13 fact on which copyright depends,12 the effect of the statute is to go a long way toward making the certificate prima facie evidence of copyright. English statutes. Under the act of 1911 there is no registration of copyright,14 but plaintiff's case is aided by certain presumptions as to the subsistence and ownership of the copyright,15 and the authorship of the work.16 A certified copy of the entry at Stationers' Hall was prima facie evidence of proprietorship under the Copyright Act of 1842.17 Under the Canadian Copyright Act certificates of registration are prima facie evidence of due compliance with the requirements of the statute entitling the party to registration." [§ 416] (3) Catalogue of Copyright Entries. The present law requires the register of copyrights to prepare and publish indexes and catalogues of copyright registrations and assignments, and provides that such catalogues of copyright entries and index volumes shall be admitted in any court as prima facie evidence of the facts stated therein as regards any copyright registration." [417] (4) Citizenship and Domicile.20 Slight evidence is sufficient to establish the necessary The presaid [§ 418] (5) Authorship and Originality.23 The fact that the plan, arrangement, and combination of a copyrighted work originated in the brain of its author may be proved by some person other than such author,24 but proof of this character has been held insufficient.25 The court's judicial knowledge may be applied in determining an issue of originality.26 The librarian's certificate under the former law was no evidence of authorship.27 It may be otherwise under the present law which requires the certificate to state the name of the author, and makes the certificate prima facie evidence of the facts stated.28 Originality may be shown by the direct testimony of the author,29 and circumstantial evidence may aid the case. 30 [ 419] (6) Deposit of Title and Copies. A certified copy of the record of titles deposited for copyright is competent and sufficient evidence of the deposit of the title.31 Deposit of copies of the work in the copyright office, or in the mails properly the case of a book the certificate | L. 30. See also infra § 423. [a] In Canada a certified copy of 18. Bernard v. Bertoni, 14 Que. L. 219; Anglo-Canadian Music Publishers' Assoc. v. Dupuis, 27 Que. Super. 485, 487, 2 ComL 503. 12. See supra note 11. to 13. Chautauqua School of Nursing v. National School of Nursing, 211 Fed. 1014 [rev on other grounds 238 Fed. 151, 151 CCA 227]. "By law these certificates are prima facie evidence that the plaintiff has complied with all the requirements of the statute to entitle it to such registration. Yet the defendant is not debarred from making proof to rebut such prima facie evidence." Anglo-Canadian Music Publishers' Assoc. v. Dupuis, supra. 19. Act March 4, 1909 (35 U. S. St. at L. 1075 c 320 § 56). 20. Burden of proof see supra § 413. 21. Patterson v. J. S. Ogilvie Pub. Co., 119 Fed. 451. [a] Evidence held sufficient.-"It is further contended that the copyright is void because it is not affimatively shown that complainant, when he applied for copyright, was a citizen of the United States, or a resident therein.' The certificate from the librarian describes him as of New York,' and he testifies that he is now resident here, and that he mailed the two copies June, 1890, in New York City. The evidence is slight, but, in the absence of any evidence to the contrary, would seem to be sufficient." Patterson v. J. S. Ogilvie Pub. Co., 119 Fed. 451, 452. 22. Patterson v. J. S. Ogilvie Pub. [a] Illustration.-"That the lecture was protected by copyright is shown prima facie by the certificate with seal of the copyright registration and the receipt card stating that the register received the affidavit conforming to the requirements of section 16 of the Copyright Act (Act March 4, 1909, 35 U. S. St. at L. 1079, c. 320 [U. S. Comp. St. Supp. 1911, p. 1477]). The case of Saake v. Lederer, 174 Fed. 135, 98 CCA 571, cited by counsel for defendant, wherein there was a dispute as to the title of a copyrighted play, is not opposed to this view; it being there held that the burden rests upon plaintiff to show compliance with the statutory requirements as conditions precedent. In this case the registered certificate as to the facts contained therein is of the required standard of proof. See section 55 of the Copyright Act of March 4, 1909." Chautauqua School of Nursing v. National School of Nursing, 211 Fed. 1014. 1015 [reving.-Evidence of a neighbor of on other grounds 238 Fed. 151, 151 CCA 227]. 14. See supra § 220. 15. See supra § 411; infra § 423. 16. See supra § 413. 17. Graves' Case, L. R. 4 Q. B. 715; James Nisbet & Co., Ltd. v. Golf Agency, 23 T. L. R. 370; Black v. Imperial Book Co., 8 Ont. L. 9, 3 OntWR 467 [dism app 5 Ont. L. 184, 2 OntWR 117. and app dism 35 Can. S. C. 488]; Carte v. Dennis, 5 Terr. Co., 119 Fed. 451. 