Page:Copyright, Its History And Its Law (1912).djvu/224

 like name, especially in the case of one of long run and wide popularity, may mislead the public and involve unfair competition. This protection was upheld as a matter of common law in Aronson v. Fleckenstein in 1886, by Judge Blodgett in the U.S. Circuit Court in Illinois, when the use of the title "Erminie" was held to be unlawful, though the operetta originally designated by the title had not been copyrighted. But in Glaser v. St. Elmo Co. in 1909, the U. S. Circuit Court denied relief where the tide of Miss Evans's novel, then out of copyright, was used for a second and unauthorized dramatization. There may be danger to copyright or playright when a work is published or performed under a title differing from that under which it is copyrighted; but the change of a descriptive sub-title has been held to be immaterial. In the case of Daly's play "Under the gaslight," which in the copyright entry bore the subtitle "A romantic panorama of the streets and homes of New York," but in printed form the changed subtitle "A totally original picturesque drama of life and love in these times," the defendants in Daly v. Webster alleged that this change made the copyright invalid, which contention was negatived by the U. S. Circuit Court of Appeals, which held in 1892 that the subtitle was merely descriptive and not an essential part of the title—a principle later applied by Judge Lacombe in Patterson v. Ogilvie, in 1902.

In the case of Frohman v. Weber in 1 903, in the N.Y. Supreme Court, where the proprietor of the play entitled "Sherlock Holmes" sought to enjoin another play "The sign of the four," in which the name Sherlock Holmes designated the leading character, Judge Clarke held that this did not constitute unfair competition and denied a preliminary injunction.

The question of the person liable for the