Meredith v. Smith

• Citation: 145 F.2d 620
• Decision Date: 13 November 1944
• Docket Number: No. 10657.,10657.
• Parties: MEREDITH v. SMITH et al.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

145 F.2d 620 (1944)

MEREDITH v. SMITH et al.

No. 10657.

Circuit Court of Appeals, Ninth Circuit.

November 13, 1944.

Joseph F. Westall, of Los Angeles, Cal., for appellant.

J. Calvin Brown, of Los Angeles, Cal. (Louis E. Swarts and Ralph Wilson, both of Los Angeles, Cal., of counsel), for appellees.

Before WILBUR, DENMAN, and STEPHENS, Circuit Judges.

DENMAN, Circuit Judge.

Appellant, co-owner with appellee Fricke of a copyright in a publication entitled "1000 Police Questions," filed a complaint which, as amended to conform to the evidence, claimed damages against O. W. Smith for the reproduction and sale of the books in violation of the copyright, and sought an accounting. The amended complaint also alleged a contract between the two copyright owners that neither would license the reproduction and sale of the book without the permission of the other; that Fricke had violated his agreement in granting Smith a permit to print and sell the book; and that Smith had knowledge of the agreement. Appellant claimed damages for infringement against both Fricke and Smith.

Fricke moved to be dismissed on the ground that the cause of action against him was not for violation of a copyright but for a mere agreement as to the exercise of the common copyright interest and hence presented no federal question. There were no allegations of diversity of citizenship or of the amount of damages. The motion was granted and judgment of dismissal as to Fricke was entered, from which judgment appellant appeals.

The District Court committed no error in dismissing as to Fricke. Such a contract relation as to the use of a joint copyright, admittedly valid, is not a federal question. Wade v. Lawder, 165 U.S. 624, 626, 17 S.Ct. 425, 41 L.Ed. 851; Dale Tile Mfg. Co. v. Hyatt, 125 U.S. 46, 52, 8 S.Ct. 756, 31 L.Ed. 683.

Smith filed an answer which, as amended, set up the permit from Fricke and denied any agreement between the two copyright owners at the time of the granting of the permit to him relative to a joint permission for the use of the copyright, and asserted that, if such an agreement existed, he, Smith, had no notice thereof and was not bound thereby. It is not questioned that Fricke as co-owner of the copyright would have had the right to give permission to Smith to publish the book. Piantadosi v. Loew's Inc., 9 Cir., 137 F.2d 534. The contention is that Fricke had given up that right by the contract and that Smith, having notice thereof, could receive from Fricke no valid permit to use the copyright.

Upon the trial the District Court found that there was an agreement between appellant and Fricke that neither of the copyright owners would give a permit to a third person to use the copyright without the permission of the other, but that it had terminated prior to the alleged infringing publication of the book by Smith. Appellant contends there is no evidence to support this finding. We do not agree. In 1937, appellant, under the name "Publisher," and Fricke, under the name "Author," entered into an agreement of which the following paragraphs are pertinent:

"Wherefor; In consideration of these facts, the Author does hereby agree to grant and extend first to the...