48 F. 222 -

222

FEDERAL' REPORTER,

v61.48.

defraud theUnitediStates by aiding in obtaining payment:o( a false cla.im, is it necessary: to prove that payment was in fact obtained, nor isitreqtiired that the indictmen,t should aver what particular official might hnvebeen deceived if .theconspitacy had been carried to '8 :successful'issue. If the indictment was intended to charge a conspiracy to defraud some particularperson, by practicing a deceit upon him, then, asa.rgued by counsel, it 'might be necessary to aver the particulars ,of the intended the' named 'person; deceit, I1nd that the same would operate to but the indictment against the present defendanm charges a conspiracy to defraud the United States"the means to be employed being the aid given the railway company in obtaining payment from the United States the milils. The indictment of a false claim for services in avers the party intended to be rlefrauded, to-wit,toe United States, and that is all that is tequired in this particular. Without further extending this opinion, it is sufficient to say that we think the indictment charges an oflense against the laws of the United States, and states the facts relied on with fullness of detail sufficient to advise the defendants of the accuSl\tion laid against them. This being so, the demurrer thereto must be overruled; and it is 80 ordered. WOOLSON, J. I concur in the foregoing opinion.

to '8 suooegful ii'seue", nor, 'when :ihe charge is of B

(Cfreu.UCourt,

s. D. New

York. November 19, 1891.)

L

COPYRIGHT OJ' PHOTOGltAPB-INFRINGBMENT-PLEADINo.

In a bill for an injunction against the copyright of a photograph, au allegation that complainant "is the author, lDventor, and proprietor of a certain photograph and negative thereof, known and entItled 'Photograph No. 23 of Lillian Russell, by B. J. Faiki N. Y.,!" is suftlcient without giving a detailed description of the method of prOQucing the photograph, or attaching a copy thereof to the bill.
It is suftlcient if the notice of inscribed on a photograph reads,"IS89. Copyrighted by B. J. Fa[k, New York, instead of "Copyright, 18811, by B. J. Falk,· as required by the literal directions of tll.e statute.

I.

BAMB-INscRmBD NOTICE.

In Equity. Suit to restrain infringement of copyright. rer to bill. Demurrer overruled. lBaac N. Falk and Roland' Oox, for plaintiff. John B. Talmage and Augu8tu8 T. Gurlitz, for defendants.

On demur-

COXE, J. The complainant, as the proprietor of a photograph of Lillian Russell, prays for an injunction restraining the defendants from infringing his copyright. The first objection taken by the demurrer, that the bill does not show that the oomplainant, at the time he pro-

FALK

v.

SCHUMACHER

223

duced the photograph, was a citizen of the United States or a resident therein, (Rev. St. U. S; §, 4952,) is fairly met by the allegation "that your orator, at all times hereinafter stated, was and still is a citizen of the United States and a reStdent therein, residing in the city, county and ·New York." The bill alleges further that the complainant "is 'the' aulnor, inventor, and proprietor of a certain photograph and negative thereof, known and entitled ·Photograph No. 23, of Lillian Russell, by B. J. Falk, N. Y.'" It, is thought that this allegation is sufficient without entering into a detailed description of the modus Op(Jl'andiadopted by him in taking the photograph. It is not necessary in patent to allege the preliminary steps and experiments which culminated in the invention, and there is no reason why one who sues upon a copyright should be more explicit. The complainant was not required to attach a copy of the photograph to his bill any more than an author would be required to attach a copy of his book. If the is not the subject ora copyright the defendants can allege andV"ptove it. ,.' " ' The allegations of the bill regarding the mailing of the title and printed copies of the photograph to the librarian of congress, and particularly the allegation regarding the recording of the title by him, as required by section, 4957 of the Revised Statutes, might well· have been more full and complete, and, yet, it is thought that this paragraph of the bill cannot be held h/lod on demurrer. "A deposit of two copies of the article or work wi.th· the librarian of congress, with the name of the author and its title-page,is aU that is necessary to secure a copyright." Lithographic Co. 111 U. S. 58, 59, 4 Sup. Ct. Rep. 279. The bill alleges that th,e,nouce inscribed upon each copy of the photograph was, "1889. Copyrighted by B. J. Falk, New York." The notice required by the statute, if followed literally, was, "Copyright, 1889, by B. J. Falk." Why, with this simple provision of the law before him, the complainant eawfit to inscribe his photograph with a notice which not only is a departure hom the striot letter of the statute, but is less symmetrical and concise, is indeed amazing. However, under the decision in Callaghan v. 'MyfJl", 128 U. S. 617; 9 Sup. Ct. Rep. 177, the notice is sufficient. "The,statute was substantially complied with." The only specific relief demanded is an injunction. Such an action is permitted by section 4970 ofthe Revisp.d Statutes. Althoughtbe bill might be more artistic and complete if some,at least, of tbeeriticisms pointed out by the demurrer were observed, it is thought that in itspreaent form it states a cause of action. The demurrer is overruled. The defendant may.answer within 20 days.
t. ,;

