Il.ccount,·which margins were wrecking an institution which ought to s,erved and cou14 have served a useful public purpose and function. . The verdict must respond to each count in the indictment, for the reason that each contains a distinct and substantial, charge against the defendant. If you find he is not guilty on all of the charges in the ment, you will return a general verdict of not guilty. If your verdict is guilty on all the counts, you ",ill say by your foreman, "We find the defendant as charged in the indictment." If you find him guilty on somecouuts and not guiltyqn others, you will specify accordingly. I congratulate you, gentlemen., .on the termination ofa long and tedious case. I leave it in your bands, feeling assured that from the close attention you have given the evidepce as it was introduced, you will return an honest, upright, and just verdict, and a deliverance make between the government and the accused. , .The jury returned a verdict of guilty as charged in counts of the inl1ictment.
(C7ireuit (JOWl't, E. D. Miofi,igan. January 9, 1888.)
. Where the alleged violation of a copyright consistll in excerpts from com· plainapt's book, the court Is bOUlld to consider not only the quantity and quality Of the, matter appropriated,- but the intentioll with which such appro· priationis'tnade, the extent to, which the complainant is injured by it, and the damage to'the defendant by an injunction. . 2. SAME-INJUNOTION-DAMAGES. 1t 'eBm,that the complainant Is not always bound to prove pecuniary damage to entitle him to an injunction. 8. SAME-ExcERP'rS FROM BOOK-8EPARATJON OF ORIGINAL MATTER. Wherethepiracy consists of extracts from different parts of complainant's pUblication,. scattered through defendant's book, and it is impossible to separate these from the oriltinal Iilatter, is proper to apply the doctrine of con· . fusion of goods, and enjoin the whole book. 4. SAME. ButU.the·pirated matter can be, separated from the rest of the book, the injunction should extend only to that portion of the book containing the pirat,ed Iilatter; especially where 'the ,uppression of the whole is likely to lead to c'onsequences to the defendant out of all proportion to the damal\'e done tothecoIilplainant. 5. SAME. ',', ." , Complainant was the author and proprietor of an elaborate book of 1,024 pages, entitled" A History of Detroit and Michigan, or the Metropolis Illustrated." Defendant's pUblication a pampblet of 274 pages. entitled "The Industries oj' Detroit;" the tlJst7 ·.pa"ges f which were mainly historlcal. and contained about 100 short extracts fr.Clm' the complainant's book. The' reo maining·2tOpages consisted;of"'lid"ertisements only. Held that, as three· fourth,SOf the, frQmcomplalnan, t's book, f.md pra,ctically all to which he could I'y cIaiIil as original mMter, were contained in, the first, chapter, be· first 11 pages of the pamphlet, the injunction should extend only tothIS portion of the publication. , (8t!I14buf bIJ.t1rA Oourt.)
.. OOPYRrGBT-EXOERPTS nOM BOOK-PROOF 01l' INFltINGEMENT·
I"ARMER fl. EIBTNER.
In Equity. On bill for injunction. Plaintiff, Silas Farmer, was the author, publisher, and sole proprletot of an elaborate and exhaustive book of 1,024 pages, entitled "A History of Detroit and Michigan, or, the Metropolis Illustrated: A Chronological Cyclopedia of the Past and Present, including a Full Record of the Territorial Days in Michigan, and the Annals of Wayne County." This book was published arid. copyrighted in 1884, and sold at $10 per copy. In 1887 defendants published a pamphlet of 274 pap;es, entitled "The Industries of Detroit," the. first 70 pages of which were mainly historical. descriptive, and statistical, and covered much the same ground already occupied by the plaintiff's book. The remaining·200 pages consisted ofadvertising matter only. The pamphlet was sold at 40 cents· per copy, and large numbers·were sold to advertisers, for gratuitous circulation.The,pamphlet was evidently prepared for advertising purposes, and the principal profitto the defendants was obtained from the advertisements. The alleged piracies were very numerous in the first 70 pages, and consisted principally in the republication of facts with respect to the early history of Detroit, and particularly the life of Cadillac, the founder of the city, which were copied almost literally front plaintiff's volume, which factll'hadnever before been published, and h$d been obtained by plaintiff from original sources at great lab"r and expense. E. ,C·. Hinsdale and O. 1. Walker, for plaintiff. George.B. HotmlRJr, for defendant.
