Maddux v. Grey, 43 F.2d 441 (S.D. Cal. 1930)

Arthur F. Larrabee, of Los Angeles, Cal., for plaintiff.

Frank James, of Los Angeles, Cal., for defendant.

COSGRAVE, District Judge.

Plaintiff, as assignee of Alice V. Schmidt, formerly the widow and the only heir of John R. Cook, author of the book entitled "The Border and the Buffalo," filed his bill against the defendant, Zane Grey, claiming infringement by the latter of the copyright on the literary work described. He charges that, instead of resorting to original sources, defendant unfairly used the product of Cook's labors in publishing and selling the book entitled "The Thundering Herd." Plaintiff asks for an injunction and for an accounting.

Issue is joined by the defendant on the existence of a valid copyright, assignment of the same, and infringement.

The testimony in support of the bill shows the publication of plaintiff's work in 1907 with sufficient notice of copyright in compliance with the statute. The surviving wife of the author, Cook, testified that in January, 1908, her husband prepared two copies of the work, addressed them to the Register of Copyrights at Washington, D. C., and she saw the author, her husband, personally deposit the same in the United States post office at Tweedy, Kan. Formal publication, it was shown, was made in 1908. Defendant's book was published in 1925.

While it is true that a considerable time has elapsed since the occurrence there narrated, and there is always possibility of innocent mistakes, I find no legal reason to disregard the uncontradicted evidence thus given, and believe that the copyright statute (Act March 3, 1891, § 3 [17 USCA § 12 note]) existing in 1908 was sufficiently complied with. It is true that in 1912 a circular was sent out by the copyright office advising the author that copies of his book had not been received there. The author thereupon immediately forwarded additional copies. It is to be noted that the statute (17 USCA § 12) does not require that the copy thus deposited in the mail addressed to the register in Washington be actually received as a prerequisite to the existence of a valid copyright. The statute is complied with by the deposit in the mail. The evidence given by the witness, being entitled to full credence, therefore shows a sufficient compliance with the statute.

It is also uncontradicted that John R. Cook died intestate, a resident of the state of Kansas, and without issue and without creditors. No administration has been had of his estate. In such case all property is vested immediately in his surviving wife. Brown v. Baxter, 77 Kan. 97, 94 P. 155, 574.

The assignment of the copyright, together with the right to sue for damages for infringement, seems to be vested in plaintiff by an instrument sufficient for that purpose. I conclude therefore that the existence of copyright, together with plaintiff's right of action for infringement, is sufficiently shown.

*442 I find myself unable to agree, however, with plaintiff that the evidence shows a case of infringement or unfair use of the book published by John R. Cook.

"The Border and the Buffalo" is an autobiography of the author, John R. Cook, supplemented by sketches of a few acquaintances. Born in 1844, he enlisted in the Union Army, serving in the border warfare in Kansas during that unhappy period. After the close of the war, and after a rather commonplace existence for several years, he traversed the then unsettled regions of Colorado and New Mexico, enduring privations and hardships, and was kindly treated by the Woods family. This consisted of the senior Woods and his wife, a married son and his wife, a brother of the latter, and several children. The author made his home with the son.

In 1874, engaging with the elder Woods to recover buffalo hides at 30 cents each, he began his career as a buffalo hunter in Kansas and Texas, and his narrative without doubt truthfully describes the situation with respect to Indians, immigrants, and buffalo of that period. He describes the numbers and habits of the buffalo, the magnitude of the hunting operations, the intimate details of the hunt, of skinning the animals and caring for the hides, and the strife between the hunters and the Indians.

He accompanied the Woods family for one season only, leaving them at the end of the year 1874, at which time they drop entirely out of the narrative. The author continued in the business of buffalo hunting. He describes the events of the next three years in a somewhat desultory fashion with Indian fights, hunting adventures, and privations until, due to the extermination of the animals in 1877, like Othello, he found his occupation gone.

As suggested, the book is a personal narrative and no doubt presents a truthful picture of the times. It may be considered a valuable contribution to the history of the Southwest immediately following the Civil War. As a literary work it is without merit. The style is commonplace. In fact, merit of this kind is expressly disclaimed by the author. It is an interesting picture of a vanished era and one that can never be repeated. Necessarily it is without plot. The story, while interesting and valuable, recites only the commonplaces of Western pioneer life of the period.

"The Thundering Herd" is a love story of Tom Doan, the principal character, and Milly, an orphan girl living with her stepfather among evil surroundings. Tom engages in buffalo hunting under conditions quite similar to those under which Mr. Cook worked. He learns of Milly's ill treatment. They meet secretly. He rescues her temporarily from her unhappy surroundings. She is compelled to return only to face dangers more sinister than before. She is miraculously preserved in a maelstrom of stampeding buffaloes and pursuing Indians, but Tom all the while believes her dead. The weight of his grief only heightens the happiness of their final reunion. The scene is laid in the region and time described by Mr. Cook. Necessarily there are many similarities. These are found mainly in the historical facts. Buffalo hide hunting is described with one Indian fight participated in and described by Mr. Cook. It is true that a number of incidents are described in both works. There are similarities in details in the two works. These are relatively unimportant compared with the main plot of the story.

I can find nothing to indicate that the defendant, Grey, in "The Thundering Herd" has in any sense appropriated the literary labors of the author of "The Border and the Buffalo." The entire plan, the foundation, framework of the two books, and treatment of the subject are entirely dissimilar. It can only be said that the stories are similar in the treatment of the Indians and description of buffalo herds and hunting. These, however, are historical facts. They are in the public domain. Situations quite similar to those described in "The Border and the Buffalo" are to be found in many stories of the West. Francis Parkman in "The Oregon Trail" describes them. Horace Greeley even in 1859, after apologizing, it may be noted, for discussing so trite a subject, believes that he saw ten thousand buffalo in one herd and one million in a single day. William Cullen Bryant speaks of the remote plains where "roam the majestic brute in herds that shake the earth with thundering steps." A large number of other writers of fact and fiction have found in this a fascinating subject. The history of the West is not complete without the story of the buffalo. That the unnumbered millions among the largest wild animals roaming the earth's surface should be exterminated in a single generation is the greatest tragedy in animal history, melancholy, but inevitable.

The evidence submitted in this case does not show that the defendant adopted the literary ideas or labors of the author of "The *443 Border and the Buffalo," and judgment should follow in favor of the defendant. It is so ordered. Defendant should recover his costs but not counsel fees.