*101 02 this both parties acquiesced. In addition, the District Court found that there were seven cases of infringement and awarded $10 as nominal damages for each case-$70 (Submitted Nov. 15, 1918. Decided March 3, in all. The plaintiff appealed, insisting that 1919.) No. 50. 1. COPYRIGHTS FRINGEMENTS. for each case it was entitled under the copyright law to an award of not less than $250. The Circuit Court of Appeals sustained that contention, but held that what the District Court regarded as seven cases was only one, and directed that the decree be modified by awarding $250, instead of $70, as damages. 233 Fed. 609, 147 C. C. A. 417. A writ of certiorari granted on the plaintiff's petition brings the matter here. Within Copyright Act (Comp. St. §§ 95179524, 9530-9584), providing in section 25 that one who infringes "copyright in any work" shall pay damages, or in lieu thereof, stated sums, in discretion of court, the publication of six copyrighted pictorial illustrations, one in each of six issues of a newspaper, as part of an advertisement, constitutes six cases of infringement. [1, 2] Whether there were seven cases of infringement or only one, and whether the damages should have been assessed at not less than $250 for each case, are the questions to be considered. The facts bearing on the solution of these questions are as follows: INFRINGEMENT (249 U. S. 100) L. A. WESTERMANN CO. v. DISPATCH 2. COPYRIGHTS 87 FRINGEMENTS. Within Copyright Act (Comp. St. §§ 95179524, 9530-9584), providing in section 25 that one who infringes "copyright in any work" shall pay damages, or in lieu thereof, stated sums, in discretion of court, the publication in a newspaper of the same copyrighted pictorial illustration in two different advertisements, printed at different times, constitutes two cases of infringement. INFRINGEMENT The plaintiff designs and produces pictorial illustrations of styles in women's apparel and supplies the same to dealers in such apparel for use in advertising their goods. All the illustrations are separately copyrighted and all authorized copies carry the required copyright notice. The plaintiff grants exclusive licenses to use the illustrations for limited periods, each license being restricted to a particular locality. The dealer obtaining the license pays a fixed charge for it. Ordinarily the fact that the license is exclusive makes it attractive, serves as an incentive for paying the charge and is a helpful feature of the plaintiff's business. But when infringers use the illustrations the strength of that feature diminishes and the plaintiff's business suffers accordingly. At the time of the infringing acts in question the Moorehouse-Martens Company, a dealer at Columbus, Ohio, had an exclusive license from the plaintiff covering the use of the illustrations in that locality. The defendant publishes at Columbus a daily newspaper, each issue comprising as many as 30,000 copies widely circulated. Without the consent or authority of the plaintiff or its licensee the defendant reproduced and published in its newspaper six of the plaintiff's copyrighted illustrations. They were published separately, each in a *Mr. Curtis C. Williams, of Columbus, Ohio, distinct issue and in all the copies. Five for petitioner. were published once and the other one twice, the illustrations being used in each instance as part of an advertisement by some competitor in trade of the plaintiff's licensee. These two advertisements having the same 1 3. COPYRIGHTS 87 AMOUNT OF RECOVERY COURT. Within Copyright Act (Comp. St. §§ 95179524, 9530-9584), providing in section 25 that one who infringes copyright in any work shall be liable in damages, or in lieu thereof, such damages as to court may seem just, but that such damages shall not exceed $5,000 or be less than $250, court properly awarded for each infringement of copyrighted pictorial illustrations $250; the court's discretion being controlled by the maximum and minimum clause. INFRINGEMENT On Writ of Certiorari to the United States Circuit Court of Appeals for the Sixth Circuit. Suit by the L. A. Westermann Company against the Dispatch Printing Company. To review a judgment of the Circuit Court of Appeals (233 Fed. 609, 147 C. C. A. 417), modifying a decree for complainant, a writ of certiorari was allowed. Decree reversed. Messrs. Smith W. Bennett, of Columbus, Ohio, and Luther Day, of Cleveland, Ohio, for respondent. *Mr. Justice VAN DEVANTER delivered illustration were by different advertisers the opinion of the Court. and were separated by an interval of 26 days. This was a bill for an injunction against future infringement of certain copyrights and to recover damages for past infringement. The injunction was granted and in The record, while showing that the plaintiff was damaged by the infringing publications, does not show the amount of the damages, a matter which is explained by un For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes •103 105 disputed testimony to the effect that the dam- | in the singular, not the