Page:Houghton Mifflin Co. v. Stackpole Sons (104 F.2d 306).pdf/5

310 its general policy and tradition, is putting another obstacle in the way of survival of homeless refugees, of whom many have been students and scholars and writers. Defendants suggest that this class must be very limited in numbers, since it is said that, by the exception of subsection (a) of the statute, such refugees when domiciled in this country may secure the protection of the copyright law. But that does not seem a possible reading of the provision, once we have conceded defendants’ original premise that the first sentence of the statute does not apply to aliens. For the second sentence by its terms limits all the remaining provisions of the section, including that dealing with aliens domiciled here, to an author or proprietor “who is a citizen or subject of a foreign State or nation only.” In fact, this means a limitation upon the rights of aliens going beyond those existing prior to the International Copyright Act of 1891. Plaintiff’s reading of the statute avoids this unfortunate restriction on the privileges of resident aliens; it makes the statute a consistent and complete authorization of protection to all authors, as its protagonists intended.

We conclude, therefore, that the book in question was subject to copyright and was properly copyrighted in this country.

Second. Defendants attack the plaintiff’s title to the book on the grounds that no assignment from the author to the German publisher has been shown, and that the grant from this publisher to the plaintiff is a limited one and defectively executed. It appears from the various papers before us that Adolf Hitler was the author of the book in question, and that Franz Eher Nachfolger G.m.b.H. has published the work in Germany. The latter firm claimed to be the proprietor and owner of the copyright in its application for copyright in this country in 1925 and 1927. Under date of July 29, 1933, it executed with the plaintiff what is described as a General Department Royalty Contract, an extensive and detailed contract in seventeen numbered paragraphs covering eighteen folios of the printed record. The main granting paragraph is as follows (following designations of “Franz Eher Verlag of Munich, Germany,” as “the Proprietors,” and “Houghton Mifflin Company of Boston, Massachusetts,” as “the Publishers”): “The Proprietors hereby grant and assign to the Publishers the volume rights of a work the subject or title of which is Mein Kampf, by Adolf Hitler; together with any existing copyrights thereof, and with the exclusive right and power in their name or in the name of the Proprietors to take out copyright thereof in the United States; and to publish and sell said work in editions, abridgments, and selections during the term of any copyright and during any renewal, continuation, or extension thereof accruing to the Proprietors, under the present or any future Act of Congress; the Proprietors agreeing to secure any renewal, continuation, or extension of copyright which shall accrue to them, under the present or any future Act of Congress, and to grant and assign the same to the Publishers.”

The next paragraph of this contract contains an extensive warranty by the Proprietors of “their sole ownership of the work and their full power to make the grant,” and their agreement “to hold harmless and defend the Publishers against any claim by reason of any violation of another copyright.” Further paragraphs cover in detail matters such as those of author’s royalties, statements of account and payments, and assignment and termination of the contract. There are provisions that “the Publishers shall have the first offer of the Author’s next literary work intended for publication in book form,” and that “the Publishers may publish or permit others to publish such selections from said work as they think proper to benefit its sale, without compensation to the Proprietors.” Even the matter of illustrations is covered—photographs, pictures, maps, and other material are to be supplied by the Proprietors, who are also to prepare or pay for an index.

On its face, therefore, this appears to be a carefully drawn document intended to transfer all American rights to publish and sell this work. Defendants assert, however: (1) that it does not appear that Adolf Hitler, the author, had made any assignment of the work to the Proprietors, Franz Eher Nachfolger G.m.b.H.; (2) that the agreement was signed only in the firm name, and not also in the name of some individual officer of the limited partnership, and was not acknowledged before some consular officer, as provided in the Copyright Law, 17 U.S.C.A. § 43; and (3) that, since the document did not purport to assign television, radio, dramatic, and moving picture rights, the transfer was only partial and therefore was to be