Charles Bolles v. Outing Company

• Citation: 20 S.Ct. 94,175 U.S. 262,44 L.Ed. 156
• Decision Date: 04 December 1899
• Docket Number: No. 47,47
• Parties: CHARLES E. BOLLES, Plff. in Err. , v. OUTING COMPANY
• Court: United States Supreme Court

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 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 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 . . . 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 cover cases where it was impossible to estimate such damages; but there was no limit to the amount which might be awarded if, in the opinion of the court, it were just to increase the minimum. The idea suggested by the learned judge who delivered the opinion of the court, that as it would be difficult to prove the exact amount of damages suffered by reason of the unlawful representation, the statute provided a minimum sum, leaving it open for a larger recovery upon proof of greater damages, has no application to the section under consideration, where the plaintiff can recover no greater nor less damages than the penalty provided by the section. The penal character of the act is further emphasized by the fact that the plaintiff apparently recovers a moiety for the use of the United States, though perhaps this is not beyond a doubt suggested in Thornton v. Schreiber, 124 U. S. 612, 31 L. ed. 577, 8 Sup. Ct. Rep. 618. The act of 1831, for which this act is a substitute, and of the sixth section of which § 4965 is a substantial copy, was said by this court in Backus v. Gould, 7 How. 798, 811, 12 L. ed. 919, 924, to give a qui tam action for the sum forfeited.

The statute, then, being penal, must be construed with such strictness as to carefully safeguard the rights of the defendant and at the same time preserve the obvious intention of the legislature. If the language be plain, it will be construed as it reads, and the words of the statute given their full meaning; if ambiguous, the court will lean more strongly in favor of the defendant than it would if the statute were remedial. In both cases it will endeavor to effect substantial justice. United States v. Hartwell, 6 Wall. 385, 18 L. ed. 830; United States v. Wiltberger, 5 Wheat. 76, 95, 5 L. ed. 37, 42; American Fur Co. v. United States, 2 Pet. 358, 7 L. ed. 450; United States v. Reese, 92 U. S. 214, 23 L. ed. 563.

The language of this section when examined seems hardly susceptible of two interpretations, unless certain words which are not found there are treated as interpolated. It forfeits to the proprietor of the pirated publication...