Atlantic Monthly Co. v. Post Pub. Co.

• Decision Date: 03 July 1928
• Docket Number: No. 2812.,2812.
• Citation: 27 F.2d 556
• Parties: ATLANTIC MONTHLY CO. v. POST PUB. CO.
• Court: U.S. District Court — District of Massachusetts

27 F.2d 556 (1928)

ATLANTIC MONTHLY CO. v. POST PUB. CO.

No. 2812.

District Court, D. Massachusetts.

July 3, 1928.

Thompson, Spring & Mears and Romney Spring, all of Boston Mass., for plaintiff.

Edmund A. Whitman, of Boston, Mass., for defendant.

MORTON, District Judge.

This is a suit to restrain infringement of copyright, and to recover damages and profits, or, in the alternative, an award in lieu of damages, under section 25 of the Copyright Law (17 USCA § 25). It was fully heard in open court, both on liability and damages. The facts are as follows:

The article in question was an open letter from Alfred E. Smith, Governor of New York, to Charles C. Marshall, in reply to an article by Mr. Marshall which was published in the April, 1927, number of the Atlantic Monthly. Mr. Sedgwick, the editor of this magazine, being interested in the candidacy of Governor Smith for the Presidency, conceived the idea that it might be advisable for Governor Smith to meet publicly the objections to his candidacy, based upon his adherence to the Roman Catholic Church. The discussion was inaugurated by the publication of the Marshall article, which opened the door to a reply by Governor Smith. The article in question was prepared by Governor Smith and his advisors for that purpose. He took no part in the arrangements for its publication. The entire matter of publicity for it was turned over by him to Mrs. Moscowitz. She communicated with Mr. Sedgwick, with Mr. Jenkins, the treasurer of the Atlantic Monthly, and with other persons connected with that magazine, all of whom were desirous that the reply should appear in it.

From the beginning of the negotiations it was recognized that Governor Smith's reply necessarily stood on a very different footing from the usual contribution; that it was not merely a magazine article, but also political "news" of the most important character, for which the widest possible publicity was desirable. Under the circumstances, Mrs. Moscowitz agreed that the Atlantic Monthly should have the initial publication; but she carefully stipulated that concurrent therewith the reply should be given to the entire press of the country, with full rights to republish it, with or without giving credit to the magazine — a stipulation which was fully accepted and agreed to by those representing the plaintiff. Mrs. Moscowitz's testimony as to the understanding under which the manuscript was delivered to the Atlantic Monthly is not contradicted, and I see nothing unreasonable or improbable about it. I accept it as stating in substance what the arrangement was.

The plaintiff, promptly on the receipt of the manuscript, made public announcement that Governor Smith was to publish in the Atlantic Monthly a reply to the Marshall letter. There was great eagerness among the newspapers to get copies of the reply for publication. The parties concerned were aware of this, and anticipated that efforts would be made to obtain the article surreptitiously; and they adopted such precautions as occurred to them to prevent it. As soon as the article could be put into type, after the receipt of it by the plaintiff, three copies were made from galley proofs bearing notices of copyright. One of these was then sold outright for 10 cents to Mr. Jenkins, treasurer of the Atlantic Monthly Company, and the other two were filed with the Register of Copyrights. This took place on April 8, 1927, and is the copyright relied on in the bill as originally filed. Following this, the article was put into printing for the magazine. A number of galley proofs were sent to Mrs. Moscowitz, representing Governor Smith, for correction and revision. It was planned that the Atlantic Monthly carrying the reply should appear on April 25, 1927, and that the article should simultaneously appear in such newspapers as desired to publish it, which were to be provided in advance with copies to be released upon that date. These facts were widely understood. The defendant's newspaper, the Boston Post, carried an item under date of April 11th which stated them in substance. That the editors of the Post understood the arrangement, as above stated, I entertain no doubt.

About April 11th Mr. Thompson, a reporter on the Post, applied to Mr. Jenkins for a copy of the article, and was told that all the papers would have it for the 25th, and that no paper could have it for previous publication. Following this interview, Thompson was sent by Mr. Dunn, city editor of the Post, to Concord, N. H., where the Atlantic Monthly is printed. He there induced one Callahan, employed as a watchman at the printing house, to obtain and deliver to him a copy of the article. Thompson knew that Callahan had no authority to do this. His action was in utterly bad faith. The copy so obtained was turned over to those in charge of the Post. They knew it had been obtained irregularly, probably fraudulently. It was printed in the Post, with some omissions of no legal significance, on Saturday, April 16th, constituting the leading news item in the paper for that date. About 400,000 copies were circulated. This is the infringement relied on as the basis of the present suit.

On the same day the first copies of the completed Atlantic Monthly containing the article were deposited in the mails for delivery at distant points, and copies of the magazine were duly sent to the Register of Copyrights in Washington. The copyright so obtained is set up by amendment to the bill.

The first question is whether the copyright of April 8th is valid. It is attacked on two principal grounds: First, that the Atlantic Monthly was not the "proprietor" of the article, and therefore had no standing to copyright it; and, second, that the sale to Mr. Jenkins in connection with the deposit of copies with the registry did not amount to the publication which the act requires.

At common law an author owned his manuscript, and could protect thefts of it as of other property. He also had the right to control the making of copies until he had released or "dedicated" the work to the public. Printing for general circulation constituted such dedication, and thereafter the author had no control over publication of his work. It was to relieve that situation that copyright acts were passed, granting to the author or proprietor a monopoly of the right of publication. Under the present act this monopoly is obtained by publishing the article with a copyright notice thereon, and filing with the Register of Copyrights two copies of the best edition.

I see no sufficient reason to disbelieve the testimony of Mr. Jenkins concerning the sale of the copy of the Smith article to him. I find that that sale was, as he says, absolute and unconditional, and that he was free to deal with the copy in any way that he saw fit. Both parties to the transaction assumed that Mr. Jenkins would make no use of it adverse to the interest of the Atlantic Monthly; but this assumption did not form part of the contract. In making the sale the plaintiff's representatives relied on Mr. Jenkins' personal and financial interest to prevent him from using his copy in such a way as to harm the magazine. The copies filed with the Register are by statute open to the public. Copyright Act, § 58 (17 USCA § 58).

It seems to me quite inadvisable to introduce into the law of copyright refinements between so-called "colorable" sales — whatever that may mean — and bona fide ones. It will be better, I think, to take the law simply and directly, and to hold that an absolute and unrestricted sale of a printed copy, especially where accompanied by filing similar copies with the Register, amounts to publication under the act; and I think the decisions support this view. Werckmeister v. Am. Litho. Co. (C. C. A.) 134 F. 321, 68 L. R. A. 591; Gottsberger v. Aldine Book Co. (C. C.) 33 F. 381; Stern v. Remick (C. C.) 175 F. 282; Callaghan v. Myers, 128 U. S. 617, 9 S. Ct. 177, 32 L. Ed. 547. The facts of the present case are very like those in Stern v. Remick, supra. In Mittenthal v. Berlin (D. C.) 291 F. 714, Judge Hand...