Opposition Brief — Camerarts Publishing Co. v. Prather

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No. 73-614 =|’ nov _ 21 1973

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Supreme Court of the United States

Ocroser Term, 1973

CAMERARTS PUBLISHING CO., INC., an Illinois Corporation,

ALLIED NEWS CO., INC., an Illinois Corporation,

FRANK SORREN and ROBERT SORREN,

Petitioners,

vs.

RICHARD 8. PRATHER,

Respondent.

BRIEF IN OPPOSITION TO PETITION FOR A

WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SEVENTH CIRCUIT

STEPHEN C. SHAMBERG

SHELDON KARON

208 So. LaSalle Street

Chicago, Illinois 60604

Attorneys for Respondent,

Richard S. Prather.

Of Counsel:

FRIEDMAN & KOVEN

208 So. LaSalle St.

Chicago, Illinois 60604

UNITED STATES LAW PRINTING CC., CHICAGO, ILLINOIS 60618 (312) 525-6581

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TABLE OF CONTENTS

PAGE

Table of Authorities i

Reasons for Denying the Writ 1

I. Introduction 1

II. Plaintiff Was Properly Granted Separate

Judgments Against the Several Defendants

Based on Their Separate Acts of Infringement 2

III. Defendants Did Not Meet Their Burden of

Proving that the Statute of Limitations Was

MED caukicescobinadaecnsicecrmmentenecn 6

IV. Infringement Was Clear, and Defendants Failed

to Prove a Reasonable Standard for Apportion-

ee een ern 9

A. The Quality and Quantity of the Infringe-

IS aiactienies inbniinieliaeaiiaieoabininiataciaiiai 12

1, The Physical Bulk of the Copying ........ 12

2. The Importance of the Materials Stolen 15

(a) Covers and Publisher’s Blurbs ...... 15

(b) Plagiarism of First Lines, First

Pages, and Chapter Beginnings and

RIERA aD ane eee UK OTE EL 16

3. The Quality of the Plaintiff’s Material

that Was Plagiarized _................ceccccccecesses 16

B. Defendants’ Infringement Was Not De

SUID scceuicnitcaciaselournicliansisunlasacistanlsedetacc disdain 17

C. Defendants’ Unproven Innocence Is No De-

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ii

PAGE

V. Attorney’s Fees Were Properly Awarded to

Plaintiff 19

VI. Conclusion 20

Appendix (Applicable Statutory Provisions) _...... App. 1-2

TABLE OF AUTHORITIES

Cases

Baxter v. Curtis Industries, Inc., 201 F.Supp. 100

(N.D. Ohio 1962) 7

Chappell & Co., Inc, v. Costa, 45 F.Supp. 554 (8.D.

N.Y, 1942) 18

Davis v, E.I. DuPont de Nemours & Co., 249 F.Supp.

Ree OMNI TUPUIIDY ssccnitnhnindscosnesdhenseiiiscinienscdasnitbacenietnitasiees 8

Detective Comics, Inc, v, Bruns Publications, Inc., 28

F. Supp. 399 (S.D.N.Y. 1939) . ih eicadaitieiaaies 4

Douglas v. Cunningham, 294 U.S. 207 (1935)

Freudenthal v, Hebrew Pub. Co., 44 F.Supp. 754

(S.D.N.Y. 1942) _....... sisi ‘ai . 19

F.W. Woolworth Co, v. Seniicamines Arts, Inc., 344

Meek IED” ccrosserosncenisennese

Greenbie v. Noble, 151 F.Supp. 45 (S.D.N.Y. 1957) .... 3,6

Gross v. Van Dyk Gravure Co., 230 Fed. 412 (2d Cir.

SITET ‘duineadichiestadhsinabiintainrciamnpeinignsibeiaines poe

Heim v. Universal Pictures Co., 154 F.2d 480 (2d Cir.

SEPT uiaiepsablinsensusisedhcsnsntnnnenicindpadtaceimuasbesidinieaadiiaiineantegees 11

H.M. Kolbe Co. v. Shaff, 240 F.Supp. 588 (S.D.N.Y.

1965), aff'd, 352 F.2d 285 (2d Cir, 1965) 2.0.00... 4

iii

PAGE

Maloney v. Stone, 171 F. Supp. 29 (D, Mass. 1959) ...... 8

McGraw-Hill, Inc, v. Worth Publishers, Inc., 335 F.

Supp. 415 (S.D.N.Y. 1971) 11

Norman v. Columbia Broadcasting System, Inc., 333

F.Supp. 788 (8.D.N.Y. 1971) 11

Orgel v. Clark Boardman Co., 301 F.2d 119 (2d Cir.

