63 F. 445 | U.S. Circuit Court for the District of Massachusetts | 1894
On or about October 1, 1891, G. Naujok, a German subject, and a resident of Germany, painted in oils a picture, called by him, and in this case, “Die Heilige Cacilie,” an undoubtedly meritorious work of art. On the 5th of the succeeding March he executed, in behalf of the complainant in this case, who describes himself in his bill as a citizen of the empire of Germany, and who transacts his business under the name of the “Photographisehe Gesellschaft,” an instrument of which the following is a copy:
“I transfer hereby to the Photographische Gesellschaft, in Berlin, for my work, ‘Die Heilige Ciicilie,’ the right of publication,—by which I wish to have understood the exclusive right of reproduction,—against a payment of 500 marks, and nine .gratuitous copies thereof.
“Konigsburg, in Prussia, March 5, 1892. Gustav Naujok.”
The artist never painted a replica. In the summer of 1892 he sent the* picture to Munich, to the Grosse Internationale Kunstausstellung, where it was sold to some person unknown to the artist, and not shown in this case; and neither the artist nor either of the parties to this case know where the picture is, or where it has been since the sale. Prom January, 1892, until March, 1892, the picture was publicly exhibited at Berlin in the Kunsthandlung von Schulte, a public art gallery, the rules of which as to suffering copies to be taken are not shown. No other publications are proven, except the photographs of the' parties to this case. On the 16th of May, 1892, complainant delivered at the office of the librarian of congress a copy of the title of the painting, and .a description of it, and obtained the following certificate:
“Library of Congress, Copyright Office, Washington.
“To wit: Be it remembered, that on tbe 16th day of May, anno domini 1892, Photographische Gesellschaft, of Berlin, Ger., have deposited in this Office the title of a Painting, the title or desorption of which is in the following words, to wit:
DIE HEILIGE CACILIE.
G. Naujok.
Photo. & Descrip, on file;
the right whereof they claim as proprietors in conformity with the laws of the United States respecting Copyrights.
“A. E. Spofford, Librarian of Congress.”
Afterwards, on or about the 15th of September, 1892, complainant put on the market in Germany a photograph of the painting, and subsequently imported, or caused to be imported, the same photo
The photograph of the complainant bears the inscription, “Copyright, 1892, by Photographische Gesellschaft,” and reproduces from the picture the signature of the artist; but it contains no notice, unless implied in the foregoing words, that the painting itself was ever copyrighted, nor has there been inscribed on the painting, or its mounting, the notice pointed out by section 4962 of the Revised Statutes. By the proclamation of the president of April 15, 1892 (27 Stat. 1021), the benefit of the international copyright act of March 3, 1891, e. 565 (26 Stat. 1106), was extended to German subjects. The act of 1891 (section 3) provides that the two copies of a copyrighted photograph required to he delivered at the office of the librarian of congress shall be printed from negatives made within the limits of the United States, or from transfers made therefrom; and that during the existence of the copyright the importation into ihe United States of the photographs copyrighted, or any edition or editions thereof, or any negative's, shall be prohibited. Consequently ihe complainant’s imported photographs cannot he directly protected by statute'. As they are nor copyrighted, and are, therefore, perhaps, not prohibited from importation, it is claimed that, if his positions in this case are sound, the policy of the provisions of the third section, to which we have referred, may be partially defeated. These provisions, however, are apparently precise, in that they are limited to the cases of “book, chromo, lithograph, or photograph.” Littleton v. Oliver Ditson Co. (decided by this court August 1, 1884) 62 Fed. 597. They do not assume to reach any reproduction which does not involve depositing