Davenport Quigley Expedition v. Century Productions

Citation18 F. Supp. 974
PartiesDAVENPORT QUIGLEY EXPEDITION, Inc., v. CENTURY PRODUCTIONS, Inc., et al.
Decision Date19 February 1937
CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York

Krellberg & Fitzsimons, of New York City (Alfred S. Krellberg and Edward A. Sargoy, both of New York City, of counsel), for complainant.

Henry Pearlman, of New York City (Henry Pearlman, Maxwell E. Sparrow, and Percy Freeman, all of New York City, of counsel), for defendants.

HULBERT, District Judge.

Plaintiff sued in equity to restrain infringement of a moving picture film copyright entitled "Jango" and retitled "Ubangi."

On and prior to February 28, 1929, Daniel Davenport was a citizen of the Dominion of Canada and domiciled in the city, county, and state of New York. With two European scientists he entered upon an expedition into the African jungle in 1925 to make a study of wild animals in their lair and also to experiment upon and study the tsetse fly. Davenport was furnished by Nathan Braunstein with the necessary raw stock material for the purpose of making moving picture films upon said expedition. These films, aggregating about 6000 feet, were received from Davenport and cut and assembled by Braunstein, together with about 2,000 feet of additional film consisting of photographs which had been taken by one Major Dugmore, a London explorer and purchased by Braunstein from a New York "library" or film agency. Under the title of "Jango," these combined films were first exhibited by Davenport after his return from Africa on February 28, 1929, and in addition to the title, bore the words "Copyright 1929, Daniel Davenport," which the plaintiff claims constituted the first publication thereof by him under the existing copyright law.

On or about March 28, 1929, Davenport executed and delivered a bill of sale to Braunstein whereby in consideration of the sum of $500 he bargained, sold, granted, and conveyed "all my right, title and interest in and to a certain negative of a motion picture film dealing with animal study in Africa, said negative being six reels in length, and also one positive of the same negative film, together with the cases containing same."

It will be noted that no reference was made to the copyright.

Thereupon the plaintiff was incorporated under the laws of the state of New York on April 17, 1929, and Braunstein made an offer in writing to convey said films and the copyright thereof to the plaintiff, which offer was recommended at the first meeting of the incorporators and accepted at the first meeting of the directors, attended in each instance by Davenport and Braunstein, who were elected the president and vice president, respectively, of the plaintiff.

On January 7, 1930, Braunstein delivered two copies of film, consisting of nine reels, together with an application, to the Register of Copyrights at Washington, D. C., and received a certificate of copyright stating that registration had been made under entry class M, No. 1039, in the name of Davenport Quigley Expedition, Inc.

Upon the trial, Braunstein testified that the two prints so filed had been returned. There is now no requirement that the copyright office either retain or return to the copyright owner the deposited copies of moving picture films, but perhaps because of lack of storage facilities or potential fire hazards it is the practice of the Copyright office to return them, and it is authorized to do so by Act of March 3, 1933, c. 202, § 1, 47 Stat. 1431. See 17 U.S.C.A. § 12 note.

It was testified by Braunstein that both of the returned prints and the so-called lavender print from which they were made were put in service, practically worn out, and subsequently destroyed, and that the original was, at the time of the trial, in Berlin, Germany, subject to litigation there, but he produced eight reels of film which he testified to be an exact copy of the original and they were projected during the course of the trial upon a screen for the information of the court. He also testified that 20 scenes represented in said film had been exhibited by the defendant Century Productions, Inc., in various theatres, including the Century Theatre in New York, on or about November 25, 1932, under the copyright title of the "Jungle Killer."

In another action in this court (19 F. Supp. 30) in which one Patterson was the plaintiff, the defendants Century Productions, Inc., and Cummins, were enjoined from showing certain other portions of the "Jungle Killer" which the plaintiff does not claim constituted an infringement of the film "Jango," but to induce this plaintiff not to stop the showing of the "Jungle Killer" completely, the defendant Cummins, president of the Century Productions, Inc., agreed to eliminate the scenes objected to by the plaintiff, some of which were produced upon and also projected during the trial.

It appears that the plaintiff, in advertising the public showing of "Jango," included photographs taken from a book copyrighted by Dugmore in 1910 and which was produced upon the trial, from the shelves of the New York Public Library. It was contended by the defendants that the use of said photographs, as well as the so-called Dugmore film included in the picture entitled "Jango" was a representation to, and might be regarded by those invited and who came to witness "Jango," as photographs taken by Davenport, but there is no claim of infringement of these films by the defendants.

On the other hand, it is clearly established by the evidence in the case, that the defendants Century Productions, Inc., and Samuel Cummins, purloined the scenes in question from the plaintiff's film. The defendant attempted to show by the testimony of one Alexander that title to certain of the scenes eliminated from the "Jungle Killer" upon plaintiff's claim of infringement had been acquired from Alexander's production of "Ingagi." It developed that Alexander and Congo Pictures, Limited, with which he was connected, had utilized photographs of "Darkest Africa" allegedly purchased from Lady McKenzie in...

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9 cases
  • Playboy Enterprises, Inc. v. Dumas, 91 Civ. 6268 (CHT).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 9 Septiembre 1993
    ...to writing, the transfer cannot be valid. Nor is the language of the legend dispositive. In Davenport Quigley Expedition, Inc. v. Century Productions, Inc., 18 F.Supp. 974 (S.D.N.Y.1937), the court concluded that the plaintiff could not maintain a suit for infringement when he had purchased......
  • Michael Todd Co. v. Los Angeles County
    • United States
    • United States State Supreme Court (California)
    • 17 Mayo 1962
    ...12); National Geographic Soc. v. Classified Geographic (1939, D.C.Mass.) 27 F.Supp. 655, 660(5); Davenport Quigley Expedition v. Century Productions (1937, S.D.N.Y.) 18 F.Supp. 974, 977(4, 5); cf. Italiani v. Metro-Goldwyn-Mayer Corp. (1941) 45 Cal.App.2d 464, 467(1), 114 P.2d The nature an......
  • Pearson v. Washingtonian Pub. Co., 6921.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 25 Abril 1938
    ...Co. v. Kaufman, C.C.M.D.Pa., 189 F. 215; New York Times Co. v. Star Co., C.C.S.D.N. Y., 195 F. 110; Davenport Quigley Expedition v. Century Productions, D.C., S.D.N.Y., 18 F.Supp. 974; Lumiere v. Pathé Exchange, 2 Cir., 275 F. 3 Section 12, so far as material, reads as follows: "After copyr......
  • Group Publishers v. Winchell
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 11 Octubre 1949
    ...of the copyright to plaintiff. Public Ledger Co. v. Post Printing & Publishing Co., 8 Cir., 294 F. 430; Davenport Quigley Expedition v. Century Products, D. C., 18 F.Supp. 974; § 28, Tit. 17 Further, the assignment, as written and executed, does not purport to grant the assignee any right t......
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