Page 831.

The following is the opinion of the court below by Lehman, J.:

The plaintiff in his complaint attempts to set forth two causes of action, both based upon the production of a moving-picture film or play entitled, "The Inside of the White Slave Traffic," in which the producer depicts a factory and building bearing the plaintiff's firm name of August G. Merle & Co. The defendant has demurred to both causes of action. The first cause of action is for libel, and the only allegations which are, in my opinion, possibly material to a personal action for libel as distinguished from an action for libel of the plaintiff's business, are: That the plaintiff does business under the firm name of August G. Merle & Co., has an excellent name and reputation, and that he employs a large number of hands; that the defendants have produced and exhibited a moving-picture film or play called "The Inside of the White Slave Traffic," wherein they purported to portray the life of those engaged or associated in the said whiteslave traffic, wherever possible showing the actual places where the traffickers operate; and that in said play they showed the building wherein the plaintiff's business is located, and prominently displayed thereon and as part thereof the plaintiff's name and his business sign, "August G. Merle & Co., Infants' and Children's Headwear," and also showed a factory purporting to be located in said building and to be plaintiff's said establishment and factory as places where the said cadets and traffickers plied their vicious trade and obtained victims from among the girls employed in said building and establishment, and as places used by said cadets and traffickers as rendezvous between them and the unfortunate victims, whom they succeeded in obtaining or procuring in said building and factory; "that the defendants thereby falsely, untruthfully, and maliciously charged, and intended to charge the plaintiff with being in some way identified or connected with or related to the said white-slave traffic or system or with said cadets or traffickers, with allowing or permitting the said trafficking in his establishment or in and around the building wherein his place of business was located, either for gain or otherwise, and that in the said building and in the plaintiff's said establishment there was grave and serious danger for the girls and women and for the young men employed therein that they might be approached or enticed or seduced or molested by these cadets or white-slave traffickers and induced, corrupted, enticed, or forced into a life of vice, crime, shame, and prostitution, and that in some way the plaintiff had knowledge or notice of this condition of affairs, and that he participated therein, or at least acquiesced in or countenanced the same."

[1, 2] A suit for libel based upon a moving-picture production is a somewhat novel proceeding, but there is no doubt that if the production tends to bring a person into disrepute it may give rise to such an action. The serious question in this case is. however, whether the alleged libel is a libel directed against the plaintiff's business or a libel against himself personally, for concededly the complaint does not contain allegations of special damage sufficient to state a cause of action if the libel is directed

only against his business. The distinction between the two classes of cases is pointed out in the case of Marlin Fire Ins. Co. v. Shields (171 N. Y. 384, 390, 64 N. E. 163, 59 L. R. A. 310). The rule seems to be that words spoken or written primarily against a man's business can not give rise to an action for damages without special damage unless they also directly charge the plaintiff with a personal wrong.

[3, 4] Whether the picture used in this case does charge the plaintiff personally with any wrongdoing must be determined from the description of the picture itself, and, though upon this motion the description of the picture must be taken as true, the reasonable inferences which can be drawn from that picture can not be extended by innuendo. It seems to me that the only fair inference to be drawn from that picture is that it contains a charge that the plaintiff's place of business is a place where cadets and white slave traffickers ply their vicious trade and obtain victims and is used as a rendezvous between them and their victims, and so far supports at least the innuendo that the plaintiff permits the traffic to proceed upon his premises. It does not, however, charge the plaintiff with actual knowledge of such traffic. The case, therefore, seems to me to come directly down to the question: Does a charge that a place of business where many girls are employed is used as a place where the whiteslave trade may be recruited and as a rendezvous for cadets and their victims reasonably imply such moral wrong against the owner of the place of business as would bring him personally into general disrepute?

