domain, and would inhere in the first novelizer, whether he were Clyde Fitch or another; any right so to change the play that a court would still consider it a "copy of the play is within the exclusive control of the Macmillan Company. This conclusion is in no sense contrary to the decision in New Fiction Publishing Co. v. Star Co. (220 Fed. 994), because the plaintiff there did not have copyright at all, but only a license to publish the story serially, a quite limited part of the copyright and one not vesting in the licensee any right to sue an infringer, any more than an exclusive right to vend a patented invention would have enabled the licensee to sue. Judge Sprague, indeed, in Roberts v. Myers (20 Fed. Cas. No. 11906), held that an assignment of the right to perform a play for a limited period would give the assignee the right to sue; but that was certainly an extension of the rules applicable to patents and a step further than it is necessary to go in the case at bar.

If, on the other hand, the play right and copyright be deemed to be indivisible, in such sense that one may not be assigned without the other, while it is true that the Macmillan Company would become only a licensee under the assignment to Clyde Fitch, yet there would be a fatal defect in the copyright itself. For in that case the Macmillan Company could hardly be regarded as the "proprietor" of the indivisible common-law literary property out of which alone the statutory play right and copyright could be created. It can hardly be possible to treat this as an indivisible right for the purpose of one kind of assignment and as divisible for another.

I conclude, therefore, that the plaintiff has brought this suit upon the mistaken theory that the right of novelization existed under the earlier act, when in fact the statute created only play right and copyright. It is, indeed, a very troublesome question whether the Macmillan Company could succeed as owner of the copyright in holding the defendant for publishing a copy of the play. I have not the least doubt that the story was a cheap and vulgar plagiarism. The parallelism is so complete and minute as to admit of not the slightest doubt that it was slavishly pirated in plot and characters; but it has never been very satisfactorily established, and probably never can be, at what point a plagiarism ceases to copy the expression of an author's ideas and steals only the ideas themselves. No one can test that question but the Macmillan Company.

Page 745.

The bill will be dismissed for failure of title, with

costs.

[230 Federal Reporter, pp. 743-746.]

FOSTER-MILBURN CO. v. CHINN.

(Court of Appeals of Kentucky. June 19, 1909.)

Foster Mil- 1. EVIDENCE-HEARSAY-LIBEL. burn Co. v. Chinn, June 19, 1909.

In an action for damages for the publication of a forged recommendation of patent medicine pills, a member of a medical association may not testify that an officer of the association analyzed the pills, and found them worthless, as such evidence is hearsay.

2. LIBEL AND SLANDER-FORGED RECOMMENDATIONS-PATENT MEDICINE EVIDENCE.`·

In an action for the publication of a forged recommendation of a patent medicine, evidence that plaintiff was ridiculed and laughed at by his friends is admissible.

3. LIBEL AND SLANDER-FORGED RECOMMENDATION-PATENT MEDICINE

EVIDENCE.

In an action for the publication of a forged recommendation of a patent medicine, evidence that there was a scale of prices paid for cards of this sort, the amount paid being dependent upon the office of the person, is admissible as tending to show that persons knowing of the custom might conclude that plaintiff had sold his signature.

4. LIBEL AND SLANDER-RECOMMENDATION OF PATENT MEDICINE—

EVIDENCE-IMPRESSIONS.

Where a person not a doctor sues for damages for the unauthorized publication of a recommendation of a patent medicine, physicians may not testify as to the impressions which they would draw from the fact that a person signed such recommendation; the pleading not asking, and the proof not showing, any special damages.

5. LIBEL AND SLANDER-ACTIONABLE LIBEL.

'Words verbally spoken are not actionable per se ordinarily, unless they impute a crime, but words which are. written or printed are actionable when they subject the person to disgrace, ridicule, odium, or contempt in the estimation of his friends and acquaintances or the public. 6. TORTS PRIVACY-PICTURES.

A person is entitled to the right of privacy as to his picture, and that the publication of the picture of a person without his consent as a part of an advertisement for the purpose of exploiting the publisher's business is a violation of the right of privacy, and entitles him to recover without proof of special damages.

7. LIBEL AND SLANDER-FORGED RECOMMENDATION-PATENT MEDI

CINE.

The publication in a patent-medicine magazine having a circulation of 8,000,000 of a person's picture and a sketch of him, along with a forged letter of recommendation, is actionable without allegation or proof of special damages. 8. LIBEL AND SLANDER-MITIGATION OF DAMAGES.

In an action for damages for the publication of a forged recommendation of a patent medicine along with the person's picture in a patent-medicine magazine, that the defendant published it at the instigation of an agent honestly believing it to be genuine may be considered by the jury in mitigation of damages.

9. APPEARANCE-APPEAL AS APPEARANCE.

Where the service of process is insufficient to give the court jurisdiction, but defendant appeals to a reviewing court, it is in effect a general appearance in the action.

O'Rear, J., dissenting.

Appeal from circuit court, Mercer County.

"To be officially reported."

Action by J. P. Chinn against the Foster-Milburn Company for libel. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Marshall, Rebadow & Thomas, J. F. Vanarsdall, W. B. Smith, and Smith & Smith, for appellant.

