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(1909). He can, however, take and hold by assignment an existing copyright in any work by an author entitled to the copyright privilege. Carte v. Evans, 27 F. 861 (1886). It has been held that an author belonging to an unproclaimed country (e.g., a citizen of Russia), even if domiciled in the United States, would not be entitled to statutory copyright for an unpublished work; though he could rest upon the common law for his protection. Leibowitz v. Columbia Graph. Co., 298 F. 342 (1923). This latter ruling, while justified by the literal terms of the Act, is out of harmony with traditional policy from the beginning in extending the copyright privilege to any resident of the United States, irrespective of his actual citizenship.

"Stateless" Authors

But what if the foreign author is neither domiciled in the United States nor a citizen or subject of any foreign state or nation? Is the 'man without a country' to be denied the privilege of securing copyright protection here merely because, through no fault of his own, he cannot claim the rights attaching to citizenship in the country of his origin?

Fate willed that this question should first come up for adjudication in connection with Adolf Hitler's book, "Mein Kampf", the American rights in which were assigned to Houghton Mifflin Co. The first volume of the original edition had been registered for copyright here in 1925 in the name of the German publisher, the application describing Hitler as a "Staatenloser Deutscher"; and the second volume was registered in 1927, when the application described him as a citizen of Austria.

On motion for preliminary injunction, in the case of Houghton Mifflin Co. v. Stackpole Sons, Inc., 41 USPQ 404 (1939), the defendant claimed that the copyright was invalid because of the conflicting statements of Hitler's citizenship in the two applications for registration; that in 1927 Hitler had given up his Austrian citizenship, according to the laws of Austria, and did not become a German citizen until 1931. In 1925 he was not a German citizen, according to his own claim, and hence could not come under the reciprocal copyright relations between the United States and Germany; and in 1927 he was not an Austrian and hence could not come under the copyright relations between Austria and the United States. The District Court felt that the

case was not sufficiently clear as to facts and validity of copyright to warrant the issuance of a preliminary injunction. The Second Circuit Court of Appeals, however, reversed the order of the District Court and held that authors who are not citizens or subjects of any country come within the general grant of the copyright privilege to all authors in the opening sentence of section 8 of the Act and are not subject to the special treatment accorded in the proviso to citizens of a foreign state or nation; and as plaintiff made a prima facie showing of right it would be a denial of equity to allow defendants to sell their unauthorized translation of the book pending final outcome of the action (42 USPQ 96).

The appellate court was obviously moved by considerations higher than the literal terms of the statute. The court said:

"Any other result than this would be unfortunate, for it would mean that stateless aliens cannot be secure in even their literary property. True, the problem of statelessness has only become acute of late years, but it promises to become increasingly more difficult as time goes on. The rule contended for by the defendants would mean that the United States, contrary to its general policy and tradition, is putting another obstacle in the way of survival of homeless refugees, of whom many have been students and scholars and writers."

The ruling therefore must be regarded as for the benefit primarily of Hitler's victims rather than the author himself or his original publisher.

Chapter VI

Statutory Requisites for Copyright in Works First Published: Publication

We turn again to section 9 of the Copyright Act: "Any person entitled thereto by this Act may secure copyright for his work by publication thereof with the notice of copyright required by this Act." The corresponding phraseology in the former law was: "No person shall be entitled to a copyright unless he shall" do so and so.

Thus the present law operates as an invitation, while the old law was a seemingly grudging extension of privilege because of the taint of monopoly in the grant. This change of attitude toward the author is worth noting, faint though it be, for it is the basis of all modern copyright law reform. The author is rightly to be deemed a public benefactor instead of a greedy monopolist to be hedged about by hampering restrictions upon adequate protection for his output.

Under the old law he was obliged to deposit the title on or before the day of publication of the work itself; but to perfect the copyright it was mandatory to deposit two copies of the work "not later than the day of publication in this or any foreign country" (Act of 1891); furthermore, as a condition for bringing suit for infringement, the notice of copyright had to appear "on the several copies of every edition published". If any one of these three conditions was not scrupulously complied with, the copyright was lost beyond recovery. Under the present Act, it is the omission, imperfection or misplacement of the notice alone which is necessarily fatal to the copyright protection; and, moreover, there is a saving clause in case of accidental omission of notice from certain copies.

