Page 613.

The plaintiff here made the election, if he had the power to do so; and on the evidence there can be no doubt that this was not a case for actual damages, as distinguished from those damages which might be fair and just, and that the court, if called upon to act, must make the same election as plaintiff did. Defendant made no profits, so far as the proofs indicated; the plaintiff's damages rested in the injury to his Morehouse contract and in the discouragement of and the tendency to destroy his system of business. To make any accurate proof of actual damages was obviously impossible. This case must therefore be treated, from any point of view, as one calling for the application of the "in lieu" portion of the statute.

4. The statute says that "such damages shall" be governed by a maximum and minimum. Whether this phrase, "such damages," and the maximum and minimum limitations, apply to the actual damages which may be proved and established under the first part of this section, or only to the "just" damages given “in lieu of actual damages," can not be determined from mere arrangement of the language, but must depend upon more indirect interpretation. This question likewise does not directly require decision in this case. The limitations unquestionably apply to the "in lieu" damages, which are the only ones here involved; their application to actual damages may be passed over.

5. The arrangement of section 25 is awkward. In effect, the provisions for maximum and minimum immediately follow the classification, so that the statute must be treated as if it read:

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 $10 for every copy of a painting, etc., $1 for every copy of any other work, etc., $50 for every delivery of a lecture, etc., and $10 for every performance of musical compositions, except, etc., but in the 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, and such damages shall in no other case exceed the sum of $5,000 nor be less than the sum of $250, and shall not be regarded as a penalty.

6. We see no escape from the application of the $250 minimum in a case like this. It is difficult to think of any reason why a newspaper reproduction of a copyrighted pen and ink drawing of a hat should not be classified with a newspaper reproduction of a copyrighted photograph of similar articles; but it is not, and these

sketches here involved are not photographs-though they might as well have been-and unless the word "photograph" is restricted to its established meaning, no line can be drawn; hence the $50 photograph minimum can not apply.

It seems to us the plain meaning of the language that Congress intended that the plaintiff should not recover less than $250 damages in any copyright infringement suit not based upon a newspaper reproduction of a photograph-at least in any case where the actual damages fail to appear so clearly and so fully as to forbid resort to the "in lieu" clause. The necessary effect of the provision is to prohibit the award of merely nominal damages. This intent implies no undue harshness. Not only does the typical copyright infringement, if not every one, involve indirect damages almost sure to be considerable, but Page 614. in few cases would one sum of $250 more than compensate plaintiff for his time, trouble and expense in detecting, following up, and prosecuting an infringement. It would seem that the words "shall not be regarded as a penalty" were added out of abundant caution, for under such a situation as usually exists on this subject the awarding of a round sum in damages is no more a penalty when the damages are liquidated by a court than when they are liquidated by a contract.

The act of 1909 is not new in this respect. Revised Statutes, sec. 4964, provided that one who unlawfully reproduced a copyrighted book should pay such damages as may be recovered in a civil action; section 4965 provided redress for infringement of copyrights other than for books, which redress consisted of "forfeiting" (one-half to the proprietor and one-half to the United States) $1 for each infringing copy; and this section further provides, with reference to the infringement of a print, that "the sum to be recovered in any action brought under the provisions of this section shall be not less than $250;" section 4966 covers infringement of copyrighted dramatic and musical compositions, and says that the infringer "shall be liable for damages therefor, such damages in all cases to be assessed at such sum, not less than $100 for the first and $50 for every subsequent performance, as to the court shall appear to be just." This last provision was under consideration by the Supreme Court in Brady v. Daly (175 U. S. 148, 20 Sup. Ct. 62, 44 L. Ed. 109). It was held that the minimum provision was not

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one for a penalty, and that in default of proof of actual damages the plaintiff was at all events entitled to recover this minimum. After this construction of Revised Statutes, sec. 4966, the same language was adopted into section 25 of the act of 1909, although its application was extended to all copyrights; and Brady v. Daly must have the effect of a decision that under the present statute the plaintiff may recover at least the minimum.

[6] 7. When we observe that a single act in reproduction of a single copyrighted print is such an infringement as will support an action and a recovery under section 25, it is natural to assume that each such act calls for the minimum damages, and perhaps this natural assumption tends to persuade that Congress did not intend to abolish merely nominal damages (Woodman v. Lydiard-Peterson Co., C. C. D. Minn., 192 Fed. 67, affirmed 204 Fed. 921, 123 C. C. A. 243, 205 Fed. 900, 126 C. C. A. 434); but the conclusion is not inevitable. The "infringement" for which an action will lie is not necessarily the same "infringement" for which the minimum damages are provided. The same word may have different meanings, even in parts of the same statute, if the context and reasonable construction so require. (American Co. v. District of Columbia, 224 U. S. 491, 494, 32 Sup. Ct. 553, 56 L. Ed. 856.)

