Charles Bolles v. Outing Company, No. 47

CourtUnited States Supreme Court
Writing for the CourtBrown
PartiesCHARLES E. BOLLES, Plff. in Err. , v. OUTING COMPANY
Decision Date04 December 1899
Docket NumberNo. 47

175 U.S. 262
20 S.Ct. 94
44 L.Ed. 156
CHARLES E. BOLLES, Plff. in Err.,

v.

OUTING COMPANY.

No. 47.
Submitted October 16, 1899.
Decided December 4, 1899.

This was an action begun April 18, 1894, by Charles E. Bolles, a resident of the city of Brooklyn, New York, for the penalty provided for the infringement of the copyright of a photograph by Rev. Stat. § 4965. This section enacts that 'if any person, after the recording of the title of any map, chart, musical composition, print, cut, engraving, or photograph, . . . as provided by this chapter, shall, within the time limited, and without the consent of the proprietor of the copyright first obtained in writing, signed in presence of two or more witnesses, engrave, etch, work, copy, print, publish,

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or import, either in whole or in part, or . . . shall sell or expose 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,' etc.

In August, 1893, plaintiff made a photograph of the yacht 'Vigilant' under full sail, and copyrighted the same under the title 'Vigilant, No. 4.' The copyright stamp on the photograph was made by impressing at the lower end of the right-hand corner of the photographs, the words, 'Copyright, 93, by Bolles, Brooklyn,' Bolles being the trademark name used by the plaintiff.

Defendant made a photogravure of this photograph, and published it November, 1893, in a magazine published by it in New York known by the name of 'The Outing.' Defendant had no permission to use or copy the photograph.

One copy of this number of The Outing was purchased of the defendant by an employee of the plaintiff for the sum of twenty-five cents.

On the first trial in the circuit court the action was dismissed upon the ground that the copyright stamp on the photograph was insufficient notice of the copyright, because the year was not given in full, nor the full name of the owner.

Thereupon plaintiff sued out a writ of error from the circuit court of appeals, which held that the copyright stamp was sufficient, but sustained the trial court in its exclusion of certain evidence offered as to the number of copies found in the possession of the defendant. 45 U. S. App. 449, 77 Fed. Rep. 966, 23 C. C. A. 594, 46 L. R. A. 712.

Upon the new trial the same evidence as to the number of copies of the infringement found in the possession of the defendant was excluded, and a verdict directed for plaintiff for $1 penalty for the one copy bought by plaintiff's employee from the defendant. Plaintiff moved for a new trial because of the refusal of the court to permit him to prove the number of copies which had been in the defendant's possession at any time within two years previous to the commencement of the suit. Upon his motion being denied, he

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again sued out a writ of error from the circuit court of appeals, which affirmed the judgment. Whereupon plaintiff sued out a writ of error from this court.

Mr. George E. Waldo for plaintiff in error.

Mr. John R. Abney for defendant in error.

Mr. Justice Brown delivered the opinion of the court:

Whether the court erred in excluding the evidence offered by the plaintiff tending to show the number of copies of the issue of The Outing containing a reproduction of the plaintiff's photograph, which had been printed and delivered to the defendant at any time within two years prior to the commencement of this action, is the sole question presented by the assignments of error.

This is an action to recover a penalty of $1 for every copy of the plaintiff's photograph, and is based upon Rev. Stat. § 4965, which declares that any person offending against its provisions '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 to the same found in his possession, either printing, printed, copied, published, imported, or exposed for sale, . . . one half thereof to the proprietor and the other half to the use of the United States.' This is clearly a penal statute in that it fixes a single and arbitrary measure of recompense to the plaintiff, irrespective of the damages actually sustained by him, or of the profits realized by the defendant; and in the further provision that one half of the amount recovered shall be to the use of the United States. It makes no pretense of awarding damages, and simply imposes a forfeiture of a specified sum. In this respect it differs wholly from the following section (4966) recently considered by us in Brady v. Daly, 20 Sup. Ct. Rep. 62,1 which made a person performing or representing any copyrighted dramatic composition 'liable for damages therefor,

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. . . 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.' There the award was of damages, and a minimum sum was fixed apparently to...

