55 How. Pr. 471 | N.Y. Sup. Ct. | 1878
The plaintiffs reside in the city of Yew York, and the defendant is a resident of the city of San
The Constitution of this state has given this court general jurisdiction in law and equity (Const, art. 6, sec. 3). And under so broad a grant of authority, where it regularly acquires, by the service of its process, control over the parties, it must have authority to adjudicate upon their rights in actions of this description. All that is required for that purpose is to affect and restrain their action, and that may properly be done wherever the party to be affected may be found and served with process. It is not an exercise of mere local, but an element of general, jurisdiction.
The authority of courts of equity over controversies arising beyond the limits of their local jurisdiction received an early examination in the case of Massie agt. Watts (6 Cranch, 148), and it was there held, as the result of the authorities, that in cases “ of fraud, of trust, or of contract, the jurisdiction of a court of chancery is sustainable wherever the person be found, although lands not within the jurisdiction of that court may
In support of the action it has been alleged that the plaintiffs have acquired title to the unpublished drama known as “ Diplomacy,” for the purpose of producing and exhibiting it within the United States, and that, in violation of their rights, the defendant is about producing it in a theater controlled by him in the city of San Francisco. Other allegations are contained in the complaint for the purpose of supporting these claims, but they finally result in the affirmation of these facts. It has been objected, on the part of the defendant, that the allegations made have not been based upon sufficient knowledge to justify the assumption of their truth, and for that reason no case has been made for an injunction. This objection must be chiefly considered as affecting the proof of the plaintiffs’ title, for the defendant has in no way denied the charge that he has announced his design and intends to produce and exhibit the drama in his theater in San Francisco ; and the omission to deny facts so entirely and peculiarly within his knowledge must be regarded as sufficiently confirming them to justify the court in acting upon the hypothesis of their truth: This is a well established rule in the law of evidence. It is founded on sound reason and justified by human experience (People agt. Doyle, 26 N. Y, 578; Gordon agt. People, 33 id., 501, 508, 509). The point simply
As a general proposition it is legally true that mere information as to the existence of the rights relied upon will not justify the issuing of an injunction (Hecker agt. Mayor, &c., 28 How., 211; Hall agt. Bond, 22 id., 272). But this, like
But even if that could not be done, the plaintiffs’ application should not, on that account, be allowed to fail. For
The contract made with the plaintiffs and the allegation of the fact in their complaint, also shows that the original manuscript of the play of “Diplomacy” was delivered with the agreement to them. And that very decidedly confirms the fact of their possession. Then it appears that the defendant negotiated with, and endeavored to purchase the play from, them and offered them the sum of $700 for the right to produce it at Ms theater in San Francisco. TMs was not an offer to settle any existing dispute, but to purchase from them what the offer necessarily conceded they had the power and right to sell.
The case has been reasonably well made out; as completely so as it probably could be, when it is remembered that the evidences of the original title can only be fully supplied by taking the depositions of witnesses in foreign countries, which
It has, however, been further objected that even if the facts set forth should be found to be sufficiently established, that the injunction would still be incapable of being sustained, because the title to such relief would not even then be properly made out. But the facts that Sardou appears to have claimed the play of “ Dora,” and that his claim was not disputed while it was performed in Paris; that Bancroft claimed to have acquired it from him, and after procuring it to be adapted to the English stage, had it performed in London, and then, as the contract states and the complaint discloses, sold and delivered it with the original manuscript to the plaintiffs, under whose authority it was for a long time performed in Hew York, together with the defendant’s endeavor to purchase it from them, are sufficient, prima facie, to establish the origin and title as they have been alleged. Sardou appears to have been the original author and composer of “Dora,” and with his authority Bancroft procured it to be so far changed as to become the English drama “Diplomacy.” That was “ Dora ” adapted to the English and American stage. And in the adaptations made the same originality appears to have entered as in the composition of the original play. So far as the play of “Dora” was retained, the ideas and their mode of expression were those of Sardou translated into English. When that play was changed it was done so by the labor and originality of the Messrs. ¡Rowe, who transferred them work to Bancroft, under whose employment it had been performed. And by these two processes the play of “Diplomacy” was originated, and as so originated it became the property of Bancroft, who transferred it to the plaintiffs. „
To protect a person in the possession of an unpublished
It was very early the policy of the common law to protect authors in the enjoyment of the pecuniary benefits of their literary productions. And these probably extended so far as to include the unlimited right of publication and sale. But this was afterwards so far changed, on account of the statute of Anne, by the decision made in the house of lords in the case of Becket and Donaldson, as to exclude the author’s right, after publication. That was considered an abandonment of the author’s exclusive right; and since then it has been protected after publication only under the laws providing an exclusive copyright. An instructive history of the contest attended with this result will be found in Curtis on Copyright, (49-68). But it only deprived the author of his exclusive ' right after publication. Before publication it has continued to be maintained the same as it was first assured. And the law still continues to maintain and protect the right of the author to his unpublished manuscript or composition the same as it formerly did, independently of the statutes concerning copyrights. And exhibiting the manuscript or composition to others, or, where it may be adapted to that end, performing it by theatrical representations, have not been deemed sufficient to constitute the publication which will deprive the author of his exclusive right. Beading, exhibiting or performing will permit the observer or hearer to appropriate for himself so much as his memory may be capable of retaining. But it will not allow the hearer and observer to appropriate and use the entire composition, with its incidental stage accompaniments. • That right still remains in the author and