Page:Yardley v. Houghton Mifflin (2d Cir. 1939).pdf/2

 Appeal from the District Court of the United States for the Southern District of New York.

Action by Alice T. Yardley against Houghton Mifflin Company, Incorporated, for damages for copyright infringement, wherein defendant filed a counterclaim for declaration that a purported renewal of original term of copyright was invalid. From a decree dismissing plaintiff’s complaint and sustaining defendant’s counterclaim, 25 F.Supp. 361, the plaintiff appeals.

Affirmed.

Sidney S. Bobbé, of New York City, for appellant.

Allan C. Bakewell and Thomas J. Byrne, both of New York City, for appellee.

Before SWAN, CHASE, and CLARK, Circuit Judges.

SWAN, Circuit Judge.

Before passing to a consideration of the interesting questions presented by this appeal it is desirable to state in outline the facts that give rise to them. The amended complaint seeks damages for infringement of a registered copyright of a mural picture painted by Charles Y. Turner and placed by him on the wall of the auditorium room of the DeWitt Clinton High School. Mr. Turner executed this painting pursuant to a written contract, dated January 14, 1904, between the City of New York and the general contractor for the erection of the school building, by the terms of which the city was to select the artist and the contractor was to pay him upon a certificate issued by the Superintendent of School Buildings, with the approval of the Committee on Buildings of the Board of Education, and to include such payment in the cost of the building. It is conceded that the mural was accepted and the artist received payment. The written contract between the city and the building contractor was silent as to who was to have the copyright of the painting to be made. Nor is there evidence of any agreement on this subject made by Mr. Turner with either the city or the building contractor. But the painting bears an inscription “Copyright, C. Y. Turner, 1905,” and there is nothing to suggest that those words were not on it when it was first