ings to obtain all remedies to be united in one 6 7 [§ 392] 5. Statute of Limitations. The present copyright law provides no period of time within which the remedies for infringement must be prosecuted, although there is a three-year limitation applicable to criminal proceedings. Accordingly, 9 actions at law for infringement of copyright are limited by the limitation existing for the class of actions to which it belongs in the state where the action is brought, this being the general rule in the absence of any applicable federal statute of limitations.10 There is no statute of limitations strictly applicable to equity cases, but laches may bar relief.1 11 The former statute required actions for forfeitures and penalties to be commenced within two years after the cause of action had arisen.12 This statute did not apply to a bill in equity for an injunction and damages, because such a suit is not an action for a forfeiture or a penalty." did it apply to an action for damages given by the Nor statute in the case of infringement of books and of dramatic performing rights, because such damages are not a forfeiture or a penalty.14 But no penalties could be recovered which did not accrue within two years of the commencement of the action.1 though plates were engraved more than two years Albefore action brought, every printing from such plates was a new cause of action for the purposes of this action for the recovery of damages under the section of the Revised Statutes before referred to. Conceding that he might in equity suit have recovered profits if the there had been an accounting concerning the same, and that a decree for their recovery would be a bar to a proceeding under the statute, yet the plaintiff was not bound to take such remedy; and when in fact he did not take it, and there was accounting for profits in the equity suit, no decree made in regard to them and no recovery had, we see nothing to prevent the plaintiff in this action from recovering under the statute the damages which he has sustained by reason of the infringement of his copyright by the defendant." Brady v. Daly, 175 U. S. 148, 160, 20 SCt 62, 44 L. ed. 109. no 6. See Werckmeister v. American Tobacco Co., 207 U. S. 375, 28 SCt 124, 52 L. ed. 254 (holding that the former statute gave but one action to enforce both forfeiture of copies and penalties therefor, plaintiff exhausted his remedy in and that the first judgment, although it did not give him all the remedy to which he was entitled under the statute; that is, a judgment for forfeiture of copies only was a bar to a subsequent action for penalties. persuasive that under the present This is law all remedies must be sought and cbtained in a single action). also Hills v. Hoover, 220 U. S. 329, See 337, 31 SCt 402, 55 L. ed. 485, Ann Cas1912C 562 (where the mere pending of an action of replevin in which infringing sheets had was held a bar to a subsequent_acbeen seized tion of assumpsit for penalties, Day, J., said: "It therefore follows that Hills & Co. having brought an action for the recovery of the infringing matter, and having conducted it so far as to have the goods seized and turned over to them, can have no other remedy under the statute which provides for all relief in a single action"). And see supra § 377. 7. See generally Limitations of Actions [25 Cyc 963]. 8. Act March 4, 1909 (35 U. S. St. at L. 1075 c 320 § 39). 9. Brady v. Daly, 175 U. S. 148, 20 SCt 62, 44 L. ed. 109. "The court below was, as is stated 13 15 of the statute.1 16 [§§ 391-393 Under English statutes. Under the Copyright Act of 1911, an action in respect of infringement of copyright cannot be brought after the expiration of three years next after the infringement.17 Under prior statutes various periods of limitation were in force for different classes of copyrights and infringements ranging from a few months to six years. Although an action for the original infringement may be barred by limitations, subsequent infringing acts may give rise to a new cause of action which is not barred.1 19 18 Of [393] S. Pleading-1. Bill, Declaration, Petition, or Complaint-a. In General. In an action for infringement of copyright, whether at law or in equity, plaintiff's bill, declaration, petition, or complaint must show title in plaintiff to the relief sought.20 This involves allegations showing the existence of a valid copyright,21 its ownership by plaintiff,22 and its infringement by defendant.23 course only the ultimate facts, as distinguished from mere evidentiary facts, need be pleaded,24 although a bill in equity may be framed so as to obtain a discovery in aid of plaintiff's case, cordance with the usual rules.2 25 in acthe pleadings are conformed to those in the state In actions at law, court.2 27 The court, in its discretion, may permit the bill to be amended pending demurrer thereto." The bill must show that the amount in controversy in the opinion, somewhat influenced 10. Brady v. Daly, 175 U. S. 148, 11. Laches and acquiescence see 12. U. S. Rev. St. § 4968; Patter- 15. Daly v. Brady, 69 Fed. 285 16. Reed v. Carusi, 20 F. Cas. No. 11,642, Taney 72. 17. St. 1 & 2 Geo. V c 46 § 10. 