
    No. 159
    W. H. ANDERSON CO. v. BALDWIN LAW PUB. CO.
    U. S. District Court, Eastern Division
    No. 1259.
    Decided Feb. 3, 1926
    309. COPYRIGHTS — 1. Where there is no substantial or material appropriation of complainant’s original labor or work, there is no infringing use made of the copyrighted book.
    2. Existence of similarities and common errors, though generally furnishing prima facie evidence of copying, is not conclusive unless in such amount so as to constitute an appropriation of the original work.
    941. PRACTICE & PROCEDURE — Finding of Master should not be conclusive upon the court where the matter has been referred after full trial in court and where the Master has not taken testimony or heard witnesses.
   JONES, J.

This action was one in equity against the Baldwin Law Publishing Co. for infringement wherein the W. H. Anderson sought an injunction, surrender of copies and plates, accounting and damages. The Anderson Co. published Page & Adams Ohio Annotated Code in seven volumes in 1912, the supplement in 1916 and the Topical Index to the General Code of Ohio in 1910.

The Baldwin Co. published Throckmorton’s Ohio General Code in one volume, in 1921, and a subsequent Appendix for use therewith in 1923. Anderson Co. claimed that this work infringes its copyrights upon those volumes as above set forth.

The Baldwin Co. did not dispute the plaintiff’s compliance with the copyright laws as to Page & Adams’ annotated Code or Supplement, but declined to admit the validity of copyright as to the Topical Index to the General Code of 1910. Defendant further denied infringement of any of .plaintiff’s copyrighted works.

Because the nature of the case required a search and comparison of various volumes and reports, the matter was referred to a Master. The conclusion of the Master was that no substantial infringements of plaintiff’s copyrighted works existed; and that none of the relief sought by the plaintiff was warranted; further concluding that the Bill be dismissed.

The Anderson Co. excepted to' the report of the Master and the Question was raised as to the conclusiveness of the Master’s finding upon the trial court. It was claimed that the Master made no specific finding of fact or law. It was further complained that the Master exceeded the limits of the reference in finding that no relief by way of damages should be afforded, because impossible of proof or computation. The District Court held:

1. The force and effect of the Master’s findings vary somewhat, depending upon the manner and terms of the reference.
2. In a case referred as this one, after full trial to the court, and where the Master has not taken the testimony and heard the witnesses, the findings of the Master should not be conclusive upon the Court.
3. Although the reference was proposed by the Court and the parties approved said order, it contains no requirement of special finding. This is a case where special findings would be most difficult to make and Equity Rule 61 is hardly applicable.
4. A claim of infringement made by the Anderson Co. is that the Baldwin Co. clipped and used Page & Adams annotations as copy for its Code.
5. This copy would have been important evidence if available, but it was not produced and the Master’s finding was based upon the conflicting evidence as to whether the printer of the publisher of the Code had it last.
6. The Master was of the opinion the many of the examples presented as evidence of copying, such as common errors and similiarity of language, might be readily attributable to the common use by both parties of earlier compilations of Ohio Statutes; and that nothing conclusive could be claimed for those examples until an examination and comparison of such earlier sources could be made.
7. This was done by the Master, resulting-in the finding made by him.
8. Whether the defendant has made an unfair use of plaintiff’s copyrighted work, or has appropriated the original work of its compiler, depends upon a comparison of the two publications and the evidence submitted thereon.
9. The fundamental and marked difference in style, size and scope of the two works make a comparison difficult.
10. Although similarities and common errors generally furnish prima facie evidence of copying, yet their existence is not conclusive as to unlawful and unfair use, unless in such substantial and material amount as to- constitute an injurious appropriation of the original work or labor of another, the exclusive right of which has been secured by copyright.
11. There has been no such substantial or material infringing use made by the Baldwin Co. of the Anderson Company’s copyrighted work, nor any such appreciable appropriation of the original labors of the latter by the former as to justify the granting of the remedy prayed for.
12. In view of this conclusion it seems to follow that there is no rule or basis upon which damages could be estimated.

Report of Master approved and adopted.  