Full opinion text
LEVET, District Judge. This is a suit for damages for copyright infringement brought pursuant to the Copyright Act, 17 U.S.C.A. § 1 et seq. Trial was before the Court without a jury. Plaintiff, Marjorie Barstow Green-bie, is the author of a book entitled, “My Dear Lady,” which was published on October 7, 1940. It is alleged that one Hollister Noble, one of the defendants above named, infringed the copyright of the aforesaid book by writing and causing to be published in 1948 a certain book entitled, “Woman With A Sword.” The defendant Noble died on or about the time of the commencement of this action, which was instituted on July 21, 1954. Noble was never served in this action and his estate has not been made a party. The action has been discontinued against all defendants except Doubleday & Company, Inc. and Sears Roebuck and Company. Doubleday is alleged to have infringed plaintiff’s copyright by publishing a general edition of “Woman With A Sword” and Sears by publishing a book club edition under license. The amended answers of Doubleday and Sears admit the publication but deny the allegations of infringement and assert a number of defenses including the propriety of plaintiff’s status as a party to this action, laches, statute of limitations and misuse of copyright or unclean hands. The plaintiff’s book, “My Dear Lady,” is sub-titled, “The Story of Anna Ella Carroll, A ‘Great Unrecognized Member of Lincoln’s Cabinet.’ ” This volume is an historical account of the background, childhood and Civil War activities of one Anna Ella Carroll. Miss Carroll, a member of the famous Carroll family of Maryland, daughter of Thomas King Carroll, a former governor of Maryland, is credited with having devised the plan of the so-called “Tennessee Campaign” during the Civil War. The book published by the defendants Doubleday and Sears is a fictionalized account of the career of Anna Ella Carroll. Noble, the author, in his acknowl-edgements, among other things, states: “All of the characters in this book were living persons, with one exception. Harry Heyward is a fictional dramatization of several of Anna Carroll’s Southern suitors.” It is also stated by Noble that: “All of the major military and political events took place very much in the order in which they are related.” There is no doubt that much of the basic narrative involved in both books is predicated upon certain historical facts or reasonable inferences from those facts. The plaintiff’s book is based largely on documented sources and, reputedly to some extent, on her personal conversations with surviving relatives of Anna Ella Carroll. The book contains an extensive bibliography and an index. Plaintiff, it seems, was inspired to undertake her production when she saw in the Library of Congress a certain card file reference to a two-volume work by Sarah Ellen Blackwell on the life of Anna Ella Carroll. From this card she derived the sub-title of the book. Subsequently, she visited certain surviving relatives of Anna Ella Carroll in Maryland, to wit, one Nellie Calvert Carroll and one Katherine Cradock, nieces of the deceased Anna Ella Carroll. She discovered certain letters and other private papers in their possession, some of which she transferred to the Maryland Historical Society in Baltimore; others she retained in her own custody. The book, “My Dear Lady,” had one printing, of which some 1,400 copies were sold. In 1941 or 1942, the publication was declared out of print by its publishers, McGraw Hill Book Company, Inc. The book, “Woman With A Sword," published by the defendants, was begun in January, 1945. Noble had been a professional writer and editor in the newspaper, radio and motion picture fields, with previous avocational interests in Civil War matters and in railroads. He had written numerous book reviews for the New York Times, commencing as early as 1931 (Exhibit CC) and had likewise been the author of numerous magazine articles published by the New York Times Magazine Section (Exhibit BB). In January, 1945, Noble’s agent, one Barthold Fies, gave Noble a copy of plaintiff’s publication, “My Dear Lady,” with other books. At the same time it appeared that Noble had previously heard about Anna Ella Carroll, since he showed Fies the reference to her contained in Carl Sandburg’s “Life of Lincoln” on page 410 (Minutes, pp. 648-649). Noble owned a substantial Civil War library and had served as an Army officer and with the Office of War Information during World War II. It appears from the testimony of Mrs. Noble that Noble had many publications relating to this period in his library at Sherman Oaks, California. He also visited the William Wyles Lincoln Library at Santa Barbara College, University of California, the Los Angeles Public Library, the St. Louis Mercantile Library and other libraries. He secured certain information from the so-called “Memorials”— that is, post-Civil War petitions of Anna Ella Carroll to Congress for recognition for her services rendered during the Civil War. He read Blackwell’s “Life of Anna Ella Carroll.” He visited various Civil War Battlefields and we'may conclude that he interviewed certain of the relatives of Anna Ella Carroll. Noble’s agent, Barthold Fies, testified in substance as follows with respect to the procedure of submission of the manuscripts by Noble to Doubleday: 1. On or about April 11, 1946, Fies delivered an outline of 30 to 50 pages and 100 pages of the book to Doubleday (see Minutes, pp. 603-606). (Noble edited the original version. Exhibit BBBB). His preliminary outline and sample writing appears to have been reviewed by Doubleday’s Paul Hollister on March 28, 1946 and George Shively on April 11, 1946 (Exhibit-DD).) 2. About a month later, apparently in May, 1946, Doubleday and Noble entered into an option agreement and $500 was paid on account (Minutes, p. 609). 3. Between Christmas 1946 and New Years 1947, at Sherman Oaks, California, Fies examined a first draft of 1,400 pages which had been prepared but had not been submitted to Doubleday (Minutes, p. 613). 4. On or about April 10, 1947, a manuscript of some 1,200 pages was submitted to Doubleday (Minutes, p. 611). One-third of that version related to the early life of Anna Ella Carroll; perhaps one-fifth to the Baltimore years; and a little less than half to the war years and after (Minutes, p. 642). This manuscript is no longer available, having been ruined by water at the Noble residence (Minutes, p. 642). 5. A contract (Exhibit 14), was signed between Doubleday and Noble on April 24, 1947 (Minutes, p. 613). 6. On or about May 10, 1947, Fies had conversations with Noble with respect to further revisions (Minutes, p. 614). 7. In September, 1947, a “cut” version was delivered to Doubleday (Minutes, p. 615). 8. On or about November 12, 1947, another version was delivered to Doubleday (Minutes, p. 616). 