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upon this request, or to insist upon further assurance of the genuineness of the signature of the payee of the draft upon the letter. But this draft was not drawn upon any bank, was not presented to any bank, and no bank was ever requested to pay it or to collect it; so that the issue whether or not there was any method known to banking institutions whereby such a draft could be paid without an indorsement by the payee was as immaterial and irrelevant to the issues in this case as the method which bankers adopt to protest commercial paper. The grave admission in evidence by the court and submission to the jury of the testimony of these three bankers, doubtless men of standing and influence in their community, on behalf of the territory, upon this immaterial issue, over the objection and against the protest of the defendant, could hardly fail to impress the jury with the view that here was an important issue, and it may well have turned the scales in favor of the territory. The evidence was plainly irrelevant and immaterial, and its admission is fatal to the verdict.
The fact that the objection to this testimony was general, and the decisions of this court to the effect that such an objection is unavailing when it fails to suggest the true reason for it (Minchen v. Hart, 72 Fed. 294, 18 C. C. A. 570; Eli Min. & Land Co. v. Carleton, 108 Fed. 24, 47 C. C. A. 166; Shandrew v. Chicago, St. P. M. & O. Ry. Co. [C. C. A.] 142 Fed. 320; Davidson Steamship Co. v. U. S. [Č. C. A.] 142 Fed. 315), have not escaped attention. But the rule of the Supreme Court and of this court is not that the general objection is never sufficient, but that it is insufficient in cases in which it fails to suggest to court and counsel the real ground of the objection. The objection that evidence is incompetent, irrelevant, and immaterial is sufficient when the reason for the objection is readily discernible, and when it is not so it is insufficient. Sparf v. U. S., 156 U. S. 51, 57, 15 Sup. Ct. 273, 39 L. Ed. 343; People v. Beach, 87 N. Y. 508, 513; Burlington Ins. Co. v. Miller, 8 C. C. A. 612, 614, 60 Fed. 254, 256; Guaranty Co. v. Phenix Ins. Co., 124 Fed. 170, 175, 59 C. C. A. 376, 381.
Where evidence has no relevancy or materiality to the issues in the case, no specification or elaboration of reasons for its rejection can more clearly or emphatically call this fact to the attention of court or counsel than the fitting objection that it is irrelevant and immaterial. The evidence of bankers about the method of payment of a draft in banking institutions could not have been material or relevant under any view of this case, and the general objection to its admission was ample to suggest this fact. The judgments of the courts below must be reversed, and the case must be remanded to the District Court with instructions to grant a new trial; and it is so ordered.
AMERICAN TOBACCO CO. v. WERCKMEISTER.
(Circuit Court of Appeals, Second Circuit. April 4, 1906.)
1. COPYRIGHT-PAINTING-COPYRIGHT BY "ASSIGN" OF OWNER OR AUTHOR. Under Rev. St. § 4952, as amended by Act March 3, 1891, c. 565, 26 Stat. 1106 [U. S. Comp. St. 1901, p. 3406], which authorizes the proprietor of any painting, etc., "or assigns of any such person," to obtain a copyright thereon, the owner of a painting may transfer to another by assignment the right of copyright, although the assignee does not become the owner of the painting.
[Ed. Note.-For cases in point, see vol. 11, Cent. Dig. Copyrights, § 22.]
2. SAME NOTICE OF COPYRIGHT.
Act June 18, 1874, 18 Stat. 78 [U. S. Comp. St. 1901, p. 3411], relating to notice of copyright, does not require such notice to be placed upon the original of a copyrighted painting or upon its mount, but only upon the copies thereof.
[Ed. Note.-For cases in point, see vol. 11, Cent. Dig. Copyrights, § 29.] 3. SAME--ACTION FOR FORFEITURE OF COPIES.
An action by the owner of the copyright of a painting, brought under Rev. St. 4965 [U. S. Comp. St. 1901, p. 3414], for a forfeiture of the plates and copies of an infringing publication, is not the statutory action of replevin, and the right to maintain it does not depend on plaintiff's ownership or previous right of possession.
In Error to the Circuit Court of the United States for the Southern District of New York.
See 138 Fed. 162.
