Werckmeister v. American Lithographic Co.

• Decision Date: 03 November 1904
• Docket Number: 185.
• Citation: 134 F. 321
• Parties: WERCKMEISTER v. AMERICAN LITHOGRAPHIC CO. et al.
• Court: U.S. Court of Appeals — Second Circuit

134 F. 321

WERCKMEISTER v. AMERICAN LITHOGRAPHIC CO. et al.

No. 185.

United States Court of Appeals, Second Circuit.

November 3, 1904

Antonia Knauth, for appellant.

W. A Jenner, for appellees.

Before LACOMBE, TOWNSEND, and COXE, Circuit Judges.

TOWNSEND Circuit Judge.

The suit was brought to restrain infringement of a copyright claimed by complainant in a certain painting called 'Chorus.' Said painting showed a convivial group of gentlemen gathered about a punch bowl, holding pipes and filled glasses in their hands, and singing in chorus. It is a meritorious work of art by Sadler, a British subject. The bill alleges that on or about April 2, 1894, Sadler assigned his right and title in any copyright obtainable on said painting by an instrument in writing to complainant, a citizen of Germany; that on April 16, 1894, and before publication, complainant duly obtained a copyright in this country, and on or about June 1, 1894, began the publication of said painting here and in foreign countries, and, being the proprietor of the copyright therein, he 'has printed and continues to print therefrom copies of said painting, and has duly given notice of your orator's copyright' by inscribing upon a visible portion of every copy of said painting the word 'Copyright' and name of party and date of copyright; and that the defendant the American Lithographic Company has infringed upon complainant's rights by printing great numbers of cheap copies of said painting for the purpose of advertising certain goods of the defendant the American Tobacco Company. The plea alleges that said painting--

'Was publicly exhibited by the author and proprietor thereof at the exhibition of the Royal Academy of Arts, held in the city of London, England, from the first Monday of May, in the year 1894, to the first Monday of August, in the same year, both days inclusive, and continuously during said period, and was during the whole of said period exhibited to the public and published, and that there was not at any time during the said exhibition, nor before, nor at any time since, any notice of the said copyright inscribed upon some visible portion of said painting, or on the substance on which the same was mounted as required by the statute in such case made and provided and that such exhibition and publication was with the knowledge, consent, and permission of the complainant and the said Sadler, the author and proprietor of said painting.'

Complainant by replication took issue on the plea, and introduced testimony to prove, inter alia, certain restrictions upon the exhibition of paintings at the Royal Academy. This testimony showed that the public are not admitted to said exhibitions, except upon payment of an entrance fee, but that members of the Academy and exhibitors and their families are entitled to free admission, and that the following rule of the Academy is strictly enforced, namely:

'No permission to copy works during the term of the exhibition shall on any account be granted.'

Sir Lawrence Alma Tadema, a member of the council of the Royal Academy, deposed that it was not the custom of artists who exhibited their pictures at the exhibitions of the Royal Academy to place any notices of copyright thereon or on the frame, and that he had never seen any such notices at said exhibitions, and that he knew from an experience of 30 years that neither visitors to the exhibition nor the public were allowed to make copies, or even notes, of the pictures thus exhibited, and that he understood that the Academy had no right to allow any copies to be made, but were expected to protect, and did protect, the rights of the exhibitor by the employment of persons to enforce said rules and otherwise.

Counsel for defendants contends that under the pleadings such testimony is immaterial and irrelevant. He invokes the familiar rule that no fact can be proved that is not pleaded, and contends that, the truth of the allegations of the plea having been put in issue without amendment of the bill before replication, no matter in avoidance of the plea is admissible. It is unnecessary to question the correctness of the general rule as thus stated. This principle has no application to the pleadings and proofs herein.

