Daly v. Brady
| Decision Date | 24 June 1895 |
| Citation | 69 F. 285 |
| Parties | DALY v. BRADY. |
| Court | U.S. District Court — Southern District of New York |
Stephen H. Olin, for plaintiff.
A. J Dittenhoefer, for defendant.
This action having come on regularly for trial before the circuit court of the United States for this district on May 29, 1895 and the parties, by their attorneys of record, having filed with the clerk a stipulation in writing, signed by them waiving a jury, and consenting that the issues should be tried by the court without a jury, I, holding said court and presiding therein, thereupon took the proofs offered by the respective counsel, and hereby make the following special findings of fact and conclusions of law:
Findings of Fact.
(1) That before August 1, 1867, the plaintiff invented and composed, and was the author of, a dramatic composition or play in five acts, entitled 'Under the Gaslight,' which play was original with him.
(2) That on the 1st day of August, 1867, the plaintiff, being a citizen and resident of the United States of America, and being then the sole and exclusive proprietor and owner of said dramatic composition, and the same then never having been printed, published, acted, performed, or represented, took out a copyright therefor in the United States, by depositing a printed copy of the title-- viz.: -- of said composition in the clerk's office of the district court of the United States for the Southern district of New York, of which district the plaintiff was then a resident, and in all respects complied with the provisions of the existing acts of congress relating to copyrights, and received from said clerk, who then and there recorded said title as required by said acts, a certificate and record in the form required by such acts, containing the title of said composition, and that the said Daly has been continuously since said day the sole and exclusive proprietor of said dramatic composition and of said copyright.
(3) That the plaintiff subsequently, and within a reasonable time thereafter, caused the said composition to be printed and published, and within three months from the date of such printing and publication he caused a printed copy of said composition so printed and published to be delivered to and deposited with the clerk of said district court, and also to be delivered to and deposited in the library of congress, at Washington, for the use of said library, as required by said acts of congress. The title, as published, was:
(4) And that the plaintiff gave information of the copyright of said composition being secured to him by causing to be printed and inserted in the several copies of each and every book and edition of such book or composition so published and printed, on the title page thereof, or on the page immediately following, the following words, viz.:
'Entered according to act of congress, in the year 1867, by Augustin Daly, in the clerk's office of the district court of the United States for the Southern district of New York.' (5) That the plaintiff, in and by the aforesaid proceedings, intended to obtain, hold, and possess, and did obtain, hold, and possess, by virtue of the act of congress approved February 3, 1831, and the acts amendatory thereof and supplementary thereto, not only the sole and exclusive right and liberty to print and publish such dramatic composition and book, but also the sole and exclusive right to act, perform, or represent the said dramatic composition or play, and to cause it to be acted, performed, or represented, on any stage or public place, during the whole period for which the said copyright was obtained.
(6) That the said play was produced by the plaintiff as alleged in the complaint, and has been often produced by him, and for his profit and advantage, by his employes, or by persons licensed to produce the same; and the plaintiff has received, as fees, from different persons performing the same under his license, substantial license fees in almost every year since 1868.
(7) That the cause of the success and profit of the play was the scene and incident in the end of the third scene of the fourth act of the said composition, commonly called, after being so publicly performed, the railroad scene or sensation, in which one of the characters in said composition is represented as secured by another of the characters, and laid helpless upon the rail of a railroad track, in such a manner and with the presumed intent that the railroad train momentarily expected shall run him down and kill him, and just at the moment when such a fate seems inevitable another of the characters in the composition contrives to reach the intended victim, and to drag him from the track as the train rushes in and passes over the spot.
(8) That this incident and scene, as thus carried out, was novel, and unlike any dramatic incident known to have been theretofore represented on any stage, of invented by any author before the plaintiff.
(9) That the chief value of said composition and its popularity depend upon the said railroad scene or sensation contained in it, and upon the representation of said scene, only, which scene constituted its essential feature, and that at the times of the acts of the defendant hereinafter referred to the sole commercial value of the said play of 'Under the Gaslight,' and the source of its power of earning royalties, consisted of the said railway scene.
(10) That, soon after said play was produced, Dion Boucicault, a native and subject of Great Britain, without the knowledge or consent of the plaintiff, prepared a play called,After Dark, ' in which he introduced a railway scene varying slightly from the railway scene as it appeared in 'Under the Gaslight,' so as to be colorably different, but substantially the same, as alleged in the complaint.
(11) The defendant, William A. Brady, is, and at the times hereinafter mentioned was, a manager and actor. The plaintiff was at the commencement of this suit a citizen of the state of New York, and the defendant was a resident therein, whose citizenship was not averred; and this court obtains its jurisdiction, not by reason of diverse citizenship, but solely under the copyright laws of the United States.
(12) The defendant, at the times hereinafter mentioned, without the consent of the plaintiff, produced and procured to be publicly performed and represented, in divers cities, the said play of 'After Dark,' including the said railway scene, which, as produced by the said defendant, was substantially the same, although colorably different from the plaintiff's play of 'Under the Gaslight,' as alleged in the complaint.
(13) That said play, 'After Dark,' has been publicly produced and represented by the said defendant and his agent in different parts of the United States without the plaintiff's consent, and that such performance and production of the said play took place 747 times between June 19, 1889, and October 4, 1892, and that, of the said 747 performances, 156 took...
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Newgold v. American Electrical Novelty & Mfg. Co.
...purpose, and on a different issue, that would not constitute any waiver in this suit for penalties. On that point the case of Daly v. Brady (C.C.) 69 F. 285, precisely applicable, and as to that point there has been no reversal. As it is clear that no evidence obtained by the plaintiff in t......
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Brady v. Daly
...defendant rested. The court took the case under advisement, and on June 24, 1895, filed special findings of facts and conclusions of law. 69 F. 285. The findings of fact set substantially, what has been hereinbefore rehearsed. The court found, as conclusions of law, that Daly's copyright wa......