> celandemanieens 10

Sammons v, Larkin, 38 F.Supp. 649 (D. Mass, 1940)... 6

Screen Gems-Columbia Music, Inc. v. Metlis & Lebow

Corp., 453 F.2d 552 (2d Cir. 1971) 3

Sheldon v, Metro-Goldwyn Pictures Corp., 309 U.S. 390

(1940) 10

Smith v. Little, Brown & Co., 273 F.Supp. 870 (S.D.

N.Y. 1967), aff’d, 396 F.2d 150 (2d Cir. 1968) .......... 10

Solomon v. RKO Radio Pictures, 44 F.Supp. 780 (S.D.

N.Y, 1942) . 11

Toksvig v. Bruce Pub. Co., 181 F.2d 664 (7th Cir.

1950) 19

Zenith Radio Corp. v. Hazeltine Research, Inc., 401

Sle Ee RIPTILD © sersecapdecccinsestsicetsnidesaueinbcsicssseonenamnetesiiacisons 9

Statutes

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ee: TE: MIDI’, cudeiescaiielectdcpedanecincacictinntiaitadiaiiiaiats 8,9

17 U.S.C, §115(b) (1952) ; as amended (Supp. 1972) .. 7,8

rs I 19

<a ae Oe Sot EE RP es

Iu the

Supreme Court of the United States

Ocroser Term, 1973

No. 73-614

CAMERARTS PUBLISHING CO., INC., an Dlinois Corporation,

ALLIED NEWS CO., INC., an Illinois Corporation,

FRANK SORREN and ROBERT SORREN,

Petitioners,

vs.

RICHARD 8. PRATHER,

Respondent.

BRIEF IN OPPOSITION TO PETITION FOR A

WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SEVENTH CIRCUIT

REASONS FOR DENYING THE WRIT

I

INTRODUCTION

The district court found that thirty-three books allegedly

written by Jerry M. Goff, Jr. and published and/or sold

by the defendants were constructed, to a greater or lesser

degree, from sixteen books written by the plaintiff, Richard

S. Prather. The only extraordinary element of this case is

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that no other court has reported such massive plagiarism

where sixteen books written by an author were cannibalized

to produce thirty-three books for infringers. In one in-

stance, portions from seven of the plaintiff’s books were

scattered throughout one of the defendants’ books.

In the courts below, this case turned upon various issues

relating to the burden of proof. In light of the word-for-

word copying engaged in by the defendants, the plaintiff

easily satisfied his burden of proving infringement. In

their petition, as in the courts below, defendants seek to

shift the burden of proving their defenses to the plaintiff.

The defendants asserted the statute of limitations, but

their evidence did not prove they ceased infringing more

than three years prior to the filing of the amended com-

plaint. The defendants contended that not all of the ma-

terial in their infringing books was stolen from the plain-

tiff, but failed to prove a reasonable means of apportion-

ing their profits other than to argue that the infringement

was de minimus, an argument considered and rejected by

the courts below.

Defendants have had their day in court, and they have

raised no issues in their petition that entitles them to a

further review.

Il.

PLAINTIFF WAS PROPERLY GRANTED SEPARATE

JUDGMENTS AGAINST THE SEVERAL DEFEN-

DANTS BASED ON THEIR SEPARATE ACTS OF IN-

FRINGEMENT.

The district court found that defendant Camerarts Pub-

lishing Co., Inc. (‘‘Camerarts’’), which published the in-

fringing books under the trade name ‘‘ Merit Books,’’ and

defendant Allied News Service, Inc. (‘‘Allied’’), the dis-

tributor of the infringing books, were each liable for statu-

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tory damages. Judgment in the minimum amount of

$250.00 was entered against Allied for each of the seventy-

two counts of the complaint, and judgment for statutory

damages ranging from $250.00 to $600.00 was entered.

against Camerarts for each of the seventy-two counts of

the complaint.* Defendants argue that this amounted to a

double recovery for plaintiff.

In their petition, defendants claim that decisions of

the courts below granting separate ‘‘in lieu of’? recoveries

to the plaintiff against the defendants are contrary to all

other decisions involving the ‘‘in lieu of’’ clause. The

recent authorities cited by defendants do not support this

contention. Only one case, which was decided in 1916,

supports defendants’ position. Gross v. Van Dyk Gravure

Co., 230 Fed. 412 (2d Cir. 1916).

In Screen Gems-Columbia Music, Inc. v. Metlis & Lebow

Corp., 453 F.2d 552 (2d Cir. 1971), the plaintiff was not

awarded damages based on the ‘‘in lieu of’’ clause, but

was awarded the 2¢ per phonograph record statutory

royalty granted by 17 U.S.C. §1(e). Thus, the court grant-

ed judgment in the amount of the full royalty that the

plaintiff could have collected, and the court found that the

plaintiff was entitled to no more than this maximum amount

from all defendants involved with a single act of in-

fringement, the sale. (At p. 554)

No damages were awarded in Greenbie v. Noble, 151 F.

