Jan. 26th, 27th, 29th, & 30th. Feb. 8th.
The maker and owner of etchings which have never been exhibited or puhlished, and of which no impressions have heen made except for his private use, but impressions whereof have, by improper and surreptitious means, come into the possession of other parties, is entitled to an injunction, not only to restrain those parties from exhibiting those impressions, and from publishing copies of them, but also to restrain them from publishing a catalogue compiled by themselves, in which an enumeration and descriptive account of those etchings is contained, and that, although there is no violation of any contract, either express or implied, between the owner and the compilers of the catalogue.
Where A. and B. were respectively the makers and owners of several etchings, of which a catalogue was proposed to be improperly published by a person who had surreptitiously obtained copies of the etchings, and a bill was filed by A. against the publisher of the catalogue and B., A. was held to be entitled to an inj unction to restrain the publication of the catalogue generally, not only so far as it related to his own etchings, but likewise so far as it related to those of B. also.
THIS was an application to the Lord Chancellor, upon motion on behalf of the first-named Defendant, Strange, that an injunction, which had been granted by the Vice-Chancellor Knight Bruce, to restrain Strange, his agents, servants, and workmen, from exhibiting the gallery or collection of etchings in the Complainant's bill mentioned, or any of such etchings, or from making or permitting to be made any engravings or copies of the same or any of them, and from in any manner publishing the same or any of them, or from parting with or disposing of the same or any of them, and from selling or in any manner publishing, and from printing, the Descriptive Catalogue in the Complainant's bill mentioned, or any work being or purporting to be a catalogue of the said etchings, until the said Defendant should fully answer the Complainant's bill, or the Court should make order to the contrary, might be dissolved, so far as such injunction restrained the Defendant Strange, his agents, servants, and workmen, from selling or in any manner publishing, and from printing, the Descriptive Catalogue in the Complainant's bill mentioned, or any work being or purporting to be a catalogue of the said etchings; and, if necessary, that an order, made in this cause by his Honor the Vice-Chancellor Knight Bruce, dated the 16th day of January instant, might be discharged or varied, as to his Lordship should seem meet.
The bill, as originally filed ill October, 1848, was against Strange and the Attorney- General only; but it was afterward amended, and Jasper T. Judge, and his son Jasper A. F. Judge, were added as Defendants.
The bill stated, that the Queen and the Plaintiff respectively had occasionally, for their amusement, made drawings and etchings, being principally of subjects of private and domestic interest to themselves; and that they had made impressions of those etchings for their own use, and not for publication: that, for greater privacy, such impressions had been, for the most part, made by means of a private press kept for that purpose, and the plates themselves had been ordinarily kept by her Majesty under lock, and the impressions had been placed in some of the private apartments of her Majesty, at Windsor, and in such apartments only: that the Defendants, Strange, Judge, and J. A. F. Judge, had, in some manner, obtained some of such impressions, which had been surreptitiously taken from some of such plates, and had thereby been enabled to form, and had formed, a gallery or collection of such etchings, of which they intended to make a public exhibition, without the permission of her Majesty and the Plaintiff, or either of them, and against their will: that the Defendants had compiled and prepared a work, which had been printed and published by the Defendant Strange, of which the title-page or cover was as follows: "A Descriptive Catalogue of the Royal Victoria and Albert Gallery of Etchings." " Every purchaser of this Catalogue will be presented (by permission) with a facsimile of the autograph of either her Majesty or of the Prince Consort, engraved from the original, the selection being left to the purchaser. Price sixpence:" that this work had been compiled, printed, and published without the consent of her Majesty and the Plaintiff, or either of them, and against their will: that, in fact, among the etchings were portraits of the Plaintiff, the Prince of Wales, the Princess Royal, and other members of the Royal Family, and personal friends of her Majesty; and that many of them were drawn by her Majesty from life, and afterward transferred to copper, and etched by her Majesty and the Plaintiff; and among such etchings were portraits of their favourite dogs, taken by them from life, and etchings from old and rare engravings in the possession of her Majesty, and several from such original designs as in the Catalogue mentioned; and among such etchings there were several portraits of the Princess Royal, and such scenes in the Royal Nursery as in the said Catalogue mentioned: and that the said Descriptive Catalogue comprised sixty-three several etchings.
The bill then stated the Catalogue, which gave a particular account of sixty-three etchings, with critiques and observations respecting them. It commenced as follows:- "The great interest which every loyal and affectionate subject of her Majesty cannot fail to feel in all that relates to works of art executed by her Majesty and his Royal Highness Prince Albert, has induced the proprietor of this perfectly unique and most interesting collection of etchings to submit them to public exhibition, and thus enable the whole nation to form an opinion of her Majesty's and the Prince Consort's merits in a branch of the fine arts, in which, as it has been admitted, it is so difficult to excel, or even to arrive at a stage beyond mediocrity." The bill then stated, that the several etchings were so made, and from such drawings as in such Catalogue was mentioned: that the Catalogue, and such descriptive and other remarks, could not have been made except by means of the possession of several impressions of the etchings so obtained and surreptitiously taken as aforesaid: that the impressions were intended for the private use of her Majesty and the Plaintiff, although copies of some of them had been occasionally, though very rarely, given to some of their personal friends, one to one friend, and one to another; but no such collection as that so advertised for exhibition as aforesaid was ever given away by them, or either of them, or by their or either of their permission, and no such collection could have been formed except of impressions surreptitiously and improperly obtained.
