239 F.2d 740 (2nd Cir. 1956), 37, American Visuals Corp. v. Holland

Docket Nº37, 23979.
Citation239 F.2d 740, 111 U.S.P.Q. 288
Party NameAMERICAN VISUALS CORPORATION, Plaintiff-Appellant, v. Frederick A. HOLLAND and Sam Schwartz, Defendants-Appellees.
Case DateNovember 20, 1956
CourtUnited States Courts of Appeals, United States Court of Appeals (2nd Circuit)

Page 740

239 F.2d 740 (2nd Cir. 1956)

111 U.S.P.Q. 288

AMERICAN VISUALS CORPORATION, Plaintiff-Appellant,

v.

Frederick A. HOLLAND and Sam Schwartz, Defendants-Appellees.

Nos. 37, 23979.

United States Court of Appeals, Second Circuit.

November 20, 1956

Argued Oct. 4, 1956.

Page 741

Socolow, Stein & Seton, New York City (A. Walter Socolow, New York City, of counsel), for plaintiff-appellant.

Mallin & Gross, New York City (Burton Perlman, Armand E. Lackenbach, New York City, of counsel), for defendants-appellees.

Before FRANK, MEDINA and HINCKS, Circuit Judges.

Page 742

FRANK, Circuit Judge.

1. Publication

The following facts appear in affidavits filed by defendants in support of their summary judgment motion.

Somewhat over 200 copies of plaintiff's work 'Killer in the Streets' were disseminated in an effort to find a casualty or insurance company interested in using it in a safety advertisement campaign. On one occasion one hundred copies were placed on a table in Pocono Manor Hotel, Pennsylvania, along with other publications for unsupervised distribution, at a time when a convention of accident and casualty insurance executives were holding a convention at that hotel. Subsequently, plaintiff's former employee, the present defendant, Holland, induced the Association of Casualty and Insurance Companies to distribute copies to its 112 member companies, again with a view to obtaining business from them. While it is clear that the purpose of distribution was limited to interesting prospective purchasers, no limitation was placed on the persons who might obtain copies of the work, either by picking them up from the table in the instance where they were made available in the hotel, or by securing them from one of the insurance company employees who were sent copies in the hope of getting business.

In form, the material distributed consisted of photostatic copies of a 'comprehensive rough dummy.' It appears from the affidavits that-- assuming a client accepted the substance of the work-- there remained inking in of the pencilled art work and preparation for engraving, to put it in 'final' form.

The content consisted of pictorial illustrations in cartoon form of at least three typical traffic situations in which driver carelessness led to accidents, with accompanying admonitions against improper use of motor vehicles. The booklets each contained notice of copyright.

In deciding whether certain acts constitute 'publication, ' satisfying the requirements of 17 U.S.C. § 10, 1 we are confronted with numerous conflicting cases which, by their holdings, though not in their stated rationale, raise more than a suspicion that the term 'publication' is clouded by semantic confusion where the term is defined for different purposes, and that we have here an illustration of the one-word-one-meaning-only fallacy. 2

A number of cases have explicitly assumed that facts which would constitute 'publication' for purposes of securing

Page 743

the author federal copyrights protection, will also operate to divest him of his common law protection if he has not secured a federal copyright. In other words, the stated rationale of many copyright cases is that federal statutory copyright begins with the same acts of 'publication' which will end the common law protection, and vice versa. 3

It is, however, perfectly clear that the word 'publication' does not have the same legal meaning in all contexts. Its copyright definition, for example, differs from its meaning where applied in respect of torts (see Restatement, Torts, Section 577) or in respect of privacy. See e.g., Jenkins v. Dell Publishing Co., D.C., 132 F.Supp. 556.

