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But if the plaintiff claims as assignee of the author's title, he must, by affidavit or otherwise, show that his title came by written assignment.' He must make a particular title; it is not enough to say that he has acquired the copyright, but he must trace his title to the author or his assignee, who alone have title under the statute. But if the plaintiff claims as assignee of an assignee, it seems that he will not be put to prove the original assignment to his assignor, but the proof of want of title will be thrown on the defendant; and the court will interfere at the suit of plaintiffs who have a good equitable title, even though it should not be quite clear that their legal title is complete."

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Where a fair doubt appears as to the plaintiff's legal right, the court directs it to be tried at law, making in the interim the best provision it can, for the benefit of both parties. An injunction should be granted and maintained, in the interim, if the defendant's publication is prejudicial to the plaintiff, although the plaintiff's right admits of a fair doubt; and an action should be brought forthwith to try it. But in cases of works, the whole value of which arises from a temporary demand, the court acts upon the opposite principle, and if there is a doubt as to

1 Morris v. Kelley, 1 Jac. & W. 481.

Gilliver v. Snaggs, 2 Eq. Abr. 522. 4 Viner's Abr. 278, A. 4. 3 Morris v. Kelley, 1 Jac. & W. 481.

Mawman v. Tegg, 2 Russ. 385.

5 Wilkins v. Aiken, 17 Ves. 422. Bramhall v. Holcomb, 3 M. & Cr. 737.

Ibid. Universities of Oxford and Cambridge v. Richardson, 6 Ves. 689, 707.

the legal right, does not grant the injunction before a trial at law, where it would work an irremediable injury to the defendant.1

1 Spottiswoode v. Clarke, 2 Phillips's Ch. R. 154. In this case the lord chancellor laid down the principles which ought to govern the discretion of the court, as follows: "I have often expressed my opinion that unless a case of this kind, depending upon a legal right, is very clear, it is the duty of the court to take care that the right be ascertained before it exercises its jurisdiction by injunction. The first question to be determined is as to the legal right, and if the court doubts about that, it may commit great injustice by interfering until that question has been decided.

"One objection to that course is, that it compels future litigation, for it orders the plaintiff to bring an action; whereas, by adopting the alternative course - suspending the injunction, with liberty to the plaintiff to bring an action- it enables him to pause a little, and consider whether it is worth his while to embark in such a course of litigation as will be necessary to establish the right on which he insists. A second objection is, that the court, in granting the injunction, is expressing a strong opinion upon the legal question, before that question is discussed in the proper tribunal. It is much better, if the legal right is to be litigated, that this court should abstain from expressing any opinion upon it in the mean time.

"But the greatest of all objections is, that the court runs the risk of doing the greatest injustice in case its opinion upon the legal right should turn out to be erroneous. Here is a publication, which, if not issued this month, will lose a great part of its

sale for the ensuing year. If you restrain the party from selling immediately, you probably make it impossible for him to sell at all. You take property out of his pocket and give it to nobody. In such a case, if the plaintiff is right, the court has some means, at least, of indemnifying him, by making the defendant keep an account; whereas, if the defendant be right, and he be restrained, it is utterly impossible to give him compensation for the loss he will have sustained. And the effect of the order in that event will be to commit a great and irremediable injury. Unless, therefore, the court is quite clear as to what are the legal rights of the parties, it is much the safest course to abstain from exercising its jurisdiction till the legal right has been determined.

"In the course of the argument cases of trade-marks were referred to; but trade-marks have nothing to do with this case. Take a piece of steel: the mark of the manufacturer from which it comes is the only indication to the eye of the customer of the quality of the article; so it is of blacking, or any other article of manufacture, the particular quality of which is not discernible by the eye. But these cases are quite different from the present case, in which, if you are deceived at all, it is not by the eye. The size, the color, the engravings are all different in the two works, so that no one who sees the two could mistake the one for the other. At the same time I must say, that there is in the descriptions given of the two works a very remarkable coincidence of ideas in the plaintiff and defendant, if the