18. St. 16 Jac. I c 16 § 3; 54 Geo. III c 56; 3 & 4 Wm. IV c 15 § 3; 5 & 6 Vict. c 45 § 26; Weldon v. Dicks, 10 Ch. D. 247; Hogg v. Scott, L. R. 18 Eq. 444; Clark v. Bell, 10 Mor. Dic. Dec. Lit. Prop. App. 9; Stewart 26 v. Black, 9 Sc. Sess. Cas. (2d ser) 370]; Macmillan v. Suresh Chunder 20. Levy, 202 Fed. 805; Lillard v. Crown Feature Film Co. v. Printing, etc., Assoc., 87 Fed. 213; Sun Falk v. Seidenberg, 48 Falk v. Schumacher, 48 Fed. 224; Black v. Henry G. Allen Co., 42 Fed. Fed. 222; 618. 9 LRA 433; Chicago Music Co. v. J. W. Butler Paper Co., 19 Fed. 758; Atwill v. Ferrett, 2 F. Cas. No. 640, 2 Blatchf. 39; Ferrett v. Atwill, 8 F. Cas. No. 4.747, 1 Blatchf. 151; Lawrence v. Dana, 15 F. Cas. No. 8.136, 4 Cliff. 1; Russell v. Smith, 12 Q. B. 217, 64 ECL 217, 116 Reprint 849. [a] Excusing apparent delay.-It is not always necessary for plainant to set forth in his bill the circumstances which explain a delay in bringing a suit. Greene v. Bishop, com Practice conformity act see Courts [11 Cyc 884]. 28. Crown Feature Film Bettis Amusement Co., 206 Fed. 362. Co. For later cases, developments and changes in the law see cumulative Annotations, same title, page and note number. V. 31 33 a is sufficient to support the jurisdiction." [394] b. Averment of Copyright-(1) In General. Since copyright is wholly a statutory right given by the statute only in respect to certain classes of works,30 and to certain classes of persons, on compliance with specified terms and conditions,32 and existing only for a limited time,3 plaintiff complaining of an alleged infringement of his copyright must allege every fact necessary under the statute to the existence of a valid copyright.34 No intendment will be made in favor of an exclusive monopoly of this character;35 plaintiff must show that he has taken the steps required by law to obtain it.36 These requirements are substantially different under the present law37 from what they were under the former law,3 or under the English39 or Canadian law, and there is a corresponding difference in the particular facts that must be averred in order to show the existence of a copyright, but the principle remains the same, 41 40 38 43 that what the statute requires must be alleged.*2 But nothing not required by the statute need be alleged. Where the statute prescribes two methods for complying with the necessary conditions, a bill alleging disjunctively the use of both methods is ambiguous, and tenders no issue.14 But where the two methods are not inconsistent, a conjunctive allegation that both were used will be upheld.45 Mere legal conclusions are of course insufficient; the specific acts done and necessary to constitute a compliance with the law must be affirmatively alleged.46 [395] (2) Citizenship or Residence. The citizenship or residence of the copyright claimant at the time of taking out the copyright must be alleged in order to show that he was a person entitled to the benefit of the copyright laws.48 Where plaintiff is a nonresident alien, he must allege the existence of reciprocal copyright relations between his country and the United States entitling him to 29. Bureau of National Literature | party, either before or simultaneousv. Sells, 211 Fed. 379; Ginn v. Apollo ly with the publication by plaintiff. Pub. Co., 209 Fed. 713; Ohman v Boosey v. Purday, 10 Jur. 1038, New York, 168 Fed. 953. 1039. Federal jurisdiction as dependent on amount in controversy see Courts [11 Cyc 878]. 30. What may be copyrighted see supra §§ 90-143. 31. Who entitled to copyright see supra § 144-166. 32. Requirements for securing and preserving copyright see supra §§ 167-234. 33. Duration and renewal of copyright term see supra §§ 235-244. V. 34. Gaumont Co. v. Hatch, 208 Fed. 378; Bosselman v. Richardson, 174 Fed. 622, 98 CCA 127; Ohman v. New York, 168 Fed. 953; Ford Charles E. Blaney Amusement Co., 148 Fed. 642; Burnell v. Chown, 69 Fed. 993; Osgood v. A. S. Aloe Instrument Co., 69 Fed. 291; Scribner v. Henry G. Allen Co., 49 Fed. 854; Scribner v. Henry G. Allen Co., 43 Fed. 680; Trow City Directory Co. v. Curtin, 36 Fed. 829; Falk Howell, 34 Fed. 739; Stover v. Lathrop, 33 Fed. 348; Chicago Music Co. v. J. W. Butler Paper Co., 19 Fed. 758; Boucicault v. Hart, 3 F. Cas. No. 1,692, 13 Blatchf. 47; Parkinson V. Laselle, 18 F. Cas. No. 10,762, 3 Sawy. 330; Burk v. Relief, etc., AsSoc., 3 Hawaii Fed. 388. V. [b] Date of publication.-Where the date of publication is some years prior to that of the infringement, it is sufficient to state the year of publication without alleging the day or the month. Boosey v. Davidson, 4 D. & L. 147. 43. Scribner v. Henry G. Allen Co., 49 Fed. 854. [a] Averments which follow the language of the statute are sufficient. Consequently a bill which avers that two copies of the book were deposited in the librarian's office in Washington is sufficient, without alleging that the book was published within a reasonable time after the deposit of the copy of the title. Scribner V. Henry G. Allen Co., 49 Fed. 854, 855 (where the court said: "The second ground of demurrer which is stated in the brief is that the bill simply alleges that Mr. Scribner deposited within 10 days after publication, in the librarian's office at Washington, two copies of the book, whereas it should also have alleged that the book was published within a reasonable time after the deposit of the copy of the title. The averments in the bill state a compliance with the statutory provisions, and follow the language of the statute, and are more full than those in precedents which have received the sanction of high authority"). [a] Allegation of recording of title.