York. The leaves of the books were discolored and stained by smoke and water, but the covers had a respectable appearance, and the complainant supposed that the unbound sheets which had escaped the fire had been rebound by Harrison, or under his direction, or with his privity, and that he was selling such newly-bound books, as well as some bound books which had escaped serious injury; and thereupon brought a bill in equity before the United States circuit court, to restrain his alleged infringement of its copyright. The bill counted entirely upon the right of the complainant under the copyright statutes of the United States. Upon its motion, the court granted an injunction pendente lite. Harrison denies, in his affidavit, that he purchased any sheets or loose covers of the book. He further says (rather vaguely) that he "learned that certain dealers had come into possession of the salvage from the fire at said Alexander's place; that affiant visited the premises where said salvage was stored, and from them purchased. a number of bound and completely finished volumes, some of which were the publications of the complainant." He further says that he "purchased the said books in the regular course of trade, without any knowledge of any understanding or arrangement, if any there was, between complainant and others; and that he accepted the same, as he believes, according to the established usage of the trade, believing them to be books which had been put upon the market as salvage, as damaged books are bought and sold." The affidavits show that the complainant, which was the owner of the copyright, permitted Alexander to sell absolutely all its copyrighted books in his cellar, and that his vendee obtained the entire legal title to these damaged volumes. They were sold again, together with other paper and books, under express restrictions against their use for any other purposes than for the manufacture of paper. Harrison says that he bought the books in question without knowledge of this restriction. Whether he had notice of facts which should have put a purchaser upon inquiry to ascertain whether he was being made a party to a violation of contract, cannot be determined upon the affidavits. The question, as it arises upon the bill and the affidavits, is: Can the owner of a copyright restrain, by virtue of the copyright statutes, the sale of a copy of the copyrighted book, the title to which he has transferred, but which is being sold in violation of an agreement entered into between himself and the purchaser; or are the remedies of the original owner confined to remedies for a breach of contract? So long as the owner of a copyright retains the title to the copies of the book which he has the exclusive right to vend by virtue of the copyright, he can impose restrictions upon the manner in which and upon the persons to whom the copies can be sold. Having the exclusive right to vend, he has the right to appoint to whom the book shall be sold. If his agents, to whom he has intrusted the possession of his books, violate his instructions, and fraudulently sell to a person with knowledge or notice of the fraud, such fraud will be an infringement of the copyright, with which the original owner has never parted, and can be restrained by virtue of the statutes of the United States. Thus, if the owner of a copyrighted book intrusts copies of the book to an agent or employe for sale only by subscription and for delivery to the subscribers, and the agent fraudulently sells to nonsubscribers, who have knowledge or notice of the fraud, such sale is an infringement of the original owner's copyright, who can disregard the pretended sale, and have the benefit of all the remedies which the statutes or the law furnish. This right to enjoy the benefit of the copyright statutes results from the fact that the owner has never parted with the title to the book or the copyright, although he parted with the possession of the book. But the right to restrain the sale of a particular copy of the book by virtue of the copyright statutes has gone when the owner of the copyright and of that copy has parted with all his title to it, and has conferred an absolute title to the copy upon a purchaser, although with an agreement for a restricted use. The exclusive right to vend the particular copy no longer remains in the owner of the copyright by the copyright statutes. The new purchaser cannot reprint the copy. He cannot print or publish a new edition of the book; but, the copy having been absolutely sold to him, the ordinary incidents of ownership in personal property, among which is the right of alienation, attach to it. If he has agreed that he will not sell it for certain purposes or to certain persons, and violates his agreement, and sells to an innocent purchaser, he can be punished for a violation of his agreement; but neither is guilty, under the copyright statutes, of an infringement. If the new purchaser participates in the fraud, he may also share in the punishment. Clemens v. Estes, 22 Fed. 899. The distinction between the remedy of the owner of a copyright and the books published under its protection, who has retained the title to the books and the copyright, and has been defrauded by an unauthorized sale to a purchaser with notice, and the remedy of a copyright owner who has parted with his title to a copy of the copyrighted