78 80 79 83 between them may raise no inference of copying.81 Instances of this occur in the case of mathematical calculations and tables,82 and directories, or other like works.8 In such cases, to sustain the burden of proof, plaintiff must show something more than mere similarity or identity, as, for example, the coincidence of common errors, 85 or a cumulation of unnecessary resemblances such as probably would not arise by mere chance and coincidence.8 In all cases, the weight of mere similarity or identity as evidence of copying depends on the likelihood of its existing in the absence of copying. In the case of compilations of facts and statistics taken [§ 426] (2) Similarity of Works-(a) In General. Since one work may be similar to another without having been derived from, or based on, it,77 mere resemblance between two works does not necessarily show that the one is a piracy of the other. It is merely evidence of copying and is more or less strong according to circumstances." In the case of works of imaginative literature, or of a strikingly original character, any considerable amount of close similarity raises a strong inference of copying. On the other hand, where the works are of such a character that both must be alike if both are equally correct, even complete identity almost every instance of infringe- | 83, 75 CCA 241]; Frank Shepard Co. ment charged by the complainant there has been a failure to produce either the individual canvasser whose work is thus attacked, or his original return to his employer, or even the statement of his name. It is suggested that to a greater or less extent the original documents are lost or destroyed. When it is borne in mind that the defendant has had large experience in the production of directories, and it is further borne in mind that he must have anticipated competition with complainant's work, and a suit of this very character, should the complainant find anything to base it on, it is most extraordinary that he should not have preserved records sufficient to enable him to determine, as to any particular list of names, the identity of the canvasser or canvassers who reported them." Trow Directory, etc., Co. v. Boyd, 97 Fed. 586, 587. 77. See supra §§ 278, 307. 78. McCarthy v. Adler, 227 Fed. 630; Vernon v. Shubert, 220 Fed. 694; Emerson V. Davies, 8 F. Cas. No. 4.436, 3 Story 768; Liddell v. CoppClark Co., 2 OntWR 16; Beauchemin v. Cadieux, 10 Que. K. B. 255, 22 Que. Super. 482 [app dism 31 Can. S. C. 370, 2 ComL 170. 79. Haas v. Leo Feist, Inc., 234 Fed. 105; Gross v. Seligman, 212 Fed. 930, 129 CCA 450; George T. Bisel Co. v. Bender, 190 Fed. 205. con [a] Rule applied to photographs. -"The eye of an artist or a noisseur will, no doubt, find differences between these two photographs. The backgrounds are not identical, the model in one case is sedate, in the other smiling; moreover the young woman was two years older when the later photograph was taken, and some slight changes in the contours of her figure are discoverable. But the identities are much greater than the differences, and it seems to us that the artist was careful to introduce only enough differences to argue about, while undertaking to make what would seem to be a copy to the ordinary purchaser who did not have both photographs before him at the same time. In this undertaking we think he succeeded." Gross v. Seligman, 212 Fed. 930, 931, 129 CCA 450. 80. Colliery Engineer Co. v. United Correspondence Schools Co., 94 Fed. 152. "There are undoubtedly very many closely parallel passages. If the first work were original, it would be entirely clear that the second is a copy; but the first work is itself a compilation, using largely the language of the original books, from which it is taken. Moreover, the very nature of the subject-matter treated of in both series-arithmetic, algebra, geometry, trigonometry, etc. -is such that similarities of definition, explanation, and examples are not so persuasive as they might be were the subject history, literature, art, law, etc." Colliery Engineer Co. V. United Correspondence Schools Co., supra. 81. Dun v. Lumbermen's Credit Assoc., 209 U. S. 20. 28 SCt 335, 52 L. ed. 663, 14 AnnCas 501 [aff 144 Fed. v. Zachary P. Taylor Pub. Co., 185 82. Exchange Tel. Co., Ltd. V. 83. Dun v. Lumbermen's Credit Assoc., 209 U. S. 20, 28 SCt 335, 52 L. ed. 663, 14 AnnCas 501 (credit ratings); Frank Shepard Co. v. Zachary P. Taylor Pub. Co., 185 Fed. 941 [aff 193 Fed. 991, 113 CCA 609] (citation tables); Mead v. West Pub. Co., 80 Fed. 380 (law textbook). 84. Infringement of compilations see supra §§ 307-311. 85. Common errors as evidence of copying see infra § 428. 86. Dam v. Kirk la Shelle Co., 175 Fed. 902, 99 CCA 392. 