Opposition — National Wildlife Art Exchange, Inc. v. Franklin Mint Corp.

. | 1978

Supreme Court of the a Seton JR., CLERK

|

October Term, 1977

No.___%7 "1710

NATICNAL WILDLIFE ART EXCHANGE, INC.,

AND RALPH H. STEWART,

Petitioners,

VS.

FRANKLIN MINT CORPORATION,

Respondent.

BRIEF IN OPPOSITION TO PETITION FOR

A WRIT OF CERTIORARI

To the United States Court of Appeals

For the Third Circuit

ARTHUR H. SEIDEL

ROBERTA L. JACOBS

SEIDEL, GONDA & GOLDHAMMER, P.C.

600 Three Penn Center Plaza

Philadelphia, Penna. 19102

Counsel for Respondent

Of Counsel:

R. E. LAPorTE

Franklin Mint Corporation

Franklin Center, Penna. 19091

TABLE OF CONTENTS

Page

i: Ne Ba nice, “ehewnee 1

II. Questions Presented for Review ........... 2

es: OP GN cocnduweessdseccntnss 3

IV. Summary of Argument ...........ccesceees 6

V. Argument — Reasons for Denying the Writ 7

i IK: ic cGcnduheherkeceshaesondadaneee 10

CGO GE UNTER oc ccc cccccccceccsccnss 10

TABLE OF CITATIONS

Cases

Alfred Bell & Co. v. Catalda Fine Arts, 191 F.2d

i eas i)

Baker v. Selden, 101 U.S. 99, 102-103 (1879) ... 8

Esquire v. Varga Enterprises, 81 F. Supp. 306(N.D.

Ill., 1948), affirmed on this point, 185 F.2d 14

es SEE ba ota dubaeuanssdecdnenownouue 8,9

Goodyear Tire & Rubber Co., Inc. v. Ray-O-Vac

Co., 321 U.S. 275, 278 (1944) ...........005. 7

Gross v. Seligman, 212 F. 930 (2d Cir., 1914) ... 8,9

Mazer v. Stein, 347 U.S. 201, 217-218 (1954) ...6,9

Neil v. Biggers, 409 U.S. 188, 202 (1972) ....... 7

Rosen v. Loew’s, 162 F.2d 785, 788 (2d Cir.,

dete cbc duals eeiia shane baseuehanseume 6

United States v. Yellow Cab Co., 338 U.S. 338,

TN ne 7

TABLE OF CITATIONS Continued)

Cases: Page

Universal Athletic Sales Co. v. Salkeld, 511 F.2d

904, 907 (3d Cir. 1975), cert. denied sub nom.

Universal Athletic Sales Co. v. Pinchock, 423

U.S. 863 (1975)... ccc cece e eee cece eeeeeeeees 6, 8

Williams v. Kaag Manufacturers, Inc., 338 F.2d

949 (Oth Cir., 1964) ........ cece eee eee eens 8,9

Zenith Radio Corp. v. Hazeltine Research, 395

U.S. 100, 122-123 (1969) .....- cece eee eeeeees 7

Statutes:

17 U.S.C. §101

17 U.S.C. §102(b)

Supreme Court of the United States

October Term, 1977

No.

NATIONAL WILDLIFE ART EXCHANGE, INC.,

AND RALPH H. STEWART,

Petitioners,

vs.

FRANKLIN MINT CORPORATION,

Respondent.

BRIEF IN OPPOSITION TO PETITION FOR

A WRIT OF CERTIORARI

To the United States Court of Appeals

For the Third Circuit

RELEVANT STATUTES

The Petition for a Writ of Certiorari contains at

page 2 the provision of the Copyright Act of 1909,

which relates to the subject case, 17 U.S.C. §101.

The relevant provision of the Copyright Act of

1976' which relates to the subject case is:

17 U.S.C. §102(b):

In no case does copyright protection for an orig-

inal work of authorship extend to any idea, proce-

dure, process, system, method of operation, con-

cept, principal or discovery, regardless of the form

in which it is described, explained, illustrated or

embodied in such work.

