95

nal compilation and does not justify appropriation. The reason for a strict rule in this class of cases is that it is easy to claim that the matter has been verified when, as a matter of fact, it has been very imperfectly verified or not at all.96 It is a fair and legitimate use of a rival directory, however, to use it for the purpose of ascertaining where a particular person lives,97 or to ascertain whether or not it is worth while to call on him,9 98 or to

the facts, which is the exact use to which the compiler has dedicated his book." Hartford Printing Co. V. Hartford Directory, etc., Co., 146 Fed. 332, 334.

SO

97. Social Register Assoc. V. Murphy, 128 Fed. 116; List Pub. Co. v. Keller, 30 Fed. 772; Morris V. Wright, L. R. 5 Ch. 279.

[a] Fair use illustrated. "In List
Pub. Co. v. Keller, 30 Fed. 772,
Judge Wallace said of publications
of this character: "They are de-
signed to provide a catalogue, in
convenient form, of the names and
addresses of a selected class of
eligible persons. They are original |
to the extent that the selection is
original. Their commercial value de-
pends upon the judgment and knowl-
edge of the author respecting the
social standing and society relations
of a limited class of the general pub-
Either of the present
parties could lawfully use a general
city directóry to obtain the correct
addresses of the selected persons;
nor is it doubted that the defendant
has the right to use the complain-
ant's book for the purpose of veri-
fying the orthography of the names

or the correctness of the addresses
of the persons selected. But if the
defendant has used the list to save
himself the trouble of making an
independent selection or classifica-
tion of the persons whose names ap-
pear in the Social Register, although
he may have done so only to a very
limited extent, he has infringed the
While so
complainant's copyright.'
use of
extended a
a general city
directory
not
would probably
be
justified by the weight of authority,
yet, if the defendant had first com-
piled a list of residents of Newport,
Jamestown, and vicinity, it is not
clear that he might not use the
example, for the limited purpose of
complainant's Washington list, for
finding the winter addresses of a
small number of persons. A like
question arises in relation to the
Boston and Baltimore Registers. It
should be observed, however, that by
recourse to the complainant's publi-
cation the defendant would receive
information of a different character
from that afforded by an ordinary
directory with the ordinary alpha-
betical classification, for he would
be informed as to the group of per-
sons constituting a household. and
also as to the maiden rames of
married women. This information
was the product of the complain-
ant's labor and expense, and the
complainant is entitled to protection
in its use." Social Register Assoc.
v. Murphy, 128 Fed. 116, 119.

95. Sampson, etc., Co. v. SeaverRadford Co., 140 Fed. 539, 72 CCA 55 [rev 134 Fed. 890]; Kelly v. Morris, L. R. 1 Eq. 697, 702 (where defendant was held to have infringed, the court saying: "What he has done has been just to copy the Plaintiff's book and then to send out canvassers to see if the information so copied was correct"); Cartwright v. Wharton, 25 Ont. L. 357, 1 DomLR 392, 20 OntWR 853. But see Moffatt & Paige, Ltd. v. George Gill & Sons, Ltd., 86 L. T. Rep. N. S. 465 (dis-lic. cussed supra § 307 note 83 [a]). [a] Illustrations.-(1) "What the respondent has done is clearly a republication of the complainant's copyrighted matter. With reference to each name, the words and the arrangement of the words were primarily taken from the complainant's dirctory, and they were republished in the respondent's directory. It is true that the words thus taken from the complainant's directory, having been 'slipped,' as it were, passed through the hands of canvassers; but this was not original work. It was only a verification of what was found in the complainant's directory, that this incidental work only completes and makes certain the connecting link between the two publications. Therefore we start with what, on its face, is infringing matter." Sampson, etc., Co. v. Seaver-Radford Co., 140 Fed. 539, 543, 72 CCA 55 [rev 134 Fed. 890]. (2) "The plaintiff, however, is not in this case driven to depend solely on the evidence of common errors, because, while the defendant says he got much of his material from other sources and no doubt he did-he admits that he got much of it from the plaintiff's publication. He says that the first thing he did in preparing his material was to send to each barrister and solicitor in the Dominion what he called a correction slip, which contains the solicitor's name, and, in the case of a firm, the names of each member. With each slip was sent a circular stating that the defendant was preparing an improved Law List for 1911, and requesting the person to whom it was sent to return the slip with any suggested corrections. The de98. Morris v Wright, L. R. 5/ Ch. fendant took the names of most, if 279 [foll Edward Thompson Co. V. not all, of those to whom he sent American Law Book Co., 122 Fed. these correction slips from the plain-922, 59 CCA 148, 62 LRA 607 (rev tiff's publication. Many, but not 121 Fed. 907)]. nearly all, of these correction slips were returned to the defendant in due course. From these and from the plaintiff's lists, which he also used for that purpose, he prepared for the Registrar or other official of the Court at the county town of each county in the Dominion a list of the barristers and solicitors in that county. requesting the official to correct the list and return it to him with any alterations in or additions thereto." Cartwright v. Wharton, 25 Ont. L. 357, 359, 1 DomLR 392, 20 OntWR 853 (holding that such list was an infringement).

