Shook v. Rankin

DRUMMOND, Circuit Judge. It seems to me that the complainants are entitled to an. injunction to prevent the defendants from performing the work which has been translated from the French of D’Ennery and Cor-mon by N. Hart Jackson into English, and adapted by him for representation on the stage in this country. The court can go no farther in deciding a motion of this kind than the proofs of the case clearly warrant. What are the facts established here beyond controversy? They are these: D'Ennery and Cormon were the authors oí a drama in the French language called “Les Deux Orphelines”; Jaekson translated it into English and adapted it to representation on the stage. This was with the consent of the authors. After this was done, he applied under the law for a copyright; and the question is whether there was any valid objection to his obtaining a copyright for the play, thus translated into English. I do not see that there was. He was the translator of the play. He adapted it to representation on the stage, and was, in the sense of the law, the author of that for which he obtained a copyright. No one could complain of this, except the authors of the play in French, and it affirmatively appears that they assented to this action on the part of Mr. Jackson. Then I do not see why he was not protected under the law for his translation and adaptation of the work to the stage, and of which he was in one sense the author. That being so. has the defendant infringed his rights by performing this unpublished drama? To decide that, it is only necessary to determine the effect to be given to sundry affidavits which have been introduced in the case — those of Mr. Shook. Mr. Palmer and Mr. Jackson. I think it is proper for tlie court to receive these affidavits for the purpose for which they were filed. It is well known that the courts are much more liberal upon this subject than they were in former times. They do not reject affidavits simply because there may be some clerical error or omission, provided it appears that they were intended for the case which the court is called upon to investigate. It affirmatively appears. I think, that these affidavits were made for the purpose of being used in this case; and conceding that they did not at the time contain the proper title of the cause, still they were made and for — 1337 — warded- to counsel, who may be presumed ■to be authorized by the parties to givé -the proper character to them by stating the name of the cause in which they were to be vised. It seems to me that it would be adopting a very rigid rule, and one hardly in accordance with the liberal practice of the present day, to declare that the affidavits' -should be rejected because at the time when the affidavits were made and signed by the parties, the name of the cause was not stated, provided they knew that they were to be used in the cause, although they did not know • the technical description of the title of the same. NOTE. The question of the right to UBe the Oxenford translation, came up subsequently before Judge Drummond on a motion to attach McKee Kankin for contempt, .and he decided that the defendants had the right to use that translation, but that they must be careful not to interpolate any phrases of Jackson’s, translation. The consent of an author to publication abroad places him in the position of a foreign author, and is -an abandonment of his rights under our statute. Boucicault v. Wood [Case No. 1,69S]. The representation of a play upon the stage is not at common law a publication, nor is it a dedication to the public. Crowe -v. Aiken [Id. 3,441]. The author’s rights at common law have not been taken away or limited by any existing act of congress. Id. Then, these affidavits being received, as I think they should be, there can- be no doubt that these defendants — the -principal defendants -who have performed this play — have been using the translation of Mr: Jackson; as adapted by him for representation on the •stage. They acquired their familiarity with it in consequence of the direct action of the translator or his assignees, and it would be hardly fair under the circumstances of the case that they should be permitted to go on and use it contrary to the wishes of the owners. It has been said that they do not propose to use it-any longer; but in view of the facts the court cannot assume that they will not •do so, or refuse an injunction on that ground. It is' not controverted that these complainants are Jackson’s assignees, and are entitled to all his rights. I do not think that,’ because Mr. Jackson, or, possibly, the complainants. may have been mistaken as to their legal-rights, or as to the particular character -'annexed to their rights of property subsisting in this drama, the court should be prevented from acting in this case. The court will not go into, a collateral issue upon this question •of injunction. The only point is whether complainants have rights which have been violated by the defendants, arid whether Ihey are entitled to an injunction ■ upon the •facts as they are presented in the case. ■I have no doubt that they are, and therefore an injunction will issue, restraining the •defendants from performing the play, which has been translated from the French of D’Bnnery and Oormon, by N. Hart Jackson, and adapted by him for representation on the1 stage, or any part thereof. . As to the romance of the “Two Orphans”: It purports to be a story in narrative form, founded, as I suppose, upon the play of the ■“Two Orphans”; but, so far as I have been able to examine it, I -do not see, even conceding that its publication was made with the consent of the complainants, that it deprives them of the right to the play of the ■“Two Orphans,” as translated by Mr. Jackson. It would take much time for me to go through this story in detail, and compare It with the drama, which I have not had an •opportunity of doing. But so far as 1 have looked at it, I think it does not deprive the complainants of a right to an injunction on that account. As to the translations of the French play, • I kriow there may be certain phrases which may be identical in them, as translated by Jackson and Oxenford. There are or .may be the same translations of some French words; but, of course, the fact of there being identity of a few phrases does not make them one play as translated. It always must be a question to be decided by comparison whether or not there is any essential part of the play taken as translated by Mr. Jackson.' What I mean is, that they have no right to take any part of this, the work of Mr. Jackson, and use it So far as I can see, the translations are made by two distinct persons, and independent of each other. I do not, therefore, touch the Oxenford play in this decision at all. The order will be that the defendants shall ■ not use the whole or any .part of Mr. Jackson’s translation — the drama which he has translated arid adapted for representation on the stage in this country. As at present advised, I shall not enjoin the defendants from using Oxenford’s translation.