similar facts. In Chappell v. Sheard1 the plaintiffs published a song, the words of which were original, but set to an old American air, "Lillie Dale," in which there was no copyright. This song had become popular, and was sung at concerts by a Madame Thillon. The plaintiffs published their song under the title of "Minnie,' sung by Madame Anna Thillon, written by George Linley," and the cover bore a lithographed drawing of Madame Thillon. The defendants set other words to the same air and published it as "Minnie Dale," sung by Madame Thillon, and their cover also bore a portrait of Madame Thillon. The defendants' song had, in fact, never been sung by Madame Thillon. An injunction was granted. In Chappell v. Davidson the same song was similarly pirated by one intituled "Minnie, dear Minnie," and an injunction was also granted. In Prowett v. Mortimer The True Britannia was restrained as tending to interfere with the sale of the plaintiff's paper, The John Bull and Britannia, which had incorporated the plaintiff's previous publication, The Britannia. In Clement v. Maddick the plaintiff owned a sporting periodical paper, intituled Bell's Life. The defendants were restrained from publishing a similar paper under the title, Penny Bell's Life. In both publications the name Bell was entirely pseudonymous. In Ingram v. Stiff the defendant was the proprietor of a weekly paper, The London Journal, and assigned all his interest therein to the plaintiff, covenanting not to publish any rival weekly paper. Two years afterwards the defendant published a daily newspaper, The Daily London Journal. The Court restrained him from continuing the publication, but their judgment seems to have gone on the ground of breach of covenant. In Clowes v. Hogg the proprietors of London Society were held entitled to an injunction against English Society, but this was also on the ground of a covenant between the parties. In Corns v. Griffiths the plaintiff published a weekly newspaper under the title, " Iron Trade Circular (Ryland's)." The defendant had for some considerable time published a weekly report headed " The Iron Trade (Griffith's Weekly Report)," but changed his title to "The Iron 1 (1855), 2 K. and J., 117. 5 (1859), 5 Jur. (N.S.), 947. 2 (1855), 2 K. and J., 123. 4 (1859), 1 Giff., 98. 6 (1870), W. N., 268. 7 (1873), W. N., 93. Trade Circular (edited by Samuel Griffiths)," and published it in type and form very similar to the plaintiff's newspaper. The defendant's publication was restrained. In Metzler v. Wood1 the plaintiffs were the publishers of "Henry's Royal Modern Tutor for the Pianoforte." This work had a very large sale. The defendants took an old work, intituled "Jousie's Royal Standard Pianoforte Tutor," which had entirely fallen into disuse, and employed Henry to revise it, and then published it as "Henry's New and Revised Edition of Jousie's Royal Standard Pianoforte Tutor." In both publications the word "Henry's" was published in large letters, and was more conspicuous than any other part of the title. The Court granted an injunction. James, L.J., in his judgment, said : "The defendants' title-page was calculated to deceive, and I cannot conceive any reasonable theory to explain the defendants taking an obsolete work, getting it revised by Mr. Henry, and putting Henry's name as the prominent and striking distinguishing mark of his work except that he intended to do that which the name was calculated to do, viz., to mislead the public into believing that when they were buying the defendants' work they were buying the plaintiffs'. If it was so calculated to mislead, the case of the plaintiffs is made out." Cases where an Injunction was Refused.-In Spottiswoode v. Clarke 2 Lord Cottenham, L.C., refused an interlocutory injunction in a case of two Pictorial Almanacks, where the covers were very similar and could hardly have been so accidentally. In a similar case to-day an injunction would probably have gone. In Jarrold v. Houlston3 an injunction was refused to the author of "Why and Because," in respect of a similar work intituled "The Reason Why." There was no such similarity or colourable imitation in the title as to support the claim. In Bradbury v. Beeton the proprietors of Punch craved an injunction against Punch and Judy. There was, however, no evidence that any one had been misled, and although the papers were similar in size and general appearance, the colour of the paper was slightly different, and the design on the cover was entirely different. Malins, V.C., refused an injunction. In Kelly v. Byles the plaintiff had 1 (1878), 8 Ch. D., 606. 2 (1846), 2 Phillips, 154. 4 (1869), 39 L. J. Ch., 57. 4 published numerous directories called "post office" directories. Among them was "The Post Office Directory of the West Riding of Yorkshire." An injunction was refused against the defendant who proposed to issue a directory under the title "Post Office Bradford Directory." The publications in no way resembled one another. The plaintiff claimed that he had acquired an exclusive use to the words "post office" in connection with a directory. It was held that he could have no such exclusive right. In Dicks v. Yates1 a serial story, entitled "Splendid Misery, or East End and West End, by C. H. Hazlewood," was being published in a magazine called Every Week. Another weekly, The World, commenced a serial story intituled "Splendid Misery, by the Author of Lady Audley's Secret, Vivian, &c." The two weekly papers were of an entirely different character, and it was held that there was nothing in the publication of the serial story in The World which was calculated to deceive. In Cowen v. Hulton2 the plaintiff was proprietor of The Newcastle Weekly Chronicle and The Newcastle Daily Chronicle. He claimed an exclusive right to the use of the