The copyright cases-- by the results reached-- likewise suggest that (a) where common law protection is sought because a federal copyright has not been applied for, the courts will require considerably more open dissemination before holding that publication has taken place so as to deprive the creator of the material of his rights in it, than (b) where a copyright certificate has been obtained and the plaintiff is claiming sufficient publication to enable him to maintain an action on the federal statute. Compare, e.g., Werckmeister v. Pierce & Bushnell Mfg. Co., C.C., 72 F. 54 (holding that exhibition of a painting in a public art gallery was sufficient publication to entitle plaintiff to recover under the Copyright Act) with Werckmeister v. American Lithograph Co., 134 F. 321, 68 L.R.A. 591 (holding that exhibition of a painting in a public gallery did not constitute publication divesting plaintiff of his common law protection, and distinguishing the earlier case on the ground that it was brought under the Copyright Act). Compare also Cardinal Film Corporation v. Beck, D.C.N.Y.1918, 248 F. 368, A. Hand, J., and Stern v. Jerome H. Remick & Co., D.C.N.Y.1915, 175 F. 282, L. Hand, J., both holding that deposit of two copies of the work with the Library of Congress in compliance with the requirements of the Copyright Act, was sufficient publication to enable plaintiff to maintain suit under that Act, with Osgood v. A. S. Aloe Instrument Co., C.C.Mo.1895, 69 F. 291, holding that deposit of two books with the Library of Congress in advance of obtaining copyright was not publication constituting dedication at common law so that plaintiff could subsequently maintain an action under the Federal statute when he obtained a copyright certificate. Contra: Brown v. Select Theatres Corp., D.C.1944, 56 F.Supp. 438, where Judge Wyzanski held that deposit did constitute dedication at common law; in that case, however, the right to maintain an action on the statute was preserved. Compare further Allen v. Walt Disney Productions, D.C.N.Y.1941, 41 F.Supp. 134, holding that distribution of copies of a song to orchestra leaders, playing of song in restaurants and broadcasting over radio, did not constitute dedication divesting plaintiff of his common law rights; McCarthy & Fischer v. White, D.C.N.Y.1919, 259 F. 364, A. Hand, J. (substantially similar), and Patterson v. Century Productions, D.C., 93 F.2d 489, to the effect that showing of a motion picture on various occasions to thousands of persons was 'limited publication' which did not amount to publication requiring plaintiff to deposit two copies with in copyright office in advance of maintaining suit, with Ladd v. Oxnard, C.C.1896, 75 F. 703, holding that delivery of a book on a loan basis, giving credit ratings on stone and granite dealers to 175 subscribers, was general publication

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entitling plaintiff to copyright protection.

Cases such as these indicate that, as we said above, the courts apply different tests of publication depending on whether plaintiff is claiming protection because he did not...

