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In re Deutsch

July 25, 1938

IN RE DEUTSCH ET AL. ARNOLD ET AL.


Appeal from the District Court of the United States for the Eastern District of New York.

Author: Hand

Before L. HAND, AUGUSTUS N. HAND, and CHASE, Circuit Judges.

AUGUSTUS N. HAND, Circuit Judge.

The plaintiffs sued for infringement of a copyright of a chart for analyzing handwriting and prayed for an injunction and damages. The District Court dismissed the bill on the ground that the chart lacked originality and was not a proper subject for a copyright.

The chart consists of a sheet of paper measuring about 8 1/2 x 11 inches. At the top of the sheet appears the title, a number and the copyright notice, as well as an explanation of how the chart is to be used. The remainder of the sheet is divided by lines into 22 rectangular subdivisions, each of them has a heading generally descriptive of a specimen of handwriting which is inscribed beneath, such as "round", "size", "plain", "open", "slant". In the space just below each specimen are words describing the supposed individual characteristics of persons having the kind of handwriting that is superposed. For example, in the subdivision where the heading is "round" there is a specimen of round handwriting and below it character descriptive words: "Good natured. Peace loving. Calm. Gentle. Leisurely". The explanation at the top of the chart telling how to use it is as follows:

"Compare any handwriting you wish to use with any handwriting shown below. As you find the similarity, read the meaning underneath. Thus by going thru the entire list, you will have a well rounded, accurate character reading. The degree of strength or weakness is emphasized according to the number of times the various characteristics appear."

Counsel for the plaintiffs gives the following description of the way to use the chart:

"The analyzer regards each subdivision of the chart and if he determines that the writing is 'round' as opposed to 'pointed', he checks 'round'. He further regards the chart and should he find that the letters are 'large' as opposed to 'small' he will check 'large'. He will so proceed through the whole 22 subdivisions and thereby will have completed his analysis."

"In the event that the analyzer is in doubt as to the particular classification that his writing falls under, the chart further aids him by illustrations in each subdivision of the styles described by the subdivision heading."

The plaintiffs have exploited their charts in department stores and amusement centers.

In the former they have been particularly used to draw customers to the stores and in the latter for amusement purposes. In each, charts are sold and in each demonstrators are installed to make a character analysis by obtaining specimens of handwriting from the customers and checking the handwriting with the chart and to sell the charts. They have met with considerable commercial success.

The defendant Mildred Arnold was employed by the plaintiffs in the summer of 1936 and managed one of their booths at Coney Island, where she was taught their system, and sold their charts. In May, 1937, she opened a booth of her own having the advertising sign: "Have your handwriting analyzed", in Steeplechase Part, where the plaintiffs also had a booth. There she sold her own charts until, upon the plaintiffs' objections, she was excluded, whereupon, in June, she opened a booth outside the Boardwalk, about a block away from the plaintiffs' booth, in space leased for $200 from the defendant Dorothy Dworman, doing business under the name of Irving Baths, through the defendant George Bernart, Dworman's renting agent. There Miss Arnold sold charts and analyzed handwriting.

While the trial judge held that the plaintiffs' chart was not a proper subject of copyright he made the following findin: "The defendants' chart is undoubtedly to all intents and purposes a copy of the plaintiffs' chart. In principle they are very much alike. If the plaintiffs' chart was a proper subject of copyright defendants' chart would infringe."

We think there can be no doubt of infringement. It is true that Miss Arnold's chart did not contain specimens of handwriting in the rectangular subdivisions, but each subdivision had a heading generally descriptive of a type of handwriting and beneath the heading adjectives, many of which corresponded with those of the plaintiffs' chart, indicating the individual characteristics of persons having the kind of handwriting suggested by the heading. General correspondence in form exists and close correspondence in detail is found again and again. In ...


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