When the bill was amended, a charge was introduced, that certain of the plates were given to Brown, a printer, at Windsor, for the purpose of printing off certain impressions thereof for her Majesty and the Plaintiff; and that Brown employed therein a person of the name of Middleton, who, without Brown's consent or knowledge, and in violation of the confidence reposed in him, took impressions thereof for himself; and that Judge had bought, or in some manner obtained, the same from Middleton.
The bill prayed that the Defendants might be ordered to deliver up to the Plaintiff all impressions and copies of the several etchings respectively made by the Plaintiff; and that they, their servants, &c., might be restrained by injunction from exhibiting the said gallery or collection of etchings, or from making engravings or copies of them, or in any manner publishing them, or from parting with or disposing of them; and also from selling, publishing, or printing the Descriptive Catalogue in the bill mentioned, or any work being or purporting to be a catalogue of the said etchings; and that the copies of the Catalogue, in the possession of the Defendants, might be given up to the Plaintiff.
The statements in the bill were confirmed by affidavits of Prince Albert, Mr. White, his solicitor, and Mr. Anson. It appeared from those affidavits, that, with the exception of the occasion when the plates were sent to Brown, as before mentioned, they had never been out of the possession of her Majesty or the Prince; and no such collection as was advertised for exhibition had ever been given away: and the Prince stated in his affidavit, that he believed that the person in possession of the collection advertised for exhibition must have obtained them from some persons who had access to the private apartments in Windsor Castle, and removed the impressions therefrom surreptitiously.
On the day on which the bill was filed, an injunction was granted against Strange by the Vice-Chancellor Knight Bruce, in accordance with the prayer; which injunction was afterward, on the 6th of November, extended to the other Defendants.
An information was filed at the same time, in the name of the Attorney-General, on behalf of her Majesty, against Prince Albert and Strange, to a similar effect; and in that information an injunction had been obtained to restrain the exhibition, but not restraining the publication of the Catalogue.
On the 5th of December, Strange put in his answer to this bill. He denied that he had in any manner, either surreptitiously or otherwise, obtained any impressions of the etchings, or copies of them. He stated, that he believed that Judge purchased certain impressions of the etchings fromMiddleton, one only of which had been sent to him (Strange) for the purpose of being mounted, which was the only impression he had ever had in his possession. He believed that Judge had formed a collection of the etchings; that about the end of August, 1848, Judge called on him, and told him he had a collection of the etchings, which he shewed to Strange soon after, and proposed to him to exhibit them, if her Majesty and the Prince did not object, at the Egyptian Hall, or some other public institution of equal respectability; that Strange was to advance the funds, and he and Judge were to divide the profits equally; that he then believed that the impressions had not been improperly obtained; that Judge afterward wrote the Catalogue, which Strange printed, but struck off fifty-one copies only, and then broke up the type: that, in October, 1848, Judge, with a view of bringing the subject of the exhibition to the notice of her Majesty and the Prince, and of ascertaining whether they objected to it, sent eleven copies of the Catalogue to the Queen, the Duchess of Kent, the King and Queen of the Belgians, and to some distinguished parties holding offices at Court, and that he had the remainder in his own possession; that the Catalogue had never been, exposed for sale; and that, as soon as he ascertained that the contemplated exhibition was disapproved of by the Queen and the Prince, he determined to abandon the scheme, and had offered to give up all copies of the Catalogue which remained in his possession, and to take no further steps in the matter, if the bill were dismissed against him and his costs paid; that the solicitor for the Plaintiff agreed to all the other terms, but refused to pay the Defendant's costs. He insisted by his answer, that, as a matter of strict right, he was entitled to publish the Catalogue; and he submitted whether the Queen had any interest in the suit; and that the Prince had no right of property in any of the drawings or etchings, or impressions from the same, which had been executed by her Majesty alone, or by her jointly with the Prince; and that the Prince ought to have distinguished those drawings and etchings which were his own from those which were done by the Queen.
Strange did not attempt to dissolve the injunction, so far as it related• to the exhibition; but in December a motion was made on his behalf, before his Honor the Vice Chancellor Knight Bruce, to dissolve the injunction, so far as it related to publishing the Catalogue. That motion was refused with costs, on the 16th of January, and was now renewed, by way of appeal, before the Lord Chancellor.
Mr. Russell, Mr. Rolt, Mr. Warren, and Mr. Sidney Smith, in support of the motion.
The former part of the injunction, which was to restrain the exhibition of the etchings or impressions, is not now in dispute. Strange states, that he never had any of the etchings, or more than one of the impressions, in his possession, and therefore it is not in his power either to exhibit or to make copies of them. The only question is, his right to publish the Catalogue.
