Cheney Brothers, Inc. v. Doris Silk Corp.

United States Court of Appeals for the Second Circuit · 1929 · Property

PropertyIntellectual PropertyUnfair CompetitionCopying of Unprotected Designsunprotected designsimitationcommon-law patentcommon-law copyright

Facts

The plaintiff manufactured silk fabrics and each season introduced many new patterns, only a small fraction of which became commercially successful and only for a short season. It was impractical or impossible to protect all such patterns by design patent, and the plaintiff asserted that the designs could not be copyrighted. The defendant copied one of the plaintiff's successful designs during the 1928 season and sold it at a lower price. The plaintiff sought protection only for the duration of the season to prevent the copying of its successful design.

Issue

May a court, in the absence of patent, copyright, or some other recognized common-law right, forbid a competitor from copying a successful silk design simply because the design was created through the plaintiff's skill and expense and has only short-lived commercial value? Does International News Service v. Associated Press authorize such protection?

Rule

In the absence of some recognized right at common law or under statute, a person's property right is limited to the physical chattels embodying the invention or design, and others may imitate those chattels at will. Courts may not create a common-law patent or copyright to prohibit copying of unpatented and uncopyrighted designs, and International News Service is limited to situations substantially similar to news misappropriation cases rather than establishing a general anti-copying doctrine.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Los Angeles, Mira Solano runs a small home-goods studio that releases dozens of ceramic lamp shapes each spring. One lamp becomes a hit for only four months, and a rival, Pacific Ember Decor, buys one at retail, copies the shape exactly, and sells identical lamps for less while clearly using its own name on the boxes.

If Mira sues to stop the copying for the remainder of the season, what is the strongest argument for Pacific Ember Decor under the governing rule?

Explanation. The majority rule is that absent a recognized common-law or statutory right, the creator's property interest extends only to the physical chattels embodying the design, and others may imitate those chattels at will. The request for only seasonal protection does not change that result, because recognizing even temporary exclusivity would amount to judicial creation of a common-law patent or copyright. Mere copying, without passing off, breach of contract, or dishonest procurement, is not actionable. (Derived from Cheney Brothers, Inc. v. Doris Silk Corp. (1929).)