Societe Des Films Menchen v. Vitagraph Co. of America

• Decision Date: 10 April 1918
• Docket Number: 206.
• Citation: 251 F. 258
• Parties: SOCIETE DES FILMS MENCHEN v. VITAGRAPH CO. OF AMERICA et al.
• Court: U.S. Court of Appeals — Second Circuit

251 F. 258

SOCIETE DES FILMS MENCHEN v. VITAGRAPH CO. OF AMERICA et al.

No. 206.

United States Court of Appeals, Second Circuit.

April 10, 1918

Rogers & Rogers, of New York City (Gustavus A. Rogers and Saul E Rogers, both of New York City, of counsel), for appellant.

Seabury Massey & Lowe, of New York City (W. M. Seabury, of New York City, of counsel), for appellees.

Before ROGERS and HOUGH, Circuit Judges, and LEARNED HAND, District judge.

HOUGH Circuit Judge (after stating the facts as above).

(1, 2) This action must be based on violation of some copyright owned by plaintiff, and be brought by virtue of the statute regulating copyrights, or it asserts that defendants are contravening some equitable right of plaintiff and rests jurisdiction on diversity of citizenship. The language of the bill, construed by the contracts appended to and made part thereof, leaves us in considerable doubt as to the pleader's intention.

Viewed as a copyright bill it must rest either on the registration of 1909 as to the drama or 'stage play,' or that of 1916, by Cromelin, of the motion picture photoplay. In either aspect it falls on the face of the pleading, because as to the first assumption there is no endeavor to show or allege ownership of the copyright of 1909, or to negative as to defendant's production the fact that there may be a separable and several copyrightable property in the photoplay, though it tells substantially the same story as does the earlier stage play. Harper v. Kalem, 169 F. 61, 94 C.C.A. 429, affirmed 222 U.S. 55, 32 Sup.Ct. 20, 56 L.Ed. 92, Ann.Cas. 1913A, 1285. In respect of the second supposition, the registration by Cromelin is, as pleaded, void, for under the act no power exists in an 'agent' to copyright anything; that privilege is reserved to 'authors or proprietors.' Act March 4, 1909, c. 320, Sec. 8, 35 Stat. 1077 (U.S. Comp. Stat. Sec. 9524).

The only meaning we can extract from the bill-- if it does not fail for lack of ownership of any copyright, nor rest on that statute-- is that plaintiff believes and intends to assert that defendants are enjoying profits from a film or the story depicted thereon, made by the London Film Company, and by that concern permitted to be sold and exhibited in the United States in violation of the series of contracts above summarized.

But it is not so pleaded; on the contrary, the bill declares that months after Cromelin's registration of...