Douglas v. Cunningham

• Decision Date: 04 February 1935
• Docket Number: No. 519,519
• Citation: 79 L.Ed. 862,55 S.Ct. 365,294 U.S. 207
• Parties: DOUGLAS et al. v. CUNNINGHAM et al
• Court: U.S. Supreme Court

294 U.S. 207

55 S.Ct. 365

79 L.Ed. 862

DOUGLAS et al.

v CUNNINGHAM et al.

No. 519.

Argued Jan. 18, 1935.

Decided Feb. 4, 1935.

Messrs. Cedric W. Porter and George P. Dike, both of Boston, Mass., for petitioners.

Mr. Edmund A. Whitman, of Boston, Mass., for respondents.

Mr. Justice ROBERTS delivered the opinion of the Court.

The petitioners brought a suit in equity against the respondents in the District Court for Massachusetts charging infringement of copyright, praying an injunction, an accounting and award of profits, and damages, or 'in lieu of actual damages or profits such damages as to this court shall appear to be just and proper within the provisions of the Act of Congress in such cases made and provided.' The respondents answered and the cause came on for hearing. Admissions in the pleadings, concessions by the respondents, and evidence taken, disclose the relevant facts.

Douglas wrote an original story which was accepted, copyrighted, and published by The American Mercury, Inc. The rights in the story under the copyright were assigned to Douglas. Thereafter Cunningham wrote for the Post Publishing Company, and the latter published in some 384,000 copies of a Sunday edition of the Boston Post, an article which was a clear appropriation of Douglas' story. Testimony was presented with respect to the value of the story, but at the close of the trial the petitioners admitted inability to prove actual damages. The Publishing Company acted innocently in accepting the article from Cunningham, and the latter testified that he had procured the material for its from an acquaintance, believed the facts related to him were actual happenings, and was ignorant of Douglas' production. The trial judge ruled that no actual damage had been shown, but in lieu thereof granted the petitioners $5,000 and a counsel fee. Upon appeal the Circuit Court of Appeals sustained an assignment of error which asserted the judge had abused his discretion in making the award, reversed the decree, and set the damages at $250.

The sole question presented by the petition for certiorari is whether consistently with section 25(b) of the Act of 1909,¹ an appellate court may review the action of a trial judge in assessing an amount in lieu of actual damages, where the amount awarded is within the limits imposed by the section. We granted the writ of certiorari² because the decision of the Circuit Court of Appeals was upon an important question of federal law and probably in conflict with our decisions.³

The phraseology of the section was adopted to avoid the strictness of construction incident to a law imposing penalties, and to give the owner of a copyright some recompense for injury done him, in a case where the rules of law render difficult or impossible proof of damages or discovery of profits. In this respect the old law was unsatisfactory. In many cases plaintiffs, though proving infringement, were able to recover only nominal damages, in spite of the fact that preparation and trial of the case imposed substantial expense and inconvenience. The ineffectiveness of the remedy encouraged willful and deliberate infringement.

This court has twice construed section 25(b) in the light of its history and purpose. Westermann Co. v. Dispatch Printing Co., 249 U.S. 100, 39 S.Ct. 194, 63 L.Ed. 499; Jewell-La Salle Realty Co. v. Buck, 283 U.S. 202, 51 S.Ct. 407, 75 L.Ed. 978. As shown by those decision, the purpose of the act is not doubtful. The trial judge may allow such damages as he deems to be just and may, in the case of an infringement such as is here shown, in his discretion, use as the measure of damages one dollar for each...