20 AnnCas 1173, 41 LRANS 1002 [aff 166 Fed. 589] (where unimportant details in a play were held to show that the similarities were not due to coincidence); West Pub. Co. v. Edward Thompson Co., 169 Fed. 833 [mod on other grounds 176 Fed. 833, 100 CCA 303]; George T. Bisel Co. v. Welsh, 131 Fed. 564; French v. Conelly, 1 NY Wkly Dig 197; Corelli v. Gray, 30 T. L. R. 116. [a] Sequence of ideas and lan- 87. Callaghan v. Myers, 128 U. S. [a] Improbable coincidence illus- 86 tache in the defendant's model is more retroussée, and certain changes in the wave of the hair, and the goatee of the defendant is broader." Beullac v. Simard, 39 Que. Super. 97, 103 [aff 39 Que. Super. 517]. (2) "The plaintiff's case is entirely founded on coincidence or similarities between the novel and the sketch. Such coincidences or similarities may be due to any one of four hypothesesnamely (1), to mere chance, or (2) to both sketch and novel being taken from a common source; (3) to the novel being taken from the sketch, or (4) to the sketch being taken from the novel. Any of the first three hypotheses would result in the success of the defendant; it is the fourth hypothesis alone that will entitle the plaintiff to succeed. I have therefore presented to me a simple alternative between the first hypothesis-namely, mere chance coincidence on the one hand, and a copying by the defendant as alleged by the plaintiff on the other hand. This issue is raised in the clearest and most definite form by the defence, which is that the sketch is a condensed version by the defendant of a play called In the King's Name, which was written by the defendant in the year 1894, wholly independently of the plaintiff's novel and some eight years before its publication. The issue I have to decide is therefore purely one of fact. The plaintiff's case rests on showing that the improbability of the resemblances between the two works being due to mere chance outweighs the improbability of the defendant's having concocted a story such as he has put forward. The defendant's case rests on minimizing the improbability of chance coincidence and emphasizing the value to be attached to the evidence in support of his story. As regards this second episode, or group of episodes, the general resemblance of situation and development is certainly most remarkable, and it seems hardly possible that two minds working altogether independently could have arrived at results so nearly identical. But did the resemblance cease here, I should have great difficulty in determining adversely to the defendant that there had been an actual appropriation sufficient to render him legally liable. The real strength of the plaintiff's case seems to me to be found in the accumulation of further coincidences in the third, fourth and fifth episodes, which I will now briefly describe, in both works. His Lordship then described and compared these episodes in considerable detail, as well as other similarities of plot and incident and situation. He continued:-Looking now at the aggregate of the similarities between the sketch and the novel, and the case is essentially one in which the proof is cumulative, I am irresistibly forced to the conclusion that it is quite impossible they should be due to mere chance coincidence, and accordingly that they must be due to a process of copying or appropriation by the defendant from the plaintiff's novel. That there is nothing very striking or original either in the novel or the sketch I 88 from common sources, the inference of copying accept. But the combination of these | Judge, 88. Benton v. Van Dyke, 170 Fed. 203; Beauchemin v. Cadieux, 10 Que. K. B. 255, 22 Que. Super. 482 [app dism 31 Can. S. C. 370]; Murray v. Bogue, 1 Drew. 353, 61 Reprint 487. [a] List of stock quotations."Any list containing the fluctuation of prices on the Stock Exchange for a given period must inevitably bear a marked similarity to another list giving the same information." Benton v. Van Dyke, 170 Fed. 203, 204. 89. Chautauqua School of Nursing v. National School of Nursing, 238 Fed. 151, 151 CCA 227 [rev 211 Fed. 1014]; George T. Bisel Co. v. Bender, 190 Fed. 205; White v. Bender, 185 Fed. 921; Mead v. West Pub. Co., 80 Fed. 380. [a] Legal syllabi.-The mere circumstance that two syllabi of the same opinion are expressed in identical language is not always sufficient proof that one was borrowed from the other, especially if the statement is familiar and brief. West Pub. Co. v. Lawyers' Co-op. Pub. Co., 79 Fed. 756, 25 CCA 648, 35 LRA 400. 90. Eichel v. Marcin, 241 Fed. 404; Hubges v. Belasco, 130 Fed. 388. 92 probable that the two authors would express their thoughts and sentiments in the same language throughout a book or treatise of any considerable size, or adopt the same arrangement or combination in their publication." But such resemblances must be so close, full, uniform, and striking as fairly to lead to the conclusion that the one is a substantial copy of the other or mainly borrowed from it.93 Where this is shown, a simple denial by defendant that he made use of plaintiff's work is insufficient to overcome the prima facie case so made.