697.

96. Kelly v. Morris, L. R. 1 Eq. Proof of copying see infra §§ 424

430.

v. Wharton, 25 Ont. L. 357, 1 DomLR 392, 20 OntWR 853.

[a] Result of decisions summarized "Where they have been prepared like the complainant's directory, by original canvassing or other original work, especially at considerable expense, the rule, both at the beginning and at the end, is laid down in general terms as follows: In the beginning, in Lewis v. Fullarton, 2 Beav. 6, 17 EngCh 6, 48 Reprint 1080, Lord Langdale, referring to a gazetteer, said, at page 8: 'Whilst all are entitled to resort to common sources of information, none are entitled to save themselves trouble and expense by availing themselves, for their own profit, of other men's work still subject to copyright and entitled to protection.' Also, at the end, in 1874, in Hogg v. Scott, L. R. 18 Eq. 444, 458, referring to a copyrighted compilation for the use of fruitgrowers, Vice Chancellor Hall, after citing Morris v. Wright, L. R. 5 Ch. 279, and Kelly v. Morris, L. R. 1 Eq. 697, said: "The true principle in all these cases is that not at defendant is liberty to use or avail himself of the labor which the plaintiff has been at for the purpose of producing his work; that is, in fact, merely to take away the result of another man's labor, or, in other words his property."" Sampson, etc., Co. v. SeaverRadford Co., 140 Fed. 539, 542, 72 CCA 55 [rev 134 Fed. 890]. [b]

the

"The question of fair use must depend to a considerable extent upon actual conditions and practical business considerations. It is unnecessary to adopt for this case the strict rule that no use of directories of this class can be made in It is the compiling of other lists. enough that we look at the substanproperty rights, and inquire whether tial character of the complainant's the defendant has derived a substantial benefit from the complainant's labors, and has, in any substantial respect, interfered with the plainant by using material which is the property of the complainant." Social Register Assoc. v. Murphy, 128 Fed. 116, 119.

com

3. Sampson, etc., Co. v. SeaverRadford Co., 140 Fed. 539, 72 CCA 55 [rev 134 Fed. 890]; Bain v. Henderson, 16 B. C. 318.

[a] Difference in date as of which facts are stated. "The suggestion made by the learned Judge of the Circuit Court, arising out of the fact that each of the two directories has a different outlook, in having a different date of publication, does not seem to have received any sup99. Hartford Printing Co. v. Hart-port from any of the decided cases ford Directory, etc., Co., 146 Fed. 332; Dun v. International Mercantile Agency, 127 Fed. 173 (credit ratings). See also supra § 307.,

[al Verification of names and addresses.-The later compiler of a directory may use the first compiler's book for the purpose of verifying the orthography of the names or the correctness of the addresses of the persons selected. List Pub. Co. v. Keller, 30 Fed. 772.

whatever the result of each. On the other hand, while none of them has expressly referred to this suggestion, all or nearly all of them disregard it, and thus, by implication, indicate that the distinction arising out of the fact of differences of time to which the directories in question have relation is not a substantial one. Certainly the injury which such republications inflict on the owners of copyrighted directories, and the undermining of the markets of the 2. Sampson, etc.. Co. v. Seaver- original publishers arising thereRadford Co., 140 Fed. 539, 72 CCA from, if permitted, may be so seri55 [rev 134 Fed. 8901; Morris v. Ash- ous that it is impossible to assume bee, L. R. 7 Eq. 34; Bain v Hender- that the use to which the respondent son. 16 B. C. 318: Kelly v. Hodge, put the complainant's publication, in 29 L. T. Rep. N. S. 387; Cartwright the manner we have expressed, is

1. See cases passim.

[309] (3) Dictionaries. The compiler of a dictionary has a right to make use of a previously published dictionary as a source of information, but he has no right to copy its arrangement and definitions.*

