Ilyin v. Avon Publications

• Decision Date: 24 July 1956
• Citation: 144 F. Supp. 368
• Parties: Maximilian ILYIN, Plaintiff, v. AVON PUBLICATIONS, Inc., Defendant and Third-Party Plaintiff, Philip Rahv and William Phillips, Third-Party Defendants.
• Court: U.S. District Court — Southern District of New York

144 F. Supp. 368

Maximilian ILYIN, Plaintiff, v. AVON PUBLICATIONS, Inc., Defendant and Third-Party Plaintiff, Philip Rahv and William Phillips, Third-Party Defendants.

United States District Court S. D. New York.

July 24, 1956.

COPYRIGHT MATERIAL OMITTED

Borris M. Komar, New York City, for plaintiff.

William Gold, New York City, for defendant (P. Berner, P. Gitlin, New York City, of counsel).

No appearance for third-party defendants.

THOMAS F. MURPHY, District Judge.

This is an action for copyright infringement and a third-party action for indemnification by the defendant publisher against the persons who allegedly gave it the right to publish the article in question — an English translation of Jean Cocteau's one-act play entitled, "The Human Voice." The facts are as follows:

On February 21, 1930, Librairie Stock Delamain & Boutelleau published, in France, Cocteau's play "La Voix Humaine." The following month it applied for and received a United States copyright (Class D pub. No. 5308) on this work. In November of the same year The Atlantic Monthly Company received a copyright (Class B No. 90470) on the entire November 1930 issue of its magazine which issue contained an English translation of the play under the title "Over the Wire."

The plaintiff, also known as Maximilian Abramowicz, and Cocteau entered into a contract in Paris on September 25, 1935, whereby Cocteau "assigned" to the plaintiff "for a period of twenty-one (21) years from this date, the rights to produce, exploit and present publicly, sound and talking motion pictures, in all languages, for all countries, said films to be based upon the one act play entitled: "`The Human Voice.'" This was supplemented on October 19, 1935, by a letter from Cocteau to the plaintiff granting the latter "by this letter, the exclusive rights to the aforementioned play, for the translation, publication, adaptation, staging and recording of this work, in all languages and for all countries, outside of France." The plaintiff thereafter translated the play and received a United States copyright (Class D unp. No. 90534) in September 1944 after filing one copy of the translation with the Register of Copyrights.

In November of 1947 Bowden Broadwater, Editorial Assistant of the Partisan Review, wrote to Librairie Stock seeking permission "to translate for publication in the Partisan Review" Cocteau's play. Such authorization was granted by letter dated December 5, 1947. The play was thereupon translated by Dudley Fitts who was paid the sum of $62 for his services. There is no evidence that Mr. Fitts had access to or copied plaintiff's translation. This translation was published in the July 1948 issue of the Partisan Review and a copyright on the entire issue (Class B No. 152365) was claimed on August 31, 1948. The plaintiff eventually became aware of this and in March of 1950 caused the William Morris Agency to write to Partisan Review informing them of plaintiff's alleged exclusive publication rights and requesting an explanation. The reply disclaimed all knowledge of Mr. Ilyin and referred to the license granted by Librairie Stock.

On November 20, 1950, plaintiff wrote the following letter to Librairie Stock:

"I permit myself to recall to you the following facts:

"a. I have purchased directly from the author the rights to `La Voix Humaine', a one act play of Jean Cocteau, for the films, radio, television and publication. These rights were originally assigned to me in all languages for all countries.

"b. I have made an adaptation of this play in English. This adaptation was copyrighted by me in 1944 and was played for the first time on the English radio by Gertrude Lawrence.

"c. You have equally acquired the rights of publication in all languages for the same play.

"Consequently, as a result of all our conversations, we have arrived at the following:

"1. We have no interest to enter into any controversy, nor to commence a litigation against Mr. Jean Cocteau.

"2. We will unite our efforts for the purpose of publishing abroad this play on advantageous conditions, particularly in the United States.

"3. We will transmit mutually the offers which will be tendered to either of us and will decide by mutual agreement to which publisher we shall give the permission to publish this work.

"I will be very much obligated to you if you will kindly confirm your agreement * * *."

Librairie Stock replied on November 23, 1950, "I confirm to you our agreement to the terms of your letter of November 20, 1950."

