Appeal from the District Court of the United States for the Northern District of Illinois, Eastern Division; William H. Holly, Judge.
Before EVANS, MAJOR, and KERNER, Circuit Judges.
A copyright infringement suit is before us. Defendants were enjoined from selling their book "Best Places to Eat" because the court found it to be an infringement of the plaintiff's copyrighted book "Adventures in Good Eating." Both books were compilaitons of choice restauraurants located throughout the United States, and were made to aid travelers, of whom there are (or were) many, who appreciate good eating places.
The decree of the District Court adopted the report of a master, and provided, in addition to the injunction and provision for destruction of existing copies, for the recovery of damages, master's fees, and attorneys' fees totaling $5,915.50*fn1 from both the corporate defendant, and Mr. Barrett, its president and majority stockholder. The defendant, Illinois Automobile Club, of which Mr. Barrett was also president, was dismissed from the suit.
Appellants raise several minor and hypertechnical questions relative to copyright law, but the more substantial ones relate to the soundness of the finding of infringement, the liability of the corporate officer for the torts of the corporation allegaedly his instrumentality, and the propriety of a reference and the cost thereof.
The Facts. The plaintiff's book is a small paper manual of less than three hundred pages, listin some 1400 eating places. It retails for $1.50 and about 180,000 have been sold. There have been eight editions. Defendants' book is of the same stlye, containing twenty-five less pages. They have published one edition of about 10,000 copies of which 3,500 have been sold at fifty cents a copy.
Defendant Barrett was president of the Illinois Automobile Association, which is a non-profit corporation. He decided to organize a corporation for profit, to edit and publish a book which would catalogue dining places throughout the United States. The book was to be sold to the members of the Automobile Association, and to the public generally. He organized the defendant corporation to effectuate this objective, with a capital stock of $1,000, of which he held sixty shares, his daughter, thirty shares (which he paid for), and a third person held ten shares. The new corporation occupied a room in the Automobile Club's building, rent free.
Infringement. Mr. Barrett hired a Mr. Cox, who wrote the copy for the book. Another employee was a typist. Both Mr. Cox and the typist (and Mr. Barrett) testified. Mr. Cox admitted that on the second day of his employment, at dinner, Mr. Barrett showed him a copy of plaintiff's book. The typist stated she saw a copy of plaintiff's book on Cox's desk, a couple of times. Other than that, there was not direct evidence which might bear on actual copying.Cox testified that Barrett handed him much material, including menus, memos of a salesman by the name of Goodman, who allegedly had extensive experience in traveling in the New England states, for which memos Barrett paid Goodman, $100. Goodman did not testify. Cox and Brrett both stated the copy or manuscript could not be located to verify the originality of the work Cox stated he asked for it at the office, but being no longer in the defendant's employ, he had no right to search for it. Barrett stated a search had been made, but the copy and could not be found.
Infringement must then be determined by an examination of the books themselves. The master did this, picking at random several quotations from plaintiff's book, 1936 edition, locating the analogous quotation in defendant's book, and placing them in parallel position, for comparison. The master found them to be sufficiently alike to constitute plagiarism, and the trial court made a finding of fact that the defendants' book was "to a substantial and material degree, copied from plaintiff's copyrighted book, and particularly from the 6th and 7th editions thereof, and that said book 'Best Places to Eat from Coast to Coast' infringes the copyrights of the plaintiff's said book."
In reviewing this finding we have very carefully examined the two books, and conclude the finding is fact supported. The books bear a resimblance to each other, and the phraselogy in many instances is strikingly similar. Defendants seek to explain the similarity in wording as the logical result of the copying by both plaintiff and defendants of menus supplied by the restauranteurs listed in the books - that naturally and inevitably the same listing of prices, of specialties in food, and unusual features of the respective places would occur when the menus were used as source material in making up the copy. We are not convinced that this suggestion would explain the existence of such close and parallel wording, and especially would it not explain the substantially same selection of places listed in the respective books.
As corroborative on this finding of infringement was the existence of common errors in both books, - of telephone numbers, locations, etc. This matter of common errors is, of course, strong evidence of actual copying. Identical errors are not, without explanation of their source, to be taken merely as a happenstance or an innocent coincidence. Of course, if it be shown that the common error arose from misstatement by a source availavle to all, no unfavorable inference may be drawn form the common error. Defendants, here, chose not to enlighten the court as to the origin of the errors, but have availed themselves of technical objections to the manner in which common error was attempted to be established, - to-wit, by the Request for Admissions.
The plaintiff filed a "Request for Admission of Fact, etc., Under Rule 36 of the Rules of Civil Procedure." Defendants made no reply to this request for admission, and the trial court accepted the statements in the request, pursuant to Rule 36 of ...