Bolles v. Outing Co.

• Decision Date: 13 January 1897
• Parties: BOLLES v. OUTING CO., Limited.
• Court: U.S. Court of Appeals — Second Circuit

77 F. 966

BOLLES v. OUTING CO., Limited.

United States Court of Appeals, Second Circuit.

January 13, 1897

B Lewinson and Wells, Waldo & Snedeker, for plaintiff in error.

John R Abney, for defendant in error.

Before WALLACE and SHIPMAN, Circuit Judges.

WALLACE Circuit Judge.

Upon this writ of error, brought by the plaintiff in the court below to review a judgment for the defendant, error is assigned of the rulings of the trial judge in excluding evidence offered by the plaintiff, and in instructing the jury to find a verdict for the defendant. The action was brought, under section 4965 of the United States Revised Statutes, to recover penalties for the violation of a copyrighted photograph. The defendant was the proprietor of 'The Outing,' a monthly magazine published at the city of New York. The complaint alleges that the defendant printed in said magazine, and sold, without the plaintiff's consent, 40,000 copies of the photograph whereby there accrued to the plaintiff, pursuant to the statute, penalties in the sum of $40,000. Upon the trial it was shown that the defendant's magazine was printed by the Fless & Ridge Printing Company, a concern employed by the defendant to do its printing. The plaintiff offered to prove by a witness the number of copies of the issue containing the photograph which were printed by the Fless & Ridge Company and delivered into the possession of the defendant. The evidence was objected to upon the ground of its incompetency the statute making the copies found in the possession of the defendant the measure of the penalty, and not the copies published by it. The objection was sustained, and the plaintiff duly excepted.

The statute declares that if 'any person, after the recording of the title of any * * * photograph, * * * as provided in this chapter, shall, within the term limited, and without the consent of the proprietor of the copy-right first obtained in writing, * * * copy, print, publish or import, * * * with intent to evade the law, or knowing the same to be so printed, published or imported shall sell or expose to sale any copy, * * * 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 $1 for every sheet of the same found in his possession, either printing, printed, copied, published, imported, or exposed for sale.'

The statute has frequently been considered in the federal courts. In Dwight v. Appleton, 1 N.Y.Leg.Obs. 195, ^[1] it was decided that the jury were authorized to give the statutory penalty 'for every sheet contained in the volume found at any time, within the period stated in the declaration, to have been in the possession of the defendant. ' In Millett v. Snowden, 1 West.Law J. 240, Fed. Cas. No. 9,600, the court ruled that, if the jury found that the defendant had republished the copyrighted matter without leave obtained in writing of the plaintiff, they must then 'proceed to ascertain the number of sheets proved to have been sold or offered for sale, and return a verdict of one dollar for each sheet so sold or offered to be sold. ' In Reed v. Carusi, Camp. Dec. 72, Fed. Cas. No. 11,642, the jury were charged by Chief Justice Taney that, if they found the defendant liable, they should 'find the number of copies caused to be printed for sale by him within two years before the suit was brought. ' Apparently, in the two cases last mentioned, no point was made that the copies printed had not actually been in the defendant's possession. In Backus v. Gould, 7 How. 798, the question was before the supreme court. In that case, although there was evidence that the defendant had published certain sheets of copyrighted matter, there was no evidence whether or not they had ever been found in his possession; and the court below instructed the jury that the plaintiffs were entitled to recover for every sheet of such matter which he had published, or procured to be published, whether the same were proved to have been found in his possession or not. It was argued that the court below totally disregarded the effect of the words 'found in his possession,' and the supreme court sustained that contention, stating that 'the penalty on each sheet, whether printed or being printed, or published, or exposed to sale, is limited to the sheets in the possession of the defendant,' and reversed the judgment.

Since the adjudication in Backus v. Gould it has always been held by the trial courts that the penalty only attaches upon the number of sheets found in the possession of the defendant; but there has been some diversity of opinion whether it was necessary to prove that the sheets had been actually discovered in the possession of the defendant previously to the commencement of the action, or whether it was enough if the evidence authorized a finding that they had been in his possession prior to the bringing of the action.

In Thornton v. Schreiber, 124 U.S. 612, 8 Sup.Ct. 618, the statute was before the supreme court in a case where the evidence was that a large number of sheets of the copyrighted photograph, published without the consent of the plaintiff, had been found in the store of Sharpless & Sons, in which the defendant was employed in the character of a business manager. Evidence was given showing that Thornton conceived the idea of using the photographs in the business of Sharpless & Sons, and ordered the copies to be made. The court held that upon those facts the court below erred in instructing the jury that the photographs were to be regarded as in the possession of Thornton, saying:

'We do not see how Mr. Thornton, merely as an employe, although he may

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