HARPER V. SHOPPELL.
613
as he does, a part of the executive department of the government, are worthy of great respect, and entitled to great weight in the 00nstruction of the statute. To his subordinates they are final, but to others they are not final. To the judicial department, and in controversies involving construction of statutes, they are only persuasive, and not conclusive, unless made so by statute. In giving importance to these decisions and acts, it is important to consider all the acts and decisions of the different secretaries, in the written decisions, as well as the charts that are in evidence before you, in relation to the boundaries of these districts. If you find from the evidence, and under these instructions, that the port of Put-in Bay was at the times named in the petition in the Sandusky district, then you will find for the plaintiff, and the measure of its recovery would be the penalties named in the petition, put into one amount. If you find that the port named was in the Miami district, as claimed by the defendant, then your verdict will be for the defendant. The jury being recalled, after deliberating some time without agreement, was instructed as follows: It will make no difference in the location of the port of Put-in Bay whether you decide the western cape was at west end of the bay or at Marblehead, for, under my instructions heretofore given, if at west end of bay, then the shore must be followed to Marblehead, and around it, to the point named in the Miami river; and that would put the waters north of Marblehead, and west of such line, to the Canada line, in the Miami district, the same as if it started at Mar. blehead, and would include Put·in Bay in the Miami district. Verdict for the defendant.
HARPER
and others v.
SHaPPELL.
(Oircuit Oourt, S. lJ. New York. September 8, 1886.) CoPYRIGHT-COPYRIGHT IN BOOKS PROTECTS CUTS AND ENGRAVINGS THEREIN.
One who makes a plate from which a copy of a picture forming an impor· tant, substantial, and material part of an illustrated newspaper that is copy· righted can be produced, and sells it to the proprietors of a rival illustrated newspaper, with the knowledge that it will be published in that paper, is " joint tort·feasor with such publishers. and is guilty of infringement of the copyright. See Harper v. olwppell, 26 Fed. Rep. 519.
Motion for New Trial. S. C. 26 Fed. Rep. 519. A. T. Gurlitz for plaintiffs. Before publication, an author, etc., has, at common law, an absolute legal title to his writings and discoveries, and may prevent the mUltiplication or
614
FEDERAL REPORTER.
publication of his works, and any interference therewith or use thereof, di· rectly or indirectly. Prince Albert v. Strange, 2 De Gex & S. 652, 693; Turner v. Robinson, 10 Ir. Ch.142, 510; Millar v. Taylor, 4 Burr. 2303. By the reversal of the latter case in the house of lords, and the subsequent de. cisions based thereon, it is now settled that the rights to restrain the use, multiplication, and publication of the author's works are all lost by his publication of the same, except such rights as are secured to him by statute. J)onaldsons v. Becket, 4 Burr. 2408; Wheaton v. Peters, 8 Pet. 59!. The legislation in the United States upon the subject is to be found in Canst. art. 1, §§ 8, 10; Hev. St. §§ 4952, 4964, 4965. There may be an innocent use of por· tions of books, but such use must be consistent with the entirety of owner· ship which the author has in his copyright. Reed v. Holliday, 19 Fed. Rep. 327. It has been decided that the act of making copies for gratuitolls distri· bution is a violation of the copyright. Novello v. Sudlow, 12 C. B. 177. The cases in which engravings. etc., have been held to be protected as parts of the books in which they were printed, are collected. It is proper to say that they are all English cases, but in this respect the statutes of the United States follow the English statutes, and the cases are therefore of great weight. In Roworth v. Wilkes, (1807,) 1 Camp. 94, the prints in a work on fencing were protected. In this case a number of the prints were copied. In Wilkins v. Aikin, (UnO,) 17 Ves. 422, the plaintiff's work had 72 plates and 13 vignettes. and, the defendant's haVing only 7 plates, the defendant's work was claimed to be a lawful abridgment. and contained much original work, but the injunction was sustained by ELDON. In Brl1:field v. Nicholson, 2 Sim. & S. 1, (1824,) there was an injunction restraining the defendant from designing any of the plates of the plaintiff's book. See page 10. In Bogue v. Houlston, 5 De Gex & S. 267, (1852,) it was also held that the copyright in a book extends to the illustrations as well as to the