Some of the etchings in question were done, not by Prince Albert, but by the Queen; and the Prince has no interest in them, which will entitle him to sustain this injunction, so far as relates to those etchings. It was provided, by the statute 3 & 4 Vict. c. 3, s. 2, that the Prince should not, by virtue of his marriage, acquire any interest in any property of her Majesty.
[The LORD CHANCELLOR.-A Defendant cannot put a Plaintiff in that position by publishing that which partly belongs to one and partly belongs to another, and then say, that neither the one nor the other shall move for an injunction, because the Catalogue contains matter relating to both.]
Strange has, by his answer, distinctly denied all the allegations in the bill which impute to him any fraud in obtaining the impressions, or any knowledge of any such fraud committed by others. The question, therefore, is, whether a party, who has become aware of the fact that certain etchings are in existence, is at liberty, without the consent of the owner, to publish a catalogue of them, together with the ideas which they have produced in the mind of the party who compiled the Catalogue. A person inspects, with care and attention, certain engravings; the examination of them leaves certain ideas in his mind; and the ideas which he received by those means he has materialised and embodied in a catalogue, and he now proposes to publish them to the world. Now, the engravings had been left in the apartments of Windsor Castle, and several had been given away. That was equivalent to such a publication, as, if it had been a mechanical discovery, would have precluded the possibility of obtaining a patent afterward.
[The LORD CHANCELLOR.-If a man communicates to a friend the particulars of a discovery or invention, could he not afterward obtain a patent ?]
In this case there has been a general publication, by exhibiting and by giving away; and no precedent can be found in which this Court has granted an injunction in such a case.
The questions in which the Court has interfered, with regard to the publication of letters and of lectures, are to some extent analogous. In Gee v. Pritchard , the Lord Chancellor repudiated the argument, that the publication of letters would be restrained, because their publication would be painful to the feelings of the Plaintiff; and said, "The question will be, whether the bill has stated facts of which the Court can take notice, as a case of civil property, which it is bound to protect." In Abernethy v. Hutchinson , an application was made to restrain the Defendants from publishing, in "The Lancet," Mr. Abernethy's Lectures, which had been delivered extemporally. Lord Eldon, at first, refused the application; but afterward granted an injunction, in the ground that there was an implied contract between him and the parties who attended his Lectures, that they should not publish them.
The order of the Vice-Chancellor carries the interference of the Court further than it can be supported on the principle adopted in either of those cases, namely, either on the ground of property, or on the ground that there was some implied contract that the knowledge communicated should not be made public. To support his Honor's decision, the right of property in a chattel must, independently of any contract, give an exclusive right to the use of any knowledge connected with that chattel. That is, at all events, a very doubtful question of law; and the Court will therefore refuse its interference, until the Plaintiff has established his right at law: Spottiswoode v. Clarke ; Rigby v. The Great Western Railway Company . Can a right in property, to which certain knowledge relates, give an exclusive right to the use of that knowledge, independently of any contract? A confusion seems to be created by mixing up the several distinct matters which compose the whole.
First, there is a right of property in the canvass of a painting; and, secondly, there is a right of property in the form of the idea which adorns the canvass, and that cannot be copied. And, further, if a party is bound by any contract, he may be restrained from using the knowledge he has obtained respecting the painting, unless with the consent of the owner of the chattel. But the possessor, independently of contract, has no right or property in the idea which is acquired by another party from a knowledge of that particular chattel. If the owner of property desires it to be kept secret, and orders that Strangers be not admitted to view it, yet if a servant, notwithstanding such directions, should admit an amateur to see it, could that amateur, in such a case, be prevented from describing the property in poetry or sculpture, or from illustrating it by paintings? Suppose, again, the case of a work of art being stolen from the lawful owner, and a party obtaining an inspection of it, knowing the owner's wish to keep the work secret: would the Court restrain such party from using the knowledge he had obtained by means of an examination of the work? He might describe it in poetry, or realise it in marble.
A fair use of works, which form the property of another. party, either by quotation~ or in making an abridgment, or for the purpose of criticism, is permitted by the Court:
Wilkins v. Aikin , Saunders v. Smith , Gyles v. Wilcox , Carr v. Hood . If a party published a drawing of a house or tree belonging to another person, could the owner restrain him by an injunction, because his privacy was invaded?
The cases of unprinted manuscripts, and of dramatic performances, and lectures not printed but delivered orally, all proceed on the notion of property existing, although not in a published form. If lectures be reduced into writing, there is a copyright in them. In Macklin v. Richardson , which related to the farce of "Love a la Mode," a short-hand writer took down the words from the mouths of the actors on the stage, and the Defendant afterward published them, and an injunction was granted to restrain him, on the ground that the author had not, by the public representation of the farce, parted with his exclusive right of publication. The converse of that case was Murray v. Elliston , in which a party, who was representing Lord Byron's tragedy of " Marino Faliero, Doge of Venice," on the stage, with some alterations from the printed tragedy, was held not liable to an action. One of the latest cases was Tipping v. Clarke , before Vice-Chancellor Wigram. There the Defendant had bribed the Plaintiff's agent to make extracts of false entries from the books of the Plaintiff. The Plaintiff did not move for an injunction on the Defendant's answer; but, on the cause coming on for hearing, it appeared that Clarke had filed another bill in the Rolls Court, and had obtained in that suit an inspection of those books; and therefore the bill was dismissed. But the principle that an agent could not be allowed to communicate the contents of his employer's books to another person, and that that person could not publish the information so improperly obtained, was directly admitted by the Vice-Chancellor. A person guilty of bribery takes the knowledge he obtains with no better right to use it than the party communicating it; but here there is neither bribery nor fraud.
