Hayden v. Chalfant Press, Inc.

• Decision Date: 10 August 1960
• Docket Number: No. 16706.,16706.
• Citation: 281 F.2d 543
• Parties: Walter E. HAYDEN, individually and d.b.u. the fictitious firm name and style of Hayden Map Company, Appellant, v. CHALFANT PRESS, INC., a corporation, Joseph Beets, a/k/a Joe Beets, Jack Fair, Robert Frank, Dewey Kirk, Benno Heune, Allan O'Connor, Lorin Ray, and Todd Watkins, Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

281 F.2d 543 (1960)

Walter E. HAYDEN, individually and d.b.u. the fictitious firm name and style of Hayden Map Company, Appellant, v. CHALFANT PRESS, INC., a corporation, Joseph Beets, a/k/a Joe Beets, Jack Fair, Robert Frank, Dewey Kirk, Benno Heune, Allan O'Connor, Lorin Ray, and Todd Watkins, Appellees.

No. 16706.

United States Court of Appeals Ninth Circuit.

August 10, 1960.

Maury, Larsen & Hunt, Los Angeles, Cal., and Porter C. Blackburn, Burbank, Cal., for appellant.

Lyon & Lyon, Los Angeles, Cal., for appellees.

Before STEPHENS and JERTBERG, Circuit Judges, and KILKENNY, District Judge.

JERTBERG, Circuit Judge.

This is an action for infringement of copyright instituted by appellant against appellees in which appellant sought injunctive relief against future use of certain maps copyrighted by appellant and damages for profits for past use. The relief sought was denied by the district court, sitting without a jury. Hayden v. Chalfant Press, Inc. et al., 177 F.Supp. 303.

Jurisdiction of the district court was based upon the United States Constitution, Article I, Section 8, clause 8, and Title 17 U.S.C.A. § 101 et seq. and Title 28 U.S.C.A. § 1338. This Court's jurisdiction to review is grounded on the provisions of Title 17 U.S.C.A. § 114, and Title 28 U.S.C.A. §§ 1291 and 1294.

Initially we will dispose of certain specifications of error, some of which appellant has chosen to group under the heading "Interlocutory Rulings on Discovery and Failure to Hold Pretrial Proceedings * * *" and others appear under the heading "The Judge's Prejudgment and Aversion to Appellant."

During the course of discovery proceedings appellant sought by way of depositions and interrogatories to discover facts which might lead to evidence of damages which appellant may have sustained by reason of the alleged infringement of his copyrighted maps. The district court sustained objections interposed to such line of inquiry. It was the view of the district court that the issue of liability should first be determined, the court indicating that in the event of establishment of liability a master would be appointed to take testimony on the issue of damages. In this connection we note that the trial court in proper circumstances has the right to order separate trials for separate issues in the same case. Federal Rules of Civil Procedure 42(b), 28 U.S.C.A.; Marks Food Corp. v. Barbara Ann Baking Co., 9 Cir., 1959, 274 F.2d 934. We are unable to see any prejudice which appellant suffered or could have suffered by reason of the court's action. We find no abuse of discretion on the part of the trial judge. Appellant complains that no pretrial proceedings were ever had or ordered by the district court. This, again, is a matter which rests within the discretion of the district court. Rule 16, Federal Rules of Civil Procedure, Title 28 U.S.C.A., provides that "In any action, the court may in its discretion direct the attorneys for the parties to appear before it for a conference to consider" simplification of issues, desirability of amendments to the pleadings, the possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof, the possibility of a preliminary reference of issues to a master for findings, and such other matters as may aid in the disposition of the action. The Rules of the United States District Court for the Southern District of California, as amended to April 11, 1957, West's Ann.Code, provide in Rule 9 that after a civil action is at issue, unless the court or the judge in charge of the case otherwise directs, the clerk shall place the cause on for pretrial conference. Although the court did not otherwise direct, no pretrial proceedings were held in the instant case. It does not appear in the record that the appellant requested proceedings under local Rule 9, or Rule 16 of the Federal Rules of Civil Procedure. He cannot now be heard to complain. In any event, whether the pretrial procedure should be adopted in a particular court is a matter resting in the sound discretion of the trial court.

