Dam v. Kirke La Shelle Co.

• Decision Date: 12 December 1908
• Citation: 166 F. 589
• Parties: DAM v. KIRKE LA SHELLE CO.
• Court: U.S. District Court — Southern District of New York

166 F. 589

DAM v. KIRKE LA SHELLE CO.

United States Circuit Court, S.D. New York.

December 12, 1908

Andrew Gilhooly, for complainant.

Stover Hall & Freeman (Joseph E. Freeman and Martin L. Stover, of counsel), for defendant.

HAZEL District Judge.

This suit in equity was brought to restrain the defendant, the Kirke La Shelle Company, from producing or publicly performing the dramatic play or composition entitled 'The Heir to the Hoorah.' The bill alleges that the play is an unauthorized dramatization of the published story entitled 'The Transmogrification of Dan.'

It is first to be considered herein whether the story was protected by statutory copyright. Complainant's intestate, who was the author of the story, sold it to the Ess Ess Publishing Company, which later published the story, with other articles, in its copyrighted number of the Smart Set issued September, 1901. After the alleged infringement of the novelette the publishing company assigned back to the author its copyright of the September issue of the magazine; the assignment, however, simply covering and including the story or novelette in controversy, together with all claims and demands against infringers thereof. The defendant contends first, that to secure a valid copyright of his authorship and the exclusive right to dramatize, the author must have copyrighted the literary production, or the copyright must have been taken out by the purchaser; and, second, that there was no sale of the copyright, but simply of the manuscript or literary composition.

But this contention is not thought maintainable, for by section 4952 of the Revised Statutes of the United States (U.S. Comp St. 1901, p. 3406), not only authors have the right to translate and dramatize their literary productions, but proprietors or owners by assignment, upon complying with the statute, are given the exclusive right of printing and vending the same. The unconditional sale of the story entitled the purchaser to protection from piracy upon securing a statutory copyright, and, moreover, it could be and was in fact copyrighted by the owner thereof by simply filing with the Librarian of Congress the title page of the magazine and complying with the provisions of the statute relating to copyrighting. It was not necessary to file a copy of the title of each article published in the magazine, or of the author's literary composition; nor was it necessary that he should himself have secured the copyright, so as to retain the right of dramatizing it. It was properly held in a recent case decided in this circuit by Judge Holt that an author can sell the exclusive right to print and publish his production, the buyer thereby having the right to copyright it, though the author may withhold to himself the right to dramatize. Ford v. Blaney Amusement Co. (C.C.) 148 F. 642. Hence in the present case the sale or transfer of the literary composition prior to copyrighting vested the Ess Ess Publishing Company, in the absence of any reservation, with all the rights and privileges of the author, and gave it the right to secure the statutory copyright, which thereafter it could assign to the author, his heirs or assigns.

The next important question relating to the dramatization of the copyrighted literary composition by the defendant without the consent of the proprietor requires us to ascertain whether the subject or so-called plot of the story or novelette was original, and whether the defendant, in producing the play or drama, abstracted a material portion thereof. In cases of this character the inquiry must be whether the substance of the literary composition has been taken to the injury of the complainant. Of course, if...