#### HOFFMAN v. LE TRAUNIK.

(District Court, N. D. New York.

December 8, 1913.)

1. Copyrights (§ 85*)—Infringement—Old Material—Preliminary Injunction.

Where complainant complained that defendant appropriated disconnected sentences or lines with “gags” from complainant’s copyrighted monologues and used them in different monologues of a similar character following the same general idea, but defendant answered under oath that the lines and expressions so appropriated were not originated by complainant but had been used on the stage prior to the writing of complainant’s monologues, complainant was not entitled to a preliminary injunction; Ms damage not being serious and no public interest being involved.

[Ed. Note.—For other cases, see Copyrights, Cent. Dig. § 78; Dee. Dig. § 85.*]

2. Copyrights (§§ 12, 16, 17*)—Matters Subject to Copyright—Requisites.

To he entitled to copyright, matter must .be. original, meritorious, and free from illegality or immorality, and though a new and original plan, arrangement, or combination of materials will entitle the author to copyright, whether such materials in themselves are new or old, the work must be original in the sense that the author has created it by Ms own skill, labor, and judgment without directly copying or evasively imitating the work of another.

[Ed. Note.—For other cases, see Copyrights, Cent. Dig. §§ 14, 15, 17, 18; Dec. Dig. §§ 12, 16, 17.*]

3. Copyrights (§ 58*)—Infringement—Copying.

Copying the whole or a substantial part of a copyrighted work is an essential element of infringement; it being sufficient that mere words or lines have been abstracted.

[Ed. Note.—For other cases, see Copyrights, Cent. Dig. § 54; Dee. Dig. § 58.*]

In Equity. Suit by Aaron Hoffman against Sam Le Traunik, sued as Francis Murphy and Jean Bedini, for-alleged infringement of copyright in the use of monologues. On motion for preliminary injunction pendente lite.

Denied.

Nathan Burkan, of New York City, for complainant.'

Dittenhoeffer, Gerber & James, of New York City, for defendants.

*

For other cases see same topic *&*§ number in Dec. & Am. Digs. 1907 to Sate, & ttep’r Indexes

RAY, District Judge.

The complainant sues to enjoin the defendants from reciting and causing to be recited in public, vaudeville, or elsewhere the following

> “My dear Friends and People Workers: It give me great pleasure and joy to stand and undress myself before this large aggravation. You know, my friends, that I do not come out here before you as other political speakers, with falsehoods and lies in one hand and the stars and stripes in the other. I stand before you with an open face and a free mind, a poor, honest, sterilized citizen. I am for the public and against the people. I am glad I am capable of being a Pbilospede, and that I am pickled out to be a-. This coun-

