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The Appendix of Forms annexed to the new Rules of Civil Procedure contains the following illustrative form of complaint for infringement of copyright and unfair competition, to indicate the simplicity and brevity of statement which the rules contemplate: Form 17.—Complaint for Infringement of Copyright and Unfair
Competition. 1. Allegation of jurisdiction.
2. Prior to March 2, 1936, plaintiff, who then was and ever since has been a citizen of the United States, created and wrote an original book, entitled ...
3. This book contains a large amount of material wholly original with plaintiff and is copyrightable subject matter under the laws of the United States.
4. Between March 2, 1936, and March 10, 1936, plaintiff complied in all respects with the Act of (give citation) and all other laws governing copyright, and secured the exclusive rights and privileges in and to the copyright of said book, and received from the Register of Copyrights a certificate of registration, dated and identified as follows: "March 10, 1936, Class ..., No..
5. Since March 10, 1936, said book has been published by plaintiff and all copies of it made by plaintiff or under his authority or license have been printed, bound, and published in strict conformity with the provisions of the Act of ... and all other laws governing copyright.
6. Since March 10, 1936, plaintiff has been and still is the sole proprietor of all rights, title, and interest in and to the copyright in said book.
7. After March 10, 1936, defendant infringed said copyright by publishing and placing upon the market a book entitled which was copied largely from plaintiff's copyrighted book, entitled ...
8. A copy of plaintiff's copyrighted book is hereto attached as “Exhibit 1”; and a copy of defendant's infringing book is hereto attached as "Exhibit 2".
9. Plaintiff has notified defendant that defendant has infringed the copyright of plaintiff, and defendant has continued to infringe the copyright.
Wherefore plaintiff demands:
(1) That defendant, his agents, and servants be enjoined during the pendency of this action and permanently from infringing said copyright of said plaintiff in any manner.
(2) That defendant be required to pay to plaintiff such damages as plaintiff has sustained in consequence of defendant's infringement of said copyright and to account and pay over to
plaintiff all the gains, profits, and advantages derived by defendant from his infringement of plaintiff's copyright or such damages as to the court shall appear proper within the provisions of the copyright statutes, but not less than two hundred and fifty dollars.
(3) That defendant be required to deliver up to be impounded during the pendency of this action all copies in his possession or under his control infringing said copyright and to deliver up for destruction all infringing copies and all plates, molds, and other matter for making such infringing copies.
(4) That defendant pay to plaintiff the costs of this action and reasonable attorney's fees to be allowed to the plaintiff by the court.
(5) That plaintiff have such other and further relief as is just. Nature of Liability
Infringement of a copyright is a “tort”, giving rise to a civil suit for damages under section 25 of the Copyright Act. If willful and for profit, it is a misdemeanor punishable by fine or imprisonment, or both (section 28).
The rule in relation to torts is that all persons participating therein, whether knowingly or not, are jointly and severally liable. Hence, liability for infringement extends to the printer, publisher, and vendor of the copyright material. American Code Co. v. Bensinger, 282 F. 829 (CCA 2, 1922). But where such persons act severally in committing the infringement, and not jointly or in concert, they cannot be sued jointly. Ted Browne Music Co. v. Fowler, 290 F. 751 (CCA 2, 1923). While tortfeasors are jointly and severally liable for the damages sustained by the plaintiff, they may not be severally liable for any profits in which they did not share. Gross V. Van Dyk, 230 F. 412 (CCA 2, 1916); Harris v. Miller, 50 USPQ 625 (1941); Sammons v. Larkin, 49 USPQ 350 (1941).
Jurisdiction of Courts (Section 34)
By Act of Congress of March 3, 1911, Circuit Courts were abolished and jurisdiction transferred to the District Courts of the United States, etc.; and by Act of July 2, 1936, the Supreme Court of the District of Columbia was re-named District Court of the United States for the District of Columbia. Section 34 must be changed accordingly.
Section 256 of the Judicial Code provides that the jurisdiction vested in the courts of the United States shall be exclusive of the courts of the several states in "all cases arising under the patent or copyright laws of the United States."
Appeals (Section 38)
Section 38 of the Copyright Act provides that orders, judgments or decrees arising under the copyright laws may be reviewed on appeal or writ of error. See Rules 72-76 of the new Rules of Civil Procedure.
