County of Ventura v. Blackburn

• Decision Date: 14 June 1966
• Docket Number: No. 20275.,20275.
• Citation: 362 F.2d 515
• Parties: COUNTY OF VENTURA, Appellant, v. O. V. BLACKBURN, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

362 F.2d 515 (1966)

COUNTY OF VENTURA, Appellant, v. O. V. BLACKBURN, Appellee.

No. 20275.

United States Court of Appeals Ninth Circuit.

June 14, 1966.

Woodruff J. Deem, Dist. Atty., Herbert L. Ashby, Asst. Dist. Atty., Karl H. Bertelsen, Deputy Dist. Atty., Ventura, Cal., for appellant.

George R. Maury, Los Angeles, Cal., for appellee.

Before CHAMBERS and JERTBERG, Circuit Judges, and THOMPSON, District Judge.

JERTBERG, Circuit Judge.

Before us is an action for damages for infringement of copyright in a map, and for an injunction under 17 U.S.C. § 101. Jurisdiction is vested in the District Court under 17 U.S.C. § 101 and 28 U.S.C. § 1338.

Plaintiff below, appellee in this court, is the proprietor of a certain map of Ventura County, California, entitled "Blackburn's Map of Ventura County, copyrighted, compiled and published by O. V. Blackburn."

Defendant below, appellant in this court, is a political subdivision of the State of California.

Trial of said action was to the court. The District Court held that plaintiff Blackburn had a copyright in the map under the laws of the United States, and that the defendant, County, had infringed that copyright by failing to affix a notice of Blackburn's copyright to copies of the map reproduced by the County under an agreement with Blackburn. Injunctive relief was denied and damages were awarded against the County and in favor of Blackburn in the amount of $13,100.00. During the trial, in open court, Blackburn waived any and all claims for damages resulting from any profit which may have been made by the County in the sale of said maps. The District Court further held the case was not a proper one for the award of attorney's fees to either party.

A summary of the salient facts, taken from the admitted facts appearing in the pretrial conference order, the findings of fact made and entered by the District Court, and the reporter's transcript, may be stated as follows:

Before July of 1956, plaintiff spent time and effort to compile, collate, assemble, draft and prepare the information depicted on Blackburn's Map of Ventura County, at a cost of $7,500.00. Road and street data was taken from the government maps and other sources. Identification of owners and land parcels were taken from the Ventura County Assessor's records, errors appearing in said records were corrected in the map. Rivers, canyons, creeks, drainage channels and other physical data were taken from aerial photographs, United States topographical maps, and other sources. The various legal descriptions of boundaries of cities, etc., were checked against the records of the County of Ventura. All of the information depicted on the map is available to the public from the County terrain, public records, maps and documents. Blackburn did the work of assembling, preparing, collating and compiling all of the information in creating the map.

On May 1, 1954, Blackburn published copies of the map with copyright notices affixed and thereby claimed protection of the Copyright Act.

On July 17, 1956, Blackburn and the County entered into a written agreement, a copy of which is set forth as an Appendix to this opinion. The contract was drafted by counsel for the County. It was stipulated in the pretrial order and found by the court to be a valid, legal and binding contract between the parties, and is the only and entire agreement between the parties.

The essence of the agreement may be stated as follows:

The recitals set forth that Blackburn is the proprietor of the map entitled "Blackburn's Map of Ventura County, copyrighted, compiled and published by O. V. Blackburn"; that the County desired to obtain a duplicate tracing of said map together with the right to produce said map for use by the County Surveyor and for sale to the public; Blackburn granted and sold to the County: (1) "the right to obtain duplicate tracings on linen from the photographic negatives of Blackburn's Map of Ventura County" at its own expense, which tracings would be the property of the County; (2) "the right to reproduce from said duplicate tracings any and all maps necessary for County use"; and (3) "the right to sell prints of said duplicate tracings to the public at such prices as may be determined by County."

County agreed to pay as full consideration for the rights granted and sold the sum of $1,900.00, which amount was paid. The contract specifically provided that nothing therein contained shall be deemed or construed to restrict the right of Blackburn to sell reproductions of the map to the public in Ventura County or elsewhere.

