U.S. Supreme Court Mifflin v. R. H. White Co., 190
U.S. 260 (1903) Mifflin v. R. H. White
Company No. 268 Argued April 30, May 1,
1903 Decided June 1, 1903 190
U.S. 260 APPEAL FROM THE CIRCUIT
COURT OF APPEALS FOR THE FIRST
CIRCUIT Syllabus The serial publication of an author's work in a magazine with
his consent and before any steps are taken to secure a copyright is
such a publication as vitiates, under § 4 of the act of 1831, the
copyright afterwards attempted to be taken out. Holmes v.
Hurst, 174 U. S. 82 . Where
there is no evidence that the publishers were the assignees or
acted as the agents of the author for the purpose of taking out
copyright, the copyright entry of a magazine, made by them under
the act of 1831 and under the title of the magazine, will not
validate the copyright entry subsequently made under a different
title by the author of a portion of the contents of the magazine. And see Mifflin v. Dutton, post, p. 190 U. S.
266 .

															This was a bill in equity by the firm of Houghton, Mifflin &
Co., as assignees of the late Oliver Wendell Holmes, against Page 190 U. S. 261 the R. H. White Company, for a violation of the copyright upon
the "Professor at the Breakfast Table." The work was published
serially during the year 1859, in the Atlantic Monthly Magazine at
first by Phillips, Sampson & Co., and later by the firm of
Ticknor & Fields. The first ten parts were published from
January to October, 1859, by Phillips, Sampson & Co. without
copyright protection. The remaining two numbers for the months of
November and December, 1859, were entered for copyright by Ticknor
& Fields, whose copyright purported to cover the entire
magazine. After its publication serially had been completed, Dr.
Holmes published the entire work in one volume, containing a proper
notice of copyright.

															Upon this state of facts, the circuit court dismissed the bill,
107 F. 708, and, upon appeal to the circuit court of appeals, that
court affirmed the decree. 112 F. 1004.

															MR. JUSTICE BROWN delivered the opinion of the Court.

															That the copyright taken but by the author after the serial
publication of his work in the Atlantic Monthly did not prevent the
republication of so much of such serial as had appeared in the
magazine prior to December, 1859, and before any steps taken to
obtain a copyright, was settled by this Court in Holmes v.
Hurst, 174 U. S. 82 ,
wherein we held that the appearance of a work in a magazine, by
consent of the author, was such a publication as vitiated the
copyright under section 4 of the Copyright Act of 1831. 4 Stat.
436.

															The question presented by this case is whether entering for
copyright the last two parts of the Professor at the Breakfast
Table in the December number of 1859 of the Atlantic Monthly by
Ticknor & Fields, proprietors of the magazine, was sufficient
to save the rights of the author, the plaintiff Page 190 U. S. 262 having purchased such rights from the executor of the late Dr.
Holmes.

															By section 1 of the Act of February 3, 1831,

															"the author or authors of any book or books . . . not printed
and published, . . . and the executors, administrators, or legal
assigns of such person or persons, shall have the sole right and
liberty of printing,"

															etc. By section 4,

															"no person shall be entitled to the benefit of this act unless
he shall, before publication, deposit a printed copy of the title
of such book . . . in the clerk's office of the district court of
the district wherein the author or proprietor shall reside,"

															when the clerk is directed to make a record of the same, in a
form prescribed, wherein is stated the date, the name of the author
or proprietor, etc., and, by section 5, the person entitled to the
benefit of the act shall give information of his copyright by
giving notice on the title page, or page immediately following, in
a prescribed form. Construing these statutes together, it would
seem that the word "proprietor," in the fourth section, must
practically have the same meaning as "legal assigns" in the first
section, and was designed to give to the legal assignee of any
author or authors the right to take out the copyright in his own
name.

															There is no evidence in this case, however, that Dr. Holmes, the
author of the Professor at the Breakfast Table, ever assigned to
either of the proprietors of the magazine the authority to
copyright his work. While there is an allegation in the bill, upon
information and belief, that the work -- the first ten parts of
which were published by Phillips, Sampson & Co. -- was printed,
published, and sold by said Phillips, Sampson & Co. "by and
with the consent and authority of the said Oliver Wendell Holmes,
and in accordance with an agreement" made with him by the said
firm, whereby he granted to them the right to print, publish, and
sell his work in the said magazine, there is no allegation that
either Phillips, Sampson & Co. or their successors, Ticknor
& Fields, were authorized to enter the Professor at the
Breakfast Table for copyright, either in their own names or in the
name of the author; nor does there appear to be any connection
whatever between the copyright taken out by Ticknor & Fields
and that subsequently taken out by Dr. Holmes. Page 190 U. S. 263 The entry of the Atlantic Monthly by Ticknor & Fields was
evidently not intended for the protection of the author of each
article therein appearing, but for their own protection and to
prevent the republication of the December number of the Atlantic
Monthly. While, without further explanation, it might perhaps be
inferred that the author of a book who places it in the hands of
publishers for publication might be presumed to intend to authorize
them to obtain a copyright, in their own names, Pulte v.
Derby, 5 McLean 328; Belford v. Scribner, 144 U. S. 488 , 144 U. S. 504 ,
it is apparent that there was no such intention in this case,
inasmuch as, almost immediately after the publication of the
December number of the magazine, Dr. Holmes himself entered the
book, under its correct title, for copyright. That right was never
assigned until 1895, when it was turned over to the plaintiffs by
the executor of the author. Had the copyright been entered by
Ticknor & Fields, as agents of Dr. Holmes, it is possible it
might have been sustained, but there is nothing to indicate that
Ticknor & Fields were acting for anyone else than themselves,
and there is nothing to show that Dr. Holmes ever assented to their
copyrighting his work. It is impossible to see how the copyright
subsequently obtained by Dr. Holmes can derive any additional
support from the fact that Ticknor & Fields chose to copyright
the final chapters of the work in the Atlantic Monthly, since there
is nothing to indicate that he even knew that any such proceedings
were contemplated, much less that he authorized it.

															But even assuming that it was done by his authority, there is an
additional question whether the entry of a book called the
"Atlantic Monthly Magazine," in the name of Ticknor & Fields,
is equivalent to entering a book called "The Professor at the
Breakfast Table," by Oliver Wendell Holmes. The two entries were in
the following form:

															1. Entry of the Atlantic Monthly for the month of December,
1859: "Entered according to act of Congress in the year 1859, by
Ticknor & Fields in the clerk's office of the district court of
the district of Massachusetts."

															2. Entry of The Professor at the Breakfast Table: "Entered
according to act of Congress in the year 1859, by Oliver Page 190 U. S. 264 Wendell Holmes, in the clerk's office of the District Court of
the District of Massachusetts."

															The object of the notice being to warn the public against the
republication of a certain book by a certain author or proprietor,
it is difficult to see how a person reading either of these notices
would understand that they were intended for the protection of the
same work. On their face, they would seem to be designed for an
entirely different purpose. While, owing to the great reputation of
the work and the fame of its author, we might infer in this
particular case that no publisher was actually led to believe that
the book copyrighted by Dr. Holmes was not the same work which had
appeared in the Atlantic Monthly, that would be an unsafe criterion
to apply to a work of less celebrity. It might well be that a book
not copyrighted, or insufficiently copyrighted, by the author might
be republished by another in total ignorance of the fact that it
had previously appeared serially in a copyrighted magazine. It is
incorrect to say that any form of notice is good which calls
attention to the person of whom inquiry can be made and information
obtained, since, the right being purely statutory, the public may
justly demand that the person claiming a monopoly of publication
shall pursue, in substance at least, the statutory method of
securing it. Thompson v. Hubbard, 131 U.
S. 123 . In determining whether a notice of copyright is
misleading, we are not bound to look beyond the face of the notice
and inquire whether, under the facts of the particular case, it is
reasonable to suppose an intelligent person could actually have
been misled.

															With the utmost desire to give a construction to the statute
most liberal to the author, we find it impossible to say that the
entry of a book under one title by the publishers can validate the
entry of another book of a different title by another person.

															The decree of the court of appeals was correct, and it is
therefore Affirmed.

Summary:
The Supreme Court ruled that the serial publication of an author's work in a magazine with their consent before obtaining a copyright invalidates the subsequent copyright. In this case, the author's work was published in a magazine without copyright protection, and the copyright taken out by the author after serial publication did not prevent the republishing of the serial.

The Court also held that the copyright entry of a magazine by its proprietors under one title is not equivalent to entering a book under a different title by the author. The notices of copyright for the magazine and the book were distinct and would not be understood by the public as protecting the same work.

The Court affirmed the lower court's decision, upholding the invalidation of the author's copyright.


U.S. Supreme Court International News Service v.
Associated Press, 248
U.S. 215 (1918) International News Service v.
Associated Press No. 221 Argued May 2, 3, 1918 Decided December 23,
1918 248
U.S. 215 CERTIORARI TO THE CIRCUIT COURT OF
APPEALS FOR THE SECOND
CIRCUIT Syllabus An incorporated association of proprietors and representatives
of many newspapers, engaged in gathering news and distributing it
to its members for publication, is a proper party to represent them
in a suit to protect their interests in news so collected against
the illegal acts of a rival organization. Equity Rule 38. P. 248 U. S.
233 .

															The right to object to the nonjoinder of parties may be treated
as Page 248 U. S. 216 waived if not made specifically in the courts below. Equity
Rules 43, 44. P. 248 U. S.
233 .

															A news article in a newspaper may be copyrighted under the Act
of March 4, 1909, but news, as such, is not copyrightable. P. 248 U. S.
234 As against the public, any special interest of the producer of
uncopyrighted news matter is lost upon the first publication. Id. But one who gathers news at pains and expense, for the purpose
of lucrative publication, may be said to have a quasi -property in the results of his enterprise as against
a rival in the same business, and the appropriation of those
results at the expense and to the damage of the one and for the
profit of the other is unfair competition against which equity will
afford relief. P. 248 U. S.
236 .

