Springer Lithographing Co. v. Falk

LACOMBE, Circuit Judge. The plaintiff in error has assigned error in 12 particulars, but, as several of them were not argued to this court, and are not referred to on the brief, it may be assumed that they are abandoned, and they need not be discussed. 1. The first assignment of error discussed in the brief is to the admission in evidence of a copyrighted photograph of Miss Pauline Hall. The circumstances under which such photograph was admitted are these; The defendant’s lithograph, while presenting in face, pose, and other details resemblances so close to plaintiff’s photograph as to satisfy the jury that it had been copied from it, differed from it in the shape and general appearance of the hat. In the photograph of Miss Pauline Hall there was shown a hat identical with that in defendant’s lithograph. The defendant’s contention was that the lithograph was an original representation of another actress, Mrs. Nelson; the plaintiff insisted that it was not taken from Mrs. Nelson, but was a composite reproduction, in part of Miss Russell’s photograph, in part of Miss Hall’s. The issue for the jury was whether the defendant had "copied, either in whole or in part, or by varying the main design with intent to evade the law,” the copyrighted photograph of Miss Russell which was the subject of the action. To that issue it was immaterial where defendant had obtained suggestions for any variances from the original, and the photograph of Miss Hall was therefore [711] irrelevant testimony. But its admission was not. error calling for a reversal, unless such admission can be fairly assumed to have operated upon the jury’s mind in some way to the prejudice of defendant. It shows on its face that it was made by plaintiff, and copyrighted by him; and defendant’s counsel contends that “the object of introducing it in evidence was to prejudice the jury by giving them the impression that the parts of the lithograph which it was conceded were not copied from the photograph in suit were stolen from another copyrighted photograph of defendant, which was not in suit.” Were there no other evidence touching Miss Hall’s photograph than is above set forth, there would be force in this contention. But it further appeared in proof that, before the execution of the lithograph, defendant had expressly asked for and received from plaintiff a license in writing to reproduce three specified photographs of Miss Hall, including the one (No. 14) whose admission in evidence is complained of. It was apparent, therefore, upon the proof, that defendant had not stolen the design for the hat; that it had an undoubted right to reproduce it, either in connection with Miss Hall’s face or otherwise; and defendant might, had it chosen to ask for it, have had a charge from the court to that effect. We fail, therefore, to see wherein the admission of Miss Hall’s photograph in evidence operated to the prejudice of defendant. 2. Defendant assigns it as error that, on cross-examination of the plaintiff, the court excluded this question: “Q. As a fact, has the production of Ho. 2 or Ho. 4 [the lithographs complained of] interfered with you in the sale of this photograph?” This contention is unsound. The action is for a statutory penalty of one dollar for every copy found in defendant’s possession. “The damage to the plaintiff is not the test of the defendant’s liability, and the penalty is to be paid even if there is no actual damage.” Chatterton v. Cave, 3 App. Cas. 489. 3. Upon the photograph of Miss Russell there appears the copyright notice required by the statute, and plaintiff testified that it was affixed to every copy printed and published by him. The evidence of defendant shows that its lithograph was copied from a reversed lithograph, undoubtedly a copy of the original, but bearing, as defendant claims, no proper copyright notice, the only mark on it being, “Taken from a copyrighted photo by Falk, of New York.” This reversed lithograph was not printed or published by Hie plaintiff, but by a person to whom he had given a license to reproduce the photograph. Defendant contends that, as to a lithograph made and published with plaintiff’s consent and license, but without the proper copyright notice upon it, he stood in exactly the same position as though he had made and published it himself, and was barred from claiming a penalty from any one copying it. To this assignment of error it is sufficient to say that the point was not raised in the court below. The exceptions on which defendant relies were to the court’s refusal to direct a verdict for the defendant, on the ground that it never was in possession of [712] tlie original photograph, and to the refusal to instruct the jury that “even if the jury found defendant’s lithographs were copied from the lithographic copy, or varied copy, of the photograph, no infringement has been made out.” In view of the fact that the case was mainly tried on the question whether or not there was a substantial similarity, and that the exception last quoted, by its very phraseology, referred to the question of infringement, rather than to plaintiff’s forfeiture of a right to recover for that infringement, there was a failure to apprise the trial judge of the point now raised. 4. It is further assigned as error that the court refused to charge, as requested by defendant: “To be an infringement of plaintiff’s photographs, the defendant’s lithograph must be1 substantially a copy of it, — that is, that the two are substantially identical.” The court charged the jury that the only question before them was “whether these lithographs are copies or substantial copies, or whether the ideas, pose, and characteristics of the original photograph were substantially reproduced by the defendant. It is not necessary that the copies should be Chinese copies. You will observe that the statute says: Tf the infringer shall copy, either in whole or in part, or by varying the main design with intent to evade the law.’ As I said, it is not necessary that the copies should be exact copies. It is necessary that the infringer should appropriate a substantial portion of the distinctive ideas and characteristic features of the original photograph to make up its lithographs. * * i:' Did the lithographs contain the main design, the substantial ideas, the distinctive characteristics of the original photograph, only so far varied as to intend to evade the law without actual evasion? * * * If defendants have reproduced, in substance and effect, the general characteristics of the original, though some minor particulars are intentionally avoided, then there is an infringement.” This was all the defendant was entitled to, and the exception to a refusal to charge as requested is unsound. Judgment affirmed, with costs.