[310] (4) Law Books. Law books of all kinds belong broadly to the class of compilations, and on a question of infringement the general rules as to infringement of other kinds of compilations are fully applicable. But they also belong to the class of works treating of the arts and sciences, the publication of which implies consent to some use of them by subsequent writers, to the end that there may be progress in the particular art or science, and this affects the question of what constitutes infringement of law books. They are also distinguished from pure compilations in that there is room for an original literary element, and they may be works of literature in the highest sense.' The question of what constitutes an infringement of copyright of various classes of law books has been often before the courts.

tracts may be taken from legal textbooks and encyclopedias within the limits of fair use already stated. This must not be carried to the point where the value of the prior book is sensibly diminished, or the labors of the prior writer substantially appropriated to an injurious extent, or so that the later book will to any extent supersede the prior book by reason of the matters taken.10 So a prior textbook or encyclopedia may be used as a mere guide to the decisions or other original sources of information, and if such original sources are bona fide consulted, and independently used in the preparation of the later book, there is no infringement." But if the subsequent writer merely copies or paraphrases matter in a prior copyrighted book, in order to save himself the labor of independently producing it from the original sources, he is guilty of infringement.12 This includes copying the citations of a prior book together with their collocation with particular propositions, without independent resort to the original sources.13 Even the index to a legal work may be infringed if it is copied, although it will not be infringed where the the labors of the profession. It of the copyrighted work has been would be a serious blow to jurispru- copied, either in haec verba or by dence were the rule enunciated that colorable variation." Edward Thompthe author of a law book is pre- son Co. v. American Law Book Co., cluded from taking a list of authori- 122 Fed. 922, 923. 59 CCA 148, 62 ties cited by a previous writer on LRA 607 [rev 121 Fed. 907]. (2) the same subject and making an in- "To that extent complainant had, by dependent examination of them. In- original research, blazed the way dividuals might profit but the de- through the wilderness of the revelopment of legal science would be ports, and marked out where timber hampered by such a rule,-a rule not for each particular article might be of advancement but of retrogres- found. With complainant's work besion." Edward Thompson Co. fore him, a student, a practicing lawyer, or a writer could more quickly get in touch with the body of judicial deliverances on the particular subject he had in hand, than he could if he had only the digests and other available publications. does not follow, though, that, when he availed himself of this short cut which complainant had laid out, he made any illegitimate use of complainant's work. The encyclopaedia

Textbooks and encyclopedias. Quotations and exwithin any implied consent, such as we have said attaches with regard to copyrighted matter." Sampson, etc., Co. v. Seaver-Radford Co., 140 Fed. 539, 543, 72 CCA 55 [rev 134 Fed. 890].

4. Chils v. Gronlund, 41 Fed. 145; Spiers v. Brown, 6 Wkly. Rep. 352; Beauchemin v. Cadieux, 10 Que. K. B. 255, 22 Que. Super. 482 [app dism 31 Can. S. Č. 370, 2 ComL 170].

V.

922, 925, 59 CCA 148, 62 LRA 607

7. Blackstone's Commentaries is a classic example.

8. See cases this section passim. Proof of copying see infra § 424 et seq.

[a] Use of dictionaries. In a suit for the infringement of copyright in a Swedish-English dictionary, plain-American Law Book Co., 122 Fed. tiff's evidence tended to show that his book contained about thirty [rev 121 Fed. 907]. thousand Swedish words in most common use, with short English definitions, which he composed; that defendant's book contained about ten thousand of the same Swedish words and a few other words, with similar English definitions, made by taking plaintiff's book and striking out English words with their definitions, slightly changing the definitions of those remaining, adding a few other Swedish words with their definitions, and printing the result, omitting the root in succeeding words with different terminations from the same root. In sustaining the verdict of the jury. in so far as it was for plaintiff, the court said:

"The jury must have found that the plaintiff's composition of English definitions accompanying the Swedish words was copied. Each Swedish word was a topic for the composition of an English definition; and the plaintiff's copyright would protect his literary work in composing them, however short they might be upon each topic. The omission of the roots of words following those in which they were printed, left them to be understood; and they were represented by the space, in connection with the terminations as fully as if there, in making out the words." Gronlund, 41 Fed. 145, 146. 5. See supra §§ 307-309. 6. West Pub. Co. Edward Thompson Co., 176 Fed. 833, 100 CCA 303 [mod 169 Fed. 8331; Sampson. etc., Co. v. Seaver-Radford Co., 140 Fed. 539. 72 CCA 55 [rev 134 Fed. 8901: Edward Thompson Co. V. American Law Book Co., 130 Fed. 639 [aff 157 Fed. 1003, 85 CCA 677 (app dism 216 U. S. 625. 30 SCt 576. 54 L. ed. 642)]; Edward Thompson Co. v. American Law Book Co., 122 Fed. 922, 59 CCA 148. 62 LRA 607 (rev 121 Fed. 9071: Mead v. West Pub. Co., 80 Fed. 380.

