Pub. Co. (C.C.) 169 F. 833; Hoertel v. Raphael Tuck Sons Co. (C.C.) 94 F. 844) were clearly within the classification of printed literary, dramatic, or musical work. No notice of the year in which copyright was secured was therefore required, under the statute, for this copyrighted article or work, since it is not specified in section 18. Congress apparently did not intend to require a date of copyright for other classifications, such as drawings or works of art, for otherwise we should find that requirement within the statute.

The infringement charged was a reproduction of the Betty Boop cartoon in manufacturing a doll. This, a three-dimensional form of doll, is an infringement of the two-dimensional picture or drawing. King Features Syndicate v. Fleischer, 229 F. 533 (C.C.A. 2). What the appellant constructed is recognizable by an ordinary observer as having been taken from the copyrighted source. Such is an infringement. Nutt v. National Institute, 31 F.2d 236 (C.C.A. 2); Gerlach-Barklow Co. v. Morris Bendien (C.C.A.) 23 F.2d 159. The essential characteristics of appellees' copyrighted character are reproduced. There is the broad baby face, the large round flirting eyes, the lowplaced pouting mouth, the small nose, the imperceptible chin, and the mature bosom. As the late and learned Judge Coleman who granted a preliminary injunction to the appellee stated: "It was a unique combination of infancy and maturity, innocence and sophistication" as depicted. Slight difference and variations will not serve as a defense. Gross v. Seligman, 212 F. 930 (C.C.A. 2). There is infringement, and the decree below must stand.

Decree affirmed.

FLEISCHER STUDIOS v. RALPH A. FREUNDLICH, INC