American Lithographic Company v. Emil Werckmeister, No. 115

CourtUnited States Supreme Court
Writing for the CourtHughes
Citation221 U.S. 603,55 L.Ed. 873,31 S.Ct. 676
PartiesAMERICAN LITHOGRAPHIC COMPANY, Plff. in Err., v. EMIL WERCKMEISTER
Decision Date29 May 1911
Docket NumberNo. 115

221 U.S. 603
31 S.Ct. 676
55 L.Ed. 873
AMERICAN LITHOGRAPHIC COMPANY, Plff. in Err.,

v.

EMIL WERCKMEISTER.

No. 115.
Argued April 10, 1911.
Decided May 29, 1911.

Page 604

Mr. William A. Jenner for plaintiff in error.

[Argument of Counsel from pages 604-606 intentionally omitted]

Page 606

Mr. Antonio Knauth for defendant in error.

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 (U. S. Comp. Stat. 1901, p. 3414), 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, etch, work, copy, print, publish . . . or import, either in whole or in part, . . . or, knowing the same to be so printed, published, . . . or imported, shall sell or dispose to sale any copy of such map or other article, as aforesaid, he shall forfeit to the proprietor all the plates on which the same shall be copied, and every sheet thereof, either copied or printed, and shall further forfeit one dollar for every sheet of the same found in his possession, either printing, printed, copied, published, imported, or exposed for sale; and in case of a painting, statue, or statuary, he shall forfeit ten dollars for every copy of the same in his possession, or by him sold or exposed for sale.'

Page 607

The contention is 'that the penalty attaches in the case of a painting only under the same conditions as in the case of a print; that the intent of the statute is to differentiate a painting from a print only in respect to the amount of the penalty, $1 in case of a print, and $10 in case of a painting; and that, in both cases, a finding in possession of the defendant is a condition precedent to the recovery of the penalty.' It is further urged that only one action can be maintained for forfeiture of the copies and for the penalties, and that the action lies only against the person in whose possession the copies are found, and that the penalties are to be computed upon the number so found.

The argument fails to give effect to the express provision of the statute. Its words are, 'He shall forfeit ten dollars for every copy of the same in his possession, or by him sold or exposed for sale.' No process of construction can override this explicit language. The prescribed forfeiture is not only for every copy found 'in his possession,' but, in the alternative, for every copy 'by him sold.' We need not search for the reason for the distinction between maps, charts, photographs, prints, etc., on the one hand, and paintings, statues, and statuary on the other. The character of the latter suggests the basis; but the distinction is plainly made, and it must be given effect.

With respect to prints, photographs, etc., the money penalty for the acts defined is 'one dollar for every sheet of the same found in his possession, either printing, printed, copied, published, imported, or exposed for sale.' The words 'found in his possession' limit the entire clause. And no penalty can be recovered in such case except for sheets found in the possession of the defendant. Bolles v. Outing Co. 175 U. S. 262, 44 L. ed. 156, 20 Sup. Ct. Rep. 94.

The cases of American Tobacco Co. v. Werckmeister, 207 U. S. 284, 52 L. ed. 208, 28 Sup. Ct. Rep. 72, 12 A. & E. Ann. Cas. 595, and Werckmeister v. American To-

Page 608

bacco Co. 207 U. S. 375, 52 L. ed. 254, 28 Sup. Ct. Rep. 124, related to the same copyrighted painting that is involved here. In the first case there was a recovery in an action in the nature of replevin of 1196 sheets containing copies. The second action was brought to recover the money penalties for the sheets seized in the former action. The question was whether there could be two actions against the same party; one for the seizure of the sheets forfeited and another for the penalties, and it was held 'that the statute contemplated...

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22 practice notes
  • Harris v. Nelson, No. 199
    • United States
    • United States Supreme Court
    • March 24, 1969
    ...upon this statute in issuing orders appropriate to assist them in conducting factual inquiries. American Lithographic Co. v. Werckmeister, 221 U.S. 603, 609, 31 S.Ct. 676, 55 L.Ed. 873 (1911) (subpoenas duces tecum); Bethlehem Shipbuildi g Corp. v. NLRB, 120 F.2d 126, 127 (C.A.1st Cir. 1941......
  • United Mine Workers of America v. Coronado Coal Co., 5154.
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • April 28, 1919
    ...of section 716, Rev. Stat. (Comp. St. Sec. 1239), authorizes such an order. It was so held in American Lithographic Co. v. Werckmeister, 221 U.S. 603, 609, 31 Sup.Ct. 676, 55 L.Ed. 873. As the orders to produce them were limited to the parties as officials of the United Mine Workers of Amer......
  • Millholland v. Oglesby, No. 42220
    • United States
    • United States Court of Appeals (Georgia)
    • October 26, 1966
    ...duces tecum, Murray v. State of Louisiana, 163 U.S. 101, 107, 16 S.Ct. 990, 41 L.Ed. 87; American Lithographic Co. v. Werckmeister, 221 U.S. 603, 31 S.Ct. 676, 55 L.Ed. 873; or denial of a 'motion to produce.' Griffin v. Locke (9th Cir.), 286 F.2d 514. All prior interlocutory orders are, of......
  • Marc Rich & Co., A.G., Matter of, No. 501
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 27, 1983
    ...testimony, seems essential to the very existence and constitution of a court of common law." American Lithographic Co. v. Werckmeister, 221 U.S. 603, 609, 31 S.Ct. 676, 678, 55 L.Ed. 873 (1911) (quoting Amey v. Long, 9 East 473, 484, 103 Eng.Rep. 653, 658 (1808)). See also Harris v. Nelson,......
  • Request a trial to view additional results
22 cases
  • Harris v. Nelson, No. 199
    • United States
    • United States Supreme Court
    • March 24, 1969
    ...upon this statute in issuing orders appropriate to assist them in conducting factual inquiries. American Lithographic Co. v. Werckmeister, 221 U.S. 603, 609, 31 S.Ct. 676, 55 L.Ed. 873 (1911) (subpoenas duces tecum); Bethlehem Shipbuildi g Corp. v. NLRB, 120 F.2d 126, 127 (C.A.1st Cir. 1941......
  • United Mine Workers of America v. Coronado Coal Co., 5154.
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • April 28, 1919
    ...of section 716, Rev. Stat. (Comp. St. Sec. 1239), authorizes such an order. It was so held in American Lithographic Co. v. Werckmeister, 221 U.S. 603, 609, 31 Sup.Ct. 676, 55 L.Ed. 873. As the orders to produce them were limited to the parties as officials of the United Mine Workers of Amer......
  • Millholland v. Oglesby, No. 42220
    • United States
    • United States Court of Appeals (Georgia)
    • October 26, 1966
    ...duces tecum, Murray v. State of Louisiana, 163 U.S. 101, 107, 16 S.Ct. 990, 41 L.Ed. 87; American Lithographic Co. v. Werckmeister, 221 U.S. 603, 31 S.Ct. 676, 55 L.Ed. 873; or denial of a 'motion to produce.' Griffin v. Locke (9th Cir.), 286 F.2d 514. All prior interlocutory orders are, of......
  • Marc Rich & Co., A.G., Matter of, No. 501
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 27, 1983
    ...testimony, seems essential to the very existence and constitution of a court of common law." American Lithographic Co. v. Werckmeister, 221 U.S. 603, 609, 31 S.Ct. 676, 678, 55 L.Ed. 873 (1911) (quoting Amey v. Long, 9 East 473, 484, 103 Eng.Rep. 653, 658 (1808)). See also Harris v. Nelson,......
  • Request a trial to view additional results

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