> try is the finest country in the whole United States, a country full of mountains, valleys, and bluffs. Look at the wonderful men we have in this country. Roekenfeller says anybody can live on $18 per week. He don’t have to .tell us that. Let Mm tell us how to get the 18. The poor man has the same privileges as anybody else, run around in automobulls. Look at our streets. You don’t, see half the poor people on the streets that you used to see. Half *376of them are run over and the other half are afraid to come out. ' Look at our battle ships, the largest invention in the world. There is the great boat Muretania and the Lusitania with all the latest style equipments, two kinds of steam, hot and cold; we got telephones and elevators on the boats. If the boat is out in the middle of the ocean and starts to sink, the passengers don’t have to drown; all they have to do is to take the elevator and go upstairs. Look at the wonderful big navy that the United States had got. We may not have the biggest navy in the world, but look at the big oceans we got. Last year we appropriated $4,000,000 for the navy. There are million people in the United States. Now that figures up to be a nickel a piece. What the hell kind of navy can you expect for a nickel. Look at the great men we have in the House of Misrepresentatives. We got men getting $5,000 a year, and what do they do. They set around and tell jokes to each other, and out of the salary of $5,000 per year they spend $6,000, and by the end of the year they have $100,000 saved up. Look at our weather bureau department, a man who tells us what kind of weather we are going to have, and by golly he doesn’t know himself. If he did, he would lose his job. He gets $10,000 a year for telling us when it is going to rain. He gets up in the morning, enjoys breakfast, and smoke nice fat cigars and looks out of the window and says possibly nice weather to-day and then takes his umbrella and goes out for a stroll. Look at the large principals we got. As soon as a child reaches the age of six we send him off to school and he granulates, goes to scollege for ten years, and when he gets through he gets a job as school teacher at $60 per month, and when the janitor of the same school is getting $90 a month. Look at the high cost of living now. Eggs 600 a dozen and rotten ones at that. Eggs are so scarce now that when we get good healthy ones we think there is something wrong with them. It is alright to pay that much for good eggs, but not when they are in their second childhood. Look at the price of meat. Meat is getting so high that it will soon be worth a lot more money, and pretty soon we won’t have any money, instead we will be carrying around pieces of meat. You go into the bank, and instead of depositing a hundred dollars we will deposit a sirloin steak and for change we will be getting pork chops and sausages. - This shows you what a chance a poor man has got in éourt. If the poor man steals a couple of dollars, he gets ten years and bread and water. If a corporation steals $10,000,000, they get 10 lawyers and a banquet. But there is one thing I can say in favor of our judges. If a poor man is arrested for committing a crime and he hasn’t got a lawyer to defend him, of course the poor man gets the prosecuting attorney and he tries to push him in. The judge looks around and picks out a lawyer for him, you know, one of them good shyster lawyers, 90 years old and never won a case, but without that lawyer a prisoner has a chance to go free, but with such a lawyer the least he can get is life. That’s why so many criminals confess, because they don’t want to take a chance with one of those lawyers. Look back in the olden times in 1492 when Christenpher Columbum—when Christman Col—the time of 1492 when Christopher Cockeye Columbus— Do you know what I am talking about? I don’t. Every time I come to say that my tongue gets twisted around my eye tooth and I can’t see what I am talking about. You know the time, the time when Warrington was washing the Hellaware, you know the father of Christenpher Cockeye Cucumbers. Look in the olden times, look at the great men what we have, Abraham Washington, George Lincoln, and Useless Grant. These three men fought for eight long years with England to give us back our freedom and think of it, if it wasn’t for these men there would be 80,000,000 people walking around the streets to-day without a Constitution. Look back to the time of Adam and Evil. There’s a man what had everything his he'art desired and the damn fool had to get lonesome. Now that election time is over, we have elected a new president; we got to admit Wilson made a good race. Roosevelt said he .made Wilson win. Wilson said Bryan made him win. At the time of the convention at Baltimore, Bryan got up and says, ‘My friends, if you don’t nominate Wilson for President I will run;’ and they thought he might take a chance so they nominated Wilson. But we must all agree Roosevelt beyond a doubt was the greatest President *377this country ever had. There is no doubt of it. He admitted it himself. You know Roosevelt says he never drinks, but look at all the animals what he seen in Africa. Look how hard it is to live now-a-days; you can’t even rent a flat. When you do rent one look at the trouble what you got. Roosevelt says, ‘Increase the population, have children;’ but the landlord won’t allow it. What’s the use of making a fool out of the flats. Roosevelt says he don’t believe in race suicide. He believes that all young people should get married and raise large families, and then he wants the credit for it. Then the report comes out that Ohas. Murphy isn’t going to drink any more. He says he isn’t going to drink unless he has Sulzer on the side. Now comes the Prohibitionists’ Party. The Prohibitionists say, ‘Down with drink.’ Well, that’s alright, down with it, but keep it down. The Prohibitionists are progressing more and.more every day. They are closing up every saloon in the country. You can’t get in any saloon on Sunday. It is impossible; its too crowded. You know it is drink that breaks up many a home. At last a woman comes out with a great idea, a wives’ union, think of it, a union for wives. A young couple.gets married and just as they get settled down a walking delegate comes out and orders a strike. Just imagine hundreds and thousands of wives walking the streets and scabs taking their places.”

[1] The complainant has copyrighted the monologues in parts 1 to 14, inclusive, entitled “The German Senator” and “The German Politician.” Each part is a separate and distinct monologue, and each part consists of some seven or more typewritten pages, of what the moving papers call “gags” and “jokes.” These are literary productions in the sense that they consist of written mattet. They come within no definition of “literature” proper but come under the head probably of “light literature,” which is said to be “books or writings such as can be understood and enjoyed without much mental exertion; writings intended primarily for entertainment, relaxation, or amusement.” These monologues “jump,” so to speak, from one thing or subject to another. They contain such expressions as (see Monologue 1, p. 3), “I tell you when I look back to the early hysterics of this country, it fills my heart up with indigestion,” etc.; and some of the expressions used suggest good things, but most of them suggest the opposite.

The complainant alleges that he not only originated or composed these disjointed monologues as a whole but that he is the author of all these expressions, etc. He does not claim that defendants have taken and recited or produced any one monologue or any considerable part of any one of these m'onologuesy but that they have taken and substantially reproduced by publicly reciting same, a line or two from one, and two or three lines from another, and so on, thus making up the monologue above quoted, and thus and thereby appropriating the most valuable part of several of these monologues.

