Opinion
August 14, 1942.
Weil, Gotshal Manges, of New York City (Horace S. Manges, Jesse D. Wolff, and Robert L. Werner, all of New York City, of counsel), for plaintiff.
Kahn Unger, of New York City (Charles L. Kahn, of New York City, of counsel), for defendants Fox Publications, Inc., and Colonial News Co. Inc.
The defendant Fox Publications, Inc. (formerly known as Bruns Publications, Inc.), does not seem to have profited by its experience in the case of Detective Comics, Inc., v. Bruns Publications, Inc., D.C., 28 F. Supp. 399; modified and affirmed, 2 Cir., 111 F.2d 432, by which decision I think this case is ruled.
A comparison of the cartoons of "The Lynx" with "Blackie the Mystery Boy" published by the defendant Fox Publications, Inc., in its magazine "Mystery Men Comics", and distributed by the defendant Colonial News Company, Inc., with the cartoons of "The Batman" with "Robin the Boy Wonder", published by the plaintiff in its magazines "Detective Comics" and "The Batman", convinces me there has been a deliberate copying by the defendant of drawings and cartoons of the Batman and his companion Robin as contained in the issues of "Detective Comics" of April, 1940 (on the newsstands March 6, 1940), of May, 1940 (on the newsstands April 5, 1940), of June and July, 1940 (on the stands respectively on May 3 and June 5, 1940); and in the spring issue of "The Batman" on the stands April 24, 1940. These publications were all duly copyrighted by the plaintiff.
The infringing publications by the defendants were contained in the "Mystery Men Comics" August and September, 1940, issues.
They were warned of the claimed infringement by letter on July 2, 1940, shortly after the August number came out, but did nothing about it and went on with their publication in the September issue.
Inasmuch as formal findings of fact and conclusions of law will be filed, it is not necessary to continue this memorandum. Judgment will be directed for the plaintiff, in the form approved in the case cited, against the defendants Fox Publications, Inc., and Colonial News Co., Inc. (the action having been discontinued as to the Interborough News Co.), with costs, $2,000 damages and $500 counsel fees.
Plaintiff's counsel is requested to propose findings and conclusions and serve a copy upon defendants' counsel who may have five days in which to send to me any criticism thereof which he may care to make, a copy thereof to be served upon plaintiff's counsel. The proposed findings and criticisms may be sent to me at my chambers.