Page:Gerlach-Barklow v. Morris & Bendien.pdf/3

 The defendant’s answer denied the validity of plaintiff’s copyright, both on the ground that the subject-matter of the picture was not original, and on the ground that plaintiff had not complied with the copyright law, and denied that defendant’s picture was an infringement. The District Court found that the defendant’s picture was purposely made in close imitation of plaintiff’s, found infringement, and granted an injunction pendente lite.

Munn, Anderson & Munn, of New York City (T. H. Anderson and Albert J. Clark, both of New York City, of counsel), for appellant.

Edwards & Henry, of New York City (O. Ellery Edwards, Augustus M. Henry, and Arthur G. Previn, all of New York City, of counsel), for appellee.

Before MANTON, L. HAND, and SWAN, Circuit Judges.

SWAN, Circuit Judge (after stating the facts as above). [1, 2] The parties will be referred to as plaintiff and defendant. One of the errors assigned by the defendant is the finding of infringement. The memorandum of the judge states, not only that the defendant purposely made its picture in close imitation of the plaintiff’s, but also that the slight differences which exist were put in merely for the purpose of attempting to make it possible for defendant to appropriate the essential features of the copyrighted picture. The two pictures appear from inspection to be so similar in subject, coloring, and general effect that we regard the contention that the decree should be reversed on the ground of noninfringement as wholly untenable. It is no defense that close scrutiny may detect slight differences. See Gross v. Seligman, 212 F. 930 (C. C. A. 2); Dymow v. Bolton, 11 F.(2d) 690 (C. C. A. 2).

Most of the assignments of error are of a highly technical nature, and relate to the alleged failure of plaintiff in its pleadings and proof to make out a prima facie case of the validity of its copyright.

[3–5] It is objected that the bill alleges certain of the allegations essential to plaintiff’s right only upon information and belief, rather than upon direct affirmation, and that the verification by plaintiff’s president, Gerlach, is similarly limited. A bill for a preliminary injunction is one for special relief pending the suit, within the meaning of federal equity rule No. 25, which requires such a bill to he verified. Scheuerle v. One-Piece Bifocal Lens Co., 241 F. 270, 273 (D. C. Pa.). But verification by a party upon information and belief of such matters as are not within his knowledge is a sufficient compliance. Coty, Inc., v. Parfums De Grande Luxe, 298 F. 865 (C. C. A. 2). That artist Kenyon’s painting was a new and original work of art, and as such copyrightable, is necessarily a matter of opinion, and Gerlach’s averment of this fact upon information and belief was sufficient.

[6–8] To determine whether plaintiff proved a prima facie case, the affidavits and exhibits, as well as the bill, must be examined. That Kenyon was the author of a painting entitled “Song of the Bluebird” is established by Exhibit C, the certificate of registration, which by section 55 of the act (USCA, title 17, § 55) is made prima facie proof of the facts stated therein. See Berlin v. Evans, 300 F. 677 (D. C. Pa.); Fisher v. Dillingham, 298 F. 145 (D. C. N. Y.). Defendant’s affidavits allege that plaintiff’s president had admitted that the theme of its picture was taken from another picture entitled “Spring Song.” Very likely it was, but works of art, to be copyrightable, do not, like patents, need to disclose the originality of invention. While a copy of something in the public domain will not, if it be merely a copy, support a copyright, a distinguishable variation will, even though it present the same theme. See Gross v. Seligman, supra. Kenyon’s picture is a sufficient variant to be the subject of copyright under the act.

[9–14] Plaintiff must next prove that he is the “proprietor” of the painting. It is objected that the averment upon information and belief that Kenyon sold and assigned to plaintiff all her right in said picture, and any reproductions of the same, is insufficient to make such proof. But the bill also alleges affirmatively that, “after receiving the aforesaid picture,” plaintiff duly copied and published the same and gave notice of copyright. This is equivalent to a direct averment that plaintiff obtained possession of the picture by means of what was believed to be a sale and assignment, and proceeded as proprietor to publish and copyright it. Possession of a chattel is prima facie evidence of title.” See Wigmore, § 2515. Ownership of an unpublished composition presumptively includes all the rights which the common law recognized therein, among them being the privilege of publication and of securing a statutory copyright. See Drone, Copyright, 239; Turner v. Robinson, 10 Ir. Ch. 121, affirmed 510; Parton v. Prang, Fed. Cas. 10,784 (C. C. Mass.). The plaintiff made a prima facie case of title, and the burden of going forward with evidence to show that plaintiff’s title 23 F.(2d)—11