Freedman v. Milnag Leasing Corporation

• Decision Date: 22 June 1937
• Parties: FREEDMAN v. MILNAG LEASING CORPORATION et al.
• Court: U.S. District Court — Southern District of New York

20 F. Supp. 802

FREEDMAN v. MILNAG LEASING CORPORATION et al.

District Court, S. D. New York.

June 22, 1937.

O'Brien, Driscoll & Raftery, of New York City (Arthur F. Driscoll and T. Newman Lawler, both of New York City, of counsel), for complainant.

William Klein, of New York City, for respondents Milnag Leasing Corporation and Louis Kramer.

PATTERSON, District Judge.

The suit is one in equity for infringement of statutory copyright. It was tried on the merits. Some years ago the plaintiff made up his mind to publish a map of New York. He engaged one Spofford, an artist, to make a drawing of the city as it would appear from a point above the harbor south of Manhattan. Spofford made the drawing. The more prominent buildings were put in on an enlarged scale; the names of streets, piers, districts, buildings, and so on were shown. The map was on a large sheet, folded into panels so as to be carried around conveniently, in the manner of automobile maps. On the back panels was printed a great deal of information concerning churches, parks, museums, amusements, foreign consulates, and matters of particular interest to persons unfamiliar with the city. This information the plaintiff put together from various sources. The map was published in January, 1932, with notice of copyright on front and back. In March, 1932, the plaintiff deposited copies of the map in the copyright office for registration of copyright. In the application for registration he described the work as a map and gave Spofford as the author.

In January, 1933, the plaintiff made a contract to furnish 100,000. maps to the defendant Milnag Leasing Corporation, a company owning and operating the Hotel Edison. Changes giving prominence to the Hotel Edison were made both in the map and in the printed matter on the back, but in the main the 1933 map was like the 1932 map. A second contract for 200,000 additional maps was made in July, 1933, and these maps also were delivered to the Milnag company. The Hotel Edison maps were published by the plaintiff in March, 1933, with copyright notice on face and on back, and application for registration in the copyright office was made in May, 1933. The plaintiff's application for registration listed the work as a book, called the Edison Hotel Supervue Map and Guide of New York, with the plaintiff as author and proprietor. The plaintiff had no further dealings with the Milnag company.

In 1934 the Milnag company put out the map alleged to infringe. For the map it took an aerial photograph of New York City, giving much the same view as the drawing used by the plaintiff. Names and lines were added by artists employed for the purpose. The greater part of the guide on the back of the map was taken bodily from the guide on the back of the plaintiff's maps. Most of it is the same, word for word, and several errors made by the plaintiff are repeated in the guide of the Milnag company. The latter map, to the number of 165,000, was printed by the defendant National Process Company on assurances by the Milnag company that it did not infringe the plaintiff's map.

1. The plaintiff's map and guide material of 1932 were copyrightable, the map as an original work, the guide material as a compilation or arrangement of matters in the public domain. Copyright Act, §§ 5 as amended, 6 (17 U.S.C.A. §§ 5, 6); General Drafting Co. v. Andrews, 37 F.(2d) 54 (C.C.A.2). The changes and new matter put into the map and guide material of 1933 were also copyrightable, although of course the 1932 copyright as to matters common to both maps was not enlarged. On the trial the Milnag company did not deny that it had copied the plaintiff's guide material. The similarities and the common errors are so striking that denial would have been futile. The defense is that there was no copying of the map itself and that nothing but the map was in fact copyrighted. It is said that the copyright as submitted for registration in 1932 was only on a map made by Spofford, that the guide was not made by Spofford, that the guide was therefore thrown into the public domain and could not be reacquired as the plaintiff's property by means of the copyright of 1933.

There was no copying of the map itself. The plaintiff's map was a drawing, the defendant's an actual photograph. So the question is whether the plaintiff's copyright of his first map was broad enough to protect the guide that appeared on the back.

2. Statutory copyright is obtained by publication of the work with notice of copyright, but may be lost unless the publication is followed by deposit of copies of the work in the copyright office. Copyright Act, §§ 9, 12 as amended, 13 (17 U.S. C.A. §§ 9, 12, 13). When the plaintiff published the first map, he put a sufficient copyright notice on the side of the sheet displaying the map; he...