Freeman v. The Trade Register, Inc.

• Decision Date: 18 October 1909
• Docket Number: 1,276.
• Citation: 173 F. 419
• Parties: FREEMAN v. THE TRADE REGISTER, Inc.
• Court: U.S. District Court — Western District of Washington

173 F. 419

FREEMAN v. THE TRADE REGISTER, Inc.

No. 1,276.

United States Circuit Court, W.D. Washington, Northern Division.

October 18, 1909

Bogle &amp Spooner, for complainant.

Aust &amp Terhune, for defendant.

DONWORTH District Judge.

This suit is brought to restrain the circulation and distribution by the defendant of a publication called 'The Trade Register Salmon Review.-- Season 1904,' on the ground that it infringes a copyright. It appears that complainant is the proprietor and publisher of a monthly publication called 'Pacific Fisherman,' published at Seattle for several years before and since the time mentioned. During the time complained of, it was the only periodical published on the Pacific Coast devoted exclusively to news and information concerning the fisheries. In the year 1904, particularly during the last four or five months of that year, complainant at considerable trouble and expense procured original data relating to the fishing industry on the Pacific Coast, for the purpose of publishing, at the year's close, an extensive annual review containing statistics and other items of interest bearing upon that subject. In order to make this attractive, complainant procured by correspondence and personal application numerous photographs of persons and places appropriate to such a publication. The work was completed and put into circulation toward the close of January, 1905, as a supplement to the regular January issue of the Pacific Fisherman. It contained, among other illustrations, two cuts labeled 'Gulf of Georgia Cannery' and 'Eagle Harbor Cannery,' representing salmon canneries situated in British Columbia; also a cut entitled 'Columbia River Fish Wheel,' and another entitled 'Fishing Scene on the Columbia River. ' The general illustrations were numerous and interesting, and there were many illustrated advertisements. The work was well printed on paper of good quality and, taken altogether, not only afforded important and valuable information, but also constituted a very readable and attractive volume. The defendant for a number of years had been publishing at Seattle a periodical called 'The Trade Register,' devoted to general business news, and in March, 1905, it issued a supplement headed 'The Trade Register Salmon Review.-- Season 1904. ' This supplement contained, as its heading indicated, a review of the salmon fishing industry for the year named, and there were also advertisements and illustrations. The four cuts above mentioned which had been printed in the Pacific Fisherman supplement also appeared in the Trade Register publication and it is admitted by the defendant that they were actually copied by photographic half-tone process from the pages of the Pacific Fisherman.

The briefs of counsel discuss a number of propositions, but, as the question whether complainant has complied with the copyright laws of the United States lies at the threshold of the case, it must be first decided. Act June 18, 1874, c. 301, 18 Stat. 78 (3 U.S. Comp. St. 1901, p. 3411), enacts:

'That no person shall maintain an action for the infringement of his copyright unless he shall give notice thereof by inserting in the several copies of every edition published on the title page, or the page immediately following, if it be a book, * * * the following words, viz:-- 'Entered according to act of Congress in the year . . . , by A.B. in the office of the Librarian of Congress at Washington' or at his option the word 'Copyright' together with the year the copyright was entered and the name of the party by whom it was taken out, thus;-- 'Copyright 18-- by A.B."

Another section of the statute regulating copyrights requires the person applying for the copyright to deliver at the office of the Librarian of Congress, or deposit in the mail addressed to him, a printed copy of the title of the book for which he desires a copyright (Rev. St. Sec. 4956, as amended by Act March 3, 1891, c. 565, Sec. 3, 26 Stat. 1107 (U.S. Comp. St. 1901, p. 3407)). The act also provides that:

'Each number of a periodical shall be considered an independent publication subject to the form of copyrighting as above. ' Act March 3, 1891, c. 565, Sec. 11, 26 Stat. 1109 (3 U.S. Comp. St. 1901, p. 3417).

