LITTLETON t1. OLIVER DITSON 00.

597

therefore outside the claims of the patent in suit, all of which apply only to shirts which, have a double or supplementary front. The respondents therefore do not infringe, and the bill must be dismissed. with costs.
LI'ITLETON et aI. v. OLIVER DITSON CO. (CIrcuit Court, D. Massachusetts. No. 3,065.
OoPYRIGU'f-}1usICAL COMPOSITIONS-MANUFACTURE IN UNITED STAHL

,bIrts which appear to have, but do not have, a double front, and is

August 1, 1894.1

The proviso in section 3 ot the copyright act of March 3, 1891, that "In the case of a book, photograph, chromo, or lithograph," the two copies required to be delivered to the librarian of congress shall be manufactured in this country, does not include musical compositions published in book torm, or made by lithographic process.

This was a suit by Alfred H. Littleton and others against the Oliver Ditson Company for infringement of copyrights. Lauriston L. Scaife, for complainants. Smith and Linus M. Child, for defendant. COLT, Circui.t Judge. This case raises a new and important question under the copyright act of March 3, 1891 (26 Stat. 1106). The plaintiffs, subjects of Great Britain, and publishers of musio, have copyrighted three musical compositions, two of which are in the form of sheet music, and one (a cantata) consists of some 90 pages of music bound together in book form, and with a paper cover. Two of these pieces were printed from electrotype plates, and one from stone by the lithographic process. The inquiry in this case is whether a musical composition is a book or lithograph within the meaning of the proviso in section 3 of the act, which declares that in the case of a "book, photograph, chromo, or lithograph" the two copies required to be deposited with the librarian of congress shall be manufactured in this country. The act of March 3, 1891, is an amendment of the copyright law then existing. The principal change made is the extension of the privilege of copyright to foreigners by the removal of the restriction -of citizenship or residence contained in the old law, and hence it is sometimes called the "International Copyright Act". Section 1 relates to the subject·matter of copyright, and declares that:
."The author, Inventor, designer or proprietor ot any book, map, chart, dra matlc or musical composition, engraving, cut, print, or photograph or negative thereof, or ot a painting, drawing, chromo, statue, statuary, · · · shall, upon complying with the provisions of this chapter, have the sole liberty ot 'printing, reprinting, publishing," etc.

Section 3 recites the conditions which must be complied with, and says:
"No person shall be entitled to a copyright unless he shall, on or before the day of publication in this or any toreign country, deliver at the office ot the librarian ot congress, or deposit In the mall within the United States, ad· .dressed to the librarian * · * a printed copy of the title ot the book; map,

&9.$

.cI'EDERA:L REPoRTER,·vol.

CQmposjtlqtl, cut, print, photograph, or a descrlptlqJ?-0Uhe pa,\fl.tl,ng, drawing, statue, stat,UlU",·· · for"\+hlcli he desires a copyright, n6rttnless he shall also, not.1ata'than the.dlj.Y of the publicationthereo:flnthis or 'any foreign country, deliver 'at tIle office 9fc the, librarian, , *, *"or deposit In· the mall within the· United States, addressed to the librarian * * * two ,copies of such coPyt-Igbtbook, map, chart, dramatic or musical composition, engraving, chromo, cut. print, or photograph, or in case of a paintlng,'di'awing, statue, statuary, model, or design for a work of the fine arts, a photograph of same: provicied, that in the case of a book, pbotograph,chromoiGl'nithograph, the two copies of the same required to be delivered or deposited as above s,hall be prlnteci trom type set within the limits of the Uhlted States, or !'rom plates mMe there!'rom, or from negatives, or drawings on within the limits of the United States, or from transfers made therefrom:"

FronlthelaI\guage ithese Pn)'visions it seems clear that "book" to include "musical composition". In the section was which einUmerates the things which may be copyrighted, "musical composition" is mentioned as something different from "book", and we find. t4iEl same observed in the preceding part of thesecfioI!which c,ontains the proviso,. It is as reasonable to suppose tbat"book" and "musical composition" were as much in. tended to refer to subJects as "map, chart, engraving," and other enumerated 'articles; If the proviso" had intended to include 3: musical composition aIIlOijg" tl'10se 'things which must be, manufactured in this"6)untrY,itshould.liave incorporated it in the list of things "subject this restriction. The omission in the proviso ot "musical conrp6sition"; as well as of "map, chart, engraving", and other things ib(>foreeritimerated, i'8 very significant, as indicating that congress' never intended to extend this provisi9n to any of these article/;f.· . And so, 'with respect to ''lithograph'', if congress had intendM fo co,,"er by.'thafworda musical composition made by the have expressed its meaning in clear and unarn1;liguous terms; in view of the language used in other portions of the. statute...'. .... . If there is 'any doubt 'as to the meaning of the sU!tute, it is proper to examine the bist()ry of legislation on this subject, in order, if possible, to discover the intent of congress. As the bill passed the house of representatives, this proviso was limited to "book", but when it reached the senate an amendment was offered and passed extending the pro'viso to 'various other subjects of copyright, as "map, dramatic or nlUsical composition, engraving, cut, print," etc. A conference comniittee was appointed, and a compromise was agreed. to enlal'ging the h()use,pro'vision by the addition of "photo: graph, chrQmo,or lith6graph", and the bill was finally passed in this form. In tlle debl,lte in the senate, reference was made to the fact that musical compositions had been eliminated from the proviI¥>. The first and rule in the interpretation of statutes is to carry out the 'intent of the legislature, if it can be ascer· tained, and I a,n examination of. the proceedings in congressshows that it was intended to exclude musical compositions. from theqperatiQnof this proviso. 22 Cong. Bec. pt. 1, p. 32;. pt.. 3, pp. 2378, 2836;,pt. 4, p. 3847. '

LITTLETON t7. OLIVER DITSON CO.

