Page 1084. property interest acquired through an equitable assignment by the composer. It contains no allegation that a copyright has been granted. In determining jurisdiction the court's examination is limited to the complaint. There is nothing in this complaint to show that the copyright law is involved. A similar construction has been given to the removal act (R. S. U. S. Supp., vol. 1, p. 612, sec. 2): Any suit of a civil nature * * arising under the Constitution or laws of the United States * * may be removed by the defendant to the circuit court of the United States. It has been decided that no cause is removable unless the matters which require it are shown on the bill of complaint. See Walker v. Collins (167 U. S. 57, 17 Sup. Ct. 738, 42 L. Ed. 76). So, also, this court, in considering whether or not a Federal case had arisen under the copyright law, said (Outcault v. Lamar, 135 App. Div. 110, 119 N. Y. Supp. 930): 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 have no jurisdiction of the case in the absence of a diversity of citizenship, and the State courts would have exclusive jurisdiction, even though the answer presents a defense based upon the copyright laws. There is a very similar case (Hoyt v. Bates, C. C., 81 Fed. 641) in which defendant made an application for removal from the superior court of Massachusetts. The circuit court, to which application was made, summarized the allegations of the complaint as follows: It is alleged that the complainant composed a certain song, which was copyrightable, and that the song and the music accompanying it "became and are" his property. There is nothing which contains any admission that the complainant ever parted with the presumptive title which these allegations are sufficient to vest in him. The bill further alleges that the respondents, without complainant's knowledge, obtained a copyright for their song in their own name, and that they have no right to ownership in it. The bill assumes that the copyright is valid, and alleges no infringement which can raise any question as to its scope and validity. The court held: On this statement of the pleadings the only issue presented by the bill is one of title, depending on the rules of common law. * * It has been settled that a suit of that character is not within the class of removable causes. The application to remove was denied, and the cause was remanded to the State courts. In the present case, as in Hoyt v. Bates, supra, the question is one of title, depending on the rules of common law. Did plaintiffs or defendant have the commonlaw property in this song at the time when defendant applied for a copyright? That is the underlying question in this controversy. If title was in plaintiffs, then it was not in defendant. If it was not in defendant when he applied for a copyright, then the Federal court has no jurisdiction of the case, because defendant obtained nothing by his application for a copyright. (Little v.. Hall, 18 How. 165, 15 L. Ed. 328.) [2] If the Federal court has no jurisdiction, then there must be jurisdiction in this court; otherwise no court has jurisdiction. If, on the other hand, plaintiffs had no common-law property in the song, then the complaint must be dismissed because of plaintiff's inability to make out a cause of action. In such a case dismissal of the complaint will be accomplished without adjudication as to the validity of the copyright. It follows that the court has jurisdiction of whatever facts may develop at the trial under the pleadings. The demurrer is sustained. Demurrer sustained. [133 New York Supplement, pp. 1082-1084; 74 Miscellaneous Reports, pp. 262-265.] STEVENSON ET AL. v. FOX ET AL. (District Court, Southern District of New York. October 4, 1915.) - COPYRIGHTS - TRANSLATION - INFRINGEMENT UPON PRIOR COPY A translator and moving-picture producer have the right to make and use an independent translation from an original French play, with such modifications as their own ingenuity may suggest, but may not transfer into their adaptation variations from and additions to the French play original with another translator and producer, who first translated and used the French work, copyrighting it in the United States. In equity. Suit by Kate E. Stevenson and the Selig Polyscope Company against William Fox and the Fox Stevenson v. ΤΟΣ, Oct. 4, 1915. Page 991. Film Corporation. On complainants' motion for temporary injunction. Injunction to issue. The complaint alleges: That N. Hart Jackson translated into the English language and made an original adaptation for the stage of the drama "Les Deux Orphelines," by D'Ennery and Cormon, under the title “The Two Orphans;" that the said translation was duly copyrighted by said N. Hart Jackson on the 1st day of February, 1875; that the said copyright in the said play was renewed by Frances W. Jackson, the widow of N. Hart Jackson, and after the securing of such renewal she duly assigned said renewal of copyright to the complainant Stevenson; that the defendants have reproduced in motion pictures the said translation and adaptation by N. Hart Jackson. Nathan Burkan, of New York City, for complainants. Saul E. Rogers, of New York City, for defendants. LACOMBE, Circuit Judge. Defendants undoubtedly had the right to make an independent translation of their own from