newable, including all benefits that have been and may hereafter be derived therefrom, and all rights of action, if any, thereon, without recourse in any event as against the assignor, the sale of all of which to the said Alice T. Yardley for $25, being hereby ratified and approved.”
I do not think that the decree of the Surrogate of New York County can be considered to have authorized the transfer by the executor to the plaintiff of any right of action for the copyright here in question, for it was not an “existing” copyright, and the rights of action to be transferred were limited to those involved in “existing” copyrights.
It does not seem to me, therefore, that the plaintiff has made out any locus standi to maintain this cause of action.
III. If, however, I am wrong on this question, I think the plaintiff must fail for the reason that Mr. Charles Y. Turner never had any right to get a copyright in the picture “The Marriage of the Waters”.
The contract under which the picture was painted is—as above noted—wholly silent as to the question of the reservation of copyright by the artist.
When a man, hereinafter referred to as a patron, contracts with an artist to paint a picture for him, of whatever nature it may be, the contract is essentially a service contract, and when the picture has been painted and delivered to the patron and paid for by him, the artist has no right whatever left in it.
Whilst the artist in such a case may by contract reserve the right of reproduction, and so reserve his right of copyright, Werckmeister v. Springer Lithographing Co., C.C., 63 F. 808, 809, if the sale is not shown to have been thus limited, the patron becomes the sole owner and has all the rights in the picture, including the right to reproduce it, and the artist employed to make the picture cannot derogate from his patron’s rights by taking out a copyright thereon without his patron’s permission.
The fact that Mr. Turner took out a copyright herein is not a basis for an inference that the patron gave him such permission, especially when the patron—as did the Board of Education here—habitually sold post card reproductions. Dielman v. White, C.C., 102 F. 892, 895.
This principle seems to have been applied to the case of persons employed to write for encyclopaedias, magazines or papers by the English Courts. Cf. Lawrence & Bullen, Ltd., v. Aflalo and Cook, [1904] A.C. 17, in which the House of Lords approved the decisions of the Court of Appeal in Lamb v. Evans, [1893] 1 Ch. 218, 227, 228, and of the Court of Common Pleas in the case of Sweet v. Benning, [1855] 16 C.B. 459, 484, 489.
Indeed, I think that the whole matter is, perhaps, best summed up by Mr. Justice Maule in the last named case at 16 C.B. 484, where he says: “But, though no express words to that effect are stated in this special case, I think, that, where a man employs another to write an article, or to do anything else for him, unless there is something in the surrounding circumstances, or in the course of dealing between the parties, to require a different construction, in the absence of a special agreement to the contrary, it is to be understood that the writing or other thing is produced upon the terms that the copyright therein shall belong to the employer. * * *”
To recapitulate in the light of this statement:
In the present case, there is no course of dealings shown indicating that the copyright should have remained with Mr. Turner. There was no special agreement or term of contract that it should remain with him, and, consequently, I think that the City of New York, when it paid for the mural, became vested with all the right and title in it including the right to reproduce. Consequently, the title to the copyright which Mr. Turner secured was held in trust by him for the City of New York.
It follows from this that when leave by the Board of Education of the City of New York was given to the defendant to reproduce this picture “The Marriage of the Waters” in the “History of United States” by William B. Guitteau, and “History of Our Nation” by Chapman & Whitney, the defendant got leave from the person who was actually entitled to give such leave, and the publication of the picture in those history books did not constitute an infringement, of which the plaintiff, even if she had succeeded in obtaining a locus standi in this cause of action, would be in a position to complain.
IV. The defendant’s attorneys must make application, on petition supported by affidavit, for the attorneys’ fee which I have granted under the authority of Section 40
