Section II Prohibited Acts, and Remedies
It is an infringement, subject to the remedies stated below, to do any of the following acts in respect of a copyright work.
In the case of:
I. Books:1565 without the consent of the proprietor in writing signed in the presence of two witnesses.
1. To print or publish.
2. To dramatize or translate.
3. To import.
4. Knowingly to sell or expose for sale copies unlawfully made or imported.
The owner’s remedies are:
1. Forfeiture of copies.
2. Damages.
3. Injunction.
4. Account of profits.
II. Maps,1566 charts, dramatic or musical compositions, prints, art engravings, photographs, chromos, paintings, drawings, statues, statuary models and designs for the fine arts: without the consent of the proprietor in writing signed in the presence of two witnesses.
1. To engrave, etch, work, or copy.
2. To print or publish.
3. To dramatize or translate.
4. To import.
5. Knowingly to sell or expose for sale copies unlawfully made or exported.
The owner’s remedies are:
1. Forfeiture of plates and sheets.
2. Penalty of $1 for every sheet found in defendant’s possession.
3. Penalty of $10 for every copy of a painting, statue, or statuary.
4. In the case of a photograph made from any object not a work of fine art, the sum to be recovered shall not be less than $100 nor more than $5000.
5. In the case of a work of the fine arts or photograph thereof, the sum to be recovered shall not be less that $250 nor more than $10,000.
6. Injunction.
One-half of the penalties under the Act of March 2, 1895, go to the proprietor of the copyright and the other half to the use of the United States.1567
A series of sheets containing tabulated information has been held not to be entitled to protection as charts but only as a book.1568 An engraving or cut contained in a book or volume will not be protected as a cut unless it is separately copyrighted as such.1569
III. Dramatic or musical compositions:1570 without the consent of the proprietor.
1. Publicly to perform or represent.
The owner’s remedies are:
1. Damages not less than $100 for the first, and not less than $50 for every subsequent performance.
2. If done wilfully and for profit it is a misdemeanour, and the offender may on conviction be imprisoned for a period not exceeding a year.
3. Injunction.
Damages cannot be recovered in a suit in equity, the remedy being limited to an injunction and profits.1571
Account of Profits.—The right to an account of profits is an equitable remedy, and incidental to the statutory right, although not expressly conferred by the statute.1572
If a work is in part piratical and in part innocent, then if the piratical part can be distinctly separated it will be separately condemned and the profits apportioned.1573 If the piratical matter is so mixed up with the rest that it cannot be distinctly separated, the profits awarded will be the whole profits on the sale of the book.1574 When the defendant has sold a book twice, having bought it back second-hand, the profits include the profits on both sales.1575 The cost of producing copies which the defendant did not sell cannot be estimated in reduction of profits.1576 There will be no decree for profits unless there are means of determining in a reliable manner what sum the defendant received for books.1577
Damages.—Damages may be awarded in lieu of or as supplementary to an account of profits. The measure of damages is the diminution in the plaintiff’s sales due to the publication of the defendant’s book.
The minimum statutory damages given for infringement of performing rights are remedial but not penal, and the strict rules of evidence in criminal cases do not apply.1578 The penalties given for infringement of maps, &c., are of a penal nature.1579
In respect of maps, musical and dramatic compositions, works of art, &c., there is no right of action to recover damages merely as such; the remedy is limited to the prescribed forfeiture and penalties.1580
Penalties.—Penalty for “each sheet” does not mean for each copy. Where a large number of lithograph copies of a photograph were printed on one sheet it was held that only one penalty was recoverable for the whole sheet.1581 Cutting up or binding the sheets does not increase nor diminish the number of the sheets.1582 Only those sheets which are “found in the defendant’s possession” are penalised.1583 They must be alleged and proved to have been actually discovered in the defendant’s possession before the bringing of the action,1584 and not merely be found by the jury to have been in his possession. They need not necessarily have been found by the plaintiff or any one acting on his behalf.1585 An employee who holds possession for his master is not liable in penalties.1586 Penalties cannot be recovered in a suit in equity.1587
Forfeiture.1588—It seems doubtful whether the forfeiture of copies of a book under section 4964 of the Revised Statutes can be enforced unless the whole book is copied. It was held under the Act of 1831 that they could not,1589 but I doubt if this is sound.
