·W edo not think that the· opiniohs of .the'chnMe:UQr"and 'of the snprelmh'.ourt, which are'set buthndmade parts ,oftheplea;hre any,paDt of the judgment'i'oll;nor do we deem it necessary tollook at"thetipinions to ascertain the gr01lnd or reason for ,the judgment renderedc;ih the cases in which theY were pronounced, even if admisslble:forsuch purpose. But the ,supreme court doe'S, in effect, , hold thD,tiiby the staleness of the complainant's claim,and its' com" ibar.:by the statute ·of limitations, the title to ,the stock in qu:estioilr'YeSted abSolutely 'in the defendant. Gilmer 'v. Morris, 80 Ala. 1 & : / " " Our opinion is that tlle record discloses that the dismissal of the bill inl!the state courtiwlis, not on-demurrer, or: 'fori' an;y' defects in t1+e pleadings,but"wtl\SJ'upon 'the .merits of the cause;' and that the mattE:rsnow alleged and involved in this litigation were actually presented and determined by the courts of the state of Ala· bama,and,are not now ,open to appellee. "It is obvious that the good orilell' of, society'requires that· a 'cause once fairly heard on the merits Ishouldbe conclusive. between' ,the parties; hence' the plea of res. ad§nflicata finds « place iIi every jUrisprudence;" .' " " Decree reversed, and cause remanded to thecircuit;court, with directions to dismiss the bill, with, 'costs. ' ':, I
havin;g del1verel1 ,of of theD;l to. In 1:\,' CiPpied. and incor, the published rei>br1:/l, and Boll1" them in book form under a title ,imporll1!lk' that the whole seriesot ilett\1res was there presented In the author:'s · that ontb,ese. facts complainant, was entitled to atemp?;Jlary injunctlon, o,f the
'fhis is a bill by Henry Dru:rmhobdagainst E:enry Altemus to en· join the puMicittionarid sale of aliool: purporting to contain certain by oomplainant. . Eleardon' 'application for a temporary injnnction. ' . \.. ' ' ' , Biddle'&; Wtlrd, ,for phiintiff. J <>siab' 1t:'SyPlier,. for DALL.AS11Cil'cuit Judge., From the facts as' lIeveloped on the hearing motion for an interlocutory injunction it appears that the,:defebdant has published, and to a considerable' extent has sold, aiboom,purporting tocontain.certain lectures delivered by plaintiff,Ewb,ich,in fact, does notp:resent those lectures'correctly, butwith additioqs andomissibns which ,essentially alter the productions of the alltho& This is BOught to ,be, jnstified by thellVerment that the question had not'bee'ilcopyrighted,.and':that their au· thor JuJ.d,dedicated thelllitu,the -pubue.:·, The Bubjept lof copyright is not directly involved. The complainant does not ibasehis claim to
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relief upon the statute,· but upOn' hiB right, quite distinct from any conferred by copyright, to pro'i:ection against having any literary matter published as his. work which is not actually his creation, and, prevent fraud upon purchasers. That such right exists is too well settled, upon reason and authority, to require demonstration; and, although it is equally well established that an author may, by dedication of any product of his pen to the public, irrecoverably abandon his title, yet, in this case, the fact relied on by the defendant to support his assertion of dedication wholly fails to vindiate the pUblication complained of. The complainant did send to a Journal called the "British Weekly," and permit its publishers to print in its columns, reports of eight of the lecttires to which this suit relates, but these did not give, and could not be understood as giving, a full and exact presentation of those particular lectures, and· of the remaining four lectures of the series no report of any kind was furnished to the press or placed before the public. The defendant's book is founded on the matter which had appeared in the British Weekly, and, if that matter had been literally copied, and so as not to misrepresent its character and extent, the plaintiff would be without remedy; but the fatal weakness in the defendant's position is that, under color of editing the author's work, he has represented a part of it as the whole, and even, as to the portion published, has materially departed,from the reports· which he sets up in justification. The title Of the book is "The Evolution of Man; being the Lowell Lectures Delivered at Boston, Mass., April, 1893, by Professor Drummond;" It is true that all· the reports, except one, in the British Weekly, appear nnderaheadingin the same words; but the ordinary reader is not likely to rely upon display lines of a public journal to give a precise indicationotthe contents of an article to which they are prefixed, whereas such a title as we have in this instance, given to a book in permanent form, may reasonably be, and usually is, relied on .as truly stating thellatnre of its contents. A most important circumstance in this connection is that the defendant, while precisely adopting his title from .the headlines of the reports, has so altered their text as to make it appear, contrary to the whole tenor of the reports themselves, that what his book conwins is the precise Ian· guage of the author of· the lectures, although, as has been said, it contains only some of the lectures, not all of them, and presents none of them fully or correctly. 'fhe complainant's right has been fullJ' made out, and the case shown is manifestly one which calls for the interposition of the court at this /'ltage. An order will be made for a temporary injunction.
POTTet al. v. ALTEMUS.
(Circuit Court, E,
LITERARY .PROPERTY-I'RELIMINARY. INJUNCTION.
January 23, 1894.)
An author obtained a temrorory injunction against the publication, in garbled form, of certa..in lectures delivered by him. At the same time a