« PreviousContinue »
from what has been said that a definition of the word representation by a British statute is not operative as such in this country. And in all the cases which have arisen in this country, recently, upon the rights of authors to unpublished plays written by Englishmen, the objection that their rights were destroyed in consequence of the clause already referred to in section 20 of 5 & 6 Vict. cap. 45, seems not to have been taken either by counsel or the court.
I am of opinion that, upon principle and authority, the author or his assignee of an unpublished play has a right of property in the manuscript and its incorporeal contents; that is, in the words, ideas, sentiments, characters, dialogue, descriptions, and their connection, independent of statutes, and that a court of equity can protect it.”
I am also of opinion that, as the law now exists in this country, the mere representation of a play does not of itself appropriate it to the public, except so far as those who witness its performance can recollect it, and that the spectators have no right to cause its reproduction by phonographic or other verbatim reports independent of memory.
These being my conclusions, the only other question is, whether the defendant has brought himself within the conditions named. And, after what has been said, it necessarily follows that, in my judgment, he has not. I cannot doubt that De Witt obtained the copy of the play of “ Mary Warner," which he furnished to the defendant in this case, either in whole or in part, through a short-hand reporter, or in some other unauthorized or wrongful way, and not by memory alone.
The case will, therefore, have to go to proofs in the regular way, and the injunction stand until the hearing.
Joseph P. Clarkson and Cornelius Van Shaack, for plaintiff; Ira D. Warren, of New York, for defendant.
Since the above was prepared, a cause arose at Chambers, in New York Supreme Court, before Cardozo, J., which bears upon the matter treated in these pages. The following abstract of the case is made up from information derived from counsel, and the opinion is given in full.
Johannes Oertel et al. v. Hamilton Wood, Jr. Oertel, a painter, executed in oils a religious picture, which he named “Rock of Ages." James, the coplaintiff, by as
1 The point was discussed by counsel in Palmer v. McDonough, before Nelson, J., in S. D. N. Y., and in Palmer v. Dewitt, but has now first been judicially considered.
2 This places the author of unpublished recitative or representative literature in the position of a dramatic copyrighter. For his status, see Daly v. Palmer, 3 Am Law Rev. 453; Roberts v. Myers, ubi supra; Boucicault v. Wood, ubi supra. But this proprietary right is liable to defeat by one who can memorize from the performance either directly or secondarily. No decision has yet held that the memorizer can print or write out and communicate otherwise than orally, save Palmer v. Dewitt, and this is appealed from.
signment from Oertel, acquired the exclusive right for a term of years to reproduce the picture in all other ways than by oil-painting ; Oertel was to share his profits. James, under this agreement, prepared and put upon the market, a “chromo" and a photograph. A line engraving of the picture was also undertaken by James Wood, the defendant, copied from one of the James photographs, and published, a photograph of the picture under the name of “Rock of Ages."
An injunction bill was brought to restrain the defendant, and an ex parte injunction issued, restraining the sale of the photograph, and the use of the name “Rock of Ages."
Defendants demurred to the bill, and moved to dissolve the injunction. Plaintiffs moved to strike out the demurrer as frivolous, and for judgment absolute.
CARDOZO, J. This case cannot be distinguished in principle from the cases of Prince Albert v. Strange, 2 De G. & Sm. 652, and Turner v. Robinson, 10 Ir. Ch. 510. Perhaps the injunction is too broad, but that can be remedied. The motion to dissolve must be denied. Ordinarily, a question like that presented here, should not be passed upon on a motion to overrule a demurrer as frivolous, but, when it has been fully argued, it may as well be disposed of on the merits as not, especially when those merits are really involved in the motion to dissolve the injunction.
The motion of the plaintiffs for judgment is therefore granted. Clarence H. Seward and D. W. Gillette, for plaintiffs, Geo. W. Wingate, for defendant.
This judgment, if all the facts had been before the court, would have been incorrect, except so far as it restrained the use of the name “Rock of Ages," as the plaintiff's trade-mark.