This cause comes here upon a writ of error to review a judgment of the Circuit Court, Southern District of New York, in favor of defendant in error, who was plaintiff below. The court adjudged that "plaintiff have and retain, and is entitled to the possession of, 1,195 sheets, each containing copy of plaintiff's copyrighted picture Chorus, found in the possession of defendant, and replevied by the U. S. Marshal; said sheets having been made in violation of plaintiff's copyright, and that the same are forfeited to the plaintiff, and are of the value of $1,010," and awarding judgment for costs. Mr. Sadler, an English artist, painted the picture, and on April 2, 1894, delivered to the plaintiff, a German citizen, the following paper: "I hereby transfer the copyright in my picture Chorus to the Photographische Geesellschaft, Berlin, for the sum of £200." Prior to that he had loaned the picture to plaintiff, who is the Photographische Geesellschaft, for the purpose of preparing a photogravure thereof. Upon the return of the painting, it was exhibited without notice of copyright in the exhibition of the Royal Academy, London, May to August, 1894. We have held that such exhibition was not a publication, because the rules and practice of the Academy prohibited the making of any copies of pictures there exhibited. Werckmeister v. Am. Lith. Co. (C. C. A.) 134 Fed. 321, 68 L. R. A. 591. On April 16, 1894, plaintiff took out a copyright in this country, and began the publication of the painting in this country and in foreign countries by the sale of photographic or photogravure copies thereof. Sadler retained possession of the painting until October, 1899, when he sold it to a Mr. Cotterell, residing in London, and at the time of the taking of testimony in this cause it was hanging in his dining room. Sadler told Cotterell before effecting the sale of the painting that he had already sold the copyright to the Berlin company, but at no time, so far as the evidence shows, was there inscribed upon some visible portion of the
painting, or on the substance upon which it was mounted, or on the frame thereof, any notice of copyright.
Wm. A. Jenner, for plaintiff in error.
Before WALLACE, LACOMBE, and COXE, Circuit Judges.
PER CURIAM. It is contended that plaintiff had no legal right to take a copyright, that he was not, within the meaning of section 4952 [U. S. Comp. St. 1901, p. 3406], an "assign" of the author, and that no one but the author or proprietor of the original painting is entitled to take a copyright. This point has been fully discussed by Judge Putnam in Werckmeister v. Pierce & Bushnell Co. (C. C.) 63 Fed. 455, and by Judge Holt in Werckmeister v. Am. Lithographic Co. (C. C.) 142 Fed. 827. We concur in their conclusions, and are of the opinion that plaintiff secured a statutory copyright.
It is next contended that plaintiff has no right to maintain the action because of omission to give the notice of copyright prescribed by section 4962 [U. S. Comp. St. 1901, p. 3411] on the original painting or its mount. That point also is discussed in the cases last-above ˆcited, and we concur in the conclusions therein expressed, although a majority of the Circuit Court of Appeals in the First Circuit reached a different conclusion. Pierce & Bushnell Mfg. Co. v. Werckmeister, 72 Fed. 54, 18 C. C. A. 431.
It is next contended that this action cannot be maintained because plaintiff did not have the right of property or possession before commencing the action. This is on the theory that the proceeding is an ordinary action of replevin under the New York Code. It is, however, a direct proceeding to secure condemnation and forfeiture of the goods, as the complaint and judgment shows. It is the "action in the nature of replevin for seizure of plates and copies," which is referred to in Bolles v. Outing Co., 175 U. S. 266, 20 Sup. Ct. 95, 44 L. Ed. 156, although the penalty for each copy seized or found in defendant's possession is not included in the same action, as this court intimated that it might be. Bolles v. Outing Co., 77 Fed. 966, 23 C. C. A. 594. The marshal seizes them to await the judgment of the court, under a writ which is most analogous to a writ of replevin, but which the Circuit Court issues, not solely under section 914 [U. S. Comp. St. 1901, p. 684], but under the broad grant of power in section 716 [U. S. Comp. St. 1901, p. 580]. There have been a great number of decisions upon this vexed question as to how the relief accorded by section 4965 [U. S. Comp. St. 1901, p. 3414] shall be secured, and they are not altogether harmonious. It will not be profitable to discuss them. The question can be decided only by the Supreme Court, and, even if we were of the opinion that the action and the writ were of more doubtful validity than we are inclined to attribute to them, it would seem to be the wiser course to affirm, and thus secure a final determination of the question, since upon all the other propositions in the case we are satisfied that no error was committed by the trial court.
Other points raised (that defendant's constitutional rights have been invaded by execution of the writ, and that information procured un
der it could not be lawfully used against defendant under the fourth and fifth amendments to the Constitution) seem to be disposed of by the recent decision in Hale v. Henkel (U. S. Sup. Ct. March 12, 1906), 26 Sup. Ct. 370, 50 L. Ed. 652.
The judgment is affirmed.
AMERICAN LITHOGRAPHIC CO. v. WERCKMEISTER.
(Circuit Court of Appeals, Second Circuit. April 4, 1906. On Motion to Amend Mandate April 24, 1906.)
