BRATTLEBORO PUBLISHING CO., Aрpellant, v. WINMILL PUBLISHING CORP., Appellee.
No. 89, Docket 30407.
United States Court of Appeals Second Circuit.
Argued Oct. 25, 1966. Decided Nov. 28, 1966.
369 F.2d 565
The opinion of the Supreme Court in Seeger was released March 8, 1965 three weeks before Irons’ trial on March 29, 1965. Furthermore at oral argument of this appeal counsel for the government conceded that prior to trial he knew that appellant, Irons, was taking the position that under the Seeger interpretation of the statute,
It should be noted that we do not deal here with the difficult problem of retroactive or prospective effect of a Supreme Court interpretation which changed prior law. Cf. Mapр v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965); Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964); Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); and Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966).
My dissent does not assert that appellant is entitled to conscientious objector status or that he was classified 1A without any basis in fact for that classification. Estep v. United States, 327 U.S. 114, 66 S.Ct. 423 (1946).
In this case between appellant‘s being sent a conscientious objector questionnaire which required his affirmance of an unconstitutional condition and his trial for violating Universal Military Training and Service Act orders, the Supreme Court eliminated the previous unconstitutional condition. I would hold that under these facts appellant should have been given a chance prior to trial to apply to the Selective Service Board for conscientious objector status under the Seeger ruling.
As I read this record no final decision has ever been made by the Selective Service Board under the law as it was declared to be by the Supreme Court in Seeger prior to Irons’ trial and conviction. In my opinion the Justice Department and the District Court should have required in the interest of justice such a completion of the administrative record—and we should now.
I would vacate this conviction and remand for further proceedings consistеnt with this opinion.
Arthur B. Hanson, Washington, D. C. (Emmett E. Tucker, Jr., J. Dapray Muir, Washington, D. C., of counsel; James L. Oakes, Brattleboro, Vt., on the brief), for appellant.
Arthur B. Hanson, Washington, D. C. (Emmett E. Tucker, Jr., J. Dapray Muir, Washington, D. C., of counsel), for the American Newspaper Publishers Assoсiation, amicus curiae.
Gerhard P. Van Arkel, Washington, D. C. (Van Arkel & Kaiser, Washington, D. C., of counsel), for the International Typographical Union, amicus curiae.
Donald B. Southard, Keith J. Kulie, Chicago, Ill. (Burmeister & Kulie, Chicago, Ill., of counsel), for the National Association of Advertising Publishers, amicus curiae.
Before LUMBARD, Chief Judge, MOORE and KAUFMAN, Circuit Judges.
Appellant publishes a daily newspaper known as the “Brattleboro Daily Reformer” (hereafter Reformer), which is circulated in the environs of Brattleboro, Vermont. Appellee publishеs a weekly pamphlet or direct-mail circular known as the “Brattleboro Town Crier” (hereafter Town Crier), and distributes it without charge in the same area. The Reformer contends that through use of a photo off-set printing process, the Town Crier reproduced four advertisements in substantially the same form as had appeared in the Reformer. All the advertisements were published in the Town Crier at the request of the advertisers.
Appellant brought the present action pursuant to
The case was tried before Judge Gibson in the District Court for the District of Vermont. After making certain findings of fact, he concluded that the advertisements could not be copyrightеd by the Reformer, and therefore no infringement of any of its copyrights had occurred. He also found that the Town Crier had not been guilty of unfair competition or unfair trade practices, and, accordingly, ordered the suit dismissed. 250 F. Supp. 215 (D.Vt.1966).
In light of the conclusions we reach, it is not necessary to determine the copyrightability of any of the advertisements in question, and we therefore proceed directly to the grounds for our disposition. Section 26 of the Copyright Act,
We see no sound reason why these same principles are not applicable when the parties bear the relationship of employer and indepеndent contractor. “Whether the copyright resides in the person thus commissioning the work or in the independent contractor creating the work will always turn on the intention of the parties where that intent can be ascertained.” Nimmer, suprа, at 244. Where that intent cannot be determined, the presumption of copyright ownership runs in favor of the employer. Ibid. For example, in Yardley v. Houghton Mifflin Co., 108 F.2d 28 (2d Cir. 1939), cert. denied, 309 U.S. 686, 60 S.Ct. 891, 84 L.Ed. 1029 (1940), a painter was commissioned to create a mural for the walls of a public school. We hеld:
If he is solicited by a patron to execute a commission for pay, the presumption should be indulged that the patron desires to control the publication of copies and that the artist consents that he may, unless by the terms of the contract, express or implicit, the artist has reserved a copyright to himself. Id. at 31.
A similar result was reached with respect to pictures taken by a professional photographer, Lumiere v. Robertson-Cole Distributing Co., 280 F. 550 (2d Cir.), cert. denied, 259 U.S. 583, 42 S.Ct. 586, 66 L.Ed. 1075 (1922), and commerciаl illustrations designed by an artist for an advertising catalog, Lin-Brook Builders Hardware v. Gertler, 352 F.2d 298 (9th Cir. 1965).
In the present case, appellant admits that 95-98% of the advertisements placed by local merchants and published in the Reformer were created in whole or in part by the paper‘s staff. The price paid by the advertisers to the Reformer for publishing their advertisements included, in effect, a charge for the paper‘s preparation of the form, words, and illustrations of the advеrtisements. In these circumstances, absent an agreement to the contrary, the advertisements could not be copyrighted by the Reformer.3 See, Inter-City Press, Inc. v. Siegfried, 172 F.Supp. 37 (W.D.Mo. 1958).
Moreover, it is clear that the services of Reformer‘s advertising department were offered as an inducement to the local businessmen to use appellant‘s paper as a medium of exposing their wares to the public. It is of interest that Reformer‘s soliciting agents failed to inform any local mеrchant, whose advertising business was actively sought, that the paper would have exclusive copyright control over his advertisement, and that the advertiser (in all instances a small merchant) would be barred for years to come from reproducing it anywhere without the Reformer‘s consent. It seems likely that the local businessmen, who often cooperated in designing the advertisements, were naive with respect to the complex provisions of the copyright law, and assumеd, because of this naivete, that the price they paid the Reformer for publishing their advertisements entitled them to have the same advertisements published elsewhere. It would be unfair in these circumstances to place the burden on the advertiser; it is far more equitable to require the Reformer to provide by express agreement with the advertisers that it shall own any copyright to the advertisements. Cf., Welles v. Columbia Broadcasting System, Inc., 308 F.2d 810 (9th Cir. 1962).
We also agree with Judge Gibson‘s holding that the Town Crier was not guilty of unfair compеtition or unfair trade practices.
Affirmed.
LUMBARD, Chief Judge (concurring):
I concur in the holding that in the absence of agreement between newspaper publisher and advertiser the advertiser is entitled to the copyright in the advertisement. While I do not believe that this result can be based on the presumption invoked by the Court, that one who commissions a work owns the copyright in it, because the advertisers here did not pay any extra sum for the design and composition of the advertisements, see Altman v. New Haven Union Co., 254 F. 113, 118 (D.Conn.1918), I feel that the parties’ probable intent requires this result.
It is the newspaper publisher who copyrights the material in each issue of the newspaper by a single notice somewhere in the issue. See
Under these circumstances, it would be an inequitable interpretation of the copyright law to place the burden of inquiry upon advertisers to whom the need for such inquiry would not suggest itself. It is far more practical and equitable to place upon the newspaper publisher the burden of securing the consent of the advеrtiser that the copyright should be the property of the publisher, if the publisher feels that he should be protected by copyright against the competition of cheap reproduction by others of advertisements his staff has creatеd.