SCRIBNER t1. CLARK
(Circuit Court, N. D. lllinats. April 9, 1888.)
L COPTRIGBT-INl!'RINGBMENT-TITLB OJ' COMPLAINANT. In a suit fot" the infringement of a copyright, where it is shown that the copyright was taken in the name of the complaining pUblisher as "proprietor, .. defendant cannot object that the author was a married woman, and that her husband was entitled to the fruits of her literary labor; for it will be presumed that the legal title Of the author was properly vested in complainant.
Complainant's title is sufficiently made out to enable him to maintain the suit where it is shown that he took the copyright in the name under which he did busi· ness, the name of a firm to all of whose rights he had succeeded on its dissolution.
SAME-MEASURE OJ' DAMAGES.
Where the infringing publication uses only a part of the matter of. the ori,pnal, and is issued in a different and much cheaper form, the measure of damages lS the amount of profits realized by the infringer, and not the amount of profits that would have been realized to the copyright owner by the sale of an equal number of copies of the copyright edition. . Though the hill prays the forfeiture of all the infringing books, and the plates used in their production, it is unnecessary to grant any other relief than damages, where it is shown that the infringer's place of business, with all the books and plates in question, has been destroyed by fire.
In Equity. Bill by Charles Scribner against Belford Clark & Co. for infringement of copyright. Decree for complainant. Affirmed in 12 Sup. Ct. Rep. 734. W. Larned. for complainant. Hutchinson & Partridge, for defendants.
BLODGE'IT, District Judge. This is a bill in equity charging the defendants with infringement of a copyright owned by the complainant of a publication entitled, "Common Sense in the Household: a Manual of Practical Housekeeping. By Marian Harland." The case was referred to one of the masters of the court to take proofs and report findings upon the question of infringement, and he has reported that the defendants, by the publication and sale of two books set out and described in the bill of complaint, one under the title of" How to Cook," and the Cookbook," have infringed upon the other under the title of complainant's copyright by incorporating into their said publication something over 50 pages of the matter of complainant's book, aawell as substantially following the arrangement of subjects and headings. Myers v. Callaghan, 10 Biss. 139, 5 Fed. Rep. 726. I have carefully examined the proof upon which the master bases his findings, and am satisfied that the finding was fully justified by the testimony. The case is now before me on defendants' exceptions to the master's and on complainant's motion for a decree in pursuance of the master's re-; port. It was objected at the hearing that the complainant could notrecover in this case, because the proof shows that Mrs. Terhune, the author of this book, whose nom de plume is Marian Harland, was a married
woman at the time the copyright in question was taken, and that by the common law her of her literary work, as well as any other proceeds of her industry during coverture. the prool I do not think th.is shows that the first edition of the work was copyrighted in the name of "Charles Scribner & Co. I Proprietors; 'llnd, the second ed'ition, which is in the naUleof. "Charles Scribner's,Sons, PrciprJetorsj" and, 8S the proof shows that Mrs. Terhune settled' from time to·timiwiththeowhers. of the copyright for her royalties, the court will 'that title as the of these books'Wa\!,in, some due conveyed to and vested in .the copyright: thereof.. Acquiescence for so many years by all the parties in this claim of proprietorship in the ,ltseems ri;1e, enough )0' "tiswet this suggestion of Mr. Terhune's possible marital interest in his wife's earnings. It is certain tha't;'ifthereis anyown'ership intIlis'Work by copyright at all, it is in the complainant, in whose name the copyright Wall and now stands, 86 far 'as' the 'Proof .in tbJscase. .If the law of the of Mrll,' .to .any part of her earnings, tbat is a matter to be settled between 1)er husband and the complainant, and which the defendants cannot interpose. as a defense to a trespass upon the com:plainant'sproperty nghts in: this copyrigbtedb60k. . . , .It,is further objected by the defenclants that the complainant's title is not sufficiently made out to justify bim in maintaining this SUit, but this objection I do not