Press Pub. Co. v. Monroe

Citation73 F. 196
PartiesPRESS PUB. CO. v. MONROE.
Decision Date12 March 1896
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

John M Bowers, for plaintiff in error.

Geo. H Yeaman, for defendant in error.

Before PECKHAM, Circuit Justice, and WALLACE and LACOMBE, Circuit Judges.

LACOMBE Circuit Judge.

At the time when preparations were being made for the opening ceremonies of the World's Fair, or Columbian Exposition in Chicago, plaintiff, a resident of that city, who was engaged in the literary profession, had published poems and prose writings, and had an excellent reputation as an authoress, was invited by the committee on ceremonies to write and deliver a poem at the dedicatory exercises. That invitation was given March, 1891. The dedicatory exercises were had on October 21, 1892, in the presence of a vast concourse of people. They included the delivery of addresses by orators of well-known ability. No effort was spared to make them effective, and they were, by reason of the event which they commemorated, of exceptional interest to the country at large. For the public utterances of orator or poet who had been selected to speak on that day and in that place the occasion was unique. The plaintiff accepted the invitation, and after many months of careful work produced an ode of some 400 lines. After it had been shown to the committee on ceremonies, and suggestions made as to changes, she received it; reducing its length to about 375 lines, and delivering the final revised version to the committee on September 20, 1892. Fifty-six lines of the ode were lyrical songs, intended to be sung. The original version of the ode was shown to a Mr. Chadwick, who wrote the music for these songs, and the 56 lines were published with the music so composed, in order to properly rehearse the chorus. Except of these 56 lines, there had, down to this time, been no publication of the ode by the plaintiff or by any one else. The copies which were given to the members of the committee on ceremonies and to a so-called 'literary committee' were delivered to them solely to enable them to decide whether the poem was one suitable and worthy of their acceptance as the ode to be delivered at the opening exercises. Such a delivery of copies of a literary production is not a publication, and could not prejudice the owner's common-law rights. Bartlette v. Crittenden, 4 McLean, 300, Fed. Cas. No. 1,082; Id., 5 McLean, 32, Fed. Cas. No. 1,076.

On September 23, 1892, plaintiff met the acting chairman of the committee on ceremonies, who informed her that the poem was satisfactory, and the matter arranged, and paid her $1,000, whereupon she signed the following receipt:

'Received, Chicago, the 23rd day of September, 1892, from the World's Columbian Exposition, one thousand dollars ($1,000) in full payment for ode composed by me.
'It is understood and agreed that said Exposition company shall have the right to furnish copies for publication to the newspaper press of the world, and copies for free disposition, if desired, and also may publish same in the official history of the dedicatory ceremonies; and, subject to the concession herein made, the author expressly reserves her copyright therein.
'Harriet Monroe.'

The first question to be determined-- and it is the important question in the case-- is what property rights to the ode remained to the plaintiff after September 23, 1892. The evidence indicates that the receipt quoted above expressed, item by item, the conditions of the contract between Miss Monroe and the committee, which was not otherwise reduced to writing. The defendant contends that by the first clause of this receipt she transferred to the committee her entire common-law right of property in the manuscript; that the residue of the receipt is a nullity; that it cannot be construed as impairing in any way the full rights of ownership given by the first clause; that the second paragraph was intended only as a reservation of the right to take out a copyright under the United States statute, and was powerless to secure even that, since publication without the statutory copyright notice is authorized, and, the poem being once thus published, all right to restrain future piracy would be lost. We are unable to accept this construction. The whole instrument is to be construed together, and manifestly it contemplates something short of a complete transfer of all right to the committee. A reservation by the author, 'subject to the concession herein made, * * * of her copyright in the poem,' imports a reservation of common-law as well as of statutory copyright, and it must be made clear, either upon the face of the instrument itself or otherwise by competent proof, that the word 'copyright' was used in some more restricted sense. To the committee was given not only the right to have the poem delivered on the occasion of the dedicatory ceremonies, but also the right to publish it in the official history thereof, and the right to furnish copies for publication to the newspaper press of the world, and the right to furnish copies for free distribution. This was all the committee needed for its purposes, and, having secured all it needed, there is nothing surprising in its leaving all other rights to the author. When the committee chose to avail of its concession, and publish the poem, that act would terminate the common-law copyright, but until publication that right survived, and by the terms of the agreement was not conveyed to the committee, but reserved to the author. Any unauthorized publication would be a trespass upon that right of property, and right of action therefor would still be in the author.