-A bill for infringement which fails to allege that the titles of the alleged copyrighted books have been recorded by the librarian of congress was demurrable under the former law. Edward Thompson Co. V. American Law Book Co., 119 Fed. profits.-A bill for infringement of a 217. 41. Gaumont Co. V. Hatch, 208 Fed. 378. 42. See cases this section passim. [a] Author or publisher.-Where a statute requires that a person shall, in his complaint for the infringement of a copyright, "specify [b] Musical composition for the purpose of public performance for musical composition by an unauthorized public performance need not allege that it was written for the purpose of public performance for profit. Hubbell V. Royal Pastime Amusement Co., 242 Fed. 1002 (where. construing Act March 4. 1909 [35 U. S. St. at L. 1075 c 320 § 1 subd (c)] Mayer, J., said: "As a mere matter of pleading, I am inclined to think that, when the composer composes his composition with an unlimited copyright notice, it may fairly be inferred that he had written the work for the purpose of securing all the rights attainable under the Copyright Act, including the exclusive right publicly to perform it for profit"). 44. Falk v. Howell, 34 Fed. 739 (where a bill alleging. in the language of Rev. St. § 4956, that complainant, "before publication, delivered at the office of the librarian of congress, or mailed to said librarian, a the name of the persons whom he alleges to have been the author or first publisher of such book, or the proprietor of the copyright therein, together with the title of such book, and the time when, and copy of the title of said photothe place where, such book was first graph," was held to be ambiguous). published." a sufficient compliance 45. Scribner V. Henry G. Allen is had by alleging a different publi- Co., 43 Fed. 680 (where a bill allegcation of the deputed work at some ing the delivery at the office of the particular place, by some definite librarian of congress of two copies of the book as required by statute, and also the deposit of such copies in the mail addressed to such librarian, was held not to require complainant to elect as to which averment he would undertake to prove). 46. Ohman v. New York, 168 Fed. 953; Ford V. Charles E. Blaney Amusement Co., 148 Fed. 642; Burrell v. Chown, 69 Fed. 993. [a] Sufficiency of averments.(1) The statement of the legal conclusion that "the copyright was taken out by [plaintiff] previous to the publication thereof, in full accordance with the requirements of the laws of the United States" is insufficient. Trow City Directory Co. v. Curtin, 36 Fed. 829. (2) "În an action for infringement of a copyright, it is not sufficient to allege generally in the bill or complaint that all conditions and requisites required by the laws of the United States to obtain a copyright have been complied with, but the specific acts done and necessary to constitute such compliance with the law must be affirmatively alleged, and the complaint must also show that the person in whose name the copyright was obtained was the person who owned the right and was entitled to it." Ohman v. New York, 168 Fed. 953, 957 [quot Ford v. Charles E. Blaney Amusement Co., 148 Fed. 642, 645]. (3) "The complaint in an action of this kind must allege affirmatively that the title_of the book has been filed in the office of the Librarian of Congress at Washington, that two copies of the book have been filed in such office before its publication, and that notice of the copyright, as required by the act, has been printed upon each copy issued. The bill in this case does not contain these specific allegations. although it does contain an allegation that all conditions and requisites to obtain a copyright, as required by the laws of the United States, were complied with. I think, under the authorities, that the specific allegations to which I have referred should be contained affirmatively in the bill." Ford v. Charles E. Blaney Amusement Co., supra. (4) An averment that the printed title was furnished to the librarian of Congress and that "thereafter, within the time and in the manner prescribed by law," plaintiff "did all the things required by law to be done in order to secure to himself the full enjoyment of all rights and privileges granted by the laws of the land governing copyright," is insufficient to entitle him to protection. Burnell v. Chown, 69 Fed. 993. 994. 47. Webb v. Powers, 29 F. Cas. No. 17,323, 2 Woodb. & M. 497. 