632
FEDERAL REPORTER.
promise to pay for work done on request; but the plaintiffs applied to defendant and sought prices, as if acting for a purchaser, and if no provision had been made for commission none would have become due in any event. An express provision was made, and the plaintiffs are entitled only to the terms of the provision. These were that the price which the defendant was to have was to cover to plaintiffs-that is, include for them-the commission. When the defendant should receive the price, the amount of the commission would be received for the plaintiffs. Until the price should be received there would be nothing for the plaintiffs. There is nothing about the business of brokers to prevent the operation of express engagements more than there is in other employments. The plaintiffs proposed their own terms, and the defendant accepted them, and has a right to stand upon them. This does not hold the plaintiffs to the default of the purchaser, but to the terms of tueir employment, such as it was. 2. If the plaintiffs should recover of the defendant, the purchaser would be liable to the defendant, for the amount paid, as a part of the price of the iron not taken and paid for, in enhancement of the damages of his default. The purchaser compromised that liability from him to the defendant, and from the defendant over to the plaintiffs, directly with the plaintiffs. This was a satisfaction of this claim, and discharged the intermediate liability. Thurman v. Wild, 11 Ado!' & E. 453; Bevins v. Balnsey, 15 How. 179. If the plaintiffs should recover their commission of the defendant they would be twice paid for the same thing. Motion for new trial denied.
TAYLOR,
Jr., qui tam,
'V. GILMAN.
(Circuit Court, S. D. New York.
August 13, 1885.1
papel' exhibiting tahulated or methodically arranged information.
2.
SAME-INFIUNGEMENT BY AGEN'l's-RIGHT TO RECOVER PENALTY FROM PRINCIPAL.
The penalty or forfeiture given to a party aggrieved by the infringement of his eopyright cannot be recovered from a principal whose agents have, without his knowledge, been gUilty of such infringement.
Action Under Rev. St. § 4965. R. Rubertson, for plaintiff. Andrew Gilhooly, for defendant. WHEELER, J. This action is brought upon section 4965, Rev. St., to recover one dollar, half to the use of the United States and half
TAYLOR
v.
GILMAN.
G33
to the use of the plaintiff, for each of several hundred thousand copies of a work alleged to be a chart, copyrighted by the plaintiff, and printed by the defendant, and found in his possession. The original copyright act of 1790 provided for maps, charts, and books. 1 St. at Large, 124. A chart then was a marine map, as is shown by all the dictionaries of the time, both English and American. Historical or other prints were added by the act of 1802, (2 St. at Large, 171;) musical compositions, cuts, and engravings, by tho act of 1831, (4 St. at Large, 436;) photographs, by the act of 1865, (13 St. at Large, 540;) and paintings, drawings, chromos, statues,- statuary, and models or designs intended to be perfected as works of the fine arts, by the act of 1870, (16 St. at Large, 198.) A distinction was made between recoveries for the infringement of the copyright of a book, and those for that of the other works, by the act of 1831; the former being fixed at fifty cents and the latter at one dollar for each sheet. This distinction was preserved in the act. of 1870, by giving such damages as might by recovered in a civil action iu any court of competent jurisdiction for the ir\fringernent of the copyright of a book, and one dollar for each sheet of all but paintings, statues, or statuary, and $10 for each copy of those found in the possession of the infringer, and is continued to the present time. Rev. St. §§ 4964, 4965. Thus the literary composition of books to be read has for a long time been protected in one mode, and the production of works of art to be viewed in another mode, and charts have always been placed among the works of art. Sheets of paper exhibiting tabulated or methodically arranged information came to be called chartR, so that a definition of chart covering them was put into the edition of Worcester's Dictionary published in 18tH, and into that of Webster's Dictionary published in 1865. The plaintiff's work was printed upon a single sheet doubled so as to make two leaves with four pages. On the first page was the title and contents, the name of the author, and notice of the copyright. On the second, was the popular and electoral votes for president from 1789 to 1880, inclusive, by political parties, with the names of candidates and explanatory notes. On the third, was the popular vote for the leading candidates for president in 1880 by states, with a note giving the scattering vote and the electoral vote for president and vice-president by states. On the fourth, was the electoral college for 1884 by states, with blanks for the number of each for each leading political party, the total electoral vote, the number necessary for a choice, the day of election, and the day of the meeting of electoral collegfls. The alleged infringing copies are printed upon a single sheet folded in the same manner. On the first page is an advertisement of the Great American Tea Company. The second, third, and fourth are identical in matter with the plaintiff's; and in arrangement, except that on the second page ofthe plaintiff's the columns are divided and printed across the page, and on that page of the infringement they are printed entire up and down
634