The language of the statute is:

If any person shall infringe the copyright in any work protected under the copyright laws of the United States, such person shall be liable

prietor *
just, etc.

**

to pay

the copyright prosuch damages as to the court shall appear to be

What did Congress mean when it referred to the "infringement" for which not less than $250 must be paid? The common instance, such as Congress probably had in mind, is clear. In case of an unauthorized publication of a copyrighted book, or an infringing edition of a copyrighted song, there are clearly one right and one violation, though an infringing edition may contain many copies. The statute has recognized that in some instances acts of infringement, though connected and united, may require separate treatment, and in other instances (newspaper reproduction of photographs) a number, perhaps a vast number, of acts are treated collectively as one infringement; but in still other instances the statute is wholly silent in these respects. The pub

lishing of an edition of a thousand books is an infringement; so is the putting on sale of one of them. Using the analogy of the patent law, the manufacture and sale of one article is an infringement sufficient to support an action; yet all the conduct of the defendant in continuing the manufacture and sale over a period of years may be "the infringement" for which damages will be assessed at the end of the action. There is no corresponding damage statute in the patent law to make the analogy complete; but can it be supposed that the copyright proprietor can take each infringing act out of a series or group, because each one is sufficient to support an action, and then plant a separate action or complaint upon each, and so recover his minimum damages practically as many times as he chooses? These and other considerations convince us that the "infringement" which calls for minimum damages is that conduct of the defendant, whether being one act or many, which constitutes a connected and fairly unitary invasion of the proprietor's rights. Intermittent newspaper publication forms merely an extreme instance of difficulty in applying this definition.

[7] 8. We are on more uncertain ground when we attempt to define that right of the copyright proprietor which is contemplated by the minimum-damage provision. What is meant by "the copyright in any work protected," etc.? Here again the case of a book or musical composition is simple, but when the copyright law is used as an aid to business enterprises other than the printing and sale of books and pictures, we find indefiniteness. Whatever may have been the rule under the former law, section 3 of the act of 1909 (Comp. St. 1913, § 9519) operates to give the proprietor the election between claiming copyright of his "work" as an entirety or by units, and, whichever way it is done, each unit is equally protected. Each one of a number of short stories may be separately copyrighted as it appears from month to month, and then they may go upon the market grouped as a book, or they may be withheld and all first published in book form and copyrighted as an entirety, or they may be copyrighted as they serially appear, and then again in their grouped form. In any event, it is an infringement of the proprietor's rights to republish any one of the stories, and it is an infringement of his rights to republish the whole book. A furniture manufacturer may have a hundred artistic cuts or prints showing his product. He

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may copyright them separately and then unite them in his published catalogue, or he may first copyright the whole catalogue, making one registration; in either event it is an infringement of his rights to republish any one print or to republish the whole catalogue. We cannot believe that the application of the minimum-damage law is controlled by that form of copyrighting, by group or by unit, which the proprietor chooses or happens to adopt. If the form of registration determines the nature of the right which is infringed, and so if it must be assumed that each impairment of a separately registered copyright is a separate infringement, it follows in the case of a catalogue that if the proprietor registers the entire at once, and if a defendant has republished the entire, the proprietor's maximum damage (at least, under the "in lieu" clause) is $5,000; while if he has separately registered each one of his 100 prints and put out the same catalogue, and the defendant has republished the same catalogue, we see that plaintiff's right is the same as before and that the defendant's infringement is the same as before, and yet the minimum damage permissible under the statute would be $25,000. While this is the first-thought interpretation of the words of the law, yet we know it can not be the real intent. The damages would have been “irrationally increased. We believe Congress meant no such result." (American Co. v. District of Columbia, supra, 224 U. S. at p. 495, 32 Sup. Ct. 553, 56 L. Ed. 856.) If the language permits, we must find some more reasonable construction, even if inconsistent with the letter. (Church v. United States, 143 U. S. 457, 12 Sup. Ct. 511, 36 L. Ed. 226.) We see no insuperable objection to supposing that the "copyright in any work protected,” etc., may refer as well to a composite or grouped right as to each separate item of the group, and we are satisfied to interpret the statute as saying, in effect, that in any case where a party shows that a property right and interest protected by copyright law have been invaded by the defendant, the damages (under the "in lieu" clause) must not be more or less than the stated amounts, even though the right is composite and the invasion is composite. It will follow that it must be determined by the court as a fact in each case whether one right or more than one has been impaired, and whether the acts of the defendant in taking are to be considered as one infringement or more than one.