Sammons v. Larkin

• Decision Date: 17 April 1940
• Docket Number: No. 596.,596.
• Citation: 38 F. Supp. 649
• Court: U.S. District Court — District of Massachusetts
• Parties: SAMMONS et al. v. LARKIN et al.

38 F. Supp. 649

SAMMONS et al. v. LARKIN et al.

No. 596.

District Court, D. Massachusetts.

April 17, 1940.

Arthur Thad Smith, Jr., of Boston, Mass., and Robert V. Jones, and B. W. Carrington, Jr., both of Chicago, Ill., for plaintiff.

Stanley G. Barker and Thayer, Smith & Gaskill, all of Worcester, Mass., for defendant The Colonial Press, Inc.

Richard H. Field, Lloyd Ritvo, and Brenton K. Fisk, all of Boston, Mass., for defendant Thomas Larkin, III.

FORD, District Judge.

This suit seeks an injunction and damages for copyright infringement and is brought under the provisions of Title 17 U. S.C.A. §§ 1-63. A second count in the complaint for trade-mark infringement and unfair competition is dismissed on motion of the plaintiffs, as will appear later.

The plaintiffs are co-partners and citizens of Illinois. The individual defendant, Thomas Larkin, III, is a resident of Cambridge, Massachusetts, and does business under the firm name and style of Larkin, Roosevelt, & Larkin, Ltd. The Colonial Press, Inc., (hereafter called "Colonial") is a Massachusetts corporation located in Clinton, Massachusetts.

In the main, the defense is a denial of infringement.

Findings of Fact.

1. One A. N. Marquis, doing business as A. N. Marquis Company, commenced publishing and selling biographical directories of living persons in 1898. Between that time and 1936 he and the A. N. Marquis Company, a corporation which purchased the business of A. N. Marquis in 1926, published and sold a series of biographical directories entitled "Who's Who In America", "Who's Who In New England", and "Who's Who in Chicago". On December 31, 1936, the plaintiffs acquired the business of the A. N. Marquis Company, the corporation, and up to the present time, as a partnership, have continued the business of publishing and selling biographical directories.

Between 1936 and 1939, the plaintiffs compiled, published, and sold directories with the following titles: "Who's Who in America, Volume 20, 1938"; "Who's Who in Chicago and Vicinity, Sixth Edition, 1936"; "Who's Who In New England, 1938"; "Who's Who In Pennsylvania, 1939"; "Who's Who In New Jersey, 1939"; "Who's Who In Maryland, 1939"; "Who's Who In West Virginia, 1939". All of these works were copyrighted under the copyright laws of the United States.

2. The book with which this suit deals is "Who's Who In New England, Volume 3", published in June, 1938, (hereafter called "In New England"). A certificate of copyright registration was duly issued on this work by the copyright office of the United States, dated June 6, 1938. Notice of copyright was duly printed in this publication.

3. In January, 1940, the defendant Larkin published the alleged infringing book, entitled "Who's Who In Massachusetts, Volume 1" (hereinafter called "In Massachusetts"). The defendant Larkin was the sole proprietor of Larkin, Roosevelt, Larkin, Ltd. The business was located in a small office at 30 Newbury Street, Boston, Massachusetts. There was only one permanent employee in the office, a woman. Larkin commenced doing business in 1937, at which time he conceived the idea of publishing "In Massachusetts." There was no evidence that up to that time he had any experience in the publishing business. In fact, he came out of college in April of 1937.

4. The book "In Massachusetts" was manufactured by Colonial and the manufacture included the printing, electrotyping, stitching, and binding. Colonial are book manufacturers and not engaged in the publication of books. It does the actual mechanical work involved in producing books after receiving manuscripts from publishers. Colonial was introduced to Larkin through the University Press, a printing concern located at Cambridge, Massachusetts. As a result of the introduction, Colonial contracted with Larkin for the manufacture of "In Massachusetts" on May 8, 1939. The contract called for 3,000 books for a lump sum price of $7,500. Out of this, Colonial agreed to pay the University Press a commission of $1,000.

5. Colonial commenced receiving the manuscript for "In Massachusetts" from Larkin a short time after May 8, 1939, and delivery of the books commenced December 6, of that year. The manuscript was received in the form of typewritten sheets containing biographical sketches. A total of 2,812 books were delivered to Larkin, the last of them on April 12, 1940.

