occasional passages as the two above quoted. For the most part they consist of paragraphs more nearly like the following: (March 8) Taussig on Taxes on Land and Buildings: (a) The peculiarity of the tax on land is that it can not be shifted, but falls on the owner. If a sale takes place, the buyer deducts the tax and is tax free-" burdenless" taxation. (b) On the other hand, the tax on buildings can be shifted (except where demand is declining), and is shifted, to the occupier, who in turn, if he is a merchant, shifts it to the purchaser of his goods. (April 25) Taxes on Land and Buildings: (a) A tax on land which is "rackrented" can not be shifted, and is no burden to the owner. (b) A tax on buildings can be shifted to tenant, because buildings cost just so much to erect. Where building is used for business, tenant may shift again to consumers. (c) According as the value of a property is in the land or in the building, the owner pays more or less, and as value of land rises, taxes rise, and thus some of unearned increment is appropriated. (d) It makes practically no difference whether tax is collected from owner, as in U. S., or from occupier, as in England; that is, if the taxes are fixed in amount. If the rate is altered, then it does make a difference. European and American basis of assessment also differ, the 1st being annual rental value, the 2d selling value. Each has advantages and disadvantages. (e) Workingmen pay taxes on dwellings, shops, etc., either directly or indirectly. In England the owner serves as tax collector, without tenant knowing it (unfortunate). (f) In English-speaking countries, taxes on real estate are chiefly local taxes. The same tendency is beginning to show itself on the continent," and the system is a wise one. 66 Chapter 68, pages 515-527, of volume II of the copyrighted book, is entitled "Taxes on Land and Buildings,' and is divided into sections numbered consecutively from 1 to 6. In the clauses (a) and (b) of both the above extracts, prominent propositions contained in sections 1 and 2, respectively, are (somewhat roughly) condensed, everything said in the section by way of proof, modification, illustration, or application being disregarded. In the clauses (c), (d), (e), and (f) of the second extract the same thing is done with regard to sections 3-6, inclusive, of the chapter. It will be noticed that clause (a) contains one word, and clause (f) an entire sentence, in quotation marks. The words so quoted are taken direct from the book. Instances of such quotation are frequent throughout the sheets. They are generally short, consisting of one or two words only; the words selected being usually such as would be likely to catch the attention and remain in the memory. Instances of entire sentences quoted are not Page 866. so common, though there are several of them. The language of the book is sometimes followed, without being distinguished by quotation marks, though not for more than a few words at a time, so far as I have noticed. I next consider the nine pages of memoranda which were put in evidence by the plaintiff while cross-examining the defendant. (Exhibit H.) These, as has been stated, were also prepared by the defendant from the book, for use in "tutoring" his pupils for a final examination upon all the work in economics supposed to have been done by the students at the university who had taken that course during the second term of the year 1911-12; and they were so used. They correspond generally to the memoranda sheets prepared for his conferences on February 16 and on successive dates thereafter until and including May 24. The portions of the book to which they relate are, in general, the same as those covered by the memoranda sheets for the conferences referred to; but the latter contain matter necessarily omitted from Exhibit H, into whose nine consecutive pages is further condensed what had occupied 15 of the separate memoranda sheets. What has been said above of the memoranda sheets will serve to describe what is found in Exhibit H. In it, as in them, there is frequent quotation of words, and occasional quotation of sentences from the book; the topics treated are topics treated in the book, the attempt is made to reproduce in abridged and paraphrased form (so far as such reproduction is possible within the very narrow limits adopted) the author's treatment of the topics selected, and the author's order and arrangement of topics within the portions of the book dealt with is followed, except for a certain amount of transposition or repetition. It seems to me that the defendant's method of dealing with the book has resulted in an appropriation by him of the author's ideas and language more extensive than the copyright law permits. It is true that the whole book has not been thus dealt with; but the copyright protects every substantial component part of the book, as well as the whole. Though the reproduction of the author's ideas and language is incomplete and fragmentary, and frequently presents them in somewhat distorted form, important portions of them are left substantially recognizable. If they had not been so left, the defendant's evi 76228-17- -18 Page 867. dent purpose could not have been accomplished. It seems obvious that what he was trying to give, and what his pupils were trying to get, was an acquaintance with the contents of the book, which should resemble as much as possible that acquaintance which they would have obtained for themselves by following with sufficient diligence the university course of instruction for which the book was the appointed textbook. Nor do I see any reason to doubt that, as the author testifies, these "outlines" might readily "cause the student to think he (could) meet the minimum requirements without using the book itself." It can not be said that the outlines go no further than to "give just enough information to put the reader upon inquiry" regarding the contents of the book. It was because the alleged infringing "version" went no further than this that no infringement was found by the court in G. Ricordi & Co. v. Mason, C. C. (201 Fed. 182185; on appeal, 210 Fed. 277, 127 C. C. A. 125). It gave in half a page an abridged synopsis of the copyrighted libretto of an opera covering 46 pages. It was said, in refusing the preliminary injunction (201 Fed. 183): The abridgments which have been condemned by the courts involve colorable shortening of the original text, where immaterial incidents are omitted and voluminous dissertations are cut down, but where the characters, the plot, the language, and the ideas of the author are pirated. It was further said on final hearing (201 Fed. 185): Of course, if the defendant's stories consisted of mere modifications of the copyrighted works, or abridgments thereof, reproducing portions of the dialogue, words, or phrases, the scenes, and characters, a different question would be presented. Following here a similar principle of distinction, I must hold that the defendant's sheets are not, in any event, such abridgments from the copyrighted book as he has the right to make, and that they constitute "versions" of substantial portions of the book, such as the plaintiff alone has the right to make. [2] 2. The defendant has neither leased nor sold his sheets. "Printing" I must regard as including typewriting or mimeographing, for the purposes of the act, and he has therefore "printed" them. Can he be said to have "published" them, as the bill alleges, in such sense as to make his publication an infringement, entitling the plaintiff to an injunction? [3] It is not necessary, in order to constitute publication, that they should have been offered in the market to whoever chose to buy them. There may be a limited publication, which will entitle the owner of the copyright to an injunction. (Ladd v. Oxnard, C. C., 75 Fed. 703, 730.) And, as held in that case, there may be such publication, although the number of persons to whom copies are delivered is limited, and their rights to the copies also limited by agreement with them. Although the defendant issued the infringing sheets only to his own. pupils, and to them only upon agreement that they should be returned to him within a limited time, the evidence relating to Exhibit H shows either that the agreement was not fulfilled in every case or that these sheets were copied before being returned. No precautions against such copying appear to have been taken. I must hold that sufficient publication of the outlines has been shown to constitute infringement. If the above conclusions are right, I am unable to believe that the defendant's use of the outlines is any the less infringement of the copyright because he is a teacher, because he uses them in teaching the contents of the book, because he might lecture upon the contents of the book without infringing, or because his pupils might have taken their own notes of his lectures without infringing. [4] 3. The evidence can hardly be said to show that the infringing outlines have injured the sale of the book. Nothing more appears than that they might do so by enabling students to get along without the book who otherwise would have had to buy it. The plaintiffs' loss, if any, prior to the filing of the bill, can hardly have been of substantial amount, because the two volumes of the book were copyrighted, respectively, on September 25 and October 4, 1911, and the bill was filed June 7, 1912. The Page 868, outlines prepared and used by the defendant during the university year 1911-12 are thus the only ones involved in the case as it now stands. The defendant's uncontradicted evidence is that the number of students who used his outlines, whether in conference classes or in separate tutoring for examinations, did not exceed 15 at the first and 17 at the second term of the year. The evidence shows, however, that outlines similar to Exhibit H, though not precisely the same, were prepared from the book by the defendant and used during 1912-13 in tutoring for midyear and final examinations. If an injunction is refused, it is obvious that continued use of similar outlines, such as that heretofore made, may well result in damage more substantial than any shown by the evidence thus far submitted. Proof of actual damage is not necessary for the issuance of an injunction, if infringement appears and damage may probably follow from its continuance. (Reed v. Holliday, C. C., 19 Fed. 325, 327; Sampson, etc., Co. v. Seaver, etc., Co., C. C., 134 Fed. 890; Id., 140 Fed. 539, 72 C. C. A. 55.) It is understood that no accounting is desired by the plaintiff, and an injunction only is sought. To that I think the plaintiff is entitled, and there may be a decree accordingly. [223 Federal Reporter, pp. 862-868.] MAUREL v. SMITH ET AL. (District Court, Southern District New York. February 2, 1915.) Maurel v. 1915. Where it was agreed between plaintiff and defendant that defendant would write a comic opera, for which plaintiff wrote the scenario, and, though defendant made many changes in the plot, he used the scenario and adopted the whole framework and scheme thereof, they were joint authors, with the rights and obligations implied by law from such relation. 2. LITERARY PROPERTY-OWNERSHIP-JOINT AUTHORSHIP. Where plaintiff and defendant H. agreed that such defendant should write a comic opera, for which plaintiff wrote the scenario, and H. engaged defendant R. to write the lyrics, the lyrics, when united with dialogue, plot, and music into one composition, became such a part thereof that plaintiff had an interest therein, though they had slight or no relation to the plot and though R. in several instances simply took old songs which he had already written and placed them in the libretto, and the subsequent publication of such songs separate from the opera did not break the original unity or defeat plaintiffs' rights. 3. COPYRIGHTS OWNERSHIP CONSTRUCTIVE TRUSTEES. Where two of three joint authors of a comic opera took out copyrights thereon, they became constructive trustees for the third author, and were accountable to her for her interest in the literary property destroyed by the publication and copyright. |