Stern v. Jerome H. Remick & Co.

• Decision Date: 14 January 1910
• Citation: 175 F. 282
• Parties: STERN et al. v. JEROME H. REMICK & CO.
• Court: U.S. District Court — Southern District of New York

175 F. 282

STERN et al. v. JEROME H. REMICK & CO.

United States Circuit Court, S.D. New York.

January 14, 1910

This is a motion for a nonsuit, made at the close of the plaintiff's case, in an action brought to recover statutory penalties for the violation of the plaintiff's copyright. The defendant attacks the plaintiff's case on three grounds: First, because the plaintiff did not make publication of the work after filing two copies with the Librarian of Congress; second, because the notice of copyright stated the year in Roman numerals, not Arabic; and third, because the defendant is not shown to have willfully intended to violate the copyright.

The composition in question was a song published by the plaintiff. The plaintiff had plates made, and caused ten copies of the song, without covers, to be struck off by hand which he used for copyright purposes. Tow of these copies were sent to the Librarian of Congress in accordance with the statute, and one of them was sent to C. H. Ditson & Co., a seller of musical works, with an invoice of sale, which was later paid by C. H. Ditson & Co. The whereabouts of the song after it reached the possession of C. H. Ditson & Co. does not appear. The plaintiff sold no other copies of the song until more than a year after he had taken out a copyright and until after the defendant had begun to sell his copies. The price of the song was four cents a copy.

Cohen Creevey & Richter, for plaintiffs.

House, Grossman & Vorhaus, for defendants.

HAND District Judge (after stating the facts as above).

As to the two second objections raised by the defendant I find no difficulty. It is not necessary that the defendant should have intended to violate the copyright of the plaintiff. He had means of knowledge from the copyright office that the song had been in fact copyrighted; and he, like any one else, took his chances when he published the song without any inquiry.

Nor do I find any difficulty in deciding that Roman numerals conform to the notice prescribed by the statute. Roman numerals are a part of the language of this country. They are constantly in use upon monumental architecture of all sorts and for serial purposes upon books, and they are a part of the language as taught in the public schools, and understood by all but the most illiterate. Nor can one seriously contend that the notice required by the statute could be fulfilled only by Arabic numerals. If the letters were written out in words, it would certainly be a compliance. I regard the writing of it here in Roman numerals as more nearly a literal compliance with the statute than to write out the year in words.

The only serious question is whether, under the statute, any publication is necessary beyond the deposit of two copies in the Library of Congress, and, if so, whether the sale to Ditson of a single copy is not enough. The defendant supposes that the author must make some 'publication' independent of this deposit. He seems to mean by this a bona fide effort commercially to exploit his piece, to put it 'on the market,' to make what he can from its sale. This the plaintiff did not do. It is plain enough that his sale to Ditson was simply in an attempt to comply with a fancied requirement of the statute. I think the requirement was fancied, for nothing else is necessary than the deposit in the Library of Congress, certainly when coupled with an unrestricted sale of one copy.

The trouble seems to me to have arisen over a misconception of the decision of Mr. Justice Hunt in Boucicault v. Hart Fed. Cas. No. 1,692. In that case the learned justice sitting at circuit held that the...