Egbert v. Greenberg

• Decision Date: 28 February 1900
• Docket Number: 12,853.
• Citation: 100 F. 447
• Court: U.S. District Court — Northern District of California
• Parties: EGBERT v. GREENBERG et al.

100 F. 447

EGBERT v. GREENBERG et al.

No. 12, 853.

United States Circuit Court, N.D. California.

February 28, 1900

Martin Stevens, for complainant.

Edward C. Harrison, for respondents.

MORROW Circuit Judge.

This is an action for the infringement of copyright. The bill alleges that the defendants G. D. Phillips and O. H. Smyth are co-partners doing business under the firm name of Phillips & Smyth; that on November 28, 1899 complainant was the sole author and proprietor of a daily periodical entitled the Daily Racing News, containing, among other things, an 'official form chart of races,' a copy of the issue of which for November 28, 1899, is attached to the bill. It is further alleged that on November 28, 1899 complainant, after due proceedings, secured a copyright of said periodical pursuant to the act of congress of July 8 1870, and the amendments thereto; that ever since November 28, 1899, and prior thereto, complainant has been the sole author and proprietor of said periodical, and has offered it for sale with due notice of said copyright entered upon the title-page thereof; that by reason of the long experience and great care of complainant in his business as author, compiler, proprietor, and publisher of the said 'official form chart' contained in said periodical, the said 'official form chart' has acquired a high reputation, and has commanded, and still commands, an extensive sale in the city and county of San Francisco and at other places in said district, which has been, and still is, a source of great profit to complainant; that defendants herein, on November 29, 1899, wrongfully fraudulently printed and published, and have sold and are selling, and are about to offer for sale and to sell, in the city and county of San Francisco and elsewhere in said district, copies of said 'official form chart' copyrighted by complainant as aforesaid, with intent to deceive and defraud the public and the buyers and users thereof, the copies of the 'official form chart' printed and published and sold and about to be sold by defendants being identical with complainant's copyrighted 'official form chart'; that such publication is calculated to deceive the public, and to mislead many of them to purchase said publication of defendants, because it contains the 'official form chart' published and sold by complainant, to the diminution of complainant's business and profits; that, unless defendants are restrained from printing, publishing, and selling said 'official form chart,' complainant will suffer great and irreparable injury; that complainant has warned defendants of their infringement of his copyright, but defendants persist in such infringement; that complainant has been injured by the wrongful acts of defendants in the sum of $1,000. The bill prays for an order of the court restraining defendants from printing, publishing, selling, or offering for sale the said copies of said 'official form chart.' A restraining order was granted, and the bond fixed at $500, together with an order to show cause why a preliminary injunction should not issue herein; and the case now comes before the court upon this order to show cause, the affidavits of complainant and the defendant Greenberg, and the briefs of counsel filed therein.

The 'official form chart' in question contains the names of certain race horses, the races in which they have taken part, the jockeys who have ridden them, their position, with reference to other horses, during the course of the various races, the odds offered for and against them, and other details of each race, calculated to show what a particular horse has accomplished under the various conditions which each several race has imposed. The defendant Greenberg, in the former of his two affidavits, says that the 'official form chart' is expressly and exclusively designed to facilitate gambling operations upon the races, and that it is not patronized, or bought, or read by any person except such as frequent race tracks and pool rooms for the purpose of gambling upon horses, and that it is in no sense a material contribution to human knowledge. The second affidavit of defendant Greenberg quotes a telegram received by his counsel in response to certain inquiries made of the librarian of congress with reference to the copyrighting of the Daily Racing News and 'official form chart' by complainant. The telegram of the librarian is to the effect that copyright was applied for on the Daily Racing News on November 28th, and...