20 F. Cas. 1253 | U.S. Circuit Court for the District of Eastern New York | 1866
This case comes before me upon a motion for an injunction to restrain the defendants from producing and selling photographs of an engraving known as “The Home of Washington.” The papers read show that the engraving in question is a duly copyrighted engraving, owned by the plaintiffs, and that the defendant, by the photographic process, has produced a negative representation of this engraving, from which he prints photographs of it in various sizes, and is disposing of the same without the consent of the plaintiffs. This the defendant claims the right to do, upon the ground that the copyright laws do not forbid the making of photographs of copyrighted engravings.
The act of February 3, 1831 (4 Stat. 436), in the first section, declares, that any person who shall invent, design, etch, engrave, work, or cause to be engraved, etched, or worked from his own design, any print or engraving, shall have the sole right and liberty of printing, reprinting, publishing, and vending such print, cut, or engraving, in whole or in part; and, in the seventh section, it declares, that if any person shall engrave, etch or work, sell or copy, or cause to be engraved, etched, worked, or sold, or copied, either on the whole or by varying, adding to or diminishing the main design, with intent to evade the law, such offender shall forfeit the plate on which such engraving, cut, or print, shall be copied, and shall further forfeit one dollar for every sheet of such print, cut, or engraving, which may be found in his possession.
The argument of the defendant is, that the exclusive privilege given by the first section of the act, does not include the photographing the copyrighted engraving, because that is not a “printing” or a “reprinting,” and that the general words of the seventh section cannot be held to forbid in others what has not been exclusively reserved to the author by the words of the first section; and, further, that photographing could not have
This conclusion is entirely consistent with the construction given to the act of 1831 in the decision of Judge Shipman cited by the defendant. What Judge Shipman decided in that case was, that, previous to the amendment of 1S65, a photograph could not be the' subject of a copyright, as it was not a print, cut, or engraving, within the meaning of the 1st section of the act of 1831. The learned judge did not decide or discuss the question whether the word “copy,” in the 7th section, includes photographic copies, which is the auestion here.
Another point taken by the defendant should also be noticed, which is, that the plaintiffs’ engraving did not have upon it the information that it was a copyright, required, by the 5th section of the act, “to be impressed on the face thereof.” It appears, that the usual legal memorandum of copyright was, in this ease, in engraved letters, placed some three inches below the picture itself, and printed with the picture from the plate. The affidavit of Mr. Knoedler shows, that the notice would be seen in the margin of the print when properly framed, and that it was placed in the usual position. The defendant claims that the words of the act, “impressed on the face thereof,” require the notice to be placed on the picture itself instead of on the margin. But I think, that, when the required notice is plainly engraved on the plate from which the print is taken, within the line of a reasonable margin, and where it would not be covered when properly framed, it is impressed on the face, w’ithin the meaning of the act.
It seems, therefore, quite clear, that the defendant is infringing upon the plaintiffs’ copyright, and I must gram: the motion for an injunction to restrain him.