Record & Guide Co. v. Bromley

• Decision Date: 04 December 1909
• Docket Number: 161.
• Citation: 175 F. 156
• Parties: RECORD & GUIDE CO. v. BROMLEY et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

175 F. 156

RECORD & GUIDE CO. v. BROMLEY et al.

No. 161.

United States Circuit Court, E.D. Pennsylvania.

December 4, 1909

On Rehearing, January 25, 1910.

Joseph Day Lee and Ernest Howard Hunter, for complainant.

Francis S. Cantrell, Jr., and Charles N. Butler, for defendants.

J. B McPHERSON, District Judge.

The present bill is filed to restrain the infringement of certain copyrights of which the plaintiff claims to be the owner. The facts that are now relevant are as follows:

For several years before June 1, 1907, C. W. Sweet was the proprietor and publisher of a periodical that appeared each week in the city of New York under the name of the 'Real Estate Record and Builders' Guide. ' It is commonly known as the 'Record and Guide,' and will be so referred to hereafter. About June 1, 1907, the plaintiff acquired Sweet's interest in the periodical and in the copyrights described in the bill, and since that date the business has been carried on in the same manner as when Sweet was the owner. In April, 1908, he also assigned to the plaintiff such causes of action as he might have against the defendants for infringing the copyrights in question, and this suit is brought to redress these violations, and also other violations averred to have been committed by the defendants between April, 1908, and September 9th of the same year, the day when the bill was filed.

The principal feature of the Record and Guide was, and is, the appearance each week of tabulated lists of all conveyances (including leases and mortgages) of real estate in the boroughs of Manhattan and the Bronx. The list of conveyances presents in condensed form a number of facts, namely, the nature of the conveyance, the names of the grantor and grantee, a brief description of the property, its street number and also its block and lot number, the consideration stated, the date of execution and of recording, and the amount of such mortgage as may be given. An example of the summaries that make up this list is the following item:

'71st St., W. No. 51 n.s. 535.6 from Central Park W. 16x102, 5 sty. stone front dwelling. Thos. J. McLaughlin to Mrs. L. Hall, Mort. $25,000; Feb. 9, Mar. 12, 1907, 4: 1124-11 A $16,000-- $23,000, other consid. $100.'

Obviously such information is important to many persons, for example to real estate dealers, builders, materialmen, and the large number of other people who for some reason are interested in keeping track of the transfers of real property; and, as the Record and Guide offers an easy and expeditious method of obtaining the information, it has a numerous and established clientele, and its business and good will are of considerable value. The plaintiff gets this information at much trouble and expense in the public record office of the city of New York, keeping two men continually (and sometimes more than two) employed in the offices of the register of deeds, and employing other persons to tabulate, arrange, and publish the data thus obtained from the original instruments that are filed for record. Once each quarter and also once each year the facts contained in the weekly numbers are combined and rearranged, and are then published in book form, thus giving to subscribers and purchasers a more convenient and more permanent record. In all these publications, whether weekly, quarterly, or yearly, the lists are arranged according to streets in alphabetical or numerical order, although the block and lot numbers are also given.

Nearly all these publications are said to have been copyrighted-- although the suit is only concerned with some of these rights-- and the defendants are charged with having infringed in the following manner: Largely by the unauthorized use of previously issued copies of the Record and Guide, they prepared and published several years ago a compilation which purports to give the name of each owner of real estate in the boroughs of Manhattan and the Bronx. This compilation was arranged, not according to streets, but according to the block and lot numbers of the various parcels of real estate; and, in order to be conveniently used, needed to be examined in connection with an atlas of New York that was also published by the defendants. This compilation bears the title 'Owners' Names of the City of New York' (or the Bronx), and is usually spoken of as 'Owners' Names.'

The character of this publication will appear from the following example:

'Bl. 1647.

'1 Wm. Ebling, 1, 9, 92.'