															An incorporated association of newspaper publishers gathered
news at pains and expense, and, without applying for copyright,
telegraphed it daily to its members throughout the country for
their exclusive use in publication, they paying assessments
therefor; a rival corporation, serving other newspapers for
pecuniary returns, made a practice of obtaining this news through
early publications in newspapers and on bulletins of the first
company's members, and of sending it by telegraph, either as so
taken or in rewritten form, to its own customers, thus enabling
them to compete with the newspapers of the first company in the
prompt publication of news obtained for the benefit of the latter
by their exclusive agency and at their expense. Held that
the first company and its members, as against the second company,
had an equitable quasi -property in the news, even after
the early publications; that the use made of it by the second
company not as a mere basis for independent investigation, but by
substantial appropriation for its own gain and at the expense and
to the damage of their enterprise, amounted to unfair competition
which should be enjoined irrespective of the false pretense
involved in rewriting articles and in distributing the news without
mentioning the source, for this, while accentuating the wrong, was
not of its essence. Pp. 248 U. S. 237 et seq., 248 U. S.
242 .

															Upon the pleadings and proofs in this case, held that
complainant was not debarred from relief upon the ground of unclean
hands by the fact that, following a practice engaged in by the
defendant also and by news agencies generally, it had used the
defendant's news items, when published, as "tips" for
investigations, the results of which it sold. P. 248 U. S.
242 .

															245 F. 244 affirmed.

															The case is stated in the opinion. Page 248 U. S. 229 MR. JUSTICE PITNEY delivered the opinion of the Court.

															The parties are competitors in the gathering and distribution of
news and its publication for profit in newspapers throughout the
United States. The Associated Press, which was complainant in the
district court, is a cooperative organization, incorporated under
the Membership Corporations Law of the State of New York, its
members being individuals who are either proprietors or
representatives of about 950 daily newspapers published in all
parts of the United States. That a corporation may be organized
under that act for the purpose of gathering news for the use and
benefit of its members and for publication in newspapers owned or
represented by them is recognized by an amendment enacted in 1901
(Laws N.Y.1901, c. 436). Complainant gathers in all parts of the
world, by means of various instrumentalities of its own, by
exchange with its members, and by other appropriate means, news and
intelligence of current and recent events of interest to newspaper
readers and distributes it daily to its members for publication in
their newspapers. The cost of the service, amounting approximately
to $3,500,000 per annum, is assessed upon the members and becomes a
part of their costs of operation, to be recouped, presumably with
profit, through Page 248 U. S. 230 the publication of their several newspapers. Under complainant's
bylaws, each member agrees upon assuming membership that news
received through complainant's service is received exclusively for
publication in a particular newspaper, language, and place
specified in the certificate of membership, that no other use of it
shall be permitted, and that no member shall furnish or permit
anyone in his employ or connected with his newspaper to furnish any
of complainant's news in advance of publication to any person not a
member. And each member is required to gather the local news of his
district and supply it to the Associated Press, and to no one
else.

															Defendant is a corporation organized under the laws of the State
of New Jersey, whose business is the gathering and selling of news
to its customers and clients, consisting of newspapers published
throughout the United States, under contracts by which they pay
certain amounts at stated times for defendant's service. It has
widespread news-gathering agencies; the cost of its operations
amounts, it is said, to more than $2,000,000 per annum, and it
serves about 400 newspapers located in the various cities of the
United States and abroad, a few of which are represented, also, in
the membership of the Associated Press.

															The parties are in the keenest competition between themselves in
the distribution of news throughout the United States, and so, as a
rule, are the newspapers that they serve, in their several
districts.

															Complainant in its bill, defendant in its answer, have set forth
in almost identical terms the rather obvious circumstances and
conditions under which their business is conducted. The value of
the service, and of the news furnished, depends upon the promptness
of transmission, as well as upon the accuracy and impartiality of
the news, it being essential that the news be transmitted to
members or subscribers as early or earlier than similar information
can be furnished to competing newspapers Page 248 U. S. 231 by other news services, and that the news furnished by each
agency shall not be furnished to newspapers which do not contribute
to the expense of gathering it. And further, to quote from the
answer:

															"Prompt knowledge and publication of worldwide news is essential
to the conduct of a modern newspaper, and, by reason of the
enormous expense incident to the gathering and distribution of such
news, the only practical way in which a proprietor of a newspaper
can obtain the same is either through cooperation with a
considerable number of other newspaper proprietors in the work of
collecting and distributing such news, and the equitable division
with them of the expenses thereof, or by the purchase of such news
from some existing agency engaged in that business."

															The bill was filed to restrain the pirating of complainant's
news by defendant in three ways: first, by bribing employees of
newspapers published by complainant's members to furnish Associated
Press news to defendant before publication, for transmission by
telegraph and telephone to defendant's clients for publication by
them; second, by inducing Associated Press members to violate its
bylaws and permit defendant to obtain news before publication; and,
third, by copying news from bulletin boards and from early editions
of complainant's newspapers and selling this, either bodily or
after rewriting it, to defendant's customers.

															The district court, upon consideration of the bill and answer,
with voluminous affidavits on both sides, granted a preliminary
injunction under the first and second heads, but refused at that
stage to restrain the systematic practice, admittedly pursued by
defendant, of taking news bodily from the bulletin boards and early
editions of complainant's newspapers and selling it as its own. The
court expressed itself as satisfied that this practice amounted to
unfair trade, but, as the legal question was Page 248 U. S. 232 one of first impression, it considered that the allowance of an
injunction should await the outcome of an appeal. 240 F. 983, 996.
Both parties having appealed, the circuit court of appeals
sustained the injunction order so far as it went, and, upon
complainant's appeal, modified it and remanded the cause with
directions to issue an injunction also against any bodily taking of
the words or substance of complainant's news until its commercial
value as news had passed away. 245 F. 244, 253. The present writ of
certiorari was then allowed. 245 U.S. 644.

															The only matter that has been argued before us is whether
defendant may lawfully be restrained from appropriating news taken
from bulletins issued by complainant or any of its members, or from
newspapers published by them, for the purpose of selling it to
defendant's clients. Complainant asserts that defendant's admitted
course of conduct in this regard both violates complainant's
property right in the news and constitutes unfair competition in
business. And notwithstanding the case has proceeded only to the
stage of a preliminary injunction, we have deemed it proper to
consider the underlying questions, since they go to the very merits
of the action and are presented upon facts that are not in dispute.
As presented in argument, these questions are: (1) whether there is
any property in news; (2) whether, if there be property in news
collected for the purpose of being published, it survives the
instant of its publication in the first newspaper to which it is
communicated by the news gatherer, and (3) whether defendant's
admitted course of conduct in appropriating for commercial use
matter taken from bulletins or early editions of Associated Press
publications constitutes unfair competition in trade.

															The federal jurisdiction was invoked because of diversity of
citizenship, not upon the ground that the suit arose under the
copyright or other laws of the United Page 248 U. S. 233 States. Complainant's news matter is not copyrighted. It is said
that it could not, in practice, be copyrighted, because of the
large number of dispatches that are sent daily, and, according to
complainant's contention, news is not within the operation of the
copyright act. Defendant, while apparently conceding this,
nevertheless invokes the analogies of the law of literary property
and copyright, insisting as its principal contention that, assuming
complainant has a right of property in its news, it can be
maintained (unless the copyright act by complied with) only by
being kept secret and confidential, and that, upon the publication
with complainant's consent of uncopyrighted news of any of
complainant's members in a newspaper or upon a bulletin board, the
right of property is lost, and the subsequent use of the news by
the public or by defendant for any purpose whatever becomes
lawful.

															A preliminary objection to the form in which the suit is brought
may be disposed of at the outset. It is said that the circuit court
of appeals granted relief upon considerations applicable to
particular members of the Associated Press, and that this was
erroneous because the suit was brought by complainant as a
corporate entity, and not by its members, the argument being that
their interests cannot be protected in this proceeding any more
than the individual rights of a stockholder can be enforced in an
action brought by the corporation. From the averments of the bill,
however, it is plain that the suit in substance was brought for the
benefit of complainant's members, and that they would be proper
parties, and, except for their numbers, perhaps necessary parties.
Complainant is a proper party to conduct the suit as representing
their interest, and since no specific objection, based upon the
want of parties, appears to have been made below, we will treat the
objection as waived. See Equity Rules 38, 43, 44. Page 248 U. S. 234 In considering the general question of property in news matter,
it is necessary to recognize its dual character, distinguishing
between the substance of the information and the particular form or
collocation of words in which the writer has communicated it.

															No doubt news articles often possess a literary quality, and are
the subject of literary property at the common law; nor do we
question that such an article, as a literary production, is the
subject of copyright by the terms of the act as it now stands. In
an early case, at the circuit, Mr. Justice Thompson held in effect
that a newspaper was not within the protection of the copyright
acts of 1790 and 1802. Clayton v. Stone, 2 Paine 382, 5
Fed.Cas. No. 2,872. But the present act is broader; it provides
that the works for which copyright may be secured shall include
"all the writings of an author," and specifically mentions
"periodicals, including newspapers." Act of March 4, 1909, c. 320,
§§ 4 and 5, 35 Stat. 1075, 1076. Evidently this admits to copyright
a contribution to a newspaper, notwithstanding it also may convey
news, and such is the practice of the copyright office, as the
newspapers of the day bear witness. See Copyright Office
Bulletin No. 15 (1917) pp. 7, 14, 16, 17.

