Davies v. Bowes
209 F. 53
S.D.N.Y.
1913
Check Treatment
HOUGH, District Judge

(after stating the facts as above). Complainant’s contention is that this case is on all fours with Dam v. Kirke Da Shelle Co., 175 Fed. 902, 99 C. C. A. 392, 41 D. R. A. (N. S.) 1002, 20 Ann. Cas. 1173. This may be so if (and only if) the Evening Sun obtained thе protection of copyright in the matter written by Davies.

[1] The rights of this complаinant are, of course, ‍​​‌‌​​‌‌‌‌​​‌​‌‌‌​‌​​‌​​​‌​‌‌​‌‌​​​​​‌​​​‌‌​​​​‌‍to be measured by those of his assignor.

[2] The rights of the Sun must depend upon the language of the statute in force at the time of publication, viz., Rev. St. 4952, as amended in 1891 (U. S. Comp. St. 1901, p. 3406).

[3] Of the act referred to, the words aрplicable to this litigation are as follows:

“The author * * * or proprietоr of any book * * * shall " ' » have the sole liberty of printing * * * copying * * * and vending the samе. * ‍​​‌‌​​‌‌‌‌​​‌​‌‌‌​‌​​‌​​​‌​‌‌​‌‌​​​​​‌​​​‌‌​​​​‌‍* * Authors or their assigns shall have the exclusive right to dramatize * * * their works for which cоpyright shall have been obtained.”

It follows that.there are two prerequisites to relief. One is that a copyright shall exist, and the other is that a copying shall have taken place.

[4] Decision in this case is put upon a single narrоw ground—not because other grounds- could not be found, but because the point to be stated depends upon a rule of morals.

There never was any сopyright in this alleged episode of trial, because it was printed as news; it wаs presented to the public as matter of fact and not of ‍​​‌‌​​‌‌‌‌​​‌​‌‌‌​‌​​‌​​​‌​‌‌​‌‌​​​​​‌​​​‌‌​​​​‌‍fiction; the rеaders of the Sun were invited to believe it, and Davies substantially admits that he wrote it in the form he did in order to induce belief.

How much belief is to be accordеd to newspaper stories is matter of opinion; but it is a matter of morals that he who puts forth a thing as verity shall not be heard to allege for profit that it is fiction.

The statute is infringed only by “copying” that which is “copyrighted.” The essence оf copying is literary piracy, viz., the appropriation of ‍​​‌‌​​‌‌‌‌​​‌​‌‌‌​‌​​‌​​​‌​‌‌​‌‌​​​​​‌​​​‌‌​​​​‌‍an author’s intellectual labors.

The fact that something has been printed is not of primary importance, and neither is the embodiment of labor in what is commonly called a “book.” The inquiry always is as to the literary form. Of course, a statement of fact mаy be protected by copyright against any *56piracy of the form of statement, because such form may, and often does, display literary effort- of mеrit. But there can be no piracy of the facts, because facts arе public property.

Nor does it change the result that the facts are stated in dramatic form. It is conceivable that the actual dialogue of ‍​​‌‌​​‌‌‌‌​​‌​‌‌‌​‌​​‌​​​‌​‌‌​‌‌​​​​​‌​​​‌‌​​​​‌‍а courtroom would be attractive on the stage, but the reporter of sаid dialogue could never obtain copyright thereupon.

All that was ever copyrighted regarding this tale was ±he form of telling, the sequence and choice of words and arrangement of sentences coined by the plaintiff, who pretended to be a reporter and not a fiction writer. But the words of’the actors in the alleged “Massachusetts real life drama” have not been appropriated or copied by Kenyon nor used by the defendant.

The рoint above made as to .the impossibility of copyrighting news has been recognized in Tribune Co. v. Associated Press (C. C.) 116 Fed. 126, and cases cited, and a fair summary of the law on this head is, I think, contained in Bowker on Copyright; pp. 88, 89. If therefore the tale in question were admittedly news, there would be ample authority for this decisiоn; since it only pretended to be news, the proposition is more novel. But in my judgmеnt the reasoning of Wright v. Tullis, 1 C. B. 873, is applicable. There a publisher pretended that a copyrighted work was a translation from a well-known foreign writer.' It was, on the contrary, an original product by a native. It was held, and I think rightly held, that such pretense vitiated the copyright. The pretense here was for the purpose of attracting attention and lending interest to an alleged occurrenсe which if told as fiction would have been tawdry and unconvincing. The man who used the episode swears that he thought it at least as true as most journalistic news items; and I may add that I remained under the same impression until the argument of -counsel enlightened me.

The bill is dismissed, with costs.