WERCKMEISl'ER1l. PIERCE & BUSHNF;.LL MANUF'G CO.
445
upon the unwary public or defraud the complainant. If the value of complainant's trade-name is impaired by the fact that the word "Hygeia" also enters into and is conspicuous in the trade-name of the defendant, the conditions are of its own selection, and produced by the concurrent acts of ..the parties. Adopting a name which was, with at least equal right, the adoption of the Waukesha parties for a portion of their name, the complainant obtained the largest measure of protection which could be claimed for it by the adjustment which placed the word "Hygeia," when used alone, as its tradename, while the other claimant must use it in connection with other words indicating the different origin of water. In the absence of allegation or showing that the defendant so only was apparent, employed the trade-name that the word and the qualifying words were not noticeable to the ordinary ob· server, and in the absence of any appearance of attempt to defraud the complainant or impose upon the public, by similitude, or by SO placing or minimizing the qualifying words that they are not fairly observable, there is no occasion f·or interference by the court. can be exercised for the protection of the parties in such trade-mark as they have established by their acts, but not to make exclusive and more valuable that which was not exclusive in its adoption. The complainant is entitled to protection where the word "Hygeia," as applied to commercial water, is used alone, either in fact or in practical effect; but such use by the defendant does not appear from the allegations of this bill, considered as a whole. The decree is therefore reverseq, at the cost of the com· plainant, and the cause remanded, with direction to dismiss the bill.
WERCKMEISTER v. PIERCE & BUSHNELL MANUF'G CO. (Circuit Court, D. Massachusetts. No. 3.149. L PAINTING-INTERNATIONAL COPYRIGHT-PROTECTION AGAINST INFRINGEMENT.
August 7, 1894.)
The provisions of Act Maxch 3, 1891, c. 565, § 3 (26 Stat. 1107), as to copyrighting a painting, axe Independel1t of those In regaxd to copyrighted photographs, and infringement of the copyright of a painting may be enjoined without regaxd to whether complainant had taken steps entitling him to import photographs of it.
2. 8.
SAME-EXTENT OF PROTECTION.
A valid copyright of a. German painting gives protection against any reproduction of it, as by photographs. Under Act Maxch 3, 189J, c. 565, § 1 (26 Stat. 1107), providing that the author or proprietor of any painting "and the assigns of any such person," shall, on compliance with the copyright provisions, have the sole liberty of publishing, one to whom a German artist gives the exclusive right of reproduction and publication Is entitled to. copyright, he being within the term "assigns." Under Act July 8, 1870, c. 230, § 97 (Rev. St. 4962), denying one the right to sue for infringement of his copyright unless he give notice thereof by inserting in the several copies of every edition published, on th&
SAME-WHO MAY COPYRIGHT-" ASSIGNS."
"
SAlolE-NoTICE-INSCRIlUNG COpy.
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,f 1J! I or 'the pagei1ltmedlb.'1:ely fl::dloiving, 1f It btl a,OOQlkHlr, It a map, [no'QlllM'tj p,howgraph, on tlla 'YQr.% to ac,t ,Q+ etc.,
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:·,:'rSUO'biY! Emil ,W 'the, Pierce ,&, .Manufaoturiag,::{)ompany.for iDfringemellt 01. a· CQPyJ!ighteil ,p,alllting. ·De'u-es'loIi,bomplainant. . ;' , .d F' ", ,t fo · (; :.: . Browne; for , "'. '.. '!, :.
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,a,ilda, pf Gerj)lally,pa1llted ill Oils in thl ca,s.',e,. "Die. JIeil. . . .. . ca.c.Hie,", an
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of the Gerinaijy, name <;If the fo119;WN:lgls copy:
i:lghto'ti'EiP\'oduction,-against,· Ii yay.mentof 1500ri!altkB,"a'ndnirlegrttUiWus copies'lheteof. . '. 5,1892" Gustav Naujok."
