ber in "Wedding Presents," and 13 in "Cheating Cheaters," are not similar in point of motive, make-up, or dialogue. In "Cheating Cheaters" there are two gangs of crooks, and while it might be said there are two gangs of crooks in "Wedding Presents," I do not think there is a similarity of characters as claimed by the plaintiffs. The landing on the balcony of the eleventh floor of a Riverside apartment in an aeroplane and its subsequent flight across the Hudson River is far-fetched. It is impossible that such a machine could come and go from the 3 by 8 foot balcony.

[1] The object of copyright is to promote science and the useful arts. If an author by originating a new arrangement and form of expression of certain ideas or conceptions could withdraw these ideas or conceptions from the stock of materials to be used by other authors, each copyright would narrow the field of thought open for development and exploitation; and science, poetry, narrative, and dramatic fiction and other branches of literature would be hindered by copyright instead of being promoted. A poem consists of words, expressing conceptions of words or lines of thoughts, but copyright in the poem gives no monopoly in the separate words or in the ideas, conception, or facts expressed or described by the words. A copyright extends only to the arrangement of the words. Page 409. A copyright does not give a monopoly in any incident in a play. Other authors have a right to exploit the facts, experiences, field of thought, and general ideas, provided they do not substantially copy a concrete form in which the circumstances and ideas have been developed, arranged, and put into shape. (Holmes v. Hurst, 174 U. S. 82, 19 Sup. Ct. 606, 43 L. Ed. 904.)

[2] The plaintiffs have prepared a chart in which they point out the similarities in the two plays, and they claim that their composition may be called a "crook play" in which two bands of crooks are trying to cheat each other and that the subjects of their cheating are some famous jewels. Further, that both plays deal with thieves masquerading as respectable citizens, detectives, and robbery planned and carried out as an inside job, and then that the big surprise is that the leading crook is in reality a detective, and then, of course, a love affair.

But the idea of showing a band of thieves in action is as old as the idea of a man impersonating a female for

Page 410.

the purpose of detecting a crime. This was well exploited in "The Crinoline Girl." The court has been furnished with the manuscript of this play. In "The Crinoline Girl," Tom Hale hears of a $25,000 reward for the recovery of a necklace and other jewelry stolen by a gang of thieves, who specialize in fancy dress balls as the theater of their prey. When the lights are put out the thieves lift the jewels from the guests, a woman confederate then drops them out of the window to a waiting partner, robing herself anew in dress smuggled into the house for that purpose. Hale, in discovering the thieves at a ball, overpowers this female character, assumes her disguise, and finally succeeds through this disguise in capturing the thieves and turning them over to the authorities.

The subject of stealing wedding presents was pretty well exploited in "Stop Thief," which was played in New York in 1912. On the eve of the wedding of a youth, who is troubled with fits of kleptomania, a lady's maid is introduced into the house. The best man, knowing the groom is subject to taking things, unconsciously, that do not belong to him, tries with the bride, who knows his failing, to keep this a secret. The lady's maid turns out to be an advance agent for a thief, a man whom she is to marry. He arrives after she has looked over the place and together they lay ingenious plans for relieving the house of the wedding presents. The easy-going thief is thought, by the kleptomaniac, to be the detective he had sent for and accuses himself of having removed the valuables that are already beginning to disappear. The absent-minded parent hands the thief his money and asks him to keep it for him. Other members of the family confide in the thief the whereabouts of their valuables. Just as the two thieves have gotten everything in the house together and are making ready for their escape, a capitalist, who demands certain stock which he had given to the absent-minded parent as collateral for a loan, enters. The stocks can not be found, the capitalist's money disappears, and he threatens punishment for everybody and goes out in search of a warrant. The officers enter with a warrant; the warrant is stolen, then deposited carefully in the absent-minded one's pocket. The officers, waiting for another warrant, hold the household while the thieves are trying to escape. The klepto

maniac tries to avoid the consequences of his innocent depredations and his wife tries to find out what the absent-minded one has concealed about his person. The money is eventually found in possession of the minister, the thieves hold up the whole party at the point of a pistol, and in conclusion the absent-minded parent reenters with all the booty which he, single-handed, has recovered.

The idea of introducing into a respectable household thieves masquerading under the guise of respectability for the purpose of plunder is also old. This appeared in the play "Black Birds." The court has been furnished with a copy of this composition. There two clever confidence operators scheme a plot to extort money from a rich Detroit family. Under false names they become guests of their victims, and employ an agent for effecting a marriage between the daughter of the host and a titled gentleman (one of the schemers). After an interview with a religious old grandmother one of the schemers is conscience stricken. She reforms and assists her confederate, with whom she is in love, to escape from the police who are about to arrest him for a crime committed in London.

