Callaghan v. Myers

• Decision Date: 17 December 1888
• Citation: 9 S.Ct. 177,32 L.Ed. 547,128 U.S. 617
• Parties: CALLAGHAN et al. v. MYERS. 1
• Court: U.S. Supreme Court

128 U.S. 617

9 S.Ct. 177

32 L.Ed. 547

CALLAGHAN et al.v.MYERS.¹

December 17, 1888.

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[Syllabus from pages 617-619 intentionally omitted] This is a suit in equity, brought in the circuit court of the United States for the Northern district of Illinois, on the 17th of December, 1877, by Eugene B. Myers against Bernard Callaghan, Andrew Callaghan, Andrew P. Callaghan, and Sheldon A. Clark, composing the firm of Callaghan & Co., Marshall D. Ewell, and Van Buren Denslow.The bill sets forth that the firm of E. B. Myers & Chandler, composed of the plaintiff and Horace P. Chandler, became the proprietors of volumes 32 to 38, both inclusive, of the reports of the supreme court of the state of Illinois, known as 'Illinois Reports,' prepared by Norman L. Freeman; that, as such proprietors, said firm, desiring to secure a copyright for the several volumes, under the statutes of the United States, deposited in the office of the clerk of the district court of the United States for the Northern district of Illinois, before publication, a printed copy of the title of the several volumes; and that they afterwards, and within three months of the publication of the volume, deposited in said office a copy of the work.The dates of the deposit of the titles of the several volumes were as follows: Volume 32, August 12, 1865; 33, April 21, 1866; 34, October 23, 1866; 35, January 28, 1867; 36, October 11, 1867; 37, December 31, 1866; 38, August 22, 1867.The alleged dates of the deposit in said office of a copy of the several volumes were as follows: Volume 32, January 17, 1866; 33, June 8, 1866; 34, October volumes were as follows: Volume 32, January 17, 1866; 33, June 8, 1866; 34, October 23, 1866; 35, March 5, 1867; 36, November 13, 1867; 37, January 28, 1867; 38, October 10, 1867.The bill also alleges that the plaintiff became the proprietor of volumes 39 to 46, both inclusive, of the reports of the supreme court of the state of Illinois, known as 'Illinois Reports,' prepared by Norman L. Freeman; that, as such proprietor, he, desiring to secure a copyright for the several vlumes under the statutes of the United States, deposited in the office of the clerk of the district court of the United States for the Northern district of Illinois, before publication, a printed copy of the title of the several volumes; and that he afterwards, and within three months of the publication of the volume, deposited in said office a copy of the work.The dates of the deposit of the titles of the several volumes were as follows: Volume 39, June 10, 1868; 40, September 18, 1868; 41, December 22, 1868; 42, May 21, 1869; 43, June 21, 1869; 44, September 27, 1869; 45, October 6, 1869; 46, October 14, 1869.The alleged dates of the deposit in said office of a copy of the several volumes were as follows: Volume 39, June 12, 1868; 40, November 6, 1868; 41, January 29, 1869; 42, July 7, 1869; 43, July 7, 1869; 44, October 2, 1869; 45, December 8, 1869; 46, December 8, 1869.

The bill further alleges that all the volumes were prepared by Mr. Freeman, and each contained a large amount of matter original with him, and a great number of the decisions and opinions of the supreme court of Illinois; that, among other original matter, Mr. Freeman prepared for each case a syllabus or head-notes, and for many cases in each volume a statement of the facts of the case; that, also, in many of them he copied, or copied and arranged, the instructions ruled upon by the court below; that he also prepared and inserted, or gave in all or many of them, the stipulations made, or made and filed, therein, and in many of them he gave the errors assigned; that he also prepared, for each of them, a table of the cases cited therein, and a table of the casese decided, and other original matter, and so arranged said decisions and the matter therein contained, or the matter in connection with the decisions, as to make each of the books, or each of the books and the matter therein contained, convenient and valuable to the persons using the decisions; that, in respect of volumes 32 to 38, the firm of E. B. Myers & Chandler, and in respect of volumes 39 to 46, the plaintiff, purchased from Mr. Freeman all his proprietary rights in the volumes, and paid him a large consideration therefor, and for his labor and care in preparing them, and used the labor and matter of Mr. Freeman in publishing the books; that, by the agreembents with Mr. Freeman, the laintiff and his partner were to have the copyright of volumes 32 to 38, and the plaintiff the copyright of volumes 39 to 46; that in respect of volumes 32 to 38, the said firm, and in respect of volumes 39 to 46, the plaintiff, divided the decisions and the matter accompanying them into volumes, and divided and arranged each of the volumes into pages; that the firm published over 1,500 copies of each of the volumes 32 to 38, and the plaintiff over 1,500 of each of the volumes 39 to 46; that, on the 13th of June, 1868, said Chandler sold and assigned to the plaintiff, by a written assignment, all his interest in and to volumes 32 to 38, and the copyrights thereof; and that the plaintiff still has the exclusive right to volumes 32 to 46.