a irePlico:.i; In the sumtnerpf 1892 he , to tile Grosse lriternati?nale Kunst'ausstelluhg, Where 'it' sold s(nne person' 'unknown' to the artist, and not shown in this case; and neither the artist nor either the picture is, or where it has of the parties to this case know Schulte, a "public art:gal1ery, the rules of which as to suffering copies to be taken are not shown. Nootl,lt::r,publications are proven, except the photolITaphs of the parties to this case. On the 16th of May, ,1892, delirered at the of congress a a.nd a description of it, and obtained i:the. ,fullowing"certifica "
f 'J. t'I,ibrary cit Corigress,Copyr'ight Office, ,WasJ1iilgtQn. "To wIt: Be it remembered, that on the :16th day, qf May, anno. domill! . Ger., have deposited in thIs Office the title of a PaInting, the titleot,descriptionof whIch ill In the following words, to wit: '. ,. l' , J;>I:m CACILI,E· . ' G , Naujok..· , Photo. & Descrip. on file; therlght :whereof they ,claim as proprietors in conformity with the laws of the UnJitedStates respecting Copyrights. ' "A. R. Spofford,Llbrarian of Congress."
: or al;>outthe 15th QfSeptember, 1892; 'complainant put onthe'D1arket in Germany a photograph of the painting,i and imported, or caused to be impOl'ted, the same phot.o-
WERCKMEISTER
& B4SHliIilLL HANUF'G 00.
447
sold it,orcaused it to be sold, in the United States. defendant sold in the United States a photograph, whlCh is an undoubted infringement, if, under the law,thel'e can infringement; and the bill is brought to restrain the defendallt, touching its photograph, and for other relief. . 1;'he photograph of the complainant bears the inscription, "Copyright, 1892, by Photographische Gesellschaft," and reproduces from the picture .the signature. of the artist; but it contains no notice, in the foregoing words, that the painting itself was unless ever copyrighted, there been inscribed on the painting, 01' its mounting,. the notice pointed out by section 4962 of the Revised the of the president of April' 15, 1892 (27 Stat. 1021), tlle·benefit of the international copyright act of March 3" 1891, c. 565 (26 Stat 1106), was extended to German subjects. The act of 1891 (section 3) provides that the two copies of a copyp,botograph required to be delivered at the office of the librarian of congress shall be printed from negatives made within the limits of. the United States, or from transfers made therefrom; and that during the existence of the copyright the importation into the United States of the photographs copyrighted, or any edition or editioDs thereof, or any negatives, shall be prohibited. Conse- . quently the complainant's imported photographs cannot be directly protected by statute. As they are not copyrighted, and are, therefore, not prohibited from importation, it is claimed that, if, his positions in this case are sound, the policy of the provisions olthe third section, to which we have referred, maybe partially defeated. These provisions, however\ are apparently precise, in that they are limited to the cases of "book, chromo, lithograph, or photograph." Littleton v. Oliver Ditson Co. (decided by this court August 1, 1894) 62 Fed. 597. They do not assume to reach any reproduction which does not involve depositing with the librarian of congress two copies; and the case at bar does not fall· within the latter class, but within the class requiring one photograph of the subject-matter of copyright. Therefore we are apparently not met by any broad policy, such as would trouble us in reaching a result not fairly excluded by the letter of the statute. But, as the right of the complainant to enjoin the defendant does not depend on the right of the former to import photographs, we need not particularly investigate the effect of these statute provisions. At the common law, the artist or the owner of the painting can prohibit reproductions of it until he in some way publishes it; but, after publishing it, either by photographs or otherwise, it becomes subject to the same rules as other .published matter, and the public becomes entitled to it. This principle is so fundamental that it need not be elaborated, or fortified by any citation of authorities, and we will only refer on this point to Parton v. Prang, 3 Cliff. 537, 548, 549, Fed. Cas. No. 10,784. Moreover, a mere exhibition of a picture in a public gallery, like that at Berlin, does not, at common law, forfeit the control of it by the. artist or the owner, unless the rules of the gallery provide for copying, of which is no evidence in this caSe. But if, by proper authority, which it does not lie in the mouth of the complain-
448
FEDERAL REPORTER,
vol. 63.
