preme Court for the specific performance of a contract for the sale of land. 33 App. D. C. 7. The appellant was the owner of the land by inheritance, subject to the dower of her mother, who has died pending this cause. After some previous offers, Early & Lampton, real estate brokers in Washington, understanding that the defendant would take $200,000, prepared a document which the defendant, after some consultation with others, signed. So far as material it is as follows: "Office of Early & Lampton, Real Estate & Loan Brokers, 615 14th Street N. W.Washington, D. C., May 2nd, 1905. Received of Fannie E. Wilhoite a deposit of One hundred ($100.00) Dollars, to be applied to part payment of purchase of sub Lots 4, 5, 6 and 7, square 222 known as the Lenman Building, sold her for Two hundred thousand dollars net on fol-· lowing terms [with details as to payment, title, time, &c.] Early & Lampton, Agents for Fannie E. Wilhoite. Confirmed, ratified, and approved: Isobel H. Lenman (Owner). Fannie E. Wilhoite. Fannie E. Wilhoite (Purchaser), Per E. & L." Mrs. Wilhoite seems to have been a figurehead used by the brokers, and to have played merely a formal part.

The next day Mrs. Wilhoite signed an instrument in similar form acknowledging the receipt of five hundred dollars from the appellee, part payment for the same land, sold to him for $213,250, cash, the purchaser to make full settlement within five days from date. The terms varied from those in the first paper, by which $150,000, payable in three years, was to be secured by deed of trust. But there is no trouble on that score, as the appellee simply. is trying to hold the appellant to her own terms. Mrs. Wilhoite subsequently executed- a deed to the appellee, although it never was acknowledged or recorded. Demand and tender have been made, but the appellant has refused and refuses to perform, and the appellee brought this bill.

We will deal with the grounds for the refusal in the order in which they were presented. In the first place it was said that the conduct of the appellee and those under whom he claims precludes him from equitable relief. This needs no discussion. Even if it were true, as suggested but not found or proved, that when the bargain with the defendant was made, the appellee, Jones, was behind the brokers, and a trust company of which he was president was behind him, and that the defendant was not informed of the facts, she could not complain. It is apparent from her own testimony that she knew that Mrs. Wilhoite was only a figurehead, and the most that can be contended is that she thought that another person, not the appellee, most probably was the real man. It does not matter that she did. She suffered no loss, and moreover Mr. Jones and his company were under no obligation to disclose their interest in the absence of fraud, which there is not the slightest ground to suggest. It also is urged that the defendant, when she signed the instrument, thought that it merely gave an option. This is an immaterial afterthought. If she did not know what she was doing she had only herself to thank, but no even one-sided mistake is proved.

Some slight support for the preceding objection is sought also in the second ground upon which it is argued that the court erred. The bill alleges that Mrs. Wilhoite sold to the plaintiff, the appellee, all her rights under her contract with the appellant, and it now is urged that Jones was not an assignee but a subpurchaser and cannot recover on the allegations of the bill as they stand. There is a suggestion as little warranted as those that we have mentioned that the form of the bill also manifests bad faith. But the argument is mainly on the technical point that the proofs fail to sustain the allegations. We do not see the failure. When Mrs. Wilhoite contracted to sell the land, she contracted to transfer all the rights she got

by her contract with the owners of the land. As she in popular legal language became the equitable owner by her contract, she made the appellee the equitable owner by her contract with him—that is she gave him the right to insist in her place that the legal owner should give up the legal estate upon fulfillment of the conditions agreed. The deed from Mrs. Wilhoite although purporting to be made by Miss Lenman and her, reciting the transactions on which it is founded, would be sufficient to satisfy the allegations of the bill in the strictest sense. True, it purports to convey the land, but thereby it conveys all of Mrs. Wilhoite's rights in and to the land. It was executed by Mrs. Wilhoite in aid of the enforcement of Miss Lenman's agreement, and therefore is not to be read as conditional upon the signature of Miss Lenman. See Buchannon v. Upshaw, '1 How. 56.