** [§ 427] (b) Proof of Similarities. The similarity between the alleged infringement and the work of which it is claimed to be a piracy should In in a clear and exhaustive 92. Callaghan v. Myers, 128 U. S. [a] Illustration.-"The climax of one act in each piece was principally relied upon in argument, where the unexpected discovery of the title character in a place where she should not be makes a dramatic situation which is presumably helpful to the success of both plays. That is an old device. It was common property of all playwrights when Sheridan employed it in the 'School for Scandal.' Analyzing the details of that situation as presented in these two plays, the points of essential difference so far outnumber the points of similarity that it is difficult to understand how any one could persuade himself | Reprint 1294; Mawman v. Tegg, 2 that the one was borrowed from the other." Hubges v. Belasco, 130 Fed. 388. 91. Corelli v. Gray, 30 T. L. R. 116. 93. Vernon v. Shubert, 220 Fed. 694; Myers v. Callaghan, 5 Fed. 726, 10 Biss. 139, 20 Fed. 441 [mod on other grounds 128 U. S. 617, 9 SCt 177, 32 L. ed. 547]; Emerson v. Davies, 8 F. Cas. No. 4,436, 3 Story 768. [a] Rule applied to dramas."As So often happens, there are some characters in both plays having a similarity, and there are here and there some instances of similar phraseology. But that is a very old story in playwriting, because, after all, there are not so many themes around which a play may be plotted. Secret marriages, district attorneys, murders, office boys, blackmailers, good people, and bad people have walked about behind the footlights for many a day; but the only way to arrive at a conclusion on the merits in a case like this is to endeavor to discover the theory of the play and, generally speaking, the method of its execution." Vernon V. Shubert, 220 Fed. 694, 696. 94. Callaghan v. Myers, 128 U. S. 617, 9 SCt 177, 32 L. ed. 547; Haas V. Leo Feist, Inc., 234 Fed. 105; Da Prato Statuary Co. v. Giuliani Statuary Co., 189 Fed. 90; Frank Shepard v. Zachary P. Taylor Pub. Co., 185 Fed. 941 [aff 193 Fed. 991, 113 CCA 609]; Park, etc., Co. v. Kellerstrass, 181 Fed. 431; Sweet v. Bromley, 154 Fed. 754; Encyclopædia Britannica Co. V. American Newspaper Assoc., 130 Fed. 460 [aff 134 Fed. 831, 1024, 67 CCA 281]; West Pub. Co. v. Lawyers' Co-op. Pub. Co., 79 Fed. 756, 25 CCA 648, 35 LRA 400 (where, however, it appeared that defendant's principal editor had digested some seven thousand of the entire thirteen thousand three hundred cases digested from complainant's pamphlets. Two of these cases were found to contain suggestive verbal identities, but no errors in common with the syllabi, and it was held that the denial of such editor that he had made use of the syllabi was sufficient to rebut complainant's prima facie case so work); concerned his own for as O'Neill V. General Film Co., 152 [a] Musical compositions.-"I am aware that in such simple and trivial themes as these it is dangerous to go too far upon suggestions of similarity. For example, nearly the whole of the leading theme of the plaintiff's song is repeated literally from a chorus of Pinafore, though there is not the slightest reason to suppose that the plaintiff ever heard the opera. Nevertheless, between the two choruses in question there is a parallelism which seems to my ear to pass the bounds of mere accident. Russ. 385, 3 EngCh 385, 38 Reprint If the choruses be transposed into 380; Spiers v. Brown, 6 Wkly. Rep. the same key and played in the same 352; Gemmill v. Garland, 12 Ont. 139 time, their similarities become at [app dism 14 Can. S. C. 3211; once apparent. In certain of the bars, Beauchemin v. Cadieux, 10 Que. Q. B. only a trained ear can distinguish 255 [aff 31 Can. S. C. 370]. them, and their form and rhythm is 99 95 be shown by introducing both works in evidence." [b] Law reports.-The paging of defendant's volumes of law reports and complainant's was substantially the same throughout. The list of cases preceding each report was the same. Defendant's editors testified that their work was independent of that of complainant's editors, but complainant's volumes were all used in editing and annotating, in some instances words and sentences being followed without change, in others changed only in form. Although there was a considerable difference between the headnotes, it was evident that complainant's had been freely used. There were errors common to both sets of reports. These circumstances were held to constitute an infringement. Callaghan Myers, 128 U. S. 617, 9 SCt 177, 32 L. ed. 547. V. 95. Encyclopædia Britannica Co. V. American Newspaper Assoc., 130 Fed. 460 [aff 134 Fed. 831, 1024, 67 CCA 281]; Boucicault v. Fox, 3 F. Cas. No. 1,691, 5 Blatchf. 87; Beauchemin v. Cadieux, 10 Que. K. B. 255. 