Portuondo v. Columbia Phonograph Co., 81 F. Supp. 355 (S.D.N.Y. 1937)

Leon A. Brody, of New York City, for plaintiff.

Herbert A. Heubner, of Los Angeles, Cal. (Joseph E. McMahon, of New York City, of counsel), for defendant.

COXE, District Judge.

The Buenos Aires Copyright Convention of Aug. 11, 1910, U.S. Stats., Vol. 38, p. 1785, provides in Article 6th that "authors or their assigns * * * shall enjoy in the signatory countries the rights that the respective laws accord". The plaintiff, therefore, must look to our copyright laws for the enforcement of his rights in this country. Under Sections 1(e) and 8(b) of the Copyright Law, U.S. C.A., Title 17, §§ 1(e), 8(b), protection against mechanical reproduction is denied unless substantially similar protection is accorded to United States citizens; and it is expressly provided that the existence of these reciprocal conditions shall be determined by the President "by proclamation made from time to time". In construing these sections, the Attorney General has ruled that there must be a separate proclamation of the existence of reciprocal conditions as to mechanical reproduction (29 Op. Atty. Gen. p. 64). In the absence of such a proclamation, the plaintiff cannot avail himself of our copyright laws; *356 and the complaint is fatally defective in not alleging affirmatively that a proclamation to that effect was made. This disposition makes it unnecessary to decide the other questions raised by the motion.

The motion of the defendant, Columbia Phonograph Company, Inc., to dismiss the amended complaint is granted.