Each and all the map negatives of Blackburn's Map of Ventura County, which were furnished to the County under the agreement, contained statutory notices of copyright. The linen tracings of the negatives of the map were prepared for and at the expense of the County, and did not contain copyright notices. Maps sold by the County up to June, 1964, were made from these tracings and such maps so sold did not contain copyright notices.

About June 7, 1963, Blackburn notified the County that all maps sold by it should carry a notice of Blackburn's copyright. In June of 1964 the County affixed copyright notices reading: "Copyright 1954. O.V.Blackburn" to the Cronaflex sheets of the map from which copies were reproduced and printed, and devised means by which it ensured that every portion reproduced in the future will contain a copyright notice.

The County has corrected errors, added to, updated, and kept current the information depicted on the master copies of the map in the County's possession since July 17, 1956. There have been changes made in the County's master copies indicating property ownership, the location of roads, streets, drains and other improvements, and subdivisions in the area of the County of Ventura covered by the map from 1954 to 1964. Copies of the map sold by Blackburn have not been updated since 1956. County sold copies of the map for $15.00 and Blackburn sold them for $70.00. The County sales during the statutory period from October 1961 through June 1964, totalled $3,888.00.

The court found that the reasonable market value of the copyright on July 17, 1956 was the sum of $15,000.00, and that the damage suffered by the plaintiff due to the infringement by defendant was the value of said copyright as of July 17, 1956 less the said sum of $1,900.00 paid by the County to Blackburn in consideration for rights sold and granted under the agreement.

As conclusions of law the court concluded:

"I

"That the map compiled and created by the plaintiff, which is the subject of this action, did and does contain sufficient original and creative work to be copyrightable under the laws of the United States and that the copyright of the Plaintiff is a valid and subsisting copyright and has been since 1954, the date of the first publication of said maps.

"II

"That the contract involved herein is interpreted by the Court to be a license to publish a copyrighted work and that the meaning and legal effect of these words in the contract: Plaintiff is `the owner and proprietor of a certain map of Ventura County, California, titled "Blackburn\'s Map of Ventura County, copyrighted, compiled and published by O. V. Blackburn,"\' is that the map which has been introduced into evidence herein as Plaintiff\'s Exhibits 2A, B, C, D, E, F, G and H, is the subject matter of the contract; that said contract contains implied covenants on the part of the Defendant not to use the portion of the copyright estate not granted to it by said contract to the detriment or to the destruction of the copyright estate, and that a positive duty exists on the part of the Defendant under said contract and under Section 10 of the Copyright Act to affix a notice of Blackburn\'s copyright upon and to each copy of the map reproduced by the Defendant, each copy used by the Defendant and each copy sold by the Defendant.

"III

"That the contract implicitly requires the Defendant to exercise good faith in the performance thereof and to do nothing whatsoever that would injure or destroy the value of the copyright to the Plaintiff and that the Plaintiff, reciprocally has the same duty to the Defendant with respect to the subject matter of said contract.

"IV

"That each party is bound by an implied covenant within said contract to put the required statutory copyright notice on each and every copy of the map by either party reproduced, published, sold or used, as required by the Copyright Act.

"V

"That the breach of the implied covenants to affix copyright notices constitutes an infringement of the copyright and has constituted such an infringement as to make the Defendant liable for damages.

"VI

"That the Plaintiff has not forfeited his copyright to the public domain or otherwise by authorizing the Defendant to reproduce and sell copies of the map without exacting a promise from the Defendant to affix notices of the Plaintiff\'s copyright to each copy of the map reproduced by Defendant under the contract of July 17, 1956.

"VII

"That lack of intent to infringe does not excuse legal liability for omitting the copyright notice from maps reproduced, copied, published and sold by the Defendant from the copyrighted map, the subject of this action.

"VIII

"That the work of the Defendant performed in changing, correcting and updating the said map over the years since 1956 has no bearing upon the issue of infringement or damages to the Plaintiff.

"IX

"That since no present threat appears that future infringements will be committed by the Defendant, no injunctive relief is presently necessary or advisable.

"X

"That no estoppel lies to prevent the Defendant from asserting any attack upon the validity of the copyright; and that the Defendant has not in any wise caused a forfeiture of Plaintiff\'s copyright to the public domain.

"XI

"That the Plaintiff is entitled to judgment for damages in the full sum of $13,100.00 together with his costs herein

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