that the modern tendency is to issue temporary injunctions more freely than in earlier times, and that each case really, at bottom, rests upon its own peculiar facts.

We think the rule is correctly laid down in Drone on Copyright (p. 516), where it is said:

Although the matter may not be wholly free from doubt, yet if the plaintiff makes out a prima facie case, and the court is reasonably satisfied that a piracy has been committed, a temporary injunction will usually be granted, especially if the consequences are likely to be more serious to the plaintiff if the injunction is withheld than they will be to the defendant if it is granted.

Where the plaintiff has made a prima facie case in regard to the existence of the copyright and its infringement, a temporary injunction will, as a general rule, be issued. (George T. Bisel Co. v. Bender (C. C.), 190 Fed. 205; Da Prato Statuary Co. v. Giuliani Statuary Co. (C. C.), 189 Fed. 90.)

[14] We do not deem it necessary to recapitulate the facts of this case, which have been set forth at the beginning of this opinion. It is enough to say that they make it out, in our opinion, a prima facie case in the plaintiff's favor.

[15-17] A demurrable complaint will prevent a preliminary injunction. (Ladd v. Oxnard (C. C.), 75 Fed. 703.) But the bill of complaint seems to us sufficient, if not in its original, then in its amended, form. It alleges title in the complainant, and in its amended form that it is still the owner of the copyright. It is not necessary to allege the various steps by which the plaintiff became the proprietor of the work. The notice of copyright is in statutory form. (See West Publishing Co. v. Edward Thompson Co. 176 Fed. 833, 836, 100 C. C. A. 303.)

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[18] The fact that the plaintiff did not actually publish the book until January, 1915, and that the printed notice of copyright, inserted when the printing was begun, reads 1914," seems to us a matter of no consequence. Baker v. Taylor (2 Fed. Cas. 478, No. 782), which is relied upon by defendant, does not sustain his position. In that case the title page containing the notice was deposited in the clerk's office in 1846, and the notice as printed in the book stated that the entry was made in 1847. In that case the mistake made claimed a date a year too late, thereby claiming a year longer for

the monopoly than the party was entitled to. But in the case now being determined the notice claims a year less than the copyright act allows. The distinction is one with a difference, and the mistake is not to be regarded as invalidating the notice. The error made is in favor of the public in this case and against the public in the other case. And the Supreme Court held in Callaghan v. Myers (128 U. S. 617, 654, 657, 9 Sup. Ct. 177, 32 L. Ed. 547) that copyright is not vitiated by an error in favor of the public.

[19] In an application for a preliminary injunction in such a case as the one now before the court, the plaintiff's affidavits should satisfactorily show that the defendant has actually copied into his book copyrightable matter taken from plaintiff's work. In the affidavit made by the president of the plaintiff corporation that official states:

I have compared the two books, and find that the text thereof, with the exception of advertisements, is identical, including part 3 and the mutilation table. I have been in the code business for 29 years, and from my familiarity with such books am confident that the infringing book was produced by photo-engraving from the plaintiff's book. This would be the only practicable way of making a book which could be used in connection with former editions of the code, or with the edition published by the plaintiff, as it is essential that the code words in messages be identical to avoid errors in translation. In addition, I have made a casual comparison of the two books, and find certain peculiarities in the plaintiff's book identically reproduced in the other. For example, in the mutilation table, as the plaintiff also publishes a Spanish edition, Spanish as well as English words are used in the heading. In the last line but one of the directions for use the word "are" is slightly misplaced. On page 6111A the last letter on the page resembles a 3. The headings of pages 614A, 615A, 616A, and 617A show slight irregularities in the position of the A. On page 971, in the line numbered 53521, there is a slight speck under the word aullabas. In line 53559 there is a curved line in the A of Auralium.

It seems that Wolins has appropriated everything the plaintiff copyrighted, and has reproduced the same by photolithographic processes, and is proposing to sell it at a much cheaper rate than the plaintiff. This, of course, he can not be permitted to do. In what we have said we are not passing judgment, except on the prima facie case. What may be shown, when the case comes to be heard on the merits, as to the plaintiff's title to the copyrighted work, we do not now know.

Certain questions were raised by defendant which we do not deem of sufficient importance to merit discussion. They have not been overlooked, but we can not help regarding them as trivial.

[20] It appears from the affidavit which defendant Wolins, presented to the court below in opposition to the motion for a temporary injunction, that as yet he has sold none of the books printed by him and which are alleged to infringe, but that he has gone to considerable expense in printing said books, having expended approximately $15,000, and that he has now in stock bound books ready to be sold and unbound books of the approximate value of $50,000. The temporary injunction puts the defendant's business practically at a standstill.

