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Chapter XII
Rights Secured by Copyright and

Infringement Thereof

Part 1—Exclusive Statutory Rights

Now, having passed through these various straits of copyright adventure, we come at last to the reward in the form of certain "exclusive" rights, varying in kind according to the nature of the work, as set forth in section 1.

Section 1(a) "To print, reprint, publish, copy, and vend the copyrighted work"

This is the most comprehensive right, applicable to all copyright material. The phraseology was borrowed from the former statute, and while at the time of original hearings on the bill many amendments were suggested to the committee, it was felt "safer to retain the old language which had been so often construed by the courts" (Report No. 2222, in Appendix). To Vend

To print, reprint, publish and copy are continuing rights throughout the life of the copyright,* but the right to transfer or vend (which includes the right to lend, lease or give away) is exhausted as to particular copies once the proprietor has disposed of them unrestrictedly at his own price, and he cannot by virtue of his copyright prevent subsequent transfer or sale at a different price on the part of the purchaser. It was so held by the Supreme Court in construing similar language of the former law, Bobbs-Merrill v. Straus, 210 U. S. 339 (1908); and in section 41 of the present law it is expressly provided that "nothing in this Act shall be deemed to forbid, prevent, or restrict the

* Rearranging for sale in book form of material taken from the issues of plaintiff's copyrighted magazine was held to constitute a new publication of such material and hence an invasion of the right to publish. National Geographic Society v. Classified Geographic, Inc., 41 USPQ 719 (1939).

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transfer of any copy of a copyrighted work the possession of which has been lawfully obtained.” An agreement between publishers and booksellers which operated to restrict the sale of copyrighted books to those only who would maintain the fixed net retail price, resulting in practically destroying competition in such books at retail, was held not only to go beyond the right conferred by the copyright law but also to be in violation of the Sherman Anti-Trust Act. Straus v. American Publishers Assn., 231 U. S. 222 (1913). Recent federal and state legislation, however, now enables the publishers of books to take advantage of the so-called Fair Trade Acts, and by means of special contract largely prevent the evils of price-cutting. See Bourjois Sales Corp. v. Dorfman, 273 N. Y. 167 (1937). To Copy—Includes Various Modes of Reproduction

To print or reprint necessarily involves copying, but there are also other ways of infringing this fundamental right, “to copy.” The commonly-accepted definition of "a copy” appears in an old English case, West v. Francis, 5 Barn. & Ald. 743, (cited with approval by the Supreme Court in White-Smith Music Pub. Co. v. Apollo Co., 209 U. S. 117 (1908)), viz: A copy is that which comes so near to the original as to give to every person seeing it the idea created by the original.” Hence, copying in the legal sense is not confined to literal repetition or exact duplication, but includes as well the various modes in which the work may be substantially reproduced by imitation, paraphrasing, or colorable alteration. Nutt v. National Institute, 31 F.2d 236 (CCA 2, 1929). In the so-called Spark Plug case [King Features Syndicate v. Fleischer, 299 F. 533 (CCA 2, 1924)], it was held that the making of toys in the semblance of copyrighted cartoons constituted copying of the artist's conception as expressed in pictorial form. Said the court:

"We do not think it avoids the infringement of the copyright to take the substance or idea and produce it through a different medium, and picturing in shape and details in sufficient imitation to make it a true copy of the character thought of by the appellant's employee. ... The concept of beauty expressed in the materials of statuary or drawing is the thing which is copyrighted. That is what the infringer copies.”

So also in Fleischer Studios, Inc. v. Ralph A. Freundlich, Inc., 23 USPQ 295 (CCA 2, 1934):

"The infringement charged was a reproduction of the car

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toon (Betty Boop) in manufacturing a doll. This, a three dimensional form of doll, is an infringement of the two-dimensional picture or drawing" (with enough difference in detail, as remarked by the court below, "to create an argument but not enough to create an alibi.”')

The same principle of copying through a different medium was recognized under the old law. In Falk v. Howell, 37 F. 202 (1888), the court remarked that "differences which relate merely to size and material are not important," and held that the reproduction of a copyrighted photograph in relief on leather used on chairs was an infringement; likewise it is infringement to take a photograph of a piece of sculpture, Bracken v. Rosenthal, 51 F. 136 (1907), or of an engraving, Rossiter v. Hall, 5 Blatchf. 362 (1866).*

In the case of Patterson v. Century Productions, Inc., 35 USPQ 471 (CCA 2, 1936), it was held that to throw a picture on the screen is to "copy" it for the time being, and hence a violation of this right.

That the copying was unintentional is no excuse, since it is the result and not the intention that determines the question of infringement. Witmark v. Calloway, 22 F. 2d 412 (1927). It may be the result of subconscious memory derived from hearing, seeing or reading the copyrighted work at some time in the past, but this in itself would not be sufficient to overcome the charge of copying. Intent, however, may be an important factor in considering the weight of circumstantial evidence of copying. Harold Lloyd Corp. v. Witmer, 65 F. 2d 1 (CCA 9, 1933).