with the librarian of congress two copies: and the case at bar does not fall within the latter class, but within ¡tie class requiring one; photograph of the subject-matter of copyright. Therefore wo are apparently not met by any broad policy, such as would trouble us in reaching a result not fairly excluded by the letter of the statute. But, as the right of the complainant to enjoin the defendant does not depend on the right of ihe former to import photographs, we need not particularly imobligate the ('fleet of these statute provisions. At the common law, the artist or 1lie owner of ihe painting can prohibit reproductions of it until he in some way publishes it; but, after publishing it, either by photographs or otherwise, it becomes subject to the same rules as other published matter, and the public becomes entitled to it. This principle is so fundamental that it need not be elaborated, or fortified bv anv citation of authorities, and we will only refer on this point to" Parton v. Prang, 3 Cliff. 537, 548, 519, Fed. Cas. No. 10,784. Moreover, a. mere exhibition of a picture in a public gallery, like that at Berlin, does not, at common Jaw, forfeit the control of ir by the artist or the owner, unless the rules of the gallery provide; for copying, of which there is no evidence in this case. But if. by proper authority, which it does not lie in the mouth of the complain
The propositions of the complainant necessary to maintain his case are that, by virtue of the agreement given him by the artist, which we have already set out, he was entitled to copyright the painting itself, and that he has lawfully done so; and that, the painting being copyrighted, all reproductions of it in every form are infringements. While he admits that he is neither the author nor the proprietor of the painting, yet he claims, by virtue of the instrument given him by Naujok, to come in under the words “assigns of any such person,” found in section 4952 of the Revised Statutes. In response to the complainant’s claim, the defendant, among other things, refers to section 4962 of the Revised Statutes, and asserts that, even if the complainant’s position was correct in other respects, he could maintain no action for any infringement of his copyright, because the words specified in the section last referred to have not been inscribed on any visible portion of the original painting, or on the substance on which the painting is or may have been mounted.
Neither party has cited to the court any decided cases nor referred us to any other authorities, bearing directly on the principal questions involved. Yuengling v. Schile, 12 Fed. 97, has been brought to our attention, as leading up to the proposition that the proprietor of a painting, merely as such, has no right to a copyright thereon. We do not understand that such is a proper inference from that case, or that the statute law is to that effect. We have no occasion to make any issue touching any questions which were actually decided in that case. Our attention is. also called to Schumacher v. Schwencke, 30 Fed. 690; but this case, so far as it applies to the case at bar, is only in harmony with Gambart v. Ball, 14 C. B. (N. S.) 306; Rossiter v. Hall, 5 Blatchf. 362, Fed. Cas. No. 12,082; and Ex parte Beal, L. R. 3 Q. B. 387, 394,—to the effect that the person holding the copyright of an original painting is protected against any reproduction of it, whether by a photograph of it, by a reproduction of an authorized photograph, or in any other manner. The decisions of the English courts are of but little assistance, because their statute touching copyrights of original paintings (25 & 26 Vict. c. 68) makes special provisions with reference to the right to a copyright impliedly passing with the picture itself; and also the general copyright act now in force (5 & 6 Viet. c. 45) contains, in section 2, a definition of the word “assigns,” and, in section 25, provisions about the nature of the estate in copyrights, not found in the statutes which govern us. Some English cases will, however, be referred to, which relate incidentally to the determination of this case.