Supp. 45 (S.D.N.Y. 1957). Furthermore, the court’s dis-

cussion supports plaintiff. The court quotes from a 1922

* Defendant Frank Sorren, an officer of Camerarts, and defen-

dant Robert Sorren, an officer of Allied, were each held jointly

and severally liable with their respective corporations.

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Second Circuit case to the effect that the publisher is an

infringer and the vendor is an infringer. Each committed

a separate act of infringement. Since the court found that

there was no infringement, its discussion of damages was

irrelevant; nevertheless, the court stated that it would

have assessed damages against the seller in the amount

of no more than $250, but would not charge the seller with

the profits of the printer who was not joined as a party.

Another case cited by defendants is H. M. Kolbe Co. v.

Shaff, 240 F.Supp. 588 (S.D.N.Y. 1965), aff’d, 352 F.2d 285

(2d Cir. 1965). This case does not support defendants’

argument because the court awarded damages and profits

rather than utilizing the ‘‘in lieu of’’ clause. Neverthe-

less, the case is in agreement with the decisions of the lower

courts in the instant case insofar as it involved the question

of whether a corporate officer who participated in the in-

fringement was equally liable with his principal, the cor-

poration. The court held that there was one act of infringe-

ment and that the officer who participated was liable. In

the instant case, the district court adopted the same ruling

by holding that defendant Frank Sorren was jointly and

severally liable with defendant Camerarts, of which he

was an officer, in connection with the publication and sale

of the infringing materials. It also held that defendant

Robert Sorren and defendant Allied, of which he was an

officer, were jointly and severally liable in connection with

the sale of the infringing materials.

Not only did the court fail to provide any discussion

with regard to its statement in Detective Comics, Ine. v.

Bruns Publications, Inc., 28 F.Supp. 399 (S.D.N.Y. 1939),

it is not clear from the reported decision whether the court

awarded actual profits and damages or damages under the

5

‘tin lieu of’’ clause. The court merely says that it awarded

the plaintiff’s damages and the defendant’s profits. (At

p. 401)

The decisions of the courts below granting separate

damages are reasonable and consistent with the plain

language of statute.

On page 9 of the petition, defendants quote the follow-

ing from the court of appeals: .

‘*We find nothing ‘inpermissible’ about holding both

consignor and consignee liable for copyrighting in-

fringement.”’

Defendants fail to provide this court with the proceeding

language, which was the following:

‘*Prescinding semantics, we need merely note that it

would be manifestly improper to permit recovery of

profits, where they are proved, against only one of the

entities in the chain of distribution.’’ (A.3(a))

In the courts below, the plaintiff argued vigorously

that he was entitled to recover the profits of both the pub-

lisher and the distributor. Based upon the evidence before

them, both courts below rejected this argument and ap-

proved the use of the ‘‘in lieu of’’ clause. Had such profits

been awarded, plaintiff would have been entitled to the in-

dividual profits of each infringer. Both the publisher and

the distributor infringed the plaintiff’s federally protected

copyrights, and there is no reason why plaintiff was not

entitled to be awarded separate ‘‘in lieu of’? damages

against each infringer.

Probably because the results reached below were so rea-

sonable, there has been very little discussion of this issue

in the cases. There are several cases in which the courts

consider whether one infringer should be liable for the

6

profits of the other. In Sammons v. Larkin, 38 F. Supp. 649

(D.Mass 1940), the court held that one infringer was not

liable for the profits of the other infringer. (At. p. 655) The

court then awarded the plaintiff the profits of one of the de-

fendants and granted the minimum statutory damage of

$250 against the other defendant, which had no profits. In

Greenbie v. Noble, supra, the court conjectured that it

would have assessed statutory damages against the seller

of the infringing materials but would not charge the seller

with the profits of the printer.

ITT.

DEFENDANTS DID NOT MEET THEIR BURDEN OF

PROVING THAT THE STATUTE OF LIMITATIONS

WAS APPLICABLE.

The applicability of the statute of limitations to the plain-

tiff’s claims was a question of evidence decided adversely

to the defendants by the courts below. In their petition, the

defendants attempt to make up in argument what they

failed to prove to the courts below.

In their recitation of the facts, the defendants misstate

the evidence. The circuit court (A.la) and the district court

(A.1la) both noted that the parties agreed that at least one

copy of each infringing book, with two exceptions, was pub-

lished, sold and distributed by defendants within three

years of the time when the instant case was commenced.

