Page:Lin-Brook Builders Hardware v. Gertler.pdf/3

 memorandum decision which was to be considered as the findings of the court.

In essence, appellant attacks the conclusions of the trial court that (1) appellant was not the proprietor of the copyright to the drawings made by H. L. Baxter and was therefore not entitled to copyright them, (2) the drawings by H. L. Baxter were not copyrightable, and (3) the alleged copyrights were invalid because of insufficient notice of copyright.

The basis of the trial court’s holding as to the proprietorship of the copyright to Baxter’s drawings is twofold. First, the court apparently indulged in the presumption that since Baxter was an independent contractor and not an employer, he was the “copyright proprietor” within the meaning of the statute. Secondly, Baxter executed an assignment in favor of appellant of all right, title and interest in the drawings. The assignment was dated May 24, 1962, less than three months before the commencement of the lawsuit. The court apparently concluded that the assignment demonstrated a prior lack of title in the assignee, Lin-Brook Hardware. Appellant here contends that the assignment was merely a “quit-claim” assignment for the purposes of litigation. The record is devoid of any testimony relating to the circumstances under which the assignment was given and the only other evidence in the record with respect to ownership of the copyright is the uncontradicted testimony of Baxter set forth in the margin.

We are of the opinion that the trial court committed error in presuming that Baxter retained the ownership of the copyright to the drawings. On the contrary, we believe that when one person engages another, whether as employee or as an independent contractor, to produce a work of an artistic nature, that in the absence of an express contractual reservation of the copyright in the artist, the presumption arises that the mutual intent of the parties is that the title to the copyright shall be in the person at whose instance and expense the work is done. Yardley v. Houghton Mifflin Co., 108 F.2d 28 (2d Cir. 1939); Grant v. Kellogg Co., 58 F.Supp. 48 (S.D.N.Y.1944); Dielman v. White, 102 F. 892 (C.C.D.Mass.1900). We do not believe that the assignment referred to above, standing alone without any evidence as to the circumstances or intendment of its execution, is sufficient to rebut this presumption. Accordingly, we are of the opinion that the trial court’s conclusion with respect to the proprietorship of the copyright was erroneous.

The trial court’s conclusion that the drawings made by Baxter are not copyrightable is also based on two grounds, first, that an illustration in this type of catalogue is not copyrightable, and secondly, that Baxter’s work showed insufficient “originality” to be copyrightable. The court relied on