1. The Copyright Act of 1976 became effective January 1,

1978, subsequent to the trial of the case at bar which occurred in

January 1977.

2

QUESTIONS PRESENTED FOR REVIEW

1. Whether the findings of fact of the District

Court for the Eastern District of Pennsylvania and the

Court of Appeals for the Third Circuit, without dissent,

that Albert Earl Gilbert (hereinafter “Gilbert”’) did not

copy “Cardinals on Apple Blossom” in creating ‘The

Cardinal” and that “The Cardinal” is not substantially

similar to “Cardinals on Apple Blossom” are clearly

erroneous.’

2. Whether this Court should disturb the findings

of fact based on the credibility of Gilbert and of other

witnesses observed by the District Judge during a

nine-day bench trial.

2. Appended for the Court’s information are color reproduc-

tions of the two works at issue and the work denominated “The

New Cardinal”. These reproductions more adequately depict the

works than black and white out-of-focus reproductions ap-

pended to the. tion For a Writ of Certiorari.

3

STATEMENT OF THE CASE

Gilbert is one of the foremost young ornithological

artists (R 285, 1299-1300, 1437, 1458).

Ornithological artists generally work in the same

manner, from field sketches, specimens and photo-

graphs accumulated in the course of a career (R 275-

276, 281, 840, 1301). They return to source material

previously used for many reasons, including the need

to present detail accurately, the need to compensate for

seasonal and geographical absence of the subject in

nature (R 282-283, 843-845, 851, 889-890, 1314-1315);

and the need to return to themes not fully explored or

not developed in a satisfactory manner (R 282-283,

285).

Ornithological art follows certain conventions (R

327-328, 1305, 1458). Among these are ornithological

accuracy, portrayal of the subject in a characteristic

setting and pose, and the representation of individuals

of different ages or sexes to show differences within a

single species (R 135-136, 321-322, 850). By way of

example, because birds are symmetrical on each side,

they are normally portrayed in profile except for owls,

which are normally portrayed full face (R 307, 848-849,

1307, 1332-1333). These conventions apply to decora-

tive as well as to illustrative works (R 385, 859-860,

1171).

Adoption of a characteristic or conventional pose

will give very different works of art a superficial simi-

larity without copying or improper appropriation (R

1332-1334, 1336-1338).

There are only a limited number of ways in which

one Can portray passerines, such as the cardinal (R

325-327). A cardinal accurately portrayed will of

necessity closely resemble any other similarly posi-

tioned cardinal accurately portrayed.

3. Citations preceded by “R” are citations to the Appendices

filed in Appeal Nos. 77-1525; 1526; and 1527.

4

Gilbert created “Cardinals on Apple Blossom” from

a series of field sketches, slides and stuffed specimens

developed into working sketches (R 1101-1119). He

created “The Cardinal” using some of this source ma-

terial, and further working sketches, photographs, and

slides taken subsequent to completion of “Cardinals on

Apple Blossom” (R 1101-1153, 1181, 1203, 1245-1261).

“The Cardinal” is not a copy of “Cardinals on Apple

Blossom”, but a variation of the same theme. Artists,

including ornithological artists, often create variations

of themes they have treated previously (R 1311-1312,

1317-1319, 1324-1328, 1457). Such variations are not

copies but new, independent expressions about the

same subject. As ornithological artist Eckelberry

stated:

“The intent is to make a variation on a theme.

The intent is not to duplicate or replicate, the in-

tent is to somehow adjust the elements to a more

satisfactory conclusion.” (R 287)

The statement of the case submitted on behalf of

National Wildlife Art Exchange, Inc. (hereinafter “Na-

tional”) and Ralph H. Stewart (hereinafter “Stewart’’)

not only ignores these salient facts but contains

numerous misstatements of the record of varying de-

grees of importance.‘ For example, it is alleged at page

4 of the Petition for a Writ of Certiorari (hereinafter

“the Petition”) that Franklin Mint Corporation

(hereinafter “Franklin”) was shown only a print of Na-

tional’s painting for “The Cardinal”. No citation to the

record supports this statement because there is no

statement in the record which supports the statement.