															But the news element -- the information respecting current
events contained in the literary production -- is not the creation
of the writer, but is a report of matters that ordinarily are publici juris; it is the history of the day. It is not to
be supposed that the framers of the Constitution, when they
empowered Congress

															"to promote the progress of science and useful arts, by securing
for limited times to authors and inventors the exclusive right to
their respective writings and discoveries"

															(Const. Art. I, § 8, par. 8), intended to confer upon one who
might happen to be the first to report a historic event the
exclusive right for any period to spread the knowledge of it.

															We need spend no time, however, upon the general Page 248 U. S. 235 question of property in news matter at common law, or the
application of the copyright act, since it seems to us the case
must turn upon the question of unfair competition in business. And,
in our opinion, this does not depend upon any general right of
property analogous to the common law right of the proprietor of an
unpublished work to prevent its publication without his consent;
nor is it foreclosed by showing that the benefits of the copyright
act have been waived. We are dealing here not with restrictions
upon publication, but with the very facilities and processes of
publication. The peculiar value of news is in the spreading of it
while it is fresh, and it is evident that a valuable property
interest in the news, as news, cannot be maintained by keeping it
secret. Besides, except for matters improperly disclosed, or
published in breach of trust or confidence, or in violation of law,
none of which is involved in this branch of the case, the news of
current events may be regarded as common property. What we are
concerned with is the business of making it known to the world, in
which both parties to the present suit are engaged. That business
consists in maintaining a prompt, sure, steady, and reliable
service designed to place the daily events of the world at the
breakfast table of the millions at a price that, while of trifling
moment to each reader, is sufficient in the aggregate to afford
compensation for the cost of gathering and distributing it, with
the added profit so necessary as an incentive to effective action
in the commercial world. The service thus performed for newspaper
readers is not only innocent but extremely useful in itself, and
indubitably constitutes a legitimate business. The parties are
competitors in this field, and, on fundamental principles,
applicable here as elsewhere, when the rights or privileges of the
one are liable to conflict with those of the other, each party is
under a duty so to conduct its own business as not unnecessarily or
unfairly to injure Page 248 U. S. 236 that of the other. Hitchman Coal & Coke Co. v.
Mitchell, 245 U. S. 229 , 245 U. S.
254 .

															Obviously the question of what is unfair competition in business
must be determined with particular reference to the character and
circumstances of the business. The question here is not so much the
rights of either party as against the public, but their rights as
between themselves. See Morison v. Moat, 9 Hare 241, 258.
And, although we may and do assume that neither party has any
remaining property interest as against the public in uncopyrighted
news matter after the moment of its first publication, it by no
means follows that there is no remaining property interest in it as
between themselves. For, to both of them alike, news matter,
however little susceptible of ownership or dominion in the absolute
sense, is stock in trade, to be gathered at the cost of enterprise,
organization, skill, labor, and money, and to be distributed and
sold to those who will pay money for it, as for any other
merchandise. Regarding the news therefore as but the material out
of which both parties are seeking to make profits at the same time
and in the same field, we hardly can fail to recognize that for
this purpose, and as between them, it must be regarded as quasi -property, irrespective of the rights of either as
against the public.

															In order to sustain the jurisdiction of equity over the
controversy, we need not affirm any general and absolute property
in the news as such. The rule that a court of equity concerns
itself only in the protection of property rights treats any civil
right of a pecuniary nature as a property right ( In re
Sawyer, 124 U. S. 200 , 124 U. S. 210 ; In re Debs, 158 U. S. 564 , 158 U. S.
593 ), and the right to acquire property by honest labor
or the conduct of a lawful business is as much entitled to
protection as the right to guard property already acquired
( Truax v. Raich, 239 U. S. 33 , 239 U. S. 37 -38; Brennan v. United Hatters, 73 N.J.L. 729, 742; Page 248 U. S. 237 Barr v. Essex Trades Council, 53 N.J.Eq. 101). It is
this right that furnishes the basis of the jurisdiction in the
ordinary case of unfair competition.

															The question whether one who has gathered general information or
news at pains and expense for the purpose of subsequent publication
through the press has such an interest in its publication as may be
protected from interference has been raised many times, although
never, perhaps, in the precise form in which it is now
presented. Board of Trade v. Christie Grain & Stock Co., 198 U. S. 236 , 198 U. S. 250 ,
related to the distribution of quotations of prices on dealings
upon a board of trade, which were collected by plaintiff and
communicated on confidential terms to numerous persons under a
contract not to make them public. This Court held that, apart from
certain special objections that were overruled, plaintiff's
collection of quotations was entitled to the protection of the law;
that, like a trade secret, plaintiff might keep to itself the work
done at its expense, and did not lose its right by communicating
the result to persons, even if many, in confidential relations to
itself, under a contract not to make it public, and that strangers
should be restrained from getting at the knowledge by inducing a
breach of trust.

															In National Tel. News Co. v. Western Union Tel. Co., 119 F. 294, the Circuit Court of Appeals for the Seventh Circuit
dealt with news matter gathered and transmitted by a telegraph
company, and consisting merely of a notation of current events
having but a transient value due to quick transmission and
distribution, and, while declaring that this was not copyrightable
although printed on a tape by tickers in the offices of the
recipients, and that it was a commercial, not a literary, product,
nevertheless held that the business of gathering and communicating
the news -- the service of purveying it -- was a legitimate
business, meeting a distinctive commercial want and adding to the
facilities of the business Page 248 U. S. 238 world, and partaking of the nature of property in a sense that
entitled it to the protection of a court of equity against
piracy.

															Other cases are cited, but none that we deem it necessary to
mention.

															Not only do the acquisition and transmission of news require
elaborate organization and a large expenditure of money, skill, and
effort; not only has it an exchange value to the gatherer,
dependent chiefly upon its novelty and freshness, the regularity of
the service, its reputed reliability and thoroughness, and its
adaptability to the public needs; but also, as is evident, the news
has an exchange value to one who can misappropriate it.

															The peculiar features of the case arise from the fact that,
while novelty and freshness form so important an element in the
success of the business, the very processes of distribution and
publication necessarily occupy a good deal of time. Complainant's
service, as well as defendant's, is a daily service to daily
newspapers; most of the foreign news reaches this country at the
Atlantic seaboard, principally at the City of New York, and because
of this, and of time differentials due to the earth's rotation, the
distribution of news matter throughout the country is principally
from east to west; and, since in speed the telegraph and telephone
easily outstrip the rotation of the earth, it is a simple matter
for defendant to take complainant's news from bulletins or early
editions of complainant's members in the eastern cities and, at the
mere cost of telegraphic transmission, cause it to be published in
western papers issued at least as early as those served by
complainant. Besides this, and irrespective of time differentials,
irregularities in telegraphic transmission on different lines, and
the normal consumption of time in printing and distributing the
newspaper, result in permitting pirated news to be placed in the
hands of defendant's readers sometimes simultaneously with the
service Page 248 U. S. 239 of competing Associated Press papers, occasionally even
earlier.

															Defendant insists that when, with the sanction and approval of
complainant and as the result of the use of its news for the very
purpose for which it is distributed, a portion of complainant's
members communicate it to the general public by posting it upon
bulletin boards so that all may read, or by issuing it to
newspapers and distributing it indiscriminately, complainant no
longer has the right to control the use to be made of it; that,
when it thus reaches the light of day, it becomes the common
possession of all to whom it is accessible, and that any purchaser
of a newspaper has the right to communicate the intelligence which
it contains to anybody and for any purpose, even for the purpose of
selling it for profit to newspapers published for profit in
competition with complainant's members.

															The fault in the reasoning lies in applying as a test the right
of the complainant as against the public, instead of considering
the rights of complainant and defendant, competitors in business,
as between themselves. The right of the purchaser of a single
newspaper to spread knowledge of its contents gratuitously, for any
legitimate purpose not unreasonably interfering with complainant's
right to make merchandise of it, may be admitted, but to transmit
that news for commercial use, in competition with complainant --
which is what defendant has done and seeks to justify -- is a very
different matter. In doing this, defendant, by its very act, admits
that it is taking material that has been acquired by complainant as
the result of organization and the expenditure of labor, skill, and
money, and which is salable by complainant for money, and that
defendant, in appropriating it and selling it as its own, is
endeavoring to reap where it has not sown, and by disposing of it
to newspapers that are competitors of complainant's members, is
appropriating to itself the harvest Page 248 U. S. 240 of those who have sown. Stripped of all disguises, the process
amounts to an unauthorized interference with the normal operation
of complainant's legitimate business precisely at the point where
the profit is to be reaped, in order to divert a material portion
of the profit from those who have earned it to those who have not,
with special advantage to defendant in the competition because of
the fact that it is not burdened with any part of the expense of
gathering the news. The transaction speaks for itself, and a court
of equity ought not to hesitate long in characterizing it as unfair
competition in business.

															The underlying principle is much the same as that which lies at
the base of the equitable theory of consideration in the law of
trusts -- that he who has fairly paid the price should have the
beneficial use of the property. Pom.Eq. Jur. § 981. It is no answer
to say that complainant spends its money for that which is too
fugitive or evanescent to be the subject of property. That might,
and for the purposes of the discussion we are assuming that it
would, furnish an answer in a common law controversy. But, in a
court of equity, where the question is one of unfair competition,
if that which complainant has acquired fairly at substantial cost
may be sold fairly at substantial profit, a competitor who is
misappropriating it for the purpose of disposing of it to his own
profit and to the disadvantage of complainant cannot be heard to
say that it is too fugitive or evanescent to be regarded as
property. It has all the attributes of property necessary for
determining that a misappropriation of it by a competitor is unfair
competition because contrary to good conscience.