48. See supra §§ 157-162, the benefit of the copyright laws.49 51 [396] (3) Authorship and Originality. Authorship and originality to the extent necessary to support a copyright50 must be alleged. It is sufficient to allege in general terms that plaintiff, or one under whom he claims, was the author, inventor, and designer of a certain new and original work not previously published;52 and it is unnecessary to state in detail the acts constituting authorship, or the modus operandi followed in producing the work. In the case of copyrighted photographs, this form of allegation has been held to be sufficient; but it has also been held insufficient, on the ground that one may be the author of a photograph without intellectual effort involving invention or originality," a photograph being distinguished in this respect from a map, book, or statue, to be the author, inventor, or designer of which one must necessarily have injected some intellectual effort into the production." This distinction seems unwarranted.5% An averment merely that the work 49. 953. 57 55 56 Ohman v. New York, 168 Fed. 50. See supra §§ 91-97. 51. Crown Feature Film Co. V. Levy, 202 Fed. 805; Bosselman v. Richardson, 174 Fed. 622, 98 CCA 127; Henderson v. Tompkins, 60 Fed. 758; Atwill v. Ferrett, 2 F. Cas. No. 640, 2 Blatchf. 39. [a] Photographs.-"I am inclined to think that defendants are right in their contention that the bill is demurrable because there is nothing to show that the photograph is a copyrightable work." Crown Feature Film Co. v. Levy, 202 Fed. 805, 806. 52. Gaumont Co. v. Hatch, 208 Fed. 378; National Cloak, etc., Co. v. Kaufman, 189 Fed. 215; Walker v. Globe Newspaper Co., 140 Fed. 305, 72 CCA 77, 2 LRANS 913, 5 AnnCas 274 [rev 130 Fed. 593, and rev on other grounds 210 U. S. 356, 28 SCɩ 726, 52 L. ed. 1096]. 53. Gaumont Co. v. Hatch, 208 Fed. 378; Falk v. Schumacher, 48 Fed. 222 (photograph). [a] Corporation as author or proprietor. "The fifth and last ground of dismissal is stated to be that it does not appear that the Gaumont Company was entitled to register and copyright the picture referred to, and this, we gather from the argument, is based upon the assertion that the complainant, the Gaumont Company, being a corporation, could not be capable of intellectual effort, which is involved in the word 'author,' and that it does not appear how the Gaumont Company became possessed of the picture. This reason and argument may be disposed of, first, by the consideration that the bill alleges in the third paragraph that the Gaumont Company was the sole and exclusive owner, author, and proprietor of certain original moving pictures and that is a question of proof at the trial; and, second, that by the provisions of the act, section 62, the word 'author' should include an employer in the case of works made for hire. This, too, is a matter of proof which must await trial." Gaumont Co. v. Hatch, 208 Fed. 378, 381. [b] Copyright in opera.-An allegation in a bill for Infringement of a copyright of an opera that the work was arranged, adapted, printed, and published by or for plaintiff is defective; but a sufficient title will be shown if it is also alleged that plaintiff made many additions and alterations to the music; that added new matters of his own; that he arranged the pieces so altered and composed and took out a copyright therefor in proper form. Atwill v. Ferrett, 2 F. Cas. No. 640, 2 Blatchf. 39. he was "written or composed" by a designated person was criticized, but sustained on general demurrer as sufficient to import originality.5 58 59 [397] (4) Deposit of Copies and Registration. Under the former law, delivery at the office of the librarian of congress, or deposit in the mails addressed to him, within the time specified, of the required title or description and of the required copies or photograph of the work, were conditions precedent to the existence of any copyright therein," and accordingly, in a suit for infringement of a copyright secured under the former law, it is necessary for plaintiff to allege and show such delivery or deposit,60 and the recording of the title in the office of the librarian of congress." But under the present law, registration and deposit of copies is not a condition precedent to the existence of a copyright in published works,62 and accordingly need not be alleged in order to show a valid copyright. Registration and deposit of copies is, however, a condition precedent to the existence of a 63 54. Pagano v. Chas. Beseler Co., 234 Fed. 963; Falk v. Schumacher, 48 Fed. 222 (unnecessary to allege modus operandi of taking copyrighted photograph). [a] Rule applied.