Page:Public Ledger v. New York Times (275 F. 562).pdf/3

564 Lederer, 174 Fed. 135, 98 C. C. A. 571 (C. C. A. 3d); Belford v. Scribner, 144 U. S. 488, 12 Sup. Ct. 734, 36 L. Ed. 514, has nothing to the contrary; Fraser v. Yack, 116 Fed. 285, 53 C. C. A. 563 (C. C. A. 7th), was a distinct holding under the earlier law that a contract very similar to this, being only for a license, would not support a copyright. Under the present act Judge Mayer has said that there must be a full transfer of rights to make one a “proprietor,” New Fiction Pub. Co. v. Star Co. (D. C.) 220 Fed. 994; and in Fitch v. Young (D. C.) 230 Fed. 743, affirmed 239 Fed. 1021, 152 C. C. A. 664, I ruled that there must be a statutory division of the various rights before they can be separately assigned.

[2] I think that the word “proprietor” of the present act must be treated as having the same meaning as in the old and as equivalent to “assign.” If so, it follows that the author’s rights may not be divided except as the statute recognizes a division, and that, if he retains a part of what goes to make up any of the recognized divisions, his assignee is not a “proprietor.” In the case at bar, whatever else the parties would have done, had they been faced with this situation, they clearly did not mean to convey any literary property in the “proofs.” The contract only gave the plaintiff the right to examine such “proofs” and make copies of them. It is true that it authorized the plaintiff to sell its “news” to other papers in the United States and Canada, but that I take it is no more than the right to allow them in turn to copy as the Times was to allow it. It is on this that the plaintiff chiefly relies. The parties were, however, thinking only of matter which presumably had a temporary interest to the plaintiff, and in which priority of publication was everything. The plaintiff would have that priority if the Times kept its bargain of dealing only with it, and it needed no other protection. It is argued that this is not true, because any enterprising newspaper might do just what the defendant did, owing to the difference of time between London and the United States. But I think it clear that the parties had no such possibility in mind as that. If they had, it was very strange that they should not have provided against it perhaps by the very assignment of the literary property.

However that may be, the plaintiff’s right to resell the “news” is amply accounted for by the power given it under the contract to give precedence in time to such papers as it chose, a precedence which in most cases would be ample, and, indeed, in all cases, if the plaintiff is right in its position in the second cause of action. Such precedence would protect it and its customers unless against a paper enterprising enough to cable over news copied from the published edition of the Times in time to set it upon the same morning as it appeared in the plaintiff’s columns. It is not even alleged that in the case at bar the defendant could under normal conditions have got out Lord Grey’s letter on January 31st. Perhaps it could, but the bill does not say so.

Yet, even if the fact be so, and if the protection was not absolute, when the cables were free, still an assignment cannot be built on so uncertain a foundation. If it can, and was so intended, the Times lost its own right to publish its news here without the plaintiff’s assent. A