The proprietor of the etchings may reasonably be desirous that a catalogue of them should not be published. The gratification felt in the possession of them may be diminished by such a proceeding. But these are matters which the law does not provide for: Chandler v. Thompson , Southey v. Sherwood . "The law does not give an action for such things of delight: "Aldred's Case . The Vice-Chancellor's decision was founded more on the morality of the question than on the strict legal rights of the parties: Mackeldey's "Compendium of Modern Civil Law" .
The Solicitor-General, Mr. Serjt. Talfourd, and Mr. W. M. James, for the Plaintiff.
The principle upon which the Plaintiff asks for the assistance of the Court in this case is the general principle, that the Court of Chancery will protect everyone in the free and innocent use of his own property, and will prevent other parties from interfering with the use of that property, so as to injure the owner. The question is, in some degree, similar to the case of copyright; but copyright exists only in that which is published. The right in this, case is antecedent to any publication to the world. In Millar v. Taylor , which related to the publication of Thomson's "Seasons," Mr. Justice Yates differed in opinion from the other Judges, and decided against the author's copyright. He considered that copyright had nothing tangible or corporeal about it. But he made the following observations:-" It is certain every man has a right to keep his own sentiments if he pleases. He has certainly a right to judge whether he will make them public, or commit them only to the sight of his friends. In that state the manuscript is, in every sense, his peculiar property, and no man can take it from him, or make any use of it which he has not authorised, without being guilty of a violation of his property; and, as every author or proprietor of a manuscript has a right to determine whether he will publish it or not, he has a right to the first publication; and whoever deprives him of that priority is guilty of a manifest wrong, and the Court has a right to stop it."
The question here is, how far the publication of this Catalogue is in violation of the law? That there is property in the ideas which pass in a man's mind is consistent with all the authorities in English law. Incidental to that right is the right of deciding when and how they shall first be made known to the public. Privacy is a part, and an essential part, of this species of property. In Millar v. Taylor, the property which a man had in his unpublished ideas was admitted by all the Judges: Donaldson v. Beckett .
It was contended, on the other side, that the Plaintiff, although he had a right to the etchings, had no right in the Catalogue. No such right is claimed; but the Plaintiff claims the right and advantage of making these etchings public when and how he pleases; and he complains, that the publishing of this Catalogue interferes with and injures that right. The Catalogue is merely the instrument by which the Plaintiff's property in the etchings is injured. He has no right in the instrument of mischief; but he has a right in the property to which the mischief is attempted to be done.
It was also contended, that the Plaintiff had done acts which amounted to a publication of these etchings. In The Duke of Queensberry v. Shebbeare , the representative of Lord Clarendon had given to a person, through whom the Defendant claimed, a copy of Lord Clarendon's "History of the Reign of Charles the Second;" but the Court granted an injunction to restrain the Defendant from publishing it. Therefore, the fact that an author has parted with a copy of his work does not diminish his right to be the first publisher of the original work. In Pope v. Curl , which related to Pope's "Letters," the same principle was followed by the Court.
In Southey v. Sherwood , Lord Eldon refused an injunction to restrain the publication of Wat Tyler," because he held the work itself to be of an injurious tendency; but he maintained the principle, that, if the work had been innocent in its character, the author would have been entitled to the protection of the Court; and held, that an author had a property in an unpublished work, independently of the statute of8 Anne, c. 19. In Thompson v. Stanhope , Lord Apsley granted an injunction, on the application of Lord Chesterfield's executor, to restrain the widow of his son from publishing letters which the son had received from Lord Chesterfield. In Gee v. Pritchard , an injunction was granted to restrain the publication of letters by the party to whom they were addressed. In Lord and Lady Perceval v. Phipps , the same principle was admitted; though the conduct of the parties was there held to have given the Defendant a right to publish the letters: Earl of Granard v. Dunkin . The cases which have already been referred to, of Abernethy v. Hutchinson , Youatt v. Winyard , and Green v. Folgham , and the case of Bryson v. Whitehead , are all in favour of the Plaintiff's right.
