Samuel Blatchford

“ If a man mixes what belongs to him with what belongs to me, and the mixture be forbidden by the law, he must again separate them, and he must bear all the mischief and loss which the separation may occasion. ”

“ Such work of the reporter, which may be the lawful subject of copyright, comprehends also the order of arrangement of the cases, the division of the reports into volumes, the numbering and paging of the volumes, the table of the cases cited in the opinions, (where such table is made,) and the subdivision of the index into appropriate, condensed titles, involving the distribution of the subjects of the various head-notes, and cross-references, where such exist. A publication of the mere opinions of the court, in a volume, without more, would be comparatively valueless to any one. ”

“ But, although there can be no copyright in the opinions of the judges, or in the work done by them in their official capacity as judges, (Banks v Manchester, ante, 36,) yet there is no ground of public policy on which a reporter who prepares a volume of law reports, of the character of those in this case, can, in the absence of a prohibitory statute, be debarred from obtaining a copyright for the volume which will cover the matter which is the result of his intellectual labor. ”

“ If the volume contains matter to which a copyright could not properly extend, incorporated with matter proper to be covered by a copyright, the two necessarily going together when the volume is sold, as a unit, and it being impossible to separate the profits on the one from the profits on the other, and the lawful matter being useless without the unlawful, it is the defendants who are responsible for having blended the lawful with the unlawful, and they must abide the consequences, on the same principle that he who has wrongfully produced a confusion of goods must alone suffer. ”

“ Gladding, 17 How. 447, that the penalties given by section 7 of the copyright act of 1831 cannot be enforced in a suit in equity. The provision of the interlocutory decree for an examination of the defendants in regard to the subject of inquiry, and for the production by them of their account-books and papers, is the usual provision in an interlocutory decree in a suit in equity for the infringement of a copyright. As the forfeiture of the volumes could not be obtained by this suit, although prayed for in the bill, the evidence was admissible. ”

“ It is contended by the defendants that the plaintiff has not proved the date of the publication of any of the volumes in question; that the only proof he has offered is in the form of certificates by the clerk of the district court, showing the dates of the filing of the printed titles of the volumes; and that he has failed to show whether such filing preceded or followed the publication of the volumes. ”

“ While it is admitted that volumes 32 to 38, as published by the defendants, were, with the exception of the footnotes, prepared entirely from the plaintiff's volumes, it is contended that volumes 39 and 41 to 46 were, with the exception of the opinions of the judges, prepared from the records and files of the supreme court of Illinois. The evidence on the subject of infringement is very full and minute. ”

“ The memorandum in the present case of the fact and date of the deposit, purporting to be signed by the clerk, must be regarded as a sufficient prima facie certificate of such deposit, and as competent evidence of the fact and of the date, without further proof of the signature of the clerk, that being on the same paper with his signature as clerk to the certificate of the copy of the record of the deposit of the title, and it being open to the defendants to show that his signature to the memorandum was not genuine. ”

“ In regard to the general question of the profits to be accounted for by the defendants, as to the volumes in question, the only proper rule to be adopted is to deduct from the selling price the actual and legitimate manufacturing cost. ”

“ Freeman was necessary, because the copyright had not yet been taken. Moreover, the defendants, in all their transactions with the plaintiff, recognized his title to the copyrights of volumes 32 to 38, as to which the titles had been deposited by E. B. Myers & Chandler, and parol evidence that the plaintiff owned the copyrights of volumes 32 to 46, at the time the infringements were committed, was introduced without objection, and was sufficient prima facie evidence until rebutted. ”