23. Burden of proof and presumptions see supra § 413. the originality of the topical song, "I Wonder if Dreams Come True," solely on judicial knowledge). 27. Bosselman v. Richardson, 174 Fed. 622, 98 CCA 127. But see Reed V. Carusi, 20 F. Cas. No. 11,642, Taney 72, 74 (where Taney, C. J., said: "The copyright is prima facie evidence that he was the author, and the burden of proof is upon defendant to show the contrary"). 28. See supra § 415. 29. Werner Co. v. Encyclopædia Britannica Co., 134 Fed. 831, 1024, 67 CCA 281 [aff 130 Fed. 460]; Aronson v. Baker, 43 N. J. Eq. 365, 12 A 177 ("Erminie"). [a] Evidence of author.-"The person who claims to be the author of 'Erminie' swears that it is an original production, and not an imitation of any previous work; that it is his original creation, he having originated its scenes, incidents, stage appurtenances and casts of character and their individualities, as also the dress and deportment of its dramatis personæ. This, if true, establishes the fact of its originality. This witness speaks concerning a subject about which his knowledge must necessarily be more complete than that of any other person. His evidence must be accepted as true until evidence of the most convincing kind is produced, showing that his evidence is false." Aronson v. Baker, 43 N. J. Eq. 365, 371, 12 A 177. 30. Aronson v. Baker, 43 N. J. Eq. 365, 12 A 177 ("Erminie"); Oman v. Copp-Clark Co., 1 OntWR 542. [a] Circumstantial evidence."Where a dramatic work, existing only in manuscript has, as in this case, been put on the stage by its owner at great expense, and been reproduced in the largest city of the country over 500 times, without the least question being raised as to its originality by either critic or competitor, the court, before it denies to its owner the protection of the law, should require the person, asserts a right to use it for his own [a]_Original authorship of paint-profit, on the ground that it is pub 24. Bullinger v. Mackey, 4 F. Cas. No. 2,127, 15 Blatchf. 550. See Goldmark v. Kreling, 35 Fed. 661, 13 Sawy. 310 (evidence held sufficient to show authorship of play). 25. Bosselman v. Richardson, 174 Fed. 622, 98 CCA 127. plaintiff's assignor that witnesses Aronson who V. lic property, to prove his right by Baker, 43 N. J. Eq. 365, 371, 12 A convincing evidence." 177. [b] Success as shown by going tures, drawings, or other pictorial through a large number of editions works in so doing, was incompetent 26. Henderson V. Tompkins, 60 is evidence of originality in a compilation. Oman v. Copp-Clark Co., 1 OntWR 542 (history). 31. Belford v. Scribner, 144 U. S. 488, 12 SCt 734, 36 L. ed. 514; Callaghan v. Myers, 128 U. S. 617, 9 SCt 177, 32 L. ed. 547; Roberts v. Myers, addressed, may be shown by any competent evidence from persons acquainted with the facts,32 and such evidence may be sufficient even where the register of copyrights certifies that he has made search and has failed to find any copies on file.33 A certificate or receipt signed by the librarian, acknowledging receipt of copies, has been held competent and sufficient proof, provided the identity of such copies with the work in suit is shown,35 even where it was not under the official seal;36 but an unsigned statement that copies were deposited attached to a certificate of the librarian is no 34 20 F. Cas. No. 11,906, Brunn. Coll. Cas. 698. But see infra § 421 note 47. "Section 4 of the act of 1831 requires the clerk to give a copy of the title as deposited and recorded, under the seal of the court, to the author or proprietor who deposits it, whenever he shall require the same. Necessarily, such copy is sufficient prima facie evidence of the deposit of the title." Callaghan v. Myers, 128 U. S. 617, 655, 9 SCt 177, 32 L. ed. 547. [a] Time of deposit.-Under the Copyright Act of March 4, 1909 (35 U. S. St. at L. 1075 c 320 § 55), the certificate of the register of copyrights is not prima facie evidence that copies of the publication were received in time, but only that they were delivered in attempted compliance with the statute on the date specified. Davies v. Bowes, 219 Fed. 178, 134 CCA 532 [aff 209 Fed. 53]. 32. Huebsch v. Arthur H. Crist Co., 209 Fed. 885; West Pub. Co. v. Edward Thompson Co., 169 Fed. 833 [mod on other grounds 176 Fed. 833, 100 CCA 303]; Patterson v. J. S. Ogilvie Pub. Co., 119 Fed. 451; Blume v. Spear, 30 Fed. 629. ments evidence of the deposit.37 Deposit may also be proved by a record kept by the copyright office in the course of the discharge of official copyright business.38 The statute requires the register of copyrights to give a receipt for the copies of the work deposited to complete the registration,39 and postmasters are required to give receipts for copyright deposits made with them for mailing.40 Such receipts are evidence of such deposits. Reasonable presumptions will be indulged in aid of the copyright." | posited on a certain date was a sufficient prima facie certificate of that fact, without further proof of the clerk's signature. Callaghan v. Myers, 128 Ü. S. 617, 9 SCt 177, 32 L. ed. 547 (under Act Febr. 3, 1831 [4 U. S. St. at L. 436 c 16 § 4] requiring deposits to be made with the clerk of the district court). [b] Deposit of copies in mail.The orator testified that he deposited two copies of the book in the mail and got an acknowledgment of the receipt of the copies over the official signature of the librarian in answer. This receipt was put in evidence, but there was no evidence as to how the copies were addressed. It was held that compliance with the statutory provision had been shown. Blume v. Spear, 30 Fed. 629. [c] Supplying lost certificates.