Kaplan v. Fox Film Corporation
| Decision Date | 04 May 1937 |
| Citation | 19 F. Supp. 780 |
| Parties | KAPLAN v. FOX FILM CORPORATION. |
| Court | U.S. District Court — Southern District of New York |
David Marshall Holtzmann, of New York City, for complainant.
Edwin P. Kilroe, of New York City (Julian T. Abeles and L. Lawrence Green, both of New York City, of counsel), for defendant.
The suit is for infringement of statutory copyright. The present motion is by the defendant to dismiss the bill as insufficient on its face.
The bill alleges that the Theatre Magazine Company formerly published the Theatre Magazine, that it caused the August, 1929, issue of the magazine to be copyrighted by registry and deposit of two copies and by notice of copyright on the issue itself, thereby obtaining copyright as to each part of the contents of the issue; that the Theatre Magazine Company later assigned to the plaintiff its copyright in the cover design of the issue, said cover design having been conceived and painted by one Durenceau; that Durenceau also assigned to the plaintiff all his rights in the cover design; that the defendant infringed the copyright by using the cover design as a scenic effect in a motion picture produced by it. Injunction and accounting for profits are demanded.
The defendant's argument is that the bill fails to show that the plaintiff owns the alleged copyright, and this for two reasons: (1) That it is not shown that the Theatre Magazine Company was the author or proprietor of the cover design when it went through the motions of taking out copyright; (2) that it is not shown that the plaintiff as assignee of the Theatre Magazine Company and of Durenceau acquired copyright of the cover design.
1. The first objection is a sound one. The bill shows that Durenceau created a picture, that the magazine company used the picture on the cover of the magazine and took out copyright on the magazine. It is not pleaded that the magazine company acquired Durenceau's rights in the picture prior to taking the necessary steps to get statutory copyright; it is not even pleaded broadly that the magazine company was then the proprietor of the picture. For all that appears in the bill, Durenceau still owned the picture and the magazine company had no lawful interest in it when copyright on the contents of the magazine was taken out.
Under the Copyright Act the persons entitled to copyright are "the author or proprietor." 17 U.S.C.A. § 8. In a bill for infringement the plaintiff should show title by pleading authorship or proprietorship, and if the alleged title be by proprietorship the plaintiff should plead facts which trace how he became proprietor. Bosselman v. Richardson, 174 F. 622 (C.C. A.2); Crown Feature Film Co. v. Levy, 202 F. 805 (D.C.N.Y.); Quinn-Brown Publishing Corporation v. Chilton Co., 15 F. Supp. 213 (D.C.N.Y.). This is as true of a component part of a periodical as of any other case of copyright. When a periodical contains articles or pictures made by persons who have not transferred their rights to the publisher, the publisher's copyright of the periodical does not cover them. Mail & Express Co. v. Life Publishing Co., 192 F. 899 (C.C.A.2). The link from the artist to the publisher being missing from the chain of title pleaded, the bill is defective. Mifflin v. R. H. White Co., 190 U.S. 260, 23 S.Ct. 769, 47 L.Ed. 1040.
2. The second objection is on the alleged link from the magazine company to the plaintiff. The defendant's premise is that when a publisher acquires copyright on the entire contents of a magazine, he cannot make a valid assignment of copyright covering a single picture or article in the magazine. The argument is that the copyright on the contents is solid and indivisible so far as the owner's right to transfer copyright goes. This argument cannot be accepted.
The usual method of acquiring statutory copyright on a contribution to a periodical is by...
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