Schroeder v. William Morrow & Co.
| Decision Date | 21 September 1976 |
| Docket Number | No. 74 C 3750.,74 C 3750. |
| Citation | 421 F. Supp. 372 |
| Court | U.S. District Court — Northern District of Illinois |
| Parties | Charles E. SCHROEDER and Marion S. Schroeder, Plaintiffs, v. WILLIAM MORROW AND COMPANY and George Banta & Co., Defendants. |
William E. Lucas, McCaleb, Lucas & Brugman, Chicago, Ill., for plaintiffs.
Joseph Stachura, Glenview, Ill., for defendants.
This is an action for copyright infringement arising under the Copyright Act, 17 U.S.C. §§ 1, et seq., and jurisdiction is here under 28 U.S.C. § 1338(a). Plaintiffs, Charles E. Schroeder and Marion S. Schroeder, claim that defendants, William Morrow and Company, a publisher, and George Banta & Co., a printer, infringed plaintiffs' Class A Copyright No. 518397 covering their work THE GREEN THUMBOOK by publishing, printing, distributing and selling defendants' THE GARDENER'S CATALOGUE. The evidence shows that Mrs. Schroeder was the author of THE GREEN THUMBOOK while Tom Riker and Harvey Rottenberg were the principal authors of THE GARDENER'S CATALOGUE. Riker and Rottenberg's corporate alter ego, The Gardener's Catalogue, Inc., has been earlier dismissed for want of venue and by stipulation of the parties Morrow's parent, Scott Foresman & Company, was dismissed. Riker and Rottenberg were not sued. Morrow and Banta concede, however, that they, as publisher and printer of THE GARDENER'S CATALOGUE, can be held liable for any infringement of plaintiffs' copyright.
Defendants concede the validity of the copyright issued on THE GREEN THUMBOOK as a compilation under Section 7 of the Act. 17 U.S.C. § 7. They also concede that portions of THE GREEN THUMBOOK were copied in the preparation of THE GARDENER'S CATALOGUE. They defend upon the grounds that those portions which were copied were uncopyrightable components of THE GREEN THUMBOOK which came from either the public domain or other copyrighted works of which plaintiffs were not the owner. Defendants' alternative defense is that their taking was a fair use.
The issue of infringement has been severed from the issue of damages under Rule 42(b), Fed.R.Civ.P. This memorandum will stand as our findings of fact and conclusions of law in respect to the issue of infringement under Rule 52(a), Fed.R.Civ.P.
THE GREEN THUMBOOK is a booklet of 63 pages with a page size of 6¼ inches by 9 inches and retails at $2.95 per copy. It is a listing of sources of supplies, equipment, information and associations of all types for the gardening enthusiast. Its author, Marion S. Schroeder, described its purpose as follows:
After some introductory instructions on how to use THE GREEN THUMBOOK, it contains nothing other than listings of the names and addresses of suppliers of seeds, plants, materials, equipment, books, periodicals and plant societies, together with brief descriptions of each. It concludes with an alphabetical index which is comprised of the proper names of the suppliers, etc., and subject matters, e. g., "Birdhouses, how to build, 53", id. p. 57.
The concept and format of listing plant and seed suppliers under appropriate headings of types of plants and listing horticultural equipment suppliers and plant societies in a booklet of this type is not novel or original with plaintiffs. See The Tender Plant Finder, 1973-74, (defendants' Exh. M), which was in Mrs. Schroeder's possession prior to the publication of THE GREEN THUMBOOK.
The various listings in THE GREEN THUMBOOK typically include the name and address of a supplier, his or her specialty and a description of any catalogs or listings available from that source. Thus, a typical entry is the first one. Appearing on page 6 of the work, under the category "SEEDS . . ." is the following:
Specifically, THE GREEN THUMBOOK includes the following material which is in issue in this case:
1. 350 plant and seed suppliers broken down into 37 categories.
2. 94 gardening equipment suppliers broken down into 3 categories.
3. 40 plant societies under that single caption.
4. 6 magazines under that single caption.