An examination of the complainant’s monologues, referred to, shows that the monologue recited by defendants (Exhibit O) is made up in large part of sentences or lines found in these various monologues in substantially the same or similar words. These sentences, the complainant claims, were original with him. The defendants emphatically deny this and allege that these sentences, expressions, and ideas were old and well known when complainant made his monologues, and that they originated with others and were and are commpn property. There is no claim that the complainant’s monologues as a whole were old or common property, and there is no claim that defendants have appropri*378ated or recited or used any one or all of them. There is no similarity between the complainant’s monologues and the monologue used by the defendants, aside from the particular phrases or sentences gathered from all in the manner referred to. In monologue 3, page 1,^ line 1, complainant says, “My dear friends and people workers”; and in lines 2 and 3, “I am overstewed with pleasure to have the honor to stand here and undress myself before you;” and in monologue 14, page 1, lines 1 and 2, he says, “It affords me pleasure to be disabled to stand up here and distress such a large congregated aggravation.” Defendants’ monologue contains the following: “My dear friends and people workers,” and also, “It gives me great pleasure and joy to stand and undress myself before this large aggravation.”

The complainant claims to have originated the idea “people workers” and of using the word “undress” for “address” and “aggravation” for “aggregation.” The complainant says (monologue 6, page 1, lines 4 and 5), “I do not come before you like other political speakers with false pride in one hand and a star strangled banana in the other,” while the defendants say, “You know, my friends, that I do not come out here before you as other political speakers with falsehood and lies in one hand and the stars and stripes in the other.” , In monologue 11, page 1, line 9, complainant says, “I come before }^ou as a sterilized citizen of the greatest country in the universe,” while defendants say, “A poor, honest, sterilized citizen.” The complainant claims the merit of first applying the word “sterilized” to “citizen.” In monologue 12, page 11, lines 20 and 21, the complainant says, “They want to elect an Indian to misrepresent them in Congress, in the House of Misrepresentatives.” The defendants say in their monologue, “Look at the great men we got in the House of Misrepresentatives.” Complainant claims to have originated the idea of using “misrepresentatives” for “representatives” in speaking of the lower house of Congress. So, in speaking of rotten eggs, this condition is described by complainant (monologue 2, page 15, lines 8 and 10, and monologue 4, page 12, lines 6 and 9) as “second childhood,” and defendants do the same. The merit claimed is in applying the words “second childhood” as descriptive of decayed eggs. These are samples of the similarities.

It may be proved on the trial that the complainant originated all these expressions, and the court may be of the mind that no one but the author and his licensees should be permitted to use them; but, so long as the defendants aver under oath that they were not new with complainant but common property and used on the stage prior to the writing of complainant’s monologues, it seems to me that a preliminary injunction should not issue. No public interest is involved, and the damage to the complainant will not be very serious. The answers are served, and a term of court will be held at Albany February 10th, when the suit can be tried if the parties desire. In American Malting Co. v. Adolph Keitel, 209 Fed. 351, decided November 20, 1913, the Circuit Court of Appeals, in this Second Circuit, reiterates the familiar doctrine that “the rule is that preliminary injunctions will not issue except in the clearest cases.” It appears from the moving papers that defendant Murphy at one time had a license agreement for using one *379or all of these monologues. He thus, it is claimed and not denied, became familiar with complainant’s monologues. It is claimed the defendants took therefrom the most valuable thoughts or expressions. This may be true, but if it be also true that these expressions used by defendants and found in defendants’ monologue were not new with complainant, not originated by him, then the defendants are guilty of no wrong in using them as they do, for there is no pretense that any one of the complainant’s monologues, as a whole, is used or that any substantial part of any one of those composite ones is used.

[2] To be entitled to be copyrighted, the composition must be “original, meritorious, and free from illegality or immorality.” And “a work, in order to be copyrighted, must be original in the sense that the author has created it by his own skill, labor, and judgment, without directly copying or evasively imitating the work of another.” However, “a new and original plan, arrangement, or combination of materials will entitle the author to a copyright therein, whether the materials themselves be new or old.”

[3] But here the defendants have not copied substantially the plan, arrangement, or combination of materials found in complainant’s monologues or in any one of them. Conceding literary or artistic merit in the complainant’s monologues growing out- of some original matter combined with old matter in a new and an original plan, arrangement, or combination, the defendants do not infringe, not having used that plan, arrangement, or combination, unless they have abstracted and used some of the complainant’s new matter and so much of it as to authorize the finding that there has been a copying or a taking.

> “Copying tbe whole or a substantial part of a copyrighted work constitutes and is an essential element of infringement. It is not confined to literal repetition or reproduction but includes also the various modes in which the matter of any work may be adopted, imitated, transferred, or reproduced with more or less colorable alteration to disguise the piracy. But, on the principle of de minimis non curat lex, it is necessary that a substantial part of the copyrighted work be taken.” 9 Cyc. 939, 910.

If there is any piracy in this case, it consists in the taking and use of these isolated expressions or “gags,” as they are called, and to constitute infringement it must be established by the complainant that they were original with him. The burden is on him to show this, and with complainant making affidavit one way and the defendants the other, arid a sworn answer also interposed, a clear and satisfactory case on such a subject is not made for the drastic use of a preliminary injunction.

The motion is denied, but the defendants must be ready for trial af the A’lbariy term of this court or the motion may be renewed on the same and additional papers.