LILLARD V. SUN PRINTIlS'G 41: PUBLISHING ASS'N.

213

bination with the name or "W. P. Baker" or "William P. Baker's" as applied to the cocoa contained therein; and from applying to such powdered cocoa on cans or labels, or in circulars, price lists, advertisements, or in any manner whatsoever, the connected name "Breakfast Cocoa" in connection with the name "Baker," or any name of which the word "Baker" forms a part; and also for an accounting.
LILLARD et a!. v. SUN PRINTING & PUBLISHING ASS'N. (Circuit Court, S. D. New York.
L

May 7, 1898.)

ACTION FOR INFRINGEMENT OF COPYRIGHT-AVERMENT OF PROPRIETORSHIP.

An averment that complainants were, prior to the time of securing copyright, proprietors ot a certain book or periodical, is a sufficient averment of proprietorship ot an article and engraving alleged to have been pirated therefrom. Where complainants' copyrighted book and defendant's article complained of are filed with and referred to in, the bill. they need not be copied therein.

SAME-EXHIBIT WITH BILL-COPYRIGIITED BOOK-ARTICLE PIRATED.

8.

SAME-ENGRAVING Oll' EXTINCT ANIMAL-IMPROBABILITY OF OlUGINAL PUODUCTION.

A bill will not be dismissed on demurrer where the cut or engraving pirated from complainants' copyrighted book is a close reproduction of complainants', even though it appears highly probable that the final proof will show that the engraving was not an original production of complainants.

This is a suit in equity by Benjamin Lillard and another against the Sun Printing & Publishing Association, seeking an injunction and accounting for alleged violation of complainants' cOPJTighted production. It comes up on demurrer to the bill. D. J. M. O'Collaghan. for complainants. Franklin Bartlett, for defendant. LACOMBE, Circuit Judge. It is difficult to see why complain· ants have sought relief in equity for the alleged violation of their copyrighted production. Assuming that the defendant still has in its possession some copies of its issue of Sunday, January 10. 1897, it is highly improbable that it will ever sell them. Still more improbable is it that the woodcut, and the text descriptive thereof, will be reproduced in some future issue of the defendant's paper. Injunction, therefore, should complainants make out a case entitling them to it, would be of no practical benefit. Upon an accounting, assuming that accounting were decreed at the same time as the injunction, it would seem to be impossible for the complainants to show any damages resulting from the defendant's publication. It is inconceivable that the sale of the Sunday Sun, with the illustration and description contained in it, interfered with or prevented the sale of a single copy of complainants' monthly publication. So, too, it is difficult to see how complainants can show upon the accounting that any profit inured to the defendant by reason of the publication in question. Reference was made upon the argument to the case of Callaghan v. Myers, 128 U. S.

214

REPORTER.

