Eisenschiml v. Fawcett Publications

• Decision Date: 12 August 1957
• Docket Number: No. 11830.,11830.
• Citation: 246 F.2d 598
• Parties: Otto EISENSCHIML, Plaintiff-Appellant, v. FAWCETT PUBLICATIONS, Inc., Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

246 F.2d 598 (1957)

Otto EISENSCHIML, Plaintiff-Appellant, v. FAWCETT PUBLICATIONS, Inc., Defendant-Appellee.

No. 11830.

United States Court of Appeals Seventh Circuit.

July 17, 1957.

Rehearing Denied August 12, 1957.

Elmer Gertz, Irwin S. Baskes, Chicago, Ill., for appellant.

Don H. Reuben, Frank A. Olson, Howard Ellis, Keith Masters, Chicago, Ill., (Kirkland, Fleming, Green, Martin & Ellis, Chicago, Ill., of counsel), for appellee.

Before DUFFY, Chief Judge, and FINNEGAN and SCHNACKENBERG, Circuit Judges.

DUFFY, Chief Judge.

The complaint herein alleges copyright infringement. Count I alleges defendant infringed plaintiff's copyrighted book "Why Was Lincoln Murdered?" (hereinafter sometimes referred to as "Why"). The second Count alleged the defendant infringed plaintiff's copyrighted book "In the Shadow of Lincoln's Death" (hereinafter sometimes referred to as "Shadow"). Plaintiff seeks an accounting for profits, damages and costs pursuant to the Copyright Act, 17 U.S.C.A. § 1 et seq.

The defendant, Fawcett Publications, Inc., publishes a magazine called "True". Plaintiff alleges defendant infringed his copyright by publishing in the February, 1953, issue of True, an article entitled "America's Greatest Unsolved Murder" written by one Joseph John Millard. The cause was referred to a Special Master, although the oral testimony of only five witnesses was heard by him. He also considered three depositions including that of Joseph Millard, and examined numerous exhibits.

The Special Master made a report recommending that the Court enter judgment for the defendant, and that the plaintiff be taxed all costs including the payment of an attorney fee. He reported that the parties had deposited with the Master the sum of three thousand dollars for fees, and he requested an additional allowance of three thousand dollars. Exceptions were filed to the report. The District Court filed a short memorandum, and entered an order overruling objections to the report, ordering the plaintiff to pay the Special Master an additional sum of Forty-five Hundred Dollars and to reimburse the defendant in the amount of Fifteen Hundred Dollars for the sum which it had deposited with the Special Master. The Court also ordered that the plaintiff pay attorney fees. The amounts allowed by the Court were Fifteen Hundred Dollars more than had been requested by the Special Master; however, the latter has filed a partial satisfaction to the extent of Fifteen Hundred Dollars.

Plaintiff has written a number of articles and books on the Civil War period. He is an acknowledged authority in the field of Civil War history and, in particular, in the narrower field of Lincoln's assassination. His research on this subject extended over a period of eighteen years, and plaintiff testified he expended $20,000.00 in doing this work. Millard testified no competent authority would write about Lincoln's assassination without studying plaintiff's works.¹ Millard read plaintiff's "Why" and "Shadow" at least twice before writing his article.

Joseph Millard has been a free lance author and writer for twenty-five years. He has penned and sold over one thousand stories to popular media. He has made a study of the Civil War period, and has accumulated a Civil War library containing many books, magazines and newspapers. At the time of his deposition he produced more than a hundred books from his library. Prior to writing the alleged infringing article he had written, and defendant had published, two earlier articles concerning the Civil War. The first was published by True in December, 1945, and was entitled "The Spy Who Saved the Union." The story concerned the exploits of one Felix Stidger, a counter-espionage agent who had exposed the dangerous Copperhead Society called "Knights of the Golden Circle." The second was published in the July, 1947 issue of True, and was called "The Devil's Errand Boy." This story concerned incidents in the life of Lafayette Baker who was head of the Secret Service during the Civil War, and who was a one-time intimate of Secretary of War, Edwin M. Stanton.

Plaintiff's book "Why Was Lincoln Murdered?" is a scholarly work, extensively documented and foot-noted. It is a hard-covered book of five hundred three pages divided into twenty-nine chapters. It concerns the assassination of Abraham Lincoln, and a subsequent history of the persons involved. The hypothesis of the work is that Secretary of War Stanton was implicated or at least had a guilty knowledge of the conspiracy. Twenty-two thousand copies of this work were sold.

