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LITHOGlUPH, & ENGRAVING CO. j ' Limited.
:(Q£rcutt Court. 8. D.,N&W .York. November SO, 1891.)

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In, an action for the infrbigeJ;l1ent ,ot a copyright fo'!' a photograph, in order to reproduced was without the aU8tain the defen8e that ,the coil" "'hich statutory notlqe of copyright, it i8' nbtsUfficient that it was without the statutory notice when it came into defendllDt'e.Vossession, but it must be shown that it lacked . Buch notloewhen it left plaintilf'8 po&seltsion.
BAME-PUBLI0ATION-DELAY.

01" CoPYRIGHT-:-PHOTOGRAPllsi '

A delay of the publiQati9n of. a photograph f9r tW9 month8 Bnd eighteen daY8 after the title wa& tiied with the librarian of congre&8, 88 required by the copyright law; '18 Inot unrea80nable. :. '
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... BAIII.....FoBWHAT ALLOWED-PHOTOGRA.PHS.

The facts that a photographer arranged the light, baokground, and other detail8 for a photograph, and posed the 8ubject BO as as to produce an artistic and pleasing 8ufficient·to austain a copyright for such photograph. picture,

In On final hearing. J. Falk against the Gast Lithograph Bill for .injunction &; Engraving Company, Limited. For opinion' on motion for preliminary injunction, see 40]j'ed. Rep. 168; Isaac N. ,Falkand Rowland Cox, for complainant. William ./J. EUi80n and a. Gill, for defendant.,
COXE, J. This is an equity action to enjoin the infringement of a copyright .for a photograph of iJulia Marlowe. The photograph was taken by the complainant andoopyrighted by him as proprietor. It is admitted that· the photograph was copied by the defendant. The following are the principal defenses: ,Pirst. The complainant failed to inscribe upon each copy of the photograph in question the notice required by law, the.photograph.copied by the defendant being without such notice. Seccmd. The proof is insufficient of the mailing or delivery at the office of the librarian of congress of two copies of the photograph as required by sections 4956, and 4959 of the Revised Statutes. Third. The complainant lost his right to .acopyright by unreasonably delaying the publication of the photograph. Fourth. 'fhe photograph in question is not the proper subjeot ofacopyright, and the complainant has failed to show any, title thereto as proprietor. The testimony relating to the first defense should, be scrutinized with unusual care, for the reason that thevalue of copyl'ights will be greatly It will be observed that the impaired if such defenses are photograph from which the defendant copied the infringing device, the solar print which was subsequently colored by its artist and the negative of the solar print have all been lost or destroyed. The assertion that the photograph in. question was without the statutory notice came from two witnesses who testified from memory: only, after the lapse of a year, during which time they had examined hundreds of similar photographEl. 'Moreover, their testimony does not: agree,. and the principal witness for the defendant has given two conflicting versions of the manner in which

FALK V. GAST LITHOGRAPH &: ENGRAVING CO.

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the photograph came into his possession. In the absence of the photograph itself this testimony is too uncertain to overthrow the presump. tions which follow from the established facts. The testimony for the complainant is to the effect· that unusual care was taken with the photographs of Miss Marlowe for the reason that the complainant was under contract to issue none that were not copyrighted, and that none were issued from his establishment without the copyright notice. The difficulty with the defendant's testimony is that it may be true and still the complainant, in all respects, may have complied with the statute. In other words, it is not enough to show that the photograph was without the statutory notice when it entered the defendant's possession. It Dlust appear that it was without the notice when it left the complainant's possession. There is no evidence to show this. If copied afterwards or put upon anew mount the complainant should not suffer. The case was before the court .upon a motion for a preliminary injunction. 40 Fed. Rep. 168. It was there held, upon substantially the same facts. that complainant's evidence showing a compliance with the statutory requirements not overcome by testimony that the copy from which the defendant produced the lithograph in question was without the notice of copyright. Should the court once establish the doctrine that the oral testimony of an infringer that he copied from a photograph not inscribed with the statutory notiee, is sufficient to exculpate him, is it not entirely plain that the door will be opened wide for trickery and fraud, and that the value of copyrights will be destroyed? Should the court so hold it will only. be necessary, in the future, for infringers to purchase photographs from which the notice has been cut or erased, or which have been transferred from a copyrighted mount toa plain one. The photograph, after having been copied,.is.conveniently lost or destroyed, and the owner of the copyright is left remediless when confronted with the statement of the wrong-doer that the notice was absent. The foregoing remarks are not intended to reflect in the least upon the defendant or its witnesses; they are made only to illustrate the ease with which unscrupulous Ulen can defeat the law if aided and encouraged by such a ruling from the court. The evidence of mailing and deJiveryat the office of the librarian of congress, in the absence of any proof to the contrary, shows a sufficient The testimony of the complainant's busicompliance..with the ness manager that he caused to ,be mailed to the librarian two printed copies of the photograph in question (No. 94) is supplemented QY the certificate of the librarian that "two printed copies of a photograph entitled 'Photograph No. 94 of JUlia Marlowe'" were delivered at his office. If further proof were needed it is found in the testimony of the who saw pllOtograph NO.,94 of Julia Marlowe in the office of the lihrarian and i{}entified it as being similar in all respects to the photograph in question. is true that he saw but one photograph, but it bore the librarian's mark, "No.2," showing with reasonable certainty "No.1" was also there. The proof considered as a whole establishes anl'tlmost conclusive presumption that the conditions

