Pierce & Bushnell Mfg. Co. v. Werckmeister, 118.

Citation72 F. 54
Decision Date24 January 1896
Docket Number118.
PartiesPIERCE & BUSHNELL MANUF'G CO. v. WERCKMEISTER.
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Alexander P. Browne and William A. Jenner, for appellant.

Louis C. Raegener, for appellee.

Before COLT, Circuit Judge, and NELSON and WEBB, District Judges.

COLT Circuit Judge (after stating the facts as above).

This is a bill in equity for the infringement of a copyright in a painting. The court below directed a decree for the plaintiff (63 F. 445), and the case now comes before us on appeal.

It appears that the appellee, who was the plaintiff below failed to inscribe upon some visible portion of the painting alleged to be copyrighted, or upon the substance on which the same was mounted, the notice required by the statute. Rev. St. Sec 4962; Act June 18, 1874 (18 Stat. 78, pt. 3); Act March 3 1891 (26 Stat. 1106). This is made the ground of the first assignment of error. To secure a statutory copyright under the laws of the United States, all the prescribed requisites of the statute must be complied with. Wheaton v. Peters, 8 Pet. 591, 664; Parkinson v. Laselle, 3 Sawy. 330, 332, Fed. Cas. No. 10,762; Boucicault v. Hart, 13 Blatchf. 47, 50, Fed. Cas. No. 1,692; Lawrence v. Dana, 4 Cliff. 1, 60, Fed. Cas. No. 8,136. Section 4952 of the statute declares that certain persons shall be entitled to copyright in certain things 'upon complying with the provisions of this chapter. ' Section 4956 declares that 'no person shall be entitled to a copyright' unless he shall, on or before the day of publication, deliver at the office of the librarian of congress, or address by mail to said librarian, a printed copy of the title of the book, map, chart, etc., or a description of the painting, drawing, etc., for which he desires a copyright; and that not later than the day of the publication he shall make the proper deposit of two copies of such copyright book, map, chart, etc., or, in case of a painting, drawing, etc., a photograph of the same. But, although a person coming within the class mentioned in section 4952 is entitled to a copyright upon complying with the provisions of section 4956, he cannot enforce any right against infringers except upon giving the notice required by section 4962, as amended by the act of June 18, 1874, which reads as follows:

'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 intending 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 option 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."

The necessity of this notice is to inform the public. Lithographic Co. v. Sarony, 111 U.S. 53, 55, 4 Sup.Ct. 279.

Copyright, under the statute, is the exclusive right to publish a literary or artistic work. Such work may be a transcript or reproduction from some original manuscript, plate, or negative, as a book, engraving, or photograph, or may itself be an original, as a painting, statue, model, or design; and such work may or may not be published in multiple form. In the case of a book, map, engraving, or photograph, it is commonly published in multiple form; in the case of a painting or statue, it may or may not be published in multiple form. If we confine ourselves to the subjects of copyright, and eliminate from our minds any distinction between 'copy' and 'original,' the meaning of section 4962 seems to be clear. It begins by declaring 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, ' etc. The words 'several copies' are not used in the sense of a copy or reproduction from some original, but are used in the sense of each individual copyrighted thing, whether a copy or an original, so called; and the words following, 'of every edition published,' plainly mean each published production or reproduction of every copyrighted thing. In Webster's International Dictionary we find, among the definitions of the word 'copy': 'An individual book, as a copy of the Bible;' and it in this sense the word is used in this section. We copyright a book under sections 4952 and 4956, and section 4962 then requires that, in order to maintain an action for infringement, notice of copyright shall be inserted in each book (whatever may be the form of the book) which is published, and upon each book of every edition or reproduction which is published. The fact that such book may be a copy from some original manuscript is immaterial, and has nothing to do with the notice required by this section. It is the published book, or the book which is made public by offering for sale or otherwise, which must contain the notice. A book is published in multiple form, and no one particular book is any more entitled to be called an original than another. We copyright a map, and section 4962 declares that, in order to enforce our rights against infringers, notice of copyright must be inscribed upon each published map, and upon each map of every edition or reproduction which is published. The fact that a map may be an impression from some original drawing or design is foreign to the question of notice under this section. So far as the law of notice is concerned, there is no such thing as a particular map which may be called the original, but all are original maps as much as any single one. We copyright a chromo, which is a picture produced by the process of chromo-lithography, and section 4962 declares that notice must be inscribed upon every published chromo. Each chromo is as much an 'original' as a 'copy,' and either term applies equally well to all chromos. We copyright a painting, and section 4962 requires notice of copyright upon the published painting, and upon each replica or reproduction which is published. And what has been said with respect to a book, map, chromo, or painting applies to the other copyrighted things enumerated in this section. Section 4962 does not deal with 'copies' as distinct from 'originals,' or with 'originals' as distinct from 'copies,' as those terms are commonly understood; but it deals with published copyrighted things, and it declares that no action for infringement will lie unless each copyrighted thing which is published or made public, be it a 'copy,' so called, or an 'original,' so called, or another edition or reproduction of such copy or original, has inscribed upon it the notice of copyright. The notice required by this section only applies to published copyrighted things, and has no application to copyrighted things which are not published. An artist may desire to copyright his original painting, not for the purpose of publishing it, but for the purpose of protecting his published replica. While his original painting remains unpublished, it is unnecessary to put any notice of copyright upon it, but the notice is only required upon the published replica; and so, in the case of a design or model, no notice is necessary upon the unpublished originals while they remain unpublished, but only upon the published reproductions.

The proposition which has been advanced in this case that no notice is required by section 4962 upon a published original copyrighted painting, but only upon a published reproduction seems clearly untenable. It leads to the following results: An artist need not put any notice upon his published original...

To continue reading

Request your trial
9 cases
  • M. Bryce & Associates, Inc. v. Gladstone, 80-1935
    • United States
    • Wisconsin Court of Appeals
    • March 26, 1982
    ...work, courts have avoided a complete forfeiture by concluding that a limited publication occurred. Compare Pierce & Bushnell Manuf'g Co. v. Werckmeister, 72 F. 54 (1st Cir. 1896) (holding that exhibition of a painting in a public art gallery was sufficient publication to entitle plaintiff t......
  • American Visuals Corporation v. Holland
    • United States
    • U.S. Court of Appeals — Second Circuit
    • November 20, 1956
    ...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......
  • Kurfiss v. Cowherd
    • United States
    • Kansas Court of Appeals
    • October 3, 1938
    ... ... to the public generally. Werckmeister v. American Lith ... Co., 134 F. 321, 324, 69 C. C. A ... view the same without restriction. [ Pierce and Bushnell ... Mfg. Co. v. Werckmeister, 72 F. 54, l ... ...
  • Louis Dejonge & Co. v. Breuker & Kessler Co.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • November 6, 1911
    ... ... 428, 11 Sup.Ct. 731, 35 ... L.Ed. 470; Pierce & Bushnell Mfg. Co. v ... Werckmeister, 72 F. 54, 18 ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT