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Roth Greeting Cards v. United Card Co. - 429 F.2d 1106 (9th Cir. 1970)


Since direct evidence of copying is rarely available, copying may be established by proof of access and substantial similarity. Although in some circumstances the mere proof of access and substantial similarity will not demand that the trier automatically find copying, the absence of any countervailing evidence of creation independent of the copyrighted source may well render clearly erroneous a finding that there was not copying.


Roth Greeting Cards (Roth) and United Card Company (United) were both engaged in the greeting card business. Plaintiff Roth brought the present action against defendant United to recover damages and obtain injunctive relief for copyright infringement of seven studio greeting cards. Roth alleged that United produced and distributed seven greeting cards that bore a remarkable resemblance to seven of Roth's cards on which copyrights had been granted. The district court ruled in favor of United on alternative grounds, lack of jurisdiction and lack of infringement of any copyrightable material. The trial court based its jurisdictional holding on 17 U.S.C. § 13, which stated that no action for infringement of copyright "shall be maintained" until the provisions of Title 17 of the United States Code with respect to the deposit of copies and registration of such work "shall have been complied with." Roth followed the described three-step procedure in seeking copyright protection for its greeting cards on June 6, 1966. The copyright office returned the applications for a change of category of registration. The revised applications were placed in the mail to the copyright office on July 27, 1966, and received there on July 29, 1966. Roth filed this action on July 27, 1966, which was the same day it mailed the revised applications, but two days before they were received by the copyright office. Turning to the merits, the district court found that the art work in plaintiff's greeting cards was copyrightable, but defendant United had not infringed.


  1. Did the district court have subject-matter jurisdiction?
  2. Was the artwork in Roth’s greeting cards copyrightable? If so, was it infringed by defendant United?


1) Yes. 2) Yes.


As to the first issue, the Court of Appeals for the Ninth Circuit concluded that the district court had subject-matter jurisdiction. According to the Court, when Roth placed the revised applications in the mail on July 27, 1966, it had done everything required of it under the copyright law with respect to the deposit of copies and registration, and could therefore, on that day "maintain" that action, giving the term "maintain" the strict construction the district court adopted.

As to the second issue, the Court held that Roth’s cards were both original and copyrightable. Considered as a whole, each of Roths’ cards, represented a tangible expression of an idea and that such expression was, in totality, created by Roth. Moreover, the Court found that in total concept and feel, the cards of United were the same as the copyrighted cards of Roth. As regards the issue of copying, the Court averred that copying may be established by proof of access and substantial similarity. In the present case there was clear and uncontradicted testimony establishing United's access to the Roth cards. United brought Roth cards to its offices. It sent its employees out to gift shows and retail stores where the Roth cards were on display to observe "what the competition was doing."

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