The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1868-12-18
NEW YORK CITY.
THE COURTS.
ru,rfo STATES DISTRICT COURT.

nWTeD STATES DISTRICT COURT
D., - ,he safer Dark" Controversy
p.In,er & Jarrett Restrained from Repre-.
.an,ius the Railroad Scene in Their Play.
Before Judge Blatchford.
.uousfia pap rs. Henry d. Palmer ana Henry G.
,,yre,;-This is an application for provisional IN
upctlon 10 restrain the defendants from the public
performance and representation and from the sale
for dramatic representation. OF scene called the
.rairoad scene- in play called "After Dark"
Judge Batchford, after reviewing the relative status
of the parties in the suit the law OF copyright APP
plicable to dramatic performances and representa-
ton the cases in the law books similar to this. the
decisions rendered thereon, &C., concludes lengthy
decision as follows:-
Now in consonance with the principles laid down
by Lord Lyndhufst the plaintn Is as much entitled
10 protection In respect OF substantial and material
original part of his railroad scene he is in re-
spect OF the whole Under the act OF 1885, construed
In connection with the act OF 1881 he Is entitled to
be protected against piracy in whole or in part by
vending. Although the act OF 1851, in regard to
printing publishing and vending, uses the words sin
whole or IN part and the act Of 1855 in regard to
Of 1856, by referring does, to the right conferred
by the act OF 1881 the sole right to print and pub
lshn the copyrighted composition, when such right
s the face Of the act OF 1884, the sole right print
and publish lin whole or in part" and by
perform or represent the same, or cause it to
be acted, performed or represented on any
right to represent in whole in part. All that is
substantial and material In the plaintiffs railroad
scene' has been used by Boucicault, in the same
order and sequence OF events and in manner to
convey the same sensations and impressions to those
who see II represented as in the plaintiffs play,
Boucicault has indeed adopted the plaintiffs series
OF events to the story of his play, and in doing
has evinced skill and arc but the same Is made
IN both plays OF the same series OF events to excite
by representation, the same emotions In the same
sequence. There is no new use, in the sense OF the
plaintiffs srallroad scenen The railroad scene,
In Boucicault's play contains everything which
attractive as representation on the stage AZ Sin IN
the case or the musical composition the air is the in
vent Of the t author and piracy Is committed
vention consists is incorporated in another work,
without any material alteration in sequence OF bars
60 in the case OF the dramatic composition, designed
or suited for representation the series OF events d.
rected by the author in any particular scene is his
the whole merit OF the consists is incorporated
IN another work without any material altera
of events or in the sequence OF the
events in the series. The adaptation Of such
ferent language from the characters and language in
the first play Is like the adaptation Of the musical
subject OF nvention-that which required genius to
construct Il and set 1t in order-remans the same in
the adaptation. mere mechanic in dramatic COM
position can make such adaptation, and 1t is piracy
II the appropriated series of events when repre-
different characters using different language, IS
recognized by the spectator through any OF
addressed, as conveying substantially the
same impressions to and exciting the same
emotions in the mind, in the same
quence or order. Tested by these principles, the
-'railroad scenen in Boucicaults play Is undoubt-
edly, when acted performed or represented on
stage public place. an invasion and Infringement
OF the copyright Of the PLAINTIFF in the "raroad
scene IN his play. The substantial Identity between
that the latter one had been adapted from the earlier
one. The charge OF actual plagiarism on the part Of
m in 10 nnf II Ia
possible that the resembances are accidental and
that the differences are not merely colorado, with
view TO disguise the plagiarism, The true test as to
whether there Is piracy or not Is to ascertain
whether there Is sarvile or evasive imitation OF
original compilation made up from common ma
terials and common sources, with resembances
which are merely accidental or result from the
nature OF the subject. Emerson VS.. Davies
story, 76s, 1897 Nothing that has been adduced
the plaintiffs copyright the question OF the origi
nality and novelty Of the s'railroad scenen In his
play Ihe sale a,e o. play to other per-
the seller participant In causing the play to be
publicly represented An Injunction must therefore.
Issue restraining the defendants from the public per-
Torrance or representation and from the sale for
public performance or representation, OF the rail
road scene' IN the play OF "After Dark" or Of any
scene in substance the same as the railroad scene"
In either CT the two plays as such scene is herein
defined.
Thomas s. Alexander, William Tracy and J. +.
Daily for the plantR william D. Booth and ]. w.
Clark, OF Boston, for the defendants.
Iut NutsOn ~ lflry DLstkitty NHse-lue
Defence.
Before Judge Blatchford.
The United states as. The RectJyiag Disttue1y Nos.
III l73 ana l75 Christopher Street.-The trial OF this
case was resumed yesterday with the examina
ton OF witnesses for the defence At the opening or
the court there was the usual array OF c0un-
sell OF witnesses and parties interested that have
watched the proceedings from the first day or the
trial. This Is the fourth day, and IL is evil
dent that the trial VIII occupy the whole OF to-day
II 1t shall even be concluded at the rising OF the
Court then.
Several witnesses sworn for the defence were on
the previous trial witnesses OF the prosecution and
their evidence varied but very little from that given
BY them before, the main OF which was July reported
In the HERALD at the time.
The case was adjourned till this morning.
New Why Of Running on Whislsey.
Jacob Dupuy and Moses Dupuy were yesterday
brought before Judge Batchford TO execute bonds
Tor their appearance for trial when called on. The
circumstances OF the case are:-The defendants were
some time ago indicted by the Grand jury OF the
United States Circuit with having rescued and run
off with fifty barrels of distilled spirits from the
distilery. Ffy-fourth street, while the premises
and the spirits In question under seizure by the
government for violation OF the Internal Revenue
law. The parties gave bail TO appear for trial In
$l,500 each.
UnTtD STATES COMMISSIONERS COURT.
A Coasfing Captain in Trouble.
Before Commissioner Osborn
Captain urah Lawson. OF the schooner a. X.
Thompson wa yesterday arrested by Deputy Mar
shais McCay and Dwyer, and brought before CON-