It must be remembered that the Viet Nam War established the poster industry with the many Peace Posters that were created to bring the opinions of the silent majority into support for the "End to the War."
With Blacklight Inks that glowed in the dark with Ultraviolet Light, the Flower Child, Hippie- oriented College Student became the primary customer of the "End the War" poster business.
The old "Ban The Bomb" sign became the "Peace Sign" for the Viet Nam War. While there were many numerous peace designs on the market, one design was destined to become the best all-time selling peace poster of the era; we called it "Super Peace."
It was drawn and designed by Thomas Korpalski of Michigan and when he traveled to Ohio to have us print it, we signed an exclusive license with him to become the sole printer and distributor of the design.
Personally, I traveled to the Miami Gift Show in January of 1969 and displayed the poster in our booth.
Unbeknown to Mike or me, Tom Korpalski entered into an agreement with Hip Products as the exclusive distributor and our agreement with him was worthless!
He was under eighteen years of age and since we had seen him with a full beard and long hair, we assumed that he was over eighteen and that he was of legal age!
Hip Products was not so trusting! After the poster had become a national best seller, Hip had arranged to have Tom's parents co-sign the agreement and as his legal guardian, they entered into the contract that was very binding on Tom.
When Raymond Scott, a Detroit attorney notified us, that we were producing the poster without a contract, Mike and I were extremely up-set! We had established the poster nationally and now Hip Products had the exclusive rights to the poster!
To avoid any potential problems, Mike and I decided to design our own Super Peace poster and copyright the design!
We asked Bob Adams our in-house silkscreen manager to work with our brother-in-law Danny Rogers to develop our own Super Peace design.
After its completion, everyone at Pro Arts felt that our design was better than the Korpalski design.
Mike took the design to Ned Oldham, an Akron attorney that was supposed to "specialize in copyright law."
Mike showed Ned both Korpalski's Peace Poster and our new Super Peace design for his opinion on any infringement problems that might occur in the future should we decide to produce our new peace poster.
Ned not only stated to Mike that their was no problem, Ned sent the first two copies off the press into the Library of Congress, Office of Copyright and obtained a copyright certificate on the new poster!
Without any knowledge of copyright laws, we relied upon this attorney's experience to guide us and protect us against an infringement possibility. This was one of our first big mistakes!
Shortly after Pro Arts obtained notification that its "copyright" on the Super Peace poster had been registered in the Copyright Office, Mike and I received a "cease and desist" letter from Korpalski's attorney, Raymond Scott.
Ray Scott was a Detroit attorney that had taken Korpalski's action on a contingency basis. His letter was simple and to the point. Stop producing Pro Arts' Peace poster and report the number of copies sold to date.
While Mike and I continued to produce the poster, Mike took our design and Korpalski's design back to Ned Oldham in Akron to get his opinion about Scott's letter.
When Mike returned to our office, he was upset. He stated that Ned denied stating that our design was not an infringement prior to sending in our registration and Ned felt after viewing both designs that we had a "possible infringement" on our hands! If Ned Oldham had felt the design to be an infringement, why did Ned send two copies of our design off to be registered at the Copyright Office? You would think he would have said "something" prior to filing for our copyright?
I called a friend of mine in Akron to see if he knew any other attorneys that might be knowledgeable in Copyright Law and obtained the name of William Holland.
When I called Holland, he stated that he was representing a defendant in another lawsuit that my uncle, E.M.Trikilis was suing and that this might be a "conflict of interest." However he did recommend another firm called Freeman and Taylor stating that they were knowledgeable in copyright law and could possibly help Mike and me.
After calling and making an appointment with William Freeman and his partner Reece Taylor, I took both our poster and Korpalski's poster to the meeting. Prior to discussing the merits of our case, I taped both posters on the wall of their conference room so they could compare both designs at the same time.
After they looked at both designs, I stated Mike's and my desire to defend any harassment lawsuit if we were not guilty of infringement. Since Mike and I intended to become a much larger company, we did not want to establish a history of settling copyright lawsuits because we were being harassed.
Scott had indicated in his letter that his client, Korpalski, would accept $3,000.00 as a settlement to date and license us the rights to his design for 10% of our gross sales.
