Goldmark v. Kreling

Sabin, J. I do not deem it necessary to review at length the history of this case, as it is certainly very well understood by counsel, and probably by the bar who have been in attendance. We deem the ease a very important one. I believe .it is the first case of the kind that has ever been brought in this court. While innumerable cases have- been brought on copyrights and patents, etc., I believe this is the first case brought in this court, or, possibly, upon this coast, wherein a complainant has sought to restrain a defendant from, producing a play, or any matter of this kind, not upon copyright, but upon common-law right. I have been inclined .to look at this case very much from the standard of eases that are brought upon patents and upon copyrights. I am inclined to think [351] there is a distinction in the cases, and nearly all the casos cited to the court during the argument on this matter have been cases upon copyrights or patents. There have been, perhaps, three or four cases cited to the court very similar to this, where parties have sought to enforce their common-law rights. They are different, however, from this case, in this: In those cases it was upon motion and argument before the court whether or not an injunction should issue, and not, as in this case, where no argument has been made before the court, as to whether or not an injunction should issue. It was conceded in this case, virtually, at least, that it was a proper case for an injunction to issue. No opposition, as I understand, has ever been offered to its issue. There lias been no contest on the sufficiency of the bill in this case; therefore, the injunction issued regularly thereupon. The only question really before the court, as 1 observed yesterday, is, was the order made by myself on the sixteenth of this month, dissolving the injunction upon the defendants’ giving security, under all the circumstances of the caso, a complete and full indemnity to the complainants in this case? I do not care to review at all my action in regard to the sureties in this matter. I merely desire to say now that the bonds tendered in this matter, thus far, are not satisfactory to me; nor am I at all satisfied with the manner in which the matter was conducted. I think bonds could very easily have been procured by complainants. It was only a small amount,—§10,000,—and I have merely to observe now that I do not think the security thus far offered in the case by complainants was such as the court ought to have accepted. I think that my action in that respect was entirely correct. Of course, when a bond is given, it is given in good faith, and for indemnity to the parties who may suffer injury in the action, if the complainant should not succeed in liis case. Without any further remark on that, I have merely to say that I do not think the bond afforded the security that it was the duty of the court to enforce in a case of this kind. But I am not wholly satisfied that the indemnity afforded by the order of the court, that the respondents give a bond of $10,000, is a full and adequate remedy for the complainants in this ease. As I observed, this case is different from a suit brought to restrain an infringement of a patent, or of a copyright, and there is great force in the point urged, that if any parties are permitted, in violation of complainants’rights, to produce this play, it may, and possibly would, cause irreparable damage to the complainants, if they are the lawful owners of this opera of “Nanon,” and they only have the right to produce it. As the matter now stands on the bill, unquestionably they are the lawful and exclusive owners, and have the exclusive right to produce it. There is also, to my mind, great force in the suggestion that the owner, as in this case, of a play or opera, or other property not protected by patent or a copyright, is entitled to select his licensee. One party might produce this individual opera, and, perhaps, the [352] •complainant might suffer no very great damage. It might be an advantage in the way of an advertisement, or otherwise. Another party might produce it, and it might be of the very highest detriment to the complainant, and absolutely ruin its production elsewhere. As to who shall produce it, even if, as in this case, the parties owning it do not produce it, but merely license other parties to produce it, they have the most indubitable right to say who those parties shall be. I am inclined to think that, perhaps, I gave too much weight to the idea that in the giving, of indemnity by these respondents they were giving ample security to the complainants. If I was in error in that, of course the order should be corrected. We have given this case unusual attention. I have invited Judges Sawyer and Hoffman to sit with me. I have desired to be guided by their very large and varied experience in matters of this kind, for my own experience has been somewhat limited, and this is the second argument I have ordered on this matter. We have given it very careful and anxious consideration, not only to be right as to these complainants, but to be right as to any and all parties,—to establish the true and correct rule. I am inclined, then, as I say, to think that perhaps in the order made by me on the 16th I may have overestimated the security I was giving to the complainants in this case; that perhaps I should have given them still further time to have procured sufficient bondsmen. It is true, parties offered on that day, about the time the court was announcing its opinion, to furnish a certified check in the sum of $10,000. It was either offered at that time, or to be ready by 2 o’clock. I declined that, at the time, for the simple reason that I thought sufficient time had been afforded them, and that the security which I would require the respondents to give would be ample indemnity to complainants. I now think, under the authorities, and under what may occur in this or any like case, that that indemnity is not full and ample. I am inclined to the opinion that nothing but an injunction in the first instance will reach the case.' A motion can always be heard either on the coming in of the answer, ora motion can be heard at any time to dissolve the injunction on affidavits. Of course no steps of that kind have been taken in 'this case. It stands merely on the bill as presented, without objection made to the bill. Mr. Cope. We could not have done that without waiving our objection to the bond. Judge Sabin. I do not think that would have obtained in this court. In any event, the court, in justification of itself, would have required good security to be given. I would have given you an order to show ■cause on these sureties at anytime. This might often happen. You might give a bond which would be ample to-day, and three months hence a surety might die, and an order to show cause would be granted why you should not produce further security. An offer was made the other day by complainants in this case to deposit gold coin in court, [353] if the court should order it, or a certified check. If the money should be paid into court it would have to be paid into the treasury, and it is considerable trouble to pay it in and get it out. A check, therefore, is more satisfactory. I think, therefore, the order, as made the other-day, should be vacate,d, or at least modified, and the order of the court will be that the order made on the 16th, dissolving the injunction, be vacated; that the injunction heretofore issued be continued, upon the complainants’ depositing with the clerk to-day, by 3 o’clock, a certified check payable to the order of the clerk in his official capacity, as clerk of the court, in the sum of $10,000, upon some solvent bank in this city. Leave will be granted to the complainants at any time, upon notice, to withdraw the check, upon giving good and ample security in place of it. Notice of the application and the names of the sureties intended to be offered must bo given. I do not want anycpiestion to arise again as to tho examination of sureties, and their sufficiency.