On the contrary, the record refutes the statement.

Franklin was initially shown “Cardinals on Apple

Blossom” in addition to many other works of Gilbert at

4. Undoubtedly, the reason why National and Steward did not

comply with Rule 40 of this Court, and cite to the record, was to

hinder the ready exposure of such misstatements.

S

the time Gilbert entered into a contractual relationship

with Franklin (R 649). At the time Gilbert was creating

“The Cardinal”, Franklin was shown not “Cardinals on

Apple Blossom”, but a watercolor painting prepared by

Gilbert specifically for use by Yves Beaujard, the en-

graver assigned by Franklin to work with Gilbert on

“The Cardinal” and other works, and possibly a small

pencil sketch designed to show the compositional rela-

tionship between ‘“‘The Cardinal” and “The Blue Jay”

(R 674-677).°5

5. In similar fashion, the Petition misstates Gilbert's technique

in the creation of “The Cardinal”. Page 5 of the Petition asserts that

there was no final working sketch for “The Cardinal”, the implica-

tion being that Gilbert used the final working sketch from “Cardi-

nals on Apple Blossom” for that purpose. However, as Gilbert tes-

tified, there were two final working sketches for “The Cardinal”

created specifically for “The Cardinal” from material previously

collected and created by Gilbert, and from new sketches, photo-

graphs and slides taken subsequent to the completion of “Cardinals

on Apple Blossom” (R 1103-1153, 1181, 1203).

The opinion of the District Court as well as the record is misrep-

resented in the Petition. Page 5 of the Petition asserts that the

District Court did not pass on the question of substantial similarity

to an ordinary lay observer. To the contrary, the District Judge,

himself an ordinary lay observer, found:

“I am of the opinion that, although there are similarities

between ‘Cardinals on Apple Blossom’ and ‘The Cardinal’, the

latter is a variation on a theme found in nature and is not a copy -

of the former. The absence of the large yellow butterfly in ‘The

Cardinal’ negates any striking similarity.” (A 31)

Page 6 of the Petition asserts that a cardinal painting by

Ruthven is “the closest cardinal painting by other artists”. Whether

one of 22 reproductions of cardinals is more like “Cardinals on

Apple Blossom” than “The Cardinal” is irrelevant to the question at

issue, whether Gilbert copied “Cardinals on Apple Blossom” to

create “The Cardinal” and whether “The Cardinal” is substantially

similar to “Cardinals on Apple Blossom” in expression. However,

there were introduced into evidence depictions of cardinals bearing

far closer similarity to “The Cardinal” and “Cardinals on Apple

Blossom”, than Ruthven’s painting. See, particularly, the works of

O'Neill, FX 471 at R 1350 and Gronner, FX 82 at R 1346.

Similarities among paintings of cardinals are to be expected, be-

= cardinals are living creatures which closely resemble each

other.

6

SUMMARY OF ARGUMENT

Whether Gilbert copied “Cardinals on Apple Blos-

som” to create “The Cardinal” is a pure question of

fact.

This fact question was resolved in the negative by

the District Court after a nine-day bench trial (Finding

54 at A22*). The District Court, in finding that Gilbert

had not copied “Cardinals on Apple Blossom” had the

opportunity to listen to and question the witnesses pre-

sented by the parties and found Gilbert’s testimony to

be credible (A 31-32).’

The Court of Appeals, on review, without dissent,

concluded that the District Court did not err in finding

that there was no copying (A 12).

Whether “The Cardinal” is substantially similar to

“Cardinals on Apple Blossom” is also a pure question of

fact.

This fact question of substantial similarity was re-

solved in favor of Gilbert and Franklin by both the Dis-

trict Court and the Court of Appeals (A 31, 12).

