Intention is held to be immaterial, if infringement otherwise appears. The author's property is absolute when perfected by copyright, and the intent or purpose of an invasion is nowhere made an excuse for it. The defenses pleaded being of no avail, in view of the law and evidence, the plaintiff is entitled to a judgment, and section 25 of the statute provided in this connection: 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 infringement; (b) To pay to the copyright proprietor such damages as the copyright proprietor may have suffered due to the infringement, but in 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. (Comp. St. 1916, § 9546.) In deciding the amount to be awarded the court should take into consideration all the facts and circumstances of the case. Here we have an innocent infringement, for which suit was not brought for nearly a year, and after a substantial settlement for the real damage done the plaintiff, which was the negligible sale of the original protograph, and while the court would not be permitted by law to speculate as to the profit the plaintiff would have enjoyed had he been so successful as to sell one copy to each member of the class, it is a fair conclusion that the printing in the Sunday edition of the New Haven Union of the class picture did not cost the plaintiff the loss of a single sale of the original photograph, especially when one carefully examines a copy of the newspaper containing the picture. But Congress has seen fit to fix the minimum recovery at $50, below which this court can not assess the damages, on the theory, presumably, that proof of the actual damage would be very difficult, if not impossible, but that always some damage would result from such an infringement, which would not and could not be less than $50. The law of the case is with the plaintiff, the equities with the defendant, and the equities justify the court in giving every consideration possible to the defendant in deciding upon the amount the plaintiff may recover. The plaintiff is entitled to an injunction, and it may issue; but in view of the highly technical character of the infringement, and for the reasons above expressed, I am constrained to order that the plaintiff may recover judgment for $50, without costs. Ordered accordingly. AMERICAN CODE CO. (INC.) v. BENSINGER ET AL. (Circuit Court of Appeals, Second Circuit, June 23, 1922) 282 Fed. Rep. 829 1. COPYRIGHTS-LIST OF CODE WORDS MAY BE COPYRIGHTED. A list of code words for use in transmitting telegraphic messages is copyrightable. 2. COPYRIGHTS-AUTHOR'S RIGHT ΤΟ MONOPOLY DETERMINED BY STATUTE. An author's right to monopoly of his publications is measured and determined by the copyright statute. (Comp. St. Sec. 9617 et seq.) 3. LITERARY PROPERTY-ANY PERSON MAY PUBLISH WORK PREVIOUSLY PUBLISHED WITHOUT COPYRIGHT. Publication of an intellectual publication without copyrighting dedicates it to the public, and any person may thereafter publish it for his own benefit. 4. COPYRIGHTS-FOREIGN COPYRIGHT AGAINST PIRACY IN THIS COUNTRY. AFFORDS NO PROTECTION A British copyright protects the author in England, but, unless he also copyrights the work in the United States. affords him no protection against any one who brings out in this country a piratical edition of the work; copyright laws having no extraterritorial operation, unless otherwise provided. 5. COPYRIGHTS-AFFORDS NO PROTECTION ΤΟ PIRATICAL PRODUC TION OF FOREIGN WORK. The American publisher of a piratical production of a work copyrighted in a foreign country can not secure the fruits of his piracy by taking out an American copyright. 6. CPYRIGHTS-WORK MUST BE ORIGINAL WITH THE AUTHOR. To be copyrightable, a work must be original, in that the author has created it by his own skill, labor, and judgment. 7. COPYRIGHTS-WORK INCLUDING ORIGINAL MATTER AND MAT TER PREVIOUSLY DEDICATED TO THE PUBLIC IS COPYRIGHT- If one takes matter which has been dedicated to the public by publication without copyright, and adds thereto materials which are the result of his own efforts, a copy right thereon is not void, but valid as to the new and original matter; but the degree of protection is measured by what is actually copyrightable in the work. 8. COPYRIGHTS-PRINTER, PUBLISHER, AND VENDOR EACH AN IN FRINGER. The printer, the publisher, and the vendor of an infringing work each is an infringer. 9. COPYRIGHTS-RIGHT TO INJUNCTION EXISTS, BOTH UNDER STATUTE AND INDEPENDENT THEREOF. The remedy by injunction against infringement of a copyright exists, both independently of statutory provisions and under the express provisions of Act March 4, 1909, sec. 36. (Comp. St., sec. 9557.) 10. APPEAL AND ERROR-INJUNCTION-PRELIMINARY INJUNCTION DISCRETIONARY, AND NOT SET ASIDE UNLESS ABUSE OF DISCRETION, ETC., CLEARLY SHOWN. The granting or withholding of a preliminary injunction rests in the sound discretion of the trial court, and an order granting such injunction will not be set aside on appeal, unless it is clearly shown that the court abused its discretion, or was mistaken in the view it took of the situation. 11. INJUNCTION-PRELIMINARY INJUNCTION MAY BE GRANTED WHEN COURT HAS JURISDICTION TO GRANT PERMANENT INJUNCTION. Whenever equity has jurisdiction to grant an injunction by final decree, it has jurisdiction to grant preliminary injunction, the basis for which is the maintenance of the status quo. 12. INJUNCTION- CASE WARRANTING DECREE ON FINAL HEARING NEED NOT BE MADE OUT TO WARRANT PRELIMINARY INJUNCTION. To make out a case warranting a preliminary injunction, the complainant need not make out such a case as would entitle him to decree on final hearing. 