was defective then shifted to defendant. See Drone, op. cit. 498, 499; Reed v. Carusi, Fed. Cas. 11,642. Defendant’s denial upon information and belief cannot be regarded as evidence overcoming plaintiff’s prima facie ease. Farmer v. Calvert Lith. Co., Fed. Cas. 4,651 (C. C. Mich.); Lake Shore & M.S. Ry. v. Felton, 103 F. 227 (C. C. A. 6).
[15] It is also argued that the bill does not show compliance with the Copyright Act, which requires in section 12 (17 USCA § 12) the deposit of “two complete copies of the best edition thereof then published.” The allegation in the bill omits the italicized words, alleging the deposit of “two copies of the best edition of said picture.” A copy of a best edition of a picture must necessarily be a complete copy. That the picture was published is directly averred in the fourth paragraph. While the copyright law must be strictly complied with, no servile following of its exact terminology is required. See Bentley v. Tibbals, 223 F. 247 (C. C. A. 2). We regard the objection as without merit, and mention it merely to show that it was not overlooked.
[16] The plaintiff was requested by defendant to produce the original copies deposited in the Copyright Office. This was not done because, after being returned to plaintiff from the Library of Congress, they had been destroyed when plaintiff’s office was moved. The defendant now contends that the plaintiff has failed to establish the identity of its copyright, because neither the original picture nor the copies deposited in the Copyright Office were produced, and because Exhibit A, which purports to be a copy thereof, was not shown to be such by any one having adequate knowledge. Even if we lay aside as a legal conclusion the affidavit of the law clerk that Exhibit A is a print of the copyrighted picture, it remains true that Exhibit A bears the same title and the name of the same author as does the copyrighted picture, and that the description of the copyrighted picture in the bill of complaint correctly describes the picture shown as Exhibit A. The certificate of registration states that the picture is entitled, “Song of the Bluebird,” that the author is Kenyon, and that the first publication was December 26, 1924, all as alleged in the bill of complaint. If Exhibit A is not the copyrighted picture, it means that plaintiff has substituted for the copyrighted picture another picture by the same author, with the same title and corresponding in general description, and has fraudulently imprinted a notice of copyright thereon. This is an assumption we should be slow to make, without any proof whatever. Prima facie, the proof that Exhibit A was a copy of the registered picture was enough.
[17–20] It is further contended by defendant that plaintiff has failed to prove compliance with section 18 of the act (17 USCA § 18) in respect to notice. The bill avers that each and every copy of the picture “has carried this legend”—referring to the copyright notice set out in paragraph 4—and further alleges in paragraph 5, upon information and belief, that upon every published copy of the picture there has been inscribed the required notice. The answer denies that plaintiff has complied with the requirements of the act, and asserts it has published copies of the picture without notice of copyright. The affidavit of Mr. Bendien, defendant’s president, also states:
“The plaintiff herein is a calendar manufacturer, and when reproductions of plaintiff’s said picture were put on the market they were applied to calendars. I remember seeing these calendars for the year 1926, which were without any copyright notice whatsoever. It was for this reason that I took up the matter of obtaining the right to reproduce copies of this picture in print form with the plaintiff. * * *”
Five copies of the picture were presented as exhibits by defendant, bearing no notice of copyright. One of these is affixed to a form for a calendar, and on the calendar form is printed plaintiff’s name. None of the other copies bears any name. It is not enough to show that the picture was without the statutory notice when it came into the defendant’s possession; it must appear that it left the plaintiff’s possession in that condition. Falk v. Gast Lith. & Eng. Co., 54 F. 890 (C. C. A. 2). Bendien’s affidavit is open to the same objection. It merely shows that the calendars he saw in 1926 lacked the notice. There is no evidence in the record to show where any of these exhibits came from, or to connect plaintiff with them in any way, unless the imprint of plaintiff’s name upon the calendar form is sufficient to do so with respect to that one. The appearance of plaintiff’s name upon this may be some evidence that it emanated from plaintiff's establishment. See Wigmore, op. cit. §§ 150, 150a. But it is not sufficient, in the absence of other testimony connecting plaintiff with it, to upset the holding of the court below. See Falk v. Gast Lith. & Eng. Co., 40 F. 168 (C. C. N. Y.). No calendar is attached to the calendar form. Indeed, an inspection of it leaves us in some doubt whether it is more than a sample advertisement, from which dealers might place orders for calendars mounting the picture. If merely a
