Smith v. Little, Brown & Company
| Decision Date | 16 May 1967 |
| Docket Number | No. 62 Civ. 2462.,62 Civ. 2462. |
| Parties | Carol Crosswell SMITH, Plaintiff, v. LITTLE, BROWN & COMPANY and Edith Patterson Meyer, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Marvin L. Schwartz, New York City, for plaintiff.
Weil, Gotshal & Manges, New York City, for defendant Little, Brown & Co.; Edward C. Wallace, Marshall C. Berger, New York City, of counsel.
This is an action for plagiarism of plaintiff's uncopyrighted, unpublished manuscript. The plagiarism occurred in a book entitled "Pirate Queen" by Edith Patterson Meyer, which was published by Little, Brown & Co. in 1961.
Mrs. Meyer was never served with process, hence this action was tried against Little, Brown alone in May 1965. Plaintiff has begun a separate action against Mrs. Meyer in Connecticut which is still pending.
I upheld plaintiff's claim of plagiarism and granted her an injunction, which issued on July 19, 1965, restraining Little, Brown from selling or otherwise disposing of any copies of the Meyer book. Smith v. Little, Brown & Company, 245 F.Supp. 451 (S.D.N.Y.1965).
This judgment was affirmed by the Court of Appeals on May 23, 1966. Smith v. Little, Brown & Company, 360 F.2d 928 (2d Cir. 1966).
We have now reached the stage of ascertaining plaintiff's damages and defendant's profits. A hearing was held for this purpose on February 9, 1967. The court may properly consider not only the evidence introduced at this hearing, but also any evidence previously introduced at the trial in 1965 which may be relevant to the present issues. Findings of fact are set forth at length in the court's previous opinion. They need not be fully repeated here.
Plaintiff claims (1) actual compensatory damages, (2) punitive damages, (3) defendant's profits derived from its sale of the offending book prior to the issuance of the injunction.
The manuscript which plaintiff submitted to Little, Brown in April 1957 and which Little, Brown rejected on May 29, 1957, consisted only of a nine-page summary of plaintiff's proposed novel, a six-page outline of the plot, and the first five complete chapters. Although plaintiff has done some further work on the book, she has never finished it. She testified that in 1961 she discussed her book with another publisher, Houghton Mifflin & Co., and that Houghton Mifflin & Co. lost interest when it heard of Mrs. Meyer's book published by Little, Brown. There is no showing, however, that Houghton Mifflin would have published plaintiff's novel but for the Meyer book. Whether it would have or not is wholly speculative. Plaintiff has thus failed to prove that the plagiarism deprived her of the sale of her work which she could otherwise have achieved. Under the circumstances, and bearing in mind the fact that plaintiff has never produced a completed book, plaintiff's expenses for travel and research are not proper elements of damage. Plaintiff is not in any way dependent for her livelihood upon novel writing; that is purely an avocation. She did not attempt to place any value on her time. I conclude that plaintiff has not proved any actual damage.
Plaintiff contends that the court should, in its discretion, assess punitive damages against defendant for two reasons: (1) because defendant's employee, Miss Jones, was a party to the plagiarism; (2) because defendant, after it received notice of plaintiff's claim, was recklessly indifferent to her rights and proceeded to order a second and a third printing of Mrs. Meyer's book. Before considering the law, I will review the evidence which bears upon each contention.
Miss Jones was and is head of Little, Brown's Juvenile Department. She is not an officer of Little, Brown. Her duties comprise the procurement and processing of manuscripts for possible publication for juvenile readers. A juvenile book is accepted for publication by Little, Brown only after it has received the affirmative votes of three out of the four members of the Juvenile Board. Miss Jones was a member of that Board. She made recommendations to it from time to time, some of which were accepted and others of which were rejected.
Mrs. Meyer's book was a juvenile book, hence it came within the scope of Miss Jones' duties. Plaintiff's manuscript was not intended to be a juvenile book. Miss Jones did not participate in the decision to reject it. Miss Jones knew of its existence, however, and had access to it. In granting the injunction, I found that Miss Jones either showed plaintiff's manuscript to Mrs. Meyer or gave her a detailed account of it. There was no other probable explanation of how Mrs. Meyer was able to make use of plaintiff's manuscript, as she obviously did.
The second contention is based upon the acts or omissions, not of Miss Jones, but of Williams. In 1957 Williams was manager of Little, Brown's New York office. Beginning in about 1959 he became a vice-president in charge of defendant's trade department. He is now a senior vice-president.
The relevant facts are these. In early February 1962 plaintiff's then attorney, Vorenberg, a member of a Boston firm, advised Little, Brown that plaintiff had noted similarities between her manuscript and the Meyer book. Little, Brown's chairman of the board asked Williams to investigate. He assembled whatever file Little, Brown had with respect to its dealings with plaintiff and with Mrs. Meyer and invited Vorenberg to inspect it, which Vorenberg did.