ant in this ¢ase to deny, photog1;aphs' of thispaihting have Deen put on the market: in the' United! States, under such circumstances that they proteCted by the c!opyright statutes,'the public is free to copy it, 'and to'sell copies ofU in the legitimate course of trade, and the bill cannot be maintaiIied: Theprdposlllions of the complaInant necessal'y to malntain his case a;reithat,!tr vii"tue of theiagreementgiven'him by the artist, whicltwe: IUtve !already he was entitled to copyright the painting ttlJel'f,and that he has' lawfully done so; and that, the aH,reproductionsofit'in form. are infl'ingementsl'While he adxtritsthat ,he is neither the author nor the painting,' ;Yet he claims, by;Virtue of the instrument given 'lilin.by Naujok, to come in under the 'words "assigns of any such person/; fonnd in sectton4952 of the Revised Statutes. In response to theeomplainan't'$ claim, the defendant, among other things, refers to section 4962'!ofthe Revised Statutes, and asserts that, even if theeomplainant's position was correct in other respects, he could maintain no action fol'! any infringement of his copyright, because the ,words specified in. the 'section last referred to have not been inscribed'on any visible portion' of the original painting, or on the substance on which the painting is or may have been mounted. Neither party has cited to the court any decided cases nor reo fl:'rred us to any. other authOrities, bearing, directly on the principal questions invol-ved. Yuenglin:g: v. Sehile, 12 Fed. 97, has been brought to onr,attention, as lel:Uling up to the proposition that the proprietor of a painting, merely' as 'such, hM no ,right to a copyright thereon. We do not understanD. that such is a proper inference from that case, or that the statute law is to that effect. have no occasion to make any issue touching any questions which were actually decided in that case. Our attention is also called to Schumacher v. Schwencke, 30 Fed. 690; but this case, so far as it applies to the CMe at bar, is only in harmony with Gambart v. Ball, 14 O. B. (N. S.) 306; Rossiter v. Hall, 5 Blatchf.362; Fed. Oas. No. 12,082; and Ex parte Beal, L. R. 3 Q. B. 387, 394,-to the effect that the person holdin'g the copyright of an original painting is protected against any reproduction of it, whether by a photograph of it, by a reproduction of an authorized photograph, or in any other manner. The decisions of the English courts are of but little assistance,because their statute tOtlching copyrights of original paintings (25 & 26 Viet. c. 68) makes special provisions with reference to the right to a copyright impliedly passing with the picture itself; and also the general copyright act now in force (5 & 6 Viet. c. 45) contains,in section 2, a definition of the word "assigns," and, in section 25, provisions about the nature of the estate in copyrights, not found in the stahltes which govern us. Some English cases will, however, be referred to, which relate incidentally to the de· termination of this case. Returning to the principal propositions at issue, they divide themselves into three::' First, whether the complainant had a lawful right to copyright the original picture; second, whether, if the copyright isvalid,it carries with it protection against all reproductions
WERCKMEISTER V. PIERCE & BUSHNELLMANUF'G CO.
449
of it, including the photographs of the defendant; and, third, whether the omission to inscribe on the original painting, or its mounting, either of the expressions required by the copyright statutes, and already referred to, bars this action. If either of these propositions is determined against the complainant, we, of course, need go no further. We have no doubt that the law is correctly laid down in the cases to which we have referred,-that the author or proprietor of a painting, who properly copyrights it, is protected against all reproductions of -it in any form. This proposition is so fundaI!lentally essential to the policy of the copyright statutes that it needs no elaboration; and it follows logically that, if the complainant in this case, who received from the artist the exclusive right of reproducing the painting, became thereby entitled to a copyright, his copyright protects him as fully as the artist would have been protected if he had reserved his right of reproduction, and taken the himself. Therefore, on the second proposition at issue, we are clearly with the complainant. It is to be observed that the instrument given by Naujokto the complainant contained no expression of any authority to copyright, in the name either of Naujok or the complainant; but this is of no consequence if the complainant's contention is correct that he is covered by the words "assigns of any such person," already cited. In accordance with that contention, the complainant registered the copyright in his own name, and on his own right, and not