intent to "gain the advantages of that celebrity" (McLean v. Fleming, 96 U. S. at page 251 [24 L. Ed. 828]), of which plaintiff is the owner; but such intent, though it must be deemed to exist in fact, may be inferred from the inevitable consequences of the act complained of. (Samson, etc., Works v. Puritan, etc., Mills, 211 Fed. at page 608, 128 C. C. A. 203, L. R. A. 1915F, 1107, and cases cited; Notaseme, etc., Co. v. Straus, 201 Fed. 99, 119 C. C. A. 134; Miller, etc., Co. v. Behrend, 242 Fed. at page 518, 155 C. C. A. 291.)

[5] All the requisite elements of recovery are here present; plaintiff has a veritable property or business; that the exhibitions of the parties compete, in that they appeal to the same people who at the same time in the same town incline to visit the "movies" is very plain; the necessary consequences of such a colorable imitation of plaintiff's name as is defendant's is deception of the public; and, finally, no equity is shown against plaintiff's prompt demand. Therefore as matter of law plaintiff was entitled to injunction.

The court below rightly gave no weight to the defense based on Byers's registration of a play, named as is defendant's. Whatever may be Byers's rights, unfair competition is a trespass, and no trespasser can justify by setting up the right of one to whom he is a legal stranger.

Order reversed, with costs, and cause remanded, with directions to grant relief.

NORRIS ET AL. v. NO-LEAK-O PISTON RING CO.

(District Court, D. Maryland. March 28, 1921)

271 Fed. Rep. 536

COPYRIGHTS-INFRINGEMENT BY COPYING ADVERTISING CIRCULAR.

The copying by defendant from a trade paper, with its consent, and publishing in an advertising pamphlet, of a list giving sizes and description of piston rings used in different motorcars, which list was copied by the paper without consent from a copyrighted pamphlet prepared for advertising purposes by complainant, a business competitor of defendant, held an infringement of the copyright, though defendant did not know that the list it used was copied from complainants'.

In equity. Suit by William K. Norris and others, trustees of the McQuay Norris Manufacturing Company,

against No-Leak-O Piston Ring Company. Decree for plaintiffs.

Bartlett, Poe & Claggett, of Baltimore, Md., and Judson, Green & Henry, of St. Louis, Mo., for plaintiffs. John E. Cross, of Baltimore, Md., for defendant. ROSE, District Judge. The plaintiff and the defendant each make and sell piston rings. The plaintiff says the defendant has infringed its copyright on an advertising pamphlet, which gives the sizes and other details of piston rings found in each model of every motor maker whose machines are used in this country.

Since 1913 the plaintiff has annually gone to considerable trouble and expense to collect and compile the needed information, and has copyrighted its successive yearly issues. It is the 1919 edition which the defendant is said to have infringed. The plaintiff spent on it somewhere between $6,000 and $7,000. It is extensively distributed among automobile repair shops, garages, dealers in cars, and to some extent among the owners of them. It is a good advertisement, because any one called on to repair an automobile has need of the information it contains. The plaintiff has always been vigilant and successful in protecting its rights against infringers. It has brought several suits, and has won all of them-sometimes because its opponents surrendered, and sometimes because the court, after hearing, so decreed.

In order that the plaintiff might more readily detect infringers, it has, for years past, introduced into each of its annual lists some nonexisting models of machines. There were 12 of these in the edition of 1919. In December of that year the Motor World, a trade publication, published a catalogue of piston-ring dimensions. This catalogue is a reproduction of plaintiff's, except that the Motor World's list omitted models of years prior to 1916, and it separated passenger cars from trucks. There is no question as to where the Motor World got its list, for it reproduced 10 of plaintiff's 12 fictitious models. Indeed, this infringement was admitted by the Motor World itself in some letters written by it in reply to plaintiff's complaint. These letters were produced by the plaintiff, upon defendant's demand. The defendant asked and received from the Motor World permission to use this list. It recombined the passenger cars and

trucks, so as to give its list the same general character as that of plaintiff's, and as the result of its own investigation, supplemented the plaintiff's information with the dimensions of piston rings required for some 1920 models, rot, of course, included in plaintiff's 1919 edition. Defendant had, at a cost of some $3,000, 50,000 to 55,000 of these lists printed. Prior to the institution of this suit it had distributed 10,000 of them.

There is no doubt as to the infringement. The defendant did not know that it was copying plaintiff's copyrighted book, but that fact does not relieve it from answering to the plaintiff for the damage thereby caused. The distribution by the defendant to the trade of 10,000 or more of the infringing pamphlets must have cost the plaintiff a good deal, and many an order for piston rings, which would otherwise have gone to plaintiff, may well have been diverted to the defendant. The defendant's business is large. Its net profit in 1920 was $60,000. Presumably its gross sales were severel times this figure.

On the whole, it seems to me that an award of $3,000 for the damage done plaintiff would be just. The plaintiff is a St. Louis corporation. The defendant has its headquarters in Baltimore. The case had to be carefully prepared, and was tried through more than an average court day. I think a counsel fee of $750 would be reasonable.

