## Facts

- F. W. Werckmeister owned the federal copyright in a painting titled “Chorus.”
- American Tobacco Company possessed 1,196 lithographic sheets reproducing the image without authorization.
- Werckmeister brought a replevin action under the New York Code to recover possession of the infringing sheets and sought damages.
- A U.S. marshal seized the sheets pursuant to the replevin writ, and the trial court awarded Werckmeister possession.
- The Second Circuit affirmed, and American Tobacco sought Supreme Court review.

## Issues

1. Whether the statutory copyright notice requirement (Rev. Stat. § 4962) demanded notice on the original painting rather than on the published copies.
2. Whether public exhibition of the painting constituted “publication” that would affect the copyright when copying was prohibited and copyright was reserved.
3. Whether seizure of infringing copies by a U.S. marshal under a replevin writ violated the Fourth Amendment or compelled self-incrimination under the Fifth Amendment.
4. Whether replevin was an improper remedy for recovering infringing copies, and if so, whether that objection was timely when raised on a motion for new trial.

## Decision

- The Supreme Court unanimously affirmed the judgment awarding Werckmeister possession of the 1,196 infringing sheets.
- The Court held that § 4962 was satisfied by placing notice on the published copies sought to be protected; notice on the original painting was not required.
- The Court held that exhibition of the painting under a reservation of copyright and strict anti-copying restrictions did not constitute publication.
- The Court held that seizure of the infringing sheets pursuant to a judicially issued replevin writ was not an unreasonable search and seizure and did not violate the Fifth Amendment.
- The Court held that any challenge to replevin as the form of remedy was raised too late when asserted only on a motion for new trial.

## Legal Principles

- Copyright protects an intangible statutory right of reproduction distinct from ownership or possession of the physical artwork.
- For paintings and similar works, statutory notice requirements are met when notice appears on the published copies circulated to the public, not necessarily on the original work.
- Public exhibition can amount to publication if the public is free to copy, but exhibition with an express reservation of copyright and rigidly enforced restrictions against copying is not publication.
- Seizure of infringing copies under regular judicial process (including replevin) does not, by itself, constitute an unreasonable search and seizure or compel self-incrimination merely because the items may be used as evidence.
- Objections to the form of remedy must be timely; raising a remedy objection only after trial is procedurally barred.

## Conclusion

The Court sustained enforcement of a painting copyright through replevin, holding that notice on distributed copies sufficed, restricted exhibition did not constitute publication, and marshal seizure of infringing copies under a court writ did not violate Fourth or Fifth Amendment protections.


American Tobacco Co. v. Werckmeister, 207 U.S. 284 (1907)