Pearson v. Washingtonian Pub. Co.

• Decision Date: 25 April 1938
• Docket Number: No. 6921.,6921.
• Citation: 98 F.2d 245
• Parties: PEARSON et al. v. WASHINGTONIAN PUB. CO., Inc.
• Court: U.S. Court of Appeals — District of Columbia Circuit

98 F.2d 245 (1938)

PEARSON et al. v. WASHINGTONIAN PUB. CO., Inc.^*

No. 6921.

United States Court of Appeals for the District of Columbia.

Decided April 25, 1938.

Elisha Hanson and Eliot C. Lovett, both of Washington, D. C., for appellants.

Gibbs L. Baker and Horace S. Whitman, both of Washington, D. C., for appellants.

Before GRONER, Chief Justice, and STEPHENS and MILLER, Associate Justices.

MILLER, Associate Justice.

This is an appeal from a decree of the District Court of the United States for the District of Columbia holding that a copyright owned by appellee was wrongfully infringed by appellants and that appellee is entitled to damages for such infringement.

The Washingtonian Publishing Co., Inc., appellee, in December, 1931, published an issue of a monthly magazine of general circulation, called The Washingtonian, claiming copyright thereof by means of the usual notice printed therein as required by the Copyright Act of the United States then in force.¹ However, copies of that issue of the magazine were not deposited in the Copyright Office until February 21, 1933 — at which time two copies were deposited and a certificate of registration was obtained. Publication of the magazine The Washingtonian was discontinued after the December 1931 issue.

In August, 1932, appellant Liveright, Inc. published and offered for general sale a book entitled "More Merry-Go-Round" written by appellants Pearson and Allen and printed by appellant Van Rees Press, Inc., one chapter of which included material which is conceded to be practically identical with an article which was included in the December 1931 issue of The Washingtonian. Copyright of the book "More Merry-Go-Round" was claimed by the usual printed notice therein, and on August 26, 1932, copies thereof were deposited in the Copyright Office and a certificate of registration secured. In June, 1933, Liveright, Inc. was adjudged a bankrupt and is not concerned in this appeal.

Chronologically summarized, this means that appellee published and claimed a copyright in December, 1931; appellants published, deposited copies and claimed copyright on the same material eight months later, in August, 1932; appellee deposited copies in February, 1933, fourteen months after its own publication and six months after appellants' publication.

Appellee regards appellants' publication as an infringement. Appellants concede that appellee obtained a copyright,² but insist that its right to recover in the present case is barred because it failed, promptly, to deposit copies of its magazine as required by Section 12 of the Copyright Act, 35 Stat. 1078, as amended (17 U.S.C.A. § 12);³ and because in the meantime appellants had acquired superior intervening rights in the literary matter in dispute.

Appellee, in its brief, says:

"The charge here is that the appellants pirated, plagiarized, and stole the property of the appellee and the claim of intervening rights is equivalent to a confessed thief seeking to establish a right of property in the stolen goods."

On the other hand, appellants say in their brief:

"Under such a construction a publisher of a daily newspaper could include a copyright notice in each issue of his paper but decide that, instead of depositing copies and paying the two-dollar registration fee, all of which would exceed $700 per year, he would merely wait and see if any financially responsible party pirated sic material contained in any one of the issues and, if so, he would proceed to deposit copies of the issue in question, register his claim, and then institute proceedings, . . . Surely, no court would countenance a proceeding under such circumstances . . . ."

And appellee concedes in its brief that no effort was made to deposit copies, as required by the Act, until after counsel were employed to bring suit, thus giving color at least to appellants' innuendo that appellee deliberately waited to see if a financially responsible party would fall into the trap.

We do not wish to be understood, from anything we may say herein, as approving or condoning such practices. Whatever the ethics of the situation may be, and in spite of considerations which may call for professional and public condemnation, the questions which have been presented for our determination in the present case are solely ones of law.

