Mifflin v. Dutton

• Decision Date: 18 March 1901
• Docket Number: 1232,1290.
• Citation: 107 F. 708
• Parties: MIFFLIN et al. v. DUTTON et al. SAME v. R. H. WHITE CO.
• Court: U.S. District Court — District of Massachusetts

107 F. 708

MIFFLIN et al. v. DUTTON et al.

SAME v. R. H. WHITE CO.

Nos. 1232, 1290.

United States Circuit Court, D. Massachusetts.

March 18, 1901

Elder Wait & Whitman, for complainants.

Andrew Gilhooley and Ralph W. Foster, for defendants.

COLT Circuit Judge.

In Holmes v. Hurst the supreme court held that the serial publication of 'The Autocrat of the Breakfast Table' in the Atlantic Monthly, a periodical magazine, vitiated a copyright of the whole book subsequently obtained by its author, Oliver Wendell Holmes. In the construction of sections 1 and 4 of the act of February 3, 1831, c. 16, the court observed:

'The substance of these enactments is that by section 1 the author is only entitled to a copyright of books not printed and published; and by section 4, that, as a preliminary to the recording of a copyright, he must, before publication deposit a printed copy of the title of such book.'

4 Stat 436.

In the course of its opinion, the court said:

'We have not overlooked the inconvenience which our conclusions will cause, if, in order to protect their articles from piracy, authors are compelled to copyright each chapter or installment as it may appear in a periodical, nor the danger and annoyance it may occasion to the librarian of congress, with whom copyrighted articles are deposited, if he is compelled to receive such articles as they are published in newspapers and magazines; but these are evils which can be easily remedied by an amendment of the law.' 174 U.S. 82, 87, 90, 19 Sup.Ct. 606, 609, 43 L.Ed. 904, 907.

In the two cases at bar it appears from the allegations of the bills that before any copyright was taken out the first 29 of the 42 chapters of 'The Minister's Wooing,' by Harriet Beecher Stowe, were published in the serial numbers of the Atlantic Monthly, beginning with December, 1858, and ending with October, 1859, and that 10 of the 12 parts of 'The Professor at the Breakfast Table,' by Oliver Wendell Holmes, were published in the serial numbers of the same magazine, beginning January, 1859, and ending with October, 1859. In October, 1859, Mrs. Stowe took out a copyright in 'The Minister's Wooing,' as a whole, before its publication. The notice of copyright inserted in the book was as follows:

'Entered according to act of congress, in the year 1859, by Harriet Beecher Stowe, in the clerk's office of the district court of the district of Massachusetts.'

After the publication of the book, the remaining 13 chapters of 'The Minister's Wooing' were published in the November and December numbers of the Atlantic Monthly for the year 1859. The publishers took out a copyright in these numbers of the magazine.

The notice of copyright on the page following the title page was as follows:

'Entered according to act of congress, in the year 1859, by Ticknor & Fields, in the clerk's office of the district court of the district of Massachusetts.'

By section 5 of the act of February 3, 1831, (4 Stat. 436), it is provided:

'That no person shall be entitled to the benefit of this act, unless he shall give information of copyright being secured, by causing to be inserted, in the several copies of each and every edition published during the term secured on the title-page, or the page immediately following, if it be a book, * * * the following words, viz.' 'Entered according to act of congress, in the year . . ., by A. B., in the clerk's office of the district court of . . . .'

Upon the authority of Holmes v. Hurst, supra, the first 29 chapters of 'The Minister's Wooing' became public property, and we have only to consider whether a valid copyright exists in the remaining 13 chapters. It is true that Mrs. Stowe, by taking out a copyright in her whole work in October, 1859, secured a valid copyright in these 13 chapters. The question is, has she...