BROWN,J. We have felt considerable difficulty in reaching a satisfactory conclusion in this caseJfrom the fact that the piracies, though numerous, are not exteruiivejand from the further fact that defendant's pamphlet was evidently not intended to.t!lupersede, or in any way interfere with the sale of, the elaborate and instructive work of the plaintiff. Where defendant's publi()a.tion. is designed to rival or compete with the plaintiff's. in the market, courts are astute to protect the technical rights of the plaintiff to his composition, and will even enjoin an imitation of his general plan and arrangement, though there be no plagiarism of seJ:ltences or ideM. Where defendant has been guilty of a complete OJ; substantial reprint of plaintiff's work, no difficulty is encountered in grantiup: an injunction j but· where the alleged violation consists in excerpts from the plaintiff, the court is .bound to consider not only the quantity and quality of the matter appropriated, but the intention with which such appropriation is made, the extent to which the plaintiff is inju;red by it, and the damage to the defendant by an injunction. With reference to the ([IUlntity and quality taken, of course no rule can be laid down, applicable to all.cases. OQa writer might take all the vital part of another's book, though it mig}lt be but a small portion of the book in quantity. 1;0 many valuablebooks, particularly of a scientific character,theleading ideas of the author may be very few in number, the greaterpal't of the work being devoteq. tration or ideas, or to the reproduction of the ideas of Qtbtlr. upon the, same subject.rrbe person who wuld seize
these leading ideas, or, to use an expression attributed to Macaulay, who "could tear the heart out oithe book," though it involved the republication of only a single paragraph, might do the author substantial damage, While another might republish pages without imparting the same information. It is not only quantity, but value and quality , that are .to· be regarded in determining the question of piracy. Bramwell v. Halcoma,3 Mylne & C. 738. "It must appear," said Vice-Chancellor SHADWELL, "where a complaint is made to this court, that the piracy has a large part or of a material part." Drone, either been of what is Copyt'.524. Regarding the intent with which the appropriation is made, it is obvious that the use of a certain amount of an author's production may be perfectly fair and legitimate in one case, while the use of a similar amount in another case might be unlawful. Thus, great liberty is exercised' in permitting a'reviewer to make extracts for the purposes of oriticisfu, so long as such extracts are not made as a cover for a republi.oation,or for the purpose of superseding the original work. Indeed, such quotations in the form of criticisms are frequently of great value to the author himself,iand may actually increase the Sal9 of his book. Oth-eriinstances may be imagined, especially in the publication of legal and scientific worke, where it would be almost imposl:lihle for a subsequent author to properly state the existing state' of thescience,without making quotations from preceding works. On the other hand. if the selections are made anil7W furandi, with intent to make use of them for the samepttrpose for which the onginal author used 'them, to convey in a different publication the information which he imparted, or to supplant him in his own territory, a small quantity will suffice to render the defendant Uable to a charge of piracy. Thus, in Campbell v. Scott, 11 Sim. 31, the'defendant published a work containing an original essay on Modern lllnglish Poetry, including biographical sketChes of 43 modern poets, and selections from their poems, among which were six short poems, and parts of longer poems, the copyright whereof belonged to plaintiff. The selections constituted altogether the bulk of the defendant's work, but were alleged to have been introduced into it for the purpose of illus\rating'theessl'lY. The court restrained the publication of the work as being an infringement of the plaintiff's copyright. The case of Bradbury v.fldtti!n",L. R. 8 Exch. 1, was an action at law by the proprietors of 'PUl1Ch'l'lgMnst the defendant for reproducing nine cartoons of Napoleon III.:pilblisned in Punch between 1849and 1867, with descriptive writing ullderneath them. It was held by the court that a substantial part of thephl.intiff's bookor sheets ofletterpress had been and that he was entitled to recover. The jury, however, awarded but forty shillings' damages· . In the case underconslderation the defendant has made numerous, but lengthy,excerptB from plaintiff's book. These'excerpt8, however, arefrom the most valuable part;ofh'is and contain facts which had never before 'been pubUshed and which were obtained from original sourceB,atve,ryconsiderable hibor and expense. On nearly one-third
FARMER V. ELS'rNER.
