This is the old version of the H2O platform and is now read-only. This means you can view content but cannot create content. You can access the new platform at https://opencasebook.org. Thank you.
205 U.S.P.Q. 1177 (1979)
No. 79 Civ. 3786(PNL)
United States District Court, S.D. New York.
Dated August 3, 1979
This is an action for copyright and trademark infringement and unfair competition. The complaint was filed and plaintiff proceeded immediately by order to show cause to move for preliminary injunctive relief. Plaintiff and defendant Crazy Eddie, Inc. a/k/a U.L.S., Inc., were represented at a hearing on this motion held on July 31, 1979, at which the court viewed evidence and heard argument. Most of the material facts are undisputed. Plaintiff is the holder of numerous copyright registrations centering on the famous fictional character "Superman," including printed comic books and filmed television productions, one series involving live actors (the George Reeves productions), and another involving animated cartoon characters. One of the two television series is currently being broadcast over local channels. The court viewed videotape copies of two "trailers" each of which is part of a particular copyrighted production in one of the televised series. The "trailers" are shown repeatedly in connection with each production in the series.
Defendant Crazy Eddie Inc. ("defendant") has produced and broadcast on local television channels a filmed advertisement for his "home entertainment" business (apparently consisting primarily of the sale of consumer electronic equipment) which plaintiff alleges infringes its protected uses. The court viewed a copy of this advertisement as well as copies of the two copyrighted trailers described above.
Defendant does not dispute the ownership and validity of plaintiff's copyrights. Defendant makes two arguments. First, it contends that its commercial does not infringe on plaintiff's protected uses (a) because there are significant variations between plaintiff's and defendant's material or (b) because defendant's material is a parody which is accorded greater license under the copyright laws. Second, it argues that even if its commercial does infringe, the infringement is one for which injunctive relief is unnecessary and inappropriate.
Having viewed the materials, I have not the slightest doubt that nearly every aspect of defendant's commercial represents a detailed copying of the plaintiff's trailers viewed in court, the only variation occurring when defendant's name and business purpose is substituted for the Superman character's name and purpose. Defendant's advertisement captures both the "total concept and feel" Roth Greeting Cards v. United Card Co., 429 F.2d 1106, 1110 (9th Cir. 1970), quoted in Sid and Marty Krofft Television v. McDonald's Corp.562 F.2d 1157, 1167 (9th Cir. 1977) and the characteristic detail or particularized expression, see Nichols v. Universal Pictures Corp.,45 F.2d 119, 121 (2d Cir. 1930) (L. Hand, J.), of the "Superman" trailers. The average lay observer would instantly identify the defendant's commercial with the copyrighted material.
Recognizing the validity of the proposition that parody is entitled to greater freedom than other uses, see Berlin v. E.C. Publications, Inc., 329 F.2d 541 (2d Cir. 1964), I find that defendant's commercial is not parody. This is not a case of fair use, but one of unjustifiable appropriation of copyrighted material for personal profit. See Hearings on Bills for the General Revision of the Copyright Law Before the House Comm. on the Judiciary, 89th Cong. 1st Sess., ser. 8, pt. 3 at 1706 (1966) (Statement of John Schulman), quoted in Wainwright Securities, Inc. v. Wall Street Transcript Corporation, 558 F.2d 91, 94 (2d Cir. 1977).
Preliminary injunctive relief is virtually axiomatic upon a prima facie showing of copyright infringement. Novelty Textile Mills v. Joan Fabrics Corp., 558 F.2d 1090, 1094 (2d Cir. 1977), and cases cited therein.
Plaintiff presents no special facts which would justify withholding of such relief in this instance. Defendants claim, and plaintiffs concede, that plaintiff had approached the defendant with a view to a possible licensing of the use of the "Superman" character, and that plaintiff has, on other occasions, licensed the use of Superman to promote the sale of consumer goods. Defendant, therefore, argues that the amount of the damage, if any, can be easily ascertained by reference to the cost of a license and that where money damages can be computed, equitable relief is inappropriate. Plaintiff responds that although it has licensed and remains willing to license the use of its character it would never consent to defendant's commercial and that a license would be granted only for the use of the "Superman" character as developed and approved by it. Plaintiff alleges that the broadcasting of defendant's commercial will irreparably impair the value for licensing purposes or otherwise of the character's protected features. Such injury "cannot readily be reduced to monetary terms," see Encyclopaedia Britannica Educational Corporation v. C.N. Crooks, 447 F.Supp 243, 247-48 (W.D.N.Y. 1978).
I find that defendant's commercial represents a "substantial taking", infringing on plaintiff's copyrighted television productions.
Accordingly, plaintiff's motion for a preliminary injunction is granted. Settle orders containing a form of injunction on security of $1,000.
June 03, 2015
205 USPQ2d 1177
No. 79 Civ. 3786(PNL)
United States District Court, S.D. New York
H2O Case Admin.
This is the old version of the H2O platform and is now read-only. This means you can view content but cannot create content. If you would like access to the new version of the H2O platform and have not already been contacted by a member of our team, please contact us at firstname.lastname@example.org. Thank you.