Schuberth v. Shaw

21 F. Cas. 738

• Court: U.S. Circuit Court for the District of Eastern Pennsylvania
• Decided: July 1, 1879
• Status: Published

Opinion

BUTLER, District Judge.

Under the construction given to section 4952 of the Revised Statutes, relating to copyrights, the plaintiffs’ claim must be regarded as valid. To entitle one to a copyright it is unnecessary that he be the sole creator of the work for which protection is claimed. Labor bestowed on the production of another will often constitute a valid claim. The maker of an abridgement, translation, dramatization, digest, index or concordance of a work of which he is not the author, may obtain a copyright for the product of his labor, thought and skill. So also one making material changes, additions, corrections, improvements, notes, comments, etc., in the unprotected work of another. A photograph, chromo or engraving is often but a copy of a work of art, in whose production the photographer or engraver had no nart. Wood v. Boosey, L. R. 3 Q. B. 232. In all such eases, the test of originality is applied to that which represents the labor or skill of the person claiming the copyright. Drone, Copyright. 200. In music, not only new compositions, but any substantially new adaptation of an old piece, as an arrangement for the piano of a quadrille waltz, &e.. constitutes a valid claim. Atwill v. Ferrett [Case No. 640]; Jollie v. Jaques [Id. 7,437].

The report of the commissioners (Messrs. Thunder & Hasler). leaves me in no doubt respecting the validity of the plaintiffs’ copyright. Nor can I doubt that the defendant's publication is a substantial copy of the plaintiffs’. His artist, Mr. A’Becket. understanding what was wanted, sought to do materially -what the plaintiffs had done. The defendant’s design was to procure a similar work. The evidence shows this quite distinctly. Mr. A’Becket had not, as he says, the plaintiffs’ work before him; but he was familiar with it, and was, I think, mainly guided in what he did by his recollection of it. The imitations, in some instances extending even to errors, seem too remarkable to be accidental. The slight, unimportant differences may well be ascribed to a desire to avoid the charge of copying. It is, I repeat, quite plain that the defendant started out with the design to publish and offer for sale a work similar to the plaintiffs’, and this similarity is carried even into the title-page, which is made so like the plaintiffs’ that any one purchasing might well suppose he was getting the plaintiffs’ work. The answer, indeed, admits that the defendant’s publication “is substantially the same as the complainants.” Let a decree be entered for the plaintiff.