Page 647.

nition of the fact that his literary work was in addition to the duties which he was normally required to perform. But, as we think, the conclusion of the court below does not give proper weight to the testimony as to the nature and scope of the privilege thus accorded. It was explicitly testified by the abbot that Father Wirth was permitted to keep the moneys in question, not as his own, but to have their use for charitable purposes with the permission of his superiors. It was this permission which was originally given and which the complainant's abbot renewed. This testimony was not controverted and, in view of the constitution of the order, we find no ground for treating the permission as being of a different character. It is said that it does not appear how the decedent while in Minnesota, for example, could have expended the money for the charitable purposes of the order in New Jersey. But the purposes of this order were broadly charitable and religious; the decedent prosecuted his educational and religious work with the abbot's consent and the use of these moneys for charitable purposes wherever he was located for the time might well be in furtherance of the objects of the order. It may have been the concession of a special privilege to permit the decedent to act directly in the distribution of the moneys which he had earned by his additional labors instead of turning them over to the head of the order, but we can not say that it was a permission without restriction or one which essentially altered his relation to the order and his fundamental duty while he remained a member of it.

On the contrary, we agree with the circuit court, not only in its finding of fact that the permission was limited as stated, but also in its holding that in view of the basic law of the organization there is no warrant for the conclusion that the abbot had any authority to allow Father Wirth to assert an independent title or to hold the property as absolutely his own. It is said that the "Rule of St. Benedict" recognizes the right of the member of the order to keep whatever the abbot permits him to have. But this plainly refers to the necessities of life and not to accumulations in direct antagonism to the principles of the society. Whatever indulgence may have been shown to the decedent with respect to the submission of appropriate accounts, it can not be said that while his membership continued he had, or could have, the privilege of accumulating an individual estate for his

own benefit and free from his obligations to the order. This could not but be regarded as violative of the constitution of the complainant and beyond the competency of its official head to grant.

2. We are thus brought to the question whether the requirement which lies at the foundation of this suit is void as against public policy; that is, whether, by reason of repugnance to the essential principles of our institutions, the obligation, though voluntarily assumed, and the trust arising from it can not be enforced. In support of this view, it seems to be premised that a member of the order can be absolved from his vows only by the action of the head of the church, and that unless the requisite dispensation is thus obtained the member is bound for life in temporal, as well as in spiritual, affairs. This, it is said, is the necessary import of testimony given by the abbot. It is thus assumed that the vows in connection with the "Rule" bind the member in complete servitude to the order for life or until the head of the church absolves him from his obligations; and it is concluded that an agreement for such a surrender, being opposed to individual liberty and to the inherent right of every person to acquire and hold property, is unenforceable in the civil courts and can not form the basis Page 648. for an equitable title in the complainant.

This argument, we think, disregards the explicit provision of the complainant's constitution as to voluntary withdrawal. It overlooks the distinction between civil and ecclesiastical rights and duties; between the Order of St. Benedict of New Jersey, a corporation of that State, and the monastic brotherhood subject to church authority; between the obligation imposed by the corporate organization and religious vows. As we have said, the question here is not one of canon law or ecclesiastical polity. The requirement of complainant's constitution must be read according to its terms, and its validity must be thus determined. Granted that it is to be examined in the light of that to which it refers, still, obligations which are inconsistent with its express provisions can not be imported into it. This constitution, as already stated, definitely provides:

Membership is lost at once

2. By voluntarily leaving the order for any purpose whatso(Sec. XI.)

ever.

Page 652.

ideal, that all who believed should be together and have all things common. It was intended to be in fact, as they frequently styled themselves, but a single family upon a large scale with only one purse, where self was to be abjured and the general good alone considered.

The court, in viewing it solely as a business undertaking, held that the organization" was not prohibited by any statute or in contravention of any law regulating the possession, ownership, or tenure of property." (See also Speidel v. Henrici, 120 U. S. 377; Gasely v. Separatists, 13 Oh. St. 144; Waite v. Merrill, 4 Maine, 102; Gass v. Wilhite, 2 Dana, Ky. 170; State v. Amana Society, 132 Iowa, 304; 8 L. R. A., N. S., 909, note; 11 Ann. Cas. 236, note.)

It is said that in these cases the contracts had been fully performed and that the effort was made either to partition or distribute the property of the society or to recover the value of property which had been actually conveyed or services which had been rendered to it. But the validity of the agreements there in question, against the objection based upon public policy, was distinctly recognized.

In the present case there was no infringement of Father Wirth's liberty or right to property. He did not withdraw from the order. He had agreed, by accepting membership under the complainant's constitution, that his individual earnings and acquisitions, like those of other members, should go into the common fund and, except as required for the maintenance of the members, should be used in carrying out the charitable objects of the order. It is not unlikely that the copyrights upon his books derived their commercial value largely, if not altogether, from his membership. Certainly, the equitable ownership of these copyrights, by virtue of his obligation, vested in the complainant and the moneys in question when received became in equity its property and were subject to its disposition. As to both, Father Wirth stood in the position of a trustee.