9. On or about January 1, 1948, a final “cut” and revised version was submitted to Doubleday (Minutes, pp. 615-617). These facts are substantially undisputed and, accordingly, it is my finding that they are correct. Editing Evidence from the files of Doubleday indicates that the basic manuscript from which “Woman With A Sword” eventually grew was submitted just before April 10, 1947 (see Statement of LeBaron R. Barker, Jr., of Doubleday, Exhibit EE). Mr. Barker, an executive editor with Doubleday, said with respect to this section of the manuscript: “ * * * it is a long way from being finished or being a satisfactory manuscript.” Barker also said: As I understand this project, the author has knocked off three book-length manuscripts of the doings of Ann Carol [sic], daughter of Charles Carol [sic] of Carolton [sic], Maryland. We have an option on this book, having paid $500 with the understanding that we see completed manuscript. It so happens that the first two divisions which are both book length in themselves are too much along the nonfiction line, but the third book could be made into an historical novel.” (Emphasis supplied.) (See Exhibit EE.) Barker read 200 pages of Noble’s manuscript in April, 1947 (Minutes, p. 1495). In October, 1947, Noble sent him a manuscript of 750 pages (Minutes, p. 1497). Barker took over active charge of Noble’s manuscript for Doubleday when Paul Hollister left in July, 1947 (Minutes, p. 1502). Barker said it was his impression that the manuscript received in April, 1947, was well over 1,000 pages (Minutes, p. 1503). Further change and editing by Noble is set forth in a letter to Barker dated November 17,1947 (Exhibit JJ). Barker advanced numerous recommendations for insertions and editing, particularly as to conversations between Judge Lemuel D. Evans, Edwin M. Stanton, Edward Bates and Senator Benjamin Wade with Anne —this on February 5, 1948 (Exhibit OO). The revised manuscript submitted by Noble in January, 1948, was obtained from the Unversity of Southern California for this trial and marked in evidence as Exhibit MM. Noble’s letter of February 13, 1948, to Barker indicates Noble’s continued revision of the manuscript (Exhibit PP). Numerous suggestions of changes in form and verbiage were made by Barker on November 12, 1947 (Exhibit HH). In the meantime, the other manuscripts had been returned to Noble (Minutes, p. 1523). Eileen Lang, the then Mrs. Barker, worked on the manuscript (Minutes, p. 1526). Thirty-nine pages were entirely rewritten; 543 pages were changed in part; 60 or 70 pages were cut out (Minutes, p. 1528). Noble made certain changes in the galley sheets, including the reduction of Evans’ and Miss Carroll’s ages by ten years each (Minutes, p. 1532). Barker concedes that he “skimmed” through plaintiff’s book in October 1947 (Minutes, pp. 1593, 1692). He likewise “skimmed” through Blackwell (Minutes, p. 1594). When Barker read “Woman With A Sword” he said that he was convinced it was an independent work (Minutes, p. 1663). He says he never used the Greenbie book to check research in the Noble book (Minutes, p. 1697). Differences in the Two Books “Woman With A Sword” was summarized by “Life” magazine in 1948 as follows: “ * * * This month, with Woman with a Sword by Hollister Noble, Doubleday & Company, Inc. is publishing the 49th Civil War novel since G. W. T. W. [Gone with the Wind]. Based largely on historical documents, it traces the career of the woman who conceived what Major General Cassius Clay declared to be ‘the great strategical coup of the war.’ Anna Ella Carroll came from a family which included Charles Carroll, a signer of the Declaration of Independence, and John Carroll, the first U. S. Catholic bishop, who founded Georgetown College. Her father was elected governor of Maryland. Anna Carroll herself started on her career early, as a lawyer, writer and amateur politician. By 1861 her activities had so impressed Lincoln that she became virtually an unofficial member of his Cabinet. Uncertain about proposed Union strategy, Lincoln and his Assistant Secretary of War, Colonel Thomas A. Scott, asked Miss Carroll to go to St. Louis and evaluate the Union plan to gain control of the Mississippi River in order to cut off Confederate supply lines from the west. Her studies convinced her that the Tennessee River, not the Mississippi, held the key to the war. She made her report to Scott and Lincoln, and they agreed. At that time, however, the President could not risk ordering his army to carry out the plan if they knew it was conceived by a civilian, least of all a woman. Without revealing its source Lincoln persuaded his generals to use the Tennessee Plan. Miss Carroll’s strategy did not cover the entire conduct of the war, but her idea of switching the attack to the Tennessee River started the Union on the marches that led to Vicksburg, Atlanta and, finally, Appomattox. “When Lincoln dispatched Anna Ella Carroll to St. Louis to size up the possibilities of invading the South via the Mississippi River, she was accompanied by Judge Lemuel Evans, a secret agent on the Union side. In the five weeks Miss Carroll and Judge Evans spent in St. Louis they formed a notable attachment. Charles Scott, the riverboat pilot who helped Anna devise her plan, even mentioned it in Congressional hearings. T rarely saw them apart,’ he said. ‘The judge was very devoted to her.’ The friendship lasted until Evans’ death in 1877. They never married. Miss Carroll’s elderly niece thinks ‘Judge Evans was not a marrying man.’ As for Miss Carroll, she was more interested in a career than in marriage, although society notes of the time describe her as a reigning belle who included among her suitors President James Buchanan. Evans went back to Texas and became chief justice of the state Supreme Court. Anna stayed in the North, fighting to gain equal rights for Negroes and trying to get some recognition and payment for her wartime services. Although Union officials praised her for her role in winning the war, Anna Ella Carroll never received public recognition. She died at 78, worn out, an invalid in the home of her spinster sister in Washington, D. C. and a cause celebre of the women’s suffrage movement.” (Exhibit OOOO.) Long before any claim of infringement was made by plaintiff, Barker of Doubleday described the theme of “Woman With A Sword” as follows: “To my way of thinking, it is primarily the account of how Anne Carroll saved the Union, in particular through her Tennessee Plan. Secondly it is the love story of Anne and Lem Evans, with Harry Ravenel [later named Harry Heyward in the final version] as the third and losing side of the triangle. Finally it is the story of Anne herself as she was changed and matured by important historical events and by her association with such people as Lincoln, Stanton, Wade, etc. The story line to my way of thinking is Anne’s all the way, but in the background is the story of the Civil War, Washington during the war, and the great problems of the Times.” (Exhibit HH.) Plaintiff’s book, “My Dear Lady,” as described in the index card of the Library of Congress, is the story of Anna Ella Carroll, the “great unrecognized member of Lincoln’s cabinet,” and is classified as biography and history (see Exhibit JJJJ-2). Noble’s book, “Woman With A Sword,” is described as “the biographical novel of Anna Ella Carroll of Maryland” and listed as fiction (see Exhibit J-JJJ-1). Some 191 characters, either historical or fictional, not mentioned in plaintiff’s book, appear in Noble’s book (see Exhibit QQ). The names of many of these historical characters mentioned in his book and the historical connection of each with the Civil War (see Exhibit W) are convincing testimony of Noble’s independent research. Anne, in Noble’s book, is 35, although she was actually 45 in 1861 (Minutes, p. 284); Evans was actually 51 at that time (Minutes, p. 285). Differences between Mrs. Greenbie and Noble in'the treatment of Anne Carroll’s activities in the Civil War were set forth at length by Barker (see Minutes, pp. 