In fact, the district court found:

‘‘(T ]hat Allied and Camerarts were receiving returns

and otherwise dealing with most of the books well into

the limitations period.’’ (A.11la-12a)

7

Defendants also complain that there was no support for

the findings of the courts below that the infringing books

were sold on consignment. Here again, defendants ask this

court to disregard the stipulation of the parties that the

books were sold on consignment.

In their petition, as below, defendants attempt to make

the argument that the statute of limitations commenced

from the first act of infringement. Defendants failed to

cite the case upon which the district court relied,

which is the only reported decision dealing specifical-

ly with the application of the 17 U.S.C. §115(b), a

section that was added by amendment in 1957. This case is

Baxter v. Curtis Industries, Inc., 201 F.Supp. 100 (N.D.

Ohio 1962). In this case, the court held that the statute of

limitations contained in 17 U.S.C. §115(b) did not begin to

run until the dast act of infringement. The court explained

the reasons behind the enactment of 17 U.S.C. §115(b) as

follows:

‘‘Based on the foregoing, it appears that prior to

the 1957 Amendment of Sec. 115(b) the rule as to copy-

right infringement actions was, that the period of

limitation began from the date of the last infringing

act.

“Tt is the opinion of the Court that the amendment

was not intended to, and did not, change this basic

concept. It simply made uniform a three-year limita-

tion dating from the last act of infringement, in place

of the multitude of state limitation periods. It is a

remedial measure and should operate as such.

‘*The complaint alleged a continuous infringement

from February 1958 to the date of the complaint. There

is no denial of this allegation by the defendant, and

it must be presumed true for the purposes of this mo-

tion.’’? 201 F.Supp. 100, 101

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8.

The essential question is whether copyright infringe-

ment should be viewed as a whole, continuous act

or whether the sale of each infringing book is to be con-

sidered, in and of itself, a copyright violation. The statu-

tory scheme of compensating a plaintiff that is set forth in

17 U.S.C. §101 provides, as an alternative remedy, mini-

mum and maximum awards for copyright infringment. It

is obvious that §101 contemplates copyright infringement

as a unitary act; otherwise, each book published, distributed

or sold by a defendant within the three year period could

be a separate act of infringement to which the mini-

mum statutory damage of $250.00 would be applicable.

Thus, the publication, distribution, or sale by the defen-

dants of 20 copies of each book could result in a recovery

by plaintiff of $5,000, and the publication, distribution or

sale of 100 books could result in the minimum statutory

damages of $25,000. It has been held that multiple repro-

ductions of the same infringing article constitute one claim

for damages under 17 U.S.C. §101. See Davis v. E.I. Du

Pont De Nemours & Co., 249 F.Supp. 329, 322-343 (S.D.

N.Y. 1966).

The only reasonable conclusion is the one adopted by the

district court: that the limitations’ period in 17 U.S.C.

§115(b) does not commence to run until the last act of in-

fringement that continues over a span of time.

Maloney v. Stone, 171 F.Supp. 29 (D.Mass. 1959), cited

by defendants on page 13 of the petition, is not

in point. In this case, the court held that a printer had

ceased to infringe more than two years before the suit was

brought. Unlike the instant situation, where Camerarts re-

tained title to the books which were sold by it on consign-

ment, the printer had terminated all manufacturing, had

turned over all plates and materials and had terminated the

contract. 171 F.Supp. 29,31.

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Finally, defendants cite an antitrust case, Zenith Radio

Corp. v. Hazeltine Research, Inc., 401 U.S. 321 (1971), in

connection with their defense. (Petition, p. 13) The statute

applicable to a continuing conspiracy under the antitrust

law does not apply to an action for copyright infringement.

The nature of §101 of the Copyright Statute cuts against

defendants’ argument. Earlier in this brief the plaintiff

discussed why copyright infringement must be treated as a

continuous act and.not broken up as suggested by the defen-

dants; to do so would make each sale a separate cause of

action for which the plaintiff is entitled to the $250

minimum statutory award. Applying this same reasoning

to Zenith Radio Corp. v. Hazeltine Research, Inc., supra,

each sale of a hook by the defendants would constitute a

separate claim, and, as to each sale, the plaintiff would be

entitled to the $250 minimum.

Neither the evidence nor the law sustains defendants’

position that they ceased their infringing activities within

three years of the filing of the Amended Complaint.

IV.

INFRINGEMENT WAS CLEAR, AND DEFENDANTS

FAILED TO PROVE A REASONABLE STANDARD FOR

APPORTIONING PROFITS OR DAMAGES.

