294 F. 845 | 2d Cir. | 1923
This is an appeal from an order enjoining the defendant pendente lite from disposing of his newspaper writings to any one except the complainant herein. The order was signed on July 30, 1923. It restrains the defendant from—
“publishing, selling, offering for sale, disposing of, or permitting the publication, either in the city of New York and vicinity, or elsewhere in the .United States or Canada, of humorous articles or ‘columns’ of other literary matter to he used in newspapers or other periodicals, or by newspaper or other syndicates, other1 than the complainant herein and/or those newspapers receiving the newspaper syndicate service of the complainant, or from accepting any employment whatsoever, other than from the complainant herein, by which ho shall supply or agree to supply such articles, and that the defendant bo and he hereby is enjoined and restrained, pending the determination of the issues herein, from doing or permitting anything to be done directly or indirectly to the prejudice of the exclusive rights which the complainant is entitled to enjoy under its aforesaid contract with the defendant, described in the bill of complaint herein. * * * ”
The complainant bases its claim to equitable relief upon an agree-_ ment which it had with the defendant for his exclusive services, and upon its further claim that the services so contracted for are of such a unique and distinctive character that they cannot be duplicated or replaced by the work of any other writer.
The complainant is a New Jersey corporation, which was incorporated in 1911. It was incorporated by the publishers of the Chicago Daily News, the Boston Globe, the Philadelphia Bulletin, and the New York Globe. It secures by contract the exclusive services of special writers, cartoonists, and other contributors of what are known as newspaper “features,” and sells the use of such “features” to newspapers throughout the country. It would be quite beyond the means of most of the newspapers to purchase the output of these popular writers for exclusive use in one newspaper, whereas the syndicate makes it possible for smaller papers to avail themselves of these features at moderate cost through the syndicate. The complainant supplies, its service to more than 40 newspapers throughout the United States and Canada.
The defendant resides within the Eastern district of New York, and was employed in 1918 by the New York Globe and Commercial Advertiser to edit copy. In 1920, or thereabouts, he commenced to contribute humorous paragraphs to the paper in addition to his work of editing copy. After a time he was directed to devote himself exclusively to these humorous productions, and they appeared daily in that -newspaper. Eor more than a year immediately preceding January 9, 1922, lie sold the use of these articles so appearing in the Globe to certain papers published outside of New York City, not members of the complainant association; and in the fall of 1920 the complainant obtained from the publishers of the Globe permission to syndicate his articles, but the complainant did no‘t pay him for these articles prior to 1921, when it commenced paying him for their use by its members outside of New York City. But on January 9, 1922, the complainant and defendant signed tlje following paper:
*848 “The Associated Newspapers, 114 Riberty St., New York.
“Jan 9 1922.
“Mr. H. I. Phillips, The Globe, New York City — Dear Mr. Phillips: In view of the fact that you. are a regular daily contributor to the New York Globe, one of the directing members of the Associated Newspapers, and that you wish to place your articles in open territory outside, it is understood and agreed that the Associated Newspapers is to have the right to include your daily feature in its general service, and that the Associated Newspapers is to pay you at the rate of $75 a week during the year 1922 for the exclusive rights to your newspaper work outside of New York City. It is understood that you will supply us with six articles per week.
“In the event that the New .York Globe ceases to pay you less than $150 a week in its account at any time during the year 1922, the Associated Newspapers is to have the option on your exclusive newspaper work, at the rate of $225 per week.
“It is understood and agreed that you grant to the Associated Newspapers a similar option for the years 1923 and 1924.
“Your acceptance of this letter will, we take it, constitute a proper agreement between us.
“Very sincerely yours, [Signed] H. H. McClure, Gen’l Mgr.
“Accepted: H. I. Phillips.”
The sale of the Globe was announced in May, 1923, and the defendant began to look for another situation, which he obtained on the staff of the New York Evening World — his employment to commence on June 4, 1923, which was two days after the Globe ceased publication. On June 1, 1923, the general manager of the complainant wrote to the defendant in part as follows:
“I do not understand that the Globe has declined to continue its present arrangement with you. My information is that you have seen fit to contract with the New York World without the consent of the Globe and in disregard of your contract relations with them.
“The Associated Newspapers, therefore, claims, and it hereby exercises, the option of your exclusive newspaper work, inside as well as outside the city of New York, at the rate of $225 per week for the balance of 1923 and 1924.”