in the name of Naujok, nor on the assumption of any agency coming from Naujok, either revoeable or otherwise. It is also to be noticed that the case runs clear of the difficulties which would arise from the word "sole" in section 4952 of the Revised Statutes, if the right vested in the complainant by Naujok had not been exclusive, even as against Naujok himself. At the common law the right to control the publication of a painting follows the title to the painting. It vests in the artist so long as he retains the painting; but when it is sold by him, if sold without any qualification, limitation, or restriction, all the incidents of the painting, including that of controlling its publication, vest in the purchaser. This is in strict harmony with thp- law touching the incidents of property, and flows necessarily out of it. We hardly need to cite authorities to sustain this proposition, but refer again in this connection to Parton v. Prang, 3 Cliff. 537, 550, 551, Fed. Cas. No. 10,784. The English copyright statute (25 & 26 Viet. c. 68), which created the law authorizing copyrighting of paintings (Fishburn v. Hollingshead [1891] 2 Ch. 371, 379), and which is still in force, contains regulations touching this matter, enabling the artist, when disposing of his painting, to retain or dispose of the right to reproduce it. But nothing of this na,ture is found in our statutes, and the question arises, therefore, how far their general terms are intended to vary from the practice of the common law referred to. Is there or is there not enough in them to overcome the presumption that the statutes do not change the common law, except so far as the intention to do so is apparent? In the absence of something showing an intention to vary the common-law rule, it must be presumed to v.63F.no.3-29
4150 We do Dot. meap. ,by cJhat at common the owner ota 'IUtiP.t!Pg 'liIOmeother person thaq himself to publication, or thllthe might not dispose of the paintto himself pfsuch election; but we mean law this rigllt is presumably to say" tllll.<t, inasmuch as at in of the paintipg" it requires something more than general expressions in to satisfy the court of an intention to vesttl);E! privilege of in any other person than. the,i,one in whom exists. Moreover, the word "assigns," on which the complainant relies, is ordinarily construed as,OI),ly indicating the nature of estate, and its ordiis only to the extent of declaring that is obnary tainedis of'lJ-n assignable.eb.Q,J'acter", .Strictly, an authority to assign, or au assignment, relJl,tes ,to w:tt,at already exists, and has no pertinency to the cl,'fatiQn of ,a. right out of another right, -asby:tlle instrument given py:Naujok to the COmplainant. Such are ordinarily. :spoken, of as '.'licenses," and not and the of :them as "licensees", and not "assigns/' ,This is the cOlllmonruleunder the statutes touching patents, although they contain so much more elaborated than touching 'copyrights that it is not safe to reason too liberallytroJD one to the other. Instruments of this class relating to patentlH,tre ordinarily regarded as strictly in gross." Oliver v. 109 U.S. 75; $2, 3 Sup. Ot. 61. Bu.t the instrument in this case is so stroJ;l.gly ,expressed that it must be construed as vesting in the' cOJUplain,ant all the right of publication which Naujok had; or ever cO,uld have" and therefore as vesting a full estate, Which would pass by succession, and also be assignable. The instrument, having been executed in Germany,where the technical rules of the comlllon law touching the particular phraseology required to create more than a life estate or a personal interest do not exist, is especially free· from doubt on this score. It cannot be questioned that all tbe right which Naujok had to publish or reproduce passedout,9f him, and, as it was in him assignable and descendible, it follows ,necessarily that the same qualities attach to ita,svested in the complainant. It is for this, with other reasons, that, as we no embarrassment arises in this ca;se. from the word, "sole" in section 4952 of the Revised Statutes. Following out the saJUe line touching the distinction between transferringjnterests already e:xlisting and creating new ones, and itisstated in Oopinger on the betweenaasign:ments and Law of Oopyright (3d Ed. p. 449) it .has been decided that a document conveying the sole t',ighttoreproduce a picture in chromos; . or in llny other form of col()rpainting, for the term of two years, was nQt an assignment, and therefore did not need to be registered; but. the learned author questions this decision. In Lucas v. Cooke, 180h. Div. 872, Mr. JustieeFry-'Of especially large experience and ability in cases ·of this character,-used,with reference to an instrument of this nature,the words "assignment" and interchlU;lgeably; and, on the whole,it involves no vio-
WERCKMEISTER 'II. l'IE1WE&
BusinmLL' lUNUF'G co.
