American Travel & Hotel Directory Co. v. Gehring Pub. Co., 4 F.2d 415 (S.D.N.Y. 1925)

US District Court for the Southern District of New York - 4 F.2d 415 (S.D.N.Y. 1925)
February 9, 1925

4 F.2d 415 (1925)

AMERICAN TRAVEL & HOTEL DIRECTORY CO., Inc.,
v.
GEHRING PUBLISHING CO., Inc.

District Court, S. D. New York.

February 9, 1925.

John E. Cross, of Baltimore, Md., and Benno Lewinson and Jeffery, Kimball & Eggleston, both of New York City, for plaintiff.

Campbell & Boland, of New York City, for defendant.

WINSLOW, District Judge.

This action is brought for infringement of copyright of a hotel directory. Plaintiff's directory was compiled by one Phillips beginning with the year 1914, and published and compiled annually thereafter. The 1921 edition of plaintiff's compilation, entitled "American Travel & Hotel Directory," is the subject of the action. The 1921 edition was duly copyrighted, as required by law, by Harold W. Phillips, published on March 1, 1921, copies received November 5, 1921, by the Register of Copyrights, and entered, Class A, XXC, No. 827602. The plaintiff is the assignee of Phillips.

Upwards of $10,000 a year was expended by plaintiff in the annual revision of this book, including the edition which is the subject of the action, which expenditure is said to be exclusive of printing expenses. The alleged infringing publication published by the defendant is a much smaller volume, containing hotel information in the various states and localities, known as the "Gehring Hotel Directory and Index of Hotel Supply and Equipment Houses."

Plaintiff contends that defendant's publication has not been compiled from sources of original information, but has been taken bodily from the plaintiff's publication. An injunction pendente lite was issued herein prior to the trial of the action. At the conclusion of plaintiff's case on the trial herein the defendant rested, and moved to dismiss the bill of complaint.

It is not disputed that the defendant has distributed many copies of its publication. The questions to be determined are: (a) The compliance by the plaintiff, or by his assignee, with the provisions of the law necessary to make his copyright valid; and (b) the question of fact as to whether the evidence indicates that the defendant has, in substance, taken his information from plaintiff's publication, without original compilation.

Under the present law, publication must precede registry. The record discloses to my satisfaction that the provisions of the copyright law have been complied with by the plaintiff, or its predecessor in title. Technical objection is made by the defendant that plaintiff's publication has not a title-page. It is true that the book contains advertising pages, which precede the title-page and the notice of copyright and registration, together with the name of the publisher. I think, however, that title-page is a compliance with the requirements of the statute.

Objection is further made that the record does not show that the copyrighted publication was manufactured within the United States, but the certificate of the Register of Copyrights is in evidence, and is "prima facie evidence of the facts stated therein." This certificate recites, among other things, "Affidavit received Nov. 5, 1921." This affidavit is the affidavit required of the things which are conditions precedent to the issuance of the certificate by the Register of Copyrights. If it be assumed that the edition which is the subject of this action is a revision of other books published under copyright protection, as the record indicates, plaintiff's case is not thereby weakened.

Plaintiff has called its publication a "directory." I think, under the definitions, that it is in that class and covered by the copyright in question. A directory is "an alphabetical list, as of the names and addresses of the inhabitants or business houses in a city, of all those engaged in particular lines of business, classified in groups, or of any special class; printed in book form, *416 and usually bound up with advertisements." Standard Dictionary.

I think the evidence fully justifies the conclusion that plaintiff's publication was compiled from information collected from original sources, and the arrangement of the information so collected was original with Phillips, the author and compiler of the directory. A comparison of the two publications discloses many things of probative force in arriving at the conclusion that defendant's publication is an infringement.

In the 1921 edition of the plaintiff's directory are inserted the names of certain nonexistent hotels, as decoys, all of which appear in defendant's publication. A few illustrations will suffice. On page 65 of plaintiff's book is listed a hotel, "Red Bluff, California, Phillips, 60 Rms. (Sub.) A. $5.00." On page 12 of defendant's publication, under "Red Bluff, Cal.," may be found the same hotel listed, "Phillips, 60.. A. $5.00." In like manner, at page 605 of plaintiff's publication, "Flasher, N. D., Phillips, 50 Rms. A. $3.00." The same hotel is listed in defendant's publication, page 110, "Flasher, N. D., Phillips, 50.. A. $3.00." Again, at page 549 of plaintiff's book, "Dexter, New York, Phillips, 60 Rms. (Sub.) A. $5.00." The same hotel is listed in the Gehring Hotel Directory, page 94, "Dexter, New York, Phillips, 60.. A. $5.00." At page 771 of plaintiff's publication, "Columbia, Texas, Phillips, 50 Rms.. A. $3.00." The same hotel is listed in the Gehring Hotel Directory, page 137, "Columbia, Texas, Phillips, 50.. A. $3.00." Plaintiff's publication, page 228, "Richmond, Indiana, Sheernstowe, 65 R. (Sub.) E. $1.00." Defendant's book, at page 39, "Richmond, Indiana, Sheernstowe, 65 (Sub.) E. $1.00."

There are numerous errors which crept into the compilation of plaintiff's publication, which are recopied in defendant's publication. One will suffice to illustrate. In plaintiff's publication, page 731, Charleston, South Carolina, is listed "Francis Marion Hotel, 312 Rms.. E. $2.00." It seems that this hotel was in prospect, but not built. The estimated number of rooms was given from a picture, but the erroneous data is found in defendant's publication at page 131, "Charleston, South Carolina, Francis Marion, 312.. E. $2.00." Upwards of 15 or more errors are specifically pointed out, which have found reproduction in defendant's publication. In addition to these things are numerous hotels at various places, where the words appear, "Data suspended." In like manner, no data are given concerning these particular hotels in defendant's publication. The instances of direct appropriation from plaintiff's publication of various other particulars are so numerous as to preclude any other conclusion than that the defendant has deliberately used plaintiff's directory in the compilation of his book, instead of seeking information from original sources. It is unnecessary, however, further to illustrate the facts leading to this inevitable conclusion.

From the foregoing, I am satisfied that a case for injunctive relief has been fully made out by the plaintiff. These important errors in the two directories satisfy the court that defendant's directory was copied, either directly or indirectly, from plaintiff's book. The case of Jewelers' Circular Publishing Co. v. Keystone Publishing Co. (D. C.) 274 F. 932, affirmed (C. C. A.) 281 F. 83, 26 A. L. R. 571, is directly in point. At page 88 the court said:

"The right to copyright a book upon which one has expended labor in its preparation does not depend upon whether the materials which he has collected consist or not of matters which are publici juris, or whether such materials show literary skill or originality, either in thought or in language, or anything more than industrious collection. The man who goes through the streets of a town and puts down the names of each of the inhabitants with their occupations and their street number, acquires material of which he is the author. He produces by his labor a meritorious composition, in which he may obtain a copyright, and thus obtain the exclusive right of multiplying copies of his work. * * * That in a number of instances addresses are given as they appear in the plaintiff's book, although the addresses were wrong at the time the defendant began the work of compilation on its book, owing to removals from one place of business to another."

A decree will be entered in favor of the plaintiff, together with counsel fees of $750, and damages to the plaintiff in the sum of $1,000; decree to be settled on notice.