71 FEDERAL REPORTER.
BOLLES v. OUTING CO., Limited. (Circuit CQurt of Appeals,
Circuit. January 13, 1M97.)
The provision of Rev. St. U. S. § 4005, that anyone who unlawfully copies, prints, publishes, or imports a copyrighted photograph shall forfeit to the proprietor one dollar for every sheet thereof "found in his possession," applies only to sheets shown to have been in fact discovered in the defendant's possession prior to the bringing of the suit. ,
The words, "Copyright 93, by Bolles, Brooklyn," printed on the face of a photograph, are sufficient as the notice of copyright required by Rev. St. U. S. §. 4002, especially where it is not shown that there is another photographer of the name of "Bolles."
SAME-Ql:ESTION FOR JURY.
"Whether the copyright notice tion for the jury.
a photograph is sufficiently legible is a ques-
Whether a photograph is an original work of art, or a mere manual reproduction of subject-matter, is a question of fact.
In Error to the Circuit Court of the United States for the South.. ern District of New York. E. Lewinson and Wells, Waldo & Snedeker, for plaintiff in error. John R. Abney, for defendant in error. 'Before WALLACE and SHIPMAN, Circuit Judges. WALLACE, Circuit Judge. Upon this writ of error, brought by the plaintiff in the court below to review a judgment for the defend.. ant, error is assigned of the rulings of the trial judge in excluding evidence offered by the plaintiff, and in instructing the jury to find a v.erdict for the defendant. The action was brought, under section 4965 of the United States Revised Statufes, to recover penalties for the violation of a copyrighted photograph. The defendant was the proprietor of "The Outing," a monthly magizine published at the city of New York. The complaint alleges that the defendant printed in said magazine, and sold, without the plaintiff's consent, 40,000 copies of the photograph, whereby there accrued to the plaintiff, pursuant to the statute, penalties in the sum of $40,000. Upon the trial it was shown that the defendant's magazine was printed by the Fless & Ridge Printing Oompany, a concern employed by the defendant to do its printing. The plaintiff offered to prove by a witness the number of copies of the issue containing the photograph which were printed by the Fless & Ridge Oompany and delivered into the possesl3ion of the defendant. The evidence was objected to upon the ground of its incompetency, the statute making the copies found in the possession of the defendant the measure of the penalty, a.nd not the copies published by it. The objection was sustained, and the plaintiff duly excepted. The statute declares th'at if "any person, after the recording of the title of any .. .. photograph,·" .. ... as provided in this chapter, shall, within the term limited, and without the consent of the proprietor of the copy-right first obtained in writing,
BOLI.ES V. OCTl!\G CO.
Fed. Cas. No. 4,215.
77 FEDERAL REPORTER,
that a large number of sheets of the copy-righted photograph, published without the consent of the plaintiff, had been found in the store of Sharpless & Sons, in which the defendant was employed in the character of a business manager. Evidence was given showing that Thornton conceived the idea of using the photographs in the business of Sharpless & Sons, and ordered the copies to be made. The court held that upon those facts the court below erred in instructing the jury that the photographs were to be regarded as in the possession of Thornton, saying:
"V"-e do not see how Mr. Thornton, merely as an employ(!, although he may have had a principal place in that establisl'ment, could be said to have had the possession of these prints when they were found by the plaintiff in the store of Sharpless & Sons."
It was contended in the case that the words "found in his possession" should be' construed as referring to the finding of the jury, and that the expression merely meant that, where the sheets are by the' finding of the jury to have been at any time in the possession. of the person who committed the wrongful act, such person is liable to the penalty. Referring to this contention the court said:
"vVe, however, think that the word 'found' means that there must be a time lwfore the cause of action accrues at which they are found in the possession of the defendant."
The observation can only be read as intended to reject the construction contended for, and as. expressing the view of the court that it is not enough to show that the sheets have been in the posthe defendant,but it must be shown that they were acsession tually found there. As the point was not necessary to the decision of the case, the observation, strictly speaking, was obiter; but the precise point was presented for consideration, and was considered, and the observation must be accepted as the deliberate opinion of the court. We are of the opinion that the section means to affix the penalty only when the sheets are shown to have been discovered or detected in the possession of the defendant prior to the bringing of the suit. 'Ole statute is apparently framed to give the party whose copyright has been invad.ed complete relief by an action in which he can procure a condemnation of the infringing sheets, and at the same time recover, by way of compensation, a penalty for every sheet which he is entitled to condemn. The words "found in his possession" aptly refer to a finding for the purposes of forfeiture and condemnation. The remedy by condemnation and forfeiture is only appropriat-e in a case where the property can be seized upon process; and where, as here, the forfeiture declared is against property of the "offender," it is only appropriate when it can be seized in his hands. The section contemplates two remedies, enforceable in a single suit, each of which depends upon the same state of facts. The aggrieved party may, at his election, pursue either one or both remedies. But it does not contemplate a recovery of penalties, except in respect to the sheets which can be condemned. We regret to feel constrained to place such a narrow interpretation upon the
BOLLES V. OUTING CO.
