*176 herit the lands of the Creek Nation" (Act | June 30, 1902, c. 1323, 32 Stat. 500), it is clear that with the Indians the interests of the tribe were paramount to those of the family and it was with a knowledge of the mode of life of their primitive people, better and more intimate than the courts can now command, that they determined that this paramount purpose would best be served by giving to children born of mixed marriages the tribal status of their mother. As we have said, this record does not show affirmatively that the Seminoles had a custom similar to this one of the Creeks, but such is believed to have been the fact. The Supreme Court of Oklahoma, in its first opinion (154 Pac. 60), said: "The defendants have presented the additional proposition here that, according to the custom of the Seminole Nation, the blood of the mother determined the tribe' to which her off spring belonged, and the fact that the children, plaintiffs here, were not enrolled as Seminole citizens was not due to any neglect of the parents of the said children or of the Commission to have said children enrolled on the Seminole roll, but the law and the custom of the Seminole Tribe were that the children were of the blood of the mother and members of that tribe to which the mother belonged. While we do not find it necessary to pass upon this proposition, and will leave it, as far as this opinion is concerned, an open question, yet we will say that as far as our investigation has led us, we are of the opinion that this last proposition is a correct statement of the law so far as it applies to the facts as presented in the case at bar." In Hughes Land Co. v. Bailey, 30 Okl. 194, 196, 120 Pac. 290, the same court, in discussing the rights of two daughters born of the marriage of a Creek man to a Seminole woman, said: "By virtue of the citizenship of their mother, they [the daughters] were enrolled as citizens of the Seminole Nation." And it may be noted that this custom prevails with the Seminole Indians of Florida, from whom those of Oklahoma are derived. Annual Report, Bureau of American Ethnology, 1883-84, p. 508. But the most persuasive evidence of this custom is, that the federal Commissioners, with, as we have seen, all of the facts as to parentage before them and considered, enrolled the daughters of Cox in the Creek Tribe of their mother and not in the Seminole Tribe of their father. The Commissioners, in making up the rolls I which were to be "final," were given authority to consult tribal records and rolls *and "to adopt any other means deemed necessary to enable them to make up the rolls" (30 Stat. 495, § 21), and in their conclusion, arrived at after many years of experience and painstaking investigation, may well be found a cogent and impelling reason for accepting the terms of the statutory agreement as they are plainly written and for refusing to enlarge them by interpretation. On its surface this case is typical of those hard cases which proverbially make bad law, but in reality, since the widow and children of Cox, as enrolled Creeks, were entitled each to an allotment in the Creek lands and property (30 Stat. 495, § 21; Act March 1, 1901, c. .676, 31 Stat. 861, §§ 3, 28; and 32 Stat. 500, §§ 7, 8 and 9) their being excluded from an inheritance which they did not attempt to claim for a dozen years after the death of Cox, does not present a degree of hardship calling for a strained interpretation of a plain statutory provision limiting inheritances to enrolled Seminole citizens, so that it may include not only persons not so enrolled, but persons who were actually enrolled as Creek citizens. The conclusion we are announcing is consonant with prior holdings of this court unThus, in Washington der similar statutes. v. Miller, 235 U. S. 422, 35 Sup. Ct. 119, 59 L. Ed. 295, under the proviso in the Supplemental Creek Agreement of June 30, 1902 (32 Stat. 500), that "only citizens of the Creek Nation, male and female, shall inherit lands of the Creek Nation," a judgment was affirmed, holding the grantee of a Creek mother entitled, as against the claims of a Seminole father, to lands inherited from the child of their marriage enrolled as a Creek, when, if the father had been an enrolled Creek, he and the mother would have shared the land equally. And in McDougal v. McKay, 237 U. S. 372, 35 Sup. Ct. 605, 59 L. Ed. 1001, again under the Supplemental Creek Agreement, it was decided that the Creek father of a child born of his marriage with a non-Creek mother, inherited the entire estate of the child, *which died intestate, although his wife would have taken equally with him had she been an enrolled Creek. All statutes of descent and distribution are arbitrary expressions of the purpose of the lawmaking power and that the provisions of such a statute do not happen to meet the notions of justice of a court is not sufficient reason for indulging in an interpretation which