
    HUBGES v. BELASCO et al.
    (Circuit Court, S. D. New York.
    March 26, 1904.)
    1. Copyright — Infringement—Preliminary Injunction.
    Motion for a preliminary injunction to restrain the performance of a play as an infringement of copyright denied on the ground of insufficiency of evidence to show infringement.
    In Equity. Motion for preliminary injunction to restrain the performance of the play known as “Sweet Kitty Bellairs,” on the ground that it is, in part, an infringement of complainant’s copyrighted play known as “Sweet Jasmine.”
    John M. Gardner, for plaintiff.
    Dittenhoefer, Gerber & James, for defendants.
   LACOMBE, Circuit Judge.

There is no direct evidence of copying either language or dramatic situations. As to such indirect evidence as a comparison of the two plays affords, it is sufficient to say that they are wholly dissimilar in plot, in characters, in text, and in dramatic situations. The climax of one act in each piece was principally relied upon in argument, where the unexpected discovery of the title character in a place where she should not be makes a dramatic situation which is presumably helpful to the success of both plays. That is an old device. It was common property of all playwrights when Sheridan employed it in the “School for Scandal.” Analyzing the details of that situation as presented in these two plays, the points of essential difference so far outnumber the points of similarity that it is difficult to understand how any one could persuade himself that the one was borrowed from the other.

The motion is denied.  