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elthe.statute were complied with. Callaghan v. Myers, 1i28 U. S. 617, 9: Sup, Ct. Rep. 177. Section' 4959 provides that the proprietor of a photograph shall mail to the librarian or deposit with him two printed cbpies thereof "within ten days,after its publication." The certificate of the librarian shows that two of the photograph were deposited December G, 1888. They were mailed the day previous, December 5th. There is some testimony tendirig to show that a copy of photograph No. was seen by Miss Marlowe as early as November 5, 1888, and that ClJpies were sent to her on Sunday, November 25th of the same yenr. It is doubtful whether this 'testimony, in any view, is sufficient to establish a publication, but it i8too vague, shadowy, and uncertain to countervail the evidence of the complainant that publication did not take place till 'December5, 1888. Miss Marlowe is not sure that No. 94, was among the photographs sent her, and the other witness upon this subject, called by the 4efimdant; is title was filed with the librarian September 17th,and the copies were mailed to him on the day of publication, December5, 1888,-two months 'and eighteen days thereafter. No authority is' cited holding thiato be an ble d e l a y . . ' The,complainant testified that he arranged the pose and lighting of worked up the expression arid decided upon the photograph in tlie attitude; .but testimony of Miss Marlowe that he arranged the light, the background imd aU other details;. and finally posed her,wlwn taken in connection with the picture which certainly is artistic and unusually pleasingj is sufficient to sustain the copyright'within the au53,4 Sup. Ct. Rep. 279. That thority-'of &rony'8' Case, 111 U. the complainant was the author and proprietor of the photograph is ficientlyestablished. The complainant is entitled to a decree.

FISHER tl. SECRIST.

,(eircuit Oourt, N. D. lHi1i6'!8.November 16. 1891.)

An afII.davit in attachment Which states that defendant is' indebted to plaintift "in the sum Qf $24,000 damages and interest upon the COllenants In the deed" an, ,nexed thereto does notsu11lciently set forth "the and amount of the indebt, edness',h within the requirement of the Illinois attachment act; (1 Starr & C. St. p. 810,'§ 2,) when the action is commenced by prrecipe, and no declarationhns been filed,but spould state't4e facts relied on as breaches of the oovenants, and the damages sustalned'byeaohbreach. ' , 2. SAMB-DEBT FRAUDULENTLY CO:<TRACTED. Under section II, autho,izing an attachment when the debt sued for is fraudulently contracted, "provided the statements of the debtor, bis agent or attorney, which constitute the fraud,:shall'be reduced to writingjand his signature attacbed thereto by himself,agent, Qr attorney," an attachment cannot upon affidavits show'ing fraudulent statements in writing by the .debtor's agents, to whichtbe debtor's signature is not attached. . . 8. SAME;. . '. " Nor will an attachment issue upon an affidavit averring fraudulent statements by , ,: an agent, who attached signature thereto; 'when the statements are not

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ATTAOllHENT-SUFFIClBNOY Oil' AIl'Il'IDAVIT.