Page:Federal Cases, Volume 15.djvu/33

 [15 Fed. Cas. page 29] (Case No. 8,136) LAWRENCE if there is no proof of bad motive, or where there is a well-founded doubt, as to the legal title, or where there has been long acquiescence in the infringement, or culpable negligence in seeking re- dress, especially if the delay has misled the re- spondent. . New materials are the subjects of copy- right; so also are old materials arranged according to a new plan. Damages are recovered in the one case for the usp of the new materials, in the other for the use of the old materials, according to the new arrangement, combination, or plan. . Where the two works are complex, as in this case, the case is referred to a master to state the facts, and his opinion as to the similarity of the same, for the consideration of the court. Cases may arise where the court would not order the reference, . A book may in one part infringe the copy- right of another, and in other parts be original. In such ease the remedy is not to be extended beyond the injury. [Cited in West Pub. Co. v. Lawyer's Co-oper- ative Pub. Co., 64 Fed. 364.] . If the borrowed matter is so involved with that which is original, in a subsequent book, then he who made the improper use of borrowed mate- rials must suffer the consequences of so doing. . In such case, if the injunction prevents the use, on the part of the copyist of his original materials in any particular book, he only is to blame for sudi commingling of the materials. . No man is entitled to avail himself of the previous literary labors of another, which have been copyrighted, for the purpose of conveying to the public the same information, even though he may append additional information to that al- ready published. . Equity suits for infringement of copyright are usually referred to a master, before final hear- ing, to ascertain whether the charge is proved; and if so, for a report as to the nature and extent of the infringement. . In such cases the rule is, that the complain- ant 1$ entitied to an injunction, if at all, at the time the decretal order is entered, to restrain the defendant from any further violation of his rights, as tie whole case is then before the court. . Even when the case is heard before any sudi reference and report, if the charges of in- fringement are few and of a character easily de- termined, without reference to a master, and if the case is one where injunction is the proper remedy, the court will order it at the time tiie de- cision on the merits is announced. . When the case comes to a final hearing, without any report, if the charges of infringement are numerous, and such as require extended ex- amination, the court will ordinarily send the case to a master for report on tiie matters not previously settled by it. . In such cases the general rule is, that the injunction will not be granted until the nature and extent of the infringement are fully ascer- tained, because its operation might work great injustice. Such a course was pursued in this case. . Where the arguments in a case in equity have been finally closed, there can be no further argument unless the court should reach some point where they desire reargument, and request the same of the counsel. Bill in equity [by William B. Lawrence against Richard H. Dana, Jr., Charles C. Little, Augustus Flagg, John Bartlett, Henry J. Miles, and Martha B. Wheaton], praying for an account, and for an injunction for the Tiolation of an alleged copyright to a certain edition, with notes, of Wheaton's Elements of International Law. The complainant al- leged in substance and effect that Catharine Wheaton, deceased, widow of the late Hem-y Wheaton, in the year 1853, then in full life, requested him to prepare a new edition of Wheaton's Elements of"lnternational Law, and that he, in pursuance of that request, prepared such notes for that purpose aa seemed to him fit, and also an appendix and introductoiy remarks, with a full and careful memoir of the life of the deceased author, that, so far as the edition contained matters not previously published in this country, it was duly copyrighted by the said Catharine as proprietor thereof; that the same was subsequently published by the fix-m of Little, Brown, & Company, and that all the profits arising out of the contract with the publish- ers were enjoyed by the said Catharine as the complainant intended they should be When he undertook to prepare the edition; that he afterwards, in pursuance of a similar re- quest from the same source, prepared other annotations of the same work, which were also copyrighted by the same person, and that they were published in 1863 by the same publishers; that he was advised and believed that the transactions as recited, in respect to those two editions, operated to convey to the saiu Catharine no other beneficial inter- est in the said annotations and additions to the work, than the right to use the same in those editions; that in fact it was always understood and agreed by and between them that the beneficial interest in the same, except as aforesaid, belonged to the complainant, and that the copyrights were taken out and Jjeld in trust by the said Catharine in ac- cordance with that understanding and agree- ment. Prior to that period, the author, as the complainant alleged, had caused four several editions of the work to be published, two at Philadelphia, one at London, and one in 1848 at Leipzig, in two volumes, by P. A. Brockhaus, in the French language; that in the edition of 1848 the author inserted and published, both in the text and notes, many new matters never before published by him in the English language; that the author died in 1848; that the French edition was reprinted by the said Broekhaiis in 1853, and that the complainant, in 1860, ascertained that the said Broekhaiis had published an- other edition of the work in French, without the knowledge or consent of the representa- tives of the author, and that he contemplated publishing further editions of the same with- out paying any thing to those representa- tives for copyright; that in view of these circmnstanees, and at the request of the said Catharine, he commenced negotiations with the said Broekhaiis npon the subject, the result of which was, that the parties came to an agreement that the complainant should revise and translate his annotations, and adapt the same for a work to be sold in Europe, making such additions thereto as should render the work as complete as pos-