Stern v. Jerome H. Remick & Co.

HAND, District Judge (after stating the facts as above). As to the two second objections raised by the defendant I find no difficulty. It is not necessary that the defendant should have intended to violate the copyright of the plaintiff. He had means of knowledge from the [283] copyright office that the song had been in fact copyrighted; and he, like any one else, took his chances when he published the song without any inquiry. Nor do I find any difficulty in deciding that Roman numerals conform to the notice prescribed by the statute. Roman numerals are a part of the language of this country. They are constantly in use upon monumental architecture of all sorts and for serial purposes upon books, and they are a part of the language as taught in the public schools, and understood by all but the most illiterate. Nor can one seriously contend that the notice required by the statute could be fulfilled only by Arabic numerals. If the letters were written out in words, it would certainly be a compliance. I regard the writing of it here in Roman numerals as more nearly a literal compliance with the statute than to write out the year in words. The only serious question is whether, under the statute, any publication is necessary beyond the deposit of two copies in the Library of Congress, and, if so, whether the sale to Ditson of a single copy is not enough. The de fendant supposes that the author must make some “publication” independent of this deposit. He seems to mean by this a bona fide effort commercially to exploit his piece, to put it “on the market,” to make what he can from its sale. This the plaintiff did not do. It is plain enough that his sale to Ditson was simply in an attempt to comply with a fancied requirement of the statute. I think the requirement was fancied, for nothing else is necessary than the deposit in the Library of Congress, certainly when coupled with an unrestricted sale of one copy. The trouble seems to me to have arisen over a misconception of the decision of Mr. Justice Hunt in Boucicault v. Hart, Fed. Cas. No. 1,692. In that case the learned justice sitting at circuit held that the complainant had not complied with the statute by only filing his title, without ever filing two completó copies. The statute then read that the copies should be filed within 10 days after publication. Boucicault tried to keep his statutory monopoly without making public his play, and the court said in effect: “No; if you are to get the monopoly, you must give to the public your work within a reasonable time, so that they may get their consideration for the monopoly you claim. You may not file your title, and stop there indefinitely.” While the language of the opinion speaks of a publication as though it would be separate from the deposit of two copies, the point was not up whether the deposit would itself not have been a sufficient publication. It is true that there may be other kinds of publication than the deposit of these copies, because publication occurs as soon as the work is unrestrictedly made public in any way. But Mr. Justice Hunt by no means indicates that the deposit alone would not itself he an adequate publication, nor may the case be so understood. His opinion was wholly directed against the effort to keep the play secret and yet get a copyright. In Jewelers’ Mercantile Agency v. Jewelers’ Publishing Company, 155 N. Y. 241, 49 N. E. 872, 41 L. R. A. 846, 63 Am. St. Rep. 666, four of the judges found a publication sufficient to destroy the com [284] mon-law right, independently of the deposit, and the remaining three put their opinion upon the publication arising from the deposit. In Wright v. Eisle, 86 App. Div. 356, 83 N. Y. Supp. 887, the filing of an architect’s plan was enough. In Ladd v. Oxnard (C. C.) 75 Fed. 703, Judge Putnam, while carefully avoiding a decision upon the point, does pretty clearly indicate on page 730 his opinion that the deposit is enough. I do not think Callaghan v. Myers, 128 U. S. 617, 9 Sup. Ct. 177, 32 L. Ed. 547, is in point upon the question. Of the text-writers, Maggillivray (page 261) and Hamlin (page 78) understand that the deposit is enough. In so far as Drone (page 291) must he understood to the contrary, I cannot agree with him. While I have found nothing precisely in point, Judge Townsend, in Werckmeister v. American Lithographic Company, 134 Fed. 321, 326, 69 C. C. A. 553, 558, 68 L. R. A. 591, laid down the following definition of publication: “A general publication consists in such a disclosure, communication, circulation, exhibition, or distribution of the subject of copyright, tendered or given to one or more members of the general public, as implies an abandonment of the right of copyright or its dedication to the public.” On page 325 of 134 Fed., and page 557 of 69 C. C. A. (68 L. R. A. 591), the learned judge says: “The unrestricted offer of even a single copy to the public implies the surrender of the common-law right.” Certainly, under this language, either the deposit, or the sale of the single copy to Ditson, was a publication. Even Drone (page 291) concedes that a sale is enough. I cannot find the least indication that there must be an effort to push the work commercially to the utmost, or that one sale is not enough to complete the copyright, if any sale at all be needed. There was clearly enough a sale to Ditson. Motion denied.