similar omission mars Select Theatres v. The Ronzoni Macaroni Co.36 There the principal_defendant plagiarized from two copyrighted versions of "Death Takes a Holiday," the Italian original and the English adaptation. Other defendants were the sponsor of the radio program in which the infringing play was presented in 20 installments, and the 2 stations over which it was presented. There was no indication that the other defendants were aware of the infringements, nor any suggestion that the plaintiffs had given them actual notice. Nevertheless, the court treated each of the 20 installments as a separate infringement, and held the $250 minimum applicable to each. A judgment for $5,000 was entered jointly against the plagiarist, the sponsor, and the originating station, and judgment for an equal amount was imposed on the other station. The plagiarist was also found to have committed three infringements against each of the two copyright owners in three stage presentations, making him liable for $1,500 more.

This is not a well-considered case. There were two copyrights involved, and it might be argued that damages not exceeding $5,000 for the radio infringement of each of them would be within the statute; but the actual division of the damages between the plaintiffs, made on the basis of the source of the material used in the various broadcasts, was $1,500 to one plaintiff and $8,500 to the other.

A more careful consideration of the nature of a copyright and of an infringement appears in the third case, Harry Alter Co. v. A. E. Borden Co. Defendant had, in two of its catalogs, copied extensively from two of plaintiff's copyrighted catalogs. One dollar a copy was awarded for a total of 6,000 infringing catalogs. For two other infringements of less magnitude minimum damages of $250 each were awarded.

In the questionnaire returns only 12 instances were reported of claims for statutory damages in excess of $5,000. Most of these, when further explored by interviews or correspondence, turned out to be unsuccessful. One settlement for slightly more than $5,000 was described to us, resulting from an infringing series of 39 weekly network radio programs; the plaintiff had claimed $250 for each program.

Though instances of recoveries going beyond the $5,000 maximum are thus few, it must be conceded that the state of the law is uncertain. It is not clear what constitutes an "actual notice"--that is, whether an unsupported assertion of infringement is enough to put on guard a broadcaster or other user who receives many such claims, mostly empty. It is not clear how many infringements are involved when a copyrighted work or components of it are used in successive editions or broadcasts, or in simultaneous broadcasts. The definition of a 'case," to which the $5,000 maximum applies, is unsettled. These questions have been present in the decisions summarized above, and in a few others; 39 but it cannot be said that they have been answered in a satisfactory manner. There is therefore good reason for some uncertainty about the extent of statutory liability for multiple in

26 59 U.S.P.Q.288 (S.D.N.Y. 1943). Cf. Warner, op. cit., supra, sec. 163, note 13, on the three cases last cited 87 121 F. Supp. 941 (D. Mass. 1954).

39 Decided and reported cases in which defendants won include 7 wentieth Century-For Film Corp. v. Deckhaus, 153 F. 2d 893 (8th Cir. 1946), Jerome v. Twentieth Century-Fox Film Corp., 165 F. 2d 784 (2d Cir. 1948).

39 Markham v. Borden, 221 F. 2d 586 (1st Cir. 1955) $2,250 (9X$250) award upheld in catalog case; Cory v. Physical Culture Hotel, Inc., 14 F. Supp. 977 (W.D.N.Y. 1936), aff'd 88 F. 2d 411 (2d Cir. 1937); cf. note 15, supra, note, 67 Harv. L. Rev. at 973.

fringements, even though no instances are known of recovery much in excess of $10,000.

D. THE SPECIAL MINIMUMS AND MAXIMUMS

This part deals with items (3) (c) through (f) in the breakdown of section 101(b) set forth in the introduction.

1. "In case of a newspaper reproduction of a copyrighted photograph, such damages shall not exceed the sum of $200 nor be less than the sum of $50.'

There are no reported cases giving effect to this provision.40 Four respondents to the questionnaire reported having had "cases" to which it would apply, but the one settlement mentioned was in a suit brought in a New York State court, on a common-law claim coupled with a charge of unfair competition. There the plaintiff was able to obtain a sum much larger than the statutory maximum.

It seems fairly probable that the statutory limits have discouraged litigation. A lawyer with long experience in representing newspapers writes that

Prior to the enactment of the *** provision *** there were innumerable controversies, many of which reached the court, but practically all of these were prior to 1909. In some of those cases, the damages allowed by the courts appeared to be excessive. Since the enactment of this provision there have been practically no cases that have gone to litigation, because it has been the practice of newspapers, where infringement has been shown, to negotiate a settlement somewhere within the $50-$200 limit, thereby avoiding the expense of litigation." The inapplicability of this special limitation to a monthly magazine was established by Cory v. Physical Culture Hotel, Inc.42

It will be noted that, unlike the other special provisions, this limitation is not conditioned on the innocence of the infringement. It is therefore a sort of a compulsory license, which sets $200 as the maximum amount that a newspaper will have to pay for the use of a copyrighted photograph. We have no information whether a photograph would ever have a higher market value to a single newspaper user. The photographer can presumably protect the valuable right of exclusive first publication by reliance on common-law copyright. He might also in some circumstances make out a claim for actual damages or profits.