modifies their plain and unambiguous terms. Especially is this true of these Indian statutes which are a progressive development, embodying concessions to tribal custom and tradition necessary to be made in order to accomplish a practical, though perhaps not an ideal, dissolution of the tribal relation and distribution of the tribal property. The rights of this Creek mother cannot rise higher than those of her daughters. It results that the judgment of the Supreme Court of Oklahoma must be reversed and the case remanded for further proceedings not inconsistent with this opinion. Reversed. No. 70. Mrs. Rose SNYDER, plaintiff in erNo. 546. CHESAPEAKE & OHIO RAIL ror, v. KING COUNTY, WASH., et al. Dec. 9, WAY COMPANY, petitioner, v. The UNITED 1918. In error to the Supreme Court of the STATES of America. Dec. 9, 1918. For opinState of Washington. Messrs. Dallas V. Hal-ion below, see 249 Fed. 805. Mr. John Galvin, verstadt and Ed. J. Brown, both of Seattle, of Cincinnati Ohio, for petitioner. Mr. Attor Wash., for plaintiff in error. Mr. Alfred H. ney General, for the United States. Petition for Lundin, of Seattle, Wash., for defendant in er- a writ of certiorari to the United States Circuit ror. For opinion below, see In re Snyder's Court of Appeals for the Sixth Circuit denied Petition, 93 Wash. 59, 160 Pac. 12. PER CURIAM. Affirmed with costs upon the authority of Magoun v. Illinois Trust & Savings Bank, 170 U. S. 283, 293, 18 Sup. Ct. 594, 42 L. Ed. 1037: Atchison, T. & S. F. Ry. Co. v. Matthews, 174 U. S. 96, 103, 19 Sup. Ct. 609, 43 L. Ed. 909; Clark v. Kansas City, 176 U. S. 114, 119, 20 Sup. Ct. 284, 44 L. Ed. 392; Linds ley v. Natural Carbonic Gas Co., 220 U. S. 61, 31 Sup. Ct. 337, 55 L. Ed. 369, Ann. Cas. 1912C, 160. No. 158. The DELAWARE, LACKAWANNA & WESTERN RAILROAD COMPANY, appellant, v. The UNITED STATES. Dec. 9, 1918. For opinion below, see 220 Fed. 944. Mr. Ben Carter, of Washington, D. C., for appellant. Mr. Attorney General, for appellee. Motion to remand for additional findings granted. (248 U. S. 592) No. 517. I. F. SEARLE et al., petitioners, v. MECHANICS LOAN & TRUST COMPANY et al., etc. Dec. 9, 1918. For opinion below, see 249 Fed. 942. Mr. Elmer, H. Adams, of Chicago, Ill., for petitioners. Mr. F. T. Post, of Spokane, Wash., for respondent. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Ninth Circuit dismissed on motion of counsel for the petitioners. (248 U. S. 580) (248 U. S. 538) No. 636. John P. SCHMITT and Martin RACH, trustee, etc. Dec. 9, 1918. In error to Schmitt, etc., plaintiffs in error. v. John SHADthe Third Circuit. For opinion below, see 251 the United States Circuit Court of Appeals for Fed. 874. Mr. Rush Trescott, of Wilkes Barre, Pa., for plaintiffs in error. Mr. Henry L. Stone, of Louisville, Ky., for defendant in error. PER CURIAM. Dismissed for want of jurisdiction upon the authority of section 4 of act of Congress of January 28, 1915, c. 22, 38 Stat. 803, 804 (Comp. St. 1916, § 1120a). (248 U. S. 580) No. 707. Helen WELCH, petitioner, v. John A. DANIELS, guardian, etc., et al. Dec. 9, 1918. For opinion below, see 253 Fed. 39. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Eighth Circuit denied. (248 U. S. 581) No. 725. MONROE BUILDING COMPANY et al., petitioners, v. Frank LAWHEAD, trustee, etc. Dec. 9, 1918. For opinion below, see 252 Fed. 758. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Sixth Circuit denied. No. 545. CHESAPEAKE & OHIO RAIL- No. 745. STANDARD VARNISH WORKS, WAY COMPANY, petitioner, v. The UNITED v. Steamship "BRIS," Rederiaktiebolaget, claimSTATES of America. Dec. 9, 1918. For ant. Dec. 9, 1918. For opinion below, see 253 opinion below, see 249 Fed. 805. Mr. John Cal- Fed. 259. Motion for a writ of certiorari to vin, of Cincinnati, Ohio, for petitioner. Mr. At-bring up the entire record and cause denied. (248 U. S. 215) INTERNATIONAL NEWS SERVICE v. AS SOCIATED PRESS. 7. TRADE-MARKS AND TRADE-NAMES ~68-UNFAIR COMPETITION. What is unfair competition in business must be determined with particular reference to the (Argued May 2 and 3, 1918. Decided Dec. 23, character and circumstances of the business. 1918.) No. 221. 1. COURTS 343-FEDERAL COURTS-PARTIES -EQUITY RULES-SUIT BY REPRESENTATIVE OF CLASS. Under equity rule 38 (33 Sup. Ct. xxix), authorizing one or more to sue for all, where the question is one of common or general interest to a numerous class, an incorporated co-operative organization is a proper party, as representing the interest of its members, to conduct a suit in substance brought for their benefit. 2. COURTS 356-FEDERAL COURTS-PARTIES -DEFECT-OBJECTION BELOW. Under equity rules 43, 44 (33 Sup. Ct. xxx), as to objection by defendant, before or at the hearing, that suit is defective for want of parties, no specific objection of want of parties having been made below, objection because of suit for benefit of members of incorporated co-operative organization being brought by it, instead of them, will be treated as waived. 