Nothing which has been done by the Plaintiff with regard to the etchings or impressions from them, amounts to a publication, so as to authorise any other party to publish an account of them. In Macklin v. Richardson , and Coleman v. Walker , the public representation of theatrical pieces was held not to amount to publication. In Martin v. Wright , the Defendant had made a greatly enlarged copy of Martin's picture of "Belshazzar's Feast," in order to represent it with what he called a dioramic effect: the Court did not grant an injunction to restrain such an exhibition, but the picture had already been made public by the artist: Suppose, however, that, in that case, the Defendant had, by some means, got access to Martin's studio, and had, in that manner, got information which enabled him to make such an exhibition before the artist had exhibited it, would not this Court have restrained him? It has been contended, that, if a man obtained knowledge of the invention of another person by bribing his servant, this Court would not interfere to prevent the party from making the invention public. There can be little doubt that this Court would instantly restrain him: Eden on Injunctions . For instance, if a party had obtained an inspection of Mr. Macaulay's "History of England" before the author had published it, he would not have acquired a right to make a translation of it into a foreign language, or to publish an abstract of it. But when the work is once published, anybody may do either of those things. As to illustrating a book by pictures, if a book is not yet published, and another party publishes illustrations of it, with short accounts which convey the same ideas as the book, this Court would certainly restrain him from such an infringement of the rights of the author of the book.
The publication of a drawing of a house or a tree in a park, which are necessarily public, and may be seen by anybody, does not apply to this case. But, take the case of valuable marbles brought to this country from the East, which possess no beauty of art, and are valuable only for the inscriptions on them; the party who purchases them, purchases also the right of being the first to publish an account of them; and no other person, who happens to have seen them, would be allowed to publish a descriptive ac count of them, against the consent of the owner.
In this case, no consent was given to the publication. The copies were either dishonestly obtained from the Palace, or were improperly retained by Brown. There was either a breach of confidence, or a positive crime committed, to obtain them. The principle is laid down in Bridgeman v. Green , where the question was, whether certain money, which had been obtained by fraud, ought to be returned to the Plaintiff by a party who had received it, but who was not a party to the fraud. Lord Commissioner Wilmot said, "Whoever receives it, must take it tainted and infected with the undue influence and imposition of the person procuring the gift; his partitioning and cantoning it out amongst his relations and friends will not purify the gift and protect it against the equity of the person imposed upon. Let the hand receiving it be ever so chaste, yet, if it come through a corrupt, polluted channel, the obligation of restitution will follow it."
Suppose a party is aware of a defect in a title, he may be restrained from making it public: Cholmondeley v. Clinton . If a party engages to publish a certain number of copies of a book, he is not justified in keeping back any copies and selling them for his own benefit.
As to the conduct of the parties, if, as they allege, they do not wish to publish the Catalogue, why do they raise this question before the Court? And if they wished to ascertain whether her Majesty's permission might be obtained for the publication, why was it necessary to forward catalogues to the King and Queen of the Belgians?
The Catalogue also, which announces that the exhibition is to take place, alleges, that the autographs are to be given away" by permission;" which is a deception on the public, who would necessarily infer, that the · exhibition, and the publication of the Catalogue, and the giving away of the autographs, had all received the sanction of the Queen and Prince Albert.
Mr. Russell, in reply-
Admitted the right which an author has in his unpublished manuscripts; but insisted that there was no case which carried the law so far as to hold that an abridgment might not be made of an unpublished manuscript without the consent of the owner. If a person read a poem to his friends, they would not be precluded from saying they had heard such a poem.
[The LORD Chancellor.-In Abernethy's case, Lord Eldon required affidavits that there was no publication-no dedication to the public-except by the Lectures, which was only a qualified publication.]
That would be a case of contract or of injury to property.
The etchings were not injured by the description given of them by this Catalogue. If a surveyor obtained knowledge of the levels of a person's property against his will and by committing a trespass, could the Court restrain him by injunction from using that knowledge for the purposes of a railway, and to the annoyance of the owner of the land?
As to any deception practised on the public by alleging that the autographs were given" by permission," the Court would not interfere upon that ground. In Clark v. Freeman  the Court would not restrain a party from selling pills which were falsely alleged to be Sir James Clark's pills. The Court would not interfere to prevent a man from selling his own articles, because he was deluding the purchaser to think they were the articles of somebody else.
[The LORD Chancellor.-Sir James Clark was not himself the maker or seller of any pills. If he had been, he would probably have got an injunction.]
The LORD CHANCELLOR:-
The importance which has been attached to this case arises entirely from the exalted station of the Plaintiff, and cannot be referred to any difficulty in the case itself. The precise facts may not have occurred before; but those facts clearly fall within the established principles, and the application of them is riot attended with any difficulty.
The right of the Plaintiff to an injunction restraining the Defendant from exhibiting, copying, or in any manner publishing, or parting with, or disposing of any of the etchings in question, is perfectly clear from the facts of the case, and is not now disputed by the Defendant; and the only question I have to decide is, whether, this right being so established and admitted, the Defendant is to be permitted to publish the Catalogue in question, in which he announces his intention of exhibiting the ;etchings, which he is so restrained from doing; and in which he announces to the public that" every purchaser of this Catalogue will be presented (by permission) with a facsimile of the autograph of either her Majesty or of the Prince, engraved from the original, the selection being left to the purchaser." Now, as permissionso to accompany each Catalogue sold, necessarily implies permission to sell the Catalogue itself, the case is: complete of an intention to sell under a false representation that the. whole transaction is not only with the knowledge but with the approbation of the Plaintiff;-a falsehood which could only have been resorted to for the purpose of imposing on the public.