V.

Chils v.

Radford Co., 140 Fed. 539, 72 CCA
9. Sampson, etc., Co. v. Seaver-
55 [dist Edward Thompson Co. v.
American Law Book Co., 122 Fed.
922, 59 CCA 148,. 62 LRA 607]. See
also supra §§ 280, 288, 299, 300.
10.

White v. Bender, 185 Fed. 921.
See also supra § 300.

V.

11. George T. Bisel Co. v. Bender,
190 Fed. 205; White v. Bender, 185
Fed. 921; West Pub. Co. v. Edward
Thompson Co., 176 Fed. 833, 100 CCA
303 [mod 169 Fed. 8331; Edward
Co.
Thompson
American Law
Book Co., 130 Fed. 639 [aff 157 Fed.
1003, 85 CCA 677 (app dism 216 U. S.
625, 30 SCt 576, 54 L. ed. 642)]; Ed-
ward Thompson Co. V. American
Law Book Co., 122 Fed. 922, 59 CCA
148, 62 LRA 607 [rev 121 Fed. 907];
Mead v. West Pub. Co., 80 Fed. 380.

[a] Rule applied.-(1) "Is a copy-
righted law book infringed by a sub-
sequent work on the same subject
where the only accusation against
the second author is that he col-
lected all available citations, includ-
ing those found in the copyrighted
work, and, after examining them in
text-books and reports, used those
which

he considered applicable to support his own original text? We are of the opinion that this question must be answered in the negative. The doctrine contended for by the complainant extends the law of copyright beyond its present bounds and if pushed to its logical conclusion will inflict a far greater injury upon literature than it can ever expect to prevent. If it be held that an author cannot consult the authorities collected by his predecessors, the law of copyright, enacted "The literature of the law as it promote the progress of science and exists to-day is the result of evolu- useful arts. will retard that progress. tion. Each author has had the bene- It will be found upon examining the fit of all that preceded him and has reported cases that there has been thus been able to add something to a finding of noninfringement unless the common fund intended to lighten it appears that the whole or a part

to

It

was designed, prepared, and pub-
lished, in part, to give just such in-
formation to persons who might con-
sult it, and one who bought it bought
with it the right to use it as a ready
reference to authorities bearing on
the subject of his investigations.
Had the defendant confined itself to
such a use of the material which
complainant had gathered by inde-
pendent search outside of the di-
gests, complainant would have no
just cause of complaint." Per La-
combe, J., in Edward Thompson_Co.
v. American Law Book Co., 121 Fed.
907, 909. (3) This concise and ac-
curate statement of the rule was
reaffirmed and applied on appeal, but
the finding that defendant had "gone
further" and copied lists of cases,
and therefore had infringed was re-
versed, the court of appeals pointing
out that neither the text nor the
lists of cases had been copied, and
that the only use made of the lists
was "as
to
a guide the volumes
where the cases were reported." Ed-
ward Thompson Co. V. American
Law Book Co.. 122 Fed. 922, 923, 59
CCA 148, 62 LRA 607.

12. George T. Bisel Co. v. Bender, 190 Fed. 205; White v. Bender, 185 Fed. 921.

13. George T. Bisel Co. v. Bender, 190 Fed. 205; White v. Bender, 185 Fed. 921. 925.

"I think it well decided that a subsequent author may use and copy the citations of a prior author, provided he examines and verifies such cases before using them. He may use them in the same order as did his predecessor. He may use them all, or add to or subtract from. The question is: Does he do original work or merely copy?" White v. Bender,

supra.

14

similarities and identities are due to coincidence and
the necessities of the case instead of to copying.1
Of course a prior book may be used for verification
and checking for errors and omissions,15 in accord-
ance with the general rules applicable to all com-
pilations.16

[§ 310

of the court used in the opinion, or of earlier recompiled digests, from which sources the digester selected and arranged them, because even compiled matter may not be copied from a copyrighted compilation, but must be independently selected from the common sources if it is desired to use it.23 So it is an infringement to copy the citations of cases in a digest and to use them as notes in support of text statements, without independent resort to the cases themselves, because this is a copying of the digester's collocation of cases with propositions.24 The arrangement or classification of cases in a digest may not be lawfully copied, although if the same arrangement is independently produced there is no infringement.25 As in the "directory cases, the only fair use of a digest is the use for which it was published, namely, as an index or guide to the authorities, and for the purpose of ascertaining whether it is worth while to examine the case with a view to using it if found appropriate.26 plied license of fair use does not extend to copying The imto save labor in another work on the same subject, and the advancement of science and learning would not be promoted by such a construction of the law. Reports. Copyrighted law reports may be infringed either by another edition of such reports, or by a digest or text work.27 The copyright of

