Carter v. Hawaii Transportation Co.

201 F. Supp. 301, 133 U.S.P.Q. (BNA) 65, 1961 U.S. Dist. LEXIS 5987
CourtDistrict Court, D. Hawaii
DecidedDecember 29, 1961
DocketCiv. 1865
StatusPublished
Cited by10 cases

This text of 201 F. Supp. 301 (Carter v. Hawaii Transportation Co.) is published on Counsel Stack Legal Research, covering District Court, D. Hawaii primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Carter v. Hawaii Transportation Co., 201 F. Supp. 301, 133 U.S.P.Q. (BNA) 65, 1961 U.S. Dist. LEXIS 5987 (D. Haw. 1961).

Opinion

TAVARES, District Judge.

This is an action brought by Milton II. Carter, hereinafter called Carter, against Hawaii Transportation Co., doing business as Gray Line-Hilo, hereinafter called Gray Line, for alleged infringement of the alleged copyright of a map belonging to Carter. Gray Line brought in A. D. Starr, Inc., hereinafter called Starr, as third-party defendant and Starr attempted to bring in James Porter, individually and doing business as The Porter Press, hereinafter called Porter, as fourth-party defendant but was unable to do so because Porter was outside the jurisdiction of this Court.

In 1959, Gray Line employed Starr, as a public relations organization, to arrange to be printed a brochure advertising Gray Line’s sight-seeing services on the island of Hawaii. Included in the material to be printed was a map of the island of Hawaii. Starr employed Porter to print the brochure. Porter did so but, without the knowledge of, or authorization from, either Gray Line or Starr, copied Carter’s said map and printed it in the brochure without the knowledge or consent of Carter. For a very short time the brochures were distributed throughout the Hawaiian Islands and possibly on the mainland when Carter discovered that his map had been copied therein, whereupon he called the matter to the attention of Gray Line which, within two weeks thereafter, recalled all copies of the brochure which could be re-covered and destroyed them. Carter claims damages for the alleged copying and printing of his allegedly copyrighted map.

There is no question that Carter’s map was copied by Porter in the brochure. It was copied practically in its entirety; Carter’s map and the map printed in the brochure differ only in the following respects: Carter’s map specifies the Hotel Hukilau, the brochure does not; Carter’s map specifies the Kona Steak House, the brochure map does not; the brochure map specifies the King Kamehameha Hotel, Carter’s map does not; and Carter’s map specifies the birthplace of Kamehameha I, the brochure map specifies the birthplace of Kamehameha.

The Court’s initial sentiment is one of sympathy with Carter, notwithstanding the lack of knowledge and intent on the part of Starr and Gray Line. Were Carter’s map copyrightable and covered at the material times by a valid copyright, the Court would not hesitate to award such damages, if any, as might be found to have resulted from the infringement, or a satisfactory minimum award, because infringement does not depend upon intent; it depends upon the fact of copying copyrighted matter. Towle v. Ross (1940), D.C., Or., 32 F.Supp. 125, 127. However, in this connection, the Court must observe that both Gray Line and Starr were negligent and did not exercise due and ordinary business care by checking the brochure after it was printed to determine whether the original specifications had been complied with. Had this been done, both Gray Line and Starr would have discovered that a map other than the one specified had been included in the brochure and could have prevented its dissemination. Hence, their original lack of knowledge and intent, if it had any ameliorating effect, is largely offset by their failure to check the brochure after printing. Though it is not a valid excuse, the reason given by both Gray Line and Starr for such omission is that Gray Line was in a hurry for the brochure because it was needed for a mainland conference by a certain date and Gray Line requested the printer to send a number of copies direct to the mainland for such use. As between Garter and Gray Line, therefore, if Carter’s map were copyrightable and covered by a valid copyright at the time *303 of the copying, the Court would be inclined to award to Carter both damages and reasonable attorney’s fees. As between Gray Line and Starr, the Court cannot accept Starr’s contention that it was a mere agent and as such is not liable to Gray Line because of the latter’s alleged negligence in not checking the printed brochure. Contributory negligence is not a defense to a breach of contract. 17 C.J.S. Contracts § 525, p. 1149. Starr contracted with Gray Line to produce a brochure according to certain specifications laid down by Gray Line. Those specifications were not followed. It was Starr’s obligation to see that such specifications were followed, and according to the usages of the trade, to make' sure that the material incorporated in the brochure was not covered by valid copyrights of others or, if so covered, that its use was properly authorized by the copyright holders. The fact that at Gray Line’s request some copies were sent directly to the mainland and others direct to Gray Line’s offices does not excuse Starr because it was fully able to have gotten at least one copy and checked it, which might have avoided the alleged infringement.

Be these things as they may, it is the opinion of the Court that the copyright which Carter contends was infringed, and which was infringed if such copyright was valid, was not valid.

A map is copyrightable. 17 U.S.C. § 5 (f). Carter complied with the provisions of 17 U.S.C. §§ 10, 13 and 19, which set out the procedure to be followed in obtaining a copyright. Carter’s map consists of an outline of the island of Hawaii and words within and without the outline indicating places, areas, names of cities and names of hotels and describing the activities and points of interest at various places on the island.

The outline of the island of Hawaii is in the public domain and is not copyrightable. Christianson v. West Pub. Co. (1945), 9th Cir., 149 F.2d 202, 203; Sawyer v. Crowell Pub. Co. (1942), D.C., N.Y., 46 F.Supp. 471, 474; 17 U.S. C. § 8. The names of areas, of cities and of hotels also are in the public domain and therefore are not copyrightable.

Maps are entitled to only limited copyright protection. Axelbank v. Rony (1960), 9th Cir., 277 F.2d 314, 318.

The case of Marken and Bielfield, Incorporated v. Baughman Company (1957), D.C., Va., 162 F.Supp. 561, involved a map contained in a folder or brochure. The Court, at pages 562 and 563, summed up the rules applicable to the copyrightability of maps as follows:

“The controlling principles were applied in General Drafting Co. v. Andrews, 2 Cir., 1930, 37 F.2d 54; Andrews v. Guenther Publishing Co., D.C.1932, 60 F.2d 555; Amsterdam v. Triangle Publications, Inc., 3 Cir., 1951, 189 F.2d 104; and Crocker v. General Drafting Co., D.C.1943, 50 F.Supp. 634. These appear to be leading eases upon the subject of the amount of originality required to meet the test as to whether the map is a proper subject of copyright.

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Bluebook (online)
201 F. Supp. 301, 133 U.S.P.Q. (BNA) 65, 1961 U.S. Dist. LEXIS 5987, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carter-v-hawaii-transportation-co-hid-1961.