Thereafter, on January 24, 1953, Philip Rahv and William Phillips, editors of the Partisan Review, entered into a contract with the Avon Publishing Company, the defendant herein, whereby the latter was granted exclusive rights to print, bind and vend a book entitled "Stories in the Modern Manner from the Partisan Review." The contract also contained clauses to the effect that Rahv and Phillips owned the copyrights and publishing rights of the book materials and that they would hold Avon harmless against any suits or claims of copyright infringement.

Partisan Review wrote to Librairie Stock on March 10, 1953, enclosing a check for $35.70, one-half the advance royalty due for the use of Cocteau's play "in a collection of Partisan Review stories the Avon Publishing Company is bringing out here this summer in pocketbook form." The check was deposited upon receipt, but on April 27 Librairie Stock replied, "We do not recall, and moreover we find no record in our files, of having granted you an authorization for this * * *. There was no question at all of our having granted exclusive rights, much less the right to publish this work in book form. Therefore, we should be obliged if you supplied us by return mail with a full explanation. At the same time we reserve the right to take action if this publication took place without proper authorization." The Partisan Review made no reply, but on August 8, 1953, sent another check for $35.70 saying that it was sorry about the misunderstanding but the April 27 letter arrived too late to do anything about it. Sometime prior to August 8, 1953, Stories in the Modern Manner, containing Fitts' translation of "The Human Voice", was published and sold 92,139 copies at 35¢ each at a loss of $2,061.50.

The second royalty check was also promptly deposited to the account of Librairie Stock, but on December 18, 1953, it sent the following letter to Partisan Review:

"We have only now become aware of your letter of August 8, 1953, which, having arrived during the the summer holidays and containing a check, was, as is usual in such cases, sent to our accountant.

"We are absolutely not in agreement on the extension that you give to the right we had granted Partisan Review to publish in its pages the American translation of Jean Cocteau's `The Human Voice' done by Mr. Bowden Broadwater. This simple authorization could in no case confer the right to publish this play in a `pocket-book' edition of 100,000 copies!

"Following your first letter of March 10, 1953, we had immediately reserved all our rights in connection with this publication, while waiting for the explanation you might have to offer.

"Now, your letter of August 8 proves to us that the initiative you have taken is completely contrary to publishing rules, and we regret that we are obliged in consequence to allow Mr. Maximilian Ilyin — who holds with us all the publication rights to the American translation of Mr. Cocteau's play — to act * * *. Being unable to return to you the sum of $70.40 which you sent us, we are keeping it under a provisional account."

The answer alleges thirteen separate defenses. Those meriting any discussion may be condensed into four general categories: (1) defendant's publication did not constitute an infringement since it was made with the express authorization of a licensee of the copyright proprietor; (2) plaintiff cannot maintain this suit because of his failure to comply with certain of the formal provisions of the copyright act pertaining to the filing of copies and the notice of claim; (3) plaintiff's copyright is of no effect because his translation was made without the consent of the copyright proprietor; and (4) plaintiff cannot maintain this suit because he is not the real party in interest and because he has failed to join as indispensable parties Librairie Stock and the Atlantic Monthly.

From the facts as set forth above there can be absolutely no doubt that Avon was wholly unauthorized in publishing "The Human Voice" in its Stories in the Modern Manner. Its permission came solely from Rahv and Phillips, but such permission was not within their power to give. The original authorization sought from Librairie Stock in November of 1947 was simply for publication of a translation in the Partisan Review. And this was all that was granted. Partisan Review became a bare licensee, De Forrest Radio Telephone & Telegraph Co. v. Radio Corporation of America, D.C.Del.1925, 9 F.2d 150; Innis, Speiden & Co. v. Food Machinery Corporation, D.C.Del.1942, 2 F.R.D. 261; Ball, Law of Copyright and Literary Property, § 236 (1944), without any right to assign its privilege. Troy Iron & Nail Factory v. Corning, 1852, 55 U.S. 193, 216, 14 L.Ed. 383; Hapgood v. Hewitt, 1886, 119 U.S. 226, 7 S.Ct. 193, 30 L.Ed. 369; Rock-Ola Mfg. Corporation v. Filben Mfg. Co., 8 Cir., 1948, 168 F.2d 919; Ball, op. cit. supra, § 236. The correspondence between Librairie Stock and Partisan Review in 1953 makes it abundantly clear that permission to reprint the translation of the play in book form was never even requested, let alone granted. The mere fact that Partisan Review secured a copyright on its July 1948 issue in which the Cocteau play appeared gives it no right to authorize a reprint by Avon. A blanket copyright on an issue of a periodical does not give any rights to a particular article unless such rights had been previously assigned to the publisher. Mail & Express Co. v. Life Pub....