-(1) "The subject of the copyright is a photograph of a scene on Fifth avenue in the city of New York from Forty-First street to Forty-Second street, which includes the Public Library. In paragraph V of the complaint plaintiffs allege that the picture is from his own original conception, to which he gave visible form by select ing the position and place from which to take said picture, and the moment when the light, shade, cloud, and sky effects upon said New York Public Library and its surroundings combined to make a new harmonious and artistic picture.' Whether what was done makes a new, harmonious, and artistic picture is probably a conclusion of the pleader; but the allegation that the conception was original, and that visible form was given to that conception by selecting the position and place at the proper moment, is an allegation of fact. The demurrer, therefore, must be overruled." Pagano v. Chas. Beseler Co., 234 Fed. 963. (2) An allegation in a bill for an injunction for infringement of a copyright photograph, that complainant "is the author, inventor, designer and proprietor of a certain photograph and negative thereof, known and entitled 'Photograph No. 23 of Lillian Russell, by B. J. Falk, N. Y." is sufficient without giving a description of the method of producing the photograph, or attaching a copy thereof to the bill. Falk v. Seidenberg. 48 Fed. 224; Falk V. Schumacher, 48 Fed. 222. 55. Falk v. City Item Printing Co., 79 Fed. 321 (holding that it is necessary for complainant to allege, for the purpose of showing his right of copyright, the existence of facts of originality, intellectual production, thought and conception). 56. Falk v. City Item Printing Co., 79 Fed. 321. 57. Photographs as subjects of copyright see supra § 118. 58. Henderson V. Tompkins, 60 Fed. 758. 59. See supra §§ 199-208. 60. Davies v. Bowes, 219 Fed. 178, 134 CCA 552; Bosselman v. Richardson, 174 Fed. 622, 98 CCA 127; Ford v. Charles E. Blaney Amusement Co., 148 Fed. 642; Burnell v. Chown, 69 Fed. 993; Osgood v. A. S. Aloe Instrument Co., 69 Fed. 291; Trow City Directory Co. v. Curtin. 36 Fed. 829; Parkinson v. Laselle, 18 F. Cas. No. 10.762. 3 Sawy. 330; Burk v. Relief, etc.. Assoc., 3 Hawaii Fed. 388. [a] Rule applied.—(1) "To entitle the complainant to maintain this 61 suit it must, therefore, appear that the two copies were delivered on that day or mailed on that day. The complaint alleges that the two copies were delivered or caused to be delivered to the Librarian on June 24, 1908, which is a day later than the day of publication. The complaint thus fails to allege compliance with the statute; but, if the proofs showed compliance, the complaint could be amended to conform thereto." Davies v. Bowes, 219 Fed. 178, 179, 134 CCA 552. (2) The deposit of copies within ten days after publication must be affirmatively averred, and an averment that "within the time and in the manner prescribed by law, your orator did all the things required by law to be done in order to secure to himself the full enjoyment of all the rights and privileges" granted by the copyright laws is not sufficient. Burnell v. Chown, 69 Fed. 993, 994. of [b] Delivery and mailing copies; conjunctive statement.-Rev. St. § 4956, allowing a person seeking a copyright to deliver at the office of the librarian of congress the copy of the title of the book and the two copies of the book which the statute requires to be deposited, and also permitting the deposit of such copies in the mail addressed to such librarian, does not prevent both the delivery and mailing of the copies; and where a complaint for infringement avers that both these acts were done, complainant will not be required to elect which averment he will undertake to prove at the trial and to abandon the other. Scribner v. Henry G. Allen Co., 43 Fed. 680 [dist Falk v. Howell, 34 Fed. 739 (where a disjunctive statement that the complainant mailed or delivered copies to the librarian of congress, although in the language of the statute. was held insufficient)]. 61. Edward Thompson Co. American Law Book Co., 119 Fed. 217. [a] Reason for rule.-"It may be admitted that the title is in law recorded when received for record, and that the date of the recording is the time when it is so received, rather than that when it is actually written in the record book. But in view of the express language of the statute, limiting the duration of the grant 'from the time of recording the title,' and providing for the recovery of damages after the recording of the title,' it would seem that the fact of record should be alleged in the bill, even if the delivery to the librarian is sufficient evidence of the fact." Edward Thompson Co. v. American Law Book Co., 119 Fed. 217, 220. 62. See supra § 174. 63. National Cloak, etc., Co. v. Kaufman. 189 Fed. 215. V. [a] Present and former law con 65 64 copyright in unpublished works; and accordingly, in suits for infringement of copyright in unpublished works, it is necessary to allege registration and deposit of copies as required by the statute in respect to that class of works." In all cases compliance with the provisions as to registration and deposit of copies is a condition precedent to the maintenance of any suit for infringement,66 and accordingly should be alleged in order to show a right to sue. 67 [398] (5) Notice of Copyright. The insertion or use of the notice of copyright as required by the statute has always been regarded as a condition precedent, and observance of the statutory requirements in that respect must be alleged.69 Since such notice has never been required in foreign editions, except, perhaps, under the present law, in the case of investitive publication of foreign works in languages other than English and prior to resigtration of