See infra § 341 et seq.
See infra § 364.

See infra § 353 et seq.

See infra § 370.

See infra § 372.

Sculpture Copyright Act, 1814 (54 Geo. III c 56 § 3); Bernard v. Bertoni, 14 Que. L. 219.

45. See infra § 341 et seq.

Rev. St. (1906) c 70 §§ 37-39. 47. See supra § 336; infra § 371. 48. Smiles v. Belford. 23 Grant Ch. (U. C.) 590; Black v. Imperial Book Co., 8 Ont. L. 9 [aff 5 Ont. L. 184, and app dism 35 Can. S. C. 488]; Frowde v. Parrish, 27 Ont. 526; Gemmill v. Garland, 12 Ont. 139.

49. Globe Newspaper Co. V. Walker, 210 U. S. 356, 28 SCt 726, 52 L. ed. 1096 [rev 140 Fed. 305, 72 CCA 77, 2 LRANS 913, 5 AnnCas 274 (rev 130 Fed. 593)]. See supra § 66.

50. See supra §§ 336-338.

51. See Actions 8 101 et seq; Statutes [36 Cyc 1188].

Hills v. Hoover, 220 U. S. 329. 337. 31 SCt 402, 55 L. ed. 485. Ann Cas1912C 562; Globe Newspaper Co. v. Walker, 210 U. S. 356, 28 SCt 726. 52 L. ed. 1096 [rev 140 Fed. 305, 72 CCA 77, 2 LRANS 913, 5 AnnCas 274 593)]; (rev 130 Fed. Wheaton V. Peters, 8 Pet. (U. S.) 591, 8 L. ed. 1055; Dixon v. Corinne Runkel Stock Co., 214 Fed. 418; Ohman v. New York, 168 Fed. 953.

"The copyright statutes of the United States afford all the relief to which a party is entitled, and no action outside of those provided therein will lie." Hills v. Hoover, supra [foll Globe Newspaper Co. v. Walker, 210 U. S. 356. 28 SCt 726, 52 L. ed. 1096 (rev 140 Fed. 305, 72 CCA 77. 2 LRANS 913, 5 AnnCas 274 [rev 130 Fed. 593])].

53. Globe Newspaper Co. V. Walker, 210 U. S. 356, 28 SCt 726. 52 L. ed. 1096 [rev 140 Fed. 305, 72 CCA 77, 2 LRANS 913, 5 AnnCas 274 (rev 130 Fed. 593)]; Bennett v. Boston Traveler Co., 101 Fed. 445. 41 CCA 445; Sarony v. Ehrich, 28 Fed 79. 23 Blatchf. 556; Beckford v. Hood, 7 T. R. 620, 101 Reprint 1164.

quate.58
A discovery may be had in proper cases
subject to the usual rules.59

61

[§ 340] 2. Rule Applied. Under the former law no action for damages would lie for the infringement of copyright in any map, chart, print, cut, engraving, chromo, painting, drawing, statue, statuary, model, or design intended to be perfected and executed as a work of the fine arts, or of any dramatic or musical composition otherwise than by public performance, because the remedy by forfeiture and penalties was exclusive,60 and the statute gave a remedy by action for damages only in the case of books, and the public performance of dramatic and musical compositions. if any of these subjects of copyright were in fact Of course, copyrighted as books, as some of them could be, an action for damages as for infringement of a book would lie. So no action would lie to recover the value of infringing sheets or copies, because the statute gives a right to recover only the actual physical sheets or copies found in defendant's possession, together with the statutory penalty.62 But under a statute which gave no remedy against one who printed or imported for gratuitous distribution, or who gratuitously distributed unlawfully printed or imported copies, an action for damages was sus

58.

Pierpont v. Fowle, 19 F. Cas. No. 11,152, 2 Woodb. & M. 23; Black v. Imperial Book Co., Ltd., 5 Ont. L. 184. See generally Equity [16 Cyc 30]; Injunctions [22 Cyc 769]. [a] Comparison necessary. Where the reading and comparison of two or more works is necessary in order to determine the question of piracy, such a comparison can conveniently be had only in equity. Gyles v. WilCOX, 2 Atk. 143, 26 Reprint 489, 7 ERC 95.

59. Pierpont v. Fowle, 19 F. Cas. No. 11,152, 2 Wood. & M. (U. S.) 23. See infra § 356. Discovery [14 Cyc 301]. See also generally 60. Walker v. Globe Newspaper Co., 210 U. S. 356, 28 SCt 726, 52 L. ed. 1096 [rev 140 Fed. 305, 72 CCA 77, 2 LRANS 913, 5 AnnCas 274 (rev 130 Fed. 593)]; Thornton v. Schreiber, 124 U. S. 612, 8 SCt 618, 31 L. ed. 577; Ohman v. New York, 168 Fed. 953 (map); Morrison v. Pettibone. 87 Fed. 330. See also infra §§ 357, 363.

Su

[a] A strong argument to the contrary is contained in Judge Putnam's opinion in Walker v. Newspaper Co., 140 Fed. 305, but his Globe decision was reversed by the preme court. Walker v. Globe Newspaper Co., 210 U. S. 356, 28 SCt 726, 52 L. ed. 1096 [rev 140 Fed. 305, 72 CCA 77, 2 LRANS 913, 5 AnnCas 274 (rev 130 Fed. 593)].

