The liability imposed by § 25 of the Copyright Act attaches in
respect of each copyright infringed, though by the same party. P.
249 U. S.
Several and distinct liabilities arise from several distinct
infringements of the same copyright by the same party.
Where it is not shown that the infringer made profits, and it
appears by the evidence that the damages, though actual, cannot be
estimated in money, damages "in lieu of actual damages and profits"
are assessable under § 25 of the Copyright Act. P. 249 U. S.
In such cases, the court's conception of what is just in the
particular case, considering the nature of the copyright, the
circumstances of the infringement, etc., is made the measure of the
damages to be paid, but with the express qualification that the
assessment must be within the maximum and minimum limits prescribed
by the section. Id.
The owner of separate copyrights for pictorial illustrations of
styles for women's apparel made a business of granting exclusive
licenses, restricted as to time and locality, for the use of the
illustrations by dealers in such apparel in advertising their
goods, receiving compensation
Page 249 U. S. 101
therefor. In a city covered by such a license, the owner of a
newspaper issued daily in thousands of copies widely circulated,
published, without the consent of the copyright owner or its
licensee, in advertisements of business rivals of the latter, six
of the copyrighted illustrations, separately, each in a distinct
issue and in all the copies of the paper, five being so published
but once, the other twice, in independent advertisements for
different advertisers, separated by an interval of some days.
that there were seven distinct infringements, and
that the damages "in lieu of actual damages and profits" under § 25
of the Copyright Act could not be less than $250 for each case.
233 F. 609 reversed.
The case is stated in the opinion.
Page 249 U. S. 102
MR. JUSTICE VAN DEVANTER delivered the opinion of the Court.
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 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 in all. The plaintiff appealed, insisting that 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 F. 609. A writ of certiorari
granted on the plaintiff's petition brings the matter here.
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:
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
Page 249 U. S. 103
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 distinct issue and in all the copies. Five
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 illustration were by different
advertisers and were separated by an interval of twenty-six
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 undisputed testimony to the effect
that the damages could not be estimated or stated "in dollars and
cents, or in money." On this point, the circuit court of appeals
"The plaintiff's damages rested in the injury to his Moorehouse
contract, and in the discouragement of
Page 249 U. S. 104
and the tendency to destroy his system of business. To make any
accurate proof of actual damages was obviously impossible."
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 damages and profits.
The copyright statute, Act March 4, 1909, c. 320, 35 Stat. 1075,
gives to one who copyrights a pictorial illustration the exclusive
right to print, reprint, publish, copy, and vend the same (§§ 1 and
5), and provides (§ 25 [Footnote
]) 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
"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 employees;"
"Second. In the case of any work enumerated in section five of
this Act [Footnote 2
] except a
painting, statute, or sculpture,
Page 249 U. S. 105
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
The statute says that the liability thus defined is imposed for
infringing "the copyright in any" copyrighted "work." The words are
in the singular, not the plural. Each copyright is treated as a
distinct entity, and the infringement of it as a distinct wrong to
be redressed through the enforcement of this liability.
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 infringement in the sense of the statute. Was there also
another? The illustration covered by one of the copyrights was
published on two separate occasions, 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
Page 249 U. S. 106
been merely a continuation or repetition of the first, and what
bearing the "third" and "fourth" subdivisions of § 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.
We conclude, as did the district court, that there were seven
cases of infringement in the sense of the statute.
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,
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
Page 249 U. S. 107
no discretion when proceeding under this provision to go outside
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
§ 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
In Brady v. Daly, 175 U. S. 148
which was an action to recover for the infringement of a copyright
in a dramatic composition, the first of the earlier provisions --
that in § 4966, Rev.Stats. -- 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,
Page 249 U. S. 108
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, pp. 175 U. S. 154
175 U. S.
"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 dramatic composition suffered by reason of its unlawful
production by another, and yet it is also evident 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
"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 compensation
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 penalties, but refers entirely to damages suffered by
the wrongful act. The 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 sum named in the
statute itself, does not change the character of the statute and
render it a 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
Page 249 U. S. 109
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."
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
MR. JUSTICE DAY did not participate in the consideration or
decision of this case.
For a subsequent amendment of this section, see
Aug. 24, 1912, c. 356, 37 Stat. 488.
"Prints and pictorial illustrations" are among the copyrightable
works enumerated in § 5.