192 F. 67 | U.S. Circuit Court for the District of Minnesota | 1912
While it is not admitted in the. answer that the defendant copied the map of the complainant, yet the evidence in the case shows that that was done, and I understand that no contention to the contrary is now made by counsel for defendant. So we start with the fact found that, the complainant having a copyrighted map or publication, the defendant has made copies of it and used them. The question is whether, under these circumstances, the bill can be maintained.
That the book contains a proper notice of the copyright is admitted; but the question is whether the map is covered by the copyright notice found in the book. It is to be noticed, in the first place, that the title of this publication is “Map-Directory.” It is not a directory alone; it is a map-directory, indicating that the map is included in the directory and made a part of it. When the table of contents is examined, we find on the first line in that table the words “Lake Minnetonka Map .Inside front cover.” The map is in a pocket in the first page of the book.
It has been held repeatedly that the copyright of a magazine copyrights every article in the magazine, that it is not necessary that the copyright notice should be repeated upon each article, but that one notice in the beginning of the magazine protects all the contents of • the magazine. If it were necessary, I should be inclined to hold that this copyright notice in the book itself protects the map. But I am of the opinion that the notice on the map itself is sufficient. It contains the words, “Copyright 1908.” To be sure, it does not say, by P. M. Woodman, nor does it say, copyrighted by Woodman; but nobody can have any doubt upon reading this language but that Woodman was the man who procured the copyright.
The complainant in his testimony specified some 38 features which he says were original in his map and did not appear in any other map unless it was in the government map. It was suggested by counsel, as I understood him, that the complainant had a right to copyright features which appeared upon the government map and did not appear upon any other map. I do not understand upon what basis that contention was made. I find nothing in the law to sustain it. On the
The defendant itself had a right to take from the same sources that the complainant sought. It had a right itself to make a map which would be identical with fhe complainant’s map and not infringe the copyright, but it did not see fit to do that. Instead of expending its own time and labor for that purpose and making a map which would be identical with complainant’s map, and thus protecting itself, it made an exact copy of the complainant’.s map, and thereby saved itself the expenditure of time and labor which, the complainant was compelled to expend himself in order to make his map.
This I think is a proper case for an injunction restraining the defendant from making, disposing of, distributing, or in any way using this map.
*71 “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 he required to prove sales only and the defendant shall he required to proye every element of cost whic-h he claims, or in lieu of actual damages and profits such damages as to the court shall appear to be just, and in assessing such damages the court may, in its discretion, allow the amounts as hereinafter stated, but in the case of a newspaper reproduction of a copyrighted photograph such damages shall not exceed the sum of two hundred dollars nor he less than the sum of fifty dollars and such damages shall in no other case exceed the sum of five thousand dollars nor be less than the sum of two hundred and fifty dollars, and shall not be regarded as a penalty.”
The rest of the section is of no importance here except subdivision 2, which provides that:
“In the case of any work enumerated in section five of this act, except a painting, statue, or sculpture, one dollar for every infringing copy made or sold” may be allowed.
The anomalous provision in this section is this: That the court may in lieu of actual damages and profits in its discretion allow such damages as shall appear to be just; yet it apparently requires such damages in this case to be $250. But it cannot be possible that, where the court is of the opinion that there were no damages at all, it still is bound to allow $250, and that, where the court is of the opinion that it would be a matter of injustice to allow even $1, it would be compelled by law to allow $250. Some other construction must be given to that provision. I think it means that where the court is satisfied that there are substantial damages, but the evidence is incomplete or is insufficient, so that the court cannot determine just 4what the damages are, then it may allow them on that basis. But wherever the court is of the opinion that the damages cannot he more than $50 or $100, it should not allow $250.
But such a presumption is altogether too violent. There is no presumption that each of these men would have gone to the complainant and paid him a dollar or 50 cents for his map, and there is no showing that they would. There is no way of determining whether the complainant could have got into communication with these men so
A decree may be entered, therefore, for a permanent injunction as prayed for in the bill, for the sum of $75 damages, and the sum of $50 as an attorney’s fee. A decree will also go for the complainant for his costs in the case. This disposition of the case will render unnecessary a reference, accounting, or any further proceeding before the master, or otherwise.