Washingtonian Publishing Co. v. Pearson et al.
306 U.S. 30 (1939)
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Rule of Law:
Under the Copyright Act of 1909, a copyright holder's mere delay in depositing copies of a work with the Copyright Office does not invalidate the copyright or bar a suit for infringements that occurred prior to the deposit, provided the deposit is made before the infringement action is filed.
Facts:
- On December 10, 1931, Washingtonian Publishing Co. published an issue of its monthly magazine, 'The Washingtonian,' which included the required statutory notice of copyright.
- In August 1932, Liveright, Inc. published a book written by two co-authors that contained material substantially identical to an article in the December 1931 issue of 'The Washingtonian.'
- On August 26, 1932, Liveright, Inc. deposited copies of its book with the Copyright Office and secured a certificate of registration.
- Fourteen months after its own publication, on February 21, 1933, Washingtonian Publishing Co. deposited two copies of the December 1931 magazine issue with the Copyright Office and secured its certificate of registration.
Procedural Posture:
- Washingtonian Publishing Co. filed suit for copyright infringement against Liveright, Inc. and its authors in the District Court for the District of Columbia.
- The trial court found for Washingtonian Publishing Co. and ordered an ascertainment of profits and damages.
- Liveright, Inc., as appellant, appealed the decision to the U.S. Court of Appeals for the District of Columbia.
- The Court of Appeals reversed the trial court's decree, holding that the failure to 'promptly' deposit the magazine barred the infringement action.
- Washingtonian Publishing Co. petitioned the U.S. Supreme Court for a writ of certiorari, which was granted.
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Issue:
Does a copyright holder's failure to 'promptly deposit' copies of a work with the Copyright Office, as required by §12 of the Copyright Act of 1909, bar an infringement action for acts that occurred prior to the eventual deposit?
Opinions:
Majority - Mr. Justice McReynolds
No. Mere delay in depositing copies of a copyrighted work does not destroy the right to sue for infringements occurring before the deposit, so long as the deposit is made before the lawsuit is initiated. Copyright protection under the 1909 Act is secured immediately upon publication with proper notice, not upon deposit and registration. The statute's plain language in §12 states that no action shall be maintained 'until' deposit has been made, which indicates a condition that can be fulfilled at a later time, rather than a permanent forfeiture of rights. Furthermore, §13 provides a specific penalty for failure to deposit copies after a formal demand by the Register of Copyrights, suggesting this is the intended remedy for delinquency, not the invalidation of the copyright or the right to sue. To interpret the ambiguous term 'promptly' as a condition for maintaining a copyright would create uncertainty and conflict with the Act's broader purpose of providing authors with valuable, enforceable rights without overly burdensome requirements.
Dissenting - Mr. Justice Black
Yes. A copyright holder's failure to comply with the statutory mandate for 'prompt deposit' should bar recovery for infringements that occurred during the period of non-compliance. Copyright is a statutory privilege granted only to those who comply with the Act's provisions. The requirement of prompt deposit serves the crucial public purpose of creating a complete and accessible public record of all copyright monopolies, allowing the public to understand their scope and boundaries. The majority's decision protects the copyright owner's monopoly while emasculating a statutory provision designed to protect the public. The penalty in §13 for failing to comply with the Register's demand is an additional enforcement mechanism, not the exclusive remedy for failing to make a prompt deposit as required by §12. Allowing a copyright holder to retroactively enforce their rights for a period in which they disregarded the statute's clear command runs contrary to the entire history and policy of copyright law.
Analysis:
This decision clarifies a significant ambiguity in the 1909 Copyright Act by establishing that the deposit requirement is a procedural prerequisite to litigation, not a substantive condition for copyright validity. It firmly separates the act of securing copyright (publication with notice) from the act of perfecting the right to sue (deposit). While this ruling provided greater security to copyright holders against inadvertent forfeiture due to administrative delays, the dissent correctly noted that it weakened the public-record function of the copyright system, making it potentially harder for the public to determine the status of a work. The case demonstrates the judicial tension between protecting creators' rights and ensuring the public has clear notice of legal monopolies.
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