Amory v. Lawrence et als.

Robeson, Bankruptcy, 322. Where the assignee elects not to take the right of the bankrupt and charge the estate with the burden of an uncertain litigation, the right, whatever it is, survives in the bankrupt, and some of the authorities hold that it may be pursued by any creditor not a party to the proceedings in bankruptcy. Smith v. Gordon, 6 Law Rep. 317. Persons acting as assignees in such a case are required to elect, within a reasonable time, and the rule is that if they refuse to elect when required to do so, it is deemed an election to reject the estate. Lawrence v. Knowles, 5 Bing. N. C. 150; Carter ▾ Warne, 4 C. & P. 336; Graham v. Van Dieman Land Co., 11 Exch. 101; Ex parte Blandy, 1 Dea. 286; Tuck v. Fyson, 6 Bing. 94. Doubtless the complainant, in such a case, must allege or prove enough to show that the assignee is estopped to set up any right in opposition to his claim, and the court is of the opinion that enough is alleged in this case to satisfy that requirement. Reasonable presumptions are admitted by the demurrer as well as the matters expressly alleged. Pursuant to advice which the complainant received to purchase from his assignees his claim against the trustee, the allegation is that he procured an assignment of the same, which must be understood in this award as a transfer of all the property and estate embraced in the claim which he was advised to purchase by an appropriate legal instrument. Suppose that is so, still the argument is that the allegation is not sufficient, because it is not alleged that the sale was made by the order of the bankrupt court; but the opinion of the court is that such a prior order was not necessary under the circumstances of this case, to give validity to the sale, or if it was, that the reasonable presumption from the allegation of the bill is, that the assignment was made in pursuance of such an order of court. Independent of the assignment, his title, under the circumstances of that case, was good against all the world except the assignee, as the presumption is that the property was regarded as onerous, and that the assignee elected not to take it into possession or to prosecute the claim.

The next objection is that the cause of action is barred by the two years' limitation in the bankrupt law under which the com

Parton v. Prang.

plainant was adjudged a bankrupt. Suffice it to say that the limitation does not apply to the case of an assignee, which is all that need be said upon the subject in the present case. Banks v. Ogden, 2 Wall. 69.

It is also ob ected that the comp'ainant attempted to deprive the respondents of their right to an answer under oath; but the controlling answer to the objection is, that it can have no such effect, as the waiver amounts to nothing unless the respondents accept it. Heath v. Erie Railway Co., 8 Blatch. 412; Story Eq. Plea, § 874. Bill dismissed as to the executors and devisees. Decree for complainant against Thomas C. Amory.

ARTHUR PARTON v. LOUIS PRANG.

BEFORE CLIFFORD AND LOWELL, JJ.

The word manuscript in § 9 of the copyright act does not include a picture, and the purchaser of a painting may acquire a title to the same by an oral contract with the lawful owner: the difference between "manuscript" and "painting" defined. The consent of the author or proprietor in writing, signed in the presence of two credible witnesses, was not necessary under that act to obtain the right to reproduce, or chromo, a picture, provided such consent was fairly and understandingly obtained and for a valuable consideration.

At common law the sole proprietorship of a manuscript is in the author or his assigns before publication, but an unqualified publication, such as is made by printing and offering copies for sale, dedicates the contents to the public, unless the sole right of printing, reprinting, publishing, and vending the saine is secured by copyright.

In communicating the contents of his manuscript, the author may prescribe limitations and impose such restrictions as he pleases upon the extent of its use.

THIS was a bill in equity to restrain the respondent from publishing and selling chromo lithographic copies of a painting, representing a view on Claverack Creek, Columbia County, in the State of New York, executed by the complainant and praying for

an account.

Parton alleged that he was an artist earning his living by designing, composing, and painting landscapes and other pictures,

Parton v. Prang.

and selling the same; that he designed from nature and executed the picture of rural scenery described in the bill of complaint, that having so designed and composed the same, he executed a large copy thereof in oils and sold the same, that he did not give or sell to the purchaser the right to copy, print, engrave, lithograph, chromo, or reproduce the picture in any way, or to publish the same in any form; that the respondent is a lithographer and publisher of chromos so called, that he made or caused to be made a chromo of the picture, and marked or engraved on the face of the chromo, the words and figures: "Arthur Parton, 1869, Chromo, Lithographed, and published by L. Prang & Co. Entered according to act of Congress in the office of the Librarian of Congress"; that he was informed and believed that the respondent had caused an entry of copyright to be made of said chromo under the title "Close of Day" and that he claimed the sole right to copy, print, and publish said picture and chromo thereof under said pretended entry of copyright. Wherefore he prayed for an account and for an injunction.

