On Appeal From the United States District Court For the Eastern District of Pennsylvania; D.C. Civil Action No. 89-6926.
Stapleton, Greenberg and Weis, Circuit Judges.
STAPLETON, Circuit Judge.
This is an appeal from a grant of summary judgment in favor of defendants Unique Industries, Inc. and Everett Novak (collectively "Unique") in this copyright infringement action brought by Masquerade Novelty, Inc. The district court held that the relevant products made by Masquerade, masks configured to resemble the noses of a pig, elephant, and a parrot respectively, were "useful articles" under 17 U.S.C. § 101 and were not copyrightable because their sculptural elements could not be separated from their utilitarian purpose of allowing a person to create humor by masquerading in an animal's nose. Thus, it entered judgment for Unique on Masquerade's complaint. We find that because the only utilitarian function of the nose masks is in their portrayal of animal noses, the district court erred in concluding that they were not copyrightable. Thus, we reverse the grant of summary judgment for Unique and remand for further proceedings on the issue of infringement.
As a threshold issue, we must consider whether we have appellate jurisdiction. We raised this issue sua sponte because the notice of appeal filed by Masquerade Novelty states that "Walter Z. Steinman, Attorney for Plaintiff in the above captioned matter, hereby appeals" from the order granting Unique's motion for summary judgment. By the time we raised this issue, we realized that the notice of appeal was intended to be filed on behalf of Masquerade, since counsel for Masquerade had already filed its merits briefs on behalf of Masquerade urging reversal of the district court's order granting summary judgment against it. It is also clear that Unique believed that Masquerade was the appellant, since its brief on appeal leaves no doubt as to its understanding that Masquerade was the appellant. This was understandable given that the order appealed from adversely affected only Masquerade, the only plaintiff in this case, and did not run against Mr. Steinman or any of the other attorneys representing Masquerade. Furthermore, the notice of appeal implied that Mr. Steinman was acting in a representative capacity, i.e., as "Attorney for Plaintiff". However, because the notice of appeal could possibly be read as indicating that Mr. Steinman, rather than his client, was appealing, we asked the parties to address the question of whether the notice of appeal failed to satisfy the requirements of Federal Rule of Appellate Procedure 3(c), which requires that a notice of appeal "specify the party or parties taking the appeal." Failure to file a timely notice of appeal complying with Rule 3(c)'s specificity requirement erects a jurisdictional bar to appeal. See Torres v. Oakland Scavenger Co., 487 U.S. 312, 108 S. Ct. 2405, 101 L. Ed. 2d 285 (1988); Kowaleski v. Director, OWCP, U.S. Dept. of Labor, 879 F.2d 1173, 1176 (3d Cir. 1989). Not surprisingly, Unique took the position that Masquerade had not satisfied this requirement, and filed a motion to dismiss the appeal for lack of jurisdiction.
At oral argument in this case, counsel for Masquerade drew our attention to two other documents filed with this court by Masquerade within the thirty day appeal period set forth in Federal Rule of Appellate Procedure 4(a)(1), that clarify any ambiguity about the identity of the appellant created by the original notice of appeal. These documents specify that Masquerade is the appellant in this appeal, and that Walter Steinman is merely one of its counsel. Masquerade contends that, when considered along with the original notice of appeal, these documents, an attorney appearance form and a civil appeal information statement, served to provide Unique and this court with unambiguous and timely notice of the identity of the appellant and of the district court judgment appealed from, and constitute the functional equivalent of a notice of appeal.
We believe that acceptance of Masquerade's argument is dictated by this court's prior decision in Dura Systems, Inc. v. Rothbury Investments, Ltd., 886 F.2d 551 (3d Cir. 1989). In that case, the district court had entered an order under Federal Rule of Civil Procedure 11 assessing counsel fees against a corporation, Dura Systems, and a law firm and two lawyers purporting to represent it. The notice of appeal named the corporation only. The appellees argued that the failure of the notice of appeal to name the law firm and the two lawyers barred their appeal. This court found that the law firm and two lawyers could pursue their appeal because Rule 3(c) could be:
deemed satisfied by a Consent Order . . . entered by this court granting stay of the district court judgment pending appeal, in which the judgment was secured by the accounts receivable of the law firm of Eddy & Osterman. The Consent Order specifically names, in addition to Dura Systems, the law firm of Eddy & Osterman, and Thomas R. Eddy, John D. Eddy, Thomas G. Eddy, individually, as parties against whom Rothbury may confess judgment in the event that this court affirms the award of attorney's fees, and was entered within the period required for timely notice of appeal under Fed. R. App. P. 4(a)(1).
We noted in Dura Systems that the Supreme Court had set forth a strict jurisdictional rule in Torres but had also stressed that jurisdiction could be found if a litigant's action was functionally equivalent to what Rule 3(c) required. Thus, we stated:
that the Consent Order serves as the "functional equivalent" of what the rule requires. The Consent Order was filed within the time for filing an appeal under Fed. R. App. P. 4, and, by naming the law firm and the Eddys as the parties securing the district court judgment pending appeal, served to notify the court and the opposing parties of their intention to appeal. Given these factors, the Consent Order satisfies the underlying purpose of the rule of "provid[ing] notice both to the opposition and to the court of the identity of the appellant or appellants, Torres," 108 S. Ct. at 2409, and thus serves the same function as would a notice of appeal executed in the more technically proper manner. Because the Consent Order specifies "the party or parties taking the appeal, it conforms to this Court's requirement in Kowaleski that Fed. R. App. P. 3(c) be complied with in a "punctilious, literal, and exact" manner. Kowaleski, 879 F.2d at 1176.
Id. at 555 (footnote omitted); see also In re Bertoli, 812 F.2d 136, 138 (3d Cir. 1987) (motion for certification of an interlocutory appeal provides an effective notice under Rule 3(c) where the motion provided timely notice of the appellant, the judgment to be appealed, and the court to which the appeal would be taken). But see, Allen Archery, Inc. v. Precision Shooting Equipment, Inc., 857 F.2d 1176 (7th Cir. 1988) ("The appellant must be named in the notice of appeal; naming him in . . . collateral documents such as a supersedeas bond, will not do.").
In our view, Dura Systems stands for the proposition that a party will be deemed to have complied with Rule 3(c) if it has, within the time provided to file an appeal, filed documents that "specify the party or parties taking the appeal; . . . the judgment, order or part thereof appealed from; and . . . the court to which the appeal is taken." Fed. R. App. P. 3(c). We do not read Dura Systems as a case turning on the nature of the documents filed within the time period for appeal, i.e., whether the document is a consent order or an attorney appearance form, but on the contents of the documents, i.e., whether they contain the information required by Rule 3(c). Finding that the documents referenced by Masquerade do, when considered along with the original notice of appeal, satisfy the requirements of Rule 3(c), we believe Dura Systems requires us to deny Unique's motion to dismiss.*fn1 By considering these documents in determining whether a sufficient notice of appeal under Rule 3(c) was filed, "we ...