1841. Sweet v. Cater.

the exclusive right until he had sold the 2,500 copies; but he is not entitled even to that, under the agreement. If the plaintiff is supposed to have any exclusive right; for what length of time

is that exclusive right to continue? The error in this [*577] case has arisen from not distinguishing *between a right to copies of a book, and a right to the copyright of the book. The plaintiff, in all probability, has sold copies of the book in question to his customers, and also to other law-booksellers; and he has no more right to file this bill than every purchaser of the book has. The language of the Copyright Act (54 Geo. 3, c. 156,) makes it quite clear that no one but the author or the proprietor of the copyright of a book, can sue in a case of piracy. In this case, the author has not given to the plaintiff even the right to print the work; for the name of the person by whom the copies are to be printed, and the type and page in which they are to be printed, are expressly prescribed by the agreement. When the copies have been printed by the person and in the manner prescribed by the agreement, then, and not till then, does the plaintiff acquire any right to them.

Mr. Knight Bruce, Mr. Sharpe, and Mr. H. Sugden, appeared for the plaintiff; but,

THE VICE-CHANCELLOR, without hearing them, said: It cer tainly would be most extraordinary if after Sir Edward Sugden has been engaged in so many publications, and has filled the office of Lord Chancellor of Ireland, he should not be able to make a contract between himself and his bookseller.

The question is whether it is not manifest, on the face of the contract, that the plaintiff has a right in the copyright of the 10th edition of the Treatise on the Law of Vendors and Purchasers. The bill states that, in March, 1839, an agree[*578] ment was made by the plaintiff, with Sir *E. Sugden, by which, after reciting that Sir Edward had prepared a new edition (the 10th) of his Treatise of the Law of Vendors and Purchasers, and S. Sweet being desirous of purchasing the same, it was agreed that Messrs. Hansard should print 2,500 copies of the work, in type and page corresponding with the

1841. Sweet v Cater.

sixth edition of the Treatise of Powers, at the sole cost of S. Sweet; and S. Sweet should pay, to Sir E. Sugden, for the said 10th edition, the consideration therein mentioned. Then follows the way in which the work is to be sold. It is to be divided into three volumes, and to be sold to the public, for 31. in boards; but should it exceed 111 sheets or 1776 pages, a proportionate increase is to be made in the charge to the public, and a proportionate increase to be paid to Sir E. Sugden. Now, by this contract, there is an obligation which is binding on both parties. Sweet is to sell at a given price; and, therefore, Sir E. Sugden has bound himself to abstain from doing anything which might at all interfere with that act which Sweet was to do. Suppose that, before the 2,500 copies, which form the 10th edition, are sold, Sir E. Sugden, (to put a hypothetical case) should fancy that he had a right to sell another edition to another bookseller, with the immediate right of publication; I apprehend that this Court would certainly restrain him from doing so, on this contract. It is not merely optional, with Sweet, whether he will sell or not; but he is bound to sell, and to sell in a given manner. It is most probable that, when Sir E. Sugden drew this agreement, he was looking forward to the time when he might think it right to publish some subsequent edition; and he was taking care to impose an obligation, on Sweet, to sell; and, while he imposes that obligation, he is, himself, bound, at the same time, to perform his [*579] part of the contract, which is, not to interfere with the sale of the book.

I think that, upon the plain construction of this contract, Sweet has obtained a right, in the copyright of the work, to the extent that he is to be at liberty to be the sole publisher of it until the whole edition, consisting of 2,500 copies, shall be sold. He, therefore, is an assign of the copyright in a limited sense. Consequently the demurrer must be overruled.

The demurrer having been overruled,

Mr. Knight Bruce and Mr. Sharpe, moved for the injunction.

1841.-Sweet v. Cater.

They pointed out several passages in Mr. Hughes's work, as having been taken from the tenth edition of Sir E. Sugden's work.

Mr. Jacob and Mr. Willcock contended that Mr. Hughes's work was of quite a different character from Sir E. Sugden's, and could not be a substitute for it; that treating, as the former work did, of various branches of the law, it was allowable and even necessary to take some parts of it from a standard work like Sir E. Sugden's; and that, in doing so, Mr. Hughes had not transgressed the limits of fair copying; that some of the passa ges alleged to have been copied, were contained in the ninth and other prior editions of Sir E. Sugden's work; and, as the plaintiff sued as proprietor of the tenth edition only, he was not entitled to rely on those passages in support of his case; and that, at all events, the injunction ought to be granted, unless [*580] the plaintiff would undertake to try his right in an action at law.