Service was made and the respondent appeared and filed answer. Respondent admitted that the complainant was an artist, that he executed the picture of rural scenery and made a copy thereof in oils as alleged, that the complainant sold the picture to the person named in the bill, but he expressly denied that he sold it to that person for his private collection. He also admitted that he, the respondent, was a lithographer and publisher of chromos, and that he made or caused to be made a chromo of said picture and marked or engraved upon the face of the chromo, the words and figures alleged in the bill, and that he caused an entry of copyright to be made of the chromo, and that he claimed the sole right to copy, print, and publish the said chromo; that to the time of the sale mentioned in the bill, the complainant retained possession of the picture; that the picture to that time had been on public exhibition and exposed to the public for sale in his studio in the city of New York; that the said purchaser there saw and examined the picture, and that the complainant there absolutely and unconditionally sold the same to the purchaser for a valuable consideration in money without any restriction or

Parton v. Prang.

reservation of any kind whatsoever, and that the said picture in pursuance of the said sale was delivered and transferred by the complainant to the purchaser unconditionally and without any reservation; that the purchaser bought the picture for the purpose of re-selling the same; that he immediately sent the picture to a firm in this city engaged in the business of buying and selling pictures and engravings for themselves and others; that the picture was there publicly exposed for sale in their store; that the respondent saw the picture in their store and that they, acting in behalf of the purchaser and owner of the same, sold it to the respondent for a valuable consideration in money; that the sale to the respondent was made absolutely and unconditionally and without any restriction or reservation of any kind whatsoever, and that the picture was then and there delivered and transferred to the respondent unconditionally and without any reservation; that the respondent called upon the complainant and informed him that he had purchased the picture and that he intended to publish it as a chromo; that the complainant made no objection to the proposed publication, but advised the respondent as to the best manner of making the chromo, suggesting that if he change the tint of the background, as the respondent had told the complainant he proposed to do, he would injure the chromo, and advised him to copy the picture exactly as it was at the time of purchase; that the said chromos were made and prepared for the market at great expense of time, trouble, and money, as the complainant well knew, and that the complainant during all the time the respondent was engaged in preparing and making the same, made no objection to his acts and never claimed that he had any right to prevent the publication. Instead of filing the general replication denying the allegations of the answer, the complainant elected to set down the cause for hearing upon bill and answer.

Thomas W. Clarke and William D. Booth for complainant.

By sale of an oil painting, does the artist convey his ideal property in the conception of the subject, the combination and effect of its treatment, as well as the particular, tangible, and visible embodiment of that ideal?

Parton v. Prang.

We say, as an undoubted proposition of law, at the same time of the sale of this picture by Parton, at the time of purchase by Prang, at the time of the conversation in March, 1870,-no person could acquire any right to make copies of the picture by engraving or other reproduction, but the first designer or by his express authority in apt words and form. Curtis on Copy, 146; Binns v. Woodruff, 4 Wash. 48, 51–57; Pierpont v. Fowle, 2 W. & M. 23, 46; Atwill v. Ferrett, 2 Blatch. 39, 46.

Prang could only register the copyright as Parton's assignee, as the assignee of the incorporeal contents of Parton's manuscript. This assignment he never had in any form, and no pretence is made of even remotely following the form prescribed by statute, in writing, in presence of two witnesses, even to give him title to the picture itself. At most he claims a verbal license to publish without copyrighting. But he has copyrighted. This is a wrong to us which demands a remedy. His copyright pretends to exclude all the world from that formulation. He claims by the conversation a license simply, a license he might share with others. He claims by his copyright an exclusive right, an assignment by Parton, whose name appears as designer on the picture. In other words, he asserts the absurdity that an equitable non-exclusive license is equivalent to an absolute assignment.

Three cases of infringement of copyright in pictures appear in the English Reports; in each the title was derived from the author after a sale of the picture. Turner v. Robinson, 10 Ir. Ch. 121 & 570; Martin v. Wright, 6 Sim. 297; In re Graves, L. R. 4 Q. B. 715; S. C. 10 B. & Sm. 680; Ex parte Beal, L. R. 3 Q. B. 387.

On principle and authority, the following propositions are law, and they are decisive for the plaintiff:

That, by designing a work of art, the artist acquires an exclusive right to multiply the same, which continues till publication in print by his authority, independently of his physical control of the embodiment he has given it.

This right he may assign by deed, like a land deed, but not otherwise.