Eggers v. Sun Sales Corporation

• Decision Date: 14 January 1920
• Docket Number: 112.
• Citation: 263 F. 373
• Parties: EGGERS v. SUN SALES CORPORATION et al.
• Court: U.S. Court of Appeals — Second Circuit

263 F. 373

EGGERS v. SUN SALES CORPORATION et al.

No. 112.

United States Court of Appeals, Second Circuit.

January 14, 1920

Action is for infringement of the copyright of a book entitled 'General Pershing's Story of the American Army in France. ' The book is a pamphlet,

consisting of the General's official report to the Secretary of War bound in with a photograph of the writer and certain poems. The margins of most of the pages are ornamented with reproductions of drawings representing military scenes, and the cover is of white paper bearing on its front the title aforesaid and a drawing of General Pershing. The pamphlet was designed to be sold on the streets or bought in quantities for gratuitous distribution by the buyer, as is asserted in argument and not denied. As the publication was timely, the sales were remarkably large, and were to a considerable extent made through the individual defendants.

The alleged infringement is a pamphlet of substantially the same size, bound in white paper and entitled 'General Pershing's Official Story of the American Expeditionary Forces in France. ' Defendants' pamphlet has likewise portraits of General Pershing on the cover and an interior page, but evidently not reproduced from the same original drawings or photographs as plaintiff's. It consists (as does plaintiff's) of the General's official report set forth on the same number of pages, and it is ornamented not with pictures on the margin, but with representations of the corps and divisional badges of the A.E.F. in tinted ink on the page centers and supplemented by two of the three poems contained in plaintiff's pamphlets, but these two sets of verses were reprinted by both plaintiff and defendants by permission of the owners of the copyright thereof. Defendants' pages containing the poems are ornamented by drawings suggestive of war, but entirely different in detail from those of plaintiff's, though in both books the picture on the page bearing a poem is evidently thought to be appropriate to the subject of the poem.

The court below dismissed the bill, and plaintiff took this appeal.

Dunn Goodlett, Massie & Scott, of New York City (Ralph L. Scott and Clifford E. Dunn, both of New York City, of counsel), for appellant.

Milton Mayer, of New York City (Goodman Block, of New York City, of counsel), for appellees.

Before ROGERS, HOUGH, and MANTON, Circuit Judges.

HOUGH Circuit Judge (after stating the facts as above).

In form statutory copyright is effected by the act of the person claiming the privilege. What is registered is a 'claim to copyright.' Act March 4, 1909, c. 320, Sec. 10 (Comp. St. Sec. 9531). There is no provision for examination, as in the case of patents, and probably for that reason the act (section 3 (Comp. St. Sec. 9519)) declares that protection is extended to 'all the copyrightable component parts of the work copyrighted. ' The inference is that there may be in that for which claim is made much to which the protection of the act cannot extend. This is but recognition of law existing long before the present statute. Black v. Allen Co. (C.C.) 42 F. 618, 9 L.R.A. 433, and cases cited.

This action rests on copyright alone, though the pleadings contain an abandoned suggestion of unfair competition. Therefore the...