617, 9 Sup, Ct;· 177, but the facts in that case. were .very different from those in the one at bar... The defendant had printed a series of lawreports,-:-the opinions of the court therein contained being, of free to the world,-and had pirated the syllabi from the reports of the complainant. Of course, the parts which were copied could not be separated from those not protected by the copyright without destroying the use and value of the whole; and therefore defendant, who had blended the lawful with the unlawful, was helQ to respond for all the profits received. The case here is very different. The illustration and the entire description which it is claimed that defendant has pirated might be eliminated from the paper without ataH affecting what was left, and it will prob· ably appear in the end that not a single additional copy of the paper was sold by reason of its containing the article and illustration complained of. Nevertheless, the snit is here, and must be disposed Of· under the recognized principles of equity jurisprudence and practice. The first. ground of .demurrer is that the bill contains no averment that complainants are the authors, inventors, designers, or proprietors of the engraving, cut, or print, and of the article in reference to the same. It is, however, averred that they were, prior to the of securing copyright, the proprietors of the book or periodica} entitled "Popular Science, January, 1'897." If they were proprietors of the whole book, they were, of course, proprietors of every part of it, including the engraving and the article in ref· erence theret9 contained in such book. Averment of proprietorship is sufficient, under the authorities. When the proofs are taken, complainants will no doubt have to show who was the author or designer of the article and of the illustration, and how such article and illustration came into their possession as proprietors, but it is not necessary in the bill to set forth the chain of title. Inasmuch as the complainants' copyrighted book and the defendant's article complained of have beeIl, filed· with the bill, and are referred to in. it, there was no necessity of rehearsing both ipsissimis verbis in the bill. The article, while. containing much which appears in complainants' article, is nevertheless within what is recognized as a fair use of the copyrighted description, especially in view of the fact that such description was presumably not original with the complainants, or with the from whom they obtained it. It is the descriptiOn of. an extinct animal, the ''brontosaurl1s,''-an animal whiclino human being ever saw, and the details of whose anatomy have presumably been worked out. by .different geologists, and are now contained in many different publications, both here and abroad, of which it will probably appear that complainants' article is a mere compilation. The cut or engraving, however, is a close reproduction of complainants', and will hardly fall within the classification of a "filiI' use." The bill, therefore, should not be dismissed, .to the .cut or engraving, upon demurrer, although it is hig)}ly probable that. when the proofs are taken it :will appear that the the. brontosaurus was not an original production.

WHIPPANY MFG. CO. V'. UNITED INDURATED FIBRE CO.

215

either of complainants, or of anyone employed by them. The demurrer is sustained as to the article, and overruled· as to the cut or engraving.
WHIPPANY MFG. CO. et a1. v. UNITED INDURATED FIBRE CO. OF NEW JERSEY et a!.

(Circuit Court ot Appeals, Third Circuit. No. 11.
1.

March 28, 1898.)

PATENTS-PRELIMTNARY INJUNCTIONS-PRIOR DECISION.

A prior adjudication sustaining a patent is good ground tor IssuIng a preliminary Injunction only when the proof of infringement is clear and convincing; and the injunction should be denied when it does not appear that the construction then given to the patent was the same as that claimed In the case at bar, or broad enough to cover the respondent's process. An order granting a preliminary Injunction against the Infringement of reissue No. 10,282 (original No. 267,492), for a process for rendering paper or pulp articles hard, tough, and Impervious, and the Keyes patent, No. 342,609, for a pail or other similar article made of wood pulp or similar fibrous material, reversed on appeal because the proof of Infringement was not sufficiently clear. 83 Fed. 485, reversed.

2. SAME.

Appeal from the Oircuit Oourt of the United States for the District of New Jersey. This was a suit in equity by the United Indurated Fibre Oompany of New Jersey and others against the Whippany Manufacturing Oompany and others for alleged infringement of letters patent No. 267,492 (reissue No. 10,282) for a process of rendering paper or paper pulp articles hard, tough, and impervious; and also letters patent No. 342,609, to Martin L. Keyes, for a pail or other similar article formed of wood pulp or other similar fibrous material. The circuit court made an or· del' granting a preliminary injunction (83 Fed. 485), and the defendants have appealed. M. H. Phelps and M. B. Philipn. for appellants. Oharles Neave and Fl"ederick P. Fish, for appellees. Before AOHEHON, Circuit Judge, and BUTLER and BRADFORD, District Judges. ' BUTLER, District Judge. This is an appeal from a decree for preliminary injunction. 1.'he facts are well stated in the opinion filed below, and need not be repeated here. The learned judge discussed the exhibits and affidavits intelligently and carefully, apparently as if the case was up for final hearing. Were we required to determine the rights of the parties finally, on this evidence we might possibly adopt his conclusions. ·We are not however. That determination must await a future hearing, when the exhibits may be considered in the light of what witnesses sayan examination and cross-examination in presence of the parties. The only question now presented is whether the complainants' rights as claimed, are so entirely clear as to justify the preliminary writ awarded. The rule governing such cases