1536-1574, 1604-1655, 1673-1684). The differences included not only the mode of treatment, but essential differences in content. Many items not included in Greenbie appear in Noble. Barker gave the following reasons why Noble’s book sold so many more copies than Mrs. Greenbie’s book (see Minutes, pp. 1668-1671, 1688-1690, 1709): 1. The public wants a stronger storyline while it will not go for a straight narrative of historical facts (Minutes, p. 1668); 2. The Noble book is readable; the Greenbie book is much harder to read (Minutes, p. 1669); 3. The Greenbie book is not a popular kind of book, while the Noble book is (Minutes, p. 1669); 4. Differences in promotion, including the brochure sent out by Doubleday (Minutes, pp. 1669, 1688). Barker summed up his opinion as follows: “Based on my knowledge of the book trade and publishing, the Greenbie book I do not think was in a form or in a style which could possibly get the large audience that the Noble book did, which very definitely was in a form and style which could. I think that is the basic reason.” (Minutes, p. 1709.) The total royalty received by Mrs. Greenbie for “My Dear Lady” was about $412.50 (Minutes, p. 1836). She also received $1,600 for the use of her Carroll material from the Women’s Home Companion (Minutes, p. 1839). Mrs. Green-bie sold 2,000 copies of her second book, “Anna Ella Carroll and Abraham Lincoln,” published in 1952 (Minutes, p. 1837). Sears actively promoted the sale of “Woman With A Sword” to its book club members with attractive and colorful brochures and novelized illustrations (Exhibit Y). Doubleday also had published full page advertisements in the New York Herald Tribune Book Section, emphasizing the fictional features of “Woman With A Sword” before Noble’s book came on for retail sale (Exhibit D). From the foregoing, it is my opinion that the two books were basically different in purpose, treatment, promotion and character. Investigations and Research by Noble Mrs. Noble said that when Fies gave Noble a number of books in January, 1945, at Sherman Oaks, California, Noble picked up “My Dear Lady” and said: “< * * * this is the Carroll story,’ and then he started to talk about the story.” (Minutes, p. 692.) When Fies came back to Noble that day, Noble in talking about the Carroll story said: “ * * * it should be a novel.” (Minutes, p. 695.) Noble thereafter visited the Los An-geles Public Library, the William Wyles Lincoln Library at Santa Barbara, the Huntington Hartford Library at Pasadena and other libraries (Minutes, p. 694). Noble had many volumes in his home, including two volumes of Blackwell, “Life of Anna Ella Carroll” (Minutes, p. 696), a most important work containing the basic Carroll material, including Miss Carroll’s own publications, Congressional reports, letters and much personal data. Mrs. Noble testified that each day her husband would start typing between 7:30 and 8:00 A.M. and type either the manuscript or notes until about 2 or 3 in the afternoon; then he would work with the books, making notes. With the exception of the trip Noble took (April 19, 1947 to June 9, 1947) and a couple of short vacations, this went on for three years (Minutes, p. 696). Mrs. Noble produced a series of notes made by her husband while writing “Woman With A Sword.” Some were typewritten and some in his handwriting. On the typewritten notes, he had placed certain index tabs. She said none of these notes were prepared after December 1, 1948. He used these notes in preparing his manuscripts and she saw him reading the two volumes of Blackwell. (This is confirmed by the notes.) Some of these notes were made in Mrs. Noble’s presence at Sherman Oaks; some at the William Wyles Lincoln Library in her presence; other notes were destroyed by water in the basement of their home in 1950 or 1951. Noble wrote on no other subject between 1945 and 1948 (Minutes, pp. 697-715). Mrs. Noble identified a so-called “Partial Bibliography” prepared by her husband (see Exhibit T-2), and listed a number of publications appearing thereon which he had at his home (Minutes, pp. 721-724) , She also said that he owned certain books listed in the bibliography (Minutes, pp. 738-740). It appeared that in June, 1947, Noble secured from Washington photostatic copies of letters from Anne Carroll to Lincoln and letters from Senator Browning to Miss Carroll (Minutes, p. 705; Exhibits L-l, L-2, L-3, L-4). Mrs. Noble said she never saw her husband open “My Dear Lady” and look at it while he typed (Minutes, p. 756). Everette Beach Long, a Civil War Research scholar, examined certain of the aforementioned notes (identified by Mrs. Noble), collected by Noble in the course of his writing “Woman With A Sword.” In Long’s testimony he noted the use of much of this material in Noble’s book; he stated the probable source of the notes. From this testimony it is evident that Noble consulted and made excerpts from certain works. Certain sheets of Exhibit T (pp. 103A, 103B, 103C) are headed “Balt.” and are dated May 26, May 27 and May 28 respectively. One has “47” on it (Minutes, pp. 1121-1122). Certain notes contained in Exhibit T, according to the opinion of Mr. Long, appear to be from letters which, according to the plaintiff, as shown in her book, “Anna Ella Carroll and Abraham Lincoln,” came from papers in the Maryland Historical Society (Minutes, p. 1108). There is, therefore, some evidence that Noble visited the Maryland Historical Society and made excerpts from the letters available there. Noble’s extensive notes are catalogued under different headings and indicate wide research into many details (Exhibit T). These papers also include notes of Old Trinity Churchyard gravestones of the Carroll family (Exhibit T, p. 44). Noble obtained a copy of a portrait of Evans and secured a brochure of the sale of Kingston Hall (Exhibit T). Notes on stationery of Marshall Library, Marshall, Texas, about the Evans family, indicate Noble’s visit to Texas (Exhibit T, p. 62). In a paper, which appears came from the Seward Collection at Auburn, New York, Evans is listed as a Secret Service Agent of the State Department (Exhibit T, p. 1). Noble’s handwritten notes, dated Balt. May 26/47 (Exhibit T-103), indicate excerpts from various Carroll papers. Many of these appear to have been in the Maryland Historical Society at the time, and there only. Thus it is evident that Noble must have had personal access to these records. Mrs. Greenbie at one time stated that Noble had consulted the Carroll papers, presumably in the Maryland Historical Society (Minutes, p. 1910). She admits depositing in the Maryland Historical Society copies of the Congressional Globe of 1861 and 1862 with markings in the handwriting of Anna Ella Carroll (Minutes, p. 541). Mrs. Greenbie concede that the Congressional Globe was put in the Maryland Historical Society on December 11, 1940 (E/B/T, p. 494). On April 19, 1947, Noble left home on a trip, prior to which he expressed an intention to visit the Carroll relatives in Maryland, the Evans relatives in Texas, the Mercantile Library in St. Louis, Washington, D. C. and Auburn, New York, the home of the Seward Collection (Minutes, pp. 651, 652, 718-733; Letter, Exhibit 16). He returned on June 9, 1947. On April 14, 1947, in a card to Fies, postmarked Shreveport, Louisiana, Noble indicated his intention to visit the Vicksburg battlefield (see Exhibit RRR). In a letter to Fies, Noble stated his intention of making “brief stops for quick