such works," it is not necessary to allege use of the notice in foreign editions.72 70 [399] (6) Domestic Manufacture. Compliance with the domestic manufacturing requirements, if applicable to the class of works in question,73 must be alleged, for copyright protection is accorded only to works produced in accordance with these requirements.74 Under the former statute it was held unnecessary for plaintiff to allege compliance with the domestic manufacturing provisions then in force;75 trasted. "The first count of the demurrer questions the copyright because of the failure to register or enter, in form and manner provided by law, the title of the book or volume of the publication. Such formality as was necessary under the former law is not now required by Act March 4, 1909, 35 St. at L. 1075, c. 320 (U. S. Comp. St. Supp. 1909, p. 1289) under which the copyright for consideration was acquired. Copyright vests upon the publication of the book or publication with the notice of copyright under section 9 The allegations in the of the act. bill are full and sufficient showing that the necessary steps of the statute were observed in securing the right and certificate of copyright." National Cloak, etc., Co. v. Kaufman, 189 Fed. 215, 216. 64. See supra § 181. 65. Gaumont Co. v. Hatch, 208 Fed. 378 (where the defect was cured by amendment). See also cases supra note 60, supporting the text, although decided under the former statute, because the statutory requirements are not essentially different. 66. See supra § 380. 67. Crown Feature Film Co. v. Levy, 202 Fed. 805. [a] Averment held insufficient. "The allegation that Powers filed 'two complete copies of said photographs' does not satisfy the requirement of the statute, which, among other things, is that registration shall be made by depositing 'two complete copies of the best edition thereof then published.'" Crown Feature Film Co. v. Levy, 202 Fed. 805, 806. 68. See supra §§ 194-197; 212 219. 69. Ford V. Charles E. Blaney Amusement Co., 148 Fed. 642; Haggard v. Waverly Pub. Co.. 144 Fed. 490; Falk v. Gast Lith., etc., Co., 40 Fed. 168; Trow City Directory Co. v. Curtin, 36 Fed. 829. 70. See supra §§ 194, 219. 71. See supra §§ 173, 193, 194. 72. United Dictionary Co. v. G. & C. Merriam Co., 208 U. S. 260, 28 SCt 290, 52 L. ed. 478; Haggard v. Waverly Pub. Co., 144 Fed. 490. 73. See supra §§ 100, 188-192. 74. See supra § 100. And see Act but this decision seems to be unsound, and the usual practice was to allege compliance with these provisions.76 78 [§ 400] c. Averment of Ownership. Facts must be alleged showing that plaintiff is competent to maintain the suit; that the right of action asserted is in him." The complaint must show that the person in whose name the copyright was obtained was the person who owned the right and was entitled to the copyright." An averment that plaintiff was the author,79 or author and proprietor,80 or simply that plaintiff was proprietor,81 is sufficient. It is unnecessary to set out plaintiff's chain of title.82 It has been held, however, that a mere averment of proprietorship is insufficient without further averments showing how plaintiff became proprietor.83 Where the copyright was not obtained in plaintiff's name, plaintiff must connect himself with it by proper averments showing an assignment or other transfer of it to him,84 or a license under it, sufficient to entitle him to sue.85 An allegation of a sale of "the sole right of printing and publishing" a work may be taken to imply a sale of the copyright, but it properly should be alleged that the "copyright" was sold and transferred.86 Facts and not mere conclusions must be alleged;87 but where the facts are properly stated, the legal conclusions therefrom may be pleaded even in an alternative form.88 Since the term "author" now March 4, 1909 (35 U. S. St. at L. 1075 c 320 § 15). 75. Osgood v. A. S. Aloe Instrument Co., 69 Fed. 291. 76. Burden of proof of domestic manufacture see infra § 413. V. 77. Crown Feature Film Co. Levy, 202 Fed. 805; Ferrett v. Atwill, 8 F. Cas. No. 4,747, 1 Blatchf. 151. 78. Bosselman v. Richardson, 174 Fed. 622, 98 CCA 127; Ford v. Charles E. Blaney Amusement Co., 148 Fed. 642. [a] Inconsistencies of allegations as to authorship in a bill for infringement of copyright are no ground of objection on general demurrer, if other allegations are sufficiently explicit as to the authorship. Atwill v. Ferrett, 2 F. Cas. No. 640, 2 Blatchf. 39. 79. Falk v. Seidenberg, 48 Fed. 224; Falk v. Schumacher, 48 Fed. 222. 80. Gaumont Co. v. Hatch, 208 Fed. 378; Falk v. Seidenberg, 48 Fed. 224; Falk v. Schumacher, 48 Fed. 222. 