Louis Dejonge & Co. v. Breuker & Kessler Co.
| Decision Date | 06 November 1911 |
| Docket Number | 26 (1,521). |
| Citation | 191 F. 35 |
| Court | U.S. Court of Appeals — Third Circuit |
| Parties | LOUIS DEJONGE & CO. v. BREUKER & KESSLER CO. |
Seward Davis, for appellant.
Frank S. Busser, for appellee.
Before GRAY, BUFFINGTON, and LANNING, Circuit Judges.
In this case the Circuit Court decided (182 F. 150) that a painting if it possess artistic merit and be suitable, also, for use as a design, may, at the owner's election, be protected either by copyright or by patent. On this broad question we express no opinion. The case before us can be disposed of on the ground that, assuming that the complainant's painting is such a one, the statutory conditions precedent to the investiture of the right to protection under the copyright law have not been complied with. For 75 years it has been the settled law of this country that protection under the copyright law is granted only to those who perform the conditions essential to a perfect copyright title. Wheaton v. Peters, 8 Pet. 591, 665, 8 L.Ed. 1055; Merrell v. Tice, 104 U.S 557, 560, 26 L.Ed. 854; Callaghan v. Myers, 128 U.S 617, 652, 9 Sup.Ct. 177, 32 L.Ed. 547; Thompson v. Hubbard, 131 U.S. 148-150, 9 Sup.Ct. 710, 33 L.Ed. 76; Higgins v. Keuffel, 140 U.S. 428, 11 Sup.Ct. 731, 35 L.Ed. 470; Pierce & Bushnell Mfg. Co. v. Werckmeister, 72 F. 54, 18 C.C.A. 431; Osgood v. A. S. Aloe Instrument Co. (C.C.) 83 F. 470; Freeman v. Trade Register (C.C.) 173 F. 419. Copyright protection is wholly statutory, and one who claims it must prove affirmatively his performance of all the statutory conditions precedent to his right of action.
In the case before us the subject of the alleged copyright is a painting. Section 4952 of the Revised Statutes (U.S. Comp St. 1901, p. 3406) gives to each author or proprietor of a painting, upon complying with the provisions of the chapter concerning copyright, the sole liberty of copying and vending the same. The first section of the act of June 18, 1874, c. 301, 18 Stat. 78 (U.S. Comp. St. 1901, p. 3411), which supersedes section 4962 of that chapter, declares that no person shall maintain an action for the infringement of his copyright, 'unless he shall give notice thereof, * * * if a * * * painting, * * * by inscribing upon some visible portion thereof, or of the substance on which the same shall be mounted, the following words,' etc. This language means that each reproduction or copy of the painting must...
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