Page:Yardley v. Houghton Mifflin (2d Cir. 1939).pdf/3

 in the building. The district judge rightly assumed that they were. The evidence also shows that on October 30, 1905, Mr. Turner, “as author, designer and proprietor” made copyright registration of the picture under R.S. § 4952, as amended by the Act of March 3, 1905, 33 Stat. 1000. The term of such copyright expired October 29, 1933. Mr. Turner died on December 31, 1918, and the plaintiff, Mrs. Yardley, who was one of his surviving sisters, sought and obtained in 1932 a purported renewal of the original copyright. She does not, however, ground her present claim upon such renewal, which is now conceded to be invalid, but upon an assignment of the original copyright, and of rights of action thereunder, executed by her brother’s executor in February 1937. The executor, who took office in 1919, served continuously until January 30, 1937, when he was duly discharged by a decree of the surrogate of New York County. Such decree authorized him to transfer to Mrs. Yardley for a consideration of twenty-five dollars, “all existing copyrights of decedent and rights to renewal of those that are renewable, including all benefits that have been and may hereafter be derived therefrom, and all rights of action, if any, thereon.” On February 27, 1937, Mrs. Yardley obtained from the executor an assignment of several specified copyrights, including the one in suit, and of all rights of action for infringements thereof, past or present. Shortly thereafter she brought the present suit, charging the defendant with infringement, beginning in 1924 and continuing through subsequent years, by publishing a reproduction of the painting in two history books for school use, which went through several editions. By reason of the statute of limitations the editions complained of were limited upon the trial to those brought out between March 30, 1931 (six years before the date of suit) and the date of expiration of the copyright, October 29, 1933. In answering the complaint the defendant filed a counterclaim which asked for a declaration that the purported renewal of the copyright, which Mrs. Yardley had sought and obtained in 1932, was void. After final hearing the district court dismissed the plaintiff’s complaint, sustained the defendant’s counterclaim, and awarded costs and a counsel fee to the defendant. From this decree the plaintiff has appealed.

One ground upon which the district court dismissed the complaint was that the surrogate’s decree authorizing Turner’s executor to transfer to the plaintiff “all existing copyrights of decedent” and all rights of action thereon, did not include the copyright in question because it was not an “existing” copyright, having expired in 1933, and, since the executor’s assignment went further than the decree authorized, the plaintiff obtained thereby no valid title to the cause of action sued on. The appellant argues with considerable persuasive force that such an interpretation of the surrogate’s decree is too narrow, and that in any event an executor has power to sell and assign personal property of the estate without court authorization and, therefore, effect should be given to the executor’s express assignment of the copyright in suit, regardless of what the surrogate’s decree authorized. But we find it unnecessary to decide this question because the decision may be supported upon an alternative ground discussed in the opinion of the district judge.

This ground was based on reasoning substantially as follows: When an artist accepts a commission to paint a picture for another for pay, he sells not only the picture but also the right to reproduce copies thereof unless the copyright is reserved to the artist by the terms, express or implicit, of the contract; there was no evidence from which such a reservation could be inferred; therefore the copyright registration in Turner’s name, if valid at all, was held in trust for the city, and the latter, through its Board of Education, had given consent to the defendant to publish copies of the painting in its histories; hence there was no infringement. Each of the foregoing findings of fact and conclusions of law is disputed by the appellant.

It seems surprising that so little precise authority has been discovered; only one case exactly in point has been turned up. A fairly close analogy, however, may be found in cases discussing the law of copyright with respect to photographers. The rule has been clearly laid down in this circuit that where a photographer takes photographs of a person who goes or is