word "Chronicle" in connection with newspapers in Newcastle, and craved an injunction against the sale in Newcastle of The Sporting Chronicle. The Court of Appeal, reversing the decision of North, J., refused an injunction. In Walter v. Emmott The Mail was published three days a week at II A.M., price twopence. The Court refused an injunction against The Morning Mail, price one halfpenny. Both papers were published in London. In Borthwick v. The Evening Post the proprietors of The Morning Post claimed an injunction against The Evening Post. The Court was of opinion that there was no probability of injury to The Morning Post since the papers were not competing papers. Bowen, L.J., in his judgment, said : "He must be an extremely unintelligent person if he thinks that the Evening Post, which disclaims all connection with the Morning Post, and writes upon different topics and in a different style, is connected with the Morning Post. The idea would explode itself before he got half-way through the first page." 1 (1881), 18 Ch. D., 76. 3 (1885), 54 L. J. Ch., 1059. 2 (1882), 46 L. T. (N.S.), 897. 4 (1888), 37 Ch. D., 449. The injunction was refused. The commonest form of passing off is by means of a similar title and binding, but any act which induces the public to believe that A's book is the book of B is equally actionable, and will be sustained. Thus for A to announce his book as a continuation of B's book,1 or in any other way to so advertise it as to induce the public to believe that it is B's work 2 is actionable. 3 Malicious Criticism. It would be actionable to publish of an author's work that which was obviously untrue; for instance, that it was an immoral or a libellous work, when no suggestion of immorality or libel could be found in it. Apart from absolute falsehood of this kind there is no limit to the range of criticism; 3 a man is entitled to form what opinion he pleases of another's work, and to publish these opinions. So long as he confines himself to the work criticised and the author thereof as author, he has very full liberty of saying what he thinks. It may be actionable to say that a man is the author of a work which is not his. The offence if anything would be defamation of the author.4 Slander of Title. No doubt an action would lie against any one publishing statements in disparagement of the owner's right to a literary or artistic work. Special damage is of the essence of such an action. Author who has parted with Copyright is entitled to protect his Reputation.-Although a purchaser of copyright may do what he pleases with what he has purchased, he may not mutilate an artistic or literary work and present it to the public in its mutilated form as the work of the original author. The copyright in a law book was purchased by a bookseller. The author refused to edit a third edition, and the bookseller had the necessary alterations made for himself. The third edition was then published without any notice that it was prepared by any one other than the author. It contained numerous errors. In an action by the author against the bookseller, Lord Tenterden, C.J., in summing up, put it to the jury that if they were of 1 Hogg v. Kirby (1803), 8 Ves., 215. 3 Carr v. Hood (1808), 1 Camp., 354 n. 5 Dicks v. Brooks (1880), 15 Ch. D., 22; Seeley v. Fisher (1841), 11 Sim., 581. 2 Seeley v. Fisher (1841), 11 Sim., 581. 4 Martin v. Wright (1833), 6 Sim., 297. Ward v. Beeton (1874), L. R., 19 Eq., 207; opinion that the third edition would be understood by those who bought it to have been prepared by the plaintiff, the plaintiff was entitled to a verdict; but if they were of opinion that persons using reasonable care would think that this third edition was not prepared by the plaintiff, their verdict should be for the defendant. The jury returned a verdict of five pounds for the plaintiff.1 The nature of the remedy is really an action for the defamation of the plaintiff's reputation as an author. The Court is slow to grant an interlocutory injunction in such an action. No doubt it would be done in an extreme case, for instance, if the owner of performing rights in a play inserted indecent or scandalous matter without the consent of the author, but the Court prefers to have the legal question as to whether the altered version is injurious to the plaintiff's reputation tried first. In Cox v. Cox 2 the plaintiff had written a legal article for the purpose of insertion in the defendant's book. The defendant revised and shortened the article to a considerable extent, and the plaintiff applied for an injunction in Chancery to restrain the defendant from publishing the article in its mutilated form. Page Wood, V.C., refused an injunction, and, in his judgment, said :— "In respect to what was said about the plaintiff's reputation suffering from having the legal matter supplied by him published in a mutilated and erroneous form, according to Sir J. Clark's case,3 the loss of reputation, unless connected with property, was not a ground for coming to this Court, though it might be an ingredient for the Court to consider when there was property." One might almost infer from this judgment that if the plaintiff had parted with his property no right of action lay for injury to his reputation. It must be observed, however, that this was a claim for an injunction in equity, and the judgment of Lord Tenterden in Archbold v. Sweet was not referred to. That and the subsequent cases make it clear that there is a right of action on the ground of injury to reputation alone, and that in urgent cases the Court will interfere by interlocutory injunction. In Gilbert v. Boosey the owner of a performing right in an opera 5 1 Archbold v. Sweet (1832), 5 C. and P., 219. 3 Clark v. Freeman (1848), 11 Beav., 112. 5 The Law Times, September 28, 1889. |