Davies v. Bowes

219 F. 178 | 2d Cir. | 1914

LACOMBE, Circuit Judge.

The statute in force at the time, sec-_ tion 3 of the act of March 3, 1891, made it an essential to the securing of a valid copyright that on or before the day of publication a. printed copy of the title or book, etc., shall be delivered at the office of the Librarian or deposited in the mail addressed to him. The record shows compliance with this provision of the act. The statute further provides as an essential to securing a valid copyright that not later than the day of publication two copies shall be either delivered at the office of the Librarian or deposited in the mail addressed to him. The day of publication was June 23, 1908.

To entitle the complainant to maintain this suit it must, therefore, appear that the two copies were delivered on that day or mailed on that day. The complaint alleges that the two copies were delivered or caused to be delivered to the Librarian on June 24, 1908, which is a day later than the day of publication. The complaint thus fails to allege compliance with the statute; but, if the proofs showed compliance, the complaint could be amended to conform thereto.

[1] The only evidence introduced on this point is the certificate of the Register of Copyrights that two copies of the Evening Sun of June 23, 1908 “were received as copyright deposits on June 24, 1908.” It was physically possible for these copies to have been sent to Washington by messenger on an early train June 24th, and delivered to the Librarian on that day. It was also physically possible for them to have been deposited in the mail in New York on June 23d, and to have reached the Librarian on June 24th. In the latter case, the statute would have been complied with; in the former case, it would not. We cannot say which course was followed, in the absence of testimony; therefore complainant has not proved this essential fact, and has not shown the granting of a valid copyright, under the statute.

[2] He is not helped by the provisions of Act 1909, § 55, that the certificate shall be prima facie evidence of the facts stated therein, because the only fact stated is that the two copies were received on June 24th. The statement in the certificate that they were received “as copyright deposits” indicate nothing more than they were turned over to the office in attempted compliance with the copyright statute. The receipt of them by the Librarian does not involve any determination by him as to whether or not the deposit is made in time; he is not required to make any investigation when a copy is delivered to him or comes to him by mail as to what was the date of publication. The complaint was properly dismissed.

Although we place our affirmance on this ground, we may state, without reciting at length the various incidents of the newspaper story and of the play, that we are inclined to the opinion that the play would not infringe the copyright of the story, if such copyright had been proved.

Decree affirmed, with costs.

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