Infringement in part

by the author of his own reports published under an earlier contract by the plaintiffs; and in 1911, in Shepard v. Taylor, Judge Hazel held that common errors were prima facie proof of infringement.

In the important case of West Pub. Co. v. Lawyers' Pub. Co., where a collection of selected cases, and a general digest were alleged to be infringements of the plaintiff's reports and monthly digests, Judge Coxe in the U. S. Circuit Court enjoined 303 proved "instances of piracy" but not the remaining portions of the digest, but in 1897 the U. S. Circuit Court of Appeals, through Judge Lacombe, held that under such circumstances the burden of proof must be on the unfair user and broadened the decision by issuing an injunction against the work as a whole, excepting those parts which were public property. In 1910, in Park & Pollard v. Kellerstrass, Judge Philips enjoined the whole work because the infringing parts were not separable. In 1903, in Thompson Co. v. American Law Book Co., where the editor of the defendant's law encyclopædia had made a list of cases cited in complainant's work, which included material "pirated" by the complainant from copyright works, the Circuit Court of Appeals, reversing the lower court, held through Judge Coxe that there was no infringement, because the only use made of the list was to guide the defendant to the reports and because the complainant No infringe had no standing in equity. "If the defendant was guilty of piracy, so was the complainant; and equity will not protect a pirate from infringements of his piratical work." To like effect in Slinsgby v. Bradford Co., in 1905, Justice Warrington, in the Chancery Division, held that the plaintiff could not recover against an evident copying because his own catalogue was fraudulent in advertising as patented articles not so protected, and a fraud will not be protected. In

ment of piracies or frauds

the later case of West Pub. Co. v. Thompson Co., where the publishers of the original reports and digests sought to restrain the Thompson encyclopædias, the Circuit Court of Appeals held that while a compiler may use a copyright digest by making lists from which to run down cases, which is "fair use, extensive copying or paraphrasing of the language of the digest, whether to save literary work or mechanical labor, constitutes an infringement. The case was sent back to the lower court for rehearing and assessment of damages and was settled in 1911 by an agreement involving transfer of the encyclopædia to the plaintiff. Reference to a copyright work giving pagination is not an infringement, as was decided in 1909, in Banks Law Pub. Co. v. Lawyers Co-operative Pub. Co., in the U. S. Circuit Court of Appeals.

Whether simple quotation constitutes an infringe- Quotation ment or is "fair use," depends upon extent and in some respects upon purpose. In 1892 Justice North, in the English Court of Chancery, in Walter v. Steinkopff, held that the use by the St. James Gazette of two fifths of an article by Kipling, copyrighted by the Times, was beyond "fair use" of quotations, notwithstanding the newspaper custom of copying from one another. On the other hand, quotations in a review of a book made to reasonable extent for the purposes of criticism, have usually been considered "fair use,' provided they do not go to the extent of a description or abridgment which would be measurably a substitute for the book.

The multiplication of copies by handwriting or Private use other process for private use, as among the members of an orchestra or in a business office, has been held an infringement in English decisions, though prohibition of the making of a single copy for personal use would be an extreme application of this doctrine,

The doctrine of "unfair competition"

The doctrine

intent

and such use is specifically permitted in the new English code.

Beyond the purview of copyright law, there is a means of legal remedy for the copyright proprietor which can be enforced by state as well as by federal courts, resting either upon statutes outside the copyright law, or on the general principles of equity. This is the application of the doctrine of "unfair competition" especially in cases involving "fraud” or fraudulent representation, direct or implied, leading the purchaser to buy something other than what he supposes he is buying. Thus if a publisher prints and binds a book with a title and in a style that leads a purchaser to suppose that it is another book which he is buying, the publisher of the other book has the right to obtain equitable relief by an injunction from the transgressor on the ground of unfair competition without any reference to copyright law, although this doctrine is more applied in the case of patents, trademarks and copyrights than perhaps any other field.

There is also evident a growing tendency on the of deceptive part of the courts to protect the public from possible deception especially if done with fraudulent intent, where some distinctive name or symbol or form associated with some line of product is used for another line of product of different origin and character, though there may be here no direct competition; but this comparatively new doctrine is more likely to be used in regard to trade-mark articles than in respect to literary and like property. It might, however, apply in a case where a well-known publishing house had published, for instance, a popular series of schoolbooks as Smith's Arithmetical Readers and another firm containing the same name had started to publish a Smith's Algebraic Readers — but the application would be extremely doubtful.

cases

In the Chatterbox cases, 1884-1887, previously re- The "Chatferred to, the final decision of Judge Shipman empha- terbox" sized the view that the use of the title "Chatterbox' on a similar publication was misleading to the public, thus bringing both trade-mark law and common law protection to the rescue against unfair competition.

nica cases

In the series of Encyclopædia Britannica cases, Encyclopæ1890-1904, the English publishers Black or their dia BritanAmerican representatives Scribner sought to protect in this country the English edition, or an American authorized edition, under the copyright law previous to 1891, copyrighted articles by Americans being included, and under common law because of the alleged fraudulent misuse of the name to mislead the public. In 1893, in Black v. Allen, Judge Townsend held that the use of copyrighted material in a non-copyright work did not vitiate the copyright, that the American author was entitled to secure and protect copyright even though the right to use was assigned to an English house which could not directly secure copyright, and that the fact of discrepancy in the title of the copyrighted articles as registered for copyright on separate publication and deposit and in the cyclopædia, did not endanger the copyright. In 1904, in Encyclopædia Britannica Co. v. Tribune Association, Judge Lacombe in the U. S. Circuit Court enjoined condensations of the copyrighted American articles. But in Black v. Ehrich and other cases, the complainants were not successful in obtaining an injunction against the use of the title Encyclopædia Britannica on reprints of non-copyright material which did not mislead the public.

In the Webster Dictionary cases in 1890-1909, a Webster long litigation between the Merriams, as authorized Dictionary publishers of Webster, and Ogilvie and other defend- cases ants, the courts held that the use of the name Webster

"Old sleuth" cases

Other title decisions

or the title Webster's Dictionary could not be restrained when used in connection with a reprint of the original Webster Dictionary, then out of copyright, or otherwise in a manner not likely to mislead the public; but injunctions were granted and sustained against the use of these names on dictionaries issued in form so like the Merriam editions as to deceive the public, or in connection with misleading advertisements or circulars.

In 1888-1890 George Munro, publisher of the "Old sleuth" detective series, sought in actions against several defendants to protect the use of the name "Sleuth" and was upheld in the N. Y. Supreme Court in separate decisions by Judges Andrews, O'Brien, and Patterson, while in one of the cases Judge Ingraham held that “sleuth” was a dictionary word and could not be protected; in 1889 the N. Y. Court of Appeals through Chief Judge Parker decided that the name "Sleuth" was protectable, and in 1890 Judge Macomber of the N. Y. Supreme Court held that "Sleuth" was properly a subject of trade-mark. But in 1890 also, Judge Shipman in the U. S. District Court dismissed the complaint in another Munro case, as to an illustration picturing "Old Sleuth," on the ground that though of the same subject it was not of the same character. These cases illustrate the difficulty of decisions in this borderland of equity.

In 1894 Judge Green, in the U. S. Circuit Court in New Jersey, in Social Register Association v. Howard, protected on grounds of equity the title "Social register" as descriptive of a social directory covering Orange, N. J., and enjoined the use of "Howard's Social register" as unfair competition. In 1887 the Harper house, as publishers of the Franklin Square Library, obtained from the U. S. Circuit Court, through Judge Waite, an injunction against the