Copyright: Its History and Its Law Part 25

{Sidenote: Text of procedure provisions}

The text of these provisions is as follows:

"(Sec. 26.) That any court given jurisdiction under section thirty-four of this Act may proceed in any action, suit, or proceeding inst.i.tuted for violation of any provision hereof to enter a judgment or decree enforcing the remedies herein provided.

{Sidenote: Proceedings united in one action}

"(Sec. 27.) That the proceedings for an injunction, damages, and profits, and those for the seizure of infringing copies, plates, molds, matrices, and so forth, aforementioned, may be united in one action."

{Sidenote: Jurisdiction in copyright cases}

"(Sec. 34.) That all actions, suits, or proceedings arising under the copyright laws of the United States shall be originally cognizable by the circuit courts of the United States, the district court of any Territory, the supreme court of the District of Columbia, the district courts of Alaska, Hawaii, and Porto Rico, and the courts of first instance of the Philippine Islands.

"(Sec. 35.) That civil actions, suits, or proceedings arising under this Act may be inst.i.tuted in the district of which the defendant or his agent is an inhabitant, or in which he may be found.

{Sidenote: Injunction provisions}

"(Sec. 36.) That any such court or judge thereof shall have power, upon bill in equity filed by any party aggrieved, to grant injunctions to prevent and restrain the violation of any right secured by said laws, according to the course and principles of courts of equity, on such terms as said court or judge may deem reasonable. Any injunction that may be granted restraining and enjoining the doing of anything forbidden by this Act may be served on the parties against whom such injunction may be granted anywhere in the United States, and shall be operative throughout the United States and be enforceable by proceedings in contempt or otherwise by any other court or judge possessing jurisdiction of the defendants.

"(Sec. 37.) That the clerk of the court, or judge granting the injunction, shall, when required so to do by the court hearing the application to enforce said injunction, transmit without delay to said court a certified copy of all the papers in said cause that are on file in his office.

{Sidenote: Appeal}

"(Sec. 38.) That the orders, judgments, or decrees of any court mentioned in section thirty-four of this Act arising under the copyright laws of the United States may be reviewed on appeal or writ of error in the manner and to the extent now provided by law for the review of cases determined in said courts, respectively.

{Sidenote: No criminal proceedings after three years}

"(Sec. 39.) That no criminal proceeding shall be maintained under the provisions of this Act unless the same is commenced within three years after the cause of action arose."

{Sidenote: Strict compliance requisite}

The copyright statutes are construed strictly, by the letter of the law, in respect to procedure as well as to other features. This is especially the case in respect to forfeiture and penalties, as where, in Falk _v._ Heffron, in 1893, 2400 copies of a copyright portrait of Lillian Russell had been lithographed, twenty-one on a sheet. Judge Wheeler in the U. S.

Circuit Court in New York held with the jury that only one dollar per sheet could be recovered as penalty, because the law specified "sheets."

In McDonald _v._ Hearst, in 1899, in the U. S. Circuit Court in California, Judge DeHaven held that the proprietor of the San Francisco _Examiner_ could not be held liable for copyright penalties because an employer could not be held to penal responsibility for the act of his agent. In a suit to obtain damages based on forfeiture, in Wheeler _v._ Cobbey, in 1895, Judge Shiras in the U. S. Circuit Court in Nebraska sustained a demurrer on the ground that the damages asked for depended on forfeiture and could not be obtained unless the actual forfeiture was had within the statutory limit of two years. In Morrison _v_. Pettibone, in 1897, in the U. S. Circuit Court in Illinois, Judge Seaman held that certain sheets, seized during the process of lithographing, when only one color had been printed, were not exact copies and therefore could not be forfeited. In Bennett _v._ Boston _Traveler_ Co., in 1900, the Circuit Court of Appeals, through Judge Colt, refused relief because the plaintiff had alleged infringement of a cartoon published in the New York _Herald_, which was not specifically copyrighted, instead of alleging infringement of the copyrighted newspaper of which it was a part. An extreme case was that of Child _v._ N. Y. _Times_ Co., in 1901, where the plaintiff had purchased infringing copies from the defendant, in which case Judge Hazel in the U. S. Circuit Court in New York held that as these were not literally "found in possession" of defendant, a penalty could not be collected. Several of these cases ill.u.s.trate escapes from justice which will not be possible under the code of 1909, which uses broader phraseology. In Walker _v._ Globe Newspaper Co., in 1908, where no copies of a pirated map were found in possession of the defendants, the U. S. Supreme Court held that outside of statutory remedies no suit for damages could be maintained.

