In that case the patent expired 15 days after the bill was filed. court, at page 325, say:
"If the case was one for equitable relief when the suit was instituted. the mere fact that the ground for such relief expired by the expiration of the patent would not take away the jurisdiction. and preclude the court from proceeding to grant the incidental relief which belongs to cases of that sort. This has often been done in patent causes. and a large number of cases may be cited to ,that effect; and there is nothing in the decisiyn in Root v. Railway 00.· 105 U. S. 189, to the contrary. "
In order to maintain the proposition that the complainant has been guilty of such laches as to deprive him of equitable relief, the bill is interpreted as alleging that the defendants' infringement was open and continuous from the date of the patent to the commencement of the action. It is sufficient, upon this branch of the cause, to say that it is thought that this is not a fair construction ot' the bill. Kaolatype Co. v. Hoke, 30 Fed. Rep. 444. It may be that the proof will disclose facts that will require a dismissal of the bill upon this ground, but there is, not sufficient now before the court to justify such action. The demurre;r is overruled, the defendants to answer in 20 days.
KITTLE il. SCmilllIDER.
SAME '/I. WILLARD. SAME '/I. HERTS and others. Sum ·. l"REEMAN and others.
(Otrouit Oourt. 8. D. New York: May 7, 1&77.) COXE. J. The decision In Kittle v. D6Graaj, 689, disposes of these causes also. An order overruling the demurrer, and permitting the defendants to answer in 20 days. should be entered in each of the above-entitled actions.
Jr., and another.
(OiJrcuit Oourt, 8. D. New York. 1887.' 1. COPYRIGHT-PAINTING-PRINTS. Although the law recognizes a distinction between a painting and a print, a copyright for the former will protect its owner in the sale of copies thereof, even though they may appropriately be called prints, and 8 party who copies . such copies will be guilty of infringement. 2. SAME-PUBLICATION OF COPIES-ABANDONMENT OF COPYRIGHT. The owner of a copyrighted painting by publishing lithljgraphic copies thereof does not lose the right to restrain others from copying these copies.
In Equity. In November, 1885, this .cause was before the court upon a motion for a preliminary injunction. 25 Fed. Rep. 466. It is now presented on final hearing, the facts being substantially the same as before. The
SCHUMACHER V. SCHWENCKE.
defendants do not reargue the questions heretofore passed upon, but rest their defense upon propos:tions of law not before brought to the attention of the court. Augustus T.Gurlitz, for complainants. LouUJ Raegener, for defendants.
COXE, J. The facts out of which this controversy arose are stated sufficiently in the opinion sustaining the motion for a preliminary injunction. There}s but one additional piece of evidence to which it is necessary to advert. It now appears that the defendants did not copy directly from the painting, but from lithographic copies thereof put in circulation by the complainants. The original painting, which is the subject of the copyright, the defendants never saw. The defendants now contend-Jilirst, that the law recognizes a distinction between a painting and print, and a copyright for a painting cannot be infringed by a lithographic print therof which ill itself the subject of a copyright; and, second, that the complainants, having published a large number of lithographic copies of the painting, have lost the right to restrain others from copying these copies. Although the precise question here involved does not seem to have been the subject of judicial decision, it is thought that, unless the intent and purpose of the statute are to be rendered nugatory, but one answer is possible. The complainants have a valid copyright for their painting. This, for the purposes of argument, is conceded. What benefit is thus secured? Manifestly, under the plain language of the law, "the sale liberty * * * of copying * * * and vending the same." What the complainants and the defendants have done is to make and sell exact lithographic copies of this painting. In size, design and coloring they are precisely like the original, so that a few feet distant it is almost impossible to detect any difference between the three. The complainants' copies have the notice required by law printed thereon. It would be a strained construction to hold that the statute only protected the sale of copies made in precisely the same manner as the original. It will hardly do to say that a water color is not infringed by an oil, or a crayon, or a lithographic, fac-simile. The st:ttute is not so technical. Its design is to give substantial, and not merely a fanciful protection. If the contention of the defendants is well founded, the complainants gained nothing by their The moment they sought to avail themselves of the advantages of the statute by the sale of copies, that moment they lost the only right which was of value. It was abandoned to the public. Thus construed, the law becomes a mere abstraction, affording, in cases like this, no protection whatever. It by no means follows from the fact that the law a distinction between a painting and a print that a copyright for the former will not protect its owner in the sale of copies thereof, even though they may appropriately be called prints. It is clear that the defendants are wrong-doers. They have invaded the complainants' territory. They have copied the painting. It is immaterial how this was accomplished, whether directly or indirectly. They have
copied a lithograph which was protected by the complainants' copyright. and have thus attempted unlawfully, and without due recompense, to reap the fruits of the complainants' genius and enterprise. The complainants are entitled to a decree for an injunction, with costs.
THE MAGGIlt ROBINSON
and others v.
(lJi8trict (lourt, S. lJ.l(ew York. April 21, 1887.)
SHIPPING-STOWAGE-DAMAGE TO GOODs-LEAKAGE-PERILS OF THE SEAS.
A vessel is bound not only to stow securely, so far as practicable, but a.Jso to separate, so far as may be, such as are liable to injure each other, . .through accident, in severe weather. . Two tie'rs of oil barrels were in the between-decks in front of and over bales of cork. The barrels got adrift in severe weather. Some were smashed, others leaked, and the bales below were injured by oil. Held, that the burden of proof was upon the vessel to show that the injury could not have been avoided by reasonable care, both as respects secure stowage of the barrels, and the separation of the barrels from the bales. wth reference to the liability to accident, and consequent leakage. Neither satisfactorily appearing upon the proofs, the vessel was held liable for the damage.
SAME-CASE STATED-BuRDEN OF "P:B00F.
In Admiralty. Henry Brodhead, for libelants. Olin, Rives & Montgomery, for claimants.
BROWN, J. This libel was filed to recover damages for injuries to 31 bales of corks out of a shipment of 114 bales, brought from Seville La · New York by the bark Maggie M., in the autum of 1885. The bales were alleged to be damaged by oil. The proof shows that the cork bales were stowed in the lower hold, mostly around and aft of the main hatch, and extending up between the beams of the open between-decks. Immediately forward of the main hatch were stowed two rows of barrels, ·containing olive oil, running athwart ships. The ship experienced some very heavy weather, causing great rolling of the vessel, and the loss of some sails, and during this weather the pumps began to bring up oil from the bilges. Upon arrival, the oil barrels of the forward tier were found to have got adrift, and their contents gone, a ·few of them being smashed to pieces. The weight of proof shows that most of the bales were stowed aft of ·the oil; but considering not only the positive testimony on the part of · the libelllnt;l, as well as the statements of two of the claimants' witnesses, I think that some, at least, of the bales were stowed beneath the oil. There is nothing inconsistent, therefore, in the theories urged on both sides. namely, that the bales that came out first were uninjured, which