Hervieu v. J. S. Ogilvie Pub. Co., 169 F. 978

169 F. 978 | U.S. Circuit Court for the District of Southern New York | 1909

MARTIN, District Judge

(after stating the facts as above). It is claimed by the defendant that the complainant’s copyright is invalid in that the copies of his dramatic composition as delivered at the office of the Librarian of Congress, and, as brought before the public, were in book form, and therefore come within the proviso of section 3 of Act March 3, 1891, c. 565, 26 Stat. 1106 (U. S. Comp. St. 1901, p. 3406), which is to the effect that copies of books, photographs, chromos, and lithographs filed with the Librarian of Congress shall be printed from type set within the United States, or from plates made therefrom, or from negatives or drawings on stone made within the United States, and that the complainant, in procuring his copyright, filed copies of his dramatic composition in books that were printed from type set without the limits of the United States.

The act of March 3, 1891, is an amendment to the then existing copyright law. It extended the privilege of copyright to foreigners under treaties of reciprocity. The complainant is a citizen of Trance, and, under the treaties with Trance, her citizens are entitled to the benefit of this statute. Section 1 of said act, so far as it relates to this question, reads thus:

“The author, inventor, designer or proprietor of any book, map, chart, dramatic or musical composition, engraving, cut print or photograph or negative thereof, or of a painting, drawing, chromo, statue, statuary—shall, upon complying with the provisions of this chapter, have the sole liberty of printing, reprinting, publishing,” etc.

Section 3 recites the conditions which must be complied with, and says:

“No person shall be entitled to a copyright unless he shall, on or before the day of publication in this or any foreign country, deliver at the office of the Librarian of Congress, or deposit in the mail within the United States, addressed to the Librarian—a printed copy of the title of the book, map, chart, dramatic or musical composition, engraving, cut, print, photograph Or chromo, or a description of the painting, drawing, statue, statuary—for which he desires a copyright, nor unless he shall also, not later than the day of the publication thereof in this or any foreign country, deliver at the office of the Librarian—two copies of such copyright book, map, chart, dramatic or musical composition, engraving, chromo, cut, print or photograph, or in case of a painting, drawing, statue, statuary, model or design for a work of fine arts, a photograph of the same; provided that in the case of a book, photograph, chromo or lithograph, the two copies of the same required to be delivered or deposited as above shall be printed from type set within the limits of the United States, or from plates made therefrom, or from negatives, or drawings on stone made within the limits of the United States, or made from transfers therefrom.”

Trom the foregoing language, it is apparent to me that Congress did not intend to include “dramatic or musical compositions” as a “book.” The proviso leaves out map, chart, dramatic, or musical compositions, engraving, cut, print, or photograph, painting, drawing, statue, statuary, or model design for a work of fine arts. All these seem to have been purposely omitted from the list of those articles for which the type must be set, or plates and drawings made, in the United States.' The act provides for the printing of the whole list. It was self-evident to Congress, as it is to everybody, that dramatic compositions, if printed, must be upon sheets of paper known by bookmakers as signatures, and these signatures must be folded, thus making what may be called a “book”; but Congress especially eliminated both musical and dramatic compositions from being classified as a book. Congress twice designated, in the same section, map, chart, dramatic or musical composition, engraving, cut, and print as independent of the word “book,” as therein used. It has often been held that a specific designation of any article in the legislative enactment excludes it from general terms contained in the same act. Potter’s Dwarris on Statutes, 198; Arthur v. Lahey, 96 U. S. 112, 24 L. Ed. 766; Arthur v. Stephani, 96 U. S. 125, 24 L. Ed. 771; Arthur v. Rheims, 96 U. S. 143, 24 L. Ed. 813; Reiche v. Smythe, 13 Wall. 162, 20 L. Ed. 566; Ferry v. Livingstone, 115 U. S. 549, 6 Sup. Ct. 175, 29 L. Ed. 489.

The question here presented is not whether a dramatic composition can ever be regarded as a book, but whether Congress intended, by the act above quoted, to include dramatic compositions within the terms of the proviso. Dictionary definitions of the word “book” are of no aid in settling this question. It stands squarely upon the meaning of the act.

It was said by Justice Swayne in Smythe v. Fiske, 23 Wall. 374, 380, 23 L. Ed. 47:

“A thing may be within the letter of a statute and not within its meaning, and within its meaning though not within its letter. The intention of the lawmaker is the law.”

In Clayton v. Stone, 2 Paine, 382, Fed. Cas. No. 2,872, the court said:

“The literary property intended to be protected by the act is not to be determined by the size, form, or shape in which it makes its appearance, but by the subject-matter of the work.” .

There is another important thing to consider in construing this statute. The penalty for infringing a copyright of a musical or dramatic composition differs from that of infringing the copyright of books. Section 4964, Rev. St. (U. S. Comp. St. 1901, p. 3413), provides that any person who, without the consent of the proprietor, shall sell or expose for sale any book that is protected by copyright, shall forfeit every copy thereof to the proprietor and pay such damages as may be recovered in a civil action in a court of competent jurisdiction. Section 4966, Rev. St. (U. S. Comp. St. 1901, p. 3415), provides that any person who shall publicly perform or represent any dramatic composition for which a copyright has been obtained, without the consent of the proprietor thereof, shall be liable in damages therefor to be assessed, not less than $100 for the first, and $50 for ¿very subsequent performance.

It will be observed, by analyzing these two sections of the statute, that Congress has intended all through its copyright enactments to distinguish between books and dramatic composition. How the damages are to be measured in the case at bar, it is unnecessary now to discuss.

The history of the bill which resulted in this copyright statute of March 3, 1891, and the contemporaneous construction given it by the departments and the officers of the government, conform to the views above expressed; but, to my mind, the language of the statute is so clear that it is unnecessary to enter into a discussion of the history of this legislation or the construction given it by the Treasury Department.

The case of Littleton v. Oliver Ditson Co. (decided by Judge Colt of the First Circuit) 6£ Fed. 597, and his decision affirmed by the Court of Appeals (67 Fed. 905, 15 C. C. A. 61), involves the very question presented here, except in that case it was a musical composition, while in this it is dramatic; but by the language of the statute dramatic and musical compositions are coupled together. Hence the holding of that court that a musical composition is not included in the proviso as a book applies with equal force to the question presented in the case at bar.

I hold that the complainant’s copyright is valid, and that he is entitled to full copyright protection. The agreed statement of facts shows conclusively that the defendant has infringed the complainant’s copyright.

Wherefore the complainant may have decree for the relief prayed for in his bill of complaint.