Page:Yardley v. Houghton Mifflin (S.D.N.Y. 1938).pdf/3

 D. There was not any provision in the contract as to who should have the copyright of the paintings to be made.

There is not any evidence of any kind in the case as to any agreement on the subject of copyright between Mr. Turner and the contractors Thomas Cockrell & Son, or the City of New York.

There is not any evidence of any course of dealing between the parties from which any inference can be drawn as to whether the right to copyright the paintings was reserved by the artist.

E. On October 30, 1905, Mr. Turner copyrighted this painting “The Marriage of the Waters of the Great Lakes with the Sea”, hereinafter referred to as “The Marriage of the Waters”, under the following description:

“The Marriage of the Waters of the Great Lakes with the Sea, November 4th, 1825, at the formal opening of the Erie Canal October 26th–November 4th, 1825. Some twenty-five men grouped upon the roof of the cabin of a boat are interested in the final ceremony connected with the opening of the Erie Canal (etc.)”.

This copyright expired on October 29, 1933, and was not properly renewed.

F. Mr. Charles Y. Turner died a resident of New York County on December 31, 1918, leaving a will naming as his executor George B. Class, Esq., who qualified under the will as executor and served continuously as executor from the 5th day of September, 1919, until January 30, 1937, when he was duly discharged of his duties as executor by a decree of the Surrogate of New York County.

G. On November 17, 1932, the plaintiff applied, as next of kin, for and obtained in her own name, the issuance of a renewal certificate for the copyright of the said painting “The Marriage of the Waters”.

At this time Mr. Class was acting as executor of the estate of Charles Y. Turner. Consequently, Mrs. Yardley, the plaintiff, who was a sister—and at this time only one of the several surviving sisters of Mr. Turner—did not, under Title 17 United States Code, Section 24, 17 U.S.C.A. § 24, have any right to secure the renewal of the copyright and such renewal, therefore, was wholly void and of no effect.

H. Although on the basis of this renewal the plaintiff has settled with at least one person who had published reproductions of the picture “The Marriage of the Waters”, she apparently was later advised that she had not any rights under the renewal of the copyright, and, thereafter, on February 7, 1937, after the copyright of the picture had expired, she secured an assignment from Mr. Class, the executor of Mr. Turner’s estate, of all his right, title and interest in the copyright of certain works specifically listed in the assignment, and in all renewals or extensions of said copyrights, and of all rights of action for infringement, past or present, of the copyrights listed.

Among the list of copyrights was the copyright of October 30, 1905, of “The Marriage of the Waters”.

The difficulty that arises in this situation is that this assignment occurred after the expiration of the copyright of this picture, and, consequently, if it conveyed anything, it conveyed only a bare right of action for a past infringement. Assuming that was possible, the fact that it was done by the executor must be shown.

The foundation of this assignment was a decree of the Surrogate of New York County, dated January 30, 1937, of which the part here relevant provided as follows (italics mine): “And it is further ordered, adjudged and decreed that George B. Class as Executor aforesaid execute and deliver any and all instruments, at the cost and expense, however, of Alice T. Yardley, as may be necessary to transfer to Alice T. Yardley all existing copyrights of decedent and rights to renewal of those that are