Belford, Clarke Co v. Scribner

• Decision Date: 11 April 1892
• Citation: 144 U.S. 488,12 S.Ct. 734,36 L.Ed. 514
• Parties: BELFORD, CLARKE & CO. et al. v. SCRIBNER
• Court: U.S. Supreme Court

144 U.S. 488

12 S.Ct. 734

36 L.Ed. 514

BELFORD, CLARKE & CO. et al. v. SCRIBNER.

April 11, 1892.

This is a suit in equity, brought on the 18th of January, 1884, in the circuit court of the United States for the northern district of Illinois, by Charles Scribner, a citizen of New York, against Belford, Clarke & Co., an Illinois corporation, and Michael A. Donohue and William P. Henneberry, citizens of Illinois.

The bill alleges that the plaintiff is a publisher and bookseller doing business under the name of Charles Scribner's Sons, in the city of New York; that from a time previous to April 1, 1871, and ever since then, one M. Virginia Terhune, the wife of Edard P. Terhune, a citizen of Massachusetts, has been and now is an authoress, who has written and published various works under the name of 'Marion Harland;' that about April 1, 1871, she, being then and ever since a citizen of the United States, became the authoress and compiler of a work or manuscript entitled 'Common Sense in the Household; A Manual of Practical Housewifery. By Marion Harland;' that said work was made up and composed of receipts for cooking foods and fruits, preserving meats, vegetables, and fruits, and preparing drinks, and many other receipts for the sick-room and nursery, and contained much other instructive and valuable matter and information for household and faimily purposes; that all such receipts, information, instruction, and material were selected and arranged with great care and labor, and embodied and written in the style, words, and language of said lady, and she was the original inventor and author of most of the written matter contained in said work, and with great labor and care had selected and compiled to remainder thereof, and was the original compiler and author of all of said work and of the arrangement of the topics and index thereof; that prior to the publication of said work, and on or about April 1, 1871, Charles Scribner, since deceased, and three other persons, named Armstrong, Seymour, and Peabody, all being citizens of the United States, and publishers and booksellers residing and doing business in the city of New York under the firm name of Charles Scribner & Co., by an agreement with the said lady, undertook and became interested in, and assumed the risk and responsibility of, the publication of said work; that such agreement was duly entered into in the city of New York, and was to be performed in the state of New York by the parties thereto, and by the laws of that state the said lady, being a married woman, was authorized and empowered to enter into and execute the said contract in the same manner and to the same extent as if she had been a fame sole; that thereafter, and prior to the publication of the work, and in or about May, 1871, the said copartners, under the firm name of Charles Scribner & Co., secured, according to the laws of the United States, a copyright of said work, as proprietors thereof; that thereafter said firm printed, published, and sold the work under the aforesaid name, at reasonable prices, until the death of said Charles Scribner and the formation of the firm of Scribner, Armstrong & Co., and the transfer of all their interests in the said copyright and agreement with said lady to the latter firm; that on or about February 10, 1872, John Blair Scribner, a son of Charles Scribner, deceased, and the said Armstrong and Seymour, all being citizens of the United States and residing in New York, and publishers and booksellers doing business in the city of New York under the firm name of Scribner, Armstrong & Co., succeeded to the business, and became the owners of the property, good-will, and trade, of the firm of Charles Scribner & Co., including the said copyright and the agreement between said firm and the said lady, and by virtue thereof became interested in, and assumed the risk and responsibility of, the publication and sale of said work, and continued to supply the public with copies of the same, at reasonable prices, until the dissolution of the firm, in 1878, and the formation of the firm of Charles Scribner's Sons, and the transfer to the latter firm of all interest in said copyright and agreement; that on or about June 11, 1878, John Blair Scribner and the plaintiff, sons of said Charles Scribner, deceased, citizens of the United States, and publishers and booksellers doing business in the city of New York under the firm name of Charles Scribner's Sons, succeeded to and became the owners of the property, business, good-will, and trade of the firm of Scribner, Armstrong & Co., including the said copyright and the agreement with said lady, and by virtue thereof became interested in, and assumed the risk and responsibility of, the publication and sale of the said work, and continued to supply the public with copies of the same at reasonable prices, until the death of John Blair Scribner, in 1879, and the transfer to the plaintiff of all the property, business, good-will, and trade of the firm, including said copyright and agreement; that on the death of John Blair Scribner, in 1879, the plaintiff, under the firm name of Charles Scribner's Sons, succeeded to, and became the owner of, the property, business, good-will, and trade of the firm, including said copyright and agreement, and assumed the risk and responsibility of the publication and sale of said work, and continued to supply the public with copies of the same, at reasonable prices, until the publication and sale, hereinafter mentioned, of the new and revised edition of said work, were made; that, under the statutes of the state of New York the plaintiff, upon the death of John Blair Scribner, was entitled to the continued use of the copartnership name of Charles Scribner's Sons, and has carried on the business under that firm name; that by reason of the publication of nearly 100,000 volumes of said work the stereotype plates had become worn, and the impressions therefrom sometimes faint and illegible; that the authoress, in or about 1880, prepared a revised edition of her work, making many corrections and additions; that prior to the taking out of a copyright therefor, and on or about September 8, 1880, the plaintiff, by an agreement with said authoress, became interested in, and assument the risk and responsibility of the assumed the risk and responsibility of the work; and that on or about September 18, 1880, under the firm name of Charies Scribner's Sons, he secured, according to law, a copyright of said new work, as proprietor thereof, under the same title, and published said new work, and supplied the public with copies of the same, at reasonable prices.

