.JACKSON V. W ALKlliI.
JACKSON V. WALKIE.
(Jourt, N. D. lllinoia. November 8, 1886.)
CoPYRIGHT-NOTICE Pm::NTED IN Boox-MuST STRICTLY COllPLY WITH STATUTB
-ACT Oll'CONGRESB, JUNE
18, 1874, § 1. The only notice of copyright given in a printed book was the following, printed upon the page immediately following the title-page: .. Entered accordin the year 1878, by H. A. Jackson. n Held, on demurIng to act of rer, that the nQtIce was not Buch a notICe as is" required by United StateB statute, (18 U:S; St. at Large, 78,) and did not entitle the proprietor to main· tain an action for infringement of copyright.
In Equity. Bill alleging infringement of l'opyright, and praying for injunction and accounting. H. Harrison, for complainant. Dyaeriforth rl Dyaenforth, for defendant.
BLODGETT, J. The bill in this case alleges that complainant is the author and proprietor of a certain book, entitled "Franco-Prussian Mode," and that the same has been duly copyrighted in this country by compliance with the. acts of congress, and charges that the ant, in violation of his rights as such author and proprietor, has infringed said copyright by the publication of the same matter contained in complainant's work, for which infringement complainant !leeks an injunction and accounting. Defendant demurs to the bill upon .the ground that it fails to show that complainant has obtained a valid eopyrightupon said work. The book in question is referred to in the bill; and made a part thereof, from which it appears that the only notice of the c9pyright given in the book itself is by printing, upon the page immediately following the title-page, the following words: "Entered according to ","ct of congress, in the year 1878, by H. A. Jackson;" and. the only question made by the-demurrer is whether this shows a sufficient no·tice to entitle the complainant to maintain an action for the infringement. of his. alleged copyright. Section 1 of the.aet.of June 18, 1874, (18 U. S. St. at Large, 78,) is as follows:
"No person shall maintain an action for the infringement of his copyright unless beshallgive notice. thereof, by inserting in the several copies pf every edition published, on the title-page, or the page immediately follOWing, if it be a book,. * ** tbe following words,viz.: 'Entered to act <of congress, in the year - - , by A. Bo. in the office of the librarian of congress, at Wasbington,' or,at bis option, the word' Copyright,' together with the year thecQPyright ,waa el)tered, and tbe name of tl)e by whom it was taken out, thus: 'Copyright, 18-. by A. B.' t o ' ..
It will be seen that the complainant has not adopted either of the J'ormullB for his notice prescribed by the act of congress. He has used
a portion of the first formula, but has omitted the words, "in the
office of the librarian of congress, at Washington," which are certainly a part of the notice. Without discussing the question as to the natural rights of authors in their literary productions, and whether they have any! such rights in this country aside from our copy. right laws, it is enough to say that the bill in this case shows that complainants' work has been published and put in circulation; that be has taken no means to protect the same except by the steps in his bill to obtain and secure a copyright, and, since the decision of the supreme court of the United States in Wheaton v. Peters, 8 Pet. 591, it has been the rule in this class of cases that a party must himself strictly within the terms of the statute in regard to copyright in m'der to protect his property in case of publi. seems hardly necessary to show that the defend· cation. ant in this case has not complied with the statute in this regard. He has not given either of the forPls of notice which the statute specifically requires him to give in order to be entitled to bring a suit for the protection of his alleged copyright. If an author or proprietor of a book or literary work can change the formula prescribed by the statute for his notice of copyrigpt to the public, by omitting the words left out of this notice, he may omit other words, or adopt an entirely different form, Or may change the location of the notice. He may think that the' title-page, or the page immediately following, is not as good a place to print the notice as some other place in the book, and may therefore insist that he has a right to exercise his own judgment as to where he will print his notice, as well as the form in which it shall b& printed. An author or proprietor of a work has no right to say, in effect, that any part of the prescribed notice is immaterial, and may be omitted. He takes his copyright under the law, only by giving the notice, and the entire notice, which the stat· ute provides; and the statute expressly declares that he shall not maintain an action unless he has complied with this condition. Hence I think the bill fails to show a valid copyright in complainant. and the demurrer must be sustained, and the bill dismissed. The only case cited by the complainant in support of his bill is, Myers v. Callaghan, 10 Biss. 139; S. C. 5 Fed. Rep. 726. In that case the late learned circuit judge of this circuit held that where the notice of copyright stated the copyright to have been entered in 1866, when in fact it was not entered until 1867. did not defeat the copyright, because the only effect of the mistake as to date was to the life of the copyright one year. and no possible damage could ac· crue to the public, or to any other person. by reason of such mistake. That case is clearly distinguishable from this, and does not in any way, 8S it seems to me, control the questions here made.
