Baker v. Taylor

2 Blatchf. 82 | U.S. Circuit Court for the District of Southern New York | 1848

BETTS, District Judge.

The act of congress, entitled “An act to amend the several acts respecting copyrights,” passed February 3d, 1831, (4 Stat. 436,) embodies the provisions of the acts of May 31st, 1790, and of April 29th, 1802, on the subject, and imposes on persons claiming the privilege of a copyright the same duties and liabilities which attended the right under the prior statutes. It is quite useless to go into the general learning appertaining to the subject, or to state at large the decisions rendered in Great Britain under the English statutes. The supreme court of the United States, in the case of Wheaton v. Peters, 8 Pet. [33 U. S.] 591, has given an exposition of our statutes, which is obligatory on this court, and essentially covers the main question raised on this motion. The principle declared by that decision is, that under the laws of the United States a copy-right title is not perfected without a strict compliance with the provisions of the statute. Those requirements which, in England, are generally regarded as directory, and not as conditions precedent to title, (1 Daniell, Ch. Pr. 419; Curt. Copyr. 198, 205; Gods. Pat. 211,) are, under our laws, important and indispensable pre-requisites to a perfect title. Depositing the title-page in the proper clerk’s office, publishing a notice according to the act, and delivering a copy of the book, are held to be conditions, the performance of which is essential to the title. On rhat authority, I think the point is placed beyond question, that the failure, in the present case, to publish the notice demanded by the act, in the manner directed, creates a fatal defect in the plaintiffs’ title. Even though the failure to publish the statutory notice arose from mistake, this court would have no power to accept the intention of the party, in place of a performance, any more in respect to the insertion of that notice on the proper page, than in respect to the deposit of the title of the book.

But there was no mistake in this case. The plaintiffs knew of the error before the book was published. They, however, regarded it as trivial, and not worth the expense and trouble of correction. But congress, in the 5th section of the act of 1831, have seen fit to make the copy-right dependent upon the particular act of giving the notice, and, to mark its importance, the statute sets forth the words in which the notice shall be given. The direction must be strictly complied with.

The affidavit of the defendant, which, on a motion for an injunction, is competent evidence against the oath of the plaintiffs to the bill, proves sales of the work by the plaintiffs prior to the 10th of November, 1840, when the title of the book was deposited. It is argued for the plaintiffs that these alleged sales were only consignments of the work in advance of the publication, and that publication, by putting the book in circulation, was not made until after the date of the deposit of the title. There is no proof to support this version of the facts. A sale naturally imports publication. The purchaser having the right to know the contents of the book, and make them known to others, no presumption can be raised that the right was not exercised, or that an actual publication did not follow the sale. On the contrary, the presumption is the other way. And the inference is strong, that actual publication was made, as sworn to by the defendant, anterior to the 10th of November, from the fact that a printed copy of the work, then complete, was on that day deposited in the clerk’s office, the deposit of the book, complete for circulation, and the deposit of the title being simultaneous acts. The 4th section of the act, in express words, denies all benefit to a person, under the act, unless he shall, before the publication of his work, deposit the title-page, &c.

The plaintiffs have failed to show themselves entitled to the injunction prayed for.