Caliga v. Inter Ocean Newspaper Co.

• Decision Date: 01 October 1907
• Docket Number: 1,365.
• Citation: 157 F. 186
• Parties: CALIGA v. INTER OCEAN NEWSPAPER CO.
• Court: U.S. Court of Appeals — Seventh Circuit

157 F. 186

CALIGA v. INTER OCEAN NEWSPAPER CO.

No. 1,365.

United States Court of Appeals, Seventh Circuit.

October 1, 1907

The plaintiff in error was plaintiff below in an action of debt under section 4965, Rev. St. (U.S. Comp. St. 1901, p. 3414) against the Inter Ocean Newspaper Company, for violation of copyright of the plaintiff's painting, and the writ of error is brought from a judgment therein in favor of such defendant, upon trial and directed verdict.

The declaration avers, in substance: That the plaintiff was the author, designer, and proprietor of an oil painting thus described: 'The Guardian Angel. Portrait of a young girl sitting, hair arranged smoothly over the ears, hair parted in the middle. Her guardian angel stands behind her, one hand resting on her left shoulder, the other on her right arm. ' That it had not been theretofore published. That he did, 'to wit, on or about the 5th day of November, A.D. 1901,' take steps, as recited, to obtain a copyright. That such description of the painting was duly recorded by the Librarian of Congress, 'to wit, on or about the 7th day of November, A.D. 1901. ' That the painting was thereupon duly copyrighted. That notice of such copyright was inscribed upon the painting, and that the plaintiff is sole owner and proprietor of such copyright and painting. Infringement by the defendant is averred in printing and publishing copies of the painting in its newspaper, 'to wit, upwards of 1,000 copies thereof,' on or about October 25, 1903.

Under plea of general issue the trial proceeded before a jury, with proof on behalf of the plaintiff primarily, supporting the declaration in a copyright of the date and description alleged, and publication by the defendant without consent. In the testimony of the plaintiff, however, it further appeared and was conceded to be the fact, that the plaintiff had procured a copyright of the identical painting on October 7, 1901, under the description: 'Maidenhood. A young girl seated beside a window. An angel stands behind her. ' Also, that the painting was submitted to Curtis & Cameron, publishers, prior to October, 'to have the picture published by them,' and was photographed for that object.

Thereupon the court instructed the jury to find the defendant not guilty, and verdict was rendered accordingly. Error is assigned in various forms, both upon the direction so given and refusal of several instructions requested on behalf of the plaintiff, but the reviewable questions arise under the direction of verdict.

Otto R. Barnett, for plaintiff in error.

Clarence A. Knight, for defendant in error.

Before GROSSCUP, SEAMAN, and KOHLSAAT, Circuit Judges.

SEAMAN Circuit Judge (after stating the facts as above).

This suit is for recovery of the penalties imposed by statute (section 4965, Rev. St. (3 U.S.Comp.St. 1901, p. 3414)) for violation of an alleged copyright of a painting produced and owned by the plaintiff in error. With recovery so sought, under the special right conferred by statute and not existing at common law, the rule is elementary which requires strict construction and proof for enforcement of such right. Wheaton v. Peters, 8 Pet. 591, 663, 8 L.Ed. 1055; 3 Notes U.S.Rep. 485; Mifflin v. R. H. White Co., 190 U.S. 260, 264, 23 Sup.Ct. 769, 47 L.Ed. 1040; Bobbs-Merrill Co. v. Straus, 147 F. 15, 21, 23, 77 C.C.A. 607; White-Smith Music Pub. Co. v. Apollo Co., 147 F. 226, 227, 77 C.C.A. 368. The trial court directed a verdict of not guilty, upon the view that no valid copyright appeared under the registration of November 7, 1901, not only averred in the declaration, but proven and relied upon on the trial. Such ruling was predicated upon the fact-- disclosed in cross-examination of the plaintiff in error and subsequently admitted of record-- that the author had procured a prior registration on October 7, 1901, by filing 'a photograph of the painting in question,' with this description: 'Maidenhood. A young girl seated beside a window. An angel stands behind her. ' In the registration of November 7th the name was changed to 'The Guardian Angel,' with description amplified; and the only question for review, in our understanding of the issues and conceded facts, including the transactions with and of Curtis & Cameron, is whether the statutory copyright was acquired by this registration in suit.

While the bill of exceptions show no claim or offer made on behalf of the plaintiff in error under the registration of October 7th, either in the course of the testimony or in the instructions requested and referred to in the assignments of error, reversal is sought upon the contention that recovery was authorized under one or the other registration, and the direction was erroneous in either view. The propositions are, in substance, that the date of the copyright was 'pleaded under a videlicet,' and the (assumed) variance in proof was not fatal, because the particular date in such allegations is to be treated as forming no material part of the issue of fact tendered by the declaration, when the defendant is not misled or surprised. Were it true that such variance appeared between the averment and proof, and in date alone, it may be that the authorities cited would then be applicable to disregard the mere difference in date, where a single registration was proven. In this instance, however, the averment and proof are identical, both in date and subject-matter, so that no question of variance arises. The sole issue tendered and heard was upon this November registration as creating the alleged copyright, with no reference to the prior registration or intimation thereof until that fact was brought out by the defense by way of impeaching the claim in suit; and without proof applicable at least to the October registration, meeting the strict requirements for penal recovery, submission to the jury was not authorized in any view of the issue joined. The question whether a valid copyright was acquired under the prior registration is not therefore open for review, although the effect of that procedure must be considered in testing the validity of the right set up under the November registration for penal recovery.

With the controversy...