81. Edward Thompson Co. American Law Book Co., 119 Fed. 217; Lillard V. Sun Printing, etc., Assoc., 87 Fed. 213. V. 82. Lillard v. Sun Printing, etc., Assoc., 87 Fed. 213. See Tams v. Witmark, 30 Misc. 293, 63 NYS 721 [aff 48 App. Div. 632 mem, 63 NYS 1117] (where a like ruling was made as to common-law property). first [a] Rule applied. "The ground of demurrer is that the bill contains no averment that complainants are the authors, inventors, designers, or proprietors of the engraving, cut, or print, and of the article in reference to the same. It is, however, averred that they were, prior to the time of securing copyright, the proprietors of the book or periodical entitled 'Popular Science, January, 1897.' If they were proprietors of the whole book, they were, of course, proprietors of every part of it, including the engraving and the article in reference thereto contained in such book. Averment of proprietorship is sufficient, under the authorities. When the proofs are taken, complainants will no doubt have to show who was the author or designer of the article and of the illustration, and how such article and illustration came into their possession as proprietors, but it is not necessary in the bill to set forth the chain of title." Lillard v. Sun Printing, etc., Assoc., 87 Fed. 213, 214 [quot Edward Thompson Co. v. American Law Book Co., 119 Fed. 217, 220]. 83. Crown Feature Film Co. V. Levy, 202 Fed. 805; Chicago Music Co. v. J. W. Butler Paper Co., 19 Fed. 758. [a] Contrary view stated and illustrated.-(1) "Complainant states merely that its assignor was 'the sole and exclusive owner and proprietor of certain photographs entitled "St. George and the Dragon, Part I" and of all rights and privileges thereunder and therein in and to the United States and the territories thereof.' There is no allegation that Powers was the author, or that there was any author or producer in the United States or elsewhere, or how, if Powers was not the author, he became the proprietor. I think, under the present act even more strongly than heretofore, complainant must show his title not merely by an allegation that he is the proprietor, but by setting forth facts which show how he became proprietor and why he has the right to ring the action. While Bosselman v. Richardson, 174 Fed. 622, 98 CCA 127, Ford V. Charles E. Blaney Amusement Co., 148 Fed. 642, arose nder the previous law, yet they are in principle applicable to the case here under consideration." Crown Feature Film Co. v. Levy, 202 Fed. 805, 806. (2) Nobody but the author. or some person who has acquired the authority of the author, can obtain a copyright under law; and where a person attempts to copyright as proprietor, and avers that he has copyrighted as proprietor, he must show how he became proprietor. Chicago Music Co. v. J. M. Butler Paper Co., 19 Fed. 758. and 84. Assignment and transfer of copyright see supra §§ 245-262. 85. Right of licensee to sue see supra § 385. 86. Ford V. Charles E. Blaney Amusement Co., 148 Fed. 642. 87. Black v. Henry G. Allen Co., 42 Fed. 618, 9 LRA 433. 88. Black v. Henry G. Allen Co., 42 Fed. 618. 9 LRA 433. [a] Illustration.-A bill which al includes an employer for whom works are made for hire, 89 a corporation sufficiently shows title by alleging its authorship of the work,90 and under either the present or the former law proprietorship is shown by allegations that the work was made for plaintiff by his employees for hire.91 97 96 [§ 401] d. Averment of Infringement. Infringement by defendant must be distinctly charged.92 Every fact necessary to constitute infringement under the statute,93 and to render defendant liable therefor,94 must be alleged, and no other facts need be aileged.95 It has been held to be sufficient to describe the offense in the language of the statute." The necessary averments will vary according to the class of copyright involved and the manner of its infringement. It is sufficient to charge the infringement positively as a fact; the averment need not purport to be made on knowledge.9 It is not necessary to specify the parts of plaintiff's work claimed to have been pirated, even in cases where plaintiff does not claim copyright in all the passages copied by defendant.99 It is sufficient to charge in general terms that defendant has copied, published, and leges the terms of an agreement, and then states that if by such agreement an interest in the copyright was not assigned and transferred to plaintiff, the agreement was an exclusive license, is a correct form of pleading. The facts are stated, and the conclusions therefrom are stated in alternative form. Black v. Henry G. Allen Co., 42 Fed. 618, 9 LRA 433. 98 an 89. Act March 4, 1909 (35 U. S. St. at L. 1075 c 320 § 62). See also supra § 149. 90. National Cloak, etc., Co. V. Kaufman, 189 Fed. 215. [a] Illustration.-An allegation in a bill by a corporation for infringement that complainant was a corporation created under the laws of New York, and that it wrote, designed, and compiled, and caused to be written, designed, and compiled by those employed by it for such purpose, all of them citizens and residents of the United States, or aliens domiciled within the United States at the time of the first publication of the book in question of which it was the proprietor, sufficiently showed that complainant corporation was entitled to the copyright. National Cloak, etc., Co. v. Kaufman, 189 Fed. 215. 91. National Cloak, etc., Co. v. Kaufman, 189 Fed. 215; Edward Thompson Co. v. American Law Book Co., 119 Fed. 217. [a] Rule applied.