Smith v. Bartlett
| Decision Date | 29 January 1937 |
| Citation | 18 F. Supp. 35 |
| Parties | SMITH et al. v. BARTLETT. |
| Court | U.S. District Court — District of Maine |
Harry L. Cram and Reginald H. Harris, both of Portland, Me., for plaintiffs.
Daniel McDonald, of Portland, Me., for defendant.
This bill in equity, seeking an injunction and damages for infringement of a copyright, was heard on bill, answer, and proof.
The plaintiffs, doing business under the name of Doll & Smith, took the required statutory steps to copyright their publication called "Publicity Guide for Radio Dealers, Cy Cology Series," and, in 1925, received a certificate of copyright registration.
The publication referred to is a bound collection of about 75 separate pages of cartoons to be used for advertising purposes, each cartoon showing an amusing figure of an old man of the "hayseed" type, referred to as "Cy Cology." The printed matter below the cuts contains some aphorism or droll saying of the old man, all adapted to catch the eye of a person reading a newspaper or magazine in which the cut appears. Each cartoon shows a different pose of the figure, and is printed in the middle of the page with a statement below that a cut, in a size about one and a half by three inches, mounted on wood, will be furnished with reading matter to customers.
The bound collection, which is the subject of the copyright, and of which only one copy is said to be in existence, on the outside cover contains the words "Copyrighted 1925 by Doll & Smith, 450 Fourth Avenue, New York," and on the inside of the cover, which is of paper, a notice that the work is copyrighted.
It was the custom of the plaintiffs to sell the exclusive right to use the cuts and reading matter which they furnished for advertising purposes, and such a right to the use of the so-called Cy Cology material was sold by them to a coal concern in Portland, in 1929, to continue for seventeen years, for a total price of $208. The coal company advertised in a local Portland paper and carried the cuts and advertising matter such as is found in the plaintiffs' bound collection; but in the prints made from the copper cuts furnished by the plaintiffs and published by the coal concern in Portland papers there is nothing showing a claim of copyright and no name of a copyright proprietor, nor does anything of the kind appear on the back or face or any part of the copper cuts based on wood furnished by the plaintiffs. On the cuts published in the newspapers (the cuts being printed from material furnished by plaintiffs and published by their authority), there is, barely discernible, a very small mark near the lower part of the figure, which mark the plaintiffs say is with the letter "c" in a circle. The plaintiffs claim that this mark or symbol is a compliance with the statute as to notice (U.S.C.A. title 17, §§ 9 and 18). It is impossible with the naked eye to identify the marks as such. Even with the use of a miscroscope and some imagination, and with the knowledge of what they are supposed to be, it is not possible to read them with certainty.
Some time after the above publications, the defendant, a young man doing a radio and repair business in Portland under the name of the Bartlett Radio Company, got up some advertising matter of his own, for his own business, in which he used the same figure of the old man found in the bound collection of the plaintiffs and in the published advertisements of the Portland coal concern.
The defendant had no knowledge that this figure was copyrighted and no knowledge that the plaintiffs had any connection with it. He found the copper cut which he used among the effects of his deceased father who had no connection with the plaintiffs.
Upon receiving notice from the plaintiffs that an...
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