We are somewhat fortified in this conclusion by observing the distinct difference in theory between the old (R. S.) and the new (1909) copyright laws. Under the old law the statutory monopoly was rested upon registration, which must be initiated on or before publication. The certificate of registration was not only evidence of title but its preliminaries constituted the final step in the otherwise incomplete statutory grant. Under the new law the exclusive right is fixed at the instant of and by the fact of publication, which notice; the registration is incidental and may be long postponed. The publication of the complete book, with notice, perfects the right; are its character and incidents to be changed by subsequently filing the chapters separately for registry? So, the trade cuts may be put out, one each day, each with notice of copyright claim, but the only thing filed for registry may be the complete catalogue; the rights resulting from publication would seemingly be neither enlarged nor dimin- Page 617. ished. As the registration has become more incidental and nonessential, by so far its form must have become less important in fixing substantial rights.

In determining the above-stated question of fact, the power and duty of consolidation may be useful as a test. If a plaintiff copyrights separately ten cuts, and finds each one of the ten infringed on separate days by the same newspaper, and then brings ten separate injunction and damage suits, on application to compel consolidation the court would look into the facts and ascertain whether there were really ten controversies involving ten questions or whether there was just the one dispute involving one question, and probably would consolidate or not, according as it decided this question. If these suits were consolidated upon a finding that there were really only one controversy and one injury to the plaintiff's business, or if the plaintiff in the first place brought one consolidated suit, we think it is evident that the statute may be satisfied by awarding the minimum damages as for one infringement. This construction of the law does not compel the proprietor to register all together items which he wishes to register separately. He may adopt the latter course and derive any direct or indirect advantages properly incidental; but it does not follow that one of these incidental advantages is to give the minimum damage clause an effect which could not have been intended. Nor does this construction imply that the damages for

Page 618.

republishing a complete set of separately copyrighted books would be no more than for republishing one volume of the set. A set of books is not a unit in the same sense that one book is. The application of the law to such a case the court would determine according as it determined the facts.

We do not overlook that a proprietor who had such separate copyright registrations as are here involved might bring a suit based upon one item only, and after the first suit was finished bring another based upon another item, or he might be able to bring several simultaneously in different jurisdictions, and thus in one way or the other escape consolidation. However, it will be time to meet such a problem when it arises; situations hard to dispose of can always be imagined; the possibility of such difficulty will not prevent what seems the reasonable construction in the ordinary case.

Applying this principle to the present case, we find first that all the cuts here involved relate to a single subject, viz, fashions for women's wear for a single season; the constituent parts of such a subject are, obviously and necessarily, closely related; they comprise a unitary object and effect; the aim must be to meet the tastes of women collectively as well as separately. We find also that plaintiff had united and tied together all his six separately copyrighted cuts as completely as if he had published them only in one catalogue or one book. He had done this, so far as this case is concerned, by uniting them in a season's service which he had sold exclusively for Columbus to Morehouse. His entire business enterprise protected by copyrights was represented in Columbus by his Morehouse contract. His right, which was involved and which was impaired, was the exclusive right to publish in Columbus this group of pictures for this season; and this was in substantial effect one right. The defendant newspaper published on several days several items of this group, but these publications were all incidents of one course of conduct; they all occurred within a short time; they ceased as soon as complaint was made. We think it reasonable to say that within the purview of this minimum damage clause they constituted one infringement.

The decree must be reversed and the cause remanded, with instructions to enter a decree for plaintiff for $250

damages and costs and the attorney fee already fixed. The writ of error is dismissed.

We thus definitely direct the precise decree to be entered below in order that no lack of finality in our decree may embarrass any effort to take the opinion of the Supreme Court; we have considered certifying the questions, but we find our doubts hardly sufficient to justify this course.

[233 Federal Reporter, pp. 609-618.]

J. H. WHITE MFG. CO. v. SHAPIRO.

(District Court, Southern District New York. August 11, 1915.)

COPYRIGHTS-SUBJECTS

CUTS.

OF COPYRIGHT CATALOGUE CONTAINING J. H. White
Mfg. Co. บ.
Shapiro, Aug.

An advertising catalogue, containing cuts of brass goods, 11, 1915.
consisting largely of trimmings for electric light fixtures,
may be protected by copyright.

In equity. Suit by the J. H. White Manufacturing Company against Samuel Shapiro. On motion to dismiss bill. Motion sustained, with leave to amend.

Arthur H. Serrell, of New York City, for complainant. Munn & Munn, of New York City, for defendant. AUGUSTUS N. HAND, District Judge. Complainant copyrighted its catalogue of brass goods, which consisted principally of trimmings for electric light fixtures. Defendant is charged with copying in his catalogue several of the designs for these trimmings, and with thus infringing complainant's copyrighted catalogue.

