Home/Eleventh Circuit/Sherry Manufacturing Company, Inc., Cross-Appellant v. Towel King of Florida, Inc., a Florida Corporation, Cross-Appellee

Sherry Manufacturing Company, Inc., Cross-Appellant v. Towel King of Florida, Inc., a Florida Corporation, Cross-Appellee

753 F.2d 1565, 225 U.S.P.Q. (BNA) 1005, 1985 U.S. App. LEXIS 28181
CourtCourt of Appeals for the Eleventh Circuit
DecidedFebruary 27, 1985
Docket83-5810
StatusPublished
Cited by10 cases

This text of 753 F.2d 1565 (Sherry Manufacturing Company, Inc., Cross-Appellant v. Towel King of Florida, Inc., a Florida Corporation, Cross-Appellee) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sherry Manufacturing Company, Inc., Cross-Appellant v. Towel King of Florida, Inc., a Florida Corporation, Cross-Appellee, 753 F.2d 1565, 225 U.S.P.Q. (BNA) 1005, 1985 U.S. App. LEXIS 28181 (11th Cir. 1985).

Opinion

FAY, Circuit Judge:

Sherry Manufacturing Company (“Sherry”) brought suit in federal district court against Towel King of Florida (“Towel King”) alleging copyright infringement and unfair competition. Sherry’s complaint essentially alleged that Towel King copied and distributed a beach towel bearing one of Sherry’s copyrighted designs. The trial court agreed and judgment was entered in favor of Sherry and against Towel King for $87,920.20. While we accept without hesitation the majority of the trial court’s findings of fact and conclusions of law, we do not find that Sherry’s derivative work, as a matter of law, was copyrightable. When compared to the public domain design, it simply lacks sufficient originality to justify copyright protection. We therefore reverse.

*1566 FACTS

Sherry and Towel King are both incorporated in the state of Florida and are competitors in the souvenir beach towel industry. The subject matter of this lawsuit relates to a beach towel having a silk screen printed decorative scene depicting three palm trees reaching upward out of the sand, an ocean view above the sand with a sailboat in the right hand corner, and clouds above the ocean horizon. The evidence is uncontroverted that Sherry first marketed such a towel (“Sherry’s Original Design”) in the early 1960’s. Sherry’s Original Design was not copyrighted, and Sherry’s founder and Chief Operations Officer, Quentin Sandler, testified that more than one competitor copied this design for use on their own products. (T. at 195).

In 1975, Sherry decided that it would be in its best interest to obtain copyright protection for its various designs. Juliana Bramucci, Sherry’s artist, was assigned the task of redesigning Sherry’s Original Design. This alteration process, which involved for the most part subtle changes in the dimensions of the beach, trees and water, was completed in September of 1976. A towel printed with the “New Design” along with the appropriate application to register a copyright was thereafter submitted to the United States Copyright Office and given Registration No. K 120614.

Shortly after copyrighting their New Design, Sherry noticed what has been termed by the .parties a “watermark defect” in the artwork. This error is simply a patch of blue where the trunk of the middle tree should be, giving the illusion that one is looking through the trunk at the ocean. 1 Ms. Bramucci testified that she corrected this error immediately after it was brought to her attention. Sherry thereafter printed and marketed beach towels featuring the corrected version of the New Design. (“Corrected New Design”).

In 1981, Sherry learned that one of its competitors, Towel King, was selling a beach towel which appeared to be identical to Sherry’s New Design. 2 In fact, Towel King’s product even included the telltale watermark defect. On August 4, 1981, Sherry filed this copyright infringement action against Towel King.

*1567

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Bluebook (online)
753 F.2d 1565, 225 U.S.P.Q. (BNA) 1005, 1985 U.S. App. LEXIS 28181, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sherry-manufacturing-company-inc-cross-appellant-v-towel-king-of-ca11-1985.