advertised in "Collier's, The National Weekly," a publication having a large circulation, an advertisement describing the proposed publication of said books; that the income derived from the books already published and distributed has been large, while the income from the books not yet published or distributed has promised to be much larger; that plaintiff has also caused a similar advertisement to be published in all the leading magazines in the United States; that the plaintiff caused to be printed a pamphlet of 25 pages entitled, "Announcement of the Harvard Classics, edited by Charles W. Eliot, LL. D., Dr. Eliot's Five-Foot Shelf of Books, P. F. Collier & Son, Publishers;" that said pamphlet was placed in the hands of some 3,000 representatives of the plaintiff for their use in securing subscriptions for said books; that, notwithstanding that the words "Dr. Eliot's Five-Foot Shelf of Books" have become descriptive of and are a trade-mark of said books, the defendants have, since November, 1909, with intent to deceive and defraud the public and to damage the plaintiff, ad- Page 992. vertised in a magazine and a daily newspaper, both having large circulations, that they are preparing and about to publish a series of 10 volumes under the designation of "Dr. Eliot's Five-Foot Shelf of the World's Best Books," and "Dr. Eliot's Five-Foot Shelf of the World's Greatest Books"; that in said advertisement the defendants solicit from the public subscriptions for the said 10 volumes for the sum of $4.25.

The complaint further alleges that the defendants, seeking unfairly to compete with plaintiff in respect of his enterprise aforesaid, have advertised and offered for sale and published the sets of books heretofore referred to. The affidavits submitted and the correspondence therein referred to show that the defendants had knowledge of the publication by the plaintiff, and the agreement between the defendant Jones and Messrs. Thwing and Beers, referred to in the defendant Jones's affidavit, also shows that the defendants feared that there might be some legal proceeding enjoining them from interfering with the plaintiff in the publication of the books advertised by him. The defendant the Circle Publishing Company consents to the granting of an injunction.

There appears to be no doubt that the defendants are seeking by unfair competition or unfair trade in putting upon the market a series of books, while not similar in

appearance and make-up to the set which plaintiff has published, yet, in adopting the name of "Dr. Eliot's Five-Foot Shelf of Books," the title which plaintiff has advertised extensively for a long while, indicates an attempt to deceive the public into buying defendants' publications, believing them to be those published by the plaintiff. While it is conceded by the defendants that their publications are of less value, yet, as their books are offered for sale by subscription, the purchaser will not see the books until they are delivered. Mr. Justice Scott, in Dutton v. Cupples (117 App. Div. on p. 176, 102 N. Y. Supp. on p. 312), says:

Nor, in so flagrant a case as the present, is it necessary to prove that any person was actually deceived by the imitation. It is apparent that there was every probability of such deception, and that is precisely what the law seeks to prevent. (Vulcan v. Myers, 139 N. Y. 364, 34 N. E. 904.) Upon the general right of the plaintiff to protective relief we can not see any reason why the same rule should not be applied to a book that has been applied to a game, or to cigars, or to anything else which is distinguished by a label, or by the distinctive form or style of the package. The decisive fact is that the defendants are unfairly and fraudulently attempting to trade upon the reputation which plaintiff has built up for its books. The right to injunctive relief in such a case is too firmly established to require the citation of authorities.

For these reasons the motion for an injunction pendente lite will be granted upon the plaintiff giving an undertaking in a sum to be fixed upon the settlement of the order.

[120 New York Supplement, pp. 991-992; 66 Miscellaneous Reports, pp. 97-100.]

Davies

15, 1914.

Bowes, Dec.

Page 179.

DAVIES v. BOWES.

(Circuit Court of Appeals, Second Circuit. December 15, 1914.)

v.1. COPYRIGHTS-SUIT FOR INFRINGEMENT EVIDENCE OF COPYRIGHT. In a suit for infringement, the certificate of the register of copyrights that two copies of plaintiff's work published in a New York newspaper of June 23 were received as copyright deposits on June 24 was not sufficient evidence that they were delivered at the office of the Librarian of Congress or deposited in the mail addressed to him on June 23, as required by act March 3, 1891, ch. 565, sec. 3, 26 Stat. 1106, notwithstanding copyright act 1909 (Act Mar. 4, 1909, ch. 320, sec. 55; 35 Stat. 1086; Comp. St. 1913, sec. 9576), providing that such certificate shall be prima facie eviIdence of the facts stated therein.

2. COPYRIGHTS-SUIT FOR INFRINGEMENT EVIDENCE OF COPYRIGHT. Under copyright act 1909, sec. 55, providing that the certificate of the register of copyrights therein required to be given to each copyright claimant shall be admitted in any court as prima facie evidence of the facts stated therein, a certificate stating that two copies of a publication were received "as copyright deposits" on a certain date was not prima facie evidence that they were delivered or mailed in time, but only that they were turned over to his office in attempted compliance with the copyright statute, as the Librarian of Congress, when a copy is delivered to him or comes to him by mail, is required to make no investigation as to the date of the publication.

Appeal from the District Court of the United States for the Southern District of New York.

