Page:McCulloch v. Albert E. Price.pdf/6

 text, art work, and association between art work and text, be considered as a whole.” Id. (emphasis added).

Price, Inc. attempts to distinguish Roth Greeting Cards on its facts by arguing that “the allegedly infringing greeting cards were similar in much more than the unprotectable element involved, the text.” This argument is not supported by the record. The district court found the plates “confusingly similar in appearance,” and concluded: “Analysis of the copying issue calls for an assessment of the concept, feel and mood of the respective works when considered in their totalities.” The district court’s finding supports the conclusion that the plates were substantially similar in more than text.

Price, Inc. asserts that our decision in Cooling Systems requires us to discount the text “You Are Special Today” in evaluating substantial similarity. In Cooling Systems, the subject matter of the copyright infringement action was an illustrated radiator catalog. 777 F.2d at 486. We held that plaintiffs misapplied the intrinsic test for substantial similarity, and explained: "What is important is not whether there is substantial similarity in the total concept and feel of the works, but whether the very small amount of protectible expression in Cooling Systems’ catalog is substantially similar to the equivalent portions of Stuart’s catalog."

Id. at 493 (citation omitted). Cooling Systems is inapplicable because the instant case involves an artistic work, while Cooling Systems involved a factual work. In this respect, we noted as follows: "The works at issue here contain a great many unprotectible facts and very little protectible expression of arrangement of those facts. This is not altogether surprising. Catalogs, by definition, are saturated with facts, numbers, and literal depictions of concrete objects. As we emphasized in an only slightly different context, copyright law considers factual works to be fundamentally different from more artistic works: “similarity of expression may have to amount to verbatim reproduction or very close paraphrasing before a factual work will be deemed infringed.”"

777 F.2d at 491 (quoting Landsberg, 736 F.2d at 488). Works that are not factual receive much broader protection under the copyright laws because of the endless variations of expression available to the artist. Landsberg, 736 F.2d at 488.

Price, Inc. further contends the district court erred in finding that ORP had secured a copyright on its plate as a whole. We are asked to conclude instead that the copyright only protected the floral designs on the plate. Price, Inc. argues that ORP should be estopped from claiming copyright protection beyond the floral designs on its plate.

Price, Inc.’s first claim is belied by the record. The district court did not make a finding that ORP had a copyright on its plate as a whole. Price, Inc. cites finding of fact paragraph 11 and conclusion of law paragraph 7 to support this assertion. The record does not support Price, Inc.’s contention. The court found as follows: "11. Plaintiffs have properly secured registration of their plate in the United States Copyright Office, both prior and subsequent to “publication” of their plate."

Based on this finding, the court concluded: "7. Proper analysis of the copyrightability of Plaintiffs’ ornamental plate requires that the work be considered as a whole, including any elements which may not be independently copyrightable apart from the work. Roth Greeting Cards v. United Card Co., 429 F.2d 1106 (CA 9, 1970)."

Price, Inc. next claims ORP should be estopped from claiming copyright protection extending beyond the floral designs in its plate. Price, Inc. argues that estoppel arose when the Copyright Office notified ORP regarding its third application for copyright “that the only portion of the work which is subject to copyright protection is the three floral illustrations applied to the plate.” This claim is without merit.