22 Que. Super. 482 [app dism 31 Can. S. C. 370, 2 ComL 170]. 96. Encyclopædia Britannica Co V. American Newspaper Assoc., 130 Fed. 460 [aff 134 Fed. 831, 1024. 67 CCA 281]; Boucicault v. Fox, 3 F. Cas. No. 1,691, 5 Blatchf. 87. re 97. Carte v. Dennis, 5 Terr. L. 30. See Aronson v. Baker, 43 N. J. Eq. 365, 372, 12 A 177 (where such evidence was received on an issue as to originality of plaintiff's opera, but the court said: "It should be marked that it appears that this comparison was made without the aid of the libretto of 'Erminie,' and with no standard to guide the judgment of the person making the comparison, but his recollection or 'Erminie' after having seen it performed, as he says, several times, but without stating how many he means by 'several.' A judgment thus formed is obviously too loose and untrustworthy to be worth much as evidence. It is utterly insufficient to be the basis of a judicial decree"). 98. Aronson v. Baker, 43 N. J. Eq. 365, 12 A 177; Carte v. Dennis, 5 Terr. L. 30. "While the production of the librettos might, very perceptibly, have diminished the labor necessary necessity of making a personal examination of the books on the question of infringement.1 Testimony of witnesses who have compared the copyrighted work with the alleged infringing work as to their general conclusions on the question of infringement is not competent; but where they point out similarities of language and other indicia of infringement, the testimony may be used to assist the court in its examination.2 The whole of the books in evidence may be compared; plaintiff is not limited to the particular matters of which defendant has had notice.3 [§ 428] (c) Common Errors. The existence of common errors and inaccuracies in the original and alleged piratical works raises a presumption of infringement so strong that it can be overcome only by the clearest and most convincing proof; and to the proper consideration of the [a] Evidence held sufficient. "As 99. Lucas v. Williams, [1892] 2 Q. B. 113. timony and findings could be fairly tested, so that the addition of such conclusions and arguments was not ground for the exclusion of the exhibits, but would be considered like statements in the briefs. West Pub. Co. v. Edward Thompson Co., 169 Fed. 833 [mod on other grounds 176 Fed. 833, 100 CCA 303]. (2) Testimony of witnesses who have compared copyrighted syllabi of legal opinions and alleged infringing digest paragraphs with the opinions themselves, as to their general conclusions on the question of infringement, is not competent; but where they point out similarities of language and other indicia of infringement, the testimony may be used to assist the court in its examination. West Pub. Co. v. Lawyers' Co-op. Pub. Co., 79 Fed. 756, 25 CCA 648, 35 LRA 400 [rev 64 Fed. 360, 25 LRA 441]. 3. Hotten v. Arthur, 1 Hem. & M. 603. 71 Reprint 264. 1. "The primary evidence of the in- 2. West Pub. Co. v. Edward Thomp- [a] Rule applied.—(1) In a suit for infringement, complainant inserted in parallel column exhibits certain comments, calling attention to points of similarity and in most instances setting forth conclusions with respect thereto. Defendant also introduced answering exhibits, in series, to substantially each particular paragraph, inserting conclusions. It was held that, although such conclusions and arguments could not be taken as testimony, the examination of the publication by an expert could properly be accepted if the facts found were the subject matter of tes V. [a] Rule applied-Counsel, in argument, were proceeding to read a number of instances of similarity, when it was objected that some of were not mentioned in the lists which had been supplied. The vice-chancellor said: "That is not necessary; the Court will look at the whole of the books in evidence. The idea that only the particulars specified can be regarded (see Mawman v. Tegg, 2 Russ. 385, 3 EngCh 385, 38 Reprint 380), has long been The lists furnished are exploded. merely for convenience, and are in no way binding on the Plaintiff, except that I should of course take care that nothing like surprise was Hotten V. 1 Arthur, attempted." Hem. & M. 603, 605, 71 Reprint 264. 4. Callaghan v. Myers, 128 U. S. 617, 9 SCt 177, 32 L. ed. 547; George T. Bisel Co. v. Bender, 190 Fed. 295; Frank Shepard Co. Zachary P. Taylor Pub. Co., 185 Fed. 941 [aff 193 Fed. 991, 113 CCA 609]; White v. Bender, 185 Fed. 921; West Pub. Co. V. Edward Thompson Co., 169 Fed. 833 [mod on other grounds 176 Fed. 833, 120 CCA 303]; Sweet Bromley, 154 Fed. 754; Gopsill v. C. E. Howe Co., 149 Fed. 905; Hartford Printing Co. v. Hartford Directory, etc.. Co., 146 Fed. 332; George T. Bisel Co. v. Welsh, 131 Fed. 564; Social Register Assoc. v. Murphy, 128 Fed. 116; Trow Directory Printing, etc.. Co. v. U. S. Directory Co., 122 Fed. 191; Williams v. Smythe, 110 Fed. 961; West Pub. Co. v. Lawyers' Co-op. Pub. Co., 79 Fed. 756, 25 CCA 648, 35 LRA 400; Chicago Dollar Directory Co. v. Chicago Directory Co., 66 Fed. 977, 14 CCA 213; List Pub. Co. v. Keller, 30 Fed. 772; Chapman v. Ferry, 18 Fed. 539, 9 Sawy. 295; Lawrence V. Dana, 15 F. Cas. No. 8.136, 4 Cliff. 