John L. Perry Studio, Inc., John L. Perry v. Marvin Wernick, Marvin Wernick Co., Theodore Williams, Star Crest of California, Ruth Sloan Co., Inc.

Appellants, John L. Perry and John L. Perry Studio, Inc., appeal from a judgment of the District Court following a trial without jury, which held that the manufacture and distribution by the appellees of certain seagull sculptures did not infringe upon appellants’ copyrighted seagull creations nor constitute unfair competition with the appellants. We affirm.

Both the copyrighted Perry sculptures and the alleged infringing sculptures, created by Williams, one of the appellees, depict seagulls in various postures of flight, mounted by wire to pieces of driftwood or rock. Both are molded of a similar white plastic material and are of approximately the same size and shape. It is unchallenged that the copyrighted sculptures were created and distributed prior in time to the creation and distribution of the accused birds. Considerable evidence, however, was presented to the trial court that indicated that a progenitor of the accused birds, also made by Williams, existed for some time before Perry created his seagulls.

The ultimate legal conclusion of the District Court, that appellees had not infringed upon the Perry copyright, was based upon the court’s factual finding that the…