Returning to the principal propositions at issue, they divide themselves into three: First, whether the complainant had a. lawful right to copyright the original picture; second, whether, if the copyright is valid, it carries with it protection against all reproductions
Following out the same line touching the distinction between transferring interests already existing and creating new ones, and between assignments and licenses, it is stated in Oopinger on the Law of Copyright (3d Ed. p. 449) that it has been decided that a document conveying the sole right to reproduce a picture in chromos, or in any other form of color painting, for the term of two years, was not an assignment, and therefore did not need to be registered; but the learned author questions this decision. In Lucas v. Cooke, 13 Ch. Div. 872, Mr. Justice Fry—of especially large experience and ability in cases of this character—used, with reference to an instrument of this nature, the words “assignment” and “license” interchangeably; and, on the whole, it involves no vio
Applying the ordinary rules of construction, the court must ascertain, if it can, why, after using the wnrd “proprietor,” our statute also uses the word “assigns.” Certainly this requirement cannot be met if the word “assigns” is limited to its ordinary technical meaning, already referred to, or to the holder of the original painting; because ail this is covered by tbe word “proprietor.” We therefore cannot escape the conclusion that the statute requires us to broaden out the class of persons authorized to take out a copy-rig lit, so as to include others than mere proprietors of the paintings themselves, having regard always, of course, to the word “sole,” which the section contains, and to which we have already referred. We are unable to perceive the force of all these words, unless the statute covers cases of the precise character of this at bar. What
So far the history of the legislation in the United States has not been of much assistance to the court, but on the remaining proposition it proves to be of great value. The defendant claims that section 4962 of the Revised Statutes is to be read literally, and that, being thus read, it requires the notice to be inscribed on the painting itself, or at least on the mounting of it. If the defendant is right in this literal reading, it follows that the statute is satisfied by inscribing the notice on the original painting, or its mounting, and that all reproductions thereof, whether in engravings, photographs, or other forms, go free from the notice, The. supreme court has said, what must be patent to every one, that the object of the statute in this particular is to give notice of the copyright to the public. Lithographic Co. v. Sarony, 111 U. S. 53, 55, 4 Sup. Ct. 279. The purpose of the statute, therefore, would wholly fail of accomplishment by inscribing notice on the painting only, which presumably passes into some private collection, entirely out of the view of the general public. This is so patent that it need not be enlarged upon, and would be enough of itself to persuade the courts very urgently to look, if necessary, beyond the mere letter of the statute. Moreover, the same clause of section 4962 on which the defendant relies groups paintings with engravings, photographs, cliromos, and various other articles, which need not be specified; and, if the-defendant’s construction properly applies to paintings, it would seem to follow that it applies to all the other articles named in the same clause, and that the notice, therefore, should be inscribed on some original or quasi original engraving, photograph, or chromo, and not on the copies thereof which go out to the public. But the practice as to such articles is distinctly the other way, and its correctness was expressly recognized in the decision of the supreme court last cited, in which the court said that the notice is to be given by placing it “upon each copy.” Thus, in a single sentence, the supreme court has torn down the structure of apparent literalness on which the defendant relies.
An examination of the history of the legislation out of which section 4962 developed makes the result entirely clear. The first statute requiring the inscription of a notice was that of April 29, 1802, c. 36 (2 Stat. 171). At that time the province of the copyright laws was narrow", and was divided in that statute into two fields. Section 1 provided that the copy of the record of registration required by law to be published in one or more newspapers should be in
The next statute is the act which so long stood as the copyright code of the United States,—that of February 3, 1831, c. 36 (4 Stat. 436). The provisions of that act touching the question now under examination we reproduce here at length:
‘"Sec. 5. And be it further enacted, tliat no person shall be entitled to the benefit of this act, unless he shall give information of copyright being secured, by causing to be inserted, in the several copies of each and every edition published during the term secured on the title-page, or the page immediately following, if it be a book, or, if a map, chart, musical composition, print, cut, or engraving, by causing to be impressed on the face thereof, or if a volume of maps, charts, music, or engravings, upon the title or frontispiece thereof, the following words, viz: ‘Entered according to act: of congress, in the year , by A. B., in the clerk’s olhco of the district court of ,’ (as the case may be).”
This statute somewhat extended the scope of the copyright privilege, but left the provision on this point entirely clear. A distinction was made by section 5 between a book on one hand, and a. “map, chart, musical composition, print, cut, or engraving” on the other; but it was only as to the precise place on which the notice should lie inscribed,-—in the one case on the title-page, or the page immediately following it; and in the other on the face, with a provision that, in cases of volumes of maps, charts, music, or engravings, it should be on the title-page or frontispiece. Except as to the mere place of impressing the notice, the statute applied without discrimination to all articles within the scope of the copyright privilege, and looked for the inscription of the notice on every copy which went out to the public, and nowhere else. The words, “the several copies of each and every edition,” ran through and governed every part of the section. This is so clear that it needs nothing to be added to the statement of the fact.