;,'

224

FEDERAL REPORTER,

vol. 48.

F ALK v. SEIDENBERG' et al'.

<Circuit Oourt, S. D. New York., November

bill.

In

infringement of copyright. On demurrer to . Isaac'N. Falkand Roland Cox, for plaintiff. . . John B. Talmdge and Augustus T.(;U1'litz, for defendants·

Suit to Dem'urrer Q.verruled.

. .CoXE, The decision in Balk v. Schumacher, 48 Fed. Rep. 222, ()f this cause, also. The demurrer is overruled. The may answer . within 20 days.
,

;

,

'ELEcTRIO

LIGHT CO. et al. '11. TRIO C o . '

ELEC- .

'.

(CircUit Oourt, D. Oonnecticut. November 1,1891.) .
PATENTS' FOR' INVENTIONS '';'" LIOENSE TO SELL -- RIGHTS 011" ll'RINGEMBN'r-PARTIES., . .' ..' . ·. ' · SUITII'OB ;'

IiJ.

An Ohio corporation owning an electric light patent gave another..company an exclusive license to sell the patented article in New England,' :Afterwards a Coil:· corporation owning other elect,l'ic light obtained.a' conttC)lling iJJterest in the stock of the licensor. HeZ4, that the licensee, a, suit in the district of Connecticut against the Connecticut cOrporation for selling an inMng'ing article within .had 'P'1'ima facie imj.>lied authority, PY, Virtue, ,tM'licl:lnse, 'to join the licensor as a party plaintiff agamst the latter's Will; especIally as the lat,ter, being'out of the jurisdiotion of the oourt; could 110t be served a/i'll,'party defendant. ,., \

MQr1"iB W., Seymour and Wm. G. Wilson, for. Br\lsh-Swa.n .Company.

.

"

'"

'

.

F. L. Or,a'Wjord and, Oharles R. IngersoU, for Brush Electric Company.
SHIPMAN, J .. This is a bill in equity, which is blionght.under the patent laws, to restrain an. alleged infringement of letters patent No. 219,208, datediSeptember .2, 1877, to Oharles F. Brush., The bill alleges that the Brush·Swan Electric Light Company of New England, a New York corporation, which will hereafter be called the Brush-Swan Company, is vested with the exclusive license and agency for the saieofthe described ..po.tentedimprovement throughout a specified territoryofthe United States, by virtue of Bundrycontracts, which a.re annexed to the bill, with the Brush Electric Company, an Ohio corporation, hereinafter called the Clevtlland Company, which is, by assignment, the sole owner of the patent. These two corporations are the complainants. The bill further alleges that the defendant, the Thomson·Houston Electric Company, a Oonnecticut corporation, is and has been making, selling, using, and renting to others to be used, infringing electric lamps within the territory named in said contracts.