(Oircuit Oourt, S: 'l). New York. April 3. 1882.\
A chromo, if a meritorious work or art, may be c9Pyrlghted, though designe.1 and used for gratuitous distribution as an advertisement for the purpose of attracting business.
SAME-WHO ENTITLED TO COPYRTOHor.
I t is only" authors and inventors" wilo, under the constitution, art. 1, § 8, are directly entitled to copyright. The title of all other persons is secondary, and derivative from them only; and, in claiming an injunction, third petsons must show a legal title and an exclusive right to the copyright, lawfully derived from the author or inventor ; to allege that the.plaintiff is" proprietor," without more, is not enough.
SAME-INJUNCTION-INFRINGEMENT-PROTECTION LIMITED TO NATIVE ART.
In a suit for an injunction to restrain an alleged infringement, where it appeared that the plaintiff had imported copies of a chromo designed and printed in Europe by a fortlign artist, and that the plaintiff had copyrighted the chromo by depositing two of his imported copies with the librarian of congress, and it further ...ppearedthat the defendant had never known. of such chromo being copyrighted, had never seen any copyrighted impression, and had availed.himself, in making a new chromo, of some material portions of thtl same design as plaintiff's chromo, which defendant had taken from a copy independently imported from Europe, and it did not appear whether the design of the plaintiff's chromo was new or old, or whether plaintiff had ever acquired anyexclusive right from the artist, held, that the motion for a preliminary injunction should be denied. Held, also, that congress;in the revision of the copyright act of 1870, and in adding in that act to the preVious subjects of copyright" a painting, drawing, chromo, statue, statuary, and models or designs intended to be perfected as works of the fine arts," did not intend any reversal or change of its inflexible policy, ever since the act of 1790, of protecting only native or resident authors and artists, and that the word" proprietor," in section 86 of thl! act of 1870, and in section 4952 of tb,e Revised Statutes, must be construed in the limited and restricted sense in which it has been used in every act from that of 1790 downwards, viz., as the legal representative of a right derived from a native or resident author or artist.
STATUTES-AMENDMENTS, HOW OONSTRUED-OROM08 EMBRACED IN "PRINTS."
Amendments of statutes are to be construed in harmony with a long-established policy rather than upon a me.re literal reading which would introduce two diverse and contradictory policies in the same statute. Held, also, that .. chromos," being in L,ct chromo-lithographic prints, were embraced in sections 1 and 8 of the act of May 21, 1831, under the term" prints," as well as in sections 86 and 103 (16 St. at Large, 212, 215) of the act of 1870, and are within the restrictions of section 4971 of the Revised Statutes; and that no copyright upon a chromo designed by a foreign artist abroad can be acquired by his representative resident here as "proprietor."
Motion for a Preliminary Injunction for Infringement of a Copyright. v.12,no.2-7
Oharles Un(Lngst, for plaintiff. W. F. Pitshke, for defendant. BROWN, D. J. The plaintiff moves, upon a bill of complaint and affidavits, for a preliminaryinj unction to restrain an infringement of the plaintiff's l'ights under ,a copyright alleged to have been obtained by twenty-third of August, 1880" upon "chromo" entitled him on "Gambrinus and his followers." The moving papers allege that the complainant on that day was a citizen of the United States, and "proprietor of said chromo;" that he filed on that day, before publicongress, the title or description cation, in the office thereof, and on the same day deptlsited in his office two copies of ,the same, and gave notice of hIs' copyright by inscribing on the visible front of such chromo, near tpe bottom, the words "Copyrighted 1880" by D. G. Yuengling, Jr., New York;" that he has been at great expense in producing such, chromo, and that the same is of great value to him; that he ha.s used it asa gratuitous,,Q..dvertisement in his business as a lager-beer brewer ; and that the defendant is about to issue tllpiratical imitation of such chromo, 'in violation<>f the plailltiff's right in such copyright. ' The complainant's chromo iF! of evident artistic merit. It is designed as a symbolic glorification of lager-beer drinking. In the center is a conspicuous figure of King Gambrinus, bis left arm resting upon lJo keg of lager, and his right holding aloft a foaming glass of that beverage. On either side of him are a dozen figures of persons representing various classes in life, into whose eager hands his pageis distributing the drink. This chromo, by its subject, its brilliant coloring, its excellent finish, and the artistic grouping of its figures, forms a striking picture, suitable for hanging in saloons, at!d well calculated to draw attention to the pla.intiff, whose name is printed in large type beneath the figures as a person engaged in the lager-beer business, and constituting, therefore, a valuable mode of advertising. \mong trade, "Gambrinus" is familiarly the Germans, and in tlie known as the inventor of lager beer, while king of Flanders, as the legend goes, who used it first as a potion or draught. The defendant's chromo, claimed to be an infringement, is a few inches smaller than and presents the same general grouping, expression, and coloring of the figures, though having some conspicuous changes. Upon the head of the lager-beer cask the words' Bock Beer" are conspicuously printed; and the figure of a goat, with its forefeet upon the top of the cask, appears prominently in the foreground beside the king. The troubadour, who in the first picture is