[§§ 339-341

tained, although the statute specifically authorized an action for damages only where the printing or importation was for the purpose of sale, exportation, or hire.63 And where the statutory action for damages is available only in cases where an entire book has been pirated, and is not applicable to cases of partial infringement, a common-law action for damages lies in cases of such partial infringement.64 An attachment in accordance with local laws is not available in an action for infringement.65

68

The

Reprint 380; Wilkins v. Aikin, 17
Tegg, 2 Russ. 385, 3 EngCh 385, 38
Ves. Jr. 422, 424,
(per Eldon, L. C.); Hogg v. Kirby,
34 Reprint 163
8 Ves. Jr. 215, 32 Reprint 336.

[ 341] C. Injunctions-1. In General. The obvious and recognized inadequacy of the remedy at law in cases of infringement of copyright is the basis of the jurisdiction in equity to grant injunctions.67 While this remedy would no doubt exist independently of any legislative authorization, the copyright statutes both in the United States and in England have long expressly authorized the granting of injunctions against infringement.69 jurisdiction thus granted by statute is in harmony with the general principles of equity jurisprudence and is to be exercised according to the course and principles of courts of equity. The remedy by injunction is concurrent with the other remedies given by the copyright law.71 are substantially the same as those governing inThe general rules law causes" plaintiff shall be entitled | 711, 40 Reprint 1100; Mawman v. to similar remedies by attachment or defendant, provided by the laws of other process against the property of the state in which the court is held, etc., and since no authority exists in the United States for obtaining a copyright beyond the extent to which infringement of a copyright is not congress has authorized it, a suit for a "common-law cause" within § 915, and hence plaintiff in such action is not entitled to attachment. Dixon v. Corinne Runkel Stock Co., 214 Fed. 418, 422 (where the court said: is elementary principle that statutes, "It tachment should be strictly construed giving the ancillary remedy of at-they should be confined to those causes of action which are clearly within the language of the statutes. This distinction between a right of action given by the common from one dependent upon a statute law "Our jurisdiction, unless I misis well understood in our jurispru- law does not give a complete remtake, is founded upon this; that the dence. In using the term 'common-edy to those whose literary property is invaded: for if publication after publication is to be made a distinct cause of action, the remedy would soon become worse than case." Per Eldon, L. C., in Lawthe disrence v. Smith, Jac. 471, 472, 4 Eng Ch 471, 37 Reprint 928.

law causes' in section 915 Revised
Statutes (U. S
684) it must be assumed that the
Comp. St. 1901, p
Congress had this distinction
mind, and intended that it should be
in
observed. It is not allowable to dis-
regard it, or by interpretation to ex-
plain it away. The motion to vacate
warrant
of attachment

the

granted").

61. U. S. Rev. St. §§ 4964, 4966; Globe Newspaper Co. v. Walker, 210 U. S. 356, 28 SCt 726, 52 L. ed. 1096 [rev 140 Fed. 305, 72 CCA 77, 2 LRA NS 913, 5 AnnCas 274 (rev 130 Fed. 593)]; Thornton v. Schreiber, 124 U. S. 612, 8 SCt 618, 31 L. ed. 577. 62. Rinehart v. Smith, 148; Sarony v. Ehrich, 28 Fed. 79, 23 121 Fed. Blatchf. 556 (infringement of photo-right laws. graph of Oscar Wilde).

"The Act of Congress gives no right to sue for the value of the articles, or damages for their detention.' Rinehart v. Smith, supra. 63. Novello v. Sudlow, 12 C. B. 177, 74 ECL 177, 138 Reprint 869. 64. Globe Newspaper Walker, 210 U. S. 356, 28 SCt 726, 52 Co. L. ed. 1096 [rev 140 Fed. 305, 72 CCA 77, 2 LRANS 913, 5 AnnCas 274 (rev 130 Fed. 593)]; Rooney v. Kelly, 14 Ir. C. L. 158.

V.

65. Dixon v. Corinne Runkel Stock Co., 214 Fed. 418.

[a] Reason for rule.-U. S. Rev. St. § 915 provides that in "common

is

"Jurisdiction upon subjects of this right; which cannot be made effectpurpose of making effectual the legal nature is assumed merely for the ual by any action for damages; as, if the work is pirated, it is imposevidence as to all the publications, sible to lay before a Jury the whole which go out to the world, to the Equity therefore acts, with a view Plaintiff's prejudice. A Court of preventing to make the legal right effectual by gether." the publication altoprint 163. Lord Eldon, in Wilkins_v. Aikin, 17 Ves. Jr. 422, 424, 34 Re

68. Cooper v. Whittingham, 15 Ch. D. 501. See also supra § 339. 69. West Pub. Thompson Co., 169 Fed. Co. V. Edward on other grounds 176 Fed. 833, 100 833 [mod CCA 303]. See also supra 337. §§ 336, Mechanical musical devices infra § 374.

attachment in a suit in a federal
[b] Vacation of an unauthorized
court for infringement of a copyright
did not oust the court of jurisdiction
under the Judicial Code (Act March
3, 1911 [36 U. S. St. at L. 1092 c 231
§ 24 par 7]), providing that such
court shall have exclusive jurisdic-
tion of all suits at law or in equity
arising under the patent and copy-
Dixon v. Corinne Runkel
Stock Co., 214 Fed. 418.
66. Injunctions generally see In- Ch. D. 501.
junctions [22 Cyc 724].
67. West
other grounds 176 Fed. 833, 100 CCA
Pub. Co.
Thompson Co., 169 Fed. 833 [mod on
303]; Pierpont v. Fowle, 19 F. Cas.
No. 11,152, 2 Woodb. & M. 23; Cooper
V. Whittingham,
Spottiswoode
Ch. D. 501;
Clark,
Cott. 254, 47 Reprint 844. 2 Phil. 154,
Coop. Ct.
22 EngCh 154, 41 Reprint 900; Law-
rence v. Smith, Jac. 471, 4 EngCh
471. 37 Reprint 928; Bramwell v.
Halcomb, Myl. & C. 737, 14 EngCh
737. 40 Reprint 1110; Saunders v.
Smith, 3 Myl. & C. 711, 14 EngCh

V.