— In a suit for infringement of copyright the court granted plaintiff's motion "to file a certified copy of copyright in place of such proof heretofore filed and lost." Defendant moved to strike such certificate from the files, the motion stating that "no other certificate having the like purport or effect had been ever offered in evidence nor lost from the files in said cause." This motion was overruled. This action involved a finding that such former certificate had been filed and lost, and this finding was conclusive on the in the supreme court, absence of anything in the record showing the contrary. Belford v. Scribner, 144 U. S. 488, 496, 506, 12 SCt 734, 36 L. ed. 514. v. Edward un [a] Evidence held suficient.-Evidence was held to show a custom and course of business by a publisher from which it would be presumed that except in occasional and intentional instances the requireof the copyright statute were properly observed and the necessary acts performed to secure to the publisher the copyrights intended. West Pub. Co. Thompson Co., 169 Fed. 833 [mod on other grounds 176 Fed. 833, 100 CCA 303]. 33. Patterson v. J. S. Ogilvie Pub. Co., 119 Fed. 451. or [a] Evidence held sumcient. "The complainant testified that he personally inclosed two copies of his book in a package addressed to the librarian of congress, and deposited the same in the mail; and that this was in June, 1890,-a considerable time before the publication of the book. This is the evidence of the complainant, and it is not corroborated; but there is nothing in his testimony, direct cross, which casts suspicion on his good faith, and there seems to be no reason for disbelieving his statement as to the mailing. The books were printed, and there was no reason at all why he should not have mailed them as he said he did." Patterson v. J. S. Ogilvie Pub. Co., 119 Fed. 451, 452. 34. Belford v. Scribner, 144 U. S. 488, 12 SCt 734, 36 L. ed. 514; Callaghan v. Myers, 128 U. S. 617, 9 SCt 177, 32 L. ed. 547; Huebsch v. Arthur H. Crist Co., 209 Fed. 885; Lederer v. Saake, 166 Fed. 810 [rev on other grounds 174 Fed. 135, 98 CCA 571]. See Merrell v. Tice, 104 U. S. 557, 26 L. ed. 854 (where the court, while expressly refraining from saying whether or not the librarian's certificate is competent evidence of the deposit of copies, held that the certificate given in evidence in that case was so defective as not to be competent evidence). [a] Rule applied.-A memorandum signed, but not sealed, by the clerk, at the foot of his certified copy of the title, that the work was de | 35. Lederer v. Saake, 166 Fed. 810 [rev on other grounds 174 Fed. 135. 98 CCA 571]; McMurty v. Popham, 8 KyL 704. 36. Belford v. Scribner, 144 U. S. 488, 12 SCt 734, 36 L. ed. 514; Callaghan v. Myers, 128 U. S. 617, 9 SCt 177, 32 L. ed. 547. [a] Rule applied. "We are of opinion that the certificate of the Librarian of Congress, set forth in the margin, as printed in the record, that two copies of the new edition of the plaintiff's copyrighted book were received by him November 15, 1880, which was within ten days after the publication, was competent evidence, although the certificate was not under seal.' Belford V. Scribner, 144 U. S. 488, 505, 12 SCt 734, 36 L. ed. 514. 37. Merrell v. Tice, 104 U. S. 557, 26 L. ed. 854 [dist Callaghan v. Myers, 128 U. S. 617, 9 SCt 177, 32 L. ed. 547]. [a] Rule applied. "The memorandum in the present case of the fact and date of the deposit, purporting to be signed by the clerk, must be regarded as a sufficient prima facie certificate of such deposit, and as competent evidence of the fact and of the date, without further proof of the signature of the clerk, that being on the same paper with his signature as clerk to the certificate of the copy of the record of the deposit of the title. and it being open to the defendants to show that his signature to the memorandum was not genuine. We do not think the present case is governed by the decision in Merrel! v. Tice, 104 U. S. 557, 26 L. ed. 854. In that case the librarian of Con gress had given a certificate to a copy of the record of the deposit of the title of the book. On that paper was written a memorandum in these words: "Two copies of the above publication deposited' on a date given. This memorandum was not signed by the librarian of Congress. This court held the memorandum not to be competent as proof of the deposit of the two copies of the book, on the ground that it was not a certificate of that fact. We are of opinion that the memorandum in the present case, purporting to be signed by the same clerk, is substantially a certificate of the fact and date of the deposit of the work, written by him on the same paper with the other certificate; and that it is not open to the objection which obtained in the case of Merrell v. Tice." Callaghan v. Myers, 128 U. S. 617, 655, 9 SCt 177, 32 L. ed. 547. 