check ups at Marshall, Texas; Vicksburg, Shiloh, Paducah, the Eastern Shore, and New York (Exhibits ZZZ and AAAA). On April 29, 1947, Noble claimed to have traveled 4,359 miles since April 19, 1947 (see Exhibit UUU). There is some evidence that Noble visited and examined the Seward Collection at Auburn, New York, and found material there in respect to Evans and others (see Exhibit T(l); see also Exhibit VVV, where Noble wrote to Fies that “We finally got the Sewards to open up their private collection here. You should see it! Bales of Lincoln letters lying around loose. Not even Government men have seen this stuff. And here are records of old ‘Evans’ — ‘L. D. Evans — Secret Service, Confidential missions for the President — per William H. Seward’ ”). Noble appears to have examined Stanton’s private papers at Washington in May, 1947 (Exhibit QQQ) and to have had a visit with Nellie Calvert Carroll, niece of Anna Ella Carroll, in Maryland in April, 1947 (see Exhibit UUU). The Stanton papers seem to have provided “convincing proof of Miss Carroll’s work” (see Exhibit XXX). It also appears that Noble did a week’s research reading the Congressional Record (then the Congressional Globe) (see Exhibit YYY). He also said he read the Memoirs of a Volunteer (Exhibit YYY). On February 13, 1948, Noble wrote to Barker of Doubleday, in part, as follows: “I am sending you in a few days some letters of Anne’s found in the recently opened Lincoln papers. They aren’t important to the story, but I thought you and your wife might find them of interest in regard to Anne’s thinking and character generally. I think her handwriting very revealing — breezy, strong, confident, yet graceful and feminine. “They also testify to her frequent interviews with Lincoln. If you ever have five minutes in the library you would enjoy reading Anne’s own account of ‘The Tennessee Plan’ in the ‘North American Review’ for April, 1886. The gal could write even as an elderly' woman.” (See Exhibit PP.) A Reader’s Record Card of the Library of Congress, Division of Manuscripts, in Noble’s writing, shows that he visited it on May 29,1947, and that he appears to have examined certain Stanton and Chase papers (see Exhibit U). Norman B. Nash, a witness for the defendants, who was formerly a Bishop of the Episcopal Church and a resident of Cambridge, Massachusetts, testified that he had known Noble for many years and that Noble was Mrs. Nash’s only and younger brother. He said that he arrived in Washington, D. C. late the evening of Friday, May 30th, en route to his daughter’s graduation on June 1 and 2nd at the Madeira School, located just outside of Washington. He was in Washington all day on Saturday, May 31st and he met Noble coming out of the Library of Congress (Minutes, pp. 1269-1274). Noble, in his letter of September 16, 1947, to Barker of Doubleday, mentions searching the Congressional investigations, the Library of Congress, the War Department, the Lincoln papers, then recently opened in the Library of Congress, the Seward Collection at Auburn, New York, the Stanton papers, the National Archives, the Maryland Historical Society, personal interviews with two of Anne Carroll’s nieces, that is, Nellie C. Carroll and Katherine Cradock, personal correspondence with a Mrs. Ely Blount of Texas, a collateral descendant of Evans, a detailed tour by motor of the battlefields of the war (Exhibit FF). Nellie C. Carroll, on October 25, 1947, wrote to Mrs. Greenbie that Noble had visited her in April, 1947, and had stated that he expected to come back in September and spend several days in Dor-chester cheeking up on some details and that he also went to see Miss Cradock (see Exhibit F). Certain manuscripts of Anna Ella Carroll were deposited in the Maryland Historical Society in September, 1942, by Katherine Cradock, niece of Anna Ella Carroll (see Exhibit GGG). These papers included letters from Fernando Wood, Mayor of New York City, to Miss Carroll under the following dates: January 30, 1860 (Exhibit AAA), February 10, 1860 (Exhibit CCC), March 7, 1860 (Exhibit ZZ), March 20, 1860 (Exhibit DDD), May 9, 1860 (Exhibit BBB), undated (Exhibit EEE); also two letters from Charles M. Scott, the pilot, to his wife, Anna, dated February 14, 1862 (Exhibit XX) and February 17, 1862 (Exhibit YY) and a letter from Charles M. Scott to Miss Carroll, dated May 2, 1862 (Exhibit FFF). On February 21, 1947, Noble wrote to Barthoid Fies, in part, as follows: “3) On the other hand, tho’ I’m an easy-going guy, I won’t let this book come out without taking certain precautions. Do you realize I’ve written the whole damn thing without a single glance at any of the original source material?” (See Exhibit 16.) In the same letter (Exhibit 16) Noble also states: “ * * * I think Mrs. Greenbie and Sarah Blackwell probably did a pretty good job.” Later, on December 27, 1947, in a letter from Noble to Fies (Exhibit 17), he asked Lee (apparently referring to Barker of Doubleday) “to send out ‘My Dear Lady’ at once. I need to check some details badly.” Fies testified in effect that at least once or twice the book, eventually entitled, “Woman With A Sword,” was known as “My Dear Lady project” (Minutes, pp. 634-636); and other times the book was entitled, “Silence So Deafening” and “Forgotten Glory” (Minutes, pp. 638-639). In the letter of February 21, 1947, Noble indicated his intention of visiting the Eastern Shore, to gossip with “Annie’s” relatives or descendants, to check the locale and general legend of “Annie” on the Eastern Shore, to check Congressional reports, War Department material and look up Evans’ record at the War Department (seeExhibit 16). Fies stated that he saw copies of Blackwell’s “Life of Anna Ella Carroll” in the possession of Noble at Noble’s home before the delivery of the outline and the 100 sample pages, which was on April 11, 1946 (Minutes, pp. 649-650). Plaintiff may urge that Noble’s statements in Exhibits 16 and 17 are confessions of copying. This is not my opinion. What Noble had prepared by February 21, 1947, could easily have been, and I believe was, written by him from Blackwell and from the other materials at hand. Blackwell and the “Memorials” from Congressional records provide quite a complete story about the life of Anna Ella Carroll. The other words known also to be available were adequate for background and general history. All of the facts, including Noble’s activity, the books open to him, the notes he made, indicate this. The investigations subsequently made by him in the spring and early summer of 1947 supplemented what he already had done. All were ultimately utilized in whole or in part. Mrs. Greenbie admits that her book was intended as a biography of Anna Ella Carroll (Minutes, p. 179) and that it is composed of facts about the life of the subject (Minutes, p. 183). She also stated on cross-examination that when she wrote “My Dear Lady” it was her intention that the public should rely upon it as a truthful statement of the events (Minutes, p. 330). Thus, Mrs. Green-bie’s book purported to be historically sound. She clearly so intended, as her testimony reveals. Noble had a right to use it as a guide, supposedly true in its basic veracity. He checked the fundamental records himself by going to the sources. To believe that the notes Noble made (Exhibit T) were constructed after being faced with a claim by Mrs. Green-bie is without foundation. It is my opinion that the evidence in this case establishes that Noble independently researched the facts concerning the life of Anna Ella Carroll. Profits No proof of damages for publishing, vending or printing was offered by the plaintiff, However, the profits earned by the defendants, without regard to questions of apportionment thereof or liability, are as follows: The profits of Doubleday from the sale of “Woman With A Sword” are: Net book sales.............................