6. On February 8, 1940, Colonial received from the plaintiffs written notice of alleged infringement. Printing was stopped by Colonial February 26. Between the latter date and April 12, 1940, Colonial delivered to Larkin between 1,500 and 2,000 books.

7. The evidence further showed that sometime in 1938, before "In New England" was published, the president of Colonial interviewed an agent of the plaintiffs in Chicago, Illinois, for the purpose of procuring the printing of "In New England". Colonial later submitted a bid for the printing but was unsuccessful. Further, it appeared that the president of Colonial had purchased a copy of "In New England" shortly after its publication in 1938.

8. Larkin testified that he secured his material for "In Massachusetts" from newspaper files, correspondence with prominent people in Massachusetts, publications, such as, "Who's Who In Law" and similar publications, year books, educational institutions, and educators. He testified that he was engaged in the preparation of "In Massachusetts" in the Fall of 1937 before the publication of "In New England". He stated he compiled a main list of about 15,000 names from his research up to June, 1938, and sent questionnaires to each one. He testified he sent out 50,000 letters in the preparation of his work. His method was to prepare, when the questionnaire was returned, a typewritten biographical sketch, which in turn was sent out to the subject for approval. When approval was received, it was sent to Colonial for printing. "In Massachusetts" contained about 7,700 biographical sketches. "In New England" contained about 12,445 sketches. Of the 7,700 sketches in "In Massachusetts," 4,051 appear in "In New England". Larkin further testified he wrote very few of the biographies himself; that at least 3,800 of them were written by a woman assistant, who appeared at the trial. Outside assistants compiled the remainder, according to Larkin. None of the latter appeared at the trial. No sketch appeared in "In Massachusetts" upon which the approval of the person involved had not been secured. Larkin further testified that in compiling his work questionnaires were received from about 6,000 of the 7,700 from which biographies were made up and the other 1,600 or 1,700 biographies in "In Massachusetts" were not compiled from questionnaires, but from material secured from outside sources, including "In New England".

9. The plaintiffs, in order to prove infringement, showed they had made a comparison of nearly 300 pages of "In Massachusetts" with the corresponding alphabetical pages of "In New England". The evidence showed that fifty-three of the biographies in these compared pages are identical with the corresponding biographies in "In New England", except for differences in style and punctuation, and sixty-one biographies in the compared pages of "In Massachusetts" contain peculiarities of expression identical with those in "In New England".

10. Further, the evidence showed that at least thirteen of the 114 biographies referred to in the preceding paragraph published in "In Massachusetts" contain errors identical with those found in "In New England". These were errors of spelling, abbreviation, and punctuation.

11. The plaintiffs produced from the files of Larkin the biographies of nine persons which were identical, except for changes in style, with the corresponding biographies in "In New England". These biographies in Larkin's files were on typewritten sheets on which the changes had subsequently been made in ink. With these changes in style they finally appeared in "In Massachusetts". The files of six of these biographies contained no questionnaires whatsoever. In one file, where a questionnaire had been returned, the biographical sketch in "In Massachusetts" contained material appearing in "In New England" which did not appear in the subject's questionnaire and omitted material that appeared in the subject's questionnaire but which was omitted in "In New England".

12. Larkin produced no documentary evidence or evidence of the existence of any such from which it could be reliably found that he had resorted to original sources for his information.

13. Larkin and Colonial opened a joint account in a bank in Boston in which all the receipts from the sale of "In Massachusetts" were deposited and from this account Colonial received payment for its work in printing Larkin's work.

Larkin's Infringement.

These findings of fact present, first, the question, have the plaintiffs sustained the burden of proving the defendant Larkin copied their work to such an extent as to constitute infringement?

One of the most significant evidences of infringement is identity of errors. Of course, this is circumstantial evidence, but it is of the convincing sort. Callaghan et al. v. Myers, 128 U.S. 617, 662, 9 S.Ct. 177, 32 L.Ed. 547; W. H. Anderson Co. v. Baldwin Law Pub. Co., 6 Cir., 27 F.2d 82, 87. Immediately upon the discovery of similar errors in both works, the burden falls heavily upon Larkin, whose publication was later in time, to explain their presence. Encyclopaedia Britannica Co. v. American Newspaper Ass'n et al., C.C., 130 F. 460, 464. Larkin was at an entire loss to account for at least thirteen identical errors and this failure leads to the conclusion that the biographies where these errors appeared were copied from "In New England". In fact, it does not seem that any other conclusion is possible.

In addition to the identical errors, the identical biographies and peculiarities that were found in both works constitute strong probative evidence...