Roth Greeting Cards v. United Card Company, an Illinois Corporation

429 F.2d 1106 166 U.S.P.Q. 291 ROTH GREETING CARDS, Appellant, v. UNITED CARD COMPANY, an Illinois corporation, Appellee. No. 23067. United States Court of Appeals, Ninth Circuit. July 10, 1970. Willard H. Horwich (argued), and Morris W. Young, Beverly Hills, Cal., for appellant. Harvey Grossman (argued), Morton Boren, Henry J. Shames, of Pacht, Ross, Warne, Bernhard, Sears & Nutter, Los Angeles, Cal., for appellee. Before HAMLEY, KOELSCH and KILKENNY, Circuit Judges. HAMLEY, Circuit Judge: 1 Roth Greeting Cards (Roth) and United Card Company (United), both corporations, are engaged in the greeting card business. Roth brought this suit against United to recover damages and obtain injunctive relief for copyright infringement of seven studio greeting cards. 1 After a trial to the court without a jury, judgment was entered for defendant. Plaintiff appeals. 2 Roth's claim involves the production and distribution by United of seven greeting cards which bear a remarkable resemblance to seven of Roth's cards on which copyrights had been granted. Roth employed a writer to develop the textual material for its cards. When Roth's president determined that a textual idea was acceptable,…

Roth Greeting Cards (Roth) and United Card Company (United), both corporations, are engaged in the greeting card business. Roth brought this suit against United to recover damages and obtain injunctive relief for copyright infringement of seven studio greeting cards. 1 After a trial to the court without a jury, judgment was entered for defendant. Plaintiff appeals.

Roth’s claim involves the production and distribution by United of seven greeting cards which bear a remarkable resemblance to seven of Roth’s cards on which copyrights had been granted. Roth employed a writer to develop the textual material for its cards. When Roth’s president determined that a tex *1108 tual idea was acceptable, he would integrate that text into a rough layout of a greeting card with his suggested design for the art work. He would then call in the company artist who would make a comprehensive layout of the card. If the card was approved, the artist would do a finished layout and the card would go into production.

During the period just prior to the alleged infringements, United did not have any writers on its payroll. Most of its greeting cards came into fruition primarily through the activities of…

(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…