1. Section 25 of the Copyright Act provides that an infringer
shall be liable for "such damages as the copyright owner may have
suffered due to the infringement," or, "in lieu of actual damages .
. . , such damages as to the court shall appear to be just," and
that, in assessing such damages, the court may, in its discretion,
allow, in the case of a newspaper, one dollar for every infringing
copy, but that, in any event, the damages shall not exceed $5,000
nor be less than $250, except for infringements occurring after
actual notice to the defendant.
Held, in a suit based upon
the publication of an infringing article in an edition of a
newspaper which totaled 384,000 copies, an award of $5,000 in lieu
of actual damages was within the discretion of the trial court, and
was not subject to revision by the Circuit Court of Appeals. P.
294 U. S.
210.
2. This construction is required by the language and the purpose
of the statute. P.
294 U. S.
210.
72 F.2d 536 reversed.
Certiorari, 293 U.S. 551, to review a judgment reversing, as to
the amount of damages and costs, a judgment of the District Court
in a suit for infringement of copyright.
MR. JUSTICE ROBERTS delivered the opinion of the Court.
The petitioners brought a suit in equity against the respondents
in the District Court for Massachusetts,
Page 294 U. S. 208
charging infringement of copyright, praying an injunction, an
accounting, and award of profits and damages, or,
"in lieu of actual damages or profits, such damages as to this
Court shall appear to be just and proper within the provisions of
the Act of Congress in such cases made and provided."
The respondents answered, and the cause came on for hearing.
Admissions in the pleadings, concessions by the respondents, and
evidence taken disclose the relevant facts.
Douglas wrote an original story which was accepted, copyrighted,
and published by The American Mercury, Inc. The rights in the story
under the copyright were assigned to Douglas. Thereafter,
Cunningham wrote for the Post Publishing Company, and the latter
published in some 384,000 copies of a Sunday edition of the Boston
Post, an article which was a clear appropriation of Douglas' story.
Testimony was presented with respect to the value of the story,
but, at the close of the trial, the petitioners admitted inability
to prove actual damages. The Publishing Company acted innocently in
accepting the article from Cunningham, and the latter testified
that he had procured the material for its from an acquaintance,
believed the facts related to him were actual happenings, and was
ignorant of Douglas' production. The trial judge ruled that no
actual damage had been shown, but, in lieu thereof, granted the
petitioners $5,000 and a counsel fee. Upon appeal, the Circuit
Court of Appeals sustained an assignment of error which asserted
the judge had abused his discretion in making the award, reversed
the decree, and set the damages at $250.
The sole question presented by the petition for certiorari is
whether, consistently with § 25(b) of the Act of 1909, [
Footnote 1] an appellate court may
review the action of
Page 294 U. S. 209
a trial judge in assessing an amount in lieu of actual damages
where the amount awarded is within the limits imposed by the
section. We granted the writ of certiorari [
Footnote 2] because the decision of the Circuit Court
of Appeals was upon an important question of federal law and
probably in conflict with our decisions. [
Footnote 3]
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. In this
respect, the old law was unsatisfactory. In many cases, plaintiffs,
though proving infringement, were able to recover only nominal
damages, in spite of the fact that preparation and trial of the
case imposed substantial expense and inconvenience. The
ineffectiveness of the remedy encouraged willful and deliberate
infringement.
Page 294 U. S. 210
This Court has twice construed § 25(b) in the light of its
history and purpose.
Westermann Co. v. Dispatch Printing
Co., 249 U. S. 100;
Jewell-La Salle Realty Co. v. Buck, 283 U.
S. 202. As shown by those decision, the purpose of the
act is not doubtful. The trial judge may allow such damages as he
deems to be just, and may, in the case of an infringement such as
is here shown, in his discretion, use as the measure of damages one
dollar for each copy -- Congress declaring, however, that just
damages, even for the circulation of a single copy, cannot be less
than $250, and, no matter how many copies are made, cannot be more
than $5,000. In the
Westermann and
La Salle
cases, it was held that not less than $250 could be awarded for a
single publication or performance. It follows that such an award,
in the contemplation of the statute, is just. The question now
presented is whether it can be unjust, according to the legislative
standard, to use the prescribed measure -- $1 per copy -- up to the
maximum permitted by the section. As the
Westermann case
shows, the law commits to the trier of facts, within the named
limits, discretion to apply the measure furnished by the statute
provided he awards no more than $5,000. He need not award $1 for
each copy, but if, upon consideration of the circumstances, he
determines that he should do so, his action cannot be said to be
unjust. In other words, the employment of the statutory yardstick,
within set limits, is committed solely to the court which hears the
case, and this fact takes the matter out of the ordinary rule with
respect to abuse of discretion. This construction is required by
the language and the purpose of the statute. The judgment is
reversed, and the cause remanded to the District Court for further
proceedings in conformity with this opinion.
Reversed.
[
Footnote 1]
Act of March 4, 1909, c. 320, § 25(b), 35 Stat. 1081, as amended
by Act of August 24, 1912, c. 356, 37 Stat. 489, U.S.C. Tit. 17, §
25:
"If any person shall infringe the copyright in any work
protected under the copyright laws of the United States such person
shall be liable:"
"
* * * *"
"(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 [here follow limitations with respect
to the amount of damages to be awarded for certain infringements
not material in the present case], 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. . . ."
There follows a schedule, of which item "Second" is:
"In the case of any work enumerated in § 5 of this title [§ 5
includes periodicals and newspapers], except a painting, statue, or
sculpture, $1 for every infringing copy made or sold by or found in
the possession of the infringer or his agents or employees."
[
Footnote 2]
293 U.S. 551.
[
Footnote 3]
See Rule 38, par. 5(b), (c).