117 F.2d 579 (3rd Cir. 1941), 7574, Krafft v. Cohen

Docket Nº:7574.
Citation:117 F.2d 579, 48 U.S.P.Q. 401
Party Name:KRAFFT v. COHEN et al.
Case Date:February 03, 1941
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 579

117 F.2d 579 (3rd Cir. 1941)

48 U.S.P.Q. 401

KRAFFT

v.

COHEN et al.

No. 7574.

United States Court of Appeals, Third Circuit.

February 3, 1941

Rehearing Denied February 24, 1941.

Henry N. Paul, Jr., of Philadelphia, Pa. (John H. Austin, Nathan Teitelman, and

Page 580

Paul & Paul, all of Philadelphia, Pa., of counsel), for appellants.

Harry Langsam and Harry R. Kozart, both of Philadelphia, Pa., for appellee.

Before BIGGS, JONES, and G0ODRICH, Circuit Judges.

GOODRICH, Circuit Judge.

This is an appeal from a judgment of the District Court for the Eastern District of Pennsylvania awarding damages to the plaintiff for infringement of copyright by the defendants, and enjoining further infringement. The subject-matter of the litigation consists of three pictures of figures in clerical vestments. These pictures were originally brought by a representative of the plaintiff, who is a publisher of men's fashions, to the defendants, who are manufacturers of various articles of wearing apparel. The pictures represented figures clothed in clerical vestments. How the pictures came to be left with the defendants and for what purpose, was a matter of dispute in the trial court, but that question is not before us since the litigation here turns solely upon the question of the validity of the copyright. The pictures were subsequently returned to the plaintiff.

On May 10, 1938, plaintiff printed a leaflet called, by the parties, a 'Brochure' which contained, among others, the three illustrations left with the defendants. In the meantime, defendants had made reproductions of these three illustrations. The first copies of the Brochure were printed with the copyright notice on the back cover only and lacked the name of the proprietor. This notice was clearly defective because it did not comply with the statute. 1 Sometime subsequent to May 10, 1938 the plaintiff affixed a proper copyright notice to his Brochure

On September 6, 1938 the defendants issued a catalogue which was called 'National Vestments for Clergy and Choir '. They contained defendants' reproductions of three of the plaintiff's pictures. On September 19, 1938, the plaintiff's attorney wrote to the defendants advising them of the plaintiff's claim of copyright.

On January 25, 1939 the plaintiff filed an application for copyright on the 'Brochure', claiming the date of his first publication as May 10, 1938. A certificate of copyright registration was duly issued on January 26, 1939 to the plaintiff.

Copyright as distinguished from literary property is wholly a creature of statute. One secures a copyright on published material by accompanying its publication with a copyright notice at the place and in the form required by the statute. Subsequent registration under the provisions of the statute does not create the copyright, but only records it. Washington Publishing Co. v. Pearson, 306 U.S. 30, 37 (1939). Publication without the proper notice is ineffective to secure to the publisher a copyright. Fleischer Studios, Inc., v. Ralph A. Freundlich, Inc., 2 Cir., 1934, 73 F.2d 276, certiorari denied 294 U.S. 717, 55 S.Ct. 516, 79 L.Ed. 1250. If the plaintiff published this Brochure without the proper copyright notice his rights of copyright are gone unless Sec. 20, 17 U.S.C.A. § 20, saves them and that section will be considered below.

Although plaintiff stresses his contention that copies of the pamphlet were not generally distributed until the proper notice was put on them, it is clear that publication took place on May 10, 1938. That is the date which the plaintiff claimed in his application for the copyright certificate and is the date claimed as the date of publication in his argument in this court. That is the date stated as the date of publication in his certificate, upon which he relies. It also appears from the evidence that copies of the pamphlet with the defective...

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