nal design had been their joint conception. ( (Coppinger, Law of Copyrights (4th ed.) pp. 109, 110.)

In Dam v. Kirk La Shelle Co. (175 Fed. 902, 99 C. C. A. 392, 41 L. R. A. (N. S.) 1002, 20 Ann. Cas. 1173), in an action for infringement of copyright, this court recognized the obligation to protect one who prepared the framework of a play and said:

The story was but a framework,

* *

but the right given

to an author to dramatize his work includes the right to adapt it for representation upon the stage, which must necessarily involve changes, additions, and omissions. It is impossible to make a play out of a story-to represent a narrative by dialogue and action-without making changes, and a playwright who appropriates the theme of another's story can not, in our opinion, escape the charge of infringement by adding to or slightly varying his incidents.

We conclude that the rights which the appellants had in the use of the scenario were only such as were permitted pursuant to the agreement of the parties to collaborate to produce the opera "Sweethearts." Therefore, as between the appellee and the appellants, who are coauthors and jointly interested with the appellants in the work when the play was copyrighted by the appellant Harry B. Smith, the copyright is deemed to have been taken out in the name of one as a trustee for all the true owners. The consent to take out the copyright in the name of one does not destroy the interest of the others. who have jointly labored with the applicant for such copyrighted play. The legal title to a copyright thus obtained vests in the person in whose name the copyright is taken out. The question of such ownership is dependent upon the circumstances of the case. (T. B. Harms & Francis, Day & Hunter v. Stern, 229 Fed. 42, 145 C. C. A. 2; Press Pub. Co. v. Falk (C. C.), 59 Fed. 324, Black v. H. G. Allen Co. (C. C.), 42 Fed. 618, 9 L R. A. 433.) Here the joint owners of the work are represented by Harry B. Smith, so far as the record title of the copyright is concerned; but he holds it as such trustee.

[3] But it is contended that the relief granted by the decree below is at variance with the allegations of the bill of complaint. We find no variance between the complaint and the proofs which justify the claim. (Lockhart v. Leeds, 195 U. S. 427, 25 Sup. Ct. 76, 49 L. Ed. 263; N. P. Pratt Lab. Co. v. Buffalo Forge Co., 184 Fed. 287,

106 C. C. A. 429.) The action was properly maintainable in equity. The action is brought to secure an adjudication that the copyrights taken up by the appellant Harry B. Smith are held in trust for the appellee-at least to the extent of her rights as coowner. Where two or more persons have a common interest in a property, equity will not allow one to appropriate it exclusively to himself to impair its worth as to others. The settlement of rights between joint tenants or joint owners of property is the subject matter of equity jurisdiction, and we think that such rights are involved in this litigation. Ludeling, 21 Wall. 616, 22 L. Ed. 492.)

(Jackson v.

In determining the interest of the appellee the court below awarded the appellee an interest of one-third and the Smiths one-third each in whatever rights the Smiths had in the copyrights under any agreements with G. Schirmer, Incorporated, or Victor Herbert, the composer. It declared the appellee a coowner to the extent of one-third interest with the Smiths in any interest which all three of them may have had in moving-picture rights of the opera, in any other territory, not copyrighted, which has not passed to Werba & Luescher under the appellee's contract with them, and, further it decreed an accounting against Robert B. Smith of any profits which he may have received from the statutory copyrights. It held that in the account any proper crossequities may be considered. We think this declaration of the interest of the appeilee was proper.

The decree is affirmed.

JOE MITTENTHAL, INC., v. IRVING BERLIN, INC., ET AL.

(District Court, S. D., N. Y.

March 16, 1923)

291 Fed. Rep. 714

COPYRIGHTS-NOT DEFEATED BECAUSE COPIES SENT TO COPYRIGHT

OFFICE BEFORE PUBLICATION.

Under copyright act, section 12 (Comp. St. sec 9533), providing that, after copyright has been secured by publication, two complete copies of best edition shall be deposited in, or mailed to, the copyright office, copyright was not defeated because such copies were sent to copyright office before publication.

In equity. Suit by Joe Mittenthal, Incorporated, against Irving Berlin, Incorporated, and another. On Motion denied.

motion to dismiss bill.

The bill set forth the deposit of two copies with the register on July 13, 1922, under section 12 of the act of 1909 (Comp. St. sec. 9533), the subsequent publication for sale on July 26, 1922, with the proper notice, under section 9 (sec. 9530), and the issuance of a certificate of registration under sections 10 and 55 (secs. 9531, 9576). The date of the certificate does not appear, but as it contained the date of publication it is to be taken as issued after that time. The only question is whether as copies were deposited before, instead of after, publication, the plaintiff failed to comply with section 12 and no suit lay.