															The contention that the news is abandoned to the public for all
purposes when published in the first newspaper is untenable.
Abandonment is a question of intent, and the entire organization of
the Associated Press negatives such a purpose. The cost of the
service would be prohibitive if the reward were to be so limited.
No single Page 248 U. S. 241 newspaper, no small group of newspapers, could sustain the
expenditure. Indeed, it is one of the most obvious results of
defendant's theory that, by permitting indiscriminate publication
by anybody and everybody for purposes of profit in competition with
the news-gatherer, it would render publication profitless, or so
little profitable as in effect to cut off the service by rendering
the cost prohibitive in comparison with the return. The practical
needs and requirements of the business are reflected in
complainant's bylaws which have been referred to. Their effect is
that publication by each member must be deemed not by any means an
abandonment of the news to the world for any and all purposes, but
a publication for limited purposes; for the benefit of the readers
of the bulletin or the newspaper as such; not for the purpose of
making merchandise of it as news, with the result of depriving
complainant's other members of their reasonable opportunity to
obtain just returns for their expenditures.

															It is to be observed that the view we adopt does not result in
giving to complainant the right to monopolize either the gathering
or the distribution of the news, or, without complying with the
copyright act, to prevent the reproduction of its news articles,
but only postpones participation by complainant's competitor in the
processes of distribution and reproduction of news that it has not
gathered, and only to the extent necessary to prevent that
competitor from reaping the fruits of complainant's efforts and
expenditure, to the partial exclusion of complainant. and in
violation of the principle that underlies the maxim " sic utere
tuo, " etc.

															It is said that the elements of unfair competition are lacking
because there is no attempt by defendant to palm off its goods as
those of the complainant, characteristic of the most familiar, if
not the most typical, cases of unfair competition. Howe Scale
Co. v. Wyckoff, Seamans, & Benedict, 198 U.
S. 118 , 198 U. S. 140 .
But we cannot concede that Page 248 U. S. 242 the right to equitable relief is confined to that class of
cases. In the present case, the fraud upon complainant's rights is
more direct and obvious. Regarding news matter as the mere material
from which these two competing parties are endeavoring to make
money, and treating it therefore as quasi -property for the
purposes of their business because they are both selling it as
such, defendant's conduct differs from the ordinary case of unfair
competition in trade principally in this -- that, instead of
selling its own goods as those of complainant, it substitutes
misappropriation in the place of misrepresentation, and sells
complainant's goods as its own.

															Besides the misappropriation, there are elements of imitation,
of false pretense, in defendant's practices. The device of
rewriting complainant's news articles, frequently resorted to,
carries its own comment. The habitual failure to give credit to
complainant for that which is taken is significant. Indeed, the
entire system of appropriating complainant's news and transmitting
it as a commercial product to defendant's clients and patrons
amounts to a false representation to them and to their newspaper
readers that the news transmitted is the result of defendant's own
investigation in the field. But these elements, although
accentuating the wrong, are not the essence of it. It is something
more than the advantage of celebrity of which complainant is being
deprived.

															The doctrine of unclean hands is invoked as a bar to relief, it
being insisted that defendant's practices against which complainant
seeks an injunction are not different from the practice attributed
to complainant of utilizing defendant's news published by its
subscribers. At this point, it becomes necessary to consider a
distinction that is drawn by complainant, and, as we understand it,
was recognized by defendant also in the submission of proofs in the
district court, between two kinds of use that may be made by one
news agency of news taken from the Page 248 U. S. 243 bulletins and newspapers of the other. The first is the bodily
appropriation of a statement of fact or a news article, with or
without rewriting, but without independent investigation or other
expense. This form of pirating was found by both courts to have
been pursued by defendant systematically with respect to
complainant's news, and against it the circuit court of appeals
granted an injunction. This practice complainant denies having
pursued, and the denial was sustained by the finding of the
district court. It is not contended by defendant that the finding
can be set aside upon the proofs as they now stand. The other use
is to take the news of a rival agency as a "tip" to be
investigated, and, if verified by independent investigation, the
news thus gathered is sold. This practice complainant admits that
it has pursued, and still is willing that defendant shall
employ.

															Both courts held that complainant could not be debarred on the
ground of unclean hands upon the score of pirating defendant's
news, because not shown to be guilty of sanctioning this
practice.

															As to securing "tips" from a competing news agency, the district
court (240 F. 991, 995), while not sanctioning the practice, found
that both parties had adopted it in accordance with common business
usage in the belief that their conduct was technically lawful, and
hence did not find in it any sufficient ground for attributing
unclean hands to complainant. The circuit court of appeals (245 F.
247) found that the tip habit, though discouraged by complainant,
was "incurably journalistic," and that there was "no difficulty in
discriminating between the utilization of tips and the bodily
appropriation of another's labor in accumulating and stating
information."

															We are inclined to think a distinction may be drawn between the
utilization of tips and the bodily appropriation of news matter,
either in its original form or after Page 248 U. S. 244 rewriting and without independent investigation and
verification; whatever may appear at the final hearing, the proofs
as they now stand recognize such a distinction; both parties
avowedly recognize the practice of taking tips, and neither party
alleges it to be unlawful or to amount to unfair competition in
business. In a line of English cases, a somewhat analogous practice
has been held not to amount to an infringement of the copyright of
a directory or other book containing compiled information. In Kelly v. Morris, L.R. 1 Eq. 697, 701, 702, Vice Chancellor
Sir William Page Wood (afterwards Lord Hatherly), dealing with such
a case, said that defendant was

															"not entitled to take one word of the information previously
published without independently working out the matter for himself,
so as to arrive at the same result from the same common sources of
information, and the only use that he can legitimately make of a
previous publication is to verify his own calculations and results
when obtained."

															This was followed by Vice Chancellor Giffard, in Morris v.
Ashbee, L.R. 7 Eq. 34, where he said:

															"In a case such as this, no one has a right to take the results
of the labour and expense incurred by another for the purposes of a
rival publication, and thereby save himself the expense and labour
of working out and arriving at these results by some independent
road."

															A similar view was adopted by Lord Chancellor Hatherly and the
former Vice Chancellor, then Giffard, L.J., in Pike v.
Nicholas, L.R. 5 Ch.App.Cas. 251, and shortly afterwards by
the latter judge in Morris v. Wright, L.R. 5 Ch.App.Cas.
279, 287, where he said, commenting upon Pike v.
Nicholas: "It was a perfectly legitimate course for the defendant to refer
to the plaintiff's book, and if, taking that book as his guide, he
went to the original authorities and compiled his book from them,
he made no unfair or improper use of the plaintiff's book, and so
here, if the fact be that Mr. Wright used the plaintiff's Page 248 U. S. 245 book in order to guide himself to the persons on whom it would
be worth his while to call, and for no other purpose, he made a
perfectly legitimate use of the plaintiff's book."

															A like distinction was recognized by the Circuit Court of
Appeals for the Second Circuit in Edward Thompson Co. v.
American Law Book Co., 122 F. 922, and in West Publishing
Co. v. Edward Thompson Co., 176 F. 833, 838.

															In the case before us, in the present state of the pleadings and
proofs, we need go no further than to hold, as we do, that the
admitted pursuit by complainant of the practice of taking news
items published by defendant's subscribers as tips to be
investigated, and, if verified, the result of the investigation to
be sold -- the practice having been followed by defendant also, and
by news agencies generally -- is not shown to be such as to
constitute an unconscientious or inequitable attitude towards its
adversary so as to fix upon complainant the taint of unclean hands,
and debar it on this ground from the relief to which it is
otherwise entitled.

															There is some criticism of the injunction that was directed by
the district court upon the going down of the mandate from the
circuit court of appeals. In brief, it restrains any taking or
gainfully using of the complainant's news, either bodily or in
substance, from bulletins issued by the complainant or any of its
members, or from editions of their newspapers, " until its
commercial value as news to the complainant and all of its members
has passed away. " The part complained of is the clause we have
italicized, but if this be indefinite, it is no more so than the
criticism. Perhaps it would be better that the terms of the
injunction be made specific, and so framed as to confine the
restraint to an extent consistent with the reasonable protection of
complainant's newspapers, each in its own area and for a specified
time after its Page 248 U. S. 246 publication, against the competitive use of pirated news by
defendant's customers. But the case presents practical
difficulties, and we have not the materials, either in the way of a
definite suggestion of amendment or in the way of proofs, upon
which to frame a specific injunction; hence, while not expressing
approval of the form adopted by the district court, we decline to
modify it at this preliminary stage of the case, and will leave
that court to deal with the matter upon appropriate application
made to it for the purpose.

															The decree of the Circuit court of Appeals will be Affirmed. MR. JUSTICE CLARKE took no part in the consideration or decision
of this case.

															MR. JUSTICE HOLMES, dissenting.

															When an uncopyrighted combination of words is published, there
is no general right to forbid other people repeating them -- in
other words, there is no property in the combination or in the
thoughts or facts that the words express. Property, a creation of
law, does not arise from value, although exchangeable -- a matter
of fact. Many exchangeable values may be destroyed intentionally
without compensation. Property depends upon exclusion by law from
interference, and a person is not excluded from using any
combination of words merely because some one has used it before,
even if it took labor and genius to make it. If a given person is
to be prohibited from making the use of words that his neighbors
are free to make, some other ground must be found. One such ground
is vaguely expressed in the phrase unfair trade. This means that
the words are repeated by a competitor in business in such a way as
to convey a misrepresentation that materially injures the person
who first used them, by appropriating credit of some kind Page 248 U. S. 247 which the first user has earned. The ordinary case is a
representation by device, appearance, or other indirection that the
defendant's goods come from the plaintiff. But the only reason why
it is actionable to make such a representation is that it tends to
give the defendant an advantage in his competition with the
plaintiff, and that it is thought undesirable that an advantage
should be gained in that way. Apart from that, the defendant may
use such unpatented devices and uncopyrighted combinations of words
as he likes. The ordinary case, I say, is palming off the
defendant's product as the plaintiff's, but the same evil may
follow from the opposite falsehood -- from saying whether, in words
or by implication, that the plaintiff's product is the defendant's,
and that, it seems to me, is what has happened here.