This cause comes here upon appeal from a decree dismissing a bill for infringement of United States copyright. The complainant, a writer in the employ of the Sun Printing & Publishing Company, published in the Evening Sun of June 23, 1908, a story which purported to be a "real life drama," a narrative of events occurring in the presence of the narrator in an unnamed little town in the interior of Massachusetts. The Sun Printing & Publishing Company undertakes to copyright the entire copy of each edition of the Evening Sun. Whatever copyright it obtained in this story it assigned to the plaintiff. The story was really not a narrative of facts, as it purported to be, but was in large part pure fiction, the imaginative work of the writer. It presented some dramatic incidents.

Defendant has produced a play called "Kindling," containing certain dramatic incidents, which complainant contends constitute an infringement of the copyrighted story.

The district judge dismissed the bill for reasons which will be found in his opinion, reported 209 Fed. 53.

Edward Lauterbach, of New York City, for appellant. G. B. Rosenheim, of New York City, for appellee. Before Lacombe, Coxe, and Ward, circuit judges. LACOMBE, Circuit Judge. The statute in force at the time, section 3 of the act of March 3, 1891, made it an essential to the securing of a valid copyright that on or before the day of publication a printed copy of the title or book, etc., shall be delivered at the office of the Librarian or deposited in the mail addressed to him. The record shows compliance with this provision of the

Page 180.

act. The statute further provides as an essential to securing a valid copyright that not later than the day of publication two copies shall be either delivered at the office of the Librarian or deposited in the mail addressed to him. The day of publication was June 23, 1908.

To entitle the complainant to maintain this suit it must, therefore, appear that the two copies were delivered on that day or mailed on that day. The complaint alleges that the two copies were delivered or caused to be delivered to the Librarian on June 24, 1908, which is a day later than the day of publication. The complaint thus fails to allege compliance with the statute; but, if the proofs showed compliance, the complaint could be amended to conform thereto.

[1] The only evidence introduced on this point is the certificate of the register of copyrights that two copies of the Evening Sun of June 23, 1908, "were received as copyright deposits on June 24, 1908." It was physically possible for these copies to have been sent to Washington by messenger on an early train June 24, and delivered to the Librarian on that day. It was also physically possible for them to have been deposited in the mail in New York on June 23, and to have reached the Librarian on June 24. In the latter case, the statute would have been complied with; in the former case, it would not. We cannot say which course was followed, in the absence of testimony; therefore, complainant has not proved this essential fact, and has not shown the granting of a valid copyright, under the statute.

[2] He is not helped by the provisions of act 1909, section 55, that the certificate shall be prima facie evidence of the facts stated therein, because the only fact stated is that the two copies were received on June 24. The statement in the certificate that they were received

66

as copyright deposits" indicates nothing more than they were turned over to the office in attempted compliance with the copyright statute. The receipt of them by the Librarian does not involve any determination by him as to whether or not the deposit is made in time; he is not required to make any investigation when a copy is delivered to him or comes to him by mail as to what was the date of publication. The complaint was properly dismissed.

Although we place our affirmance on this ground, we may state, without reciting at length the various inci

dents of the newspaper story and of the play, that we are inclined to the opinion that the play would not infringe the copyright of the story, if such copyright had been proved.

Decree affirmed, with costs.

[219 Federal Reporter, pp. 178–180.]

DE BEKKER v. FREDERICK A. STOKES CO. ET AL.

(Supreme Court, Appellate Division, Second Department. June 11, 1915.)

LITERARY PROPERTY-CONTRACT FOR

AUTHOR.

PUBLICATION-RIGHTS

66

OF

Where plaintiff contracted with the S. publishing company for the publication of his work under the name S. Encyclopedia of Music," the contract recognizing the author as such, and he transferring the sole right to publish and sell such work during the term of copyright, etc., for a cash payment and a 5 per cent royalty on catalogue prices, and where, after selling a number of copies in the regular trade way, the S. publishing company contracted with the U. publishing company to issue the work as two of a 10volume set which the U. publishing company was getting out under the title of the Encyclopedia of Music, the plaintiff author was entitled to judgment restraining such second publication and confining publication to the S. company under the name agreed upon by him since, his contract being for the publication of the book under such name, he had the right to insist upon the performance of the provision that the identity of his creation might be preserved.

Appeal from special term, Kings County.

Action by Leander J. De Bekker against the Frederick A. Stokes Company and the University Society, Incorporated. The defendants appeal from an interlocutory judgment. Reversed, and new trial granted.

Argued before Jenks, P. J., and Thomas, Carr, Stapleton, and Putnam, JJ.

De Bekker v. Frederick A. Stokes Co., June 11, 1915.

Frederick Trevor Hill, of New York City, for appel- Page 1067. lants.

Harold G. Aron, of New York City (Stephen L. Vanderveer, of New York City, on the brief), for respondent. THOMAS, J. In July, 1907, the plaintiff and the Stokes Company made a contract concerning a work for which they established the name "Stokes' Encyclopedia of Music." The work at the outstart was treated as existing, and the plaintiff was in terms related to it as author

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