Cite as 155 F.2d 955
ing that it had not been able to make any sales of the paintings and inquiring if plaintiff would be interested in having it sell any of his water colors for reproductions. On March 16, 1942, plaintiff replied[1] that he had no objection to selling one of his pictures for reproduction. On or about April 6, 1942, defendant Findlay sold the painting in question, without reservation to defendant Goes, and Goes proceeded to and did reproduce and sell the same commercially. Plaintiff asserts that this sale of the painting to Goes and its reproduction were unauthorized and after learning of its reproduction he filed on or about September 25, 1943, an application for registration of the painting in the office of the register of copyrights and received a certificate of registration therefor. Plaintiff asserts that the conduct of both defendants was an infringement of his common law copyright in the painting as well as his statutory copyright. It is to be noted that his statutory copyright was obtained long after the sale to and reproduction by Goes, but plaintiff’s position in this respect is bottomed upon the assertion that such sale and reproduction were unauthorized and, therefore, wrongful. The painting was sold to Goes for the sum of $300 with a further condition that Findlay would for itself repurchase the painting upon request by Goes and give him credit on other paintings for the sum of $150. Goes paid Findlay the sum of $300 and later returned the painting to Findlay and received $150 credit upon the purchase of other paintings. Findlay did not at once remit to plaintiff the $200 that was due him on the sale, but later, upon inquiry by plaintiff, offered to buy for itself from plaintiff the painting in question at the price of $200, the net price to the artist, and did later pay plaintiff $200. Defendant Findlay explains its failure to promptly remit to the artist upon payment by Goes and its later rather unusual correspondence with the plaintiff in reference to the purchase of the painting long after it had in fact been sold to Goes, by the fact that one of its employees, Priestly by name, had consummated the sale to Goes and had later, during an extended absence from his Chicago office of Mr. Findlay, the president of Findlay Galleries, Inc., absconded with a large sum of money, apparently including the $300 received from Goes. Mr. Findlay asserts that he was not fully aware of the arrangement concerning the painting in question or its exact whereabouts at the time of plaintiff’s inquiry and at the time of the correspondence relative to its purchase by defendant Findlay.
Defendants contend that the sale by Findlay to Goes was fully authorized by plaintiff’s letter of March 16th, 1942, and that the same was properly sold to and reproduced by Goes, and that the application of plaintiff for a statutory copyright
- “Very truly yours,
- ↑
“52 Follen Road
“Lexington, Mass.“Dear Mr. Priestley;
“I have no objection to selling one of my pictures for reproduction especially if it is well reproduced. As you mentioned that your client inquired about etchings as well as water colors I assume that he was interested in my sporting things. In regard to using an etching, I shouldn’t think it would not be worth while to sell a single print for that purpose. I would rather sell your client a water color and if he would rather have me do something especially for him I think I could do it. In this case I should ask a slightly higher price.
“My address should be Follen Road instead of Totten.
“Thanks for writing to me,
“Sincerely yours,
“March 16, 1942 Aiden Lassell Ripley”
“This calendar is really a very artistic thing, and is known throughout the newspaper world as one of the finest works of art of its kind, and very little advertising copy is used with it. Last year, for instance, they had Dale Nichols do something for them, and each year they have had top-notch American artists.
“We are writing to see if you might be interested in having us sell any of your watercolors for reproductions. Would appreciate an answer by return Air Mail if possible so that we might contact our customer promptly.
“We are looking forward to doing some business for you, and certainly enjoy and appreciate having your work.
“Findlay Galleries, Inc.
“Edwin W. Priestley”