The statutes give no right of action to the proprietor of a map, photograph, dramatic or musical work, artistic work, &c., to recover from an infringer the value of copies which have passed from his possession.1590
Injunction.1591—A preliminary injunction is granted, but only in a plain case,1592 to stay further damage. The Court will always consider which party is likely to suffer most from the erroneous granting or refusing of an injunction. In doubtful cases an injunction will not be granted simpliciter, but the defendants may be required to keep an account and give a bond to answer damages.1593 An injunction will go at the hearing without reference to the question of special damage.1594
Who is Liable.—The sale of a play with a view to unauthorised representation makes the seller a joint infringer of the performing right.1595 The manager of a company is not personally liable for an infringement made by the company without his knowledge and against his express instructions.1596 A company is liable in penalties as well as an individual.1597 The printer and publisher of a piratical book are liable equally with the writer.1598 One who procures an infringement to be made is liable.1599
An employer whose servants or agents infringe the copyright of others is undoubtedly liable in damages for the wrongful acts of his servants done in the course of their employment. Thus one who compiles a directory is responsible for the piratical acts of his canvassers, even although they acted contrary to his express instructions.1600 But it has been held that a man is not liable for forfeitures or penalties on account of acts done without his knowledge or consent by his servants or agents in his employment. When an agent had full authority to advertise his principal’s teas as he thought fit and pirated some election statistics in doing so, it was held that his principal could not be liable in forfeitures or penalties for acts done in his absence and without his authority or knowledge.1601 In another case it was held that the proprietor of a newspaper was not responsible in forfeiture or penalties for a piratical copy of a map which appeared in his newspaper during his absence from the management and control.1602 It will be observed that if these cases are sound the proprietor of the copyright in a map, &c., or artistic work has no remedy in either penalties or damages against the proprietor of an infringing publication unless he can show that the piratical matter was inserted with his knowledge or consent. This follows from the above decisions that the specific penalties constitute the only remedy by way of damages which the proprietor of these works can recover.1603
Limitation of Action.—No action can be maintained in any case of forfeiture or penalty under the copyright laws unless the same is commenced within two years after the cause of action has arisen.1604 This includes all claims, not only those for forfeiture and penalty so-called, but for damages under Revised Statutes, sec. 4964, in respect of books.1605
Acquiescence.—Mere delay on the part of the plaintiff in pursuing his remedy is no defence to an action for infringement.1606 A preliminary injunction may be refused on the ground of delay. The remedy on the final hearing will not be barred by laches or acquiescence, unless it is tantamount to fraud for the plaintiff to insist on his legal rights.1607 A right may perhaps be abandoned by allowing numerous members of the public to exercise it without licence or objection.1608
Pleading.—In pleading, the plaintiff does not have to allege the facts which make him proprietor.1609 If it is disputed, it is for the defendant to allege and prove facts to the contrary.1610 The plaintiff, however, must allege specifically a compliance with the statutory formalities, although he need not allege that publication took place within a reasonable time after the deposit of the title.1611
In all actions arising under the laws respecting copyrights, the defendant may plead the general issue, and give the special matter in evidence.1612
Penalties for affixing False Notice.—Every person who shall insert or impress a copyright notice, “or words of the same import, in or upon any book, map, chart, dramatic or musical composition, print, cut, engraving or photograph or other article, whether such article be subject to copyright or otherwise, for which he has not obtained a copyright, or shall knowingly issue or sell any article bearing a notice of United States copyright which has not been copyrighted in this country; or shall import any book, photograph, chromo or lithograph, or other article bearing such notice of copyright, or words of the same purport which is not copyrighted in this country, shall be liable to a penalty of $100, recoverable one-half for the person who shall sue for such penalty, and one-half to the use of the United States.”1613
This section was amended in 1891 and again in 1897. It now reads as above. Before 1897 the penalty was not recoverable from one who sold copies, knowing them to contain a false notice, unless he had made the book or caused the notice to be inserted.1614 Before 1897 also there could be no conviction unless the article on which the false notice was impressed was a copyrightable article.1615
The penalty is not recoverable for each copy, but for each issue. Where chromos were struck off in large numbers for advertising purposes, each separate batch being printed with a different trade name for different customers, it was held that the penalty was recoverable on each batch.1616 For a notice to incur the penalty as a false notice, it is not necessary that it should have been printed as directed by the Acts. It will be subject to the penalty even although printed in another part of the book.1617 Rough prints of a picture made for the purpose of advertisement bore a false notice, and were held to have incurred the penalty.1618 It is not unlawful to impress a notice of copyright on a rough copy of a copyright picture, even although such copy is not separately copyrighted.1619 Liability will not attach unless the notice contains the essentials of a sufficient copyright notice, viz. “name,” “claim of exclusive right,” and “date when obtained.” Thus where the date was omitted no penalties were recovered.1620 Any one who causes a false notice to be impressed is equally liable with the person who himself impresses it.1621
Importing Books Printed Outside the United States.—If copyright has been secured in the United States, importation of any book, chromo, lithograph, or photograph, or any plates of the same, not made from type set, negatives, or drawings on stone made within the limits of the United States,1622 is prohibited, either with or without the consent of the owner of the copyright.
Except—
1. Works printed or manufactured more than twenty years at the date of importation.1623
2. Books and pamphlets printed exclusively in languages other than English.1624
3. Books and music in raised print used exclusively by the blind.1625
4. Works imported by authority for the use of the U. S. or the Library of Congress.1626
5. Books, maps, lithographic prints and charts specially imported, not more than two copies in any one invoice, in good faith, for the use of societies, schools, colleges, &c.1627
6. Books imported for use and not for sale subject to payment of duty, and not more than two copies at any one time.1628
7. Newspapers and magazines, if they contain no infringement of U. S. copyright.1629