Respondent sued petitioner under the Copyright Act to recover
for infringement of copyright on a statuette, infringing copies of
which had been sold by petitioner in its stores. Petitioner proved
that its gross profit from the infringement was $899.16. The
evidence of damage suffered by respondent, though indicating real
and substantial injury, was insufficient to establish the amount of
damage actually sustained. The trial court allowed recovery of
$5,000 "statutory damages."
The award of damages in the amount of $5,000 was
authorized by 17 U.S.C. § 101(b). Pp. 344 U. S.
(a) The fact that petitioner proved that its gross profit from
the infringement was $899.16 does not limit recovery to that
amount. Pp. 344 U. S.
(b) Sheldon v. Metro-Goldwyn Pictures Corp.,
309 U. S. 390
Jewell-LaSalle Realty Co. v. Buck, 283 U.
, distinguished. P. 344 U. S.
(c) The statute empowers the trial court, in the exercise of a
sound judicial discretion, to determine whether, on all the facts,
a recovery upon proven profits and damages or one estimated within
the statutory limits is more just, and there was no abuse of that
discretion in this case. P. 344 U. S.
193 F.2d 162 affirmed.
In an action under the Copyright Act to recover for infringement
of copyright, the District Court gave judgment for the plaintiff,
respondent here. The Court of Appeals affirmed. 193 F.2d 162. This
Court granted a limited writ of certiorari. 343 U.S. 963.
p. 344 U. S.
Page 344 U. S. 229
MR. JUSTICE JACKSON delivered the opinion of the Court.
Respondent brought this action under the Copyright Act to
recover for infringement of copyright on a work of art entitled
"Cocker-paniel in Show Position." The District Court found the
copyright, of which respondent was assignee, valid and infringed,
and awarded statutory damages of $5,000, with a $2,000 attorney's
fee. The Court of Appeals affirmed. [Footnote 1
] We granted certiorari, [Footnote 2
] limiting the issues to the measure of
the recovery, as to which conflict appears among lower courts.
Respondent made small sculptures and figurines, among which were
statutes of the cocker spaniel, and marketed them chiefly through
gift and art shops. Petitioner, from a different source, bought 127
dozen cocker spaniel statuettes and distributed them through
thirty-our Woolworth stores. Unbeknown to Woolworth, these dogs had
been copied from respondent's, and, by marketing them, it became an
By the Act, an infringer becomes liable --
"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, and in proving profits the plaintiff shall be
required to prove sales only, and the defendant shall be required
to prove every element of cost which he
Page 344 U. S. 230
claims, 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 . . . and such damages shall in no other case
exceed the sum of $5,000 nor be less than the sum of $250, and
shall not be regarded as a penalty. . . ."
17 U.S.C. § 101(b).
Profits made by the petitioner from the infringement were
sufficiently proved to enable assessment of that element of
liability. Petitioner itself showed, without contradiction, that
the 127 dozen dogs were bought at 60 cents apiece and sold for
$1.19 each, yielding a gross profit of $899.16. The infringer did
not assume the burden, which the statute casts upon it, of proving
any other costs that might be deductible, so the gross figure is
left to stand as the profit factor of the infringer's total
As to the other ingredient in computing liability, damages
suffered by the copyright proprietor, the record is inadequate to
establish an actually sustained amount. Enough appears to indicate
that real and substantial injury was inflicted. Respondent had
gross annual income of about $35,000 and engaged only eight
employees, indicating its small production. Its statuettes were of
three media and prices: red plaster retailed at $4, red porcelain
at $9, while a black and white porcelain brought $15. There was
evidence that the cheaper infringing statuette was inferior in
quality. Respondent proved loss of some customers and offered, but
was not allowed, to show complaints from sales outlets about the
Woolworth competition, decline in respondent's sales, and eventual
abandonment of the line with an unsalable stock on hand. The trial
judge excluded or struck most of this testimony on the ground that
authority to allow statutory damages rendered proof of actual
damage unnecessary. It might have been better practice to have
received the evidence,
Page 344 U. S. 231
even if it fell short of establishing the measure of liability,
for when recovery may be awarded without any proof of injury, it
cannot hurt, and may aid, the exercise of discretion to hear any
evidence on the subject that has probative value. However,
petitioner cannot complain of this exclusion, which was in response
to its objections. At length, the court said:
"If you establish this was an infringement of copyright, it is
inescapably clear there is enough evidence in this case upon which
to predicate damage up to $5,000. I don't think Mr. Barnes (counsel
for defendant) disagrees with that. Do you?"
