Summary
In Wright v. Eisle, supra, 83 N.Y.S. 887, a case similar to ours, the court held that the fact that the architect filed the plans and specifications with the building department of the city of Mt. Vernon (which he was required to do in order to get the necessary building permit) plus the construction of the building in public view, constituted a publication which terminated the common-law copyright.
Summary of this case from Smith v. PaulOpinion
July Term, 1903.
Milo J. White, for the appellant.
Odell D. Tompkins [ George C. Appell and Henry C. Botty with him on the brief], for the respondent.
The plaintiff is an architect. In the early part of 1900 he prepared plans and specifications for a residence for one William T. Litson, and these plans and specifications were duly filed with the building department of the city of Mount Vernon. The residence was constructed, and appears to have pleased the fancy of the defendant, who went to the plaintiff and asked him how much it would cost for a duplicate of these plans and specifications, and upon the plaintiff naming a figure the defendant told him he could get the same work for less money. The negotiation ended here. Subsequently the defendant procured the services of one Rentz, and under plans and specifications furnished by the latter a building, conforming substantially to that of the Litson residence, was constructed. The plaintiff brings this action to recover the value of the plans, alleging and claiming that the plans furnished by Rentz were copies of the plans and specifications filed with the building department by the plaintiff, the theory being that the latter has a common-law right of property in the plans. Upon the close of the testimony, upon motion of defendant's attorney, the learned court dismissed the complaint upon the grounds that the plaintiff had failed to establish a cause of action, and that the complaint does not state facts sufficient to constitute a cause of action. The plaintiff appeals to this court.
The plaintiff cites a single case, that of Palmer v. De Witt ( 47 N.Y. 532), which it is claimed is a fitting authority establishing plaintiff's right to recover in the action. The rule laid down in that case, and which is well supported by authorities, is that "Every new and innocent product of mental labor, which has been embodied in writing or some other material form, being the exclusive property of its author, the law securing it to him as such, and restraining every other person from infringing his right. Whether the `ideas thus unpublished take the shape of written manuscripts of literary, dramatic or musical compositions, or whether they are the designs for works of ornament or utility planned by the mind of an artist, they are equally inviolable while they remain unpublished, and the author possesses an absolute right to publish them or not, as he thinks fit (and if he does not desire to publish them), to hinder their publication, either in whole or in part, by any one else.'" There is probably no doubt that, so long as the plans for the Litson house remained in the possession of the plaintiff, they constituted personal property, and that no one had a right to take them from him or to make use of them without his consent. But he testifies that he filed these plans and specifications with the building department as a preliminary to securing the consent of that department for the construction of the building, and that, this consent having been given, he superintended the construction of the house under these plans, receiving therefor something over $500. The law protects him in the first publication of his work; it guarantees him the right to receive compensation for his labor, and when this has been accomplished the purpose of the rule of law has been served, and at common law he can have no further rights in the work. This is clearly shown in the case relied upon by the appellant, for it says (p. 536): "The author of a literary work or composition has, by law, a right to the first publication of it. He has a right to determine whether it shall be published at all, and if published, when, where, by whom, and in what form. This exclusive right is confined to the first publication. When once published it is dedicated to the public, and the author has not, at common law, any exclusive right to multiply copies of it or to control the subsequent issues of copies by others." (See Callaghan v. Myers, 128 U.S. 617, 657; Jewelers' Mer. Agency v. Jewelers Pub. Co., 155 N.Y. 241, 251.) The general rule is laid down by Copinger on Copyright (3d ed. p. 119), that to expose for sale is to constitute publication. It is not necessary that the book or other work be actually sold; it is sufficient if it is offered to the public. The act of publication is the act of the author ( Jewelers' Mer. Agency v. Jewelers' Pub. Co., supra, 251), and when the latter has permitted the work to be filed in a public office as a step in furnishing the basis on which he is to receive compensation from his work we are of opinion that, under the authorities cited above, the plaintiff has published his work to the world and can have no exclusive right in the design or in its reproduction. This would seem to be specially true where the plans and specifications have been used in the construction of a building and the building has been exposed to the gaze of the public and has afforded the plaintiff the full value of his services. There is no evidence in this case that the defendant or any one acting in his behalf has copied the plans and specifications on file in the building department. The plaintiff testifies that they were filed there and so far as he knows have remained there since the date of the original filing, and the building inspector, called by the plaintiff, testifies that the plans and specifications have not been copied by any one while they were in his office, and the nearest approach to evidence is the declaration of the plaintiff that he has the evidence of his own senses that the plans were copied from his plans. It seems to us that all of the property rights in these plans, if they had any value as property after the publication, belonged to Litson rather than to the plaintiff in this action, and that, under the evidence, there was a complete failure to establish a cause of action.
The judgment appealed from should be affirmed, with costs.
GOODRICH, P.J., HIRSCHBERG, JENKS and HOOKER, JJ., concurred.
Judgment affirmed, with costs.