A Treatise on the Law of Injunctions

Construction pens, however, not unfrequently that an original of the Statute work is published, and held forth to the world as

of Anne.

being a part or a continuation of a work, the reputation of which is already fixed; or as the production of an author of celebrity, whose name is assumed to give currency to the publication. As the injunction which a court of equity grants in these instances is not founded on copyright, and is closely connected with determinations which cannot conveniently be introduced in this place, the consideration of the subject is deferred to the ensuing chapter.

Practice in
Equity.

Injunctions

The principle upon which a Court of Equity interposes for the protection of copyright, is the same as that which has been already stated with respect to patents.

It appears that formerly the courts were unwilling formerly not to interpose until the right had been previously cept upon a established at law. In several early cases an inclear legal

granted ex

right.

junction was refused, except upon a plain legal right (a). And even in more recent times, where the plaintiff has not been able to show that possession under colour of title, which has been already alluded to, or where any considerable doubt arose upon his title, the court has refused to interpose. Thus, in the case of Basket v. The University of Cambridge, which was a question as to the right to

(a) Anon. 1 Vern. 120. Hills v. University of Oxford, ib. 275.

print acts of parliament, the university not having Practice in Equity. been in the practice of exercising the right, Lord Hardwicke refused to enjoin upon a doubtful question in favour of those who never had the possession (a). Lord Northington in one case refused to interpose between two contending patents (b), and in another, where the great question of the common law right of an author to his own productions after the expiration of the term allowed by the statute of Anne, (upon which there was at that time no decision at law,) came before him, he refused to interpose before a trial at law, on the ground of the right being so extremely doubtful (c).

tions of the

Millar v.

of courts of

Several of the judges, in the great case of Millar Observav. Taylor, in speaking of the doctrine of a court of judges in equity in granting injunctions to restrain the inTaylor as to fringement of copyright, observed, that they were the practice in the nature of injunctions to stay waste, and never equity. granted but upon a clear legal title; that if moved for upon the filing of the bill, the right must appear clearly by affidavit: if moved for after answer, the right must be clearly admitted by the answer, or not denied (d). Lord Clare also, upon a bill brought by the King's Printer in Ireland, to restrain the publication of bibles, refused to grant an injunction till the right had been established at law, although there had been a possession of upwards of forty years under colour of title (e).

(a) Cit. 6 Ves. 710. For the argument at law and the certificate, vide 1 Bl. Rep. 105. 2 Burr. 661.

(b) Baskett v. Cunningham, 2 Eden, 137. 1 Bl. Rep. 370.

(e) Grierson v. Jackson, Irish T. R. 304.

Practice in
Equity.

the inter

court of

there has

been a pos

colour of

title.

Lord Eldon has, upon great consideration, denied the universality with which the above doctrine was Present doc- laid down in the case of Millar v. Taylor. After trine as to noticing the injunction granted in the case of Watt's ference of a patent (a), his Lordship observed, that there are equity where many cases in which an injunction has been granted, and continued to the hearing, under circumstances session under which made the title extremely doubtful (b); and it may be deduced from the cases, that the court will generally interpose by granting an injunction, and will afterwards continue it to the hearing, where there has been a possession by the plaintiff under colour of title. Upon this ground, in one of the earliest cases Sir J. Jekyll granted an injunction before trial, upon the application of the King's Printer in England to restrain the King's Printer in Scotland from introducing into England books in violation of the patent of the former; and this order was affirmed by Lord Macclesfield upon appeal (c). In the case of the Universities of Oxford and Cambridge v. Richardson (d), Lord Eldon, in a great measure upon the authority of this case, granted an injunction to restrain the sale in England of bibles, &c. printed by the King's Printer in Scotland, although the King's Printer in England, who had a concurrent right with the plaintiffs, did not choose to join as a plaintiff. In this case, notwithstanding the doubt thrown upon the title of the plaintiffs to enjoin, by the circumstance of the King's Printer re

(a) Ante, p. 261.

(b) 6 Ves. 707.

fusing to concur; yet upon the clear illegality of Practice in the conduct of the defendants, the injunction was Equity. continued till the hearing. In the case of Bruce v. Bruce (a) in the House of Lords, though it was strongly contended at the bar, that injunctions proceeding upon legal right ought to have their foundations upon legal title, receiving consummation by legal judgment, yet Lord Eldon answered, that the question had been already decided by Sir J. Jekyll and Lord Macclesfield, and that the court, in granting an injunction till the hearing, did not decide ultimately upon the rights of the parties. In the cases which have been already alluded to (b), where the court has restrained the publication of trials upon indictment or impeachment before the Lords, and the publication of the sessions paper, that interposition was founded upon the possession and exercise of the exclusive right under colour of title.

per

not granted where the

title depends on the effect

ment, or

Where the question depends upon the effect of an Injunction agreement, an injunction has been refused till recovery in an action (c): so if the plaintiff has mitted persons to publish and sell the subject of his of an agreecopyright without having interposed; for though this is no justification of their infringement of his right, yet it will be a sufficient ground to induce a court of equity not to interfere, till it has been established at law (d).

(a) Cit. 8 Ves. 505.

(b) Ante, p. 271.

(d) Walcot v. Walker, 7 Ves. 1. Platt v. Button, 19 Ves. 447. Coop. 303.

where plaintiff has suf fered persons to publish.

Practice in
Equity.

title neces

The court in this, as in similar cases, will not grant an injunction without an affidavit of title; and Affidavit of the same rules with respect to affidavits obtain that are observed in other cases; it has accordingly been determined, that though an affidavit as to facts, filed after the answer, may be read, yet that an affidavit as to title cannot be received (a).

sary.

Upon a bill by an assignee of copyright affidavit required that

has been

Since the decisions at law, which have determined that an assignment of copyright can only be by writing (b), it seems that it will be necessary upon a bill brought by an assignee, to show by affidavit that assignment such has been the case. But if the plaintiff happens in writing. to be in the situation of assignee of an assignee, it will be sufficient for him to show that the assignment to himself was in writing, without tracing the title through the mesne assignees from the author (c). In an extremely recent case indeed an injunction was obtained by assignees of copyright, to whom the assignment was by parol. It appeared, however, that some of the co-defendants had assigned the copyright to the plaintiffs, for which they had received the purchase money, and and upon the faith of which they had permitted the plaintiffs to print and publish (d).

In a recent application to restrain the publication

(a) Platt v. Button, cit. sup.

(b) Ante, p. 264. before these decisions, an affidavit, that the plaintiff had purchased, or legally acquired the copy, was held insufficient, as it did not state that he purchased it of the author. Gilliver v. Snaggs, 4 Vin. Ab. 278.

(d) Longman v. Oxberry, 28th November, 1820.

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