
    STRINGER v. FROHMAN.
    (Supreme Court, Special Term, New York County.
    March 27, 1915.)
    Copyright <©=355—Copyrighted Story—Use op Titee for Play—Injunction.
    The author of a copyrighted story, published in magazine and book form, is not entitled to enjoin use of the title for a play not connected with the story, where it appears the same title has been frequently used before for magazine articles, and for plays more than 40 years ago. .
    [Ed. Note.—For other cases, see Copyrights, Cent. Dig. § 52; Dec. Dig. <©=3355.]
    Suit by Arthur Stringer against Charles Frohman. Motion for an injunction denied.
    I. Vernon Weisbrod, of New York City, for plaintiff.
    Dittenhoefer, Gerber & James, of New York City, for defendant.
   NEWBURGER, J.

Plaintiff wrote a story-in 1910 and 1911 which he entitled “The Shadow.” In 1911 it was published by Munsey & Co. in serial form in a magazine, the Cavalier, and was copyrighted by Munsey & Co. In 1913, the story was published in book form by the Century Company, and was copyrighted in that year by said company. This story was never dramatized, nor has any play been written founded upon the story. The defendant is a theatrical manager, operating the Empire Theater. The play “The Shadow” was acquired by the defendant in May, 1914, from Dario Niccodemi, a French dramatist. Mr. Frohman had the play translated into English by Michael Morton, a dramatist and adapter, and the translation was made, to wit, “The Shadow.” The first performance of the play was given on January 12, 1915, at the Empire Theater in this city. It was advertised under the said title in all the newspapers, and has been advertised by means of lithographs and posters.

This application was made on March 5, 1915, two months after the play was first produced. It is not claimed on the part of the plaintiff that the play has any connection with the story written by him. The plaintiff’s story is based upon the exploits of a detective, while the Niccodemi play produced by the defendant has reference to the story ■of a wife, incurable with paralysis, having cast across her life the shadow of her husband’s infidelity. It appears from the certificate of the Librarian of Congress that the title “The Shadow” has been used for many years, and that there- are now in his office certificates showing the use of the title “The Shadow” in seven plays or dramas, the first of which was filed on the 19th day of February, 1879, and the last on February 12, 1914; that in addition thereto it appears that the title “The Shadow” has been used on a great many occasions in articles published in the Century, Harper’s, and other magazines. There are also affidavits by well-known dramatists showing that the' title was used in plays more than 40 years ago. Plaintiff has utterly •failed to make out a case to entitle him to injunctive relief.

Motion denied.  