Lumiere v. Robertson-Cole Distributing Corporation

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Citation280 F. 550
Docket Number190.
Decision Date27 March 1922

Almy Van Gordon & Evans, of New York City (Don R. Almy, of New York City, of counsel), for appellant.

De Witt & Mulqueen, of New York City (Benjamin P. De Witt, of New York City, of counsel), for appellee.

Before ROGERS and MANTON, Circuit Judges, and KNOX, District Judge.

MANTON Circuit Judge.

In this action for infringement of copyright, these facts are established. The appellant is a photographer. The Robertson-Cole Company was a producer of motion pictures, and employed Carpentier, a pugilist, to appear as an actor in motion pictures. The appellee is a distributor of motion pictures. One Adolfi was employed by the Robertson-Cole Company to direct the taking of the motion pictures in which this pugilist was to appear. The contract of employment was in the name of the Territorial Sales Corporation. Robertson-Cole Company guaranteed the contract to Carpentier. Adolfi was, for all practical purposes, in the employ of the Robertson-Cole Company. The contract itself was guaranteed by the Robertson-Cole Company. Cole, a member of this firm, was president of the Territorial Sales Company and the partnership owned all the corporation stock. Adolfi's authority permitted him to engage Carpentier. One Letendre was associated with, or interested, at least, as an agent of the appellant. He and Adolfi made the contract for taking the pictures of Carpentier. The evidence satisfactorily shows that the pictures of Carpentier in question were taken on behalf of the Robertson-Cole Company to be used by it for the purpose of advertising the motion pictures. It appears that Adolfi's business was known to both the appellant and Letendre when it was arranged to take the picture at the appellant's studio, and it is declared that Adolfi made it plain that the Robertson-Cole Company would pay for the pictures.

Before making the appointment with the appellant to take the pictures, Adolfi went to the office of the Robertson-Cole Company and there talked with the appellant on the telephone and made an appointment to bring Carpentier to appellant's studio. When this was done, Carpentier was accompanied by his manager and an interpreter, for he did not speak English. Before going to the studio, Adolfi went to the Biltmore Hotel in New York, where the pugilist and his manager were staying, and where desirable costumes were selected in which to have the pugilist photographed. These were taken to appellant's studio and were used in the poses and pictures taken. Such costumes appeared on the pugilist in the pictures which were exhibited later. It was apparent that the photographic work was for motion picture purposes. When the appellant's agent, Letendre, desired to have Carpentier sign a letter giving the appellant the copyright privilege for the photographs, instead of presenting this letter to Carpentier or his manager, who were both present at the time, it was presented to Adolfi, which is a significant fact that the appellant regarded Adolfi as the person in charge of the enterprise. After the photographs were taken, the finished prints were sent to the Robertson-Cole Company, although at that time no arrangement had been made as to price for the work. The Robertson-Cole Company paid the sum of $809.50 for 3,190 copies of the finished photographs. It is thus apparent that the Robertson-Cole Company bought the photographs and paid the customary price therefor. It also appears that $57 were paid for developing negatives of photographs, which were later used by the Robertson-Cole Company.

This testimony disproves the claim of the appellant that the photographs were taken at his expense. There is in the record an admission by the appellant that the photographs belong to the Robertson-Cole Company. The pugilist's manager understood that the pictures were taken for the Robinson-Cole Company. He did not understand that the appellant secured a copyright. After Adolfi left the studio, the appellant and his agent prepared another letter for Carpentier to sign, and on April 3d they went to Baltimore, and there endeavored to induce the pugilist's manager to sign this letter authorizing the appellant to copyright the pictures. Such a letter was signed, but it is not clear that the pugilist or his manager, neither of whom could speak English, had knowledge of the contents or the effect of the letter.

The testimony of the appellant and his agent, Letendre, in endeavoring to maintain his claim that he, by consent of Carpentier, took the pictures at his expense with the right to copyright the same, is unsatisfactory. In the affidavit submitted on an application for a...

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