Henderson v. Tompkins

• Citation: 60 F. 758
• Decision Date: 21 March 1894
• Docket Number: 3,104.
• Parties: HENDERSON v. TOMPKINS.
• Court: U.S. District Court — District of Massachusetts

60 F. 758

HENDERSON v. TOMPKINS.

No. 3,104.

United States Circuit Court, D. Massachusetts.

March 21, 1894

The bill of complaint was as follows:

David Henderson, of Chicago, in the state of Illinois, a citizen of the United States, brings this, his bill of complaint against Eugene Tompkins, of Boston, in the state of Massachusetts, a citizen of the United States; and thereupon your orator complains, and says: (1) That your orator, being the proprietor of a certain dramatic composition entitled 'All Baba, or Morgiana and the Forty Thieves,' written or composed by citizens of the United States, did, on or before the date of publication in this or any foreign country, viz. upon the 23d day of April, 1892, deliver at the office of the librarian of congress a printed copy of the title of the said composition, and received from said librarian a certificate of such deposit, hereunto annexed and also did, not later than the date of the publication thereof in this or any foreign country, viz. upon the said 23d day of April, 1892, deliver at the office of the librarian of congress two copies of said dramatic composition, and received from the said librarian a certificate of said deposit, also hereto annexed, whereby the same became duly copyrighted. (2) That a part of said dramatic composition was as follows: 'Cassim (scornfully): But Ali Baba's election is certain. Nico: I know it. Arraby: How do you know? Hack: She had a dream last night. Caliph (coming down stage): I wonder if dreams come true.' And that the said dialogue was then immediately followed by a song entitled, 'Quartette for Ali Baba: I Wonder if Dreams Come True,' consisting of a number of verses of eight lines, in each of which the second, fourth and eighth lines consist of the refrain, 'I wonder if dreams come true,' and the chorus after each verse is as follows: 'Hi diddle diddle, the cat and fiddle, the parrot and monkey too. Bells they are ringing, there's fighting and singing, I wonder if dreams come true;' and that of each of the said verses, all except the second fourth, and eighth lines aforesaid, were of a so-called 'topical' nature (that is to say, relating to topics of current interest), and that the matter of the said topical lines was intended to be changed or varied from time to time to introduce allusions to new topics, the whole constituting what is known as the topical song, 'I Wonder if Dreams Come True.' (3) That the said song, so introduced by dialogue, forms an important and valuable part of the said dramatic composition, 'Ali Baba,' and constitutes one of the principal features of interest therein, and that the sole and exclusive right of publicly performing or representing the same is of great value to your orator. (4) That the defendant herein, well knowing the foregoing, and after the recording of the title of the said dramatic composition, and within the term of copyright therefor limited, and without the consent of your orator first obtained in writing, and signed in the presence of two or more witnesses, did publicly perform and represent, and is now so publicly performing and representing at the Boston Theater in said Boston, a certain dramatic composition, whereof a substantial and material and important portion consists of a dialogue between various characters in relation to having had a dream, the said dialogue terminating with a speech by one of said characters, as follows, 'I wonder if dreams come true,' which said speech is immediately followed by a topical song of a number of verses of eight lines each, the second, fourth, and eighth of which consist of the words or refrain, 'I wonder if dreams come true;' that each of said verses is followed by the chorus of your orator's said song, and that the remainder of the lines in each verse are topical in character, and in substantial imitation of the said topical portions of your orator's said copyrighted song; and that the said performance and representation by the defendant of the said dialogue and the said song are a substantial and material infringement upon your orator's said exclusive right of publicly performing or representing the same. (5) And that by reason of the performance as aforesaid by the defendant of said dialogue and topical song in said Boston, in advance of the performance by your orator there of his said copyrighted composition and song, the same is made and becomes familiar and stale to the public, and thereby the attractiveness and value of your orator's said composition, subsequently to be produced by him in said Boston, have been and will be greatly reduced and impaired; and your orator is further informed and believes and charges that the defendant proposes to continue his said performance in other places, and throughout other parts of the United States, in advance of your orator's production of his copyrighted composition therein, to the great and continuing injury of your orator's rights in the premises. Wherefore, your orator prays that the said defendant may be required to answer the premises under oath, and may be decreed to account for and pay over unto your orator all gains and profits by the said defendant realized from his said infringement, and also the damage which your orator has sustained thereby, and that he may be restrained by an injunction of this honorable court from publicly performing or representing, or causing or permitting to be publicly performed or represented, any dramatic composition embodying, in whole or in part, any substantial or material portion of your orator's said copyrighted composition, and that he may be similarly enjoined pending this suit. And, to the end that your orator may have such relief, may it please your honors to grant to your orator writs of injunction conformable to the prayer of this bill, and also a writ of subpoena to be directed to the said Eugene Tompkins, commanding him, at a certain time, and under a certain penalty therein to be limited, personally to be and appear before this honorable court, then and there to answer to this bill, and to do and receive what to your honors shall seem meet.

Defendant demurred to the bill of complaint in form as follows:

The defendant, by protestation, not confessing or acknowledging all or any of the matters or things in the said bill of complaint contained to be true in such manner and form as the same are herein set forth and alleged, doth demur to the said bill, and for causes of demurrer showeth: (1) That it appeareth by the plaintiff's own showing, by the said bill, that he is not entitled to the relief prayed by the bill against the defendant. (2) That, in particular, it appears by the plaintiff's own showing, by the said bill, that the matter which he has alleged therein as protected by the copyright laws of the United States, and as having been infringed by the defendant, is matter which does not, and does not tend to, promote the progress of science and useful arts, or either of them, and is not within the scope of the power granted to congress by the constitution of the United States, to promote the progress of science and useful arts, by securing, for limited times, to authors and inventors, the exclusive right to their inventions and discoveries. (3) That, in particular, it appears by the plaintiff's own showing, by the said bill, that the matter which he has alleged therein as protected by the copyright laws of the United States, and as having been infringed by the defendant, is not, and was not at the time of the deposit of the title of said alleged dramatic composition as alleged in said bill, original, but that the same, in form and substance, was then and theretofore existed as common knowledge, generally known, and common speech, generally and frequently used, within the limits of the jurisdiction of this honorable court; that the plaintiff's alleged copyright therein is void (a) because the same was not original with the plaintiff, or with those under whom he claims; (b) because the same was not and is not possessed of sufficient originality to entitle it to protection under the copyright laws enacted by congress in pursuance of the power conferred by the constitution of the United States upon congress 'to promote the progress of science and useful arts by securing, for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries. Wherefore, and for divers other good causes of demurrer appearing on the said bill, the defendant doth demur thereto. And he prays the judgment of this honorable court whether he shall be compelled to make any answer to the said bill; and he humbly prays to be hence dismissed, with his reasonable costs in this behalf sustained.

Alexander P. Browne, for complainant.

Lauriston L. Scaife, for defendant.

PUTNAM Circuit Judge.

This case was argued orally in July last. The court would have been pleased to have disposed of it immediately thereafterwards, but counsel desired permission to file additional briefs, which was granted. They were not filed until October last. The case thus lost its place, and was not easily taken up again.

One ground of demurrer is an alleged lack of originality. It was claimed at the hearing that the court had the judicial knowledge touching the portion of complainant's dramatic composition under consideration requisite to dispose of the question of novelty on demurrer, but the court then indicated that it had settled views otherwise. The court had in mind the observations which it made in Industries Co. v Grace, 52 F. 124, where it condemned the growing disposition to consider such questions on demurrer, and distinguished Brown v. Piper, 91 U.S. 37, so frequently referred to in this connection. In that case, however, the court had no necessity...