fendant; but neitheds entitled, on that account, to be, considered an inventor, but each iarather to be regarded as having prompt ability to seize upon correct methods of conducting a large business. It is also true that there was no invention in the application of liquid glne taken freshly from the tubs to the inside of barrels. The use of such glue came naturally, and in the ordinary line of thought, to Wiedenhold, when th e occasion came to him to line barrels. Hearne also to Baumann, before the date of Leggett's invention, when he was called upon to line. neat's foot oil i barrels ·in Peter Cooper's glue factory. ,Such use was undoubtedly occasionally practiced in that factory in other instances about the same time'. The 'idea was the natural one which would readily occur totha intelligent mechanic in the factory. It is not strange that it did not occur tooH, refiners, for they were not glue makers. It is notstraI1ge that it was not made public, because the occasion had not arrived for its development. It would be uselesato the oil refiner who used but a few barrels claUy, for he could not afford to manufacture glue; but When the occasion arose, the proper method of doing the business naturally presented itself to ,the mind ofa person familiar with glue man-. ufacture. , ;; J. do not consider whether an anticipation of Leggett's improvement isblearly proved by the facts which took place in Cooper's factory, but I place the decision upon'the lack of patentable invention in the thing patented. The bill should'be dismissed.
(Circuit Court, 8. D. New York. May 15, 1889.)
, After in a suit for the Infringement of the copyright of a biograph· ical book. the case will not be opened. for the purpose of receiving newlydiscovered evidence that the ,author was not designated by the subject of the 'bbOk as his special biographer. 'The validity of the copyright or the right of 'icomplainant to relief does not depend on such designation.
2. f SUE. . . ... . Though Rev. St. U. S. !:l49f>2.. provides for the forfeiture of every copy of tPll 'book, and of such damages as may be recovered. only when the infringement ill without the proprietor'swiritten consent. yet that is not the sole provision . on wbich a claIm for relief· rna,. befonnded. but there is a Sllparate right to .relief against violations of the I sole liberty of printing... the copyrighted .,work. given by section 4952; and in a suit inequity. which has not jurisdie· :' ;..tionof an action for the .forfeiture. an account of profits only beinll' claimed. i: ,allegatio11 a,nd proof of the "bsence of such written consent are not necllssary.
profits may be decreed under the general'prayer for relief.
OF INFRtNGEMENT-EQUITY. .
'. Infringement furnishes ground for an injunction, and the right to an aoii. c\)Unti!' incjdent to tbll right an injunction; the the in· frJngeinentremoves the occasIOn. but not the rIght to an InJunctIon, and j. 'Inch cessation does not deprive complain.nt of the right· to equitable relie!.
GILMORE fl. ANDERSON.
, , ' ,
DellLY in bringing suit Is no defense to the suit when brought. where there is no proof 'of acquiescence in, ()r of failure to object to, the acts constituting infringement, and defendant's conduct has not been induced by any act or omission oftb,ose interested in the copyright.
Some of the parts of defendant's book in question were quotations from conversations, letters, and speeches; in others, prominent words of statements in plaintiff's book were taken, and used with others to convey the same idea; ,in others. the substa}lceof the expression was taken with little variation Of l&ngttage; and in some' ,instances portions of considerable length were ccipied'Verbatim. Defendant wrote his book with plaintiff's book constantly before,him,:and so J;lluch of the ideas, language. and mode of expression was carried into defendant's book as, to show that plaintiff's book was not used for information only. but in parts was appropriated. Held an infringement of the exclusive given by the copyright. It is no defense that some of the appropriated parts had belln previously from whose works they were taken by defendant. .' used by OF W <IRK. ' Neither fsit a justificatiotHhat plaintiff's work was written for a preslden· tialcampaig!l, while was written for young people.
, , Bill\ly, Laura E. Gilmore against John R. Anderson and HoratiQ Alger., " , ' J;Juf'lingnam «, Wing, and,S,houdy 4c Putnam, for oratrix. John O. Parsons, for defendants. ' .WHEE'LER,J., This suit is brought upon the copyright ora book en, titled "The written by James R. Gilmore underthename of Edmund ]Grke, against infringement bya book entitlad "From to written by the defendantA:lger, "andpllblished by the defendant Anderson. , Since the hearing, the-defendants, have: moved to reopen the. case for newly..discovered evidence ,to sho.wthl\t Gilmore 'was not designated by Gen. Ga.rfield as his speeilll biographer. Inasmuch .asneithcr the validity oltha'copyright nor' the right of the oratrix to relief depends at all upon the fact of such desig.natiou,no Bufficientreason.appeal's for granting the motion, even, ifthat ;, aspect the case would .probably be changed by the evidence sought. !fha,answering affidavits, however, Uleet that probability, and remoVe ·all ground for the motion that otherwise might appear. The.copyright was acquired by Harper & Bros. in 1880. Thedefendant's book was published in 1881; the copyright, togethel.'with all claims, demands, and rights of action for infringement .wasassigned to the' oratrix January 14, .1886.. There is no allegation or proof that what was done by the defendants while Harper & Bros. owned the.copy'rightlWaswithout their consent in writing. or proof that has been ··any infringement since.' Counsel for the defendants insists that the want of consent of that proprietor in writing is nece,sl;lary to· constitute infringement,:and that there is a total failure of that, part of the case. Section 4964 of ·the Revised Statutes,referre<;l.to' in thisconnection"does.i pro.:vide for the forfeiture of eve:r;y ·copy oCtile, ,book, and ofsueh
REPORTER, vol. 38.