3. LITERARY PROPERTY 1-PROPERTY IN NEWS. In considering the general question of property in news matter, its dual character, distinguishing between the substance of the information and the particular form or collocation of words in which the writer has communicated it, must be recognized. 5. COPYRIGHTS 16 NEWSPAPER "News." The "news" element, the information concerning current events contained in a literary production, is not subject of copyright, under Const. art. 1, § 8, par. 8, not being the creation of the writer. News, regarded as the material out of which rival news-gathering agencies are seeking to make profits at the same time and in the same field, when gathered by one, is "quasi property," though posted on bulletins or published in papers of some of its members. 9. TRADE-MARKS AND TRADE-NAMES 67— UNFAIR COMPETITION-PROPERTY RIGHTS. To sustain jurisdiction of equity over the controversy of appropriation by one news-gathering agency of news gathered by another such agency, as unfair competition, no general and absolute property in the news as such need be affirmed; the right to acquire property by honest labor or the conduct of a lawful business being as much entitled to protection as the right to guard property already acquired, and furnishing the basis of jurisdiction in the ordinary case of unfair competition. 10. NEWSPAPERS 7-NEWS AGENCIES-EFFECT OF PUBLICATION. News furnished by complainant news-gathering agency does not, on publication thereof in newspapers of a portion of its members, become the common possession of all, to the extent that defendant, rival in news-gathering, may take it therefrom and transmit it to papers published in competition with those of other members of complainant, allowing simultaneous publication. 11. TRADE-MARKS AND TRADE-NAMES 68 UNFAIR COMPETITION-USE OF NEWs. It is unfair competition in business for de fendant news-gathering agency to take from newspapers, published by members of complainant news-gathering agency, news furnished by complainant, and transmit it to clients of defendant, enabling them to publish in competition with, and as soon as papers of, other members of complainant. 12. LITERARY PROPERTY 5-NEWSPAPERS 7-NEWS-ABANDONMENT TO PUBLIC. News furnished by complainant news-gathering agency is not abandoned to the public for all purposes, including its use by a rival, on publication in the paper of a single member of complainant; abandonment being a question of intent, and the entire organization of complainant negativing such a purpose. 13. TRADE-MARKS AND TRADE-NAMES 68– UNFAIR COMPETITION-USE OF NEWS. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, News.] 6. TRADE-MARKS AND TRADE-NAMES 68Attempt by defendant to palm off his goods UNFAIR COMPETITION-USE OF NEWS. as those of complainant is not essential to unWhether defendant news-gathering agency fair competition, for which equity will grant may be restrained from appropriating, for sale, relief, but it is enough for defendant to appronews taken from bulletins issued by complain-priate and sell as his own news gathered by ant agency, or any of its members, or from newspapers published by any of them, turns on the question of unfair competition in business, which is not dependent on any general right of property analogous to the common-law right of the proprietor of an unpublished work, nor foreclosed by failure to copyright. complainant for sale. 14. EQUITY 65(3)-UNCLEAN HANDS-UNFAIR COMPETITION-USE OF NEWS. Under present state of pleadings and proof, the practice of complainant news-gathering agency, seeking to enjoin defendant rival from ap For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes propriating outright news gathered by it, of taking news items published by defendant's subscribers as tips to be investigated, and using the news, if verified by investigation, a practice followed by defendant and by news agencies generally, held not shown to fix on complainant the taint of unclean hands. use of it shall be permitted, and that no member shall furnish or permit any one in his employ or connected with his newspaper to furnish any of complainant's news in advance of publication to any person not a member. And each member is required to Mr. Justice Brandeis, dissenting, and Mr. gather the local news of his district and supJustice Holmes and Mr. Justice McKenna, dis-ply it to the Associated Press and to no one senting in part. On Writ of Certiorari to the United States Circuit Court of Appeals for the Second Circuit. else. Defendant is a corporation organized under the laws of the state of New Jersey, whose business is the gathering and selling of news to its customers and clients, consist Suit in equity by the Associated Pressing of newspapers published throughout the against the International News Service. An they pay certain amounts at stated times United States, under