book, and has been injured by the failure of the purchaser to comply with his contract in regard to its use, is stated by Judge Hammond in Publishing Co. v. Smythe, 27 Fed. 914, as follows: "The owner of the copyright may not be able to transfer the entire property in one of his copies, and retain for himself an incidental power to authorize a sale of that copy, or, rather, the power of prohibition on the owner that he shall not sell it, holding that much, as a modicum of his former estate, to be protected by the copyright statute; and yet he may be entirely able, so long' as he retains the ownership of a particular copy for himself, to find abundant protection under the copyright statute for his then incidental power of controlling its sale. This copyright incident of control over the sale, if I may call it so, as contradistinguished from the power of sale incident to ownership in all property,-copyrighted articles, like any other,-is a thing that belongs alone to the owner of the copyright itself, and as to him only so long as and to the extent that he owns the particular copies involved. Whenever he parts with that ownership, the ordinary incident of alienation attaches to the particular copy parted with in favor of the transferee, and he cannot be deprived of it. This latter incident supersedes the other,-swallows it up, so to speak, and the two cannot coexist in any owner of the copy except he be the owner at the same time of the copyright; and, in the nature of the thing, they cannot be separated so that one may remain in the owner of the copyright as a limitation upon or denial of the other in the owner of the copy." The case of Murray v. Heath, 1 Barn. & Adol. 804, which is somewhat relied upon by the defendant's counsel, does not throw a strong light upon a case arising under the statutes of the United States. The question was whether the sale of the engravings was, under the circumstances of the case, a violation of the English statutes,-which prohibited a piratical publication of the engravings of another,—or was a breach of contract. The court was of opinion that the statutes were not applicable. The other cases which were cited on the argument, are not applicable to the facts of this case, although they are instructive upon the rights of copyright owners under copyright statutes, or of the rights of owners of manuscripts. Stephens v. Cady, 14 How. 529; Stevens v. Gladding, 17 How. 447; Parton v. Prang, 3 Cliff. 537, Fed. Cas. No. 10,784; Bartlette v. Crittenden, 4 McLean, 300, Fed. Cas. No. 1,082; Prince Albert v. Strange, 2 De Gex & S. 652; Taylor v. Pillow, L. R. 7 Eq. Cas. 418; Howitt v. Hall, 10 Wkly. Rep. 381; Hudson v. Patten, 1 Root, 133. The discussion by Judge Hammond upon the general subject in Publishing Co. v. Smythe, supra, is most valuable, and any one who has occasion to examine this subject will find that the territory has been thoroughly explored. Our conclusion is that, upon the facts stated in the bill and in the affidavits, the complainant has no remedy under the copyright statutes of the United States, and, as both the parties are deemed to be citizens of the state of New York, the complainant is without remedy in the circuit court for the southern district of New York. The order of the circuit court for a preliminary injunction is reversed and set aside, with costs. THE PUBLIC BATH NO. 13. TEBO et al. v. MAYOR, ETC., OF CITY OF NEW YORK et al. (District Court, S. D. New York. April 10, .1894.) 1. ADMIRALTY JURISDICTION-FLOATING BATH HOUSE. A bath house built on boats, and designed for navigation and transportation, is within admiralty jurisdiction. 2. SALVAGE-SUBJECT-MATTER. Use in trade and commerce, of the property saved, is not essential to salvage. 3. SAME LIABILITY OF BAilee. A bailee in possession of a floating bath for repairs disobeyed the owner's directions as to its fastenings for security from storms, and increased its weight and exposure. Held, that he took the risk of its going adrift, and was bound to indemnify the owner for salvage thereupon. 4. SAME RULE 19. SUIT IN PERSONAM - "REQUEST" FOR SERVICE WITHIN ADMIRALTY A floating bath house, the property of a city, but in possession of a bailee for repairs, having gone adrift with no one on board, was picked up by a tug. Held, that as it was equally of the highest interest to the bailee and to the city to have it rescued, and as the right to proceed in rem against public property was doubtful, the request necessary, under S. Ct. admiralty rule 19, to sustain a suit in personam, might be implied, as respects both owner and bailee. 