Hence, the Court issued the preliminary injunction on the basis of the meager record before it.[1] Only later and by way of this motion did the defendant submit sworn statements charging specific irregularities in the plaintiff’s acquisition of the copyright and challenging the validity of that copyright. Although much of the evidence in support of the defendant’s current motion derives from information obtained subsequent to the issuance of the preliminary injunction, it is apparent that with some diligence the defendant’s counsel could have followed its own suggestion of November 24th and interposed certain objections to the issuance of the preliminary injunction at the December 3rd hearing of that motion. Little Lisa chose, however, not to pursue its opposition at that time and instead now seeks to assert its objections.
Strong policy reasons favor the denial of the defendant’s motion at this time. To permit a party to withhold its objections to a preliminary injunction until such time as it can present the strongest possible case and allow it to then obtain a dissolution of the injunction would be judicially unwise. This is precisely the sort of situation accommodated by the distinction between emergency or temporary and permanent relief.
The Second Circuit has admonished against attempts “to relitigate on a fuller record preliminary injunction issues already decided” by the district court. American Optical Company v. Rayex Corp., 394 F.2d 155 (2d Cir.), cert. denied, 393 U.S. 835, 89 S.Ct. 109, 21 L.Ed.2d 106 (1968). Expanding on this standard, the court of appeals has pointed out that the district court need consider only “truly new evidence” on a motion to vacate a preliminary injunction. Semmes Motors, Inc. v. Ford Motor Co., 429 F.2d 1197, 1207 (2d Cir. 1970). Thus, consideration here will be limited solely to new evidence in support of arguments which were not available earlier to the defendant.
These arguments challenge primarily the validity of the certificate of copyright registration. In particular it is alleged that the plaintiff made fraudulent misstatements as to its proprietorship and the originality of the design. The plaintiff contends that any mistake in listing the names of the authors of the underlying work on the certificate was “ ‘innocent clerical error.’ ” Plaintiff’s Memorandum in Opposition to Defendant’s Motion to Dissolve the Preliminary Injunction at 42, quoting from Alart Associates, Inc. v. Aptaker, 279 F.Supp. 268, 270 (S.D.N.Y.), appeal dismissed, 402 F.2d 779 (2d Cir. 1968). See Affidavit of George Gottlieb, sworn to June 1, 1976, ¶¶ 3–8; Affidavit of David Binder, sworn to June 1, 1976, ¶¶ 13–18; Affidavit of Barbara Bucherelli, sworn to June 1, 1976, ¶¶ 4–6. This Court is mindful of the policy that courts seek to preserve copyrights rather than invalidate them on the basis of minor defects in registration certificates. Thomas Wilson & Co. v. Irving J. Dorfman Co., 433 F.2d 409, 412 (2d Cir. 1970), cert. denied, 401 U.S. 977, 91 S.Ct. 1200, 28 L.Ed.2d 326 (1971); United States v. Backer, 134 F.2d 533, 536 (2d Cir. 1943); Wrench v. Universal Picture Co., 104 F.Supp. 374, 379 (S.D.N.Y.1952); Nimmer on Copyright § 94.[2] In addition, the evi-
- ↑ Because a “verified complaint or affidavits standing undenied may be presumed true,” 7 Moore’s ¶ 65.04[3] at 65-63, a court may grant a preliminary injunction on the basis of pleadings and affidavits, even where no witnesses have been called. Semmes Motors, Inc. v. Ford Motor Co., 429 F.2d 1197, 1204–05 (2d Cir. 1970).
- ↑ The purchaser of an original work of art from its author can acquire both the right to the copyright on the original design as a proprietor, Nimmer on Copyright § 61.2, and also the right to copyright any original additions in a reproduction. New York General Business Law § 219-g, requiring a written assignment to transfer a right to copyright, is not applicable here. The law was intended for the protection of an artist who produces a work of fine art with no intention of having it mass produced but sells it to one who nevertheless reproduces the design contrary to the artist’s intention. The law was not meant to apply to the situation of an author who creates a work solely for commercial value and intends to have the purchaser reproduce the design. See Memorandum of the State Department of Law: Fine Art-Reproduction, [1966] N.Y.Laws 2915 (McKinney). In addition, the state law is inap-
