Suit by the Chautauqua School of Nursing against the National School of Nursing. From a decree for complainant (211 Fed. 1014), defendant appeals. Reversed. Stanchfield, Lovell, Falck & Sayles, of Elmira, N. Y., for appellant.

Thrasher & Clapp, of Jamestown, N. Y., for appellee. Before Coxe, Ward, and Rogers, circuit judges.

WARD, Circuit Judge. Appeal from a decree of the district court holding the defendant guilty of infringing the complainant's copyright and ordering it to surrender all infringing publications in its possession or under its control to the complainant.

Each of the parties conducts a school for the education of nurses by correspondence and by printed lectures and books. In 1910 the complainant published and copyrighted its lecture No. 6, entitled "Remedies, the methods by which they are administered," some 12 out of 39 pages of which were devoted to hypodermic medication. The operation was divided into 12 successive steps, and the text describing and explaining it was numbered and divided in the same way. There were cuts of various forms of syringes obtained from the makers, directions how to use them, and as to the drugs and doses to be administered. Finally, there were 12 cuts taken from photographs of a person actually performing the operation of preparing and administering a hypodermic injection. In 1912, Maj. Charles R. Reynolds, a surgeon in the United States Army, published and copyrighted a lecture entitled "Medicines and their administration." The defendant obtained from him the right to print, sell, and distribute the lecture, and was doing so. Out of 39 pages, 17 are devoted to "The Hypodermic." The lecture divides the operation into 12 successive steps, described by separately numbered divisions of the text. It has cuts of syringes obtained from the manufacturers, directions as to their uses, the drugs and doses to be given, and 12 cuts showing the successive steps of the operation, being actual photographs of Maj. Reynolds's hands performing the same.

Infringement is charged, especially in connection with the subject of hypodermic injections. Of course, all previous medical knowledge was common property to any writer. There is in neither lecture any exercise of the imagination or any original investigation. But the com

Page 153.

plainant alleges that, though it originated nothing new, it was the first to treat separately the successive steps in the operation as generally practiced and to illustrate each pictorially. The evidence sustains this allegation. We do not understand such a plan of instruction to be copyrightable. It is a startling proposition to say that the complainant has secured the monopoly for 28 years of stating in separate categories and illustrating pictorially the successive steps of this very well known operation. It is said in Drone on Copyright (pp. 205-6):

Works alike may be original.-It is not essential that any production, to be original or new within the meaning of the law of copyright, shall be different from another. Whether the composition for which copyright is claimed is the same as or different from, whether it is like or unlike, an existing one, are matters of which the law takes no cognizance, except to determine whether the production is the result of independent labor or of copying. There can not be exclusive property in a general subject, or in the method of treating it; nor in the mere plan of a work; nor in common materials, or the manner or purpose for which they are used. The rights of any person are restricted to his own individual production. There is nothing in the letter or the spirit of the law of copyright to prevent or to discourage any number of persons from honestly laboring in the same field. Two or more authors may write on the same subject, treat it similarly, and use the same common materials in like manner and for one purpose. Their productions may contain the same thoughts, sentiments, ideas; they may be identical. Such resemblance or identity is material only as showing whether there has been unlawful copying. In many cases, the natural or necessary resemblance between two productions, which are the result of independent labor, will amount to substantial identity. Thus, the differences will be often slight, and sometimes immaterial, between two descriptions of a common object; two compilations of like materials; two maps, charts, or road books of a common region; two direc tories of one city; two photographs of the same scene; two engravings of the same painting. But, notwithstanding their likeness to one another, any number of productions of the same kind may be original within the meaning of the law; and no conditions as to originality are imposed on the makers, except that each shall be the producer of that for which he claims protection.

Considering the text first: The complainant had no monopoly of the things taught in its lecture, because they were the common teaching. Maj. Reynolds, in preparing his lecture, had a right to consult all previous publications on the subject, including the complainant's lecture No. 6, and to state in his own language what he thought to be the proper and the best practice. From the nature

of things there were certain to be considerable resemblances, just as there must be between the work of two persons compiling a directory, or a dictionary, or a guide for railroad trains, or for automobile trips. In such cases. the question is whether the writer has availed himself of the earlier writer's work without doing any independent work himself.

In respect to the pictures, if Maj. Reynolds had rephotographed the complainant's, he would have been clearly availing himself of the complainant's work, and so an infringer. The evidence, however, is clear that he had original photographs taken of his own hands manipulating the instruments from the beginning to the end of the operation. That the pictures in each lecture should resemble each other is quite natural, because these successive steps illustrate the practice in general use. With these considerations in mind, we are not at all satisfied, upon comparing the two lectures, that Maj. Reynolds has appropriated the complainant's work.

The decree is reversed.

[238 Federal Reporter, pp. 151-153.]