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31 practice notes
  • 59 Misc.2d 444, Paulsen v. Personality Posters, Inc.
    • United States
    • October 14, 1968
    ...not result in loss of the common-law Page 452 copyright (see White v. Kimmell, 193 F.2d 744, 746--747; American Visuals Corp. v. Holland, 239 F.2d 740, 744), there is sharp disagreement between the parties herein as to whether the photograph was sent to defendant for a limited purpose or wh......
  • 548 P.2d 870 (Wyo. 1976), 4325, Stuebgen v. State
    • United States
    • Wyoming United States State Supreme Court of Wyoming
    • April 12, 1976
    ...returned by juries so instructed will not be allowed to stand.' 7 To the same effect is Parham v. United States, 119 U.S.App.D.C. 242, 239 F.2d 741 (1964), cert. den. 379 U.S. 935, 85 S.Ct. 336, 13 L.E.2d 346. The intent instruction objected to here reads in part again: 'A person is presume......
  • 567 P.2d 285 (Wyo. 1977), 4738, Seay v. Vialpando
    • United States
    • Wyoming United States State Supreme Court of Wyoming
    • August 3, 1977
    ...or it cannot be called a private or limited publication.' White v. Kimmell, supra, 193 F.2d 746-747. American Visuals Corp. v. Holland, 239 F.2d 740, 744 (2d Cir.). Continental Cas. Co. v. Beardsley, supra, 253 F.2d 706-707. While the test is properly one of intention, it is clear that the ......
  • Real Copyright Reform
    • United States
    • Iowa Law Review Nbr. 96-1, November 2010
    • November 1, 2010
    ...example is the meaning of the word “publication” under sections 10 and 19 of the 1909 Copyright Act. See Am. Visuals Corp. v. Holland, 239 F.2d 740, 744 (2d Cir. 1956) (“[T]he courts apply different tests of publication depending on whether plaintiff is claiming protection because he did no......
  • Request a trial to view additional results
27 cases
  • 59 Misc.2d 444, Paulsen v. Personality Posters, Inc.
    • United States
    • October 14, 1968
    ...not result in loss of the common-law Page 452 copyright (see White v. Kimmell, 193 F.2d 744, 746--747; American Visuals Corp. v. Holland, 239 F.2d 740, 744), there is sharp disagreement between the parties herein as to whether the photograph was sent to defendant for a limited purpose or wh......
  • 548 P.2d 870 (Wyo. 1976), 4325, Stuebgen v. State
    • United States
    • Wyoming United States State Supreme Court of Wyoming
    • April 12, 1976
    ...returned by juries so instructed will not be allowed to stand.' 7 To the same effect is Parham v. United States, 119 U.S.App.D.C. 242, 239 F.2d 741 (1964), cert. den. 379 U.S. 935, 85 S.Ct. 336, 13 L.E.2d 346. The intent instruction objected to here reads in part again: 'A person is presume......
  • 567 P.2d 285 (Wyo. 1977), 4738, Seay v. Vialpando
    • United States
    • Wyoming United States State Supreme Court of Wyoming
    • August 3, 1977
    ...or it cannot be called a private or limited publication.' White v. Kimmell, supra, 193 F.2d 746-747. American Visuals Corp. v. Holland, 239 F.2d 740, 744 (2d Cir.). Continental Cas. Co. v. Beardsley, supra, 253 F.2d 706-707. While the test is properly one of intention, it is clear that the ......
  • Horadam v. Stewart, 100608 TNCIV, M2007-00046-COA-R3
    • United States
    • Tennessee Court of Appeals of Tennessee
    • October 6, 2008
    ...for different purposes, and that we have here an illustration of the one-word-one-meaning-only fallacy. American Visuals Corp. v. Holland, 239 F.2d 740, 742 (2d Cir. 1956). The same court again noted that the word "publish" is a term that "has a variety of definitions in the ......
  • Request a trial to view additional results
4 books & journal articles
  • Real Copyright Reform
    • United States
    • Iowa Law Review Nbr. 96-1, November 2010
    • November 1, 2010
    ...example is the meaning of the word “publication” under sections 10 and 19 of the 1909 Copyright Act. See Am. Visuals Corp. v. Holland, 239 F.2d 740, 744 (2d Cir. 1956) (“[T]he courts apply different tests of publication depending on whether plaintiff is claiming protection because he did no......
  • Copyright publication: an empirical study.
    • United States
    • Notre Dame Law Review Vol. 87 Nbr. 1, November 2011
    • November 1, 2011
    ...scenarios illustrating the potential importance of this issue, see Cotter, supra note 22, at 1746-51. (82) Am. Visuals Corp. v. Holland, 239 F.2d 740, 742 (2d Cir. 1956). (83) See La Cienega Music Co. v. ZZ Top, 53 F.3d 950, 953 (9th Cir. 1995) ("Congress declined to define 'publicatio......
  • Copyright Due Diligence
    • United States
    • Intellectual Property and Technology Due Diligence
    • January 1, 2018
    ...the full protection of 141. Marshall Leaffer, underStanding coPyright law 150 (2005). 142. Id. 143. See American Visuals Corp. v. Holland, 239 F.2d 740, 744 (2d Cir. 1956) (noting that courts apply different tests to determine whether plaintiff has, irst, divested common law copyright prote......
  • The surprising virtues of treating trade secrets as IP rights.
    • United States
    • Stanford Law Review Vol. 61 Nbr. 2, November 2008
    • November 1, 2008
    ...a Business Method Use Exemption to Patent Infringement?, 2008 MICH. ST. L. REV. 245, 250. (90.) See, e.g., Am. Visuals Corp. v. Holland, 239 F.2d 740, 744 (2d Cir. 1956) (discussing requirement of publication under the 1909 (91.) 17 U.S.C. [section] 407 (2000). (92.) See, e.g., Risch, supra......

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