as, may .be recovered,only when the infringement is without the consent of the proprietor first obtained in writing; but that is not the sole provision on which a claitn for relief may be founded. Section 4952 confers the "sole liberty of printing, reprinting, publishing, completing, copying 1 executing, finishing, and vending," the work on complying with the provisions of that chapter. The right to relief against violations of this sole liberty seems to exist apart from the forfeiture; and the forfeiture does not come within the province of this court as a court of equity. Stevens v. Gladding, 17 How. 447; Callaghan v. Myers, 128 U. S. 617,9 Sup. Ct. Rep. 177. An account of profits only is now claimed, and that.can be decreed under the general prayer for relief. Stevens v. Gladding, 17 How. 447. The counsel for the defendants further insists that, as no infringement or threat pf infringement since the oratrixacquired the copyright is shown, no ground for an injunction or other equitable relief exists, and that consequently the remedy is wholly at law. liThe right to an account of profits is inddent to the right to an injunction in copy and patent right cases." CURTIS, J., in Stevens v. Gladding, supra. The infringeme;nt. if there was any, furnished ground faran injunction; that it has ceased may take away the occasion for one,but not the right. The oratrix alleged grounds for one tqat would give jurisdiction, which will not fail although one may not be decreed. Olark v. Wooster, 119 U. S. 322, 7 Sup. Ct. Rep. 217. The delay in bringing the suit is relied upon asa defense. That the right of recovery is barred by ani statute of limitations is not claimed; but the lupse of time is said to meet the equity, if any, of the oratrix's case. There is; however, no proof of acquiescence in, or failure inobjecting to, anything done by the defendants constituting the infringement complained of. The conduct of the defendants has not been induced, rior their Iia bility varied, by anything done or omitted to be done by those interested in the copyright. Nothing is apparent adequate to cut off any right' accrued. Menendez v. Holt, 128 U. S. 514, 9 Sup. Ct. Rep. 143; . The most difficult question is as to whether there has in fact been any substantial infringement. Some of the parts in question are quotations from conversations, letters, and speeches; in some, prominent words of statements are taken, and used with others to convey the same idea; in others, the substance of expression is taken with small variations of language; and in Some instances portions of considerable length are copied verbatim. The speeches, letters, and conversations, by themselves alone, are facts not understood to be the subjects of a copyright. Cary v. Longman, 1 East, '358; Banks v. Manchestl!ir, 128 U. S. 244, 9 Sup. Ct. Rep. 36. Buttlilttthese were used in making up the work copyrighted would not seem to deprive it of protection. 2 Kent, Comm. 381; Callaghan v. Myl!irs, l'28U. S. 617,9 Sup. Ct. Rep. 177. Neither does the using of parts' as quotations appear to avoid liability for taking them to makeup anOther work. 2 Kent, Comtn. 382. The writings of authors are what >congress is authorized to secure to them, (Con8t. U. S. art.
i, § 8;) and these are what the sole liberty of copying and vending conferred by congress applies to. The sole liberty is invaded when any material part ofwhat i's the author's own work is appropriated. Sayre v. Moore, 1 East, 362, note; 2 Kent, Comm.382, note. The work of Gilmore was 'written for a presidential campaign, and that of Alger for young persons; and this difference of purposes is relied upon as a justification. But the author's right is absolute when perfected, and the purpose of an invasion nowhere appears to be made an excuse for it. According to the defendant Alger's own account of his writing his book, he procured Gilmore's and others at the beginning, and wrote important parte of 'his with Gilmore's constantly open before him. Still the use made of other parts than the second and third chapters of Gilmore's book would not indicate as matter of fact a material appropriation of his writing. But so much of thA ideas, language, and mod,e of expression 'Qf Gilmore in these chapters is carried into the defendant's book as to show that Alger did not stop with, the use of Gilmore's book for information only, but appropriated parts of it to making up his own. This, to the decision of supreme <'.Qurt in OaUaghan v.Myer8,128 D.· ;S. 617, 9 Sup. Ct. Rep. 177, as well as other authorities before ,mentioned, appears to amount to infringement of the exclusive privilege held out by ,the copyright. Some of the material from Gilmore's bqok so by Alger had previously been u!jed by others, without right, ,and wltS taken,l;>y him from their works. TI,at he found.it there issorpewhat relied upon as a ground for considering it public property. These acts of others would not, however, remove the protection of the copyright, nor furnish any excuse for him. Dponsllch consideration, profits of this inthe defendants appear to be liable to account for fringement. The extent of the liability can only be determined by a reference to a master for that purpose. No injunction is understood to be asked for now. Let an order overruling the motion, and a decree for an account of ,profits of infringement, with costs, be entered.
THE RIO GRANDE.
THE RIO GRANDE and AND
(District UOU'l't, S. D. New York. May 6,1889.)
A tug, in towing a sailing vessel out of a slip by a hawser from beblnd a covered pier is bound to see what vessels may be approaching, and to give the required signal before proceeding to cross the latter's course, eVl'n though she may have a right to clear before being shut in by the latter for a considerable period. ,The approaching vessel is bound to stop and back as soon as the intent of the other to cross is perceived. '
SLIPS-TOWING VESSEL OUT OF SLIP.