{Sidenote: Damage not penalty}

On the other hand, in the case of Brady _v._ Daly, which came before the U. S. Supreme Court in 1899, the defendants, on a question of jurisdiction, raised the issue that the old law provided for a penalty and not for damages, in denying which Justice Peckham held that: "The statute in using the word 'damages' did not mean a forfeiture or penalty, as it is difficult to prove the exact amount which the proprietor of a play may suffer by reason of an infringement. It is probable that Congress intended to provide a remedy so that the proprietor could recover a certain amount of damages without proof of what his actual loss had been. In the face of the difficulty of determining the amount of damages, a minimum sum is provided in any case, with the possibility of recovering a larger amount on proof of greater damage. The idea of punishment is not so much suggested as the desire to provide for compensation to the proprietor." This rule was applied by Judge Lacombe in Patterson _v_. Ogilvie, in 1902.

{Sidenote: Other procedure decisions}

In the case of Falk _v._ Curtis Pub. Co., which came before the U. S.

Circuit Court in Pennsylvania twice in 1900, some important decisions or indications as to copyright procedure were given. The defense that under the copyright act the words "any person" did not include a corporation was overruled by Judge Dallas on the ground that the general statute specifically construed the word "person" to extend to partnerships and corporations. In this case an action to recover penalties and an action to replevin copies in possession were started independently and simultaneously, and the Circuit Court of Appeals through Judge Buffington affirmed the decision that as the penalties under the old act were restricted to copies "found in possession," the suit for penalties was premature. In the later case of Rinehart _v._ Smith, also in the Pennsylvania circuit, it was pointed out that an action for replevin was not the proper form of suit because in such actions bonds might be given and the forfeiture of copies thus be barred; and in Hegeman _v._ Springer, the Circuit Court in New York held, in 1901, that a replevin suit, involving prior demand, was not necessary and that the copyright statute itself gave authority for an action for seizure without previous demand, as would be necessary in replevin proceedings. It was held, however, in the Illinois circuit in an earlier case, that a suit of replevin will lie to enforce forfeiture under the copyright act. Several of these perplexities, however, are removed by the code of 1909, which expressly (sec. 27) authorizes the bringing together of all the remedies in one action.

{Sidenote: Preventive action}

That there can be no infringement of copyright by acts committed before the copyright was obtained, was decided in 1900 in the U. S. Circuit Court in the case of Maloney _v._ Foote, where the two parties were jointly engaged in preparing directories, and the plaintiff obtained the copyright and brought suit for infringement for the prior use of material, the question being of contract and not of copyright. On the other hand, as far as practicable, "it is the policy of the law to arrest the pirate before he actually makes off with the plunder," said Judge c.o.xe in the U. S. Circuit Court of Appeals, in Gannet _v._ Rupert, in 1904.

{Sidenote: Party in suit}

In 1903, in Champney _v._ Haag, it was held in the U. S. Circuit Court in Pennsylvania, that though a copy of a photograph of a copyright painting was an infringement, it was not the owner of the original copyright but the owner of the photograph who must sue--but this is contrary to the English ruling case of Lucas _v._ Williams, and is probably not good law.

{Sidenote: Suit for injury to reputation}

A curious case arose in England in 1892 as to the rights of an author after publication and transfer of copyright, in Lee _v._ Gibbings, where the plaintiff had prepared for the defendant, a publisher, at an agreed price, an edition with introduction of Lord Herbert's autobiography, which the defendant reissued in a condensed edition without the introduction and other matter by the author, though retaining his name.

The author sued to restrain the condensation as an injury to his reputation, but Justice Kekewich in the Chancery Division held that this should be a suit for libel and not under copyright, and declined to enjoin the defendant before the question whether this was actually a libel was settled.

