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FERRIS v. FROHMAN.

decided: February 19, 1912.

FERRIS
v.
FROHMAN.



ERROR TO THE SUPREME COURT OF THE STATE OF ILLINOIS.

Author: Hughes

[ 223 U.S. Page 429]

 MR. JUSTICE HUGHES delivered the opinion of the court.

This is a writ of error to the Supreme Court of Illinois.

The suit was brought by Charles Frohman, Charles Haddon Chambers, and Stephano Gatti (defendants in error), to restrain the production of what was alleged to be a piratical copy of a play known as "The Fatal Card." Its authors were Charles Haddon Chambers and B.C. Stephenson, British subjects resident in London, who composed

[ 223 U.S. Page 430]

     it there in 1894. The firm of A. & S. Gatti, theatrical managers of London, of which the complainant Gatti is the surviving partner, became interested with the authors and on September 6, 1894, the play was first performed in London. It was registered under the British Statutes on October 31, 1894, and again on November 8, 1894. Charles Frohman, of New York, by agreement of June 13, 1894, obtained the right of production in this country for five years. On March 25, 1895, Frohman acquired all the interest of Stephenson in the play in and for the United States, and it was extensively represented under his supervision. It was not copyrighted here.

George E. McFarlane made an adaptation of this play, called it by the same name, and transferred it to the plaintiff in error, Richard Ferris, of Illinois, who copyrighted it in August, 1900, under the laws of the United States, and later caused it to be performed in various places in this country. The adapted play differed from the original in various details, but not in its essential features.

The Superior Court of Cook County found that the complainants were the sole owners of the original play; that it had never been published or otherwise dedicated to the public in the United States or elsewhere; and that the Ferris play was substantially identical with it. Ferris was directed to account, and was perpetually restrained from producing the adaptation which he had copyrighted. The Appellate Court for the First District reversed the decree (131 Ill. App. 307), but on appeal to the Supreme Court of Illinois this decision was reversed and the decree of the Superior Court was affirmed. 238 Illinois, 430.

The defendants in error contest the jurisdiction of this court upon the ground that the bill was based entirely upon a common-law right of property, and insist that the upholding of this right by the state court raises no Federal question. But the complainants sued, not simply to maintain their common-law right in the original play,

[ 223 U.S. Page 431]

     but by virtue of it to prevent the defendant from producing the adapted play which he had copyrighted under the laws of the United States. They challenged a right which the copyright, if sustainable, secured. R.S. 4952. It was necessary for them to make the challenge, for they could not succeed unless this right were denied. Ferris stood upon the copyright. That it had been obtained was alleged in the bill, was averred in the answer, and was found by the court. The fact that the court reached its conclusion in favor of the complainants, by a consideration, on common-law principles, of their property in the original play does not alter the effect of the decision. By the decree Ferris was permanently enjoined "from in any manner using, . . . selling, producing, or performing . . . the said defendant's copyrighted play hereinbefore referred to for any purpose." The decision thus denied to him a Federal right specially set up and claimed within the meaning of ยง 709 of the Revised Statutes of the United States. This court, therefore, has jurisdiction. C., B. & Q. Ry. Co. v. Drainage Commissioners, 200 U.S. 561, 580, 581; McGuire v. Commonwealth, 3 Wall. 382, 385; Anderson v. Carkins, 135 U.S. 483, 486; Shively v. Bowlby, 152 U.S. 1, 9; Northern Pacific R.R. Co. v. Colburn, 164 U.S. 383, 385, 386; Green Bay &c. Canal Co. v. Patten Paper Co., 172 U.S. 58, 67, 68.

The substantial identity of the two plays was not disputed in the appellate courts of Illinois and must be deemed to be established. The contention was, and is, that after the public performance of the original play in London in 1894, the owners had no common-law right, but only the rights conferred by the British statutes; and that Frohman's interest (save the license which expired in 1899) was subsequently acquired. Hence, it is said, the play not being ...


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