think is Thepl'oof shows that tbe first edition was copyrighted int'heuameof "Charles 'Scribner & Co.," a firm of book pUblishers at that time well known in the United States. ,Tbistirrnwas dissolved s.bortly after.tbe· first copyrigbt was 0 btained .by the death of Mr.CharleeiScribner, the senior member,and the business ia.ss\lmed and Q$tried·on Armstrong & Co." as successors to $.ll the. trade, business, and good will of Chinles Scribner & Co., who i pu,blicatioQ of this book, with other business, without Iqueationor About 1878 this firm was dissolved, and was thefil'm of.".Cbarles Scribner's Sons,"consisting of Charles S¢tibner, the.pre$ent cmnplainant, and John Blair Scribner, who sueI all the .dghts, . property, inteFests, anq good will of the firm of SctibJ:ier, Ar,w,strong & Co. In Janual"y, 18791' the firm of Charles Scribner's dissolved by the death of John Blair Scribner, and :the,present:m;mplainant, by purchase of the interest of the deceased member, b!'lCame the sole successorof the preceding firm,with the right tPllse the bas continued to carry on the de,!' the'narp.e Scribner's 'Sons."The sec<md copyright was tak:en.out inSepternberl1880, after .the death of John. Blair Scribner, and after the present complainant, uuder the name of " Charles Scribner's S()1l;S," bad:,succee,ded to all 'therig-hts of the, preceding firm j and this copyright \Vag taJten in tlw name·of'\,Charles Scribner's Sons," under the complainant, OhadesScribner, was then doing busiuess.
The infringE'tnent:in question is the last edition; and, upon the facts shown in the record, there can be no doubt that an infringement of this copyright owned by the complainant in his business name is fully shown. In regard to this last edition, it can. make no difference,so far. as the. defendants are concerned, how the complainant aequired the· right to·.Mrs. Terhune's1iteraJiy work. It is enough that the proof shows that he took the copyright of the second editionin the name under which he, tben conducted his business, and whether he has paid Mrs. Terhune any royalties or not is a matter of no concern to the defenuants. The trespass charged in the bill, and established by th9 proof, is uponthe property of the complainant, to which he has title by virtue of his copyright. The only question left for consideration is the amount of damages to be awarded. The book covered by the complainant's copyright was written and prepared by Mrs. M. Virginia Terhune, an authoress well known in this country by her nom de plume of " Marian Harland." The first edition was published in1871, and the copyright taken in the name of Charles Scribner & Co., under a contract between the firm and Mrs. Terhune that the firm should have the exclusive right of publishing the work for a term of seven years from the date of the copyright, and should pay the author the sum of 30 cents per copy as royaltyon all books sold. A new edition ofthe work was prepared by Mrs. Terhune in 1880, which was duly copyrighted in the name of "Charles Scribner's Sons," as proprietors. on the 18th of September of that year. By agreement between complainant and Mrs. Terhune: the retail price of both editions of the book was to be $1. 75 per volume, and the proof shows that the profits of the publishers were about 56 cents per copy, net. It is contended on the part ofcomplainant that the rule of damages in this case should be the same as that adopted in Pike v. Nicholas, L. R. 5 Ch. App. 261, referred to in Drone, Copyright, p. 535. This rule isthat the defendant is to account for every copy of his book sold as if it had been a copy of complainant's book, and to pay the complainant the profit which the latter would have received from the sale of so many additional copies. The proof in this case shows, and it is a conceded fact, that the infringing book published by the defendants was a cheap edition intended for popular sale at news stands, a small edition of a little over 9,000 copies having been Bold at about 60 cents a copy, and a still cheaper edition having been put upon the market at 10 cents a copy, of which the defendant sold 60,671 copies. While the rule contended for as to the measure of damages may have been a proper one in the case of Pike v. Nicholas, it seems to me it is not the proper rule in this case, inasmuch as the defendants only used part of the material of the complainant's book, and as their edition was a much cheaper one, and their sales at a very much lower price. If the defendants had put their editions upon the market at the same price at which the complainant sold his books, the rule in Pike v. Nicholas might be adopted here; but it does not follow that if defendants had put upon the market such editions of their book as were published by the complainant they could, or would, have