same

and

other hand, extensive copying or On the paraphrasing of the language of the syllabi would not, we think, be a fair use." West Pub. Co. v. Edward CCA 303 [mod 169 Fed. 833]. Thompson Co., 176 Fed. 833, 838, 100 23. See supra § 307. [a] Contrary view-Digest syllabus paragraphs, stated in language substantially to be found in an subject to copyright so far as they official opinion of the court, are only vary from the statement of the point as contained in the original source. West Pub. Co. v. Edward Thompson Co., 169 Fed. 833 [mod on grounds 176 Fed. 833, 100 CCA 303]. other (But this view overlooks the fact that copyright on compilations covers the intellectual labor of selection). 24. Banks v. McDivitt, 2 F. Cas. No. 961, 13 Blatchf. 163 (annotated court rules).

Digests. It has been said that a legal digest "has the general characteristics of a directory, an index or a road book," and the same rules of infringement have been declared applicable.18 Indeed, a stricter rule has been declared applicable "in cases where syllabi and summaries of law and fact are appropriated" and an attempt is made "to coin money out of another's labor. 99 19 may, digests are substantially "directories" to the Be that as it decisions in the reports, and, on a question of infringements of digests, the doctrine of the "directory cases 20 will be applied.21 It is an infringement of the copyright on the digest for the compiler of an encyclopedia of law to copy or paraphrase the digest paragraphs or points, thereby saving the labor and skill involved in deriving, selecting, and stating such points from the cases themselves by appropriating the labor and skill of the digester;22 and it is immaterial whether the digest paragraphs so taken are stated in the original language of the digester, or are stated in the language 14. White v. Bender, 185 Fed. 921. | American and English Encyclopædia | are sold, and to be fair. See also supra § 306. [a] "As to indexes, the particular the Encyclopædia of Pleading and of Law, first and second editions, and form and wording of a prior index Practice were held to infringe the may or may not be used, depending American Digest System. on circumstances and the contents of the books. Both authors (in a book decree in this case 184 Fed. 749). See final relating to corporations) would nat-viously it would not be fair for any [a] Fair use urally use the words, 'Business, place publisher of reports of the of digests."Obof, organization, change of, change of place of;' 'Directors, and, as subcases or of digests of them to copy heads, qualifications, duties, resigna- phrase syllabi from the complainlists of cases or to copy or paration, liability, etc. We would expect much duplication, inasmuch as ant's publications whether by so dothe words are used in the statutes, ing he merely saved mechanical labor and must or should be arranged in or literary work. This would be true alphabetical order. But all this does of any publication similar not permit mere copying, assuming a fair use of copyrighted material in former copyrighted publication. to a we have originality in But author." the White v. Bender, 185 Fed. first a different publication 921, 925. broader. may Suppose one were to issue be a map of Kansas showing the annual amount and value of the chief products of each county. person writing a history of Kansas Could not a take those amounts and values bodily into his text? May not one reprint English love songs open to the pubout of a copyrighted compilation of English literature? lic one or more for use in a work on books and volumes of reported cases is a great difference between textWe think there cyclopedias under consideration are or digests of those cases. really collections of text-books. The enheadnotes of reported cases are The digest of the law and facts of those cases, and digests of headnotes of various cases constitute collections and classified arrangements of decisions. On the other hand, a textbook states the principles of law and refers generally in footnotes to cases supporting or illustrating the propositions in the text. novel or a history or a directory or a A poem or a dictionary or a scientific treatise is intended to please, interest, instruct, or satisfy the reader, so to speak, in itself; but a digest considered by itself is nothing. opinions, tool to enable judges to write their Its purpose is as a briefs, and authors to write their lawyers to write their text-books. Such persons may cut out parts of the digests to assist them in running down the cases and copy lists of cases from the digests, as many of the defendant's writers have done. Such a use of the digests seems to us, differing in this respect from the court below, to fall directly within the purpose for which they

15. Edward Thompson American Law Book Co., 130 Fed. 639 Co. V. [aff 157 Fed. 1003, 85 CCA 677 (app dism 212 U. S. 625, 30 SCt 576, 54 L. ed. 642) 1.

16. See supra § 307. 17. West Pub. Co. v. Lawyers' Coop. Pub. Co., 64 Fed. 360, 366, 25 LRA 441 [rev on other grounds 79 Fed. 756, 25 CCA 648, 35 LRA 400]. 18.

