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![handle is hein.slavery/ssactsengr0903 and id is 1 raw text is: CHAPPELL V. DAVIDSON
of the Plaintiffs. [121] I think the portrait is a minor incident. It is so common to
put those extraordinary looking objects called portraits on such songs that I do
not think much of that. If the notion of the purchasers concerning the song was
formed from the portrait, they would certainly never mistake one for the other; but
the principal thing is the name of the song and the person by whom it is sung.
Some observations were made as to the unfairness of the Plaintiffs in printing on
the title-page of their song written by George Linley ; they may have no objection
to the public believing that, Linley did compose the music as well as write the words,
still the representation is written by. The Defendants' witness says, however, that
the words written by are so small that the public would not see them. I cannot
say that. They are printed in a fainter character unquestionably. But if the words
written by are seen, nobody seeing written by Linley Would necessarily suppose
it was composed by him. The words written by are so constantly used in a
different sense that nobody would conclude it was composed by him. Then, on the
inside, the name is put where the composer's name generally is, but I cannot lay great
stress on that. There is nothing stated on the outside about composed -it is written
by George Linley ; if they had put the words arranged by him it could not be
otherwise than a truthful representation of what was actually done.
There remains one other point. One of the Plaintiffs alone has sworn that he did
not know of this publication until a recent period; which would be a most unfair
representation if it did not mean that neither he nor any of his partners knew of it.
But looking at the circumstances of this publication, and the Plaintiffs being musical
publishers, and the Defendants' publication having been made some [122] time, I
think it is right that the want of knowledge should be more definitely stated in the
Plaintiffs' evidence; as no knowledge is actually brought home to them, I think it is
not wrong to allow further evidence to be given by affidavit to prove that neither of
the Plaintiffs knew of the infringement by the Defendants until a recent period.
August 3. On this day the required evidence was read to the Court, and the Vice-
Chancellor thereupon made an order for an injunction to restrain the Defendants
from printing, publishing, selling, exposing for sale, or otherwise disposing of the
said song Minnie Dale, or any copy or copies thereof, or any other publication
containing a colourable imitation of the name, title or title-page of the Plaintiffs'
said song.
[123] CHAPPELL v. DAVIDSON. Nov. 26, 1855.
[S. C. varied on appeal, 8 De G. M. & G. 1 ; 44 E. R. 289.]
Injunction. Good Faith of the Plaintiffs. Costs.
The Plaintiffs having published a song, on the title-page of which was a portrait of
Madame Anna Thillon, and the words Minnie, sung by Madame Anna Thillon
and Miss Dolby at Jullien's Concerts, written by George Linley, &c., and this song
having become very popular, the Defendant subsequently published another song,
consisting of different words to the same air (in which there was no copyright),
with a title-page on which was a different portrait of Madame Anna Thillon,
copied from an American publication, and the words Minnie, dear Minnie.
Madame Anna Thillon. Held, that this was an obvious attempt to pass off the
Defendant's publication for that of the Plaintiffs, which had obtained the public
favour, and this attempt was restrained by an interlocutory injunction without
imposing upon the parties the necessity of trying the right at law.
Held, also, that the words Written by George Linley, who was chiefly known as a
musical composer, on the title-page of the Plaintiffs' song, did not so clearly manifest
an intention to mislead the public into the belief that the music was composed
by him, as to deprive the Plaintiffs of their right to the injunction.
Nor did the entry at Stationers' Hall of the music as well as the words of the song,
although the Plaintiffs might have entered only those parts of the publication to
which they had an exclusive right.
The Defendant could not escape his liability by cautioning his shopmen to explain to
2 X. & J. 121.
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