Thornton v. Schreiber

CourtUnited States Supreme Court
Writing for the CourtA. Sydney Biddle; MILLER
Citation124 U.S. 612,8 S.Ct. 618,31 L.Ed. 577
Decision Date13 February 1888
PartiesTHORNTON v. SCHREIBER et al. 1

124 U.S. 612
8 S.Ct. 618
31 L.Ed. 577
THORNTON
v.
SCHREIBER et al.1
February 13, 1888.

Page 613

John G. Johnson and Frank P. Prichard, for pl intiff in error.

A. Sydney Biddle, J. R. Paul, and J. K. Valentine, for defendants in error.

MILLER, J.

This is a qui tam action brought by the defendants in error, constituting a partnership in the name of Schreiber & Sons, against Thornton, the plaintiff in error, under section 4965, Rev. St. This is found in chapter 3, tit. 60, which has relation to copyrights. As we have heretofore decided in the case of Lithographic Co. v. Sarony, 111 U. S. 53, 4 Sup. Ct. Rep. 279, photographs are included, under certain circumstances, among the things which may be copyrighted. The plaintiffs in this action allege themselves to be the owners of a valid copyright of a photograph entitled 'The Mother Elephant 'Hebe' and her Baby 'Americus," and that the defendant, Thornton, was liable to them under the above section for an infringement of their exclusive right in such photograph. The declaration consisted originally of four counts, but the plaintiffs afterwards obtained leave to amend it by striking out the third and fourth. Of the two counts which remained, the first was for copying an printing said photograph, with the charge that 15,000 sheets of the same were found in the defendant's possession, printed and copied by him, and claiming the sum of $15,000 as forfeited to plaintiffs and to the United States under said section. The second count alleged that the defendant published said photograph, and that 15,000 sheets of the same were found in his possession. Section 4965, on which this action if founded, reads as follows: 'If any person, after the recording of the title of any map, chart, musical composition, print, cut, engraving, or photograph, or chromo, or of the description of any painting, drawing, statue, statuary, or model, or design intended to be perfected and executed as a work of the fine arts, as provided

Page 614

by this chapter, shall, within the term 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 by varying the main design with intent to evade the law, or, knowing the same to be so printed, published, or imported, 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, either printing, printed, copied, published, imported, or exposed for sale; and in case of a painting, statue, or statuary, he shall forfeit ten dollars for every copy of the same in his possession, or by him sold or exposed to sale; one-half thereof to the proprietor, and the other half to the use of the United States.' It will be observed that this section gives no right of action to recover damages, merely as such, by the owner of the photograph, but limits the remedy to the forfeiture of the plates on which the infringing article is copied, 'and every sheet thereof, either copied or printed,' and to the further forfeiture of 'one dollar for every sheet of the same found in his possession, either printing, printed, copied, published, imported, or exposed for sale.' In case of 'a painting, statue, or statuary,' there is to be a forfeiture of $10 for every copy found in the defendant's possession, or by him sold or exposed for sale.

In section 4964, immediately preceding the one under consideration, it is declared that every person who shall, without the consent of the proprietor of a copyrighted book, print, publish, import, sell, or expose for sale any copy of such book, shall not only forfeit every copy thereof to such proprietor, but shall also forfeit and pay such damages as may be recovered in a civil action by such proprietor. And so in section 4966, which immediately follows the one under consideration, it is declared that 'any person publicly per orming or representing any dramatic composition for which a copyright has been obtained,

Page 615

without the consent of the proprietor thereof, or his heirs or assigns, shall be liable for damages therefor, such damages in all cases to be assessed at such sum, not less than one hundred dollars for the first, and fifty dollars for every subsequent performance, as to the court shall appear to be just.' It will thus be seen that while this chapter provides a remedy by a civilaction on behalf of the owner of the copyright of a book or dramatic composition which has been violated, it makes no such provision in favor of a copyright of 'any map, chart, musical composition, print, cut, engraving, or photograph, or chromo, or of the description of any painting, drawing, statue, statuary, or model,' etc., except so far as it forfeits the plates on which they are copied, and the sheets, either copied or printed, and one dollar for every sheet found in the possession of the defendant. Section 4967 also allows an action for damages by the author or proprietor of any manuscript published without his consent.

As the action in the present case is brought by plaintiffs below, who sued as well for the United States as for themselves, under the idea that the government was entitled to one moiety of the penalty recovered, an examination of the statute presents a question at the outset as to whether the United States has any interest in the only penalty sought to be recovered, namely, that of one...

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12 practice notes
  • Mazer v. Stein, No. 228
    • United States
    • United States Supreme Court
    • March 8, 1954
    ...cannot say that Congress was wrong.' See also Schreiber v. Thornton, D.C., 17 F. 603, reversed on other grounds, Thornton v. Schreiber, 124 U.S. 612, 613, 8 S.Ct. 618, 31 L.Ed. 577. See Fenning, The Origin of the Patent and Copyright Clause of the Constitution, 17 Geo.L.J. 109; 2 Story, Con......
  • Walker v. Globe Newspaper Co., 566.
    • United States
    • U.S. Court of Appeals — First Circuit
    • August 30, 1905
    ...came in at a later day by amendment. This was probably overlooked when a doubt was suggested in the opinion in Thornton v. Schreiber, 124 U.S. 612, 615, 8 Sup.Ct. 618, 31 L.Ed. 577, and in that in Bolles v. Outing Company, 175 U.S. 262, 265, 20 Sup.Ct. 94, 44 L.Ed. 156, whether the United S......
  • Charles Bolles v. Outing Company, No. 47
    • United States
    • United States Supreme Court
    • December 4, 1899
    ...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......
  • Morrison v. Pettibone
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • May 13, 1897
    ...or replevin,' and, as the opinion is by Mr. Justice Curtis, it is entitled to great weight. Remark is made in Thornton v. Schreiber, 124 U.S. 612, 620, 8 Sup.Ct. 618, which may intend the same view, although stated arguendo, and so qualified that it may not be applicable. Therefore I conclu......
  • Request a trial to view additional results
12 cases
  • Mazer v. Stein, No. 228
    • United States
    • United States Supreme Court
    • March 8, 1954
    ...cannot say that Congress was wrong.' See also Schreiber v. Thornton, D.C., 17 F. 603, reversed on other grounds, Thornton v. Schreiber, 124 U.S. 612, 613, 8 S.Ct. 618, 31 L.Ed. 577. See Fenning, The Origin of the Patent and Copyright Clause of the Constitution, 17 Geo.L.J. 109; 2 Story, Con......
  • Walker v. Globe Newspaper Co., 566.
    • United States
    • U.S. Court of Appeals — First Circuit
    • August 30, 1905
    ...came in at a later day by amendment. This was probably overlooked when a doubt was suggested in the opinion in Thornton v. Schreiber, 124 U.S. 612, 615, 8 Sup.Ct. 618, 31 L.Ed. 577, and in that in Bolles v. Outing Company, 175 U.S. 262, 265, 20 Sup.Ct. 94, 44 L.Ed. 156, whether the United S......
  • Charles Bolles v. Outing Company, No. 47
    • United States
    • United States Supreme Court
    • December 4, 1899
    ...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......
  • Morrison v. Pettibone
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • May 13, 1897
    ...or replevin,' and, as the opinion is by Mr. Justice Curtis, it is entitled to great weight. Remark is made in Thornton v. Schreiber, 124 U.S. 612, 620, 8 Sup.Ct. 618, which may intend the same view, although stated arguendo, and so qualified that it may not be applicable. Therefore I conclu......
  • Request a trial to view additional results

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