Snow v. Laird

WOODS, Circuit Judge, after making tlie foregoing statement, delivered tlie opinion of tlie court The evidence does not show tins t the plaintiff purposely entrapped the defendants into the use of the copyrighted picture, instead of the purchased photograph which they had acquired an unrestricted right to reproduce. That they were entrapped, and were innocent, of intentional wrong, is clear, and, while tlie chief blame seems to belong to the engravers, Zeese & Co., yet the plaintiff contributed to the result — made it possible — by taking a copyright on the photograph so slightly changed that the difference was likely to be overlooked; and her attempt, under the circumstances, to exact of the defendants the statutory penalty of one dollar for each copy of the picture printed by them, or found in their possession, is apparently unconscionable,'and should be allowed to succeed only upon strict proof. That the statute is a penal one does not admit of discussion. Thornton v. Schreiber, 124 U. S. 612, 8 Sup. Ct. 618, 31 L. Ed. 577. The court below seems to hare considered that tlie defendants, “being entirely innocent of any intention to appropriate a copyrighted article, but, on the contrary, acting upon a photograph which was furnished them by the plaintiff or her agent, and put out and announced for the public,” were not, under the circumstances, responsible. Whether that is a proper construction of the statute we need not determine, bnt the declaration, it is to be observed, was drawn on that theory, it being alleged in effect that the defendants knowingly infringed the copyright. Of that averment there is not only no evidence; the contrary is demonstrated. In another and more important particular there seems to be a lack of evidence, or rather a material variance between the averment and the proof. Copyright upon a photograph is alleged; but the picture in evidence, in so far as it differs from the photograph first produced and made public property, is an etching, and not a photograph. The original picture was a photograph, and represented a,n 816 actual subject, of which the plaintiff was the designer or author. The copyrighted picture represents nothing that ever had an objective existence. If the cane represented ever existed, it was no part of the scene or group represented by the other parts of the picture. It was not in the hand of the young man when, with the other parts of the design, he was photographed. So far as the evidence shows, it is an ideal cane, which, was made objective and capable of being photographed by being etched upon or into the negative plate of the original photograph; but the photographs produced by the use of a negative are not photographs of the negative, but of the original objects, the images of which by means of the negative are made reproducible. Photographic negatives are produced by processes totally unlike etching. Knight, Am. Mech. Diet, titles “Etching” and “Photography.” Etching is a distinct art, much older than photography, and, if etching upon a negative has become a recognized part of the photographic art, the proof does not show it, and the fact is not one of which the court will take judicial cognizance. If, under section 4952, it was competent for the plaintiff to have taken a copyright upon the etched plate as a negative, the infringement thereof must have consisted in duplicating the plate; but she obtained a copyright upon the picture, calling it a “photograph,” and not upon the negative; and in so far as the picture differs from the original photograph it is not, strictly speaking, a photograph; and if, in any sense, it is a work of art, the skill was in the etching of the cane into the negative. That done, the subsequent printing of the picture was mechanical or manual merely, and the result not copyrightable. See Lithographic Co. v. Sarony, 111 U. S. 53, 4 Sup. Ct. 279, 28 L. Ed. 349. The averment that the plaintiff was the author, designer, and proprietor of the picture is not proven. She was the designer or author, and presumably the proprietor, of the original photograph, but in respect to the copyrighted picture the evidence is that, “after producing the photograph, * * * she caused to be etched into the negative. * * * a cane in the left hand of the reclining male figure,” and that “the only two prints made from said negative” she forwarded to the librarian of congress for the purpose of obtaining the copyright. This may mean that she directed the cane to be put in the left hand of the reclining figure, but of what style and size it should be, in what .position it should appear to be held, and whether it should represent an actual or an ideal object, or, in other words, all that could be deemed to be of artistic merit in the work, so far as appears, the etcher was left to determine. See, in the case last cited above, comments on Nottage v. Jackson, 11 Q. B. Div. 637. Other than as stated, there is no evidence that the plaintiff was ever the proprietor of the etched plate, or of the pictures produced therefrom. The evidence is more direct that the Werner Company in some way had become the proprietor. The final consideration, however, on which the decision below was based is perhaps the most satisfactory, namely, that, having given the original photograph to the public, it was beyond the power of the plaintiff to obtain a valid copyright by so slight an alter 817 ation as that which was made. The change was colorable merely, was not made in good faith for the purpose of producing a new work of art, but in an attempt to reclaim what had been voluntarily and irrevocably surrendered. To declare that by such a change a photograph, engraving, or other style of picture, which has become public property, may be made a proper subject of copyright, would be to encourage deceit and extortion in a maimer impressively illustrated by the facts of this record. Infringement of a valid copyright cannot be evaded by slight and merely colorable changes in a picture, and, as said by the court below, the rule must work both ways. The judgment below is affirmed.