Co. v. J. W.
. (Circuit Cqurt, N. D. Illinois.- February 24, 1884.)
PLEADING-INFRINGEMENT OF COPYRIGHT-NECESSARY ALLEGATIONS.
In a suit to recoverfor the infringement of a copyright, the declaration must set out in detail a substantial compliance with the various requirements of the copyright laws.
Demurrer to Amended Declaratlon.
BLODGETT, J. This is a demurrer to the amended declaration, in which there are five counts. It is a suit for the alleged infringement of a copyright. The allegation in each of these counts is that the plaintiff was proprietor of a certain musical composition entitled "I will meet her when the sun goes down," words and music by William Welch; that on October 19, 1882, plaintiff caused the same to be recorded in the office of the librarian of congress, and afterwards published divers copy of this musical composition, with the words "Copyrighted by the Chicago Music Company" printed on each copy; and that the defendant, since the recording of the said work in the office of the librarian of Congress, has infringed upon the plaintiff's exclusive right so secured to him by virtue of the copyright laws of the United States. The question made by the demurrer is whether the plaintiff has sufficiently set out his title as the holder and owner of this copyright by this averment. The law authorizes the owner, author, or proprietor of. a book, musical composition, etc, to copyright the same, and it is to be copyrighted· by delivering at the office of the librarian of congress, or by depositing in the mail addressed to said librarian, before publication, a printed copy of the title of such book or musical composition; and also, within 10 days from the publication of such bOQk or musical composition, the author or owner of the copyright must deliver at the office of the librarian of congress, or deposit in the mail addressed to such librarian, two copies of such book or composition. These are the steps which must be taken to seoure the copyright in a musical oomposition like this. This exclusive right to authors is a monopoly for. the term of the copyright, and in order to secure it there must be a substantial compliance with the terms of the statute. It is not like a patent in this: that an applicant for a patent applies to the co;m.missionerofpatents, setting out his claim, and a quasi judicial proceeding is instituted before the patent-office. An examination is made as to the novelty and usefulness of the invention, and if the allegations of novelty and usefulness are adjudged to be sustained, the patent-office issues a patent, which is prima facie evidence of both the novelty and usefulness of the device, and that the patentee
Frank J. Bennet, for plaintiff. McCoy, Pope &: McCoy, for defendant.
CHICAGO MUSIC CO. V. J. W. BUTLER PAPER CO.
is the first inventor thereof. But the librarian of congress possesses no power in the premises; he simply receives the title when it is delivered or forwarded to him, and makes a record of it in his office, and receives the two copies 'of the publici1tion when published, and which must be forwarded to him within 10 days after the publication is made, and makes a record of the receipt of the copies. The libra-: l'ian issues no certificate, or anything in the nattge, ofa patent; he simply makes a record, and whenever called upon has to make a certificatl'l of whatever the records of his office show towards a compliance with the terms of the law. The rights of the patty holding a copyright, therefore, depend wholly on whether he has in fact complied with the terms of the law or not, and not upon the fact that he has tained a certificate from the librarian. In this case the five'counts in the declaration are barren of any averment of compliance with 'the terms of the law. The plaintiff alleges he was proprietor of this musical composition, but he does not state how he became proprietor; he does not state except inferentially. who was the author. of thecbmposition in question. He says that he was proprietor of a musical composition known by a certain title, the words and music by William Welch, but how he acquired the proprietorship from William Welch, or whether William Welch was the author, is only, as I saJd, inferentially to be obtained from any statement in the declaration·. body but the author, or some person who hasacquireil' the authol"s right to a copyright, can :Obtain a copyright under the law.; and I think that where a person attempts to copyright as proprietor, and avers that he has copyrighted as' 'proprietor, he must show how he became proprietor, because no intendment will be made in favor of an exclusive monopoly of this character. The plaintiff must show that he has taken the steps required by law. He!e there.is.no st,atement in the first place, as I have already said,that he ever was either the author or proprietor by virtue of having acquired the rights of the authOr; there is no averment that he the librarian of congress, before publicatipp, the title of the work; and that .within 10 days after publication he delivered or forwarded to the congress the two copies required by the la.w which ma.kehis copyright complete.' The demurredo this amended declara.tion must therefore be sustained. . .
(Distriot Oourt, D. NfIIJ) JftI'sey.
An engine was furnished to a steam-lighter under a written contract of sale, by which it was to remain the property of the vendor till paid for. The engine was attached by screws to the vessel. The contract was made in New York, but the lighter afterwards went into New Jerse,v, where an attempt was made by the creditors of the vessel to attach the engme. Held, that the engine remained the property of the vendor, and could not be attached. An agreement by which goods delivered to the vendee are to remain tbe propertyof the vendor till paid for is a conditional sale, and not a chattel mortgage, within the of the registration acts. In the absense of fraud the vendor's title will prevail over an attachment.
SAME-NOT A OHATTEL MORTGAGE.
CONFLICT OF LAWS-LEX SITUS.
Such is, at all events, the law of New Jersey, (Oole v. Berr.l/. 13 Vroom, 308 0) and property brought into a state becomes subject to its law and policy, which will govern the construction of contracts made elsewhere with regard to the transfer and disposition of the property.
In Admiralty. John Griffin, Jr., (with whom was Bedle, Muirheid d; McGee,) for libelants. Hyla,nd d; Zabriskie, for petitioner. NIXON, J. On the twenty-ninth of July, 1880, the Lidgerwood Manufacturing Company furnished to the steam-lighter Marina a double hoisting engine, at the request of her owner, J. A. Cottingham, upon the terms specified in a paper, of which the following is a copy:
"NEW YORK, July 29, 1880.
"Lidgerwood Man.. 00. Machine Ware-rooms, No. 96 Liberty street, New York-GENTS: Please furnish and ship to steam-lighter Marina, to remain as your property until fully paid for by me in cash as below stated, the following: One double hoisting engine, same as prOVided me for stearn-lighter Joseph Hall, at $450. To be paid for 3S follows: Fifty dollars in equal monthly payments. And unless so paid for, you are authorized to enter and retake the Same into your p08session, wheresoever she may be found. The same to be held fully insured by me against loss or damage by fire, and to be J. A. COTTINGHAlIl, 11 Dey St., New York." kept in good order.
The engine was placed on board the steam-lighter, attached to the deck by screws, and used since that p.ate in her ordinary business of lighterage. In this condition of affairs a number of libels in rem were filed, and monitions issued out of this court against the said steamer, her engines, and tackle, in favor of creditors claiming liens for supplies, repairs, labor, etc. The marshal of the district, by virtue of said writs, seized the vessel, her engines, tackle, and apparel, and, by order of the court, has advertised her for sale for the satisfaction o! 'l.lleged liens amounting to about $7,000. The Lidgerwood Manufacturing Company has demanded of the marshal the surrender of the possession of the hoisting engine, claiming the same as its property.