As with the statute of limitations defense, defendants

seek to elevate their failure of proof in the courts below to

matters that will ‘‘throw needless confusion into the field

of copyright, and subject these defendants to unsupportable

injustice.’’ (Petition, p. 23) Defendants fail to point out

to this court that they were engaged in the most widespread

instance of multiple copyright infringement that has ever

been reported, Defendants seek to ignore that thirty-three

books they published, sold and distributed infringed six-

teen of the plaintiff’s copyrights.

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The district court found that the Merit Books in issue

‘‘contained word-for-word copying from books written by

Prather.’’ (A. 6a) The district court also found as fol-

lows:

‘‘The copying, where shown, consists of flagrant word

for word verbatim copying and is substantial in both

volume and the significance of the portions taken.’’

(A. 6a)

It is plaintiff’s position, well supported by law, that once

infringement was proven as to parts of a book published

and sold by the defendants, the burden of proving a rea-

sonable means of apportionment, if there can be one, is on

the defendants. Sheldon v. Metro-Goldwyn Pictures Corp.,

309 U.S. 390, 406 (1940); Orgel v. Clark Boardman Co.,

301 F.2d 119, 120-21 (2d Cir. 1962) ; Smith v. Little, Brown

& Co., 273 F.Supp. 870, 874 (S.D.NY. 1967), aff’d, 396 F.2d

150 (2d Cir. 1968). Instead of meeting their burden by

suggesting to the courts below a method of apportionment

for each of their infringing books, the defendants asked

the courts to eliminate in their entirety any claim for in-

fringement based upon thirty-nine examples of plagiarism

shown in thirty-nine counts of the complaint.

In essence, defendants’ argument is that, because many

of the books that they published were cannibalized from a

number of books written by the plaintiff, instead of just

one, they should not be liable for any copyright infringe-

ment. There is no reason why defendants should be in a

better position because their books copied a few pages

from a number of the plaintiff’s books rather than all from

one of plaintiff’s books. By defendants’ theory, they eculd

publish a novel of 100 pages containing two pages from

each of 50 of the plaintiff’s books and not be liable for

copyright infringement. This would be an absurd result.

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11

Defendants cite certain cases in an attempt to bolster

their position that stealing just a little bit is not copyright

infringement. If the court were dealing with one paragraph —

from one of the plaintiff’s books and one paragraph from

one of the defendants’ books, perhaps the defendants would

have an argument; however, this is not the case, As the

plaintiff has pointed out, many of the Merit Books involved

contain word-for-word copying from a number of the plain-

tiff’s books, Copying, if proven, is copying, whether it is

a little bit or a lot. After the plaintiff establishes that

one of the defendants’ books had been constructed, in whole

or in part, from one or more of his books, he is entitled to

all or part of the defendants’ profits.

Most of the cases cited by the defendants on page 15 of

their petition miss the point. The defendants key on the

words ‘‘material’’ or ‘‘substantial’’ copying. The question

before most of the courts was whether there was sufficient

similarity between the alleged infringing work and the

plaintiff’s work so that infringement could be found. One

test of infringement is similarity, but another test of in-

fringement is identical, word-for-word copying. In the in-

stant case, we are considering, for the most part, word-for-

word copying. In Heim v. Universal Pictures Co., 154 F.2d

480 (2d Cir. 1946), and McGraw-Hill, Inc. v. Worth Publish-

ers, Inc., 335 F.Supp. 415 (S.D.N.Y. 1971), the courts found

no copying whatsoever. In Solomon v. RKO Radio Pictures,

44 F.Supp. 780 (S.D.N.Y. 1942), and Norman v. Columbia

Broadcasting System, Inc., 333 F.Supp. 788 (S.D.N.Y.

1971), the courts found that there was only a similarity.

Other cases cited by the defendants involve copying photo-

graphs from catalogs, which is hardly a fair test to apply

to word-for-word copying of the plaintiff’s fiction. A quote

from Nimmer on Copyright, which appears on pages 15

to 16 of defendants’ petition, is also inapposite because the

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instant case does not concern ‘‘the quantum of frag-

mented literal similarity,’’ but it deals with substantial

literal identity.

