American Tobacco Co. v. Werckmeister

PER CURIAM. It is contended that plaintiff had no legal right to take a copyright, that he was not, within the meaning of section 4952 [U. S. Comp. St. 1901, p. 3406], an “assign” of the author, and that ho one but the author or proprietor of the original painting is entitled, to take a copyright. This point has been fully discussed by Judge Putnam in Werckmeister v. Pierce & Bushnell Co. (C. C.) 63 Fed. 455, and by Judge Holt in Werckmeister v. Am. Lithographic Co. (C. C.) 142 Fed. 827. We concur in their conclusions, and are of the opinion that plaintiff secured a statutory copyright. It is .next contended that plaintiff has no right to maintain the action because of omission to give the. notice of copyright prescribed by section 4962 [U. S. Comp. St. 1901, p. 3411] on the original painting or' its mount. That point also is discussed in the cases last-above cited, and we concur in the conclusions therein expressed, although a majority of the Circuit Court of Appeals in the First Circuit reached a different conclusion. Pierce & Bushnell Mfg. Co. v. Werckmeister, 72 Fed. 54, 18 C. C. A. 431. It is next contended that this action cannot be maintained because plaintiff did not have the right of property or possession before commencing the action. This is on the theory that the proceeding is an ordinary action of replevin under the New York Code. It is, however, a direct proceeding to secure condemnation and forfeiture of the goods, as the complaint and judgment shows. It is the “action in the nature of replevin for seizure of plates and copies,” which is referred to in Bolles v. Outing Co., 175 U. S. 266, 20 Sup. Ct. 95, 44 L. Ed. 156, although the penalty for each copy seized or found in defendant’s possession is not included in the same action, as this court intimated that it might be. Bolles v. Outing Co., 77 Fed. 966, 23 C. C. A. 594. The marshal seizes them to await the judgment of the court, under a writ which is most analogous to a writ of replevin, but which the Circuit Court issues, not solely under section 914 [U. S. Comp. St. 1901, p. 684], but under the broad grant of power in section 716 [U. S. Comp. St. 1901, p. 580]. There have been a great number of decisions upon this vexed question as to how the relief accorded by section 4965 [U. S. Comp. St. 1901, p. 3414] shall be'secured, and they are not altogether harmonious. It will not be profitable to discuss them. The question can be decided only by the Supreme Court, and, even if we were of the opinion that the action and the writ were of more doubtful validity than we are inclined to attribute to them, it would seem to be the wiser course to affirm, and thus secure a final determination of the question, since upon all the other propositions in the case we are satisfied that no error was committed by the trial court. • Other points raised (that defendant’s constitutional rights have been invaded by execution of the writ, and that information procured un — 377 — der it could not be lawfully used against defendant under the fourth and fifth amendments to the Constitution) seem to be disposed of by the recent decision in Hale v. Henkel (U. S. Sup. Ct. March 12, 1906), 26 Sup. Ct. 370, 50 L. Ed. 652. The judgment is affirmed.