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NOEL D. TURNER v. CENTURY HOUSE PUBLISHING CO. (06/05/68)
SUPREME COURT OF NEW YORK, TRIAL TERM, SCHUYLER COUNTY
1968.NY.41946 <http://www.versuslaw.com>; 290 N.Y.S.2d 637; 56 Misc. 2d 1071
June 5, 1968
NOEL D. TURNER, PLAINTIFF,v.CENTURY HOUSE PUBLISHING CO., INC., ET AL., DEFENDANTS
Valent, Callanan & Ruger (Henry Valent of counsel), for plaintiff.
Frank L. King for defendants.
Frederick B. Bryant, J.
In this action the plaintiff seeks damages and an injunction against the defendants for alleged wrongful appropriation of the literary property of the plaintiff in plaintiff's unpublished manuscript entitled "American Silver Flatware of the Victorian and Edwardian Period". Defendant, G. L. Freeman, has written and defendant, Century House Publishing Co., Inc., has published a book entitled "Victorian Silver". Plaintiff alleges this book was copied from his manuscript in violation of the plaintiff's common-law copyright in his unpublished work.
The plaintiff is a free-lance writer who has written generally on the subjects of architecture and design. The defendant, G. L. Freeman, a former university professor of psychology, has for several years devoted himself to the collecting of antiques and has done extensive research on the subject of antique Americana. He has written books and articles on a variety of subjects of interest to collectors of antique objects. He is president of Century House Publishing Co., Inc. and a director of the American Life Foundation, co-defendants in the present action.
Century House Publishing Co., Inc. is engaged in the business of publishing books of special interest to collectors. The American Life Foundation is a nonprofit educational institution supported by voluntary subscription and devoted to the dissemination of information of interest to collectors and students of early Americana.
Sometime prior to 1960 the plaintiff became interested in silver flatware. In 1960 he met the defendant, G. L. Freeman, and discussed with him the writing of a book on the subject of silver flatware, particularly of the Victorian period, for publication by the defendant, Century House Publishing Co., Inc. Freeman, as president of Century House Publishing Co., Inc., encouraged the plaintiff to undertake this work and a contract was executed by the parties in which the plaintiff agreed to write a book about Victorian flatware for publication by the Century House Publishing Co., Inc.
In March of 1964, the plaintiff sent the defendant a sample chapter and outline of the proposed book. In July, 1964 he submitted the finished manuscript of his book which was entitled "American Silver Flatware of the Victorian and Edwardian Period".
The manuscript was returned to the plaintiff on July 22, 1964, with the defendant's comments and editorial notations. Meanwhile, plaintiff had also submitted to the defendant a sample of sterling flatware pattern listings, pattern index, list of Victorian silversmiths, trade-mark index and a list of silver-plated flatware manufacturers. These were not complete, but were samples of the material to be included in the book.
Sometime in the summer of 1964, the defendant Freeman complained about the delay in receiving the finished manuscript from the plaintiff in time for publication deadlines. This culminated in a termination of the contract with the plaintiff and, eventually, in the writing and publishing of the Freeman book.
In 1967 the Freeman book was published by the defendant, Century House. This book on the general subject of silver flatware and hollow ware brought about this action. There is nothing to indicate that defendant, the American Life Foundation, was in any way connected with either the preparation or publication of the book. Consequently, the plaintiff's action is dismissed as to that defendant.
It is the contention of the plaintiff that in the writing of the Freeman book, "Victorian Silver", the defendant has copied and wrongfully appropriated substantial portions of the plaintiff's manuscript, "American Silver Flatware of the Victorian and Edwardian Period". The plaintiff seeks damages for the alleged wrongful appropriation and also seeks to enjoin the defendants from any further publication or distribution of the Freeman book.
The plaintiff stresses the conceded fact that the defendant had access to his finished manuscript before writing the book which is the subject of the claimed infringement. He has carefully analyzed the defendant's book and in his bill of particulars points to some 96 items which he claims were appropriated from his work.
The defendant Freeman emphasizes his own background in the field of antiques, particularly with reference to early English and American silverware. The evidence shows that both defendant and his wife had done extensive research in the field of silver flatware before the plaintiff agreed to produce a book on the subject. The evidence shows that defendant has ready access, as a director of the American Life Foundation, to an extensive library of some 20,000 volumes at Irelandville, New York, of which some 200 are on the subject of silver flatware and hollow ware. The evidence further developed the defendant's long experience as a writer in the field of antique collecting and his interest in silver flatware which dates back to 1940 when he served in the United States Navy. In 1947 the defendant co-authored a book on silver flatware entitled "Early American Plated Silver".
Defendant produced in court a great many source materials which allegedly formed the informational basis of his work. The court notes that these materials obviously constitute common source material to which both plaintiff and defendant had ready access. The defendant testified as to the independent research which he did with the help of his wife in the field of silver flatware in preparing his book. One witness testified to consultations with the defendant in connection with the correct identification of silver flatware patterns.
The legal basis of the plaintiff's cause of action is stated in American Jurisprudence, Pleading and Practice Forms (vol. 13, p. 280): "An author, composer or other creator has certain property rights in his production, rights that were recognized at common law and still exist regardless of copyright laws. The only effect of copyright is to give the creator a monopolistic privilege, limited in time, to print or otherwise publish and sell copies of his creation. The creator is thus protected in two ways; he has a common law right of action for damages against anyone who publishes his previously unpublished production without his authority, and in addition, if he has ...