THE VICE-CHANCELLOR:-In cases of this nature, if the pirated matter is not considerable, that is, where passages, which are neither numerous nor long, have been taken from different parts of the original work, this Court will not interfere to restrain the publication of the work complained of; but will leave the plaintiff to seek his remedy at law. But, in this case, it is plain that the passages which have been pointed out, have been taken from the plaintiff's book, and they are so considerable, both in number and length, as to make it right that this Court should interfere.

It was said that, with respect to some of those passages, the plaintiff had no right to complain, because they were contained in prior editions of Sir E. Sugden's work. But I do not think that that fact at all alters the case: for the entire copyright in all those prior editions, was vested in Sir E. Sugden, when he made the agreement with the plaintiff: and my opinion is that the effect of that agreement was to give to the plaintiff, as against Sir E. Sugden and all persons claiming under him, a right to insist that the matter contained in the 10th edition should not be published,

1841.-Seeley v. Fisher.

whilst he was performing his part of the contract, by selling that edition to the public. And, that being my view of the case, I think that, although the passages may be contained in some prior edition, yet, if they are contained in the 10th edition as well, the Court ought to prevent their being copied.

It was said that the injunction ought not to be granted unless the plaintiff would undertake to try his right at law: *and I think, if the defendants require it, that that [*581] term ought to be imposed on the plaintiff.

Sir E. Sugden having declined to permit the plaintiff to bring the action in his name, the defendants were ordered to admit at the trial, that the plaintiff was the legal proprietor of the copyright in the 10th edition of Sir E. Sugden's work.

1841 5th February.

SEELEY v. FISHER.

Where there are two rival works, the Court will restrain the proprietor of one of them from advertising it in terms calculated to induce the public to believe that it is the other work, but will not restrain him from publishing an advertisement tending to disparage that other work.

FOUR editions of the Rev. Thomas Scott's Commentary on the Bible, were published in the author's lifetime. At his death he and another gentleman under his superintendence, were engaged in and had nearly completed the revising and improving of the 4th edition, with a view to the publication of a fifth. The 4th edition having been published several years before Scott's death, the copyright in it had expired. After his death, the plaintiff, who was the owner of the copyright in the revised and improved work, published it under the title of "The 5th Edition of Scott's Bible, with the Author's last Corrections and Improvements."

In January, 1841, the defendants, Fisher & Co., began to publish, in monthly numbers, an illustrated edition of Scott's Bible;

1841.-Seeley v. Fisher.

and advertised it in the public papers, and on the wrappers of the numbers, as a new and carefully revised edition of the work, and as intended to contain the whole, unadulterated labors of the author, not as re-edited by a different hand [*582] and an inferior mind, but precisely as the learned com mentator bequeathed them to the world; the edition being printed from the last which the author published in the vigor of life.

The bill alleged, in substance, that the publication of the advertisement was a fraud upon the plaintiff, inasmuch as it was calculated to induce the public to believe that the defendant's edition contained the author's last corrections and improvements, the copyright in which belonged to the plaintiff; whereas it did not contain any of those corrections or improvements, but the letterpress was merely a reprint of the 4th edition.

The bill prayed that the defendants might be restrained from selling or disposing of any more copies of their publication, having, on the wrappers or covers thereof, the advertisement or announcement before mentioned; and from printing, or publishing, or causing to be printed or published any advertisement, statement or announcement, purporting that their publication did or would contain the whole of the commentary and observations of the author as written by him or as bequeathed by him to the world, or the whole of the last corrections, improvements and additions made by the author, to his work.

Mr. Knight Bruce, for the plaintiff, now moved, ex parte, for an injunction as prayed by the bill: and

THE VICE-CHANCELLOR granted it on the ground that the defendants were selling their publication under a representation that it was the plaintiff's.

THE LORD CHANCELLOR, however, on the motion to dissolve being made before him, said that the whole terms of [*583] *the advertisement, and, especially, the words: “this edition being printed from the last which the author published in the vigor of life," (which were omitted in the injunction,)