{Sidenote: Damages in willful case}

In a case of evident bad faith in wholesale copying, the U. S. Circuit Court in Hartford Printing Co. _v._ Hartford Directory Co. awarded as damages the gross receipts less estimated cost.

{Sidenote: Penal provisions}

The provisions for collecting damages and profits are supplemented in case of infringement, willfully and for profit, by penal provisions which make the offense a misdemeanor punishable by imprisonment not exceeding one year or fine not less than $100 or more than $1000, or both, in the discretion of the court, according to the following provision (sec. 28):

{Sidenote: Penalty for willful infringement}

"That any person who willfully and for profit shall infringe any copyright secured by this Act, or who shall knowingly and willfully aid or abet such infringement, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by imprisonment for not exceeding one year or by a fine of not less than one hundred dollars nor more than one thousand dollars, or both, in the discretion of the court."

This provision (sec. 28) includes however a proviso exempting from prevention or punishment the performance of certain musical works for charitable or educational purposes and not for profit, which proviso is given in full in the chapter on dramatic and musical copyright.

{Sidenote: Penalty for false notice of copyright}

Provision is also made in the new statute for the punishment by fine, but not by imprisonment, of any person who with fraudulent intent affixes a copyright notice or its equivalent on an uncopyrighted work, or removes or alters the copyright notice in a copyrighted work, the fine being not less than $100 nor more than $1000; and of any person who shall knowingly issue, sell or import any article bearing notice of United States copyright which has not been copyrighted in this country, the fine in this case being $100, according to these provisions:

"(Sec. 29.) That any person who, with fraudulent intent, shall insert or impress any notice of copyright required by this Act, or words of the same purport, in or upon any uncopyrighted article, or with fraudulent intent shall remove or alter the copyright notice upon any article duly copyrighted shall be guilty of a misdemeanor, punishable by a fine of not less than one hundred dollars and not more than one thousand dollars. Any person who shall knowingly issue or sell any article bearing a notice of United States copyright which has not been copyrighted in this country, or who shall knowingly import any article bearing such notice or words of the same purport, which has not been copyrighted in this country, shall be liable to a fine of one hundred dollars."

Further provisions as to importation are given in the chapter on that subject.

{Sidenote: Allowance of costs}

In addition to injunction, damages and profits, delivery of copies, etc., the courts may allow costs inclusive of attorney's fees as provided:

"(Sec. 40.) That in all actions, suits, or proceedings under this Act, except when brought by or against the United States or any officer thereof, full costs shall be allowed, and the court may award to the prevailing party a reasonable attorney's fee as part of the costs."

It seems impracticable and undesirable to attempt in this chapter a statement of the procedure under former copyright laws in this country, or under the legal methods in vogue in other countries, for which the legal authorities on local procedure and practice should be consulted.

{Sidenote: The new British code}

The new British measure provides the usual civil remedies of injunction, damages, account and costs in the discretion of the court. The author, or if no author the publisher whose name is indicated on the work, is _prima facie_ recognized as owner unless the contrary is proved.

Infringing copies or plates become the property of the copyright owner.

If the infringer proves ignorance, only an injunction will hold. In architectural works, after construction has been commenced, damages and not an injunction are provided for. Actions must be commenced within three years. Summary conviction is provided for in the case of any person knowingly and for profit or trade making, offering, distributing, exhibiting or importing infringing copies or making or having in possession infringing plates with penalty of a fine not exceeding fifty pounds, or in case of a second offense, imprisonment not exceeding two months, as also destruction or delivery up to owner of the copyright.

The summary provisions of the musical copyright acts of 1902 and 1906 remain unrepealed.

Under previous law there had been two notable cases of criminal punishment for conspiracy. In 1906, _Re_ Willets against a combination among cheap music publishers, where the Common Serjeant sentenced the vendors to nine months' imprisonment, and in 1910, _Re_ Bokenham, where pirates who had conspired to print surrept.i.tiously obtained copies of Oscar Wilde's poem "De Profundis," were also sentenced to six months and lesser periods.