Eggers v. Sun Sales Corp.

263 F. 373 | 2d Cir. | 1920

HOUGH, Circuit Judge (after stating the facts as above).

[1] In form statutory copyright is effected by the act of the p.erson claiming the privilege. What is registered is a “claim to copyright.” Act March 4, 1909, c. 320, § 10 (Comp. St. § 9531). There is no provision for examination, as in the case of patents, and probably for that reason the act (section 3 [Comp. St. § 9519]) declares that protection is extended to “all the copyrightable component parts of the work copyrighted.” The inference is that there may be in that for which claim is made much to which the protection of the act cannot extend. This is but recognition of law existing long before the present statute. Black v. Allen Co. (C. C.) 42 Fed. 618, 9 L. R. A. 433, and cases cited.

This action rests on copyright alone, though the pleadings contain an abandoned suggestion of unfair competition. Therefore the first inquiry is: What does the plaintiff’s pamphlet contain that is copyrightable matter ? Certainly not General Pershing’s official report, that being a. public document. Admitting this, plaintiff rests on the doctrine of Callaghan v. Meyers, 128 U. S. 617, 9 Sup. Ct. 177, 32 L. Ed. 547, and thereby necessarily likens the addenda, the ornamentation, and indeed the “get-up” of his pamphlet, to the original matter specified in that well-known decision as the original matter commonly added by reporters to judicial decisions. Considering that the official report, standing alone, could not be copyrighted, we pass over the question whether what the plaintiff added, or any substantial portion thereof was in its nature copyrightable; we prefer to deal only with infringement.

[2] “Infringement” is a word not defined in our statute. It is assumed to be something already known to the law (section 25), and where the subject of copyright is a book, infringement consists in the copying of some substantial and material part thereof (Chatterton v. Cave, 3 App. Cas. 483). In this instance, defendants may be said to have copied nothing that was copyrightable in plaintiff’s pamphlet, assuming that all was copyrightable except the report. What defendants did was to learn by handling plaintiff’s pamphlet that there was a good market for the report, and so they imitated plaintiff’s attractive get-up therefor.

This conduct may be called mean, but it is not punishable under the Copyright Act (Comp. St. §§ 9517 et seq.). It is even possible that defendants’ printers set up'the official report from a copy of plaintiff’s book; identity of pagination leads to that suspicion; but legally that is not of sufficient importance to constitute infringement of copyright. Banks, etc., Co. v. Lawyers’, etc., Co., 169 Fed. 386, 94 C. C. A. 642, 17 Ann. Cas. 957.

But, however unattractive in a business or moral sense defendants’ conduct has been, it was open to any one to print and publish the public document in question, and there is as much original additional labor in defendants’ selection of pictures as there was in plaintiff’s selection of different pictures. In this sense the later publication, made up of matter open to the whole world can itself be called original and new. Chautauqua School v. National School, 238 Fed. 151, 151 C. C. A. 227. Assuming, then, that plaintiff’s pamphlet contains any copyrightable matter, we are of opinion (1) that defendants’ is not an infringement; and (2) that it may itself be pronounced a new and original work, in the very broad sense the law compels us to attach that name to trivialities having pecuniary value. Hein v. Harris (C. C.) 175 Fed. 877.

The decree appealed from is affirmed, but, under the circumstances, without costs.