COPYRIGHT-PENALTY FOR INFRINGEMENT-PAINTING.
Under Rev. St. § 4965 [U. S. Comp. St. 1901, p. 3414], providing the penalties recoverable for infringement of a copyright, and that the infringer "in case of a painting ** shall forfeit ten dollars for every copy of the same in his possession or by him sold or exposed for sale," it is not necessary that the infringing copies of a painting shall be found in defendant's possession to authorize the recovery of the penalty named, as in case of a book or photograph, but it is sufficient if they were either so found or have been sold or offered for sale by defendant. In Error to the Circuit Court of the United States for the Southern District of New York.
This cause comes here upon writ of error to review a judgment of the Circuit Court, Southern District of New York, in favor of defendant in error for $10,000, penalties for violation of section 4965, Rev. St. [U. S. Comp. St. 1901, p. 3414], one-half to plaintiff and one-half to the United States.
Wm. A. Jenner, for plaintiff in error.
Before WALLACE, LACOMBE, and COXE, Circuit Judges.
PER CURIAM. The copyright in question relates to the picture Chorus, which was the subject of the litigation covered by our decision. in American Tobacco Company v. Werckmeister (filed to-day) 146 Fed. 375. Reference may be had thereto for the disposition of several of the points (assignment of copyright, requirements as to giving notice, etc.) which are urged upon the present appeal.
The complainant alleges a sale of 30,100 copies of the copyrighted painting. None of these were found in the possession of defendant at the time of beginning action, under any process or otherwise. Defendant insists that for that reason the plaintiff failed to show facts sufficient to sustain recovery. Reliance is had on the decisions in Thornton v. Schreiber, 124 U. S. 612, 8 Sup. Ct. 618, 31 L. Ed. 577, and Bolles v. Outing Co., 175 U. S. 262, 20 Sup. Ct. 94, 44 L. Ed. 156. In both those cases the copyrighted article was a photograph. Defendant's counsel suggests that there is no reason apparent why there should be one measure of damages in the case of a book or photograph and another in the case of a painting; but it is a sufficient answer to such suggestion to note that the statute makes just such a distinction. In
the case of a book or photograph the offending person shall forfeit "one dollar for every sheet found in his possession, either printing, printed, copied, published, imported, or exposed for sale.' In the case of a painting he shall forfeit "for every copy of the same in his possession, or by him sold or exposed for sale." In the one case it will be noted that there is to be no penalty for any copy "sold"; in the other case a penalty for every copy "by him sold" is to be exacted. The structure of the sentence is conformed to this distinction. In the earlier quotation the words "found in his possession" qualify every subsequent word in the clause; in the later quotation the words "in his possession" are cut off from the next succeeding words "by him sold" by the use of the word "or." It is not necessary to inquire why this distinction is made; it is sufficient to say that it is made, in language so plain that to eliminate it would be judicial legislation.
We are satisfied, however, that there was not sufficient evidence to warrant the jury in finding as they did that the defendant had sold 1,000 copies or over to the American Tobacco Company. The representatives of both these corporations, and every individual officer and employé who was called to the stand, claimed privilege under the fifth amendment to the Constitution. So far as any privilege personal to the witness was concerned, there was no merit in such contention. No claim was made that there had been any sale or purchase by him, but only by the corporation in whose employ he was. In some instances the court required the witness to answer, but as to most of the questions and as to the books and papers of both corporations it sustained the objections. Apparently this was error. The Supreme Court has since held that corporations are not under the protection of the fifth amendment. Hale v. Henkel (U. S. Sup. Ct. March 12, 1906), 26 Sup. Ct. 370, 50 L. Ed. 652. But the result of such ruling has been to denude the case of sufficient positive evidence to sustain the verdict. It appears that over 1,000 copies of the picture were found in the possession of the tobacco company; that a design, the same as that of the copies, was submitted to one of the employés of the tobacco company by the lithographic company, and approved by him; that dealings between the two companies are frequent, and checks are signed almost daily by the tobacco company for the lithographic company; and that all kinds of printing and lithographic supplies were got from the one company by the other. But, although the very objections availed of are persuasive to the belief that the defendant made and sold all the copies which were found in the possession of the tobacco company, there is not in the record competent legal evidence to support such a finding.
The judgment is reversed.
PER CURIAM. This is a motion to amend a mandate which reversed a judgment of the Circuit Court by adding thereto a provision that a new trial be granted. Such an amendment is unnecessary. The action was one at law. The reversal did not finally dispose of the cause, but returned it to the Circuit Court with the issues undisposed of. It is entirely within the power of that court to set them for trial. Motion denied.