It seems to me quite clear that, even if we may assume that the owner of the place of business is ignorant of such conditions, yet public opinion would hold him in abhorrence for being so careless of the conditions surrounding the place where his women employees work that evil men can use the place to entice them into vice. Moreover, it would seem that a charge that a business is being carried on in a vicious manner might well reasonably imply that the owner of the business is morally responsible therefor. The defendant, however, relies upon the case of Kennedy v. Press Publishing Co. (41 Hun 422), in which it was held that a charge that the plaintiff's saloon was the resort of improper characters, and that the influence of association had there was bad, was held Page 832. not to be a libel on the plaintiff personally, and on the case of Bosi v. N. Y. Herald Co. (33 Misc. Rep. 622, 68 N. Y. Supp. 898), affirmed on opinion below (58 App. Div. 619, 68 N. Y. Supp. 1134), where a similar construction was given to an article charging that the plaintiff's restaurant was a resort favored by anarchists. Both these cases seem to rest upon the principle that a restaurant or saloon keeper is not personally responsible for the character of his guests, and that therefore the articles affect the plaintiff only in his business; but, whatever may be the moral responsibility of a saloon or restaurant owner to keep out vicious guests, the measure of responsibility resting upon a factory owner, who has complete control of his premises and can restrict visitors there in any way he sees fit, is obviously governed by different considerations.

It follows that the demurrers to the first cause of action are overruled, with leave to the defendants to withdraw the demurrers and serve an answer within 20 days after notice of entry of order herein.

[5, 6] The second cause of action sets forth practically the same facts as the basis of a cause of action for a violation of section 50 of the civil rights law, in that the defendants used the plaintiff's name for the purposes of trade without his consent. It seems to me that no cause of action can be predicated upon the use made of plaintiff's name in the manner set forth. "The statute is, in part at least, penal and should be construed accordingly." (Binns v. Vitagraph Co., 210 N. Y. 51, 103 N. E. 1108.) The use of the plaintiff's name in this case is not for the purpose of obtaining trade or advertisement; apparently, it merely appears in the picture because it was placed upon the building which is a part of the picture. Certainly where a man places his sign upon the outside of a building he can not claim that a person who would otherwise have a right to photograph the building is precluded from using that picture because the sign also appears on the picture. To constitute a violation of the civil rights law I think it must appear that the use of the plaintiff's picture or name is itself for the purpose of trade and not merely an incidental part of a photograph of an actual building, which can not be presumed to add to the value of the photograph for trade or advertising, and even a use that may in a particular instance cause acute annoyance can not give rise to an action under the statute unless it fairly falls within the terms of the statute. It is true that the complaint also states that the picture showed a factory “purporting" to be located in said building and to be plaintiff's said establishment. If the defendants actually used the plaintiff's name in describing the interior of the factory and did not merely photograph the exterior, then it might well be that such use would be within the purview of the statute; but I think that the complaint merely sets forth that in some manner from the nature of the pictures the inference arises that the factory belonged to the firm whose name was on the outside, and that the photograph of this sign constitutes the only use of the plaintiff's name.

It follows, I think, that the demurrer to the second cause of action should be sustained, with leave to the plaintiff to serve an amended complaint within 20 days after notice of entry of order herein. No costs.

Argued before Ingraham, P. J., and McLaughlin, Scott, Dowling, and Hotchkiss, JJ.

M. Cukor, of New York City, for plaintiff.

W. F. Unger, of New York City, for defendant.

PER CURIAM. Order affirmed, with $10 costs and disbursements, on the opinion of Lehman, J., with leave to defendant to withdraw demurrer and answer on payment of costs. Order filed.

[152 New York Supplement, pp. 829–832; 166 Appellate Division Reports, pp. 376–381.]

MECCANO, LIMITED, v. WAGNER ET AL.

(District Court, Southern District Ohio, W. D. June 12,

1916.)

1. TRADE-MARKS AND TRADE NAMES-UNFAIR COMPETITION-DECEPTION-NECESSITY.

Where defendant dressed his goods to resemble those of complainant, and in every way attempted to palm them off as complainant's, evidence that customers were deceived and purchased defendant's goods as those of complainant is unnecessary to establish unfair competition.