NO-LEAK-O PISTON RING CO. v. NORRIS ET AL.

(Circuit Court of Appeals, Fourth Circuit. November 1, 1921)

277 Fed. Rep. 951

1. COPYRIGHTS-PAMPHLET CONTAINING LIST OF MOTOR VEHICLES, WITH NUMBER AND DIMENSIONS OF PISTON RINGS, HELD SUBJECT TO COPYRIGHT.

A pamphlet printed and circulated by a manufacturer of piston rings used for replacements, containing a list of the different makes of motor vehicles, giving for each year the model, bore, grooves, size, and, number of rings, compiled from original sources at considerable expense, the pamphlet being designed primarily for advertising purposes, but containing information not otherwise obtainable, useful to repair shops and others, held subject to copyright.

2. COPYRIGHTS-DEPOSIT OF COPIES WITH APPLICATION HELD COMPLIANCE WITH STATUTE.

The deposit in the Copyright Office, with application for copyright, of two copies of a pamphlet containing the required notice, out of the first number received from the printer and before their circulation, held a substantial compliance with copyright act, section 12 (Comp. St. sec. 9533).

3. COPYRIGHTS-NOT INVALID BECAUSE THE AUTHOR WAS AN EMEMPLOYEE.

A copyright for a pamphlet held not invalid because the compiler, in whose name as author the copyright was taken, did the work as employee of another.

4. COPYRIGHTS-WHEN DAMAGES FOR INFRINGEMENT ARE IN DIS

CRETION OF COURT.

Where the damages for infringement of a copyright are not ascertainable, the compensation to which the owner is entitled is committed to the discretion of the trial judge. Appeal from the District Court of the United States for the District of Maryland, at Baltimore; John C. Rose, judge.

Suit in equity by William K. Norris and others against the No-Leak-O Piston Ring Company. Decree for complainants, and defendant appeals. Affirmed.

For opinion below, see 271 Fed. 536 (supra). John E. Cross, of Baltimore, Md., for appellant. John F. Green, of St. Louis, Mo., for appellees. · Before Knapp, Woods, and Waddill, circuit judges. KNAPP, Circuit Judge. In this suit for infringement of a copyright, plaintiffs had a decree and defendant appeals.

66

Both parties manufacture and sell piston rings for replacement purposes; they are active competitors in that business. Beginning in 1913, and each year since down to 1919, the plaintiffs, or their predecessors in title, have published and distributed a printed pamphlet entitled Dimensions of Piston Rings." This pamphlet lists the various makes of motor vehicles in alphabetical order, and gives for each the year, model, bore, groove, size, and number or rings, and the like. It appears to be an excellent advertisement, and also a valuable reference book for repairmen to use in ordering piston rings for their customers. Indeed, without the data furnished by such a compilation, it would be practically impossible for dealers to keep a supply of rings in stock. Each yearly issue of this pamphlet has been copyrighted, and it is the issue of 1919 which defendant is charged with

infringing. For the purpose of detecting infringers, plaintiffs have, for some years past, included in their annual lists a number of fictitious or "trap" models; that is, nonexistent cars, and rings that are never used. In the edition of 1919 there were 12 of these decoys.

Defendant's pamphlet, styled "Piston Ring Size Directory," was issued about the 1st of June, 1920. In December of the previous year the Motor World, a trade journal, had published a catalogue of piston-ring dimensions. Except that models prior to 1916 were omitted and passenger cars separated from trucks, this catalogue was a reproduction of plaintiffs' compilation, including 10 of the 12 fictitious models. The Motor World admits that it got all the data for its publication from the copyrighted pamphlet issued by plaintiffs. Defendant's pamphlet was prepared by taking the Motor World's catalogue, recombining passenger cars and trucks, thus giving its list the same general character as that of plaintiffs', and adding information obtained by it regarding piston rings for some of the 1920 models, which, of course, did not appear in plaintiffs' 1919 edition. Some 55,000 copies were printed, of which 10,000 to 15,000 appeared to have been distributed at the time of the trial. The decree below finds plaintiffs' copyright valid, and infringed by defendant's publication, grants the usual injunction in such cases, directs delivery of the copies on hand to the marshal, to be by him destroyed, and awards damages in the sum of $3,000, with counsel fees of $750 in addition to taxable costs.

[1] It is argued that plaintiff's pamphlet is not covered by the copyright statutes (Comp. St. secs. 95179524, 9530-9584), and therefore not entitled to protection, but the argument is quite unconvincing. This pamphlet is much more than an ordinary price list or table of figures. It is a compilation from primary sources of a great number of facts which, so far as appears. had not before been available to the trade, and in that respect, at least, is an original production. It certainly displays as much originality as a city directory, which frequently has been held entitled to copyright. (Williams v. Smythe (C. C.), 110 Fed. 961; Trow Directory Co. v. U. S. Directory Co. (C. C.), 122 Fed. 191.) Moreover, the information thus made public was obtained only by considerable effort and expense. The proof shows that it cost plaintiffs some $3,000 to get the