National Comics Publications v. Fawcett Publications
| Decision Date | 30 August 1951 |
| Docket Number | Docket 21832.,No. 197,197 |
| Citation | 191 F.2d 594 |
| Parties | NATIONAL COMICS PUBLICATIONS, Inc. v. FAWCETT PUBLICATIONS, Inc. et al. |
| Court | U.S. Court of Appeals — Second Circuit |
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Phillips, Nizer, Benjamin & Krim, New York City (Louis Nizer, Walter S. Beck, Paul Martinson, and Seymour Shainswit, all of New York City, of counsel), for plaintiff-appellant.
Wallace H. Martin, and DeWitt, Van Aken & Nast, all of New York City, Macdonald DeWitt, Harry H. Van Aken, Marion L. Severn, Robert Bonynge, all of New York City (Nims, Verdi & Martin, New York City, of counsel), for defendant Fawcett Publications, Inc.
Meyer H. Lavenstein, New York City (Theodore R. Black, Charles E. Oberle, New York City, of counsel), for the Republic defendants-appellees.
Before CHASE, FRANK and L. HAND, Circuit Judges.
The plaintiff appeals from a judgment, dismissing after trial its complaint against Fawcett Publications, Inc., and Republic Pictures Corporation — together with its affiliate, Republic Productions, Inc. — in an action based upon the infringement of its copyrights. The appeal of the Fawcett Company is from that part of the judgment which denied it any allowance for its attorneys' fees. The "opinion and decision" of the district court is reported in 93 F. Supp. 349, and we shall not repeat the substance of the controversy which is there stated or the facts found, which we accept in so far as we do not indicate the contrary. In referring to the parties we shall use the same abbreviations as the Judge: that is, we shall call the plaintiff and its predecessors collectively, "Detective"; the Fawcett Company, "Fawcett"; and the two Republic Companies, "Republic." We shall also call the McClure Newspaper Syndicate, "McClure." The judge dismissed the complaint because he held that "Detective" had "abandoned" its right to any copyrights in "Superman," and, having so decided, he found it unnecessary to decide whether "Republic" had infringed the copyrights, or whether, if it had, it could recover against "Fawcett" upon a contract between the two in which "Fawcett" agreed to hold "Republic" harmless for its use of the pictures in suit. On the other hand he found that, in publishing the exploits of "Captain Marvel" in "Whiz Comics" and its other magazines, "Fawcett" copied from "strips" — a "strip" consists of a series of pictures, carrying legends — which had appeared in "Action Comics," and had done so with the degree of detail which in Detective Comics v. Bruns Publications, 2 Cir., 111 F.2d 432, we found to infringe earlier copyrights of "Superman" by another plagiarist. The evidence does much more than show that this finding was not "clearly erroneous"; it leaves no possible doubt that the copying was deliberate; indeed it takes scarcely more than a glance at corresponding "strips" of "Superman" and "Captain Marvel" to assure the observer that the plagiarism was deliberate and unabashed. Whether "Fawcett" copied only from "Action Comics" in the end makes no difference, as will appear; but we shall assume arguendo that at times it also made use of "Detective's" other magazine, "Superman."
The judge based his decision upon the ground that "Detective" had "abandoned" the copyrights in suit, and it is necessary at the outset to distinguish between "abandonment," strictly speaking, and what for convenience we shall call "forfeiture." We do not doubt that the "author or proprietor of any work made the subject of copyright" by the Copyright Law1 may "abandon" his literary property in the "work" before he has published it, or his copyright in it after he has done so; but he must "abandon" it by some overt act which manifests his purpose to surrender his rights in the "work," and to allow the public to copy it. There was no evidence in this case of any such an intent on the part either of "Detective" or "McClure"; indeed, although "McClure's" negligent omissions may have invalidated many of the copyrights in suit, the very fact that it continuously attempted to publish "strips" with some sort of copyright notice affixed, however imperfect that may have been, is conclusive evidence that it wished to claim a copyright upon them; and indeed it would have had no conceivable purpose in allowing its rights to lapse. It is of course true that the publication of a copyrightable "work" puts that "work" into the public domain except so far as it may be protected by copyright. That has been unquestioned law since 1774;2 and courts have often spoken of it as a "dedication" by its "author or proprietor." That, however, is a misnomer, for "dedication," like "abandonment," presupposes an intentional surrender, which is in no sense necessary to the "forfeiture" of a copyright. An author, whose work is "forfeited," need have had no such purpose, and ordinarily does not; it was indeed long doubtful whether he did "forfeit" his rights by publication, and when it was settled that he did, the result was a consequence, imposed invitum upon him because of his failure to comply with the prescribed formalities. In the case at bar this confusion has led to the erroneous conclusion that because "McClure" with "Detective's" supposed acquiescence may have been negligent in protecting the copyrights upon many of the "strips" in suit, "Detective" abandoned its right to copyright all pictorial portrayals of the exploits of "Superman." Since it did nothing of the kind, the case can be disposed of only by determining the validity of the copyright on each "strip" separately, and we shall state what we deem the essential factors in such a determination.