15

V.

see

Miller, 91 Fed. 129, 33 CCA 407; Pier70. Stevens v. Gladding, 17 How. pont v. Fowle, 19 F. Cas. No. 11,152, (U. S.) 447, 15 L. ed. 155; Howell v. 2 Woodb. & M. 23; Scribner v. Stoddart, 21 F. Cas. No. 12,561. 71. Cooper V. Whittingham, See also supra § 336. 15 [a] Edward-Injunction may be an appropriate After expiration of copyright. remedy for copyright infringement, pired, if the unfair taking occurred even after the copyright has while the copyright was in force and no adequate legal remedy can be apThompson Co., 169 Fed. 833 [mod on plied. West other grounds 176 Fed. 833, 100 CCA Pub. Co. V. Edward 303].

junctions in patent2 and trade-mark cases.73
[342] 2. Preliminary Injunctions. Prelim-
inary injunctions, in advance of a hearing on full
proofs, are granted with much more caution than,
and rest on somewhat different considerations from,
permanent injunctions on final hearing;" but ali
the limitations and qualifications of the right to a
permanent injunction apply with added force to a
preliminary injunction. The granting or withhold-
ing of a preliminary injunction rests in the sound
discretion of the court.76 The question of granting
a temporary injunction is affected by many con-
siderations. It depends chiefly on the extent of
doubt as to the validity of the copyright, whether
it has been infringed, the damages which plaintiff
will sustain if it is withheld, and defendant suffer

for the penalty allowed by law is
pending. Schumacher v. Schwencke,
25 Fed. 466. 23 Blatchf. 373.

72. Scribner v. Straus, 130 Fed. 389 (analogous to patent cases). See Patents [30 Cyc 1005].

73. See Trade-Marks, Trade-Names, and Unfair Competition [38 Cyc 899 et seq].

74. See generally Injunctions [22 Cyc 906].

75. See infra § 343 et seq (where all objections and defenses to an injunction are considered, the scope of this section being limited to matters peculiar to preliminary injunctions).

76. Werner Co. v. Encyclopædia Britannica Co., 134 Fed. 831, 1024, 67 CCA 281 [aff 130 Fed. 460]; Worthington v. Batty, 40 Fed. 479.

[a] Particular circumstances controlling The propriety in granting a preliminary injunction rests solely in the sound discretion of the court; and therefore the writ will not be granted where it would operate oppressively, inequitably, or contrary to the real justice of the case. The courts decline to lay down any rule which will limit their discretion to grant or to withhold the writ as respects particular cases. Scribner v. Stoddart, 21 F. Cas. No. 12,561.

77. Boosey v. Empire Music Co., 224 Fed. 646; Sweet v. Bromley, 154 Fed. 754; Ricordi v. Hammerstein, 150 Fed. 450; De Jonge v. Breuker, 147 Fed. 763; Worthington v. Batty, 40 Fed. 479; Matthewson v. Stockdale, 12 Ves. Jr. 270, 33 Reprint 103; Drone Copyright p 516 [quot Scribner v. Stoddart, 21 F. Cas. No. 12,561]. See also infra notes 88 et seq.

if it is granted." As a general rule, where plaintiff has made a prima facie case in regard to the existence of the copyright and its infringement, and there is no great inequality between the injury which the defendant will possibly sustain if it is granted and the injury which plaintiff will suffer if it is denied, the court will grant a temporary injunction as to so much of the work at least as is a plain infringement of plaintiff's copyright," in the absence of a countervailing equity in favor of defendant.80 Preliminary injunctions are granted more readily in dramatic than in other classes of But the writ will not be issued where very great injury would be likely to ensue to defendant from granting the motion for injunction, and little or none to plaintiff from its denial.82 In

cases.

81

prayed for, a preliminary injunction will be granted. Encyclopædia Britannica Co. v. American Newspaper Assoc., 130 Fed. 460 [aff 134 Fed. 831, 1024. 67 CCA 281].

[b] Violation of sale price.Where the complainant sold its books only through authorized agents on the express condition that they should maintain a certain price and each book contained a notice of the conditions, it was held that a preliminary injunction would be granted against defendant who secured several copies of the books with knowledge of the conditions and offered them for sale at less than the fixed price. Authors, etc., Assoc. v. O'Gorman Co., 147 Fed. 616.

79. Eolian Co. v. Royal Music Roll Co., 196 Fed. 926; Sampson, etc., Co. v. Seaver-Radford Co.. 129 Fed. 761; Banks v. McDivitt, 2 F. Cas. No. 961, 13 Blatchf. 163.

