Lapas attēli
PDF
ePub

of the costs under the provisions of section 40 of the act. If in the answer the defendant had admitted that the complainant was entitled to the relief granted herein, as was conceded at the trial, it is questionable whether an attorney's fee would have been allowed. The answer, however, compelled the complainant to sustain by proof its right to any relief whatever.

Under these circumstances, and taking into consideration, on the other hand, that the issues involved are clearly defined and simple, and raise no intricate questions of law, an attorney's fee of $75 is awarded as part of the costs.

[220 Federal Reporter, pp. 977-980.]

STRINGER v. FROHMAN.

(Supreme Court, Special Term, New York County. March 27, 1915.)

Stringer v. COPYRIGHT-COPYRIGHTED STORY-USE OF TITLE FOR PLAY-INFrohman, Mar.

27, 1915.

JUNCTION.

The author of a copyrighted story, published in magazine and book form, is not entitled to enjoin use of the title for a play not connected with the story, where it appears the same title has been frequently used before for magazine articles, and for plays more than 40 years ago.

Suit by Arthur Stringer against Charles Frohman. Motion for an injunction denied.

I. Vernon Weisbrod, of New York City, for plaintiff. Dittenhoefer, Gerber & James, of New York City, for defendant.

NEWBURGER, J. Plaintiff wrote a story in 1910 and 1911 which he entitled "The Shadow." In 1911 it was published by Munsey & Co., in serial form in a magazine, the Cavalier, and was copyrighted by Munsey & Co. In 1913, the story was published in book form by the Century Company, and was copyrighted in that year by said. company. This story was never dramatized, nor has any play been written founded upon the story. The defendant is a theatrical manager, operating the Empire Theater. The play "The Shadow" was acquired by the defendant in May, 1914, from Dario Niccodemi, a French dramatist. Mr. Frohman had the play translated into English by Michael Morton, a dramatist and adapter,

and the translation was made, to wit, "The Shadow." The first performance of the play was given on January 12, 1915, at the Empire Theater in this city. It was advertised under the said title in all the newspapers, and has been advertised by means of lithographs and posters. This application was made on March 5, 1915, two Page 936. months after the play was first produced. It is not claimed on the part of the plaintiff that the play has any connection with the story written by him. The plaintiff's story is based upon the exploits of a detective, while the Niccodemi play produced by the defendant has reference to the story of a wife, incurable with paralysis, having cast across her life the shadow of her husband's infidelity. It appears from the certificate of the Librarian of Congress that the title "The Shadow" has been used for many years, and that there are now in his office certificates showing the use of the title, "The Shadow," in seven plays or dramas, the first of which was filed on the 19th day of February, 1879, and the last on February 12, 1914; that in addition thereto it appears that the title, "The Shadow," has been used on a great many occasions in articles published in the Century, Harper's, and other magazines. There are also affidavits by well-known dramatists showing that the title was used in plays more than 40 years ago. Plaintiff has utterly failed to make out a case to entitle him to injunctive relief.

Motion denied.

[152 New York Supplement, pp. 935-936.]

SUBURBAN PRESS v. PHILADELPHIA SUBURBAN
PUB. CO.

(Supreme Court of Pennsylvania. Feb. 14, 1910.)

1. TRADE-MARKS AND TRADE NAMES UNFAIR USE OF TRADE, NAME INJUNCTION.

Suburban Press v. Philadelphia Suburban Pub. Co.,

The use of a trade name will be enjoined where the in-Feb. 14, 1910. tent is to get an unfair share of another's business, or where the effect of defendant's action is to produce confusion in the public and loss to plaintiff.

2. TRADE-MARKS AND TRADE NAMES-USE OF MAGAZINE TITLE INJUNCTION.

A publisher will be restrained from using the title "Philadelphia Suburban Life" for a magazine at the suit of a publisher of a magazine named "Suburban Life,"

where, beside the similarity in names, the magazine known as the "Philadelphia Suburban Life" resembled the other in style, illustrations, printed matter, and general scheme of title page, and circulated in the same territory as the other, which was first started.

Appeal from court of common pleas, Philadelphia County.

Bill by the Suburban Press against the Philadelphia Publishing Company. From a decree awarding an injunction, defendant appeals. Affirmed.

Argued before Fell, C. J., and Brown, Mestrezat, Potter, Elkin, Stewart, and Moschzisker, JJ. William H. Peace, for appellant.

Sharp, Alleman & Moise, for appellee.