451
lent presumption to maintaih that section 4952 of the Revised Statutes, in its u'se of the' word "assigns," had no reference to its narrow, technical. meanirig to which we have referred.' The English statute, 25 & 26 Viet. c. 68, already referred to, in designating the persons who may copyright an original painting, uses only the word "author," and the words "and his assigns." The word "proprietor" occurs at various points in the English copyright acts, but not in this, connection; and the same may be said as to the copyright statutes of the United States prior to the act of July 8, 1870, c. 230, § 86' (16 Stat. 212). The provisions of the statute last named were re-enacted by section 4952 of the Revised Statutes, and further re-enacted, so far as this point is concerned, by the first section of the international copyright act of March 3, 1891, c. 565 (26 Stat. 1107). As there found, it provides, in terms, that the "author * * * or proprietor of any * * * painting * * * and the assigns of any such person shall, upon complying with the provisions of this chapter, have the sole liberty of printing, reprinting, publishing, completing, copying, executing, finishing and vending." The phraseology of the statute 25 & 26 Viet. c. 68, might not require going beyond the ordinary implications of the common law, or beyond holding that the word "assigns" con· templated anyone except the purchaser of the painting itself. But section 4952 of the Revised Statutes, as re-enacted in the international copyright act, in addition to the word "author," uses the word "proprietor;" and this latter word extends to paintJngs as well as to the other matters designated in the section. By the word "author" and the word "proprietor" our statute eXhausts everything which the English statute necessarily covers by the word "author" and the words "or his assigns;" and, if nothing more was contemplated than is provided by the English statute, the word "proprietor," or the word "assigns" in our statute-one or the other of them-would be necessarily surplusage, and of no effect The language of our statute is not only explicit in including "author," "proprietor," and "assigns," but is rendered even more so by the use in the same connection of the words, "upon complying with the provisions of this chapter." These demonstrate that the assigns, equally with the author or proprietor, may register and complete the copyright. Applying the ordinary rules of construction, the court must ascertain, if it can, why, after using the word "proprietor," our statute also uses the word "assigns." ,Certainly this requirement cannot be met if the word "assigns" is limited to its ordinary technical meaning, already referred to, or to the holder of the original painting; because all this is covered by the word "proprietor." We therefore cannot escape the conclusion that the statute requires us to broaden out the. class of persons authorized to take out a copyright, so as to include others than mere proprietors of the paintings themselves, having regard always, of course, to the word "SOle," which the section contains, and to which we have already referred. We are unable to perceive the force of aU these words, unless the statute covers cases of the precise character of this at bar. What
452 the .
:FEDERAL REP()RTER,
accQmplil:l4ed in this case by fifl:lt'registeringacopyCQpyrights by Naujok,. or in his ri#ffie, and bl his them absolutely, andw!thout ,to the complainlJ;Ilt The result, under 'CIrcumwould have been the same the result which the maintai4s; and certainly a construction of a aV'oids this circumlocution cannot be unjust or sense. On the whole, we think the complainant rigli-qv1J.y and effectually the copyright, as maintained by, him" ".' , history of the legisU!.tion in the United States has not been lUnch aSlilistance tq the ,c.ourt, but on the remaining proposition Jtproves to, ,be of The defendant claims that of'the ltevised Stat,'Q,teli!\is to be read literally, and that, it ,ilie p.ptice, to be .inscribed on the paintor at least on the .moUnting of it If the defendant is rig,ht1in,,'itl1i,' litera,l re,"adin, it, ',·s ·lg, ',that th,e, statute is sl:1-tisfied by inscr1J)mg the notice on the 0!igW:i!l painting, or its mounting, and that thereof, ,;wqether in engravings, photographs, or gq ,free from ;the. ;D1>tf.,ce. The supre)llecQurt has said, what mX1lJtbe Pl;l,tent to every 0Il-e, that the object of the statute in this' particular ,is to give notice, of the copyright to the public. Lithog,raphic Co. "v. Sarony, 111 U. S. 53, 55, 4 Sup. Ot. 279. The the, statute, therefore, would wholly fail of accomplishinscribing, notice on thel, ,painting only, which presumably passes 'into some ppvate collection, entirely out of the view of the gener81public.. ,'.L1lis is so patent that it need not be enlarged upon, and,WQ1¥dbe enough of itselfto'persuade the courts very urgently to IOQlF,; if necessary, beyond the' mere letter of the statute. Moreover,flle same clause of section 4962 on which the defendant relies photographs, chromos, and various which nee4.not be specified; and, if the defendant's construction properly applies to paintings, it would seem to follow, that it applies to all the other articles named in the same clause". ah<l that the notice, therefore, should be inscribed on some originW, or quasi original engraving, photograph, or chromo, and not on the copies thereof which go out to the public. But the practicea:s to such articles is distinctly the other way, and its correctness w8rs expressly recognized in the decision of the supreme court last in which the court said that the notice is to be given by placing it ."upon,each copy." Thus, in a single sentence, the supreme cour;t has torn down the structure of apparent literalness on which the, defendant relies. of the history ,of the legislation out of which section qeveloped makes the result entirely clear. The first statute the inscription of a notice was that of April 29, 1802, c. 36 171). At that time the province of the copyright laws was.p.arrow, and was divided in that statute into Sec,tiQD,1provided that the copy of the record of registration required by law to be published in one or more newspapers should be in-
"claims
has, been
WERCKMEISTER II. PIERCE &: BUSHNELL MANm"G CO.
