It  has  generally  been  assumed  that  Atlas  v.  Street  &
Smith  has  settled  the  law  in  this  country  to  the  effect
that  there  is  no  coini)etition  between  a  novel  and  a  motion


USING    SA.MK    OR   SIMILAR   TITLES


437


picture.  Wliilc  in  tho  |)n>vailinp;  ojjinion  that  statement
is  made,  it  is  j)ure  ol)iter  dictum.  'I'hc  (juostion  invohcd
in  that  case  was  not  between  a  novel  and  a  picture,  hut
between  a  series  of  publications  and  a  jiicture.  There  a
series  of  works,  each  under  a  different  title,  had  been
jHiblished  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  j)icture  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  attend-
ance at  the  exhibition  of  a  motion  i)icture  may  be  under
the  impression  that  he  will  see  reproduced  a  periodical !

The  question  has  not  yet  come  squarely  before  the
courts.-^


29  See:  Harper  v.  Ranmifi  (1895) ,
G7  Fed.  (C.  C.)  904.  This  ca.sc
was  l)r()Uf?lit  under  tho  ("ojn'right
Act  for  an  intrinffcincnt.  The
defendant  pcrrdrnicd  a  (h'amatic
composition  hcarinfr  tlie  same
title  as  the  jjhiintilT's  novel.  The
plot,  scenes  and  dialogue  of  the
novel,  not  having  been  imitjited
or  adapted,  the  court  held  that
an  action  did  not  lie,  as  the  cojiv-
right  law  did  not  ])rotect  a  title
alone,  but  only  in  .so  far  as  it  wa.s
a  jiart  of  the  copyrighted  work.
