GeneaBloggers

Thursday, 27 August 2015

A Copyright Casualty — Part I

Not many of us will have found an ancestor who had fallen victim to a case of copyright infringement, but fewer still will have found an ancestor who was involved in an important copyright case — one that is still cited in modern textbooks because of its unusual circumstances.

The trap for the unwary looking for gain
Figure 1 - The trap for the unwary looking for gain.

According to various census returns, William Ashbee was born c1803 in Hillesley, Gloucestershire, but he was baptised about 2.5 miles south of there at Hawkesbury, on 6 Mar 1803, to Isaac and Hester Ashbee.[1] Following the reading of the Banns on 18 Jun 1825, he married Ann Hayward in the parish of Westonbirt, about 7 miles east of Hillesley.[2]

In 1841, they were living in Fox Hill, Tetbury, about 13 miles E-NE of Hillesley, and William was a ‘mason’[3], apparently the same as his father. By this time, they had established their family of four children whose ages then ranged from 4 to 15.

Family Tree of William and Ann Ashbee
Figure 2 - Family Tree of William and Ann Ashbee.

In 1851, they were still living in Fox Hill but William was now a ‘baker’.[4] Interestingly, the next household on that census page — actually on Silver Street — was of the Godwin family; the family into which William’s eldest son, Thomas, would wed later that year.

In 1861, they had moved to Long Street, Tetbury, and William was now a ‘baker & grocer’.[5] Also in the household was their 8-year-old granddaughter, Jane A[ugusta] Ashbee. She had been born to Thomas Ashbee and Sarah Jane Godwin on 25 Sep 1852[6], but her mother had died either during or shortly after the birth. I can find no record of her death but Thomas remarried to Eliza Dean in 1854.

In order to further establish the occupation and location of William during these years, I consulted a number of trade directories, and these yielded the following information:

Date
Location
Occupation
Notes
1849
The Green, Tetbury
Baker
[a]
1852–53
Long St, Tetbury
Baker
Proprietor was a Mary rather than William.[b]
1856
Long St, Tetbury
Baker & Grocer
Mrs Mary Ashbee is also a baker at Gumstool Hill.[c]
1868
Silver St, Tetbury
Baker
[d]
[a] Hunt & Co's Directory of Gloucester & Bristol, 1849, p.172 (image 175 of 587), online PDF, University of Leicester, compiler, Historical Directories (http://specialcollections.le.ac.uk/ : accessed 8 Feb 2015).
[b] Slater's Directory of Berks, Corn, Devon, ... Glos, ..., 1852-53, p.162 (image 564 of 1070), Historical Directories.
[c] Post Office Directory of Gloucestershire, Bath & Bristol, 1856, p.369 (image 380 of 619), Historical Directories.
[d] Slater's Directory of Glos, Herefs, Mon, Shrops & Wales, 1868, p.271 (image 283 of 1151), Historical Directories.


What this information shows is that William was still associated with baking in Tetbury, right up until 1868. This is important because he changed his profession to that of publisher around this same time, and he obviously took the decision quite late in life as he was nearly 65 years old.

Long Street, Tetbury, 1949
Figure 3 - Long Street, Tetbury, 1949. © The Francis Frith Collection.[7]

William Ashbee, in partnership with Louis (or Lewis) Simonson, Edward Dutton, and Francis Alexander Lamb, formed a new publishing company called Ashbee & Co. However, their first work, The Merchants’ and Manufacturers’ Pocket Directory of London, immediately ran into trouble: an injunction on its publication and sale was sought by John Stuart Crosbie Morris, publisher of 4 Moorgate Street Buildings, on the grounds that it was pirated from his own Business Directory of London. I cannot determine when the bill was filed but the law suit — more formally known as: Morris v. Ashbee (1868) LR [Law Report] 7, Eq. [Equity case] 34 — was already partially heard by 4 Nov 1868.[8]

The bill alleged that the four defendants (identified above) had been previously employed by Morris (the plaintiff) as canvassers in the preparation of his own directory, published in 1867. Morris suspected that Simonson was going to bring out a directory of his own, in opposition to his, and so he was fired. Morris wanted the other three to sign an undertaking that they wouldn’t join Simonson unless they were discharged from his service, but they refused and so they were fired too. The four defendants were reported to have commenced business at 190 Gray’s Inn Road and had published their own directory in January 1868.[9]

An advertisement for canvassers was running during December 1867 that was using this address and so it further refines the date at which Ashbee & Co. began operating:

“Ten respectable men wanted, to canvass for orders for a new copyright engraving. Directory canvassers preferred. Apply, personally, until 17th inst., between the hours of 10 and 2, at 42 Charlotte-street, Portland-place, W.; or between 3 and 7 O'clock, at Ashbee and Co.'s, 190 Gray's-inn-road, W.C. canvassers now realizing between 15s and 20s per day”.[10]

By the time the bill was served, Ashbee & Co. were operating from 32 Bouverie Street, off Fleet Street, London. These premises had, for some time, been associated with another publisher called Thomas Murby, known for his “Excelsior Reading Books” and “Indestructible Binding for School Books”.

