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Who Owns the Descriptions in Auction Catalogs? Copyright Lawsuit Looms

by David Hewett
 
A lawsuit filed in Texas has drawn the attention of the numismatic community.

Its resolution may pose problems for the auction industry as a whole.

On November 7, 2006, Heritage Auction Galleries, Inc. of Dallas filed suit against Superior Galleries, Inc. of California, charging copyright infringement, unfair competition, and that Superior had flat out stolen its printed catalog descriptions relating to coins. Heritage claims that Superior “has reproduced and distributed, and is continuing to reproduce and distribute, to the public, auction catalogs containing unauthorized copies and/or derivative works of the Copyrighted Works that were copied and/or derived from Heritage’s own catalogs and/or archives.”

Lori M. Carr, one of Heritage’s attorneys, said, “To protect its proprietary information, Heritage had to commence the suit.”

Heritage declared that “the coin and currency descriptions are the creative expression of Heritage’s in-house catalogers. To the extent Heritage’s descriptions are created by independent contractors, they are works for hire and/or assigned to Heritage. The coin and currency descriptions at issue in this case appeared in Heritage’s paper and on-line catalogs and archives and are the exclusive property of Heritage.”

Those descriptions, Heritage claims, “include the identifying features, grade, color, and detailed description of the condition and history of the coin or currency.”

The battle between the numismatic heavyweights appears to have been provoked by Superior’s hiring of former Heritage cataloger James Jones. In 2005 Heritage took Superior to court and alleged trade secret misappropriation, but that matter was settled “without any restrictions on the former employee’s ability to work for Superior” (according to Superior attorney Robert Rickman).
 
Attorney Lori Carr replied, when asked about Jones, “Jim Jones is not a named defendant in the litigation. The target of the litigation is Superior’s usage of Heritage’s works, not Mr. Jones.” She also wrote, “As to whether any of the subject matter descriptions were penned by Mr. Jones, we do not have data that supports that contention. Heritage has a large in-house staff of catalogers, but it does retain outside experts as a collection or work schedule may dictate.”
 
This is no little two-bit squabble over who mistakenly described some Indian-head cents or how deeply the silver Kennedy half-dollars were scratched, involving a couple of dealers doing business from card tables on a Sunday at the local American Legion hall.
 
Heritage Rare Coin Galleries and Numismatic Auctions are divisions of Heritage Auction Galleries, the largest numismatic dealer and collectibles auction business in the world. Begun in 1976 by founders Steve Ivy and Jim Halperin, the firm boasts of having 284,682 registered bidders. It offers Americana, books and manuscripts, art, coins, comics, currency, memorabilia, jewelry, timepieces, movie posters, and sports collectibles. Various specialists for Heritage are familiar to viewers of the popular Antiques Roadshow, among them Rudi Franchi and Kathleen Guzman. Indeed, it’s difficult to find a category of collectibles that Heritage hasn’t handled.

Superior Galleries is the older firm. It was founded by Isadore Goldberg in 1930 and in 2001 was acquired by Silvano DiGenova, who became CEO. Superior is a publicly traded company, one of only two in the rare coin marketplace. On January 9, 2007, Superior was acquired by DGSE Companies, Inc. (a NASDAQ-traded company). Then DGSE’s acquisition subsidiary took over the day-to-day operations of Superior. The acquisition was expected, but the terms of the sale were not. Whether the lawsuit affected the sale is not known, but the purchase price was reduced from earlier figures, and an all-stock agreement was negotiated. DiGenova was replaced, and all but two of the board members resigned. William Oyster (COO of DGSE) has been appointed the new interim chief executive officer of Superior.


The new parent firm is also a major player in the appropriate fields. DGSE Companies, Inc. wholesales and retails jewelry, diamonds, fine watches, and precious metal bullion products and rare coins to domestic and international customers through its Dallas Gold and Silver Exchange and Charleston Gold and Diamond Exchange subsidiaries.


Heritage and Superior share a target audience, the hundreds of thousands—some say millions—of coin and currency collectors who spend big bucks on their collections yearly. Make no mistake, coin collecting is a huge hobby. In 2002 the U.S. Mint estimated that 139 million adults were actively involved in collecting the state quarter series. Although exact figures are hard to come by, the largest of the specialist publications, Coin World, using the circulation numbers for all the magazines in the field, arrived at a total of 444,908 adult readers of coin-centered publications. It estimated that two to three times that number were spending time and serious money on coins. Using the lower of the figures, nearly one million adult Americans are coin collectors. That’s one very big target audience.


Coin and currency collecting has its own language with specific terms, phrases, and abbreviations for measurement, condition, description, and reference material. They may appear foreign to outsiders, just as “skinned,” “married,” “Nutting 319,” and “Sack, Vol. X, plate 3099” in the description of a highboy may be to the furniture neophyte, but serious collectors soon learn the language and use it constantly.

For example, and to use one of the shorter descriptions cited in this lawsuit, consider this from a Heritage catalog listing for a May 3, 2005, sale:

“1785 COPPER, Vermont Copper, ‘VERMONTS’. PCGS graded EF 40. Deep, glossy chocolate-brown surfaces show minimal wear, just the normal irregular strength of detail and modest planchet roughness. Listed on page 68 of the 2006 Guide Book.”
 

Heritage claims this is how either the same coin, or an identical one, was described in the Superior catalog for a September 29, 2006, sale:
 

“1785 COPPER. Vermont Copper, VERMONTS. AU 53 PCGS. RR-2. Bressett 1-A, R.2. Deep, glossy chocolate-brown surfaces show minimal wear, just the normal irregular strength of detail and modest planchet roughness. Listed on page 57 of the 2005 Guide Book.”
 

