actions by individual members of the association for violation of copyright is justified for the protection of income from their music. Plaintiff wishes to use the product of the author's labor, ignoring copyright, free of any charge whatever, except the actual purchase price of the printed musical score. There is no restraint of trade through any act of the association. Plaintiff may use any music not the property of the members of the association without objection by the association. The only restraint on plaintiff is the possible right of the authors or owners of such music to prevent its use. The moving-picture exhibitors have spent thousands of dollars advertising music which may be used by orchestras, irrespective of the wishes of the defendant association or its individual members. The fact that the music of the authors, who are members of the association, is popular and in demand presents just so much more reason why it should be protected, and its unauthorized use at public entertainment given for profit prevented. Practically the exhibitors of moving pictures seek to obtain by injunction the right to publicly perform copyrighted musical compositions for profit, without a consent of the holder of copyright, and without compensation to him. Motion denied. EX PARTE THE BIDDLE CORPORATION Decided March 4, 1918 256 Patent Office Gaz. 821 LABELS-LABEL CONTAINING PUBLIC INSIGNIA-NOT REGISTRABLE. Held that it is against public policy to register a label including public insignia. On appeal. LABEL FOR GAME Mr. Rudolph M. Hunter for the applicant. CLAY, Assistant Commissioner. The applicant for registration of a label entitled "The Neutral Game of War, Peace, and Indemnity" appeals from a refusal of registration based on the fact that the label shows the national flags of a great many foreign countries. The label is marked with red and white horizontal stripes and a central blue field; but it does not exhibit specifically any insignia of the United States. The ground of the refusal is a general objection to aiding in the commercial use of the flags of foreign nations. As this particular label does not use the flag in a way which is offensive, and, moreover, the use of the flags together is more or less descriptive of the goods bearing the label, this case raises the broad question whether this office ought in any case to register a label which employs any national flag as a device for ornamental advertising. The applicant correctly states in argument that the copyright law, like the patent law, omits to specifically interdict the use or registration of reproductions of public insignia. The refusal, if justified, must be based on broader principles and on the distinctions between the copyright in works of art as such and the registration of commercial labels, in which in the art, if any, is applied to the utilitarian purpose-perhaps it may be said the base purpose of promoting the sale of merchandise. Copyright was intended to promote the arts by encouraging authors, which encouragement was to be effected by securing them in their right to reproduce and copy their work. The term "author" includes the artist, and properly copyright only subsists in work which may properly be said to be the work of an author or artist. That work is reproduced and sold per se and for its own intrinsic value. It is not a mere instrument for making more attractive and therefore advertising goods in commerce. The label is registered in a different way, and in a different place, and there is a decided distinction based upon the use of the supposed art involved. For this reason it may be quite proper to refuse registration to labels including public insignia when it would not be proper to refuse copyright on a work of art containing them. The wording of the statute of 1874, under which labels are registered, is that no prints or labels designed to be used for any other articles of manufacture than pictorial illustrations or works connected with the fine arts shall be entered under the copyright law, but may be registered in the Patent Office. Notwithstanding this sharp distinction the commissioner is to control the * * entry or registry * in conformity with the regulations provided by law as to copyright of prints. No court decisions have been found which deal with this apparent inconsistency or with the question whether the registration of labels is purely on the principle of encouraging art. There is some analogy between the position of the commercial label and that of the petty patent of the Germans (Gebrauchsmuster). This is a protection designed to fill the gap between the protection of artistic designs and the protection of inventions. The patent is granted only for true inventions. The design patent is for the protection of ornamental designs exhibiting taste and art, deriving their value mainly from their appearance. Between these two classes there exists a class of useful creations which are not important enough to warrant the issue of a patent, nor possess the esthetical feature required by the law * * * of ornamental designs, and yet deserve protection. It is this class of inventions which the (Gebrauchsmuster) law is intended to protect (Brandon Bros. Treatise on European Patents, 5th ed., Paris, 1910, p. 62). Similarly commercial labels are protected under our law on the theory of encouraging that sort of bastard