plural. Each copyages could not be estimated or stated "in right is treated as a distinct entity, and the dollars and cents, or in money." On this infringement of it as a distinct wrong to be point the Circuit Court of Appeals aptly redressed through the enforcement of this liasaid: bility. Infringement of several copyrights is not put on the same level with infringement of one. On the contrary, the plain import of the statute is that this liability attaches in respect of each copyright that is infringed. Here six were infringed, each covering a different illustration. Thus there were at least six cases of infringment in the sense of the "The plaintiff's damages rested in the injury to his Moorehouse contract, and in the discour agement of and the tendency to destroy his system of business. To make any accurate proof of actual damages was obviously impossible." statute: Was there also another? The il Whether the defendant made any profit from the publications does not appear. In its bill the plaintiff asked for what are termed statutory damages in lieu of actual dam-lustration covered by one of the copyrights was published on two separate occasions, ages and profits. each time in a different advertisement. There was no connection between the two advertisements other than the inclusion of the same illustration in both. Each was by a different advertiser and was published at his instance and for his benefit. The advertisers were not joint, but independent, infringers, neither having any connection with what was done by the other. By publishing their advertisements, the defendant participated in their independent infringements. In these circumstances, we think the second publication of the illustration must be regarded as another and distinct case of infringement. Whether it would be otherwise if that publication had *been merely a continuation or repetition of the first, and what bearing the "third" and "fourth" subdivisions of section 25, before quoted, would have on the solution of that question, are matters which we have no occasion to consider now. They are mentioned only to show that no ruling thereon is intended. The copyright statute, Act March 4, 1909, c. 320, 35 Stat. 1075 (Comp. St. §§ 9517-9524, 9530-9584), gives to one who copyrights a pictorial illustration the exclusive right to print, reprint, publish, copy and vend the same (sections 1 and 5), and provides (section 251) that one who infringes "the copyright in any work" so protected shall be liable, among other things * "(b) To pay to the copyright proprietor such damages as the copyright proprietor may have suffered due to the infringement, as well as all the profits which the infringer shall have made from such infringement, or in lieu of actual damages and profits such damages as to the court shall appear to be just, and in assessing such damages the court may, in its discretion, allow the amounts as hereinafter stated, but in the 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, and such damages shall in no other case exceed the sum of five thousand dollars nor be less than the sum of two hundred and fifty dollars, and shall not be regarded as a penalty. * * * "First. In the case of a painting, statue, or sculpture, ten dollars, for every infringing copy made or sold by or found in the possession of the infringer or his agents or employés; "Second. In the case of any work enumerated in section five of this act2 except a painting, statute, or sculpture, one dollar for every infringing copy made or sold by or found in the possession of the infringer or his agents or employees; "Third. In the case of a lecture, sermon, or address, fifty dollars for every infringing delivery; "Fourth. In the case of a dramatic or dramatico-musical or choral or orchestral composition, one hundred dollars for the first and fifty dollars for every subsequent infringing performance; in the case of other musical compositions, ten dollars for every infringing performance." The statute says that the liability thus defined is imposed for infringing "the copyright in any" copyrighted "work." The words are 1 For a subsequent amendment of this section see Act Aug. 24, 1912, c. 356, 37 Stat. 488 (Comp. St. § 9546). "Prints and pictorial illustrations" are among the copyrightable works enumerated in section 5. We conclude, as did the District Court, that there were seven cases of infringement in the sense of the statute. [3] On the question of the amount of damages to be awarded for each case we are in accord with the Circuit Court of Appeals. Both parties recognize that under the proofs the damages must be assessed under the alternative provision requiring the infringer, in lieu of actual damages and profits, to pay such damages as to the court shall appear to be just, etc. The fact that these damages are to be "in lieu of actual damages" shows that something other than actual damages is intended-that another measure is to be applied in making the assessment. There is no uncertainty as to what that measure is or as to its limitations. The