5. SAME. Query, whether any part of admiralty rule 19 is applicable where the res is exempt from arrest as public property. This was a libel in personam by William M. Tebo and others against the mayor, aldermen, and commonalty of the city of New York for salvage of Public Floating Bath No. 13, the property of the city, which, while lying in Gowanus bay for the purpose of being repaired by the Greenpoint Towage & Lighterage Company, on August 24, 1893, parted its moorings in a storm, and was swept adrift into the bay, where it was picked up by libelants' tug, and moored to an adjacent dock. On petition of respondent, the Greenpoint Towage & Lighterage Company was brought in as a party. Thereafter libelants filed a libel in rem against the bath house. By direction of the court, the suits in personam and in rem were tried together. Goodrich, Deady & Goodrich, for libelants. William H. Clark, Corp. Counsel, and Dean & Ward, for the mayor and the bath house. Hyland & Zabriskie, for Greenpoint Towage & Lighterage Co. BROWN, District Judge. This bath house, unlike the bath houses built for permanent mooring, was built upon several boats as a substructure; the boats were designed to float, to uphold, and to transport the Bath, wherever and whenever desired. The design included both navigation and transportation. The bath house was in effect the permanent cargo of the boats. It was not permanently moored, as in Cope v. Dry-Dock Co., 119 U. S. 625, 7 Sup. Ct. 336; but on the contrary was designed for navigation and transportation; and that is why boats were used as the substructure. It is, therefore, within the jurisdiction of this court. See The Hezekiah Baldwin, 8 Ben. 556, Fed Cas. No. 6,449; The Pioneer, 30 Fed. 206. The grounds of the decisions in those cases are applicable here. Use in trade and commerce is not essential to salvage; if that were material, there could be no salvage allowed upon yachts, or other water craft used for pleasure, which is absurd. 2. The structure was in the possession of the defendant company for repair. It had been made fast under the direction of an expert in the city's employ, in a manner found sufficient to weather the winter storms, which equal, and often exceed, this storm in severity. The company's employes had been warned not to loosen those lines; but they cast them off after the lighter Success came alongside the Bath, and ran lines to spiles from the Success alone, without any side lines from the Bath to prevent her from swaying. The Johannes, 10 Blatchf. 478, Fed. Cas. No. 7,332. In disobeying directions, and in adding more weight and exposure, and in substituting new lines and new ways of fastening, the company took the risk of going adrift. They would, therefore, be bound to indemnify the city for any responsibility for the salvage claim, in rem or in personam. 3. The company, as bailee, if present when the Bath went adrift, would have been bound to request the Tebo, or any other tug at hand, to endeavor to rescue the bath house, for a reasonable compensation, and prevent injury to herself or other vessels. The bath house was a valuable structure. It is a bailee's duty to protect the property in his charge, and he is answerable to the owner for the performance of that duty. It was, therefore, equally of the highest interest to the company as bailee, and to the city as owner, to have the Bath rescued and secured as soon as possible. In fact, the watchman on duty for the night had actually gone ashore to seek assistance only shortly before, and after the structure had got adrift. Under such circumstances, where there is no one present to represent the owners, general or special, at the time of need, and the watchman is in quest of aid, and where the right to proceed in rem is doubtful, the "request" provided for by S. Ct. admiralty rule 19 may, I think, be properly implied by law as respects both personal defendants; while the "benefit" both to the company and to the city from the service is manifest. I have much doubt, moreover, whether any part of S. Ct. admiralty rule 19 is applicable to a case in which the res is exempt from arrest, as public property; though I do not undertake to determine this latter question now. The rule ought to be applied consistently as a whole. The first part of the rule authorizes proceedings in rem; and if an exceptional exemption from arrest for a salvage service. should be held to exclude the first clause of the rule, it would seem that such a case should be deemed altogether outside of the intent of the rule, so that the whole rule should be deemed inapplicable. No construction of the rule should be adopted, if it can be avoided, which would leave the salvor remediless; it would be the worst policy possible to discourage any salvage help to city property in time of need, by denying any legal right, or any mode of remedy, to recover salvage compensation. 4. Under all the circumstances, $350 will, I think, be a reasonable compensation for this service, which I think the company is legally bound to pay. For that sum, with costs, a decree may be taken against the company. As against the other defendants, the proceedings are suspended, until a return of execution against the company. The Alert, 44 Fed. 685. THE ERNEST M. MUNN. LOWNDES v. THE ERNEST M. MUNN. (District Court, D. Connecticut. May 24, 1894.) 1. SALVAGE-COMPENSATION. No. 1,009. A steam barge worth $2,500, laden with a cargo worth $600, was found derelict and in peril in Long Island sound, and was towed to port by the salvors, who were in an oyster steamer. The time consumed was 61⁄2 hours; the distance towed was 31⁄2 miles; and the rescue was made with danger to the life of one of the salvors and some danger to the oyster steamer, which was worth about $15,000. Held, that the salvors were entitled to $800 compensation. 2. SAME-DURESS. Where the owner of a vessel in the possession of a salvor takes possession by force, threatens the salvor with violence, and induces him to accept less than his claim for salvage, such settlement is not binding on the salvor. Libel by Stanley H. Lowndes against the barge Ernest M. Munn for salvage. |