1; Jewellers' Mercantile Agency V. Jewellers' Weekly Pub. Co., 84 Hun 12, 32 NYS 41 [rev on other grounds 155 N. Y. 241, 49 NE 872, 63 AmSR 666, 41 LRA 846]: Pike v. Nicholas, L. R. 5 Ch. 251, 7 ERC 108; Cox v. Land. etc., Journal Co., L. R. 9 Eq. 324; Kelly v. Morris, L. R. 1 Eq. 697, 7 ERC 102; Murray V. when a considerable number of passages are proved to have been copied, by the copying of blunders in them, other passages which are the same with the passages in the original book must be presumed prima facie to be likewise copied, although no blunders occur in them.5 Common errors even in parts of plaintiff's work not covered by copyright V. are admissible as evidence of copying. Proof of common errors is especially important in the case of compilations where a close resemblance is the necessary consequence of the use of common materials." Proof of common errors may be sufficient to overcome sworn denials by defendant authors.8 [§ 429] (3) Animus Furandi. When in addiof the greatest possible value. It was strong evidence of copying and of want of originality. But to say that because the same mistake occurred in both books therefore there was copying was illogical. The only instance of this mistake before the Court was as to the Irish championship, where the same mistake occurred in both books. But the most that could be said with regard to that was that it was suspicious. It would be going too far to say that it showed conclusively that the plaintiffs had copied, and it would be absurd to hold that the plaintiffs were on that ground also precluded from relief." James Nisbet & Co., Ltd. v. Golf Agency, 23 T. L. R. 370, 371. the Supplements are exactly reproduced in Brightly, and the explanation as to how it occurred being unsatisfactory, under the ruling of Callaghan v. Myers, 128 U. S. 617, 9 SCt 177, 32 L. ed. 547; Trow Directory Printing, etc., Co. v. U. S. Directory Co. 122 Fed. 191, List Pub. Co. v. Keller 30 Fed. 772 the complainant is entitled to a preliminary injunction." George T. Bisel Co. v. Welsh, 131 Fed. 564, 566. v. Bogue, 1 Drew. 353, 61 Reprint | similarity of language occurring in 487: James Nisbet & Co., Ltd. V. Golf Agency, 23 T. L. R. 370; Mawman v. Tegg, 2 Russ. 385, 3 EngCh 385, 38 Reprint 380; Longman Winchester, 16 Ves. Jr. 269, 33 Reprint 987; Spiers v. Brown, 6 Wkly. Rep. 352; Cartwright v. Wharton, 25 Ont. L. 357, 3 Ont WN 499, 20 Ont WR 853, 1 DomLR 392; Beauchemin v. Cadieux, 10 Que. K. B. 255, 22 Que. Super. 482 [app dism 31 Can. S. C. 370]; Henderson Directories, Ltd. v. Tregillus Thompson Co., Ltd., 15 DomLR 209; Bain v. Henderson, 16 B. C. 318. See Mead v. West Pub. Co., 80 Fed. 380 (where alleged common errors were explained). Compare Cary v. Kearsley, 4 Esp. 168 (where it was held that a count for pirating generally is not supported by evidence that there are in the original work particular errors and mistakes, with which the pirated edition corresponds verbatim). Copying of errors is "one of the most significant evidences of infringement." Callaghan v. Myers, 128 U. S. 617, 662, 9 SCt 177, 32 L. ed. 547. "It is laid down in many authorities that the presence of common errors is one of the surest tests of copying." Cartwright v. Wharton, 25 Ont. L. 357, 359, 20 OntWR 853, 1 DomLR 392. [a] The duplication of erroneous names and addresses in a directory is sufficient to entitle the complainant to a preliminary injunction, and to affect defendant's whole book, in the absence of a clear showing to overcome such prima facie case. Trow Directory Printing, etc., Co. v. U. S. Directory Co., 122 Fed. 191. [b] Law books.-(1) "If other cases have been decided on the same points, and the later writer does not give them, it is persuasive evidence of copying. If a case has been overruled or reversed, or if an error appears in the citation, and the fact that the case has been overruled or reversed is not noted, or the error is not corrected, this, too, is evidence of merely copying." White v. Bender, 185 Fed. 921, 925. (2) "Take the same chapters above referred to, and we find great similarity of language and expression and substantially the same citation of cases with the same errors in reference almost without exception. Overruled and reversed cases are in many cases cited by Moore as authority without any reference to such facts, and this is true when the change in the decision of the case was after the publication of Drinker and prior to that of Moore. Errors in spelling names and in reference to pages are identical in numerous instances." George T. Bisel Co. v. Bender. 