Page:Federal Reporter, 1st Series, Volume 2.djvu/231

 22e FEDERAL REPORTER �It would be such a strange departure f rom this settled policy of these laws that one particular class of copyrighted articles, namely, this class of "prints and labels," if they are copyright- able, should be expressly excluded, without any apparent rea- son, as they are by the third section of the act from being marked as copyrighted; that, whatever may have been the construction of the former laws, this exclusion must be taken to show the intention of congress that thereafter these articles should be excluded from the category of copyrighted articles. �I think, therefore, that it does appear on the face of the complaints that the articles described are not subject to copy- right. Even if the language used is not plain enough fairly to import that, it certainly does not appear on the complaint that they are articles subject to copyright. "Prints" may or may not be the subject of copyright. And the rules of plead- ing require that, if the article mentioned in the complaint may or may not be within the statute, it should be averred to be within it. Such averment is necessary, unless the terms used in describing the thing necessarily bring it within the statute. �In U. S. V. Morris, et supra, it was held that it was neces- sary to aver as well as to prove that the article was patentable. See, also, Wilson v. Manfg. Co. 9 N. Y. Weekly Digest, 340. This is in accordance with the general rule of pleading that the plaintiff must state a case for recovery with reasonable cer- tainty, and in case of doubt a pleading must be taken most etrongly against the pleader. �It is not enough that the defendant may be liable if the facts stated in the complaint be true. It must appear that ha is liable if the complaint is true. �These complaints, therefore, do not state facts BufBcient to constitute a cause of action, beoause it does not appear by them that the articles described tlierein were copyrightable, or articles for which a copyright could be granted under the laws of the United States. �Demurrers sustaîned. Judgment on the demurrers for the ����