the page. These publications would, perhaps, come within this new definition of chart. They are tabular views of these votes methodically arranged, thf' notes being explanatory of the tables. Still, the compilation of these tables was a literary rather than an artistic performance. The printed work has leaves and pages, although these may not be necessary to oonstitute a book within the meaning of the oopyright laws. Olayton v. Stone, 2 Paine, 382. When books and charts were first protected by the copyright laws this work would not have been protected as a chart j nor for many years afterwards. ·No ohange has been made in the use of that term in the statute to indicate that congress intended that it should take to itself there any new definition. On the contrary, it has been separated from the word "book," and kept with the word "map," and other words of artistic import, thus showing an intention to continue its use in the same sense of a chart of the class with maps, and other works of art. Mallan v. May, 13 Mees. & W. 511; Neal v. Olark, 95 U. S. 704. When it is doubtful in what sense a word is used, it is proper to look at the purpose for which it is used. While this statute is remedial in so far as it furnishes a remedy to the party aggrieved, it is penal as to so much of the recovery as goes to the United States. The United States is not aggrieved in a civil sense j but the law is violated when the copyright is iufringed, and punishment is inflicted to the extent of one-half the sum imposed. Johnson v. Donaldson, 18 Blatchf. 297 j S. C. 3 FED. REP. 22 j Schreiber v. Sharpless,17 FED. REP. 589; Schreiber v. Sharpless, 110 U. S. 76; S. C. 3 Sup. Ct. Rep. 423. As a penal statute, it must be construed strictly, and not be held to include what it does not clearly cover, to make anyone guilty by construction. TANEY, C. J., U. S. v. Morris, 14 Pet. 475. Although it was ruled at the trial, for the purpose of taking the evidence as to the whole case, that this might be found to be a chart, on full consideration now it appears that the word "chart," as used in the statute, will not include it. The alleged infringement was done by the defendant's agents in the management of the Great American Tea Company for him, in his absence, and wholly without his knowledge, consent, or approval, for the purpose of disseminating the advertisement of the wares of that concern, which is owned by the defendant, but has been wholly in the control of others for several years, on aoconnt of his inability. A verdict was directed for the defendant, principally upon the ground that he could not be made liable in this action under these circum· stances. The scope of the agency is to be inferred from the fact that the management of the business of the tea company was left wholly to the agents. The business consisted in dealing in teas and coffees, including advertising the goods ex.tensively. The agents had full authority to do was necessary about such advertising. The advertisement which took the place of the plaintiff's title page was no infringement ·of the plaintiff's rights. The election statistics
V:
635
'Of the other pages had no relation whatever to the defendant's business. The agents had no authority to do anything about printing such statistics for him. The statistics served to give currency and admittance to' the .advertisement j and constituted a part of the vehicle to carry it, as an attractive picture or beautifully tinted paper would. Had the agents stolen such paper, or paper with such picture, or paper with these three pages of statistics printed upon it, and used either to print the advertisement upon, no one would probably claim .that the defendant was thereby guilty of theft, and coulcl justly be convicted of it. And, if not, it is not easy to see how the defendant is guilty of the offense of unlawfully copying those pages on account of what the agents did, although he might be liable civilly for the damages in either case. There are many cases where property is forfeited on account of some situation in which it is placed without the knowledge or consent of the owner, but in such cases the property only is proceeded against, and there is no conviction of the owner to affect his person or other property. U. S. v. Brig Malek Adhel, 2 How. 210 j Dobbins' Distillery v. U. S. 96 U. S. 395. And there are cases where it is held that the act of the agent in the course of his employment is evidence against the principal in a criminal proceeding, but evidence which may be rebutted by showing want of knowledge, consent, or encouragement. Com. v. Nichols, 10 Metc. 259; Attorney General v. Sidden, 1 Cromp. & J. 219; Rex v. Gutch, 1 Moody & M. 433; Rex v. Almon, 5 Burr. 2686. Here this want appeared. Cases of sales of intoxicating liquor are instanced, but in such cases the statute frequently prohibits and punishes sales by agents and servants expressly. Where a penalty or forfeiture is given to a party aggrieved, so that the recovery is a remedy for the injury, the right to recover may be founded upon the doings of agents, the same as other rights of action. Stockwell v. U. S. 13 Wall. 531; Attorney General v. Sidden, 1 Cromp. & J. 219. That the recovery is for more than single damages, or of a fixed sum, is not material, if it is for compensation. Burnett v. Ward, 42 Vt. 80; Newman v. Waite, 43 Vt. 587. But when the penalty, or a part of it, is inflicted for punishment only, the guilt of the party to be punished should be established. Schreiber v. Sharpless, 6 FED. REP. 175. As the case is now considered, a verdict for the plaintiff would fail upon each of these grounds. Motion for new trial denied.
