221 U.S. 603 (1911), 115, American Lithographic Company v. Werckmeister

Docket Nº:No. 115
Citation:221 U.S. 603, 31 S.Ct. 676, 55 L.Ed. 873
Party Name:American Lithographic Company v. Werckmeister
Case Date:May 29, 1911
Court:United States Supreme Court

Page 603

221 U.S. 603 (1911)

31 S.Ct. 676, 55 L.Ed. 873

American Lithographic Company



No. 115

United States Supreme Court

May 29, 1911

Argued April 10, 1911




The forfeiture for infringement of copyright prescribed by § 4965, Rev.Stat., is not only for every copy found in possession of the infringer, but in the alternative for every copy by him sold.

Where a distinction is plainly made in an act of Congress prescribing penalties as to different classes of the offense, the court need not search for the reason for making the distinction, but must give it effect.

Under § 4965, Rev.Stat., no penalty for infringement can be recovered with respect to prints, photographs, etc., except for sheets found in defendant's possession, and there cannot be two actions as to the same copies, one for replevin and the other for penalty; but with respect to paintings, statues and statuary, an action can be brought for penalties on copies sold by the infringer and not included in those replevied in another action. Werckmeister v. American Tobacco Co., 207 U.S. 375; Hills v. Hoover, 220 U.S. 334, distinguished.

The authority to issue writs conferred on courts of the United States by § 14 of the Judiciary Act of 1789, and § 716, Rev.Stat., includes the authority to issue subpoenas duces tecum, and it was not the purpose of § 724, Rev.Stat., to interpose an obstacle with respect to the issuance of such subpoenas.

The Act of July 2, 1864, c. 210, § 3, 13 Stat. 351, now Rev.Stat., § 858, removing disabilities of witnesses on account of being parties to the action removed whatever obstacle existed as to issuing subpoenas duces tecum to parties.

Section 860, Rev.Stat., providing that no pleading or discovery obtained from a party or witness by means of judicial proceeding shall be used against him in any criminal proceeding, relates to using the evidence in a subsequent proceeding.

A corporation defendant in a suit to enforce penalties under § 4965, Rev.Stat., for infringement of copyright is not entitled under the Fourth or Fifth Amendment to object to the admission of evidence of entries in its books produced under a subpoena duces tecum. Wilson v. United States, ante, p. 361.

Page 604

The facts, which involve the construction of § 4965, Rev.Stat., are stated in the opinion.

Page 606

HUGHES, J., lead opinion

MR. JUSTICE HUGHES delivered the opinion of the Court.

This is a writ of error to review a judgment of the circuit court of appeals affirming a judgment upon a verdict in favor of Emil Werckmeister, plaintiff below. The action was brought under § 4965 of the United States Revised Statutes to recover penalties for the infringement of a copyright. The subject of the copyright was the painting "Chorus," and the penalties demanded were for copies printed and sold by the Lithographic Company.

It is contended that the recovery was unauthorized by the statute, for the reason that the copies were not found in the defendant's possession. Section 4965, so far as material, provides:

SEC. 4965. If any person, after the recording of the title of any map, chart, dramatic or musical composition, print, cut, engraving, or photograph, or chromo, or of the description of any painting, drawing, statue, . . . shall . . . engrave...

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