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UNEEDA DOLL CO. v. P & M DOLL CO.

No. 39, Docket 29735.

353 F.2d 788 (1965)

UNEEDA DOLL CO., Inc., Plaintiff-Appellant, v. P & M DOLL CO., Inc., Salvatore Paganello and Joseph Paganello, Defendants-Appellees.

United States Court of Appeals Second Circuit.

Decided December 15, 1965.

Attorney(s) appearing for the Case

David B. Kirschstein, New York City (Kirschstein, Kirschstein & Ottinger, New York City, on the brief), for appellant.

Harry Price, New York City, for appellee.

Before LUMBARD, Chief Judge, and WATERMAN and HAYS, Circuit Judges.

PER CURIAM:

Plaintiff appeals from an order in an action for copyright infringement denying a preliminary injunction.

Appellant has copyrights on a doll with one arm around a red and white striped pole and on a display box for the doll. It claims that appellee is infringing appellant's copyrights by making and selling a doll in a display box with its arm around a red and white striped pole.

It is well settled that there can be no copyright on an "idea" itself but only on the tangible "expression" of the idea. Baker v. Selden, 101 U.S. 99, 25 L. Ed. 841 (1879).

As Judge Learned Hand said in Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir. 1960):

"Obviously, no principle can be stated as to when an imitator has gone beyond copying the `idea,' and has borrowed its `expression.' Decisions must therefore inevitably be ad hoc."

In the present case the learned district judge held "that any copying here was limited to the abstract idea of a doll on a pole in a display box and did not extend to Uneeda's tangible expression of that idea" (Uneeda Doll Co. v. P & M Doll Co., 241 F.Supp. 675, 677 (S.D.N.Y. 1965)).

We have examined the products involved and find no reason to disturb this conclusion.

Affirmed.

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