the original French play, with such modifications as their own ingenuity might suggest. They had no right, however, to transfer into their adaptation variations from and additions to the French play which were original with Jackson, who first translated it and copyrighted it here. They insist that they took their whole scenario from a book published in this country in English and not copyrighted. That book, however, contains alterations from and additions to the original French play, which first appear in Jackson's copyrighted version. In the absence of any proof from the man who produced that book that he took it wholly from the French version, without conveying into it any of Jackson's original work, it is a fair inference that defendant's scenario derives from Jackson, and not from the original source. As to the renewal, the widow of Jackson was the proper person to apply for it under the statute in force when application was made. As the record now stands, plaintiff seems entitled to an injunction against the production of any of Jackson's original work in the way of variation o: addition. Apparently there is not much of this, and it could presumably be eliminated. Therefore the injunction will be suspended for 40 days, to give defendants opportunity to make necessary changes, or to review this decision on appeal. The record being short, and the appeal, if taken, a preferred cause, it can easily be heard in the circuit court of appeals before the expiration of that time. Order accordingly for injunction, upon plaintiff giving a bond for $2,500. [226 Federal Reporter, pp. 990–991.] STEWART v. HUDSON. (District Court, Eastern District Pennsylvania. April 7, 1915.) TRADE-MARKS AND TRADE NAMES-UNFAIR COMPETITION. Stewart v. Hudson, Complainant invented an automobile tool for which he 7, 1915. Held that, while defendant was within his legal rights in Page 585. In equity. Suit by Milton H. Stewart, trading as the Stewart Accessories Company, against William F. Hudson, individually and trading as the Ford Specialty Company. On motion for preliminary injunction. Granted. Duane, Morris & Heckscher, of Philadelphia, Pa., for plaintiff. Winfield S. Walker, of Philadelphia, Pa., for defend ant. DICKINSON, District Judge. The plaintiff in this case claims to be the inventor of a tooi which, as is the confident belief of every inventor, will work a revolution in its special field of operation. If his confidence is justified by the event, he will have produced something which will not only prove to be highly useful but will bring balm to the troubled souls of that large army of amateur automobilists who daily struggle with punctured tires. Letters patent have been applied for, but have not as yet, and may not be, issued to him. In anticipation, however, of the grant of this right and of the harvest of profits which he believes is assured him, he made and placed his appliance upon the market. He prepared the usual form Apr. Page 586. of literature, with cuts of his device, including illustrative pictures of his own hands applying the tool at its work. The introduction of his invention was made at the New York automobile show, where he gave ocular demonstrations of the efficiency of the tool, and generously distributed his literature. He repeated this at the Philadelphia show. He also advertised in the trade journals, the advertisements exhibiting cuts and illustrations of how the tool was used. He further employed a small army of demonstrators to go to the centers of the automobile trade to show to the automobile public and middlemen the merits of his invention. His purpose was, of course, twofold-to create a demand among automobile owners and convince dealers of the value of the tool, so that they would lay in a supply to meet the customers' demands. His outlay for these purposes was large. Through the exploitation of his device, and the novelty, efficiency, and simplicity of the tool itself, instant recognition of its merits was given, and it became at once known, and acquired, not only a reputation as a good thing but became known as the plaintiff's special make of tool. Among others to whom he gave a demonstration of the efficiency of the tool while he had it on exhibition in Philadelphia was the defendant, who was in the business of selling automobile accessories. The defendant provided the plaintiff with a place in which to carry on his educational and advertising demonstration. The result was that the defendant arranged to supply his own customers with the plaintiff's make of tool, and orders were placed with the plaintiff for a supply as fast as they could be manufactured and shipped. A further, and by the plaintiff unexpected, consequence was the defendant had the device made for sale on his own account. The tool which he thus had made was an exact facsimile of that made by the plaintiff, with two unnoticeable variations which may be merely variations or, possibly, may be deemed additional features. There was also a deceptive change in the name cast upon the implement. The defendant began at once to exploit the tool by advertisements, making use for this purpose of copies of the cuts which the plaintiff had put out. So promptly and expeditiously was this done that in some of the advertising mediums he was in time ahead of the plaintiff. So slavish |