38. Black v. Henry G. Allen Co., 56 Fed. 764; Daly v. Webster, 56 Fed. 433, 4 CCA 10 [app dism 163 U. S. 155, 16 SCt 962, 42 L. ed. 111]. 39. Act March 4, 1909 (35 U. S. St. at L. 1075 c 320 § 55). 40. Act March 4, 1909 (35 U. S. St. at L. 1075 c 320 § 14). 41. Callaghan v. Myers, 128 U. S. 617, 9 SCt 177, 32 L. ed. 547. [a] Presumptions in aid of copyright.-(1) "In the absence of evidence to the contrary, which it was open to the defendants to introduce, it must be presumed that the deposit of the title was made in each case before publication, and, also, that in every instance where the work purports to have been deposited within three months after the date of the deposit of the title, it was deposited within three months after publication. So, also, in the case of volume 34, it must be equally presumed, in the absence of evidence to the contrary, that the deposit of the title was made before publication, and that the deposit of the work, though made on the same day with the deposit of the title, was not made prior to publication." Callaghan v. Myers, 128 U. S. 617, 655, 657, 9 SCt 177, 32 L. ed. 547. (2) "Where the three things are prescribed by the statute to be done in consecutive order, and all three appear to have been done on the same day, it will be presumed that the statute was complied with, leaving the prima facie evidence open to be rebutted." Callaghan v. Myers, supra. (3) A work deposited five months and five days after its title cannot be presumed to have been deposited within three months from publication. Callaghan v. Myers, 128 U. S. 617, 9 SCt 177, 32 L. ed. 547. 42. Falk v. Gast Lith., etc., Co., 40 Fed. 168. [a] Reason for rule.-"It would lay an unreasonable burden upon him to require separate, distinct, and specific proof as to each one of the copies in some cases, perhaps, thousands in number-which he may have published." Per Lacombe, J., in Falk v. Gast Lith., etc., Co., 40 Fed. 168, 169 (copyrighted photograph). 43. Falk v. Gast Lith. etc., Co., 40 Fed. 168. 44. Falk v. Gast Lith., etc., Co., 40 Fed. 168, 48 Fed. 262 [aff 54 Fed. 890, 4 CCA 648]. General [§ 420] (7) Notice of Copyright. testimony is sufficient to establish a prima facie case of compliance with the statutory requirements in respect to the copyright notice.42 The testimony of employees who had charge of the preparation of all copies published showing a uniform business system calculated and designed to insure proper use of the notice is sufficient; 43 and the prima facie case so made, that notice of copyright was inscribed on all copies, is not overthrown by evidence that the original from which defendant copied was without the statutory notice when it came into defendant's possession; it must further be shown that it lacked such notice when it left plaintiff's possession."4 [§ 421] (8) Publication. The date on the titlepage of a book is not conclusive evidence of the time of its publication.*5 The fact that a person on a certain date heard a piece of music performed from printed sheets is no evidence that the music had been published as a book at that date." The 45. Lover v. Davidson, 1 C. B. N. S. 182, 87 ECL 182, 140 Reprint 77. 46. Boosey v. Davidson, 13 Q. B. 257, 66 ECL 257, 116 Reprint 1261. 47. Davies v. Bowes, 219 Fed. 178, 134 CCA 552; Bosselman v. Richardson, 174 Fed. 622, 98 CCA 127. [a] Rule applied."The only evidence introduced on this point is the certificate of the Register of Copyrights that two copies of the Evening Sun of June 23, 1908 'were received as copyright deposits on June 24, 1908.' It was physically possible for these copies to have been sent to Washington by messenger on an early train June 24th, and delivered to the Librarian on that day. It was also physically possible for them to have been deposited in the mail in New York on June 23d, and to have reached the Librarian on June 24th. In the latter case, the statute would have been complied with; in the former case, it would not. We cannot say which course was followed, in the absence of testimony; therefore complainant has not proved this essential fact, and has not shown the granting of a valid copyright, under the statute. He is not helped by the provisions of Act 1909, 55, that the certificate shall be prima facie evidence of the facts stated therein, because the only fact stated is that the two copies were received on June 24th. The statement in the certificate that they were received as copyright deposits' indicate nothing more than they were turned over to the office in attempted compliance with the copyright statute. The receipt of them by the Librarian does not involve any determination by him as to whether or not the deposit is made in time; he is not required to make any investigation when a copy is delivered to him or comes to him by mail as to what was the date of publication." Davies v. Bowes, 219 Fed. 178, 180. 