## Facts

- Peter Pan Fabrics, Inc. and Henry Glass & Co. were textile converters that purchased uncolored cloth, printed ornamental designs, and sold the cloth in bolts to dressmakers.
- Plaintiffs acquired a Parisian ornamental fabric design known as “Byzantium,” registered it as a reproduction of a work of art, and received a copyright certificate.
- Plaintiffs printed the design on cloth and sold it with concededly adequate copyright notices printed on the cloth’s selvage at each repetition of the design.
- Dressmakers typically removed the selvage when cutting patterns, or concealed it within seams, making the notices not visible on finished dresses unless seams were opened or the garment was turned inside out.
- Martin Weiner Corp., another textile converter, produced and sold a competing fabric with an all-over design that appeared essentially the same to an ordinary observer despite minor differences.
- The district court issued a preliminary injunction barring defendant from copying the “Byzantium” design; defendant appealed.

## Issues

1. Whether defendant’s fabric was substantially similar to plaintiffs’ registered “Byzantium” design such that it infringed.
2. Whether plaintiffs forfeited the copyright (dedicated the design to the public) because finished dresses made from the fabric were sold without visible notice, notwithstanding adequate notice on the fabric when sold in bolts.

## Decision

- The Second Circuit affirmed the preliminary injunction.
- The court held plaintiffs showed sufficient similarity under the ordinary-observer standard to support a likelihood of infringement.
- The court rejected forfeiture based on notice: adequate notice on the bolts of cloth was sufficient at least for preliminary relief, absent proof that notice could feasibly be placed on finished garments without harming their market value.
- Judge Friendly dissented on the notice issue, reading the statutory notice requirement more strictly as applied to the dresses sold to the public.

## Legal Principles

- For pictorial or ornamental designs, infringement turns on whether an ordinary observer would regard the overall aesthetic appeal of the accused work as the same, not on a meticulous catalog of small differences.
- Deliberate copying coupled with substantial similarity in overall appearance can establish infringement even where the copier introduces minor variations.
- Under the pre-1976 statutory notice regime, publication without adequate notice could forfeit copyright, but courts may decline to find forfeiture where the work bore concededly adequate notice when initially sold and where further notice on the end product may be commercially impracticable.
- On a motion for preliminary injunction, where notice on the original product is adequate, the alleged infringer bears the burden (for purposes of interim relief) to show that additional notice on the consumer product was feasible without impairing marketability.

## Conclusion

The Second Circuit sustained preliminary injunctive relief because the accused fabric’s overall appearance was substantially similar under the ordinary-observer test, and because the copyright was not shown to be forfeited where adequate notice appeared on the fabric as sold and the defendant did not prove that effective notice on finished garments was commercially feasible.


Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487 (2d Cir. 1960)