Banks v. McDivitt, 2 F. Cas. No. 961, 13 Blatchf. 163.

19. Dun V. Lumbermen's Credit Assoc., 209 U. S. 20, 22, 28 SCt 335, 52 L. ed. 663, 14 Ann Cas 501. 20. See supra § 308. 21. West Pub. Co. Thompson Co., 169 Fed. 833 [mod on V. Edward other grounds 176 Fed. 833, 100 CCA 303].

[a] Directories and digests compared. Digests contain lists of the names of cases; direcclassified tories contain names of Digests give the report, volume, and persons. page where the cases named will be found. Directories give the street, and number where the person town, named will be found. and compile information as Digests state holdings of cases. to the Directories state and compile information, as to the residence, occupation, credit ratings, etc., of individuals. complete. The parallel is Digests, however, have more of a literary element than directories, which gives room for paraphrasing, dictionaries, and facilitates proof of copying. 22. West Pub. Co. Thompson Co., 176 Fed. 833. 100 CCA V. Edward 303 [mod 169 Fed. 833] (where the

or

even

a

[a] Rule applied-Where a legal
add the citations shown by all of the
his direction to his stenographer to
writer has formulated a proposition,
copyrighted digests does not consti-
viously verified the citations and
tute infringement, if he has pre-
found them to be correct.
Co. v. Edward Thompson Co., 169 Fed.
West Pub.
833 [mod on other grounds 176 Fed.
833, 100 CCA 303].
25.

Thompson Co., 169 Fed. 833 [mod on
West Pub. Co. V. Edward
303].
other grounds 176 Fed. 833, 100 CCA

26. See supra § 308.

[a] Illustration.-Law writers may consult copyrighted digests for clues to the holdings of cases as a means of locating cases relating to a particular subject and, subject to verificlassify them under the same legal cation, collect head, without being guilty of incases cited, and fringement, if the literary work or arrangement of the digests is not apThompson Co., 169 Fed. 833 [mod on propriated. West Pub. Co. v. Edward other grounds 176 Fed. 833, 100 CCA 303].

V.

27. Backus v. Gould, 7 How. (U. S.) 798, 12 L. ed. 919; Wheaton v. Peters, 8 Pet. (U. S.) 591, 8 L. ed. 1055; West Pub. Co. Thompson Co.. 184 Fed. 749; West Edward Pub. Co. v. Edward Thompson Co., 176 Fed. 833, 100 CCA 303 [mod 169 Fed. 833]; Sweet v. Benning, 16 C. B. 459, 81 ECL 459, 139 Reprint 838

, same title, page and note number

28

law reports does not cover or protect the opinion of the judges, or other parts prepared by the judges, but it does protect the syllabi and statements of fact, arguments of counsel, and other like matter prepared by the reporter. Accordingly it is no infringement for the publisher of a series of law reports to take and use the opinions of the court, syllabi prepared by the court, or other like uncopyrightable matter from a prior copyrighted edition of the same reports;29 and this rule applies to subsequent encyclopædias, digests, or textbooks.30 But in regard to other matters, the subsequent reporter must confine himself solely to the original sources of information, namely, the opinions of the judges, the records, and the arguments of counsel, from which he must make an independent report of the cases; if he does not resort to the original sources, but in lieu thereof takes the information from the prior copyrighted reports, it is an infringement.31 The headnotes or syllabi paragraphs published by a subsequent reporter or digester must be independently prepared from the opinion, and it is an

Hodges v. Welsh, 2 Ir. Eq. 266; Sweet

v. Shaw, 1 Jur. 917; Butterworth v. Kelly, 4 T. L. R. 430 (a single copy of a reprint of Clark's House of Lords Cases Vol. VII); Butterworth v. Robinson, 5 Ves. Jr. 709, 31 Reprint 817.

[a] iustration of reports infringed by digest.-"The counsel for the defendant also insisted, that the publication by the defendant of a bona fide digest of the first, second, and fifth volumes of Cowen's Reports, and second volume of Wendell's Reports, was not an infringement of the copyright of the plaintiffs to said books; it was a benefit, and not an injury, to those books; and prayed the court so to instruct the jury, that if they found, from the evidence in the case, that the supplement, or third volume of Johnson's Digest, published by the said defendant, was a bona fide digest of the decisions of the cases contained in said volumes, and was published by the defendant in good faith, and not for the purpose of furnishing to the public the matter contained in said volumes in a cheaper form or for a less price than those volumes were sold for; and that said digest was, in fact, a benefit instead of an injury to said volumes, and would promote the sales thereof; that then said publication was no infringement of the plaintiffs' said copyright, and this action could not be sustained, and the defendant would be entitled to their verdict. But the court refused so to instruct the jury; but did charge and instruct the jury, that if the defendant had transferred to his said digest any part of the matter contained in the indexes of said first, second, and fifth volumes of Cowen's Reports, second volume of Wendell's Reports, and thus availed himself of the labor of others contained in books of which the plaintiffs held the copyright, the plaintiffs were entitled to their verdict."

