This is an appeal from a final j'udgment for damages of $2250 awarded to the plaintiff by the United States District Court for the District of Massachusetts in a copyright infringement action arising out of the A. ,E. Borden Co.’s publication of two refrigeration and air conditioning equipment catalogs. The sole issue in this case, which is brought upon appeal by the plaintiff, is whether the triаl court was in error in its award of damages.
This action was previously litigated before this court in Markham v. A. E. Borden Co., 1 Cir.,1953,
We held that the individually copyrightable component pаrts of the plaintiff’s copied catalogs were entitled to the protection of § 3 of the Copyright Act, 1 as to hold otherwise would result in the *587 copyright on a catalog having little value —a result which would be clearly inconsistent with the purpose of the Copyright Act. It is important to point out that in the preparation of the plaintiff’s catalog which he supplied to various wholesale dealers of refrigeration parts and supplies, each page was a separate unit which cоuld be used in some catalogs and not in others depending upon whether the particular wholesaler stocked the refrigeration parts or supplies described on that particular page. We found that in building his library of catalog рages the plaintiff conceived a lucid and forceful description of these refrigeration parts and supрlies by an original arrangement and condensation of the data supplied to him by the manufacturer. In other words, the рlaintiff’s originality consisted in the description of each item, not in the arrangement or compilation of the various descriptions and therefore each copyrightable item in the plaintiff’s catalog was a componеnt part protected by § 3 of the Copyright Act.
Although this court reversed the district court we refused to assess damages hоlding that this highly discretionary function is best performed by the trier of the facts. The district court, following a hearing on the question оf damages, awarded the plaintiff $2250, the memorandum and order of judgment not expressly stating whether the award was based оn actual damages to the plaintiff and profits to the infringer, or was statutory damages in lieu of actual damages and profits under 17 U.S.C. § 101(b).
2
It is clear to us that the judgment was one for statutory damages. We expressly held in our previous opinion that “ * * there is no showing on the amount of damages arising from these infringements * * * ” [
The Supreme Court has held that within the minimum and maximum limits set by Cоngress “ * * * the court’s discretion and sense of justice are controlling * * * ” in its award of statutory damages. L. A. Westermann Co. v. Dispаtch Printing Co., 1914,
Upon :.'e-examination of the record with special attention to the trial court’s findings of fact in its first opinion, it is our conclusion that a finding that there were not more than nine validly pleаded and proved infringements was not erroneous.
The judgment of the district court is affirmed,
Notes
. 17 U.S.C.
Ҥ S. Protection of component pwrts of work copyrighted; composite works or periodicals
“The copyright provided by this title shall protect all the copyrightable component parts of the work copyrighted, and all matter therein in which copyright is already subsisting, but without extending the duration оr scope of such copyright. The copyright upon composite works or periodicals shall give to the proprietor thereof all the rights in respect thereto which he would have if each part were individually coрyrighted under this title.”
. Ҥ 101. Infringement
* * * * * *
“(b) Damages and profits; amount; other remedies. — To pay to the copyright proprietor such damages as the copyright proprietor may hаve suffered due to the infringement, as well as all the profits which the infringer shall have made from such infringement, and in proving prоfits 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 shall apрear 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 regard-garded as а penalty. But the foregoing exceptions shall not deprive the copyright proprietor of any other remedy given him under this law, nor shall the limitation as to the amount of recovery apply to infringements occurring after the actual notice to a defendant, either by service of process in a suit or other written notice served upon him. * * * ”