Fitch v. Young

EEARNED HAND, District Judge (after stating the facts as above). [1] The second point raised by the defendant seems to me determinative of the case. I think that play right and copyright are quite distinct under the statute, in spite of the fact that printed publication will forfeit both, and that one statutory copyright will protect both. If so, Clyde Fitch was justified in reserving his common-law play right from the original assignment to the MacMillan Company, and they could, by the necessary formalities on the printed play, create a statutory play right, which they held in trust for him, and a statutory copyright which they held beneficially. This is the effect- of Judge Holt’s decision as to the right to dramatize, a similar right, in Ford v. Charles E. Blaney Co. (C. C.) 148 Fed. 842. Judge Noyes in Dam v. Kirk La Shelle, 175 Fed. 902, 99 C. C. A. 392, 41 L. R. A. (N. S.) 1002, 20 Ann. Cas. 1173, in citing Ford v. Charles E. Blaney Co., supra, speaks of this as “probably” the law, and Judge Hazel had so held in the court below. 166 Fed. 589. [2] The assignment by the MacMillan Company to Clyde Fitch was, however, clearly intended, I think, to convey only the play right and to reserve the copyright. This follows from the fact that the exclusive right to publish was reserved to them, and that that exclusive right included all that they had, except the statutory play.right held in trust for Clyde Fitch. It is true that the statute uses more words than “publish” to define copyright, including the words “copy, publish, print, complete, vend,” and others; but they are all clearly intended to be covered by the word “publish,” as used in the assignment, and would have prevented Clyde Fitch from himself publishing the play, had he wished. The analogy of patents is apt, in which the form of an 'assignment does not count, and in which even a license for the term of the patent to use, make, and vend will, if exclusive, operate as an assignment. [745] Waterman v. Mackenzie, 138 U. S. 252, 11 Sup. Ct. 334, 34 L. Ed. 923. [3] The plaintiff seems to suppose that the composer of a play gains under the statute not only copyright and play right, but also the right to novelize it, analogous to the right to dramatize given by R. S. § 4952. It is true that the right to novelize is created by section 1 (b) of Copyright Act of 1909 (Act March 4, 1909, c. 320, 35 Stat. 1075 [Comp. St. 1913, § 9517]), and it is quite possible that an assignment like that at bar would to-day convey that right to Clyde Fitch. The right to novelize did not, however, exist before the Copyright Act of 1909, and the only basis for suit against a story as piracy which could arise under this copyright would be by virtue of the exclusive right to “copy” granted by section 4952 of the Revised Statutes, a right which the MacMillan Company, the owner of the copyright, alone has the right to invoke. Any right to novelize the play in such form as does not result in a “copy” is a right in the public domain, and would inhere in the first novelizer, whether he were Clyde Fitch or another; any right so to change the play that a court would still consider it a “copy” of the play is within the exclusive control of the MacMillan Company. This conclusion is in no sense contrary to the decision in New Fiction Publishing Co. v. Star Co., 220 Fed. 994, because the plaintiff there did not have copyright at all, but only a license to publish the story serially, a quite limited part of the copyright, and one not vesting in the licensee any right to sue an infringer, any more than an exclusive right to vend a patented invention would have enabled the licensee to sue. Judge Sprague, indeed, in Roberts v. Myers, 20 Fed. Cas. No. 11906, held that an assignment of the right to perform, a play for a limited period would give the assignee the right.to' sue; but that was certainly an extension of the rules applicable to patents, and a step further than it is necessary to go in the case at bar. If, on the other hand, the play right and copyright be deemed to be indivisible, in such sense that one may not be assigned without the other, while it is true that the MacMillan Company would become only a licensee under the assignment to Clyde, Fitch, yet there would be a fatal defect in the copyright itself. For in that case the Mac-Millan Company could hardly be regarded as the “proprietor” of the indivisible common-law literary property out of which alone the statutory play right and copyright could be created. It can hardly be possible to treat this as an indivisible right for the purpose of one kind of assignment and as divisible for another. I conclude, therefore, that the plaintiff has brought this suit upon the mistaken theory that the right of novelization existed under the earlier act, when in fact the statute created only play right and copyright. It is, indeed, a very troublesome question whether the Mac-Millan Company could succeed as owner of the copyright in holding the defendant for publishing a copy of the play. I have not the least doubt that the story was a cheap and vulgar plagiarism: The parallelism is so complete and minute as to admit of not the slightest doubt that it was slavishly pirated in plot and characters; but it has never been very satisfactorily established, and probably never can be, at what [746] point a plagiarism ceases to copy the. expression of an author’s ideas and steals only the ideas themselves. No one can test that question but the MacMillan Company. The bill will be dismissed for failure of title, with costs.