
    Lawyers’ Co-operative Publishing Company, Plaintiff, v. West Publishing Company, Defendant.
    
      Libel — defamatory head lines prefixed to a report of a judicial decision — they must be a fair index of the report and are to be construed in connection with it.
    
    In determining whether head lines prefixed to a published statement are libelous they and the matter following them to. which they refer must be construed together.
    Defamatory head lines prefixed tó a report of a judicial decision or of judicial proceedings are no - part of the report, but are, in effect, comments upon it and are not privileged unless they are a fair index of the matter contained in a truthful report.
    In an .action for libel based upon the fact that the defendant had annexed to a report of a decision of the United States Circuit Court of Appeals, determining that the 7th volume of the General Digest published by the plaintiff was piratical and constituted a violation of the copyrights of the defendant, the head lines “ General Digest Piratical” and “The Circuit Court of Appeals in a test case finds the General Digest piratical and grants a permanent injunction,” the plaintiff’s contention being that the head lines charged that all volumes of ■the “ General Digest” were piratical, it was
    
      Re Id, that, construing the head lines in connection with the report, such head lines were to be understood as relating to the volume referred to in the report, and constituted a fair index of the matter contained therein.
    
      Motion by the plaintiff, the Lawyers’ Co-operative Publishing Company, for a new trial, made upon a case containing exceptions, ordered to be heard. at the Appellate Division in the first instance upon the verdict of a jury, in favor of the defendant, rendered by. direction of the court after a trial at the Monroe Trial Term.
    This action was begun May 19, 1897, to recover damages-for the publication of an alleged libel. The plaintiff is a domestic corporation, located at Rochester, Mew York, and engaged in publishing "lawbooks, among which is a work known as the “ General Digest,” which, from 1888 to 1895, inclusive, was published annually, and, since the latter date, has been published semi-annually. This work digests the reported decisions of the Supreme Court of the United States, of the courts of the several States of the United States, and of the courts of England and of Canada and is copyrighted. The- defendant is a foreign corporation located -at St. Paul, Minn., which in 1887 began, and has since continued, the publication, annually, of a work known as “The American Digest,” which digests the reported decisions of the Supreme, Circuit and District Courts of the United States and of the courts of the several States and Territories of the United States and is copyrighted. This digest is published in monthly numbers designated “Advance Shefets,” which are distributed to subscribers throughout the United States. The defendant for several years has also been, and now is, engaged in publishing the Supreme Ootir-t Reporter, • Federal Reporter, Atlantic Reporter, Mortheastern Reporter, Southeastern Reporter, Southern Reporter, Morthwestern Reporter, Southwestern Reporter and Pacific Reporter, which are copyrighted. These reporters are published in weekly numbers, designated “ Advance-Sheets,” which are distributed to subscribers throughout the United States.
    In 1892 the Lawyers’ Co-operative Publishing Company published the 7th volume of its General Digest, and in December of that, year the West Publishing Company filed a bill inequity against the Lawyers’ Co-operative Publishing Company in the United States Circuit Court for the northern district of Mew York, wherein it is alleged that the Lawyers’ Co-operative Publishing Company had, by publishing volume 7 of the General Digest, violated the copyrights obtained by the West Publishing Company for The American Digest and the various reporters hereinbefore referred to by taking from them the copyrighted syllabi of the cases reported in said “ reporters ” and the matter contained in The American Digest. To this bill the Lawyers’ Co-operative Publishing Company interposed an answer. J une 6,1893, the Circuit Court denied in part an application for an injunction restraining pendente lite the publication and sale of volume 7 of the General Digest, and in July, 1893, the Lawyers’ Co-operative Publishing Company published in the advertising pages of the semi-monthly parts of its General Digest the following:
    “ THE GENERAL DIGEST “ Preliminary Injunction “ Denied.
    “On Tuesday, June 6, on bringing in of the master’s report in the case of West Pub. Go. v. Lawyers' Go-op. Pub. Go., Judge Alfred C. Coxe of the U. S. Circuit Court refused to grant the preliminary injunction prayed for, against defendants selling General Digest, Yol. YII, on ground of piracy, except as to a few paragraphs, which few being still" in controversy, have been replaced by others.. * * * ”
    On the trial of the action it was held that the Lawyers’ Co-operative Publishing Company had unfairly used the syllabi of the reporters and the matter of The American Digest published and copyrighted by the West Publishing Company, and an injunction was granted restraining to a limited extent the publication and sale of volume 7 by the Lawyers’ Co-operative Publishing Company. (64 Fed. Rep. 360.) From this judgment the West Publishing"' Company appealed to the United States Circuit Court of Appeals on "the ground that the relief granted was too limited, and on that appeal the judgment was, April 8, 1897,- reversed, and the Circuit Court directed to grant to the West Publishing Company broader relief. (51 U. S. App. 216.) It was held by both courts that the Lawyers’ Co-operative Publishing Company had violated the copyrights of the West Publishing Company, and that the Lawyers’ Co-operative Publishing Company had, in volume 7 of the General Digest, pirated the syllabi and matter of the copyrighted publications of the West Publishing Company.
    