															Fresh news is got only by enterprise and expense. To produce
such news as it is produced by the defendant represents by
implication that it has been acquired by the defendant's enterprise
and at its expense. When it comes from one of the great news
collecting agencies like the Associated Press, the source generally
is indicated, plainly importing that credit, and that such a
representation is implied may be inferred with some confidence from
the unwillingness of the defendant to give the credit and tell the
truth. If the plaintiff produces the news at the same time that the
defendant does, the defendant's presentation impliedly denies to
the plaintiff the credit of collecting the facts, and assumes that
credit to the defendant. If the plaintiff is later in Western
cities, it naturally will be supposed to have obtained its
information from the defendant. The falsehood is a little more
subtle, the injury a little more indirect, than in ordinary cases
of unfair trade, but I think that the principle that condemns the
one condemns the other. It is a question of how strong an infusion
of fraud is necessary to turn a flavor into a poison. The does
seems to me strong Page 248 U. S. 248 enough here to need a remedy from the law. But as, in my view,
the only ground of complaint that can be recognized without
legislation is the implied misstatement, it can be corrected by
stating the truth, and a suitable acknowledgment of the source is
all that the plaintiff can require. I think that, within the limits
recognized by the decision of the Court, the defendant should be
enjoined from publishing news obtained from the Associated Press
for hours after publication by the plaintiff unless it gives
express credit to the Associated Press, the number of hours and the
form of acknowledgment to be settled by the district court.

															MR. JUSTICE McKENNA concurs in this opinion.

															MR. JUSTICE BRANDEIS, dissenting.

															There are published in the United States about 2,500 daily
papers. [ Footnote 1 ] More than
800 of them are supplied with domestic and foreign news of general
interest by the Associated Press -- a corporation without capital
stock which does not sell news or earn or seek to earn profits, but
serves merely as an instrumentality by means of which these papers
supply themselves at joint expense with such news. Papers not
members of the Associated Press depend for their news of general
interest largely upon agencies organized for profit. [ Footnote 2 ] Among these agencies Page 248 U. S. 249 is the International News Service, which supplies news to about
400 subscribing papers. It has, like the Associated Press, bureaus
and correspondents in this and foreign countries, and its annual
expenditures in gathering and distributing news is about
$2,000,000. Ever since its organization in 1909, it has included
among the sources from which it gathers news, copies (purchased in
the open market) of early editions of some papers published by
members of the Associated Press and the bulletins publicly posted
by them. These items, which constitute but a small part of the news
transmitted to its subscribers, are generally verified by the
International News Service before transmission, but frequently
items are transmitted without verification, and occasionally even
without being rewritten. In no case is the fact disclosed that such
item was suggested by or taken from a paper or bulletin published
by an Associated Press member.

															No question of statutory copyright is involved. The sole
question for our consideration is this: was the International News
Service properly enjoined from using, or causing to be used
gainfully news of which it acquired knowledge by lawful means
(namely, by reading publicly posted bulletins or papers purchased
by it in the open market) merely because the news had been
originally gathered by the Associated Press and continued to be of
value to some of its members, or because it did not reveal the
source from which it was acquired?

															The "ticker" cases, the cases concerning literary and artistic
compositions, and cases of unfair competition were relied upon in
support of the injunction. But it is admitted that none of those
cases affords a complete analogy with that before us. The question
presented for decision is new, and it is important.

															News is a report of recent occurrences. The business of the news
agency is to gather systematically knowledge Page 248 U. S. 250 of such occurrences of interest and to distribute reports
thereof. The Associated Press contended that knowledge so acquired
is property, because it costs money and labor to produce and
because it has value for which those who have it not are ready to
pay; that it remains property and is entitled to protection as long
as it has commercial value as news, and that to protect it
effectively, the defendant must be enjoined from making, or causing
to be made, any gainful use of it while it retains such value. An
essential element of individual property is the legal right to
exclude others from enjoying it. If the property is private, the
right of exclusion may be absolute; if the property is affected
with a public interest, the right of exclusion is qualified. But
the fact that a product of the mind has cost its producer money and
labor, and has a value for which others are willing to pay, is not
sufficient to ensure to it this legal attribute of property. The
general rule of law is that the noblest of human productions --
knowledge, truths ascertained, conceptions, and ideas -- became,
after voluntary communication to others, free as the air to common
use. Upon these incorporeal productions the attribute of property
is continued after such communication only in certain classes of
cases where public policy has seemed to demand it. These exceptions
are confined to productions which, in some degree, involve
creation, invention, or discovery. But by no means all such are
endowed with this attribute of property. The creations which are
recognized as property by the common law are literary, dramatic,
musical, and other artistic creations, and these have also
protection under the copyright statutes. The inventions and
discoveries upon which this attribute of property is conferred only
by statute are the few comprised within the patent law. There are
also many other cases in which courts interfere to prevent
curtailment of plaintiff's enjoyment of incorporal productions, and
in which the Page 248 U. S. 251 right to relief is often called a property right, but is such
only in a special sense. In those cases, the plaintiff has no
absolute right to the protection of his production; he has merely
the qualified right to be protected as against the defendant's
acts, because of the special relation in which the latter stands or
the wrongful method or means employed in acquiring the knowledge or
the manner in which it is used. Protection of this character is
afforded where the suit is based upon breach of contract or of
trust or upon unfair competition.

															The knowledge for which protection is sought in the case at bar
is not of a kind upon which the law has heretofore conferred the
attributes of property; nor is the manner of its acquisition or use
nor the purpose to which it is applied, such as has heretofore been
recognized as entitling a plaintiff to relief. First. Plaintiff's principal reliance was upon the
"ticker" cases; but they do not support its contention. The leading
cases on this subject rest the grant of relief not upon the
existence of a general property right in news, but upon the breach
of a contract or trust concerning the use of news communicated, and
that element is lacking here. In Board of Trade v. Christie
Grain & Stock Co., 198 U. S. 236 , 198 U. S. 250 ,
the Court said the Board

															"does not lose its rights by communicating the result [the
quotations] to persons, even if many, in confidential relations to
itself, under a contract not to make it public, and strangers to
the trust will be restrained from getting at the knowledge by
inducing a breach of trust and using knowledge obtained by such a
breach."

															And it is also stated there (p. 198 U. S.
251 ):

															"Time is of the essence in matters like this, and it fairly may
be said that, if the contracts with the plaintiff are kept, the
information will not become public property until the plaintiff has
gained its reward."

															The only other case in this Court which relates to this subject
is Hunt v. N.Y. Cotton
Exchange , 205 U.S. Page 248 U. S. 252 322. While the opinion there refers the protection to a general
property right in the quotations, the facts are substantially the
same as those in the Christie case, which is the chief
authority on which the decision is based. Of the cases in the lower
federal courts and in the state courts, it may be said that most of
them too can, on their facts, be reconciled with this principle,
though much of the language of the courts cannot be. [ Footnote 3 ] In spite of anything that may
appear in these cases to the contrary, it seems that the true
principle is stated in the Christie case, that the
collection of quotations "stands like a trade secret." And in Dr. Miles Medical Co. v. Park & Sons Co., 220 U.
S. 373 , 220 U. S. 402 ,
this Court says of trade secret:

															"Anyone may use it who fairly, by analysis and experiment,
discovers it. But the complainant is entitled to be protected
against invasion of its right in the process by fraud or by breach
of trust or contract." See John D. Park & Sons Co. v. Hartman, 153 F. 24,
29.

															The leading English case, Exchange Telegraph Co. v. Gregory
& Co., [1896] 1 Q.B. 147, is also rested clearly upon a
breach of contract or trust, although there is some Page 248 U. S. 253 reference to a general property right. The later English cases
seem to have rightly understood the basis of the decision, and they
have not sought to extend it further than was intended. Indeed, we
find the positive suggestion in some cases that the only ground for
relief is the manner in which knowledge of the report of the news
was acquired. [ Footnote 4 ]

															If the news involved in the case at bar had been posted in
violation of any agreement between the Associated Press and its
members, questions similar to those in the "ticker" cases might
have arisen. But the plaintiff does not contend that the posting
was wrongful, or that any papers were wrongfully issued by its
subscribers. On the contrary, it is conceded that both the
bulletins and the papers were issued in accordance with the
regulations of the plaintiff. Under such circumstances, for a
reader of the papers purchased in the open market, or a reader of
the bulletins publicly posted, to procure and use gainfully,
information therein contained does not involve inducing anyone to
commit a breach either of contract or of trust, or committing or in
any way abetting a breach of confidence. Second. Plaintiff also relied upon the cases which hold
that the common law right of the producer to prohibit copying is
not lost by the private circulation of a literary composition, the
delivery of a lecture, the exhibition Page 248 U. S. 254 of a painting, or the performance of a dramatic or musical
composition. [ Footnote 5 ] These
cases rest upon the ground that the common law recognizes such
productions as property which, despite restricted communication,
continues until there is a dedication to the public under the
copyright statutes or otherwise. But they are inapplicable for two
reasons: (1) At common law, as under the copyright acts,
intellectual productions are entitled to such protection only if
there is underneath something evincing the mind of a creator or
originator, however modest the requirement. The mere record of
isolated happenings, whether, in words or by photographs not
involving artistic skill, are denied such protection. [ Footnote 6 ] (2) At common law, as under
the copyright acts, the element in intellectual productions which
secures such protection is not the knowledge, truths, ideas, or
emotions which the composition expresses, but the form or sequence
in which they are expressed -- that is, "some new collocation of
visible or audible points -- of lines, colors, sounds, or Page 248 U. S. 255 words." See White-Smith Music Co. v. Apollo Co., 209 U. S. 1 , 209 U. S. 19 ; Kalem Co. v. Harper Bros., 222 U. S.
55 , 222 U. S. 63 . An
author's theories, suggestions, and speculations, or the systems,
plans, methods, and arrangements of an originator derive no such
protection from the statutory copyright of the book in which they
are set forth, [ Footnote 7 ] and
they are likewise denied such protection at common law. [ Footnote 8 ]

