The opinion of the court was delivered by: SCHOONMAKER
The plaintiffs in this case filed a complaint in which they charge the defendant with infringement of the score-card of the Penn Sportservice, Inc., in use at the baseball games played at the Pittsburgh Athletic Company's baseball park in Pittsburgh. They also charge the defendant with unfair competition in the matter of the sale of score-cards for these games sold on the public streets of the City of Pittsburgh near the entrance to the baseball park.
The case was heard on plaintiffs' motion for a preliminary injunction, the injunction-affidavits, and the counter-affidavits.
The facts alleged in the complaint and injunction-affidavits may be briefly summarized as follows:
By an agreement dated November 9, 1935, the Pittsburgh Athletic Company, owner of the Pittsburgh Baseball Club, granted to Penn Sportservice, Inc., the exclusive privilege of selling score-cards and refreshments at the baseball park known as "Forbes Field." Under the provisions of this agreement the Penn Sportservice, Inc., publishes and sells within the baseball park a booklet entitled "Pittsburgh Pirates Official Scorecard," which has been registered as copyrighted, and includes news items of the National League baseball teams, the Pittsburgh Pirates team, general baseball statistics, ground rules, editorials, and information pertaining to the game, including the official line-up and numbers of the players and teams for the particular game to be played. This scorecard sells at 10( per copy, and is sold within the baseball park. In addition, the score-card contains a number of advertisements purchased by persons desiring to advertise in that medium.
The defendant also publishes a scorecard which contains the line-up of the teams, the numbers of the players, and which the defendant sells for 5( per copy on the public streets of Pittsburgh near the entrance-gates to Forbes Field. The plaintiffs contend that this score-card infringes their copyrighted score-card, and that it is unfair competition for the defendant to sell the same to patrons of the baseball park as they are about to enter the gates of Forbes Field.
The defendant avers he has a vendor's license from the City of Pittsburgh for himself and his assistants, and that he does not infringe the plaintiffs' copyright. He avers that his score-card merely gives the names and the numbers of the players of the various teams, all of which is public information.
On this showing, we are not satisfied there has been any infringement by the defendant of the plaintiffs' copyright, or that the defendant is engaging in unfair competition. In other words, the rights of the plaintiffs are not so clear and certain that we ought to grant a preliminary injunction.
The motion will therefore be denied, and the case may be set down for hearing as soon as the pleadings are completed.
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