Conner v. Mark I, Inc., 79 C 4969.
| Decision Date | 18 March 1981 |
| Docket Number | No. 79 C 4969.,79 C 4969. |
| Citation | 509 F. Supp. 1179 |
| Parties | Fritz CONNER, Plaintiff, v. MARK I, INC., an Illinois corporation, and April House, Inc., Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
Roger L. Harris, Harris & Goldstein, Chicago, Ill., for plaintiff.
Erwin I. Katz, Hoffman & Davis, Chicago, Ill., for defendant.
This cause comes before the court on the motion of defendant Mark I, Inc. for summary judgment.1 Rule 56(b), Fed.R.Civ.P. For the reasons hereinafter stated, this motion will be granted.
This is an action for common law copyright infringement, brought pursuant to 17 U.S.C. § 101, et seq. Federal jurisdiction over the cause lies pursuant to 28 U.S.C. § 1338(a),2 and, as defendant Mark I, Inc. is an Illinois corporation having its principal place of business in Chicago, venue in the Northern District of Illinois is proper under 28 U.S.C. § 1391(b) & (c), see footnote 1, supra.
The facts in this case are not in dispute. In 1961 the plaintiff, Fritz Conner, and his wife, both amateur photographers, took a series of photos of their St. Bernard dog playing with a chipmunk. Mr. Conner submitted several of these photographs to the Columbus Dispatch, a general circulation newspaper published in Columbus, Ohio, for possible publication, at the newspaper's discretion, in the Dispatch's nature column.3 One of his photographs was selected, and printed in the September 24, 1961 edition of the newspaper. Neither that photograph, nor the specific edition of the Dispatch in which it ran, however, was copyrighted.
Plaintiff later licensed his "Dispatch photo" to Life Magazine for publication in a copyrighted edition of Life on October 20, 1961. Thereafter, the photograph was licensed for appearance in a number of publications throughout the world, and for use in various other media.
During 1976 and 1977, Conner came across several items, including a memo pad and poster, which contained a display of his "Dispatch photo". These items were distributed by April House, Inc., a corporation later purchased by Mark I, Inc. See footnote 1, supra. Plaintiff Conner never consented to or licensed these uses of his photograph by April House or Mark I, and until shortly before the institution of this litigation, had never had any direct contact with those entities.
OpinionThe pivotal question in this litigation is whether plaintiff Conner maintained a common law copyright in the photograph at issue following the publication and distribution of that photograph in the September 24, 1961 edition of the Columbus Dispatch. If that publication and distribution constituted a general publication, under the law this will operate to divest the plaintiff of his common law copyright protections. N. Nimmer, Nimmer on Copyright § 4.13A, at 4-65.
The Copyright Act of 1976, effective January 1, 1978, virtually preempted the area of copyright law. 17 U.S.C. § 301. Under the Act, many works created prior to January 1, 1978, which previously had been protected only by common law copyrights, became the subject of a new statutory copyright. 17 U.S.C. § 303. In order to qualify for and receive this statutory protection, though, the work in question had to be one never placed in the public domain. M. Nimmer, Nimmer on Copyright § 4.13; Burke v. National Broadcasting Co., 598 F.2d 688, 691 (1st Cir.), cert. denied, 444 U.S. 869, 100 S.Ct. 144, 62 L.Ed.2d 93 (1979). Such being the law, the issue in the case at bar thus is whether plaintiff Conner's photograph was "placed in the public domain" when it appeared in the Columbus Dispatch on September 24, 1961.
Plaintiff Conner argues that this appearance constituted only a limited publication, which does not operate to divest an owner of his common law copyright protection. American Tobacco Co. v. Werckmeister, 207 U.S. 284, 299-300, 28 S.Ct. 72, 77, 52 L.Ed. 208 (1907); MacMillan Co. v. I.V.O.W. Corp., 495 F.Supp. 1134, 1144-45 (D.Vt. 1980). A limited publication has been defined as a publication "which communicates the contents of a work to a definitely selected group and for a limited purpose ... without the right of diffusion, reproduction, distribution or sale ... The circulation must be restricted both as to persons and purpose or it cannot be called a private or limited publication." Burke v. National Broadcasting Co., supra at 692, quoting White v. Kimmell, 193 F.2d 744, 746-77 (9th Cir. 1952) (court's emphasis).
A general publication, on the other hand, is defined as the 17 U.S.C. § 101. When a general publication has been found, the creator is looked upon as having made his work available in such a manner as to suggest that any interested person could, if he so wished, have a copy. Burke v. National Broadcasting Co., supra at 692. See M. Nimmer, Nimmer on Copyright § 4.04, at 4-20-21.
The appearance of the subject photograph, without statutory copyright, in the Columbus Dispatch must, in the court's opinion, be considered a general, rather than limited, publication. As was noted previously, for a publication to be considered limited, it must be restricted both as to persons and in purpose. In the instant matter, neither of these requirements has been met. Clearly, there was no limitation placed upon the Columbus Dispatch's distribution of the subject photograph, which had been submitted to the newspaper for the purpose of publication and general circulation. Anyone who desired a copy of the photograph could have obtained it simply by purchasing the particular edition of the newspaper in which it ran. That being true, as the "Dispatch photo" was freely available, this publication can only be viewed as general. See Public Affairs Associates, Inc. v. Rickover, 284 F.2d 262, 269-70 (D.C.Cir.1960), vacated for insufficient record, 369 U.S. 111, 82 S.Ct. 580, 7 L.Ed.2d 604 (1962); Rexnord, Inc. v. Modern Handling Systems, Inc., 379 F.Supp. 1190, 1197 (D.Del.1974).
There was, in addition, no limitation placed upon the purpose for which the Columbus Dispatch photograph could be used. Such limitations, where present, generally preclude recipients of the subject material from reproducing, distributing or selling their copies. M. Nimmer, Nimmer on Copyright § 4.13A. Lacking this type of limitation as well, the Columbus Dispatch publication at bar must, as a matter of law, be deemed general.
That plaintiff Conner may have intended to place the requisite limitations on the September 24, 1961 publication is irrelevant. This is so because it is only the actions of the copyright owner which will establish the existence of such constraints. Burke v. National Broadcasting Co., supra at 692; Public Affairs Associates, Inc. v. Rickover, supra at 270; King v. Mister Maestro, Inc., 224 F.Supp. 101, 103 (S.D.N.Y. 1963). In King v. Mister Maestro, Inc., supra, advance copies of a speech Dr. Martin Luther King was to give were provided to members of the press, in the press tent, as part of a press kit. Although finding this to have been a limited publication, the King court specifically held that it was legally irrelevant whether Dr. King had actually intended that these copies of his speech be used solely to assist the press in its coverage of the same. The court instead found this to have been Dr. King's purpose solely from his actions in distributing the speech. Id. at 103. See Burke v. National Broadcasting Co., supra at 692.
In contrast to King, the actions of the plaintiff in the matter at bar suggest no such limited purpose. Rather, Mr. Conner's actions appear much more to constitute a willing placement of the subject photograph in the public domain through the unrestricted publication of it in a widely circulated urban newspaper.
The lack of restriction on further dissemination of his photograph aside, however, the plaintiff relies upon the findings of limited publication in the following circumstances as support for his position: the public delivery of a play, Ferris v. Frohman, 223 U.S. 424, 32 S.Ct. 263, 56 L.Ed. 492 (1912); the playing of a song in public, Heim v. Universal Pictures Co., 154 F.2d 480 (2d Cir. 1946);...
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