Beifeld v. Dodge Pub. Co.

198 F. 658, 1911 U.S. App. LEXIS 5462

• Court: U.S. Circuit Court for the District of Southern New York
• Decided: December 28, 1911
• Status: Published

Opinion

WARD, Circuit Judge.

[1] This is a motion for a preliminary injunction enjoining the defendant from infringing the complainant’s copyright taken out November 17, 1910, for a painting called “Sing a Song of Sixpence” purchased by him from the artist, Maxfield Parrish, with all rights to copyright the same. The defendant is publishing a sketch or study of the painting which it purchased March 11, 1911, of one Purves, to whom the artist had given it after the copyright of the painting. It is contended that the sketch and the painting are different and independent productions, but I do not think so. The subject is the same, the number, position, and sex of the figures are the same, and the differences are only as to the treatment of certain minor details. Ordinary inspection would give the distinct impression that both pictures were the same.

Assuming, as the defendant contends, that the sketch was made before the painting, still it is in my opinion covered by the copyright of the painting. It will hardly be pretended that any one by making slight alterations in the copyrighted painting could get another copyright or publish it free of the original copyright. Neither could the artist copyright or publish the sketch free of the copyright of the painting for the same reason, namely, that both pictures are the same.

[2] The correspondence between the artist and the Century Company as to the publication of the sketch in the Century Magazine of February, 1911, produced under a subpoena duces tecum, the admissibility of which was to be determined by the judge calling the motion calendar, is excluded, and returned to the Century Company. It relates to transactions between third parties, may expose the publisher to penalties, and as admissions of the artist is not competent against the defendant.

Motion granted.