Old Men's Turn

No pair of Washington newspapermen has made the Justices of the U. S. Supreme Court more uncomfortable than able, caustic Drew Pearson and Robert S. Allen. Their Nine Old Men was a best seller of 1936. Their Washington Merry-Go-Round, political gossip column, rarely misses a chance to plant a tack on a Justice's padded chair. But last week it was the Court's turn to make Pearson and Allen uncomfortable, and they did a thoroughgoing job of it.

Up for the Court's opinion was a copyright case with a unique twist. In 1932 Pearson and Allen put out their second book, More Merry-Go-Round, which contained, among other things, the statements that Justice James Clark McReynolds was "Apparently . . . both stupid [and] lazy," and that "for a man of his sheer ugliness of disposition he has come far." Also in the book was a sketch of Treasury Secretary Ogden Mills, much of which was lifted from a defunct magazine called The Washingtonian. Pearson had edited The Washingtonian for two issues, and obtained permission from Rixey Smith, author of the Mills piece, to use the material. Later he sent Smith a check for $50. But the Washingtonian had been published with the required statutory notice of copyright. When Mrs. Blair Banister, The Washingtonian's ex-publisher, learned how things stood she filed copies of the magazine with the Copyright Office (14 months after they had been printed) which was necessary before she could begin suit.

Main legal issue was whether she had filed the copies "promptly," as specified by the Copyright Act of 1909. The District of Columbia Court of Appeals ruled she had not. To crusty Justice McReynolds last week fell the job of reversing that decision and setting Messrs. Pearson and Allen on their own tack. Read he: "While no action can be maintained before copies are actually deposited, mere delay will not destroy the right to sue. . . . The cause will be remanded to the District Court [for the setting of damages]." Four of the original Nine Old Men concurred. Dissenters were Justices Black and Reed, the New Deal appointees, and Roberts.

Mrs. Banister is seeking $1 for each page of the lifted story in every copy of the book sold, or about $60,000, but will probably get much less. Soon after More Merry-Go-Round appeared, its publishers failed, and the two authors never got any of the $12,000 they claim were due them. Counsel fees have put them out an additional $5,000 at least.

As embarrassed by the decision as Defendants Pearson and Allen was the Copyright Office. If publications get the idea they do not have to file for copyright unless and until they think they are damaged, they may hold off in such numbers that the Government's $300,000 a year in copyright fees may dwindle to almost nothing.

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