The law of copyright in the United States is entirely statutory. All the conditions prescribed by Congress are important and essential and must be observed, or there is no right of action. This has been the uniform holding of the Supreme Court. In Wheaton v. Peters, 8 Pet. 591, 8 L.Ed. 1055, it is said at page 665:

'All the conditions are important; the law requires them to be performed; and consequently their performance is essential to a perfect title. On the performance of a part of them the right vests; and this was essential to its protection under the statute; but other acts are to be done, unless Congress have legislated in vain, to render the right perfect.'

This principle has been applied in numerous subsequent decisions. Banks v. Manchester, 128 U.S. 244, 9 Sup.Ct. 36, 32 L.Ed. 425; Callaghan v. Myers, 128 U.S. 617, 9 Sup.Ct. 177, 32 L.Ed. 547; Thompson v. Hubbard, 131 U.S. 123, 9 Sup.Ct. 710, 33 L.Ed. 76; Higgins v. Keuffel, 140 U.S. 428, 11 Sup.Ct. 731, 35 L.Ed. 470; Boucicault v. Hart, Fed. Cas. No. 1,692; Parkinson v. Laselle, Fed. Cas. No. 10,762; Pierce Co. v. Werckmeister, 72 F. 54, 18 C.C.A. 431; Osgood v. A.S. Aloe Co. (C.C.) 83 F. 470.

Defendant urges that there was a failure to comply with the requirement of the statute relating to the depositing of a printed copy of the title of the publication. It contends that the real title of the work is that appearing on the cover, 'Pacific Fisherman Annual,' whereas the title deposited with the Librarian of Congress was cut from page 19 of the publication, and is an exact reproduction of the top four inches of that page. This contains in large type, occupying the full width of the page, the words 'Pacific Fisherman,' followed by the words, in smaller type of various sizes, 'A Journal Devoted Exclusively to the Fishing Industry.-- Volume III.-- Seattle, Wash., San Francisco, Cal., and Vancouver, B.C.-- January, 1905.-- No. 1.' I find no merit in defendant's contention on this point. The words on the cover are not the best evidence of the title of the work. In addition to the display heading on page 19, all other pages of the publication have printed in large type across the top the words 'Pacific Fisherman'; and there is no question but that the work is a number or part of a number of that periodical, and that the title deposited was the correct one and fulfilled the requirements of the law.

A more serious question now presented is whether complainant has complied with the provision of the statute requiring notice of the copyright to be inserted on the title page, or the page immediately following, of the copyrighted work. This suit is, of course, to be determined without reference to the new copyright act of 1909. The act of 1874 made no distinction between books and periodicals so far as concerns the place for inserting the copyright notice. The work in question contains 106 pages consecutively numbered, besides four pages of paper cover. The cover and the first 18 pages are devoted exclusively to advertisements, embellished, as is customary, with advertising cuts. Page 19 is the first page which contains ordinary reading matter. That page has the display heading or title above described, and this is immediately followed by a descriptive article entitled, 'Edible Mollusks of the Pacific,' with the name of the writer, the rest of page being occupied by that article. The following pages to and including page 90 are devoted mainly to statistics and descriptive articles treating of the fishing industry and persons and things relating to that subject, with numerous illustrations, although advertisements frequently appear scattered throughout the general matter. The pages from 91 to the end, like the pages at the beginning, are confined to advertising. There are only two pages which can be suggested as being 'the title page' of the work, namely, page 19, mentioned above, and page 51. Page 51 carries the same general heading, 'Pacific Fisherman,' across the top that is carried on every page of the work except page 19. It is divided into two columns. At the head of the left-hand column appear the words 'Pacific Fisherman' in type somewhat larger than the general heading at the top of the page, but considerably smaller than the type used for the same words in the display heading on page 19. In the same column, next after the first line, the following is printed in small type: 'A Monthly Journal Devoted Exclusively to the Commerical Fisheries of the Pacific Coast. ' This is followed by ten lines of small type setting forth that the publication has been entered in the Post Office as second-class matter, that it is published on the 1st of each month by the Pacific Fisherman Company at a place named, and stating the terms of subscription, and the names of the editor and manager. Under this is printed, 'Copyrighted 1905 by the Pacific Fisherman Company. ' The rest of that column and a part of the next are occupied by an article of an editorial nature, and this is followed by general reading matter. This notice of copyright is the only one printed in the entire work.

It is to...