Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 74 C 3750 - Prentice H. Marshall, Judge.
Pell, Tone and Wood, Circuit Judges.
In this action for infringement of a copyright on a gardening directory, some copying was conceded. The issue is whether it amounted to infringement or, as the District Court held, was permissible because limited to information in the public domain. We hold that infringement occurred.
Plaintiff Marion S. Schroeder was the compiler of The Green Thumbook, for which a concededly valid copyright was issued. Defendants are the publisher and the printer of the accused book, The Gardener's Catalogue. We cannot improve on the description of the books and the manner of their preparation which appears in the unpublished memorandum decision of the District Court:
"THE GREEN THUMBOOK is a booklet of 63 pages with a page size of 6 1/4 inches by 9 inches and retails at $2.95 per copy. It is a listing of sources of supplies, equipment, information and associations of all types for the gardening enthusiast. Its author, Marion S. Schroeder, described its purpose as follows:
* plant wild strawberries or wild rice,
buy perennials by the 6-pack or pine cones in 5-bushel lots,
* mix soilless mixes or learn how to garden under lights,
* grow beans on your balcony or mushrooms in your basement.
"After some introductory instructions on how to use the GREEN THUMBOOK, it contains nothing other than listings of the names and addresses of suppliers of seeds, plants, materials, equipment, books, periodicals and plant societies, together with brief descriptions of each. It concludes with an alphabetical index which is comprised of the proper names of the suppliers, etc., and subject matters, e.g., ' Birdhouses, how to build, 53,' id. p. 57.
"Thus, a typical entry is the first one. Appearing on page 6 of the work, under the category 'SEEDS. . . .' is the following:
'BURGESS SEED and PLANT CO., Galesburg MI 49053. 616-665-7079. Vegetable seeds and plants; some flower seeds; fruit and nut trees and berries; ornamental nursery stock; perennials and bulbs; wide variety of garden supplies. Many new plant introductions each year. 42 p., 8 1/2 x 11, color il.'
"Specifically, the GREEN THUMBOOK includes the following material which is in issue in this case:
1. 350 plant and seed suppliers broken down into 37 categories.
2.94 gardening equipment suppliers broken down into ...