contracts by which order of the District Court, granting a pre- for defendant's service. It has widespread liminary injunction (240 Fed. 983), was modified by the Circuit Court of Appeals (245 Fed. news-gathering agencies; the cost of its op244, 157 C. C. A. 436), and defendant brings erations amounts, it is said, to more than $2,000,000 per annum; and it serves about 400 newspapers located in the various cities of the United States and abroad, a few of which are represented, also, in the membership of the Associated Press. certiorari. Affirmed. Messrs. Samuel Untermyer, of New York City, Hiram W. Johnson, of San Francisco, Cal., and Henry A. Wise and William A. De Ford, both of New York City, for petitioner. Mr. Frederic W. Lehmann, of St. Louis, Mo., for respondent. The parties are in the keenest competition between themselves in the distribution of news throughout the United States; and so, as a rule, are the newspapers that they serve, *Mr. Justice PITNEY delivered the opin- in their several districts. ion of the Court. The parties are competitors in the gathering and distribution of news and its publication for profit in newspapers throughout the United States. The Associated Press, which was complainant in the District Court, is a co-operative organization, incorporated under the Membership Corporations Law of the state of New York, its members being individuals who are either proprietors or representatives of about 950 daily newspapers published in all parts of the United States. That a corporation may be organized under that act for the purpose of gathering news for the use and benefit of its members and for publication in newspapers owned or represented by them, is recognized by an amendment enacted in 1901 (Laws N. Y. 1901, c. 436). Complainant gathers in all parts of the world, by means of various instrumentalities of its own, by exchange with its members, and by other appropriate means, news and intelligence of current and recent events of interest to newspaper readers and distributes it daily to its members for publication in their newspapers. The cost of the service, amounting approximately to $3,500,000 per annum, is assessed upon the members and becomes a part of their costs of operation, to be recouped, presumably with profit, through the publication of their several newspapers. Under complainant's by-laws each member agrees upon assuming membership that news received through complainant's service is received exclusively for publication in a particular newspaper, language, and place specified in the certificate of membership, that no other the Complainant in its bill, defendant in its answer, have set forth in almost identical terms the rather obvious circumstances and conditions under which their business is conducted. The value of the service, and of news furnished, depends upon the promptness of transmission, as well as upon the accuracy and impartiality of the news; it being essential that the news be transmitted to members or subscribers as early or earlier than similar information can be furnished to competing newspapers *by other news services, and that the news furnished by each agency shall not be furnished to newspapers which do not contribute to the expense of gathering it. And further, to quote from the answer: "Prompt knowledge and publication of worldwide news is essential to the conduct of a modern newspaper, and by reason of the enormous expense incident to the gathering and distribution of such news, the only practical way in which a proprietor of a newspaper can obtain considerable number of other newspaper prothe same is, either through co-operation with a prietors in the work of collecting and distributing such news, and the equitable division with them of the expenses thereof, or by the purchase of such news from some existing agency engaged in that business." The bill was filed to restrain the pirating of complainant's news by defendant in three ways: First, by bribing employés of newspapers published by complainant's members to furnish Associated Press news to defendant before publication, for transmission by telegraph and telephone to defendant's clients for publication by them; second, by Inducing Associated Press members to vio-ed. It is said that it could not, in practice, late its by-laws and permit defendant to obtain news before publication; and, third, by copying news from bulletin boards and from early editions of complainant's newspapers and selling this, either bodily or after rewriting it, to defendant's customers. be copyrighted, because of the large number of dispatches that are sent daily; and, according to complainant's contention, news is not within the operation of the copyright act. Defendant, while apparently conceding this, nevertheless invokes the analogies of the law of literary property and copyright, | insisting as its principal contention that, assuming complainant has a right of property