THE GREEN THUMBOOK listings with respect to plant and seed suppliers comprise the bulk of the work which is here in issue and consist of the name and address of the supplier, a description of the supplier's plant specialty, catalogs and price lists available from the supplier.
The listings with respect to gardening equipment suppliers consist of the name and address of the supplier, in some instances a description of the equipment sold, in other instances a code and explanatory text indicating which of five types of equipment the supplier sells, and catalogs and price lists available from the supplier.
The listing with respect to plant societies consists of the names and addresses of 40 organizations, membership dues, a description of its periodical and occasionally a mention of special publications and services of that society.
The listing with respect to magazines consists of the name and address of the magazine, subscription rates, and a description of its general content.
Marion S. Schroeder testified to her methodology and efforts in compiling THE GREEN THUMBOOK. Insofar as the list of equipment dealers under the caption "Tractors, Tillers, Cultivators and Chippers" (pp. 36-37) she concededly used lists contained in a copyrighted publication Lawn and Gardening Marketing, published by Intertec Publishing Corp. of Kansas City, Missouri. Insofar as the listing of plant societies (pp. 38-40), although she did not acknowledge copying from the uncopyrighted Directory of American Horticulture, published by the American Horticulture Society, she did testify that she had it in her possession and utilized it in her work. As for the balance of the entries which are here in question, the evidence is that while the names of the suppliers and publications are publicly available, their collection, appraisal and description were the result of Marion S. Schroeder's individual effort. She kept extensive index files in respect to them, had personal dealings with them and utilized her own expertise as a gardener in categorizing, describing and appraising them.
In the spring of 1974 plaintiffs published THE GREEN THUMBOOK and sought and obtained from the U. S. Register of Copyrights a certificate of registration. As of the time of trial, 600 copies of the book had been published and sold.
In the fall of 1973 Messrs. Riker and Rottenberg began the development of THE GARDENER'S CATALOGUE. It is of a substantially larger format than THE GREEN THUMBOOK, 320 pages in length, with page sizes of 10¾ by 14½ inches. It retails for $6.95 per copy. It is a "trade" paperback. It consists of a mixture of gardening nostalgia, old-fashioned prints, engravings and illustrations, miscellaneous garden advice old and new, old and current gardening advertisements, information on ecology, listings of suppliers of all types and listings of books and book reviews.
The evidence shows that THE GARDENER'S CATALOGUE was compiled through substantial expenditure of time, money and effort by Riker and Rottenberg and the professional staff of The Gardener's Catalogue, Inc. This staff included professional writers, editors, a horticulturist, graphic artists, a photographer, an art director, editorial and production assistants, and a typesetter and calligrapher.
The production staff's efforts included compiling many lists of gardening sources such as societies, public agencies, vendors and suppliers of gardening items and equipment and then writing these groups in order to obtain catalogs, booklets and other related information. Included in these efforts was a request of the plaintiffs for a complimentary copy of THE GREEN THUMBOOK for "research purposes" which was received by The Gardener's Catalogue, Inc. in June, 1974.
The conceded act of copying occurred as follows. After THE GREEN THUMBOOK was received, it was cut apart and its various lists were indexed in files according to their subject matter along with other information in the files of The Gardener's Catalogue, Inc. In the final production, the lists from THE GREEN THUMBOOK, together with other lists were delivered to the typesetters. Substantial deletions had been made from THE GREEN THUMBOOK material. Thus, only the names and addresses of the plant, seed and equipment suppliers were used. There was no copying of the description of the suppliers' specialty or of its catalogs, price lists, etc. Various of THE GREEN THUMBOOK'S categorizations or headlines were, however, used.
This same approach was taken with respect to the plant societies and magazines. Only the names and addresses were utilized. No information was copied respecting dues, the names of monthly publications or the contents of the publications.
While virtually all of the names and addresses appearing on 27 of the 63 pages of THE GREEN THUMBOOK were copied, they comprise only 3½ pages or approximately 1% of the total printed material appearing in THE GARDENER'S CATALOGUE. Nevertheless, page 4 of THE GARDENER'S CATALOGUE states:
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