that it was a “Betty Boop” imitation. He says that he showed it to the sculptor to indicate the size and the nature of the statuette which he wanted but told him, “Do not make it exactly like this.” I believe, according to the statement made here today, he said that he wanted that type.
That sort of oblique suggestion can be very properly translated into an intention on Mr. Freundlich’s part to come as near the “Betty Boop” doll as he possibly could.
Of course, he did not want to get into a lawsuit, either for unfair competition or for a breach of copyright. That is perfectly obvious. But, when you show a man something, and say, “This is about what I want but don’t make it exactly like this,” that is a suggestion which I think is comparable to the way in which they used to sell grape juice during prohibition with accompanying instructions not to put any raisins in it because if that was done the grape juice would ferment. It is exactly the same method of approach. Thereafter the doll was brought back, Mr. Freundlich approved it, and then he began to sell it. The question of how many sales were made, of course, is something that has to be brought out before the master.
VI. As to the notice of the copyright, I find that there was adequate notice on the front of the skirt of the plaintiffs’ doll where there is a notice “‘Betty Boop’ Des, and Copyright by Fleischer Studios.” I am unimpressed with the suggestion that because the word “Inc.” did not follow the word “Fleischer Studios,” that, therefore, there was some infirmity in the notice. Until directed to do so by a higher court, I refuse so to stick the bark and entertain so technical an attitude with regard to a copyright notice.
VII. This short opinion may stand as the findings of fact and the conclusions of law on the case and a decree may be presented on notice for settlement.
I will appoint Theodore S. Kenyon, Esquire, as the special master to pass on the damages and accounting, unless the damages and the accounting can be agreed between the parties.
The question of the allowance of any reasonable counsel fee will be reserved until the ultimate decision of the master on the question of damages and the accounting. This question of the fee is to be reported back to me, and when the final decree is settled, counsel for the plaintiffs may apply to me, on due notice, to fix the fee.
PHELAN v. NEW AMSTERDAM
CASUALTY CO.
No. 2318.
District Court, D. Wyoming.
Jan. 16, 1934.
Walter Q. Phelan, pro se, and Edward B. Almon, both of Cheyenne, Wyo., for plaintiff.
C. R. Ellery and Bard Ferrall, both of Cheyenne, Wyo., and L. Ward Bannister and S. M. January, both of Denver, Colo., for defendant.