134 CCA 552. Burden of proving nonpublication see supra § 413. Presumptions in aid of copyright see supra § 419 text and note 41. 48. Bosselman v. Richardson, 174 Fed. 622, 98 CCA 127. "This negative testimony, particularly as to nonpublication, seems to us incompetent and insufficient evidence to sustain a recovery for the drastic penalties imposed by Rev. St. U. S. 4965 (U. S. Comp. St. 1901, p. 3414), for violation of copyright of maps, prints, paintings, etc. actly what amounts to publication in the case of paintings may not have been very definitely determined. Werckmeister v. American Lith. Co., 134 Fed. 321, 69 CCA 553, 68 LRA Ex 46 47 certificate of registration does not show nonpublica- 49 51 50 [§ 423] 3. Of Ownership. Plaintiff must show that he is the owner, by assignment or otherwise, of the copyright, infringement of which is charged.2 Parol evidence of the assignment of an interest in 591 [aff 207 U. S. 375, 28 SCt 124, 52 49. Callaghan v. Myers, 128 U. S. [a] Rule applied.-Delivering to the secretary of state, for the use of the state, the number of copies of a volume of law reports required by law to be so delivered is a publication of that volume; and certificates of the auditor of public accounts and of the secretary of state that on such a date the reporter made such delivery are competent evidence of the date of publication. Callaghan v. Myers, 128 U. S. 617, 9 SCt 177, 32 L. ed. 547. into the Tribune office, or Sun office. or World office, and contracts for the printing and publication of a book of which he is the author, which he desires to copyright and put on the market, and the book printed and ready for the binder comes to him in due time; is not proof of these facts sufficient evidence that such book was printed from type set or plates made from type set within the United States? Must witnesses be called who either did the work or saw it done, to testify that the type from which the plates were made was set in the United States? It seems to me a fair and just inference and conclusion that the work was done in that office. It is true that the work may have been done outthink the complainant called upon to negative that possibility." Huebsch v. Arthur H. Crist Co., 209 Fed. 885, 889. 50. Larrowe-Loisette v. O'Lough-side the United States, but I do not lin, 88 Fed. 896. [a] Illustration.-"The notice in the edition of 1886, that it was copyrighted in England, was equivalent to a notice that it had been published therein, and I think that the notice of a United States copyright, known by Loisette to be untrue, estops his representatives from denying that it was published here." Larrowe-Loisette v. O'Loughlin, 88 Fed. 896, 899. 51. Heubsch v. Arthur H. Crist Co., 209 Fed. 885. [a] Place of typesetting.-"I am of the opinion that the evidence as a whole is to this effect: 'I attended to the copyrighting of this book, the printing of the books and copies thereof, employed the printing houses that did the work, and, while I am not certain which of these houses set the type from which the plates were made from which the books were printed, my best recollection is (I think) that they were set by Redfield Bros. of New York City.' But how could he know if he neither saw the plates nor the type? It is fair to say that the evidence shows the witness employed Redfield Bros. to set type and make plates therefrom to be used in printing these books; that subsequently the books came out duly printed. It is urged that the fair and legitimate inference and finding is that the type was set and plates made by the publishing house employed to do the work of printing the books and which actually did produce the books printed; that the fair inference and resultant finding is that the work was done in the city of New York where the firm of Redfield Bros. did business. It is contended that with this proof in the case there is no justification for the court to guess, surmise, or speculate. That possibly the house employed to do the work had it, or any part of it, done outside of the United States. If A. goes 52. Saake v. Lederer, 174 Fed. 135. 98 CCA 571 [rev 166 Fed. 810]; Hole v. Bradbury, 12 Ch. D. 886. sec [a] Reason for rule (1) "The Constitution (article 1, § 8, cl. 8) securing to 'authors and inventors' alone 'the exclusive right to their respective writings and discoveries,' the right of any other person to a copyright is derivatative and ondary, and such latter must therefore show that he is the grantee of the author's rights." Saake v. Lederer, 174 Fed. 135, 136, 98 CCA 571 [rev 166 Fed. 810]. (2) "This was taken out in the name of the author himself, and presumably, therefore. he continues to be the owner, unless there is proof that he has parted with his title." Lederer v. Saake, 166 Fed. 810. 