,453
serted on the title-page, or the page immediately following it, of every book, but that in the case of a map or chart certain abbreviated phraseology, pointed out by the statute, should be impressed "on the face thereof." Section 2 extended the copyright privilege to historical and other prints, and required that the same entry impressed on the face of maps and charts should be engraved on the plate, with the name of the proprietor, and printed on every print. Under this statute it was clear that the notice prescribed should go out to the public on every copy protected by the statute, and evidently the engraving of it on the engraver's plate was only, to make sure that the main purpose of the statute was accomplished. The next statute is the act which so long stood as the copyright code of the United States,-that of February 3, 1831, c. 16(4 Stat. 436). The provisions of that act touching the question now under examination we reproduce here at length: "Sec. 5. .And be it further enacted, that no person shall be entitled to the benefit of this act, unless he shall give information of copyright being secured, by causing to be inserted, in the several copies of each and every edition published during the term secured on the title-page, or. the page immediately following, if it be, a book, or, if a map, chart, musical COmposition, print, cut, or engraving, by causing to be impressed on the face thereof, or if a volume of maps, charts, music, 01' engravings, upon the title or frontispiece thereof, the following words, viz: 'Entered according to act of congress, in the year , by A. B., in the clerk's office of the district court of " (as the case may be)."
This statute somewhat extended the scope of the copyright privilege, but left the provision on this point entirely clear. A distinction was made· by section 5 between a book on one hand, and a "map, chart, musical composition, print, cut, or engraving" on the other; but it was only as to the precise place on which the notice should be inscribed,-in the one case on the title-page, or the page immediately following it; and in the other on the face, with a provision that, in cases of volumes of maps, charts, music, or engravings, it should be on the title-page or frontispiece. Except as to the mere place of impressing the notice, the statute applied without discrimination to all articles within the scope of the copyright privilege, and looked for the inscription of the notice on every copy which went out to the public, and nowhere else. The words, "the several copies of each and every edition," ran through and governed every part of the section. This is so clear that it needs nothing to be added to the statement of the fact. The next act was that of August 18, 1856, C. 169 (11 Stat. 138), which contained nothing to be noticed in this connection. Next came the act of March 3, 1865, c. 126 (13 Stat. 540). This is important, because it first extended the copyright privilege to photographs, and provided that this extension should inure to the benefit of the authors of photographs "upon the same conditions as to the authors of prints and engravings." In other words, when photographs first came into the copyright statutes, they came in under the clear provisions of the fifth section of the act of 1831, requiring the inscription of the notice to be on every copy going out to the
