## Facts

- Daniel Hernandez painted “Dolce Far Niente” in 1899.
- Hernandez assigned his rights in the painting to Rich. Bong, a German citizen and resident of Berlin, who claimed to be the sole proprietor by assignment.
- Before publication, Bong applied for U.S. copyright registration for the painting and placed “Copyright by Rich. Bong” on the painting and copies.
- Alfred S. Campbell Art Company, a New Jersey corporation doing business in New York, allegedly printed and sold copies of the painting under the title “Sunbeam,” and possessed over 1,000 copies.
- Bong sued under federal copyright statutes seeking statutory penalties, forfeiture, and damages.
- At the relevant time, Germany enjoyed U.S. copyright reciprocity by Presidential proclamation; Hernandez’s country did not.
- The trial court ended the case based largely on counsel’s opening, concluding Hernandez lacked U.S. copyright capacity to assign; the Second Circuit affirmed.

## Issues

1. Whether an assignee may obtain U.S. copyright in a painting when the assignee’s country has reciprocal relations with the United States, but the author’s country does not.
2. Whether membership in an international copyright union, without a Presidential proclamation under the 1891 Act, supplies eligibility for U.S. copyright.
3. Whether the Presidential proclamation mechanism in § 13 of the 1891 Act is a condition precedent to foreign eligibility or merely directory.
4. Whether administrative practice denying protection absent a proclamation is consistent with the statute.
5. Whether disposing of the case on counsel’s opening statement required reversal.

## Decision

- The Supreme Court affirmed the judgment for the defendant.
- The Court held that an assignee’s copyright claim is derivative and fails unless the foreign author was eligible for U.S. copyright under the reciprocity scheme implemented by Presidential proclamation.
- The Court rejected reliance on international-union membership as a substitute for the statutory proclamation requirement.
- The Court held § 13 confers no enforceable rights independent of a Presidential proclamation.
- The Court approved the construction of the statute followed by the State Department and the Librarian of Congress.
- Although deciding on counsel’s opening is generally unsafe, the Court did not reverse because the dispositive issue was statutory eligibility.

## Legal Principles

- An assignee’s ability to claim U.S. copyright in a foreign-authored work depends on the author’s statutory capacity to hold and transfer the right to reproduce the work.
- Under the 1891 international copyright framework, reciprocal privileges for foreign nationals arise only after the President issues a proclamation extending protection to citizens of the relevant foreign country.
- Membership in an international copyright union does not, by itself, establish U.S. copyright protection absent the statutory proclamation step.
- Longstanding executive and administrative construction of foreign-eligibility requirements may be treated as persuasive in interpreting a reciprocity-based statute.
- Procedural resolution on counsel’s opening statement is disfavored, but affirmance is proper where the controlling question is purely legal and the necessary facts are not disputed.

## Conclusion

The Court held that Bong, as assignee, could not enforce a U.S. copyright because Hernandez’s country had not been brought within the 1891 reciprocity regime by Presidential proclamation; consequently, Hernandez had no U.S. copyright interest to assign, and Bong’s registration could not create rights beyond the author’s eligibility.


Bong v. Alfred S. Campbell Art Co., 214 U.S. 236 (1909)