Richard Bong v. Alfred Campbell Art Company

• Decision Date: 24 May 1909
• Docket Number: No. 150,150
• Citation: 16 Ann.Cas. 1126,53 L.Ed. 979,29 S.Ct. 628,214 U.S. 236
• Parties: RICHARD BONG, Piff. in Err., v. ALFRED S. CAMPBELL ART COMPANY
• Court: U.S. Supreme Court

214 U.S. 236

29 S.Ct. 628

53 L.Ed. 979

RICHARD BONG, Piff. in Err.,

v ALFRED S. CAMPBELL ART COMPANY.

No. 150.

Argued and submitted April 15, 1909.

Decided May 24, 1909.

Mr. Max J. Kohler for plaintiff in error.

[Argument of Counsel from pages 237-242 intentionally omitted] Mr. Geore Ryall for defendant in error.

[Argument of Counsel from page 242 intentionally omitted]

Mr. Justice McKenna delivered the opinion of the court:

This is an action under the copyright statutes to recover penalties and forfeitures for the infringement of a copyright of a painting.

The complaint shows the following facts: Plaintiff in error (as he was plaintiff in the trial court, we shall refer to him hereafter as plaintiff, and to defendant in error as defendant) was a citizen and subject of the German Empire and resident of the city of Berlin, that nation being one which permits to citizens of the United States the benefit of copyright on substantially the same basis as its own citizens. It is a party to an international agreement which provides for reciprocity in the granting of copyright, by the terms of which agreement the United States may, at its pleasure, become a party, the existence of which condition has been determined by the President of the United States by proclamation duly made. 27 Stat. at L. 1021. The defendant is a New Jersey corporation doing business in New York under the laws of the latter state.

In 1899 one Daniel Hernandez painted and designed a painting called 'Dolce Far Niente,' he then being a citizen and subject of Spain, which nation permits the benefit of copyright to citizens of the United States on substantially the same basis as its own citizens, as has been determined by the proclamation of the President of the United States. 29 Stat. at L. 871. Prior to November 8, 1902, plaintiff became the sole proprietor of said painting by due assignment pursuant to law. About said date plaintiff applied for a copyright, in conformity with the laws of the United States respecting copyrights, before the publication of the painting or any copy thereof. Plaintiff inscribed, and has kept inscribed, upon a visible portion of the painting, the words 'Copyright by Rich. Bong.' and also upon every copy thereof. By reason of the premises, it is alleged, plaintiff became and was entitled, for the term of twenty-eight years, to the sold liberty of printing, reprinting, printing, publishing, and vending the painting. A violation of the copyright by defendant is alleged by printing, exposing for sale, and selling, copies of the painting under the name of 'Sunbeam,' by Hernandez, and that defendant has in its possession over 1,000 copies. By reason of the premises, it is alleged, and under § 4965 of the Revised Statutes of the United States, as amended by the act of March 2, 1895 [28 Stat. at L. 965, chap. 194, U. S. Comp. Stat. 1901, p. 3414], defendant has forfeited the plates on which the painting is copied and every sheet thereof copied or printed, and $10 for every copy of the same in its possession and by it sold or exposed for sale, not more, however, than $10,000, whereof one half shall go to plaintiff and the other half to the United States. Judgment of forfeiture is prayed.

Defendant snswered, admitting that it was a corporation, as alleged, and was doing business in New York. It denied, either absolutely or upon information and belief, all other allegations.

The court directed a verdict for the defendant, counsel for the plaintiff having stated in his opening, as it is admitted, that he would offer no evidence to establish the citizenship of Hernandez, and would not controvert the statement made by the defense that he was a citizen of Peru (it was alleged in the complaint that he was a citizen of Spain), as to which country the President had issued no copyright proclamation. It is also admitted that plaintiff never owned the 'physical painting.' There was introduced in evidence a conveyance of the right to enter the painting for copyright protection in America, and the exclusive right of reproduction in colors, and of engraving, etching, lithography in black and in colors. The right of photography and reproduction by all photographic monochrome processes was reserved.

The ruling of the circuit court, and that of the court of appeals sustaining it, were based on the ground that Hernandez, being a citizen of Peru, and not having the right of copyright in the United States, could convey no right to plaintiff. Plaintiff attacks this ruling, and contends that the act of March 3, 1891 [26 Stat. at L. 1106, chap. 565, U. S. Comp. Stat. 1901, p. 3406], 'confers copyright where the person applying for the same as proprietor or assign of the author or proprietor is a subject of a country with which we have copyright relations, whether the author be a subject of one of those countries or not.'

Whatever strength there is in the contention must turn upon the words of the statute conferring the copyright. Section 4952 of the Revised Statutes, as amended by the act of March 3, 1891 [26 Stat. at L. 1107, chap. 565, U. S. Comp. Stat. 1901, p. 3406] (1 U. S. Rev. Stat. Supp. 951), reads as follows:

'The author, inventor, designer, or proprietor of any book, map, chart, . . . painting . . . and the executors, administrators, or assigns of any such person, shall, upon complying with the provisions of this chapter, have the sole liberty of printing, reprinting, publishing, completing, copying, executing, finishing, and vending the same,' etc.

Other sections prescribe the proceedings to be taken to secure copyright, and § 13 provides as follows:

'That this act shall only apply to a citizen or subject of a foreign state or nation when such foreign state or nation permits to citizens of the United States of America the benefit of copyright on substantially the same basis as its own citizens; or when such foreign state or nation is a party to an international agreement which provides for reciprocity in the granting of copyright, by the terms of which agreement the United States of America may, at its pleasure, become a party to such agreement. The existence of either of the conditions aforesaid shall be determined by the President of the United States by proclamation, made from time to time, as the purposes of this act may require.' 1 U. S. Rev. Stat. Supp. 954.

Plaintiff urges that he is 'the 'assign' of the author and proprietor of the painting . . . and being himself a 'citizen or subject of a foreign nation' with which we have copyright relations,' the condition of the statute is satisfied, and his copyright is valid, though Hernandez was not such citizen or subject. In other words, though the author of a painting has not the right to copyright, his assignee has if he is a citizen or subject of a foreign state with which we have copyright relations, these being, it is...