Directory Co., 122 Fed. 191; Chicagoing it inequitable to grant the relief
Directory Co. v. U. S. Directory Co.,
122 Fed. 189; Egbert v. Greenberg,
100 Fed. 447 ("official_form chart");
Trow Directory, etc., Co. v. Boyd. 97
Fed. 586; Broder v. Zeno Mauvais
Music Co., 88 Fed. 74; Harper v. Hol-
man, 84 Fed. 224: Ladd v. Oxnard,
75 Fed. 703; America Trotting Reg-
ister Assoc. v. Gocher, 70 Fed. 237;
West Pub. Co. v. Lawyers' Co-op.
Pub. Co., 53 Fed. 265 [rev on other
grounds 79 Fed. 756, 25 CCA 648,
35 LRA 400]; Lamb v. Grand Rapids
School Furniture Co.. 39 Fed. 474;
Sanborn Map, etc., Co. V. Dakin
Pub. Co., 39 Fed. 266; Humphreys'
Homeopathic Medicine Co. v. Arm-
strong, 30 Fed. 66; Schumacher v.
Schwencke, 25 Fed. 466, 23 Blatchf.
373; Reed v. Holliday, 19 Fed. 325;
Hubbard v. Thompson, 14 Fed. 689;
Atwill v. Ferrett, 2 F. Cas. No. 640.
2 Blatchf. 39; Banks v. McDivitt, 2
F. Cas. No. 961, 13 Blatchf. 163;
Farmer v. Calvert Lith., etc., Co., 8
F. Cas. No. 4,651, 1 Flipp. 228; Flint
v. Jones, 9 F. Cas. No. 4.872; Little v.
Gould, 15 F. Cas. No. 8,394, 2 Blatchf.
165; Miller v. McElroy, 17 F. Cas.
No. 9,581; Scribner v. Stoddart, 21
F. Cas. No. 12,561, 8 WklyNC (Pa.)
61; Shook v. Rankin, 21 F. Cas. No.
12,804, 6 Biss. 477; Smith v. John-
son, 22 F. Cas. No. 13,066, 4 Blatchf.
252; Morris v. Wright, L. R. 5 Ch.
279; Maple V. Junior Army, etc.,
Stores, 21 Ch. D. 369; Cooper V.
Whittingham, 15 Ch. D. 501; Morris
v. Ashbee, L. R. 7_ Eq. 34; Scott v.
Stanford, L. R. 3 Eq. 718; Kelly v.
Morris, L. R. 1 Eq. 697; Lewis v.
Chapman, 3 Beav. 133, 43 EngCh 133,
49 Reprint 52; Lewis v. Fullarton, 2
Beav. 6, 17 EngCh 6, 48 Reprint 1080;
Platts v. Button, Coop. 303, 10 Eng
Ch 303, 35 Reprint 566, 19 Ves. Jr.
447, 34 Reprint 583; Johnson V.
Wyatt, 2 De G. J. & S. 18, 67 EngCh
15, 46 Reprint 281; Chappell v. Dav-

[a] Relevant considerations.-In
Hanson v. Jaccard Jewelry Co., 32
Fed. 202, application was made by
plaintiff for an order pendente lite
restraining defendant from circulat-
ing a guidebook containing matter
infringing on the copyright of plain-idson, 8 De G. M. & G. 1, 57 EngCh
tiff, and it was held that the ques-
tion of the damage that might be
sustained by defendant on granting
the order, as compared with that to
plaintiff by denying it, the financial
ability of defendant to respond to
any damages assessed against him,
the fact that there was no intent on
the part of defendant to appropriate
the property of plaintiff, and that it
was done without the knowledge of
defendant by one employed to com-
pile the work, are all considerations
which it is proper for the court to
weigh in determining the question
of granting or denying the appli-
cation.

78. George T. Bisel Co. v. Bender, 190 Fed. 205; Da Prato Statuary Co. v. Giuliani Statuary Co., 189 Fed. 90; Park, etc., Co. v. Kellerstrass, 181 Fed. 431; Green v. Luby, 177 Fed. 287; Sweet v. Bromley, 154 Fed. 754; Wooster v. Crane, 147 Fed. 515, 77 CCA 211; George T. Bisel Co. v. Welsh, 131 Fed. 564; Encyclopædia Britannica Co. v. American Newspaper Assoc., 130 Fed. 460 [aff 134 Fed. 831, 67 CCA 281]; Trow Directory Printing, etc., Co. v. U. S.

1, 44 Reprint 289; Novello v. James,
5 De G. M. & G. 876, 54 EngCh 686,
43 Reprint 1111; Rundell v. Murray,
Jac. 311, 4 EngCh 311, 37 Reprint
868; McNeill v. Williams, 11 Jur. 344;
Jarrold v. Houlston, 3 Kay & J. 708,
69 Reprint 1294; Stevens v. Wildy,
19 L. J. Ch. 190; Smith v. Chatto,
31 L. T. Rep. N. S. 775; Southey v.
Sherwood, 2 Meriv. 435, 35 Reprint
1006; Bramwell v. Halcomb, 3 Myl.
& C. 737, 14 EngCh 737, 40 Reprint
1110; Saunders v. Smith, 3 Myl. & C.
711, 14 EngCh 711, 40 Reprint 1110;
Baily v. Taylor, 1 Russ. & M. 73, 5
EngCh 73, 39 Reprint 28, Taml. 295,
12 EngCh 295, 48 Reprint 118; Sheriff
v. Coates, 1 Russ. & M. 159, 5 EngCh
159, 39 Reprint 61; Robinson v. Wil-
kins, 8 Ves. Jr. 224 note, 32 Reprint
341 note; Hogg v. Kirby, 8 Ves. Jr.
215, 32 Reprint 336.

[a] Where clear piracy is shown
(1) the court will grant an injunc-
tion without waiting until the full
extent of the piracy can be ascer-
tained. Lewis v. Fullarton, 2 Beav.
6. 17 EngCh 6, 48 Reprint 1080.
Where there is no doubt of the in-
fringement, and no defense render-

(2)

80. See infra §§ 343-348.

[a] Infringement by plaintiff is ground for denying a preliminary injunction. Sweet v. Bromley, 154 Fed. 754.