2. TRADE-MARKS AND TRADE NAMES-UNFAIR COMPETITION-WHAT CONSTITUTES.

Complainant and its predecessor originated a mechanical building toy for children. The toy was extensively advertised and sold in distinctive boxes, which were accompanied by manuals showing how the various parts could be combined to form many interesting and instructive appliances, such as bridges, and the like. The outfits were interchangeable, and consisted of various numbers of parts to which additions might be made. Defendant prepared a mechanical toy along exactly the same lines, selling it under a different name, but under the same dress as that of complainant's and copying its manual. Held, that in view of the fact that defendant sold its toy for a less price and attempted to palm off its goods for those of complainant, it was guilty of unfair competition.

3. TRADE-MARKS AND TRADE NAMES-UNFAIR COMPETITION-WHAT CONSTITUTES.

Where complainant established a business system peculiarly its own, defendant is guilty of unfair competition in attempting to appropriate such business system and substitute its goods for those of complainant.

4. COPYRIGHTS-MATTER WHICH MAY BE COPYRIGHTED.

While only those writings and discoveries which are the result of intellectual labor may be copyrighted, a manual, instructing how to use a mechanical toy prepared for children, which was more than a mere advertisement, being a guide to the combinations which children might form with the toy, and explaining many principles of mechanics, may be copyrighted.

5. COPYRIGHTS--INFRINGEMENT

INTENTION.

While intention to infringe is immaterial, if infringement of the copyright otherwise appears, yet an intention to infringe may be considered in determining whether there was an actual infringement.

6. Copyrights—INFRINGEMENT

PARAPHRASING.

The mere paraphrasing of a copyrighted work constitutes an infringement.

Page 914.

7. COPYRIGHTS-INFRINGEMENT-WHAT CONSTITUTES.

To appropriate a substantial portion of a copyrighted work which diminishes the value thereof constitutes an infringement.

8. COPYRIGHTS-APPLICATION-BLANKS.

. Where the duly authorized agent of the owner who made an affidavit for a copyright failed to strike from the printed form alternative statements of fact applicable to the particular capacity of the affiant, but it appeared that no fraud or injury was intended to the Government, an infringement of the copyright granted cannot be defended on such ground.

9. COPYRIGHTS-VALIDITY-AFFIDAVIT.

That the agent of the foreign owner who filed an affidavit for a copyright did not actually see the printing of the copyrighted work in the United States will not invalidate the copyright where he engaged a printer to do the work.

10. COPYRIGHTS-VALIDITY-ABANDONMENT.

Where complainant copyrighted a manual for use in connection with the sale of its mechanical toys, the fact that it copyrighted a manual issued in 1912 was not an abandonment of the 1911 manual, the latter one being a new work.

Complainant, an English company, sold mechanical toys, and editions of a manual, copyrighted in the United States, were printed in England and accompanied the outfits sold in the United States. Copyright act March 4, 1909, ch. 320, secs. 15, 31, 32; 35 Stat. 1078, 1082, 1083 (Comp. St. 1913, secs. 9536, 9552, 9553), respectively, provide that works not reproduced for sale may be copyrighted; that any book published abroad with the authorization of the author or copyright proprietor may be imported, but that works imported in violation of the act shall be destroyed. Held, that such importation and disposal of the English editions did not invalidate the copyright.

12. COPYRIGHTS-ANTICIPATION-WHAT CONSTITUTES.

Complainant's copyrighted manual for use in connection with a mechanical toy is not invalid because of a previous uncopyrighted work for use in connection with such toys, where the uncopyrighted work did not contain all of the matter in the copyrighted book.

13. PATENTS-VALIDITY-PRESUMPTIONS.

A patent is prima facie valid.

14. PATENTS-PATENTABILITY-SUBJECT MATTER OF PATENT.

A rectangular plate and a so-called sector for use in connection with a mechanical building toy, consisting of