Schreiber & Sons v. Sharpless & Sons

• Citation: 6 F. 175
• Parties: SCHREIBER & SONS, who sue as well for the United States as for themselves, v. CHARLES SHARPLESS & SONS. [1]
• Decision Date: 07 February 1881
• Court: U.S. District Court — Eastern District of Pennsylvania

6 F. 175

SCHREIBER & SONS, who sue as well for the United States as for themselves,

v.

CHARLES SHARPLESS & SONS. ^[1]

United States District Court, E.D. Pennsylvania.

February 7, 1881

H. P Brown, Asst. Dist. Att'y, and John K. Valentine, Dist Att'y, for the United States.

F Carrol Brewster, for Schrieber & Sons.

E Hunn, Jr. for defendants.

This was a qui tam action brought under section 4965, Rev. St ^[2] by Schreiber & Sons, who sued, as well for the United States as for themselves, against Charles L. Sharpless, Henry W. Sharpless, and Charles W. Sharpless, 'trading as Sharpless & Sons,' to recover the statutory penalty for the copying, publishing, and selling by defendants of a photograph copyrighted by plaintiffs. The narr. contained four counts, respectively, charging defendants with copying and printing, publishing, exposing to sale, and selling the said photograph. Defendants pleaded 'not guilty.' On the trial the evidence disclosed the following facts: Plaintiffs, who were photographers, had made and copyrighted a photograph of the elephant 'Hebe' and her baby 'Americus.' Notice of the copyright was printed on each copy of the photograph. The defendants were dry goods merchants in Philadelphia. The superintendent of their domestic department (Mr. Thornton) desired a new label for certain goods. Seeing one of plaintiffs' photographs he bought it, took it to a lithographer, and, without the consent of plaintiffs, caused a lithographic copy to be made and 15,000 copies thereof to be printed for labels. Five thousand of these copies were sent to the defendants' dyer and the remainder were sent directly to the defendants' store. The dyer attached these labels to 2,800 pieces of goods, which he sent to defendants' store, where they were exposed to sale and about 200 pieces sold. About 200 circulars, also, with the lithographic copy upon them, were distributed gratuitously. The defendants did not personally know anything about the matter until the labelled goods arrived at their store, when Mr. Thornton took a piece of the goods with the label on it, together with the photograph containing the notice of copyright, to Mr. Charles L. Sharpless, and exhibited them to him. He expressed his approval, and the goods were afterwards sold and the circulars distributed, as already stated. None of the other members of the firm knew anything about the matter. The court charged the jury that the defendants were not liable for the act of their agent done without their knowledge; that if the word 'publish' was applicable to a picture, these copies were published by sending them to the dyer, and his use of them before Charles L. Sharpless had any knowledge of their existence; and that the evidence did not warrant a recovery, and their verdict should, therefore, be for defendants. The verdict was

for defendants. Plaintiffs obtained a rule for a new trial. McKennan, C.J., was present at the argument of the rule.

BUTLER, D.J.

At the trial, the court, after referring to the fact that suit is against the firm of Charles Sharpless & Sons, charged that the claim of the plaintiffs is twofold,-- First, for copying the picture, and second, for publishing the copies. That as respects the first, the evidence shows the copying to have been done by the...