UNITrm STA'fE3 V. AMERICAN BELL TELEPHOKE CO.
UNITED STATES V. AMERICAN BELL TELEPHONE CO.
(Oircuit Ogurt, S. D. Ohw, E. D. November, 1886.)
1. WRIT AND PROCESS-MoTION TO QUASH SERVICE. Where the invalidity, irregularity, or defect in the service of the writ pears upon the face of the return, a motion to quash the service, or abate the writ, is the proper mode of bringing the matter to the attention of the court; but, where the objection does not appear upon the face of the papers, the better rule of practice, where it is sought to question or dispute the facts stated therein, is to do so by plea in abatement, on which an issue may be regularly te.ken and tried.
PARTNERSHIP-SERVICE UPON NON-RESIDENT PARTNER.
While the interest a non-resident partner in a partnership doing business If in Ohio, in respect to such business, may be subject to the local jurisdiction, if the partnership is properly served in conformity with the statutes of the state, It is, however, well settled that the non-resident partner cannot be brought personally before even the local. courts, or be subjected to judgment in personam, by service upon the resident partners. In suits in equity, the federal courts are regulMed, not by state statutes, but by the judiciary acts. and the rules of equity practice.
WRIT AND PRoCEss-EQUITY "PRACTICE-SERVICE OF SUBPCENA.
SAME-AMERICAN BELL TELEPHONE COMPANY.
The return of a subprena which recited that the marshal had served the same upon the" American Bell Telephone Company (which is a corporation found and doing business in the Southern· district of Ohio) by reading the same to A. D. Bullock, the president of the City and Suburban Telegraph Company, (the said City and Suburban Telep;raph Company being an agent and partner of the said the American Bell Telephone Company, within said district,)" fails to show affirmatively the facts required to constitute a valid service, either under the judiciarr acts, the TU1.JlS of practice governing the court, or the statute of Ohio providIng for service upon a foreign corporation having a "managing agent" in the state. No presumptions are to be indulged in favor of such a return, so as to give the court jurisdiction over a non-resident cor· poration. The return is also irregular, and open to the objection that the marshal did not confine himself to a statement of what he did in executing the subprenas, but states conclusions of law and fact, apart from what was done.
In the absence of a voluntary apyearance, three conditions must concur or co-exist in order to give the federa courts jurisdiction in personam over a corporation created without the territorial limits of the state in which the court IS held, viz.: (1) It must appear, as a matter of fact, that the corporation is carrying on its business in such foreign state or district; (2) that such business is transacted or managed by some agent or officer appointed by and representin&, the corporation in such state; and (8) the existence of some local law makIng such corporation. or foreign corporations generally, amenable to suit there as a condition express or implied of doing business in the state. 6. SAME-SECTION 739, REV. ST. U. S.-ACT OF CONGRESS, MARCH 8, 1875. The judiciary acts (Rev. St. 789) and actof March 8, 1875, providing that no civil suitor action shall be brought against any person outside of the district in which he resides or may be found at the time of the service of process, do not affect the general jurisdiction of this court, but merely confer a personal privilege or exemption upon the defendant, which can be waived, and is waived, by a foreip;n corporation, not only by a voluntary appearance to the suit, but by doing business in a state imposing the condition of liability to suit there by service of process on its agent. 7. SAME-SERVICE UPON FOREIGN CORPORATION. It is not sufficient to give this court jurisdiction in per80nam over 8 foreign that it has property rights. however extensive, within the district. or that it has pecuniary interests, however valuable, in business managed and conducted by others. IReported by J. C. Harper, Esq., of the Cincinnati bar.
SAME-SERVICE UPON FOREIGN CORPORATIONS.