vol. 42.

ldUNRO .V,, SMITH

et al,

Ma.y 5; 1890.1

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, (Oirculft:eowrt, S. D. NeW York.

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of complainanfs and magazines containing pictures . q',1',Qld Sleuth':,at;e notinfrilrgedl:\y defendaI!-ts: books. having II; picture of "Old Sleuth, the Detective," on the cover; the varlatIonsbemg suffiClent to make the pictures very different.

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For copyright. for pll:rlntiff" ' , .' . 4rt:liibqld .L. SessionB, for defendants. " , ,
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,J. is a' bill whiph is founded upon' the alleged infringement of a copyright. The complainant is the publisher of a series of stories called tlle "pld Sleqth Library," and purporting to be written by "Old Sleuth.," Each story" i,a puplished separately in pamphlet form, and upon picture ,of "Old Sleuth," a detective, in large, old-fashioned clothes, with full, bushy .bea,rq'lspootacles, fob chain, and· baggy umbrella. Elich 'number of theaeties·is copy.righted. Tbe complainant has also published It magaziIlel :called 'Fireside Companion, number of which is copyIn the number jssued January 7, 1884, .he commenced the publication of a Sleuth in Philadelphia," the first .,page, of: whichcoritained: asimillU: ,picture of the detective. Since the dateQf the plaintiff's copyright, ,the defendants ;have been the publishers ofa series ofs.tories upon the cover of each volume, See:ret-ServiceStodes of Old· Sleuth and Others." and two or ·more',Qf them are also repres'ented upon thecover"tQbe written by "Old,Sleuth." There is also a,pioture of "Old SleutJh, the Detective," upon, the cover. All t.hese stQdeSi both of the plaintiff and defend·written by th", same person,one of whose assumed names i,s",Old Sleuth." Theeomplainant's bill is so drawn as to allege that he bad a copyright in :the pamphlet or magazine, and also in the pdnt.· [t is manifest ,from the certificates of the librarian of congresa,that the several pamphlets and magazines containing the pictute wereco,pyrighted,butthilt there was no separate copyright in the engraving,ol' print or cut·. The picture was a part of the· book, and the theory of the cOJ;Ilplainnnt is that this copyrighLwas infringed by copyiQg,puhlishing, ,$.!ild seilliag copies of thispl).rt.of his book. I ,shall $SSUUle that this theory is correct, and that,,,,heo a defendant rean originill piotllre or illustratioll owned by ,the complainant, a;book or magazine upon which he 'has a. valid copyl'ightisuoh :llight.is infring0d. The only question in this <lase is in ',regalld infringement. The b"ought a bill in equity defendants, before the supreme court for tbestate of New :Y;ork, 'for an injunction against the !use".of the .picture or the phrase "Old Sleuth, the Detective," orthe.wprd."Sleuth," upon the ground

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GILMORE V. ANDERSON.

267

that the several words and devices were the complainant's trade-mark. The sUEreme court held, at trial term, (1 N. Y. Supp. 313,) that the complainant was not entitled to the exclusive use of the name, but that the picture was his trade-mark. The court, at general term, (8 N. Y. Supp. 671,) reversed the judgment, and held thaHhere was l1otrade.:mark in the picture. It is thus obvious that the idea which first presented itself to the complainant's counsel, as it is also the first which would naturally present itself'to :;tllY one, without a of the facts Oil both sides, was that the question was one relating to trademarks. and it is necessary to dissociate from the case the ideas which belong to trade-mark cases. If the name" Old Sleuth" or "Old Sleuth Series," coupled with a picture of the detective called "Old Sleuth," was a belonging to the complainant, the whole representation upon the cover of the defendants' books would he 'easily held to be an unlawful use of the trade-mark, and, in connection with the use of the words and names, a court might not improperly be led to enjoin against the use of a picture purporting to be a picture of "Old Sleuth." But there is no trade-mark feature in the case, and the question simply is whether the later picture, taken by itself, is a copy of or was borrowed from, or is an imitation more or less close of, the complain-' ant's picture, or is a colorable variatiOn therefrom, so as to be an infringement. That the defendants got the idea from the plaintiff :of having a. picture to represent the common hero of all the stories, an apparently dressed in an old-fashioned garb and style, and having a shrewd face, is probably true. But the two pictures are dissimilar. The attitude, the general expression, and the general ap'pearance bfthe two figures are unlike,' and not only unlike, but Very different. The variations are more than colorable. Thedefendahts' picture is not an imitation, but their designer took the plaintiff'l. idea, and worked it out in a different way. I do not tind an infringement, and the bill 'should be dismissed.

GILMOREV. ANDERSON

et ale

C",,"cuit Court, S. D. New Yor7c. Hay 5,1t!OO.
COPYRIGHT-INFRINGEMENT-ACCOUNTING I!'OR PltOI!'ITS.

Defendant printed about 17,000 books infringing plaintjjf's copyright, sold 1,000 at 2S cents each; gave away 1,000, and sold or the restat 56JA, cents each. Ilis accou,nt-books had been sold for paper stock before suit, began, ana many books received in llxchange became comparatively worthle!\s through no fault of his, but how many: C9!1ld not. be told, nor llow much he re,ceived from sales of those so reo ceived. that he must have in order,to make a profit. . Beta, that the eVldencefailed to show any prOfit. '. '.'

In Equity. On exceptions to master's report, 38 Fed. Rep. 846. Oharles O. Burlingham, for complainant.