63 F.2d 99 | 3rd Cir. | 1933
This is an appeal from a decree of the District Court for the Middle District of Pennsylvania enjoining the appellant from infringement of appellee’s copyright and awarding damages, costs, and attorney’s fee against the appellant.
The Standard Advertising Company, appellee, was engaged in the business of preparing' and selling designs to be used in con
The appellant admits that the material published was copyrighted; that such material was the property of the appellee; and that its act in publishing the material was unauthorized. Its defense in the court below, which is sustained by the evidence, was that all -copyright notice was omitted from the matrices manufactured by the appellee and delivered by the appellee to Levay-Stone Company; that it had no notice of the fact of copyright; and that, as a result of such omission of notice, no damages may be recovered from the appellant by the copyright owners.
Section 20 of 17 USCA provides: “Where the copyright proprietor has sought to comply with the provisions of this title with respect to notice, the omission by accident or mistake of the prescribed notice from a particular copy or copies shall not invalidate the copyright or prevent recovery for infringement against any person who, after actual notice of the copyright, begins an undertaking to infringe it, but shall prevent the recovery of damages against an innocent infringer who has been misled by the omission of the notice; and in a suit for infringement no permanent injunction shall be had unless the copyright proprietor shall reimburse to the innocent infringer his reasonable outlay innocently incurred if the court, in its discretion, shall so direct.”
Under this section, although a defect in the copyright notice does not invalidate the copyright, it does prevent the owner from recovering damages against one innocently infringing the copyright; that is, one who has actually been misled by the omission of the notice.
In Alfred Decker Cohn Co. v. Etchison Hat Co., 225 F. 135 (D. C. of Va.), a notice of copyright containing the letter C inclosed in a circle and affixed to a published illustration, as required by the Copyright Act (see 17 USCA § 18), was so defective as not to convey to any one the existence of a copyright. Although there had been a technical and incidental infringement, the decree of the court was restricted to an injunction against the future use of the copyrighted illustration, and contained no award of damages because of the defective nature of the notice.
See, also, Strauss v. Penn Printing & Publishing Co., 220 F. 977 (D. C. of Pa.).
If damages were to be awarded the copyright proprietor, the master was, of course, entirely correct in applying the measure of damages approved by the Supreme Court in Westerman Co. v. Dispatch Co., 249 U. S. 100, 39 S. Ct. 194, 63 L. Ed. 499.
It is our view, however, that the instant case falls within the exemption of damages against an innocent infringer, found in sec
The decree is reversed in so far as it imposes upon the appellant damages, costs, and counsel fee, and affirmed as to the injunction, with direction that the appellant have leave to apply to the court below for reimbursement of its “reasonable outlay innocently incurred if; the court, in its discretion, shall so direct.”