Plaintiff's second book "In the Shadow of Lincoln's Death" is also a hard-covered book. It is four hundred fifteen pages in length and contains fourteen chapters. It is supplemented by extensive notations. One prominent reviewer described this book as a long foot-note to the earlier work "Why Was Lincoln Murdered?". Thirty-six hundred copies of this work were sold.

Defendant's article "America's Greatest Unsolved Murder" contains about twenty thousand words. It was the longest article and the main feature of the February, 1953 issue of True. The author originally entitled it "History's Maddest Murder Case." It contained no footnotes, bibliography or other documentation.

Neither defendant nor Millard ever asked or received permission to use material from plaintiff's books. Nowhere in the published article is Eisenschiml credited or referred to. The only such passage in the article as written by Millard was "Otto Eisenschiml, probably the world's leading authority on the mysteries of Lincoln's assassination, has in one curt sentence treated Stanton's diatribe to the respect which it deserves * * *." However, this passage was deleted from Millard's manuscript by defendant before publication in its magazine.

Two expert witnesses testified and, as so often happens, held diametrically opposed views. Dr. Donald Riddle is the head of the division of Social Sciences at the University of Illinois, Chicago Undergraduate Division at Navy Pier, and teaches American history. He has written books on Lincoln's Congressional career. He has done extensive work in studying and determining the textual history of the New Testament which included comparing the various Gospels' language to determine literary relationships. In Dr. Riddle's opinion, defendant's article is a literary copying of the Eisenschiml books here in question.

Dr. Ernest Samuels is a professor of English at Northwestern University. He has served as editorial adviser upon matters of style and scholarship for various publishers. He has written an historical biography "The Life of Henry Adams." One of his duties at the University has been to sit as a one-man court of review when students are accused of copying their English themes. He spent seventy-five to eighty hours analyzing the three works here under consideration. His opinion was that Millard's article was an independent literary creation.

Plaintiff insists Millard's article is a slavish imitation, paraphrase and copy of substantial portions of his two copyrighted books, and that defendant, through Millard, substantially appropriated his research. Eisenschiml claims that Millard's article contains substantially the same treatment of and language about Stanton, Lincoln, the Grants, John F. Parker, O'Beirne, Miss Harris and Major Rathbone, John Fletcher and Atzerodt as in the Eisenschiml books, and that said named persons are the principal characters in the Millard article as in the infringed portion of the Eisenschiml books. Plaintiff contends that Millard's article follows the same general outline or pattern as the plaintiff's two books, and that he treats the material therein in the same manner as does plaintiff.

Plaintiff insists Millard's article not only pirated the underlying theme of plaintiff's books, — the theme that Secretary of War Stanton may have been implicated in the assassination, that obstacles were deliberately placed in the way of Booth's capture, and that there are other unexplained mysteries — but the article treats the ideas, characters, scenes and events in the same way that plaintiff does. Plaintiff further states Millard's article so parallels and simulates plaintiff's two books that the article is actually a condensation of several chapters of Why with portions taken from Shadow plus some standard historical data.

Exhibit 7 received by the Master contained what plaintiff claimed were sixty-six parallels or quotes designed to show copying and paraphrasing by Millard of plaintiff's two books. The limitation of space will not permit more than a brief illustration of the quotes.

At page 56 of Why plaintiff wrote: "In his memoirs, Grant passed over this episode quickly and skillfully * * *." Millard, referring to the same matter, wrote "In his memoirs, Grant skillfully slid over the incident * * *."

At page 73 of Why, plaintiff wrote: "* * * L. A. Gobright, agent of the Associated Press at the Capitol * * was about to close his office * * * when he was informed of the tragedy. Rushing to the telegraph office, he sent a short special * * * he tore over to Ford's Theatre * * * and was fortunate enough to find Booth's derringer on the floor." Millard wrote: "One L. A. Gobright of the Associated Press was just closing his Washington Office when the terrible news came. Rushing out, he quickly wired his paper * * * From there, Gobright hurried to Ford's Theatre for more details. He was in the blood-spattered box when the man named Kent found the derringer on the floor."

In Why at page 120, plaintiff quoted from the O'Beirne diary. The O'Beirne papers were in plaintiff's exclusive possession. Millard quoted exactly the same passage. The comments following this quotation were as follows: Plaintiff said: "That close O'Beirne came to getting his man." Millard wrote: "That close O'Beirne came to making the capture then."

In Shadow, plaintiff wrote at page 55: "What can be the...