The bill further alleges that about July, 1877, the plaintiff reprinted volumes 37 and 38, and, as he made some changes in the arrangement of their pages, he did, before publication, deposit in the office of the librarian of congress a copy of the printed title of each volume, on the 20th of July, 1887; that afterwards, on the 28th of July, 1877, and within one month of the publication thereof, he deposited in said office two copies of each of the volumes as reprinted.The bill also alleges, as to all of the volumes, that the plaintiff had the exclusive right to the arrangement of each of them, and the exclusive right to publish the head-notes, or syllabuses, and to the arrangement of the pages of the books, and to the division of the opinions into separate volumes, and to the table of cases cited and table of cases decided, as published in each of them, and to the arrangement of the decisions, as accompanied with the head-notes, stipulations, errors assigned, instructions, table of cases cited, table of cases reported, and indexes accompanying the same, and the exclusive right to all of said works, except to the matter contained in the opinions of the judges; that the defendants had full knowledge of the exclusive rights of the plaintiff, and attempted to buy them from him, but refused to pay the price charged by him, and thereupon proceeded to reprint and publish volumes 32 to 38, and, in doing so, used the decisions of the supreme court of Illinois only as published by the plaintiff, and prepared the volumes from the books of the plaintiff, and did not procure the matter from original sources, and in all of the books used the works of the plaintiff, and copied the titlepages thereof, and used the division and arrangement of the plaintiff in the volumes, and the paging thereof, and copied the table of cases cited an the table of cases reported from each of the books of the plaintiff, and also copied from the same the stipulations, errors assigned, and instructions given by the court; that, in publishing the statements of the cases, and in preparing the syllabuses, the defendants used the books of the plaintiff, and the changes they made were merely colorable, and were made only for the purpose of avoiding the claim of the plaintiff; that the books, as printed and published by the defendants, were all and each merely imitations of the volumes of the plaintiff, corresponding in number; that all and each of said republications by the defendants are piracies on the copyrights of the plaintiff, and the books have been made by them to take the place of, and, as far as they can, to supersede the books of the plaintiff; that the defedants are selling them to the persons who would otherwise buy the books of the plaintiff, to his great damage and loss; that the defendants threaten to republish volumes 39 to 46; and that the aggregate value of the copyrights of the plaintiff is not less than $20,000, and his damage is not less than that sum.

The bill waives an answer on oath, and prays for an injunction perpetually enjoining the defendants from publishing or selling, or offering for sale, any of the books, and for a decree that all of them so published by the defendants are forfeited to the plaintiff, and that they be delivered to him, and for an account of all published and sold, and for a decree for damages.

The members of the firm of Callaghan & Co. put in an answer to the bill.It sets up that a printed copy of volume 32 was not deposited until more than three months after publication.It avers that but a small amount of original matter was prepared by Mr. Freeman for any of the volumes 32 to 46, and that but few statements of cases were prepared by him, and those few were drawn by him from the opinions of the court in the cases reported.It denies that he prepared any tables of cases cited for any of those volumes, and denies that he so arranged the decisions and matter contained in the volumes as to make the volumes convenient and of value to the persons using them.It avers that all matters contained in the volumes are public and common property, forming part of the law of the state of Illinois, and as such not susceptible of copyright, or in any manner literary property, in which a private citizen can have a monoply under the act of congress regulating the subject of copyright; that whatever labor, literary or otherwise, was done upon the volumes by Mr. Freeman, was done in his official capacity as reporter of the decisions of the supreme court of Illinois, a public office then existing under and by virtue of the laws of that state, and to which Mr. Freeman had been duly appointed; and that all labor, literary or otherwise, by Mr. Freeman, in his capacity as official reporter, upon the volumes,...