Under the heading of "The Judge's Pre-judgment and Aversion to Appellant", appellant quotes isolated comments and remarks of the trial judge which were made during the progress of the trial. Appellant urges that such remarks and comments indicate that the trial judge failed to understand or grasp appellant's position in respect of questions of law and fact which arose during the trial, and that the trial judge developed an early dislike of appellant. In reviewing the proceedings of a trial court we must bear in mind that the trial of a lawsuit is not conducted in a vacuum. A lawsuit is an adversary proceedings. All who participate therein are human beings. Each judge has his own method of trying a lawsuit. There cannot be devised a standardized strait-jacket method to be followed by judges in the course of trying a lawsuit. We do not intend to fashion one in this case. Suffice it to say that on the entire record in this case we are satisfied that the able and experienced trial judge fully understood the issues of law and fact involved in this case, and that his rulings and final judgment were in no way tainted by any like or dislike for any participant in the trial.

Appellant is a cartographer living in Los Angeles, California, and has devoted the better part of the last forty years to the making of maps of the hunting and fishing areas of the California High Sierras located in portions of Inyo and Mono Counties of California. The appellant's maps involved in this litigation were copyrighted in 1933, 1934, 1936, 1938 and 1950, and were the result of appellant's individual effort surveying and depicting much information not then represented on maps in the public domain.

This infringement action was brought against two groups of persons. The first group, collectively referred to as the Chalfant Press, published in 1955, 1956, 1957 and 1958 copies of an "Inyo-Mono Fishing and Vacation Guide." This guide cost seventy-five cents a copy in 1955 and 1956, and one dollar a copy in 1957 and 1958, and varied from 164 pages in 1955 to 240 pages in 1958. Appellant asserted that four maps contained in each issue of the guide were copied from his copyrighted maps. The second group, collectively referred to as the Mono County Chamber of Commerce, published in 1957 a small, one sheet "Recreation Map of Mono County, California," which was distributed gratuitously to anyone interested in vacationing in Mono County, California. This map contained some sixty-two small advertisements, the return from which was devoted to the cost of the publication of the map. Appellant asserted that the one map contained in the advertising sheet was copied from his copyrighted maps. This latter publication was not a money making commercial venture, as were the former publications of the Chalfant Press. The appellant first asserted his claims of copyright infringement by separate letters to both groups dated June 12, 1957.

At the trial of this cause, appellant tendered proof of some 234 similarities between his copyrighted maps and those of the appellees, and asserted that at least 234 separate, individual infringements existed. It is important to note, however, that each one of these similarities involved the name of some geographic locus (193 constituted names of lakes, creeks or springs), or the name of some commercial tourist establishment located in the area covered by the copyrighted maps. It was the testimony of appellant that each and every one of the 234 place names above noted was first printed on his maps before being printed on any other maps of the area. In connection with the naming of places and the printing of such names on maps, appellant testified that he had named 1500 lakes in the California High Sierras. The trial court determined that such similarities did exist as a matter of fact, and that there were many dissimilarities.

In addition to the 234 similarities, appellant also tendered proof that there were 43 common errors extant on both his maps and those of appellees. No other witness or exhibit was offered to prove that the asserted "common errors" were in fact errors, such claim resting solely on the appellant's testimony. Apparently the trial court placed no credence in appellant's testimony in this respect. Due regard must be given by this Court to the opportunity of the trial court to judge of the credibility of the witnesses. Rule 52(a), Federal Rules of Civil Procedure.

The appellant offered no direct proof of copying, relying on the existence of the above noted similarities and alleged common errors to establish circumstantially that his maps had been copied by the appellees.

The appellees in their answer denied the validity of appellant's copyrights, denied infringement, and alleged that source material for maps circulated and published by them was in the public domain.

At the trial the appellees denied that they had copied appellant's copyrighted maps to produce the accused maps, and offered testimony that they had, with permission from the Automobile Club of Southern California, copied their maps from certain outing maps prepared by said Automobile Club. Proof was also offered by appellees to the effect that the Automobile Club maps were the result of independent production and were in no wise a result of copying appellant's maps. This proof consisted of the testimony of an Automobile Club employee, who had been associated with the Automobile Club for 38 years, and who had spent the last 21 of those years in the map production department, of which he was manager. He described the system employed by the Automobile Club in the preparation of maps depicting certain areas. Briefly, the first step was to trace on tracing cloth all of the desired basic information from United States Geological Survey and Forest Service maps in the...