Ziegelheim v. Flohr

• Decision Date: 19 January 1954
• Docket Number: No. 12880.,12880.
• Citation: 119 F. Supp. 324
• Parties: ZIEGELHEIM v. FLOHR et al.
• Court: U.S. District Court — Eastern District of New York

119 F. Supp. 324

ZIEGELHEIM v. FLOHR et al.

No. 12880.

United States District Court, E. D. New York.

January 19, 1954.

Judah B. Felshin, New York City, for plaintiff.

Lawrence H. Levinson, New York City, for defendants.

INCH, Chief Judge.

Plaintiff sues for infringement of a copyrighted Hebrew prayer book printed and published by him in 1943, and for unfair competition.

The defendants' answer denied material allegations of the complaint and set up nine separate defenses which may be stated as follows: That plaintiff's book was not copyrightable; that it was not original with plaintiff and did not contain any original plan or arrangement; that plaintiff had made piratical use of other books and, therefore, did not obtain a valid copyright and was himself guilty of inequitable conduct; that plaintiff had published his book prior to the date of his alleged copyright; that the text of plaintiff's book was in the public domain; that the portions of said book allegedly taken by defendants were unimportant, unsubstantial and trivial in nature; that plaintiff failed to comply with the statutory requirements by delaying the registration of the alleged copyright for almost nine years after publication and by reason thereof abandoned the copyright; that defendants published their book prior to plaintiff's perfection of his alleged copyright and that defendants have ceased and desisted from the further publication and sale of their book.

At the trial it was established that plaintiff is a publisher, printer, binder and retailer of Hebrew religious books. He carries on his business in Manhattan under the name of "Ziegelheim, New York", and he is the only publisher named "Ziegelheim" in the United States. In Vienna in 1920 he published a Hebrew prayer book known as a "Sliccoth" or "Slicha". (Plaintiff's Exhibit 1). This book, like other Sliccoths, contained the ancient Hebrew prayers of Sliccoth, together with a Jewish translation, and was used in synagogues the week before Hebrew New Year and the week between Hebrew New Year and the Day of Atonement. Admittedly, plaintiff's 1920 book was in the public domain.

Plaintiff came to the United States in 1938 and in 1943 published a new edition of the 1920 book. This 1943 book (Plaintiff's Exhibit 2) is plaintiff's copyrighted book in suit.

Defendant, Aaron Flohr, is a publisher and dealer of Hebrew books in Brooklyn, N. Y. and in June 1952 published a Sliccoth by a photo offset process. (Plaintiff's Exhibit 4. (Hereinafter Aaron Flohr will be referred to as the "defendant" and the liability of his son and wife, the other defendants herein, will be discussed below.) Despite the defendant's denial, there can be no doubt that, except for the title page and some changes in the page numbering, he caused plaintiff's entire 1943 copyrighted book to be photographically copied by photo offset process and included in his own 1952 book. Thus defendant photographically copied 415 pages of plaintiff's copyrighted book, mistakes and all, and made them part of his book. In addition, defendant's book is of a slightly different size and has a different color cover, and the text begins on the left rather than the right-hand page as appears in plaintiff's book, and defendant added 47 additional pages of prayers at the end of his book. Also, it is significant that defendant's book was published without the name of any publisher appearing therein.

Plaintiff testified that he purchased mats for his 1920 book, together with extra mats, from one Zederbaum in Petrikoff, Poland, in 1919 or 1920 and that he brought these old mats with him to the United States. It was his testimony that in preparing this 1943 book in suit he started with the old mats from the 1920 book; that his son worked over a period of four to five months correcting and making changes in approximately 300 of the 416 old mats, and in making about 150 new mats, all at a cost of $1,200 to $1,300, and that the 1943 copyrighted book was printed from these corrected and new mats.

It was defendant's contention at the trial that plaintiff's alleged corrections were trivial; that they made no addition to the text nor any change in its continuity; that they involved no element of original authorship and amounted only to minor typographical corrections which did not entitle plaintiff to a copyright. Defendant further contended that these corrections appeared in earlier Sliccoths, all of which were in the public domain (Defendants' Exhibits A, C, D and E), and that plaintiff, in fact, copied them by a photographic process mainly from a book in the public domain identical with Defendants' Exhibit C.

This was the main issue at the trial, and it should be stated that the Court has had considerable difficulty in making a determination from the testimony and the various books submitted as exhibits. In addition to the fact that all the books are printed entirely in Hebrew with Jewish translations, the pages of the defendants' book are numbered almost exclusively with Hebrew numbers, and the pages of plaintiff's book, and most of the other books submitted, contain arabic numerals which are not in consecutive order and in many instances are repetitious. However, after a laborious search for the numerous pages, words and letters to which the witnesses and parties referred, and after a painstaking physical comparison of several hundred pages of the Hebrew and Jewish texts involved, and having considered them together with the testimony at the trial, I am satisfied that plaintiff has sustained the burden of proving that he is the owner of a valid copyright which defendant has infringed.

The law applicable to the validity of this copyright is found in Alfred Bell & Co. v. Catalda Fine Arts, 2 Cir., 191 F.2d 99, 102-103, where the Court said in part:

"It is clear, then, that nothing in the Constitution commands that copyrighted matter be strikingly unique or novel. Accordingly, we were not ignoring the Constitution when we stated that a `copy of something in the public domain' will support a copyright if it is a `distinguishable variation'; or when we rejected the contention that `like a patent, a copyrighted work must be not only original, but new', adding, `That is not * * * the law as is obvious in the case of maps or compendia, where later works will necessarily be anticipated.' All that is needed to satisfy both the Constitution and the statute is that the `author' contributed something more than a `merely trivial' variation, something recognizably `his own.' Originality in this context `means little more than a prohibition of actual copying.' No matter how poor artistically the `author's' addition, it is enough if it be his own. Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 250, 23 S.Ct. 298, 47 L.Ed. 460."

Thus the test to be applied to plaintiff's 1943 book is whether it was a "distinguishable variation" from his 1920 book and other books in the public domain, whether he "contributed something more than a `merely trivial' variation, something recognizably `his own.'"

While I have some doubt on this record as to the technical process used by plaintiff in correcting and changing the text of his 1920 book, that, is, whether it was done by using hand tools on old mats and by making new mats, as claimed by plaintiff, or whether it was done by photographically copying various pages from other Sliccoths in the public domain, notably Defendants' Exhibit C, or possibly by a combination of both processes, the fact remains that plaintiff's book is different from any other book published up to that time. It is true that many of plaintiff's alleged "changes" resulted in nothing more than making the 1920 text clearer and more legible in the 1943 edition. Nevertheless, there are numerous instances where letters, words or lines of the text were added, deleted or rearranged, so that the differences between the 1920 and 1943 editions are...