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.

680
, . Equity ;by Michael: lIaughey Meyer, for infnngement of a pat¢nt.,Decree for complall1ant. " . ' The letters patent in controversy in this case are'No. 379.644, ,dnted M$.r-ch 20, 1888, and were granted and iSS\llldto the complainant, MichMI Haughey, for a. new, improved, interfering device for horses. 'fheolaim of this patent broadly covers the use of 1l,4angle or pendant" li\ttaohed to an'interfering boot, and is as follows,
interfering device consistingofthe pendant made of rub1)er,wood. or loosely jointed to the strap passing i'round the leg of llPlu'se. 1!ubstantiallyin the manner shown and for the purposes setIorth."

The c9n1plainedof thii:l case consisted in the' eale and use.oenn interfering was shown, in evidence, to have been madeJJyamanufacturer in NeWllrki N. J.-provided wlth a, pendant, whe'rehy,'jtintringfl(i;tl),e of tpe patent. Edward J. for complaioflont. T. O. Woodward, for defendant. " J., (orally.) This is ';suit to ,theinfflPgement of a patent covering a to prtwellt horses frpm The device ,consists of a strap, or, ratheIj, a boot, so mad,a as to be buckled around,the limb of a,horse, jUl3t Aver 01' above the pastern jbint, and. to this boot is attached a short,pend;tlltconsisting ofaleather string, on which are strung several small rl,.lbber balls. 1t)s clliimed that, by the use,of: this deviceonq, horse the habit of interfering, may be cured., The Patent creates th,e presumption of ,novelty and ,and there is considerable testimony in the case strengthening' the: presomption.: testify from ex,pE1rience al;) to the usefulnE\l'isof the !i,nv,eiltion in correcting the habit oqnterf,ering. 'rhedefense made by the that is to. say, the only def l:elied upon, ,is that of priQr, i use, and want of; ,povelty. It is nse ela.imedthat8idevioe,si,miIar to t;,lW,patenteq. deyice"alld embodying the same principles, had been in use for 20 or 30 ,before of the alleged invention. The defense has not been made out to my satisfaction. It seems to me that, if a similar device had been in use before the date of the invel1tion, (as witnesses claim,) it would· have been quite possible for the defendant to have produced a sample of the device, which, as he claims, 8,ptedated, #le complainant's patent. Although the defendant took a great deal of testimony to establish prior use, yet hl{did not succeed in producing a singlesaIl}ple Ooot that antedated the complainant's letters. 'fberefore the defense of prior use and want of novelty has not been established by that kind of evidence ,l!.ng wlth'tbl:\it,certainty which the law requires, and complainant is accordingly eptitled to a decree.' ,

"

WII,SON

:V.

v.

ANSONIA BRASS & COPPER CO.

681

WILSON

ANSONIA

BRAss &

COPPER

0&.

(Oircuit Oourt,S. D. New York. December 28,1891.>
1.

PATENTS FOR INVENTIONS-PATENTABILITY-LAMP-BURNER8.

a

Letters patent No. 816.422, issued April 21, 1885, to George H. Wilson, for ah im· provement in lamp.burBers, consisting of a projecting teeth at the top and bottom for holding the wIck and glvmg It a posItIve movement as desired, and having slots in the sides for admitting air to the interior for an al'gand burner, show. an essential and useful improvement over all other burners, and are therefore valid. A burner having a wick-carrier like that of the patent, except that tbe wick is held by stitches at tbe lower end, constitutes an infringement, as the stitches are merel1the mechanical equivalent of the teeth.
'"

SJ.ME....:.lIN'PRINGEM:ENT-EQUlVALENTS.

Suit by George H. Wilson against the Ansonia B.l'ass & CopperColIlpany'for infringement of a patent. Decree forcpmplainant. ,E. ff.,.B'Jdlard, [or orator. Edwin H. Brown, for defendant.
WHEELER, J. This suit is brought upon letters NO.,S,1,6,422, dated April 21,1885, aodgranted tothe orator for improvement in lamp-burners. The patented improvement consists principally in a wick-carrier, with inwardly projecting teeth at the top and bottom ends for, h<114j,ng the wick and giving it a positive movement as desired,and slots inthe sides for admitting air to the, interior. foran argaild burner. 'rhe are want of novelty and non-infringenient. The show styles of burners, sOqle having one thing, andotllersanother, Har tothe'plaintiff's, having a wick-carrierholding the firmlyateach end for D:lp,vingit up and down evenly all found, to properly adjust the flame,aridlllso admitting air to the interior, as his The between his apd all others is small, b,ut it seems to Q!'l e!lSentialan,d useful, and lJ!ltentable. The defen4ant's burner has a wick-carrier like tile plaintiff's all respects, EI;cept that the wick is held by stitches at end instead of by teeth. The appear to be an equivalent there of the teeth, (lnd the carrier appears to be an ,infringement. decree be entered for the orator.