Advisers, Incorporated v. Wiesen-Hart, Inc., 12829.

• Decision Date: 27 November 1956
• Docket Number: No. 12829.,12829.
• Citation: 238 F.2d 706
• Parties: ADVISERS, Incorporated, Appellant, v. WIESEN-HART, Inc., Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

238 F.2d 706 (1956)

ADVISERS, Incorporated, Appellant, v. WIESEN-HART, Inc., Appellee.

No. 12829.

United States Court of Appeals Sixth Circuit.

November 27, 1956.

Stanton T. Lawrence, Jr., New York City (Pennie, Edmonds, Morton, Barrows & Taylor, New York City, Walter S. Murray, Murray, Sackhoff & Murray, Cincinnati, Ohio, on the brief), for Advisers, Inc.

J. Warren Kinney, Jr., Cincinnati, Ohio, for Wiesen-Hart, Inc.

Before SIMONS, Chief Judge, and ALLEN and McALLISTER, Circuit Judges.

PER CURIAM.

In an action for copyright infringement, the district court held, on a motion for summary judgment, that a variance between the actual date of publication of a book, and the date of publication alleged in the certificate of copyright registration, required by law to be filed, rendered the copyright unenforceable, and that such certificate was, accordingly, incapable of supporting an action for copyright infringement.

It is provided, by Title 17 U.S.C.A. § 10, that any person entitled thereto by such section, may secure a copyright for his work by publication, with the notice of copyright required by the statute. It is not disputed that the book here in question was published, together with notice of copyright.

It is further provided by the statute that one may obtain registration of his claim to copyright by complying with certain statutory provisions, one of which provides that, in the case of a book, the copies deposited in the copyright office shall be accompanied by an affidavit, under the official seal of any officer authorized to administer oaths, made by the person claiming copyright, setting forth the date of completion of the printing of the book, or the date of publication. Title 17 U.S.C.A. §§ 11 and 17.

There is no stated time within which to file the required affidavit and secure registration of the claim to copyright, subsequent to publication with notice; but the statute provides that "there shall be promptly deposited in the copyright office" two copies of the work. Title 17 U.S.C.A. § 13. As to what is considered to be prompt registration after publication with notice, see Washingtonian Publishing Co. v. Pearson, 306 U.S. 30, 59 S.Ct. 397, 83 L.Ed. 470. Unless the copyright is promptly registered, it becomes void. Title 17 U.S.C.A. § 14.

In this case, it appears that the actual date of publication was in August, 1953; but that the date of publication, as set forth in the registration certificate, was December 9, 1953.

The date of publication, as set forth in the certificate of registration of copyright and as supported by the required affidavit, was later than the actual date of publication. It appears that, in opposition to appellee's motion for summary judgment, appellant filed affidavits explaining that the date of publication was based upon the date when the books, which were used for promotion and advertising purposes in the jewelry trade, were first distributed to the public by retail jewelers, instead of the date when shipments were made by appellant to jewelers, when, in law, publication is deemed to have been made.

Appellee contends that the recital of a date in the affidavit and registration certificate later than the actual copyright date invalidates the copyright for the reason that it attempts to extend the copyright protection for longer than the statutory period, citing Title 17 U.S.C.A., §§ 17, 14, 26, and 209, and upon the authority of Baker v. Taylor, 2 Fed.Cas., No. 782, page 478, 1848, and Wheaton v. Peters, 8 Pet. 591, 33 U.S. 591, 8 L.Ed. 1055, both of these cases supporting appellee's claim. It is to be noted that the statutory protection of a copyright extends for a period of twenty-eight years, and thereafter can be renewed for a further period of twenty-eight years. It would seem that, in view of copyright protection for fifty-six years, a period of four or five months would be an immaterial variance without consequence to the public, unless there were some intention to secure an advantage in violation of the statute, or with a fraudulent purpose.

The authorities above mentioned, upon which appellee relies, are cases based upon earlier copyright statutes...