145 F.2d 620 (9th Cir. 1944), 10657, Meredith v. Smith

Docket Nº:10657.
Citation:145 F.2d 620, 63 U.S.P.Q. 216
Party Name:MEREDITH v. SMITH et al.
Case Date:November 13, 1944
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 620

145 F.2d 620 (9th Cir. 1944)

63 U.S.P.Q. 216

MEREDITH

v.

SMITH et al.

No. 10657.

United States 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

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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...

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