42 F. 266 | U.S. Circuit Court for the District of Southern New York | 1890
This is a bill in equity which is founded upon the alleged infringement of a copyright. The complainant is the publisher of a series of stories called the “Old Sleuth Library,” and purporting to be written by “Old Sleuth.” Each story is published separately in pamphlet form, and upon the cover is a picture of “Old Sleuth,” a detective, in large, old-fashioned clothes, with full, bushy beard, spectacles, fob chain, and baggy umbrella. Each number of the series is copyrighted. The complainant has also published a magazine called “The Fireside Companion,” each number of which is.copyrighted. In the number issued January 7, 1884, he commenced the publication of a story called “Old Sleuth in Philadeljfffia,” the first page of which contained a similar picture of the detective. Since the date of the plaintiff’s copyright, the defendants have been the publishers of a series of stories called, upon the cover of each volume, “The Secret-Service Stories of Old Sleuth and Others,” and two or more of them are also represented upon the cover to be written by “Old Sleuth.” There is also a picture of “Old Sleuth, the Detective,” upon the cover. All these stories, both of the plaintiff and defendants, are written by the same person, one of whose assumed names is “Old Sleuth.” The complainant’s bill is so drawn as to allege that he had a copyright in the pamphlet or magazine, and also in the print. It is manifest from the certificates of the librarian of congress that the several pamphlets and magazines containing the picture-were copyrighted, but that there was no separate copyright in the engraving or print or cut. The picture was a part of the book, and the theory of the complainant is that this copyright was infringed by copying, publishing, and selling copies of this part of his book. I shall assume that this theory is correct, and that, when a defendant republishes an original picture or illustration owned by the complainant, and contained in a book or magazine upon which he has a valid copyright, such right is infringed. The only question in this case is in regard to infringement. The complainant brought a bill in equity against the defendants, before the supreme court for the state of New York, for an injunction against the use of the picture or the phrase “Old Sleuth, the Detective,” or the word “Sleuth,” upon the ground