It can be readily seen that, in drawing up contracts and assignments involving literary property, it is of the utmost importance

to check up on all these points to determine the actual copyright status of the work in question, including a careful investigation of the Copyright Office records.

"Copyright"

The term "copyright" is nowhere expressly defined in the Act, but as used in this Section 9 it embraces all of the various exclusive rights specifically granted by the Act as well as other rights incidental thereto. This subject will be dealt with in extenso

later on. (Chapter XI.)

"Publication"

Nor does the Act expressly define "publication". The persons entitled to secure copyright are supposed to know what it means. The courts look to the facts and circumstances in each particular

case.

In section 62, however, we are told that in the case of a work "of which copies are reproduced for sale or distribution, the 'date of publication' shall be held to be the earliest date when copies of the first authorized edition were placed on sale, sold, or publicly distributed by the proprietor of the copyright or under his authority." But, as remarked by the court in Cardinal Film Co. v. Beck, 248 F. 368 (1918), this was evidently intended to fix the date from which the term of copyright should begin to run for such a work, rather than a general definition of what should constitute publication in all cases.

In American Tobacco Co. v. Werckmeister, 207 U.S. 284 (1907), the subject-matter was an original painting which had been duly entered for copyright in the United States and subsequently exhibited at the Royal Academy in London without any notice of copyright thereon. It was contended by the defense that this omission destroyed the copyright, since the law in force at that time required the notice in the case of a painting, sculpture or other work "to be inserted in the several copies of every edition published" (18 St. L., pt. 3, p. 78). But because the evidence showed that it was against the established rules of the Academy to permit pictures on exhibition there to be copied by the public, and every possible means were taken to prevent it, the Supreme Court decided that such exhibition was a restricted one

and did not forfeit the American copyright.* The Court then remarked: "We do not mean to say that the public exhibition of a painting or statue where all might see and freely copy it, might not amount to publication within the statute, regardless of the artist's purpose or notice of reservation of rights which he takes no measure to protect". The present law contains no express provision covering the situation, and hence we may fairly conclude that a work of art is still to be deemed published when exposed unrestrictedly in public.

On the other hand, it is well established that the public performance of a spoken drama does not constitute publication thereof. Ferris v. Frohman, 223 U.S. 424 (1912); nor by analogy, the exhibition of a motion picture, DeMille v. Casey, 201 N.Y.S. 20 (1923); nor the public performance of a musical composition, whether for profit or not, McCarthy v. White, 259 F. 364 (1919); nor the oral delivery of a lecture or address, Nutt v. Nat'l. Institute, 31 F.2d 236 (CCA 2, 1929). And this applies irrespective of the methods employed, such as by broadcasting. Uproar Co. v. Nat'l. Broadcasting Co., 23 USPQ 254 (1934).

In Cardinal Film Co. v. Beck, 248 F. 368 (1918), the court held that the deposit in the Copyright Office of two copies of the complete film was in itself sufficient to constitute publication, following a similar ruling by Judge Learned Hand. Stern v. Remick, 175 F. 282 (1918). But in a later case, Judge Hand remarked that "Stern v. Remick was rightly decided because there had been a sale, but I must own that what I said there of publication (i.e. by deposit) seems to me now open to doubt". Mittenthal v. Berlin, 291 F. 714 (1923). And well it might, for section 12 clearly contemplates that the publication shall take place outside of the Copyright Office prior to the deposit of copies. It provides: "That after copyright has been secured by publication of the work with the notice of copyright . . . there shall be promptly deposited in the Copyright Office . . . two

* The implication would seem to be that if the exhibition abroad without the prescribed notice had been made without such restrictions as to copying, the American copyright would have been forfeited. But see the ruling by the same Court (per Justice Holmes) a few months later in the case of United Dictionary Co. v. Merriam Co., 208 U.S. 260 (1908), that, at least with respect to books, the statute then in force "does not require notice of the American copyright on books published abroad and sold only for use there".

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