81. Chappell v. Fields, 210 Fed. 864, 127 CCA 448; Nixon v. Doran, 168 Fed. 575.

[a] Reason for rule."Preliminary injunctions are granted more readily in dramatic than in other cases because the delay involved in waiting for a final decree would generally amount to a denial of justice." Chappell v. Fields, 210 Fed. 864, 866, 127 CCA 448.

82. Dun V. Lumbermen's Credit Assoc., 209 U. S. 20. 28 SCt 335, 52 L. ed. 663, 14 AnnCas 501 [aff 144 Fed. 83, 75 CCA 241]; Bobbs-Merrill Co. V. Equitable Motion Pictures Corp., 232 Fed. 791; White v. Bender, 185 Fed. 921; Ricordi v. Hammerstein, 150 Fed. 450; Encyclopædia Britannica Co. v. American Newspaper Assoc., 130 Fed. 460 [aff 134 Fed. 831, 67 CCA 281]; Sampson, etc., Co. v. Seaver-Radford Co.. 129 Fed. 761; Trow Directory, etc., Co. v. Boyd, 97 Fed. 586; West Pub. Co. V. Lawyers' Co-op. Pub. Co., 53 Fed. 265; Hanson v. Jaccard Jewelry Co., 32 Fed. 202; Goldmark v. Kreling, 25 Fed. 349; Scribner v. Stoddart, 21 F. Cas. No. 12,561, 8 Wkly NC (Pa.) 61; Spottiswoode v. Clark, 1 Coop. t. Cott. 254, 47 Reprint 844, 2 Phil. 154, 22 EngCh 154, 41 Reprint 900; McNeill v. Williams, 11 Jur. 344; Saunders v. Smith, 3 Myl. & C. 711, 14 EngCh 711, 40 Reprint 1100; Ainsworth v. Bentley, 14 Wkly. Rep. 630.

"Of late years the tendency or inclination of the Court of Chancery has, I think, been, and properly been, rather to restrict and diminish than to extend or increase, the class or number of cases in which it interferes by injunction in cases of contested copyright before the establishment of the legal title: the Court has, of late years especially, given great weight to the consideration of the question, which of the two parties to the dispute is more likely

all really doubtful cases a preliminary injunction should be refused.83 An application for a preliminary injunction may be supported, or opposed by affidavits.85

84

Validity or existence of the copyright. A preliminary injunction will be refused if the court entertains a reasonable doubt as to the existence or 86 validity of the copyright, and it is immaterial whether the doubt arises as to the facts of the case or as to the law.87

to suffer by an erroneous or hasty judgment of an interlocutory nature against them; and to the consideration also of the very possible, if not probable effect which an injunction may have to the defendant's prejudice in an action." McNeill v. Williams, 11 Jur. 344, 345.

Defendant's financial responsibility. The ability of defendant to respond to any recovery for damages or profits that may be assessed on final hearing is also an important fact to be considered;89 and where a recovery of damages and profits at final hearing will be an adequate remedy, and destrong, 30 Fed. 66.

unless the court is clearly of the
opinion that the complainant will
succeed at final hearing." Benton v.
Van Dyke, 170 Fed. 203, 204.

[a] Disputed and doubtful ques-
tions (1) On motion for a prelimi-
nary injunction, all disputed or
doubtful questions of fact must be
resolved against_complainant. Photo
Drama Motion Picture Co. v. Social
Uplift Film Corp., 213 Fed. 374 [aff
220 Fed. 448, 137 CCA 42]. (2) Thus
where it was a matter of much
doubt whether plaintiff's engravings,
published with a price list of the
articles described in his book as an
advertisement of those articles, were
intrinsically valuable as works
art the injunction was denied. Lamb
V. Grand Rapids School Furniture
Co., 39 Fed. 474.

of

[a] Application of rule.-(1) "It is said that a preliminary injunction ought not to be allowed because the defendants have a large capital invested and 1,500 or 2.000 men employed in their business, and that an injunction would do them irreparable injury. It is true that in cases of this nature the court will sometimes balance inconveniences, and withhold preliminary injunction where its allowance will cast a burden upon the defendant disproportionate to the relief which its allowance will afford the complainant. But this is not such a case. If the injunction be here allowed, the defendants may continue their business as soon as they shall have substituted for the articles now published by them other articles which do not infringe the complainant's copyrighted articles." Encyclopædia Britannica Co. v. American Newspaper Assoc., 130 Fed. 460, 465 [aff 134 Fed. 831, 67 CCA 281]. (2) "Whatever may be the ultimate result, the case is not one justifying a preliminary injunction. Especially is this view confirmed when there is nothing to show irreparable injury pendente lite. Plaintiff's play is not being produced, and the picture will not hurt the sale of the novel for the present." Bobbs-Merrill Co. v. Equitable Mo-question of infringement, a complaintion Pictures Corp., 232 Fed. 791, 796.

[b] Works of a transitory nature. -Unless the court is quite clear as to what are the legal rights of the parties, it is much the safest course to abstain from exercising its jurisdiction till the legal right has been determined, where the controversy arises over works of a transitory nature, such as almanacs. "In such a case, if the plaintiff is right, the court has some means, at least, of indemnifying him, by making the defendant keep an account; whereas, if the defendant be right, and he be restrained, it is utterly impossible to give him compensation for the loss he will have sustained. And the effect of the order in that event will be to commit a great and irremediable injury." Spottiswoode v. Clark, 2 Phil. 154, 157, 22 EngCh 154.

