Marx v. United States, 8696.

• Decision Date: 12 April 1938
• Docket Number: No. 8696.,8696.
• Citation: 96 F.2d 204
• Parties: MARX v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

96 F.2d 204 (1938)

MARX v. UNITED STATES.

No. 8696.

Circuit Court of Appeals, Ninth Circuit.

April 12, 1938.

Loyd Wright, Chas. E. Millikan, and Clyde Thomas, all of Los Angeles, Cal., for appellants.

Ben Harrison, U. S. Atty., and Carl Eardley and Russell K. Lambeau, Asst. U. S. Attys., all of Los Angeles, Cal., for appellee.

Before DENMAN, MATHEWS, and HEALY, Circuit Judges.

HEALY, Circuit Judge.

Appellants were indicted for the crime of infringing and aiding and abetting the infringement of a copyrighted dramatic composition. From a judgment of conviction, they appeal.

Two brothers, Garrett and Carrol Graham, were authors of a radio script, which Garrett Graham copyrighted under the provisions of section 11 of the Copyright Act, as amended by 37 Stat. 488, 17 U.S.C.A. § 11. The composition, entitled "The Hollywood Adventures of Mr. Dibble and Mr. Dabble," was placed with an agent in an effort to secure a radio sponsor. In October, 1934, the agent mailed a copy of the script to Groucho Marx, one of the appellants. In May following Marx wrote the agent, expressing interest in the script and a belief that, with some rewriting, it could be made into good radio material. The letter inquired how much money the authors wanted and whether they would be willing to work with a collaborator.

In August, 1935, the Graham brothers had a conference at Hollywood with the appellants and one Boasberg, their "gag man." At that time the copyrighted composition was gone over and some changes made in it, these being suggested by Boasberg. There is evidence that during this conference appellants were informed that the script had been copyrighted. For several months afterwards negotiations were carried on with prospective sponsors, but nothing came of them.

A year later the appellants made arrangements with the distributors of Camel cigarettes for a broadcast, for which appellants were to supply the script. On September 1, 1936, they broadcast a lengthy program which included in somewhat altered but plainly recognizable form the copyrighted material which had been submitted by the Grahams.

Appellants testified that at the time of the broadcast they had forgotten the Graham composition. They say that Boasberg furnished the script used on the air, and supposing him to be the author they paid him for it. The defense on the merits was that if the composition was pirated, it was due to accident and not to design.

The composition of which infringement is charged was copyrighted under section 11 of the Copyright Act, the pertinent portions of which are shown on the margin.¹ It is contended that this section is unconstitutional. The argument is that no duration is prescribed for copyrighted works of which copies are not reproduced for sale; and that section 8, cl. 8, of article 1 of the Constitution empowers Congress to secure to authors and inventors for a limited time, only, the exclusive right to their respective writings and discoveries.

The only time limit prescribed by the act is that provided in section 23, 17 U.S.C.A. § 23. This declares that "the copyright secured by this act title shall endure for twenty-eight years from the date of first publication." It is claimed that Congress has failed to provide the duration of copyrights secured under section 11, and has thus without constitutional authority undertaken to grant copyrights in such instances in perpetuity.

Congress manifestly intended to extend the benefits of the copyright laws to authors of unpublished works, as well as to those whose works are published.² It is not to be assumed that a more extended measure of protection was intended to be given the former than the latter. Legislative enactments are to be construed, if possible, in such way as to render them constitutional. New York Central & H. R. R. Co. v. United States, 212 U.S. 481, 29 S.Ct. 304, 53 L.Ed. 613. The particular act has been on the statute books since 1909, and so far as we know has not heretofore been subjected to attack. Long aquiescence in the constitutionality of legislation creates a strong presumption in favor of its validity.

The word "publication" has no definite and fixed meaning. "The word is legally very old, and of no one certain meaning. * * * The thought, however, running through all the uses of the word, is an advising of the public, a making known of something to them for a purpose." Associated Press v. International News Service, 2 Cir., 245 F. 244, 250, 2 A.L.R. 317.

As used in section 23 of the act, the word may reasonably be thought to mean one thing as related to published works and another as related to copyrighted works of which copies are not reproduced for sale. Section 62, 17 U.S.C.A. § 62, provides that "in the interpretation and construction of this act title `the date of publication' shall in the case of a work of which copies are reproduced for sale or distribution be held to be the earliest date when copies of the first authorized edition were placed on sale, sold, or publicly distributed by the proprietor of the copyright or under his authority." The term "date of publication" as applied to works of which copies are not reproduced for sale is not defined. Perhaps definition was thought unnecessary in such cases, as the date of deposit is in all instances determinable without difficulty.

It would appear that Congress intended that the time limit prescribed by section 23 should have application to all copyrights secured by the act. This view is strengthened by reference to section 60, 17 U.S.C.A. § 60, authorizing the destruction by the Librarian of Congress and the Register of Copyrights of articles not desired to be preserved in the permanent file. The section concludes with the proviso that "No manuscript of an unpublished work shall be destroyed during its term of copyright without specific notice to the copyright proprietor of record, permitting him to claim and remove it." Italics supplied.

In view of the declared purpose to limit all copyrights to twenty-eight years, section 23 should be construed, in the case of works of which copies are not reproduced for sale, as having reference to the date of deposit.

It is claimed that the script copyrighted is not a complete dramatic composition. Since section 11 requires the deposit of one complete copy, with claim of copyright, it is said that there has been no valid copyright; hence there could be no infringement.

Rule 20 of the Rules and Regulations of the Copyright Office, 17 U.S.C.A. following section 53, sheds substantial light on the true meaning of the requirement. It provides, in part, "The entire work in each case should be deposited. It is not sufficient to deposit a mere outline or epitome, or, in the case of a play, a mere scenario, or a scenario with the synopsis of the dialogue." The skit in question is not a summary or outline. The composition is a complete episode in itself. While it was intended to constitute the first of a series of connected episodes to be broadcast at intervals, it was the only one which the authors had written or composed.

It is urged that the indictment is insufficient in that it fails to charge a "copying" of the composition. Harold Lloyd Corp. v. Witwer, 9 Cir., 65 F.2d 1, is cited as authority for the proposition...