116 F. 126 | U.S. Circuit Court for the Northern District of Illnois | 1900
The publications in controversy are contained in daily newspapers, and relate to news of the South African war and editorial comments appearing in the London Times, abstracted on the part of the Tribune Company immediately before publication in London, under an arrangement with the publishers of the Times, and cabled to the Tribune by the agent of the latter, and published in its first edition in Chicago on the same morning of the publication in the Times, the difference in time between this country and London favoring such result. The bill avers that the defendant procures the matter so cabled from the first edition of the Tribune, and furnished it to the morning papers of the association for appearance in their second edition; but this allegation is clearly dis
The questions thus raised are important and novel, involving, on the one hand, the rights of the Tribune Company to the fruits of'its enterprise and expenditure under its contract arrangement with the Times, and, on the other hand, the rights of the public to news matter thus published in the leading English newspaper. Solution of the inquiry depends upon a construction of the copyright statutes of the United States, and not upon the common-law rights of literary property beyond their consideration in construing the statute. Literary property is protected at common law to the extent only of possession and use of the manuscript and its first publication by the owner,—a right well exemplified in Publishing Co. v. Monroe, 19 C. C. A. 429, 73 Fed. 196, 38 U. S. App. 410. With voluntary publication the exclusive right is determined at common law, and the statutory copyright is the sole dependence of the author or owner for a monopoly in the future publication. Unless the United States statute is applicable to protect the Tribune’s publications in question, it is clear that the motion for an injunction must fail.
The alleged copyright is obtained by depositing in the post office at Chicago, on the evening before publication, the general title of the newspaper, “Chicago Daily Tribune,” with serial number and date, and by like deposit, immediately after publication, of copies of the completed paper, each addressed to the librarian of congress, and followed by registration and certificate in due course. No special matter is thereby indicated as subject to copyright, but the newspaper is so entered as an entirety. It is at least questionable whether a copyright can thus be secured for a newspaper. In the early case of Clayton v. Stone, 2 Paine, 382, Fed. Cas. No. 2,872, Mr. Justice Thompson, presiding at the circuit, held that the constitutional provision for copyright “cannot with -any propriety be applied to a work of so fluctuating and fugitive a form as that of a newspaper or price current, the subject-matter of which is daily changing and is of mere temporary use.” And these remarks are quoted with approval in the opinion of the supreme court by Mr. Justice Bradley in Baker v. Selden, 101 U. S. 99, 25 L. Ed. 841, and in the opinion of Judge Jenkins, speaking for the circuit court of appeals, in Iron Works
Aside from this view affecting the validity of the copyright, on the showing that the defendant obtains its matter for publication directly from the London Times, and without knowledge or notice of any selections by the complainant, the statute is not applicable,' unless through the contract rights of the Tribune it operates to exclude from general publication all cablegrams and editorials appearing in the London Times. The contract referred to gives a right to the Tribune “to publish in America such cablegrams and editorials” as it chooses to “telegraph to America from the Times,” and the latter abandons in favor of the Tribune “any copyright in those telegrams so far as publication in America is concerned.” The optional rights thus acquired by the Tribune extend to all cablegrams appearing in the Times, although the purported surrender for copyrights relates to the extracts only, and until after the Tribune has both made and published its selections no means are open to the public to ascertain the portion thus excluded from use; and it further appears that many of the Cablegrams in the Times are not its sole property. As the exclusive right of publication "at common law terminates with the publication in London, no protection then exists beyond that expressly given by the statute. Before the amendment authorizing copyright in America on foreign publications, under prescribed conditions where the publication is simultaneous, such foreign property right was left unprotected. Under-the amendment, whatever rights may be vested either in the Times, or in the Tribune through contract with it, to copyright any editorials or special matter, I am satisfied that it can be exercised only for matter distinctly set apart for the purpose and so distinguished in the publication, and that the publication in this country must be substantially identical with that in the foreign country, to bring it within the intent of the statute.
The matter in controversy, as mere selections from several cablegrams and editorials in the Times, not predesignated for copyright here and not so intended on behalf of the Times, does not seem to conform to the statutory requirements.
I am of opinion that injunction cannot issue on the case presented, and the motion is denied.
