The right to an account in equity appears to be entirely ancillary to the right to an injunction. (a) PART I CHAPTER XVII "The court," says Sir John Leach, M.R.,(b) "has no Right to an jurisdiction to give to a plaintiff a remedy for an alleged account. piracy, unless he can make out that he is entitled to the equitable interposition of this court by injunction; and in such case, the court will also give him an account, that his remedy here may be complete. If this court do not interfere by injunction, then his remedy, as in the case of any other injury to his property, must be at law." Neither has a court of equity any jurisdiction with reference to a mere question of damages unless the primary right to an injunction exists. (c) It was held in an American case(d) that commissions on the sale of a pirated work, received by a bookseller from the publisher of it, are profits which the bookseller must account for to the proprietor of the copyright, where a decree for an account has been made. Curtis, J., in that case, after referring to the law relating to profits made by one member of a partnership, said: "The jurisdiction in cases of copyright rests upon a similar principle. If the proprietor will waive his action for damages, he may have an account of profits, upon the ground that the defendant has, by dealing with his property, made gains which equitably belong to the complainant. And I perceive no sound reason for restricting those gains to the difference between the cost and the sale price of the map or book, or limiting the right to an account to those persons who have sold the work solely on their own account. He who sells on commission does in truth sell on his own account, so far as he is entitled to a percentage on the amount of the sales. What he so receives is the gross profit coming to him from the proceeds of the sales, and what he so receives, diminishes the net profit of the one who employs him to sell. That part of the profits of the sales, being in the hands of the commission merchant, the consignor is not accountable for them. But why should not the commission merchant, who has them, account for them? He was liable to an action for damages for selling. That right is waived. I think he should pay over to the Lord Brougham, C., in Crossley v. Derby Gas Light Company (4 L. J. 26, Ch.); per Wood, V.C., in Smith v. London and South-Western Railway Company (1 Kay, 416, 417). (a) 1 Kay, 417. (E) Bailey v. Taylor (1 R. & M. 75). (e) 1 Kay, 415; Stevens v. Caddy (2 Curt. 200); and see the case of Monk v. Harper (3 Edw. Ch. 114). (d) Sterens v Gladding (2 Curt. 608). PART I. proprietor in lieu of the damages, the gain he has made CHAPTER XVII. from the sales. It does not seem to me that the term 'profits' necessarily, or when construed in reference to the subject matter, properly has so restricted a meaning as to exclude commissions received from the proceeds of sales of the property of the complainant." (a) Injunction property is That the value of the property infringed is small does not where value of disentitle the owner to an injunction; (b) but it may be of such trifling value that the court will not encourage litigation by interfering to protect it by injunction. smail. Sale of pirated copies after expiration of term. Injunction where only part of work is pirated Where some pages of an article on a subject under public discussion at the time, were extracted from a monthly periodical and commented on by a weekly newspaper, Lord Cottenham, in dissolving an injunction which had been obtained, said: "It is impossible to say there is any value in the nature of the property in what is here inserted; the question is so minute as a question of property or valuehow far, in point of value, it interferes with the sale of the Monthly Chronicle. The injunction is not to depend altogether on a question of account; but to what value the question in point of utility is to be carried. If no other danger were to arise from granting this application than what would be consequent on encouraging the litigation of such minute. inquiries, it would be a sufficient ground to refuse it, that the court should not be so occupied to the exclusion of other matters which press upon it. The injunction is dissolved, each party paying their own costs." (c) Where, however, the work of which the copyright is infringed is of value, the court will grant an injunction without proof of actual damage. When once the court has found that there is "injuria" the proprietor of the copyright will be allowed to judge of the "damnum."(d) If copies pirated during the continuance of a term of copyright are not published till after the expiration of the term, equity will, it seems, as in the similar case of patents, restrain such publication by injunction. (e) Where part of a book only is pirated from another work, the (a) Stevens v. Gladding (2 Curt. 608). (b) Buxton v. James (5 De G. & Sm. 83). (c) Bell v. Whitehead (3 Jur. 68). See also per Lord Eldon in Matthewson v. Stockdale (12 Ves. 275); and Cox v. Land and Water Journal Company (L. Rep. 9 Eq. 324; 21 L. T. N. S. 548; 39 L. J. 152, Ch. ; 18 W. R. 207). (d) Per Wood, V.C., in Tinsley v. Lacy (32 L. J., 539, Ch.; 11 W. R. 876). (e) Compare the remarks of Wood, V.C., in Smith v. London and South-Western Railway Company (Kay, 415) with the arguments in Sheriff v. Coates (1 R. & M. 165, 166). PART I. extent to which an injunction goes will depend on the partiular circumstances of the case. Lord Bathurst seems to have CHAPTER XVII. been of opinion that an injunction could not be granted against the whole of such a work, unless the part pirated vas such that granting an injunction against that part necessarily destroyed the whole. (a) Lord Eldon thought it was the business of the defendant, here a considerable portion of his work was shown to have been taken from that of the plaintiff, to separate and point ut such pirated part. (b) The presiding judge has frequently made the comparison r himself. (c) In some cases a reference has been made to he master to report to what extent one book is pirated from hother; (d) and in one case Lord Hardwicke thought the st course was to get a report from two persons of learning the law, chosen by the litigants themselves. (e) The effect of an injunction against the whole of a book is metimes produced by an order against the publication of y copy or copies containing the portions pirated from other work, or any passages taken or colourably alteredm such work.