Defendant moves to dismiss the bill of complaint upon ground (f), among others, which is that the catalogue appears to be merely a trade list of articles of general merchandise, and as such not a proper subject for copyright protection under the law. In Da Prato Statuary Co. v. Giuliani Statuary Co., C. C. (189 Fed. 90), it was held that a catalogue containing illustration of articles for the decoration of churches might be copyrighted. A similar conclusion was reached by Judge Witmer in National Cloak & Suit Co. v. Kaufman, C. C. (189 Fed. 215), in regard to a catalogue containing pictures of women's

Page 958.

gowns manufactured by the complainant showing the latest fashions. Mr. Justice Holmes in Bleistein v. Donaldson Lithographing Co. (188 U. S. 239, 23 Sup. Ct. 298, 47 L. Ed. 460), speaking for the majority of the Supreme Court, sustained a copyright upon advertisements of a circus which were pictorial illustrations of the performers. In the cases of Lamb v. Grand Rapids School Furniture Co., C. C. (39 Fed. 474), and J. L. Mott Iron Works v. Clow, C. C. (72 Fed. 168), it was held that pictorial illustrations of furniture and artistic plumbing fixtures in a catalogue for use in advertising were not subjects of copyright.

These decisions certainly are not without much basis in reason; but I can not see that the distinction made by them in respect to catalogues for advertising is warranted by the strict language of the statute, and the case of Bleistein v. Donaldson Lithographing Co., supra, though concurred in by only seven justices, with a dissent by Harlan and McKenna, JJ., is binding upon me, and makes it necessary to sustain the copyright upon this motion. Section 4952 of the Revised Statutes provides that:

The author, inventor, designer, or proprietor of any engraving, cut, print, or photograph or negative thereof, or of a * * * shall * * painting, drawing, * have the sole liberty of printing, reprinting, publishing, * and vending the

same.

Neither the merit nor purpose of the print seems to be regarded by the language of the act. It is to be remembered that the defendant may make his own print of the original. He is only precluded from copying the complainant's illustration, as he is charged with having done. If he has not done this, the suit can not be sustained. If he has done so, the complainant may well say, in the language of Mr. Justice Holmes in the Bleistein Case, supra, at page 252 of 188 U. S., at page 300 of 23 Sup. Ct. (47 L. Ed. 460): "That these pictures had their worth and their success is sufficiently shown by the desire to reproduce them without regard to the plaintiff's rights."

The complainant can doubtless amend its bill of complaint, so as to obviate the technical objections (b), (c), and (d), and the bill will then state a good cause of action. The objection (e), that the complainant has not filed a copy of its catalogue, is now cured.

Upon the case as it stands, the motion to dismiss should be granted on these grounds, and denied as to the ground (f), which I have discussed, unless the complainant shall file an amended bill of complaint within 20 days. [227 Federal Reporter, pp. 957-958.]

WHITE STUDIO v. DREYFOOS ET AL.

(Supreme Court, Appellate Division, First Department. May 29, 1913.)

TRADE-MARKS AND TRADE NAMES-UNFAIR COMPETITION-REPRO-
DUCTION OF PHOTOGRAPHS.

A photographer, famed for making originals which he did
not copyright, may not enjoin a defendant, engaged in
manifold reproductions, on the ground of unfair competi-
tion, from using photographs made by plaintiff for repro-
duction, when such photograph was given to defendant with
the sitter's consent.

Appeal from special term, New York County.

Action by the White Studio against Alexander W. Dreyfoos and another. From an order granting an injunction pendente lite, defendants appeal. Reversed. and motion for injunction denied.

Argued before Ingraham, P. J., and Clarke, Scott, Dowling, and Hotchkiss, J J.

Fixman, Lewis & Seligsberg, of New York City (Leo. G. Rosenblatt, of New York City, of counsel), for appellants.

Leon Laski, of New York City (George Edwin Joseph, of New York City, of counsel), for respondent.

CLARKE, J. Plaintiff is a corporation. Its business is that of making original photographs. It uses the name "White" as a trade name. Defendants are copartners doing business under the name "Apeda Studio." Their chief business is that of manifold reproduction of photographs, and in the theatrical trade their name "Apeda has become almost synonymous with photographic reproduction.

Plaintiff's claim is that the defendants have reproduced plaintiff's work in large quantities, and sold such reproductions at a less rate than it charges. It claims that it was being unfairly competed with. The defendants offer to omit the plaintiff's name from its reproductions,

White Studio v. Dreyfoos, May 29, 1913.