American Lithographic Co. v. Werckmeister
| Decision Date | 04 April 1906 |
| Docket Number | 106. |
| Citation | 146 F. 377 |
| Parties | AMERICAN LITHOGRAPHIC CO. v. WERCKMEISTER. |
| Court | U.S. Court of Appeals — Second Circuit |
On Motion to Amend Mandate April 24, 1906.
Wm. A Jenner, for plaintiff in error.
Antonio Knauth, for defendant in error.
This cause comes here upon writ of error to pon writ of error to review a judgment of the Circuit Court, Southern District of New York, in favor of defendant in error for $10,000 penalties for violation of section 4965, Rev. St. (U.S. Comp St. 1901, p. 3414), one-half to plaintiff and one-half to the United States.
Before WALLACE, LACOMBE, and COXE, Circuit Judges.
The copyright in question relates to the picture Chorus, which was the subject of the litigation covered by our decision in American Tobacco Company v. Werckmeister (filed to-day) 146 F. 375. Reference may be had thereto for the disposition of several of the points (assignment of copyright, requirements as to giving notice, etc.) which are urged upon the present appeal.
The complainant alleges a sale of 30,100 copies of the copyrighted painting. None of these were found in the possession of defendant at the time of beginning action under any process or otherwise. Defendant insists that for that reason the plaintiff failed to show facts sufficient to sustain recovery. Reliance is had on the decisions in Thornton v. Schreiber, 124 U.S. 612, 8 Sup.Ct. 618 31 L.Ed. 577, and Bolles v. Outing Co., 175 U.S. 262, 20 Sup.Ct. 94, 44 L.Ed. 156. In both those cases the copyrighted article was a photograph. Defendant's counsel suggests that there is no reason apparent why there should be one measure of damages in the case of a book or photograph and another in the case of a painting; but it is a sufficient answer to such suggestion to note that the statute makes just such a distinction. In the case of a book or photograph the offending person shall forfeit 'one dollar for every sheet found in his possession, either printing, printed, copied, published, imported, or exposed for sale. ' In the case of a painting he shall forfeit 'for every copy of the same in his possession, or by him sold or exposed for sale. ' In the one case it will be noted that there is to be no penalty for any copy 'sold'; in the other case a penalty for every copy 'by him sold' is to be exacted. The structure of the sentence is conformed to this distinction. In the earlier quotation the words 'found in his possession' qualify every subsequent word in the clause; in the later quotation the words 'in his possession' are cut off from the next succeeding words 'by him sold' by the use of the word 'or'. It is not necessary to inquire why this distinction is made; it is sufficient to say that it is made, in language so plain that to eliminate it would be judicial legislation.
We are satisfied, however, that there was not...
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American Tobacco Co. v. Werckmeister
... ... the original painting is entitled to take a copyright. This ... point has been fully discussed by Judge Putnam in ... Werckmeister v. Pierce & Bushnell Co. (C.C.) 63 F ... 455, and by Judge Holt in Werckmeister v. Am ... Lithographic Co. (C.C.) 142 F. 827. We concur in their ... conclusions, and are of the opinion that plaintiff secured a ... statutory copyright ... It is ... next contended that plaintiff has no right to maintain the ... action because of omission to give the notice of copyright ... prescribed ... ...
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American Lithographic Co. v. Werckmeister
...much of the testimony offered by plaintiff having been excluded by the trial court on the mistaken theory that it was privileged. 146 F. 377, 76 C.C.A. 649. Upon the second trial the testimony was admitted. Upon the present appeal we see no reason to modify in any way our former ruling that......