art which is used as an aid in advertising. It has been held in this office that the degree of artistic merit in a label will not be inquired into. (Ex parte Parke & Tilford, 114 MS. D., 310.) On the other hand, the registration is not to be granted as a mere ministerial function. (Allen et al. v. United States, 22 App. D. C., 271; 105 O. G., 747.) The office has several times held that it is contrary to public policy to register a label containing the flag, because it detracts from the honor due the flag and is offensive to the citizen. (Ex parte Ball, 98 O. G. 2366; C. D., 1902, p. 102; ex parte Steinecke Company, 122 O. G. 3011; C. D., 1906, p. 230; ex parte The Fishel Co., 120 MS. D. 229.) In ex parte Interboro Brewing Co. (112 MS. D., 141) there is the specific holding that there was nothing in the statute to prohibit the use of public insignia in a label to be registered, making no distinction between our own coat of arms and a foreign (in that case Prussian) coat of arms; but I think this does not reach the question whether for reasons outside the statute and inherent in the power to pass upon the question whether the thing is a registrable label the commissioner may refuse to register public insignia. It happens that since the lastcited decision the Congress has indicated its views by the act of February 8, 1917 (Public, 305; 39 Stat. L. 1, ch. 34, p. 900), prohibiting the use of the flag for advertising in the District of Columbia. In view of that act the Patent Office could not register a label whose use would thus be unlawful in any place. There is nothing to show that the Congress here considered the question of the use of a foreign flag in trade; but in the trade-mark act of February 20, 1905 (sec. 5), there is indicated an intention to treat the foreign flag in the same way as own, and this is in accordance with the principle of international comity and the spirit of the copyright law. In view of this I think this office should refuse to lend aid and encouragement to the use of the flag of any nation as an advertising device by registering a label employing such flag or insignia. our The examiner's action refusing the registration is therefore affirmed. TED BROWNE MUSIC CO. v. FOWLER ET AL. (Circuit Court of Appeals, Second Circuit, June 4, 1923) 290 Fed. Rep. 751 1. PARTIES-OBJECTION MUST BE MADE PROMPTLY. Objections relating to parties must generally be made promptly, or they will be deemed waived. 2. EQUITY-FAILURE TO JOIN ISSUE WAIVED BY PROCEEDING ΤΟ TRIAL. Failure to file an answer, bill, or reply, or any pleading which is necessary to frame an issue, or otherwise failing to join issue properly, or at all, on any and all of the allegations appearing in the pleadings, is deemed waived by voluntary proceeding to trial as though issue was properly joined. 3. COPYRIGHTS-PLAINTIFF MUST BY PROPER AVERMENTS CONNECT HIMSELF WITH COPYRIGHTS. Where a copyright is not obtained in the plaintiff's name, the plaintiff in a suit for infringement must connect himself with it by proper averments, showing assignment or transfer of it to him, or a license under it sufficient to entitle him to sue, and, where the facts are properly stated, the legal conclusion therefrom may be pleaded, even in the alternative form, in such an endeavor. 4. COPYRIGHTS-OWNER OF EQUITABLE RIGHTS MAY SUE IN EQUITY. The owner of the equitable title to a copyright is not a licensee, and may sue in equity, particularly where the owner of the legal title is an infringer, or one of the infringers, thus occupying a position hostile to the plaintiff, in view of act March 4, 1909, section 36 (Comp. St. sec. 9557). 5. COPYRIGHTS-OWNER OF LEGAL TITLE MUST BE GENERALLY JOINED AS PARTY. In a suit for infringement by the owner of only an equitable title to a copyright, the owner of a legal title must ordinarily be joined as a party. 6. COPYRIGHTS-ONE OBTAINING COPYRIGHT OF JOINT WORK HOLDS LEGAL TITLE IN TRUST. The author, who obtains a copyright of a joint work in his own name, has legal title in trust for the benefit of his colleagues. 7. COPYRIGHTS-INFRINGEMENT IS A TORT, AND INFRINGERS ARE JOINTLY AND SEVERALLY LIABLE. Infringement of a copyright is a tort, and all persons concerned therein are jointly and severally liable as such joint tort-feasors. 8. COPYRIGHTS-PERSONS INFRINGING SEVERALLY NOT TO BE SUED JOINTLY. Where the defendants have acted severally, and not jointly or in concert, in committing an infringement of a copyright, they can not be sued jointly. Appeal from the District Court of the United States for the Southern District of New York. Suit by the Ted Brown Music Company against Lemuel Fowler and others for an injunction restraining them from infringing complainant's copyright. Decree for complainant. Defendants appeal. Modified. Abner Greenberg, of New York City, for appellants. L. and A. U. Zinke, of New York City (Alexander U. Zinke and Ire J. Schuster, both of New York City, of counsel), for appellee. Before Rogers, Manton, and Mayer, circuit judges. MANTON, Circuit Judge. The appellee claims title to the copyright in question by reason of an assignment dated April 23, 1921, wherein the appellant Fowler sold to the Francis Clifford Music Company (Inc.), music publishers, in Chicago, Ill., the words and music of a song, "He May Be Your Man, But He Comes to See Me Sometimes." This contract provided that, in the |