or

36

infringement to copy or paraphrase those in the prior report,32 or to use them in any way, directly or indirectly, in order to derive suggestions therefrom, or for the purpose of saving himself labor.33 He may use the copyrighted matter in the preparation of his own work, to verify its accuracy or to detect errors, omissions, or faults; 34 but in all other respects he must investigate for himself and do his own work.35 He cannot exclusively and evasively use the notes already collected and embodied by the skill, industry, and expenditure of another. A copyrighted syllabus to a legal opinion may be infringed without reproducing its original language; it is the unfair appropriation of the original compiler's labor that constitutes the offense; identity of language will often prove that the offense was committed, but it is not the sole proof, and when the offense is proved, relief will be afforded, irrespective of any similarity of language."7 The arrangement of reported cases in sequence, their paging and distribution into volumes, are not protected by copyright, and it is no infringement to 28. See supra § 134.

29. Banks v. Manchester, 128 U. S. 244, 9 SCt 36, 32 L. ed. 425 [aff 23 Fed. 1431; West Pub. Co. v. Lawyers' Co-op. Pub. Co., 64 Fed. 360, 25 LRA 441 [rev on other grounds 79 Fed. 756, 25 CCA 648, 35 LRA 400].

30. West Pub. Co. v. Lawyers' Coop. Pub. Co., 64 Fed. 360, 25 LRA 441 [rev on other grounds 79 Fed. 756, 25 CCA 648, 35 LRA 400].

[a] Right to digest reports. "A digest undoubtedly may be made from the published reports, without necessarily subjecting the compiler to a charge of piracy; for instance, where the party applies the exertion and skill of his own brain in extracting the principle or the substance of the decisions before him, dressing it up in his own language, so as to produce an original work." Sweet v. Benning, 16 C. B. 459, 482, 81 ECL 459, 139 Reprint 838.

31. Callaghan v. Myers, 128 U. S. 617, 9 SCt 177, 32 L. ed. 547; Wheaton v. Peters, 8 Pet. (U. S.) 591, 8 L. ed. 1055 [expl Callaghan v. Myers, 128 U. S. 617, 9 SCt 177, 32 L. ed. 547; Gray v. Russell, 10 F. Cas. No. 5,728, 1 Story 11] (Wheaton's Supreme Court Reports infringed by Peters' Condensed Reports).

[a] The leading case is Callaghan v. Myers, 128 U. S. 617, 659, 9 SCt 177, 32 L. ed. 547 [aff 20 Fed. 441, 5 Fed. 726, 10 Biss. 139, with modifications] (where the court said: "We concur in the views stated by Judge Drummond, in his decision in the Circuit Court, in regard to volumes 32 to 38. He says, (10 Biss. 139, 147:) 'Undoubtedly, it was competent for an editor to take the opinions of the Supreme Court, and possibly from the volumes of Mr. Freeman, and make an independent work; but it is always attended with great risk for a person to sit down, and, with the copyrighted volume of law reports before him, undertake to make an independent report of a case. It is not difficult to do this, going to the original sources of informa[b] Classified reprint of cases.- tion, to the decisions of the court, Where defendant reprinted the facts the briefs of counsel, the records on and the judgments, copying them file in the clerk's office, without refrom plaintiff's work and arranging gard to the regular volumes of rethem alphabetically under appropriate ports. Any one who has tried it can heads and it was held that the mere easily understand the difference befact of their being so analytically tween the head-notes of two persons, arranged did not constitute the equally good lawyers; and equally piratical publication a new work, so critical in the examination of an as to protect its author and publisher opinion, where they are made up infrom the consequences of his unau- dependent of each other; and, bearthorized invasion of plaintiff's copy-ing in mind this fact, it seems to be right. The injunction prayed for was accordingly granted. Butterworth v. Robinson, 5 Ves. Jr. 709, 31 Reprint 817.

Backus v. Gould, 7 How. (U. S.) 798, 800, 12 L. ed. 919.