The bill then alleges that the defendants Belford, Clarke & Co., printers, publishers, and booksellers doing business at Chicago, Ill., and the defendants Donohue & Henneberry, printers and bookbinders doing business at said Chicago under the firm name of Donohue & Henneberry, well knowing the plaintiff's rights, and intending to infringe said copyrights, at Chicago and else where, without the allowance and consent of the plaintiff, published and sold a work in one volume, issued by them under various titles and with different titlepages, and purporting to be edited by different persons, and to be written and compiled by different authors, (the body of said work, and all the matter contained therein, excepting the title-pages and matters relating thereto, being the same,) said work, consisting of 351 pages, being a compilation of receipts for cooking, treating of the same subjects, and covering the same topics, and adapted and intended for the same portion of the public, as the plaintiff's said book, and being a copy from, and an infringement and piracy of, the plaintiff's said work; that more than 170 receipts contained in said piratical work were copied verbatim et literatim from the said copyrighted work of the plaintiff, said receipts comprising a part or the whole of over 150 pages of said piratical work; that many other parts of that work, besides said 170 receipts, are infringements upon the copyrights of the plaintiff, and many of the remaining receipts are in fact copied from the plaintiff's book, with certain changes in the phraseology thereof; and that the subjects in the piratical work, and the index thereto, are arranged in the same order, and with almost the same headings, as in the plaintiff's work, and were copied and imitated therefrom. The bill then sets forth the particulars of the piratical work, and of the various title-pages and covers thereof.

The bill prays for an injunction to restrain the defendants from printing, publishing, binding, selling, or exposing for sale, any copies of said piratical work, and for an account and payment of the profits of sales of it.

The defendants were duly served with process, and appeared; and, the plaintiff moving for a preliminary injunction, the court, on January 21, 1884, entered an order, on notice, referring the bill, affidavits, and other proofs to a master in chancery, to examine and report whether the bill and affidavits made a case entitling the plaintiff to an injunction, and meantime issuing a restraining order against the defendants, and ordering them to keep an account of all books sold by them at retail.

The master, after hearing the parties, made the following report on February 27, 1884: 'Upon hearing the arguments of counsel, and an examination of the testimony and exhibits submitted to me upon this reference, I find and report that the defendants have violated the rights of the complainant in printing, publishing, and selling all of the certain books described in said bill of complaint as having been published by the defendants; that said works, though purporting to be edited and compiled by different persons, whose names appear therein,—in one instance the title being partially changed, and in others entirely so,—are largely compilations of the recipes of the complainant; and...