of the first 70 pages of defendant's book there are evidences of republication from plaintiff's. On the first 11 pages in particular it appears very clearly that a considerable part of the information contained was taken from it, without any credit to him, On page 9 it is said that "Champlain heard of the strait from Indians in 1603." The same page also contains statements as to Joliet and La Salle, as well as a statement regarding mounds as "evidently of Aztec origin," all taken from plaintiff's book. On page 10 is the following statement: "Antoine Laumet de la Mothe Cadillac was born March 5, 1658, at St. Nicholas de la Grave, in the department of Tarn and Garonne in France. He received a liberal education, was a lieutenant in the French army when he arrived in the new world,and was married at Quebec June 25, 1687, to Marie Terese Guyon." These are specimens of the extracts made by the defendants from ·plaintiff's work to the number of about a hundred. There is no pretense that the compiler of this publication resorted to the original sources himself for this information, nor that he procured itJrom any other source than the plaintiff's book. Had he extended to this book the common courtesy of an a.cknowledgment, we should have looked upon his appropriation with much more favor than we are disposed to at present. A;J the case stands, the animus furandi is entirely clear. The chief difficulty we have met with in this case is the absence of testimony showing that plaintiff has been, or is likely to be, injured by defendants' publication; and as it was not intended as a competing work in any sense of the term, it is doubtful in my mind whether its circulation would prevent the sale of a single copy of plaintiff's book. This book is an elaborate work upon the history, government, architecture, and present condition of the city. Defendants' pamphlet is a mere advertisement of its industries, prefaced by an historical sketch, which alone contains the pirated matter. Some of the facts taken from the plaintiff's book have never before been published, and were gathered by plaintiff from the original sources; but apparently that is not true of all of them· . Many of these facts are matters within the common knowledge of those who are acquainted with the history of this city and state, and were. tAken by the plaintiff himself from prior works, or from sources equally accessible to the defendants. Such facts the defendants would have a rightto republish without the plaintiff's assent, or without giving him credit for them. It is true there is an intimation in some cases that actual damage to the plaintiff need not be proven, and that if the piracy be established it is for the plaintiff' himself to judge whether he will insist upon his right'to a monopoly. Thus, in Campbell v. Scott, 11 Sim. 31, it was said that the plaintiff was the person best able to judge of the dama16e done him; and if the court does clearly see that there hr.iS been anything done which tends to an injury, the safest rule is to follow the legal right, and grant the injunction. In this case, however, the defendants had pub, lished six poems and parts of other poems, the copyright of which belOJ;lged to the plaintiff, and it was impossible to estimate accurately the damage done him. At the same time the facts showed it to be very t>robable that the plaintiff had lost the sale of a. number of copies. But, v.33F.no.7-32 .
Hdtwithstanding this case, it was held by the same judge in the later case <lf8weetv. Cfater,ll 8im. 572, that lfthe pirated matter is not considerable, that iSjwhere passages which are neither numerous norlong have been taken' 1rom different parts of the original work, the court will not interfere to restrain the publication of the work complained of, ,but will leave plaintiff to seek his remedy at law. It seems to us) however, that plain. tiff ought not to be remitted to his action for damages where the court can: see that, from the impossibility of estimating these damages, the remedy must be entirely fallacious. It is probably on this ground that courtS have been led in some cases to grant injunctions, though the piracy has been quite inconsiderable in extent. Thus, in Kelly v. Hooper, Drone, Copyr;'o25,it appeared tha.t the defendant had taken only three and one-half pages from plaintiff's directory of 870 pages, but these formed a large part of defendant's almanac'and constituted its chief value. An injunctionwRsgrnnted. So, in Oobbettv. Woodward, L: R.14 Eq. 407, where who had published an illustrated furnishing guide, with engraVings of the articles of fumiture which he sold, and descriptive remarkS thereun, filed a bill to restrain the defendant( another upholsterer, from pUblishing for purposes of his own trade a similar work, in which many of the engravings and portions of the letter-press