13. COPYRIGHTS-TEMPORARY INJUNCTION ORDINARILY GRANTED, WHEN PRIMA FACIE CASE MADE. Where plaintiff makes prima facie case in regard to existence of copyright and its infringement, a temporary injunction will as a general rule be issued. 14. COPYRIGHTS-PRIMA FACIE CASE FOR TEMPORARY INJUNCTION HELD MADE. In suit for infringement of copyright on telegraphic code, plaintiff held to have made a prima facie case of existence of copyright and infringement to entitle it to temporary injunction. 15. INJUNCTION-DEMURRABLE COMPLAINT WILL PREVENT. A demurrable complaint will prevent a preliminary injunction. 16. COPYRIGHTS-COMPLAINT HELD SUFFICIENT. In suit for infringement of copyright on telegraphic code, bill of complaint held sufficient. 17. COPYRIGHTS-NOT NECESSARY ΤΟ ALLEGE STEPS BY WHICH PLAINTIFF BECAME PROPRIETOR. In suit for infringement of copyright, it is not necessary to allege the various steps by which plaintiff became proprietor of the work. 18. COPYRIGHTS-ERROR IN DATE IN NOTICE OF COPYRIGHT HELD NOT TO INVALIDATE IT. That the notice of copyright inserted in a book published in January, 1915, but the printing of which commenced in 1914, used the earlier date, did not invalidate the copyright, as the error was in favor of, and not against, the public. 19. COPYRIGHTS-AFFIDAVITS FOR INJUNCTION SHOULD SHOW ACTUAL COPYING OF COPYRIGHTED MATTER. On application for preliminary injunction in suit for infringement of copyright, plaintiff's affidavits should satisfactorily show that defendant has actually copied into his book copyrightable matter taken from plaintiff's work. 20. COPYRIGHTS-BOND ON TEMPORARY INJUNCTION HELD INADE QUATE. A bond in the sum of $250 on temporary injunction in suit to restrain infringement of copyright was entirely inadequate, and should be increased to $5,000, where defendant had spent approximately $15,000 in printing the alleged infringing books, and had on hand books of the approximate value of $50,000. Appeal from the District Court of the United States for the Southern District of New York. Suit by the American Code Company (Inc.) against Carl Bensinger and others. From an order granting a temporary injunction, the defendants Michael Wolins and others appeal. Affirmed in part, and remanded in part, with directions. Morris Kirschstein, of New York City, for defendants appellants. George H. Gilman, of New York City, for complainant appellee. Before Rogers, Hough, and Mayer, circuit judges. ROGERS, Circuit Judge. This suit is brought for infringement of a copyright. A preliminary injunction was issued on February 14, 1922, restraining the defendants during the pendency of the action from printing, publishing, binding, selling, or offering for sale copies of any book containing matter copyrighted by the complainant and found in a certain work entitled "A B C Code, Fifth Edition, Improved." The complainant alleges in its bill that in the year 1914 it was the proprietor of the book above named, and that the work contained a large amount of matter wholly original with complainant, and all of which is complainant's private property. The bill also alleges that on January 29, 1915, the complainant published the book, and that the publication bore upon the title page thereof the notice of copyright required by the act of Congress of March 4, 1909 (Comp. St. secs. 9517-9524, 9530-9584), being the words "Copyrighted 1914 by the American Code Company, Inc.," and that the same notice was affixed to each copy thereof published or offered for sale in the United States. It further alleges that the text of all copies of the said book was printed from type set within the limits of the United States, or from plates made within the United States from type set therein, and the printing and binding of said book were performed within the limits of the United States. It states, too, that thereafter, on February 15, 1915, the complainant caused to be filed with the Register of Copyrights in Washington, D. C., two printed copies of said book of the best edition issued and produced, in accordance with the manufacturing provisions specified in section 15 of the copyright act (Comp. St. sec. 9536), and a certificate of registration was then and there duly issued to the complainant. The complaint goes on to allege: That thereafter, and in the year 1921, the defendant Wolins published a certain book entitled "A B C Code Fifth Edition Improved," which contained a large amount of the original copyright matter taken, copied, and pirated from the said complainant's book, "A B C Code Fifth Edition Improved," and the defendant Wolins sold and is selling the said infringing book, and threatening to continue the sale thereof, and the defendant Jacob Sadowsky is performing the binding of the said book, and the defendants Bensinger, Bishop, and Jack are selling and offering for sale and acting as the selling agents of the said infringing book. The complaint contains the prayers for relief usual in such cases, asking for an injunction, an account, and for the profits and damages, and for the destruction of the infringing books, and of all plates or other means for making the same, and for the impounding of all infringing books during the pendency of the suit. The defendant Wolins admits that he published the book entitled "A B C Code Fifth Edition Improved," |