Bolles v. Outing Company, 175 U.S. 262 (1899)
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Bolles v. Outing Company
No. 47
Submitted October 16, 1899
Decided December 4, 1899
175 U.S. 262
ERROR To CIRCUIT COURT OF APPEALS
FOR THE SECOND CIRCUIT
Syllabus
In an action under Rev.Stat. § 4965 to recover a penalty of one dollar for every copy of an engraving or photograph infringing the copyright of another, the plaintiffs recovery is limited to copies actually found in the possession of the defendant, and does not extend to copies already sold and put in circulation.
A party who does not take out a writ of error will not be heard to complain of adverse rulings in the court below.
This was an action begun April 18, 1894, by Charles E. Bolles, a resident of the City of Brooklyn, New York, for the penalty provided for the infringement of the copyright of a photograph by Rev.Stat. sec. 4965. This section enacts that
if any person, after the recording of the title of any map, chart, musical composition, print, cut, engraving, or photograph, . . . as provided by this chapter, shall, within the time limited, and without the consent of the proprietor of the copyright first obtained in writing, signed in presence of two or more witnesses, engrave, etch, work, copy, print, publish, or import, either in whole or in part, or . . . shall sell or expose to sale, any copy of such map or other article, as aforesaid, he shall forfeit to the proprietor all the plates on which the same shall be copied, and every sheet thereof, either copied or printed, and shall further forfeit one dollar for every sheet of the same
found in his possession,
etc.
In August, 1893, plaintiff made a photograph of the yacht "Vigilant" under full sail, and copyrighted the same under the title "Vigilant, No. 4." The copyright stamp on the photograph was made by impressing at the lower end of the right-hand corner of the photographs, the words, "Copyright, 93, by Bolles, Brooklyn," Bolles being the trademark name used by the plaintiff.
Defendant made a photogravure of this photograph, and published it November, 1893, in a magazine published by it in New York known by the name of "The Outing." Defendant had no permission to use or copy the photograph.
One copy of this number of The Outing was purchased of the defendant by an employee of the plaintiff for the sum of twenty-five cents.
On the first trial in the circuit court, the action was dismissed upon the ground that the copyright stamp on the photograph was insufficient notice of the copyright, because the year was not given in full, nor the full name of the owner.
Thereupon plaintiff sued out a writ of error from the circuit court of appeals, which held that the copyright stamp was sufficient, but sustained the trial court in its exclusion of certain evidence offered as to the number of copies found in the possession of the defendant. 77 F. 966.
Upon the new trial, the same evidence as to the number of copies of the infringement found in the possession of the defendant was excluded, and a verdict directed for plaintiff for $1 penalty for the one copy bought by plaintiff’s employee from the defendant. Plaintiff moved for a new trial because of the refusal of the court to permit him to prove the number of copies which had been in the defendant’s possession at any time within two years previous to the commencement of the suit. Upon his motion’s being denied, he again sued out a writ of error from the circuit court of appeals, which affirmed the judgment. Whereupon plaintiff sued out a writ of error from this Court.