															That news is not property in the strict sense is illustrated by
the case of Sports and General Press Agency, Ltd. v. "Our Dogs"
Publishing Co., Ltd., [1916] 2 K.B. 880, where the plaintiff,
the assignee of the right to photograph the exhibits at a dog show,
was refused an injunction against defendant who had also taken
pictures of the show and was publishing them. The court said that,
except insofar as the possession of the land occupied by the show
enabled the proprietors to exclude people or permit them on
condition that they agree not to take photographs (which condition
was not imposed in that case), the proprietors had no exclusive
right to photograph the show, and could therefore grant no such
right. And it was further stated that, at any rate, no matter what
conditions might be imposed upon those entering the grounds, if the
defendant had been on top of a house or in some position where he
could photograph the show without interfering with the physical
property of the plaintiff, the plaintiff would have no right to
stop him. If, when the plaintiff creates the event recorded, he is
not entitled to the exclusive first publication of the Page 248 U. S. 256 news (in that case, a photograph) of the event, no reason can be
shown why he should be accorded such protection as to events which
he simply records and transmits to other parts of the world, though
with great expenditure of time and money. Third. If news be treated as possessing the
characteristics not of a trade secret, but of literary property,
then the earliest issue of a paper of general circulation or the
earliest public posting of a bulletin which embodies such news
would, under the established rules governing literary property,
operate as a publication, and all property in the news would then
cease. Resisting this conclusion, plaintiff relied upon the cases
which hold that uncopyrighted intellectual and artistic property
survives private circulation or a restricted publication, and it
contended that, in each issue of each paper, a restriction is to be
implied that the news shall not be used gainfully in competition
with the Associated Press or any of its members. There is no basis
for such an implication. But it is also well settled that where the
publication is in fact a general one, even express words of
restriction upon use are inoperative. In other words, a general
publication is effective to dedicate literary property to the
public, regardless of the actual intent of its owner. [ Footnote 9 ] In the cases dealing with
lectures, dramatic and musical performances, and art exhibitions
[ Footnote 10 ] upon which
plaintiff relied, there was no general publication in print
comparable to the issue of daily newspapers or the unrestricted
public posting of bulletins. The principles governing those cases
differ more or less in application, if not in theory, from the
principles governing the issue of printed copies, Page 248 U. S. 257 and insofar as they do differ, they have no application to the
case at bar. Fourth. Plaintiff further contended that defendant's
practice constitutes unfair competition because there is
"appropriation without cost to itself of values created by" the
plaintiff, and it is upon this ground that the decision of this
Court appears to be based. To appropriate and use for profit,
knowledge, and ideas produced by other men without making
compensation or even acknowledgment may be inconsistent with a
finer sense of propriety, but, with the exceptions indicated above,
the law has heretofore sanctioned the practice. Thus, it was held
that one may ordinarily make and sell anything in any form, may
copy with exactness that which another has produced, or may
otherwise use his ideas without his consent and without the payment
of compensation, and yet not inflict a legal injury, [ Footnote 11 ] and that ordinarily one
is at perfect liberty to find out, if he can by lawful means, trade
secrets of another, however valuable, and then use the knowledge so
acquired gainfully, although it cost the original owner much in
effort and in money to collect or produce. [ Footnote 12 ] Page 248 U. S. 258 Such taking and gainful use of a product of another which, for
reasons of public policy, the law has refused to endow with the
attributes of property does not become unlawful because the product
happens to have been taken from a rival and is used in competition
with him. The unfairness in competition which hitherto has been
recognized by the law as a basis for relief lay in the manner or
means of conducting the business, and the manner or means held
legally unfair involves either fraud or force or the doing of acts
otherwise prohibited by law. In the "passing off" cases (the
typical and most common case of unfair competition), the wrong
consists in fraudulently representing by word or act that
defendant's goods are those of plaintiff. See Hanover Milling
Co. v. Metcalf, 240 U. S. 403 , 240 U. S.
412 -413. In the other cases, the diversion of trade was
effected through physical or moral coercion, or by inducing
breaches of contract or of trust or by enticing away employees. In
some others, called cases of simulated competition, relief was
granted because defendant's purpose was unlawful -- namely, not
competition, but deliberate and wanton destruction of plaintiff's
business. [ Footnote 13 ] Page 248 U. S. 259 That competition is not unfair in a legal sense merely because
the profits gained are unearned, even if made at the expense of a
rival, is shown by many cases besides those referred to above. He
who follows the pioneer into a new market, or who engages in the
manufacture of an article newly introduced by another, seeks
profits due largely to the labor and expense of the first
adventurer, but the law sanctions, indeed encourages, the pursuit.
[ Footnote 14 ] He who makes a
city known through his product must submit to sharing the resultant
trade with others who, perhaps for that reason, locate there later. Canal Co. v.
Clark , 13 Wall. 311; Elgin National Watch Co.
v. Illinois Watch Co., 179 U. S. 665 , 179 U. S. 673 .
He who has made his name a guaranty of quality protests in vain
when another with the same name engages, perhaps for that reason,
in the same lines of business, provided precaution is taken to
prevent the public from being deceived into the belief that what he
is selling was made by his competitor. One bearing a name made
famous by another is permitted to enjoy the unearned benefit which
necessarily flows from such use, even though the use proves harmful
to him who gave the name value. Brown Chemical Co. v.
Meyer, 139 U. S. 540 , 139 U. S. 544 ; Howe Scale Co. v. Wyckoff, Seamans & Benedict, 198 U. S. 118 ; Donnell v. Herring-Hall-Marvin Safe Co., 208 U.
S. 267 ; Waterman Co. v. Modern Pen Co., 235 U. S. 88 . See Saxlehner v. Wagner, 216 U. S. 375 .

															The means by which the International News Service obtains news
gathered by the Associated Press is also clearly unobjectionable.
It is taken from papers bought in the open market or from bulletins
publicly posted. Page 248 U. S. 260 No breach of contract such as the court considered to exist in Hitchman Coal & Coke Co. v. Mitchell, 245 U.
S. 229 , 245 U. S. 254 ,
or of trust such as was present in Morison v. Moat, 9
Hare, 241, and neither fraud nor force is involved. The manner of
use is likewise unobjectionable. No reference is made by word or by
act to the Associated Press, either in transmitting the news to
subscribers or by them in publishing it in their papers. Neither
the International News Service nor its subscribers is gaining or
seeking to gain in its business a benefit from the reputation of
the Associated Press. They are merely using its product without
making compensation. See Bamforth v. Douglass Post Card &
Machine Co., 158 F. 355; Tribune Co. of Chicago v.
Associated Press, 116 F. 126. That they have a legal right to
do, because the product is not property, and they do not stand in
any relation to the Associated Press, either of contract or of
trust, which otherwise precludes such use. The argument is not
advanced by characterizing such taking and use a
misappropriation.

															It is also suggested that the fact that defendant does not refer
to the Associated Press as the source of the news may furnish a
basis for the relief. But the defendant and its subscribers, unlike
members of the Associated Press, were under no contractual
obligation to disclose the source of the news, and there is no rule
of law requiring acknowledgment to be made where uncopyrighted
matter is reproduced. The International News Service is said to
mislead its subscribers into believing that the news transmitted
was originally gathered by it, and that they in turn mislead their
readers. There is, in fact, no representation by either of any
kind. Sources of information are sometimes given because required
by contract, sometimes because naming the source gives authority to
an otherwise incredible statement, and sometimes the source is
named because the agency does not wish to take the Page 248 U. S. 261 responsibility itself of giving currency to the news. But no
representation can properly be implied from omission to mention the
source of information except that the International News Service is
transmitting news which it believes to be credible.