A. The Quality and Quantity of the Infringement

There are a number of ways in which the quality and

quantity of the infringement by the defendants from the

plaintiff’s books can be viewed. These will be discussed be-

low, with examples,

1. The Physical Bulk of the Copying

The Appendix to the district court’s opinion shows the

sources for each Merit Book that has materials taken

from the plaintiff’s books. The number of pages of the

infringing books on which copying appears does not do

justice to the extent of copying. For example, direct copy-

ing appears on thirty-four pages of Thrill Crazy and its

reprint, Liza, which is a 140 page book. However, this

copying is spread throughout Thrill Crazy and Lisa and

constitutes the major material in the book, the rest of which

is more or less filler. When Zhrill Crazy and Lisa are

broken down, the following appears:

THRILL Crazy & Lisa Pratuer, Book anp Pacgs

13-14 Strip For Murder 55-56

15-18 7 o " 127-130

20 od “id ve 130

21-24 ” od sad 57-59

32 Three’s A Shroud 47-48

34 Way Of A Wenton 5

34-42 id " ” 43-51

105-110 ” ¥ *” 86-89

118-119 Three’s A Shroud 157, 87

120.121 Way Of A Wanton 57

137-138 Three’s A Shroud 152-153

139 ” ” ” 65

13

The plaintiff can conceive of no way in which the de-

fendants could undo the commingling of passages from the

plaintiff’s books that make up Thrill Cray and Lisa.

Another example of the piecing together done by the

author of the infringing books is Jrresistibly Seductive

Female, Thirteen of the sixteen chapters in Irresistibly

Seductive Female contain word-for-word copying. A

chapter by chapter analysis of Jrresistibly Seductive

Female shows the following word-for-word copying:

IRRESISTIBLY SEDUCTIVE

FEMALE PratHer, Book anp Paces

Ch, 1

Editor’s blurb )

for chapter Shell Scott’s Seven Slaughters 65

7 ” ” ” ” 64-65 ‘J

Ch. 2 :

20-21 ” ” ” ” 11 :

Ch, 3 :

31 Three's A Shroud 59

Ch, 4

42-438 Everybody Had A Gun 27 t

43 ” ” ” 30 \

48 ” ” LB] 64 :

43 ” ” ” 88 '

Ch, 5

Editor’s blurb

for chapter ”’ "” hd 93

49 Shell Scott’s Seven Slaughters 67-68

49.52 Three’s A Shroud 63-65

52-53 Everybody Had A Gun 91-93

53-58 Shell Scott’s Seven Slaughters 59-62

14

Ch, 6

Editor’s blurb

for chapter Shell Scott’s Seven Slaughters 177

60-61 ” ” ” ” 76-77

Ch. 7

68-74 ” ” ” ”” 21-25

75-77 Dance With The Dead 193-196

Ch. 8

78-80 Dance With The Dead 114-116

80-81 ” ” ” 83

Ch. 9

86 Dance With The Dead 137

87-88 Everybody Had A Gun 78

89 Kill The Clown 70

89.90 ” ” ” 137

Ch. 10

Ch. 11

108-113 Everybody Had A Gun 33-35

Ch, 12

115-117 Bodies In Bedlam 110-112

Ch. 13

Ch, 14

132-135 Everybody Had A Gun 133-135

Ch, 15

145 The Scrambled Yeggs 23

Ch. 16

When the plagiarizer scatters stolen material from seven

of the plaintiff’s books throughout the infringing book,

there can be no reasonable method of apportionment. With-

out the materials stolen from the plaintiff’s books, which

15

comprise fight scenes, sex scenes, and clever descriptions,

there would have been no Irresistibly Seductive Female.

Other examples are Passion Cult and its reprint, Seduc-

tive Nymph. These appear to contain 160 pages; however, |

there is a blank page at the end of each chapter, which re-

duces the number of printed pages by seventeen. Twelve

of the seventeen chapters in Passion Cult and Seductive

Nymph contain copying from two books by the plaintiff,

Always Leave ’Em Dying and Strip for Murder. One of

the major plot lines of the books, hiring a detective to

work in a nudist camp, was stolen directly from the plain-

tiff’s book entitled Strip for Murder.

2. The Importance of the Materials Stolen

One gauge of the plagiarized material's importance can be

found by noting the significance of the stolen material to

the plaintiff's books or the importance of where the stolen

material was placed in the Merit Books. For this reason,

the distriet court considered the covers of books, publish-

er’s blurbs, the first lines of the books, and the beginnings

and endings of chapters. (A. 6a)

(a) Covers and Publisher’s Blurbs

Camerarts thought highly enough of the language stolen

from the plaintiff to feature it in the blurbs appearing on

the cover of Merit Books or on the first page inside the

front cover, Camerarts used Prather’s materials in the

blurbs for five infringing books.

Another measure of the importance of the material taken

by the defendants is the language that the plaintiff's edi-

tors thought worthy of being placed on the cover or on

the first page inside the front of its books. The ree-

ord shows twelve such instances,

ED Mey t |

16

(b) Plagiarism of First Lines, First Pages, and

Chapter Beginnings and Endings

In any work of fiction, especially one designed for mass

market distribution as were the Merit Books, the most im-

portant lines in the book are the lines on the first page.

