Chapter 6—Statutory Copyright Infringement

A most definitive and often quoted statement defining that which constitutes the infringement of a copyright/piracy is the following by Justice Story from the decision of Emerson v. Davies, et al., supra, 864, 865:RRPCI 5.2

“So that, I think it may be laid down as the clear result of the authorities in cases of this nature, that the true test of piracy (infringement of copyright) or not is to ascertain whether the defendant has, in fact, used the plan, arrangements and illustrations of the plaintiff, as the model of his own book, with colorable alterations and variations only to disguise the use thereof; or whether his work is the result of his own labor, skill, and use of common materials and common sources of knowledge, open to all men, and the resemblances are either accidental or arising from the nature of the subject. In other words, whether the defendant’s book is, quoad hoc, a servile or evasive imitation of the plaintiff’s work, or a bonafide original compilation from other common or independent sources.”

“There must be such a similitude as to make it probable and reasonable to suppose, that one is a transcript of the other, and nothing more than a transcript.”

“The question is, therefore, in many cases, a very nice one, what degree of imitation constitutes an infringement of the copyright in a particular work.”

Much the same views were earlier expressed in Folsom et al., v. Marsh et al., 9 F. Cas. 342 (No. 4904), 2 Story 100, 13-16 C.O. Bull. 991 (1841) cited with approval somewhat later (1858) in Greene v. Bishop, 10 F. Cas. 1128 (No. 5763), 1 Cliff. 186, 13-16 C.O. Bull. 1128, 1138 (1858) as follows:RRPCI 5.3

“all the authorities agree that it is not necessary that the whole, or even the larger portion, of a work, should be taken in order to constitute an invasion of a copyright; and they affirm the doctrine, that if so much is taken that the value of the original is sensibly and materially diminished, or the labors of the original author are substantially to an injurious extent appropriated by another, that such taking or appropriation is sufficient in point of law to maintain the suit.”

In the decision of Drury et al., v. Ewing et al., 7 F. Cas. 1113 (No. 4095), 1 Bond 540, 13-16 C.O. 803, 809 (1862), the Court cited as authority both Folsom et al., v. Marsh et al., and Emerson v. Davies et al., followed by Judge Woodbury’s comment from the former decision that the true inquiry in these cases is:RRPCI 5.4

“whether the book of the defendant, taken as a whole is substantially a copy of the plaintiffs’; whether it has virtually the same plan and character throughout, and is intended to supersede the other in the market with the same class of readers and purchasers by introducing no considerable new matter, or little or nothing new except colorable deviations.”

In Lawrence v. Dana et al., 15 F. Cas. 26 (No. 8136), 4 Cliff. 1, 13-16 C.O. Bull. 1545, 1606 - 1607, (1869) Justice Storrow acknowledged:RRPCI 6.1

“Few judges have devised safer rules upon the subject than Judge Story. He held that, to constitute an invasion of copyright, it was not necessary that the whole of a work should be copied, nor even a large portion of it, in form or substance; that if so much is taken that the value of the original is sensibly diminished, or the labors of the original author are substantially, to an injurious extent, appropriated by another, that is sufficient in point of law to constitute infringement; that, in deciding questions of this sort, courts must ‘look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale or diminish the profits, or supersede the objects of the original work.’”

Further variations or comments regarding copyright infringement, but all generally including the same common thread as the expressed in Emerson v. Davies et al., are quoted chronologically hereinafter with necessary brevity:RRPCI 6.2

“The question is correctly stated by the learned counsel for the complainant to be whether the defendants have used the plan, arrangements and illustrations of the complainant as the model of their own book with colorable alterations and variations only to disguise the use thereof, or whether the work is the result of their own labor, skill and use of common materials and common sources of knowledge, and the resemblances are either accidental or arising from the nature of the subject.” ^{1Lawrence v. Cupples et al., 15 F. Cas. 25 (No. 8135), 13-16 C.O. Bull. 1543, 1544 (1875).}

“These are not mere colorable differences, made for the purpose of concealing a literary piracy, but they are substantial, and forbid the conclusion that the defendant has copied the plaintiff’s books.” ^{2Bullinger v. Mackey, 4 F. Cas. 649 (No. 2127), 15 Blatchf. 550, 13-16 C.O. Bull. 469, 475, 476 (1879).}

“These methods spring from the necessities of the case and the character of the information intended to be conveyed; and their use by the defendant is not sufficient to constitute his book a servile imitation of the plaintiff’s books. Notwithstanding the similarity of the methods visible in these books, it still remains true, that the defendant’s book ‘is the result of his own labor, skill and use of common materials and common sources of knowledge, open to all men, and the resemblances are either accidental or arising from the nature of the subject.’” ^3Ibid.

“True, the defendant has not copied the whole, and perhaps not the larger portion, of either of the works of the plaintiff’s. He has, however, incorporated in his book material portions of each, and this constitutes infringement.” ^{4Reed et al., v. Holliday, 19 F. 325, 13-16 C.O. Bull. 2149, 2151 (1884).}

“It follows that to infringe this right (copyright) a substantial copy of the whole or of a material part must be produced.” ^{5Perris v. Hexamer, 99 U.S. 674 25 L. Education, 308, 13-16 C.O. Bull. 2050, 2051 (1878).}

“The sole liberty is invaded when any material part of what is the author’s own work is appropriated.” ^{6Gilmore v. Anderson et al., 38 F. 846, 13-16 C.O. Bull. 1072, 1075 (1889).}

“the matter and language of said books is the same as the complainant’s in every substantial sense.” ^{7Belford v. Scribner, 144 U.S. 488, 12 S.Ct. 734, 36 L. Education, 514, 13-16 C.O. Bull. 201, 213 (1892).}

“If defendants have reproduced, in substance and effect, the general characteristics of the original, though some minor particulars are intentionally avoided, then there is an infringement.” ^{8Springer Lithographing Co. v. Falk, 59 F. 707, 13-16 C.O. Bull. 2438, 2443 (1894).}

“Probably the most accurate, and at the same time concise, statement of the test of piracy is that laid down by Mr. Circuit Justice Story in Emerson v. Davies, 3 Story 768, 8 F. Cas. 615 (No. 4436) (C.C.D. Mass. 1846), a leading case in this country on the law of copyright. He says:

“‘It may be laid down as the clear result of the authorities in cases of this nature that the true test of piracy or not is to ascertain whether the defendant has, in fact, used the plan, arrangements and illustrations of the plaintiff, as the model of his own book, with colorable alterations and variations, only to disguise the use thereof; or whether his work is the result of his own labor, skill, and use of common materials and common sources of knowledge, open to all men, and the resemblances are either accidental or arising from the nature of the subject. In other words, whether the defendant’s book is, quoad hoc, a servile or evasive imitation of the plaintiff’s work, or a bona fide original compilation from other common or independent sources.’” ^{9Simms v. Stanton et al., 75 F. 6, C.O. Bull. 2406, 2408 (1896).}

Thus, the law as first, last, and substantially identically quoted is best reflective of the test of copyright infringement in the time period under consideration.RRPCI 7.1