Maloney v. Stone
| Decision Date | 16 January 1959 |
| Docket Number | Civ. A. No. 57-781. |
| Citation | 171 F. Supp. 29 |
| Court | U.S. District Court — District of Massachusetts |
| Parties | Roger Q. M. MALONEY v. Lester A. STONE, Hampden Novelty Manufacturing Company, Inc. and Andersons & Sons, Inc. |
DiMento & Sullivan, Francis J. DiMento, Boston, Mass., for plaintiff.
Hale & Dorr, Geo. H. Foley, James A. Brink, David Burstein, Charles E. Cunningham, Boston, Mass, for defendant.
This case presents the sole question as to when is the beginning of the period of limitation, or more precisely of laches, for the bringing of a suit for "damages" by a holder of a United States copyright against a defendant corporation which, pursuant to a contract with a third party, manufactures for that third party alleged infringing copies of plaintiff's work designed by that third party.
Plaintiff's inartistic complaint, filed August 8, 1957, seems to make a claim founded solely on the United States copyright laws codified in United States Code, Title 17. The pleading opens with an allegation that this Court has jurisdiction under U.S.C. Title 17, § 101. Plaintiff alleges that in July 11, 1950 he created an original writing "consisting of computations of newspaper page measurements in agate lines and inches"; that since July 11, 1950 all copies of this writing made by plaintiff have been "printed, bound, and published in strict conformity with the provisions under Title 17"; that after July 11, 1950 "defendants the individual Stone and the two corporations infringed said copyright by publishing and placing upon the market a writing which was copied largely from the plaintiff's copyrighted writing"; that "on or about December 15, 1955 the plaintiff deposited copies of said original writing in the copyright office of the United States and received from the Register of Copyrights a certificate of registration." See 17 U.S.C. § 5(a). Plaintiff prays for an injunction, for damages (including profits) and a surrender of infringing copies and all plates for making infringing copies.
The several defendants filed answers.
Then defendant Anderson & Sons, Inc. filed a motion for summary judgment on "the ground that the claim of the plaintiff arose more than two (2) years prior to the filing of the complaint and that the action is therefore barred by the provisions of the applicable statute of limitations, Massachusetts General Laws, Chapter 260, Section 2a." Supporting this motion are two affidavits. They show that Stone, the putative infringer, manager for Hampden Novelty Manufacturing Company, Inc., in December 1954 arranged for the manufacture of "so-called line and inch calculators", the alleged infringing product of Stone's copying. From April 20, 1955 to May 19, 1955 Armstrong manufactured and delivered calculators. By June 7, 1955 Anderson terminated all manufacture of calculators, turned over to Stone and Hampden all materials and plates, and terminated the contract.
The precise issue now presented is solely with respect to the motion of defendant Anderson to be dismissed from this suit on the ground that the claim against it is barred. Since there is no suggestion that Anderson is currently infringing, or has recently infringed plaintiff's copyright, and since Anderson now has no copies or plates relevant to this case, it can hardly be suggested that as against it plaintiff would be entitled to an injunction. And plaintiff's briefs make it abundantly clear that despite the breadth of the prayers of the complaint, he seeks to hold Anderson only for damages and profits, and does not seek injunctive relief against it. Thus, in effect, plaintiff is suing Anderson upon a cause of action sounding in tort for which only monetary relief is sought. The monetary relief sought includes both losses alleged to have been sustained by plaintiff and profits alleged to have been made by Anderson; but though the two species of calculation proceed on a somewhat different footing each is a species of "damages".
The period of limitation or laches for the recovery of damages for infringement of a federally-created right could, of course, have been set by Congress. Momand v. Universal Film Exch., D.C. Mass., 43 F.Supp. 996, 1008, affirmed 1 Cir., 172 F.2d 37. But Congress in the copyright field has chosen not to prescribe a national standard but to accept as the period of limitation or laches the local state law1 prescribed by the state — here Massachusetts — wherein the cause of action is brought. Ibid.; Local Trademarks Inc. v. Price, 5 Cir., 170 F. 2d 715, 717.
But the question is whether Massachusetts has prescribed a period of limitation or laches for this type of recovery.
Massachusetts has a two year period for "actions of tort". Mass.G. L. c. 260, § 2A. And it is true that in Harry Alter Co. v. A. E. Borden Co., D.C. Mass. 121 F.Supp. 941, 946-947, Judge Ford in the year 1954 seems to have regarded a suit for damages for infringement of copyright as an "action" at law within the then applicable Massachusetts statute of limitation. But it is now doubtful whether this assumption is correct. The 1957 opinion of the Court of Appeals in Chapell & Co., Inc. v....
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...selling them to the public. See Mount v. Book-of-the-Month Club, Inc., 555 F.2d 1108, 1110 (2d Cir.1977); Maloney v. Stone, 171 F.Supp. 29, 32 (D.Mass.1959) (Wyzanski, J.). But knowing that he had placed infringing copies in the hands of his dealers Meirick could not sit on his hands while ......
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