$56,516.29 Total book expenses ........................ 53,801.58 Net Profit Book Sales...................7TT7TT7. .$ 2,714.71 Subsidiary i’ights (including sale under license to Sears (People’s Book Club, Inc.): Gross Income...................$35,425.00 Author’s Share ... .$17,712.50 Expenses.......... 4,456.18 Total Deductions............$22,168.68 Net Profit Subsidiary Sales.......................$13,256.32 Total Net Profit................$15,971.03 The receipts of Sears, Roebuck & Company from “Woman With A Sword” were $227,889 (see Exhibit 22). The expenses of People’s Book Club, Inc. from August 20, 1948 to October 5, 1948 (when the book, “Woman With A Sword” was featured) totaled $187,850. During this period, less than 5% of the total business was from the sale of other books (Minutes, p. 1302). Sears charged 100% of the expenses for this period against “Woman With A Sword” upon the ground that no other book was used as a first selection to the Club members (Minutes, pp. 1322-1325; see also 1353). Cobb, for Sears, conceded that actually “Woman With A Sword” did not represent 100% of the sales during that period (Minutes, p. 1322). He said that during this period at least 95% of the books shipped were “Woman With A Sword” (Minutes, p. 1331). This was the customary experience for 1948, 1949 and 1950 in respect to a particular book selection (Minutes, p. 1331). The expenses during the March 1949 period (when the People’s Book Club, Inc. promoted the special sale of “Woman With A Sword”) were apportioned to the extent of 12%% against this book (Minutes, p. 1305; see also 1344). This was based upon proportionate number of copies of “Woman With A Sword” that were shipped that month to the total number of books sold during that period (Minutes, p. 1306). Twelve and one-half per cent of these expenses amounted to $24,204 (see Schedule D of Exhibit Z). The expenses for sales after March 31, 1949, charged were $12,003 (see Exhibit Z; Minutes, p. 1308). This was determined as follows: (1) Sears took the total number of copies of “Woman With A Sword” sold August 20, 1948 to October 5, 1948 and in March 1949, and found that it represented 94% of all copies distributed; (2) then Sears took 6% of the expenses of these two periods and used it as the expense of the other 6% of the books distributed (Minutes, pp. 1308-1309; see also 1350). The application of 6% of the expense of the two periods for sales after March 31, 1949, is not strictly correct. The percentage should be based on what percentage 6 is of 94% or 6.38% of the expense for the periods. Accordingly, in my opinion, the profits of Sears are as follows: Receipts from books..................................$227,889.00 (1) Expenses from August 20,1948 to October 5,1948: 95% of $187,850 ..........................$178,457.50 (2) Expenses for March 1949 ............ 24,204.00 (3) Expenses for all other months: 6.38% of the total of (1) and (2) — $202,661.50 ......... .......... 12,929.80. .$215,591.30 Net Profit............$ 12,297.70 Affirmative Defenses Defendants, as stated, have asserted certain affirmative defenses. Before consideration of the merits, I will first determine the validity of such defenses: (1) That Plaintiff Is Not the Proper Party to Sue The defendants contend that plaintiff is not the proper party to sue for the alleged infringement of the copyright. This argument stems from the fact that plaintiff assigned her publication rights to her publisher, McGraw-Hill Book Company, Inc., in a writing signed by plaintiff on June 3, 1948, which reads in part as follows: “*- * * The Author agrees to prepare and to supply to the Publishers the manuscript, illustrations and index for a work entitled “My Dear Lady: The Story of Anna Ella Carroll or such other title as may be agreed upon by the parties hereto, and agrees to and does hereby sell and assign the said work and the sole right to publish the same in book form to said Publishers, including all revisions and future editions thereof, and the rights of translation into all foreign languages. ****** “1. Copyright. The copyright shall be taken out in the name of the Author, and shall be her sole property.” (Exhibit A.) However, the above assignment does not purport to convey all of the rights secured by the copyright. Plaintiff retained her right to make another version thereof by novelizing her work. In. Fitch v. Young, D.C.S.D.N.Y., 1916, 230 F. 743, affirmed 2 Cir., 239 F. 1021, which is cited by defendants in support of their contention, Judge Learned Hand held that a publisher who reserved the right to multiply copies of a play would be required to sue for its infringement by a novel which copied the play. The copyright for the play was obtained before the right to novelize came into existence under the Copyright Act of 1909, and consequently the only basis for the action was “by virtue of the exclusive right to ‘copy’ granted by section 4952 of the Revised Statutes * * 230 F. at page 745. Having failed to retain the specific right to copy the play, the author was not the proper party to sue for the infringement of that right. In the instant case, plaintiff has retained her right under 17 U.S.C.A. § 1 (b) to make' another version by converting her biographical work into a novel and is the holder of the legal title to the copyright. As holder of the legal title, she is properly entitled to maintain this action. See Widenski v. Shapiro, Bernstein & Co. Inc., 1 Cir., 1945, 147 F.2d 909; Edward B. Marks Music Corp. v. Jerry Vogel Music Co., 2 Cir., 1944, 140 F.2d 268; M. Witmark & Sons v. Pastime Amusement Co., D.C., 298 F. 470, affirmed 4 Cir., 1924, 2 F.2d 1020. (2) Laches Defendants claim that plaintiff is guilty of laches in that she commenced this action approximately six years after she acquired knowledge of the alleged infringement. When a copyright holder has acquiesced in, or failed to object to, the acts constituting the alleged infringement so as to induce the infringer to incur financial obligations, such delay in bringing suit will give rise to an equitable defense to the action. Universal Pictures Co., Inc., v. Harold Lloyd Corp., 9 Cir., 1947, 162 F.2d 354; D. O. Haynes & Co. v. Druggists' Circular, 2 Cir., 1929, 32 F.2d 215; Edwin L. Wiegand Co. v. Harold E. Trent Co., 3 Cir., 1941, 122 F.2d 920, certiorari denied 316 U.S. 667, 62 S.Ct. 1033, 86 L.Ed. 1743; Gilmore v. Anderson, C.C. S.D.N.Y., 1889, 38 F. 846. In the case at bar, plaintiff did not acquiesce in the publication of “Woman With A Sword.” Indeed, in a letter dated November 30, 1948 (Exhibit 5), her attorney notified the defendant Doubleday of her copyright claim and objected to the publication of the said book. Plaintiff’s conduct was not sufficient to justify a belief on the part of Doubleday that there was an assurance of immunity from a claim of liability. See Universal Pictures Co., Inc. v. Harold Lloyd Corp., supra; Szekely v. Eagle Lion Films, Inc., 2 Cir., 242 F.2d 266; Loew’s Incorporated v. Columbia Broadcasting System, Inc., D.C. S.D.Cal., 1955, 131 