190 Fed. 205, 207. (3) "In a case like this, where the same kind of a digest is to be compiled from the same material, by the same man, similarly arranged, the existence of the same errors in the two digests offer one of the surest tests of copying. The improbability that the same mistakes would have been made, even by the same author, in both volumes, compiled five and six years apart. if in both instances he had done original work. suggests such a cogent presumption of copying from the former into the latter digest that it can only he overcome by clear evidence to the contrary. List v. Keller. 30 Fed. 772. It may be that at the final hearing he can explain and satisfy the court that there was no copying of the Supplements in his Brightly, But as these errors, omissions, and [c] List of names. "The presence in the defendant's publication of a large number of common errors in spelling and in alphabetical sequence of names in the lists forcibly suggests that the defendant's lists, where these common errors appear, were copied from the plaintiff's lists." Cartwright v. Wharton, 25 Ont. L. 357, 359, 20 OntWR 853, 1 DomLR 392. 5. Frank Shepard Co. v. Zachary P. Taylor Pub. Co., 185 Fed. 911 [aff 193 Fed. 991, 113 CCA 6091; George T. Bisel Co. v. Welsh, 131 Fed. 564; Trow Directory Printing, etc., Co. v. U. S. Directory Co., 122 Fed. 191; Mawman V. Tegg, 2 Russ. 385, 3 EngCh 385, 38 Reprint 380; Cadieux v. Beauchemin, 31 Can. S. C. 370. [a] Rule applied.—Where, in a suit for copyright infringement, the identity of a few errors which would certainly have been detected if original work had been done, appeared, and there was evidence showing a similar method of editorial work for the entire infringing publication, the court, in the absence of evidence to the contrary, should find that the entire practice and method of writing was improper, and enjoin the sale of the entire publication. West Pub. Co. v. Edward Thompson Co., 169 Fed. 833 [mod on other grounds 176 Fed. 833, 100 CCA 303]. Ca [b] Numerous common errors conclusive.-(1) "The repetition of the great number of errors in the work of the appellants could not possibly have been accidental or have happened otherwise than by making a textual copy of the respondents' supplement. It appears as if the book published by the appellants had not been made with the pen, but with scissors and paste pot." dieux v. Beauchemin, 31 Can. S. C. 370, 371. (2) "Copied errors are, as many learned judges have said, one of the surest tests of copying. If we take from a published directory 1,000 cases in which names and addresses appear, and find that 990 of them are correct and 10 incorrect, and then look up the same 1,000 cases in the alleged infringing book, and find the same 990 correct as in the copyright and the same 10 incorrect as in the copyright, the rule of coincidences ought not to be invoked. There is only one way to account for such a number of errors. One is convinced that the compiler of the alleged infringement must have copied, a greater or less amount, as the case may have been, of the original matter. If the rors in the copyright had been made purposely, it would be immaterial." Hartford Printing Co. v. Hartford Directory, etc.. Co., 146 Fed. 332, 334. (3) "The taint of the dozen instances cited affects the whole book, until the methods of its construction are more fully displayed." Trow Directory Printing, etc., Co. v. U. S. Directory Co., 122 Fed. 191. er [c] One instance not conclusive. "In coming to a conclusion as to whether there had been copying or not, the copying of a mistake was 6. Frank Shepard Co. v. Zachary P. Taylor Pub. Co., 193 Fed. 991, 113 CCA 609 [aff 185 Fed. 941]. 7. Callaghan v. Myers, 128 U. S. 617, 9 SCt 177, 32 L. ed. 547; Frank Shepard Co. v. Zachary P. Taylor Pub. Co., 193 Fed. 991, 113 ČCA 609 [aff 185 Fed. 941]; George T. Bisel Co. v. Bender, 190 Fed. 205; Gopsill v. C. E. Howe Co., 149 Fed. 905; Hartford Printing Co. v. Hartford Directory, etc., Co., 146 Fed. 332; George T. Bisel Co. v. Welsh, 131 Fed. 564; Williams v. Smythe, 110 Fed. 961; List Pub. Co. v. Keller, 30 Fed. 772; Lawrence v. Dana, 15 F. Cas. No. 8,136, 4 Cliff 1; Spiers v. Brown, 31 L. T. Rep. 16; Mawman v. Tegg, 2 Russ. 385, 3 EngCh 385, 38 Reprint 380; Exchange Tel. Co., Ltd. v. Howard, etc., Press Agency, Ltd.. 22 T. L. R. 375; Matthewson v. Stockdale, 12 Ves. Jr. 270, 33 Reprint 103; Cartwright v. Wharton, 25 Ont. L. 357, 20 OntWR 853, 1 Dom LR 392; Bain v. Henderson, 16 B. C. 318. [a] Reason for rule-(1) "Now, the use of shewing the same errors in both is that where the Defendant says he has got his information, not from the Plaintiff, but from some other sources, if the evidence is unsatisfactory on the question, whether the Defendant did use the Plaintiff's work or not, to shew the same errors in the subsequent work that are contained in the original is a strong argument to shew copying." Murray v. Bogue, 1 Drew. 353, 367, 61 Reprint 487. (2) "The law is well settled in List Pub. Co. v. Keller, (C. C.) 30 Fed. 772, where it is said: 'In a case like this, when a close resemblance is the necessary consequence of the use of common materials, the instances of the same errors in the two publications affords one of the surest tests of copying. The improbability that both compilers would have made the same mistakes if both had derived their information from independent sources suggests such a cogent presumption of copying by the later compiler from the first that it can be overlooked only, by clear evidence to the contrary.' Frank Shepard Co. v. Zachary P. Taylor Pub. Co., 185 Fed. 941, 943 [aff 193 Fed. 991, 113 CCA 609]. 