statute says, first, that the damages are to be such as to the court shall appear to be just; next, that the court may, in its discretion, allow the amounts named in the appended schedule, and finally, that in no case shall they be more than $5,000 nor less than $250, except that for a newspaper reproduction of a copyrighted photograph they shall not be more than $200 nor less than $50. In other words, *107 108 the court's conception of what is just in the particular case, considering the nature of the copyright, the circumstances of the infringement and the like, is made the measure of the damages to be paid, but with the express qualification that in every case the assessment must be within the prescribed limitations, that is to say, neither more than the maximum nor less than the minimum. Within these limitations the court's discretion and sense of justice are controlling, but it has no discretion when proceeding under this provision to go outside of them. Apart from the natural import of its words, the history of the provision makes strongly for this view. An early statute required the infringer of a copyright in a dramatic composition to pay such damages "as to the court shall appear to be just," but "not less than" a prescribed amount. Act Aug. 18, 1856, c. 169, 11 Stat. 138; Act July 8, 1870, c. 230, § 101, 16 Stat. 214. This statute became section 4966 of the Revised Statutes. A later statute provided that the recovery for infringing a copyright in an engraving should not be less than $250 nor more than $10,000, and for infringing a copyright in a photograph of an object other than a work of art should not be less than $100 nor more than $5,000. Act March 2, 1895, c. 194, 28 Stat. 965. In 1909, when the copyright statutes were revised, these provisions, and others without present bearing, were brought together in the "in lieu" provision now under consideration. True, they were broadened so as to include other copyrights and the limitations were changed in amount, but the principle on which they proceeded that of committing the amount of damages to be recovered to the court's discretion and sense of justice, subject to prescribed limitations-was retained. The new provision, like one of the old, says the damages shall be such "as to the court shall appear to be just." Like both the old, it prescribes a minimum limitation and, like one, a maximum limitation. "It is evident that in many cases it would be quite difficult to prove the exact amount of damages which the proprietor of a copyrighted dralawful production by another, and yet it is also matic composition suffered by reason of its unevident that the statute seeks to provide a remedy for such a wrong and to grant to the proprietor the right to recover the damages which he has sustained therefrom. "The idea of the punishment of the wrongdoer is not so much suggested by the language used in the statute as is a desire to provide for the recovery by the proprietor of full compensa tion from the wrongdoer for the damages such proprietor has sustained from the wrongful act of the latter. In the face of the difficulty of determining the amount of such damages in all cases, the statute provides a minimum sum for a recovery in any case, leaving it open for a larger recovery upon proof of greater damage in those cases where such proof can be made. The statute itself does not speak of punishment or fered by the wrongful act. penalties, but refers entirely to damages sufThe person wrongfully performing or representing a dramatic composition is, in the words of the statute, 'liable for damages therefor.' This means all the damages that are the direct result of his wrongful act. The further provision in the statute, that those damages shall be at least a certain the character of the statute and render it a sum named in the statute itself, does not change penal instead of a remedial one. * "Although punishment, in a certain and very limited sense, may be the result of the statute before us so far as the wrongdoer is concerned, yet we think it clear such is not its chief purpose, which is the award of damages to the party who had sustained them, and the minimum *amount appears to us to have been fixed because of the inherent difficulty of always proving by satisfactory evidence what the amount is which has been actually sustained." In Brady v. Daly, 175 U. S. 148, 20 Sup. Ct. 62, 44 L. Ed. 100, which was an action to recover for the infringement of a copyright in a dramatic composition, the first of the earlier provisions-that in section 4966, Rev. Stat. was much considered. The trial court was of opinion that, while the damages were to be such as appeared to it to be just, it could not go below the prescribed minimum; and it made the assessment accordingly. In this court it was contended that in this view *the provision was penal and the action was one to recover a penalty. But the contention was overruled and the judgment affirmed, the court saying (175 U. S. 154, 157, 20 Sup. Ct. 64, 65 [44 L. Ed. 109]): It was after the