Brady v. Daly

• Decision Date: 01 December 1897
• Docket Number: 8.
• Citation: 83 F. 1007
• Parties: BRADY v. DALY.
• Court: U.S. Court of Appeals — Second Circuit

83 F. 1007

BRADY v. DALY.

No. 8.

United States Court of Appeals, Second Circuit.

December 1, 1897

This case comes here upon a writ of error brought by the defendant below to review a judgment rendered in the circuit court in favor of the plaintiff. The action was brought under section 4966, Rev. St. U.S., which provides that any person publicly performing or representing any dramatic composition for which a copyright has been obtained, without the consent of the proprietor thereof, shall be liable for damages therefor such damages in all cases to be assessed at such sum, not less than $100 for the first and $50 for every subsequent performance, as to the court shall appear to be just. The history of the litigation, and the facts on which the judgment now under review was entered, are as follows:

On August 1, 1867, the plaintiff, Daly, duly copyrighted a dramatic composition or play, in five acts, of which he was the author, owners, and exclusive proprietor, entitled 'Under the Gaslight.' The play was subsequently produced by the plaintiff. It pleased the popular taste, and was successful and profitable; the plaintiff having received as fees from different persons performing the same under his license, substantial license fees in almost every year since 1868. The popularity of the play seems to have depended in large measure upon a scene in the fourth act, known as the 'railroad scene.' Precisely what that is may be seen by reference to the opinions cited infra from 6 Blatchf.and 4 C.C.A. Soon after the play was produced, Dion Boucicault without the consent of plaintiff, prepared a play called 'After Dark,' in which he introduced a scene varying slightly from the railroad scene as it appeared in 'Under the Gaslight,' so as to be colorably different, but substantially the same. Boucicault's play was performed in New York by one Palmer, against whom Daly brought suit in the circuit court, Southern district of New York. He obtained an injunction; Judge Blatchford filing an elaborate opinion in which he held that the railroad scene in plaintiff's play was a dramatic composition, within the meaning of the copyright statutes, that plaintiff was as much entitled to protection in respect of a substantial and material original part of it as he was in respect to the whole, that the railroad scene in Boucicault's play contained everything which makes the railroad scene in plaintiff's play attractive as a representation on the stage, and that it infringed plaintiff's copyright. Daly v. Palmer (Dec., 1868) 6 Blatchf. 256, Fed.Cas.No. 3,552. Some time prior to May, 1889, the defendant in the action at bar, William A. Brady, in connection with others, without consent of plaintiff, began to produce on the stage the said play of 'After Dark,' including the railroad scene. On May 20, 1889, plaintiff began a suit in equity for injunction and accounting against Brady and his associates, in the same circuit court. An application for a preliminary injunction was denied upon the ground that there was a material variance between the registered title and the published title, of 'Under the Gaslight.' Daly v. Brady, 39 F. 265. When the equity suit came on for final hearing, the judge at circuit followed the decision on motion for preliminary injunction, and dismissed the bill. Daly v. Webster, (Nov. 4, 1891) 47 F. 903. The plaintiff promptly appealed, and the cause came before this court for argument on May 13, 1892, and its decision will be found reported, under the title 'Daly v. Webster,' in 1 U.S.App. 573, 4 C.C.A. 10, 56 F. 483. We reversed the decision of the circuit court as to the supposed variances in title, and held that the plaintiff's railroad scene was a dramatic composition; that it was protected by copyright; that the railroad scene in 'After Dark,' as Boucicault composed it, and as it had been performed by defendant (the imperiled person being saved from death by the aid of a 'rescuer'), was an infringement, but that, if performed without the introduction of a rescuer, it would not infringe. There was evidence in that suit showing that defendant had produced the scene, sometimes unchanged from Boucicault's, and sometimes without an independent rescuer; the imperiled person saving himself by inadvertently operating a switch. In conformity with the mandate of this court, a decree for perpetual injunction against defendants was entered November 5, 1892, and it was referred to a master to take proof of the number of performances given by the defendants, and where each performance took place; the defendants being required to attend, give evidence, and produce their books and papers. Upon said examination, defendant's counsel objected to the defendants being compelled to produce the manuscript play of 'After Dark,' upon the ground that 'neither the defendant nor his books can be used against him in any proceeding wherein it is sought to obtain a penalty, or for the purposes of this hearing before the master.' The decree did not direct the master to ascertain anything in regard to profits. No evidence was offered upon that subject, and no finding was made thereon. A final decree in said cause, accepting the master's report, and making the findings of the master the findings of the court, was entered on April 1, 1893. No judgment or decree for profits was asked or rendered.

The action now under review was begun on July 14, 1893. As before stated, it is to recover statutory damages under section 4966 of the United States Revised Statutes. Issue being joined by the service of an answer, the cause came on for trial before Judge Shipman, sitting with a jury, on May 29, 1895 whereupon the parties, by their attorneys of record, filed with the clerk a stipulation in writing waiving a jury, in conformity to section 649, Rev. St. U.S., and the trial proceeded before the court without the jury. The plaintiff offered in evidence the record in the equity suit against Brady and others, which was admitted 'for certain purposes'; and, having offered some testimony to show plaintiff's actual damages from the alleged infringement, he rested. The record thus admitted contained the finding of the master, adopted by the circuit court, as to the number of times that the play of 'After Dark,' with the infringing scene, had been publicly produced by defendant. The evidence upon which this finding was based was extorted from the defendant by the plaintiff's examination of him before the master in the equity suit. Defendant thereupon introduced some evidence, and offered more, which was rejected, and exception to such rejection reserved. The rejected evidence will be found referred to in the discussion of exceptions in the opinion infra. Having taken his proofs, and offered whatever testimony he chose to present, defendant rested. The court took the case under advisement, and on June 24, 1895, filed special findings of facts and conclusions of law. 69 F. 285. The findings of fact set forth, substantially, what has been hereinbefore rehearsed. The court found, as conclusions of law, that Daly's copyright was good and valid; that it covered and protected his railroad scene; that the acts of defendant in producing 'After Dark,' including its railroad scene, without plaintiff's consent, were in disregard of said copyright, and violated plaintiff's exclusive rights thereunder; that the damages recoverable for such violation would be prescribed in section 4966, but that there could be no recovery on the proofs submitted, because there was no testimony before the court showing the number of infringing performances, except the record in the equity case, adopting the finding of the master, which finding was based on evidence extorted from the defendant by examination in such suit; that section 4966, although it used the word 'damages,' only in reality imposed a penalty; that the two-year statute of limitation (section 4968) applied; and that evidence obtained from a party by means of a judicial proceeding must not be used against him for the enforcement of a penalty. Thereupon, and before judgment was entered, plaintiff moved for a new trial, of such other and further relief as might be just. On November 4, 1895, the court granted the motion, 'to the extent that the cause be opened for the purpose of allowing either party to present additional testimony in regard to the number and times of the representations, if any there were, of the play 'After Dark,' by the defendant, within two years prior to the commencement of this suit.' The...