Fleet Street, London, c1886
Figure 4 - Fleet Street, London, c1886. © The Francis Frith Collection.[11]

Morris claimed that defendants had pirated information from his own directory, and some cases of typographic errors having been duplicated were used to substantiate this allegation. However, the court was satisfied that wholesale copying had not occurred.

The defendants admitted that they cut-up the plaintiff’s directory and pasted strips onto new sheets, but claimed that these were merely used by their canvassers to locate prospective clients for their own directory, and that the form and layout or their directory was wholly their own. This is where the detail of the case gets very murky since Morris was the defendant in a previous case: Kelly v. Morris (1866) LR 1 Eq. 697. Frederic Festus Kelly’s Post Office London Directory was used in a similar way by Morris to direct his canvassers as opposed to actually copying any of the source material. There were also more serious allegations of pirating involved in that case as many typographic and other errors, and details of deceased persons and defunct businesses, had crept into the newer directory. Morris lost that case and an injunction was served on the associated directory: The Imperial Directory of London.

The main difference in Ashbee’s case concerned the fact that advertisements were public property. Morris still used a similar technique that collated information from public advertisements, newspapers, flyers, etc., as well as previous editions of his own directory, in the preparation of material to direct his canvassers. Ashbee claimed that since trades people paid Morris for additional differentiators — such as their names appearing in capitals, or “extra lines” describing their business, or actual advertisements near to their directory entries — then those specific entries amounted to advertisements and that he was entitled to use them in a similar way to Morris.[12]

In fact, in Simonson’s evidence, he claimed that on leaving the employment of Morris, in April 1867, that he had told him not only of his intention to create a pocket directory, but also the manner in which he was going to use a copy of his directory, but Morris allegedly made no complaint.[13]

Although the Morris v. Ashbee case had some differences from the prior Kelly v. Morris case, there were still strong similarities: namely the contention that a mercantile directory was intended to be used in order to locate trades people and their addresses, and that entries were deliberately arranged in alphabetical order of name and of trade to facilitate this. This might be obvious in any context except one involving the production of a rival publication.

So what do you think? Was Ashbee in the wrong, and if so then in what way? In the follow-up to this article, I will discuss the details of how the case went and what the repercussions were.




[1] "England Births and Christenings, 1538-1975", database, FamilySearch (https://familysearch.org/ark:/61903/1:1:NP5Y-3MQ : accessed 24 August 2015), William Ashbee, 6 Mar 1803; citing HAWKESBURY,GLOUCESTER,ENGLAND; FHL microfilm 425,436, 856,929.
[2] “Marriage Banns”, database, TheGenealogist (http://www.thegenealogist.co.uk : accessed 20 Feb 2015), entry for William Ashbee and Ann Hayward, 1825, Westonbirt parish.
[3] "1841 England Census", database with images,  Ancestry (www.ancestry.co.uk : accessed 24 Aug 2015), household of William Ashbee (age 38); citing  HO 107/362, book 11, folio 39, page 13; The National Archives of the UK (TNA).
[4] "1851 England Census", database with images,  Ancestry (www.ancestry.co.uk : accessed 24 Aug 2015), household of William Ashbee (age 48); citing  HO 107/1967, folio 176, page 19; TNA.
[5] "1861 England Census", database with images,  Ancestry (www.ancestry.co.uk : accessed 24 Aug 2015), household of William Ashbee (age 58); citing  RG 9/1780, folio 44, page 36; TNA.
[6] England, birth certificate for Jane Augusta Ashbee, born 25 Sep 1852; citing 6a/296/380, registered Cirencester 1852/Dec [Q4]; General Register Office (GRO), Southport.
[7] Long Street, Tetbury, 1949. Image © The Francis Frith Collection, ref: T155019 (http://www.francisfrith.com/us/tetbury/tetbury-long-street-1949_t155019 : accessed 27 Aug 2015). The hotel visible on the left is the Ormond’s Head Hotel (no. 42), which was in the 1861 census and is still there today. According to UK Pub History, this apparently had some connection with the Ashbee family at a much earlier date (http://pubshistory.com/Gloucestershire/Tetbury/OrmondsHeadTavern.shtml : accessed 26 Aug 2015).
[8] "Law Intelligence: Court of Chancery Nov.4: Morris v. Ashbee", London Evening Standard (5 Nov 1868): p.7, col.1
[9] "Law Intelligence: Equity Courts - Tuesday: Morris v. Ashbee", Morning Post (11 Nov 1868): p.7, col.3.
[10] “Ten Respectable Men Wanted”, The Times, Issue 25995 (London, Monday 16 Dec 1867): p.3, col.3.
[11] London, Ludgate Hill From Fleet Street c.1886. Image © The Francis Frith Collection, ref: L130184 (http://www.francisfrith.com/us/london/london-ludgate-hill-from-fleet-street-c1886_l130184 : accessed 27 Aug 2015).
[12] “Rival Directories”, Lloyds Weekly (15 Nov 1868): p.7.
[13] "V. C. Gifford's Court: Morris v. Ashbee and Another", The Law Times Reports; Containing All the Cases Argued and Determined in the House of Lords, the Privy Council, the Court of Appeal ..., Volume XIX [19], September 1868 to February 1869 (London: Horace Cox, Strand, 1869): pp.5503.