Black v. Henry G. Allen Co.

Decision Date14 April 1893
Docket Number4,750,,4,718,4,896.
PartiesBLACK et al. v. HENRY G. ALLEN CO., (two cases.) SAME v. FUNK et al.
CourtU.S. District Court — Southern District of New York

Francis Black, one of the complainants, testified that the complainants Blacks were partners in the publishing business sharing the profits in common, acting under a partnership agreement in writing, but refused to produce such agreement.

There was evidence at the trial that the printed copies of the copyrighted articles or books in question were sent April 5 1888, by Charles Scribner's Sons, acting for complainants, by express, from New York city, addressed to the librarian of congress, at Washington D. C., to complete the copyright of such articles or books, and that they were stamped by the librarian's assistant as deposited April 7th, and were recorded from such stamps. The express company's delivery book in Washington, as well as the librarian's express receipt book, showed that a package of books was received from Charles Scribner's Sons by the librarian on April 6th, while there was no entry of any receipt on April 7th. There was also evidence that the librarian's office was greatly crowded with work, and that his force of clerks was insufficient, and that sometimes books received for copyright purposes were not stamped until the day after their receipt.

The material portion of the letter written by Charles Scribner's Sons to A. & C. Black, of Edinburgh, referred to in the opinion, was as follows: 'By request of Professor Johnston, we have forwarded, per steamer Alaska, sailing this morning, his MS. of article 'United States,' which we wish safely to hand. A copy has been retained here, as he will have advised you, to await your decision as to copyrighting this and Professor Whitney's section of the same article, together with the maps designed to accompany it.'

Rowland Cox, for complainants.

James A. Whitney, for defendants.

TOWNSEND District Judge.

The first of the above-entitled cases is a bill in equity brought by James T. Black, Francis Black, Adam W. Black, and Alexander B. McGlashen, all of Edinburgh, Scotland, alleged to be copartners under the firm name of 'Adam & Charles Black,' and Francis A. Walker, of Boston, claiming infringement of copyright. McGlashen has deceased since the bringing of the suit. There is no evidence that he was a partner, or had any interest in the partnership. The court, prior to this hearing, allowed the entry of a disclaimer as to him; and the complainants are now the Blacks and Walker.

The principal allegations of the complaint are, in substance, as follows: Said firm, Adam & Charles Black, are publishers of the Encyclopaedia Britannica, Ninth Edition, which is made up of articles or books, each of which is, in many cases, a complete and independent book. Francis A. Walker was a citizen of the United States previous to February 13, 1888, and was the author of a book entitled: 'United States. Part III. Political Geography and Statistics,'--which he printed and published. Before the publication of said book, which was made by said Walker in the United States, he, on February 13, 1888, delivered at the office of the librarian of congress a printed copy of the title, and also, within 10 days from its publication, delivered to the librarian of congress two complete printed copies of said book, of the best edition issued; and in the several copies of every edition published, on the title page, were the words, 'Copyright, 1888, by Francis A. Walker.' The librarian, on February 13, 1888, recorded said name of said book, and there was granted to said Walker a copyright for 28 years from February 13, 1888. Said Walker, by an agreement made on or about April 1, 1888, assigned to said Adam & Charles Black the exclusive right of using said book as a part of the twenty-third volume of said Encyclopaedia Britannica; said Walker retaining the right to publish and sell said book in every other form and manner. If said agreement, made on or about April 1, 1888, did not assign an interest in said copyright to said firm, it is an exclusive and irrevocable license, and said firm acquired thereby an equitable interest in the copyright, which is substantially the same whether said agreement was an assignment or a license. Defendant has reprinted said Encyclopaedia Britannica, Ninth Edition, including said article, 'United States. Part III,'--and omitting the marginal notes of the original, and the copyright notice on the title page. None of the articles in volume 23 of said Encyclopaedia Britannica have been copyrighted in the United States, except the one above referred to, and two others.

The complaint has already been held sufficient on demurrer by Judge Shipman, in an able and exhaustive opinion, which decides the most important of the questions arising in the cause. The defendant, however, insists that the evidence does not support the complaint. The defendant, in its answer, denies particularly nearly all of the allegations of the complaint, but admits reprinting volume 23 of the encyclopaedia in question, including the articles claimed to be copyrighted. Defendant also alleges affirmatively a variety of matters, and these allegations appear, for the most part, to be true.

