'678

FEDERA,L: REPORTER,

vol. 48,

[nrlians, and yet 1:I3s,no right to any lands upon which to 'placethen;l with that object., Considering what the relation ;of ,the Indians to the· state go.vernrnents in [J'. S· .v. Kagamq, sUpra, with such a view, we would hehold government The PQsition which such a contention United States is not in .this would maintain. AS,.anincident to the. right to govern such people hy its own laws would be the right to hold la.nds upon whi<::h t910cate and maintain them. It was also urged that,while the United States could have jurisdiction over such lllnde as fllr ,as the Indians areooncernE:d, it would havana right over white mel} found witbil) an Indian. reservation, such as the Crow reservation. The statute and thpordinancewe have been considering say the jurisdiction and control is absolute, nota divided jurisdictiop.or control; al[ld it would seem to me thnt this proper. Any other view might bripg on collisions between the authorities of the two .governments. The white men it was contemplated who would be upon this 1'eservation would be employes or officers of the national government; and with the view of protectin'g the Indians, the United States should have control over the'white mell t1pOn an Indian reservation as well as of the Indians. The Crow Indian reservation, notwithstanding the act admitting Montana into the Union, Temains, then, bdian country, absolutely within the jurisdiction of the United States. The general criminallnws of the States were then in force upon it. With this view, the defendant" it must"be held, was properly charged. The demurrer to the plea to the indictment is sustained.

FALX".

BRETT LITHOGRAPHING

Co.

BAlfE. fl.

BRoWNet ale

December 81,1891.)

(C{rcuit Court, So D. New

1. CoPTBIGBT-l'BoTOGBAPHB. . A photograph of a woman and child, with the child's fingerli in ita mouth, taken by the photographer arranging them in positions best calculated, in his judgment, to produce an artistic effect, is subject to copyright. LithograpMc CO. T. Sarotly',1 Slip. Ct. Rep. 2711, 111 U. S. 58, followed. 2. One, who copies a copyrighted photograph, by simply reversing it, for use as aD advertising lithograph, is guilty of infringement, though he makes a few minor changes in' the ,positions. '
   

In Equity. Separate suits by Benjamin J.F:alk against the Brett Lithographing Company in the one case, and Davis S.Brown and Delaplaine Brown in the other, for infringement of a. copyrighted photograph. Decrees for complainant. ]fJa(U; N., ,Falk, for plaintiff. J.T·. Hurd and A. W.T&nneJJ, for defendants.

HAUGHEY tJ. MEYER.

679

WHEELER, J. This suit is brought upons copyrightofa phbtograph of Josie Sadler and her child, with the child's finger in her mouth, taken by the plaintiff after arranging them in good positions according to his judgment, and after the child had put its finger in her mouth, which he thought improved the position, and took advantage of,as photographers usually takephtitographs. The defendant in the first case' had copied the position, features, and most of the photograph by reversing it, and changing some minor 'details, into advertising lithographs for the defendants in the other r8se. The principal defenses tt> both are that the plaintiff is not sufficiently to have been the author of the photo" graph,and that the defendantsbave not infringed. Tbataphotograp1nnay bathesubjectof'a valid copyright for the phOoo tographer as the author of it is well shown and seems to be settled in Lithographic Co. v. SdrOny;;1l1 U. S. 53,4 Sup. Ct. Rep. 279. The chief difference between that case and this as to this point is that the artist did not do so mucb in preparing the subjects bere as was done thel,'e. ,But enough done bere by placing the persons in position, and usin'g,fbe position 'assumed by the child at the proper time to proand the plaintiff thereby produced it. Other duce this photogftlflbsmay have been or may be taken of some otber woman and child, or onhis woman and her cbild in similar positions, or the same as near as may be, but none of them will he exactly like this. ,He is, and no else can be, tbe author of this. Tbe amount of labor,or skill in the production does not seem to be material if the proper subject of acopyriJl;ht is produced, al1d the producer copyrights it. The defendants have not merely'copied'the woman and child, as they might have done with their consent, but they have used tbe plaintiff's production as a guide for making others, and have thereby substantially copied it as he produced it, and infringed upon his exclusive rigbt of copying it. So .the validity of the copyright and infringement of it seem to be sufficiently made out. Let decrees· continuing the injunctions and- for an account be entered.

one

t1. MEYER.

(OO'cUit CO'W1't, E. D;

I '

E. D. 'December 28, 1811L)

t

PATBNTS)oOll

Letters No. 20,1888, to Haughey, for an im· proved device to prevent lUterferlUlt by horses, and consisting of a boot buckled around the leg just above the pastern Joint, and· having attached to it short pend. ant straps on which are strung small rubber balls, covers a new and useful inven. tion. AU,hough the defendant in a suit for infringement adduced considerable evidence of prior use, the fact that he was unable to produce a single device antedating the patent deprived his evidence of the certainty required to overthrow a patent.

2. SAME-PRIOR USE-EVIDENCE.