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Peter Pan Fabrics, Inc. v. Martin Weiner Corp. - 274 F.2d 487 (2d Cir. 1960)

Rule:

At least in the case of a deliberate copyist, the absence of "notice" is a defense that the copyist must prove, and that the burden is on him or her to show that "notice" could have been embodied in the design without impairing its market value.

Facts:

Plaintiff owners, who were "converters" of textiles used in the manufacture of women's dresses, bought a design and registered it as a reproduction of a work of art under the Copyright Act, 17 U.S.C.S. § 5(h), for use in textiles. They sought a preliminary injunction against defendant alleged infringer, forbidding the latter to copy an ornamental design printed upon cloth. The district court granted the injunction, and the alleged infringer appealed, challenging whether enough of the registered design was copied to constitute infringement and whether the design was sold without adequate notice of copyright as required by 17 U.S.C.S. § 10.

Issue:

  1. Did the alleged infringer copy enough of the registered design so as to constitute infringement?
  2. Was the design sold without adequate notice of copyright as required by 17 U.S.C.S. § 10?

Answer:

1) Yes. 2) Yes.

Conclusion:

The Court found that the alleged infringer's variations in its design would not be detected by the ordinary observer, which was sufficient to constitute infringement. Also, the owners did not forfeit their copyright, even though suppression of the copyright mark did not satisfy the statutory exception as being accidental or mistaken under 17 U.S.C.S. § 21. In affirming the order, the Court concluded that notice was incorporated into the design and that the alleged infringer did not show that notice could have been embodied in the design without impairing market value.

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