which the defendant will sustain if the injunction is granted and will hesitate to destroy the entire work in order to redress a very slight injury. The court must sometimes "incur the hazard of occasioning finally some injurious consequence to one party or the other; "2 and the aim will be to take that course which is most equitable in view of all the circumstances. "It appears to me," said Lord Langdale, "that an injunction ought to be granted whenever it appears by sufficient evidence that a copyright exists, and that piracy has been committed to an extent which is likely to be seriously prejudicial to the plaintiff; and that the extent of the injunction must depend on the amount of the proof and the nature of the work." 3 Illustrations of Material Quantity and Value. The court did not hesitate to grant an injunction, where the defendant's publication consisted of two volumes containing eight hundred and sixty-six pages, of which three hundred and nineteen pages of letters had been copied from the plaintiff's work, which was in twelve volumes, and contained six thousand seven hundred and sixty-three pages; or where, in a compilation of seven hundred and ninety pages, consisting chiefly of selections of poetry, six entire poems and extracts from others, the whole amounting to eighteen pages, had been copied from The Poetical Works of Thomas Campbell. In Kelly v. Hooper, it appeared that from the plaintiff's directory of eight hundred and seventy pages, only three and a half pages had been taken; but these formed a large part of the defendant's almanac, and constituted its chief value. An injunction had been obtained ex parte, and was continued. Where the defendant had published in two numbers of a periodical detached extracts amounting to six or seven pages, from a farce of forty-two pages, an injunction was granted; but, on motion to make it perpetual, it was dissolved, on the ground that the quotations had been made for purposes of criticism. In Cobbett v. Woodward, the court 1 Spottiswoode v. Clarke, 2 Phillips, 154; M'Neill v. Williams, 11 Jur. 344; Pike v. Nicholas, Law Rep. 5 Ch. 251; Webb v. Powers, 2 Woodb. & M. 497. 2 Lord Eldon, Hogg v. Kirby, 8 Ves. 226. 3 Lewis v. Fullarton, 2 Beav. 12. 4 Folsom v. Marsh, 2 Story, 100. Campbell v. Scott, 11 Sim. 31. 6 4 Jur. 21. 7 Whittingham v. Wooler, 2 Swans. 428. See also Bell v. Whitehead, 3 Jur. 68. said that the plaintiff was entitled to an injunction, if he thought it worth taking, against eight lines which were found to be piratical in the defendant's publication, the Illustrated Furnishing Guide, and which had been taken from the plaintiff's New Furnishing Guide.1 In Mawman v. Tegg, an affidavit was made by the defence that, from the plaintiff's work, the Encyclopædia Metropolitana, published in nine parts, and containing upward of two hundred and twenty-seven thousand lines, two thousand one hundred and sixty lines had been used in various articles in the London Encyclopædia, Lord Eldon appears to have thought that it was a proper case for an injunction; but referred the matter to a master to report as to the precise extent of the piracy, and to point out the parts copied.2 In Chappell v. Davidson, where the chief complaint was of the unlawful use of the title of the plaintiff's song, ViceChancellor Wood said: "I do not think it is necessary to lay stress on the imitation of two bars of the music. That is only a question of copyright; and certainly, if the plaintiffs intend to insist upon it as copyright, I should have to hear them in reply upon that, and to put them to an action on terms, before I could continue the injunction." In Pike v. Nicholas, on appeal, the court having found that the defendant had copied from the plaintiff's publication one passage which had been quoted from another author by the plaintiff, held that this, though under the circumstances it might be piratical, was not sufficient ground for an injunction. In Webb v. Powers, where it appeared that there were scattered through the defendant's work only about twenty or thirty lines of the seven thousand contained in the plaintiff's, and that they had been taken without any animus furandi, the court thought that whatever damage the plaintiff had sustained could be more properly remedied at law, and that it would be inequitable to destroy the defendant's publication in order to redress so slight a wrong.5 1 Law Rep. 14 Eq. 407. 2 2 Russ. 385. 82 Kay & J. 129. 