202

v. T. P. Hom;LL, & Co,'

S. D. Yorl.;. December ,20,1a8g.)

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CoPYRIGHT-PHOT04RkHS",""INFRtNGEMENT.:

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A copyright ofaphotograph artistically' designed to illostrate a musical composition is infringed by stamping an'imitation in raised:figure on leathern chair botto,ms and backs. " ,

In:mquity· ' Bill by Benjamin J. Falk againstT.;r. Howell &Qo.,acorporation, to restrain the infringement of photqgraph. The plaintiff is a photographer, and has copyrighted a picture of Geraldine UlIller as "YUIn Yum,", in which she is represented as.;sitting upon the , hornof the moon, while uttering "We're very' wide awake, Ij" it intended' th,ereby to illllstrate'a song Bung by Miss'Ulmer in the "Mikado." is in manufacture of Chairs, ,and stamped a raised the picture, on the leather "of which the and backs of chairs art:! The picture was 'illustrll-tive ofthe song, not only by the ,combination of the figure of the 'girl with that of the but also by the representation of the moon as a face, the features of both bearing an expressiOll appropriate to the words of gong.' '" ' " ,lsaac'N.'F(#k"for com'pl,ainant. '.' , William 0.' Wallace, for defendants.

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by the the subJect of a copynght. .The question is, do , the defendants infringe? '..That their 'design is copied" rlirectly. from the · eopyrighted not denied, but itis.\lfged that infnngement · ifaY()ided, because it is than thephotogrll,ph, and is. stamped · leather, 'and is infundEjd for the bottom or back. of a chair. . It is that this be maintaineq,. Differences which merely size and' mlttenal. are not important. Tiley may afl;ect t)le .question of but not thi!. question of infringement. The CiOw,plainant is entitled to. the usual decree.
IS

";Co!iE, J,. 'Since the deCision of the supreme'court'in lJurrOW-,Gilea Co. Sarony,l1J U.S. 53,4,Sup,. dt. Rep: 279, there,9a.nbeno doubt that
"a photograph

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203
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(C'i'l'cttit (Jourt, S.D. New 'YO'I'k. January 8, 1889. '
1.

PATENTII

One who acts soleiy as employe, and has no pecuniary intertst in the product of his labor; 'llnd is simply employed'by the oW,ner to supervise the work of general repair, cannot be charged as &n· infringer on account of .his' nection with the machine so repaired. . : '," The licensee ofll. patented machine has the to replace parts Whi.qh wear out, and.' so'long as the identity of tbe machme is not destroyed, to discard useless parts and add new ones to improve its action. ' ' ,
LICENSEE. , ," "

ARE

2.

SAME-REPAIll5

In E;quity. Bill for infringement of patent, brought by Hugh Young and the Young & Farrel Diamond Stone--Sawing Company against Emantiel Foerster. On. final Edwin H. Brmwt, for (Jomplainants. Arthur 11. BrieBen, for defendant.

CoXE, · This is an action of infringement, based' upon letters patent" J. No. 224,760, granted to Hugh Young, February 17, 1880, for an, improvement in machines for sawing stones. In August,' 1879, , Smith purchased of Young, for $4,700, a machine embodying the j>atented features, and received 8 license to operate itun'der patlmts theil owned by 'Young; and under all patents for improvements on the same which thereafter might be owned by him. On' the 8th of3'uly, ,1882, Smith entered into another agreement whereby, for the additional aum. of$300, he received a license tonse the machine according to in suit; whichhad·been granted since the purchase, and to embody 'any improvement covered ,by that 'patentor any other pateilt owned orc6ntrolled by Yonng. During the period in controversy Smith was the owner of the machine. The defendant was in' Smith's employ, receiVing $3.50 daily wages.. He never used the machine, except as an employe ' of Smith. He had no interest in or control over it. Soon aftei it 'wa's purchased, it broke down, and since that time has been freq.ueP:tlfrepaired. No m8<lhine similarly constructed can run for more thana month without undergoing repair, which involves putting in new parts' andchangtng oldon.e!!. In the spring and summer of 1886, 6n'a¢cbunt' of the removal of Smith 's place of business, a more thorough' 6verh'apling was necessary. At that time new were put in; the old (mes being worn out. The crank-shaft ahd slime' littIebolts, pins, and nuts were worn out also, and ·new ones, :wei'e stituted. The slides on which the saw-sash runs were two feet, and all the attachmentsforimparting a lift or pushmo:tf61;(t(;>ihe blade were left off. Lilt rIlotion is now im parted to the sash by llIdhcline at ea.chend oftheguide bars. The defendant had superYisibrtof this work as employe ,of Smith. ,The complainants 'contend thlitWhit"