															Nor is the use made by the International News Service of the
information taken from papers or bulletins of Associated Press
members legally objectionable by reason of the purpose for which it
was employed. The acts here complained of were not done for the
purpose of injuring the business of the Associated Press. Their
purpose was not even to divert its trade, or to put it at a
disadvantage by lessening defendant's necessary expenses. The
purpose was merely to supply subscribers of the International News
Service promptly with all available news. The suit is, as this
Court declares, in substance one brought for the benefit of the
members of the Associated Press, who would be proper, and except
for their number perhaps necessary, parties, and the plaintiff
conducts the suit as representing their interests. It thus appears
that the protection given by the injunction is not actually to the
business of the complainant news agency; for this agency does not
sell news nor seek to earn profits, but is a mere instrumentality
by which 800 or more newspapers collect and distribute news. It is
these papers severally which are protected, and the protection
afforded is not from competition of the defendant, but from
possible competition of one or more of the 400 other papers which
receive the defendant's service. Furthermore, the protection to
these Associated Press members consists merely in denying to other
papers the right to use as news, information which by authority of
all concerned, had theretofore been given to the public by some of
those who joined in gathering it, and to which the law denies the
attributes of property. There is in defendant's purpose nothing on
which to base a claim for relief. Page 248 U. S. 262 It is further said that, while that for which the Associated
Press spends its money is too fugitive to be recognized as property
in the common law courts, the defendant cannot be heard to say so
in a court of equity, where the question is one of unfair
competition. The case presents no elements of equitable title or of
breach of trust. The only possible reason for resort to a court of
equity in a case like this is that the remedy which the law gives
is inadequate. If the plaintiff has no legal cause of action, the
suit necessarily fails. Levy v. Walker, L.R. 10 Ch.D. 436,
449. There is nothing in the situation of the parties which can
estop the defendant from saying so. Fifth. The great development of agencies now furnishing
countrywide distribution of news, the vastness of our territory,
and improvements in the means of transmitting intelligence, have
made it possible for a news agency or newspapers to obtain, without
paying compensation, the fruit of another's efforts and to use news
so obtained gainfully in competition with the original collector.
The injustice of such action is obvious. But to give relief against
it would involve more than the application of existing rules of law
to new facts. It would require the making of a new rule in analogy
to existing ones. The unwritten law possesses capacity for growth,
and has often satisfied new demands for justice by invoking
analogies or by expanding a rule or principle. This process has
been in the main wisely applied, and should not be discontinued.
Where the problem is relatively simple, as it is apt to be when
private interests only are involved, it generally proves adequate.
But with the increasing complexity of society, the public interest
tends to become omnipresent, and the problems presented by new
demands for justice cease to be simple. Then the creation or
recognition by courts of a new private right may work serious
injury to the general public unless the Page 248 U. S. 263 boundaries of the right are definitely established and wisely
guarded. In order to reconcile the new private right with the
public interest, it may be necessary to prescribe limitations and
rules for its enjoyment, and also to provide administrative
machinery for enforcing the rules. It is largely for this reason
that, in the effort to meet the many new demands for justice
incident to a rapidly changing civilization, resort to legislation
has latterly been had with increasing frequency.

															The rule for which the plaintiff contends would effect an
important extension of property rights and a corresponding
curtailment of the free use of knowledge and of ideas, and the
facts of this case admonish us of the danger involved in
recognizing such a property right in news, without imposing upon
news-gatherers corresponding obligations. A large majority of the
newspapers and perhaps half the newspaper readers of the United
States are dependent for their news of general interest upon
agencies other than the Associated Press. The channel through which
about 400 of these papers received, as the plaintiff alleges, "a
large amount of news relating to the European war of the greatest
importance and of intense interest to the newspaper reading public"
was suddenly closed. The closing to the International News Service
of these channels for foreign news (if they were closed) was due
not to unwillingness on its part to pay the cost of collecting the
news, but to the prohibitions imposed by foreign governments upon
its securing news from their respective countries and from using
cable or telegraph lines running therefrom. For aught that appears,
this prohibition may have been wholly undeserved, and at all events
the 400 papers and their readers may be assumed to have been
innocent. For aught that appears, the International News Service
may have sought then to secure temporarily by arrangement with the
Associated Press the latter's foreign news service. For aught
that Page 248 U. S. 264 appears, all of the 400 subscribers of the International News
Service would gladly have then become members of the Associated
Press if they could have secured election thereto. [ Footnote 15 ] It is possible also that a
large part of the readers of these papers were so situated that
they could not secure prompt access to papers served by the
Associated Press. The prohibition of the foreign governments might
as well have been extended to the channels through which news was
supplied to the more than a thousand other daily papers in the
United States not served by the Associated Press, and a large part
of their readers may also be so located that they cannot procure
prompt access to papers served by the Associated Press.

															A legislature, urged to enact a law by which one news agency or
newspaper may prevent appropriation of the fruits of its labors by
another, would consider such facts and possibilities and others
which appropriate inquiry might disclose. Legislators might
conclude that it was impossible to put an end to the obvious
injustice involved in such appropriation of news without opening
the door to other evils greater than that sought to be remedied.
Such appears to have been the opinion of our Senate, which reported
unfavorably a bill to give news a few Page 248 U. S. 265 hours' protection, [ Footnote
16 ] and which ratified, on February 15, 1911, the convention
adopted at the Fourth International American Conference, [ Footnote 17 ] and such was evidently
the view also of the signatories to the International Copyright
Union of November 13, 1908, [ Footnote 18 ] as both these conventions expressly exclude
news from copyright protection. Page 248 U. S. 266 Or legislators dealing with the subject might conclude, that the
right to news values should be protected to the extent of
permitting recovery of damages for any unauthorized use, but that
protection by injunction should be denied, just as courts of equity
ordinarily refuse (perhaps in the interest of free speech) to
restrain actionable libels, [ Footnote 19 ] and for other reasons decline to protect by
injunction mere political rights, [ Footnote 20 ] and as Congress has prohibited courts from
enjoining the illegal assessment or collection of federal taxes.
[ Footnote 21 ] If a
legislature concluded to recognize property in published news to
the extent of permitting recovery at law, it might, with a view to
making the remedy more certain and adequate, provide a fixed
measure of damages, as in the case of copyright infringement.
[ Footnote 22 ]

															Or again, a legislature might conclude that it was unwise to
recognize even so limited a property right in published news as
that above indicated, but that a news agency should, on some
conditions, be given full protection Page 248 U. S. 267 of its business, and, to that end, a remedy by injunction as
well as one for damages should be granted where news collected by
it is gainfully used without permission. If a legislature concluded
(as at least one court has held, New York & Chicago Grain
& Stock Exchange v. Board of Trade, 127 Ill. 153) that,
under certain circumstances, news-gathering is a business affected
with a public interest, it might declare that, in such cases, news
should be protected against appropriation only if the gatherer
assumed the obligation of supplying it at reasonable rates and
without discrimination, to all papers which applied therefor. If
legislators reached that conclusion, they would probably go
further, and prescribe the conditions under which and the extent to
which the protection should be afforded, and they might also
provide the administrative machinery necessary for insuring to the
public, the press, and the news agencies, full enjoyment of the
rights so conferred.

															Courts are ill equipped to make the investigations which should
precede a determination of the limitations which should be set upon
any property right in news or of the circumstances under which news
gathered by a private agency should be deemed affected with a
public interest. Courts would be powerless to prescribe the
detailed regulations essential to full enjoyment of the rights
conferred or to introduce the machinery required for enforcement of
such regulations. Considerations such as these should lead us to
decline to establish a new rule of law in the effort to redress a
newly disclosed wrong, although the propriety of some remedy
appears to be clear.

															[ Footnote 1 ] See American Newspaper Annual and Directory (1918) pp.
4, 10, 1193-1212.

															[ Footnote 2 ]

															The Associated Press, by Frank B. Noyes, Sen.Doc. No. 27, 63d
Congress, First Session. In a brief filed in this Court by counsel
for the Associated Press, the number of its members is stated to be
1030. Some members of the Associated Press are also subscribers to
the International News Service.

															Strictly, the member is not the publishing concern, but an
individual who is the sole or part owner of a newspaper, or an
executive officer of a company which owns one. By-laws, Article II,
§ 1.

															[ Footnote 3 ] Board of Trade of City of Chicago v. Tucker, 221 F.
305; Board of Trade of City of Chicago v. Price, 213 F.
336; McDearmott Commission Co. v. Board of Trade of City of
Chicago, 146 F. 961; Board of Trade v. Cella Commission
Co., 145 F. 28; National Tel. News Co. v. Western Union
Tel. Co., 119 F. 294; Illinois Commission Co. v. Cleveland
Tel. Co., 119 F. 301; Board of Trade v. Hadden-Krull
Co., 109 F. 705; Cleveland Tel. Co. v. Stone, 105 F.
794; Board of Trade v. C. B. Thomson Commission Co., 103
F. 902; Kiernan v. Manhattan Quotation Telegraph Co., 50
How.Prac. 194. The bill in F. W. Dodge Co. v. Construction
Information Co., 183 Mass. 62, was expressly based on breach
of contract or of trust. It has been suggested that a Board of
Trade has a right of property in its quotations because the facts
reported originated in its exchange. The point has been mentioned
several times in the cases, but no great importance seems to have
been attached to it.

															[ Footnote 4 ]

															In Exchange Telegraph Co., Ltd. v. Howard, 22 Times Law
Rep. 375, 377, it is intimated that it would be perfectly
permissible for the defendant to take the score from a newspaper
supplied by the plaintiff and publish it. And it is suggested in Exchange Telegraph Co., Ltd. v. Central News, Ltd., [1897]
2 Ch. 48, 54, that there are sources from which the defendant might
be able to get the information collected by the plaintiff and
publish it without committing any wrong. Copinger, Law of Copyright
(5th ed.) p. 35, explains the Gregory case on the basis of
the breach of confidence involved. Richardson, Law of Copyright, p.
39, also inclines to put the case "on the footing of implied
confidence."

															[ Footnote 5 ] Ferris v. Frohman, 223 U. S. 424 ; American Tobacco Co. v. Werckmeister, 207 U.
S. 284 , 207 U. S. 299 ; Universal Film Mfg. Co. v. Copperman, 218 F. 577; Werckmeister v. American Lithographic Co., 134 F. 321; Drummond v. Altemus, 60 F. 338; Boucicault v.
Hart, 13 Blatchf. 47; Crowe v. Aiken, 2 Biss. 208,
Fed.Cas. No. 3441; Boucicault v. Fox, 5 Blatchf. 87,
Fed.Cas. No. 1691; Bartlett v. Crittenden, 5 McLean, 32,
Fed.Cas. No. 1,076; Bartlett v. Crittenden, 4 McLean, 300,
Fed.Cas. No. 1082; Tompkins v. Halleck, 133 Mass. 32; Aronson v. Baker, 43 N.J.Eq. 365; Caird v. Sime, L.R. 12 App.Cas. 326; Nicols v. Pitman, L.R. 26 Ch.D. 374; Abernethy v. Hutchinson, 3 L.J. (O. S.) Ch. 209; Turner v. Robinson, 10 Ir.Eq.Rep. 121.

