CITE:  98 F.2d 872
CMON:  September 1938
PLAIN: Charles William Dorsey
DEFND: Old Surety Life Insurance Company
COURT: Circuit Court of Appeals, Tenth Circuit
DATE:  September 6, 1938

Appeal from the District Court of the United States for the Western District
of Oklahoma; Edgar S. Vaught, Judge. Copyright infringement suit by Charles
William Dorsey against Old Surety Life Insurance Company. From a decree of
dismissal, Charles William Dorsey appeals.

  Method for life insurance policies is not copyrightable.

JUDGE: PHILLIPS, Circuit Judge
Before PHILLIPS, BRATTON, and WILLIAMS, Circuit Judges.


Dorsey brought this suit against Old Surety Life Insurance Company,
hereinafter called Insurance Company, for alleged infringement of
copyrights on three forms of life insurance policies, seeking an
injunction against future infringements and damages for alleged past

In his bill Dorsey alleged that he is the originator and author of three
types of insurance policies, denominated "Family Group Life Insurance
Policy", "Family Group Policy", and "Reserve Loan Life Insurance Co.
Policy Family Group"; that copyrights covering such policies were duly
granted to him in October 1927, November 1928 and September 1930,
respectively, and that he is now the owner of such copyrights; that such
policies were composed, edited, prepared, arranged, and compiled by him
at great expense after extended research and as a result of more than
thirty years of actuarial and sales experience in the life insurance
field; that such publications are of the value of $100,000;
that commencing on a date unknown to him and continuing until on or
about July 28, 1936, the Insurance Company had without license, leave,
right, or authority knowingly published, issued, and sold certain
insurance policies denominated "Family Group Policy" which infringed
vital portions of Dorsey's copyrighted publications.

The bill sets out the parts of the copyrighted forms alleged to be
infringed and the parts of the Insurance Company's policies alleged to
infringe them.

The trial court sustained a motion to dismiss the bill and entered its
decree dismissing the suit.  Dorsey has appealed.

The right secured by copyright is not the right to the use of certain
words, nor the right to employ ideas expressed thereby.  Rather it is
the right to that arrangement of words which the author has selected to
express his ideas {1}.

In Kaiser & Blair, Inc., v. Merchants Association Inc., 6. Cir.,
64 F.2d 575, 577, the court said: "It has been frequently held that the
copyright law does not afford protection against the use of an idea,
but only as to the means by which the idea is expressed."

It follows that Dorsey's copyrights in nowise restricted the right of the
Insurance Company to use the plans of insurance embraced in the copyrighted
policies.  They only restricted the use or copying of the means of
expression selected by Dorsey to the extent that such means were original
with Dorsey.

To be copyrightable a work must be original in that the author has created
it by his own skill, labor, and judgment.  If he takes mater which has
been dedicated to the public by publication without copyright and adds
thereto materials which are the result of his own efforts a copyright
thereon is not void, but valid as to the new and original matter.  However,
the degree of protection afforded by the copyright is measured by what is
actually copyrightable in the publication and not by the entire publication

Insurance policies were old at the time Dorsey's copyrights were granted.
Standard provisions had been worked out through long study and experience.
Many of such standard provisions are now inserted in life insurance
policies pursuant to statutory requirement.  Oklahoma requires that
certain provisions be included in each policy of life insurance issued or
delivered in Oklahoma or issued by a life insurance company organized
under the laws of Oklahoma. See Section 10524, O.S. 1931, 36 Okl.St.Ann.
Section 218.

The copyrighted forms here involved in the main are an aggregation of
these standard provisions including those required by statute.  As to
those provisions it is clear that there is no infringement.  One work
does not violate the copyright in another simply because there is a
similarity between the two if the similarity results from the fact that
both works deal with the same subject or have the same common source.
Affliated Enterprises Inc. v. Gruber, 1 Cir., 86 F.2d 958, 961.  The
provisions dealing specifically with the family group are alleged to be
new and original.  The copyrights if valid at all must be limited to
those particular provisions and to the particular means employed by
Dorsey to express the contractual terms thereof.  The provisions in the
policies of the Insurance Company dealing particularly with the family
group are neither an exact nor a substantial copy of the family group
provisions in the copyrighted policies.  There is no more similarity
than might naturally be expected in policies embracing the same plan of
insurance and incorporating like contractual provisions.  There can be
no doubt that the Insurance Company is free to make contracts embracing
like contractual provisions as those included in the copyrighted policies
and to use suitable words to express the provisions of such contracts
so long as it does not copy the particular means of expression originated
by Dorsey.

A copyright upon a form of contractual provision should not be construed
so as to impinge upon the natural right of persons to make contracts
containing the same contractual provisions and creating like contractual
rights and obligations, and similarity of expression should not be held
to constitute infringement in such cases.  Necessarily, where the same
contractual provision is to be expressed there will be similarity of
language.  To constitute infringement in such cases a showing of 
appropriation in the exact form or substantially so of the copyrighted
material should be required.  See Brightley v. Littleton, C.C.Pa.,
37 F. 103, 104.

Hence, we think the trial court was fully warranted in holding upon the
face of the bill that the policies of the Insurance Company did not
infringe Dorsey's copyrighted forms.

The decree is affirmed.


{1} Holmes v. Hurst, 174 U.S. 82, 86, 19 S.Ct. 606, 43 L.Ed. 904;
Hartfield v. Peterson, 2 Cir., 91 F.2d 998, 999; Guthrie v. Curlett,
2 Cir., 36 F.2d 694, 696; Ansehl v. Puritan Pharmaceutical Co.,
8 Cir., 61 F.2d 131, 137, 138; Harold Lloyd Corp. v. Witwer, 9 Cir.,
65 F.2d 1, 25; Kaeser & Blair, Inc., v. Merchant's Ass'n, Inc., 6 Cir.,
64 F.2d 575, 577; Dymow v. Bolton, 2 Cir., 11 F.2d 690, 691.  See also,
Affliated Enterprises Inc. v. Gantz, 10 Cir., 86 F.2d 597, 598, and
Affliated Enterprises Inc. v. Gruber, 1 Cir., 86 F.2d 958, 961.

{2} American Code Co. Inc. v. Bensinger, 2 Cir., 282 F. 829, 834; Harold
Lloyd Corp. v. Witwer, 9 Cir., 65 F.2d 1, 23.