(Oircuit Oourt, S. D. New York. April 2, 1887.)
COPYRIGHT-DEPOSIT OF TITLE-PROOF.
Where it is proved that the party claiming a copyright for a song deposited two copies in the mail, and got a receipt from the librarian of congress acknowledging the receipt. of two copies of the publication by its title in full, with the date over the official signature of the librarian, this will be consid· ered evidence that two copies were delivered to the librarian as required by the act of congress. . An edition of a song w"s issued a front cover. with. an enlP'aving a list of seven songs, includmg the song in question, by a part. of its title, over the name of the publisher, who claimed· the copyright, and on the :gage where the music commenced the full title was printed, .with the. words,. 'Copyright, 1878," etc. Held, that this was a sufficient notice to the public of a claim of copyright, as required by act of congress of 1874, l\ 1, and that there was no· abandonment of the copyright. Mrs. Fannie Beane GildlloY held to be the author of th,e musical composition entitled "My Own Sweet Darling, Colleen Dhas Machree."
The copyright of the musical composition entitled "My Own Sweet Darling, Colleen Dl1as Machree." held infringed by the pUblication aD:d sale of a song with music entitled "Call Me Back Again."
InEquity. Charles N. Judson, for plaintiff. William Stone, for defendant.
WHEELER, J. This suit is brought upon copyright No. 13,875, entered on November 27, 1878, by the orator, assignee of Fannie Beane, of a musical composition entitled "My Own Sweet Darling, Colleen Dhas Machree," against infringement by the publication and sale of a song with music entitled "Call Me Back Again." The defenses are, in substance, that Miss Fannie Beane, now Mrs. Fannie Beane Gilday, was not the author of this musical composition; that there is no proof that the orator delivered two copiesof the composition at the office of the librarian -of congress, or deposited them in the mail, addressed to him, within 10 days after publication, as required by section 4959, Rev. St. U. S.; that . the orator abandoned the composition to the .public by publishing it under a different title from that by which it was copyrighted; and that the music of "Call Me Back Again" does not infringe upon the copyright. The defendant has put in evidence a prior composition, entitled "Sweet Spirit, Hear My Prayer," to show that some parts of the music copyrighted were taken from that. There does not appear to be sufficient similarity 'between these two, however, to warrantthis conclusion. There are some short parts of them which appear to be alike; but these parts are not continuous enough, nor sufficiently extended, to indicate with .any degree of certainty that the author of the latter. was guided or aided by the former. Her account of its compQsition.is criticised because of
her youth at the time when she says the music was formed in her mind.
It clearly appears, however, that, when she was old enough to do so in-
telligently, she had it written out, and no one else appears to have produced it before: Therefore she appears clearly enough to be the author of it, even if she had not carried it in her mind so long as she now seems to think she haQ. The orator has put in evidence an acknowledgment of the receipt of two copies of the publication by its title,. "My Own Sweet Darling, Coneen Dhas Machree," in full, dated NQvf:lmber 29,1878, over the official signature of the librarian. In Merrell v. Pice, 104 U. S. 557, it is held that a memorandum of the deposit of two copies, with the date, on a certified copy of the record of the copyright, below the official signature of the librarian, waS not evidence of the fact of such deposit; but whether the certificate of that fact above, and authenticated by, the official seal and signature of the librarian, would be such evidence, l,tppears to be left open. In this case the orator has testified that he 'deposited two copies in the mail, and got that receipt ih answer, but without testifying howthe copies were addressed. It is from the connection between the deposit and the receipt of the acknowledgment, that the copies were addretlsed to the librarian. Therefore it is not necessary in this case to decide the question so left open by the supreme court in that case. Tbere was an edition in which the whole title was not on the outside cover, but only "Colleen Dhas Machree;" and it is argued that perhaps the two copies sent were of that edition. The receipt, however, is, !"or two copies with the full title, and that, in connection with the testimony, shows tbat two complete copies were sent. The claim of abandonment or loss of the copyright is made in connection with this edition, alleged to be defective. This edition bas a ftont cover, on which there is an engraving covering most,of the outside page. At the bottom of that page there is a list Of seven songs, ing this, as "Colleen Dhas Machree," over the orator's name and place of business,as an advertisement of those publications, and there is no notice of, ·01' reference to, any copyright on that page. The inside of that cover is entirely blank. On the next page the song and music commence. Above the music is the title" My Own Sweet Darling, Colleen Dhas Machree;" below the music is the notice, "Copyright, 1878, by Frederick Blume." By section 1 of the act of 1874, (18 St. 78, Sup: Rev. St. 40,) it is enacted "that no person shall maintain an action for the infringement of his copyr.ight, unless he shall give notice thereof by inserting in the copies of every edition published, on the ol"'the page immediately following, if it be a book, or, .if a map, .chart,iniusical composition,print, cut, engraving, photograph, painting, drawing, chromo, statue, statuary, or model, or design intended to be completed as a work offine arts,by inscribing upon sOIIlevisibleportion thereof, or of the: substance upon which the 'be mounted,tbefollowiIig words, viz.: 'Entered according to act of congress in the year ' ; by R i, in the office of the librarian ofco:dgressiat·Washiiigton,'or, at his op-
BLUME V. SPEAR.