2. "In the case of the infringement of an undramatized or non-dramatic work by means of motion pictures, where the infringer shall show that he was not aware that he was infringing, and that such infringement could not have been reasonably foreseen, such damages shall not exceed the sum of $100; and in the case of an infringement of a copyrighted dramatic or dramatico-musical work by a maker of motion pictures and his agencies for distribution thereof to exhibitors, where such infringer shows that he was not aware that he was infringing a copyrighted work, and that such infringements could not reasonably have been foreseen, the entire sum of such damages recoverable by the copyright proprietor from such infringing maker and his agencies for the distribution to exhibitors of such infringing motion picture shall not exceed the sum of $5,000 nor be less than $250."

These provisions, added in 1912 when motion pictures were included among the statutory classifications of copyright in section 5 of the act, appear to have had no practical effect. There have been

40 Cf. Hoyt v. Daily Mirror, 31 F. Supp. 89 (S.D.N.Y. 1939) (complaint for newspaper infringement dismissed because no copyright notice on the photograph in suit).

41 The claims referred to before 1909 would presumably have arisen under 28 Stat. 965 (1895), amending R.S. sec. 4965, and limiting damages for infringement of a photograph to a $100-$5,000 range. There are no reported cases under this provision involving newspapers, but the correspondent quoted is certain that claims were frequent.

42 See note 39, supra.

no reported cases, and no questionnaire respondent had had any experience with claims controlled by them. In practice authors suing motion picture producers ask for actual damages or profits. In any event, the special limits are available only if the defendant establishes the innocence of his infringement.43

3. "The damages for the infringement by broadcast of any work referred to in this subsection shall not exceed the sum of $100 where the infringing broadcaster shows that he was not aware that he was infringing and that such infringement could not have been reasonably foreseen."

This amendment, which relates to nondramatic literary works, has been effective only since January 1, 1953. The standard of innocence which the infringer must meet is obviously patterned on the 1912 amendments to section 101 (b) just discussed. There are no reported cases on this amendment. Questionnaire responses supplemented by interviews turned up three controversies which might have fallen within the terms of the provision and which were settled for amounts within the prescribed maximum. In a fourth case, involving a performance of a copyrighted musical composition in a dramatic setting, the limitation was interposed as a defense; but it was apparently not applicable, since the case was settled for a sum quite substantially in excess of the $100 maximum.

The placing of this limitation in section 1 (c) raises unresolved questions about its relation to the other damage provisions. For example, does it preclude an award of actual damages or profits? This limitation is not, like the others, part of the "in lieu" provisions. With respect to the determination of multiple infringements by a network broadcast, will the $100 limitation be controlling, or will "the infringing broadcaster" be held to refer to each outlet? If there are multiple infringements in such a situation, would each outlet have to be sued separately, precluding recovery from the network for all the claimed infringements?

These questions are related to the overall problem of the extent of liability of the "innocent infringer." 43 The provisions just discussed, with the exception of the atypical limitation for newspaper use of photographs, represent a piecemeal attempt to limit the liability of motion picture producers and broadcasters when they do not know or have reason to know they are infringing. This can be the situation of many others dealing with copyrighted material. The broadcaster himself when he mistakenly relies on a song's listing in a licensor's catalog; the magazine or other publisher who buys or licenses material from an author who is in fact a plagiarist; 45 the contract printer of an infringing work; all these are supposedly subject to the full sweep of section 101(b). It is true that, so far as statutory damages are concerned, the $5,000 maximum would be applicable; for an infringer who has been given the "actual notice" that removes the ceiling is no longer "innocent." But this slight comfort does not take account of the possibility that several copyrights may be in

43 Warner, op. cit., supra, note 13, p. 650, says that, "The maximum of $5,000 was prescribed to cover the unique situation of the manufacture and distribution of a motion picture plagiarizing another form of dramatic work, viz.,'a stage play. This provision was intended to rectify the Supreme Court's decision in Kalem Co. v. Harper [222 U.S. 55 (1911)] where the exhibition of the motion picture by 10,000 innocent exhibitors resulted in 10,000 separate infringing performances."

"

43 The Copyright Office is preparing a separate study on the liability of innocent infringers.

44 Law v. NBC, 51 F. Supp. 798 (S.D.N.Ÿ. 1943). The broadcaster in this case was indemnified by the performing right licensor.

45 De Acosta v. Brown, 146 F. 2d 408 (2d Cir. 1944); cert. denied 325 U.S. 862 (1945).

volved, with the result that each may form the basis for a calculation of statutory damages; or that compliance with a notice may be unfeasible, because of close deadlines; or that a trial court's reckoning of statutory damages, which may be mechanical and quite out of proportion to the values involved in a minor case, is nevertheless almost unassailable if it is within the $250-$5,000 range.

The only general protection that the act gives the "innocent infringer" is in section 21, which, dealing with accidental omission of notice, states that "it shall prevent the recovery of damages against an innocent infringer who has been misled by the omission of the notice."