4 Law Rep. 5 Ch. 251. 5 2 Woodb. & M. 497. "So small a quantity," said Woodbury, J., "indicates rather illustration, and comports with the preface acknowledging aid from the plaintiff's work, but having some different and material purposes to accomplish, and not being a material substitute with no essential changes." Ibid. 520. In Bell v. Whitehead, it appeared that the defendant had published in the Railway Times, a weekly publication, about four and a half pages copied from an article of nineteen pages in the Monthly Chronicle. Lord Chancellor Cottenham dissolved the injunction, which had been granted, chiefly on the ground that the extracts had been made for the purpose of criticism. But he said: "Here the value of the extract is very minute and trifling; and, if there were nothing else in the case, the extreme minuteness of value in the extract, and of injury sustained by the plaintiff, would be sufficient to induce the court not to interfere." 1 A court of equity will not lend its aid to the protection of what is utterly insignificant. But, generally, where the value or importance of the plaintiff's publication appears to be small, the law will be construed with much liberality in his favor. If his production is a proper subject of copyright, although it may be of little worth or consequence, he is vested with a right which the law promises to protect. 2 FORM OF THE INJUNCTION. Injunction Granted only against Piratical Part. The rule is settled in English and American chancery practice that, where only a part of a book is piratical, the remedy will not be extended beyond the injury. Hence, although the court may be satisfied that piracy has been committed, a permanent injunc tion is not usually granted until the extent of the infringement has been ascertained, and then only the objectionable part will 18 L. J. N. s. (Ch.) 142; s. c. 3 Jur. value. But, considering this as a gen68. eral question, and as one affecting the manufacture, the subject is one of great value." 2 Sheriff v. Coates, 1 Russ. & My. 159, 167; Cobbett v. Woodward, Law Rep. 14 Eq. 407; Folsom v. Marsh, 2 Story, 109-112; Woolsey v. Judd, 4 Duer, (N. Y.) 379. In the case first cited, Lord Chancellor Lyndhurst said: "It was said that the court ought not to interfere on account of the small value of the property in litigation. It is true that, as to the particular pieces of calico, or possibly as to the individual pattern, it may not be of much be restrained. But, when an important and distinct part of the defendant's work is clearly piratical, the publication of that part may be restrained before the nature of the rest is ascertained.2 Again, so much of the book complained of may be found to have been unlawfully copied that an injunction against the piratical part will have the practical effect of destroying the whole. In such case, it may be unnecessary to ascertain the full and precise extent of the piracy. Thus, in Lewis v. Fullarton, Lord Langdale, having satisfied himself that a large part of the defendant's work was piratical, that the parts which had been examined and compared afforded "fair indications" of the character of the rest, and that if what was known to be unlawful were taken away "there would be left an imperfect work, which could not to any useful extent serve the purposes of a gazetteer," granted an injunction against the piratical parts without examining the others. In a case somewhat 1 Br. Mawman v. Tegg, 2 Russ. 385; Lewis v. Fullarton, 2 Beav. 6; Jarrold v. Houlston, 3 Kay & J. 708; Kelly v. Morris, Law Rep. 1 Eq. 697; Scott v. Stanford, 3 Id. 718; Morris v. Ashbee, 7 Id. 34; Pike v. Nicholas, Law Rep. 5 Ch. 251; Hogg v. Scott, Law Rep. 18 Eq. 444; Smith v. Chatto, 31 L. T. N. s. 775. Am. Folsom v. Marsh, 2 Story, 100; Story's Executors v. Holcombe, 4 McLean, 306; Greene v. Bishop, 1 Cliff. 186; Daly v. Palmer, 6 Blatchf. 