Chapman v. Ferry

• Decision Date: 03 December 1883
• Citation: 18 F. 539
• Parties: CHAPMAN v. FERRY and another.
• Court: U.S. District Court — District of Oregon

18 F. 539

CHAPMAN v. FERRY and another.

United States Circuit Court, D. Oregon.

December 3, 1883

H. Y Thompson, for plaintiff.

Frederick V. Holman, for defendants.

DEADY J.

This suit is brought against the defendants to obtain an injunction and an account, because of an alleged infringement by them of the plaintiff's copyright of a 'Map of the Cities of Portland, East Portland, and the Town of Albina,' obtained by him in 1874. The suit was commenced on May 13, 1881. A demurrer to the original bill was sustained, on the ground that the title of the map could not be copyrighted, and because it did not appear that the plaintiff had performed the several acts necessary to obtain a copyright. Parkinson v. Laselle, 3 Sawy. 330. On March 18, 1882, an amended bill was filed, to which a demurrer was sustained, so far as it prayed for a discovery of the number of copies of the defendants' map that had been disposed of and were still on hand, and for a surrender of the latter and the plates on which they were printed. 8 Sawy. 191; (S.C. 12 F. 693.)

It appears from the amended bill that at and before the commencement of this suit the plaintiff was the author and proprietor of a map of the cities and towns aforesaid entitled as aforesaid, drawn upon a scale of about 800 feet to the inch, for which he duly obtained a copyright in the year 1874; that on May 10, 1881, the defendants published 500 copies of a certain map with the same title as the plaintiff's, and then and thereafter sold 300 copies of the same at five dollars a copy; and that in the preparation of said map the defendants copied the map of the plaintiff without alteration, except to enlarge the scale to 500 feet to the inch, and change the colors of the lines of the land claims upon which these towns are located, and thereby wrongfully appropriated the skill and labor of the plaintiff. On September 15, 1882, the defendants answered so much of the amended bill as was not included in the demurrer thereto, by which they deny any knowledge or information as to the plaintiff's alleged copyright, and admit the publication and sale of a map by them, as stated in the bill but allege that their map includes many additions, improvements, and changes, not in the plaintiff's, and deny that in the preparation of their map they copied the whole of the plaintiff's map, but admit that they made use of said map for comparison, and, in small part, for compiling their map, and allege that by reason of the imperfections in the same, and the changes and additions to the towns aforesaid since the publication thereof, and prior to the publication of the defendants, the former had 'become of little value and unsalable.'

It satisfactorily appears that the plaintiff duly complied with the law in obtaining his copyright. The plaintiff testifies that he filed a tracing of the printed title of his map with the librarian of congress, but it is contended that this is not a 'printed' copy of such title as is required by section 4956 of the Revised Statutes. The 'copy' of such title furnished the plaintiff by said librarian in pursuance of section 4957 of the Revised Statutes, does not indicate what was the character, in this respect, of the title deposited with him. It is described in the certificate of the librarian simply as 'the title of a map.' A tracing is a mechanical copy or fac simile of an original, produced by following its lines, with a pen or pencil, through a transparent medium, called tracing paper. The map, together with the title in Roman letters, was engraved on stone and then printed, and a copy of this printed title, thus made, was filed with the librarian. This, I think, was a substantial compliance with the statute. A 'printed' copy can only be required for convenience of reading as compared with ordinary script or writing. But a copy of the title which has the form and appearance of a printed one, whether made by an impression upon type or with a pen, with or without the aid of tracing paper, is so far a printed copy. The result and not the means by which the printing is accomplished, is the thing to be considered. As legible a copy of the title may be printed or produced with a pen as with type.

The defendants also object that it does not appear from the evidence that the plaintiff deposited two copies of his map in the mail, addressed to the librarian, within 10 days after its publication, as provided in section 4959 of the Revised Statutes; but, as they contend, it appears such copies were deposited in the mail some time after the map was printed, but before it was published or offered for sale. It appears that the copies of the map were deposited in the library of congress on January 23d-- just one month after the copy of the title was. At that time the mail from here to Washington was from 12 to 14 days in transit, so that it is quite certain that the copies were mailed here near about January 10, 1874. The map was then printed, of course, but how long before is not clear or material. Probably it had not then been formally published or offered for sale to the public. The plaintiff says in his testimony: 'I sent him (the maps) on before I offered any copies for sale.'

The objection then comes to this, that it is not sufficient to mail the copies after printing...