Mount v. Book-of-the-Month Club, Inc., BOOK-OF-THE-MONTH
| Decision Date | 19 May 1977 |
| Docket Number | D,No. 639,BOOK-OF-THE-MONTH,639 |
| Citation | 555 F.2d 1108 |
| Parties | Charles Merrill MOUNT, Plaintiff-Appellant, v.CLUB, INC., Defendant-Appellee. ocket 76-7458. |
| Court | U.S. Court of Appeals — Second Circuit |
Charles Merrill Mount, Neponsit, N.Y., pro se.
Paul J. Newlon, New York City (Richard M. Zuckerman, and Paul, Weiss, Rifkind, Wharton & Garrison, New York City, on the brief), for defendant-appellee.
Before FEINBERG and TIMBERS, Circuit Judges, and DAVIS, Judge. *
Plaintiff-appellant, Charles Merrill Mount, author of "John Singer Sargent: A Biography," filed this suit on December 29, 1975, in the Southern District of New York against defendant-appellee Book-of-the-Month Club, alleging two separate counts of copyright infringement of his Sargent work. Defendant successfully moved for summary judgment on both counts. We agree with the District Court as to the first count and part of the second, but find it necessary to remand for a trial on one portion of the latter claim.
The first count goes back to events in 1955-1956. In November 1955 plaintiff's work on Sargent was published. His complaint asserts that, earlier in that year, his publisher sent proof copies of the book to defendant-appellee (to decide whether it wished to adopt the volume for its book club); defendant turned the proofs over to one of the readers "employed" by it, Mrs. Pamela Taylor; she sent the proofs to her friend David McKibbin in Boston; and McKibbin infringed plaintiff's copyright by means of a pamphlet on Sargent published in January 1956 by the Boston Museum of Fine Arts. Defendant responded with affidavits to the effect that Mrs. Taylor was not its employee but an independent contractor, and that Book-of-the-Month bore no responsibility for any tort she may have committed in sending the proofs to McKibbin. Defendant also pointed out that it had rejected plaintiff's book for reproduction and had nothing to do with it.
The District Court accepted this position of Book-of-the-Month Club, holding that "there is no basis for imposing vicarious liability on this defendant, if, as alleged, Mrs. Taylor made the proofs available to an independent infringer, McKibbin." The court also ruled that the claim was barred by the three-year statute of limitations in the then copyright law (17 U.S.C. § 115(b)).
We need not consider whether defendant could escape liability simply because the reader to whom it sent the proofs of plaintiff's work was an independent contractor. In any case the claim is foreclosed by limitations. Even if defendant participated in an infringement through the sending on of the proofs to McKibbin, that event occurred in the Fall of 1955, almost twenty years before this action was begun. There is no proof or allegation of any further connection of Book-of-the-Month with McKibbin's pamphlet. Unless the statute's running has been tolled or prolonged, the claim is undoubtedly long since time-barred.
Mount first says that tolling occurred because he did not discover until 1974 that McKibbin had had access to his manuscript through Mrs. Taylor. But plaintiff knew in or about January 1956 of the publication of McKibbin's pamphlet; he could tell if he had a potential infringement claim by comparing the two works and noting the similarities; if he thought actual access by McKibbin before January 1956 had to be proved, he could have found out through discovery whether and how McKibbin had seen the Mount book. That type of knowledge, available to plaintiff in 1956, was enough to start limitations running at that time, unless defendant successfully concealed the cause of action by fraudulent means. Prather v. Neva Paperbacks, Inc., 446 F.2d 338, 340-41 (5th Cir. 1971). There is no hint of such conduct by Book-of-the-Month which (except possibly for Mrs. Taylor's 1955 action) had nothing whatever to do with the McKibbin's work and remained wholly oblivious of any possible encroachment by it on "John Singer Sargent: A Biography."
Second, plaintiff says that the Boston Museum has sold the McKibbin pamphlet within the three-year period free of limitations, and that this recent infringement suffices to bring the case against Book-of-the-Month within the statutory span. The difficulty with this contention is that appellee's own infringement, if it occurred, ended completely in 1955-1956 and appellee cannot be held for what the Boston Museum has since done on its own responsibility. The principle is that of Maloney v. Stone, 171 F.Supp. 29 (D.Mass.1959), in which Judge Wyzanski rejected an attempt to hold in damages a manufacturer of an allegedly infringing work more than the normal limitations period after it had turned over all copies of the infringing work to its customers who continued to market them. The court held that, more than the limitations period (two years in that case) prior to the bringing of the suit, the manufacturer "ceased to infringe, if it ever did infringe, ceased to invade plaintiff's interest, if it ever had invaded plaintiff's interest, and discontinued all relations as agent of, associate of, or even as contractual party" with the customers. What the latter did with the manufacturer's products, "they did on their own account and entirely on their own responsibility." 171 F.Supp. at 32. The same is true here.
The second part of the complaint brings us forward to the 1970's. Harper & Row Publishers, Inc., issued in this country a book by Richard Ormond, a Britisher, called "John Singer Sargent: Paintings, Drawings Watercolors." Harper granted and assigned to Book-of-the-Month the exclusive book club rights to that work for three years beginning April 23, 1970. Defendant-appellee manufactured the book for sale to its subscribers, using the original Harper plates; the volumes made by appellee are indistinguishable from those made by Harper's and do not show Book-of-the-Month as publisher or distributor. In its contract with defendant, Harper warranted that the Ormond book did not violate any copyright or other rights of ownership, and agreed to indemnify defendant against all such claims.
Plaintiff asserts in this action that the Ormond book infringes his copyright in his Sargent book and other Sargent materials, and that Book-of-the-Month is liable for such infringement via the books it sold. Earlier, Mount had sued Harper's in the Southern District for the same type of infringement. Mount v. Harper & Row Publishers, Inc., 73 Civ. 3794 (LFG) (S.D.N.Y.). Judge Gagliardi had denied both parties' motions for summary judgment and directed a trial on the issue of infringement. At that point the Harper action was settled (after discussions in which Judge Gagliardi participated) for a payment of $12,500 to plaintiff (half by Harper's and half by Phaidon Press, the British publisher of the Ormond book).
As part of the settlement a release was given by Mount in which he released Harper's and its "assigns" from all claims "which have arisen or may yet arise out of past or future publishing, printing, distributing, selling or licensing by" Harper's or its successors or assigns of any portion of the Ormond book, except that nothing in the release was to bar plaintiff "from bringing or maintaining any manner of action, cause of action or suit whatsoever against Richard Ormond." This release has been submitted by Book-of-the-Month as a complete bar to the present action, in view of the book club's assignee-assignor relationship to Harper's with respect to the Ormond work. In addition, appellee says that most (though not all) of this second claim is barred by the three-year statute of limitations. The District Court accepted both of these defenses.
On this second count we also uphold the ruling on limitations. The materials presented by appellee show conclusively that (a) all the manufacture, promotion, and regular sales of the Ormond work by Book-of-the-Month occurred more than three years before the complaint was filed on December 29, 1975, and (b) the only sale within...
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