George Mifflin v. White Company

Decision Date01 June 1903
Docket NumberNo. 268,268
Citation190 U.S. 260,47 L.Ed. 1040,23 S.Ct. 769
PartiesGEORGE H. MIFFLIN et al., Appts. , v. R. H. WHITE COMPANY
CourtU.S. Supreme Court

This was a bill in equity by the firm of Houghton, Mifflin, & Co., as assignees of the late Oliver Wendell Holmes, against the R. H. White Company, for a violation of the copyright upon the Professor at the Breakfast Table. The work was published serially during the year 1859, in the Atlantic Monthly Magazine, at first by Phillips, Sampson, & Co., and later by the firm of Ticknor & Fields. The first ten parts were published from January to October, 1859, by Phillips, Sampson, & Co. without copyright protection. The remaining two numbers for the months of November and December, 1859, were entered for copyright by Ticknor & Fields, whose copyright purported to cover the entire magazine. After its publication cerically had been completed, Dr. Holmes published the entire work in one volume, containing a proper notice of copyright.

Upon this state of facts the circuit court dismissed the bill (107 Fed. 708), and, upon appeal to the circuit court of appeals, that court affirmed the decree. 50 C. C. A. 661, 112 Fed. 1004.

Messrs. appellants.

Mr. Andrew Gilhooly for appellee.

Mr. Justice Brown delivered the opinion of the court:

That the copyright taken but by the author after the serial publication of his work in the Atlantic Monthly did not prevent the republication of so much of such serial as had appeared in the magazine prior to December, 1859, and before any steps taken to obtain a copyright, was settled by this court in Holmes v. Hurst, 174 U. S. 82, 43 L. ed. 904, 19 Sup. Ct. Rep. 606, wherein we held that the appearance of a work in a magazine, by consent of the author, was such a publication as vitiated the copyright, under § 4 of the copyright act of 1831. 4 Stat. at L. 436, chap. 16.

The question presented by this case is whether entering for copyright the last two parts of the Professor at the Breakfast Table in the December number of 1859 of the Atlantic Monthly by Ticknor & Fields, proprietors of the magazine, was sufficient to save the rights of the author, the plaintiff having purchased such rights from the executor of the late Dr. Holmes.

By § 1 of the act of February 3, 1831, 'the author or authors of any book or books . . . not printed and published, . . . and the executors, administrators, or legal assigns of such person or persons, shall have the sole right and liberty of printing,' etc. By § 4, 'no person shall be entitled to the benefit of this act, unless he shall, before publication, deposit a printed copy of the title of such book . . . in the clerk's office of the district court of the district wherein the author or proprietor shall reside,' when the clerk is directed to make a record of the same, in a form prescribed, wherein is stated the date, the name of the author or proprietor, etc.; and, by § 5, the person entitled to the benefit of the act shall give information of his copyright, by giving notice on the title page, or page immediately following, in a prescribed form. Construing these statutes together, it would seem that the word 'proprietor,' in the 4th section, must practically liave the same meaning as 'legal assigns,' in the 1st section, and was designed to give to the legal assignee of any author or authors the right to take out the copyright in his own name.

There is no evidence in this case, however, that Dr. Holmes, the author of the Professor at the Breakfast Table, ever assigned to either of the proprietors of the magazine the authority to copyright his work. While there is an allegation in the bill, upon information and belief, that the work—the first ten parts of which were published by Phillips, Sampson, & Co.—was printed, published, and sold by said Phillips, Sampson, & Co. 'by and with the consent and authority of the said Oliver Wendell Holmes, and in accordance with an agreement' made with him by the said...

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  • Davis v. DuPont de Nemours & Company
    • United States
    • U.S. District Court — Southern District of New York
    • 16 d5 Abril d5 1965
    ..."new work" involved for which proper copyright notice was given, 176 Fed. 833 (2d Cir. 1910). See also Mifflin v. R. H. White Co., 190 U.S. 260, 264, 23 S.Ct. 769, 47 L.Ed. 1040 (1902). 69 Callaghan v. Myers, 128 U.S. 617, 657, 9 S.Ct. 177, 32 L.Ed. 547 (1888); Shapiro, Bernstein & Co. v. J......
  • Abend v. MCA, Inc.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 27 d2 Dezembro d2 1988
    ...Defendants argue that the Supreme Court's holding in Mifflin v. R.H. White Co., 190 U.S. 260, 23 S.Ct. 769, 47 L.Ed. 1040 (1903), bars our adoption of the Second Circuit's holding. We are persuaded by the Second Circuit's treatment of that opinion. See Goodis, 425 F.2d at In Mifflin, the Su......
  • Tams-Witmark Music Library, Inc. v. New Opera Co.
    • United States
    • New York Court of Appeals
    • 16 d5 Julho d5 1948
    ...Edwardes. Apparently, authority to apply for a statutory copyright is quite readily implied from such facts. Mifflin v. R. H. White Co., 190 U.S. 260, 23 S.Ct. 769, 47 L.Ed. 1040, and cases cited. Even mere possession of the manuscript is some evidence of the right to apply for copyright. G......
  • West Pub. Co. v. Edward Thompson Co.
    • United States
    • U.S. District Court — Eastern District of New York
    • 1 d2 Junho d2 1909
    ...decided that Dr. Holmes had lost his copyright through the failure to comply strictly with the statutory requirements. In Mifflin v. R. H. White Company, supra, 'The Autocrat the Breakfast Table' was again the work under consideration. It appears by this decision that ten of the monthly par......
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1 books & journal articles
  • THE FOLKLORE OF COPYRIGHT PROCEDURE.
    • United States
    • Harvard Journal of Law & Technology Vol. 36 No. 1, September 2022
    • 22 d4 Setembro d4 2022
    ...had no claim to the larger "gnomic field of art"). (241.) Id. at 50-51. (242.) Id. at 51. (243.) Id. (244.) Mifflin v. R.H. White Co., 190 U.S. 260 (245.) Id. at 262. (246.) Id. at 261. (247.) Id. (248.) Id. at 263-64. (249.) Id. at 263. (250.) Id. at 262-63. (251.) Id. at 263. (252.) Id. (......

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