Harris v. Coca-Cola Co., 7505.

• Decision Date: 09 November 1934
• Docket Number: No. 7505.,7505.
• Citation: 73 F.2d 370
• Parties: HARRIS v. COCA-COLA CO. COCA-COLA CO. v. HARRIS.
• Court: U.S. Court of Appeals — Fifth Circuit

73 F.2d 370 (1934)

HARRIS v. COCA-COLA CO.

COCA-COLA CO. v. HARRIS.

No. 7505.

Circuit Court of Appeals, Fifth Circuit.

November 9, 1934.

Alex W. Smith, Jr., Alex C. King, and Croom Partridge, all of Atlanta, Ga., for appellant and cross-appellee.

Harold Hirsch and M. E. Kilpatrick, both of Atlanta, Ga., for appellee and cross-appellant.

Before BRYAN, SIBLEY, and WALKER, Circuit Judges.

SIBLEY, Circuit Judge.

Esther Larose Harris, the widow of Joel Chandler Harris, asserting a renewal copyright on a book written by her husband entitled "Uncle Remus, His Songs and His Sayings," granted her as widow on December 23, 1921, under section 24 of the Act of March 4, 1909 (17 USCA § 24), brought a bill against the Coca-Cola Company to restrain infringement and to recover damages. A motion to dismiss the bill was overruled, Harris v. Coca-Cola Co. (D. C.) 1 F. Supp. 713; but after a trial a decree was rendered dismissing the bill, the court thinking the claimed copyright established but that no copyrightable matter in the book had been used by the Coca-Cola Company. Appeal and cross-appeal have been taken.

We think the case reached a right result on the merits, because the copyright of Mrs. Harris, assuming its regularity and validity, did not cover the illustrations in the 1895 edition of the book which were used by the Coca-Cola Company in its advertising in 1931 under permission of D. Appleton & Co., the publishers, but, as the court found, without valid permission of Mrs. Harris. It appears without dispute that on November 23, 1880, D. Appleton & Co., as proprietors, obtained copyright of the book under the title and description "Uncle Remus, His Songs and His Sayings; The Folklore of the Old Plantation, By Joel Chandler Harris; With Illustrations by Frederick S. Church and James H. Moser." The illustrations were the work of Church and Moser, though in their preparation Mr. Harris made criticisms and suggestions. On August 27, 1895, by regular procedure as if for a new copyright, D. Appleton & Co., as proprietors obtained copy-right of a book entitled and described "Uncle Remus, His Songs and His Sayings, By Joel Chandler Harris; New and Revised Edition with 112 Illustrations by A. B. Frost." The printed matter was the same as before, except that Mr. Harris prefixed a dedication of the new edition. Appleton & Co. had the new illustrations made without the participation of Mr. Harris, and paid Mr. Frost $1,250 for making them. They were quite different from the former illustrations. In concluding the dedication, which took the form of a beautiful letter to Mr. Frost, Mr. Harris said of them: "It would be no mystery at all if this new edition were to be more popular than the old one. Do you know why? Because you have taken it under your hand and made it yours. Because you have breathed the breath of life into these amiable brethren of wood and field. Because by a stroke here and a touch there you have conveyed into their quaint antics the illumination of your own inimitable humor, which is as true to our sun and soil as it is to the spirit and essence of the matter set forth. The book was mine, but now you have made it yours, both sap and pith. Take it, therefore, my dear Frost, and believe me faithfully yours, Joel Chandler Harris." Mr. Harris died July 3, 1908. On August 12, 1908, a certificate of renewal of copyright "for fourteen years from Nov. 23rd, 1908," which is the date of expiration of the 1880 copyright, was issued to Mrs. Harris on application in her name as widow of Joel Chandler Harris; the book being therein entitled and described as "Uncle Remus, His Songs and His Sayings, by Joel Chandler Harris." Before this renewal expired, Mrs. Harris made application under section 24 of the act of 1909 for the additional renewal term of fourteen years therein provided. The certificate granted on December 1, 1921, stated that it was issued to her as widow of the author and covered a book entitled "Uncle Remus, His Songs and His Sayings, By Joel Chandler Harris."

It will be noted that, in the two copyrights issued to Appleton & Co. as proprietors, "Uncle Remus, His Songs and His Sayings" is attributed to Mr. Harris as author and the illustrations are attributed to Church and Moser as authors in the first and to A. B. Frost in the second. In the renewal certificates issued to Mrs. Harris, no mention is made of either set of illustrations, but only...