(For those interested in such matters, this is what those terms mean: the date, metal, denomination, basic identification, and how it was marked appear first, not always in the same order; the condition grade follows, in this case, EF 40 and AU 53 mean extra fine and almost uncirculated with numerical grade equivalents; PCGS is a grading service; planchet is the original piece of metal before striking; Kenneth Bressett is coauthor of important coin grading books; and R.S. Yeoman’s annual guide book is a standard in the coin world.)
 

Some of the examples cited in the suit are brief but unmistakably similar.

Heritage describes a 1798 Flowing Hair dollar: “The centering is virtually perfect, and the quality of manufacture is simply as good as one could hope to find in a Flowing Hair dollar,” Heritage, November 2, 2005.
 
Superior describes the same: “The centering is virtually perfect, and the quality of manufacture is simply as good as one could hope to find in a Flowing Hair dollar,” Superior, September 29, 2006.
 
Several examples of purportedly copied descriptions run to well over 300 words. Even those with no numismatic knowledge can detect the similarities in those descriptions.

Here is Heritage in describing an 1879 four dollar gold coin: “The regal beauty of this curious denomination has kept demand very high for an attractive example, such as the coin offered here, and many numismatists have long desired to own such a prize. However, the price of ownership seems to continue to outpace all but those who greatly desire and can afford the cost required to secure an example. Here is an opportunity for yet another collector to fulfill the dream of finally obtaining one of America’s most popular and unusual denominations ever produced,” Heritage, February 23, 2005.
 
Superior, for the same: “The regal beauty of this curious denomination has kept demand very high for an attractive example, such as the coin offered here, and many numismatists have long desired to own such a prize. However, the price of ownership seems to continue to outpace all but those who greatly desire and can afford the cost required to secure an example. Here is an opportunity for yet another collector to fulfill the dream of finally obtaining one of America’s most popular and unusual denominations ever produced,” Superior, September 29, 2006.
 
At the heart of Heritage’s suit is the claim that “Heritage’s coin and currency descriptions are copyrightable subject matter under the Copyright Laws of the United States,” leading to the accusation that “Superior systematically and routinely copies Heritage’s catalog and archived descriptions of coins and currency previously offered for sale or auction by Heritage.”

On October 24, 2006, Heritage Numismatic Auctions, Inc., applied to the Library of Congress, Copyright Office, for copyrights for 12 specific descriptions of coins, ranging from a 1796 half-dime with “Liberty” misspelled “Likerty,” to a 1927 $20 gold piece with an “S” mint mark. The application was accompanied by a check for $540. Thirteen days later, Heritage, through its lawyers Lori M. Carr of Carr Law Firm and Kay L. Schwartz of Gardere Wynne Sewell, LLP, filed the lawsuit in Dallas, charging copyright infringement; contributory copyright infringement; and violation of California unfair competition law.

On January 8, 2007, Superior answered Heritage’s filing. Its attorney, Robert Rickman of the law firm Fish & Richardson P.C., while noting that Heritage had filed the copyright applications, denied “that Plaintiff’s coin and currency descriptions are copyrightable subject material under the Copyright Laws of the United States,” and also denied “that Plaintiff is the owner of all rights, titles, and interest in the ‘Copyrighted Works’.” In short, Rickman denied the validity of the core assertion of Heritage’s allegations.
 
Rickman assembled a virtual laundry list of “Affirmative Defenses” to Heritage’s charges. Among them are “unclean hands”; that the works “do not constitute copyrightable subject matter”; that “the works purportedly infringed are not original”; the “scenes ࠦaire” doctrine (meaning that where there is no other way in which to describe or show something, the questionable object or term is not copyrightable); the “Fair Use” doctrine (a broad term that’s subject to case-by-case definition, meaning that fact-centered usage that does not harm the original may be permitted); that there would be a violation of the First Amendment if Heritage prevailed; Heritage’s failure “to register the works within three months of publication”; and on and on, for a total of 21 “Defenses.”
 
Attorney Rickman charged that Heritage had an ulterior motive for bringing the copyright infringement suit; it was “an orchestrated act by Heritage that was done for the sole reason of manufacturing a claim against Superior.”
 
He conceded that Heritage was the world’s largest collectibles auctioneer and alleged, “Heritage has abused its position of dominance and continues to do so, attempting to crush smaller competitors in the market by unlawful means, including an illustrious pattern of frivolous litigation. In particular, this litigation is the latest attempt in a series of sham lawsuits meant to threaten, intimidate, harass, and wipe out a smaller competitor, Superior, in order to further increase Heritage’s market share.”
 
Superior offers a chilling assessment of the situation. “There is a dangerous probability that Heritage will succeed in its attempt to monopolize the Market because Heritage controls in excess of sixty percent (60%) of the Market, and any success that Heritage has in driving competitors such as Superior from the Market will strengthen Heritage’s monopoly and/or confer a monopoly on Heritage.”
 
Heritage’s attorney Carr told us, “The litigation is not unique and presents typical redress issues when the copyright holder has its rights infringed by another.”
 
Both complaint and answers and counterclaims forms demand trial by a jury. It promises to be a real Texas-style shootout with the big guns and big money of Heritage pitted against the wealth of the new owners of Superior. Claim your seats on the corral fence early.
 
The attorney for Heritage, Lori Carr, responded to our questions. We had not heard from the attorney for Superior as of the date of publication.