in its news, it can be maintained (unless the copyright act be complied with) only by being kept secret and confidential, and that upon the publication with complainant's consent of uncopyrighted news of any of complainant's members in a newspaper or upon a bulletin board, the right of property is lost, and the subsequent use of the news by the public or by defendant for any purpose whatever becomes lawful. [1, 2] A preliminary objection to the form in which the suit is brought may be disposed of at the outset. It is said that the Circuit Court of Appeals granted relief upon considerations applicable to particular members of the Associated Press, and that this was erroneous because the suit was brought by complainant as a corporate entity, and not by its members; the argument being that their interests cannot be protected in this proceeding any more than the individual rights of a stockholder can be enforced in an action brought by the corporation. From the averments of the bill, however, it is plain that the suit in substance was brought for the benefit of complainant's members, and that they would be proper parties, and, except for their numbers, perhaps necessary parties. Complainant is a proper party to conduct the suit as representing their interest; and since no specific objection, based upon the want of parties, appears to have been made below, we will treat the objection as waived. See Equity Rules 38, 43, 44 (33 Sup. Ct. xxix, xxx). The District Court, upon consideration of the bill and answer, with voluminous affidavits on both sides, granted a preliminary injunction under the first and second heads, but refused at that stage to restrain the systematic practice admittedly pursued by defendant, of taking news bodily from the bulletin boards and early editions of complainant's newspapers and selling it as its own. The court expressed itself as satisfied that this practice amounted to unfair trade, but as the legal question was one of first impression it considered that the allowance of an injunction should await the outcome of an appeal. 240 Fed. 983, 996. Both parties having appealed, the Circuit Court of Appeals sustained the injunction order so far as it went, and upon complainant's appeal modified it and remanded the cause, with directions to issue an injunction also against any bodily taking of the words or substance of complainant's news until its commercial value as news had passed away. 245 Fed. 244, 253, 157 C. C. A. 436. The present writ of certiorari was then allowed. | 245 U. S. 644, 38 Sup. Ct. 10, 62 L. Ed. 528. The only matter that has been argued before us is whether defendant may lawfully be restrained from appropriating news taken from bulletins issued by complainant or any of its members, or from newspapers published by them, for the purpose of selling it to defendant's clients. Complainant asserts that defendant's admitted course of conduct in this regard both violates complainant's property right in the news and constitutes unfair competition in business. And notwithstanding the case has proceeded only to the stage of a preliminary injunction, we have deemed it proper to consider the underlying questions, since they go to the very merits of the action and are presented up-between the substance of the information on facts that are not in dispute. As presented in argument, these questions are: (1) Whether there is any property in news; (2) whether, if there be property in news collected for the purpose of being published, it survives the instant of its publication in the first newspaper to which it is communicated by the news-gatherer; and (3) whether defendant's admitted course of conduct in appropriating for commercial use matter tak-early case at the circuit Mr. Justice Thompen from bulletins or early editions of Associated Press publications constitutes unfair competition in trade. [3] *In considering the general question of property in news matter, it is necessary to recognize its dual character, distinguishing and the particular form or collocation of words in which the writer has communicated it. [4] No doubt news articles often possess a literary quality, and are the subject of literary property at the common law; nor do we question that such an article, as a literary production, is the subject of copyright by the terms of the act as it now stands. In an son held in effect that a newspaper was not within the protection of the copyright acts of 1790 (1 Stat. 124) and 1802 (2 Stat. 171). The federal jurisdiction was invoked be- Clayton v. Stone, 2 Paine, 382, Fed. Cas. No. cause of diversity of citizenship, not upon 2,872. But the present act is broader; it the ground that the suit arose under the provides that the works for which copyright copyright or other laws of the United States. may be secured shall include "all the writComplainant's news matter is not copyright-ings of an author," and specifically men *234 *233 |