The defendant, however, entered upon his employment with the Evening World, furnishing it six articles a week, and the complainant brought this suit and moved for an injunction pendente lite. It is from the order granting that injunction that this appeal is taken.
“The only period during which the complainant association had any contract with me other than on a week to week basis was confined to the period from January 9, 1922, to the end of that year.” *
As the contract for 1922 was a contract for a year, and at the end • of the year the parties continued under it, as before, the contract for 1923 was also a contract for a year.
“is distinctive and unique, and was known to be such among newspaper people and among the reading public, prior to January 1, 1922, and had a distinctive following prior to that date. I know of no newspaper writer whose work resembles his, nor do I know of any such who could duplicate his work-, or provide a substitute for it.”
Mr. H. H. McClure, the general manager of the Associated Newspapers, the complainant, an experienced newspaper syndicate man, in his affidavit says:
*851 “I give it as my best expert judgment that Phillips is exceptional, and that his articles are unusual and extraordinary. Moreover, I consider his work as better adapted to being syndicated than that of any other columnist now writing in the American press, for the reason that he has a general human interest appeal, which is so necessary where syndicated matter is to be published in all sorts of papers, and go to readers of all kinds and sorts. Furthermore, almost every other columnist relies to a considerable extent on local allusions, whereas the work of Phillips is of general interest.”
There are other affidavits of like import in' the record.
The defendant sought to weaken the complainant’s case by introducing affidavits to show that some of those who expressed the opinion of the unique character of the defendant’s articles made a somewhat limited use of them in their respective papers. This was met in some cases by surrebuttal affidavits, explaining the reasons why this was done. Without reviewing these in detail, it must suffice to say that we have examined with care the affidavits submitted by the defendant, and in our opinion they do not satisfy us that the assertions made in the affidavits submitted on the complainant’s behalf are untruthful and unworthy of credence.
The defendant had continued to furnish his articles to the Globe for its use in New York City in accordance with his contract Up to June 2, 1923, and his articles were furnished to complainant for its syndicate service outside of New York up to that time, and he was paid by complainant up to that day. And on June 1, 1923, the complainant sent a letter to the defendant, in which, among other things, it said:
“ * * * When you made yonr arrangements late last year with the Globe relative to 1923, it was clearly understood that the exclusive rights to your newspaper work outside of New York City on the part of the Associated Newspapers were to continue. * * * The best evidence that there was a complete mutual understanding between yourself and the Associated Newspapers on this point is the fact that you have supplied to us the six articles per week called for by our contract, and that to your knowledge they have formed a part of our service outside the city o£ New York, and that we have paid and you have received the stipulated sum of §75 a week. We must therefore in our own protection, deny your right to dispose of your articles for use outside of New York Oity, and wo hereby demand that you refrain from providing articles for such use, or permitting the articles that you write to be so used.
“2. By tbe contract of January 9, 1922, above referred to, tbe Associated Newspapers was also given the option on your exclusive newspaper work at the rate of $225 per week at any time that you were no longer receiving $250 a*852 week from the Globe. I do not understand that the Globe has declined to ■continue its present arrangement with you. My information is that you have seen fit to contract with the New York World, without the consent of the Globe and in disregard of your contract relations with them. The Associated Newspapers therefore claims, and it hereby exercises the option on, your •exclusive newspaper work, inside as well as outside the city of New York, at the rate of $225 per week for the balance of 1923 and 1924.”
It also appears that the Globe ceased to pay the defendant anything after June 2, 1923, and that complainant promptly notified the defendant that it exercised its optional right to its exclusive use of his newspaper work both inside and outside of New York City. It appears, from what has been said, that the complainant had a contract with the defendant which entitled it to his exclusive newspaper work inside ■as well as outside of the city of New York on and after the exercise of complainant’s option from June 2, 1923, through the year 1924. Notwithstanding the existence of this contract the defendant saw fit to enter into a contract with one of the newspapers of the city of New York to render services to it which are in disregard of his contract relations with the complainant. It can make no difference that he did this, believing in good faith that he was not violating his legal obligations. And as we think his services as a writer of humorous newspaper articles are shown by the evidence to be unique and unusual, and that ■an action at law to recover damages for the breach of his contract would afford an inadequate remedy, the case is one in which the remedy by injunction is proper and alone adequate, and it was not error to restrain the defendant from doing what he had engaged not to do.
Judge HOUGH heard the argument, and at its close concurred with us in the conclusion for affirmance, but because of necessary absence has not seen the opinion as prepared.,
Order affirmed.
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