Alva Studio Vs Winninger

177 F. Supp.
265 (1959) The complaint further alleges that:

ALVA STUDIOS, INC., Plaintiff, v. Robert
WINNINGER, doing business as Wynn's "Prior to December 12, 1958 plaintiff caused to
Warehouse, and Austin Productions, Inc., be created by its officers and employees a
Defendants. reproduction of a certain three-dimensional
work of art approximately 18½ inches in height,
United States District Court S. D. New York. which it designated `Hand of God'."
October 16, 1959.
The plaintiff's product is not an exact replica,
*266 Paskus, Gordon & Hyman, New York City, however, in that the original work has been
for plaintiff. reduced in size by the plaintiff. Describing the
originality of the work in suit, plaintiff avers that
Jacob S. Linett, New York City, for defendants.
"Rodin's `Hand of God' is one of the most
RYAN, Chief Judge. intricate pieces of sculpture ever created.
Innumerable planes, lines and geometric
Plaintiff in this suit for copyright infringement patterns are all interdependent in this
moves for an injunction pendente lite. multidimensional work. In reduction they all
have to be carried over with supreme exactness
Plaintiff is a New York corporation and has its into smaller scale."
studios and offices in New York City. It
reproduces three-dimensional works of art, the It is in the successful accomplishment of this
originals of which are owned by various reduction in size that plaintiff claims, with
museums throughout the United States and apparent support, that the originality and validity
several foreign countries. Plaintiff is authorized of the copyright of his work rests. It takes "an
by these museums to reproduce these works of extremely skilled sculptor" many hours working
art and pays royalties to them for this privilege. directly in front of the original. If there is a small
Plaintiff works in collaboration with the museum discrepancy in any part of the work of this
which owns the particular work being reduction, the "overall appearance would be
reproduced, and the curatorial staff of each such altered."
museum exercises close control over the quality
and detail of a scaled reproduction of its A certificate of registration of copyright claim in
sculpture works. a reproduction of Auguste Rodin's sculpture,
"The Hand of God", issued to the plaintiff on
Defendant Winninger sells decorative April 17, 1959. The "replica"plaintiff's
accessories under the trade name of Wynn's copyrighted workis unquestionably based upon
Warehouse. Defendant Austin Productions is a the Rodin sculpture in bronze, which is owned
New York corporation, engaged in the business by the Department of Fine Arts of the Carnegie
of manufacturing and selling decorative Institute.
accessories.
Plaintiff claims that defendant Austin infringed
The plaintiff alleges of its works in its complaint plaintiff's copyright by copying its work and
that: marketing products embodying this copying
through the retail *267 operations of defendant
"These reproductions are made through the Winninger. Defendant Austin, however, claims
use of special techniques, skills and judgment that the piece it marketed was its own original
developed by plaintiff and are hand finished to interpretation and representation of the Rodin
duplicate as closely as possible the exact sculpture which is currently on exhibit at the
shape, patina, color and texture of the original." Metropolitan Museum of Art in New York City.
1
It is undisputed that the Metropolitan and the museum of the person which owns the
Carnegie sculptures were in the public domain original work. Plaintiff alone is granted access to
for some time prior to plaintiff's copyright. these original works and to make reductions
Rodin's "Hand of God" was first placed on public directly from them in spite of their value and on
exhibit at the New Gallery in London, England, many occasions, their delicacy, because of its
in 1905. The sculptor died on November 17, reputation, skill, care and unique secret
1917. processes which do no harm to such original
works."
It is hornbook that a new and original plan or
combination of existing materials in the public We find that the granting of approval by the
domain is sufficiently original to come within the Carnegie Institute's Department of Fine Arts,
copyright protection (Allegrini v. De Angelis, experts in the field, to be extremely persuasive
D.C., 59 F. Supp. 248, at page 250). However, that the plaintiff's copyrighted work is in itself a
to be entitled to copyright, the work must be work of art which bears the stamp of originality
original in the sense that the author has created and of skill.
it by his own skill, labor and judgment without
directly copying or evasively imitating the work Plaintiff has established that it has a valid
of another (Hoffman v. Le Traunik, D.C., 209 F. copyright in its work.
375). The plaintiff has the burden of establishing
these elements when demanding the We have then to determine whether the
preliminary injunction (ibid. at page 379). evidence of infringement is sufficient to support
the granting of injunctive relief.
Plaintiff has sustained this burden. Its
copyrighted work embodies and resulted from The test as to infringement of copyright is not
its skill and originality in producing an accurate the test of mere likeness, but the work claimed