copies. .The fair and mtionalpreautnption from the factS is that is that it was the low price at which the defendants' books were offered in the market that these large sales. It seems to me the 'just and properrule in this,.as in aU other caseS of this character, is the profits the defendants made by their piracy of the complainant's work, and fix tho:t88 the tneasure' of the complainant's damagesjand, as the only proof as to the amount of these profits comes from the defendants, this is the only 'proof to be considered on this question. The defendants' books of aocount have been produced before the master, and show that the profit on the sales of the two editions pub. lishedby them, that is, the proceeds of the sales, less cost of production and selling, was $1,092.53; and this amount must therefore be taken as the measllire of the complainant's damages in this case. The bill .oontains the usual prayer for the forfeiture of aU the books on hand,and of the plateS, etc., used by the defendants in the production of the pirated work. About a yenrago, and since the commencement ofthis suit, the place of business of the defendants was destroyed by fire, and it is conceded that all the books on hand, together with their stereotyped plates, engravings, ete., used in the publication of this work, were.totally destroyed at that time, and that defendants have not reproduced these plates,orcontinued the publication of the work. This renders it unnecessary to grant any relief upon the prayer for forfeiture, and leaves the complainant entitled only to a decree for perpetual injunction against the further publication olthe book, and for the amount of damages above stated, with the costs of this suit.
THE CALVIN S. EnwABDS.
THE CALVIN B.EnWARDB.
February 18, 1891.)
of Appeatl, Second OWCUU.
BBlPPING-DUAGE TO CARGo-P,IIRIL 011' THE SEA.
Oil the evldellce,heW, that the damage suft'ered by the cargo of the Calvin B. Edwarils was 1I0t occasiolled by the negligellce of her master alld crew, but wu due to perils of the sea, alld hellC6 that the vessel was not liable for such 10s8.
Appeal froin the DistrictCourt of the United States for the, Eastern District of New York. Affirmed. 'In A!linil'lllty. Libelant shipped on boardof the schooner Calvin S. Edwards a cargo of lumber to be transported from Norfolk to New York. The vessel encountered a severe gale, which lasted for 16 hOUrs, and which left her leaking so badly that her master and crew abandoned her, being taken off by a passing boat. Thereafter she was picked up, and towel! to New York, when both she and her cargo were sold in a suit brought against them 'to recover salvage. See 46 Fed. Rep. 815. This libel was filed by the owners of the cargo, who claimed that the schooner 'Was a.bandoned, not by reason of perils of the sea, but because of the negligence of her crew; also that she was unseaworthy, being 31 years old. The district court delivered the following opinion: "Tbeevidence does not show that the omission to perform the contract of the elh'tledn' regard to the'libelatlts' lumber arose from unseaworthiness of the vessel. The fact that the forward pump was out of order is Dot evidence that the vessel was unseaworthy at the time of the charter, nor does the evi dence show that the leaking of the vessel arose from the schooner's being old. Many vessels as old as this are seaworthy for the purpose of carrying a cargo of lumber. Neither does the disaster to the vessel appear to have arisen from negligence on the part of her master or crew in the navigation. What caused the abandonment of the voyage was the severe storm which the vesleI endured for sixteen hours, during which time nearly all her sails were blown away, her foreboom broken, her boat washed 'away, both anchors parted from the chains, and all the fresh water either washed overboard or spoiled. The condition in which the vessel was left by the storm justified her abandonment. ' The libel must be dismissed, with costa." Peter S. Carter, for appellants. Robert S. Minturn, for appellees. Before WALLACE and LACOMBE, Circuit Judges. PER Cum:AK. Weare satisfied with the opinion of the court below in &his case, and affirm the decree.