256; Lawrence v. Dana, 2 Am. L. T. R. N. s. 402. "It appears to me," said Lord Langdale, "that an injunction ought to be granted, whenever it appears, by sufficient evidence, that a copyright exists, and that piracy has been committed to an extent which is likely to be seriously prejudicial to the plaintiff; and that the extent of the injunction must depend on the amount of proof and the nature of the work. The plaintiffs in the present case ask for an injunction, to restrain the defendant from publishing the whole or any part of the defendant's gazetteer. As it appears from the evidence that there are parts of the defendant's gazetteer which are not borrowed from the plaintiff's work, I cannot grant an injunction in those terms; and it becomes a question, whether an injunction should be granted in general terms against such parts as have been pirated, or whether means should be taken to ascertain what particular parts have been pirated, in order that the publication of those particular parts may be restrained. Now it appears to me, not, it must be admitted, by absolute proof 4 Lewis v. Fullarton, 2 Beav. 6, 14. and demonstration, for the two works 2 Kelly v. Morris, supra. 3 "I do not think," said the ViceChancellor in Stevens v. Wildy, "I am bound to go through the whole book; but I apprehend that the law at present is in conformity with the old Roman law, which is, that, if the defendant will take the plaintiff's corn and mix it with his own, the whole should be taken to be the plaintiff's; and, after the defendants in this case have taken so much as I see has been taken, I think the injunction ought to be granted." 19 L. J. N. s. (Ch.) 190. similar, Lord Eldon, before granting an injunction, referred the matter to a master to report the extent of the infringement.1 Entire Work may be Restrained when Piratical Part cannot be Separated. When the part which has been copied from the plaintiff's work can be separated from that which has not been so copied, an injunction will be granted only against the objectionable part or parts. But if the original and the piratical matter are so mixed in the publication complained of that they cannot be distinguished, then the entire work may be restrained on the principle that whoever wrongfully mixes the matter of another with his own must suffer the consequences. have not been examined in every part, but upon proof and demonstration as to part, and as to the rest by strong inference and presumption, arising from the proof given as to those parts to which the proof applies, and from the nature of the work and the circumstances under which it is proved to have been composed, that if the parts pirated were taken away, though some articles would remain in their entirety, yet the greater number would be left in a state so imperfect and incomplete, that the defendant's work would lose its distinctive and useful character as a gazetteer. "If the defendant were desirous to avail himself, as he has an undoubted right to do, of any original matter of his own, or of any matter which he has fairly taken from other sources, he would, I think, be under the necessity of recomposing his work, for the purpose of separating that which appears to me to have been improperly taken from the plaintiff's work. Lord Eldon says, 'In the cases which have come before me, my language has been, that there must be an injunction against such part as has been pirated, but in those cases the part of the work which was affected with the character of piracy was so very considerable, that, if it were taken away, there would have been nothing left to publish except a few broken sentences' [Mawman v. Tegg, 2 Russ. 399]; and it was be cause the evidence before him did not enable him to approach sufficiently to that result, that he made the particular order which he did in that case. "But in this case, having availed myself of the evidence which has been so industriously collected during the long time that this motion was pending, and having read with great care all the affidavits laid before me, and more particularly the affidavits of Mr. Holliday and Mr. Cunningham, I think that I have reasons, on which I ought judicially to act; for considering that the parts of the work which have been examined and compared afford fair indications of the nature and character of those parts of the works which have not yet been examined and compared; and it appearing to me, under these circumstances, that, if the parts affected with the character of piracy were taken away, there would be left, I cannot say nothing but a few broken sentences, but there would be left an imperfect work, which could not, to any useful extent, serve the purposes of a gazetteer, I think that I ought to grant an injunction, to restrain the publication of the parts which are pirated, without waiting till all the parts which have been pirated can be distinctly specified." Ibid. 12. 1 Mawman v. Tegg, 2 Russ. 385. 2 Br. Mawman v. Tegg, supra; Lewis v. Fullarton, 2 Beav. 11; Colburn v. Simms, 2 Hare, 554; Stevens |