Thereafter, on February 15, 1962, Vorenberg wrote to Williams setting forth fourteen instances described in Mrs. Meyer's book and inquiring as to Mrs. Meyer's sources for them. Williams transmitted this inquiry to Mrs. Meyer. On April 11, 1962 she replied. As to most of the incidents, Mrs. Meyer stated in substance that she had invented them. Williams took her word for it at the time. Little, Brown had had previous dealings with Mrs. Meyer and Williams believed her to be reliable.
This action was begun in June 1962. In September 1962 Williams met with Mrs. Meyer, who thereupon gave him a more detailed explanation of the procedure she had followed in doing research for her book. It does not appear, however, that she cited any source for these particular incidents.
Williams made no effort to compare plaintiff's manuscript with Mrs. Meyer's book. Such a comparison would have revealed the similarities which led me to conclude that plagiarism must have occurred. Little, Brown did not have a copy of plaintiff's manuscript in February 1962, as it had returned it to her in May 1957. Williams was not clear in his recollection as to whether he requested Vorenberg to send him a copy. In any event, he did not obtain one from Vorenberg.
In August 1962 plaintiff's present attorney, whose office is in New York, sent a copy of plaintiff's manuscript to defendant's New York attorneys. Williams has no recollection of ever having seen it. Finally, in January 1963, Williams did obtain possession of a copy of plaintiff's manuscript from plaintiff's New York attorney, but even then he did not read it carefully,
On October 19, 1962, Williams authorized a second printing of 2,000 copies of Mrs. Meyer's book. These were delivered in December 1962. In June 1963 he authorized a third printing of 2,000 copies, which were delivered in August.
New York law governs this case. The Court of Appeals has recently written at length upon the New York law of punitive damages. Roginsky v. Richardson-Merrell, Inc., Docket No. 30629, 378 F.2d 832 (2d Cir. April 4, 1967).
That decision announced two governing principles: (1) New York law does not impose punitive damages on a corporation unless its "management," i. e., its officers or directors, participated in or authorized or ratified the conduct complained of; (2) there must either be an actual intent to injure plaintiff or recklessness which is "close to criminality" (p. 1831).
Williams was a part of defendant's "management." Defendant is bound by his acts. But his conduct does not meet the second test. Granted that his investigation of plaintiff's claim was not thorough and may even be thought to have been negligent, plaintiff has not proved that Williams intended to injure her or that he was so recklessly indifferent to her rights as to be guilty of conduct which was "close to criminality." In Roginsky, the Court of Appeals held, on evidence which to my mind was stronger in favor of plaintiff than the evidence here, that it was error to submit the issue of punitive damages to the jury. In other words, the court held as a matter of law that plaintiff was not entitled to such damages. I need not go that far in this non-jury case. As trier of the fact I find and conclude that Williams' conduct was not of the type which entitles plaintiff to punitive damages under New York law as interpreted and applied in Roginsky.
Miss Jones' conduct presents a somewhat different problem. She was a subordinate employee. She was not part of defendant's "management" as defined in Roginsky. Hence the first requisite is not met, and if the Roginsky rule is to be taken as applying to every case, that is an end of the matter.
But it is not clear that the Court of Appeals intended the Roginsky rule to be applied to every case. It there said (p. 842 n. 17):
...
To continue reading
Request your trial
-
Globus v. Law Research Service, Inc.
...401, 223 N.Y.S.2d 488, 179 N.E.2d 497 (1961); Roginsky v. Richardson-Merrell, Inc., 378 F.2d 832 (2d Cir. 1967); Smith v. Little, Brown & Co., 273 F.Supp. 870 (S.D.N.Y.1967), the Court submitted to the jury the question of whether punitive damages should be awarded. In its original charge t......
-
Love v. Kwitny
...that no apportionment is necessary in cases involving willful plagiarism. He points out that plaintiff in Smith v. Little, Brown & Co., 273 F.Supp. 870, 874 (S.D.N.Y.1967), aff'd, 396 F.2d 150 (2d Cir. 1968), was awarded all of defendant's profits even though the material plagiarized in tha......
-
Pirre v. Printing Developments, Inc.
...we would not find Sorenson's conduct such as to require that he or his employer be made an example of, cf. Smith v. Little Brown & Co., supra, 273 F.Supp. at 874. As we have indicated, it is our view that he was guilty only of bad judgment in responding to the peculiarities of plaintiff's c......
-
AITKEN, HAZEN, HOFFMAN, ETC. v. Empire Const. Co.
...from the gross profit of the infringer. Wilke v. Santly Bros., 139 F.2d 264, 265 (C.A. 2nd Cir. 1943); Smith v. Little, Brown & Co., 273 F.Supp. 870, 874 (U.S.D.C. S.D.N.Y. 1967), aff'd, 396 F.2d 150 (C.A. 2nd Cir. 1968). The burden is upon the defendant infringer to prove the actual expend......