Also important are the words and paragraphs at the begin-

nings and ends of the individual chapters in the books. An

analysis on this basis shows that the plagiarized words not

only played an important part in the defendants’ books,

but they were also important to the plaintiff’s books.

First lines of the first chapters of three infringing books

were derived from the plaintiff’s works.

In six instances the defendants’ books utilized the first

pages of the first chapters of books written by the plaintiff.

In many of the defendants’ books, the chapters were pre-

ceded by blurbs. In four instances these blurbs contained

materials taken from the plaintiff.

3. The Quality of the Plaintiff's Material That Was

Plagiarized

It is difficult for the defendants to argue that the plain-

tiff’s writing was not good because they published so much

of it and even repeated many of the same scenes in book

after book. There are certain passages from the plain-

tiff’s books that were repeated so often by the defen-

dants that they must have great worth. For example, the

following passage appears on pages 78-79 of the plaintiff’s

hook entitled Strip For Murder:

‘*‘She had raised up on one elbow to press her

fingers against my mouth, and now she still held her-

self partly off the bed. Light from the front room,

seeming brighter now, cast a silvery mistiness over

her bare shoulders, and over proud breasts that looked

smoother than ivory, soften than down.

17

‘‘She was looking at my face, her long-lashed eyes

almost closed, lips parted. ‘You won’t be alone,’ I

said. I leaned closer to her and she tilted her head

slightly, and I saw the tip of her tongue flick against

her lips just before they parted even more. Then they

were against my mouth. At first her lips were softer

than the whispering wind outside the cabin, but then

they writhed and curled against mine, and her tongue

flicked against them again as we both moved closer

together and our arms went around each other, .

‘*Her lips clung to mine for a long time, her hands

against my back, fingers curling, then her lips went

slack and her head rolled to one side. I kissed her

throat, the curve of her shoulder, the soft warmness

of her breasts, and she breathed rapidly, making small

sounds deep in her throat. Then I felt her move against

me, her lips traced my cheek and touched my ear as she

whispered to me.

**T got up. When I slid into bed beside her again,

barely touching her, she was lying motionless on her

back. For long seconds she lay that way, unmoving.

Then slowly she turned toward me, pressed her lovely

soft body deliberately against me.’’

This passage, more or less and word for word, was used

by the defendants in seven infringing books.

In all, there are twelve instances of the multiple use in

a number of Merit Books of the same, or parts of the same,

passage from the plaintiff’s books.

B. Defendants’ Infringement Was Not De Minimus

On page 17 of their petition, defendants criticized the

courts below, stating that they:

‘*(F Jailed to make any analysis whatsoever of the al-

leged infringing language set forth in the Amended

Complaint and the exhibits thereto.’’

The Appendix to the district court’s opinion should put

to rest any contention that it did not consider carefully

:

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:

18

each instance where it found an infringment. In this Ap-

pendix, the court set forth specific pages of Merit Books on

which infringing material appears opposite references to

specific pages in plaintiff’s books from which the material

was taken. With a few exceptions, defendants have not

undertaken to show this court, nor did they show the courts

below, that the thirty-nine counts of the complaint listed

on pages 4 and 5 of their petition are so insignificant that

they should be treated as de minimus. As is pointed out

above, some of the passages written by the plaintiff were

so memorable that they appeared in seven separate Merit

Books, and the texts of five Merit Books utilized Prather’s

materials in publisher’s blurbs and on the covers.

The plaintiff will certainly admit that the plagiarism

listed in some counts of the complaint is not as massive

as that listed in others, but it was the defendants’ job to

point this out to the district court rather than merely to

dismiss a count by saying that it was only two or three

pages from the plaintiff’s book.

C. Defendants’ Unproven Innocence Is No Defense

In an obvious attempt to gain the sympathy of this court,

the defendants have argued their innocence and good faith

as mitigating factors on pages 3, 11, 14, 22 and 24 of their

petition. To the extent that lack of intent can be a mitigat-

ing factor, the defendants have not proven it, and there

are facts in the record which show that defendants Cam-

erarts and Frank Sorren knew or should have known that

Goff was copying from someone else’s work.

All of the courts considering the so-called ‘‘innocent in-

fringer’’ argument have held that a copyright infringer’s

lack of knowledge or good faith is immaterial to the in-

fringer’s liability. See, e.g., Chappell & Co., Inc. v. Costa,

45 F.Supp. 554 (S.D.N.Y. 1942). See, Douglas v. Cunning-

ham, 294 U.S. 207 (1935) (upholding a district court judg-

he A a PS SN,

19

ment of $5,000 and attorneys’ fees against a defendant

having no knowledge of the copyrighted materials) ; F. W.

