In 1972, Ralph Stewart, founder of the National Wildlife Art Exchange (“NWAE”) asked Gilbert to produce a watercolor of cardinals. Gilbert painted a colorful watercolor titled Cardinals in Apple Blossom based on photographs, sketches, and models of cardinals. Stewart paid Gilbert by check, noting on the back: “For Cardinal painting 20 x 24 including all rights, reproduction, etc.” Stewart subsequently used an image of the painting on his business cards, a copy of NWAE’s newsletter, and limited edition prints with Gilbert’s copyright notice available (required under the Copyright Act of 1909, which still governed at this time).

In 1975, Gilbert agreed to paint four watercolor birdlife pictures, including one of cardinals (titled The Cardinal), for the Franklin Mint Corporation. Franklin made engravings of the four paintings and sold them as a set.  Subsequently, NWAE sued Gilbert and Franklin Mint, alleging that the new paintings infringed the copyright of Gilbert’s commission piece for NWAE.

The district court found in favor of the defendants and granted Gilbert a declaratory judgment that The Cardinal did not infringe his earlier work Cardinals in Apple Blossom. On appeal, the Third Circuit held that although Gilbert used the same models for both pictures and the ideas were similar, the new expressions sufficiently differed from the original to avoid infringement. Thus, the Third Circuit affirmed the district court and entered a judgment in favor of Gilbert and the Franklin Mint Corporation.  

Editor's Note: It is possible that the court underscored the differences in the works in order to avoid holding that the artist infringed the copyright in works that he created (but in which he no longer owned the copyright)[1].

[1] For a similar case regarding the possibility of infringement despite the two works being from the same artist, see Gross v. Seligman, 212 F. 930 (2d Cir. 1914)