Colonial Book Co. v. Oxford Book Co.

• Decision Date: 22 April 1942
• Citation: 45 F. Supp. 551
• Parties: COLONIAL BOOK CO., Inc., v. OXFORD BOOK CO., Inc.
• Court: U.S. District Court — Southern District of New York

45 F. Supp. 551

COLONIAL BOOK CO., Inc., v. OXFORD BOOK CO., Inc.

District Court, S. D. New York.

April 22, 1942.

Morris Kirschstein, of New York City, for plaintiff.

Gray & Grossman, of New York City (Herman A. Gray and Max Grossman, both of New York City, of counsel), for defendant.

LEIBELL, District Judge.

Plaintiff charges that the defendant has infringed plaintiff's statutory copyright of a book entitled "Mastery Units in Chemistry" (copyrighted August 20, 1936) by publishing a book entitled "Visualized Chemistry" (copyrighted January, 1938). Plaintiff seeks an injunction, damages and an accounting of profits. Defendant denies infringement and pleads as special defenses laches and the fact that plaintiff does not come into this court of equity with clean hands.

There is no claim that any of the text of plaintiff's book was copied by the defendant. The alleged infringement is based upon two claims — (1) that the defendant followed the "general scheme and sequence and arrangement of subject matter and method of presentation" of plaintiff's book and (2) that defendant copied certain diagrams or illustrations showing the apparatus used in the laboratory experiment together with the chemical substance used and the equation of the chemical reaction, the latter set forth in a legend immediately below the apparatus.

I have made findings of fact and conclusions of law pursuant to Rule 52, Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, which are being filed together with this opinion. Matton Oil Transfer Corp. v. The Tug Dynamic, 2 Cir., 123 F.2d 999. The defendant has not infringed.

I have found that the general scheme and sequence and arrangement of the subject matter was planned and devised by Dr. Lemkin, the author of defendant's book, prior to the publication of plaintiff's book and that this idea as to the arrangement of various chapters on chemistry was used by one A. Victor Gentilini, who was an editor in the employ of the defendant and at the same time was secretly a stockholder, director and editor for a company of his own (the first Colonial Book Company, Inc.) engaged in the preparation of plaintiff's book. I have also found that the idea of representing the chemical equation of reaction on a strip below the illustration of the laboratory apparatus and the chemical substance used in the laboratory experiment was not original with plaintiff.

The arrangement of the subject matter, the sequence of chapters, as submitted by plaintiff's authors, Messrs. Roberts and Smith, was the usual standardized arrangement found in many earlier text books on chemistry. So were their diagrams. Mr. Gentilini suggested an improvement of the diagrams so that the drawings would represent the pedagogical concepts insofar as it was possible. He got this idea from his conferences with Dr. Lemkin, the defendant's author, an experienced instructor in chemistry. The same is true of the arrangement of the chapters of plaintiff's book. Mr. Gentilini was in the employ of defendant at the time. In fact Mr. Gentilini continued in the employ of the defendant until a few weeks before the publication of plaintiff's book.

Mr. Gentilini's corporation, of which he was a stockholder and director, met with financial reverses in 1939. On June 1st, 1939, he obtained a position with the College Entrance Book Co., Inc., owned by Mr. Theodore Cohen. At the time he told Mr. Cohen what his prior connections with the defendant had been. On August 24, 1939, the assets of the first Colonial Book Co., Inc., were sold to its principal creditor, the Colonial Press. On August 31, 1939, Mr. Cohen acquired these assets from the Press Company. In October, 1939, Mr. Cohen conveyed these assets, including the copyright of "Mastery Units in Chemistry" to the plaintiff which he organized for that purpose. Mr. Gentilini's corporation of the same name was dissolved shortly before that. I have found that Mr. Cohen knew that Mr. Gentilini had been working on the book now...