636
MYERS V. CALLAGHAN.
(Circuit Oourt, N. D. Illinois. 1.
July 6,1885.)
COPYRIGHl'-INFRINGEMENT- DAMAGES- PROFITS ON SALE OF SECOND-HAND HOOKS BY INFHINGING PUBLISHER.
A publisher who, having published and sold books in violation of the rights of the owner of the copyright, purchases such hooks and resells them, may be charged with the profit realized from the second sales, in addition to that realized from the first sales.
SAME-DETEHMINING SELLING PRIOE OF INFRINGING REPORTS FORMING PAUl' OF }<'ULL 8ETS SOLD.
M. owned the copyright of volumes 39 to 46 of the Illinois Reports, Rnd the state reporter the copyright for the later volumes. C., who owned the copyright of volumes 1 tu 31, inclusive, repuhlished and sold volumes 39 to 46, in violation of the rights of lVI., in full sets made up of the volumes owned by him, the infringing volumes, and volumes purchased from the reporter. Held, that the selling pI'lce of the illfringmgvolumes might be determined with sufficient accuracy by deducting from the amount received for a full set of reports the amount paid forthe volumes purchased from the state reporter, and then dividing the balance hy 46. 3. SAME-ExpENSE OF INFRINGERS' BUSINESS.
The report of the master as to the general nvernge expenses of the infringer's husmess, which should be deducted from the proceeds of the sales of the infringing volumes, affirmed. OF STEREOTYPING.
4. 5.
An infringer will not be allowed to Charge tne cost ot stereotyplllg the infringing volumes as a part of the expense of producing them. SAI,ARIES.
"{hen the infringers are partners, and under the partnership agreement each member is entit.led to draw out of the business for his personal expenses and support a specific sl1m pel' annum, the amounts so drawn out by the respective partners cannot be included as part of the general expenses of the firm in condueling its business, in order to arrive at the percentage of such expenses. ll'ubber Go. v. Goodyear, 9 Wall. 788, distinguished. 6. SAME-ExpENsE OF EDITORIAL WOHK.
The amount paid by an infringer for editing the infringing volumes will not be allowed as an item of expense in producing them.
7.
SAME-COST OF UNSOI.D VOI.UMES.
Where the infringer has not been required by the decree of the court to surrender the unsold infringing volumes, but has been restrained from selling them, and has rdained them in his possession, he cannot be credited for the cost of these volumes in order to determine the profits of those already sold, OF PnooF.
8.
While a court will not presume that all the money received by a piratical publisher on the sale of his hooks is profit, still, as the proof as to the cost of producing the work is wholly in the control of the defendant, the complainant makes a prima facie case of right to recover hy showing the selling price 'tnd the usual manufacturers' cost.
Exceptions to Master's J. V. Le MO,ljne and Geo. W. Cothran, for complainant. Jas'. L. High, for defendants. BLODGETT, J. The original bill in this case charged that complainant was owner of the copyright of volumes 32 to 38, inclusive, of the reports of the decisions of the supreme court of Illinois, and that defendants had infringed the same. By the supplemental bill complainant charged that he was the owner of the copyright of volumes 3!)