tion, the word 'Copyright,' together with the year the copyright was entered, and.the name of the party by whom it was taken out, thus: 'Copyright, 18-, by A. R"', This is different from Rev. S1. § 4962, in respect to the place where the notice is to be put, .as well as in respect to what it may be, on maps, charts, musical compositions, and other things, except books. By that section it was to be inscribed "some portion of the face or front thereof,' or on the face of the substance on which the same" should be mounted. By the latter act it is to be inscribed "upon some visible portion thereof, or of the substance dn which the same shall be mounted." The notice of copyright on the edition in question was on the first pltge of the composition, in plain sight, and was therefore upon some visible portion thereof, orof the substance upon ,which it was .mounted, within the meaning of this section of the act of 1874. If the paper on which the composition is printed is not a portion of the composition, it is the substance on which it is mounted. There was no loss orabandonment of the copyright by failure to give notice. of it. If" how:ever, the orator published the composition under a title different from that · by which he copyrighted it, in substance, he would thereby probably 80 dep/:l.rt from his copyright that he would leave the composition to the puql1c. Drone, Copyrights, 140,142. But in that edition the composition was, published under its full title, by which, exactly, it was copyrighted, standing at the head of it, on tbe first page of it. The advertisemep.t on the cover did not indicate that the pieces advel,"tised were · printed within. It merely signified tllat they were pUblished,.in some shape, by the orator. It was not in ad vertising it that he should describe it in any particular manner; but when he caqle to printing the thing itself, and giving that out, it was necessary that should follow the title by which he copyrighted it, if he would keep.that right. This he did, and the right would seem to be well preserved to,hiJn. Upon the question of infringement .there is not much rooUl for .doubt. The theme or melody of the music is substaptially the same in the (l0PYrighted and the alleged infringing pieCes. The measure of the form.er · is .(ollo:wed in the latter, and is somewhat pe<;mliar. When played by a competent musician, they appear to be really, the same. Th.ere ,but they are Boplaced as to inqicate that the former ']Vas taken deliberately, rather than that the latter was a new piece. Let there be a decree J;llaking the preliminary injunction .permallent, and for an aecount ofprQfits, with costs.
and others v.
(Gjrcuit Gourt. B. IJ. NMD
'l'BADlC·MARXS-INFRINGEMENT-" KAISER " MINERAL WATER. '
In Equity. -Bill for injunction and account. W. H. _0'Dwye:r, for complainanti3. Louis a.Raegene:r, for defendants. WALLACE,J. The complainants registered in the plitent-office,July 11, 1883, theWQrd'" Kaiser,)' asa trade-mark for natural'mineral water. They adopted the name as eaTly as in 1878, ahd at the' :tiriie of registration had used it, and have used it since, in foreign commerce, selling their mineral water in bottles labeled." Kaiser Natural Mineral Water," with the words "Kaiser Water; Schwalheim," blown in the glass. The defendants sell minersl water in bottles labeled "Kaiser Water, Birresborn Natural Mineral Water." The bill is filed for an injunction andacconnting. Both parties are citizens of this state, and for that reason this court can entertain jurisdiction only upon the theory that the complainants have a valid trade-mark in the word registered, pursuant to tlie act of congress of March 3, 1881, and norelief can be granted because of any nnlawful competition in trade by the defendants with the complainants. The question,therefore, is whether the complaints have the exclusive -right to appropriate the word" Kaiser" as a trade-mark for natural min. eral water. , It is in .proof that long before the complainants adopted the word as a trade-mark there were a number of springs of mineral waters located at different -places in Europe known by the name of" Kaiserquelle " or "Kaiserbrunnen." The English translation of these names is" Kaiser spring;" "Kaiser fountain." Several of them were in Germany. One was at Aachen, the waters of which were celebrated, and were in extensive demand in Europe, and had been sold in bottles labeled" Aachen, Kaiserquelle," and "Kaiserbrunnen," by the municipality of Aachen. These springs took their name from the sovereign ofthe country, and. except when the name of the place of location was used in conjunction with tbe name ofthe spring, the word" Kaiserquelle" or" Kaiserbrunnen" did not indicate the origin or the characteristics of any particular water. Upon these facts it must be held that the complainants' selection of a