207 U.S. 284 (1907), 28, American Tobacco Company v. Werckmeister

Docket Nº:No. 28
Citation:207 U.S. 284, 28 S.Ct. 72, 52 L.Ed. 208
Party Name:American Tobacco Company v. Werckmeister
Case Date:December 02, 1907
Court:United States Supreme Court

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207 U.S. 284 (1907)

28 S.Ct. 72, 52 L.Ed. 208

American Tobacco Company



No. 28

United States Supreme Court

December 2, 1907

Argued October 30, 1907




In construing a statute, while the court must gain the legislative intent primarily from the language used, it must remember the objects and purposes of the statute and the conditions of its enactment, so as to effectuate, rather than destroy the spirit of that intent.

The purpose of the copyright statute is not so much to protect the physical thing created as to protect the right of publication and reproduction, and the statute should be construed in view of the character of the property intended to be protected.

In the case of a painting, map, drawing, etc., the copyright notice required by § 4962 Rev.Stat. need not be inscribed upon the original article itself; the statute is complied with if the notice is inscribed upon the published copies thereof which it is desired to protect.

In the United States, property in copyright is the creation of federal statute passed in the exercise of the power vested in Congress by Article I, § 8, of the federal Constitution, to promote the progress of science and the useful

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arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries, and the statute should be given fair and reasonable construction to effect such purpose.

The federal copyright statute recognizes the separate ownership of the right of copying from that which inheres in the physical control of the thing itself, and gives to the assigns of the original owner of the right to copyright the right to take out copyright independently of the ownership of the article itself.

The property of an author or painter in his intellectual creation is absolute until he voluntarily parts therewith. While the public exhibition of a painting or statue where all can see and copy it might amount to a publication, where the exhibition is made subject to reservation of copyright and to restrictions rigidly enforced against copying, it does not amount to a publication.

In a suit brought in replevin under the New York Code to recover infringing copies of the plaintiff's copyrighted article, it is too late to object to the form of remedy on the motion for new trial.

Adams v. New York, 192 U.S. 585, and Hale v. Henkel, 201 U.S. 43, followed to effect that defendant's rights under the Fourth and Fifth Amendments were not violated by the seizure of infringing copies of copyrighted articles or by the use thereof as evidence.

146 F. 375 affirmed.

This is a writ of error to the Circuit Court of Appeals for the Second Circuit seeking reversal of a judgment affirming the judgment of the United States Circuit Court for the Southern District of New York in favor of the defendant in error, adjudging him to be entitled to the possession of 1196 sheets, each containing a copy of a certain picture called "Chorus," the same representing a company of gentlemen with filled glasses, singing in chorus. The painting was the work of an English artist, W. Dendy Sadler. The defendant in error claimed to be the owner of a copyright taken out under the law of the United States.

The judgment was rendered under authority of § 4965, as amended March 2, 1895. 28 Stat. 965.

In January, 1894, by agreement between the artist and Werckmeister, the defendant in error, it was agreed that the painting should be finished by March 1, and then sent to Werckmeister to be photographed and returned to Sadler in time to

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exhibit at the Royal Academy in 1894. The painting was sent to Werckmeister at Berlin, where it was received on March 8, 1894, and was returned to Sadler in London on March 22, 1894. On April 2, 1894, the artist [28 S.Ct. 73] Sadler executed and delivered the following instrument:

I hereby transfer the copyright in my picture "Chorus" to the Photographische Gesellschaft, Berlin (The Berlin Photographic Company), for the sum of £200. London, April 2, 1894.

(Signed) W. Dendy Sadler

Werckmeister was a citizen of the German Empire, doing business in Berlin, Germany, under the trade name of "Photographische Gesellechaft," and did business in New York City under the name of the "Berlin Photographic Company."

