Scribner v. Clark

• Citation: 50 F. 473
• Parties: SCRIBNER v. CLARK et al.
• Decision Date: 09 April 1888
• Court: U.S. District Court — Northern District of Illinois

50 F. 473

SCRIBNER v. CLARK et al.

United States Circuit Court, N.D. Illinois.

April 9, 1888

W. C Larned, for complainant.

Hutchinson & Partridge, for defendants.

BLODGETT 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 other under the title of 'Economy Cookbook,' have infringed upon the complainant's copyright by incorporating into their said publication something over 50 pages of the matter of complainant's book, as well as substantially following the arrangement of subjects and headings. Myers v Callaghan, 10 Biss. 139, 5 F. 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 not before me on defendants' exceptions to the master's findings, and on complainant's motion for a decree in pursuance of the master's report. It was objected at the hearing that the complainant could not recover 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 husband is entitled to the benefits of her literary work, as well as any other proceeds of her industry during coverture. I do not think this point can avail the defendants, because the proof shows that the first edition of the work was copyrighted in the name of 'Charles Scribner & Co., Proprietors;' and the second edition, which is the one now in controversy, was copyrighted in the name of 'Charles Scribner's Sons, Proprietors;' and, as the proof shows that Mrs. Terhune settled from time to time with the owners of the copyright for her royalties, the court will presume that her legal title as the author of these books was in some due and proper manner conveyed to and vested in the persons who secured the copyright thereof. Acquiescence for so many years by all the parties in this claim of proprietorship in the copyright is, it seems to me, enough to answer this suggestion of Mr. Terhune's possible marital interest in his wife's earnings. It is certain that, if there is any ownership in this work by copyright at all, it is in the complainant, in whose name the copyright was taken and now stands, so far as is shown by the proof in this case. If the law of the domicile of Mrs. Terhune entitles her husband to any part of her earnings, that is a matter to be settled between her husband and the complainant, and which the defendants cannot interpose as a defense to a trespass upon the complainant's property rights in this copyrighted book.

It is further objected by the defendants that the complainant's title is not sufficiently made out to justify him in maintaining this suit, but this objection I do not think is sustained. The proof shows that the first edition was copyrighted in the name of 'Charles Scribner & Co.,' a firm of book publishers at that time well known in the United States. This firm was dissolved shortly after the first copyright was obtained by the death of Mr. Charles Scribner, the senior member, and the business assumed and carried on by 'Scribner, Armstrong & Co.' as successors to all the trade, business, and good will of Charles Scribner & Co., who continued the publication of this book, with other business, without question or interference. About 1878 this firm was dissolved, and was succeeded by the firm of 'Charles Scribner's Sons,' consisting of Charles Scribner, the present complainant, and John Blair Scribner, who succeeded to...