Dielman v. White

• Decision Date: 31 May 1900
• Docket Number: 1,133.
• Citation: 102 F. 892
• Parties: DIELMAN v. WHITE et al.
• Court: U.S. District Court — District of Massachusetts

102 F. 892

DIELMAN v. WHITE et al.

No. 1,133.

United States Circuit Court, D. Massachusetts.

May 31, 1900

Alex P Browne, for complainant.

Fish Richardson & Storrow, for defendants.

LOWELL District Judge.

This is a suit by the designer of a certain mosaic in the Congressional Library at Washington to enjoin the publication of photographs of the mosaic. On December 22, 1894, Mr Green, superintendent and engineer of the library, offered Mr. Dielman the commission 'to paint, furnish, and put in place, complete,' the marble mosaic panel in question leaving the subject of the design largely to Mr. Dielman's choice. On December 27, 1894, Mr. Dielman accepted the commission. On February 14, 1895, he submitted to Mr. Green a statement in writing of the composition proposed. On March 30, 1895, in a letter to Mr. Green, he said:

'Under these circumstances, I feel that the best final result can be obtained by my undertaking to furnish you the completed mosaic, and I am therefore prepared to make the contract to that effect.'

On April 1, 1895, Mr. Green wrote as follows:

'Washington, D.C., April 1, 1895.

'Mr. Frederick Dielman, 1512 Broadway, New York, N.Y.-- Dear Sir: I have just received with pleasure your letter of the 30th ultimo, accepting the offered commission to furnish the two mosaic panels, in translucent tesserae, for the Congressional Reading Room mantels in this building, and now herewith inclose the formal order therefor.

'Very respectfully,

Bernard R. Green, 'Superintendent and Engineer.'

The formal order was as follows:

'Washington, D.C., April 1, 1895.

'Mr. Frederick Dielman, 1512 Broadway, New York, N.Y.: Please furnish for this building, deliver, and put in place, complete, two mosaic panels of translucent glass tesserae in the two marble mantels of the W.S.C. Congressional Reading room, in accordance with the letter of December 22, 1894, from this office, and your letter of March 30, 1895, for the gross sum of four thousand dollars ($4,000).

Bernard R. Green, 'Superintendent and Engineer.'

On May 9, 1895, Mr. Dielman submitted some sketches. Thereafter he painted a cartoon, and caused the same to be copyrighted in the usual way. This cartoon was sent to Venice, and in that place the mosaic in question was manufactured in the usual manner by workers in mosaic. Both the cartoon and the mosaic bore in the lower left-hand corner these words: 'Copyright, 1896, by Frederick Dielman.' In 1897 the mosaic, having been sent from Italy, and entered at New York duty free by order of the government, was set in place. The defendant took the photographs which are alleged to infringe, with the knowledge of the officers in charge of the library.

The only question presented in this case is the right of the complainant, by reason of the copyright he took out, to exclude others from photographing the mosaic. No mention whatever of copyright was made in the correspondence, and the only evidence that anything was said to any United States officer concerning the copyright is found in the following answers of the complainant:

'Int. 23. Please state whether or not the painting or cartoon was every submitted for acceptance to any person representing the United States government in the matter of the erection or decoration of the new library of congress, and, if yes, to whom and when first. Ans. The painting or cartoon, before it was sent to Venice for reproduction in mosaic, was submitted to Edward P. Casey, Architect in charge of the Library Building, and was by him accepted. Int. 24. Please state when the putting on of the copyright notice by you was done, with reference to the time of such submission. Ans. The copyright notice was put on the painting before the same was submitted. ' 'Cross Int. 43. Did you make any express contract with the government whereby you reserved the right to copyright your cartoon? Ans. I did not make any express contract, as I understand such to be. Cross Int. 44. Do I understand you to mean that you made any contract at all to that effect? Ans. Only in so far as I was persuaded that the government had no objection to my reserving the copyright on the design, 'Law,' inasmuch as the placing of the inscription or copyright notice was subject of discussion with a representative of the government, and no objection to my placing the same upon the panel was made. ' 'Redirect Int. 76. Was anything said by Mr. Casey or yourself with reference to the copyright notice which you have testified was put upon your painting or cartoon before it was submitted to Mr. Edward P. Casey? Ans. If I remember rightly, the size of the letters forming that inscription was a subject of discussion.'

Taken by itself, the contract seems to me plainly inconsistent with any reservation of copyright on the part of the artist. In...