F.Supp. 165. In any event, this Court will be guided by the applicable statute of limitations in determining whether this suit should be dismissed because of laches. “ * * * While it is true that federal courts sitting in equity are not bound by state statutes of limitations (Kirby v. Lake Shore & Michigan Southern Railroad, 120 U. S. 130, 7 S.Ct. 430, 30 L.Ed. 569), they are, under ordinary circumstances, guided by them in determining their action on stale claims.” Benedict v. City of New York, 250 U.S. 321, 327, 39 S.Ct. 476, 478, 63 L.Ed. 1005. See also D. O. Haynes & Co. v. Druggists’ Circular, supra; Pathe Exchange, Inc. v. Dalke, 4 Cir., 1931, 49 F.2d 161. (3) Misuse of Copyright or Unclean Hands One of the defenses alleged is misuse of copyright or unclean hands. This defense apparently is based upon the following contentions: (A) Control by the plaintiff restricting the material deposited by her in the Maryland Historical Society; (B) Plaintiff’s blocking out the so-called Anna Ella Carroll story to preempt motion picture and fictional rights. The evidence supporting these claims is in substance as follows: (A) Restrictions Mrs. Greenbie sought to keep the materials collected by her out of the public domain by depositing certain documents in the Maryland Historical Society (Minutes, p. 1907). She conceded that she imposed an injunction on the records deposited in the Maryland Historical Society (Minutes, p. 191) because of Miss Nellie Carroll’s reluctance to give them to the Society (Minutes, p. 193). (B) Control of the Anne Carroll Story As early as October 25, 1947, Mrs. Greenbie learned from Nellie Calvert Carroll that Noble was writing a fictional story of Anna Ella Carroll, Miss Nellie’s aunt; that Noble had signed a contract with Doubleday, and that both Nellie Calvert Carroll and Katherine Cradock were of the impression that “they [apparently referring to Noble] would work up a motion picture.” (See Exhibit F.) On July 29, 1948, Maxwell Aley, plaintiff’s agent, revealed Mrs. Greenbie’s concern with “Hollywood” in his telegram to plaintiff (see Exhibit C). Aley, on behalf of the plaintiff, apparently sought to lay claim to all material with respect to Anna Ella Carroll when he wrote to the Crosby Enterprises on July 29, 1948, stating: “Control all rights to Anne Carroll material.” (See Exhibit H.) On January 17, 1949, Aley wrote to Mrs. Greenbie urging legal action against Noble. He said: “The moment that legal steps are taken your position becomes entirely different, and I think any attempt at a picture based on Noble’s book will be stopped. This kind of thing scares the pants off Hollywood.” (See Exhibit E.) Mrs. Greenbie’s intention to control the Anna Ella Carroll story was evidenced in her letter to a woman who wanted to write an article on Anna Ella Carroll, when Mrs. Greenbie said: “ * * * she must understand that any Anna Ella Carroll material — that the Anna Ella Carroll material had already been copyrighted in ‘My Dear Lady,’ and that I would consider that anything written based on — anything written of that story which also existed in ‘My Dear Lady’ was copyrighted material.” (E/B/T pp. 346-347.) Mrs. Greenbie’s intentions in respect to “My Dear Lady” were set forth as follows in her Examination Before Trial: “ * * * we decided that we would make two jobs out of it, and for the sake of settling it, especially since we had the Woman’s Home Companion proposition, we would simply get on with all the documentary material, and fix the copyright, and then we would work more leisurely and write the more complete and fictionalized story.” (P. 330.) “ * * * It was part of our plan that we would fix the copyright definitely by getting out a preliminary book as fast as possible, and then I would rewrite that book. It didn’t matter to me as long as we sold enough copies and fixed it. I didn’t care what the sale was in our general overall plan.” (P. 521.) In the course of the examination, she admitted that her book, “My Dear Lady,” was superficial in its coverage of the factual background. She said she didn’t • build up the detail because: “ * * * the publishers didn’t favor it at the moment and because it was always the idea in my mind that it was the first draft. “I thought I would do the story and have it copyrighted, especially since so many motion picture people were interested in it at the moment. I thought I would get it set and do it over. * * * ” (P. 233.) “I had several motion picture negotiations pending already, and I was trying to get the stuff in order to hold the thing for the motion pictures.” (P. 445.) The prohibition against improper use of a copyright was stated in Columbia Pictures Corp. v. Coomer, D.C.E.D.Ky., 1951, 99 F.Supp. 481, as follows: “ * * * a copyright holder, like patentees and other holders of an exclusive privilege granted in furtherance of a public policy, may not claim the court’s protection where he is using his grant to subvert the very policy upon which it rests. Morton Salt Co. v. G. S. Suppiger Co., 314 U.S. 488, 494, 62 S.Ct. 402, 86 L.Ed. 363. Thus, where a copyright holder seeks to impose price control upon future sales of an article, after having sold or otherwise divested himself of title to it, so that the article, as such, passed out of the domain of the copyright, as was found in Bobbs-Merrill Co. v. Straus, 210 U.S. 339, 28 S.Ct. 722, 52 L.Ed. 1086, and Straus v. American Publishers’ Ass’n, 231 U.S. 222, 34 S.Ct. 84, 58 L.Ed. 192, or when such price fixing licenses are found to be a means of extending the copyright monopoly so as to govern the admission price to exhibitions or entertainments which include pictures or features not covered by the copyright, as was found in Interstate Circuit v. United States, 306 U.S. 208, 228, 59 S.Ct. 467, 83 L.Ed. 610, or where price maintenance is shown to constitute a part of a general plan, combination or conspiracy to unreasonably restrain interstate trade and commerce in motion picture films or to monopolize or suppress competition in the exhibition thereof as found in United States v. Crescent Amusement Co., 323 U.S. 173, 65 S.Ct. 254, 89 L.Ed. 160, such nrice-fixing agreements violate the Sherman Act and are afforded no immunity by the copyright laws. United States v. Paramount Pictures, 334 U.S. 131,144, 68 S.Ct. 915, 92 L.Ed. 1260.” (Pp. 482-483.) By depositing the Carroll letters with the Maryland Historical Society subject to the consent requirement, plaintiff did not thereby obtain a monopoly on the story of the life of Anna Ella Carroll. Nor did she effect such deposit by reason of her control of the copyright for “My Dear Lady.” Consequently, it cannot be said that plaintiff used her copyright as a means of extending it beyond its proper scope or that she did in fact enlarge the copyright monopoly so as to embrace features not covered by the copyright. Mrs. Greenbie’s efforts to obtain a copyright for her book so that she could thereafter “hold the thing for the motion pictures” cannot be interpreted as a monopolization by her of the Anna Ella Carroll story, even though Mrs. Greenbie may have acted in this belief. It merely illustrates her unfamiliarity with the scope of her copyright. The alleged misuse is no defense to this action. (4) Statute of Limitations Defendants have also interposed in their answer an affirmative defense of statute of limitations. The Copyright Act, 17 U.S.C.A. § 1 et seq., prescribes no time limitations with respect to the