															[ Footnote 6 ] Compare Bleistein v. Donaldson Lithographing Co., 188 U. S. 239 , 188 U. S. 250 ; Higgins v. Keuffel, 140 U. S. 428 , 140 U. S. 432 ; Burrow-Giles Lithographic Co. v. Sarony, 111 U. S.
53 , 111 U. S. 58 -60; Baker v. Selden, 101 U. S. 99 , 101 U. S.
105 -106; Clayton v. Stone, 2 Paine, 382,
Fed.Cas. No. 2,872; National Tel. News Co. v. Western Union
Tel. Co., 119 F. 294, 296-298; Banks Law Pub. Co.
v.Lawyers' Cooperative Pub. Co., 169 F. 386, 391.

															[ Footnote 7 ] Baker v. Selden, 101 U. S. 99 ; Perris v. Hexamer, 99 U. S. 674 ; Barnes v. Miner, 122 F. 480, 491; Burnell v.
Chown, 69 F. 993; Tate v. Fullbrook, [1908] 1 K.B.
821; Chilton v. Progress Printing & Publishing Co., [1895] 2 Ch. 29, 34; Kenrick & Co. v.Lawrence &
Co., L.R. 25 Q.B.D. 99; Pike v. Nicholas, L.R. 5
Ch.App. 251.

															[ Footnote 8 ] Bristol v. Equitable Life Assurance Society, 132 N.Y.
264; Haskins v. Ryan, 71 N.J.Eq. 575.

															[ Footnote 9 ] Jewelers' mercantile Agency v. Jewelers' Publishing
Co., 155 N.Y. 241; Wagner v. Conried, 125 F. 798,
801; Larrowe-Loisette v. O'Loughlin, 88 F. 896.

															[ Footnote 10 ] See cases in note 5 supra; Richardson, Law of Copyright, p. 128.

															[ Footnote 11 ] Flagg Manufacturing Co. v. Holway, 178 Mass. 83; Bristol v. Equitable Life Assurance Society, 132 N.Y. 264; Keystone Type Foundry v. Portland Publishing Co., 186 F.
690.

															[ Footnote 12 ] Chadwick v. Covell, 151 Mass.190; Tabor v.
Hoffman, 118 N.Y. 30, 36; James v. James, L.R. 13 Eq.
421. Even when knowledge is compiled, as in a dictionary, and
copyrighted, the suggestions and sources therein may be freely used
by a later compiler. The copyright protection merely prevents his
taking the ultimate data while avoiding the labor and expense
involved in compiling them. Pike v. Nicholas, L.R. 5
Ch.App. 251; Morris v. Wright, L.R. 5 Ch.App. 279; Edward Thompson Co. v. American Law Book Co., 122 F. 922; West Pub. Co. v. Edward Thompson Co., 176 F. 833. It is
assumed that, in the absence of copyright, the data compiled could
be freely used. See Morris v. Ashbee, L.R. 7 Eq. 34, 40. Compare also Chilton v. Progress Printing & Publishing
Co., [1895] 2 Ch. 29.

															[ Footnote 13 ]

															"Trust Laws & Unfair Competition" (U.S. Bureau of
Corporations, March 15, 1915) pp. 301-331, 332-461; Nims, Unfair
Competition and Trademarks, c. XIX; Sperry & Hutchinson Co.
v. Pommer, 199 F. 309, 314; Racine Paper Goods Co. v.
Dittgen, 171 F. 631; Schonwald v. Ragains, 32 Okl.
223; Attorney General v. National Cash Register Co., 182
Mich. 99; Witkop & Holmes Co. v. Great Atlantic &
Pacific Tea Co., 124 N.Y.S. 956, 958; Dunshee v. Standard
Oil Co., 152 Iowa 618; Tuttle v. Buck, 107 Minn.
145.

															The cases of Fonotipia Limited v. Bradley, 171 F. 951,
and Prest-O-Lite Co. v. Davis, 209 F. 917, which were
strongly relied upon by the plaintiff, contain expressions
indicating rights possibly broad enough to sustain the injunction
in the case at bar, but both cases involve elements of "passing
off." See also Prest-O-Lite Co. v. Davis, 215 F. 349; Searchlight Gas Co. v. Prest-O-Lite Co., 215 F. 692; Prest-O-Lite Co. v. H. W. Bogen, 209 F. 915; Prest-O-Lite Co. v. Avery Lighting Co., 161 F. 648. In Prest-O-Lite Co. v. Auto Acetylene Light Co., 191 F. 90,
the bill was dismissed on the ground that no deception was
shown.

															[ Footnote 14 ] Magee Furnace Co. v. Le Barron, 127 Mass. 115; Ricker v. Railway, 90 Me. 395, 403.

															[ Footnote 15 ]

															According to the bylaws of the Associated Press, no one can be
elected a member without the affirmative vote of at least
four-fifths of all the members of the corporation or the vote of
the directors. Furthermore, the power of the directors to admit
anyone to membership may be limited by a right of protest to be
conferred upon individual members. See By-Laws, Article
III, § 6.

															"The members of this corporation may, by an affirmative vote of
seven-eighths of all the members, confer upon a member (with such
limitations as may be at the time prescribed) a right of protest
against the admission of new members by the board of directors. The
right of protest, within the limits specified at the time it is
conferred, shall empower the member holding it to demand a vote of
the members of the corporation on all applications for the
admission of new members within the district for which it is
conferred except as provided in § 2 of this Article."

															[ Footnote 16 ]

															Senate Bill No. 1728, 48th Congress, First Session. The bill
provides:

															"That any daily or weekly newspaper, or any association of daily
or weekly newspapers, published in the United States or any of the
territories thereof, shall have the sole right to print, issue, and
sell, for the term of eight hours, dating from the hour of going to
press, the contents of said daily or weekly newspaper, or the
collected news of said newspaper association, exceeding one hundred
words."

															"Sec. 2. That, for any infringement of the copyright granted by
the first section of this act, the party injured may sue in any
court of competent jurisdiction and recover in any proper action
the damages sustained by him from the person making such
infringement, together with the costs of suit."

															It was reported on April 18, 1884, by the Committee on the
Library without amendment, and that it ought not to pass, Journal
of the Senate. 48th Congress, First Session, p. 548. No further
action was apparently taken on the bill.

															When the copyright legislation of 1909, finally enacted as Act
of March 4, 1909, c. 320, 35 Stat. 1075, was under consideration,
there was apparently no attempt to include news among the subjects
of copyright. Arguments before the Committees on Patents of the
Senate and House of Representatives on Senate Bill No. 6330 and
H.R. Bill No.19853, 59th Congress, First Session, June 6, 7, 8, and
9, and December 7, 8, 10, and 11, 1906; Hearings on Pending Bills
to Amend and Consolidate Acts Respecting Copyright, March 26, 27
and 28, 1908.

															[ Footnote 17 ]

															38 Stat. 1785, 1789, Article 11.

															[ Footnote 18 ]

															Bowker, Copyright: Its History and Its Law, pp. 330, 612, 613. See the similar provisions in the Berne Convention (1886)
and the Paris Convention (1896). Id., pp. 612, 613.

															In 1898, Lord Herschell introduced in Parliament a bill, § 11 of
which provides:

															"Copyright in respect of a newspaper shall apply only to such
parts of the newspaper as are compositions of an original literary
character, to original illustrations therein, and to such news
and information as have been specially and independently
obtained. "

															(Italics ours.) House of Lords, Sessional Papers, 1898, Vol. 3,
Bill No. 21. Birrell, Copyright in Books, p. 210. But the bill was
not enacted, and in the English law as it now stands there is no
provision giving even a limited copyright in news as such. Act of
December 16, 1911, 1 and 2 Geo. 5, c. 46.

															[ Footnote 19 ] Boston Diatite Co. v. Florence Mfg. Co., 114 Mass. 69; Prudential Assurance Co. v. Knott, L.R. 10 Ch.App.
142.

															[ Footnote 20 ] Giles v. Harris, 189 U. S. 475 . Compare Swafford v. Templeton, 185 U.
S. 487 ; Green v. Mills, 69 F. 852, 859.

															[ Footnote 21 ]

															Revised Statutes, § 3224; Snyder v. Marks, 109 U.
S. 189 ; Dodge v. Osborn, 240 U.
S. 118 .

															[ Footnote 22 ]

															Act of March 4, 1909, § 25, c. 320, 35 Stat. 1075, 1081,
provides, as to the liability for the infringement of a copyright,
that

															"in the case of a newspaper reproduction of a copyrighted
photograph, such damages shall not exceed the sum of two hundred
dollars nor be less than the sum of fifty dollars,"

															and that, in the case of infringement of a copyrighted
newspaper, the damages recoverable shall be one dollar for every
infringing copy, but shall not be less than $250 nor more than
$5,000.

Summary:
The case of International News Service v. Associated Press (1918) concerned the legal battle between two news organizations over the publication and distribution of news.

The key points of the case are as follows:

- The Associated Press (AP), an association of newspaper publishers, gathered and distributed news to its members exclusively, who paid assessments for this service.

- International News Service (INS), a rival organization, obtained AP's news through early publications and redistributed it to its own customers, allowing them to compete with AP members in publishing the same news.

- The Court recognized that AP and its members had a quasi-property right in the news they gathered, even after initial publication.

- INS's practice of appropriating AP's news for its own profit and to the detriment of AP constituted unfair competition, and the Court ruled that it should be enjoined.

- The Court also noted that while rewriting articles and distributing news without crediting the source accentuated the wrongdoing, the essence of the case was the substantial appropriation of news gathered by another organization for lucrative publication.

In summary, the case established that news organizations have a protectable interest in the news they gather and distribute, and that appropriating this news for competitive gain constitutes unfair competition, regardless of whether the news is copyrighted or not.