Woolworth Co. v. Contemporary Arts, Inc., 344 U.S. 228

(1952) (upholding the imposition of the maximum amount

of discretionary damages, $5,000, against a defendant

which unknowingly infringed) ; Toksvig v. Bruce Pub. Co.,

181 F.2d 664 (7th Cir. 1950) (‘‘intention is immaterial if

infringement appears.’’ at 666); Freudenthal v. Hebrew

Pub. Co., 44 F.Supp. 754 (S.D.N.Y. 1942) (holding: ‘“Even

if defendants did not knowingly copy plaintiff’s composi-

tion, that would be no defense.’’ at 755).

V

ATTORNEY’S FEES WERE PROPERLY AWARDED

TO PLAINTIFF

Defendants contend that the district court should not

have granted the minimal amount of $4,000 to the plaintiff

for his attorney’s fees. None of the cases cited by the de-

fendants are factually comparable with the instant case.

Additionally, in several of those cases the courts found

that there was no infringement.

The trial court clearly had the discretion to award the

plaintiff ‘‘a reasonable attorney’s fee as part of the costs.’’

17 U.S.C. $116. The plaintiff was entitled to attorney’s

fees in this case because of the complex nature of the in-

fringements and the great number of infringements. Al-

though the attorneys for both plaintiff and defendants co-

operated to make use of the district court’s pre-trial pro-

cedures to simplify the issues and to reduce trial time,

many hours were required to be spent. The plaintiff could

have saved a great amount of attorney’s fees if the de-

fendants had stipulated to infringement, which was very

clear. Additionally, the defendants introduced no evidence

to support the positions that they had taken regarding cer-

tain contested issues of law and fact, including: (a) the

eo ORT pe

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a

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20

number of copies of cach Merit Book title that were printed

but not distributed and sold, (b) the direet expenses of the

defendants attributable to those copies of each infringing

Merit Book that were sold, with the exeeption of printing

expenses, (c) the indirect expenses of the defendants at-

tributable to those copies of each infringing Merit Book

that were sold, (d) whether the plaintiff was estopped

from claiming damages beeause of laches, and (e) thot the

defendants lacked knowledge of the infringements.

VI.

CONCLUSION

The only points raised in defendants’ petition deal with

instanees where defendants (a) failed to meet their burden

of proof and (b) disagree with the exereise of the district

court's diseretion, These do not present adequate reasons

why the deeisions of the courts below require the issuance

of a Writ of Certiorari.

Wherefore, respondent prays that this Court deny the

Petition fora Writ of Certiorari to the United States Court

of Appeals for the Seventh Cireuit.

Respeetfully submitted,

Srerukgn C. SuampBera and

SuELDON Karon

208 South LaSalle Street

Chicago, Hlinois GO604

346-8500

Attorneys for Respondent,

Riehard S. Prather

Of Counsel:

Friepuan & Koven

YOS South LaSalle Street

Chieago, Tlinois 60604

346-8500

Dated: November 23, 1973

APPENDIX

Applicable Statutory Provisions

17 U.S.C. § 1(a) (1952):

Any person entitled thereto, upon complying with

the provisions of this title, shall have the exclusive ,

right:

(a) To print, reprint, publish, copy, and vend the

copyrighted work;

17 U.S.C. § 101 (1952) :

If any person shall infringe the copyright in any

work protected under the copyright laws of the United

States such person shall be liable:

OLS res

7 7 *

(b) Damages and profits; amount; other remedies. i

:

—To pay the copyright proprietor such damages as c

the copyright proprietor may have suffered due to

the infringement, as well as all the profits which

the infringer shall have made from such infringe-

ment, and in proving profits the plaintiff shall be

required to prove sales only, and the defendant shall

be required to prove every element of cost which he }

claims, or in lieu of actual damages and profits, such

damages as to the court shall appear to be just, and

| in assessing such damages the court may, in its disecre-

| tion, allow the amounts as hereinafter stated, ... and

such damages shall in no other case exceed the sum of

$5,000 nor be less than the sum of $250, and shall not be

regarded as a penalty. But the foregoing exceptions

shall not deprive the copyright proprietor of any other

remedy given him under this law, nor shall the limi-

tation as to the amount of recovery apply to infringe-

ments occurring after the actual notice to a defendant,

either by service of process in a suit or other written

notice served upon him.

*

App. 2

17 U.S.C. § 115(b) (1952); as amended (Supp. 1972):

No civil action shall be maintained under the pro-

visions of this title unless the same is commenced

within three years after the claim accrued.

17 U.S.C, § 116 (1952):

In all actions, suits, or proceedings under this title,

4 except when brought by or against the United States

or any officer thereof, full costs shall be allowed, and

the court may award to the prevailing party a reason-

able attorney’s fee as part of the costs.