Competition unnecessary see supra § 282.

beyond controversy, that although
in many, and perhaps most instances,
there is a very considerable differ-
ence between the head-notes of de-
fendants' volumes and those of the
plaintiff, the latter have been freely |

used in the preparation of the former. I conclude, therefore, that the defendants have, in the preparation of those volumes, from 32 to 38 inclusive, of the Illinois Reports, used the volumes of the plaintiff so as to interfere with his copyright' ").

32. Callaghan v. Myers, 128 U. S. 617, 9 SCt 177, 32 L. ed. 547; Backus v. Gould, 7 How. (U. S.) 798, 12 L. ed. 919; West Pub. Co. V. Edward Thompson Co., 184 Fed. 749 (where the National Reporter System was held infringed by the American and English Encyclopædia of Law, first and second editions, and by the Encyclopædia of Pleading and Practice); West Pub. Co. V. Edward Thompson Co., 176 Fed. 833. 100 CCA 303 [mod 169 Fed. 833]; West Pub. Co. v. Lawyers' Co-op. Pub. Co., 79 Fed. 756, 25 CCA 648, 35 LRA 400 [rev 64 Fed. 360, 35 LRA 400]; Sweet v. Benning, 16 C. B. 459, 81 ECL 459, 139 Reprint 838.

[a] Digests compiled by copying headnotes of reports. In a suit by the publishers of a periodical work called "The Jurist" against defendants, for publishing in "The Monthly Digest" portions of reports of cases contained in plaintiff's publication, it appeared that the reports alleged to have been pirated by defendant consisted of double reports in each case -a detailed report of the facts of the case, with arguments and the judgment of the court, and an abstract in the shape of what is commonly called a side or marginal note, which professed to state the principles of law laid down in the case, if any such there were, or a summary statement of the facts and the decision of the court thereon. The compiler of "The Monthly Digest" had taken the short report or headnote verbatim. It was held that this constituted a violation of plaintiff's copyright. Sweet v. Benning. 16 C. B. 459, 81 ECL 459, 139 Reprint 838.

33. West Pub. Co. v. Lawyers' Coop. Pub. Co., 64 Fed. 360, 25 LRA 441 [rev on other grounds 79 Fed. 756, 25 CCA 648, 35 LRA 400].

34. West Pub. Co. v. Lawyers' Coop. Pub. Co., 64 Fed. 360, 25 LRA 441 [rev on other grounds 79 Fed. 756, 25 CCA 648. 35 LRA 400]. See also supra § 307.

35. West Pub. Co. v. Lawyers' Coop. Pub. Co., 79 Fed. 756, 25 CCA 648, 35 LRA 400 [rev 64 Fed. 360, 25 LRA 4411.

36. West Pub. Co. v. Lawyers' Coop. Pub. Co., 64 Fed. 360, 25 LRA 441 [rev on other grounds 79 Fed. 756, 25 CCA 648. 35 LRA 400].

37. West Pub. Co. v. Lawyers' Coop. Pub. Co., 79 Fed. 756, 25 CCA 648, 35 LRA 400 [rev 64 Fed. 360, 25 LRA 441].

pilation instead of independently producing it."

[311] 2. Maps and Charts. Since the natural objects from which maps and charts may be made are open to examination and description by all, a copyright secured in a work of this description does not prevent another author from designing another map or chart by independent labor of his own; but the subsequent compiler may not avail himself of the previous work to the extent of copying it either in whole or in part; he must resort either to independent surveys or to prior works which are not protected by copyright. Otherwise he will be guilty of infringement.19 But the copyright in a map is not infringed unless the work has been copied, either in whole or in part.50 One map is not infringed by another simply because the latter is arranged substantially on the same plan, especially if it does not delineate the same territory.51 Maps and charts not separately copyrighted as such,

38. Banks Law Pub. Co. v. Law-pared by him. This general proposiyers' Co-op. Pub. Co., 169 Fed. 386, tion cannot be doubted. And it may 94 CCA 642, 17 AnnCas 957 [app dism also be said that any person desiring 223 U. S. 738, 32 SCt 530, 56 L. ed. to publish the statutes of a state 636]. But see Callaghan v. Myers, may use any copy of such statutes 128 U. S. 617, 9 SCt 177, 32 L. ed. 547 to be found in any printed book, (where sequence and paging was whether such book be the property relied on as a circumstance, in con- of the state or the property of an innection with others, showing copy- dividual. If Miller had cut from ing). Howell's books, delivered to him by the state, the general laws of Michigan as therein printed, and the pages so cut out had been used when his compilation was printed,-if this had been done, and nothing more, there would have been no ground of complaint. But it is said that he did more than this, and that he appropriated such parts of Howell's books as were the result of the latter's labor and industry." Howell v. Miller, 91 Fed. 129, 137, 33 CCA 407.