The further objection that the claim is barred by the statute of limitations was held by the circuit court to be untenable, and we agree with that view. The applicable limitation is six years (Revised Laws, Minnesota, 1905, sec. 4076) and the bill was filed within six years after Father Wirth's death. There is no such clear evidence of repudiation of the trust as would warrant the conclusion. that the statute began to run at an earlier date.

The decree of the circuit court of appeals is reversed and that of the circuit court is affirmed.

It is so ordered.

[234 U. S. Reports, pp. 640-652; 34 Supreme Court Reporter, pp. 932-936.]

OUTCAULT ET AL. v. LAMAR ET AL.

(Supreme Court, Appellate Division, First Department. December 10, 1909.)

1. COURTS-FEDERAL COURTS-JURISDICTION-SUBJECT MATTERCOPYRIGHTS.

Under Revised Statutes, sec. 629, subd. 9 (U. S. Comp. St. 1901, p. 504), giving to the circuit courts original jurisdiction to all suits at law or in equity arising under the copyright laws of the United States, the Federal courts have exclusive jurisdiction of cases arising under such laws.

2. COURTS

JURISDICTION-NATURE OF CONTROVERSY-COPYRIGHTS. A State court has jurisdiction of a suit for unlawful competition, unless it appears from the complaint that plaintiff is seeking to enforce a right based on the copyright laws of the United States, and, if this does not appear, the Federal courts have no jurisdiction of the case in the absence of diversity of citizenship, though the answer presents a defense based on the copyright laws.

3. COPYRIGHTS-ASSIGNMENT

SCOPE-CARTOONS-DRAMATIZATION.

Assignment of the right to print and publish certain cartoons and to have them copyrighted, reserving dramatization rights to the author, did not authorize the assignee to copyright a drama or play based on the cartoons or the situations therein depicted, whether written at the time of the assignment or thereafter.

4. COPYRIGHTS-ASSIGNMENT-OPERATION-EXCLUSIVE RIGHT TO

NAME.

Where an author of certain cartoons entitled "Buster Brown" authorized an assignee to print, publish, and copyright them, the assignee's copyright did not give to it the exclusive right to the use of the title.

5. COPYRIGHTS-COPYRIGHT NAME-PROTECTION.

Outcault V. Lamar, Dec. 10, 1909.

The holder of a copyright is entitled to protection in the copyright name as well as in the literary production where there is an infringement in whole or in part of the produc- Page 931. tion which is the subject of the copyright, but the name alone is not protected by the copyright.

6. COURTS-STATE AND FEDERAL COURTS-UNLAWFUL COMPETI

TION-COPYRIGHT.

66

An artist conceived a series of cartoons entitled "Buster," Buster Brown," and "Tige," dealing with the adventures of a small boy and his dog. The artist assigned the right to print and publish the cartoons, and copyright the same to defendants' assignor, from which defendants procured alleged rights of dramatization. Held, in a suit by plaintiffs, who had secured the rights of dramatization from the artist, for unlawful competition in the use of the words "Buster," "Buster Brown," and Tige," in connection with their dramatization, that the fact that plaintiffs in anticipation of defendants' defense proved as a part of their main case that the assignment to defendants did not cover dramatization rights did not show that plaintiffs' case was based on the copyright statutes so as to deprive the State courts of jurisdiction.

Appeal from special term, New York County.

Action by Richard F. Outcault and others against Al Lamar and another. From a judgment dismissing the complaint, plaintiffs appeal. Reversed, and new trial granted.

Argued before Ingraham, Laughlin, Houghton, McLaughlin, and Scott, JJ.

Nathan Burkan, for appellants.

William A. McGrath, for respondents.

LAUGHLIN, J. The theory upon which the complaint was dismissed, according to the conclusions of law contained in the decision, was that the issues in this action. involved the determination of rights under a copyright, and that the Federal courts have exclusive jurisdiction thereof. By virtue of the provisions of section 629, subd. 9, Revised Statutes U. S. (U. S. Comp. St. 1901, p. 504), circuit courts are given original jurisdiction "of all suits at law or in equity arising under the patent or copyright laws of the United States." It is well settled that the Federal courts have exclusive jurisdiction of the cases arising under the statute quoted. We are of opinion that this suit does not arise under the copyright law, for it is not brought to enforce any right derived under the copyright laws of the United States. The question as to whether the. State court has jurisdiction depends upon the allegations of the complaint, and, unless it appears therefrom that the plaintiff seeks to enforce a right based upon the copyright laws of the United States, the Federal court would