Roth Greeting Cards v. United Card Company

429 F.2d 1106 (9th Cir. 1970)

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Nature of the Case

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Facts

P and D are engaged in the greeting card business. P claims that seven of D's greeting cards bear a remarkable resemblance to seven of P's cards on which copyrights had been granted. P employed a writer to develop the textual material for its cards. When P's president determined that a textual idea was acceptable, he would integrate that text into a rough layout of a greeting card with his suggested design for the artwork. He would then call in the company artist who would make a comprehensive layout of the card. If the card was approved, the artist would do a finished layout and the card would go into production. D did not have any writers on its payroll. Most of its greeting cards came into fruition primarily through the activities of D's president, Mr. Koenig, and its vice-president, Edward Letwenko. The source of the art and text of the cards here in question is unclear. Letwenko also stated that he visited greeting card stores and gift shows in order to observe what was going on in the greeting card business. Letwenko admitted that he may have seen P's cards during these visits or that P's cards may have been in his office prior to the time that he did his artwork on the D cards. The trial court found that the artwork in P's greeting cards was copyrightable, but not infringed by D. The trial court also found that, although copied by D, the wording or textual matter of each of P's cards in question consists of common and ordinary English words and phrases which are not original with P and were in the public domain prior to first use by P. The court ruled for D and P appealed. P agrees that the textual material involved in their greeting cards may have been in the public domain, but argues that this alone did not end the inquiry into the copyrightability of the entire card. P argues that 'It is the arrangement of the words, their combination, and plan, together with the appropriate artwork. * * *' which is original, the creation of P, and entitled to copyright protection.