INVESTMENT SERVICE CO. v. FITCH PUB. CO., 291 F. 1010

BAKER, Circuit Judge. Appellee’s suit resulted in a decree which adjudged that appellant’s “Investment News’ Directory of Investment Bankers and Brokers of America, 1922,” was an infringement of appellee’s 1921 copyright of “Fitch Listings of Investment Banks and Brokers in United States and Canada.” By stipulation of counsel the cause was submitted for final hearing upon the affidavits and exhibits which had been used in supporting and in opposing appellee’s motion for a preliminary injunction. Errors in typography and in matter appearing in appellant's book first occurred in appellee’s.

There were enough errors to repel any theory of accidental coincidence and to warrant a finding of intentional trespass upon appellee’s property. Such a situation justified a further finding that appellant’s copying was not confined to copying appellee’s mistakes. Weil on Copyright Law, pp. 460, 461; Frank Shepard Co. v. Zachary P. Taylor Pub. Co. (C. C.) 185 Fed. 941; Id., 193 Fed. 991, 113 C. C. A. 609.

Since it is impossible for us to determine from this unsatisfactory record what innocent matter, if any, was embodied in appellant’s book, we cannot predicate error on the court’s action in enjoining the entire book. Callaghan v. Myers, 128 U. S. 617, 9 Sup. Ct. 177, 32 L. Ed. 547; West Pub. Co. v. Lawyers’ Co-op. Pub. Co., 79 Fed. 756, 25 C. C. A. 648, 35 L. R. A. 400; Chicago Record-Herald v. Tribune Ass’n (C. C. A.) 275 Fed. 797.

Respecting appellant’s contention that appellee came into equity with unclean hands, in that if copied largely from a third party’s directory, we find that the record does not require us to deny the trial judge’s right to accept appellee’s affidavits as establishing that appellee’s book was based wholly upon independent and original matter. The decree is affirmed. <@=>For other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes