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ECKES v. SUFFOLK COLLECTABLES & C.P.U.

September 25, 1983

DENNIS W. ECKES & JAMES BECKETT III, Plaintiffs, against SUFFOLK COLLECTABLES & C.P.U., Defendants.


The opinion of the court was delivered by: GLASSER

FINDINGS OF FACT AND CONCLUSIONS OF LAW

GLASSER, United States District Judge:

 This case having been tried to the Court, the following represent my findings of fact and conclusions of law.

 FACTS

 The facts in this case emerged as largely undisputed. The plaintiffs wrote and had published a book entitled the "Sport Americana Baseball Card Price Guide." The first publication of the book was in approximately February of 1979. This publication was copyrighted and registered under number TX 232-812. A second edition of the plaintiffs' book was issued in approximately March of 1980. This edition bore registration number TX 490-212.

 The plaintiffs' work represents a comprehensive listing of certain collectable baseball cards along with their value. The plaintiffs' work is conceded by defendants to be the first in-depth listing of its kind.

 Defendant C.P.U., a partnership comprising Mark Lewis and Warren Karp, wrote and had published a monthly publication entitled, "Card Prices Update." The first publication of defendants' work was in approximately September of 1979. The defendants' work is a monthly price update which sets forth the latest prices in the marketplace for selected collectable baseball cards and the price trends for such cards. The price trend is indicated by a plus for an upward trend or a minus for a downward trend.

 Plaintiffs allege that the defendants' publication infringes on their copyright.

 Discussion

 The test for copyright infringement is two-pronged. Plaintiffs "must show ownership of a valid copyright and copying by the defendant." Novelty Textile Mills, Inc. v. Joan Fabrics Corp., 558 F.2d 1090, 1092 (2d Cir. 1977). Accord, Eden Toys Inc. v. Marshall Field & Co., 675 F.2d 498, 499 (2d Cir. 1982).

 As to the first prong, ownership of a valid copyright, the introduction into evidence of a timely obtained Copyright Office certificate of registration "constitute[s] prima facie evidence of the validity of the copyright and of the facts stated in the certificate." 17 U.S.C.§ 410(c). See Durham Industries, Inc. v. Tomy Corp., 630 F.2d 905, 908 (2d Cir. 1980). The introduction of the certificate of registration, however, creates only a rebuttable presumption of copyright validity. See id. "Where other evidence in the record casts doubt on the question, validity will not be assumed." Id.

 The plaintiffs here have introduced into evidence timely certificates of registration for the two editions of their work; they are, therefore, entitled to a rebuttable presumpmtion of copyright validity. The defendants sought at trial to overcome this presumption by arguing that the plaintiffs' copyright was invalid because there were material omissions on the plaintiffs' application form submitted to the Copyright Office. The defendants argued that the plaintiffs' application had failed to inform the Copyright Office that the "Sport Americana Baseball Card Price Guide" was a derivative work based on the Plaintiffs' own prior uncopyrighted publication entitled, "Sport Americana Bicentennial Edition 1976."

 I find this argument unpersuasive. The plaintiffs' 1979 copyrighted publication represents a substantial change from their 1976 publication. The 1976 publication contained only a listing of certain baseball card sets. The 1979 edition contains a much more comprehensive listing of sets, as well as three different prices for each card, depending upon the card's condition. Further, the 1979 ediction contains a different cover, more pictures, and sections on the history of card collection, condition guides, and how to obtain cards.

 These substantial changes render the 1979 edition an original work capable of copyright protection. See Copyright Act § 103(a), 17 U.S.C. § 17(a); B & B Auto Supply, Inc. v. Plesser, 205 F. Supp. 36 (S.D.N.Y. 1962); Flick-Ready Corp. v. Hydro-Line Manufacturing Co., 351 F.2d 546 (7th Cir. 1965). Therefore, any omission on the plaintiffs' application was insignificant. See Russ Berrie & Co. Inc. v. Jerry Elsner Co. Inc., 482 F. Supp. 980, 988 (S.D.N.Y. 1980)("the knowing failure to advise the Copyright Office of facts which might have occasioned a rejection of the application constitute reason for holding registration invalid and thus incapable of supporting an infringement action" (emphasis added)); Advisers, Inc. v. Wiesen-Hart, ...


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