Stecher Lithographic Co. v. Dunston Lithograph Co.

• Decision Date: 23 February 1916
• Citation: 233 F. 601
• Parties: STECHER LITHOGRAPHIC CO. v. DUNSTON LITHOGRAPH CO.
• Court: U.S. District Court — Western District of New York

233 F. 601

STECHER LITHOGRAPHIC CO. v. DUNSTON LITHOGRAPH CO.

United States District Court, W.D. New York.

February 23, 1916

Church & Rich, of Rochester, N.Y. (Frederick F. Church, of Rochester, N.Y., of counsel), for plaintiff.

Kenefick Cooke, Mitchell & Bass, of Buffalo, N.Y. (Christopher Baldy of Buffalo, N.Y., and L. L. Morrill, of Washington, D.C., of counsel), for defendant.

HAZEL District Judge.

This suit in equity was brought to compel the defendant, Dunston Lithograph Company, to account for the profits and damages arising from the infringement of 26 chromos or lithographs and to restrain said defendant from further infringing them. The bill avers that in compliance with the Revised Statutes complainant secured copyrights on certain chromos or lithographs of vegetable products, such as carrots, beets cabbages, radishes, etc.; that in the preparation and publication of such chromos or lithographs large amounts of money were expended; that such chromos were marked copyrighted and bore the date of copyrighting; that the defendant, having notice of such copyrighting, without license or permission from complainant and in violation of the latter's rights, made copies of such chromos, or of substantial portions thereof, in some instances copying the pictures outright, and in other instances merely reversing or transposing them, to the injury of complainant. The proofs support such allegations.

Defendant, in opposition to a decree for complainant, contends (1) that the copyright was invalid for lack of registration in the Patent Office; (2) that 17 of the 26 chromos in suit are shown to have been published without the copyright mark; (3) that the defendant had the legal right to produce pictures of vegetables and use them on seed packages; and (4) that no damages are shown.

1. The copyrights in question were obtained in the year 1908 under the act of 1905, which amended section 4952, and substantially provided that the proprietor of any engraving, cut, print, or photograph, or negative thereof, or of a painting, drawing, or chromo, intended to be perfected as works of the fine arts, should have the sole liberty of vending the same. Section 3 of the act of 1874, which seems not to have been repealed by the act of 1905, provides that in construing the acts the words 'engraving,' 'cut,' and 'print' shall be applied only to pictorial illustrations or works of the fine arts, and that 'no prints or labels designed to be used for any other articles of manufacture shall be entered under the copyright law, but may be registered in the Patent Office. ' Upon carefully reading such provisions I am of the opinion that section 4952 makes a clear distinction between chromos and engravings, cuts, and prints, and as section 3 plainly omits chromos they do not come under the provision relating to registration in the Patent Office. In making the distinction Congress no doubt had in mind the ordinary definition of the word 'chromo' or 'chromo-lithograph,' as a picture produced from drawings on stones; each color being represented by a different stone. This view I think finds support in Hills & Co., Limited, v. Austrich (C.C.) 120 F. 862, and in Hills & Co. v. Hoover (C.C.) 136 F. 701, wherein Judge Lacombe, and later Judge Holland, recognized the distinction between pictures produced from drawings on stones and pictures made from metal plates.

It makes no difference that the pictures in suit are intended for advertising articles of commerce. Louis De Jonge &amp Co. v. Breuker & Kessler Co. (C.C.) 182 F. 150, affirmed 235 U.S. 33, 35 Sup.Ct. 6, 59 L.Ed. 113, or that they possessed little artistic merit. Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 23 Sup.Ct. 298, 47 L.Ed. 460. It is enough that the evidence shows that the pictures...