The contention of the plaintiff in error that the passage by congress of the copyright statutes has abrogated the common-law right of an author to his unpublished manuscript is unsupported by authority. These statutes secure and regulate the exclusive property in the future publication of the work after the author shall have published it to the world. But this is a very different right from the ownership and control of the manuscript before publication. 'That an author, at common law, has a property in his manuscript, and may obtain redress against any one who deprives him of it, or, by improperly obtaining a copy, endeavors to realize a profit by its publication, cannot be doubted. * * * The argument that a literary man is as much entitled to the product of his labor as any other member of society cannot be controverted, * * * (at least until) he shall have sold it publicly. ' Wheaton v. Peters, 8 Pet. 657, 658. And that common-law right may be enforced in the federal courts whenever diversity of citizenship gives those courts jurisdiction of the parties, irrespective of whatever additional means of redress are provided by section 9 of the act of congress of February 3, 1831, now section 4967, Rev. St. U.S. See Bartlette v. Crittenden, 4 McLean, 300, Fed. Cas. No. 1,082; Id., 5 McLean, 32, Fed. Cas. No. 1,076; Keene v. Wheatley, 9 Am.Law.Reg. 33, Fed. Cas. No. 7,644; Palmer v. De Witt, 47 N.Y. 532. The various assignments of error, therefore, which cover both the refusal of the court to direct a verdict in favor of defendant and also so much of the charge as instructed the jury that plaintiff had property rights which would be trespassed upon by an unauthorized publication of her ode, are unsound.

On September 23d-- the day when the money was paid and the receipt signed--the New York World, a newspaper published by defendant, received a telegram from one Fay, its agent in Chicago, saying that a copy of the ode could be obtained for $150, and asking whether it should be paid, and the ode procured. On the next day the managing editor of the World directed its purchase, and ordered it sent that afternoon and night to the World by telegraph. While the ode was in transit, a message was received from the Associated Press to the effect that it was understood that a copy of the ode had gotten out somehow, and that its publication was forbidden on the ground that it was copyrighted. Fay was thereupon communicated with, and replied that the copy which he...

To continue reading

Request your trial
51 cases
  • International Tape Manufacturers Ass'n v. Gerstein
    • United States
    • U.S. District Court — Southern District of Florida
    • June 12, 1972
    ...L.Ed.2d 428 (1963). 71 Perez v. Campbell, 402 U.S. 637, 91 S.Ct. 1704, 29 L.Ed.2d 233 (1971). 72 17 U.S.C. § 2. 73 Press Publishing Co. v. Monroe, 73 F. 196 (1st Cir. 1896); White v. Kimmell, 94 F.Supp. 502 (S.D.Cal.1950); Berry v. Hoffman, 189 A. 516, 125 Pa. Super. 261 (1937); Kortlander ......
  • Cosfriff Brothers v. Miller
    • United States
    • Wyoming Supreme Court
    • March 31, 1902
    ...actual damages are nominal. (Wilson v. Vaughn, 23 F. 229; Day v. Woodworth, 13 How., 371; Milwaukee Co. v. Arms, 91 U.S. 493; Press Pub. Co. v. Monroe, 73 F. 196; Alabama, &c., Co. v. Sellers, 9 Southern, Hefley v. Baker, 19 Kan. 9; Furguson v. Evening Chronicle, 72 Mo. App., 462; Prince v.......
  • Day v. Avery
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • April 25, 1977
    ...Post Co. v. O'Donnell, supra note 61, 43 App.D.C. at 240; Reynolds v. Pegler, 223 F.2d 429, 434 (2d Cir. 1955); Press Publishing Co. v. Monroe, 73 F. 196, 200-201 (2d Cir. 1896). Several other of the cases asserting the federal rule awarded damages under statutory provisions that could be r......
  • Continental Casualty Company v. Beardsley
    • United States
    • U.S. District Court — Southern District of New York
    • April 4, 1957
    ...of stenciled copies of a song to military personnel). 44 Moore v. Ford Motor Co., 2 Cir., 1930, 43 F.2d 685; Press Pub. Co. v. Monroe, 2 Cir., 73 F. 196, 51 A.L.R. 353, writ of error dismissed 1896, 164 U.S. 105, 17 S.Ct. 40, 41 L.Ed. 367; Jerome v. Twentieth Century-Fox Film Corp., D.C. S.......
  • 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