8. " Frank Shepard Co. v. Zachary P. Taylor Pub. Co., 185 Fed. 941 [aff 193 Fed. 991, 113 CCA 609]; Hartford Printing Co. v. Hartford Directory, etc., Co., 146 Fed. 332; George T. Bisel Co. v. Welsh, 131 Fed. 564; Williams v. Smythe, 110 Fed. 961; Exchange Tel. Co., Ltd. v. Howard, etc., Press Agency, Ltd., 22 T. L. R. 375. "By the repetition of mistakes in the defendants' work, some of which were designedly made by the complainant, there is proof of an appropriation, which a mere denial, or tion to the resemblance between a copyrighted book and one which is claimed to infringe it, there is an intent on the part of the author of the second work to appropriate the labors of the author of the first work, the inference of piratical copying, or of unfair use, is greatly strengthened. The making of merely colorable alterations,10 or a false denial by defendant that he has copied, or taken any idea from plaintiff's work, is a strong indication of animus furandi.11 It has been said to be of the greatest importance as evidence of good faith that defendant should produce his original manuscript.12 13 [§ 430] (4) Other Matters. Logical relevancy to the issue being investigated is the primary consideration by which to determine the admissibility and weight of particular items of evidence.1 Where the relative rate of speed with which the original and alleged infringing works have been compiled is relied on as evidence tending to show that an unfair use must have been made of the earlier work, it is within the discretion of the court to allow defendant to give a demonstration of the speed with which its editors can do such work,1 although such argument is not entitled to much weight. 15 But speed of production is a circumstance that may be considered.16 Since it is immaterial where an alleged infringer obtains suggestions for making variations in a copyrighted work, another the assertion of independent recourse to original sources of information, hardly overcomes." Sweet v. Bromley, 154 Fed. 754, 755. [a] Insufficient explanation.-"No satisfactory explanation to the contrary has been made by the defendant. Reliance is placed on the testimony of its editor and employés, though not all of them were sworn, that since 1906 they did not make any use whatever of the citations or work specified in the bill. Direct evidence of fraudulent acts is rare and is obtainable in comparatively few cases. The presumption from the similarity and peculiarity of the mistakes and errors found in both publications to my mind indicates the existence of a continuous and systematic appropriation of the copyrighted books in evidence by defendant's employés and for the purpose of saving themselves the trouble and labor attendant upon original investigation of the decisions. Certainly the assertion that the errors were accidental or typist's errors would seem most incredulous." Frank Shepard Co. v. Zachary P. Taylor Pub. Co., 185 Fed. 941, 943 [aff 193 Fed. 991, 113 CCA 609]. 9. Park, etc., Co. v. Kellerstrass, 181 Fed. 431; Jewellers' Mercantile Agency v. Jewellers' Weekly Pub. Co., 84 Hun 12, 32 NYS 41 [rev on other grounds 155 N. Y. 241, 49 NE 872, 63 AmSR 666, 41 LRA 8461: Beauchemin v. Cadieux. 10 Que. K. B. 255, 22 Que. Super. 482 [app dism 31 Can. S. C. 370]. See also supra § 289. 10. Park, etc., Co. v. Kellerstrass, 181 Fed. 431; Oman v. Copp-Clark Co., 1 OntWR 542, 543. CO "Colourable alterations and variations [are] always regarded as gent evidence of animus furandi.' Oman v. Copp-Clark Co., supra. 11. Jarrold v. Houlston, 3 Kay & J. 708, 69 Reprint 1294. [a] Failure to give credit.-Where defendant, in preparing its legal publication, used complainant's digest paragraphs, the fact that defendant's editors struck out all references to complainant's publication wherever citation from official reports could be substituted, and the material thus attributed to another source, in the form in which it was used was exclusively complainant's property, such evasion was sufficient to raise [13 C. J.