In "Secret Strings," staged in New York in December, 1914, the leading lady associates with a band of crooks, who plot to rob a countess of her magnificent jewels, and in the moment of triumph is surprised by a drawn revolver and simultaneously the count and countess reveal themselves to be two noted detectives who have been playing the parts assigned them to lure and arrest the famous criminal, of whose intentions they have been fully forewarned. The leading lady, however, makes her escape by a trick in disarming the chief detective. She then is able to look forward in expectation of a life of happiness with the man she loves.

Thieves and police officers have been staged together in hundreds of plays. It was well illustrated in recent years in a most successful drama, "Within the Law."

There is an important distinction between copyrights and patents. Letters patent give a monopoly to make, vend, and use, while copyright does not give an exclusive right to use. Copyright protection is extended to authors mainly with a view to inducing them to give their ideas to the public so that they may be added to the intellec76228°-17-36

Page 411.

tual store, accessible to the people, and that they may be used for the intellectual advancement of mankind.

It was well put by Lord Mansfield in Sayre v. Moore (1 East. 361) when he said:

We must take care to guard against two extremes equally prejudicial. The one, that men of ability who have employed their time for the service of the community, may not be deprived of their just merits and the reward of their ingenuity and labor; the other, that the world may not be deprived of improvements, nor the progress of the arts be retarded. The act that secures copyright to authors guards against the piracy of the words and sentiments, but it does not prohibit writing on the same subject.

An author may have no monopoly upon any theory propounded by him or in the speculations by which he has supported it, nor even in the use of the published results of his own observations. (Baker v. Selden, 101 U. S. 99, 25 L. Ed. 841; Bauer v. O'Donnell, 229 U. S. 1, 33 Sup. Ct. 616, 57 L. Ed. 1041, 50 L. R. A., N. S., 1185, Ann. Cas. 1915A, 150.) In Chatterton v. Cave (3 App. Div. 483), Lord Blackburn said:

An idea may be taken from a drama and used in forming another without the representation of the second being a representation of any part of the first. For example, I have no doubt that Sheridan, in composing 'The Critic," took the idea from "The Rehearsal," but I think it would be an abuse of language to say that those who represent "The Critic" represent "The Rehearsal," or any part thereof; and if it were left to me to find the fact, I should, without hesitation, find that they did not.

The resemblances between the two dramatic compositions, I am of the opinion, are minor instances and are not important. The copyright can not protect the fundamental plot which is common property, as was pointed out above, long before the story was written. It will, of course, protect the author who adds elements of literary value to the old plot, but it will not prohibit the presentation by someone else of the same old plot without the particular embellishments. (London v. Biograph, 231

Fed. 696, 145 C. C. A. 582.)

[3] Upon careful reading of both manuscripts, I can find no copy or intimation, plot, scene, dialogue, sentiment, or characters, aside from the general features and subjects, which are pointed out in the above as clearly open to common use. The court should be particularly hesitant about granting a preliminary injunction after months of delay and where it appears, by the affidavits of the de

fendants, that they did not know of the existence of the plaintiffs' manuscript until the commencement of this suit.

The motion for a preliminary injunction pendente lite will be denied.

[241 Federal Reporter, pp. 404-411.]

GOLDEN RULE, INC. v. B. V. D CO.

(Circuit Court of Appeals, Eighth Circuit. May 4, 1917.)

COPYRIGHTS-USE-RIGHT TO.

Plaintiff, the manufacturer of underwear, copyrighted the Golden Rule, Inc.. v. B. V. print of a figure of a young man clad in a suit of under- D. Co., May 4, 1917. wear. Defendant purchased underwear from plaintiff, and without the plaintiff's permission used such print in advertising the underwear, omitting the notice of copyright. Held, that there was an infringement of copyright, which was designed for and used in detached advertising, defendant having no right, on the theory that the copyright constituted a trade-mark, to use the same in advertising plaintiff's goods, for such print was not a trade-mark worked into the goods.

Appeal from the District Court of the United States for the District of Minnesota; Wilbur F. Booth, Judge.

Suit by the B. V. D. Company against the Golden Rule, Incorporated. From a decree for plaintiff, defendant appeals. Affirmed.

C. D. O'Brien, of St. Paul, Minn., for appellant.

Amasa C. Paul, of Minneapolis, Minn. (Hans v. Briesen, of New York City, on the brief), for appellee.

Before Hook and Smith, circuit judges, and Amidon, district judge.

Нook, Circuit Judge. This is a suit by the B. V. D. Company against the Golden Rule, Incorporated, for infringement of a copyrighted print of the figure of a young man clad in a suit of underwear. The plaintiff is a manufacturer in New York of a particular class of underwear, which it sells to the jobbing trade. The print was copyrighted by registration in the Patent Office Page 930. (Act June 18, 1874, ch. 301, sec. 3, 18 Stat., 78) and not with the Librarian of Congress or Commissioner of Copyrights, as required in the case of "pictorial illustrations or works connected with the fine arts." The plaintiff used it in advertising its manufactured goods.