812 [rev on other grounds 174 Fed. 135, 98 CCA 571]. [b] Work of married womanWhere the copyright of a book written by a married woman was taken out in the name of her publisher, and it appeared that from time to time she settled with him for her royalties, it will be presumed, in a suit by the publisher for infringement, that the legal title was conveyed to him in some proper manner, although it might be that in the state of her residence the property in the work was vested in the husband by virtue of his marital rights, and there was no evidence of a conveyance by him. Belford v. Scribner, 144 U. S. 488. 504, 12 SCt 734, 36 L. ed. 514 (where the court said: "On this point the Circuit Court said, in its opinion, that, as the proof showed that the authoress from time to time settled with the owners of the copyright for her royalties, the court would presume that her legal title as the author of the books was in some due a copyright is sufficient, unless objected to or rebutted.53 A receipt for the purchase money of a copyrighted work is no evidence of its assignment.** Mere acquiescence in the publication of a copyrighted work is no proof of an assignment of the copyright.55 A certificate of acknowledgment under the hand and official seal of a consular officer, or a secretary of legation, is prima facie evidence of the execution of an assignment made in a foreign country.56 Under the English statute, if no name purporting to be that of the author is printed or otherwise indicated on the work, or if the name so indicated is not the author's true name, or one by which he is commonly known, and a name purporting to be that of the publisher or proprietor is printed or otherwise indicated on the work in the usual man and proper manner conveyed to and If [c] "When an artist is commissioned to execute a work of art not in existence at the time the commission is given, the burden of proving that he retains a copyright in the work of art executed, sold, and delivered under the commission rests heavily upon the artist himself. If a patron gives a commission to an 53. Callaghan v. Myers, 128 U. S. 617, 9 SCt 177, 32 L. ed. 547. 54. Lover v. Davidson. 1 C. B. N. S. 182, 87 ECL 182, 140 Reprint 77; Latour v. Bland, 2 Stark. 382, 3 ECL 455. 55. Latour v. Bland, 2 Stark. 382, 3 ECL 455. See also Hogg v. Scott, L. R. 18 Eq. 444; Weldon v. Dicks, 10 Ch. D. 247. 56. Act March 4, 1909 (35 U. S. St. at L. 1075 c 320 § 43). 57. St. 1 & 2 Geo. V c 46 § 6 (3) (b). [a] Under former statute registration was prima facie evidence of ownership, but subject to rebuttal. Lucas v. Cooke, 13 Ch. D. 872, also supra §§ 230, 415, See ner, the person whose name is so indicated is presumed to be the owner of the copyright for the purposes of infringement proceedings, unless the contrary is proved." 60 61 [424] 4. Of Infringement-a. Burden of Proof. The burden is on plaintiff to show infringement of his copyright.58 This includes proof of every fact necessary to constitute the infringement charged.50 Where defendant's knowledge, intent, or purpose is material, plaintiff must show it.si Where there is no sufficient evidence of copying or unfair use,62 plaintiff's case fails.63 But while the burden of proof rests on plaintiff throughout the case, the burden of evidence, that is of explanation, may be shifted to defendant by evidence showing a prima facie case of copying. This rule finds frequent application in the case of compilations, 58. Historical Pub. Co. v. Jones Pub. Co., 231 Fed. 638, 145 CCA 524; Frank Shepard Co. v. Zachary P. Taylor Pub. Co., 193 Fed. 991, 113 CCA 609 [aff 185 Fed. 941]; Lederer v. Saake, 166 Fed. 810 [rev on other grounds 174 Fed. 135. 98 CCA 571]; American Mutoscope, etc., Co. v. Edison Mfg. Co., 137 Fed. 262; West Pub. Co. v. Lawyers' Co-op. Pub. Co., 64 Fed. 360, 25 LRA 441 [rev on other grounds 79 Fed. 756, 25 CCA 648, 35 LRA 4001; Chase v. Sanborn, 5 F. Cas. No. 2,628, 4 Cliff. 306; Cadieux v. Beauchemin, 31 Can. S. C. 370; Lucas V. Cooke, 13 Ch. D. 872; Leader v. Strange, 2 C. & K. 1010, 61 ECL 1010; Carte V. Dennis, 5 Terr. L. 30. "The onus of establishing appropriation, of course, rests upon the plaintiff." Corelli v. Gray, 29 T. L. R. 570, 571. [a] Reproductions of art works.Plaintiff must show that an alleged infringement of his copyrighted engraving was copied from it, and not from the original painting from which his engraving was made under a license from the proprietor of the copyright in the painting. Lucas v. Cooke, 13 Ch. D. 872. See also supra §§ 278, 325, 328. 59. Journal Pub. Co. v. Drake, 199 Fed. 572, 118 CCA 46. 