Lederer v. Saake

• Decision Date: 22 January 1909
• Docket Number: 61.
• Citation: 166 F. 810
• Parties: LEDERER v. SAAKE.
• Court: U.S. District Court — Eastern District of Pennsylvania

166 F. 810

LEDERER v. SAAKE.

No. 61.

United States Circuit Court, E.D. Pennsylvania.

January 22, 1909

Thomas Stokes, George Wharton Pepper, and Louis Steckler, for plaintiff.

Joseph H. Taulane and Hector T. Fenton, for defendant.

J. B McPHERSON, District Judge.

This is an action to recover the penalties denounced by section 4966 of the Revised Statutes (U.S. Comp. St. 1901, p. 3415) against the unauthorized production of a copyrighted dramatic composition. Two plays are involved, both by German authors one being 'Alt Heidelberg,' by Wilhelm Meyer-Foerster, and the other, 'Grossmama,' by Max Dreyer. The copyright in Alt Heidelberg was taken out in the name of the plaintiff, Emanuel Lederer, as proprietor, in 1902, and the copyright in Grossmama was taken out in the name of Max Dreyer, as author and proprietor, in 1898. The alleged infringements took place in December, 1906, and February-March, 1907, and a verdict was rendered in favor of the plaintiff for $450, of which $200 was for the production of Alt Heidelberg, and $250 was for the production of Grossmama.

Several questions were submitted to the jury, and the court's instructions, save in one particular, were not objected to by either party. If, therefore, the evidence justified the submission of these questions, the verdict has established that the following facts are true:

(1) The respective authors, or proprietors, of the plays in question deposited copies of the title with the Librarian of Congress.

(2) Within a reasonable time thereafter, two copies of each play were also deposited with the Librarian.

(3) These copies were printed from type set within the United States.

(4) When these copies were deposited, the plays had not been published, either here or abroad. They had been produced upon the stage in Germany before that time, but the jury were instructed that such production was not a 'publication' that would defeat the author's right to subsequent copyright in the United States. This instruction was objected to by the defendant's counsel but, as no argument in support of the objection was offered upon these motions, I shall regard it as abandoned.

(5) The verdict also established the fact that the plays publicly produced by the defendant under the titles of 'Alt Heidelberg' and 'Grossmama' were substantially identical with the copyrighted plays, and it followed, therefore, that infringement had been made out as charged in the plaintiff's statement of claim.

It is urged now by the defendant that there was no competent evidence of the facts stated in paragraphs 2, 3, 4, and 5, or, at all events, no sufficient evidence, and therefore that the defendant is entitled, either to a new trial, or to judgment notwithstanding the verdict. I agree with the proposition that the burden of proof is upon the plaintiff to prove his title to copyright, as well as to prove infringement (Chase v. Sanborn, Fed. Cas. No. 2,628), and that the requirements of the federal law are in the nature of conditions precedent and must be strictly complied with (Osgood v. Aloe Instrument Co. (C.C.) 83 F. 470). To use language employed by the court in the latter case:

'Unlike the laws governing the issue of patents to inventors, no certificate is made by the government conferring a copyright upon authors. They, therefore, have no grant conferring upon them in terms a monopoly in or to their productions, and therefore have nothing to show a prima facie case, like that which arises on a suit for infringement of letters patent upon the production of the patent itself. Authors take their rights under and subject to the law, and, when assailed, the burden is upon them to show literal compliance with each and every statutory requirement in the nature of conditions precedent.'

But I think no one can examine the evidence that was offered in this case without coming to the conclusion that sufficient support to require submission to the jury was offered of each of the foregoing facts, and that the verdict was fully justified upon the merits. The chief reliance, now as well as at the trial, is placed upon questions of law, which it is argued require judgment to be entered for the defendant. These questions will receive attention in their order.

First, with regard to the copyright of Alt Heidelberg. This was taken out in the name of the plaintiff, as proprietor, under the real or supposed authority of a contract entered into between the author and him, and the defendant contends that the true construction of this contract gives to the plaintiff nothing more than the stage rights in the play, and does not transfer the proprietary right in the book itself, so as to warrant the plaintiff in taking out the copyright in his own name. But this contention is, I think, answered by the decision the Supreme Court in Belford v. Scribner, 144 U.S. 488, 12 Sup.Ct. 734, 36 L.Ed. 514. In that case Scribner & Co. had taken out a copyright as proprietors of a book of which Marion Harland was the author. In a suit for infringement the defendant set up, inter alia, that the plaintiffs were not the true owners of the copyright, because the author was a married woman when she made the controverted agreement with Scribner & Co., and that her husband was entitled by law to her earnings, of which she had no power to dispose; and contended further, that, even if he had ratified her agreement, the suit should have been in her name as owner in fact of the copyright. The Supreme Court agreed with Judge Blodgett that under the proof the suggestion of a possible marital interest by the husband in his wife's earnings was answered by the acquiescence of all the parties in the claim by Scribner & Co. that they were the proprietors of the copyright; and then went on to say:

'The opinion of the Circuit Court further correctly said: 'It is certain that, if there is any ownership in this work by copyright at all, it is in the complainant, in whose name the copyright was taken and now stands, so far as is shown by the proof in this case. If the law of the domicile of Mrs. Terhune (Marion Harland) entitles her husband to any part of her earnings, that is a matter to be settled between her husband and the complainant, and which the defendants cannot interpose as a defense to a trespass upon the complainant's property rights in this copyrighted book."

A similar remark may, I think, be made with reference to the copyright in Alt Heidelberg. The author and the plaintiff have acquiesced for several years in the plaintiff's proprietorship, and, if the true situation between them differs from the apparent situation, that is matter for their own adjustment, and cannot be interposed as a defense by one who has infringed the rights that the plaintiff holds, either for himself or in trust for the author. The defendant will be fully protected by the verdict and judgment. No one but the plaintiff can sue for a violation of the copyright of Alt Heidelberg, for he is the sole legal proprietor thereof, and it is not easy to see what interest the defendant has in the ultimate disposition of the penalties that may be recovered in the present suit.

But the situation is radically different in relation to the copyright of Grossmama. This was taken out in the name of the author himself, and presumably, therefore, he continues to be the owner, unless there is proof that he has parted with his title. Upon this subject evidence was offered which must now be considered. Under date of October 17, 1898, a written contract was entered into between the author, Max Dreyer, and the plaintiff, which was somewhat crudely translated at the trial as follows:

'Contract between Max Dreyer, in

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