folded within and sealed from view the name of one of the above-mentioned cities or ball clubs, or are "special premium" slips. Below these 240 folded slips are the words:

This card contains 8 or more special slips. Each one entitles you to one chance on our special premium.

Evidently the scheme is for the dealer to sell the above slips for 5 cents each, while the purchaser is to receive the drinks or cigarettes or a chance on a special premium corresponding to the name of the city or club which he finds printed upon the interior of his slip upon unfolding it.

Registration was refused by the examiner upon two grounds-first, that the alleged print is not a print as defined by rule 30 for the registration of prints and labels, and, second, that it is in the nature of a lottery or game of chance, registration of which is against public policy.

Section 3 of the act of June 18, 1874, under which the commissioner received his authority for the registration of prints and labels, contains the following provision:

That in the construction of this act the words "engraving, cut, and print" shall be applied only to pictorial illustrations or works connected with the fine arts, and no prints or labels designed to be used for any other article of manufacture shall be entered under the copyright law, but may be registered in the Patent Office.

A print is defined by the rules of the Patent Office relating to the registration of prints and labels as follows, (rule 28 of the edition of March 1, 1910, rule 30 of the former rules:)

The word "print," as used in section 3 of the copyright act, so far as it relates to registration in the Patent Office, is defined as an artistic and intellectual production designed to be used for an article of manufacture and in some fashion pertaining thereto, but not borne by it; such, for instance, as an advertisement thereof.

It is further provided in rule 30 (formerly rule 32) that

no print or label can be registered unless it properly belongs to an article of manufacture and is descriptive thereof and is as above defined.

The position taken by the examiner in his first ground. of refusal is that this card, which is approximately 21 feet long and 2 feet wide, is not "used for any other

article of manufacture "-does not pertain thereto or describe or advertise the same, as required by the statute and rules; that the alleged print states that those who buy the slips will receive a cigarette or drinks in accordance with the plan indicated, but it in no sense describes or advertises to the public any kind or brand of drink, cigarette, or "any other article of manufacture; " that, on the contrary, the card itself is sold to purchasers and is the article of manufacture forming the subject-matter of the alleged print.

The position taken by the examiner is thought to be right and is in accord with the holding of the commissioner that the print to be registrable must describe the article of manufacture with which it is connected or which it is intended to advertise, made in ex parte Royal Medicine Company (100 O. G., 2775), in ex parte Regina Music Box Company (100 O. G., 1112), and in ex parte The Lion Fig and Date Company (102 O. G., 823), and that the article must be separate and independent of the print itself, made in ex parte Barnhart Bros. & Spindler (87 O. G., 2118).

The second ground upon which the examiner refused the registration is that the appellant's alleged print is a device employed to further a lottery scheme or game of chance and that if it would not be a violation of the Federal laws respecting lotteries and similar devices for a bureau of an executive department of the United States. Government to give its approval to appellant's device by registering the same it is certainly against public policy to do so.

Section 3894 of the Revised Statutes as amended by the act of September 19, 1890 (26 Stat. L., 465), prohibits the use of the mails to further lottery or other similar enterprises. The act of March 2, 1895 (28 Stat. L., 963), prohibits the carriage by independent interstate carriers of lottery tickets. These statutes were respectively upheld by the United States Supreme Court in Horner v. United States (147 U. S., 499) and Champion v. Ames (lottery case), (188 U. S., 321). In the case of Horner v. United States, supra, the court quoted with approval the following definition from the Century Dictionary of the term "lottery: "

A scheme for raising money by selling chances to share in a distribution of prizes; more specifically, a scheme for the distribution of prizes by chance among persons purchasing tickets,

the correspondingly-numbered slips or lots, representing prizes or blanks, being drawn from a wheel on a day previously announced in connection with the scheme of intended prizes. In law the term lottery embraces all schemes for the distribution of prizes by chance, such as policy playing, gift exhibitions, prize concerts, raffles at fairs, etc., and includes various forms of gambling.

According to appellant's scheme every purchaser of a slip for 5 cents takes his chance of receiving therefor something which he considers worth more or less than 5 cents. The fact that there are no blanks in appellant's scheme does not prevent it from being a lottery, independently of the fact that the special slip merely entitles the holder to one chance on a special premium.

The contention of appellant that the fact that its device may be used in a lottery scheme affords no proper ground for refusing its application in view of the alleged practice of the office of granting patents on devices used for similar purposes is unsound.

In the case of Schultze v. Holtz (81 O. G., 2249), the United States Circuit Court for the Northern District of California, held invalid certain patents for coin-controlled apparatus on the ground that the only use to which the invention had been put or applied was for gambling purposes. In conformity with the holding of the court in that case it has long been the practice of this office to refuse patents upon devices for that purpose.

