Page:Houghton Mifflin Co. v. Stackpole Sons (104 F.2d 306).pdf/6

Rh as a mere license, requiring this action to be brought in the name of the licensor, Eher.

It is to be noted that, if an analogy is to be drawn between literary property and ordinary chattels, this technical defense cannot prevail, since possession of the manuscript by the German publishers is evidence of ownership, and the transfer in question is sufficient to convey a title good as against third persons, without any rights in the premises. That analogy has been asserted and relied on in the cases. Callaghan v. Myers, 128 U.S. 617, 658, 9 S.Ct. 177, 32 L.Ed. 547; Gerlach-Barklow Co. v. Morris & Bendien, 2 Cir., 23 F.2d 159, 161. We think it is sound and justifies the plaintiff’s claim.

Since Adolf Hitler did not himself take out the copyright there was no need of a formal assignment by him. As the cases cited show, mere delivery of the manuscript to the publishers was sufficient. See Callaghan v. Myers, 128 U.S. 617, at page 658, 9 S.Ct. 177, 32 L.Ed. 547; Atlantic Monthly Co. v. Post Publishing Co., D.C.Mass., 27 F.2d 556, 558. Their possession of the manuscript which they have had and published and widely distributed and which they claim to own is ample evidence of a title good as against the defendants. Gerlach-Barklow Co. v. Morris & Bendien, supra; Drone on Copyright, 498, 499; 17 U.S.C.A. § 55. If necessary—as under the circumstances here present it is not—we might well take judicial notice that this book, in view of the powerful position of the author as Reichsfuehrer and Chancellor of the German Reich, could not be so widely distributed in Germany as it now is if the publishers had not the right to do so. Defendants are in error in their claim that judicial notice cannot be taken of matters not pleaded, for under ordinary rules, matters judicially noticed control and supersede matters alleged. Cooke v. Tallmann, 40 Iowa 133, and cases cited in Clark, Code Pleading, 167, 168. But resort to this rule is unnecessary, since the complaint is neither inconsistent nor inadequate in this regard. Hence, in any event, the title of the German publishers is adequate to sustain this proceeding.

The possible failure to observe all the formalities of signing or acknowledging the document of transfer is at most only a matter of form going to the proof of its due execution. Such proof may be otherwise supplied, as here by affidavits in evidence. Ladas, op. cit. 801, discussing 17 U.S.C. § 43, 17 U.S.C.A. § 43. Whatever lack of signatures there may be according to German law, the assignment satisfies our requirements. M. Witmark & Sons v. Calloway, D.C., E.D.Tenn., 22 F.2d 412; Ladas, op. cit. 794, 795; Belford, C. & Co. v. Scribner, 144 U.S. 488, 504, 12 S.Ct. 734, 36 L.Ed. 514.

Finally, on the question whether the agreement was intended to be an assignment of copyright or only a license to use in certain restricted ways, there seems no possibility of doubt that the intention of the parties was to convey full rights. Indeed, they say that the Proprietors “grant and assign to the Publishers” “any existing copyrights thereof,” with an exclusive right to take out copyright in the United States in their name or in that of the Proprietors. In American Tobacco Co. v. Werckmeister, 207 U.S. 284, 285, 297, 28 S.Ct. 72, 52 L.Ed. 208, 12 Ann.Cas. 595, the transfer of the “copyright” in a picture was held to he a complete assignment, rather than a mere license or personal privilege. It savors of the ridiculous to consider that, because the parties did not think of moving picture, television, and radio production in connection with this political treatise and did not make specific mention of them, this carefully drawn agreement shall be held ineffective to afford remedies in this country against piracy of the work. Defendants base their claim on the prominence given in the document to the assignment of “the volume rights” to the work. The meaning of this expression is not clear, and no reason is seen for reading it as intended to cover only a limited right, and then further as containing a negative implication restricting the other broad terms of the grant. At most, volume rights are but one of several species of rights enumerated, and the enumeration is intended to expand, not contract, the grant. Intention to assign the full copyright is apparent throughout the contract and effect should be given to this intention. Cf. In re Waterson, Berlin & Snyder Co., 2 Cir., 48 F.2d 704; Manners v. Morosco, 2 Cir., 258 F. 557, 559, reversed on other grounds 252 U.S. 317, 40 S.Ct. 335, 64 L.Ed. 590.

Under these circumstances we do not feel it necessary to discuss the question, as to which there is some difference of view, how far an assignee of some, but not all, rights in literary property may sue. The