J., in Barrow v. Marceau (124 App. Div., 655), “No hard and fast rule can be laid down, * * * where it is clearly established that an attempt is being made by one person to get the business of another by fraud and deceit, a court of equity will" intervene, and in Weinstock v. Marks (109 Cal., 529) it was said "Equity does not concern itself about the means by which wrong is done; it deals with the result of the fraud which moves the arm of the law and strikes down all efforts where fraud is practiced in securing the trade of a rival dealer." To commercially distribute news not gathered by the sender is under the facts shown here an invasion of property rights; to send it out as one's own labor is marked by that dolus, which is fraud, and that is the basis of the doctrine of unfair competition in its wide sense.

Since (to summarize the matter) any bodily taking for sale of plaintiff's news, without other labor than the perception thereof, before the reasonable reward of industry was secured as above indicated, was an unlawful invasion of property rights; and any sale thereof in competition with plaintiff under pretense of individual gathering thereof was a tort of the nature of unfair competition, the plaintiff's motion for injunction should have been granted substantially as made.

The order appealed from is modified, as indicated, and the cause remanded with directions to issue injunction against any bodily taking of the words or substance of plaintiff's news until its commercial value as news has in the opinion of the District Court passed away. The exact form of words to be used, and the insertion or omission of a definite time limit on copying and sale, will be settled in the court below in any manner not inconsistent with this opinion. One ill of costs in this court to plaintit.

WARD, Circuit Judge (dissenting in part). A distributor of news, that is, of his information about things that have happened, neither invents nor composes nor manufactures anything, nor does he supply something which the public buys because it believes it originates with him and wants his article. Nor does he own the news, but only his knowledge of the news. Therefore analogies

1 See this principle applied to enjoin a competitor from imitating the fashion of a model gown, bought from plaintiff by pretending to be an intending wearer. Montegut v. Hickson (App. Div., Law Journal May 18, 1917).

from property created or protected by the patent, copyright, or trade-mark statutes or by the principles, regulating unfair competition are wholly inapplicable. The distributor's knowledge of news which he has gathered is his property so long as he keeps it to himself or communicates it only to others on condition that they will do So. He will be protected against any one who surreptitiously obtains this information from one of his members, subscribers, or employees or by any form of pilfering or unfair means. Such were the cases of Kiernan v. Manhattan Co. (50 How. Pr., 194); Exchange Co. v. Gregory (1 Q. B. D., 1896); Exchange Co. v. Central Co. (2 Chancery, 1897, 48); Peabody v. Norfolk, 98 Mass., 452); Dodge Co. v. Construction Co. (183 Mass., 62); Board of Trade v. Hadden Co. (109 Fed. Rep., 705); National News Co. v. W. U. T. Co. (119 Fed. Rep., 294); Illinois Commission v. Cleveland Tel. Co. (ib., 301); Board of Trade v. Christie (198 U. S., 236); Board of Trade v. Cella (145 Fed. Rep., 28); Board of Trade v. Tucker (221 Fed. Rep., 305); Hunt v. Cotton Exchange (205 U. S., 333). In every one of these cases the court found that the defendant got the news or the quotations surreptitiously and enjoined him for that reason. They abundantly support an injunction on the first grounds mentioned in the opinion of the court.

But if the distributor publishes, to use a word in this connection which I think has been unreasonably criticized, or abandons or dedicates or communicates his information to the world, his right of property in his information and his right to be protected against the use of it is gone.

The Supreme Court in the Christie case supra, page 250, likened property in news to property in trade secrets. The two are strikingly similar. The owner of a trade secret will be given protection against any breach of confidence in respect to it by his employees and against any dishonest discovery of it by third parties. If, however, he communicates the secret to another without condition or if anyone by his own efforts, for instance by analysis of a secret compound, learns how it is made, such persons may use it without any accountability to the original discoverer. That the discoverer spent much time and money in discovering the secret would not be 76228°-17- -35

.

regarded as a reason why such persons learning it honestly should not make use of it.

In this case the complainant furnishes news to its members for the express purpose of their putting it on their bulletin boards and issuing it to the public in their newspapers. This is what they live on. After this it seems to me pure fiction to say that any property in the distributor survives. Everything in the nature of a confidence about the communication has ceased. That the rotation of the earth is slower than the electric current is a physical fact the complainant must reckon with in doing its business. That news dedicated to the public with the complainant's consent by the morning newspapers in New York can be telegraphed in time to appear in the morning newspapers of San Francisco can not qualify the legal effect of the dedication. There being not the least evidence of anything fraudulent or underhanded in this method of obtaining news, I think the injunction should be denied.

[NOTE. This case has been carried to the United States Supreme Court on petition of the defendant for a writ of certiorari. The above statement of facts and opinion have been copied from the transcript of record filed with the clerk of the Supreme Court.-Ed.]

Carns et al. v. Keefe Bros., May 5, 1917.