Francis Gilbert, of New York City, for the motion. Louis D. Frohlich, of New York City, opposed. LEARNED HAND, District Judge. The question is this: The copies being on deposit with the register after publication, does it make any difference that they were on deposit also for two weeks before? The purpose of the deposit is to secure two copies of "the best edition" for the Library of Congress as a condition upon the right to protect the copyright. How is that affected by the fact that the register gets them before the author need give them up? The time was rather of grace to authors who might delay deposit till their best edition was on the market. Thus they need not hold it for a time after the deposit was made. What usually happens is that when a work is printed the publisher wishes to get it to the public as soon as possible. He may safely do so if he sees to it that two copies go along to Washington with reasonable dispatch. Why it should tell against him that he finds it convenient to anticipate that time, I fail to comprehend. The purpose of the section is equally served in either case.

The defendant suggests that the register will be cumbered with publications which may remain unpublished. That must be a slight danger, for a man will seldom deposit copies which he does not publish. But even so, the library is enriched thereby and there need be no confusion, because the register does not issue his certificate

till he learns the date of publication. The time of deposit is clearly of secondary importance. Even a failure to deposit promptly does no more under section 13 (Comp. St. sec. 9534) than subject the owner to a demand, failure to comply with which exposes him to a fine of $100 and the cost of the two copies which he should have furnished. He may mend his case even in the event of long delinquency. Why should he suffer by too great expedition?

The case of No-Leak-O Piston Ring Co. v. Norris (277 Fed. 951, C. C. A. 4) is flatly in point. The defendant is wrong in thinking that the court took the delivery of 50 copies to the plaintiff by the printer as a publication, * for their own use." though they were "kept * It was the general distribution on the 6th and 10th of August, which was the date of publication, as indeed section 62 (Comp St. sec. 9583) required. Belford v. Scribner (144 U. S. 488, 505, 12 Sup. Ct. 734, 36 L. Ed. 514) is perhaps not strictly in point. "Within ten days from the publication" does not inevitably mean "after publication," yet it is pretty clear that Congress in fact did mean after publication. The result would have been the same had it read "after but within," for Justice Blatchford only says that the statute was substantially complied with."

66

Cardinal Film Co. v. Beck (D. C., 248 Fed. 368) followed my ruling in Stern v. Remick (C. C., 175 Fed. 282), and probably can not be taken as an independent ruling, though Judge Knapp apparently thought so in No-Leak-O Piston Ring Co. v. Norris, supra, Stern v. Remick, supra, was rightly decided because there had been a sale, but I must own that what I said there of publication seems to me now open to doubt. In any case that point is not involved here, because, as I have said, in my judgment the time of deposit in section 12 is permissive, and a deposit before publication is enough. The purpose of the act of 1909 was to open a path for authors beside and not through the quagmire which had been created under the old act. I have no disposition to open another. Of course, the policy of the act must be enforced, but it does no lie in purposeless technicality. Motion denied.

MORRIS COUNTY TRACTION CO. v. HENCE

(Circuit Court of Appeals, Third Circuit. July 3, 1922)

COPYRIGHTS.

281 Fed. Rep. 820

Evidence held not to support finding that defendant published a map which plaintiff, under Comp. St., sec. 9517, was entitled to the exclusive right to publish.

Appeal from the District Court of the United States. for the District of New Jersey; Charles F. Lynch, judge. Bill by Ernest Hence against the Morris County Traction Company. Decree for plaintiff, and defendant appeals. Decree vacated, and cause remanded, with instructions to dismiss bill.

King & Vogt, of Morristown, N. J. (Elmer King and Robert H. Schenck, both of Morristown, N. J., of counsel), for appellant.

W. P. Preble, of New York City, for appellee.

Before Buffington, Woolley, and Davis, circuit judges. BUFFINGTON, Circuit Judge. In the court below Ernest Hence filed a bill against the Morris County Traction Company, charging it with violation of the copyright which section 9517, United States Compiled Statutes, gave him in the exclusive right "to print, reprint, publish, and vend" a certain map. As no contention is made that the traction company printed, reprinted, or vended such copyrighted map of northern New Jersey, which is here involved, the case resolves itself into the legal question whether the proofs show the traction company published said map. On that question the court below found for the plaintiff and awarded him damages. Whereupon the defendant took this appeal.

The testimony, in which there was no dispute, showed that in 1920 one Latassa, who was getting up an advertising sheet of northern New Jersey concerns, came to the traction company's office and solicited an advertisement. No advertisement was given him, but while he was in the office he saw, underneath the glass on the office table, a copy of the map of northern New Jersey, which Hence, the plaintiff, had copyrighted eight years before. What took place is thus stated by O. G. Schultz, the secretary of the traction company:

Q. What did Mr. Latassa want to do what scheme did he have in mind when he came to see you as he told you?-A. As he