Cory v. Physical Culture Hotel, 244.
| Decision Date | 01 March 1937 |
| Docket Number | No. 244.,244. |
| Citation | 88 F.2d 411 |
| Parties | CORY v. PHYSICAL CULTURE HOTEL, Inc. |
| Court | U.S. Court of Appeals — Second Circuit |
John S. Powers and E. Bernard Gary, both of Buffalo, N. Y., for Archie B. Cory.
Mayer C. Goldman, of New York City (Mayer C. Goldman and John Schulman, both of New York City, of counsel), for Physical Culture Hotel.
Before SWAN, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
The issue on the defendant's appeal involves the validity of the copyright of an aerial photograph of the defendant's hotel and the surrounding countryside at Dansville, N. Y., and the amount of damages recoverable provided the copyright is valid. The plaintiff's appeal relates solely to the amount of the attorney's fee allowed by the trial court.
The plaintiff was in 1933 employed by a Mr. Webster, a photographer at Dansville, N. Y., who had been employed from time to time by a Miss Ferrier to take photographs of the defendant's property in that town. Miss Ferrier was one of the defendant's employees at a physical culture hotel it owned and operated there and had selected of the photographs taken by Mr. Webster the ones the defendant desired and had paid for them on behalf of the defendant.
It was made known to Webster that no photograph could be taken that would be entirely satisfactory to the defendant unless it were taken from the air, and he made about fourteen flights in attempting to make one, but when he showed his pictures to Miss Ferrier she was not satisfied because they all showed the effects of vibration and ground speed. While these attempts were being made, sunbaths were placed on the hotel roof, and thereafter no flights to take pictures were made without advance notice to the hotel and the time arranged so as to avoid embarrassment to the guests. Before a suitable picture had been taken, Mr. Webster decided to stop trying and suggested to the plaintiff that he take up the work. The plaintiff made two flights without success and then, on June 22, 1933, took the picture of which the copyright is in issue in this suit.
The trial court found on ample evidence that before the picture was taken the defendant's hotel was called by telephone and permission given to take aerial pictures of the hotel and its surroundings from an airplane between 2 and 4 that afternoon. The plaintiff did so. The next day these pictures were shown to Miss Ferrier, who chose the one she thought most satisfactory but did not buy the picture or acquire on behalf of the defendant any right to use it. Thereafter the negative was marked by the plaintiff and the photograph was duly copyrighted by him in accordance with the provisions of law applicable. Copies of the picture bearing the copyright notice were placed on sale by the plaintiff and some were sold. The manager of the defendant's hotel talked with the plaintiff who at his request quoted a price for the use of the picture by the defendant on mailing pieces for one year at $25 and for a large print at $15 provided that in any use for advertising the copyright...
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...in May 1936 and January 1937, respectively). 23 In Cory v. Physical Culture Hotel, Inc., 14 F.Supp. 977, 985 (W.D.N.Y.1936), aff'd, 88 F.2d 411 (2d Cir. 1937), the court stressed Each issue of the magazine was a separate and distinct set-up involving a new and independent arrangement of cop......
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Kamakazi Music Corp. v. Robbins Music Corp., 80 Civ. 2877 (RWS).
...81-83 (S.D.N.Y.1979), aff'd, 621 F.2d 57 (2d Cir. 1980); Cory v. Physical Culture Hotel Inc., 14 F.Supp. 977, 985 (W.D.N.Y.1936), aff'd 88 F.2d 411 (1937), it seems that the findings and conclusions with respect to infringements represent a rational, if in part unfounded, as to entire folio......
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Easter Seal Soc. for Crippled Children and Adults of Louisiana, Inc. v. Playboy Enterprises
...on-screen. She apparently watched long enough to form a dislike for the context of the unexpected publicity.3 Cory v. Physical Culture Hotel, 88 F.2d 411 (2d Cir.1937); Lumiere v. Robertson-Cole Distributing Corp., 280 F. 550 (2d Cir.), cert. denied, 259 U.S. 583, 42 S.Ct. 586, 66 L.Ed. 107......
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...30 F.Supp. 301 (E.D.Pa.1939) (8 month interval); cf. Cory v. Physical Culture Hotel, Inc., 14 F.Supp. 977 (W.D.N.Y. 1936), aff'd, 88 F.2d 411 (2 Cir. 1937). 8 See Harry Alter Co. v. A. E. Bordon Co., 121 F.Supp. 941 (D.Mass.1954) (three publications in 1945, 1948, and 1950 9 Doll v. Libin, ......
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...508 F.2d 909 (2nd Cir. 1974). [FN62]. Murray v. Gelderman, 566 F.2d 1307 (5th Cir 1978). [FN63]. See, e.g. Cory v. Physical Culture Hotel, 88 F.2d 411 (2d Cir. 1937); Lumiere v. Robertson-Cole Distributing Corp., 280 F. 550 (2d. Cir. 1921), cert denied. 529 U.S. 583, 42 S. Ct. 586, 66 L. Ed......