"Detective" "affixed" proper notices upon all issues of "Action Comics" and upon its other magazine, "Superman," as well, with the possible exception of Numbers 5 and 6 — of which more hereafter. We agree with the judge that the publication in "Superman" under the copyright date, "1939," of "strips" which had already appeared in 1938 in "Action Comics," did not "forfeit" the copyrights upon those "strips," and our consideration may therefore be limited to the acts of "McClure" and any asserted acquiescence of "Detective." Apparently, "McClure" borrowed some "strips" from "Action Comics," and published them in its "syndicated" newspapers; but the great bulk of the "strips" in suit were those which "McClure" itself produced under the contract of September 22, 1938, and the original copyrights on which it took, or tried to take, in its own name. Before considering the effect of "McClure's" conduct upon either the copyrights of the borrowed "strips," or upon those produced under the contract, it will be clearer to consider the relations between "McClure" and "Detective" which the contract itself created. It begins by giving "McClure" an eight months option upon the "newspaper syndication of a daily strip * * * entitled `Superman.'" "Detective" promises to continue to pay the salaries of the "artists," Siegel and Shuster, who were already in its employ; but it "agrees to permit them to supply `Superman' strips exclusively to us for syndication * * * for a minimum period of five years after June 1, 1939," with an option for an added period of five years. "McClure" is to have "reasonable editorial supervision of the feature which the Artists agree to maintain at the standard shown in the sample submitted." "The material contained in the feature which we syndicate will be copyrighted in our name, but copyright reverts to Detective at the termination of this contract." "McClure" agrees "to provide Detective with all the original drawings of the `Superman' strip, so that said drawings may be used by Detective in the publication, `Action Comics,' six months after newspaper release without charge or for any substituted magazine."
The judge, apparently without suggestion from either party, construed this agreement to be a "joint venture," and for that reason held that "McClure's" failure to affix the "required" notices to the "strips" had the same effect upon the copyrights in suit as though "McClure" were the "proprietor." We agree with the result, but because we think that "McClure" was indeed the "proprietor" of the copyrights, and for that reason we do not find it necessary to decide whether the contract constituted a "joint venture," — incidentally one of the most obscure and unsatisfactory of legal concepts. Our reasons for this interpretation are two: (1) it is only on the assumption that "McClure" was the "proprietor" of the "work" — i. e. of the "strips" prepared by the "Artists" under the contract — that any valid copyrights could be secured by publication in the "syndicated" newspapers; and, (2), the text of the contract forbids any other conclusion. In support of the first point we need invoke no more than § 10. Section 9 declares that it is the "author or proprietor of any work" who is entitled to its copyright, § 10 declares that he may obtain it by "publication" with the "required" notice "affixed," and § 19 prescribes what the notice must be. Unless therefore "McClure" was a "proprietor" of the "strips" the purpose of the parties to copyright them was defeated; and we ought to construe the words to effect that purpose, so far as it is possible to do so. In support of the second point we say that the text itself comports only with the conclusion that "McClure" was to be the "proprietor." As has appeared above, the "material" — the "strips" — is to be copyrighted in "McClure's" name, but the copyright "reverts to Detective at the termination of this contract." That necessarily meant that, until the contract came to an end, "McClure" was to have the "title" to the copyrights, for property cannot "revert" from one person to another unless the person from whom it "reverts" holds title to it. Even though he holds it in trust, its fate depends upon his acts, not upon his beneficiary's. The sentence which...
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