of the first work were alleged to have been copied, it was held that the defendant oouldnotbel'estrained from publishing the plaintiff's illustrations, or such parts of his work as were not'original; but merelydescri'ptive of the stock; but as the defendant had taken eight lines from' plaintiff's synopsis, and these were original remarks, it was, held that the defendant wad not entitled to use them without acknowledgment from/the source from which they came, and that plaintiff was entitled to an injunction to restmin the publication of these eight lines.. Where'the.piracy is ilotoftheentire book, nor of entire chapters or pages, bl'1t consists of extracts from ldifferent parts ofthe:publicationscattered through the defendant's ·oook, the courts have sometimes applied the familiar doctrine of" confusion ofgoods," and have enjoined the whole book. 'ThuS', in Mawmanv.Tegu,2.Russ. 385; Lord ELDON says: "If the parts bave been copied cannot be separated from those which are original.witbout destl'oylngtheuile and v.alue of the orillinal matter, he who has made an improper use 'of that which did not belong to him must suf.fer of so :.Ifaman mixes what belongs to him with wllat belongs to me, and he again separatetheJJ;l,/inqhe must bljarall tile mischief and loss wbich the sllparation may ,occaSion. ' It an individual cl;190ses, in any work, to mix my, literary matter with his own, he must be restrained from publishing the literary matter which· belongs to me; and if' the other parts of the work cannot be separated. and if by that means the injnnction which restl'ains the publication of my literary matter prevents also the publication oinis own literary matter, he bas only to blame." Butit'is· equally clear thatifthe pirated thattercan be separated, the' injunction should extend only to that matter,leaving the· defendant to do what he plenses with the rest;ofthebook. Droile, Copyr. 527; Especially should thjs' be done where an injunction is likely to lead to consequences
JOH?;SON 'V. FORTY-SECOND STREET, M· .I: ST. N. AVE. R. CO.
the defendant out of all proportion to the damage done to the plaintiff, such, as in this case, to the practical destruction of some hundreds and perhaps thousands of copies. Mawman v. Tegg, 2 Russ. 385; Webb v. Pawers, 2 Woodb. & M. 497; Greenev. Bishap, 1 Cliff. 186. Upon examining the two books in this case, we were at first of the opinion that an injunction should be refused, upon the defendants executing a bond to respond in any damages the plaintiff might obtain in this case, or in an action of law; but the difficulty of estimating such damages seem to us a serious objection to this method of procedure; and that if the plaintiff is entitled to any relief at all it should be given him by injunction against the pirated portions of his book. Upon a careful examination of defendants' pamphlet we find that three-fQurths of the extracts from the plaintiff's book, and practically all to which he can lay claim as original matter, are contained in 11 pages of this pamphlet, viz., 9 to 20, inclusive, entitled "Detroit's Early History;" and that substantial justice will be done to all parties by enjoining this portion of the defendant's publication. It is true there are about 20 extracts in the following 50 pages; but we think the court may take judicial notice of the fact that most, if not all of them, are of facts which were not originally published by plaintiff, and which the defendants could easily, if they did not actually, obtain from other works readily accessible to the public. To this extent we think plaintiff is entitled to relief, and to this extent only the injunction .will go.
JOHNSON t1. FORTY-SECOND STREET;
(Oirc'Uit CftUrt, 8. D. New York.
January 17, 1888.)
PATltNTS FOR INVlllNTIONs-INVENTION-RAILWAY BWITCJI1llS.
Letters patent No. 117.198, granted to Thomas Newman July 18.1871. for an improvement in switches for horse railroads. are for a new and ing-enious assembling of known appliances. and are not void because the separate elements of the combination were old. . ant, called a pivoted horse-railroad switch, shifted horizontally hy the t.read of the animals upon an oscillating platform, is infringed by the device of defendant's. combining all the essential features of complainant's, with some slight changes.
2. BAME-INFRINQlllMENT-RAILWAY SWITCHE:!l. The device covered by letters patent No. 117,19R, mannfactured by complain-
In Equity. On bill for injunction· .Action by Albert L. Johnson against the Forty-Second Street,Manhll.ttanville & St. Nicholas Avenue Railroad Company for the infringem.entofletters patent No. 117,198. Samwl.A. DuncaJn and Robert H. Duncan, for complainant. M. B. Philipp, for defendant.
CoX:E, J. This is an equity action for infringement founded upon lettel'S pate,nt No. 117,198. granted to Thomas Newman July 18,1871;