There is here no dispute as to the relevant legal

principles to be applied. There is no dispute that, to

prevail on a claim of copyright infringement, the plain-

tiff must first establish copying and then substantial

similarity (A 10), Rosen v. Loew’s, 162 F.2d 785, 788

(2d Cir., 1947); Universal Athletic Sales Co. v. Sal-

keld, 511 F.2d 904, 907 (3d Cir. 1975), cert. denied sub

nom. Universal Athletic Sales Co. v. Pinchock, 423

U.S. 863 (1975). Since ideas, concepts or themes are

not subject to copyright protection, Mazer v. Stein, 347

U.S. 201, 217-218 (1954); 17 U.S.C. 102(b), the sub-

stantial similarity must be in the expression of such

ideas, concepts or themes.

6. Citations preceded by “A” are citations to the Appendix to

the Petition.

7. The Court of Appeals rightly noted that “credibility determi-

nations are uniquely the province of the fact-finder’”’. (A 12).

7

ARGUMENT — REASONS FOR DENYING THE WRIT

F.R.C.P. 52(a) provides that “findings of fact shall

not be set aside unless clearly erroneous .. .”.

This Court follows the “clearly erroneous” re-

quirement, United States v. Yellow Cab Co., 338 U.S.

338, 341-342 (1949); Zenith Radio Corp. v. Hazeltine

Research, 395 U.S. 100, 122-123 (1969).

Also, only in an exceptional case will this Court set

aside findings when made, as here, by a District Court,

and examined and accepted by a unanimous Court of

Appeals, Goodyear Tire & Rubber Co., Inc. v. Ray-O-

Vac Co., 321 U.S. 275, 278 (1944); Neil v. Biggers, 409

U.S. 188, 202 (1972).

The District Court found as facts that Gilbert’s

“The Cardinal” was not copied from “Cardinals on

Apple Blossom” and that there was no such similarity

between the works as would rise to the level of im-

proper appropriation (Findings 51 and 54 at A 21, 22),

and so concluded as a matter of law (A 35) that there

was no copyright infringement. The Court of Appeals

affirmed unanimously, finding there was substantial

evidence to support the District Court’s determination

(A 6, 10-12).

In addition, the Court of Appeals made its own in-

dependent factual finding based on its observations

and impressions after seeing “Cardinals on Apple Blos-

som” and “The Cardinal” in open court, A 12-13:

“. .. we conclude that the District Court did not err

in finding that there was no copying.

Even if it be assumed that the Trial Court’s

finding was based only on an application of a me-

chanical standard of copying — a tracing concept

— without censideration of the appropriation fac-

tor, we would affirm. We have examined the two

paintings and based upon our own observations

and impressions, we conclude that while the ideas

are similar, the expressions are not. A pattern of

8

differences is sufficient to establish a diversity of

expression rather than only an echo. ... The

similarities here are of a nature not calculated to

discourage an artist in the development of a spe-

cialty yet sufficiently distinguishable to protect his

creativity in that sphere. Just as Justice Holmes

would not ban the ballerinas of Degas, we may not

excommunicate the cardinals.” [Citations omitted]

The decision of the District Court affirmed by the

Court of Appeals is in accord with well-established

precedent insofar as legal standards are involved. Es-

quire v. Varga Enterprises, 81 F.Supp. 306 (N.D. IIl.,

1948), affirmed on this point, 185 F.2d 14 (7th Cir.,

1950); Williams v. Kaag Manufacturers, Inc., 338

F.2d 949 (9th Cir., 1964); Universal Athletic Sales Co.

v. Salkeld, 511 F.2d 904 (3d Cir., 1975), cert. denied,

423 U.S. 863 (1975).

At pages 7 and 8 of the Petition, reference is made

to the Copyright Act of 1976 and there is some implica-

tion that the decisions below are somehow not in ac-

cord with that Act.

The decisions below, however, are wholly in accord

with past precedent as embodied in 17 U.S.C. §102(b)

which provides that no copyright protection may be se-

cured for an idea or theme, Baker v. Selden, 101 U.S.

99, 102-103 (1879). Thus, portraying a male and

female cardinal according to certain established artis-

tic conventions is an idea, concept or theme. Any artist

may create one or more variations of that theme with-

out infringing on any copyright in prior depictions of

that theme so long as those variations comprise differ-

ent expressions of the theme, as in the instant matter

(R 221-223, 857-881, 1015-1016, 1020-1021, 1036-

1041, 1145-1151, 1272-1277, 1340-1345).

