Société Des Films Menchen v. Vitagraph Co.

251 F. 258, 163 C.C.A. 414, 1918 U.S. App. LEXIS 1699

• Court: Court of Appeals for the Second Circuit
• Decided: April 10, 1918
• Docket: No. 206
• Status: Published

Opinion

HOUGH, Circuit Judge

(after slating the facts as above). [1,2] This action must be based on violation of some copyright, owned by plaintiff, and be brought by virtue of the statute regulating copyrights, or it asserts that defendants are contravening some equitable right of plaintiff’ and rests jurisdiction on diversity of citizenship. The language of the bill, construed by the contracts appended to and made part thereof, leaves us in considerable doubt as to the pleader’s intention.

Viewed as a copyright bill it must rest either on the registration of 1909 as to the drama or “stage play,” or that of 1916, by Cromelin, of the motion picture photoplay. In either aspect it falls on the face of the pleading, because as to the first assumption there is no endeav- or to show or allege ownership of the copyright of 1909, or to negative as to defendant’s production the fact that there may be a separable and several copyrightable property in the photoplay, though it tells substantially the same story as does the earlier stage play. Harper v. Kalem, 169 Fed. 61, 94 C. C. A. 429, affirmed 222 U. S. 55, 32 Sup. Ct. 20, 56 L. Ed. 92, Ann. Cas. 1913A, 1285. In respect of the second supposition, the registration by Cromelin is, as pleaded, void, for under the act no power exists in an “agent” to copyright anything; that privilege is reserved to “authors or proprietors.” Act March 4, 1909, c.,320, § 8, 35 Stat. 1077 (U. S. Comp. Stat. .§ 9524).

_ [3] The only meaning we can extract from the bill — if it does not fail for lack of ownership of any copyright, nor rest on that statute —is that plaintiff believes and intends to assert that defendants are enjoying profits from a film or the story depicted thereon, made by the Fondon Film Company, and by that concern permitted to be sold and exhibited in the United States in violation of the series of contracts above summarized.

But it is not so pleaded; on the contrary, the bill declares that, months after Cromelin’s registration of what Tucker had adapted, defendants made their own film from a scenario by Potter. To be sure, it is plain enough that both these writers derived their ideas from the stage play of 1909; but it is not even alleged that Potter infringed (i. e., substantially copied) Tucker. Much less is it stated that defendants have obtained or pretend to have any rights derived by assignment or otherwise from Cromelin, De Croisset, Feblanc, or the Fondon Film Company, or that any of the foregoing is co-operating with defendants, or deriving profit from what they have done and are doing.

[4] The only other contention possible on the part of appellants is that because they procured from Feblanc and De Croisset the exclusive right to make films depicting the story of “Arsene Fupin,” and reserved the United States as their own territory, when assigning that right to Fondon Film Company, therefore they have, independent of all copyright registration by any one, or without such registration, the right to pursue in equity those who by photoplay -tell the same story within the reserved territory.

This, of course, assumes that, if De Croisset and Feblanc had never copyrighted Arsene Fupin in this country, they could have brought such an action as this. Whatever might have been possible without seeking copyright protection, it is pleaded that these authors did take out copyright in 1909, and that extinguished their so-called common-law rights. Photo-Drama Co. v. Social, etc., Co., 220 Fed. 448, 137 C. C. A. 42. Therefore nothing but a copyright bill will serve, and as above stated the suit is not sustainable on that ground.

Decree affirmed, with costs.