Although we may and do assume that neither party has any remaining property interest as against the public in uncopyrighted news matter after the moment of its first publication, it by no means follows that there is no remaining property interest in it as between themselves. For, to both of them alike, news matter, however little susceptible of ownership or dominion in the absolute sense, is stock in trade, to be gathered at the cost of enterprise, organization, skill, labor, and money, and to be distributed and sold to those who will pay money for it, as for any other merchandise. Regarding the news, therefore, as but the material out of which both parties are seeking to make profits at the same time and in the same field, we hardly can fail to recognize that for this purpose, and as between them, it must be regarded as quasi property, irrespective of the rights of either as against the public

It is no answer to say that complainant spends its money for that which is too fugitive or evanescent to be the subject of property. That might, and for the purpose of the discussion we are assuming that it would, furnish an answer in a common law controversy. But in a court of equity, where the question is one of unfair competition, if that which complainant has acquired fairly at substantial cost may be sold fairly at substantial profit, a competitor who is misappropriating it for the purpose of disposing of it to his own profit and to the disadvantage of complainant cannot be heard to say that it is too fugitive or evanescent to be regarded as property. It has all the attributes of property necessary for determining that a misappropriation of it by a competitor is unfair competition because contrary to good conscience.

It has been said that an artist who sings for the phonograph has means within his control of preventing a direct reproduction of his voice. A Federal case1 dealing with indirect purloining of voice as reproduced on a phonograph is enlightening. One of the defenses made was that the singers whose voices were reproduced were necessary parties to the litigation since their royalties or profits were affected. Their position was quite similar to that of one whose voice broadcast by radio is given unauthorized phonographic recordation and reproduction. The court, although holding that they were not necessary parties to that litigation, recognized that they had a financial interest saying:

It may be remarked that the defendant has answered, claiming that each of these singers is a necessary party to this suit, inasmuch as their Fonotipia, Ltd., v. Bradley, 171 Fed. 951, 954, 963.

contracts are affected; but it need only be said that they are neither necessary nor indispensable parties, for the reason that their contracts are entirely dependent upon sales, and they are interested in the present questions only in the sense that their profits would be greater or less as sales increase or diminish.

The relief asked in this case would protect those who have already sung or played compositions having a pecuniary value, because of their musical excellence, and also the persons who have invested capital and labor in putting a valuable product upon the market. The education of the public by the dissemination of good music is an object worthy of protection, and it is apparent that such results could not be attained if the production of the original records was stopped by the wrongful taking of both product and profit by anyone who could produce sound discs free from the expense of obtaining the original record.

In discussing the merits of the litigation, the court said:

The jurisdiction of a court of equity has always been invoked to prevent the continuance of acts of injury to property and to personal rights generally, where the law had not provided a specific legal remedy, and it would seem that the appropriation of what has come to be recognized as property rights or incorporeal interests in material objects, out of which pecuniary profits can fairly be secured may properly, in certain kinds of cases, be protected by legislation, but such intangible or abstract property rights would seem to have claims upon the protection of equity, where the ground for legislation is uncertain or difficult of determination, and where the principles of equity plainly apply.

There are other illustrations of the extent to which the courts go in extending protection against unfair competition. In one case1 a moving picture theater had a contract with a distributor for a certain number of "first-run" pictures, that is, the right of exhibiting such pictures for the first time in a city or vicinity. The distributor was about to furnish a rival theater with some of the pictures included in the contract. The court, after reviewing and quoting at length from the decision in International News Service v. Associated Press, supra, said:

Its first-run privilege was of great value in the business of the kind in which instant parties are and were engaged Select Pictures Corporation, having granted to complainant the exclusive privilege of 1 Montgomery Enterprises v. Empire Theatre Company, 204, Ala. 566, 86 So. 880, 19 A. L. R. 987, 999.

showing said picture at its theater in Montgomery, Alabama, before its exhibition at other theaters in said city, was a valuable right secured by the latter under the contract, and other theaters in Montgomery could not legally exhibit the same in disregard of complainant's contract rights of first run This was beyond the rights of the law of competition.

Other Illustrations.

In Turner v. Robinson,1 the painter of a picture exhibited it publicly. The defendant, who saw the picture, devised a tableau at another place in close imitation of the picture, took a photograph of the tableau, and then published reproductions of this photograph under the same title as that of the painting. He was restrained from doing this upon the ground of unfair competition. It should be noticed that he did not take a photograph of the picture itself but photographed a tableau in imitation of the picture and at another place. Nevertheless, he was not permitted to sell these photographs. Furthermore, although the owner of the picture granted the right to see it, this did not justify the making of an imitation of it.

In Oertel v. Wood, an artist exhibited his picture, "The Rock of Ages" and the defendant took a photograph and began the sale of photographic reproductions. He was restrained from doing this. In effect, the court held that the right to look at the picture did not include the right to photograph it. The same principle appears applicable to broadcasting. The right to listen is not a right to reproduce.

In both of the above cases, the exhibition by the artist was free, and therefore, there was no contractual relation between the artists and the defendants.

Summary.

Whatever may be argued as to the legal rights to take from the ether, and appropriate to one's own unauthorized use, matter the existence of which is due to another, few

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would contend that such an act is within accepted standards of fairness or good morals. It is but a new example of the appropriation of the result of another's skill or labor, the obtaining without effort or expense of that which required both in its creation. As is shown by the cases cited, the situation is not novel in principle. While the decisions are not wholly in harmony as to the legal grounds for their determinations, they are in accord as to results. In all of them the courts dealt with new methods of invasion of underlying moral rights in an attempt to get something for nothing, and they had no trouble in determining the fundamental question of right and wrong between the parties. The difficulty arose in the endeavor to find a legal basis for the moral right on some accepted principle of law which would warrant the decision which justice required. A determination on the basis of property right met with the obstacle that there can be no ownership, in a legal sense, of the intangible, the temporary, and the evanescent. Yet the circuit courts of appeals in two districts upheld the property principle, one saying affirmatively that it preferred to make precedent rather than to fail in its plain duty. The Supreme Court of Massachusetts took a similar view. The Supreme Court of the United States has seemed to lean to a determination under the doctrine of unfair competition, itself a very modern one in its application by courts of equity, but at the same time it declares that as between the interested parties there is at least a "quasi property" in the material, although as against the public no property interest remains after publication. Whether on the theory of property rights or of unfair competition no great extension in principle is necessary to make the same rules applicable to the unauthorized use of broadcast material.

In addition to the common fact that in all these cases the arm of the court of equity was extended to protect incorporeal rights against unauthorized appropriation, the arguments adopted are at least strongly persuasive that the same attitude would be taken toward the purloining of radio programs whether from the artist or the producer.