It is argued at page 8 of the Petition that there is a

conflict in the Circuits. There is no such conflict in law.

Gross v. Seligman, 212 F. 930 (2d Cir., 1914) is distin-

9

guishable from this matter, from Esquire v. Varga En-

terprises, supra., and from Williams v. Kaag Manu-

facturers, Inc., supra., on its facts. Gross, as opposed

to these other decisions, involved photography, and no

significant difference in expression was found, no var-

iation on the theme of the earlier work.

In sum, what is at issue herein is a question of fact.

It has been found by two courts as a fact that Gilbert

did not copy “Cardinals on Apple Blossom” to create

“The Cardinal”, so that there can be no infringement of

copyright, Mazer v. Stein, 347 U.S. 201, 218 (1954);

Alfred Bell & Co. v. Catalda Fine Arts, 191 F.2d 99,

103 (2d Cir., 1951); and that “The Cardinal” is not sub-

stantially similar in expression to “Cardinals on Apple

Blossom”. Both findings are amply supported by the

voluminous record herein.

There is no conflict of law between the Second,

Third, Seventh and Ninth Circuits nor is there involved

here any important question of law which has not been

but should be settled by the Supreme Court. There is no

doubt but that the same legal principles apply irrespec-

tive of the identity of the creator of the works in issue.

Because of the factual nature of the issues herein,

and because each question of copyright infringement

must be decided on its facts, there is no question of

great public interest to the art or publishing worlds.

10

CONCLUSION

Accordingly, the Petition for a Writ of Certiorari

should be denied.

Respectfully submitted, 4

Oh xturN, Seika |

ARTHUR H. SEIDEL

Seidel, Gonda & Goldhammer, P.C.

600 Three Penn Center Plaza

Philadelphia, Penna. 19102

215-568-8383

Counsel for Respondent,

Franklin Mint Corporation

Of Counsel:

R. E. LaPorte

Franklin Mint Corporation

Franklin Center, Pa. 19091

CERTIFICATE OF SERVICE

I hereby certify that on this 26th day of June, 1978

three copies of the Brief in Opposition to Petition for a

Writ of Certiorari were served by First Class Mail on

William C. McCoy, Jr., Esquire, 625 National City Bank

Building, Cleveland, Ohio 44114, counsel for Peti-

tioners. I further certify that all parties required to be

served have been served.

Qurtun Seca ¥

ARTHUR SEIDEL

Ornithological artist Don R. Eckelberry explained ‘

why the cardinal or any other bird of one artist inevita-

bly looks similar te birds of the same species he has

depicted:

“ .. The difference between a wave and a Puffin

is considerable. I mean, a wave is a formless thing.

It changes its shape constantly, but a Puffin, that’s

it.

Q. So with a Puffin one must reproduce what is in

nature exactly?

A. You don’t have the flexibility. You see, a wave

is a formless thing. You can do things with it; a sky,

a lake, a pond, anything like that. You can have it

any color, you can have it calm, you can do any-

thing, but you can’t change the color of the Puffin,

you can’t change the shape of a Puffin, you can’t

change his flight habit, you can’t change a thing

about the Puffin if you’re really trying to paint a

Puffin; it’s as simple as that.” (R 321-322)

“Cardinals on Apple Blossom” — FX 1

“After hearing extensive testimony and view-

ing Gilbert’s rendition of a cardinal painted in the

courtroom during the trial, the district judge found

that the artist had not copied ‘Cardinals on Apple

Blossom’ when he painted ‘The Cardinal’.” (A 6)

“The Cardinal’ — FX 2

“The district court had the opportunity to hear

the testimony from the artist and found credible his

statement that he did not copy. For further support,

Gilbert painted a third picture, ‘The Cardinal’

while in the courtroom and without referring to

either of his earlier paintings. The court deter-

mined that although some of the same source ma-

terials were used in all three paintings, similarity

between the works necessarily reflected the com-

mon theme or subject and each painting was a

separate artistic effort.” (A 11)

OC Litteda/.

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“The New Cardinal” — FX 547