220 F. 837 | 5th Cir. | 1915
(after stating the facts as above). 1. It may be conceded that the “Manual of Instruction” is a book within the meaning of the law of copyright.
2. Since the motion to dismiss the bill, interposed under the new .equity rules, admits, as did demurrers under the former system, the
allegations of fact well pleaded, it may be further conceded, in view of the positive allegations of the bill, that the appellees have infringed the copyright of the appellant.
3. But the further question remains: Is the manual of instruction a proper subject of copyright? In other words, is it copyrightable under the law and entitled to the protection of a court of equity? In this connection, it may be admitted ex gratia argumenti, without being decided, that some form of advertisements, such as characteristic advertisements, come within the protection of the law. But said Judge Jenkins, speaking for the Circuit Court of Appeals in Mott Iron Works v. Clow, 82 Fed. at page 321, 27 C. C. A. at page 255:
“So far as the decisions of the Supreme Court have gone, we think they hold to the proposition that mere advertisements, whether by letterpress or by pictures, are not within the protection of the copyright laws.”
The question recurs: Is the manual of instruction, the particular book, or collection of advertisements — and it can be nothing else- — • of which the appellant is the author, subject to copyright? If in any case mere advertisements are copyrightable, the law should extend its protection to those only that speak the truth, and certainly not to that class of advertising matter the effect of which is to mislead and deceive the public. “The deceit of the public,” said Judge Ship-man in Celluloid Manufacturing Company v. Read, 47 F.ed. at page 715, “and the consequent injury to it, are as much to be regarded by a court of equity as an injury to a plaintiff’s business.” See Wright v. Tallis, 50 Eng. Com. Law, 893-906; Hop. Trade-Marks, p. 370. It is a familiar maxim of equity that one who applies to a court of equity for relief should come in with clean hands, and, it may be added, he should show a clean bill of health to entitle him to its protection. The principle is clearly stated by Mr. Justice E'ield, as the organ of the court, in Manhattan Medicine Co. v. Wood, 108 U. S. at pages 224, 225, 2 Sup. Ct. at pages 440, 441, 27 L. Ed. 706, in a trade-mark case, and no reason is perceived why it is not equally applicable to copyright. The justice first quoted from an opinion of the Lord Chancellor of England, as follows:
“When the owner of the trade-mark applies for an injunction to restrain the defendant from injuring his property by making false representations to the*842 public, it is essential that the plaintiff should not in his trade-mark, or in the business connected with it, be himself guilty of any false or misleading representations ; for, if the plaintiff makes any material false statement in connection with the property he seeks to protect, he loses, and very justly, his right to claim the assistance of a court of equity.”
And again:
“Where a symbol or label, claimed as a trade-mark, is so constructed or worded as to make or contain a distinct assertion which is false, I think no property can be claimed in it, or, in other words, the right to the exclusive use of it cannot be maintained.”
Proceeding, he' employed the following language:
“When the case reached the House of Lords, the correctness of this doctrine was recognized by Lord CranWorth, who said that of the justice of the principle no one could doubt; that it is founded in honesty and good sense, and rests on authority as well as on principle, although the decision of the House was placed on another ground. The soundness of the doctrine declared by the Lord Chancellor has been recognized in numerous eases. Indeed, it is but an application of the common maxim that he who seeks equity must present himself in court with clean hands. If his case discloses fraud or deception or misrepresentation on his part, relief there will be denied.”
See, also, Krauss v. Peebles’ Sons Co. (C. C.) 58 Fed. at pages 594, 595.
_ _ And it may. be added that, in the public interest, state punitive legislation has been deemed necessary to prohibit the publication of advertisements which “contain any assertion, representation or statement óf fact which is untrue, deceptive or misleading.” See Acts of La. 1914, pp. 279, 280.
The bill of the appellant alleges that the book “was printed in such form as to be specially adapted for use as “copy” for advertisements in newspapers, magazines, periodicals, and other literature.” And counsel for the appellant, in their brief, insist that:
“The book does not teach piano dealers how to advertise their wares, but prepares the advertisements for the dealers, relieving them of the time, trouble, expense,” etc.
It thus appears obvious that the advertisements are made to order, and nothing remains to be done'by the dealer but to publish them in a newspaper or periodical according to the directions contained in the lower left-hand corner of each advertising sheet. These advertisements are to be used by all licensees, or dealers in pianos and player-pianos who may have acquired the right from appellant to use them, and it is apparent that the representations of fact embodied in the letterpress, excerpts from which are set out in the statement of the case, cannot be true as to all dealers. One dealer may sell 50 instruments and another 250 in a given time, yet in the advertising sheets of the appellant all are made to sell the same number of instruments within the same period of time. It is only necessary to glance at the matter of the advertisements, in that and in other respects, to satisfy the mind that their tendency, by the extravagant puffing of the wares of the dealer and misrepresentation of sales, is to mislead and deceive the public. However honest the intention of the author may have been in the preparation of its manual, it nevertheless remains true that the effect of its work is such as we have stated. Ex
After a painstaking investigation of the present case, we have reached the conclusion that the particular advertising forms of the appellant, although covered by the copyright of the manual of instruction, are (1) not copyrightable, and (2) they are not entitled to the protection of a court of equity.
The decree of the District Court is therefore .affirmed.