All manufacturers are, as a matter of course, restrained from selling their goods under similar misrepresentation, tending to impose on the public and to prejudice others; and it seems singular that the Court should be asked to dissolve the injunction, which prevents the Defendant from selling or publishing this Catalogue.
It is true, however, that, as the injunction extends to restrain the Defendant from publishing" any work being or purporting to be a catalogue of the etchings," it is to be considered whether, under the circumstances, the Defendant has any right so to do. And, in considering this, I shall not regard the fact that the Defendant submits to the injunction against exhibiting, publishing, or parting with the etchings described in the Catalogue, and that the other Defendant, the author and compiler and joint proprietor with the Defendant of the Catalogue, as the Defendant states in his answer, has submitted to the whole of the injunction from part of which the Defendant asks to be released.
Let it be supposed that an injunction were now asked for in the terms of the injunction sought to be dissolved: the case would stand thus :-The affidavits :filed before the answer shew that the etchings in question were the works of the Plaintiff, and retained as his private property-not published or intended for publication, some of them only having been given to private friends; that the collection described in the Catalogue could only have been made by impressions surreptitiously and improperly obtained; that the " Catalogue, and the descriptive and other remarks therein contained, could not have been compiled or made except by means of the possession of the several impressions of the said etchings so surreptitiously obtained as aforesaid." By' the last affidavit of Mr. White, a fact was made known to the Defendant, that, upon one occasion, some of the plates were sent to a Mr. Brown, a printer at Windsor, for the. purpose of having some impressions taken for private use; and that the plates and all the impressions so ordered were returned by Mr. Brown.
The answer does not in any manner question, qualify, or vary the case so made j but simply states, that the Defendant did not know or believe that the copies had been improperly obtained; and that Judge, who was in the possession of them, did, as the Defendant believed, purchase them of one Middleton; but states nothing as to how Middleton obtained them, and states nothing as to Brown, so called to his attention by Mr. White's affidavit.
The result is, that the case stated by the affidavit is not met by the answer, and the answer does not set up any title adverse to the case so made. But, in this state of things the Defendant insists that he is entitled to publish a catalogue of the etchings-that is to say, to publish a description or list of works or compositions of another, made and kept for the private use of that other, the publication; of which was never authorised, and the possession of copies of which could only have been obtained by surreptitious and improper means.
It was said, by one of the learned counsel for the Defendant, that the injunction must rest on the ground of property or breach of trust. Both appear to me to exist in this case. The property in an author or composer of any work, whether of literature, art, or science, such work being. unpublished and kept for his private use or pleasure, cannot be disputed, after the many decisions in which that proposition has been affirmed or assumed. I say "assumed," because, in most of the cases which have been decided, the question was not as to the original right of the author, but whether what had taken place did not amount to a waiver of such right: as, in the case of letters, how far the sending of the letters; in the case of dramatic composition, how far the permitting performance; and, in the case of Abernethy's Lectures, how far the oral delivery of the lecture had deprived the author of any part of his original right and property-a question which could not have arisen if there had not been such original right or property. It would be a waste of time to refer in detail to the cases on this subject.
If, then, such right and property exist in the author of such work, it must so exist exclusively of all other persons. Can any Stranger have any right or title to, or interest in, that which belongs exclusively to another? And yet this is precisely what the Defendant claims, although, by a Strange inconsistency, he does not dispute the general proposition as to the Plaintiff's ,right and property; for he contends, that, admitting the Plaintiff's right and property in the etchings in question, and, as incident to it, the right to prevent publication or exhibition of copies of them, yet he insists that some persons, having had access to certain copies, (how obtained I will presently consider), and having from such copies composed a description and list of the originals, he, the Defendant, is entitled to publish such list and description: that is, that he is entitled, against the will of the owner, to make such use of his exclusive property.
It being admitted that the Defendant could not publish a copy-that is, an impression-of the etchings, how in principle does a catalogue, list, or description differ? A copy or impression of the etchings could only be a means of communicating knowledge and information of the original; and does not a list and description do the same? The means are different, but the object and effect are similar; for in both the object' and effect is to make known to the public, more or less, the unpublished works and compositions of the author, which he is entitled to keep wholly for his private use and pleasure, and to withhold altogether, or so far as he may please, from the knowledge of others.
Cases of abridgments, translations, extracts, and criticisms of published works, have no reference whatever to the present question. They all depend on the extent and right, under the acts, with respect to copyright, and have no analogy to the exclusive right of the author in unpublished compositions, which depend entirely on the common-law right of property. A clerk of Sir John Strange, having, whilst"' in his employ, made an abridgment of such of his manuscript cases as related to evidence, was restrained by Lord Hardwicke, in 1754, from publishing it, the cases themselves being then unpublished.