Defendant claims that the existence of a partnership is not established; that, as the partners resided and carried on their business in Scotland, and, as it is proved that there was a written partnership agreement, this agreement, and the law of Scotland as to partnerships, should have been put in evidence by the complainant. It seems to me that the partnership has been sufficiently proved for the purposes of this case.

Defendant also claims that the substance of the complaint is not proved; that the complaint alleges a specific agreement licensing the Blacks to use the copyrighted article, made on or about April 1, 1888,--that is, after the recording of the title of the article in the office of the librarian of congress, and somewhere about the date of publication; and that there is no evidence of any such agreement. The complainant Walker was called as a witness, but did not testify on this point. The facts appear to be these: Francis A. Walker prepared the article in question some time previous to the year 1888, at the request of Henry F. Clark, who was then in the employ of Charles Scribner's Sons. The agreement to write the article was oral. It was understood between Walker and Clark that the articles were to be copyrighted. The agreement to write the articles may be fairly inferred to have been made with the understanding that the ownership, title, and copyright should be as should be found to be most for the benefit of the Blacks. As the article was to be copyrighted, and as, for this purpose, it was necessary that the legal title should remain in Walker, or be assigned to the Scribners, and there is no proof of any such assignment to the Scribners, I regard it as an agreement that the title should remain in Walker, while the Blacks had the right to use the article in their encyclopaedia. As to the date of April 1, 1888, there is no evidence of any specific agreement made on or about that date; but, as substantially such an agreement was in existence and in force at the time of publication, and on April 1st, I think the facts proved sufficiently support the allegation.

Defendant denied that any copies of the book in question were delivered at the office of the librarian within 10 days after publication. The date of publication is claimed by the plaintiff to be March 27, 1888, and the date of delivering the books in the office of the librarian of congress to be April 6, 1888. Much testimony was offered as to whether the books were so delivered on April 6th or April 7th, and, while there is very sharp dispute as to the effect of the testimony, I have concluded, and find, that two copies of the book in question, sent by Charles Scribner's Sons, reached the office of the librarian of congress on April 6, 1888.

The date of the publication in this country was March 27, 1888. Defendant claimed that several thousand copies of the encyclopaedia, containing the work in question, were sold in Great Britain before March 27, 1888. An examination of the exhibits, however, shows that most of these were sent to the Scribners in preparation for publication in the United States on March 27th. On or about March 12th,...

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5 cases
  • Bentley v. Tibbals
    • United States
    • U.S. Court of Appeals — Second Circuit
    • March 9, 1915
    ... ... 248] ... George ... H. Gilman, of New York City, for appellant ... Henry ... M. Wise, of New York City, for appellee ... Before ... LACOMBE, COXE, and ROGERS, ... uncopyrighted matter and not lose the protection of the ... statute. In Black v. Henry G. Allen Co. (C.C.) 42 F ... 618, 9 L.R.A. 433 (1890), it was held that a book ... ...
  • Caliga v. Inter Ocean Newspaper Co.
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • October 1, 1907
    ...as in the case of patents, and that duplications of registry for the same subject-matter are allowable, and so recognized in Black v. Allen (C.C.) 56 F. 764, 769. Neither these contentions impresses us as tenable. The grant of monopoly is conferred alike by statute in both instances, upon d......
  • Davis v. Vories
    • United States
    • Missouri Supreme Court
    • November 3, 1897
    ... ... or value of the beneficial interest conveyed. As was said in ... Black v. Henry G. Allen Co., 42 F. 618, by Shipman, ... J.: "Under section 4964, a license in writing, ... ...
  • Encyclopaedia Britannica Co. v. American Newspaper Ass'n
    • United States
    • U.S. District Court — District of New Jersey
    • June 23, 1904
    ...in title. To support this defense, reference has been made to the cases of Black v. Ehrich et al. (C.C.) 44 F. 793, and Black v. Henry G. Allen Co. (C.C.) 56 F. 764, from which, as I understand the arguments of defendants' counsel, the inference is drawn that the Blacks, complainant's prede......
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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
    • September 22, 2022
    ...to find that the composer had implicitly transferred the rights to the publisher prior to registration. (212.) Black v. Henry G. Allen Co., 56 F. 764 (C.C.S.D.N.Y. (213.) Id. at 766. (214.) Id. (215.) Id. (216.) Id. at 766-67. (217.) Id. at 770. (218.) As the court explained, if the agreeme......

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