J. Morgan Chinn, E. H. Gaither, and L. M. Smith, for appellee.

HOBSON, J. The Foster-Milburn Company is a cor- Page 365. poration with its principal office at Buffalo, N. Y. Among other things it manufactures Doan's Kidney Pills, and publishes, to advertise the pills, "Doan's Directory." In this directory it printed a picture of J. P. Chinn, and, under the picture were these words:

Senator Chinn, famous Kentucky horseman, gives testimony. Was cured by Doan's Kidney Pills when miserable with pain in the back. Senator Jack Chinn is a prominent figure in the bluegrass country of Kentucky, famous for its beautiful women and for its fine blooded horses. Col. Chinn, who is very popular and well known, was walking with Gov. Goebel when the latter was fatally shot. For many years he has been a large breeder of thoroughbred stock. Col. Chinn says he is glad to acknowledge the benefit he has derived from using Doan's Kidney Pills. His letter follows:

FOSTER-MILBURN Co., Buffalo, New York.

GENTLEMEN: I join in indorsing Doan's Kidney Pills which were recommended to me a few months ago when I was feeling miserable. Had severe pains in the back, was restless and languid. A few boxes of pills effectually routed the ailment and I am glad to acknowledge the benefit I have derived.

Yours, truly,

[Facsimile reduced]

J. P. CHINN.

J. P. Chinn brought this suit against the Foster-Milburn Company charging that he had not written or signed the letter, that the publication was without his authority, and charging that it had brought him into ridicule and greatly mortified him, and otherwise damaged him in the sum of $25,000. The defendant filed an answer traversing the allegations of the petition after a motion to quash the process had been overruled. A trial was had before a jury, which resulted in a verdict for the plaintiff for $2,500. The court entered judgment on the verdict, and the defendant appeals.

Dr. A. N. McCormick was allowed to testify on the trial as a witness for the plaintiff that he was a member of the American Medical Association; that an officer of that association had made an analysis of Doan's Kidney Pills; that he had seen a report of the analysis, and that the report showed that the pills were composed of certain ingredients; that a pill thus composed was harmless, but of no value, and that Doan's Kidney Pills were a fraud. The witness had not analyzed the pills. He knew nothing of what they contained, except what he had read from the report of the officer who had made the examination. This evidence was incompetent. A witness who has made a chemical analysis himself may testify as to the analysis which he has made, but all that Dr. McCormick knew was purely hearsay as to the nature of the pills, and his testimony that they were a fraud and valueless should not have been admitted because it was based upon the knowledge he had received of the contents of the pills from the report of their analysis. This evidence was very prejudicial to the defendant, as it stamped the pills as a fraud. The contents of the pills can only be proven by some person who knows the facts. Over the defendant's objection, Dr. A. D. Price was allowed to testify as follows:

Q. Are you acquainted with the general reputation among the medical profession, and intelligent people generally, of people who sign their names to medical testimonials in these medical almanacs-in what regard they are held?—A. The medical profession pays no regard to anything of that kind that they may see.

Q. Are you acquainted with that reputation from having heard it discussed among the medical profession-in which people who sign these testimonials are held?—A. I suppose they get any kind they want. A reputable physician does not regard a testimoniai of that kind as worth anything.

Q. In what repute are people who do that sort of thing held?— A. In bad repute,

Dr. M. L. Forsythe was also allowed to testify thus: From your acquaintance with the medical profession generally are you acquainted with the repute in which one is held whose name appears in a patent medicine advertisement?-A. Yes; I have heard it discussed, and have read of it a good deal. Q. In what repute are such men held by the profession-speaking as a scientific man-as doctor?-A. In bad repute.

Dr. C. P. Price and Dr. A. T. McCormick were allowed to give similar testimony.

In Bradstreet Co. v. Gill (72 Tex. 115, 9 S. W. 753, 2 L. R. A. 405, 113 Am. St. Rep. 768), Gill sued the Bradstreet Company for a report published concerning him by it as a commercial agency in which he was reported "in blank." The court held that what the words "in blank" meant according to the key furnished by the defendant to its subscribers might be shown, but that it was improper to show what effect such a report would have upon plaintiff's standing in commercial circles. The court said:

It was only the opinion of the witnesses about a matter that the jury were capable of judging and which it was their duty to determine. If the rating meant that the plaintiff had no credit and no capital, and such rating was false, it was libelous, and actionable per se, and the jury should have been left to estimate its effect without the influence of the opinions of witnesses, however competent to judge of such matters. (Townsend on Slander and Libel, 297.) If the plaintiff suffered special damage by loss of credit, the injury and the cause of it were susceptible of proof, direct proof by the persons with whom his credit suffered. If there was a general loss of credit or breaking down of commercial character and it was not susceptible of proof, it was a matter of opinion for the jury only, unaided by the opinions of outsiders. In McDuff v. Detroit Evening Journal Co. (84 Mich. 1, 47 N. W. 671, 22 Am. St. Rep. 673), similar evidence Page 366. was held incompetent. The court said:

The rules of pleading are founded upon reason and fairness. The issue in ordinary lawsuits is limited. The parties are more or less familiar with the transaction involved, and the defendant may fairly be presumed to have some knowledge of the testimony against him, and what witnesses he can produce to meet it. In a libel suit, under an allegation of general damages only, the issue is: What damages has the plaintiff suffered generally in the community where he is known by the publication of the libelous article, and not what he had suffered in individual instances, where those who have known him have treated him differently from what they did before. In the latter case, if he wishes to recover damages he must allege them. No other rule would be fair and reasonable.