099

''Book'' has been distinguished from "musical composition" in the statutes relating to copyright since 1831. (4 Stat. 436.) The specifio designation of any article in an act or series of acts of congress requires that such article be treated by itself, and excludes it from general terms contained in the same act or in subsequent acts. Potter's Dwarris on Statutes, pp. 198, 272; Homer v. 'rhe Collector, 1 Wall. 486; Arthur v. Lahey,'96 U. S.112; Arthur v. Stephani, Id. 125; Vietor v. Arthur, 104 U. S. 498. If, in a popular sense, and speaking particularly in reference to form, "book" may be said to include a musical composition, the answer to this proposition is that where two words of a statute are coupled together, one of which generically includes the other, the more general term is used in a meaning exclusive of the specific one. Endl. Interp. St. § 396; Reiche v. Smythe, 13 Wall. 162. The reasoning upon which this rule of specific designation is based is that such designation is expressive of the legislative intention to exclude the article specifically named from the general term which might otherwise include it. Smythe v. Fiske, 23 Wall. 374, 380; Reiche v. Smythe, 13 Wall. 162, 164. The English. cases cited by the defendant to the effect that ''book'' includes "musical composition" are not material in the present controversy, because the statute law of the two countries is different. The early English statute of 8 Anne, c. 19, says, in the preamble, "books and other writings", while, in the modern English statute 5 & 6 Vict. c. 45, § 2, "book" is defined to include various specific things, as "map, chart, sheet of music," Nor do the American cases cited, Clayton v. Stone, 2 Paine, 382, Fed. Cas. No. 2,872; Scoville v. Toland, 6 West. Law J. 8'4, Fed. Cas. No. 12,553; Drury v. Ewing, 1 Bond, 540, Fed. Cas. No. 4,095, help the defendant. In none of these cases has the question ever been determined whether a musical composition is a book. It must also be remembered that the question now presented is not strictly whether a musical composition can ever 1;>e regarded as a book, but whether congress meant in the act of March 3, 1891, to include musical composition within the terms of the proviso referred to. Nor do I think the dictionary definitions of "book" render us much assistance, because the word is used in so many different senses. It may refer to the subject· matter, as literary composition; or to form, as a number of leaves of paper bound together; or a written instrument or document; or a particular subdivision of a literary composition; or the words of an opera, etc. Looking at the natural reading of the statute, the intent of congress, and the rules which govern the construction of statute law, I am of opinion that the plaintiffs have complied with the pro· visions of the act of March 3, 1891, respecting the three musical compositions complained of and that the defendant should be enjoined from reprinting, publishing or exposing for sale these compositions, or any essential part of them, as prayed for in the bill. Injunction granted.

I'EDERAL REPORTER,

vol. 62.

BOSTET'.l'ER CO. v. VAN VORST. (Circuit Court, S. D. New York. June 29, 1894.)
TBADE- MARKS-INFRINGEMENT.

Selling an imitation, as such,without any suggestion or arrangement that it be sold again for the genuine article, although with assent to SiUch suggestions from others, does not lntringe the right of the manufacturer of the genuine.

In Equity. This was a suit by the Hostetter Company against John Van Vorst for infringement of a trade-mark. James Watson and Albert H. Clarke, for plaintllf. Patrick H. Loftus, for defendant.

WHEELER, District Judge. This suit is brought for the alleged selling, or procuring to be sold, an imitation, produced by the defendant, as the genuine Hostetter's bitters of the plaintiff. This is denied, and the principal question is whether this allegation is proved. Hostetter v. Fries, 17 Fed. 620, 21 BIatchf. 339; Hostetter Co. v. Brueggeman, etc., Co., 46 Fed. 188. The evidence shows well enough that the defendant sells the imitation as such, and that he would sell it to others, to be by them sold again for the genuine, i,f they would. It does not show any suggestion from him that it could be, nor any arrangement by him that it should be, so sold, but only his assent to suggestions that it might be. The sell· ing of the imitation, as such, does not infringe upon the right of the plaintiff that it should not be sold as the genuine. The defendant owes no duty of preventing such sales; he is only bound not to make, or at most not to encourage, them. The proofs do not show encouragement, even, of them, and so fall short of sustaining this allegation, and of entitling the plaintiff to relief. The conduct of ,the defendant, however, so invited this litigation that he ought not, in equity, to have costs. Bill dismissed, without costs.

BROUX: et aI. v. THE IVY.

(DIstrict Court, D. Delaware. July 26, 189'SEAMEN-COMPENSATION FOB SHOBTAGlll OF PROVISIONS ESTOPPEL. INVALID CONTRACT-

Notwithstanding the adoption by shipping articles of the statutory scale for 'provisions (Rev. St. § 4612), the ma,ster Issued provisions according to a. "method" of his own, Whereby there was a shortage of bread. The seamen protested, and the statutory scale was followed for a few days, but they were dissatisfied with the manner in which the provisions were weighed and served under this scale, and asked the captain to return to his· "method," which he consented to do on condition that they would "agree to be perfectly satisfied In the. future, and make no more complaints," and an agreement to that e1fect was entered on the log. HeM, that the contract was void as being one-sided and without consideration, and dId not estop the seamen from suing for the extra compensation allowed by Rev. St. § 4568, in cases of shortage.