HOLMES V. HURST, 174 U. S. 82 (1899)

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U.S. Supreme Court

Holmes v. Hurst, 174 U.S. 82 (1899)

Holmes v. Hurst

No. 124

Argued March 8, 1899

Decided April 24, 1899

174 U.S. 82


The serial publication of a book in a monthly magazine, prior to any steps taken toward securing a copyright, is such a publication of the same within the meaning of the Act of February 3, 1831, c. 16, as to vitiate a copyright of the whole book, obtained subsequently, but prior to the publication of the book as an entirety.

Page 174 U. S. 83

This was a bill in equity by the executor of the will of the late Dr. Oliver Wendell Holmes, praying for an injunction against the infringement of the copyright of a book originally published by plaintiff's testator under the title of "The Autocrat of the Breakfast Table."

The case was tried upon an agreed statement of facts, the material portions of which are as follows:

Dr. Holmes, the testator, was the author of "The Autocrat of the Breakfast Table," which, during the years 1857 and 1858, was published by Phillips, Sampson & Co., of Boston, in twelve successive numbers of the Atlantic Monthly, a periodical magazine published by them, and having a large circulation. Each of these twelve numbers was a bound volume of 128 pages, consisting of a part of "The Autocrat of the Breakfast Table," and of other literary compositions. These twelve parts were published under an agreement between Dr. Holmes and the firm of Phillips, Sampson & Co. whereby the author granted them the privilege of publishing the same, the firm stipulating that they should have no other right in or to said book. No copyright was secured, either by the author or by the firm or by any other person, in any of the twelve numbers so published in the Atlantic Monthly; but on November 2, 1858, after the publication of the last of the twelve numbers, Dr. Holmes deposited a printed copy of the title of the book in the clerk's office of the district court of the District of Massachusetts, wherein the author resided, which copy the clerk recorded. The book was published by Phillips, Sampson & Co. in a separate volume on November 22, 1858, and upon the same day a copy of the same was delivered to the clerk of the district court. The usual notice, namely, "Entered according to act of Congress, 1858, by Oliver Wendell Holmes, in the clerk's office of the District Court of the District of Massachusetts," was printed in every copy of every edition of the work subsequently published, with a slight variation in the edition published in June, 1874.

On July 12, 1886, Dr. Holmes recorded the title a second time, sent a printed copy of the title to the Librarian of Congress, who recorded the same in a book kept for that purpose,

Page 174 U. S. 84

and also caused a copy of this record to be published in the Boston Weekly Advertiser, and in the several copies of every edition subsequently published was the following notice: "Copyright, 1886, by Oliver Wendell Holmes."

Since November 1, 1894, defendant has sold and disposed of a limited number of copies of the book entitled "The Autocrat of the Breakfast Table," all of which were copied by the defendant from the twelve numbers of the Atlantic Monthly exactly as they were originally published, and upon each copy so sold or disposed of a notice appeared that the same was taken from the said twelve numbers of the Atlantic Monthly.

The case was heard upon the pleadings and this agreed statement of facts by the Circuit Court for the Eastern District of New York, and the bill dismissed. 76 F.7d 7. From this decree an appeal was taken to the Circuit Court of Appeals for the Second Circuit, by which the decree of the circuit court was affirmed. 80 F.5d 4. Whereupon plaintiffs took an appeal to this Court.

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