Altman v. New Haven Union Co.

CourtUnited States District Courts. 2nd Circuit. United States District Court (Connecticut)
Citation254 F. 113
Docket Number1427.
PartiesALTMAN v. NEW HAVEN UNION CO.
Decision Date02 November 1918

Arthur W. Chambers, of New Haven, Conn., for plaintiff.

Philip Pond, of New Haven, Conn., for defendant.

THOMAS District Judge.

This is a bill alleging infringement of a copyrighted photograph containing the usual prayer for an injunction and damages and the action is based upon the provisions of the Copyright Law of March 14, 1909, c. 320, 35 Stat. 1075, as amended by Act Aug. 24, 1912, c. 356, 37 Stat. 488, Act March 2, 1913 c. 97, 37 Stat. 724, and Act March 28, 1914, c. 47, 38 Stat 311 (Comp. St. 1916, Sec. 9517 et seq.).

The answer is in effect a general denial, and sets up certain facts which show the circumstances under which the picture was printed, all of which amount to a confession and avoidance of the claims of the plaintiff, that the photograph was not copyrightable, and that the plaintiff was paid in full by reason of the receipt given for $300 in settlement of a suit in this court entitled Altman v. New Haven Printing Co. et al.

The relevant facts upon which this decision must be based are found to be as follows:

The graduating class of the New Haven High School of 1914, acting through a committee duly appointed, arranged with The New Haven Printing Company to print its Class Book, which was to contain, among other things, a group photograph of the class.

In order to secure this photograph, a committee of the class was appointed to make the necessary arrangements, to the end that a proper photograph could be secured, which could also be sold separately to such of the individual members of the class as desired to secure a copy.

After conferring with various photographers, arrangements were finally made with the plaintiff, whereby he was to take the picture of the class on the front steps of the High School building, and for which he was to receive $1.50 for each photograph sold to such members of the class as desired to purchase a copy at that price. The plaintiff was under no other contract as to price than as stated; i.e., no arrangement or contract was made whereby he was to receive any pay for his services as a photographer. At the appointed time the class, some 500 in number, assembled on the front steps of the High School. The plaintiff is, and has been for some years past, one of the leading photographers of the city, and has had a wide and varied experience in taking all kinds of indoor and outdoor photographs, and thoroughly understands the art. He grouped the members of the class, arranged their positions, and did all of the work necessary to secure a proper negative, from which an acceptable photograph could be made, and which resulted in a pleasing, satisfactory, and, so far as such a production may be, an artistic photograph, at least sufficiently so as to bring it within the realm of those things which may be copyrighted in accordance with the provisions of the Copyright Law of 1909, as amended.

As soon as the photograph was developed, steps were immediately taken by the plaintiff to protect his rights in the same by applying to the Copyright Office in Washington, and pursuant to the steps so taken, and in conformity with law, on May 23, 1914, plaintiff received his certificate of registration under the seal of the Copyright Office. The negative from which the photographs were printed was marked by the plaintiff in conformity with the provisions of law, so that all photographs made from the negative were properly and legally marked.

In due time the proper members of the class committee submitted the photograph to the New Haven Printing Company for entry in the Class Book. The photograph was too large, and it was decided that it was necessary to cut the picture down; hence the members of the committee having charge of the matter cut the top and bottom of the photograph off. In doing so, all of the background and foreground were taken away, leaving only the members of the class, with a scant margin around the four sides of the picture. In cutting off the top or background of the picture, all of the High School building shown in the original disappeared; and in cutting away the front or foreground, all of the street and some of the sidewalk disappeared, and with them the copyright marks: ' . . . Altman, New Haven, Conn. N.H.H.S. 1914.'

In this reduced condition the photograph was taken by the class committee to the Stoddard Engraving Company, which made a copper cut from which the New Haven Printing Company printed the pictures. But it was finally decided that, instead of including the picture as part of the book, it should be printed separately and distributed with the book to each member of the class purchasing the book, and some 350 or more were thus printed by the New Haven Printing Company and distributed to the members of the class. This reduced the sale of photographs the plaintiff expected to make, because by purchasing the Class Book each member thereby secured a copper-plate photo identical with the original photo, except for the trimming and cutting off as above described. In fact, the sales by the plaintiff of his original photograph were so few as to make them negligible.

The defendant is, and has been for many years past, the publisher of one of the large newspapers of the state, printing a daily and Sunday edition of many thousand copies, and has a wide and extensive circulation in the city of New Haven and vicinity, and is always active in advancing the civic interests of the city, and takes a lively interest in all that pertains to the educational welfare of the community. Through one of its reporters, duly assigned by the manager of the paper for such purpose, it secured one of the photographs of the class, made from the Stoddard Engraving Company's plate and printed by the New Haven Printing Company, for the purpose of using the same by way of embellishment to a 'story' or news item in its issue of Sunday, May 31, 1914, concerning the graduating class of the New Haven High School, which was then soon to graduate. From such photograph, in its own photo-engraving rooms, a proper cut was made, and the picture printed in the Sunday issue of May 31, 1914. This was done without knowledge that the original photograph was copyrighted, and without knowledge, so far as the evidence shows, that the picture then in its possession and printed in its newspaper was even a copy of a copyrighted photograph. The evidence is conclusive that the acts of the defendant in printing the picture were entirely innocent, and that its violation of the plaintiff's rights, if any, was technical in the highest degree.

On August 25, 1915, the plaintiff brought suit in this court against the New Haven Printing Company, the members comprising it, and the Stoddard Engraving Company for violation of his copyright for the acts above set forth, which suit was on the 13th of October, 1914, settled, and a release given, as appears from the following receipt, which was offered in evidence at the trial of this case, and tentatively received, subject to final ruling at this time:

'Whereas, the Stoddard Engraving Company, a Connecticut corporation doing business in New Haven, Connecticut, and Edward G. Fenton and Frederick A. Krooner, individually and doing business under the name and style of Fenton & Krooner and New Haven Printing Company, have infringed the copyright of Charles A. Altman, for a photograph entitled 'New Haven High School 1914 Graduating Class'; and
'Whereas, suit has been instituted by said Charles A. Altman against said Edward G. Fenton and Frederick A. Krooner, individually and under the name and style of Fenton & Krooner and New Haven Printing Company, and the same is now pending in the District Court of the United States, District of Connecticut; and
'Whereas, the said Stoddard Engraving Company and said Edward G. Fenton and Frederick A. Krooner, individually and as Fenton & Krooner and as New Haven Printing Company, agree to discontinue said infringement:
'Now, therefore, in consideration of the sum of three hundred dollars ($300) in hand paid, the receipt of which is hereby acknowledged, I do hereby relinquish any and all claims I have against the said Stoddard Engraving Company, said Edward G. Fenton and Frederick A. Krooner, individually and under the name and style of Fenton & Krooner and New Haven Printing Company, arising out of said infringement.
'Dated at New Haven, this 13th day of October, 1914.
'Charles A. Altman, 'By George E. Hall, His Attorney.'

Not until April 12, 1915, and nearly a year after the infringement complained of, did the plaintiff bring this suit against this defendant. While this fact has no bearing upon the decision to be reached, it has some bearing upon the inferences to be drawn as affecting the equities of the case, taken in connection with other facts bearing upon this feature of it.

Before discussing the law applicable to facts, it is necessary to now rule upon the question of the admissibility of the receipt above quoted which was offered as a bar to a recovery in this...

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12 cases
  • Voss v. Gray
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    ...... the property in the portrait is in the sitter. Altman v. New Haven Union Co. 254 F. 113; Lumiere v. Robertson-Cole Distribution Co. 280 F. 550, 24 ......
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