230 F. 412 | 2d Cir. | 1916
The validity of the copyright of complainant’s photograph entitled the “Grace of Youth,” and infringement thereof by the photograph entitled “Cherry Ripe,” which was made, printed, and sold by the defendants, were established by our former decision in Gross v. Seligman, 212 Fed. 930, 129 C. C. A. 450.
This action is to recover damages for infringement against the appellant and the other defendant as joint and several tort-feasors. Copyright Act, § 25 (Comp. St. 1913, § 9546), provides that any person who shall infringe shall be 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 claims, or in lieu of actual damages and profits such damages as to the court may appear to be just.”
What happened here was that defendant Rochlitz made the infringing photograph, defendant Gravure Company printed 16,000 copies, which it sold to defendants Seligman, who themselves sold the copies to the public for profit.
We are somewhat at a loss to understand exactly what appellant’s contention is — apparently he advances the proposition that there can be no recovery for damages against an infringer who has not made profits from the sale of the infringing copies.
The District Judge made a careful calculation to determine how many sales of the copyrighted photograph were lost to plaintiff, because of sales of the infringing photograph to persons who would, otherwise, have bought the copyrighted one. He then calculated what net profit plaintiff would have realized on the sales which he would have made, had not the infringing photograph prevented his making such sales. These lost profits of the plaintiff he found to be the measure of plaintiff’s damages. We find nothing wrong about the calculation; indeed, the judge’s figures are not attacked.
Why all who unite in an infringement are not, under the statute, liable for the damages sustained by plaintiff, we are unable to see. If the court had reached his “estimated” damages (in lieu of actual damages) by finding so much for damages caused by interfering with complainant’s sales, and then had found an additional sum representing profits which tire infringers made, and then added the two sums together, there might be some force in the argument that this particular defendant, which did not. know it was infringing, and merely did the mechanical work of lithographing, for which it was paid in all $125 (indicating presumably a profit of not over $25), should not be charged with any part of the profits the other infringers made. But, on the contrary, the District Judge figured only on the damages to plaintiff, without figuring on profits of any defendant. Therefore, as all united in infringing, all are responsible for the damages resulting from infringement.
The decree is affirmed.