The opinion of the court was delivered by: MOSCOWITZ
MOSCOWITZ, District Judge.
Howard Ketcham, the plaintiff, a resident of Connecticut, brings this action against the New York World's Fair 1939, Incorporated, a corporation organized under the laws of the State of New York, for an injunction and an accounting.
The plaintiff, a color engineer, furnished the defendant with a color chart, Exhibit 6, and the accompanying written description and directions. Exhibit 6 is a disclosure of a complete colored plan or map of the Fair together with numerous written suggestions of the application, function and manner of use of that color design.
Had the defendant made use of plaintiff's color chart, Exhibit 6, he would be entitled to recover as, undoubtedly, the plaintiff's disclosure constitutes substantial intellectual property. Palmer v. DeWitt, 47 N.Y. 532, 7 Am.Rep. 480. The cause of action having arisen in New York, the New York law applies. It is the law of New York, as claimed by the plaintiff, that an individual has a property right in his original unpublished intellectual productions. The Court in the case of Palmer v. DeWitt, decided:
"The rights of authors in respect to their unpublished works, have been so frequently and elaborately considered and carefully adjudicated by the courts of this country and of England, and are now so well understood and established that there is but little to do in passing upon the merits presented by the record before us, save to apply the rules clearly deducible from adjudged cases of conceded authority.
"The right is well defined and succinctly stated by the author of a recent work as follows: 'Every new and innocent product of mental labor which has been embodied in writing, or some other material form, being the exclusive property of its author, the law securing it to him as such, and restraining every other person from infringing his right. Whether the ideas thus unpulblished take the shape of written manuscripts of literary, dramatic or musical compositions, or whether they are the designs for works of ornament or utility planned by the mind of an artist, they are equally inviolable while they remain unpublished, and the author posesses an absolute right to publish them or not as he thinks fit (and if he does not desire to publish them), to hinder their publication either in whole or in part, by any one else.' Shortt on the Law of Literature, 48."
See Tabor v. Hoffman, 118 N.Y. 30, 23 N.E. 12, 16 Am.St.Rep. 740. The doctrine in Palmer v. DeWitt, supra, and Tabor v. Hoffman, supra, has been generally followed by the Courts.
The Court in the case of Werckmeister v. American Lithographic Co., 2 Cir., 134 F. 321, 324, 68 L.R.A. 591, decided: "The author of a work of art has at common law a property therein until it is published with his consent. He may withhold or communicate it, and in communicating it he may impose such restrictions upon its use as he sees fit. Drone on Copyright, 103; Parton v. Prang, 3 Cliff.  548, Fed. Cas. No. 10,784. The right to make copies before publication and the right of first publication are common-law rights. The right to multiply copies after publication to the exclusion of others is the creature of statute. Palmer v. DeWitt, 47 N.Y. 532-536, 7 Am.Rep. 480."
Judge Coxe very recently held infringement of common law copyright in part of the music of an unpublished song. Wilkie v. Santly Bros., D.C., 13 F.Supp. 136. An author is entitled to his original unpublished intellectual work. See Ferris v. Frohman, 223 U.S. 424, 32 S. Ct. 263, 56 L. Ed. 492; Booth v. Stutz Motor Car. Co. of America, 7 Cir., 56 F.2d 962; American Ornamental Bottle Corp. v. Orange-Crush, 4 Cir., 76 F.2d 969; Hoeltke v. C.M. Kemp Mfg. Co., 4 Cir., 80 F.2d 912; A.O. Smith Corporation v. Petroleum Iron Works Co., 6 Cir., 73 F.2d 531; and Id., 6 Cir., 74 F.2d 934; Thompson v. Famous Players-Lasky Corporation, D.C., 3 F.2d 707; Healey v. R. H. Macy & Company, Inc., 251 App.Div. 440, 297 N.Y.S. 165.
The Court is in accord with the statement made by the plaintiff that it is the law that one who has worked out an embodiment of a design for a work of art or plans for a large building program possesses a property right in his original production.
The proof shows that there are fundamental differences between plaintiff's plan as shown in plaintiff's Exhibit 6 and the plan actually put in use by the defendant. The only similarity is the graduated tone of blue along Constitution Mall. The differences are fully pointed out in the following testimony of Mr. Ernest S. Peixotto, Consultant on Mural Paintings of the Fair, who testified:
"A. In my plan the idea was to keep the Theme Center white, and from it step the colors down in gradation toward the left, toward yellow, towards the center, towards red and toward the right towards blue, as clearly indicated by the chart, Defendant's Exhibit A. So when the full color was reached you had Rainbow Avenue as a prismatic chord that went through the three colors of the spectrum, yellow, red and blue. I see no relation between this color plan before me and the one which the Fair adopted. The strong colors come in immediately at the Theme Center, and no spectrum or rainbow is visible as in that.
"Also I would add that in the Fair's consideration of the color scheme so based properly upon esthetic grounds, it had no scientific reason, or socalled reason for existence, but was intended to bind together the buildings of different ...