Mr. Barnes: "No, your honor."
The court, having found infringement, accordingly allowed
recovery of "statutory damages in the amount of Five Thousand
Dollars ($5,000), as provided by the Copyright Laws of the United
States," with an injunction and attorney's fee.
Petitioner's contention here is that the statute was misapplied,
because its own gross profit of $899.16 supplied an actual figure
which became the exclusive measure of its liability. It argues that
an infringing defendant, by coming forward with an undisputed
admission of its own profit from the infringement, can tie the
hands of the court and limit recovery to that amount. We cannot
In Douglas v. Cunningham, 294 U.
, 294 U. S. 209
"The phraseology of the section was adopted to avoid the
strictness of construction incident to a law imposing penalties,
and to give the owner of a copyright some recompense for injury
done him, in a case where the rules of law render difficult or
impossible proof of damages or discovery of profits."
To fulfill that purpose, the statute has been interpreted to
vest in the trial court broad discretion to determine whether it is
more just to allow a recovery based on calculation
Page 344 U. S. 232
of actual damages and profits, as found from evidence, or one
based on a necessarily somewhat arbitrary estimate within the
limits permitted by the Act.
"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
no discretion when proceeding under this provision to go outside of
L. A. Westermann Co. v. Dispatch Printing Co.,
249 U. S. 100
249 U. S.
Few bodies of law would be more difficult to reduce to a short
and simple formula than that which determines the measure of damage
recoverable for actionable wrongs. The necessary flexibility to do
justice in the variety of situations which copyright cases present
can be achieved only by exercise of the wide judicial discretion
within limited amounts conferred by this statute. It is plain that
the court's choice between a computed measure of damage and that
imputed by statute cannot be controlled by the infringer's
admission of his profits, which might be greatly exceeded by the
damage inflicted. Indeed, sales at a small margin might cause more
damage to the copyright proprietor than sales of the infringing
article at a higher price.
Whether discretionary resort to estimation of statutory damages
is just should be determined by taking into account both components
and the difficulties in the way of proof of either. In this case,
the profits realized were established by uncontradicted evidence,
but the court was
Page 344 U. S. 233
within the bounds of its discretion in concluding that the
amount of damages suffered was not computable from the testimony.
Lack of adequate proof on either element would warrant resort to
the statute in the discretion of the court, subject always to the
The case before us illustrates what capricious results would
follow from the practice for which petitioner contends. It has
admitted gross profits, which make no deduction for sales costs,
overheads or taxes, and hence may appear substantial on this
particular record. But gross profits is not what a copyright owner
is entitled to recover, but only such profits as remain after the
defendant reduces them, as it may, by proof of allowable elements
of cost. If we sustain petitioner's contention that profits may be
the sole measure of liability as matter of law, such profits could
be diminished even to the vanishing point.
Net profits realized by a far-lung distributing enterprise like
Woolworth's upon sales of a given item in a few of its many stores
can be calculated only by a process of allocating overheads, sales
expenses, taxes, and a host of items. A plaintiff in the position
of the present one could hardly verify or contest such
apportionments unless it should audit the whole Woolworth
Moreover, a rule of liability which merely takes away the
profits from an infringement would offer little discouragement to
infringers. It would fall short of an effective sanction for
enforcement of the copyright policy. The statutory rule, formulated
after long experience, not merely compels restitution of profit and
reparation for injury, but also is designed to discourage wrongful
conduct. The discretion of the court is wide enough to permit a
resort to statutory damages for such purposes. Even for uninjurious
and unprofitable invasions of copyright, the court may, if it deems
it just, impose a liability within statutory limits to sanction and
vindicate the statutory policy.
Page 344 U. S. 234
Petitioner cites Sheldon v. Metro-oldwyn Pictures
Corp., 309 U. S. 390
309 U. S. 399
where this Court said that the "in lieu" clause "is not applicable
here, as the profits have been proved, and the only question is as
to their apportionment," a statement on which petitioner leans
almost its whole weight. There, net profits from exhibition of an
infringing picture were found to be $587,604.37. The copyright
owner could show no such value to himself of his copyright; indeed,
he had negotiated its sale at $30,000. The Court of Appeals cut the
award of these actual profits to one-fifth thereof upon the ground
that success of the picture had been largely due to factors not
contributed by the infringement. The propriety of this reduction
was the sole issue before this Court. Petitioner copyright owner
asserted that, in such circumstances, the "in lieu" clause "is not
involved here." This Court agreed that, under those facts, resort
to the statute was not appropriate. That case did not present the
question now here. Nor does anything in Jewell-aSalle Realty
Co. v. Buck, 283 U. S. 202
the light of its facts, support petitioner. It holds use of the "in
lieu" clause permissible, "there being no proof of actual damages,"
but it does not hold that partial or unacceptable proof on that
subject will preclude resort to the "in lieu" clause.