64 every sheet of such copy found in the possession of the person who has committed any one of the acts prohibited. The general rule in such a case is that, where the defendant has been shown to have committed an unlawful act, an unlawful intent is presumed. 'If a man intentionally adopts certain conduct in certain circumstances known to him, and that conduct is forbidden by the law under those circumstances, he intentionally breaks the law in the only sense in which the law ever considers intent.' Ellis v. U. S., 206 U. S. 246, 27 SCt 600, 51 L. ed. 1047, 11 AnnCas 589. But there is a prohibition in this statute against the copying, printing, and publishing of a copyrighted article 'by varying the main design with intent to evade the law. That is not this case, and it is obvious that the intent to evade the law is only required to appear or be inferred where the copyrighted article has not been reproduced in the substantial form and character of the original, but where in the reproduction there has been a varying of the main design. In such a case it should appear as a fact, or be inferable from facts proven, that the reproduction was with an intent to evade the law, and this would he a question of fact for the jury. There is no such question in this case." Journal Pub. Co. v. Drake, 199 Fed. a [a] Consent of plaintiff.-"It is [b] Knowledge of copyright.-In England, under former statutes, in an action for an infringement of copyright by merely publishing work printed or caused to be printed by others, knowledge of the copyright so infringed must be proved. Leader v. Strange, 2 C. & K. 1010, 61 ECL 1010. 62. See supra §§ 276-288. 63. American Mutoscope, etc., Co. v. Edison Mfg. Co., 137 Fed. 262. 60. See supra § 289. a 61. Journal Pub. Co. v. Drake, 199 Fed. 572, 118 CCA 46. [a] Varying design "with intent to evade the law."-"The penalty provided by the statute is for the act of copying, printing, and publishing a copyrighted article. or for selling or exposing for sale such a copy, and the forfeiture or penalty is fixed for 64. Frank Shepard Co. v. Zachary P. Taylor Pub. Co., 193 Fed. 991. 113 CCA 609 [aff 185 Fed. 941]; Da Prato Statuary Co. v. Giuliani Statuary Co., 189 Fed. 90; Encyclopædia Britannica Co. v. American Newspaper AsSoc., 130 Fed. 460 [aff 134 Fed. 831, 1024, 67 CCA 281]; Trow Directory Printing, etc., Co. v. U. S. Directory Co., 122 Fed. 191; Trow Directory, etc., Co. v. Boyd, 97 Fed. 586; O'Neill v. General Film Co., 152 NYS 599 [aff 171 App. Div. 854, 157 NYS 1028]; Cadieux v. Beauchemin, 31 Can. S. C. 370. [a] Rule applied.-(1) "We think that the proof of a considerable number of errors common to both publications occurring first in the complainant's and none occurring first in the defendant's created a prima facie case of copying by the defendant which it was bound to explain. The burden of proof, it is true, was on the complainant throughout, but on this state of the case the burden of evidence that is, of explanationwas on the defendant." Frank Shepard Co. v. Zachary P. Taylor Pub. Co.. 193 Fed. 991. 993, 113 CCA 609 65 66 where mere identity or similarity is not necessarily proof of copying." In such cases, where by proof of common errors, or otherwise, plaintiff has made a prima facie case of copying against part of defendant's work, and other parts of it might equally well have been copied or not copied, the burden is shifted to defendant to segregate by evidence the portions of his work, if any, not produced by copying, and if defendant fails to sustain such burden, his whole work will be deemed an infringement. This rule has been applied to cases of directories, dictionaries,69 legal digests, law reports," and tables of citations of law reports." Defendant does not sustain such shifted burden by showing a possible common source from which the 70 Extent of injunction see supra Extent of profits recoverable see supra 354. [aff 185 Fed. 941]. (2) "Substantial Shifting burden of proof and burden of evidence see generally Evidence [16 Cyc 926-936. 65. Frank Shepard Co. v. Zachary P. Taylor Pub. Co., 193 Fed. 991, 113 CCA 609 [aff 185 Fed. 941]; Cadieux v. Beauchemin, 31 Can. S. C. 370. See supra § 307. 66. Frank Shepard Co. v. Zachary P. Taylor Pub. Co., 193 Fed. 991, 113 CCA 609 [aff 185 Fed. 941]; Trow Directory Printing, etc., Co. v. U. S. Directory Co., 122 Fed. 191; Williams v. Smythe, 110 Fed. 961; Cartwright v. Wharton, 25 Ont. L. 357, 20 OntWR 853, 1 DomLR 392. See also infra 8 428. 67. Frank Shepard Co. v. Zachary P. Taylor Pub. Co., 193 Fed. 991, 113 CCA 609 [aff 185 Fed. 941]; Da Prato Statuary Co. v. Giuliani Statuary Co., 189 Fed. 90; Hartford Printing Co. v. Hartford Directory, etc., Co., 146 Fed. 332; Trow Directory Printing, etc., Co. v. U. S. Directory Co. 122 Fed. 191; Chicago Directory Co. v. U. S. Directory Co., 122 Fed. 189; Trow Directory, etc., Co. v. Boyd, 97 Fed. 586; Exchange Tel. Co., Ltd. v. Howard, etc., Press Agency, Ltd., 22 T. L. R. 375. And see cases infra notes 68-72. See also Dun v. Lumbermen's Credit Assoc., 209 U. S. 20, 28 SCt 335, 52 L. ed. 663, 14 AnnCas 501 [aff 144 Fed. 83, 75 CCA 241] (where the burden of showing noninfringement was sustained notwithstanding common errors in a book of credit ratings). [a] Rule applied.