It seems to have been Lord Eldon's practice, not to grant an injunction before trial, where the doubt as to the plaintiff's legal right arose from the character of the work. In one case, having, from inspection of the book, a doubt whether it would be held entitled to protection at law, because it impugned the doctrine of the immortality of the soul, he refused to assist such a doubtful right by injunction.1 So, also, in Mr. Southey's case, he acted upon the same doctrine, without considering it necessary to determine positively whether the work was innocent or not, although the author had never published it, and wished to restrain its publication altogether, having changed his opinions.2

Even in cases where the plaintiff can only have an injunction, and from any cause it should be impossible to take an account, the plaintiff is entitled to the injunction.3 So, too, where the injury is only threatened, the party has a right to the injunction, to prevent that mischief, if the circumstances warrant it, though no account is required to be taken.*

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But wherever an injunction is granted, the plaintiff is entitled to go on and take the account, as incidental relief, in addition to the relief by injunction.1

It has also been suggested, by Lord Eldon, that in some cases it may be proper to direct an issue of quantum damnificatus, where the plaintiff can show that the profits handed over to him by the defendant are not a satisfaction for the injury done to him.2

The court will not interfere by injunction in the first instance, where the plaintiff has for a long time acquiesced in the violation of his rights, but will leave him to an action at law ;3 and where the con

Grierson v. Eyre, 9 Ves. 341. Universities of Oxford and Cambridge v. Richardson, 6 Ves. 705, 706. Baily v. Taylor, 1 Russ. & M. 73. Sheriff v. Coates, 1 Russ. & M. 159. 2 Story's Eq. Jurisp. § 933. Eden on Injunctions, ch. xii. p. 261, ch. xiii. p. 364.

2 Mawman v. Tegg, 2 Russ. 385, 400. The following are his lordship's observations: "Another way of ascertaining the facts of the case is to send it to a jury; and, in either of those ways of disposing of it, the court will order the defendant to keep an account of the profits in the mean time. But one difficulty in all these cases is, that though keeping an account of the profits may prevent the defendant from deriving any profit, as he may ultimately be obliged to account to the plaintiff for all his gains, yet if the work which the defendant is publishing in the meantime, really affects the sale of the work which the plaintiff seeks to protect, the consequence is, that the rendering the profits of the former work to the complaining party may not be a sat

isfaction to him for what he might have been enabled to have made of his own work, if it had been the only one published; for he would argue, that the profits of the defendant, as compared with the profits which he, the plaintiff, has been improperly prevented from making, could only be in the proportion of eight shillings, the price of a copy of the one book, to one guinea, the price of a copy of the other. If the principle, upon which the court acts, is, that satisfaction is to be made to the plaintiff, I cannot see, though I never knew it done, why, if a party succeeds at law in proving the piracy, the court should not give him leave to go on to ascertain, if he can, his damages at law; or if, after applying the profits which are handed over to him by the defendants, he can show that they were not a satisfaction for the injury done to him, I cannot see why the court might not in such a case direct an issue to try what further damnifica tion the plaintiff had sustained."

3 Platt v. Button, 19 Ves. 447. Rundell v. Murray, Jacobs R. 314.

duct of the plaintiff has been such as to induce the defendant to believe that the publication of the latter would not be objected to, the court will not interfere by injunction, until after a trial at law.1

Where there is a dispute as to the construction of an agreement between the parties, the court will not grant an injunction, until the effect of the agreement has been established at law.2

Where the plaintiff states circumstances which are not denied, showing that he is entitled to an equitable copyright in a work, the court, in directing an action to be brought by him, to determine the question of piracy, will direct the defendant, for the purposes of the action, to admit a legal copyright in the plaintiff."

In exercising its jurisdiction, the court has first to decide whether there ought to be an injunction; and if there is to be an injunction, it has next to determine, whether the injunction shall be against the whole work, or only against a part of it. The extent to which the injunction ought to go, must in each case depend on the particular circumstances of that case.1

The manner in which the injunction is to issue, and the extent to which it is to be applied to the

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