We think that the statute empowers the trial court, in its sound
exercise of judicial discretion, to determine whether, on all the
facts, a recovery upon proven profits and damages or one estimated
within the statutory limits is more just. We find no abuse of that
The judgment below is
193 F.2d 162.
343 U.S. 963.
F. W. Woolworth Co. v. Contemporary Arts,
193 F.2d 162,
167-169; Sammons v. Colonial Press,
126 F.2d 341, 350;
Davilla v. Brunswick-alke Collender Co.,
94 F.2d 567;
Malsed v. Marshall Field & Co., 96 F. Supp.
MR. JUSTICE BLACK, with whom MR. JUSTICE FRANKFURTER concurs,
The earthenware dogs found to infringe respondent's copyright
were bought by F. W. Woolworth Company in
Page 344 U. S. 235
good faith at a total cost of $914.40. Woolworth's total profit
from the sale of the dogs was $899.16. The Court now holds that
Woolworth must pay the dogs' copyright owner $5,000. This award is
said to be allowed by § 101(b) of the Copyright Act, 17 U.S.C. §
101. We do not think that section authorizes any such manifestly
unjust exaction. This Court pointed out in Sheldon v.
Metro-oldwyn Pictures Corp., 309 U. S. 390
309 U. S.
-401, that § 101, like an analogous patent law
section, was not intended to award a copyright owner both damages
and profits, but only "one or the other, whichever was the
greater." Under this rule, profits only should be awarded to
respondent in this case.
Reliance for awarding $5,000 against Woolworth is naturally
placed on that provision of § 101(b) which provides for damages not
in excess of $5,000 "in lieu of actual damages and profits." But
this Court has said that the purpose of this section was to
recompense for injury done "where the rules of law render difficult
or impossible proof of damages or discovery of profits."
Douglas v. Cunningham, 294 U. S. 207
294 U. S. 209
Here, proof of profits was neither difficult nor impossible. And,
in the carefully considered case of Sheldon v. Metro-oldwyn
Pictures Corp., supra,
at 309 U. S. 399
Mr. Chief Justice Hughes, speaking for the Court, declared, " . . .
the in lieu' clause is not applicable here, as the profits have
been proved. . . ." See also, to the same effect,
Davilla v. Brunswick-alke Collender Co., 94 F.2d 567;
Sammons v. Colonial Press, 126 F.2d 341. We would adhere
to this view, and limit this recovery to profits made by Woolworth.
This Court should heed the admonition given in the Sheldon
case to remember that the object of § 101(b) is not to inflict
punishment, but to award an injured copyright owner that which in
fairness is his, "and nothing beyond this." Sheldon v.
Metro-oldwyn Pictures Corp., supra, at 309 U. S.
The following circumstances bear on the question of unfairness
of the amount of damages awarded. Petitioner contended in the Court
of Appeals that the district judge did not give it a fair and
impartial trial. "In support of this contention," the Court of
Appeals said, "the appellant points to several instances in the
record of irrelevant and prejudicial comments and remarks" made by
the trial judge. Considering the judge's remarks as "both unseemly
and uncalled for," the Court of Appeals said:
"But, after careful consideration of the record as a whole, we
have concluded that the particular remarks of the judge, which
would better have been left unsaid and are better not quoted, do
not rise to the seriousness of reversible error. Having regard for
the convincing nature of the plaintiff's proof and the unconvincing
nature of that of the defendant, we do not feel that the decision
reached by the court below can be attributed to bias and prejudice.
That is to say, we feel that the defendant really had a fair and
193 F.2d 162, 169.
We accept the Court of Appeals' appraisal of the consequences of
the judge's remarks on the factual issue of copyright infringement.
But here, the trial judge gave judgment for statutory damages in an
amount that smacks of punitive qualities. And this Court has held
that the amount of such damages is committed to the unreviewable
discretion of a trial judge. Douglas v. Cunningham,
294 U. S. 207
294 U. S. 210
In view of the remarks of the trial judge directed against the
Woolworth Company, we think it had a just right to complain that
the amount of damages imposed ought not to stand.
We would reverse and remand this case for a new trial by another