Worthington v. Batty

40 F. 479, 1889 U.S. App. LEXIS 2526

Opinion

Wheeler, J.

This is a motion for a preliminary injunction to restrain infringement of the plaintiff’s copyright of a book written by Mrs. Fanny Steuhouse. The hook was copyrighted under an agreement between them that she should furnish the manuscript of the work, which he should copyright and publish, and use his “very best exertions and facilities to secure the speedy sale of,” and pay her 12 cents on each copy sold; and that she would not cause to be published, in her name or otherwise, anything which might injure or interfere with the sale of the book. The publication sought to be restrained is of the same work, em anating from her since, in a newspaper. She has an interest in the copyright, but is not made a party to the suit, either by being joined as a plaintiff in protecting it, or as a defendant for inequitably violating her agreement not to injure or interfere with the sale of the book. The proofs brought forward on the hearing of the motion tend to show that the plaintiff has not continued the efforts required by the agreement for the sale of the book, and that sales have quite or nearly ceased. Damages from any further apprehended publication by the defendant would be comparatively slight. Whether the plaintiff is so carrying out the agreement on his part as to entitle him to equitable relief without joining the author, or against publication coming from her, is so doubtful in the present aspects of the case as to make preliminary restraint of what will be of such slight injury appear to be unwarrantable, in the exercise of the discretion involved in granting of refusing such motions.

Motion denied.