148 F. 642 | S.D.N.Y. | 1906
This is a demurrer to a complaint on the ground that it does not state facts sufficient to constitute a cause of action. The action is brought to recover damages for an alleged violation by the defendants of the complainant’s right of dramatization of a novelette. The complaint alleges, in substance, that the complainant is the author of a novelette called “Cherub Divine”; that the complainant sold to the Ainslee Magazine Company of New York the sole right of printing and publishing the said novelette, reserving to the complainant all rights of dramatization of it; that the Ainslee Magazine Company, as agent, for and in behalf of and for the purpose of protecting the rights of the complainant in the said novelette, deposited in the office of the Librarian of Congress on January 16, 1905, the title of their monthly publication, as follows: “Ainslee’s Volume 15, No. 1, February, 1905,” which said publication contained the said novelette; that said Ainslee Magazine Company thereafter duly took the various proceedings necessary to obtain a copyright of said Ainslee’s volume 15, No. 1, February, 1905; that the defendants, in violation of the complainant’s right of dramatization of the said novelette, had composed and prepared for stage production a dramatization of the said novelette in a play called the “Millionaire Detective”; that said play has been performed in various cities; and that the defendants are about to produce said play in other cities, and a judgment for damages is demanded in the sum of $15,000.
There are two important questions raised by this demurrer. One is whether the proprietor of a magazine, who becomes the proprietor of an
The other serious question raised by this demurrer is whether the right of dramatizing a novel can be reserved by its author when the sole right to print it has been sold to a publisher who, as proprietor, has taken out the copyright. The language of section 4952 of the United States Revised Statutes [U. S. Comp. St. 1901, p. 3406], as amended, is:
“Authors or their assigns shall have exclusive right to dramatize or translate any of their works, for which copyright shall have -been obtained under the laws of the United States.”
I think, under this provision, it is not necessary that the author himself should have taken out the copyright of a book, in order, to preserve the right of dramatizing it, but that the author can sell the copyright of the book to a person who, as proprietor, can take out the copyright, while the author, at the same time, retains the right of dramatization. If a copyright of a book has been obtained by anybody entitled by the law to obtain it, I think that the author of the book or his assigns, a term which, as used in section 4952, means, in my opinion, an assignee of the right of dramatization, has the exclusive right to dramatize the .work, if he reserved the right to dramatize upon the sale of the book, which is alleged in the complaint in this case. The object of the statute seems to have been to provide that the author’s right of dramatization of a book shall not be protected unless the book be copyrighted; 'but I do not see anything in the statute which requires that the author
There are, however, certain other grounds of demurrer to the complaint in this case, which I assume can probably be easily cured by amendments, but which I think I am compelled to hold to be well taken. The complaint in an action of this kind must allege affirmatively that the title of the book has been filed in the office of the Librarian of Congress at Washington, that two copies of the book have been filed in such office before its publication, and that notice of the copyright, as required by the act, has been printed upon each copy issued. The bill in this case does not contain these specific allegations, although it does contain an allegation that all conditions and requisites to obtain a copyright, as required by the laws of the United States, were complied with. I think, under the authorities, that the specific allegations to which I have referred should be contained affirmatively in the bill. Trow City Directory Co. v. Curtin (C. C.) 36 Fed. 829; Chicago Music Co. v. Butler Co. (C. C.) 19 Fed. 758. There is also in this bill strictly no allegation of the transfer of the copyright to the Ainslee Magazine Company. The allegation is that the complainant sold to that company the sole right of printing and publishing the said novelette, reserving to the complainant all rights of dramatization of the said novelette. This probably may be held to imply a sale of the copyright, although a mere contract authorizing the publication of a story in a magazine does not (Mifflin v. R. H. White Co., 190 U. S. 260, 23 Sup. Ct. 769, 47 L. Ed. 1040); but I think that there should be a specific allegation in the complaint that the copyright was sold or transferred as well as the right to print.
I think, therefore, that this demurrer should be sustained, with leave to the complainant to amend the complaint within 20 days, upon the payment of costs.