Upon the first question, therefore, that of property, I am clearly of opinion, that, the exclusive right and interest of the Plaintiff in the compositions and works in question being established, and there being no right or interest whatever in the Defendant, the Plaintiff is entitled to the injunction of this Court to protect him against the invasion of such right and interest by the Defendant, which the publication of any catalogue would undoubtedly be.
But this case by no means depends solely on the question of property; for a breach of trust, confidence, or contract itself would entitle the Plaintiff to the injunction. The Plaintiff's affidavit states the private character of the work or composition, and negatives any license or authority for publication,,(the gift of some of the etchings to private friends not implying any such license or authority); and states distinctly the.' belief 'of the Plaintiff that the Catalogue, and the descriptive and other remarks therein contained, could not have been compiled, except by means of the possession of the several impressions of the etchings, surreptitiously and improperly obtained. To this case no answer is made, the Defendant saying only, that he did not at the time believe the etchings to have been improperly obtained, but not suggesting any mode by which they could have been properly obtained, so as to entitle the possessor to use them for publication.
If, then, these compositions were kept private, except as to some given to private friends, and some sent to Mr. Brown, for the purpose of having certain impressions taken, the possession of the Defendant, or of his partner Judge, must have originated in a breach of trust, confidence, or contract in Brown, or some person in his employ, taking more impressions than were ordered, and retaining the extra number; or in some person to whom copies were given, which is not to be supposed, but which, if it were the origin of the possession of the Defendant, would be equally a breach of trust, confidence, or contract, as was considered in the case of The Duke of Queensberry v. Shebbeare . And upon the evidence on behalf of the Plaintiff, and the absence of any explanation on the part of the Defendant, I am bound to assume that the possession of the etchings or engravings, on the part of the Defendant or Judge, has its foundation in a breach of trust, confidence, or contract, as Lord Eldon did in the case of Mr. Abernethy's Lectures, as reported in 3 Law Journal, 209; and upon this ground, also, I think the Plaintiff's title to the injunction sought to be discharged fully established.
The observations of Vice-Chancellor Wigram, in Tipping v. Clarke , are applicable to this part of the case. He says, "Every clerk employed in a merchant's counting house is under an implied contract that he will not make public that which he learns in the execution of his duty as clerk. If the Defendant has obtained copies of books, it would very probably be by means of some clerk or agent of the Plaintiff; and if he availed himself surreptitiously of the information, which he could not have had except from a person guilty of a breach of contract in communicating it, I think he could not be permitted to avail himself of that breach of contract."
In this opinion I fully concur; and I think that this case -the case supposed by Sir J. Wigram-has actually arisen, or must from the evidence be assumed to have arisen, in the present, and the consequence must be what Sir J. Wigram thought would follow. Could it be contended that the clerk, although not justified in communicating copies of the accounts, would yet be permitted to publish the substance and effect of them?
In that, as in this case, the matter or thing of which the party had obtained knowledge being the exclusive properly of the owner, he has a right to the interposition of this Court to prevent any use being made of it; that is to say, he is entitled to be protected in the exclusive use and enjoyment of that which is exclusively his own.
This was the opinion of Lord Eldon, expressed in the case of Wyatt v. Wilson, in the year 1820, respecting an engraving of George III., during his illness; in which, according to a note with which I have been furnished by Mr. Cooper, he said, "If one of the late King's physicians had kept a diary of what he had heard and seen, this Court would not in the King's lifetime, have permitted him to print or publish it." The case of Sir John Strange's Manuscripts is also applicable to this point.
Some minor points were raised at the bar, to which I will shortly advert. It was contended, there ought not to be any injunction until the Plaintiff had established his title at law; and cases were referred to, in which it was supposed I had laid down rules establishing such a proposition. The cases referred to are cases in which the equitable jurisdiction arose from some legal title, and was exercised solely for the purpose of protecting the party in the enjoyment of such legal title, and they have no application to cases in which this Court exercises an original and independent jurisdiction, not for the protection of a merely legal right, but to prevent what this Court considers and treats as a wrong,whether arising from violation of unquestioned right, or from breach of trust, confidence, or contract, as in the present case, and in the case of Mr. Abernethy's Lectures.
But, even in the cases so referred to, I have always held, that it was for the discretion of the Court to consider whether the Defendant might not sustain greater injury from an improper injunction, than the Plaintiff from delay in granting it. In the present case, where the privacy is the right invaded, the postponing of the injunction would be equivalent to denying it altogether. The interposition of this Court in these cases does not depend on any legal right; and, to be effectual, it must be immediate.
It was then observed, that the injunction was too extensive, as it applied to any catalogue of the etchings in the bill mentioned, and the Plaintiff had shewn a title to only some of the etchings there mentioned. If the Defendant had any interest in this matter, the objection would deserve consideration; but it is clear he has none, being already under an injunction as to all those etchings, to which the Plaintiff has not shewn a title in this case. So that, while the other injunction continues, he could derive no benefit whatever from any alteration in the terms of this injunction; and, if any such alteration were made, it would not affect the question of costs, that not being the object of this motion, which must, therefore, be refused, with costs.
