# Opposition Brief — Camerarts Publishing Co. v. Prather

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1973
- **Citation:** 414 U.S. 1112

## Text

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SUPREME COURT ; Sree
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No. 73-614 =|’ nov _ 21 1973
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Iu the
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
Be Tae RO, cukcanistiedtanassuiibeghi ti bidateiatt aimatstiniat iced 3
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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3

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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10

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.

pepe meena

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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12

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_1136%3A2. Public record. Not legal advice.