College Entrance Book Co. v. Amsco Book Co.

• Decision Date: 19 May 1941
• Docket Number: No. 221.,221.
• Citation: 119 F.2d 874
• Parties: COLLEGE ENTRANCE BOOK CO., Inc., v. AMSCO BOOK CO., Inc.
• Court: U.S. Court of Appeals — Second Circuit

119 F.2d 874 (1941)

COLLEGE ENTRANCE BOOK CO., Inc., v. AMSCO BOOK CO., Inc.

No. 221.

Circuit Court of Appeals, Second Circuit.

May 19, 1941.

Harry Weinberger, of New York City (Harold M. Weinberger, of New York City, on the brief), for plaintiff-appellant.

Philip Wittenberg, of New York City, for defendant-appellee.

Before SWAN, CHASE, and CLARK, Circuit Judges.

CLARK, Circuit Judge.

Plaintiff is the publisher and copyrighter of two paper-bound booklets, "High Points French Two Years" and "High Points French Three Years," compiled especially to facilitate review by New York high school students of their two or three years of French study in preparation for examinations given by the New York Board of Regents. The books are also sold generally for the use of students in preparation for college entrance board examinations. They are of 127 and 160 pages respectively, and include lessons and exercises in grammar and composition, sample copies of previous Regents' examinations, and lists of commonly used French words, with appropriate articles and English translations. Plaintiff hired for the work of compilation and arrangement two New York high school French teachers, who chose 1,590 French words for the two-year list from the Regents' syllabus of 1,623 elementary French words, and 775 for the three-year list from the Regents' syllabus of 778 more advanced words. They then supplied articles and translations from their own knowledge and from reference works.

Shortly after the publication of these books, defendant prepared for publication "French Two Years" and "French Three Years," books similarly designed and to be sold to the same trade at a price much lower than that of plaintiff's books. These, too, in addition to other material, contained word lists, compiled by Mr. Albert Beller, defendant's president. The lists in plaintiff's and defendant's books are so closely similar, according to plaintiff's contention, as to pass the bounds of coincidence and to show copying by Beller of plaintiff's lists, comprising French words, articles, and translations.

Beller admits that he owned copies of plaintiff's books at the time he arranged his own, and that he used them to some extent. He claims, however, that he relied on the Regents' syllabi for his choice of French words; on a Heath's and a Longman-Green's French-English dictionary for French articles; and on a list of English translations supplied by a French teacher, a Mr. Louis Goodman, and on the two dictionaries for translations. The similarities, he says, are only to be expected in the compilation of such stereotyped matter. The district court agreed, and dismissed the complaint. D.C.S.D.N.Y., 33 F.Supp. 276.

We think, however, that Beller's lists themselves are unimpeachable evidence that Beller made them up from the lists in plaintiff's books. Even his choice of French words bears such evidence, although he obviously referred to the syllabi for this purpose, and partly relied on them, using about the same number — 1,623 in the two-year list, and 778 in the three-year list — and almost the identical words there found. But the fact that 7 French words of extremely common use, included in the syllabi, but inadvertently omitted from plaintiff's lists, were also omitted from Beller's first edition is hardly explicable except on the supposition that Beller resorted directly to plaintiff's list, and thereafter added syllabi words whose omission he happened to notice.

Beller's choice of articles offers much stronger evidence of copying, for here he was helped by neither Goodman's work nor the syllabi. Of course, the dictionaries would show whether or not a word may be used as a noun, and if so, which gender it bears; but that is at most only a beginning. Thus, many French words may be properly used either as nouns or as other parts of speech. Of at least 9 such words in the three-year books — translated by Goodman by an English word equally ambiguous — 2 were treated in both plaintiff's and defendant's books as nouns by prefixing the article, while the other 7 were treated in both as adjectives by omitting the article. Likewise, 39 such words in the two-year list were accorded identical treatment by plaintiff's compilers and by Beller, a certain 9 of them as nouns, the rest as adjectives or adverbs.

Again, if a word is to be used as a noun, and its gender is known, it is still necessary to choose between the definite and the indefinite article. A fairly common practice in works of this kind is to use the definite article before all words beginning with a consonant, and the indefinite article before those beginning with a vowel or an aspirate "h." But in several instances, plaintiff's lists show an inadvertent departure from this rule; and in every such instance the departure was reproduced in defendant's lists. Both use the indefinite article before the first four nouns beginning with "B." In both, "le," instead of "l'," or the indefinite article, is erroneously used before "homage." In both, the article is entirely omitted before "arriere," translated as "back." In both, "le" is erroneously used, instead of "les," before "frais," translated as "expense"; and in both, there was a failure to indicate, either by an article or by express reference, the gender of the same four words: "midi," "les vacances," "minuit," "les guillemets."

In the case of many abstract nouns, however, such as "l'argent," translated as "money"...