Page:Yardley v. Houghton Mifflin (2d Cir. 1939).pdf/5

 were held to justify an inference that the accepting officials acceded to Turner’s proposal to reserve the copyright, the plaintiff must fail for lack of evidence that such officials had legal power to modify the contract. In this respect the case is precisely like Dielman v. White, C.C.Mass., 102 F. 892. There the complainant accepted a commission to design and install a marble mosaic in the reading room of the Congressional Library. The contract of employment was silent as to copyright and the designer placed upon the cartoon and the completed mosaic a notice of copyright in himself. In a well considered opinion Judge Lowell held that the failure of officials in charge of constructing the building to object to the placing of the copyright notice upon the mosaic panel did not bind the government to a construction of the contract contrary to its legal effect, or entitle the complainant to claim a copyright in the absence of any reservation of such right. We believe the case was correctly decided and should be followed by this court. The principles it announces are conclusive of the case at bar in so far as dismissal of the complaint is concerned. Whether Turner’s registration of copyright should be deemed void, because he was not the “proprietor” of the right to apply for it, or should be deemed to be valid but held in trust for the city, we need not decide. On either hypothesis the plaintiff was not entitled to bring the suit.

By its counterclaim the appellee sought a declaration that the renewal copyright registration obtained by the plaintiff in 1932 was void because not effected pursuant to the statute, 17 U.S.C.A. § 24. It is now conceded that only Turner’s executor could legally obtain a renewal. Fox Film Corp. v. Knowles, 261 U.S. 326, 43 S.Ct. 365, 67 L.Ed. 680. While the original bill had asserted a claim based upon the renewal, the amended bill did not, and the evidence disclosed that the defendant had ceased publication of its reproduction of the painting in 1936, when notified of the claim of infringement. Hence, the appellant argues that there was no controversy between the parties requiring a declaration of rights as to the renewal copyright. We cannot agree. The counterclaim asserted the invalidity of the renewal and the plaintiff’s reply thereto denies the allegations of invalidity. She conceded invalidity at the trial but she had previously asserted rights under the renewal and she might do so again in a subsequent suit, if its invalidity were not adjudged. There was no error in awarding judgment on the counterclaim.

Judgment affirmed.