CARNS ET AL. v. KEEFE BROS.

(District Court, D. Montana. May 5, 1917.)

COPYRIGHTS-ABANDONMENT OF RIGHTS.

Where a structure to represent an elk was erected over a city street as the chief attraction at a celebration to which the public was invited, assuming that the structure was a statue within the copyright law, a copyright attempted to be secured thereon was invalid, since where a production is intended for and bound to be given free and unrestricted public exhibition, and is so displayed, there is a publication of the thing and dedication to the public, defeating copyright.

In equity. Suit by E. B. Carns and others against Keefe Bros. Decree for defendants.

W. D. Kyle, of Butte, Mont., for plaintiffs.

Wheeler & Grorud, of Butte, Mont., and Frank Woody, of Missoula, Mont., for defendants.

BOURQUIN, District Judge. Even as Hans Breitman, the Best People On Earth gave a party. All congenial souls and spirits were invited. For the success of such

CLASS

BORRO

CARNS V. KEEFE BROS.

enterprise all recognize that guests must be amused and enthused. To that end the discreet business man donated more or less cheerfully, and many attractions were provided. The invitees, perhaps equally divided, were present. The celebration, to its full extent, was of endurance some several days. Competent judges estimate from 10,000 to 20,000 good fellows milled the streets for that period, enthusiastically separating themselves from surplus shekels, sans sandbagging, in solicitous endeavor to salt the tail of the elusive and illusive Bird of Pleasure, and that the underwriters made a profit.

The chief attraction was a monstrous elk (of the horned variety), which bestrode a street of Butte at a busy corner. Standing 60 feet in its hoofs, it was built of a wooden frame covered with what is described as "chicken" wire (whatever or why that may be), canvassed, plastered, and painted; and in conventional fashion it was all lit up all night, but with colored lights.

There is assurance that it resembled the real thing and was recognized by spectators of limited zoology. Local connoisseurs say that it was possibly neolithic in conception, perhaps slightly cubist in design, but positively nouveau in execution. At the hosts' expense, plaintiffs built it under cover and without police interference, reserving copyright. When unveiled, the structure bore plaintiffs' notice: "Copyrighted. Infringers beware." And the hilarious populace promptly shot this mighty elk with a thousand cameras.

Defendants bought and sold post-card reproductions. Hence this suit for infringement, plaintiffs having registered copyright. If it be assumed that this creation was a "statue," within the law of copyright, the circumstances render the copyright invalid. Copyright in analogy to patents, is to reward originality and inventive genius, and to encourage it to put out its productions for public enjoyment and benefit, which otherwise the author proprietor might withhold, having right and power to do so, for his exclusive use and pleasure. If, however, the production is intended for or bound to be given free and unrestricted public exhibition-to attract the public to come and enjoy without price-and, if it is so displayed, there is publication of the thing and dedication to the public, again in analogy to patents, defeating copyright. For

Page 746.

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this display inevitably exposes the production to copy, and so is inconsistent with claim of copyright, and the latter can not be preserved by any notice thereof hung upon the exhibit. This accords with the spirit of the law, and is suggested by Tobacco Co. v. Werckmeister (207 U. S. 300, 28 Sup. Ct. 72, 52 L. Ed. 208, 12 Ann. Cas. 595).

That is this case. Plaintiffs built the structure for public free exhibition and were bound to yield it to such. They could not withhold it. This elk could no more be copyrighted than Liberty Enlightening the World, or the Dewey Arch, or the Washington Monument, and no one will seriously claim these latter could be.

See generally, Caliga. v. Newspaper Co. (215 U. S. 186, 30 Sup. Ct. 38, 54 L. Ed. 150) and cases cited.

Decree for defendants.

[242 Federal Reporter, pp. 745–746.]

CHAUTAUQUA SCHOOL OF NURSING v. NATIONAL
SCHOOL OF NURSING.

(Circuit Court of Appeals, Second Circuit. November

14, 1916.)

Chautauqua COPYRIGHTS-SCOPE OF COPYRIGHT INFRINGEMENT-WHAT CON

STITUTES.

Complainant's copyrighted publication, dealing with hypodermic medication, divided the operation into 12 successive steps, illustrating the steps by cuts taken from photographs of a person actually performing the operation and administering the hypodermic injection. Defendant disposed of a copyrighted lecture on medicines and their administration, prepared by an army surgeon. One division of the surgeon's lecture was devoted to the hypodermic, and was accompanied by 12 cuts, showing the successive steps of the operation, which were actual photographs of the surgeon's hands performing the same. Held, that, as the process of hypodermic medication is a matter of common knowledge, in which complainant could acquire no exclusive property, and as it is not essential that a production, to be original and new within the copyright laws, shall be different from an earlier production, but only that it shall disclose original work, the lecture prepared by the army surgeon, though similar to complainant's lecture, showed an original work, and was not an infringement. Appeal from the District Court of the United States for the Western District of New York.