(f) The extent to which the injunction ought to go, must, in ch case, depend on the particular circumstances of that se.(g) injunction The peculiar nature of the case may sometimes render the Remedy by Per Wood, V.C., in Jarrold v. Houlston (3 K. & J. 719). See the cases of Matthewson v. Stockdale (12 Ves. 277), Whittingham fooler (2 Swanst. 460), Lewis v. Fullarton (2 Beav. 8), Murray v. e (1 Drew, 368), Spiers v. Brown (6 W. R. 352), Jarrold v. Houlston . & J. 708); Pike v. Nicholas (20 L. T. N. S. 906; 38 L. J. 529, L. Rep. 5 Ch. App. 251). Carnan v. Bowles (2 Bro. C. C. 85); Nicol v. Stockdale (12 Ves. Gyles v. Wilcox (2 Atk. 143). See Lewisy. Fullarton (2 Beav. 6); Jarroldv. Houlston (3 K. & J.708). Cox v. Land and Water Journal Company (L. Rep. 9 Eq. 324; 21 PART I. of the labour undergone by others, said: "But in this case, CHAPTER XVII, as in many others, the question arises, is it a case for the interference of the Court of Chancery at all? and if it is a case for interference, is it a case for interference on an interlocutory application? Now, I do not think it is a case to be decided on an interlocutory application; and my reason is this: this list must be corrected from week to week; it could not be a correct list from the 1st of November until April, or to the end of the hunting season. Changes must take place; the list of masters, huntsmen, and whips can hardly continue to be correct even for a week. Now, suppose I were to grant an injunction, how can it be acted upon? The defendants have only to issue a fresh circular, make an urgent appeal for answers, or send a person by rail and get the information from the masters of the hunts, and next week bring out a very correct list; and how am I to know the way in which they got their information? At present, I do not see that I can interfere. Whether the plaintiff is entitled to any remedy I do not at present decide, but I do not think it a case for an injunction, though the defendants are not entitled to avail themselves of the plaintiff's labours. . . . . I would suggest to the parties that the wisest thing would be to let the bill be dismissed without costs. But if they do not agree, then I simply refuse the motion, leaving the case to be decided at the hearing. It may be a question for damages, but I shall certainly not grant an injunction." Where the appropriation of another's work is small in amount, and pervades the whole work, so that no permanent injunction can issue without destroying the whole work, it has been the opinion of some judges that the remedy by injunction would be disproportionate and unsuited to the case, and therefore unjust; and that as the damages sustained might be obtained in a suit at law without destroying the whole work, such would be the most equitable relief. (a) Not necessary to It is not necessary for a person who complains that his state in bill or copyright has been infringed and seeks an injunction, to specify, either in his bill or his affidavit, the parts of the defendant's work which he thinks have been pirated from his work. It is sufficient to allege generally that the defen affidavit parts pirated. (a) See per Woodbury, J., in the American case of Webb v. Powers (2 Wood. & Min. 521). Though this Court," says Lord Eldon, in Mauman v. Tegg (2 Russ. 394), "has long exercised the jurisdiction of protecting literary property by injunction, there may be much doubt whether it would exercise the jurisdiction, where only a few pirated passages occurred, and would not rather in such a case leave the party complaining to his action at law." PART L dant's work contains several passages which have been pirated from the plaintiff's, and to verify the rival works by CHAPTER XVII affidavit. (a) The production of his manuscript is sometimes very important on the part of the person charged with piracy. (b) Where the proprietor of copyright notes on the Bible Sale of stereosold the stereotype plates of a quarto edition containing type plates. these notes, together with the right of printing from them, and the plates were afterwards sold to a third party at a public sale, at which a specimen leaf of the work was exhibited, the Scotch Court of Session granted an interdict to restrain the purchaser from publishing a folio Bible, printed from the plates, with the addition of a commentary at the foot of each page, on the following grounds that what was sold were the plates of a particular Bible, of which a specimen leaf had been shown, and had been referred to in the catalogue; that the nature of stereotype plates was to multiply copies of the same work until they were worn out, whereas, if commentaries were added to each page, the work would be a different one, and if sold as cheap as the original quarto the value of the latter would be diminished, and that, not by the multiplication of the same work, but by the production of a different one from the plates, a thing not intended when the sale was made. (c) disparaging a An advertisement of a work which merely disparages a Publication rival work will not be restrained by injunction, where it is rival work. not such as would induce the public to take the one book for the other. (d) Lord Cottenham, C., said that an allegation that matter contained in a particular edition of a work was spurious and of no value was, if untrue, no subject for an injunction, although it might be the subject of an action, as being a libel on or disparagement of the edition. (e) (a) Sweet v. Maugham (11 Sim. 51). (b) Murray v. Boque (1 Drew. 361); Pike v. Nicholas (20 L. T. N. S. 908; 38 L. J. 529, Ch.). (c) Fullarton v. McPhun (13 Scotch Sess. Cas. 2nd Ser. 219). (1) Seeley v. Fisher (11 Sim. 581). (e) Id. 583. |