Brady v. Daly

83 F. 1007 | 2d Cir. | 1897

LACOMBE, Circuit Judge

(after stating the facts). There are 84 assignments of error, but it will be necessary to discuss only those which are relied upon in the brief of plaintiff in error.

1. It is contended that the penalty is incurred only when substantially the whole of a copyrighted play is reproduced. This contention, however, has heen already disposed of by this court. The penalty of the statute is imposed when “any dramatic composition for which a copyright has heen obtained” is publicly performed without the consent of the owner. In Daly v. Webster, 1 U. S. App. 573, 4 C. C. A. 10, 56 Fed. 483, we held the railroad scene in “Under the Gaslight,” considered hy itself, apart from all the other acts and scenes in such play, to be a dramatic composition, and, as such, protected by the copyright which plaintiff had obtained; and no reason is shown for reversing or modifying that decision. When any one, without the owner’s permission, publicly performs substantially that whole railroad scene, he substantially performs a dramatic composition which is covered by the owner’s copyright,

2. It is contended that it was error “to exclude evidence offered hy defendant that the manner of the rescue is not a material part of plaintiff’s play.” We have searched the record carefully, but in vain, for any such offer. It does appear that defendant “offered to prove that the play ‘After Dark’ drew as much money, and was as valuable, in a pecuniary or in a commercial sense, with the railroad scene performed in the manner not violative of plaintiff’s rights, as held by the circuit court of appeals,” and, to support his offer, asked a witness who had testified as to performances of “After Dark” this question:

“Will you state the difference in business between the railroad scene as performed when one character was rescued by another, and as performed when the character rescued himself by staggering off the track?”

The question was excluded, and exception reserved. If it were material and proper for defendant to show that the “manner of the rescue” was “not a material part” of “Under the Gaslight,” he certainly would not show it hy proving that the manner of the rescue was not a material part of the other play “After Dark.”

3. It is next assigned as error that the court below permitted defendant’s answer in the equity suit to be used against him in lids action. The answer came in as part of the record in the equity suit. When such record was offered by plaintiff, defendant objected to its introduction on eight separate grounds, which were set forth specifically, but not on the ground that a sworn pleading of the defendant was offered against 1dm in an action to enforce a penalty. Incidentally, it may be noted that:, in the answer in the action at bar, defendant repeatedly refers to the record in tlie equity suit, and asks that the first decree of the circuit court therein, and the proofs upon which it: was granted, be made a part of his answer. It may well be doubled whether he is now in a position to urge the assignment of error above set forth; but, if he were, it certainly should not avail him. The answer in the equity suit contained no admission obtained from tlie pleader by tlie equity court. It denies all the material allegations of the complaint. Undoubtedly, as pointed out in the brief, it does admit that performances of “After Dark” were given by defendant, but only of the version which did not infringe. In view of the fact that tlie record in the equity suit was admitted “for certain purposes” only, and the statement by the circuit judge that no pleading of the defendant has been used or taken in evidence in ascertaining any facts as to performances, or for the enforcement of any alleged liability in this case, we a,re unable to find any harmful error in the admission of the answer in the equity suit.

4. It is next assigned as error that the court below held that the decree in the equity suit of itself established plaintiff’s cause of action, and was res adjudicata as to plaintiff’s copyright and defendant’s alleged infringement. Manifestly, the court below did not hold that the “decree in the equity suit of itself established plaintiff’s cause.” When that decree was the only evidence, it declined to find for the plaintiff. Xor is there anything to show that the court held that the equity decree was res adjudicata as to defendant’s alleged infringement. The record in the equity suit was competent evidence of the fact that the railroad scene in “After Dark” — the unaltered version — was substantially identical, in words, actions, circumstances, and accessories, with tlie railroad scene in “Under the Gaslight”; and defendant offered no evidence to controvert it. The court, however, did hold that the validity of the copyright, being determined by the equity decree, was res adjudicata between the parties to the action at bar, and excluded evidence offered by defendant (being tbe same evidence considered in tbe equity suit) to show that plaintiffs railroad scene was not novel. In this there was no error. The question of validity was one of the issues in tlie equity suit, and that court adjudged that the copyright obtained by Daly on August 1, 1867, was good and valid, that he was tbe author of the dramatic composition entitled “Under the Gaslight,” and that the railroad scene in such play was itself a dramatic composition, and protected by said copyright. To this equity suit, Daly and Brady were parties. The action at bar is not brought by the government, but by the individual whose rights have been trespassed upon, to recover the damages which the statute gives him from the individual who has committed the trespass. Both parties to the action were parties to the suit, and, under familiar principles, a question at issue between them, which has been once finally decided by a court of competent jurisdiction, cannot be again contested between them in the same or any other court.

5. It is further contended that the court below committed error in limiting the defendant, upon the new trial, to proof as to the number of performances. The record fails to disclose that defendant offered any evidence at all on the second trial, or that any was excluded. The order disposing of the motion for new trial provided that such motion be “granted to the extent that the cause is opened for the purpose of allowing either party to present additional testimony in regard to the numbers and times of the representation, if any there, were, of the play of ‘After Dark’ by the defendant.” It certainly did not preclude the defendant from offering any testimony which might become necessary or expedient by reason of the change of situation produced by plaintiff’s additional proof, or, indeed, from offering any which he had neglected to put in through oversight. Manifestly, this assignment of error is an afterthought. Had defendant had any further proof which he wished to put in, it must be assumed that he would have offered it.

6. It is next contended that the trial judge “erred in permitting the plaintiff upon the new trial to present the evidence of the number of performances which was obtained from the information given by the defendant under compulsion in the equity suit.” There is nothing in the record which will enable us to say that any of the evidence presented on the second trial “was obtained from the information given in the equity suit.” The counsel for plaintiff in error so asserts, but his brief contains no references to support' such assertion. No witness was interrogated upon this point, and no proof of the assertion offered.

7. It is further contended that the performances given by defendant intermediate the decisions of the circuit court in the equity suit holding the copyright invalid, and the reversal by the court of appeals, were not willful violations of plaintiff’s rights, and for that reason the statutorv penalty was not incurred. The statute, however, provides that “any person publicly performing or representing,” etc., shall be liáble for the damages therein fixed. It does not make willfulness an essential element of the offense, and no authority to whicn we are referred calls for such a construction.

• 8. It is contended that plaintiff, by first proceeding in equity for an accounting for profits, made an election barring him from a recovery for penalties. In view of the fact that there was in the equity cause no accounting of profits, and no election to endeavor to obtain profits, and no finding and no adjudication upon the subject of profits, we are not satisfied that plaintiff made any election barring him from suing for damages or penalties.

9. The last assignment of error is to the finding of the court below that there were 126 infringing performances. This, however, was a ■special finding by the court, a jury being waived; and an appellate court cannot look into the evidence upon which the finding is based, except for the purpose of ascertaining whether an error was committed in admitting or excluding testimony, and no such error is here assigned. The judgment of the circuit court is affirmed.