Both grounds for refusing registration urged by the examiner are believed to be right, and his decision is accordingly affirmed.

[156 Patent Office Gazette, pp. 1065–1066.]

ARDEN v. LUBIN et al.

(Supreme Court, Appellate Division, First Department. July 10, 1916.)

Arden v. Lu- COPYRIGHTS-CONSTRUCTION-PERCENTAGE CONTRACTS. bin, July 10, 1916.

Where an author transferred his rights to a moving picture scenario in return for royalties of 20 per cent of the gross receipts derived from its use, he could recover only 20 per cent of the amount actually received by the transferee; and if the latter let the work to a booking agency, he need account only for the amount received from, and not by, such agency.

Appeal from special term, New York County.

Suit for injunction and other relief by Edwin Arden against Siegmund Lubin and another. Judgment for plaintiff, and defendants appeal. Judgment modified.

Argued before Clarke, P. J., and McLaughlin, Scott, Smith, and Page, JJ.

Ralph Polk Buell, of New York City, for appellants. Mortimer Fishel, of New York City, for respondent. MCLAUGHLIN, J. This appeal is from a judgment canceling a contract between plaintiff and the defendant Lubin, enjoining him and the other defendant from exhibiting, selling, or leasing motion pictures founded on or connected in any way with certain specified plays, and directing an accounting of the proceeds derived by them from the exhibition of the play termed "The Eagle's Nest."

The plaintiff is an actor and dramatist. On the 19th of February, 1914, he entered into a contract with the defendant Lubin, which was thereafter modified by two other written agreements, for the production of motion pictures founded upon plays written by him. At the time the contract and modifications were made the plaintiff was the owner of dramatic rights and the original Page 110. copyrighted plays entitled "The Eagle's Nest," "Zora," "Raglan's Way," "The Ladder of Life," "The Pilot," and "The Question." By the terms of the contract he was to receive $250 per week for each week in which he was actually employed in the making of the pictures, and thereafter the defendant Lubin agreed to pay him"a sum of money equal to twenty per cent (20%) of the gross sales or rentals and extra charges of whatsoever name and nature derived by the said Siegmund Lubin from the exploitation and distribution of the said motion pictures" of specified plays "throughout the United States of America."

He also agreed that on the 1st of August, 1914, and quarterly thereafter he would render to the plaintiff a true and accurate statement of all gross sales, rents, and extra charges arising in any manner whatsoever, and with such statement would remit the royalties agreed upon. The agreement further provided, if he did not render such statements, keep accurate books of account, or pay the royalties as agreed, that the plaintiff might cancel the agreements, in which case all rights of Lubin should terminate, and the copyrights of the plays should be retransferred.

Page 111.

The complaint alleged, in substance, a failure upon the part of Lubin to perform the terms of the contract on his part; that he had failed to produce any of the plays, except "The Eagle's Nest," and for such production had failed to pay the plaintiff 20 per cent of the gross sales; that he had failed to make the statements agreed to be made; that the Lubin Manufacturing Company claimed some interest or right under Lubin's contracts with the plaintiff; that the plaintiff had demanded that the defendants and each of them pay him the amount due under his contract, which they had refused to do, and they had also refused to render true and correct statements of the amounts received from the production of the picture play "The Eagle's Nest." The judgment demanded was that the contracts be canceled, that the defendants be enjoined from producing any picture plays founded upon the plays specified, and that defendants account. The answer put in issue the allegations of the complaint as to the keeping of accounts and the rendition of statements, and alleged affirmatively that the defendants had paid to the plaintiff the royalties agreed upon. The judgment appealed from granted the plaintiff substantially all of the relief prayed for in the complaint.

After a consideration of the record on appeal I am of the opinion that the judgment is right, except as to the construction put upon the contract with reference to the amount of royalties directed to be paid to the plaintiff. The contract, as already indicated, provided that the plaintiff was to be paid 20 per cent of the gross sales or rentals derived by Lubin. The plaintiff contends, and the trial court so held, that the 20 per cent is to be figured on payments made by the exhibitors of the plays, while the defendants contend that it is to be computed on the amounts received by the defendants.

I think the defendants' contention is correct. It is the amount actually received by the defendants on which the 20 per cent is to be computed. Having produced a play, if they see fit to put it in the hands of a booking agent, the 20 per cent is to be computed, not upon what the booking agent or the exhibitor of the play receives, but upon what is paid by them to the defendants. The word 66 gross " was inserted in the contract, undoubtedly, for the purpose of preventing Lubin's charging against the moneys received by him any sum whatever, either for manufacturing, booking, or producing the plays.