      In April, 1897,' the defendant herein printed upon the 1st and 4th pages of the covers of the monthly advance sheets of The American Digest, upon the 1st and 4th pages of the covers of the weekly advance sheets of the Supreme Court Reporter, upon the 1st and 4th pages of the covers, of the weekly advance sheets of the Federal Reporter, upon the 1st and 4th pages of the covers of the weekly advance sheets of the Southeastern Reporter, and upon the 1st and 4th pages of the covers of. the weekly advance sheets of. the Southwestern Reporter the following:
    “ General Digest Piratical;
    “ The U. S. Circuit Court of Appeals has just filed a decision in the test case of the West Publishing Co. v. Lcmyerd Co-operatime Publishing Co., finding a volume of the General Digest full of infringements of the copyrights of the complainants. (See fourth Cover page.) ”
    “West Publishing Company “ vs-
    
    
      “ Lawyers’ Co-operative Publishing Company.
    “ The Circuit Court of Appeals, in a Test Case, Finds the General Digest Piratical, cmd Grants a Permanent Injunction.
    
    “ The United States Circuit Court of Appeals has just rendered a ■decision in this suit, brought in December, 1892, as a test case against Yol. 7 of the General Digest. Judge Lacombe has filed an elaborate opinion, which is likely to be the leading authority on proof of infringement in copyright cases. It will be reported in full in an early number of the Federal Reporter. Meanwhile, as a matter of interest to our subscribers, we quote the following from the opinion, which will show the findings of the court on the merits of the ease: .
    “ ‘.The situation of the ease, then, is as follows: ¡Nearly 6,000 cases published in complainant’s pamphlets, with syllabi and- foot notes protected by copyright, were digested by persons in the employ of defendant, who repeatedly and systematically made an unfair use of the copyrighted work in order to save themselves the time and labor of original investigation. These unfair users endeavored, so far as practicable, to conceal the fact that such unfair use had been made — sometimes successfully, sometimes not; and in consequence it is not practicable now to determine, without evidence which they do not offer, in which cases an unfair use had been successfully concealed, and in which no unfair use was in fact made. In such a condition of affairs, where, by the misconduct of defendant’s employes, a part of complainant’s copyrighted work has been appropriated by defendant, and so mingled with original matter contained in its publication that no one, except its own employes who did the wrong,, can segregate the pirated from the original matter, and they do not make such segregation, the whole work, or so much of it as is tainted by the workmanship of the unfair users, should, be enjoined and accounted for.
    “■‘The circuit court is further instructed to decree in favor of complainant for a further accounting in accordance with the conclusions hereinbefore expressed.’ "
    
    
      William F. Cogswell, for the plaintiff.
    
      Walter S. Hubbell, for the defendant.
   Follett, J.:

The defendant having a legal interest in its copyrighted publications had the right to publish to its customers a true statement of the decision of the United States Circuit Court of Appeals, even though it censured the acts of the plaintiff in publishing its General Digest, and the defendant is not liable for publishing a fair report of such decision. (Edsall v. Brooks, 2 Robt. 29 ; S. C., 17 Abb. Pr. 221; 26 How. Pr. 426 ; Salisbury v. Union & Advertiser Co., 45 Hun, 120; Towns. Sland. & Lib. [4th ed.] §§ 229, 240; Stark. Sland. & Lib. [3d Eng. ed.] 214, 281; Odger’s Sland. & Lib. [2d Eng. ed.] 229, 248; 13 Am. & Eng. Ency. of Law, 319, 423.)

This is the rule of the common law, and is quite independent of section 1907 of the Code of Civil Procedure, which relates to-newspapers.

