American Tobacco Co. v. Werckmeister

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American Tobacco Co. v. Werckmeister

Copyright case discussing publication. The exhibition of a painting at an exhibition where copying is prohibited does not constitute general publication.

84881American Tobacco Co. v. Werckmeister — Syllabus
Court Documents

207 U.S. 284
American Tobacco Co. v. Werckmeister

Error to the United States Court of Appeals for the Second Circuit
No. 28 Argued October 30, 1907 Decided December 2, 1907

[p295] This is a writ of error to the circuit court of appeals for the second circuit, seeking reversal of a judgment affirming the judgment of the United States circuit court for the southern district of New York in favor of the defendant in error, adjudging him to be entitled to the possession of 1196 sheets, each containing a copy of a certain picture called Chorus, the same representing a company of gentlemen with filled glasses, singing in chorus. The painting was the work of an English artist, W. Dendy Sadler. The defendant in error claimed to be the owner of a copyright taken out under the law of the United States.

The judgment was rendered under authority of 4965, as amended March 2, 1985 ([28 Stat. at L. 965, chap. 194] U.S. Comp. Stat. 1901, p. 3414).

In January, 1894, by agreement between the artist and Werckmeister, the defendant in error, it was agreed that the painting should be finished by March 1, and then sent to Werckmeister to be photographed and returned to Sadler in time to [p286] exhibit at the Royal Academy in 1894. The painting was sent to Werckmeister at Berlin, where it was received on March 8, 1894, and was returned to Sadler in London on March 22, 1894. On April 2, 1894, the artist Sadler executed and delivered the following instrument:

I hereby transfer the copyright in my picture Chorus to the Photographische Gesellschaft, Berlin (The Berlin Photographic Company), for the sum of 200.
London, April 2, 1894
(Signed) W. Dendy Sadler.

Werckmeister was a citizen of the German Empire, doing business in Berlin, Germany, under the trade name of "Photographische Gesellechaft," and did business in New York city under the name of the "Berlin Photographic Company."

The Photographische Gesellschaft of Berlin, by letter dater March 31, 1894, received on April 16, 1894, deposited the title and description of the painting and a photograph of the same in the office of the Librarian of Congress, the intention being to obtain a copyright under the act of Congress. [Rev. Stat. 4956] U.S. Comp. Stat. 1901, p. 3407. After the painting was returned to London it was exhibited by Sadler at the exhibition of the Royal Academy at London, and was there on exhibition for about three months; the exhibition opening the first Monday of May and closing the first Monday of August, 1894. The exhibition was opened to the public on week days, from 8 A.M. to 7 P.M. upon the payment of the admission fee of 1 shilling, and during the last week was open evenings, the entrance charge being 6 pence. There was a private view for the press on May 2, and on May 3 up to 1 o'clock, and the remainder of the day was for the Royal private view. There was also a general private view on May 4. The members and the associate members of the Royal Academy and the artists exhibiting at the exhibition and their families were entitled at all times to free admission, and they, as well as the public, visited the exhibition in large numbers.

During the time that the painting was shown at the exhibition it was not inscribed as a copyright, nor were any words [p287] thereon indicating a copyright, nor on the substance on which it was mounted, nor on the frame, as required by the copyright act ([18 Stat. at L. 78, chap. 301] U.S. Comp. Stat. 1901, p. 3411), if the original painting is within the requirements of the law in this respect.

The painting, while on exhibition, was for sale at the Royal Academy, but with the copyright reserved, which reservation was entered in the gallery sale book. The bylaws of the Royal Academy provided "that no permission to copy works on exhibition shall on any account be granted." The reasons for the by-law, as it appears upon minutes of the Academy, are as follows:

"That so much property in copyright being intrusted to the guardianship of the Royal Academy, the council feel themselves compelled to disallow, in future, all copying within their walls from pictures sent for exhibition."

The photogravures of the painting were placed on sale in June, 1894, or in the autumn of 1894; those photogravures were inscribed with the notice of copyright.

Mr. Sadler, the artist, afterwards, in October, 1899, sold the painting to a Mr. Cotterel, residing in London, England, since which time, so far as has been shown, it has been hanging in the dining room of the house of that gentleman.

On June 20, 1902, Werckmeister commenced an action, by the service of a summons, against the American Tobacco Company, plaintiff in error, and on the same day a writ of replevin was issued out of the circuit court of the United States for the southern district of New York, directed to the marshal of the same district, requiring him to replevin the chattels described in an annexed affidavit. Under the writ the marshal seized upon the premises of the American Tobacco Company 203 pictures. On July 23, 1902, Werckmeister caused another writ of replevin to issue out of the same court, directed to the marshal of the western district of New York, under which writ the marshal seized 993 pictures.

An amendment to the complaint set forth the seizure of the pictures. The copies seized were adjudged to be forfeited to the plaintiff, Werckmeister, and to be of the value of $1,010. [p288] The judgment rendered in the circuit court was taken upon error to the United States circuit court of appeals and there affirmed. 76 C.C.A. 647, 146 Fed. 375. The present writ of error is prosecuted to reverse the judgment of the court of appeals.

Mr. William A. Jenner for plaintiff in error. [p289] Mr. Antonio Knauth for defendant in error.