MOSCHZISKER, J. The appellant, a New Jersey corporation duly registered in Pennsylvania, with a place of business in Philadelphia, was restrained from using the words "Philadelphia Suburban Life" as the title of a monthly magazine published by it. The appellee, a New York corporation duly registered in Pennsylvania, with its principal place of business in the city of New York, is the publisher of a monthly magazine started in 1904, named "Suburban Life." This periodical has a circulation of about 40,000 copies a month, of which nearly 4,000 copies are sold in Pennsylvania, and approximately one-half of that number distributed in Philadelphia and vicinity. The appellant was incorporated in 1909, and the first number of its magazine was issued in the month of September of that year. The trial judge finds that the magazine published by the appellant bears a striking resemblance to that published by the appellee in size, style, character of paper, illustrations, and printed matter, and in the general scheme of the title-page, and that the great similarity of names, general appearance, and subject matter of the two magazines is by design, and not by accident. The learned judge further finds:

It is therefore perfectly apparent that one object of the defendant was to imitate as nearly as possible the magazine or periodical published by the plaintiff, in general appearance and subject matter of contents, as well as in name, and to thereby gain an unfair advantage over the plaintiff in its trade, and to reap the benefit of its years of labor, the skill and the money employed by the plaintiff and its predecessor in introducing its magazine and building up its business. It is also made clear by

the evidence that the great similarity of the two periodicals, particularly in name, will tend to deceive, confuse, and mislead the reading and advertising public.

The trial judge saw and heard the witnesses and inspected the documentary evidence, and his findings will not be disturbed except for manifest error. After an examination of the evidence, we can not say that such is the case with respect to any of the findings.

There are two classes of cases involving judicial interference with the use of names: First, where the intent is to get an unfair and fraudulent share of another's business; and, second, where the effect of defendant's action, irrespective of his intent, is to produce confusion in the public mind and consequent loss to the plaintiff. (American Clay Manufacturing Company v. American Clay Manufacturing Company, 198 Pa. 189, 47 Atl. 936.)

The present case falls within both of these classes. The decree is affirmed, and the appeal is dismissed, at the cost of the appellant.

[75 Atlantic Reporter, p. 1037; 227 Pennsylvania Reports, pp. 148-152.]

TAFT v. SMITH, GRAY & CO.

(Supreme Court, Appellate Term. April 22, 1912.)

1. TROVER AND CONVERSION-DAMAGES-DETERMINATION OF VALUE. The rule of damages for the conversion of property is its value at the time and place of the conversion, and, where it has only a speculative value, the damage may be ascertained by evidence of the nature of the article, whether it can be reproduced, its utility to its owner, and, in the absence of other evidence, the owner's estimate of its value. 2. TROVER AND CONVERSION-DAMAGES-QUESTION FOR JURY.

[blocks in formation]

Where property converted is of such a nature that its value cannot be definitely ascertained, the question of estimating the value to the owner rests in the discretion of the Page 1012. jury, subject to the limitation that their verdict must not be inadequate or excessive.

3. LITERARY

PROPERTY-RIGHT OF PROPERTY-SUBJECT-UNPUB-
LISHED MANUSCRIPT.

The author or compiler of an unpublished manuscript
has a property right in it, which not only attaches to the
physical or corporeal substance but includes the incorporeal
right to the exclusive use of its contents.

4. TROVER AND Conversion-Damages—EXCESSIVE.

Where a clothing salesman had collected in a book the names of people whom he had waited on for a period of 20 years and with whom he was acquainted, $500 was fair compensation for its conversion by his employer.

Hotchkiss, J., dissenting.

Appeal from city court of New York, trial term.

Conversion by Charles C. Taft against Smith, Gray & Co. From a judgment for plaintiff, and an order denying a motion for new trial, defendants appeal. Affirmed. Argued January term, 1912, before Seabury, Gerard, and Hotchkiss, JJ.

Jones, McKinny & Steinbrink, of Brooklyn (Meier Steinbrink, of counsel), for appellants.

Gerson C. Young, of New York City, and Joseph J. Schwartz, of Brooklyn, for respondent.

SEABURY, J. I concur in the view expressed in the opinion of Mr. Justice Hotchkiss that the proof of demand was sufficient. I do not concur in the view that the evidence of damage is insufficient to sustain the award which the jury made to the plaintiff. The manuscript "See You" book, which was the subject of the conversion, had no market or other definite provable value. It was, however, of value to the plaintiff. The fact that the value is speculative or difficult to ascertain does not preclude a substantial recovery. The law is always adequate to meet difficult situations, and in such cases permits proof of collateral matters which tend to throw light upon the value of the thing converted, and then leaves to the good judgment of the jury the duty of estimating the sum which will constitute fair compensation. These collateral matters justify a consideration of the nature of the thing itself, whether or not it can be reproduced, and its utility to the owner, and, if the value of its use cannot be otherwise determined, the owner may give his estimate of its value to him.

[1] The general rule of damages, when property is converted, is the value of the thing converted at the time and place of the conversion, with interest. (McIntyre v. Whitney, 139 App. Div. 557, 124 N. Y. Supp. 234, affirmed 201 N. Y. 526, 94 N. E. 1096.) If the thing converted has no market value, the actual value to the owner Page 1013. is the just and accepted rule. (Lovell v. Shea, 18 N. Y. Supp. 193.) Thus, where the action was for the conversion of a solicitor's docket and papers, containing evidence of bills of costs against certain parties, the measure of damage was held to be the value of the documents to the owner. (Doyle v. Eccles, 17 Up. Can. C. P. 644.) The same rule applies for the conversion of a set of vouchers, accompanied by an affidavit of their correctness. (Drake v. Auerbach, 37 Minn. 505, 35 N. W. 367.)

« iepriekšējāTurpināt »