Falk v. Curtis Pub Co.

• Decision Date: 20 February 1901
• Docket Number: 33.
• Citation: 107 F. 126
• Parties: FALK v. CURTIS PUB. CO.
• Court: U.S. Court of Appeals — Third Circuit

107 F. 126

FALK v. CURTIS PUB. CO.

No. 33.

United States Court of Appeals, Third Circuit.

February 20, 1901

Samuel M. Hyneman, for plaintiff in error.

J Martin Rommel, for defendant in error.

Before GRAY, Circuit Judge, and BRADFORD and BUFFINGTON, District judges.

BUFFINGTON District Judge.

In the court below, Benjamin F. Falk, the plaintiff in error brought an action of assumpsit against the Curtis Publishing Company to recover the statutory penalty forfeited to him under the provisions of section 4965 of the Revised Statutes as amended by the act of 1895 (2 Supp.Rev.St.p. 437), by reason of the possession of copies of a copyrighted photograph. On the trial a verdict was rendered in his favor for $3,000, subject to the following reservation of law:

'Upon the 29th day of September one copy of the October number (of the infringing magazine) was bought by the office boy of Mr. Hyneman and at a somewhat later hour of the same day the deputy marshal went to the office of the defendant with two writs, one a writ of replevin, and the other a summons in the present case, and these two writs were served at the same time. Under the writ of replevin, a certain number of copies were found. Upon these facts, the court reserves the questions of law raised by the defendant's tenth and eleventh points, namely, whether any pecuniary penalty at all is enforceable in this action.'

The points referred to are as follows:

'(10) The pecuniary penalty sued for does not attach to alleged infringing copies that may have been printed, sold, offered for sale, or at some time in possession of defendant, but solely to those infringing copies, if any, which were actually found in possession of defendant, and became the property of plaintiff by actual seizure, before suit brought.

'(11) In the statute imposing the pecuniary penalty sued for, the word 'found' means that there must be a time before the cause of action accrues at which the infringing copies are actually found in the possession of defendant for the purpose of forfeiture and seizure; in other words, the pecuniary penalty does not accrue, nor the cause of action arise, until such forfeiture and seizure.'

The amended section provides that any person offending against its provisions 'shall forfeit to the proprietor all the plates on which the same shall be copies, and every sheet thereof, either copies or printed, and shall further forfeit one dollar for every sheet of 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. ' The plaintiff brought two actions simultaneously against the defendant, and process in both was served at the same time. One was replevin to seize the offending prints; the other, assumpsit to recover the statutory penalty. On the writ of replevin some 3,000 prints, then found in the defendant's possession, were seized and delivered to the plaintiff. In the action...