Bracken v. Rosenthal
| Decision Date | 31 January 1907 |
| Docket Number | 28,168. |
| Citation | 151 F. 136 |
| Parties | BRACKEN v. ROSENTHAL et al. |
| Court | U.S. District Court — Northern District of Illinois |
O'Shaughnessy & O'Shaughnessy, for complainant.
Charles J. O'Connor, for defendant.
This cause comes before the court on demurrer to the amended bill to restrain infringement of four copyrights on certain pieces of statuary in bas-relief. The only questions raised on demurrer which the court deems necessary to consider are: (1) Whether a photograph or other picture of the statuary constitutes infringement thereof; and (2) whether a bill seeking to restrain infringement of four different copyrights, and also seeking to set aside a copyright of the defendants as having been obtained by fraud is multifarious. The first ground of demurrer is stated as follows:
'A piece of sculpture protected by copyright as a work of the fine art is not infringed by a photographic or printed design which is in no sense a bas-relief.'
The authorities cited by defendant do not sustain this ground of demurrer. The case of Hanfstaengel v. Empire Palace L.R. 1894, 2 Ch. 1, is an English case, arising under the English copyright act, the language of which differs from our copyright law. Moreover, this case might be considered an authority for complainant, for the court in that case declared an infringement to be 'such reproductions as would compete in the markets with the original or with authorized copies of them. ' The other case cited by defendant was Champney v. Haag (C.C.) 121 F. 944. This was a suit brought for infringement of a copyright of a painting by certain illustrations. It appeared that the illustrations were copied from a copyrighted photograph of the painting, and the court holds that, inasmuch as no attack was made on the photographer's copyright it must at least be considered prima facie valid, and that the evidence showed clearly that the illustrations alleged to be infringements of the painting, were copied from the photograph, and not from the painting.
Our statute (Revised Statutes U.S. Sec. 4952 (U.S. Comp. St. 1901, p. 3406)), gives to the author, designer, or proprietor of any statue, statuary and of models or designs intended to be perfected as works of the fine arts, the sole liberty among other things, of 'copying' and vending the same. The word 'copying' is defined in Murray's New English Dictionary as follows:
'To make a copy of (a picture or other work of art); also to reproduce or represent (an object) in a picture or other work of art.'
This definition is fully sustained by the authorities quoted by the author, so that it seems clear that the word 'copy' may be used to designate a picture of a piece of statuary, without in any way straining the well-established use of the word. It was held in the case of Falk v. Howell (C.C.) 37 F. 202, that a copyrighted photograph was infringed by a reproduction of a material part of it in relief on leather to be used as chair backs. If this is good law it should work both ways, and it would follow that a copyrighted chair back in relief would be infringed by a photograph of the chair back, and if a chair back in relief is infringed by a photograph, there seems to be no reason for not holding that a relief tablet or figure in bas-relief, is infringed by a photograph or other picture.
To hold that a piece of statuary may be infringed by a picture of the statuary seems in every way in accord with the reason and spirit of the law; for it has been held that the copyright acts 'secure to the author the original and natural rights, and it was said that the various provisions of the law in relation to copyrights should have a liberal construction, in order to give effect...
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Loew's Incorporated v. Columbia Broadcasting System
...was infringed although the infringing design was stamped on leather intended for the bottom or back of a chair. In Bracken v. Rosenthal, C.C.N.D. Ill.1907, 151 F. 136, a photograph of a copyrighted statute was held to infringe. In Rosenthal v. Stein, 9 Cir., 1953, 205 F.2d 633, affirming St......
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Geisel v. Poynter Products, Inc.
...accomplished in a different medium. See, e. g., Lumiere v. Pathé Exchange, Inc., supra, 275 F. at 429 (drawing of a photograph); Bracken v. Rosenthal, 151 F. 136 (C.C. N.D.Ill.1907 (photograph of a piece of sculpture); Falk v. T. P. Howell & Co., 37 F. 202 (C.C.S.D.N.Y. 1888) (reproduction ......
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...921;Digney v. Blanchard, 226 Mass. 335, 339, 115 N.E. 424;Shields v. Thomas, 18 How. 253, 260, 15 L.Ed. 368;Bracken v. Rosenthal (C.C.) 151 F. 136. The defendant contends that the bill will not lie because the plaintiff has a plain, adequate and complete remedy at law. But as city treasurer......
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City of Boston v. Dolan
...Bay State Gas Co. v. Lawson, 188 Mass. 502 , 505. Digney v. Blanchard, 226 Mass. 335, 339. Shields v. Thomas, 18 How. 253, 260. Bracken v. Rosenthal, 151 F. 136. The contends that the bill will not lie because the plaintiff has a plain, adequate and complete remedy at law. But as city treas......