-- this entry meaning that William Ebling became the owner of lot 1 in block 1,647 on January 9, 1892. Further information concerning the property could be obtained from the atlas, and, after the street and number had thus been discovered, additional facts could be learned from the Record and Guide. To supplement Owners' Names, the defendants have been publishing every two weeks lists arranged according to the same plan and containing similar information. These lists are called 'Current Sheets.' Every two years since the original Owners' Names was published, a new compilation has also appeared, bearing the same title and including all transfers made since the biennial issue immediately preceding. The plaintiff charges that, in order to obtain the information contained in Owners' Names and Current Sheets, the defendants did not go to the original sources, namely, the conveyances or the public records, but copied the information contained in the weekly numbers of the Record and Guide, merely rearranging it to suit the plan of their own publications. It is further charged-- and this is not denied-- that the defendants have sold a large number both of Owners' Names and Current Sheets, and that they intend to continue the publications of both periodicals.

This is a sufficient outline of the controversy to explain the questions that are now to be discussed. As the action is founded on the averment that the plaintiff's copyrights have been infringed, the first inquiry must be: What copyrights have been taken out? Upon this point the testimony is not in serious dispute. No copyright was applied for before February 18, 1905, but, beginning with that date (except for several weeks in November and December, 1905), an effort has been made to copyright every weekly issue up to and including the issue of August 22, 1908, and to copyright the annual issues for 1905 and 1906-- to speak now only of the annual issues that are said to have been infringed. The bill does not charge the infringement of any copyright taken out upon a quarterly, neither does it charge that the copyright on the annual issue for 1907 has been infringed. (Of course, there could be no charge in the bill that the copyright on the annual issue for 1908 had been infringed, since that volume did not appear until 1909.) So far as the weeklies are concerned, the evidence satisfies me that (with the exception referred to, namely, part of November and December, 1905) the requirements of the copyright law were complied with, unless the method of giving notice was so defective that the protection of the statutes must be denied, or unless a copyright originally good became vitiated by failure to repeat the notice when the necessity of repetition arose.

As it seems to me, the plaintiff's case must fail, because the copyrights in question either never became effective by reason of failure to give the proper notice, or were lost by reason of failure to repeat the notice when the copyrighted matter was republished. The evidence requires the various issues of the Record and Guide to be considered in periods: (1) For the year 1905; (2) from January 5, 1906, to March 23, 1907; (3) from March 23, 1907, to June 1, 1907; (4) from June 1, 1907, to August 22, 1908.

Before considering the facts applicable, respectively, to each of these periods, the well-established rule should be recalled that the statutory requirements must be carefully observed before a valid copyright may be obtained, or (even if a copyright has been originally secured) before a right to sue for infringement accrues to the author or owner. For present purposes, it is only necessary to call attention, first, to the act of 1874 (Act June 18, 1874, c. 301, Sec. 1, 18 Stat. 78 (U.S. Comp. St. 1901, p. 3411)), which provides:

'That no person shall maintain an action for the infringement of his copyright unless he shall give notice thereof by inserting in the several copies of every edition published, on the title page or the page immediately following, if it be a book, * * * the following words, viz., 'Entered according to Act of Congress in the year . . . by A.B. in the office of the Librarian of Congress at Washington' or at his option the word 'Copyright' together with the year the copyright was entered, and the name of the party by whom it was taken out; thus 'Copyright 18-- by A.B."

And, second, to section 11 of the act of 1891 (Act March 3, 1891, c. 565, 26 Stat. 1109 (U.S. Comp. St. 1901, p. 3417)), which provides:

'That for the purposes of this act * * * each number of a periodical shall be considered an independent publication, subject to the form of copyrighting as above.'

In Thompson v. Hubbard, 131 U.S. 148, 149, 9 Sup.Ct. 719, 33 L.Ed. 76, the notices in question were, 'Entered according to Act of Congress,' and at a later period, 'Copyright, 1880,' and it was held that neither was a compliance with the statute. The court said:

'It is very clear that Hubbard, as the proprietor of the copyright, was bound to give the statutory notice in the several copies of every edition published by him, and that he did not do so. The plain declaration of the statute is that no person shall maintain an action for the infringement of his copyright, unless he shall give notice thereof by inserting the

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