The opinion of the court was delivered by: CONGER
This is a motion for a preliminary injunction restraining the defendants from making and distributing three-dimensional comic books or magazines produced by a certain '3-D Illustereo' process upon the ground that said process infringes United States Letters Patent No. 2,057,051 issued to plaintiff Owens on October 13, 1936.
The plaintiff Gaines is the assignee of the Owens patent and is president of the various corporate plaintiffs.
The defendant American Stereographic Corporation is the owner of the Illustereo process, the defendants Leonard H. Maurer, Norman Maurer and Joseph Kubert are officers of said corporation, the defendant St. John is the owner of the St. John Publishing Company, which has used the Illustereo process in the production of comic books, the defendant American News Company is the distributor of magazines and comic books including those of St. John Publishing Company. The defendant Lionel Corporation is a New York corporation and is joined because its advertisement appearing in a publication of the St. John Publishing Company employed the Illustereo process.
The plaintiffs have filed various exhibits as well as a number of affidavits in support of their motion.
According to the affidavit of the plaintiff Gaines, the corporate plaintiffs are well known publishers of comic books and he is well acquainted with the efforts involved in the production and knowledge of stereoscopy and the aspects of its production through the medium of photography; he is the assignee of the Owens patent and has made a study of it. He sets forth his analysis of the patent which is entitled 'Methods of Drawing and Photographing Stereoscopic Pictures in Relief'; the first two paragraphs of the patent set forth the nature of the invention and its purposes as follows:
'This invention relates to improved stereoscopic pictures intended for amusement, educational and advertising purposes having objects displayed in sharp relief in the foreground and background, and aims to produce such pictures by combining drawings or photographs of different subjects or views in a simple, rapid and inexpensive manner readily adapted to the existing types of cameras and picture making devices.
'Further aims and objects of the invention appear in connection with the following description of a preferred mode of production and use, illustrated in the accompanying drawings, the subject chosen for illustration being a newspaper drawing depicting a popular character of serial adventure stories as utilized for giving publicity to a well-known nationally advertised product.'
The Owens patent technique embraces according to Gaines the following production steps:
'(a) analyzing the drawing and breaking it down into the desired number of planes;
'(b) copying each plane, either by hand or photographically, on to a separate sheet or transparent cell (acetate, celluloid or the like) or a combination thereof, and, in the case of transparent cells, opaquing the areas covered with white where and if desired;
'(c) superimposing the sheets and/or cells in register to simulate the original drawing and then copying photographically;
'(d) shifting the sheets and/or cells laterally with reference to the background so that each sheet or cell is shifted slightly more in reference to the preceding one, which shift distances may be varied in amounts and in proportion to each other, and then copying the composite result photographically;
'(e) the photographic copies produced or obtained through steps (c) and (d) above described are then reproduced for visual observation.
'Reproduction for visual observation is achieved in the following manner: plates are made from each of the two photographic copies referred to in the process outlined above; one being usually inked in red and the other in green, and a printing is then made with the impression of each plate superimposed. When viewed through color filters of the same two colors that the said plates were respectively inked in, a three dimensional effect is obtained ...