minimum limitation was thus recognized as of controlling force in the assessment of the damages that the terms of the provision then under consideration were substantially repeated in the "in lieu" provision of the revised act. This hardly would have been done had it not been intended that the limitation should be as controlling there as in the earlier statute. That it was intended to be thus controlling is shown by the reports of the committees on whose recommendation the act was passed. House Report No. 2222 and Senate Report No. 1108, 60th Cong., 2d Sess. In our opinion the District Court erred in awarding less than $250 damages in each of the seven cases, and the Circuit Court of Appeals erred in holding there was only one case instead of seven. Decree reversed. Mr. Justice DAY did not participate in the consideration or decision of this case. *109 Decided March 3, No. 73. 1. EVIDENCE 19-JUDICIAL NOTICE. In a patent infringement suit, judicial notice may be taken of facts that appear abundantly from standard works accessible in every considerable library. The District Court dismissed the bill on the ground of noninfringement. 221 Fed. 644. The Circuit Court of Appeals, without discussing this question, affirmed the decree upon the ground that the patent disclosed no such novel information to the oil-pressing art as warranted a grant of the patent monopoly. 231 Fed. 121, 145 C. C. A. 309. At the conclusion of its opinion the court stated (231 Fed. 125, 145 C. C. A. 309) that, in view of the fact that certain references quoted were not given in evidence, the sending down of the mandate would be deferred for a time to permit of an application for reargument or other form of relief to meet such references. Thereupon a petition for a rehearing was filed in behalf of appellants, which, while not disputing the accuracy of the results disclosed by the court's investigation, insisted that there was error in giving effect to the anticipatory matter thus disclosco-ed, and in "failing to give controlling con sideration to the fact that both of the two claims declared upon are laid not only to a particular woven structure of an oil-press mat, but also to an oil-press mat of such particular woven structure, when its threads are composed of animal hair." The rehear ing was refused, after which the present writ of certiorari was allowed. 242 U. S. 328-INVENTION-OIL PRESS 2. PATENTS MATS. There is in the Werks patents, Nos. 758,574 and 758,575, for oil-press mats, a mere mechanical adaptation of familiar materials and methods, not amounting to invention; it involving no claim of an improvement in the art of weaving, but only the application of that art and a combination of threads of a certain type and character in order to produce a particular result. On Writ of Certiorari to the United States Circuit Court of Appeals for the Third Cir cuit. Suit by Robert F. Werk and others, partners as Robert F. Werk & Co., against F. Thomas Parker and another, copartners as the F. T. Parker Company. Decree for defendants (221 Fed. 644) was affirmed by the Circuit Court of Appeals (231 Fed. 121, 145 C. C. A. 309), and complainants bring certiorari. Affirmed. Mr. T. Hart Anderson, of New York City, 645, 37 Sup. Ct. 239, 61 L. Ed. 543. for petitioners. clusively of long hair derived from animals' tails and manes, which hair is soft and pliable; the warp-threads exceeding the weft-threads in number per square inch, and the weft-threads being thicker than the warp-threads." In the process of obtaining oil from cotton seed, the *seeds, having been cleaned and freed from lint, are hulled and chopped up, the meats being separated from the hulls; the meats are passed through a crusher, next cooked in water, and after this are spread upon an oil-press mat or cloth, the ends of which are folded over to cover the upper sur Petitioners sued respondents in the District Court of the United States for the East-face of the cooked meats. The mat with its inclosed mass of meats is then placed in a press and subjected to a pressure of about 4,000 pounds, which has the effect of expressing the oil through the mat as through a strainer. Messrs. John Weaver and Frederick S. Drake, both of Philadelphia, Pa., for respondents. Mr. Justice PITNEY delivered the opinion of the Court. ern District of Pennsylvania for infringement of two divisional patents, Nos. 758,574 and 758,575, granted April 26, 1904, to Robert F. Werk. Defendants answered denying patentable novelty, and also denying infringement. The patents relate to an oilpress mat or cloth for use in the extraction of cotton-seed oil. The claim in issue under the former patent was for: *132 And in the second patent: "An oil-press mat or cloth consisting of warpthreads and weft-threads, each composed ex For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes One of the patents declares, and the evidence at the hearing indicated, that the highest grade of mat previously in general use was made of camel's hair, and that this was objectionable because of its tendency to *"An oil-press mat or cloth made entirely of pack and felt together when in use to such long animal hair and consisting of warp and an extent as to hinder the free flow of the weft threads, said weft-threads being composed oil, and also because of its want of durabilexclusively of soft, pliable hair and the warp-ity. The use of long animal hair, specifically threads greatly exceeding the weft-threads in horse hair, obviated this difficulty to such number per square inch." an extent as materially to reduce the percentage of oil wasted, as well as the cost of the mat in proportion to the product. Defendants accomplished like results with mats woven from human hair. $133 The Circuit Court of Appeals, while finding that the change from camel's hair to horse-hair mats was sufficient to constitute invention in the art, if this use of horse-hair (Argued Jan. 21, 1919. Decided March 3, 1919.) No. 167. mats was first disclosed by Werk, nevertheless found, from an examination of standard works, that the patentee's use was but a revival of an old and well-recognized use of such mats in the art of oil extraction. Reference was made to the British Encyclopedia, 9th edition, 1884, the Standard Dictionary of 1894, and a multitude of other publications long antedating the application for the patent. (249 U. S. 178) GILCREASE v. McCULLOUGH et al. It is not questioned that these references abundantly showed that the use of hair cloth, and especially horse-hair cloth, in the making of oil-press mats or cloths, was well known in the art long before the patents in suit. [1] Nor is it questioned-indeed, we deem it clear, beyond *question-that the court was justified in taking judicial notice of facts that appeared so abundantly from standard works accessible in every considerable library. Brown v. Piper, 91 U. S. 37, 42, 23 L. Ed. 200; Terhune v. Phillips, 99 U. S. 592, 25 L. Ed. 293. INDIANS 13-ENROLLMENT RECORDS-EF- The enrollment record of Creek citizenship, which Act May 27, 1908, c. 199, § 3, declares shall be "conclusive evidence as to the age" of the citizen, is conclusive only so far as it purports to state age; and giving in years, only, the ages of six members of a family under the same date of enrollment, is not conclusive that it was their birthday; and does not exclude evidence of how much more, less than a year, was the age of one of them. On Writ of Certiorari to the Supreme Court of the State of Oklahoma. Action by Thomas Gilcrease against G. R. McCullough and others. Judgment for defendants was affirmed by the Supreme Court of Oklahoma (162 Pac. 178), and plaintiff brings certiorari. Affirmed. Mr. A. J. Biddison, of Tulsa, Okl., for petitioner. Mr. James B. Diggs, of Tulsa, Okl., for respondents. [2] The burden of petitioner's argument in this court, as in the application for a rehearing in the circuit court of appeals, is that there was nothing in these publications to show that the horse-hair cloth so familiar in the art embodied the "structural characteristics" of the oil-press mats of the patents in suit, referring to the peculiar mode of weaving described in the claims. But at the hearing it was clearly proved, and was conceded to be beyond controversy, that the patents involved no claim of an improvement in the art of weaving, but only the application of that art and a combination of threads of a certain type and character in order to produce a particular result. And this, in our opinion, goes no further than a mere mechanical adaptation of familiar materials and methods, not rising to the dignity of invention. Atlantic Works v. Brady, 107 U. S. 192, 200, 2 Sup. Ct. 225, 27 L. Ed. 438; Penn. R. R. v. Locomotive Truck Co., 110 U. S. 490, 491, 4 Sup. Ct. 220, 28 L. Ed. 222; Hollister v. Benedict Mfg. Co., 113 U. S. 59, 71, 73, 5 Sup. Ct. 717, 28 L. Ed. 901; The only substantial question submitted is Aron v. Manhattan Ry. Co., 132 U. S. 84, 90, this: Did the entry concerning Gilcrease's 10 Sup. Ct. 24, 33 L. Ed. 272; McClain v. age made in the enrollment record of Creek Ortmayer, 141 U. S. 419, 426, 429, 12 Sup. Ct. | citizenship preclude defendant from showing 76, 35 L. Ed. 800; Duer v. Corbin Cabinet that he was actually of age when the lease Lock Co., 149 U. S. 216, 222, 13 Sup. Ct. 850, was executed? The decision of that question 37 L. Ed. 707; Wright v. Yuengling, 155 U. depends wholly upon the construction to be S. 47, 54, 15 Sup. Ct. 1, 39 L. Ed. 64; Olin v. given section 3 of the Act of May 27, 1908, Timken, 155 U. S. 141, 155, 15 Sup. Ct. 49, c. 199 (35 Stat. 312, 313), as applied to the 39 L. Ed. 100; Market Street Ry. Co. v. record. Rowley, 155 U. S. 621, 629, 15 Sup. Ct. 224, 39 L. Ed. 284. Decree affirmed. Mr. Justice BRANDEIS delivered the opinion of the Court. Thomas Gilcrease, a Creek Indian of one eighth blood, received under date of Decem- Section 3 provides: "That the rolls of citizenship and of freedmen of the Five Civilized Tribes approved by For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |
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