Upon the pleadings, it was doubtless correct throughout. The plaintiffs alleged they had printed and published two reproductions of the painting, a “chromo" and a photograph. The fact was, these were not copyrighted, and therefore were public property, except as to the name. The bill alleged a reproduction or copy of the pic ture by the defendant, the picture being an unpublished manuscript, and it was impossible it ever should be any thing else. The fact was, the photograph was copied.
As the photograph and “chromo” were subject of copyright, their printing and sale was a dedication to the public unless copyrighted. But as the fact did not appear that plaintiffs had published without copyright, and as the bill alleged a copy of the original, it seems as matter of pleading that the demurrer was correctly overruled as frivolous.
This is the second case on this branch of the law which has turned on a question of pleading. In Keene v Kimball, the demurrer to the bill was sustained because the use of a surreptitious copy by the defendant was not alleged, and because it was alleged that the defendant had sent his artists to the plaintiff's performance to imitate the better plaintiff's manner of executing the piece. Hoar, J., delivering the opinion, lays great stress on the right of employing the information freely offered by the plaintiffs, — the right to use the memory to its fullest extent, and employ the information so obtained to its fullest extent.
That a photograph is an infringement of copyright or unpublished manuscript, consult Graves v. Ashford, L. R.2 C. P. 410. See Act 1866, c. 126 (13 St. at Large, 540), for copyright of photograph.
DIGEST OF THE ENGLISH LAW REPORTS FOR NOVEM
BER AND DECEMBER, 1869, AND JANUARY, 1870.
ABATEMENT. — See EXECUTOR AND ADMINISTRATOR, 2; LEGACY, 4. ACCOUNT. — See APPROPRIATION OF PAYMENTS; BANK; CONTRACT, 1; FOREIGN
OFFICE; LIMITATIONS, STATUTE OF.
ACTION. An action cannot be maintained for writing to purchasers, or intended purchasers of machines, that such machines infringe the defendant's patents, and threatening legal proceedings in case of the use of such machines without the payment of a royalty, unless it can be shown that the defendant's claim is not bona fide in support of a right which, with or without cause, he fancies he has. — Wren v. Weild, L. R. 4 Q. B. 730. See AWARD, 3; FAMILY NAME; LIMITATIONS, STATUTE OF, 4.
ADMINISTRATION. — See EXECUTOR AND ADMINISTRATOR. ADMIRALTY. - See Ball; Costs, 4; DAMAGES, 2, 3; PRINCIPAL AND AGENT;
AFFIDAVIT. — See MISDEMEANOR.
ALIMONY. By the practice of the Ecclesiastical Courts, more than one moiety of the joint income cannot be allotted to a wife after a decree of judicial separation, although she may have brought more than one moiety of the property into settlement. – Haigh v. Haigh, L. R. 1 P. & D. 709.
ANNUITY. A testator gave an annuity which he directed to be paid by his son; and subject and charged with the payment of his debts, legacies, and the annuity, he left his real and personal property to his son. On bill filed by the annuitant to enforce payment: Held, that he was not entitled to a receiver, as he could help himself by distress under St. 4 Geo. II. c. 28. - Sollory v. Leaver, L. R. 9 Eq. 22. See EXECUTOR AND ADMINISTRATOR, 2; WILL, 2, 6.
APPEAL. There is no settled rule that when one party to an administration suit has appealed, any other party may insist on having the decree varied in his favor. Pardo v. Bingham, L. R. 4 Ch. 735.
See LIMITATIONS, STATUTE OF, 3.
APPORTIONMENT. C. covenanted and gave bond to pay a fund three months after his decease in trust for a tenant for life and remainder-man, with interest from the date of his death until payment. Several years after C.'s death, it appeared that there were some assets, but less than the principal fund. Held, that the sum must be calculated which would amount, at four per cent from C.'s death, to the assets on hand, and the difference paid to the tenant for life. — Cox v. Cox, L. R. 8 Eq. 343.
APPROPRIATION OF PAYMENTS. A., an attorney, having £5000 to invest for B., a client, paid it to his own general account at his banker's, and afterwards drew out more than that amount and his previous balance, and paid in considerable sums. He died not having invested the £5000, and with a balance at the bank of £2700. Held, that the sums drawn out must be set against those paid in in the order in which they were paid in, and that B. could not restrain A.'s administrator from dealing with the balance. — Brown v. Adams, L. R. 4 Ch. 764..