-39] 14 18 work offered in evidence to show that a certain feature was taken from it is irrelevant.17 Evidence that plaintiff knew that defendant was infringing his copyright and did not object to it is not sufficient to warrant the inference that plaintiff assented to the infringement.1 In an action under the former statute for penalties, a prior judgment in replevin forfeiting the infringing sheets is no evidence that they were found in defendant's possession.19 An interlocutory decree for a perpetual injunction and an accounting is not res judicata of infringement.20 [431] 5. Of Damages. In accordance with general principles," where plaintiff seeks to recover the actual damages suffered by him due to the infringement, the burden of proof is on him to show such damages and their amount.22 Frequently it is difficult, if not impossible, to prove damages with the requisite legal certainty,23 even in cases where it is clear that substantial damages have been suffered, and it is to meet such situation that the discretionary and arbitrary "in lieu" damages have been provided, somewhat in the nature of statutory liquidated damages. In the absence of statute, only nominal damages can be recovered, where no actual damages are proved.25 It has been said that "defendant is to account for every copy of his book sold as if it had been a copy of the Plaintiff's, and to pay the Plaintiff the profit which he would have had received from the sale of so many addian inference against defendant's New York, with twenty-one years' good faith, and that its use of the experience, testified that he had not material was unfair unless complain- been able to do over seven cases a ant's rights had been lost or aban- day, and that his average was about doned. West Pub. Co. v. Edward four. Thereupon defendant offered Thompson Co., 169 Fed. 833 [mod on to produce some of its editors who, other grounds 176 Fed. 833, 100 CCA in the master's presence, with cases 3031. of average length to be selected by him, would, under conditions insuring fairness, show their rate of speed in original work. It was held that it was in the discretion of the court to reject this offer, on complainant's objection; that the rate of speed attained under such conditions would not fairly represent the average speed for weeks and months continuously, under varying conditions, mental and physical; and that on the whole not much weight was to be attached to the argument from the rate of speed, as, to be of much value, the character of the digest paragraphs would have to be carefully investigated. West Pub. Co. v. Lawyers' Co-op. Pub. Co., 79 Fed. 756, 25 CCA 648, 35 LRA 400 [aff 64 Fed. 360, 25 LRA 441]. 12. Chicago Directory Co. v. U. S. Directory Co., 122 Fed. 189; Trow Directory, etc., Co. v. Boyd, 97 Fed. 586; Hotten v. Arthur, 1 Hem. & M. 603, 609, 71 Reprint 264; Spiers v. Brown, 6 Wkly. Rep. 352; Bain v. Henderson, 16 B. C. 318. "It is of great importance as evidence of bona fides that the original MS. should be produced. That deeided me in favour of the Defendant in the French dictionary case (Spiers v. Brown, 6 Wkly. Rep. 352; and see Jarrold v. Houlston, 3 Kay & J. 708, 69 Reprint 1294): I saw that he had bestowed great pains and labour on his subject; and though he had certainly copied a great deal from the Plaintiff, I was convinced that he had honestly exercised his mind upon his work. Here I think there has been wholesale piracy." Hotten v. Arthur, supra. [a] Suspicious failure to produce copy.—(1) "The destruction of all the 'copy' from which defendants' book was made up is a highly suspicious circumstance." Chicago Directory Co. v. U. S. Directory Co., 122 Fed. 189, 190. (2) "The failure to present a copy of defendant's book, even folded and stitched, is a suspicious circumstance, as was the destruction of 'copy' in the Chicago case." Trow Directory Printing, etc., Co. v. U. S. Directory Co., 122 Fed. 191. 13. See Evidence [16 Cyc 1110]. [a] Speed of production.-As 16. Cadieux V. Beauchemin, Can. S. C. 370, 372. 31 "I wish to add that I consider it was not possible that the supplement complained of could have been compiled as admitted, in eight or nine months, unless by borrowing largely from the publication of the respondents." Cadieux v. Beauchemin, supra. 17. Springer Lith. Co. v. Falk, 59 Fed. 707, 8 CCA 224 [app dism 17 SCt 998 mem, 41 L. ed. 1179 mem]. 18. Boucicault v. Fox, 3 F. Cas. No. 1,691, 5 Blatchf. 87. 19. Werckmeister V. American Tobacco Co., 138 Fed. 162 [aff 144 Fed. 1023, 74 CCA 682, and aff 207 U. S. 375, 28 SCt 124, 52 L. ed. 254]. See also supra § 371. 20. Hills v. Hoover, 142 Fed. 904. See Damages [13 Cyc 192]. Smiles v. Belford, 23 Grant Ch. (U. C.) 590. 22. 23. D'Ole v. Kansas City Star Co., 94 Fed. 840 (advertising pamphlet infringed by newspaper); Smiles V. Belford, 23 Grant Ch. (U. C.) 590. Required certainty of damages see Damages [13 Cyc 37]. 24. See supra §§ 360-362. Liquidated damages generally see Damages [13 Cyc 89]. 25. See Damages [13 Cyc 14]. |