American Tobacco Co. v. Werckmeister

• Decision Date: 04 April 1906
• Docket Number: 105.
• Parties: AMERICAN TOBACCO CO. v. WERCKMEISTER.
• Court: U.S. Court of Appeals — Second Circuit

146 F. 375

AMERICAN TOBACCO CO. v. WERCKMEISTER.

No. 105.

United States Court of Appeals, Second Circuit.

April 4, 1906

Wm. A Jenner, for plaintiff in error.

Antonio Knauth, for defendant in error.

This cause comes here upon a writ of error to review a judgment of the Circuit Court, Southern District of New York, in favor of defendant in error, who was plaintiff below. The court adjudged that 'plaintiff have and retain, and is entitled to the possession of, 1,196 sheets, each containing copy of plaintiff's copyrighted picture Chorus, found in the possession of defendant, and replevied by the U.S. Marshal said sheets having been made in violation of plaintiff's copyright, and that the same are forfeited to the plaintiff and are of the value of $1,010,' and awarding judgment for costs. Mr. Sadler, an English artist, painted the picture, and on April 2, 1894, delivered to the plaintiff, a German citizen, the following paper: 'I hereby transfer the copyright in my picture Chorus to the Photographische Geesellschaft, Berlin, for the sum of 200. ' Prior to that he had loaned the picture to plaintiff who is the Photographische Geesellschaft, for the purpose of preparing a photogravure thereof. Upon the return of the painting, it was exhibited without notice of copyright in the exhibition of the Royal Academy, London, May to August, 1894. We have held that such exhibition was not a publication, because the rules and practice of the Academy prohibited the making of any copies of pictures there exhibited. Werckmeister v Am.Lith.Co. (C.C.A.) 134 F. 321, 68 L.R.A. 591. On April 16, 1894, plaintiff took out a copyright in this country, and began the publication of the painting in this country and in foreign countries by the sale of photographic or photogravure copies thereof. Sadler retained possession of the painting until October, 1899, when he sold it to a Mr. Cotterell, residing in London, and at the time of the taking of testimony in this cause it was hanging in his dining room. Sadler told Cotterell before effecting the sale of the painting that he had already sold the copyright to the Berlin company, but at no time, so far as the evidence shows, was there inscribed upon some visible portion of the painting, or on the substance upon which it was mounted, or on the frame thereof, any notice of copyright.

Before WALLACE, LACOMBE, and COXE, Circuit Judges.

PER CURIAM.

It is contended that plaintiff had no legal right to take a copyright, that he was not, within the meaning of section 4952 (U.S. Comp. St. 1901, p. 3406), an 'assign' of the author, and that no one but the author or proprietor of the original painting is entitled to take a copyright. This point has been fully discussed by Judge Putnam in Werckmeister v. Pierce & Bushnell Co. (C.C.) 63 F 455, and by Judge Holt in Werckmeister v. Am. Lithographic Co. (C.C.) 142 F. 827. We concur in their conclusions, and are of the opinion that plaintiff secured a statutory copyright.

It is next contended that plaintiff has no right to maintain the action because of omission to give the notice of copyright prescribed by section 4962 (U.S. Comp. St. 1901, p. 3411) on the original painting or its mount. That point also is discussed in the cases last-above cited, and we concur in the conclusions therein...