When an order to show cause why a preliminary injunction should not issue was obtained, a temporary restraining order was granted on the complainant's giving a bond in the sum of $250. Afterwards, when the motion for the preliminary injunction was heard and granted, the order granting it stated that it was "without the complainant giving any further bond." We think that, under all the circumstances of this case, the bond for $250 is quite inadequate. It is the opinion of this court that the complainant is entitled to retain its preliminary injunction, but on condition that it gives a satisfactory bond in the sum of $5,000. The questions involved are, in our opinion, sufficiently serious to make a bond for a merely nominal amount an inadequate protection.

The case is remanded, and the court is directed to modify its order, by making the issuance of the injunction conditioned upon the plaintiff's giving a bond in the sum of $5,000. The order in all other respects is affirmed.

AMUSEMENT CO. v. MAXWELL ET AL.

(Supreme Court, Trial Term, New York County. April 4, 1918)

169 N. Y. Supp. 395

MONOPOLIES-ASSOCIATION OF COMPOSERS, ETC.

An association, consisting entirely of authors, composers, and publishers of musical works, formed for the purpose, among others, of protecting the rights of such authors and 103300°-26

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composers in their copyrighted musical productions, by legal proceedings or otherwise, is not a combination in restraint of trade, and exhibitors of moving pictures, who have purchased printed copies of such musical compositions, would have no right to publicly render such music for profit without consent, or license of holder of copyright, and without compensation to him, and to restrain such association from interfering with his use thereof, though such music is such as is denominated "popular."

Action by the 174th Street & St. Nicholas Avenue Amusement Company against George Maxwell and others. Motion for a restraining order during pendency of action denied.

Goldsmith & Rosenthal, of New York City, for plaintiff.

Nathan Burkan, of New York City, for defendants.

GOFF, J. Motion for an order restraining and enjoining, during the pendency of this action, the defendants from demanding from plaintiff and others similarly situated any license fee as a condition precedent to the playing of any of the musical compositions of the defendants, and from performing any act or acts whatsoever in concert which would prevent the playing by the plaintiff and others similarly situated of any of the musical compositions of the defendants desired to be played by them.

Plaintiff is a domestic corporation, engaged in conducting a moving-picture theater giving daily exhibitions of moving pictures to the general public. Such moving pictures are displayed while musical numbers are rendered by musicians employed by plaintiff. The defendant "American Society of Composers, Authors, and Publishers" is an association composed entirely of authors, composers, and publishers of musical works of various description. Its purpose, among others, is to protect the rights of authors and composers in their musical productions, and, if necessary, to procure legal protection of such rights. The association, by consent of its members, grants to any moving-picture operator, or to any proprietor of a public entertainment, permission to play all the musical compositions of all of its members for a fee graduated according to the seating capacity of the place of entertainment. The musical productions of the individual members of the association are protected by copyright. When a place of amusement publicly renders any composition of any member of the asso

ciation without permission obtained through payment of the fee to the association or by consent of the author, a notification of infringement of copyright is sent to the proprietor of such place. If no attention be paid to the notification, an attorney employed by the association takes legal action with the author of the composition so publicly played as plaintiff against the person producing it as defendant for the infringement of copyright. The author may permit, on any terms satisfactory to himself, any person to play any or all of his individual compositions, irrespective of any action of the association. The permit or license issued by the association grants the rights to play all the compositions of its members. The association does not control the production of printed music or its distribution, or determine its market price.

Plaintiff alleges that a custom of music publishers has existed of distributing printed copies of musical compositions to orchestras to have the composition rendered and to obtain the advertising from rendition. Plaintiff alleges an understanding between authors, publishers, and composers prior to the formation of the defendant association that the purchase of copies of the printed music entitled them to be rendered in the place of business of the plaintiff or others similarly situated without further cost or expense. Plaintiff alleges that there are more than 50,000 places in the United States used for public accommodation, where popular music is rendered incidental to the business conducted, and that the amount sought to be collected by the defendant association exceeds the sum of $2,000,000 annually. It also alleges that the intent of actions instituted in the United States courts is to compel thousands of moving-picture theaters in the United States to pay the license fee to the defendant association and that threats of other suits than those pending have been made to proprietors of moving-pic-" ture theaters and other places of amusement. From this alleged coercion plaintiff appeals for injunctive relief.

After considering the argument of counsel and their briefs I am of the opinion that the defendant association is exercising only its lawful rights. It existed before the incorporation of the plaintiff and was engaged in the same general work before the plaintiff's existence. The association is formed for lawful purpose, and I find no exercise of any coercion. The institution of legal