The supposed plight of the innocent infringer heightens the apprehensions already discussed about the possible impact of multiple infringements and calculations based on the schedules "First" through "Fourth." So far as can be determined, these apprehensions have only limited foundation in actual practice. A few reported cases do seem to deal harshly with infringers who may be innocent, and who can be described as "secondary"-a term which has no present statutory significance, but which loosely refers to persons who perform an infringing act, such as reselling, but who are not the principal actors in the infringing enterprise.46

One cannot say with assurance, however, that because an infringer is "secondary" he is innocent. For example, a printer may very well be a knowing participator with the publisher in a plagiarism, or he may be truly innocent. Since legal liability has not turned on these distinctions, except with respect to the little-used special maximums and minimums, the courts have not been obliged to make them.

"Secondary" infringers are often in a contractual relationship with "primary" infringers, so that indemnification may be available. This subject will be discussed in section VII of this paper.

E. SUMMARY ON STATUTORY DAMAGES

If we piece together the information and inferences derived from the questionnaires, interviews, and reported cases, the following general observations may be made about the operation of the statutory damage provisions:

1. The $250 minimum is rigorously followed, and gives the successful litigant at least the assurance of that much recovery. Attempts to multiply the $250 in a single case, for which there are various theoretical bases in the counting of infringements and of the number of copyrights infringed, are occasionally successful. But it does not appear that the courts will follow extreme computations blindly. The $250 minimum continues to be most effective as a policing and deterrent device for performing rights licensors. At this time it seems to have lesser importance for motion picture producers and sheet music. publishers.

2. The $5,000 general maximum is rarely reached and hardly ever pierced. Though it is removed by a showing of "actual notice," and though (as with minimum damages) causes of actions may be multiplied so that in theory several awards of $5,000 might be made in a single proceeding, the potential hazard of these events for defendants is much greater than their apparent actuality.

40 E.g. McCulloch v. Zapun Ceramics, Inc., 97 U.S.P.Q. 12 (S.D.N.Y. 1933).

The chief means of ascending to stratospheric damages, in a case of "actual notice," would be a mechanical resort to the suggested schedules "First" through "Fourth." Of these the only one that is ever used at all seems to be the "Second": $1 a copy for other than graphic works, and this not for very large sums.

3. The special minimums and maximums have very little or no application, except as they discourage claims altogether.

4. A number of reported statutory damage cases award round sums well within the limits, such as $1,000 or $2,000, without explanation.47 To the parties these may be quite substantial recoveries, in view of the dimensions of the case; but there is no way of estimating whether they are out of line with actual damages or profits, since presumably neither can be determined. If the case is one of considerable magnitude, in dollar terms, the plaintiff appears to be more likely to aim for, and, if successful, to get actual damages or profits.

These observations refer to litigated cases. The final inquiry goes to the influence of the statutory damage provisions on settlements. We have already noted in analyzing the questionnaire results in part II that statutory damages were considered the basis for less than 10 percent of the settlements reported. Opinions derived from interviews and correspondence are less one-sided, and indeed quite divergent. Attorneys agreed that the only damage provision which invariably affected settlements was the 2-cent-per-record compulsory royalty provision of section 1(e). It operates as a ceiling. An attorney prominent in broadcasting thought statutory damages extremely important in settlements of musical-plagiarism cases; an attorney the bulk of whose practice concerns musical plagiarism thought they were most unimportant, because the expenses of collecting them, plus the fact that attorney's fees (if awarded) tend to follow damages and tend to prove inadequate, made them of dubious bargaining utility. An attorney who represents various underwriters thought the $5,000 statutory maximum damage provision influenced all substantial settlements of single infringements; an attorney prominent in musical controversies thought it of no influence.

Opposing points of view are best summed up by the comments of two lawyers of extensive and varied experience. One wrote:

We settle all cases on the basis of what we can get away with when we are the defendant and what the traffic will bear when we are the plaintiff.

The other reported his practice in negotiating settlements was todetermine the maximum statutory damages which might be awarded, with a reasonable attorney's fee, and offer to settle for an amount substantially less * * *. In practically every case I have had the final reliance has been on statutory damages.

Attitudes toward techniques of settlement, one suspests, are as variable as the temperaments of individual lawyers. The factors that enter into the amount of a settlement (if there is any money payment; often there is not) are intimately connected with the degree of willingness to settle at all. Though most controversies do get settled, some attorneys are obviously much more resistant than others to settlement. Considerations of temperament are reinforced, in the

E.g. General Drafting Co. v. Andrews, 37 F. 2d 54 (2d Cir. 1930) (road maps; $2,000 damages, $4,000 attorney's fees); Zenn v. National Golf Review, Inc., 27 F. Supp. 732 (S.D.N.Y. 1939) (print used in magazine with 50,000 circulation; $1,000 awarded); M. J. Golden & Co. v. Pittsburgh Brewing Co., 137 F. Supp. 455 (W.D. Pa. 1956) (7,500 advertising plaques; $1,000 awarded); cf. Tokrig v. Bruce Publishing Co., 181 F. 2d 664 (7th Cir. 1950) ($1,000 award, though substantial profits determinable).