Page:Gerlach-Barklow v. Morris & Bendien.pdf/1



Where pictures appeared from inspection to be similar in subject, coloring, and general effect, finding of infringement, for which preliminary injunction was granted, was proper.

In suit to restrain infringement of copyrighted picture, where two pictures appear to be similar from inspection, it is no defense that close scrutiny may reveal slight differences.

Bill for preliminary injunction is one for special relief pending the suit, within the meaning of equity rule No. 25, which requires such bill to be verified.

Verification of bill on information and belief is sufficient compliance with equity rule No. 25 as to such matters as are not within plaintiff’s knowledge.

Allegation on information and belief that plaintiff’s painting was a new and original work of art, and as such copyrightable, held sufficient compliance with equity rule No. 25 in infringement suit, since allegation involved matter of opinion.

To determine whether plaintiff proved prima facie case for preliminary injunction for copyright infringement, affidavits and exhibits, as well as bill, must be examined, under Copyright Act, § 55, as amended by Act March 2, 1913 (17 USCA § 55), making certificate of registration prima facie evidence of facts stated therein.

Works of art, to be copyrightable, do not, like patents, need to disclose originality of invention, but may present old theme, if there is distinguishable variation.

That theme of plaintiff’s picture was taken from another picture did not prevent granting of preliminary injunction against infringement of copyright, where picture was not mere copy, but distinguishable variation appeared.

To obtain preliminary injunction against infringement of copyright of painting, under Copyright Act (17 USCA § 1 et seq.), plaintiff must prove that he is the proprietor of the painting.

Bill alleging that plaintiff, “after receiving the aforesaid picture,” copied and published the same and gave notice of copyright, held equivalent to direct averment that plaintiff obtained possession by sale and assignment, constituting prima facie evidence of title, in suit to restrain infringement of copyright, under Copyright Act (17 USCA § 1 et seq.).

Prima facie evidence of title is shown by proof of possession of chattel.

Ownership of unpublished composition presumptively includes all rights therein recognized by common law, including privilege of publication and securing of statutory copyright.

Where plaintiff in suit to restrain infringement of copyright makes prima facie case of title, burden of going forward with evidence to show plaintiff’s title defective shifts to defendant.

Defendant’s denial on information and belief cannot be regarded as evidence overcoming plaintiff’s prima facie case of title on bill for preliminary injunction to restrain infringement of copyright.

Allegation, in bill for preliminary injunction to restrain infringement of copyrighted picture, that “two copies of the best edition of said picture” were deposited, held to allege sufficient