Clyde W. Atkinson, of Tallahassee, and Irving Nathanson, and Harold B. Spaet, both of Miami, for appellant.
Louis Jepeway, of Miami, for appellee.
Charles Hoffman, also known as 'Think-a-Drink Hoffman', a magician and entertainer, filed in the Circuit Court of Dade County Florida, his bill of complaint, praying for a permanent injunction against Maurice Glazer, another magician[153 Fla. 811] and entertainer, and Jordan Corporation, owned by the defendant Glazer, and trading under the name of 'Bill Jordan's Bar of Music'.
In the bill of complaint it was alleged, in substance, that Hoffman, as a result of great labor, time and efforts, developed and originated a performance by which he produced real, straight or mixed drinks or beverages, such as high balls, cocktails,
liquers, zombies, coffee and ice cream sodas from metal cocktail shakers which were shown to be empty and from beakers filled with water, which drinks were thought of or requested by members of his audiences; that beginning with 1935, after the development of the perfomance, plaintiff entertained with and played it before many audiences throughout the United States; that the performance was preceded by an 'address' written or produced by the plaintiff, which was on March 18, 1938, copyrighted to Charles Hoffman under the title of 'Think-a-Drink Hoffman' by the registrar of copyrights of United States of America under certificate numbered 9515.
It was further alleged that the defendant, Maurice Glazer, held himself out as a magician and performer and acted under the name of 'Think-a-Drink Count Maurice' and 'Have-a-Drink Count Maurice'; and that the several acts and performances are imitations and violations of the rights of the plaintiff, resulting in an infringement, breach and violation of his rights and to the detriment and damage of the plaintiff.
The defendant by answer either admitted or denied the several material allegations of the bill of complaint and admitted that he was a magician and performer and acted under the name of 'Have-a-Drink Count Maurice' but not under the name of 'Think-a-Drink Count Maurice'; he denied the allegation of infringement upon or breach of the rights of the plaintiff or that he attempted to deceive the public into thinking that his performance was similar to or like that of the plaintiff; that the performance of the act of mixing the drinks was a sleight of hand performance as old as legerdemain; that he at no time used the copyrighted address of the plaintiff or any of the materials used in his legerdemain performance;[153 Fla. 812] that he never imitated the plaintiff, but his performance was superior to that of the plaintiff; that the parties are magicians and each have specialized performances, and the parties to this suit are not the only magicians performing such special acts and neither party has a common right to said performance.
Testimony was taken before the Chancellor and at the conclusion thereof the Chancellor decreed the equities of the cause to be with the plaintiff and against the defendant and that the defendant had infringed and violated the exclusive rights, trade name, and work and performance of the plaintiff, and by an appropriate decree permanently enjoined and restrained the defendant below from using the name of 'Think-a-Drink Count Maurice' and 'Have-a-Drink Count Maurice'. An appeal therefrom has been perfected here.
Appellee's performance, as reflected by the record, is substantially, viz.: He opens his performance with an address, professionally known as 'patter'. The address appellee caused to be copyrighted. Subsequent to the 'patter' appellee proceeds to produce various cocktails, coffee, sodas and other drinks from pitchers, shakers, etc., and delivers these several drinks to the members of his audiences. These drinks are taken from 'seemingly' empty shakers and beakers. The mechanical equipment used and necessary for the sleight of hand performance given from time to time by the appellee is purchasable on the open market.
The appellant's act or performance consists of the use of similar mechanical equipment. He likewise attempts to deliver an address or professional 'patter' prior to the act or performance. He is able by sleight of hand performance to supply approximately any drink requested by the different members of his audiences. He points out that the act or performance is nothing more than a 'trick' or the common property of magicians.
The appellant points out that the performance of both parties in producing the requested drinks is only a sleight of hand performance; that it has been in existence for many years and is as common as pulling rabbits out of hats or snakes out of pockets. The magician usually wears a frock [153 Fla. 813] coat; surrounds himself with attractive female assistants; assumes a serious, wise and important attitude, but on close analysis the mixed drink performance is the old sleight of hand trick. The parties are in dispute as to which can excel in the performance, and, although the appellee is shown to have collected as high as $2,000 per week, the same cannot be relied upon as a criterion of success in the performance of the trick. The appellee entertained and performed under the trade name of 'Think-a-Drink Hoffman', while the appellant acted under the trade name of 'Have-a-Drink Count Maurice'. There is evidence to sustain the holding that the appellant had employed the name of 'Think-a-Drink Count Maurice.'
That part of the final decree holding that Charles Hoffman, also known as 'Think-a-
Drink Hoffman', was the exclusive owner of the copyright title and trade name supra as used by him, and the rightful and exclusive owner of the performance in which he produced some thirty-two different drinks from metal cocktail shakers 'seemingly' empty and from beakers filled of water is challenged here as a matter of law, i.e., the facts adduced not being in dispute it is ...