83. Bobbs-Merrill Co. v. Equitable Motion Pictures Corp., 232 Fed. 791; Photo Drama Motion Picture Co. v. Social Uplift Film Corp., 213 Fed. 374 [aff 220 Fed. 448, 137 CCA 42]; Ginn v. Apollo Pub. Co., 209 Fed. 713; Hoffman v. Le Traunik, 209 Fed. 375; Ricordi v. Mason, 201 Fed. 182; White v. Bender, 185 Fed. 921; Green v. Minzensheimer, 177 Fed. 286; Benton

V.

Van Dyke, 170 Fed. 203; Savage v. Hoffman, 159 Fed. 584; Sweet v. Bromley, 154 Fed. 754; Gopsill v. C. E. Howe Co., 149 Fed. 905; De Jonge V. Breuker, 147 Fed. 763; American Mutoscope, etc., Co. v. Edison Mfg. Co., 137 Fed. 262; Dun v. International Mercantile Agency, 127 Fed. 173; Harper v. Holman, 84 Fed. 224; Mead v. West Pub. Co., 80 Fed. 380; Miller v. McElroy, 17 F. Cas. No. 9.581, 2 PaLJ 305. "Such a

[b] State compilation of statutes. -A court should not interfere by injunction to restrain the publication by a state of a new compilation of its laws determined by its legislature to be required by the public interests, and which has been completed, on the ground that the compiler has appropriated the labor of a former compiler in infringement of his copyright, unless the right to the relief is clearly manifest from the evidence. Howell v. Miller, 91 Fed. 129, 33 CCA 407.

84. Farmer v. Calvert Lith., etc., Co., 8 F. Cas. No. 4,651, 1 Flipp. 228; Anglo-Canadian Music Pub. Assoc. v. Winnifrith, 15 Ont. 164 (affidavit of ownership not controverted is sufficient evidence where not denied).

[a] Affidavits in rebuttal.-On the ant may read affidavits in rebuttal, although in support of his title, by strict chancery practice, he must depend on the affidavits filed with his bill.

Farmer v. Calvert Lith., etc., Co., 8 F. Cas. No. 4,651, 1 Flipp. 228. 85. See cases passim; and generally Injunctions [22 Cyc 724].

86. Ginn v. Apollo Pub. Co., 209 Fed. 713; Hoffman v. Le Traunik, 209 Fed. 375; Nixon v. Doran, 168 Fed. 575; Littleton v. Fischer, 137 Fed. 684; American Trotting Register Assoc. v. Gocher, 70 Fed. 237; Lamb v. Grand Rapids School Furniture Co., 39 Fed. 474; Yuengling v. Schile, 12 Fed. 97, 20 Blatchf. 452; Jollie v. Jaques, 13 F. Cas. No. 7,437, 1 Blatchf. 618; Martinetti v. Maguire, 16 F. Cas. No. 9,173, 1 Abb. 356; Miller v. McElroy, 17 F. Cas. No. 9,581, 2 PaLJ 305; Scribner v. Stoddart, 21 F. Cas. No. 12,561, 8 Wkly NC (Pa.) 61; Walcot v. Walker, 7 Ves. Jr. 1, 32 Reprint 1.

[c] Defense of dedication.-Preliminary injunction will not issue against the publication of defendant's arrangement of a musical composition, although it is practically a reproduction of complainants' copyrighted arrangement thereof, complainants having also published uncopyrighted editions of the composition, the character and extent of the dedication

to the public through which cannot be determined on the affidavits and inspection of the respective scores, so that it is impossible to decide the extent of any trespass by defendant on the rights secured to complainants by the copyright, and it not appearing that defendant is unable to respond in damages. Littleton v. Fischer, 137 Fed. 684.

87.

Hoffman v. Le Traunik, 209 Fed. 375; Little v. Gould, 15 F. Cas. No. 8.394, 2 Blatchf. 165; Scribner v. Stoddart, 21 F. Cas. No. 12,561, 8 Wkly NC (Pa.) 61; Lowndes v. Duncombe, 2 Coop. t. Cott. 216, 47 Reprint 1134 (title of plaintiff must be clear).

[a] Where the facts are undisputed, or admitted, and present a clear cut question of law, however doubtful, it may be disposed of on appeal from refusal to grant an injunction pendente lite, without trenching on the discretionary powers of the court below. Associated Press v. International News Service, 245 Fed. 244, CCA [mod and aff 240 Fed. 983].

88. Bobbs-Merrill Co. v. Equitable Motion Pictures Corp., 232 Fed. 791; Benton v. Van Dyke, 170 Fed. 203; Nixon v. Doran, 168 Fed. 575; Gopsill v. C. E. Howe Co., 149 Fed. 905; De Jonge v. Breuker, 147 Fed. 763; Littlejohn v. Fischer, 137 Fed. 684; American Mutoscope, etc., Co. v. Edison Mfg. Co., 137 Fed. 262; Hubges v. Belasco, 130 Fed. 388; Dun v. International Mercantile Agency, 127 Fed. 173; Colliery Engineer Co. v. United Correspondence Schools Co., 94 Fed. 152; Harper v. Holman, 84 Fed. 224; Blunt v. Patten, 3 F. Cas. No. 1,580, 2 Paine 397; Miller v. McElroy, 17 F. Cas. No. 9,851. See Morris v. Wright, L. R. 5 Ch. 279 (injunction denied in absence of satisfactory evidence of actual contents of a new directory not yet published).

[a] Reason for rule.-"Conflicting affiants should be cross-examined." Dun V. International Mercantile Agency. 127 Fed. 173, 174.

[b] Injunction denied under rule.

[a] Plaintiff must show compli--Where neither complainant's novel ance with law.-A temporary injunction will not be granted unless complainant shows affirmatively, beyond any doubt, that he has complied with the copyright law. American Trotting Register Assoc. v. Gocher, 70 Fed. 237.

