"On March 3, 1883, when this act was passed, was the character of these tiles such, and had their use up to that time been such, that they would fairly be included within the term' paving tiles,' as used by congress in the section quoted; that is, the section providing for a duty on brick, fire-brick, and r,:>ofing and paving tiles?" . Now, you will perceive, in the first place, that it is immaterial whether or not they are now used for paving. Congress legislated under thefacts as they were at the time; and you will further perceive that their use at that time for such purposes must have been sufficiently substantial, when compared with their other uses, if any, to suggest this particular kind of tile to anyone who might at that time be preparing an exhaustive list of paving tiles or tiles for paving. If-taking into consideration the condition of the trade at that time, the size, the composition,the character of these articles, their adaptability to uses, and the uses they were put to at the time the act was passed-you are satisfied that they were then paving tiles, your verdict will be for the plaintiff; otherwise it will be for the defendant. Verdict rendered for defendant.
BRIGHTLEY ". LITTLETON
E. D. Pennsylvania. November 24, 1888.)
CoPYRIGHT--WHAT WILL.BE PROTECTED-BLANE: LEGAL FORMS.
A blank form of aRplication for a license to sell liquor at retail. composed of threeblanks.-a · petition," a "bond and warrant, 'and a "justification,"all intended to be filled up and filed by the applicant, is included in the tem "book, " and is the subject of a valid copyright.
I. SAME-ORIGINALITY. A series of forms, prepared in accordance with a certain statute, minor parts in each being old, but so combined with parts drawn in pursuance of the statute as to make a complete form, possesses sufficient originality to be the ·subject of a copyright.
Where parts of a series of forms are identical with those of a former copyrighted series except for a word or two inserted in several places, the whole seriell showing a substantial identity, and the counsel employed to draw up the second series ackn9wledges having the first before him while so doing, the second series will be regarded as a copy of the first, and an infringement.
In Equity. Bill for infringement of copyright.. The plaintiff was the author of a series of blank forms intended to be filled in by the applicant for a license to sell liquor at the ll.Ct of 1887. Littleton, the clerk of the court which had jurisdiction to grant the licenses, caused a number of similar forms to be drawn up and printed by Geddes,and given or sold to the applicants. . ..
Reported by C. B. Taylor, Esq., of the Phlladelphiabar.
F. F. Brightley, pro se. David W. SeUers, for defendants.
BUTLER, J. The plaintiff's copyright is valid. The act of congress provides that "any citizen of the United States * * * who shall bl\ the author, inventor, designer, or proprietor of any book, map, chart, dramatic or musical composition, engraving, cut, print, photograph, drawing, chromo, statue, or statuary, * * * shall, upon complying with the provisions of this chapter, have the sole liberty of printing, publishing, * * * and vending the same." This act is founded on the constitutional provision which confers on congress the power to protect authors ancl inventors in their respective works. The object of the act and constitutional provision, as expressed, is"to promote the progress of science and useful arts by securing to authors and inventors the exclusive right to their respective writings and their 'discoveries." The language of the act must be read in connection with the constitutional provision, and be so construed as to promote the object and conform to the purpose expressed therein. If the question before me were new, I might find some difficulty In sustaining the plaintiff's claim. The statute, however, has heen so liberally construed as to make it embrace within the term "book," every character of publication; whether a volume, pamphlet, newspaper article, calendar, or catalogue. In this construction our courts have simply followed those of England in their interpretation of similar hmguage contained in the English statute. The matter must be original and possess some possible utility. The originality, however, may be of the lowest order, and the utility barely perceptible; Drone, Copyr. 210. It has been repeatedly held that a book of forms is entitled to the protection of the statutes. The plaintiff's forms are original in the sense here involved. They are founded upon and are adapted to the requirements of the Pennsylvania statute of 1887, relating to the sale of liquors. While minor parts of each form are old, they are so combined with the parts drawn in pursuance of the statute as to make a complete form. To prepare such instrnmentsrequires some learning, and involves some literary labor; quite as much as the com pilation of facts or figures, or extracts from books. Such compilations are entitled to a copyright, under the construction given to the statute; Drone, Copyr. 208-210. The plaintiff's right, however, protects him only against transcribing and publishing his forms; in other words, against the appropriation of his work. It does not confer upon him a monopoly of the forms required by the statute of 1887. Anyone is at liberty to prepare and publish such forms, and it is immaterial that they may resemble his, or be substantially with them, provided they are not copies. The requirements of the statute in this respect are simple, and all forms prepared in pursuance ofthem by different individuals must necessarily have close resemblance to each other. Have the defendants infringed? They have printed and published forms identical in most respects with the plaintiff's. The petitions,
BRIGHTLEY V. LITTLETON.
