23 F.(2d) 159
GERLACH-BARKLOW CO. v. MORRIS & BENDIEN, Inc.
Circuit Court of Appeals, Second Circuit.
December 19, 1927.
No. 182.
85—Finding of infringement of copyright, warranting preliminary injunction, held proper, where pictures Involved appeared similar in subject, coloring, and general effect.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.
67—It is no defense to suit for infringement of copyrighted picture that close scrutiny reveals slight differences.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.
347(2)—Bill for preliminary injunction is bill for special relief pending suit, which must be verified (equity rule No. 25).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.
347(2)—Verification on information and belief as to matters in bill not within plaintiff’s knowledge is sufficient (equity rule Ne. 25).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.
82—Averment on information a and belief that painting was original work of art held sufficient, in suit for infringement of copyright (equity rule No. 25).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.
85—Bill, affidavits, and exhibits must be examined in determining whether plaintiff proved prima facie case for preliminary injunction for copyright infringement (Copyright Act, § 55, as amended by Act March 2, 1913 [17 USCA § 55]).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.
12—Works of art need not disclose originality of Invention, to be copyrightable, provided distinguishable variation appears.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.
12—That theme of plaintiff’s picture was not original did not prevent preliminary injunction to restrain infringement of copyright, where picture was not mere copy.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.
85—Plaintiff, seeking preliminary injunction for infringement of copyright of painting, must prove proprietorship.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.
82—Allegation in bill to restrain infringement of copyrighted picture that plaintiff, after receiving picture, copied and published it, held sufficient allegation of proprietorship.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.).
9—Possession of chattel is prima facie evidence of title.Prima facie evidence of title is shown by proof of possession of chattel.
24—Ownership of unpublished composition presumptively includes privilege of publication and securing copyright.Ownership of unpublished composition presumptively includes all rights therein recognized by common law, including privilege of publication and securing of statutory copyright.
83—Where plaintiff, suing for infringement of copyright, prima facie proves title, burden of going forward with evidence shifts to defendant.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.
341—Denial on information and belief does not constitute evidence overcoming plaintiff’s prima facie showing of title in copyright infringement suit.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.
82—Averment of deposit of two copies of best edition of picture held sufficient, in bill to restrain infringement of copyright (Copyright Act, § 12, as amended by Act March 28, 1914, § 1 [17 USCA § 12]).