statute, but it cannot be given a more liberal one, consistently with the language used. We conclude that the evidence was correctly excluded. The trial judge directed a verdict for the defendant upon the ground that the plaintiff had not complied with the requirements of section 4962 of the United States Revised Statutes. That section provides th'at no person shall maintain an action for the infringement of his copyright in a photograph unless he shall have given notice of his copyright by inscribing upon the face or front of the copies of every edition published the words "Entered according to act of congress in the year - - - by A. B. in the office of the librarian of congress, at Washington." The notice upon the plaintiff's copies was as follows: "Copyright 93, by Bolles, Brooklyn." The trial judge ruled this notice to be defective, because it omitted to give the first name or initials of the plaintiff, or to state the year the copyright was entered. The first objection to the sufficiency of the notice is met by the case of Lithographic Co. v. Sarony, 111 U. S. 53, 4 Sup. Ct. 279. In that case the court, after observing in its opinion that "the object of the statute is to give notice of the copyright to the public, by placing upon each copy, in some visible shape, the name of the autIior, the existence of the claim of an exclusive right, and the date at which this right was obtained," held that a notice as follOWS, "Copyright, 1882, by N. Sarony," was a sufficient compliance. The court said:
"It clearly shows that a copyright is asserted, the date of which is 1882; and, if the name 'Sarony' alone was used, it would be a sufficient designation of the author, until it is shown that there is some other Sarony. vVhen, in addition to this, the initial letter of the Christian name, Napoleon, is also given, the notice is complete."
The general rule is that in legal proceedings, and in notices prescribed by law, the full name of a party must be given, for the purposes of identification, and a designation by the initial letter or letters of the Christian name will not suffice. In the Sarony Case the court regarded the use of the initial as superfluous, and the use of the surname as sufficient, when it did not appear that the public were likely to be misled by the omission of the full name. In the present case the notice not only gave the author's surname, but also his residence; and it appeared by the evidence that the city of his residence was also his place of business, and it did not appear that there was any photographer there or elsewhere of the name of Bolles. The second objection to the notice seems to be less substantial than the first. Concededly, if it had read "1893," instead of "93," the notice would have been sufficient. Could any person possibly be misled by the omission of the figures denoting the century? Photo· graphs are a: production of the present century, and no one would imagine that the figures "93" meant "1793," or any earlier time. they could not denote lD93, or a future time, because they are the statement of an antecedent date, the time when the copyright was recorded in the office of the librarian of congress. We conclude, therefore, that the trial judge erred in ruling that
77 FEDERAL REPORTER.
tile, noti£1e was and in directing a verdict for 1;hedefend'jUlt upoll that ' , It bas been urged in behalf of the defendant in error tbat, if the of court below proceeded upon erroneous reasons, neverthl:lessthe Judg'Qlent should be affir'Qled, because no original, intellectual conception was involved in the production of the original photograph, and also oocause the notice inscribed upon the copies was so carelessly and ina,dequately printed as not to, be visible to the eye. Whethera photograph is a 'Qlere 'Qlanual reproduction of subject-matter, or an original work of art, is a question of fact; and there is certainly sufficient evidence in the present record to justify, if not to compel, the conclusion that the one in question embodies an exceptional degree of artistic conception and expression. It required the photographer to select and utilize the best effects of light, cloud, water, and general surroundings, and combine them under favorable conditions for depicting vividly and accurately the view of a yacht under sail, Whether the notice was legibly inscribed upon the copies was also a question of fact for the jury. The judgment is reversed.
CEREA.LINE MA.NUF'G CO. v. BATES et aL (Circuit Court,
D. Indiana. January 2, 1897.)
A patent for a new food product from maize, which includes hulling, granulating, and steaming, without cooking, and then pressing and drying the particles, by "warm rolling," so as to reduce them to "dry, hard flakes," does not disclose that such a degree of heat is to be applied or developed between the rolls as to convert starch into dextrine; nor is this language sufficient to show that the invention consists in so adjusting and crowding the rolls together as to develop by contact the necessary heat.
The Gent process and product patent, No. 223,847, for improved alimentary products from corn, is void for want of novelty and invention.
This was a bill in equity by the Cerealine Manufacturing Company against Hervey Bates and Hervey Bates, Jr., for alleged infringement of a patent for a food product from corn.
This is a suit to restrain the alleged infringement of letters patent No. 223,847, dated January 27, 1880, granted to Joseph F. Gent, assignor to himself and Gaff, Gent, and Thomas, for improved alimentary products from corn. The bill of complaint,' which is in the usual form, was filed September 30, 1893. The answer denies infringement, and alleges that the patent in suit is invalid for want of patentable invention, for want of novelty, and because the specification of the letters patent does,not set forth a complete or useful patentable invention, nor contain a full, clear. and exact description of the alleged invention, and of such manner of making or using the same sufficient to enable a person skilled in the art to make and use the alleged invention. It puts in issue substantially all the allegations of the bill except the granting of the patent, and it sets up a large number of prior patents and publicntions as exhibiting, in all substantial and material respects, thl' alleged invention upon wbich the complainant's patent purports to rest. Tbe file wrapper, in evidence, shows that, in his original application for a patent