-(1) "It having been proven that the defendant has copied one or more cuts, a finding that the others as to which no explanation is made were also copied is easily supported by the evidence. Chapman v. Ferry, 18 Fed. 539, 9 Sawy. 395; Lawrence V. Dana, 14 68. Troy Directory Printing, etc., Co. v. U. S. Directory Co., 122 Fed. 191; Chicago Directory Co. v. U. S. Directory Co., 122 Fed. 189; Williams v. Smythe, 110 Fed. 961; Trow Directory, etc., Co. v. Boyd, 97 Fed. 586. [a] Plaintiff's book cut and pasted for "copy."-In a suit for infringement of the copyright of a directory, proof that defendant had in its office three pages concededly taken from complainant's book, cut, pasted, and edited apparently for the purpose of being used as copy for defendant's book, is sufficient to entitle complainant to a preliminary injunction, unless a denial of the intention to use such pages as copy is supported by a clear showing of the methods used by defendant, and the sources from which his copy was obtained. Chicago Directory Co. v. U. S. Directory Co., 122 Fed. 189. 31 69. Cadieux V. Beauchemin, "It is the law of this circuit that 71. Callaghan v. Myers, 128 U. S. 617, 9 SCt 177, 32 L. ed. 547; West Pub. Co. v. Lawyers' Co-op. Pub. Co., 79 Fed. 756, 25 CCA 648, 35 LRA 400 [rev 64 Fed. 360, 25 LRA 441]. [a] Use of syllabi.-When it is conclusively shown from internal evidence that a subsequent digester has made an unfair use of any part of a copyright syllabus, the presumption is that he made use of the whole. West Pub. Co. v. Lawyers' Co-op. Pub. Co., 79 Fed. 756, 25 CCA 648, 35 LRA 400 [rev 64 Fed. 360, 25 LRA 441]. F. Cas. No. 8,136, 4 Cliff. 1. It is 72. Frank Shepard Co. v. Zachary P. Taylor Pub. Co., 193 Fed. 991, 113 CCA 609 [aff 185 Fed. 941]. 73. Frank Shepard Co. v. Zachary P. Taylor Pub. Co., 193 Fed. 991, 113 CCA 609 [aff 185 Fed. 941]. 74. Beauchemin V. Cadieux, 10 Que. K. B. 255, 22 Que. Super. 482 [app dism 31 Can. S. C. 370, 2 ComL 170. the pages produced by Bowen were used as copy, there is no clear statement of what was in fact used as copy; how much of it was printed, and where it was found; how much was manuscript, and how much obtained. All is left vague and uncertain. Besides, neither the directory of this year nor of any prior year is produced, and there is no apparent explanation of this circumstance. Moreover, it is difficult to understand how, with a capital of only $25,000 a business directory of the United States can be produced by original canvass. Perhaps it may be done, but there is nothing to indicate how it is done." Chicago Directory Co. v. U. S. Directory Co., 122 Fed. 189, 190. [b] Priority in conception and development of a drama disproves piracy because it excludes any possibility of copying. Maxwell v. Goodwin, 93 Fed. 665. Evidence generally see Evidence [16 Cyc 821]. 75. West Pub. Co. V. Edward Thompson Co., 169 Fed. 833 [mod on other grounds 176 Fed. 833, 100 CCA 303]; Maxwell v. Goodwin, 93 Fed. 665. 76. Chicago Directory Co. v. U. S. Directory Co., 122 Fed. 189; Trow Directory, etc., Co. v. Boyd, 97 Fed. 586; O'Neill v. General Film Co., 152 NYS 599 [aff 171 App. Div. 854, 157 NYS 1028]; Beauchemin v. Cadieux, 10 Que. K. B. 255, 22 Que. Super. 482 [app dism 31 Can. S. C. 370, 2 Com L 170]; Bain v. Henderson, 16 B. C. 318. 31 [a] Rule applied.-(1) "Mr. Martin, who prepared the manuscript of the work complained of, ought to have been called. No doubt the manuscript was destroyed or lost in the process of printing and the printers cannot be expected to have any recollection as to how it was made, whether written by hand or simply with printed sheets pasted in. Mr. Martin was possibly the only person who could have given the information on this point which the defendants ought to have been prepared to give." Cadieux v. Beauchemin, Can. S. C. 370. (2) "Where, as here, a party charged with literary piracy claims to have gone to the common source and does not produce the man who did the work for him, so that he may be cross-examined as to the sources from which he took his work and account for the singular coincidences found in the piratical copy and complainant's work, a court of equity needs little additional proof on the question of piracy. If characters, incidents, omissions, or additions are found in the complainant's dramatization, not found in the published book or common source, then, in the absence of a convincing explanation, the court is justified in finding, and invariably does find, that the complainant's work has been infringed." O'Neill v. General Film Co., 152 NYS 599, 602 [aff 171 App. Div. 854, 157 NYS 1028]. (3) "This impression is most strongly confirmed by the circumstance that in |