American Tobacco Company v. Emil Werckmeister

Decision Date02 December 1907
Docket NumberNo. 28,28
Citation12 Ann. Cas. 595,52 L.Ed. 208,207 U.S. 284,28 S.Ct. 72
PartiesAMERICAN TOBACCO COMPANY, Plff. in Err., v. EMIL WERCKMEISTER, Deft. in Err
CourtU.S. Supreme Court

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, 1985 ([28 Stat. at L. 965, chap. 194] U. S. Comp. Stat. 1901, p. 3414).

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 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 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. [Rev. Stat. 4956] 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 week days, from 8 A. M. to 7 P. M. upon the payment of the admission fee of 1 shilling, and during the last week was open evenings, the entrance charge being 6 pence. There was a private view for the press on May 2, and on May 3 up to 1 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 thereon indicating a copyright, nor on the substance on which it was mounted, nor on the frame, as required by the copyright act ([18 Stat. at L. 78, chap. 301] 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 by-law, as it appears upon minutes of the Academy, are as follows:

'That so much property in copyright being intrusted 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.

The judgment rendered in the circuit court was taken upon error to the United States circuit court of appeals and there affirmed. 76 C. C. A. 647, 146 Fed. 375. The present writ of error is prosecuted to reverse the judgment of the court of appeals.

Mr. William A. Jenner for plaintiff in error.

Mr. Antonio Knauth for defendant in error.

Statement by Mr. Justice Day:

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 and reproduction of works of art or literature. A copyright, as defined by Bouvier's Law Dictionary, Rawles's edition, volume 1, p. 436, is: 'The exclusive privilege, secured according to certain legal 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 favor of the commonlaw right, held the same had been taken away by the statute. See Wheaton v. Peters, 8 Pet. 591-656, 8 L. ed. 1055-1079; Holmes v. Hurst, 174 U. S. 82, 43 L. ed. 904, 19 Sup. Ct. Rep. 606.

In this country it is well settled that property in copyright is the creation of the Federal statute passed in the exercise of the power vested in Congress by the Federal Constitution in article 1, § 8, 'to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.' See 8 Pet. 591, supra; Banks v. Manchester, 128 U. S. 244, 252, 32 L. ed. 425, 428, 9 Sup. Ct. Rep. 36; Thompson v. Hubbard, 131 U. S. 123, 151, 33 L. ed 76, 86, 9 Sup. Ct. Rep. 710.

Under this grant of authority a series of statutes have been passed, having for their object the protection of the property which the author has in the right to publish his production, the purpose of the statute being to protect this right in such manner that the author may have the benefit of this property for a limited term of years. These statutes should be given a fair and reasonable construction with a view to effecting such purpose. The first question presented in oral argument and upon the briefs involves the construction of § 4962 as amended (U. S. Comp. Stat. 1901, p. 3411), which is as follows:

'That no person shall maintain an action for the infringement of his copyright unless he shall give notice thereof by inserting in the several copies of every edition published, on the title page or the page immediately following, if it be a book; or if a map, chart, musical composition, print, cut, engraving, photograph, painting, drawing, chromo, statue, statuary, or model or design intended to be perfected and completed as a work of the fine arts, by inscribing upon some visible portion thereof, or of the substance on which the same shall be mounted, the following words, viz.: 'Entered according to act of Congress, in the year _____, by A. B. in the office of the Librarian of Congress, at Washington;' or, at his potion, the word 'copyright,' together with the year the copyright was entered, and the name of the party by whom it was taken out, thus: 'Copyright 18——, by A. B."

It is the contention of the plaintiff in error that the original painting was not inscribed as required by the act, and therefore no action can be maintained,...

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