ARBITRATION. — See AWARD.
AssuMPSIT. - See FRAUD.
AWARD. 1. The plaintiff, S., agreed to row a race with K., each to deposit a stake with the defendant, and “the decision of the referee to be final.” There was a default in the start, and the referee, who had power to interfere in that event, ordered K, to inform S. that if he did not start, K. was to row over the course without him. K. rowed over the course, and, as the jury found, without communicating this order to S., or giving him any opportunity to start. The referee, who could not see what occurred between K. and S., without any inquiry, and against the protest of S.'s umpire, ordered the stakes to be paid to K. Held, that, as the court could see that the question whether K. communicated his order to S. had not been passed on by the referee, and as K. did not do so in fact, there was no race, and the referee had no jurisdiction to award the stakes, and that S. was entitled to recover his deposit. (Exch. Ch.) – Sadler v. Smith, L. R. 5 Q. B. 40; 8. c. L. R. 4 Q. B. 214; 3 Am. L. Rev. 682.
2. The umpire in whose discretion were the costs of the submission, reference, and award, awarded a sum to one party, and directed him to pay the costs of the other party, which were double the sum awarded. Held, that this was no ground for setting aside the award. — Re Fearon & Flinn, L. R. 5 C. P. 34.
3. Suit for £400. Plea, by way of estoppel, as to all over £145; an award, not alleged to be satisfied, of £145 in favor of the plaintiff for the same cause of action. Demurrer. Held, that the plea was a good bar. — Commings v. Heard, L. R. 4 Q. B. 669.
BAIL. 1. A vessel was arrested in a cause of collision. At the time of the collision she had a cargo on board, a portion only of which remained on board at the time of the arrest. The vessel and cargo belonged to the same owner. On motion for release of the portion of the cargo remaining on board : Held, that the freight due upon the whole must first be paid into court. — The Roecliff, L. R. 2 Ad. & Ec. 363.
2. A vessel was arrested in a cause of collision, having been herself injured by the collision. She was afterwards repaired and much increased in value. On motion for her release on bail : Held, that she ought to be released on bail being given to the amount of her value at the time of her arrest. — The St. Olaf, L. R. 2 Ad. & Ec. 360.
BAILMENT. — See TELEGRAPH.
BANK. A railway company having general and special accounts with a bank was credited with a sum “Per Loan," and drew cheques against it which were entered under the head - Loan Account.” The company became insolvent, and the claim of the bank was disputed as being for an unauthorized loan. Held, that the above was not a loan, but merely an overdrawn account. - Waterlow v. Sharp, L. R. 8 Eq. 501. See Trust, 1; Will, 9.
BANKRUPTCY. 1. A payment of a sum by a sub-tenant to release his goods, lawfully distrained for rent due from the tenant to the landlord, does not create a liability from the tenant to the sub-tenant “by reason of any contract or promise, to & demand in the nature of damages,” which is barred by the tenant's discharge in bankruptcy. - Johnson v. Skafte, L. R. 4 Q. B. 700.
2. After an order nisi in a divorce suit, dissolving the marriage, and ordering the co-respondent to pay damages and costs, the co-respondent made away with his property, and shortly after the order was made absolute, became bankrupt. Held, that he was not guilty of contracting a debt without reasonable expectation of being able to pay it, within the Bankruptcy Act, 1861, $ 159. - Ex parte Clayton, L. R. 5 Ch. 13.
3. A solicitor, who had been solicitor to a former assignee, but who was attending at the Bankruptcy Court for another party, was examined, without having been summoned, as to his receipts on account of the estate. He admitted receipts, and claimed deductions, but was told to pay over the full sum received. Afterwards, and without notice to him, an order was made to that effect. Held, that the order must be discharged as made without giving the solicitor a proper opportunity to defend himself. — Ex parte Prance, L. R. 5 Ch. 16. See PARTITION, 1; PRIORITY; WINDING UP.
BEER HOUSE. A covenant not to use a house as a “ beer house” is not broken by the sale, under a license, of beer, by retail, not to be drunk on the premises. — London 8 N. W. Railway Co v. Garnett, L. R. 9 Eq. 26.