Brady v. Reliance Motion Picture Corp. , 229 F. 137 ( 1916 )

WARD, Circuit Judge.

July 16, 1906, the complainant, author of a story called “The Child of God,” signed the following document:

July 16 th, 1906.

Received from Frank A. Munsey $240.00 in payment) for manuscript and copyright of “A Child of God” (4,800 words at 5c. per word).

Received above $240.00. ThanJc you very much.

Cyrus Townsend Brady.

7/18/06

Please receipt and return.

Please sign this receipt and return it to Frank A. Munsey, 111 Fifth Ave., New Fork. Unless expressly otherwise stipulated, all MSS. drawings, etc., sold to Frank A. Munsey are purchased with copyright and all rights.

Author reserves right of boolc publication and dramatic rights, if any, after serial publication is completed. 7/18/06. C. T. Brady.

The words underscored were written.

March 25, 1907, the defendant, the Frank A. Munsey Company, printed the story in its serial number of Munsey’s Magazine for May and duly copyrighted the periodical. April 25, 1907, prior to the publication of the May number, the Munsey Company deposited two copies in the office of the librarian of Congress. December 22, 1914, the Munsey Company released the picture rights in the story to the defendant Mutual Film Corporation. The Mutual Company subsequently employed the defendant Reliance Motion Picture Corporation to construct a moving picture film of the story. It laid out in this way a large sum of money, made contracts with other parties for exhibition of the film throughout the country, and it has already been very generally exhibited.

The complainant filed this bill, praying that the defendant the Munsey Company might be required to reassign to him all rights in and to the copyright, except the right of serial publication; that the other defendants be enjoined from selling, leasing, or using the moving picture films; and that all the defendants be required to account to him for damages and profits.

The single question before us for consideration is whether Judge Hough was right in refusing to grant a preliminary injunction. It will not be necessary to consider the averments of the affidavits as to good or bad faith made by the complainant and the defendant Munsey Company, respectively, or as to notice or absence of notice, actual or constructive, made by the complainant and the film companies, respectively, because upon the theory of law stated by the complainant himself the order will be affirmed.

The complainant contends that the copyright taken out by the Munsey Company covered all rights, and that he did confer the whole copyright privilege upon it to hold the same for its own benefit as to serial publication and as trustee for him as to all other rights. Assuming these premises, the complainant could have required the Munsey Company, at least after serial publication in 1907, to reassign to him all the other rights. Had this been done, such assignment waukj have been void as against subsequent purchasers or mortgagees without notice, for a valuable consideration, unless recorded in the office of the librarian of Congress within 60 days after its execution. Rev. Stat. U. S. § 4955; Photo Drama Co. v. Social Uplift Corporation, 220 Fed. 448, 137 C. C. A. 42. Such persons can surely not be worseoff when no actual assignment whatever has been made. Moreover, without reference to any statute, when one clothes another with apparent ownership, though actually as trustee, he cannot defeat the title of those who in good faith, for a valuable consideration, and without notice deal with the trustee. Cowdrey v. Vandenburgh, 101 U. S. 572, 25 L. Ed. 923. Actual notice to the film companies is not pretended, and we discover no sufficient evidence of constructive notice to justify the issuance of a preliminary injunction against them or either of them.

The order is affirmed.