[b] Insufficient proof of copyright. -It has been held that where plaintiff has shown a copyright of a book and a copy of a book having the same title, and that defendant is publishing a book containing extracts from it, but has not shown that the copy produced is a copy of the book copyrighted, and defendant denies that it is, there is no ground for a preliminary injunction. Humphreys' writ should never issue! Homeopathic Medicine Co. v. Arm

nor defendant's photoplay was strikingly original, and, although they each dealt with circus life, the themes were differently treated, and there was sufficient difference between defendant's photoplay and complainant's novel to make it doubtful whether there had been a piracy. a preliminary injunction restraining a production of the photoplay will not be granted, a dramatization of the novel not being produced. BobbsMerrill Co. v. Equitable Motion Pictures Corp., 232 Fed. 791.

89. Boosey v. Empire Music Co., 224 Fed. 646; Ginn v. Apollo Pub. Co., 209 Fed. 713; Littleton v. Fischer, 137 Fed. 684; Hanson V. Jaccard Jewelry Co., 32 Fed. 202.

fendant is able to respond for any probable recov- | ery, a preliminary injunction may be denied.90

Keeping account and giving bond. Where a temporary injunction is refused, the court, as a condition of such refusal, may compel defendant to keep an account of all sales and profits while awaiting a final hearing,91 and to give a bond conditioned for the payment of such sum as may ultimately be decreed against him.92

Laches. Laches on the part of plaintiff in seeking relief is one of the most frequent grounds for

90. White v. Bender, 185 Fed. 921; Keene v. Wheatley, 14 F. Cas. No. 7,644 (where a preliminary injunction was refused, although the court was satisfied of plaintiff's right and defendant's infringement, because it believed the extent of plaintiff's injury to be sustained prior to the final hearing could readily be measured and be compensated in money, and the danger of loss to defendant be thus avoided).

91. Sampson, etc., Co. v. SeaverRadford Co., 129 Fed. 761; Trow Directory Printing, etc., Co. v. Boyd, 97 Fed. 586; West Pub. Co. V. Lawyers' Co-op. Pub. Co., 53 Fed. 265; Hubbard v. Thompson, 14 Fed. 689; Jollie v. Jaques. 13 F. Cas. No. 7,437, 1 Blatchf. 618; Spottiswoode v. Clark, 1 Coop. t. Cott. 254, 47 Reprint 844, 2 Phil. 154, 22 EngCh 154, 41 Reprint 900; McNeill v. Williams, 11 Jur. 344; Mawman v. Tegg, 2 Russ. 385, 3 Eng Ch 385, 38 Reprint 380; Wilkins v. Aikin, 17 Ves. Jr. 422, 34 Reprint 163.

[a] Objections to this practice."But one difficulty in all these cases is that, though keeping an account of the profits may prevent the defendant from deriving any profit, as he may ultimately be obliged to account to the plaintiff for all his gains, yet, if the work, which the defendant is publishing in the meantime, really affects the sale of the work which the plaintiff seeks to protect, the consequence is, that the rendering the profits of the former work to the complaining party may not be a satisfaction to him for what he might have been enabled to have made of his own work, if it had been the only one published: for he would argue, that the profits of the Defendant, as compared with the profits which he, the Plaintiff, has been improperly prevented from making, could only be in the proportion of eight shillings, the price of a copy of the one book, to one guinea, the price of a copy of the other. If the principle, upon which the Court acts, is-that satisfaction is to be made to the plaintiff,-I cannot see, though never knew it done, why, if a party succeeds at law in proving the piracy, the Court should not give him leave to go on to ascertain,

I

if he can, his damages at law;
or if, after applying the profits
which are handed over to him by the
defendants, he can show that they
were not a satisfaction for the in-
jury done to him, I cannot see why
the Court might not in such a case
direct an issue to try what further
damnification the plaintiff had
tained." Mawman v. Tegg, 2 Russ.
385, 400, 3 EngCh 385, 38 Reprint 380
(per Eldon, L. C.).

sus

[b] Sealing accounts.-Defendant may be required to file monthly accounts, verified by affidavit, and sealed up, the sealed papers to be opened only on order of the court. Mawman v. Tegg, 2 Russ. 385, 3 EngCh 385, 38 Reprint 380.

92. Boosey v. Empire Music Co., 224 Fed. 646; Gopsill v. C. E. Howe Co., 149 Fed. 905; De Jonge v. Breuker. 147 Fed. 763; Sampson, etc., Co. V. Seaver-Radford Co., 129 Fed. 761; Trow Directory, etc., Co. v. Boyd, 97 Fed. 586; American Trotting Register Assoc. v. Gocher, 70 Fed. 237; West Pub. Co. v. Lawyers' Co-op. Pub. Co., 53 Fed. 265 (where a pre

denying a preliminary injunction.93 But laches, in the sense of mere delay, especially where explained or excused,95 as by want of earlier knowledge of the infringement,96 is not necessarily a bar to even a preliminary injunction.97

Other grounds for denial. A preliminary injunction will not be granted on a bill which is plainly demurrable; 98 nor will it be granted to restrain the infringement of future numbers of a periodical not yet published or copyrighted," or in cases where the infringing matter can be readily reproduced in

liminary injunction was granted,
with leave to defendant to continue
to furnish the book, alleged to be an
infringement, to regular subscribers
and others with whom it had con-
tracted to deliver it, on giving bond
to keep an account of sales and to
pay such damages as might be
awarded to the complainant); Hub-
bard v. Thompson, 14 Fed. 689.

to those." Platt v. Button, 19 Ves. Jr. 447, 448, 34 Reprint 583.

