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Franklin Square Library Company for violation of their trade-mark rights in the name.
Where the American Book Co. brought suit Rebound against Doan & Hanson, who had restored and re- copies bound used copies of schoolbooks, the U. S. Circuit Court of Appeals held in 1901 that there was no violation of law, but required notice that the books were second-hand copies by conspicuous stamp on the cover. In 1891 the Pennsylvania Supreme Court, in Dodd v. Smith, declined to grant Dodd, Mead & Co. an injunction against re-binders who had purchased from them sheets of a fifty-cent paper-covered edition of a novel by E. P. Roe and bound these in cloth to sell at sixty cents in competition with the plaintiff's $1.50 cloth edition.
In 1899 G. P. Putnam's Sons purchased from Kip- The Kipling ling's authorized publishers sheets of twelve volumes, case added three volumes of non-copyright or otherwise authorized material and published the fifteen volumes, “Brushwood edition," of Kipling's works, with the design of an elephant's head on the binding. Kipling sought an injunction for infringement of copyright, use of trade-mark and unfair competition with the “Outward bound edition" of his works, which also bore an elephant's head. In 1903 the U. S. Circuit Court of Appeals, through Judge Coxe, affirmed a decision holding as “a well-recognized principle of law” that “the defendants, having purchased unbound copyrighted volumes, were at liberty, so far as the copyright statute is concerned, to bind and resell them”; that the elephant's head, not being a registered trade-mark, could not be protected as a trademark; and that there was no similarity of editions constituting unfair competition. But in 1907, in Dutton v. Cupples & Leon, the plaintiffs obtained damages for a series of books closely imitating the
get-up of their "Gem" or "Dainty" series. Passing off, however, cannot be made ground of action when material protectable by copyright has not been copyrighted, as was held in 1908, in Bamforth v. Douglas Post Card Co., by Judge McPherson in the U. S.
Circuit Court. Burlesqued The suit to enjoin the use of a reversed or burtitle
lesque title, when the Boston Herald printed, under the title of "Letters of a son to his self-made father," a skit on Lorimer's "Letters of a self-made merchant to his son," was denied by Judge Morton in the Massachusetts Supreme Court in 1903 as involving
no deception. The Drum- In 1894 Henry Drummond, a British subject, obmond case
tained from Judge Dallas, in the U. S. Circuit Court, an injunction restraining Henry Altemus from publishing what purported to be exact reports of twelve lectures, of which eight only had been imperfectly reported in the British Weekly, on the ground that the author had a common law right to restrain the publication“of any literary matter as the plaintiff's, which
was not actually his creation, and to prevent fraud.' The new The new British measure comprehensively defines British code infringement as the doing without consent of the
owner of the copyright of "anything the sole right to do which is by this act conferred on the owner of the copyright," but specifically excepts (1) fair dealing for private study, research, criticism, review or newspaper summary; (2) use by an artist of sketches, etc., made for a work of which he has sold the copyright, provided he does not repeat or imitate that work; (3) graphic reproduction of objects, or photographing of paintings, etc., in a public place; (4) limited extracts for use in schoolbooks; (5) report of lectures unless prohibited by placard; (6) reading or recitation of reasonable extracts.
REMEDIES AND PROCEDURE
It was for the protection of copyrights that the stat- Protection ute of Anne was passed and that statutory law thus and proce
dure began to replace English common law — a gain to authors sadly offset by its losses. But it was undoubtedly true that without statutory provision the proprietor of literary and similar property could not obtain the protection necessary for the enforcement of his rights. The new American code is comprehensive, detailed and specific in its legal provisions for protection and procedure, and in respect to punishment far beyond any copyright legislation on the statute books of any other nation.
The first protection given by the statute is the in- Injunction junction usual in equity proceedings, following the precedent of early legislation.
Under previous American law, damages were Damages levied primarily on infringing copies found in possession of the infringer or his agents, with the unfortunate result that when an infringer was successful in selling his edition, few, if any, copies were found on which to levy damages. The new code thoroughly corrects this defect by providing for specified damages on infringing copies "made or sold by or found in the possession of the infringer or his agents or employees.” The plaintiff is entitled to damages and all profits and is required only to prove sales, while the defendant is required to prove the elements of cost. The damages — assessed as such and not as penalties so as to free copyright litigation from the restrictions of penal proceedings — are stated as one
One suit sufficing
Deposit of infringing articles
dollar for each infringing copy, except copies of a painting, statue or sculpture on which they are ten dollars per copy; fifty dollars for each infringing delivery of an oral work; one hundred dollars for the first and fifty dollars for each subsequent infringing performance of a dramatic, dramatico-musical, choral or orchestral work; and ten dollars for each infringing performance of any other musical work. These damages shall not be less than $250 or more than $5000 in any one case, with the exception that for a newspaper reproduction of a photograph the minimum shall be fifty dollars and the maximum two hundred dollars, a concession insisted upon by newspaper proprietors.
Injunction, damages and profits, and delivery of infringing copies or means of production, are covered in the single suit to protect the copyright.
During the pendency of an action the defendant may be required to deposit all articles alleged to infringe copyright, making oath that he has deposited all such, under regulations for his protection prescribed, as the law directs, by the Supreme Court, which regulations are given in full in the appendix of this volume; and when such articles are adjudged to be infringements, he must deliver up for destruction not only such infringing copies or devices, but also all plates, molds, matrices or other means for making such infringing copies as the court may order, making oath that he has delivered up all such.
The text covering these provisions, with the exception of subsection (e), referring to mechanical musical reproductions, given in the chapter on that subject, is as follows:
“(Sec. 25.) That if any person shall infringe the copyright in any work protected under the copyright laws of the United States such person shall be liable: “(a) To an injunction restraining such infringe- Remedies ment;
specified “(b) To pay to the copyright proprietor such damages as the copyright proprietor may have suffered due to the infringement, as well as all the profits which the infringer shall have made from such infringement, and in proving profits the plaintiff shall be required to prove sales only and the defendant shall be required to prove every element of cost which he claims, or in lieu of actual damages and profits such damages as to the court shall appear to be just, and in assessing such damages the court may, in its discretion, allow the amounts as hereinafter stated, but in the case of a newspaper reproduction of a copyrighted photograph such damages shall not exceed the sum of two hundred dollars nor be less than the sum of fifty dollars, and such damages shall in no other case exceed the sum of five thousand dollars nor be less than the sum of two hundred and fifty dollars, and shall not be regarded as a penalty:
“First. In the case of a painting, statue, or sculpture, ten dollars for every infringing copy made or sold by or found in the possession of the infringer or his agents or employees;
“Second. In the case of any work enumerated in section five of this Act, except a painting, statue, or sculpture, one dollar for every infringing copy made or sold by or found in the possession of the infringer or his agents or employees;
“Third. In the case of a lecture, sermon, or address, fifty dollars for every infringing delivery;
“Fourth. In the case of dramatic or dramaticomusical or a choral or orchestral composition, one hundred dollars for the first and fifty dollars for every subsequent infringing performance; in the case of