The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1865-10-08


Of himself ana this deponenI In compliance win
decree suggestion Court paid 70 the plaintiff The
alton agreement the defendant should have the
right 20 and represent the said play Afterwards Will
Out n. or limitation oy ss gas made as above
mentioned, the said play has been acted requen.y 20
various cities OF the United States from ne ysaI p heIo
down to this period particularly in the cities o. rnlia
dephia Washington Baltimore and Boston, and this de-
ponent has himself acted the part OF Asa "a
the said play in the cities Of Philadelphia Damofe ana
| Washington on many occasions
That the play also been acted constantly ana
frequently at various London and In different
cities in England from the year 1860 down 70 the present
period
said sum OF money was paid the plaintiff as before
mentioned namely the period Of six and half years,
during which time the play nas oesn c%ns iep,s
asserted any right Of ownership property In the said
play or nerered in way 70 prevent the acting and
That AZ the time Of alleged assignment sale Of
the Of said play, by the said Tom Taylor
TO the plaintiff be was an alien, resident England
Sworn 70 before me this eth day Of October 1855.
Rom NJ. LAKE, Notary Public New York county.
AFFIDAVIT OF MANAGER STUART.
CITY and Cbusty Of NeU York, William Stuart one
Of the above named defendants being duly sworn, de-
That he Is the sole lessee Of the Winter Gsssn thea
tire in the city OF New York. that n is true stated
in the complaint Of the plaintiff thas the play entitled
Our American Cousin has been represented and IS In
the course Of being represented at the said Winter Garden
1 theatre.
Il
allotted from manuscript OF such play in the pos
session Of the defendant John Clarke and which this
deponent believes Is his sole property and that such
play has been In many respects altered and amended by
the said John Clarke and improved by him. since the
| said manuscript came into his possession
That this deponent in causing the said play Of Our
American Cousin represented at his theatre has In
way adopted used any manuscript alleged TO be the
property Of the plaintiff, borrowed any portions OF
the plaintiff in her representation OF the said drama OF
Our American Cousin at her theatre in New York or
here I'm has
TO the said John Clarke for the purpose OF representa-
| tion.
plaintiff in which she states that she obtained assign
ment and transfer about the Goth day OF September
1885, Of the comedy dramatic composition called at
various times Our Cousin from the Backwoods Our
Country Cousin, and Our American Cousin, and the
not seen nor Is he TAINTED in any way with the said
manuscript assigned by the SAID Tom Taylor to the
plaintiff But he states and will be prepared to prove
the trial OF this case, that the said drama OF Our
American Cousin during the last five years has been
played and represented at various theatres in many OF
the large cities OF the United States and among others
| in Philadelphia, Baltimore, Washington and Boston,
without interference assertion on the part OF
This orber states tbai no has rsad
graph IN the affidavit made by William +. Brough which
states THAT the said defendant Stuart wholly nsolv
deponent says that such statement by the said William
f. Brough is false and untrue and that he has ample
means TO satisfy and discharge any claim which the
w. STUART
Sworn TO before me this 9th day OF October 1865.
RoBr. NJ LAKE, Notary Public New York county
AFFIDAVIT OF MANAGER wHEATLEY.
State Of New York, city and County Of NeU York g.
William wheatley, lessee and manager Of Nblos Garden,
deposes that he lessee with Mr.. John s. Clarke
Of the Arch street theatre Philadelphia in the fall Of
the year 1853 the period which Our American Cousin
an injunction TO restrain the performance thereof
That the copy from which said play was performed by
this deponent and the defendant John s. Clarke, was
purchased by him and SAID John s Clarke from Mrs.
Ssbee, the widow Of Joshua Sisbec, the celebrated
representative Of Yankee characters who he believes TO
have been joint author with Tom Taylor Of said piece Of
Our American Cousin, and to have contributed most Of
the elements OF its success.
That the Court refused such injunction applied for by
Miss Laura keene. the ground that she had copy
right therein, but stated In addition that considered
Miss Keene entitled to compensation for certain add.
ions or gags which had been introduced by actors M
her employment at the time
That in pursuance OF this decision said William Wheat
Ave hundred dollars and thereby obtained the right to
perform said comedy without limitation restriction
from that date.
That the Court also decreed that the plaintiff should
grant license under her hand and SEAL accompanied
with fairly written copy Of the said comedy
That although the said sum Of five hundred dollars
paid by this dcponent and John s. Clarke to the
plaintiff In compliance with the decree or suggestion Of
ponen or the said John Clarke such manuscript copy
That since such arrangement made the said play
has been represented and acted In all the large cities Of
the United States FOR the last years without any
claim assertion the part Of the plaintiff Of any right
Of ownership or property therein. W. WHEATLEY.
WV. H. Posr. Notary Public, New York city and
county, 66l and sos Broadway.
After reading these afhdavts and making running
comments thereon, Mr. james submitted the following
reasons why the injunction should not be granted
Firs-Thc plaintiff has not established her tito TO the
ownership of the play the defendants prior tte
and this issue should be tried by jury before the in
junction should be granted The right Of the plaintiff is
only supported by her complaint, and conradicted
by the aaidavits Of the defendants and others.
Second-Any injury alleged to be sustained by the
upon this principle the injunction should grned
Th1d-The defendants prepared to try an issue
to the right TO the property in the play
F0mgh-Thc defendants show clearly by their afdavits
that the plaintiff In consideration OF five hundred dollars
paid to plaintiff 1852 sanctioned and authorized the
performance by the defendants OF the play.
FJh-Thc defendants show clearly by their afIdavits
that since that arrangement the defendants have acted
the play constantly in cities OF the United States
for above Ave years and in order sustain injunction
for an rrcparable injury plaintiff ought not to be guilty
Of any idches
Siri4-Ths action being brought in State court, the
plaintiff only claim either author assignee Of
the author and must have the exclusive right of the pro-
perry In the play This IL is clear she has for the a
davits show that the play has been acted constantly
In England under leave and license from the author
Seuenfh-under the law OF this state the author Ia
only entitled 10 injunction 10 restrain the publication
Of his works or plays After publication his remedy is
under the Copyright act Of the United States.
Eighth-In the United States author has exclu-
siye property in published work except under act
OF Congress; II does not exist mt common law.
Nf,h-In this there has been publication by the
play being represented and publicly acted In the United
States for than Ave years before the application for
this injunction The remedy Of the plaintiff therefore, II
any exists not at common law but solely under the Copy
right statutes PASSED by Congress.
Tenh-The plaintiff having NO right Mt common law,
from not having the exclusive property In the play, and
applying for this injunction after publication for i've
year, her remedy Is under the acts Of Congress Alone
and she has right which she can enforce
In State court and this court therefore, has jurs
dcon in the premises No injunction, therefore, should
be granted
Eiepcnfh-The plaintiff having applied for an njunc-
ton against the defendant Clarke In the Circuit Court
Of the United States for the Eastern district OF Pennsyl
vana and that having decreed that the defend
were for specunary compensation 10 have license
under her hand and to authorize and enable them
represent the said play for the future without restriction
limitation, and the defendants having in compliance
with such decree paid 10 the plaintiff the Of $500,
which accepted by her such decree and its terms
binding forever upon the plaintiff.
.unrvurr ron