commencement of an action for infringement. Consequently, in the absence of a federal statute of limitations, an action for a copyright infringement “would be limited by the limitation existing for the class of actions to which it belongs, in the state where the action was brought.” (Emphasis added.) Brady v. Daly, 175 U.S. 148, 158, 20 S.Ct. 62, 66, 44 L.Ed. 109. See also Local Trademarks, Inc. v. Price, 5 Cir., 1948, 170 F.2d 715; D. O. Haynes & Co. v. Druggists’ Circular, 2 Cir., 1929, 32 F.2d 215; Carew v. Melrose Music, Inc., D.C.S.D.N.Y., 1950, 92 F.Supp. 971. The New York statute of limitations applicable to the claim against defendant Doubleday is Section 48(2) of the Civil Practice Act relating to actions “to recover upon a liability created by statute” which prescribes a six-year limitation. Garew v. Melrose Music, Inc., supra. However, the claim asserted against defendant Sears, having arisen . outside New York, will be controlled by the limitations statute of the state in which said cause of action arose if said statute provides a shorter period than that prescribed by the New York limitations statute. The authority for this point is Section 13 of the New York Civil Practice Act, which provides that where a cause of action accrues outside New York and the plaintiff is not a resident of New York, the claim cannot be asserted if barred by the limitations statute of either New York or the place where the cause of action arose. See Walder v. Paramount Publix Corp., D.C.S.D.N.Y., 1955, 132 F.Supp. 912; Winkler-Koch Engineering. C.o. v.. Universal Oil Products Co., D.C.S.D.N.Y., 1947, 79 F.Supp. 1013, 1020;- Ansbachetr v. New York Trust Company, 280 N.Y. 79, 19 N.E.2d 790; Oglesby v. Cranwell, 2d Dept., 1937, 250 App.Div. 720, 293 N.Y.S. 67. In order to ascertain where ' the cause of action arose, it first becomes necessary to consider the nature of the cause of action asserted in the complaint. The Copyright Act grants certain exclusive rights to the holder of a copyright, among which are the rights to print, reprint, publish, copy, and vend the copyrighted work. 17 U.S.C.A. § 1(A). An encroachment upon any one of the aforementioned rights gives rise to a cause of action. Thus, the mere printing or copying of a copyrighted work, without proof of sales thereof, will constitute an infringement. Chappell & Co., Inc., v. Costa, D.C.S.D.N.Y., 1942, 45 F.Supp. 554. And where a party causes or procures an independent contractor to print or copy the work, such party will be equally liable with the independent contractor as a joint tort-feasor. Fishel v. Lueckel, C.C.S.D.N.Y., 1892, 53 F. 499. Moreover, anyone who violates any of the rights secured by the Copyright Act will be liable as an infringer. This point was expressed in American Code Co., Inc. v. Bensinger, 2 Cir., 1922, 282 F. 829, as follows: “ * * * It is established that the one who prints an infringing work is an infringer. Belford v. Scribner, 144 U.S. 488, 12 Sup.Ct. 734, 36 L.Ed. 514; Baschet v. London Illustrated Standard Co. [1900] 1 Ch. 73. So is the publisher. Basch-et v. London Illustrated Standard Co., supra. As likewise is the vendor. Greene v. Bishop, 10 Fed.Cas. p. 1128, No. 5,763.” At page 834. In the case at bar, it appears that within the six-year period the defendant Sears first caused copies of “Woman With A Sword” to be printed by an independent printing contractor in Wisconsin. The printing of an infringing book in Wisconsin would give rise to a cause of action in said state against Sears Roebuck for infringement. Chappell. & Co., Inc. v. Costa, supra; Fishel v. Lueckel, supra. Said cause of action would be governed by the Wisconsin statute of limitations which provides a six-year period for “An action upon a liability created by statute when a different limitation is not prescribed by law.” Wisconsin Statutes, § 330.19(4). However, no proof of separate profits to Sears from this printing has been shown. Neither was there proof of any damages. The printer made the profits, not Sears, and the printer was not joined in this action. The most that can be applied here is the “in lieu” clause. 17 U.S.C.A. § 101. In my opinion such damages would be no more than $250. No effective damage took place until publication and sale. Publication and vending of the books were effected by Sears in Illinois and consequently a cause of action for violation of each of these separate rights would arise in Illinois, if, in fact, an infringement had occurred. Plaintiff contends that the vending of the books by Sears occurred in each state in which it offered them for sale to the members of its book club. Although the word “vend” may include the act of offering for sale, a mere offer without more does not constitute vending. See Minter v. Williams, 111 Eng.Rep. 781, 4 Add. & El. 63. In any event, the offer of sale emanated from Illinois and the sales were consummated in Illinois when Sears mailed the books to its members F. O. B. Chicago. City of Chicago v. DiSalvo, 302 111. 85, 134 N.E. 5; People ex rel. v. Hill Top Metals Mining Co., 300 111. 564, 133 N.E. 303. Consequently, Sears’ alleged violation of plaintiff’s rights to publish and vend her book gave rise to a cause of action in Illinois and is controlled by the Illinois statute of limitations, which prescribes that “Actions * * * to recover damages for an injury done to property, real or personal * * * and all civil actions not otherwise provided for, shall be commenced within five years next after the cause of action accrued.” Illinois Revised Statutes, Chap. 83, § 15. (A) As to Doubleday Since the action was started on July 21, 1954, the six-year statute of limitations applies as to Doubleday, and all of its publications in question are within this statute. Doubleday’s offices were in New York in 1948 (Minutes, p. 1285). The contract between Doubleday and People’s Book Club, Inc. (Exhibit 4) was negotiated in New York City (Minutes, p. 1285). The contracts with Doubleday were signed in New York by Doubleday and in Chicago by People’s Book Club, Inc. (Minutes, p. 1287). (B) As to Sears The Sears or People’s Edition of “Woman With A Sword” (Exhibit 27) was printed in Wisconsin by the Wisconsin Cuneo Press (Minutes, pp. 1285-1286), on the following dates: . July 22, 1948 Began presswork......................... .. August 12, 1948 Completed presswork...................... .. July 27, 1948 Started shipping to Chicago (John F. Cuneo Company, Bindery)............... .. August 13,1948 Completed shipment to Chicago............. (see Exhibit CCCC) The printing was all completed by August 20, 1948 (Minutes, pp. 1288-1289). Cuneo was totally independent of Sears (Minutes, p. 1314). The plates used by Cuneo Press were furnished by Doubleday (Minutes, p. 1316). The sheets were bound by Cuneo in Chicago and the printed books delivered to the People’s Book Club, Inc. in Chicago (Minutes, p. 1286). The Club shipped from its Chicago warehouse as directed by Sears (Minutes, p. 1286). The binding, receipt of the orders and shipment of the orders, and the preparation of the promotion matters, including membership promotions in the People’s Book Club, were all done in the State of Illinois (Minutes, pp. 1291-1293). As to Sears, with the application of the five-year statute, all sales before July 21, 1949 would be eliminated from the profits recoverable by the plaintiff. Therefore, we must deduct the sale of 28,311 books from the total of 32,996 books sold through November, 1955 (see Exhibit 26). The ratio of book's sold within the five-year period, i. e., 4,685 books to the total books sold by Sears, is 14.2%. 