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USING SAME OR SIMILAR TITLES
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picture. While in the prevailing opinion that statement is made, it is pure obiter dictum. The question involved in that case was not between a novel and a picture, but between a series of publications and a picture. There a series of works, each under a different title, had been published from time to time, the entire series being known under the name “Nick Carter.” The court was right in its conclusion, for the exhibition of a picture under the same title could not very well affect the trade in the series; the situation is analogous to that of a motion picture published under the same title as that of a periodical. How can it be said that a person contemplating attendance at the exhibition of a motion picture may be under the impression that he will see reproduced a periodical!
The question has not yet come squarely before the courts.29
29 See: Harper v. Ranous (1895), 67 Fed. (C. C.) 904. This case was brought under the Copyright Act for an infringement. The defendant performed a dramatic composition bearing the same title as the plaintiff’s novel. The plot, scenes and dialogue of the novel, not having been imitated or adapted, the court held that an action did not lie, as the copyright law did not protect a title alone, but only in so far as it was a part of the copyrighted Work.
This case has sometimes been cited in support of the proposition that there is no unfair com
petition between a novel and a dramatic composition but it will be noted that unfair competition was not at all involved in the case.
See: Astor v. W. 82nd St. Realty Co. (1915), 167 A. D. (N. Y.) 273; 152 N. Y. Supp. 631. An hotel and an apartment hotel bore the same title, “Apthorp.”
Held, that since one desiring rooms by the day or longer in a hotel would not be apt to lease an apartment in an apartment hotel, there was no direct competition between them, and no injunction would lie.