The Photographische Gesellschaft of Berlin, by letter dater March 31, 1894, received on April 16, 1894, deposited the title and description of the painting and a photograph of the same in the office of the Librarian of Congress, the intention being to obtain a copyright under the act of Congress. 3 U.S.Comp.Stat. 1901, p. 3407. After the painting was returned to London, it was exhibited by Sadler at the exhibition of the Royal Academy at London, and was there on exhibition for about three months; the exhibition opening the first Monday of May and closing the first Monday of August, 1894. The exhibition was opened to the public on weekdays, from 8 A.M. to 7 P.M. upon the payment of the admission fee of one shilling, and during the last week was open evenings, the entrance charge being six pence. There was a private view for the press on May 2, and on May 3 up to one o'clock, and the remainder of the day was for the Royal private view. There was also a general private view on May 4. The members and the associate members of the Royal Academy and the artists exhibiting at the exhibition and their families were entitled at all times to free admission, and they, as well as the public, visited the exhibition in large numbers.

During the time that the painting was shown at the exhibition, it was not inscribed as a copyright, nor were any words

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thereon indicating a copyright, nor on the substance on which it was mounted, nor on the frame, as required by the copyright act (3 U.S.Comp.Stat. 1901, p. 3411), if the original painting is within the requirements of the law in this respect.

The painting, while on exhibition, was for sale at the Royal Academy, but with the copyright reserved, which reservation was entered in the gallery sale book. The bylaws of the Royal Academy provided "that no permission to copy works on exhibition shall on any account be granted." The reasons for the bylaw, as it appears upon minutes of the Academy, are as follows:

That so much property in copyright being entrusted to the guardianship of the Royal Academy, the council feel themselves compelled to disallow, in future, all copying within their walls from pictures sent for exhibition.

The photogravures of the painting were placed on sale in June, 1894, or in the autumn of 1894; those photogravures were inscribed with the notice of copyright.

Mr. Sadler, the artist, afterwards, in October, 1899, sold the painting to a Mr. Cotterel, residing in London, England, since which time, so far as has been shown, it has been hanging in the dining room of the house of that gentleman.

On June 20, 1902, Werckmeister commenced an action, by the service of a summons, against the American Tobacco Company, plaintiff in error, and on the same day a writ of replevin was issued out of the circuit court of the United States for the Southern District of New York, directed to the marshal of the same district, requiring him to replevin the chattels described in an annexed affidavit. Under the writ, the marshal seized upon the premises of the American Tobacco Company 203 pictures. On July 23, 1902, Werckmeister caused another writ of replevin to issue out of the same court, directed to the marshal of the Western District of New York, under which writ the marshal seized 993 pictures.

An amendment to the complaint set forth the seizure of the pictures. The copies seized were adjudged to be forfeited to the plaintiff, Werckmeister, and to be of the value of $1,010.

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The judgment rendered in the circuit court was taken upon error to the United States circuit court of appeals and there affirmed. 146 F. 375. The present writ of error is prosecuted to reverse the judgment of the court of appeals.

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DAY, J., lead opinion

MR. JUSTICE DAY delivered the opinion of the Court.

This case involves important questions under the copyright laws of the United States, upon which there has been diversity of view in the federal courts.

Before taking up the errors assigned, it may aid in the elucidation of the questions involved to briefly consider the nature of the property in copyright which it is the object of the statutes of the United States to secure and protect. A copyright, as the term imports, involves the right of publication [28 S.Ct. 74] and reproduction of works of art or literature. A copyright, as defined by Bouvier's Law Dictionary, Rawles' edition, volume 1, p. 436, is:

The exclusive privilege, secured according to certain legal

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forms, of printing, or otherwise multiplying, publishing, and vending copies of certain literary or artistic productions.

And further, says the same author,

the foundation of all rights of this description is the natural dominion which everyone has over his own ideas, the enjoyment of which, although they are embodied in visible forms or characters, he may, if he chooses, confine to himself or impart to others.

That is, the law recognizes the artistic or literary productions of intellect or genius, not only to the extent which is involved in dominion over and ownership of the thing created, but also the intangible estate in such property which arises from the privilege of publishing and selling to others copies of the thing produced.

There was much contention in England as to whether the common law recognized this property in copyright before the statute of Anne; the controversy resulting in the decision in the House of Lords in the case of Donaldson v. Becket, 4 Burr, 2408, the result of the decision being that a majority of the judges, while in...

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