230 F. 743 | S.D.N.Y. | 1916
(after stating the facts as above).
If, on the other hand, the play right and copyright be deemed to be indivisible, in such sense that one may not be assigned without the other, while it is true that the MacMillan Company would become only a licensee under the assignment to Clyde, Fitch, yet there would be a fatal defect in the copyright itself. For in that case the Mac-Millan Company could hardly be regarded as the “proprietor” of the indivisible common-law literary property out of which alone the statutory play right and copyright could be created. It can hardly be possible to treat this as an indivisible right for the purpose of one kind of assignment and as divisible for another.
I conclude, therefore, that the plaintiff has brought this suit upon the mistaken theory that the right of novelization existed under the earlier act, when in fact the statute created only play right and copyright. It is, indeed, a very troublesome question whether the Mac-Millan Company could succeed as owner of the copyright in holding the defendant for publishing a copy of the play. I have not the least doubt that the story was a cheap and vulgar plagiarism: The parallelism is so complete and minute as to admit of not the slightest doubt that it was slavishly pirated in plot and characters; but it has never been very satisfactorily established, and probably never can be, at what
The bill will be dismissed for failure of title, with costs.