letterpress. In Bradbury v. Ilotten, L. R. 8 Exch. 1, (1872,) the publishers of Punch were protected from an invasion of their copyright in engl'avings published in that periodical, by taking from nine different numbers of the same two cuts wholly, and seven partly. In Grace v. Newman, L. R. 19 Eq. 623. (1874,) a book, being a business catalogue, consisting of designs for tombstones, was protected, and the defendant, who had copied a large nnmber of the designs, was perpetually enjoined, although the catalogue was used for advertising purposes. In Maple v. Junior Army & Navy Stores, 47 Law T. (N. S.) 589, it was held. overruling Cobbett v. Woodward, 27 Law 'r. tN. S.) 260. that pict1Jres or prints in a book, (in this case also an illustrated catalogue,) containing also letterpress of no literary merit, are, on registration of the book, entitled to protection from copyists, although such pictures or prints have not been registered under the engraving acts. JESSEL, M. R, says in this case, speaking of the English statute of copyright for books: "Engravings are not mentioned, and engravings published singly have to be specially protected; bnt there is nothing to exclude them when they form part of the book." And then he quotes with approval from the decision in Bogue v. Houlston; "It appears to me that a book must include every part of the book; it must include every print, design, or engraving which forms part of the book, as well as the letterpress therein, which is another part of it." In Macfal'lane v. Oak Foundry Co., 20 Scot. Law Rep. 525, (1883,) the copying of SOlUe of the illustrations from plaintiff's trade catalogue was held to be an infringement of the copyright in t1\e catalogue. In this case a large number of the cuts had been reproduced. From the latter cases it appears that cuts of apparently little artistic merit could not legally be reproduced for adver· tising purposes. J. W. Hawes, for defendant.
BROOKS
v.
MILLER.
615
WALLAOE, J. Upon the conceded facts appearing in the stipulation filed for the purposes of the trial, the defendant has made an electrotype copy of "an important, substantial, and material part" of the plaintiffs' copyrighted illustrated newspaper, and sold the plate to the proprietor of illustrated newspaper published in the same city where the plaintiffs' newspaper is published, the defendant knowing at the time of selling the plate that it would be used by the purchaser for printing and publishing in such newspaper the matter copied by defendant. Under such circumstances the defendant is in no better position than he would be if he had himself printed and published the copyrighted matter in ihe purchaser's newspaper, because, as was stated in Harper v. Shappell, 26 Fed. Rep. 519, 521, he is to be regarded as having sanctioned the appropriation of the plaintiffs' copyrighted matter, and occupies the position of a party, acting in concert with the purchaser who printed and published it, land is responsible with him as a joint tort-feasor. Wallace v. Holmes, 9 Blatchf. 65; De Kuyper v. Witteman, 28 Fed. Rep. 871; Travera v. Beyer, 26 l?ed. Rep. 450. Judgment is ordered for plaintiff.
BROOKS V. MILLER. l
(Oircuit Oourt,
w: D. Michigan.
1886.)
1.
PATENTS FOR INVENTIONS-REMEDY FOR INFRINGEMENT.
A patentee in resorting to his remedy for infringement, whether In a court of law or equity, is bound by the same principles affecting the jurisdiction of the two tribunals as prevail in other branches of law. If the remedy at law is ample, he is bound to pursue it; otherwise he may resort to a court of equity. In case of an infringement then continuing, a patentee is not restricted to the remedy at law, but may apply for an injunction, and, upon his bill, obtain an award of damages for past infringements.
2,
SAME-INJUNCTION-DAMAGES.
3.
SAME-EQUITABLE RELIEF-){ULTIPLICITY OF SUITS.
A court of equity interferes, by injunction, to restrain threatened or con· tinuing infringement of a patent, for the purpose of preventing a multiplicity of suits; and, baving jurisdiction of the case for that purpose, awards damages already incurred, and thus affords a complete remedv. SAME-ADEQUATE REMEDY AT LAW.
4.
But if a case of infringement of patent is not one appropriate for an injunc· tion, but is for damages only, as, for example, when the bill is filed after the expiration of the patent, the remedy is at law only. The mere fact that the patent expires pending the suit will not oust the jurisdiction of a court of equity, if, at the time of the filing of the bill, an injunction was prayed, and the right to it existed ..
5.
SAME-EXPIRATION OF PATENT PENDING SUIT.
I
Edited by Charles C. Linthicum, Esq., of the Chicago bar.