Freeman and Taylor both stated that they could successfully defend our poster for about $2,000.00.
After returning to our office, Mike and I received a letter from Freeman and Taylor stating clearly "in their opinion, our Super Peace poster did not infringe on the other design."
With this letter, Mike and I decided to defend the lawsuit. This was a BIG MISTAKE that nearly put Pro Arts out of business!
Three years later, we had paid Freeman and Taylor over $8,000.oo and we still owed them $4,000.00 for their "work."
Additionally, the Court date was set and now Freeman and Taylor were recommending that we settle with Korpalski and Scott prior to going to trial. Scott was demanding $50,000.00 now since we has sold over 200,000 peace posters and Pro Arts was suffering from poor sales and production at this time and was nearly out of business!
After Freeman and Taylor suggested we settle the case, we fired them and asked Burke, Berrick and Haber to represent us in the late lawsuit.
They sent Tony Hartman to our office to review the case. As we were being pressured to go to court, Hartman came into our conference room with both posters taped on our wall.
After he looked at both designs for only a few minutes, he stated very clearly that there was a definite infringement and that we as the plaintiffs, had a good case!
When I told Tony that we were the defendants, he stated that we should have settled this long before it ever got to this point!
Needless to say, we were in too deep and the very existence of Pro Arts at this point was threatened! When we went to Court to try the case, Tony and Scott went into the Judge's Chambers and discussed the financial condition of Pro Arts and the fact that if there was a long trial and a Judgment was given to Korpalski, the ability to collect would not be likely.
The Judge stated that we should settle the case and with this advice, we pledged a $15,000.00 settlement to Korpalski with $5,000.00 due at time of signing the settlement agreement and $1,000.00 per month for the next 10 months.
Needless to say, after refusing to pay Freeman and Taylor for the $4,000.00 we still owed them, they sued Pro Arts in Common Pleas Court.
Our attorney, Roger Ingraham, counter-sued for Malpractice on the basis that Freeman and Taylor gave us bad advice in the beginning.
We lost the case even though the judge could not believe that Freeman and Taylor had written the letter stating that our design was definitely not an infringement on Korpalski's design. The Judge stated that no attorney should ever give a letter like that one to any client! Yet, we still lost!
In adding up the total cost of the Super Peace lawsuit, it cost Pro Arts over $33,000.00 to settle all the actions.
If the correct advice had been given either prior to filing the Pro Arts Copyright or prior to defending the lawsuit, only a $3,000.oo liability would have resulted!
When people hear nightmare stories about lawyers, is it any wonder how these nightmares are created?
While copyrights are constantly filed, they are never any good until the time comes either to sue someone for infringement or to defend you from litigation.
Anyone can take anything and submit it to the Copyright Office for Registration.
If there is a potential infringement, the holder of the earliest registration will prevail if there is a similarity that evokes a copyright lawsuit.
Having a certificate that is dated by the Copyright Office only states the day it was recorded for protection! It can protect any new designs incorporated in an existing copyright or an expired copyright, but it cannot replace a copyright that is still valid even if it significantly changes it. So long as any person without any real knowledge of copyright law can look at both designs and see the basic elements of the designs that are similar in most respects it can be considered an infringement of the earlier art!
The belief that you can change a copyright slightly and steal a design for commercial gain is totally untrue!
This was later established in 1977 when Hustler Magazine owned by Larry Flynt of Columbus, Ohio airbrushed Farrah's Red Bathing Suit off her poster and had an artist paint the poster over again posing Farrah in the nude!
Farrah refused to sue under her "Right of Publicity" since Flynt did not license her name or image and Pro Arts sued Hustler for copyright infringement and won the suit in 1984!
As a person that has been on both sides of copyright litigation, I always try to settle the infringement prior to going to suit. I try to avoid litigation at all possible points where the conflict exists.
People feel that I am a litigator since I have been in several lawsuits as a plaintiff. Yet, if people did not try to steal from me or cheat me, there would be no grounds for a lawsuit.
I will, though I dislike them with a passion, never feel threatened by anyone proposing to sue me. Once I am involved with litigation, I will not settle thereafter. If you do not have the stomach for the suit to begin the suit, you should never sue anyone.