Moger v. WHDH, INC.

• Decision Date: 01 May 1961
• Docket Number: Civ. A. No. 60-160.
• Citation: 194 F. Supp. 605
• Parties: Arthur I. MOGER, Plaintiff v. WHDH, INC., et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

194 F. Supp. 605

Arthur I. MOGER, Plaintiff v. WHDH, INC., et al., Defendants.

Civ. A. No. 60-160.

United States District Court D. Massachusetts.

May 1, 1961.

William Herbits, Max James Allen, Boston, Mass., Robert B. Russell, C. Yardley Chittick, Boston, Mass., for plaintiff.

John Cancian, Boston, Mass., for all defendants except Ralph Edwards Productions, Inc.

SWEENEY, Chief Judge.

The defendant in this action for copyright infringement has filed a motion for summary judgment on the grounds that the statutory notice of copyright on the plaintiff's works are defective and the defendants' television program does not, as a matter of law, infringe the plaintiff's materials. In the view I take of the defendants' first argument it will be unnecessary to consider the second.

In his complaint the plaintiff alleges that for many years he has been actively engaged in the "newspaper, radio, theatre and television fields as a writer, an artist, a promoter and `idea man'" and that in 1934 he conceived an idea for a puzzle game which he entitled "About Faces". The game consisted of cartoons of famous persons with clues as to their identity and "was published in copyrighted editions of the Hearst Newspapers in Boston during 1934 and 1935". Also "on July 2, 1935, plaintiff caused to be published a book entitled `About Faces, the New National Pastime, Series 1'", which was a compilation of various materials previously published in the newspapers and similar materials involving identification of photographs.

Insofar as the plaintiff relies on the copyright of the newspaper, uncontradicted affidavits filed by the defendants show that with the exception of thirteen issues, the papers did not during this period contain any form of copyright notice. But even if all editions had been properly copyrighted, that would afford no protection to the plaintiff, Mifflin v. R. H. White Co., 1903, 190 U.S. 260, 23 S.Ct. 769, 47 L.Ed. 1040. Copyright must be obtained by the proprietor of the material and cannot be derived from a general copyright on a magazine or other periodical in which the material may be published.

While the plaintiff apparently does not assert any copyright protection for the newspaper cartoons themselves, I shall discuss this aspect of the motion, since the defect can easily be cured by amendment.

The affidavits referred to above indicate that the cartoons appeared in the Boston Evening American during the period from September 4, 1934, to September 18, 1935. They carried the title "About Faces by Art Moger" at the top and somewhere within the artwork appeared the name "Ned Jones". Except for three cartoons, which carried no copyright notices whatever, each contained at the very bottom the following notation: "© 1934" or "© 1935".

Section 18 (now 19) of Title 17, U.S.C. provides, in pertinent part, as follows:

"The notice of copyright required by section 10 of this title shall consist either of the word `Copyright,' the abbreviation `Copr.', or the symbol ©, accompanied by the name of the copyright proprietor * * *."

The notice on plaintiff's cartoons clearly does not comply with the statutory mandate, in that the symbol © is not accompanied by plaintiff's name. Buck v. Liederkranz, D.C.E.D.Pa.1937, 34 F. Supp. 1006; ...