Gross v. Van Dyk Gravure Co.
| Decision Date | 11 January 1916 |
| Docket Number | 94. |
| Parties | GROSS et al. v. VAN DYK GRAVURE CO. |
| Court | U.S. Court of Appeals — Second Circuit |
Mirabeau L. Towns, of New York City (J. T. Walker, of New York City of counsel), for appellant.
Everett B. Heymann, of New York City, for appellees.
As this case now comes up, the issue of infringement is conclusively established by the decision of the Circuit Court of Appeals. There remains for the substance of dispute the following facts developed at the hearing: Rochlitz took two photographs of a nude model, each in the same pose and with the same background, except as mentioned later. She was sitting upon the floor, her knees raised to about half their complete flexure, her hands clasped below the knees, her back arched the body appears in each plate in profile. In one photograph her head was also taken in profile, thrown forward, looking straight down between her knees; in the other, the head was raised and turned to the left, the plate taking the face in an exposure of three-quarters or more. A careful comparison of the photographs shows without any doubt that Rochlitz is right when he says that the two plates were taken in immediate succession, without any change, except in the head. He sold a copy of the plate showing the face in profile to Obendorfer, who has exposed it in his private photographic studio ever since; later he sold the plate showing a three-quarters face to Gross, the plaintiff, and gave him possession of the other plate as security; he warranted against any invalidity in his copyright title to the plate sold. The defendants now insist that the sale of what I may call the profile plate put the three-quarters plate into the public domain.
That Rochlitz supposed the two poses to be enough different to be readily distinguished follows from his making them; no other motive can be given. A painter, for example, often makes two pictures from the same model; but there may be great differences between the several positions, sometimes even between several aspects of the same position. We have nothing to do with the beauty or originality of the artistic purpose here it is only novelty that counts. Merely trivial variations will not distinguish, it is true; but the head and face are not trivial elements, as, for example, the feet might be, crossed or parallel. It seems to me, therefore that Rochlitz was entirely successful in what he started out to do, and that he did make two clearly distinguishable and independent poses of the model, each one a separate piece of artistic copyright, each capable of statutory copyright. Hence I overrule the defense based upon the profile photograph called 'At Ease.'
The proof is insufficient to show that Rochlitz ever sold any copy of 'Grace of Youth' before Gross bought it. Rochlitz is himself wholly discredited by his present effort to repudiate the warranty which he gave Gross. Furthermore, it appears that Gross had two large pictures of 'Grace of Youth' until after the picture was copyrighted, and Rochlitz says he only made two. The proof of prior publication therefore fails, and the only thing left is the question of damages.
Smith swore that he printed 3,000 of the large and 12,000 of the small photographs. Florence Gross said that she saw six piles of nine inches high, and the plaintiff says that this would equal 6,000. Seligman did not contradict this, although he was called. Under section 25b(2), Comp. St. 1913, Sec. 9546 these numbers would exceed the maximum, but I shall not take them as a basis of damages in any event, as I cannot think it has any relation to actual damages. I shall rather try to estimate Gross' actual damages, without observing the rules of evidence, as though the issue had to be proved like other such issues, and allowing myself considerable latitude in speculation. This is, as I understand the duty laid upon the court by section 25b: In place of the old penalties the court is to estimate damages, but to estimate them within the sums given, without the limitations of usual legal proof. I think the whole course of copyright law shows a recognition of the difficulty of making legal proof of damages, and that, in substituting for rigid penalties the discretionary power of the...
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