The foregoing considerations afford an answer to the third objection: that Mrs. Wilhoite is not made a party to the suit; in view of the fact that it was not taken in the pleadings, or, so far as appears, before the argument in the Court of Appeals. Mrs. Wilhoite has no real interest, and it is clear that the appellant is put in no danger by the decree. The point is urged as an afterthought, and no end of justice would be served by allowing it to prevail.

Finally it is said that the instrument sued upon does not satisfy the statute of frauds. Code, D. C., § 1117. This is a desperate contention, like the rest. There are certain formal absurdities in the document, but it leaves no doubt in the mind of either lawyer or layman as to who was purchaser, who seller, what the land or what the terms. Upon the whole case, without further discussion, we are of opinion that the plaintiff is entitled to prevail. Decree affirmed.

222 U.S.

Argument for Appellant.

KALEM COMPANY v. HARPER BROTHERS.

APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT.

No. 26. Argued October 31, November 1, 1911.-Decided November 13, 1911.

An exhibition of a series of photographs of persons and things, arranged on films as moving pictures and so depicting the principal scenes of an author's work as to tell the story is a dramatization of such work, and the person producing the films and offering them for sale for exhibitions, even if not himself exhibiting them, infringes the copyright of the author under Rev. Stat., § 4952, as amended by the act of March 3, 1891, c. 565, 26 Stat. 1106. Quare whether there would be infringement if the illusion of motion were produced from paintings instead of photographs of real persons, and also quare whether such photographs can be copyrighted. Rev. Stat., § 4952, as amended by the act of March 3, 1891, c. 565, 26 Stat. 1106, confines itself to a well-known form of reproduction and does not exceed the power given to Congress under Art. I, § 8, cl. 8 of the Constitution, to secure to authors the exclusive right to their writings for a limited period.

169 Fed. Rep. 61, affirmed.

THE facts are stated in the opinion.

Mr. John W. Griggs and Mr. Drury W. Cooper for appellant:

The Court of Appeals was right in affirming the proposition that the making and publication of a series of pictures of the incidents described in a book is not an infringement of a copyright in the book.

Copyright does not monopolize the intellectual conception, but only the form of expression, i. e., the “arrangement of words," Holmes v. Hurst, 174 U. S. 86, adopted by the author. It is the writings of the author that are protected, and the statute cannot extend the

Argument for Appellant.

222 U. S.

monopoly to his ideas. White-Smith v. Apollo, 209 U. S. 17; Stowe v. Thomas, 2 Wall. Jr. 547; 23 Fed. Cas. 201, 206; Baker v. Selden, 101 U. S. 99; Johnson v. Donaldson, 3 Fed. Rep. 22; Perris v. Hexamer, 99 U. S. 674, 676; BobbsMerrill Co. v. Straus, 210 U. S. 339, 347.

A moving picture film, whether made by a modern rapid-fire camera, or by the ancient and laborious process of taking, or drawing, and collating pictures of objects in successive positions, is a picture. Edison v. Lubin, 122 Fed. Rep. 240; Am. Mutoscope Co. v. Edison, 137 Fed. Rep. 262; United States v. Berst, 175 Fed. Rep. 121. And see Edison v. Mutoscope Co., 114 Fed. Rep. 926.

Copyright law differs from the law of patents; in the former there may be two concurrent copyrights in what is identically the same creation, in the latter there can only be one patent, the first inventor being entitled. MacGillivray on Copyrights, 243. And see Baker v. Selden, 101 U. S. 99.

Termination of the author's common-law rights upon voluntary publication, Millar v. Taylor, 4 Burr. 2331, has been recognized frequently by this court, and was known to the framers of the Constitution. Stephens v. Cady, 14 How. 528, 530; Lithograph Co. v. Sarony, 111 U. S. 53, 58; Holmes v. Hurst, 174 U. S. 82, 86; Wheaton v. Peters, 8 Pet. 591, 676, and cases passim.

If one, by copyrighting a book, can prevent an artist from picturing the scenes described, reason cannot afford room for the orator to use, in his flights of fancy, the author's created characters or figures of speech, for the idea is not open to appropriation or use in one case more than in the other. But it is the writing only, and not the idea, that is monopolized; the mode of expression and not the thought conveyed. Books and pictures are essentially different.

As to whether a painting is a manuscript, see Parton v. Prang, 18 Fed. Cas. 1273.