Page:Gerlach-Barklow v. Morris & Bendien.pdf/2

 compliance with Copyright Act, § 12, as amended by Act March 28, 1914, § 1 (17 USCA § 12), requiring deposit of “two complete copies of the best edition thereof then published.”

In suit to restrain infringement of copyright, print of picture produced in evidence, bearing same title and name of same author as copyrighted picture, and corresponding in description to that in certificate of registration, held sufficient proof of its existence as copyrighted picture, notwithstanding failure to produce original copies deposited in Copyright Office, which copies had been destroyed.

To show plaintiff’s failure to comply with Copyright Act, § 18 (17 USCA § 18), in respect to notice of copyright, in suit for infringement of copyright, it is not enough to show that copyrighted picture was without statutory notice when it came into defendant’s possession, but it must appear that it left plaintiff’s possession in that condition.

In suit for infringement of copyrighted picture, fact that defendant produced five copies of picture bearing no notice of copyright was insufficient to justify reversal of decree granting preliminary injunction for want of notice under Copyright Act, § 18 (17 USCA § 18), where plaintiff was not connected with such copies, except by imprint of his name on calendar form in which pictures appeared.

Mere sample advertisement on calendar from which dealer might place orders for calendars mounting picture shown does not require statutory notice of copyright of picture, under Copyright Act, § 18 (17 USCA § 18).

Averment in bill for preliminary injunction that each copy of picture carried notice justified finding of plaintiff’s attempt to comply with provisions of Copyright Act, §9 (17 USCA § 9), with respect to notice.

Where plaintiff averred that each copy of picture carried notice of copyright, and actual notice of its existence was brought home to defendant prior to infringement, granting of preliminary injunction was not abuse of discretion, under Copyright Act, §§ 9, 18, 20 (17 USCA §§ 9, 18, 20), notwithstanding defendant had received copies bearing no notice of copyright and merely containing plaintiff’s name, since plaintiff made out prima facie case for injunction.

Decree granting preliminary injunction against infringement of copyright does not preclude defendant from establishing on final hearing that plaintiff has published copies of copyrighted picture without notice of copyright, under Copyright Act, § 9 (17 USCA § 9).

Appeal from the District Court of the United States for the Southern District of New York.

Suit by the Gerlach-Barklow Company against Morris & Bendien, Inc., to restrain infringement of plaintiff’s copyright of a picture. From a decree granting a preliminary injunction, defendant appeals. Affirmed.

The case was heard upon the bill of complaint, the answer of the defendant, and supporting affidavits and exhibits filed by both parties. It appears from the bill that one Zula Kenyon, an artist, painted a new and original picture entitled “Song of the Bluebird,” which portrays a young child seated upon the top of a wall and looking upward at a bird perched upon the branch of a flowering tree; that the artist sold and assigned to plaintiff all her right in said picture and any reproductions thereof; that the plaintiff thereupon copyrighted the picture and obtained a certificate of registration, showing a deposit of the required copies on February 6, 1925, and thereafter published and sold reproductions of the picture, each copy thereof bearing the required notice of copyright; that defendant attempted to purchase from plaintiff a license to use the copyrighted picture, and, after the failure of such negotiations, caused to be painted a picture closely simulating plaintiff’s; copies thereof being published and sold by defendant under the title of “Song of the Lark.”