Summary
In Brief English Systems, Inc. v. Owen, et al., 2 Cir., 48 F.2d 555, 556, the court stated: "* * * it may be said that the way to obtain the exclusive property right to an art, as distinguished from a description of the art, is by letters patent and not by copyright."
Summary of this case from Taylor Instrument Companies v. Fawley-Brost Co.Opinion
No. 317.
April 6, 1931.
Appeal from the District Court of the United States for the Southern District of New York.
Suit by the Brief English Systems, Incorporated, against John P. Owen and the Owen Institute of Commerce. From a decree holding valid and infringed three copyrights owned by the plaintiff, defendant appeals.
Decree reversed.
The plaintiff acquired by valid assignment and owns the copyrights sued upon. The certificates are Class A, XXc., No. 707,044, May 1, 1923, on twelve booklets entitled "The Steno-Short-Type System"; the author was Emma B. Dearborn, Class A, XXc., No. 865,612, August 31, 1925, on six booklets entitled "Speedwriting," and Class A, XXc., No. 1,011,650, November 11, 1927, on a book entitled "Speedwriting, The Natural Shorthand," all by the same author. The subject-matter treated in each of the copyrighted booklets is a system of shorthand which uses for its symbols or characters only the letters of the English alphabet and punctuation marks. The validity of the copyrights is not seriously questioned. Their breadth or scope is, however, contested. The plaintiff does not now claim that they include the shorthand system itself, but insists that, by appropriating a substantial portion of that system, together with the copyrighted expression of the mode and manner of teaching it, the defendant has infringed. The defendant denies having taken either the shorthand system itself or the copyrighted exposition of it.
The claimed infringing work is a shorthand text-book written and published by the defendant John P. Owen in 1926, and entitled "Owen a-b-c Shorthand." It is copyrighted. A counterclaim based on the claimed infringement of this copyright was abandoned after its dismissal below.
Both systems of shorthand employ the letters of the alphabet and punctuation marks for their basic symbols. Owen was formerly a pupil of Emma B. Dearborn. He was a teacher of shorthand before studying with her, and afterwards, for a time, taught the plaintiff's system under an arrangement mutually agreeable to the parties. After he stopped teaching under this arrangement and published and taught the system he claims to have devised, this action was brought. A comparison of the two systems discloses that they are much alike. Being limited to the same basic symbols, which are themselves limited in number, it is but natural that they should be. They differ in many material particulars but Owen's system and the Dearborn system of the plaintiff are in general so similar that it may well be said that Owen employed the fundamental idea developed by Miss Dearborn and that his system is merely a variation of it. In writing his book entitled "Owen a-b-c Shorthand," Owen put into twenty so-called lessons the subject-matter Miss Dearborn had treated in sixty. She used words from well-known word lists and so did he. We all know that certain words recur more often than others in the everyday use of the English language and that only a comparatively small number of the total with which the language is enriched are frequently used at all. It was necessary for both to teach how these common words, as well as others, should be written in shorthand. Both did so. Whenever the same word is to be written the same way, Owen taught that way. But a comparison of his book with the copyrighted booklets fails to show that he used any substantial part of the Dearborn method of arrangement, style, composition, or literary product, as employed in her books on shorthand, to teach, demonstrate, and explain her method.
Arthur A. Beaudry, of New York City, for appellant.
Clarence M. Crews, of New York City (Edgar M. Kitchin, of Washington, D.C., and White Case and William St. John Tozer, all of New York City, of counsel), for appellee.
Before MANTON, L. HAND, and CHASE, Circuit Judges.
In so far as the plaintiff claims to have the exclusive right to the use of a published system of shorthand, this suit must fail. There is no literary merit in a mere system of condensing written words into less than the number of letters usually used to spell them out. Copyrightable material is found, if at all, in the explanation of how to do it. Guthrie v. Curlett et al. (C.C.A.) 36 F.2d 694, 696. Without suggesting that anything in its shorthand system this plaintiff would retain by copyright for itself alone might have been the subject of a valid patent, it may be said that the way to obtain the exclusive property right to an art, as distinguished from a description of the art, is by letters patent and not by copyright. For present purposes it is enough to recognize that the plaintiff's shorthand system, as such, is open to use by whoever will take the trouble to learn and use it. Baker v. Selden, 101 U.S. 99, 25 L. Ed. 841; Griggs v. Perrin (C.C.) 49 F. 15.
From this it follows that the claimed infringement by Owen's book should be determined exactly as though he had been writing about the Dearborn shorthand system instead of one he claimed to have originated himself. When the copyrighted works and the claimed infringement are examined for piracy of composition, no substantial appropriation of manner, method, style, or literary thought can be perceived. Once concede that the defendant Owen could lawfully write, or write about, any system of shorthand his ability permitted and his book has nothing of consequence in common with what is covered by the plaintiff's copyrights. The manner of treatment is substantially dissimilar and original. Without proof of the kind of appropriation mentioned above, the plaintiff has no cause of action. Baker v. Selden, supra; Griggs v. Perrin, supra; Chautauqua School of Nursing v. National School of Nursing (C.C.A.) 238 F. 151; Dymow v. Bolton (C.C.A.) 11 F.2d 690; Nutt v. National Institute (C.C.A.) 31 F.2d 236, 239; Holmes v. Hurst, 174 U.S. 82, 19 S. Ct. 606, 43 L. Ed. 904; Edwards Deutsch Co. v. Boorman et al. (C.C.A.) 15 F.2d 35.
Decree reversed.