from the paragraph marked with the figure 4 to the end, (excludillg the affidavit. which may have been copied from any other,) are identical, except where a word or two has been added by defendants in two or three instances. The same is true of the bonds and warrants of tomey. In the justification of sureties, the only difference is in the addition by defendants of two lines at the close. Were forms copied from the plaintiff's? The plaintiff's forms, with others drawn by individuals, were placed in the hands of counsel by Mr. ton, with instructions to prepare forms to meet the requirements of the statute. Between the plaintiff's and the others so placed in counsel's hands, there is such difference as would naturally be expected in forms prepared by different individuals. A variation in language, in arrangement of parts and sentences. The identity existing between the plaintiff's and those published by the defendants, taken in connection with the fact that the counsel who ,prepared the defendants' had the plaintiff's before him, justifies and demands a conclusion that the defendants' were mainly copied from the plaintifPs. Especially is,this so in the absence of any positive evidence to the contrary. The counsel, when examined as a witness, does not appear to have been interrogated directly respecting it, and his testimony does not cover the point. What he says amounts to no more than that he prepared the forms after having examined those brought him, and found them defective. In so far, therefore, as the defendants' forms are identical with the plaintiff's, I must and do regard them as copied from the latter. For the injury which the pllJ.intiff may show has resulted to him from this appropriation of his work the defendants must respond in damages. To avoid the danger of misapprehension, it is proper to say something further, although what has been said is sufficient to dispose of the question before me. The plaintiff's object in obtaining his copyright appears to have been, not so much to secure the monopoly of selling his work as a book of instructions to those who contemplated proceedings under the statute of 1887, as it was to secure a monopoly of the use of his forms in such proceedings as petitions, bonds, etc., thus entitling him to enjoin individuals who may buy his work, against employing and following it in the preparation of petitions, bonds, etc., for their own use in Court. When the question arises whether his right secures such a monopoly, !J, different case will be presented from that now decidw. Possibly the question may arise in the assessment of damages when the extent and value of the plaintiff's right are. under consideration. A decree may be prepared in accordance with the foregoing opinion.
UNITED STATES V. CLARE:.
(Ctrcuit Court, D. Minnesota. December 14, 1888.)
POST-OFFICE-OFFENSES AGAlNsT POSTAL LAWS-OBSCENE MATTER-INDICT-
ME1'T, An indiotment under Rev. St. U. S. §3893. charging that defendant did knowingly deposit for mailing and delivery certain obscene pictures, etc., is not open to the ,objection that it is nOot alleged that the defendant knew the character of that which he deposited. 1 '
Indictment for Mailing Obscene Matter. Goo. N. Baxter and Henry C. Wood,. for plaintiff: Gould &- Snow, for defendant.
BREWER, J. This is a motion in arrest of judgment. The indictment charges that the defendant did unlawfully and willfully, knowingly deposit and cause to be deposited formailing and delivery, in a post-office of the , United States, to-wit, the post-office at Wiscoy, in said district of Min'nesota, a. oertain lewd, obscene, and lascivious picture of an indecent 'cl1aracter, etc. The indictment does not separately charge both the knowingly depositing of something in the post-office, and also that the defendant knew that this which he deposited was obscene; and the point ;is made that the gist of the offense is that he knew the character of that , which he deposited, and that,in the absence of such an allegation, the indictment iadefective. The indictment follows the statute. That, of course, is not always conclusive, for it is settled by the supreme court :of ,the United States that it is not sufficient in an indictment "to set forth the, offense in the words of the statute, unless those wordsCJf themselves 'fully, directly; and expressly, without any uncertainty or ambigUity, set 'forth all the elements necessary to constitute theofl'ense intended to be punished; and the fact that the statute in question, read in the light of the common law and of other statutes on like matter, enables the courL ,to infer the intent of the legislature, does not dispense with the necessity ,of alleging all the facts necessary'to bring the case within thai intent." m,s. Carll, 105 U. S. 611, and cases cited. Yet there is always a. 'pre.sumptionthatthe language of the statute fully describes the ofl'ense intended to be punished, and consequently that an indictment using that 'language also fully describes the offense. Now, the statute (section 3893, declares' thateveryohscene, lewd, or lascivious book, etc., is hereby declared to be nOli-mailable matter, and shall not be conveyed in the mails, nor delivered from any post-office, nor by any letter carrier; and then adds that any person who shall knowingly deposit anything declared to be non-mailable, shall be deemed guilty of a misdemeanor, etc. The matter mailed as described in the indictment was unquestion-
lIn U. S. v. Chase, 27 Fed. Rep. 807, an indictment similar to that in the principal case was held defective in matter of form only, and cured by Rev. St. U. S. § 1025. For full discussions of the offense of mailing obscene matter, see U. S. v. Mathias, 86 Fed. Rep. 892, and cases cited.