14.2% of $12,297.70, the total profits shown, is $1,746.27. This may be subject to correction to some extent by reason of change in prices of books sold. However, as it hereinafter appears, this question becomes academic. Consequently, on the assumption of liability and before consideration of the doctrine of apportionment, the recovery would be limited as follows: (1) For printing only......$ 250.00 (2) Sears’ profits .......... 1,746.27 (3) Doubleday’s profits ..... 15,971.03 Total........$17,967.30 Infringement Since none of the affirmative defenses are complete, we next come to a consideration of the merits of plaintiff’s claim. The gravamen of plaintiff’s action is the alleged unlawful copying from her copyrighted book concerning the story of Anna Ella Carroll. Access to the plaintiff’s book is admitted. However, the mere fact of access is not fatal to a defense in a copyright case. Sheldon v. Metro-Goldwyn Pictures Corporation, D. C.S.D.N.Y., 1934, 7 F.Supp. 837, reversed on other grounds 2 Cir., 1936, 81 F.2d 49, certiorari denied 298 U.S. 669, 56 S. Ct. 835, 80 L.Ed. 1392. It is well settled that the facts concerning the actual life of an historic character are in the public domain and are not entitled to copyright protection. See Toksvig v. Bruce Pub. Co., 7 Cir., 1950, 181 F.2d 664 (Hans Christian Andersen) ; DeAcosta v. Brown, 2 Cir., 1944, 146 F.2d 408, certiorari denied Hearst Magazines v. DeAcosta, 325 U.S. 862, 65 S.Ct. 1197, 89 L.Ed. 1983 (Clara Barton); Lake v. Columbia Broadcasting System, D.C.S.D.Cal., 1956, 140 F.Supp. 707 (Wyatt Earp). However, the fictionalizing of events and incidents in the life of an historic figure is the author’s original treatment of the life of such figure and is subject to protection against appropriation by others. DeAcosta v. Brown, supra. In such case, however, the copyright does not protect the entire work but extends only to those matters which are the result of the author’s independent labor, skill and ingenuity. See Sheldon v. Metro-Goldwyn Pictures Corporation, 2 Cir., 1936, 81 F. 2d 49, certiorari denied 298 U.S. 669, 56 S.Ct. 835, 80 L.Ed. 1392. The fact that two works relate to the same subject matter or are similar to one another does not constitute an infringement if each is the fruit of the author’s independent intellectual effort. This is especially true when both works are derived from common sources and materials available to all so that the resemblances are either accidental or result from the nature of the subject. Funkhouser v. Loew’s Inc., 8 Cir., 1953, 208 F.2d 185, certiorari denied 348 U.S. 843, 75 S.Ct. 64, 99 L.Ed. 664; Hartfield v. Peterson, 2 Cir., 1937, 91 F.2d 998; Chautauqua School of Nursing v. National School of Nursing, 2 Cir., 1916, 238 F. 151; Sampson & Murdock Co. v. Seaver-Radford Co., 1 Cir., 1905, 140 F. 539; Ziegelheim v. Flohr, D.C.E.D. N.Y., 1954, 119 F.Supp. 324; Shulsinger v. Grossman, D.C.S.D.N.Y., 1954, 119 F. Supp. 691; Maddux v. Grey, D.C.S.D. Cal., 1930, 43 F.2d 441; Kennerley v. Simonds, D.C.S.D.N.Y., 1917, 247 F. 822; Simms v. Stanton, C.C.N.D.Cal., 1896, 75 F. 6. Copyrighted work based on material in the public domain then can be infringed only when so transformed by the first taker as to entitle him to a claim of originality. American Code Co., Inc. v. Bensinger, 2 Cir., 1922, 282 F. 829 834; Hirsch v. Paramount Pictures, Inc., D.C.S.D.Cal., 1937, 17 F.Supp. 816, 818. In American Code Co., Inc. v. Bensinger, supra, Judge Rogers wrote: “If one takes matter which lies in the public domain, or which has been dedicated to the public by publication without securing copyright under the acts of Congress, and, adding thereto materials which are the result of his own efforts, publishes the whole and takes out a copyright of the book, the copyright is not void because of the inclusion therein of the uncopyrightable matter, but is valid as to the new and original matter which has been incorporated therein. It is necessary, however, to keep in mind the distinction between copyrightability and the effect and extent of the copyright when obtained. The degree of protection afforded by the copyright is measured by what is actually copyrightable in it; that is, by the degree and nature of the original work.” 282 F. at page 834 (Emphasis supplied.) Sidney Greenbie in his preface to “Anna Ella Carroll and Abraham Lincoln,” written by him and the plaintiff, Mrs. Greenbie, said: “Few facts in history are more thoroughly documented in governmental records than the work of this remarkable woman” [i. e., Anna Ella Carroll] (see Exhibit AA, preface, p. VII). However, the historical facts contained in government records are not subject to copyright protection since Section 8 of the Copyright Act, Title 17 U.S.C.A. expressly decrees that “No copyright shall subsist * * * in any publication of the United States Government, or any reprint, in whole or in part, thereof * * Factual material published and incorporated in official government records for the benefit of the public at large may not be privately appropriated and “taken from that public under the guise of copyright.” DuPuy v. Post Telegram Co., 3 Cir., 1914, 210 F. 883, 885. There is no copyright of facts, news or history. Oxford Book Co., Inc. v. College Entrance Book Co., 2 Cir., 1938, 98 F.2d 688; Davies v. Bowes, D.C.S.D. N.Y., 1913, 209 F. 53, affirmed 2 Cir., 1914, 219 F. 178; Lake v. Columbia Broadcasting System, Inc., D.C.S.D.Cal., 1956, 140 F.Supp. 707; Echevarria v. Warner Bros. Pictures, Inc., D.C.S.D. Cal., 1935, 12 F.Supp. 632.. In Echevar-ria v. Warner Bros. Pictures, Inc., supra, Judge Yankwich stated: “One cannot build a story around a historical incident and then claim exclusive right to the use of the incident. If originality can be claimed in opposing Aguinaldo to Funston, ■ as the plaintiff claimed in open court, then all the novels, short stories, and dramas written about the Civil War, opposing Grant and Lee, might never have been written after the first one because the author of the first one could have claimed exclusive right to the product.” At page 638. In Lake v. Columbia Broadcasting System, Inc., supra, Judge Mathes said: “ * * * historical facts and events in themselves are in the public domain and are not entitled to copyright protection * * 140 F.Supp. at pages 708-709. In like fashion Special Master Grater in Eisenschiml v. Fawcett Publications, Inc., D.C.N.D.Ill., Eastern Div., No. 53C 1912, April 26, 1956, wrote: “It is pure superarrogation for one to suggest that he has any proprietary interest in an era of history, particularly a period that is as extensively written about as the Civil War.” The fact that plaintiff’s biography was published before the defendant’s novel does not give plaintiff a monopoly of the subject matter, since, unlike the law of patents, “mere priority in time does not confer a monopoly.” Harold Lloyd Corporation v. Witwer, 9 Cir., 1933, 65 F.2d 1, 17, certiorari dismissed 296 U.S. 669, 54 S.Ct. 94, 78 L. Ed. 1507. The copyright monopoly, if we may call it that, merely gives the copyright possessor the exclusive right to exploit the form of his expression. In Holmes v. Hurst, 174 U.S. 82, 19 S.Ct. 606, 43 L.Ed. 904, Mr. Justice Brown stated: “The right thus secured by the copyright act is not a right to the use of certain words, b