On a motion to dissolve an injunction granted on an original bill, affidavits filed in support of allegations subsequently introduced, by amenedment, to strengthen the Plaintiff's case, cannot be read against the Defendant.
The original bill, on which the injunction was granted, alleged, that the impressions had been surreptitiously obtained. The amended bill charged the particular mode in which they had been obtained, namely, by means of copies which had been improperly kept back when the etchings had been sent to Brown, for the purpose of having some impressions taken. By the answer, Strange disclaimed all knowledge of the facts so stated; but affidavits were filed, on behalf of the Plaintiff, in corroboration of them. A question was raised, whether these affidavits could be used on a motion to dissolve the injunction which had been granted on the original bill, in which these facts were not introduced.
The LORD CHANCELLOR:-
When it· is said, that, in such cases as the present, a Plaintiff cannot file additional affidavits to better his title, I understand by the word "title," not his title to the property, but the title under which he claims the injunction-the right to the injunction. Now, beyond all doubt, these affidavits do affect the right to the injunction; because, whether material or not, the Plaintiff puts them forward ·as a helping-ground on which he asks for the injunction. I think, on that ground, it would be impossible to maintain the admissibility of the affidavits. But the case is free from doubt, because the rule is, that, if you amend your bill without prejudice to the injunction, you do it for the ultimate purpose of the suit; you leave the question of injunction just where it was before, and yon must maintain the injunction on the case originally stated. The cases cited do not apply at all; because those cases establish a very wholesome rule, to deter people from getting injunctions by misrepresenting the facts to the Court. If, however, you get an injunction by misrepresentation or suppressing a fact, which, if communicated to the Court, might have operated on the mind of the Court, although you may shew you are entitled to the injunction, the Court will not let you uphold that injunction so improperly obtained. But it does not follow from that, that, if a Plaintiff shews he is entitled to an injunction, not communicating a fact which may afterwards appear, and which, if communicated, could not possibly have interfered with the granting of the injunction, but would have strengthened the case in favour of the injunction, you are, therefore, to have the injunction dissolved. That would be carrying the doctrine to a very extraordinary length. But here there is no doubt that this fact, which is introduced by amendment, was introduced for the purpose of aiding the Plaintiff's case, and supporting the injunction obtained on the original bill. I think, therefore, on those grounds, the affidavits cannot be received on a question, whether the original injunction was properly granted.
Note 12 Page 123. "The line of demarcation betwixt law and ethics must be strictly observed, and internal actions must not be made the objects of law. This doctrine was fully recognised by the Romans: whence the maxim, 'Interna non curat praetor.' When this fundamental distinction is violated, a door is
opened at once to the most injurious and arbitrary invasions of the rights of individuals by the ruling power: and in general, wherever the judicial power is allowed to encroach too far on the widely extended domain of moral duties, it is in danger of becoming inconsistent and unjust." [Back] Note 17 Page 123. "The line of demarcation betwixt law and ethics must be strictly observed, and internal actions must not be made the objects of law. This doctrine was fully recognised by the Romans: whence the maxim, 'Interna non curat praetor.' When this fundamental distinction is violated, a door is
opened at once to the most injurious and arbitrary invasions of the rights of individuals by the ruling power: and in general, wherever the judicial power is allowed to encroach too far on the widely extended domain of moral duties, it is in danger of becoming inconsistent and unjust." [Back] Note 34 Page 275, where reference is made to the case of Mr. Webb, whose Precedents in Conveyancing were stolen out of his chambers; and to the case of Mr. Forester, whose notes were copied by the clerk of a gentleman to whom he had lent them: in both which cases injunctions were granted to restrain the publication of the works so improperly acquired. [Back]
Note 12 Page 123. "The line of demarcation betwixt law and ethics must be strictly observed, and internal actions must not be made the objects of law. This doctrine was fully recognised by the Romans: whence the maxim, 'Interna non curat praetor.' When this fundamental distinction is violated, a door is opened at once to the most injurious and arbitrary invasions of the rights of individuals by the ruling power: and in general, wherever the judicial power is allowed to encroach too far on the widely extended domain of moral duties, it is in danger of becoming inconsistent and unjust." [Back]
Note 17 Page 123. "The line of demarcation betwixt law and ethics must be strictly observed, and internal actions must not be made the objects of law. This doctrine was fully recognised by the Romans: whence the maxim, 'Interna non curat praetor.' When this fundamental distinction is violated, a door is opened at once to the most injurious and arbitrary invasions of the rights of individuals by the ruling power: and in general, wherever the judicial power is allowed to encroach too far on the widely extended domain of moral duties, it is in danger of becoming inconsistent and unjust." [Back]
Note 34 Page 275, where reference is made to the case of Mr. Webb, whose Precedents in Conveyancing were stolen out of his chambers; and to the case of Mr. Forester, whose notes were copied by the clerk of a gentleman to whom he had lent them: in both which cases injunctions were granted to restrain the publication of the works so improperly acquired. [Back]