Laches generally see Equity [16 Cyc 150 et seq]; Injunctions [22 Cyc 777 et seq].

94. Hein v. Harris, 175 Fed. 875 [aff 183 Fed. 107, 105 CCA 399]; Eisfeldt v. Campbell, 171 Fed. 594; Wooster v. Crane, 147 Fed. 515, 77 CCA 211.

[a] Mere delay without prejudice to defendant.-"The complainant has undoubtedly delayed long. Had the defendant shown any prejudice resulting from that delay, I should not grant the temporary injunction; but

can see no damage which has been done, except to the complainant, by the continuance of the infringement, and therefore I do not think that the laches is significant." Hein v. Harris, 175 Fed. 875, 877 [aff 183.Fed. 107, 105 CCA 399].

95. Wooster v. Crane, 147 Fed. 515, 77 CCA 211.

[a] Circumstances justifying bond in lieu of injunction.-"These cases must be viewed and dealt with from a practical standpoint. Songs of this character usually have a temporary vogue, and, if the sale is stopped just at the time that the public is keen, serious injury may be done, even though a plaintiff gives a bond or undertaking to respond. On the other hand, the financial showing of the defendant here, so far as disclosed by the papers, is not satisfactory, and, should plaintiffs ultimately prevail, they may have their labor for their pains. A further consideration is that the sale of defendant's composition cannot interfere with the sale of plaintiffs' composition by virtue of the inherent difference, generally speaking, of the tastes to which they appeal; and therefore the case is not one where plaintiffs' commercial exploitation of their composition is interfered with, but one which involves solely the rights under the statute. Under all these circumstances. I have concluded that the fair course to pursue is as follows: The motion will be granted, but injunction will be suspended, provided defendant files in the office of the clerk, five days after the entry of the order herein, a bond pending final hearing, or appeal from this order, in the sum of $3,000; also a full statement of the sale made by it up to the date of the entry of the order, and thereafter file upon the 15th and 1st days.The copyright of work of an alien of each month a statement of succeeding sales. In justice to both sides, the cause will be advanced to the March calendar for trial." Boosey v. Empire Music Co., 224 Fed. 646, 647.

93. Eichel v. Marcin, 241 Fed. 404; Hein v. Harris, 175 Fed. 875 [aff 183 Fed. 107, 105 CCA 399]; Sweet v. Bromley, 154 Fed. 754; Ricordi V. Hammerstein, 150 Fed. 450: Lewis v. Chapman, 3 Beav. 133, 43 EngCh 133 49 Reprint 52; Rundell v. Murray Jac. 311, 4 EngCh 311, 37 Reprint 868; Saunders v. Smith, 3 Myl. & C. 711, 14 EngCh 711, 40 Reprint 1100; Platt v. Button, 19 Ves. Jr. 447, 34 Reprint 583.

"The court should be particularly hesitant about granting a preliminary injunction after months of delay, and where it appears, by the affidavits of the defendants, that they did not know of the existence of the plaintiffs' manuscript until the commencement of this suit." Eichel v. Marcin, 241 Fed. 404, 411.

"The plaintiff has permitted several people to publish these dances, some of them for fifteen years; thus encouraging others to do so. That. it is true, is not a justification; but under these circumstances a Court of Equity will not interfere in the first instance. If as is represented, some of them were published only last year, and one two months ago. the Bill ought to have been confined

[a] Excuse for delay-"The laches sought to be imputed to the complainant consists in its failure to institute the suit until the defendants had been proceeding openly with their infringement for about a year. The delay, however, is satisfactorily explained. The complainant was actively engaged in the defense of a suit prosecuted by Wooster [one of defendants] in one of the courts of the state of Kansas to obtain a cancellation of the contract which made it the equitable owner of the copyrights. It obtained judgment in its favor in that suit, and shortly thereafter commenced the present one, and at once applied for a temporary injunction. The circumstances, therefore, refute rather than suggest an acquiescence in the infringement or an abandonment of the copyrights." Wooster v. Crane, 147 Fed. 515, 516, 77 CCA 211.

a

[b] Delay while law doubtful.

was sold to a British subject who
published it in 1844. The copyright
was infringed in 1849, but the state
of the law then rendered it very
doubtful whether the copyright was
protected, and the purchaser merely
protested against the infringement;
but in 1851, within a reasonable time
after the decision of a case in the
exchequer chamber had established
the general question of copyright in
an alien, he filed his bill and moved
to restrain the publication of the
pirated work. It was held that there
had been no such delay as to disen-
title him to an injunction. Buxton
v. James, 5 De G. & Sm. 80, 64 Re-
print 1027.
96.

Britannica Co., 134 Fed. 831, 1024. 67
Werner Co. v. Encyclopædia
CCA 281 [aff 130 Fed. 460]. But see
Lewis v. Chapman. 3 Beav. 133, 43
EngCh 133, 49 Reprint 52 (where in-
junction was denied because plaintiff
had full means of knowledge which
was accordingly imputed. The de-
lay was for six and one-half years,
and during one year plaintiff had
been in possession of a complete
copy of defendant's work).
97. Werner Co. v. Encyclopædia
Britannica Co., 134 Fed. 831, 1024, 67
CCA 281 [aff 130 Fed. 460].

98. 99.

754.

Ladd v. Oxnard, 75 Fed. 703. Sweet V. Bromley, 154 Fed. Compare Little v. Gould. 15 F. Cas. No. 8.394, 2 Blatchf. 165, 186 (where defendant was enjoined from