The Copyright Question

The Copyright Question

The Copyright

Question

According to Marvin Sandler's

testimony, Independent Living Aids was started in 1977 as one of several companies

owned by the Sandler family. In April of 1987 he and his wife actually bought

ILA from the family and actively took over its management themselves. His wife

held 60 percent of the stock, and he held the rest and acted as president.

In February, before this transfer, the ILA catalogs of several of the Sandler

companies were taken to a firm of copyright attorneys so that all the catalogs

could be copyrighted in a group. Copyrights can be obtained after publication,

and the ILA catalogs from 1985 on were included in this group of documents.

Entered into evidence at the trial were ten copyright certificates from the

U.S. Copyright Office for ILA catalogs beginning with 1985.

Independent Living Aids Logo

Notwithstanding this obvious proof of

copyright, many hours of questioning in the trial were devoted to such issues

as whether or not it was reasonable for ILA to copyright such a document. The

Zaretskys maintained that everybody received pictures from manufacturers of

the products, so those could not be exclusive to one company. Sandler pointed

out in excruciating detail the things he had done to set his catalog apart

from others. He inserted pithy little sayings and quotations. The ILA catalogs

included service announcements about free materials available to disabled people.

Many of the photographs that were used in the ILA catalog Sandler testified

were demonstrably taken by his photographers, and the catalog order numbers

were specific to his company. ILA began producing a color catalog on slick

paper, so it had quite a different appearance from the Maxi-Aids catalog, which

was produced on newsprint with black-and-white pictures.

Sandler maintained, and produced charts

and blow-ups to support his contention, that Maxi-Aids had taken his order

numbers and converted the first number into the letter corresponding to it

in the alphabet--7 to G, 8 to H, etc. He also pointed out that the organizing

principle for Maxi-Aids's listing sewing products, for example, turned out—by

no coincidence to his way of thinking—to be identical to that in the ILA

catalogs.

Mulholland argued for the Zaretskys that

the catalogs were always different colors. The cover layouts were different.

Maxi-Aids carried many more products than ILA did, and they often charged less.

There were lots of instances in which both companies used photos provided by

manufacturers. All this demonstrated that Maxi-Aids was not infringing on copyright.

Furthermore, ILA had no right to obtain copyrights on its catalogs anyway because

no one had done that before, and everybody copied from everybody else anyway.

But the jury didn't buy it.

Elliott Schreier worked for the American

Foundation for the Blind for some years. According to the 1994 Braille Monitor

story, he visited the Maxi-Aids offices, where Zaretsky offered him a bribe.

Since bribery charges were not at issue in this trial, that part of his story

could not be admitted into evidence. But this is what he did say in answer

to Jack Dweck's questions on the stand:

Q: And tell us, please, what you observed

in that room, at the time that Mr. Elliot Zaretsky told you this was the development

room for their catalogs?

A: At that time I observed stacks of

catalogs of the companies involved in the blind and vision-impaired business,

and it would be ILA; Vis-Aids; AFB, the organization I worked for. There was

a drafting table or production type of table. There were knives, scissors,

glue, equipment used primarily in cutting and pasting of catalogs.

Q: When you say in cutting and pasting

of catalogs, did you actually see this operation?

A: I don't believe there was anybody

there at the time cutting and pasting, but there was certainly the appearance

that that is the type of activity ongoing there with scraps of paper, scraps

of materials and catalogs, as well as the stacks of catalogs. MR. MULHOLLAND:

Objection. Move to strike. THE COURT: Sustained. Strike out the entire last

answer. He was asked if he saw anybody cutting and pasting. He said no. Other

than that the entire answer is stricken. The jury is instructed to disregard

it.

Q: Now, at that time did you have a conversation,

a further conversation with Elliot Zaretsky?

A: I had mentioned to Elliot in passing

whether or not this is where one of the pictures in their catalog of an AFB

product we had designed had been taken and cut and pasted into their catalog.

And the conversation—he indicated yes, it was, and that this was part

of the way that costs were kept down, by using other people's photographs and

components in developing their catalog.

Q: And, Mr. Schreier, did you have any

further conversation with Elliot Zaretsky at that time, sir?

A: I don't recall so.

Q: Now, how do you know that there were

other companies' catalogs in this room?

A: I saw them.

Q: What is the basis of your statement,

sir, that you saw ILA catalogs or AFB catalogs?

MR. MULHOLLAND: Objection. No such testimony,

Judge.

Q: Well, the witness said he saw catalogs.

THE COURT: What catalogs did you see while you were in the defendant's facilities?

THE WITNESS: I remember seeing—

THE COURT: You are getting back to flank

speed again.

THE WITNESS: Sorry.

THE COURT: You are not designing catalogs

now. You are in a courtroom. So slow down.

THE WITNESS: Sorry.

THE COURT: We don't pay by the hour here.

Slow down.

THE WITNESS: Okay.

THE COURT: Now, tell us what catalogs

you saw. I lost you. THE WITNESS: AFB, the organization I worked for; Independent

Living Aids; Vis-Aids. Those three I specifically remember.