It is not alleged in the complaint that the publication, in so far as it refers to the 7th volume of the General Digest, is libelous. The only words complained of are the head lines “ General Digest Piratical ” arid The Circuit Court of Appeals, in a Test Case, Finds The General Digest Piratical and. Grants a Permanent Injunction.” It is urged by the learned counsel for the plaintiff that these words refer to the preceding volumes" of the General Digest as well as to the 7th volume, and that by these words the defendant charges, and intended that it should be believed, that all the volumes of the plaintiff’s General Digest were piratical and violations of the copyrights of the defendant. The defendant answers that the publication complained of is a fair report of the decision of the Circuit Court of Appeals, and that the publication refers in express terms to volume 7 of the General Digest.

Defamatory head lines are actionable though the matter following, is not,, unless they fairly indicate the substance of the matter to which, they refer, and suclr head lines prefixed to a report of a judicial' decision, or "of judicial-proceedings, are no part of the report, but are, in effect, comments upon it and are not privileged-, unless they áre a fair index of the matter contained'in a truthful report.

In determining whether head lines prefixed to a report are fair, they and the matter to which they refer must be construed together. (Edsall v. Brooks, supra ; Salisbury v. Union & Advertiser Co., supra.) In Edsall’s case it was held at Circuit, as a question of law, that the head lines complained of were not libelous, and anon-suit granted, but on appeal it was held that the head lines and the matter following must be construed together, and so construed that the head lines were not justified by the matter to which they referred, that they were libelous, and the judgment entered on the nonsuit reversed. In Salisbury's case it was ruled at Circuit that the head lines were justified by the matter to which they related and a nonsuit granted, which ruling was affirmed on appeal, the court saying: “ The contention on the -part of the plaintiff is that the heading of this publication does not necessarily import that it is part of the judicial proceedings, nor does it necessarily appear that it was such in fact. The article is set out in the complaint entire, and it is,' in view of the evidence, to be construed as a whole to ascertain its necessary import and that of its several parts. -The heading states a question which, standing alone, might be construed as libelous. But connected with what follows it appears to be a question presented by a judicial proceeding.”

Under these cases the question whether head lines are justified by the matter to which they relate is not always a question of fact for the jury.

The truthfulness of the report to which the head lines are prefixed is not questioned. ■

On the 1st page of the covers of the advance sheets of The American Digest and of the reporters it is stated in subhead lines, not complained of, that “ The U. S. Circuit Court of Appeals has just filed a decision in the test case of the West Publishing Co. v. Lawyers' Co-operative Publishing Co., finding a volume of the General Digest full of infringements of the copyrights of the complainants.” This is a plain statement that a volume — only one — was piratical and found to be full of infringements of the copyrights of the defendant. On the 4th page of the covers of the advance sheets of The American Digest and of the reporters it is stated immediately after the head lines that “ The United States Circuit Court of Appeals has just rendered a decision in this suit brought in December, 1892, as a test case against Vol. 7 of the General Digest.” Then follow a few lines of comment, not asserted to be libelous, closing with an extract from the opinion of the United States Circuit Court of Appeals. By this statement it clearly appears that the article refers only to the Yth volume of the General Digest, and it seems to me that the head lines are a fair index of the truthful report which follows. It is true that the words " General Digest,” standing by themselves, might refer to all the volumes of that work, but the term is equally appropriate to any single, volume of the work, each volume being so entitled, and it being explicitly explained in the body, of the article that reference is made only to the' Yth volume, persons reading the publication would not understand that it was charged that all the volumes were piratical.

The plaintiff in this action, when it published the result of the application for an injunction pendente lite, referred in the body of its article to volume 7 of the General Digest, and prefixed to the article the head line “ The General Digest.” It is clear that the plaintiff did not by its head line intend to include all the volumes of its digest, but to refer simply to the 7th volume, the head line being equally appropriate to a single volume or to all the volumes.

The plaintiff, having first used ■ the term “ The General Digest ” as an index or head line to an article relating to the 7th volume only, ought not to complain that the same term was used as an index by the defendant to a truthful article referring to the same-volume.

Construing, as we must, the head lines and matter to which they refer together, I think the head lines were a fair index to the matter to which they refer.

The plaintiff’s- exceptions should be overruled, and a judgment ordered on the verdict for the defendant, with costs.

All concurred.

Plaintiff’s exceptions overruled and motion for a new trial denied, with costs, and judgment ordered on the verdict for the defendant, with costs.  