:454
'FJIDERAIi BEPOBTER,
public, and n;()wllereelse. r.Dl;tat was the law when the Revised Code of c.230:(16, Stat. 198), was adopted. ,The provisionweare' lO!!)k.lng for' lsfdund in ,section 97 of that act. This the ,copyright'privilege to paintings, statues, "statuary, 'mOdel!!'; i '8:Dd' tleBignl:!;' apd Section 97 was, a consequent attempt the additional Jtl"ticles by condensation of phraseplogy/It 'w8aQaiterwardiwinc<>rpbl'llited into section 4962 of the .Devised defendant rests. To this time there had Qf,'anypolicy except that which the Supreme coul1:, 'in the citatidn: IWE! i liave made, had said was neces· sary to' give the public '. notice<of'the copyright privilege claimed,.,-a {lolicy which we have already. seen expressly included photocharts as'weH as books. In this attempted con· graphs, maps, delDJation, maps; charts, andphotogI'aphs were dislocated from the .express provisl<lD' touching, books, and a.ssociated with paintings, statues, statuary, models, and 'designs. As: no reason can be sug.,geared for any i,ehange:touuhing maps, charts, and photographs, 'presumpti0ll. .is. that, congress intended, notwithstanding the phraseology' the law should continue the, same · tb1spre'suJnption stands, it carries with it the same law ·fol'painting.s as for maps, charta,and photographs. 'Loganv.U.S.r '1'44U.S. 263,302,12 Sup. Ct. 617. The whole section 'was as folf()wa'1 ." , '.: .', '. , . ' ., . .: .,
ana
i .i
.,' ,. .,
'
"Sec. 97. And be It further enactoo, that no person shali maintain an action for the of hill unless he shall give notice, thereof by Insel'ij:l)g·1n,' the several copies of every edition published. on the or page Immedll\.t61y fl:111owing, If It a book; or If a map. ,cbart, f:lOmposftlon. print" .engravlng, photograph, painting, draw. lng', chroJiu),.stlltM, statuary, ot'til0del or design intended to be perfected and 'completed "!ltd.. 'work of the fine arts, by inscribing upon some portion of the face or front: or on the faceo! the substance on which the same shall ·be Illountoo, thlilfollowing. 'Entered according to act of cong-ress, .1D the year by A. B., In 'the ,Qffice of the librarian of congress, at WashIngfun.''' '
The words, ,"several copiesQf .every edition published," may well beheld to permeate portion of the section commencing with the words "if a map, chart," etc., as effectively as it does the words '<if it be a book," and the section may well be construedpreciselyethe same as if the words "if it be a book" preceded the words "on the title-page." The word "thereof," in the latter part of thesecuon,may well be held to refer back to the words "the several copies," in .its early part.' For clearness, we give the seetionas thus'rearranged: , -'That maintain' action for the Infringement of his copyright, uniess he'sball ,give notice thereof by Inserting in the several copies of ep.itiollPubUshed, 'if it ,be book, on the title-page or the page imor ,1\ map,chart, · · · painting, · · · by portion of,·the face or front thereof · · ·."
an
Under the circumstances; the breaking up and dislocation of tbe section into sentences or phrases should be held to have been merely for the purpose of indicating the place where the notice is to be inscribed, according to the SUbject-matter of the publication,-
WERCKMEISTER V. PIERCE & BUSHNELL MANUF'G CO.