Copyright property under the Federal law is wholly statutory. Bobbs-Merrill Co. v. Straus, 210 U.S. 339, 346, 28 S.Ct. 722, 52 L.Ed. 1086. It is not unusual for statutes to require strict compliance with designated provisions as conditions precedent to the bringing of actions for the enforcement of rights.⁴ In this case the Statute provides (Section 12) that no action shall be maintained for infringement until the provisions of this title with respect to the deposit of copies shall have been complied with. It is argued that this merely postpones "the enforcement of the remedy" and that no matter how long may be the delay in compliance, so soon as compliance takes place the remedy becomes available. The penalty prescribed by Section 13 of the Act, 35 Stat. 1078 (17 U.S.C.A. § 13)⁵ is referred to by appellee as indicating the only purpose of the requirement for prompt deposit of copies. Some support for this argument can be found by giving to the word until⁶ one of its common meanings; by reading it without careful consideration of the rest of the language of Section 12; and by disregarding the major purposes of the Act. But when the word until is considered in its context, not only in the section but in the light of the whole Act, 17 U.S.C.A. § 1 et seq., as it should be, an entirely different result is reached, and a different meaning is properly ascribed to it.⁷

It must be conceded that appellee could not maintain an action for infringement at the time of publication of "More Merry-Go-Round" or for six months thereafter. Fourteen months having elapsed since publication and claim of copyright, and six months having elapsed since the alleged infringement, appellee undertakes to comply with the Statute and thus to remove the restriction which impedes action. What must it do? Section 12 provides that it must promptly deposit two copies. It does not say merely to deposit, but that the deposit must be promptly made; and promptness must be measured from the date of publication. Unless it can be said, therefore, that a delay of fourteen months is promptness, appellee has failed to comply with the act.

It is not contended that the deposit was made promptly in the present case; and there is no basis upon which such a contention could be made. Synonyms for the word prompt, as commonly used, are punctual, ready, expeditious and quick. Its antonyms are dilatory, procrastinating, slow and sluggish. To ascribe to the word a meaning which would describe appellee's action as prompt would be to give it a meaning exactly its opposite.⁸

The copyright laws must be given a reasonable construction and the various sections thereof must be read together with a view to effecting the purposes intended by Congress. Bobbs-Merrill Co. v. Straus, supra; Metro-Goldwyn-Mayer Distributing Corp. v. Bijou Theatre Co., 1 Cir., 59 F.2d 70, 76. The two major purposes of the Act are (1) to secure to the author, or his successors in interest, a monopoly,⁹ more or less in the nature of a reward for his genius and industry (Harris v. Coca-Cola Co., 5 Cir., 73 F.2d 370, certiorari denied, 294 U.S. 709, 55 S.Ct. 406, 79 L.Ed. 1243), as well as for the encouragement of others, similarly as in the case of patents;¹⁰ (2) to give notice to the public that the author or other owner has not abandoned the child of his intellect, or dedicated it to public use.¹¹ We said in Koppel v. Downing, 11 App.D.C. 93, 104:

"The law of copyright, while securing a long continued monopoly, contemplates, and the policy of it requires that the public should have notice, by a true and correct official registry, as to the real author or proprietor entitled to the enjoyment of such monopoly as against the public."

Prompt deposit and registration aid in achieving both purposes. The reason therefor is well stated in Weil, American Copyright Law (1917) 310, as follows:

"The object sought by compelling registration is that third persons, by inquiry, may ascertain whether, or, not, any proposed acts or works would violate any existing statutory copyright. The primary object of requiring the deposit of copies is that the subject matter of works in which copyright is claimed, may be made public and available, for purposes both of information and of avoiding infringement. The purely secondary object is the enrichment of the Library of Congress. The primary purpose would be entirely defeated unless the deposit were made `promptly.' If the only necessary effect of failure to make the deposit, `promptly,' were to prevent the institution of suit, until the deposit was made, the statute would become, as the former English one was justly called, a mere snare for the unwary, who were foolish enough to rely upon absence of registration as showing absence of copyright." And see succeeding pages

An examination of the history of the copyright law brings us to the same conclusion. In its earlier forms the law required deposits to be made within definite periods of time — (1) deposit of title of the copyrighted material before publication and of a copy of the material itself within six months after publication (Act of 1790, 1 Stat. 125); (2) deposit of title before publication and of a copy within three months after publication (Act of 1831, 4 Stat. 437; and Act of 1846, 9 Stat. 106); (3) deposit of a printed copy within one month after publication (Act of 1865, 13 Stat. 540); (4) deposit of title before publication, and of copies within ten days after publication (Act of 1870, 16 Stat. 213); and (5) deposit of title "on or before the day of publication" and deposit of copies "not later than the day of the publication . . . ." Act...