JOURNAL PUB. CO. v. DRAKE et al., 199 F. 572

MORROW, Circuit Judge (after stating the facts as above). The only question in this case is whether the court was in error when it instructed the jury to return a verdict for the plaintiffs. The action is based upon

section 4965 of the Revised Statutes of the United States (U. S. Comp.

St. 1901, p. 3414), which, so far as this case is concerned, provides: “If any person, after the recording of the title of any map * * * photograph * * * shall * * * contrary to the provisions of this act, and without the consent of the proprietor of the copyright first obtained in writing, signed in presence of two or more witnesses * » * copy, print, publish * * * in whole or in part, or by varying the main design, with intent to evade the law, or, knowing the same to be so printed, published * * * shall sell or expose to sale any copy of such map or other article, as aforesaid, he shall forfeit * * * one dollar for every sheet of the same found in his possession, either printing, printed, copied, published * * « or exposed for sale. * * • One-half qf all the foregoing penalties shall go to the proprietors of the copyright and the other half to the use of the United States.” There is no substantial controversy about the facts in this case.

The plaintiffs had secured copyrights for these photographs. They were owned by the plaintiffs, and were copied, printed, and published by the defendant, and the evidence was that such copying, printing, and publishing by the defendant was without the consent of the plaintiffs. This evidence was uncontradicted, and 400 sheets of the Oregon Daily Journal were found in the possession of the defendant, in which these two photographs were copied, printed, and published.

It was the duty of the court to instruct the jury that these undisputed facts constituted a violation of the statute and that their verdict should be for the plaintiffs. The action is a civil action for penalties. “Actions for penalties are civil actions, both in form and in substance, according to Blackstone. 3 "Com. 158. The action is founded upon that implied contract which every person enters into with the state to observe its laws.” Stearns v. United States, 2 Paine, 300, Fed. Cas. No. 13,-341; 30 Cyc. 1344.

Where plaintiff has clearly made out his case, and there is no evidence to the contrary, it is proper for the court to direct a verdict in favor of the plaintiff. 38 Cyc. 1574. It is objected that the evidence of one of the members of the plaintiffs’ partnership that consent had not been given by him. to the defendant to use the copyrighted photographs was not sufficient; that there was nothing to show that written consent had not been given by the other partner.

In granting plaintiffs’ motion to instruct the jury to find for the plaintiffs, the court stated that the photographs were reproduced and used by the defendant “without the knowledge or consent of plaintiffs.” Passing the question whether the written consent of plaintiffs was not a fact to be established by the defendant, it does not appear that all the evidence introduced upon the trial is in the record.

In the absence of such a complete record of the evidence, and the fact that there was no objection made to the statement made by the court as to what the evidence was with respect to that fact, it will be presumed that the statement made by the court was correct, and that the evidence was uncontradicted that the copying, printing, and publishing of. these two photographs by the defendant was without the consent of the plaintiffs. It is further objected that there was no evidence of any intent on the part of the defendant to evade the law.

The penalty provided by the statute is for the act of copying, printing, and publishing a copyrighted article, or for selling or exposing for sale such a copy, and the forfeiture or penalty is fixed for every sheet of such copy found in the possession of the person who has committed any one of the acts prohibited.

The general rule in such a case is that, where the defendant has been shown to have committed an unlawful act, an unlawful intent is presumed. “If a man intentionally adopts certain conduct in certain circumstances known to him, and that conduct is forbidden by the law under those circumstances, he intentionally breaks the law in the only sense in which the law ever considers intent.” Ellis v. United States, 206 U. S. 246, 257, 27 Sup. Ct. 600, 602 (51 L. Ed. 1047, 11 Ann. Cas. 589). But there is a prohibition in this statute against the copying, printing, and publishing of a copyrighted

article “by varying the main design with intent to evade the law.” That is not this case, and it is obvious that the intent to evade the law is only reqirircd to appear or be inferred where the copyrighted

article has not been reproduced in the substantial form and character of the original, but where in the reproduction there has been a varying of the main design. In such a case it should appear as a fact, or be inferable from facts proven, that the reproduction was with an intent to evade the law, and this would be a question of fact for the jury. There is no such question in this case.

It is further objected that the verdict and judgment is in excess of that provided by the statute; that the penalty of $1 is for every sheet of the infringed copyright found, without regard to the number of infringements printed on each sheet. We do not so understand the law. The penalty imposed is for every sheet upon which an infringement is printed. In this case, as there were two separate and distinct infringements printed upon 400 sheets, there were 800 infringements printed in all. The judgment of the District Court is affirmed.