EICHEL ET AL. v. MARCIN ET AL.

(District Court, Southern District of New York. April 2, 1917.)

1. COPYRIGHTS-EXTENT OF MONOPOLY-PLAY.

Eichel v. Marcin, Apr. 2,

A copyright does not give a monopoly in any incident in 1917.
the play, but protects only the arrangements of the words,
and permits other authors to exploit the general ideas, pro-
vided they do not substantially cover the form in which
they have been developed, since the object of copyright is
to promote science and the useful arts, and permitting the
copyright to withdraw the ideas or conceptions of the copy-
righted article from the stock of materials to be used by
other authors would narrow the field of thought open for
development.

2. COPYRIGHTS-INFRINGEMENT INCIDENT OF PLOT.

In a suit to restrain the infringement of the copyright of a dramatic play, defendants' play held not to copy from plaintiffs' play any plot, scene, dialogue, or characters, aside from general features of the plot, which were clearly open to common use.

Page 405.

3. COPYRIGHTS - PRELIMINARY
COPYRIGHT.

INJUNCTION-INFRINGEMENT

OF

A preliminary injunction should not be granted for the infringement of a copyright after months of delay, where it appears that defendants did not know of the existence of plaintiff's work until the commencement of the suit.

In Equity. Suit by Charles Gerard Eichel and another against Max Marcin and others for the infringement of a copyright. On motion for injunction pendente lite. Motion denied.

Ruskay & Ruskay, New York City, for plaintiffs. Nathan Burkan, New York City, for defendants. MANTON, D. J. The defendant, Max Marcin, claims to to be the author of a play registered for copyright called "Cheating Cheaters.' The defendant Woods produced the play on the 9th of August, 1916, at the Eltinge Theater, New York City, where it has been playing since. The Eltinge Theater is controlled by the A. H. Woods Theater Company. Woods is the president and general manager of the "Cheating Cheaters" company.

The plaintiffs claim they are the sole and exclusive proprietors and owners of a satirical melodramatic farce or play entitled "Wedding Presents," written and composed by them jointly; that it has never been published or produced in this or any foreign country and that it was copyrighted under the copyright law of the United States under the title of "Wedding Presents" on the 18th of December, 1915.

The latter part of January, 1916, the plaintiffs submitted a copy of this play entitled "Wedding Presents " to the defendant Woods by leaving a copy thereof at his office, the Eltinge Theater, with a Mr. Hoffenstein, then connected in business with said defendant. This dramatic composition was returned to the plaintiffs about two months later. The inference sought to be drawn and the claim by the plaintiffs is that the title of this composition was changed to "Cheating Cheaters" and the play has been stolen in violation of the plaintiffs' copyright, and the defendants should be restrained from producing it longer. The bill of complaint asks for the usual relief of damages in addition to an injunction.

Marcin, a playwright by profession, has produced such well known plays as "The House of Glass" and "See My Lawyer." Prior thereto he was a reporter and author, had written several novels and a number of short

stories which have been published in current magazines. He declares that his previous stories were so-called detective stories and were built upon detective plots. "Cheating Cheaters" is a crook play with a woman detective as the leading figure. It has had a full season's run and has proven very successful dramatically and financially and, therefore, has had the approval of the theater-going public. Marcin swears the first act and part of the second were written as early as January, 1915, and in the month of January, 1915, he read to the defendant Woods, the part written at that time and outlined the balance of the proposed play. It pleased Woods and he then agreed to finish the production, which he did in April, 1916. He explains his delay in the production of the finished manuscript, stating that he was engaged in preparing the plays "The House of Glass" and "See My Lawyer." He denies any knowledge of the manuscript "Wedding Presents" and the story therein told, until the present action was instituted. Woods makes substantially the same claim. The affidavit of Woods's representative, Mr. Hoffenstein, denies the use of the play "Wedding Presents" and, indeed, deposes that he never as much as finished its reading.

Briefly stated, the story of "Wedding Presents" is as follows:

The main idea is based upon the skillful attempt of Jack Barnes, the son of a police commissioner, who, in order to win the girl with whom he is in love and the consent of his father to the match, undertakes to apprehend a notorious band of thieves known as the "wedding present trio." After a honeymoon, a young couple return to their home and employ a maid called Marie. She is in fact Jack Barnes. The wedding presents are displayed, a notorious gang known as the "wedding present trio," much sought by the police, makes entry into the apartment by means of an aeroplane landing on the front balcony of the house, this through permission obtained from the superintendent of the building. Marie assumes the identity of "Chicago Nell," a notorious crook, and with the butler, Dennison, find themselves in this home. The famous Dunne jewels and the wedding presents become the object of their plans. Other characters, Second Story Smith, Frenchy, the aviator, and Frisco Kate, the bogus Lady Dunne, are introduced.