scale reproduction of the original. In a work of to constitute the infringement must be a copy,
sculpture, this reduction requires far more than more or less servile, of the copyrighted work,
an abridgement of a written classic; great skill and not an original treatment of a subject open
and originality is called for when one seeks to alike to treatment by the copyright holder and
produce a scale reduction of a great work with others (Pellegrini v. Allegrini, D.C., 2 F.2d 610,
exactitude. at page 612).
It is undisputed that the original sculpture owned Where the principal elements of design of
by the Carnegie Institue is 37 inches and that plaintiff's copyrighted work and of defendant's
plaintiff's copyrighted work is 18½ inches. allegedly infringing article are taken, as a
common source, from an object in the public
The originality and distinction between the domain, mere resemblance will not justify a
plaintiff's work and the original also lies in the finding of infringement (Allegrini v. De Angelis,
treatment of the rear side of the base. The rear supra). Publication of identical works cannot be
side of the original base is open; that of the enjoined if it is the result of independent
plaintiff's work is closed. We find that this research (Aero Sales Co. v. Columbia Steel Co.,
difference when coupled with the skilled scaled D.C., 119 F.Supp. 693).
sculpture is itself creative.
*268 One work does not violate the copyright in
Alfred Wolkenberg, president of the plaintiff another simply because there is a similarity
corporation, states in his supporting affidavit between the two, if the similarity between the
that: two results from the fact that both deal with the
same subject or have the same source
"The quality of its reproductions are constantly (Affiliated Enterprises, Inc. v. Gruber, 1 Cir., 86
subject to the approval of the curatorial staffs of
2
F.2d 958, at page 961; Dorsey v. Old Surety Life actually copied the plaintiff's work (Caldwell-
Ins. Co., 10 Cir., 98 F.2d 872, 119 A.L.R. 1250). Clements, Inc. v. Cowan Publishing Corp., D.C.,
130 F.Supp. 326). Here there is convincing
Since both the Carnegie and Metropolitan works credible evidence to establish actual copying.
are in the public domain (and defendant Austin
claims that its piece is based upon the latter), We have carefully examined the exhibits
any mere copying from the Carnegie work is not presented in this motion and the photographs of
violative of plaintiff's copyright. the original Rodin sculptures. We are persuaded
by this examination and by the affidavit of Hugo
The privilege given to plaintiff by its agreement Robus, sculptor, submitted by the plaintiff that
with Carnegie was the complete access to the the defendant's product is a copy of plaintiff's
original and the use of the name of the Institute. work and that its copyright has been infringed.
We are also persuaded that plaintiff's work was
Plaintiff alleges in paragraph 16 of its complaint copied by sandpapering and smoothing down
that: many of the surfaces of plaintiff's work, slicing
off approximately 2 inches at the bottom of the
"* * * defendants have made and sold their base to reduce it to a 16 inch height, and then
aforesaid infringing copies of plaintiff's said etching in several features which had been
copyrighted work of art with the intent and rendered indistinct because of the sanding and
purpose of passing off their said copies as and smoothing; exactly as plaintiff alleges.
for plaintiff's authorized reproduction, and said
passing off has occurred and will continue to Defendant's, Austin Productions, Inc., unverified
occur unless enjoined by this Court." financial statement, as of June 30, 1959, affords
no assurance that it will be financially able to
However, the defendants have been advertising respond in damages in the event of plaintiff's
their marketed article as produced from the work probable success in this suit. We have no
on display at the Metropolitan, thereby incurring evidence of the defendant Winninger's worth.
the disfavor of that institution. We find that unless relief is granted plaintiff until
final judgment, it will sustain irreparable harm
To the underside of the pedestal of its sculpture, and damage.
the plaintiff has affixed a gold label bearing the
following legend: We conclude that plaintiff is entitled to the
injunctive relief now sought; let an order so
"Authentic copyrighted reproduction made from providing be settled on 5 days' notice.
the original at the Carnegie Institute Department
of Fine ArtsDetroit, Mich. By Alva Studios, Inc.
New York."
There is no allegation that the defendants have

employed such a label. In fact, the specimen of
the defendant's article, which was submitted by
the plaintiff for our examination, bears no label
or authentication of any sort. It is evident that the
defendant has not trespassed on the right the
plaintiff enjoys to the exclusion of the defendant
by the use of the name of the Carnegie Institute.
But, the availability to a defendant of other

"common sources" is not a defense to an action
for copyright infringement if the defendant
3

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177 F. Supp.

265 (1959) The complaint further alleges that:

There is no allegation that the defendants have

But, the availability to a defendant of other

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