Rigney v. Dutton

77 F. 176, 1896 U.S. App. LEXIS 2944

• Court: U.S. Circuit Court for the District of Southern New York
• Decided: November 23, 1896
• Status: Published

Opinion

LACOMBE, Circuit Judge.

As to tlie first three causes of action, the answer admits that defendants had prepared (before copyright was secured) a cut, with the words inscribed thereon, “Copyright, E. Mster, 1896,” and caused prints taken from said cut to be published, as part of an advertising page of a trade paper. In view of this admission, the contention that they did not “insert or impress” copyright notice on the uncopyrighted cut is wholly without merit.

The proposition that the cuts in question are not of the class which are subject of copyright is sufficiently refuted by inspection of the exhibit which contáins them. The statute provides for the insertion of copyright notice on every copy of book, map, chart, musical composition, print, cut, engraving, photograph, painting, drawing, chromo, statue, statuary, or model, or design intended to be perfected, etc. Manifestly, these may properly be described as cuts and as prints. As such, they are proper “subjects of copyright,” under section 4952, which expressly enumerates both “cut” and “print.” That some particular individual was not entitled to copyright them, because he is not himself the designer, but has borrowed or copied the ideas of others, is an entirely different question, with which the case at bar has no concern.

There is no merit in the contention that the cuts were not “published,” — a proposition which is based on the circumstance that they appear as an advertisement in a so-called “trade paper.” The case is clearly distinguishable from Falk v. Engraving Co., 4 C. C. A. 648, 54 Fed. 890, where miniature samples of a copyrighted photograph had been sent to dealers. The American Stationer is a weekly newspaper, which circulates freely among all who choose to pay its subscription, whether they are in the stationery trade or not.

The demurrer to the second and third paragraphs of the answer is therefore sustained. The demurrer to the fourth paragraph of the answer, where the original picture was in fact copyrighted, is overruled.