Page:Public Ledger v. New York Times (275 F. 562).pdf/2

Rh, the Times to indicate the date of release in such cases. The plaintiff might make such arrangements as it thought tit for the sale for publication in any other newspaper or periodicals in the United States of America and Canada of such “news and special articles and other matter” as it wished. The plaintiff agreed to publish all such matter under the heading “London Times News Service,” and to secure the insertion of the same heading by any papers to which it sold the “news.” The Times should not supply to any other persons the “proofs” for transmission to newspapers in the United States and Canada, and would do all that it reasonably could to secure to the plaintiff the full benefit received from the agreement. The plaintiff was to pay £150 a week during the continuance of the agreement.

The plaintiff duly gave notice of copyright in each of its issues, and specially on the articles received by cable from the Times, completing its copyright by depositing two copies at Washington in accordance with the statute.

The bill also set up the copyright law of Great Britain, and then alleged that on January 31, 1920, the Times published, and so secured a copyright in, a letter written by Viscount Grey upon the attitude of the United States Senate towards the League of Nations. This letter had been written for the Times after conference between Lord Grey and its editors, and was of great public interest and importance. Owing to the manner of its preparation and joint composition, the Times got title to the copyright in Great Britain. By the contract the plaintiff became “the assignee or partial assignee” of the rights in said letter enjoyed by the Times, and so vested with exclusive right at common law to secure copyright thereon in the United States.

Before its publication in the Times it submitted the letter to the plaintiff, which by cable transmitted it to Philadelphia, where it was received on January 31st. In spite of the exercise of due diligence, and owing to the crowded condition of the cables, it did not arrive in time to be published on the morning of January 31st, but was published and copyrighted in the issue of February 1st, which was, however, actually sold in Philadelphia on the late evening of January 31st.

The defendant on February 1st printed a copy of this letter, which it took from the published copy of the Times in London on the preceding day, and which it falsely stated to have been cabled to it by permission of the Times. The defendant also went through the form of copyrighting the letter in the United States. The bill asked for the usual injunction, delivery of plates and models and accounting for damages and profits, together with general relief.

The second cause of action alleged in substance the same facts, and depended upon them for its charge of unfair trade.

Harold Nathan and Alfred A. Cook, both of New York City, for the motion.

Thomas Raeburn White, of Philadelphia, Pa., and William C. Cannon, of New York City, opposed.

LEARNED HAND, District Judge. [1] Not being an “author,” the plaintiff concedes that it must be “proprietor” of the literary property in the letter in order to secure a valid copyright in the United States, and so of course the statute requires. Section 8, Copyright Act (Comp. St. § 9524). The statute of 1909 does not define “proprietor,” but under the act of 1831 (4 Stat. 436), where in one part the word “assigns” is used and another the word “proprietor,” the two were taken as synonymous. Mifflin v. R. H. White Co., 190 U. S. 260, 262, 23 Sup. Ct. 769, 47 L. Ed. 1040. Under Revised Statutes, § 4952, as amended by 26 St. at L. 1107, it was also assumed that a licensee could not obtain copyright, American Tobacco Co. v. Werckmeister, 207 U. S. 284, 296, 28 Sup. Ct. 72, 52 L. Ed. 208, 12 Ann. Cas. 595, but that there must be a full assignment of the literary property, Saaka v.