Johnson v. Donaldson, C.C.N.Y., 3 F. 22-24. If the same idea can be expressed in different manners, the existence of a similarity of composition will not constitute an infringement. Dymow v. Bolton, 2 Cir., 11 F.2d 690.
The figure of Mary, The Miraculous Medal, and the inscription, all placed within a shrine, are the important features of the original work and also of the plaintiffs' design. Those elements or features, and the combination of them, have long been in uninterrupted use as part of the Roman Catholic worship. To that extent they must be deemed of universal ecclesiastical significance, and the common property of a great body of the general public by dedication. The plaintiffs do not, nor could they, demand exclusive rights to those elements or their combination in their copyrighted design. We therefore find that the arch comprising Mary's Central Shrine and the figures, symbols and inscriptions thereof are within the public domain and that the exclusive use of such symbols by the plaintiffs is not granted to them by the copyrights.
It remains to be determined then, whether the new matters or designs combined with the original art and symbols have been infringed upon by the defendants' shrine, which also includes orginal art and the same symbols. In other words, is the defendants' combination of the new matter with the original features a copy, or nearly a copy, of the plaintiffs' new matter as combined with the same original elements?
A copy is deemed to be that which ordinary observation would cause to be recognized as having been taken from another work or the reproduction of another work. The common understanding is that it is a reproduction or duplication of a thing previously in existence. White-Smith Co. v. Apollo Co., 209 U.S. 1, 28 S. Ct. 319, 52 L. Ed. 655, 14 Ann.Cas. 628. The question of artistic merit or value has no bearing upon the rights of the parties.
An examination of the two designs gives the clear impression that they are both of the same shrine, that the figures are of the same character, and that the medals and inscriptions are identical. But, in order to grant the relief sought by the plaintiffs, the resemblance must be such as fairly to lead to the conclusion that one is substantially a copy of the other or mainly borrowed from it. Vernon v. Shubert, Inc., D.C., 220 F. 694. We have said, however, that the figures and symbols involved, or their combination into one composition consisting of a shrine, are not copyrightable because they are in the public domain, and the infringement, if any, must be of the other elements entering into the plaintiffs' composite design.
Extensive testimony was given of the technical differences between the plaintiffs' and the defendants' designs of the shrine as distinguished from the figures, symbols and inscription. The court must determine whether or not the fact of infringement is proven, and the opinion of experts, although helpful, may not be substituted for the court's judgment. Encyclopedia Britannica Co. v. American Newspaper Association, C.C.N.J., 130 F. 460; West Publishing Co. v. Edward Thompson Co., C.C.N.Y., 169 F. 833. An inspection of the two designs will readily serve to distinguish them. Although they are of the same general shape, they appear to be different in every detail, especially in the position of the medals and inscription, the architectural form of the arch and pilasters, in that the plaintiff's design has a single central candle receptacle while the defendants' provides for two candles on the side and steps leading up to the central figure. The designs differ in nearly all of the details of decoration. The plaintiffs' contention that the defendants' design is an infringement of its copyright No. 21820 by reason of the alleged similarity of design, and their contention that it is an infringement of copyright No. 23867 in that it includes steps leading up to the central figure and two candle receptacles are negatived by the general impression obtained from the examination of the designs in question. The existence of such infringement is dependent upon the question whether the ordinary reasonable person would fail to differentiate between the two works or would consider them dissimilar by reasonable observation. Hein v. Harris, C.C.N.Y., 175 F. 875.
We can find little, if any, similarity between the two designs, and having excluded the principal features and their combination as a religious shrine, we are bound to find that there has been no copying and, therefore, no infringement of the plaintiffs' copyrights. Copying, in order to constitute an infringement must be recognizable by ordinary observation, Dymow v. Bolton, supra.
We, therefore, conclude that the plaintiffs have failed to establish a proprietary interest in the religious symbols comprising its shrine, that by reason of the dissimilarity between the plaintiffs' combination of original art and the religious features now in the public domain, and the defendants' combination of such art and features, the plaintiffs have failed to prove that the defendants have copied, duplicated or infringed upon the plaintiffs' copyrighted designs.
The complaint is, therefore, dismissed with costs to be taxed by the Clerk.
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