Scribner v. Henry G. Allen Co.

• Decision Date: 16 March 1892
• Citation: 49 F. 854
• Parties: SCRIBNER et al. v. HENRY G. ALLEN CO. SAME v. FUNK et al.
• Court: U.S. District Court — Southern District of New York

49 F. 854

SCRIBNER et al. v. HENRY G. ALLEN CO.

SAME v. FUNK et al.

United States Circuit Court, S.D. New York.

March 16, 1892

Rowland Cox, for plaintiffs.

James A. Whitney, for defendants.

SHIPMAN District Judge.

These are demurrers to the plaintiff's bills in equity to restrain the alleged infringement of a copyright. The matters demurred to are the same in each bill, and the demurrers are mutatis mutandis, identical. Each bill alleges that the authors of a book entitled 'Scribner's Statistical Atlas of the United States' assigned all their right title, and interest therein, before publication and before depositing a printed title thereof with the proper officer to Charles Scribner, who then constituted and was the sole member of the firm of Charles Scribner's Sons, who, being such sole member, did the various acts required to copyright the book in the name of Charles Scribner's Sons. Subsequently Arthur H. Scribner became a member of said firm which has continued to publish said book. The main ground of the demurrer is that no valid copyright exists, because Charles Scribner was engaged in business under a fictitious name, that no lawful justification for the use of said name is alleged, and that he should have caused the copyright to be taken in his individual name. It appears from the bill that the assignee and owner was, for a time, doing business under the name of Charles Scribner's Sons, and during this period he bought the right to obtain a copyright upon the book which he apparently proposed to publish, and did thereafter publish, in said business. At common law individuals are permitted to 'carry on business under any name or style which they may choose to adopt,' (Manham v. Sharpe, 17 C.B., N.S., 422;) and, 'if persons trade or carry on business under a name, style, or firm whatever may be done by them under that name is as valid as if real names had been used,' (1 Lindl. Partn., Ewell's Ed., 208.) In some of the states of this country, the use of a conventional or fictitious firm name is regulated or controlled by codes or statutes. I do not know whether the New York statutes in regard to the filing of certificates apply to the circumstances of Mr. Scribner's case, but, assuming that they do, it was not necessary to aver in the bill that such certificates had been filed. An omission to file a certificate would have no effect upon the title of property which he had bought in...