holding that it was error for the district court to dismiss plaintiff’s complaint for lack of jurisdiction under the Copyright Act, which provided that no infringement action “shall be maintained” until the work is registered, when the plaintiff registered the work subsequent to the filing of its complaint, and a pretrial conference order evidenced that the court treated the complaint as supplemented
How later courts described this case
- holding that it was error for the district court to dismiss plaintiff’s complaint for lack of jurisdiction under the Copyright Act, which provided that no infringement action “shall be maintained” until the work is registered, when the plaintiff registered the work subsequent to the filing of its complaint, and a pretrial conference order evidenced that the court treated the complaint as supplemented
- holding that each of plaintiffs greeting cards, considered as a whole, represented a tangible expression of an idea that was, in totality, created by plaintiff and copyrightable, even though the textual matter of each card, considered apart from its arrangement and artistic representations, was not original to plaintiff
- holding that, although the textual components of a greeting card were not copyrightable, “proper analysis of the problem requires that all elements of each card, including text, arrangement of text, art work, and association between art work and text, be considered as a whole”
- holding that under the 1909 Act, a plaintiff could maintain his action the day he fully complied with the registration requirements by mailing in a revised application, and that the revised application’s filing date related back to the original application
Written by the judges who cited it.
The opinion
KILKENNY, Circuit Judge
(dissenting).
The majority agrees with a specific finding of the lower court that the words on the cards are not the subject of copyright. By strong implication, it likewise accepts the finding of the trial court that the art work on the cards, although subject to copyright, was not infringed. Thus far, I agree.
I cannot, however, follow the logic of the majority in holding that the uneopyrightable words and the imitated, but not copied art work, constitutes such total composition as to be subject to protection under the copyright laws. The majority concludes that in the overall arrangement of the text, the art work and the association of the art work to the text, the cards were copyrightable and the copyright infringed. This conclusion, as I view it, results in the whole becoming substantially greater than the sum total of its parts. With this conclusion, of course, I cannot agree.
The majority relies principally on Detective Comics, Inc. v. Bruns Publications, Inc., 111 F.2d 432 (2d Cir. 1940). This case, as I read it, does not even intimate that the whole can exceed the sum total of its parts. It involved an intimation of the “Superman” image by a rival company. In finding infringement, the “Superman” court emphasized that “So far as the pictorial representations and verbal descriptions of ‘Superman’ are not a mere delineation of a benevolent Hercules, but embody an arrangement of incidents and literary expressions original with the author, they are proper subjects of copyright and susceptible of infringement because of the monopoly afforded by the Act.” p. 433 (Emphasis added.) Moreover, the “Superman” case involved the creation of a character, a written dialogue and description which were clearly protected by copyright law in much the same way that a dialogue and description found in a novel is protected. The district court 1 in the “Superman” case found that both the art work and the text materials were copyrightable and that each was infringed. In the case before us, the findings of the trial judge are in direct opposition to appellant’s contentions. The language of the district court in “Superman” is worthy of note: “Short of ‘Chinese copies’ of the plaintiff’s ‘Superman’ strip, the defendant could hardly have gone further than it has done.” P. 400. The challenged cards before us, I submit, in no way resemble “Chinese copies” of appellant’s material. Other cases cited by the majority are no more in point than Detective Comics.
Aside from the above, I call attention to the fact that a number of experts appeared in the lower court and testified that the phrases on the cards were in common use and that Roth’s writer often obtained his ideas from others. In these circumstances, we should not set aside the findings of the lower court. Williams v. Kaag Manufacturers, Inc., 338 F.2d 949 (9th Cir. 1964). Beyond that, ordinary phraseology within the public domain is not copyrightable. Dorsey v. Old Surety Life Insurance Co., 98 F.2d 872 (10th Cir. 1938); American Code Co. v. Bensinger, 282 F. 829 (2d Cir. 1922).
Feeling, as I do, that the copyright act is a grant of limited monopoly to the authors of creative literature and art, I *1112 do not think that we should extend a 56-year monopoly in a situation where neither infringement of text, nor infringement of art work can be found. On these facts, we should adhere to our historic philosophy requiring freedom of competition. I would affirm.
. Detective Comics, Inc. v. Bruns Publications, Inc-., 28 F.Supp. 399, 400 (D.N.Y.1939).