450
that is to say, on the title page, or on the page imm.ediately following, if it be a book, but, if it be other matter, on the face, or front; and it should be further held that in all other particulars the directions of the statute are identical with reference to each article to which the subject-matter relates. A rearrangement of clauses or parts of sentences is justifiable under the most common circumstances, and is especially justifiable in order that the statute may not be read contrary to its plain purpose and the general public policy. A careful comparison of this section of the act of 1870 with the corresponding section of the act of 1831 shows that there are no other differences, except those of detail, required by the extension of the copyright code, nor any which can affect the proposition we are considering. This provision of law, as we .have already said, was re7enacted without substantial change in section 4962 of the Revised Statutes. It was again re-enacted in the act of June 18, 1874, c. 301 (18 Stat. 78). The only differences are the option of the shorter form of notice contained in the latter statute, and. a broadening out of the provision touching the portions of the published article on which the notice may be inscribed. No other purpose in the last enactment was suggested in Higgins v. Keuffel, 140 U. S. 428, 11 Sup. Ct. 731, in which it is somewhat referred to. The only remaining act to be considered is that of August I, 1882, c. 366 (22 Stat. 181). The main purpose of this statute was to make sure of the accomplishment of one general purpose of the act of 1874. The latter required that the notice be inscribed on some visible portion of the published articles, while the act of 1882 expressly permitted it, under some circumstances, to go on the back or bottom of such articles, although in some senses the back or bottom might not always be visible portions thereof. The reading of the act of August 1, 1882, contains, however, a legislative construction of the prior statutes on the point which we are considering. The prior statutes included designs in the same class with maps, charts, photographs, and paintings. Therefore if, with reference to paintings, the inscription is to go on the painting itself, it would follow, as a matter of course, that, with reference to models and designs, under section 4962 of the Revised Statutes, it should appear on the original models and designs, and not on the articles put on the market constructed according to them. But the act of 1882 says in terms that the manufacturers of designs of molded decorative articles may put the mark prescribed by statute, not on the designs, but "upon the back or bottom of such articles." As the clear purpose of this statute related entirely to the place where, on any particular article, notice might be inscribed, and it clearly was not in any way intended to change the law as to what the inscription shall be impressed on, the effect of this phraseology cannot be mistaken. On the whole, while we must admit that the phraseology of the statute is unfortunate, and might have been more clearly and positively expressed, we are convinced that, as we have already said, the differences in the various phrases l'elateentirely to the place on which the notice is to be inscribed, according to the subject-matter of the article published, and that,
456
witbthat exception, the,phfases apply alike to alldasses of articles, and'.'1'elate entirely to' to be inscribed on what goes to the' pp.bUc iil various fUt'n1s. and editions,and that there is no reo q\iiretilept that any shall" be inscribed on the painting itself, more than''there is that there' shaU be an original or quasi. original map, composition,pi'int, cut, engraving, photograph, drawing, or model' of,(lesign, to be ihscribed with the notice, as thedefendlUltclaims the painting in this case shOuld have been inscribed.' , also Claims that the words inscribed on the photograph;n$mely, "Copyright, 1892, by 'Photographische Gesellschaft," give 'no iriotice that the' painting has been copyrighted, and imply only thatthephotograph' has been. If this is so, tbe fault is that of of th'ecomplainant, as he has used exactly the iti1posedbylaw. Undoubtedly the statute, if it had not been! !socondensed,might have given a form of notice more in harniony'with the facts of cases of this character; but we can see that'irithis notice there is enough to give anyone who is looking for the'trutp., and who desires to avoid infringement, the thread which w:ilt lead· himeasHy ito the actual condition of the copyright. There issoIilething in the form of thisiiotice which tends to sustain the contentibn of the 'defendant that it should have been inscribed on the painting itself, but not enough to overcome the force of the rules of construction which have led us to the result we have explained. We perceive nothing further in the case which requires any observ'ationsfroDl the court. DecreefOl' the complainant.
BURKE v. DAVIS. (Circuit Court. N. D. Illinois. July 21, 1894.) l.CUBTOMB Dt1TOts"-CONSIGNMENT TO AGENT- V ALTDTTY.
Act June 10,1890, § l,providlng "that all merchandIse imported into th6 United States shall, for the purpose of this act, be deemed and held to be the propertY of. the person to whom the merchandise may be consigned," the consignment of imported goods to another than the does n9t' real owner.' . JUDGMENTS AGAINST COLLECTORS FOR AN .
2.
CLAIMS AGAINBTUNITED STATES EXCESS OF DUTIES.
a.
Judgmentli against collectors for an excess of duties collected are not "claims upon the. United States," within the meaning of Rev. St. § 3477, which makes void transfers and assignments of any claim upon the United States. unless freely maqe and executed in the presence of at least two attesting after its,allowance, etc. Even are claims upon the United States, the statute does not af(ect assignments to the real owner of the judgments, made by an agent'i11 whose name they were rendered, by order of a court, since such statuteapplles only to voluntary lI.SSignments. OF DUTIES.
I:lAME-AsSlGNMENT ORDERlilD BY COURT.
4. EQUITY- JURISDICTION TO COMPEL ASSIGNMENT OF JUDGMENTS FOR EXCESS
'Where all importer obtains judgments, in the name of his agent, against a collector, for an excess of duties collected on' goods imported in the