In the case of Horn v. Detroit Dry Dock Company, 150 U.S. 611, 14 Sup.Ct. 214, 37 L.Ed. 1199, cited by defendants, the proof established the truth of a plea of a receipt in full. Defendant admitted the correctness of the receipt, but sought to avoid its effect by evidence as to failure of consideration, mistake in its execution, and lack of mutuality. The court found that 'the issue made by the replication was simply the existence of the receipt as set forth in the plea,' and, that being established, the dismissal of the bill necessarily followed, as said matters were foreign to the issue presented by the pleadings. Here the plea alleged that the original painting was--

'Publicly exhibited by the author and proprietor thereof at the exhibition of the Royal Academy, * * * and published * * * and that such exhibition was with the knowledge, consent, and permission of the complainant,' etc.

The evidence introduced by complainant as to the conditions under which said painting was exhibited were not foreign to the issue. It was directly antagonistic to the allegation that the painting was published. The controlling question herein, in the view which we take of the law, is whether there was a publication of the painting. The defendants raised this issue by the plea, and thereby invited a presentation of the facts decisive of said questions. The statutes provide as follows:

'SEC. 4962. 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 pages immediately following, if it be a book, or if a map, chart, musical composition, print, cut, engraving, photograph, painting, drawing, chromo, statute, statuary, or model or design intended to be perfected and completed as a work of the fine arts, by inscribing upon some visible portion thereof, or 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;' or, at his option, the word 'Copyright,' together with the year the copyright was entered, and the name of the party by whom it was taken out; thus 'Copyright, 18--, by A.B.'' (U.S. Comp. St. 1901, p. 3411.)

'SEC. 4952. 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, chrome, statute, statuary, and of models or designs intended to be perfected as works of the fine arts, and the executors, administrators or assigns of any such person shall, upon complying with the provisions of this chapter, have the sole liberty of printing, reprinting, publishing, completing, copying, executing, finishing and vending or representing it or causing it to be performed or represented by others; and authors or their assigns shall have the exclusive right to dramatize and translate any of their works for which copyright shall have been obtained under the laws of the United States. ' (U.S. Comp. St. 1901, p. 3406).

'SEC. 4955. Copyrights shall be assignable in law, by any instrument of writing, and such assignment shall be recorded in the office of the librarian of Congress within sixty days after its execution; in default of which it shall be void as against any subsequent purchaser or mortgagee for a valuable consideration, without notice. ' (U.S. Comp. St. 1901, p. 3407.)

The copyright in said painting was assigned to complainant, copyright was duly taken out by him prior to the publication alleged in the plea, and since said copyright was obtained the complainant has duly marked every copy published by him as 'Copyrighted.'

Counsel for defendants contends that said exhibition at the Royal Academy of the original painting by the artist after complainant had obtained his copyright, without notice thereof upon said painting or its frame, constituted a publication, and therefore complainant was precluded from recovery by virtue of the provisions of the statute quoted above. Counsel further contends that the restriction on copying is immaterial, so long as the general public is admitted to view the painting. The questions thus presented have not been directly decided in the case of paintings, but it is believed that they may be determined by an examination of the history of the law of copyright, and by reference to the decisions of analogous questions arising in the case of books, lectures, and dramatic compositions.

A copyright is an incorporeal right to print and publish. Trustees v. Greenough, 105 U.S. 527, 530, 26 L.Ed 1157. It is a property in notion, without corporeal, tangible substance. Miller v. Taylor, 4 Burr. 2303. This property is a different and independent right, detached from the corporeal property out of which it arises. Stephens v. Cady, 14 How. 528, 14 L.Ed. 528. Each of these is capable of existing and being owned and transferred independent of the other. Stevens v. Gladding, 17 How. 447, 15 L.Ed. 155. The recognition of the doctrine of a distinctive literary property has existed from very early times. 2 Lewis' Blackstone, 407. The senate of the republic of Venice in 1469 granted to one John of Spira the exclusive privilege for five years of printing the letters of Cicero and Pliny. Two Centuries Growth of American Law, 422. Blackstone considers this exclusive right of property as grounded on labor and invention and...