Hebrew Publishing Co. v. Scharfstein

Loughran, J. The action is one for an injunction against claimed unfair competition. For a number of years, the plaintiff has published two religious tracts — “ The Five Books of Moses ” and a “ Daily Prayer Book.” Each consists of a traditional Hebrew text accompanied by an English translation. The contents have long been familiar to the defendant who handled both volumes in his book-selling business. He has now reproduced them by means of so-called offset plates *376 made from photographs of the pages thereof. Sales by him of such typographically identical copies is the competition complained of. The court at Special Term granted an injunction restraining the defendant from copying by photographic methods books published by the plaintiff or selling such copies. The Appellate Division affirmed by a divided vote. The case has now come here on a further appeal by the defendant. No claim is made of any copyright or other exclusive privilege to publish the texts in question. There is no .finding of any passing off of the defendant’s books as the books of the plaintiff. There. is no finding of any fraud, breach of trust or imposture of the defendant. There is no finding of any actual interference by the defendant with the business or good will of the plaintiff. Nor is there a showing that any result of ingenuity or artistic competence of the plaintiff or its predecessors has been appropriated by the defendant. Plaintiff’s “ The Five Books of Moses ” is itself a photographic reproduction of a Hebrew text “ which was originally set by missionaries either in Russia or in Eastern Europe many, many years ago.” One of the predecessors of the plaintiff got hold in .Europe of the matrices that were the source of the Hebrew type from which its “ Daily Prayer Book ” is printed. The English translations were copied by the plaintiff from similar works of an olden time and were set on a linotype machine. The injunction rests on the following findings: “ That the plaintiff did a continuous business in selling these books and sold about 4,000 copies a year of the Daily Prayer Book and The Five Books of Moses. That the defendant, by means of such method of reproduction was enabled to manufacture books at a lower cost to the defendant than the price which the defendant would be required to pay for the manufacture of such books by the use of plaintiff’s plates and the defendant was thereby enabled to sell such books at a much lower price.” On that basis the whole case for the plaintiff is the fact that the cost to the defendant of his offset plates was less than the expense of .making an identical type surface all over again. We think such a saving to the defendant did not without more entitle the plaintiff to this judgment for a permanent injunction as in a case *377 of unfair competition. (Cf. Dutton & Co. v. Cupples, 117 App. Div. 172.) The judgments should be reversed and the complaint dismissed, with costs in all courts. Lehman, Ch. J., Finch, Rippey, Lewis, Conway and Desmond, JJ., concur. Judgments reversed, etc.