N.J. State Dental Soc. v. Dentacura Co.

• Decision Date: 31 October 1898
• Citation: 41 A. 672,57 N.J.E. 593
• Parties: NEW JERSEY STATE DENTAL SOC. v. DENTACURA CO.
• Court: New Jersey Court of Chancery

41 A. 672

57 N.J.E. 593

NEW JERSEY STATE DENTAL SOC.

v. DENTACURA CO.

Court of Chancery of New Jersey.

Oct. 31, 1898.

Bill in chancery by the New Jersey State Dental Society against the Dentacura Company. Preliminary injunction granted on the affidavits of both parties.

Halsey M. Barrett, for complainant.

Edward A. Day, for defendant.

STEVENS, V. C. The complainant, an Incorporated society, files its bill against the defendant to restrain the publication of extracts from a report made by a committee of the complainant. The report is an original essay on the care of the teeth and the best means of preserving them. Among other things, it deals with the subject of tooth powders and pastes, and in several passages commends the paste made by the defendant. The report, signed by five dentists, members of the society, was read at a meeting thereof held at Asbury Park, in July last. After having been read, it was, in the language of the bill, "then discussed, and on motion accepted by the society, and * * * handed by its chairman to the secretary, to be retained by him as the property of, and a part of the records of, said society and said meeting." The report, with other reports and papers of the society, was afterwards handed to a representative of a magazine of dental literature, known as "Items of Interest," published monthly in New York. The report in question has not been published in this magazine. It still remains in manuscript Application was made by a representative of the defendant company to an officer of the complainant company for a copy. Failing to get it from him, he procured a copy from a person connected with the magazine, and then proceeded to use extracts from it as an advertisement of the paste "Dentacura." It is not pretended that either the copy was procured or the advertisement made by authority or permission of the complainant On this branch of the case there can be no doubt. The manuscript was the exclusive property of complainant, and neither it nor extracts from it could, against complainant's consent be used to advertise the wares of defendant.

The defendant, however, grounds his case principally on certain facts appearing in the answering affidavit of Mr. Lathrop, general manager of the Dentacura Company. After deposing that he (Lathrop) was invited by the complainant to make an exhibit of his wares at the meeting, which he and other exhibitors did, he paying $12 for the privilege, he proceeds as follows: "And deponent further says that the several sessions of the said annual meeting were open and public, and that the general public was admitted thereto, and many hundreds of people outside of the dental profession were in attendance, and that the proceedings of the society, the reading of essays, and the reports of committees were conducted in the presence of the general public, and that the report of the committee mentioned in said bill and hereafter mentioned was read openly at said meeting, and in the presence of the outside public, and that many persons not connected with the society were present when the said report was made." It is not distinctly averred that Mr. Lathrop was one of the persons who were in attendance when the report was read. As he swears, however, that he attended the annual meeting of 1898, I will assume that he actually heard the report. The defendant's insistment is that the reading at this meeting was a publication, and that the report, or its contents, thereafter became public property, which every one was entitled to make such use of as he saw fit.

The law respecting the ownership of literary property is entirely settled. It is thus stated by Vice Chancellor Van Fleet in Aronson v. Baker, 43 N. J. Eq. 366, 12 Atl. 178: "The right to literary property is just as sacred and just as much entitled to the protection of the law as the right to any other kind of personal property. * * * The established rule defining the rights of the owner of such property may be stated as follows: Every new and innocent product of mental labor which has been embodied in writing or some other material form, while it remains unpublished, is the exclusive property of its author, entitled to the same protection which the law throws around the possession and...