Appeal from an interlocutory decree must be taken within 30 days from the entry thereof (section 126, Judicial Code). But failure to take action within the time limit does not impair the right to appeal from the final decree, nor to challenge the validity of the prior interlocutory decree. Victor Talking Machine Co. v. George, 42 USPQ 346 (CCA 3, 1939).
Let me remind you that wherever a citation to a case is followed by the words "certiorari denied by the Supreme Court", this should not be understood as implying that the Supreme Court has necessarily passed upon the correctness or incorrectness of the lower court's decision in the particular case. United States v. Carver, 260 U.S. 490 (1923). Limitation of Actions (Section 39)
Section 39 provides that criminal proceedings must be commenced within three years “after the cause of action arose”. This has particular reference to prosecutions under section 28 for willful infringement for profit and section 29 for abuse of the copyright notice with fraudulent intent, or knowingly issuing or selling or importing copies of any article bearing a false notice of copyright.
No time limit is prescribed for civil actions for infringement of copyright. The established rule of the courts is to apply the statute of limitations for tort actions as prescribed by the law of the state where suit is brought. McCaleb v. Fox Film Co., 298 F. 48 (CCA 5, 1924), citing Brady v. Daly, 178 U.S. 148 (1899); see also McClaine v. Rankin, 197 U.S. 158 (1905). The term varies considerably in the different states. This is to be distinguished from laches, where the litigant has negligently slept on his rights and suffered his demand to become stale, particularly when injustice would be done by granting the relief asked. After the infringement has been discovered, the aggrieved party should use reasonable diligence in seeking relief through the courts. Haynes & Co. v. Druggists' Circular, 32 F.2d 215 (CCA 2, 1929). Attorney's Fee and Costs (Section 40)
Under section 40 the court "may award to the prevailing party a reasonable attorney's fee as part of the costs.” Thus it is within the sound discretion of the court whether to award or to deny any such fee. In making the award, the court gives consideration to the importance of the questions involved, the amount of pecuniary damages, the value of the professional services rendered, and the success achieved. Universal Film Co. v. Copperman, 218 F. 582 (CCA 2, 1914), footnote to case. For a more elaborate statement of the elements to be considered, see In re Osorsky, 50 F.2d 927 (1931). The appellate court has power to review the award and to reduce it if found excessive. Davilla v. Brunswick, 36 USPQ 398 (CCA, 2, 1938).
On the other hand, the allowance of "full costs" is made mandatory (as under the prior law, R.S. 927), thus taking it out of the operation of section 815 of the Judicial Code which provides that when a plaintiff brings action in a district court and recovers less than $500, exclusive of costs (in a case which cannot be brought there unless the amount in dispute exceeds that sum), the allowance of costs is discretionary with the court.
Miscellaneous Provisions of Copyright Act
False Notice of Copyright (Section 29)
"That any person who, with fraudulent intent, shall insert or impress any notice of copyright required [provided] by this Act, or words of the same purport, in or upon any uncopyrighted article ... shall be guilty of a misdemeanor, punishable by a fine of not less than $100 and not more than $1000.”
The italicized words seem to contemplate only works which might have been copyrightable but have fallen into the public domain either by lapse of time or failure to comply with the statutory requirements. The corresponding phrase in the prior law was: "whether such article be subject to copyright or otherwise" (R.S. 4963, as amended, 29 St. L. 694). This was designed to penalize the use of the notice on non-copyrightable works as well as its use on copyrightable works the titles of which had not previously been entered as required by the old law. Prohibition of Importation (Section 31)
"That during the existence of the American copyright in any book the importation into the United States of any piratical copies thereof or of any copies thereof (although authorized by the author or proprietor) which have not been produced in accordance with the manufacturing provisions specified in section 15 of this Act, ... shall be, and is hereby, prohibited.”
While this says “any book”, without qualification, it only applies to a book in the English language, for section 15 expressly exempts from the operation of the manufacturing clause "the original text of a book of foreign origin in a language or languages other than English”. Section 15 also exempts "books published abroad in the English language seeking ad interim protection under this Act”. In the case of the latter, however, it seems that the exemption applies only to the copy imported for ad interim registration, and ceases to operate after