Page:Aliotti v. R. Dakin.pdf/2

 Richard H. Rosenthal, Carmel Valley, Cal., for plaintiffs-appellants.

Daniel J. Furniss, San Francisco, Cal., for defendant-appellee.

Appeal from the United States District Court for the Northern District of California.

Before GOODWIN, ALARCON and LEAVY, Circuit Judges.

GOODWIN, Circuit Judge:

Shelley and John Aliotti appeal an adverse summary judgment in their damage action for copyright infringement and related grievances.

Shelley Aliotti is a designer of craftwork and toys. From 1976 to 1979 she worked on a contract basis for Favorite Things, Inc., a Carmel-based toy manufacturer. She designed soft pillows, stuffed animals, and other items directed toward the children’s market. The Aliottis acquired copyrights to items created by them after Favorite Things, Inc. became bankrupt in 1982.

In November 1978, Bernard Friedman, the president of Favorite Things, telephoned Harold Nizamian, the president of appellee R. Dakin Co., to ask him whether Dakin would be interested in acquiring Favorite Things. After this phone conversation, Friedman sent Nizamian a letter and pictures of various products manufactured by Favorite Things. Upon a request from Dakin’s board of directors for additional information, Friedman complied and sent Nizamian a presentation booklet, which included data concerning the production and sale of its merchandise. Friedman also sent Dakin a copy of Favorite Things’ current sales brochure, which included photographs of three stuffed toy dinosaurs—Brontosaurus, Stegosaurus and Triceratops—which had been designed by Shelley Aliotti and were being marketed as the “Ding-A-Saur” line.

During a March 1979 meeting at Favorite Things’ office, Friedman and Aliotti showed two Dakin executives many of Favorite Things’ designs, including many products designed by Aliotti. In addition to the three stuffed dinosaurs already marketed by Favorite Things, Aliotti displayed prototypes of three additional Ding-A-Saurs—Tyrannosaurus Rex, Pterodactyl and Woolly Mammoth. The parties did not discuss the possibility that Dakin might purchase any particular design. After the meeting, the Dakin executives told Shelley Aliotti to contact them if she was interested in being considered for employment at Dakin.