Identical Work Independently Produced

On the other hand, the arm of the copyright law (unlike the patent law) does not reach one who has independently arrived at the same result or even produced an identical work, if such a thing were possible. Fischer v. Dillingham, 298 F. 145 (1924); Arnstein v. Marks, 28 USPQ 426 (CCA 2, 1936). So one may, for example, take a photograph of an object or a scene from the same identical point as used by another, and thereby achieve practically the same picture; and yet there would be no copying in the legal sense. But where the photographer subsequently placed the same model in the identical pose, and used the original photograph to make substantially the same picture, with only slight variations, this was held not to be an independent conception but merely a duplicate of the original. It was the use made of the first photograph that was the deciding factor here. Gross v. Seligman, 212 F. 930 (CCA 2, 1914); cf. Lumiere v. Pathe Exchange, 275 F. 428 (CCA 2, 1921), sketch made from photograph. Similarities as Evidence of Copying

* In an English case it was held that an architectural design was infringed by unauthorized construction of a shop front in accordance with the design. Chabot v. Davies, reported in MacGillivray's Copyright Cases for 1936.

Of course, a striking similarity raises a presumption of copying which may be difficult to overcome, especially where access is admitted; but there is one test that is always persuasive, viz., the repetition of typographical errors appearing in the copyrighted publication in sufficient numbers to repel any theory of accidental coincidence and to justify the inference that defendant's copying was not limited to the mistakes. Investment Service Co. v. Fitch Pub. Co., 291 F. 1010 (CCA 7, 1923).

The weight of similarities as evidence of copying varies with the nature of the work, the subject with which it deals, and the attendant circumstances, and there may often be a difference of opinion whether both parties merely drew from common sources open to all, or whether one of them resorted to "apt appropriation's artful aid" beyond the limits allowed by law. This is well illustrated in the case of dramas based upon the same conditions and modes of life or upon old narratives long since in the public domain. In Simonton v. Gordon, 297 F. 625 (SDNY 1924), Judge Winslow, after reading plaintiff's novel, “Hell's Playground,” and defendant's play, “White Cargo,” (both dealing with life and customs in West Africa), reached the conclusion that the resemblances were only such as might naturally be expected and refused to grant a preliminary injunction. The case came on for final hearing before Judge Knox who, on the other hand, after a careful analysis of both works, found sufficient evidence of deliberate piracy on the part of the author of “White Cargo” to justify the granting of an appropriate decree (12 F. 2d 116).

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In Sheldon v. Metro-Goldwyn Pictures Corp., 7 F.Supp. 837 (1934), the District Court concluded that the photoplay "Letty Lynton" did not infringe plaintiff's drama “Dishonored Lady” (both based upon a famous Scotch murder trial of a bygone age). Upon appeal, however, the Second Circuit Court of Appeals, 28 USPQ 330 (1936), found evidence of unfair use of substantial parts of plaintiff's drama and reversed the decree. Damages totaling over half a million dollars were subsequently awarded, representing the total net profits of all the defendants, in accordance with the seemingly mandatory requirements of the statute, 40 USPQ 238.* See also De Montijo v. Twentieth Century-Fox Film Co., 50 USPQ 440 (1941), citing many cases. Copying of Substantial Part

Thus the sole right to copy is of the very essence of copyright protection, and this extends not only to the work as a whole, but also to “all the copyrightable component parts of the work” (section 3). This of course does not mean every particle, for here the maxim applies, de minimis non curat lex (the law does not concern itself with trifles). To constitute infringement, the part taken must as a rule be substantial and material in relation to the work as a whole. Wilson v. Haber Bros., 275 F. 346 (CCA 2, 1921); Perris v. Hexamer, 99 U.S. 674 (1878). Fair Use of Copyrighted Works

On the other hand, the courts have long recognized that the public at large is entitled to make "fair use" of a copyrighted work for certain purposes and within reasonable limits. No hard and fast line of demarcation can be laid down between fair and unfair use, for the reason that each case must depend upon its own peculiar circumstances. Among these are to be considered the nature of the work, the value of the part taken in relation to the rest of the work, the purpose of the borrower, and how far such use may tend to supersede the original or interfere with its sale. Carr v. Natl. Capital Press, 21 USPQ 408 (App. D.C. 1934); Karll v. Curtis Pub. Co., 50 USPQ 50 (1941), incidental use of a few lines of song in a magazine article held permissible under the circumstances; Am. Institute of Architects v. Fenichel, 51 USPQ 29 (1941), use of one form from book of suggested agreements. One is at liberty to

* Later reduced to one-fifth of net profits; see Chapter XIII, p. 145.

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