-Where a bill alleged that complainant was the owner of the copyrighted work known as the "American and English Encyclopædia of Law" and the "Encyclopædia of Pleading and Practice," and charged that the volumes of such work were edited, prepared, and published by and under complainant's direction, at great expense, from original sources, complainant being at great expense in collecting the cases and authorities therein cited, and searching for judicial precedents, and in discussing and formulating the propositions of law therein contained, and in presenting, selecting and arranging the matter contained in said books, the bill sufficiently alleged how complainant became the proprietor of the work. Edward Thompson Co. v. American Law Book Co., 119 Fed. 217. 92. Falk v. Curtis Pub. Co., 110 Fed. 77; Black v. Henry G. Allen Co., 42 Fed. 618, 9 LRA 433; Stover v. Lathrop, 33 Fed. 348; Lee v. Simpson, 3 C. B. 871, 54 ECL 871, 136 Reprint 349. 93. What constitutes infringement see supra §§ 263-330. 94. Persons liable see supra §§ 331-335. pirated the work.' But the charge of infringement 7 95. Falk v. Curtis Pub. Co., 100 Fed. 77. [a] Unnecessary allegations.Where a statement of claim in a suit under Rev. St. § 4965 properly alleges the copying, printing, publishing, and exposing for sale of the infringing copies of defendant, either of which constitutes an infringement, it need not allege that defendant was actually engaged in any such acts at the time copies of the infringing publication were found in his possession. Falk v. Curtis Pub. Co., 100 Fed. 77. 96. Lee v. Simpson, 3 C. B. 871, 54 ECL 871, 136 Reprint 349 (infringing dramatic performance). 97. Black v. Henry G. Allen Co., 42 Fed. 618, 9 LRA 433. 98. Sweet v. Maugham, 11 Sim. 51, 34 EngCh 51, 59 Reprint 793. But see Mawman v. Tegg, 2 Russ. 385, 3 EngCh 385, 38 Reprint 380. 99. Sweet v. Maugham, 11 Sim. 51, 34 EngCh 51, 59 Reprint 793. 1. Sweet v. Maugham, 11 Sim. 51, 34 EngCh 51, 59 Reprint 793; Liddell v. Copp-Clark Co., 19 Ont. Pr. 332. "As long as I remember the Court, it never has been thought necessary for a party who complains that his copyright has been infringed to specify, either in his bill or his affidavit, the parts of the defendant's work which he thinks have been pirated from his work; but it has been always considered sufficient to allege, generally, that the Defendant's work contains several passages which have been pirated from the Plaintiff's work; and to verify the rival works by affidavit. Then, when the injunction has been moved for, the two works have been brought into Court, and the counsel have pointed out to the Court the passages which they rely upon as shewing the piracy." Sweet v. Maugham, 11 Sim. 51, 53, 34 EngCh 51, 59 Reprint 793 [quot Liddell v. Copp-Clark Co., 19 Ont. Pr. 332, 3331. [a] Bill of particulars.-In an action at law defendant is entitled to a bill of particulars pointing out in what respect his work infringes plaintiff's and giving date of registration of plaintiff's copyright. Liddell v. Copp-Clark Co., 19 Ont. Pr. 332. Supreme Court Copyright Rules (Copyright Office Bul. No. 14) rule 2: Tully v. Triangle Film Corp., 229 Fed. 297; Lesser v. Borgfeldt, 188 Fed. 864 (where plaintiff was, on motion of defendant, required to attach copies as required by the rule). nor [a] "The practical value of this rule is well demonstrated in this case. A motion for preliminary injunction was made on the complaint and various affidavits, but a copy of the work alleged to be infringed did not accompany the complaint, was any excuse set forth to explain the failure to submit such a copy. Later a document was submitted which purported to be a copy of the copyrighted work. After investigation by defendants in the office of the Librarian of Congress, it was found that this copy was not accurate, and it is claimed that the differences between the copy submitted to the court and the copyrighted work on file are material, so as to go essentially to the questions which will ultimately come up for decision. Of course. I do not at this time know the merits of this claim; but the point is that the court has not had before it a copy of the work alleged to have been infringed. This situation was not, in any manner, the fault of counsel, but was due to an error (possibly inadvertent) on the part of one of the plaintiffs. But the foregoing incident illustrates rather strikingly the importance and necessity of the Supreme Court rule. A copy of the work alleged to be infringed should accompany the complaint, or, as the rule says. its absence be explained. It sometimes happens that redress by injunction in cases of this kind must be speedily obtained in order to prevent irreparable iniury, and that the plaintiff may not have at hand a copy of the manuscript, whereas he can describe, for all practical purposes, the substance of the subject-matter of his copyrighted work; but the rule must be followed, and, if the work cannot be produced, satisfactory reasons for its absence must be presented." Tully v. Triangle Film Corp., 229 Fed. 297, 299. [b] Penalty for noncompliance with rule.-"I think that a hard and fast rule should not be laid down as to the penalty for failure to com |