The next act was that of August 38, 1856, c. 169 (11 Stat. 138), which contained nothing to be noticed in this connection. Next came the act of March 3, 1865, c. 126 (13 Stat. 540). This is important, because it first extended the copyright privilege to photographs, and provided that this extension should inure to the benefit of the authors of photographs “upon the same conditions as to the authors of prints and engravings.” In other words, when photographs first came into the copyright statutes, they came in under the clear provisions of the fifth section of the act of 1831, requiring the inscription of the notice to be on every copy going out to the
• “Sec. 97. And be it farther enacted, that no person shall maintain an action for the infringement of his copyright unless he shall give notice thereof by inserting in the several copies of every edition published, on the title-page or the page immediately following, if it be a book; or if a map. chart, musical composition, print, cut, engraving, photograph, painting, drawing, chromo, statue, statuary, or model or design intended to be perfected and completed as a work of the fine arts, by inscribing upon some portion of the face or front thereof, or on the face of the substance on which the same shall be mounted, the following words, viz: ‘Entered according to act of congress, in the year-, by A. B., in the office of the librarian of congress, at Washington.’ ”
Tbe words, “several copies of every edition published,” may well be held to permeate and govern that portion of the section commencing with the -words “if a map, chart,” etc., as effectively as it, does the words “if it be a book,” and the section may well be construed precisely the same as if the words “if it be a book” preceded the words “on the title-page.” The word “thereof,” in the latter part of the section, may well be held to refer back to the words “the several copies,” in its early part. For clearness, we give the section as thus rearranged:
“That no person shall maintain an action for the infringement of his copyright, unless he shall give notice thereof by inserting in the several copies of every edition published, if it be a book, on the title-page or the page immediately following, or if a map, chart, * * painting, * * * by inscribing upon some portion of the face or front thereof * *
Under the circumstances, the breaking up and dislocation of the section into sentences or phrases should be held to have been merely for the purpose of indicating the place where the notice is to be inscribed, according to the subject-matter of the publication,—
The only remaining- act to be considered is that of August 1, 1882, c. 366 (22 Slat. 181). The main purpose of this statute was to make sure of the accomplishment of one general purpose of the act of 3874. The latter required that the notice be inscribed on some visible portion of che published articles, while the act of 1882 expressly permitted it, under some circumstances, to go on the back or bottom of such articles, although in some senses the back m bottom might not always be visible portions thereof. The reading of the act of August 1, 1882, contains, however, a legislative construction of the prior statutes on the point which we are considering. The prior statutes included designs in the same class with maps, charts, photographs, and paintings. Therefore if, with reference to paintings, the inscription is to go on the painting itself, it would follow, as a matter of course, that, with reference to models and designs, under section 4962 of the Kevised Statutes, it should appear on the original models and designs, and'not on the articles put: on the market constructed according to them. But the act of 1882 says in terms that the manufacturers of designs of molded decorative articles may put, the mark prescribed by statute, not: on the designs, but “upon the back or bottom of such articles.” As the clear purpose of this statute related entirely to the place where, on any particular article, notice might be inscribed, and it •dearly was not in any way intended to change the law as to what the inscription shall be impressed on. the effect of this phraseology cannot be mistaken. On the whole, while we must admit that the phraseology of the statute is unfortunate*, and might have teen more clearly and positively expressed, we are convinced that, as we have already said, the difference's in the various phrases relate entirely to the place on which the notice is to be inscribed, according to the subject-matter of the article published, and that,
The defendant also claims that the words inscribed on the photograph, namely, “Copyright, 1892, by Photographische Gesellschaft,” give no notice that the painting has been copyrighted, and imply only that the photograph has been. If this is so, the fault is that of the statute, and not of the complainant, as he has used exactly the phraseology imposed by law. Undoubtedly the statute, if it had not been so condensed, might have given a form of notice more in harmony with the facts of cases of this character; but we can see that in this notice there is enough to give any one who is looking for the truth, and who desires to avoid infringement, the thread which will lead him easily to the actual condition of the copyright. There is something in the form of this notice which tends to sustain the contention of the defendant that it should have been inscribed «on the painting itself, but not enough to overcome the force of the •rules of construction which have led us to the result we have explained. We perceivé nothing further in the case which requires any observations from the court.
Decree for the complainant. •