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57 practice notes
  • Aetna Indem. Co. v. J.R. Crowe Coal & Mining Co., 2,354.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • April 27, 1907
    ...confer jurisdiction upon an appellate court to consider, review, or decide rulings against him in the court below. Bolles v. Outing Co., 175 U.S. 262, 268, 20 Sup.Ct. 94, 44 L.Ed. 156; Cleary v. Ellis Foundry Co., 132 U.S. 612, 614, 10 Sup.Ct. 223, 33 L.Ed. 473; Canter v. American, etc., In......
  • Marra v. Burgdorf Realtors, Inc., Civ. A. No. 89-4717.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • December 6, 1989
    ...equally between the United States and an informer was penal because it bore no relation to the actual damages. Bolles v. Outing Co., 175 U.S. 262, 264-65, 20 S.Ct. 94, 95, 44 L.Ed. 156 (1899) (copyright infringement); see also Filmon Process Corp. v. Spell-Right Corp., 404 F.2d 1351, 1355 (......
  • Stolte v. Larkin, No. 11188
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • March 12, 1940
    ...51 S.Ct. 248, 75 L.Ed. 544; Peoria, etc., Ry. Co. v. United States, 263 U.S. 528, 536, 44 S.Ct. 194, 68 L.Ed. 427; Bolles v. Outing Co., 175 U.S. 262, 268, 20 S.Ct. 94, 44 L.Ed. 156; The Maria Martin, 12 Wall. 31, 40, 20 L. Ed. 251; Board of Commissioners, etc., v. Hurley, 8 Cir., 169 F. 92......
  • O'Neil v. Wolcott Min. Co., 3,057.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • November 15, 1909
    ...heard to challenge rulings that were too favorable to him. Cross-errors are not assignable in the national courts. Bolles v. Outing Co., 175 U.S. 262, 268, 20 Sup.Ct. 94, 44 L.Ed. 156; Cleary v. Ellis Foundry Co., 132 U.S. 612, 614, 10 Sup.Ct. 223, 33 L.Ed. 473; Canter v. American, etc., In......
  • Request a trial to view additional results
57 cases
  • Aetna Indem. Co. v. J.R. Crowe Coal & Mining Co., 2,354.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • April 27, 1907
    ...confer jurisdiction upon an appellate court to consider, review, or decide rulings against him in the court below. Bolles v. Outing Co., 175 U.S. 262, 268, 20 Sup.Ct. 94, 44 L.Ed. 156; Cleary v. Ellis Foundry Co., 132 U.S. 612, 614, 10 Sup.Ct. 223, 33 L.Ed. 473; Canter v. American, etc., In......
  • Marra v. Burgdorf Realtors, Inc., Civ. A. No. 89-4717.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • December 6, 1989
    ...equally between the United States and an informer was penal because it bore no relation to the actual damages. Bolles v. Outing Co., 175 U.S. 262, 264-65, 20 S.Ct. 94, 95, 44 L.Ed. 156 (1899) (copyright infringement); see also Filmon Process Corp. v. Spell-Right Corp., 404 F.2d 1351, 1355 (......
  • Stolte v. Larkin, No. 11188
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • March 12, 1940
    ...51 S.Ct. 248, 75 L.Ed. 544; Peoria, etc., Ry. Co. v. United States, 263 U.S. 528, 536, 44 S.Ct. 194, 68 L.Ed. 427; Bolles v. Outing Co., 175 U.S. 262, 268, 20 S.Ct. 94, 44 L.Ed. 156; The Maria Martin, 12 Wall. 31, 40, 20 L. Ed. 251; Board of Commissioners, etc., v. Hurley, 8 Cir., 169 F. 92......
  • O'Neil v. Wolcott Min. Co., 3,057.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • November 15, 1909
    ...heard to challenge rulings that were too favorable to him. Cross-errors are not assignable in the national courts. Bolles v. Outing Co., 175 U.S. 262, 268, 20 Sup.Ct. 94, 44 L.Ed. 156; Cleary v. Ellis Foundry Co., 132 U.S. 612, 614, 10 Sup.Ct. 223, 33 L.Ed. 473; Canter v. American, etc., In......
  • Request a trial to view additional results

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