
    UNITED STATES CIRCUIT COURT.
    Harper et al. agt. Shoppell.
    
      Copyright — What is not an infñngement.
    
    The unauthorized reproduction and sale of, a copy of a cut from a copyrighted hook or weekly paper is not an infringement upon such copyright.
    February, 1886.
    
      Bangs & Stetson, for plaintiffs.
    
      J. W. Hawes, for defendant.
   Wallace, J.

The plaintiffs sue at law for an infringement of copyright, and the case has been tried by the court, a jury having been waived. The defendant has not intentionally infringed the plaintiffs’ rights, and therefore nominal damages only are claimed. The conceded facts are as follows: The plaintiffs are the proprietors of Harper's Weekly, a copyrighted illustrated newspaper, published weekly, and in March, 1878, they published in that newspaper an impression of a cut entitled “ Getting Married, Keeping House,” which formed a prominent and considerable part of the newspaper. The cut was made and designed by one Reinhart, a citizen and resident of the United States, who sold it to the plaintiffs. They have never parted with, the original cut or given permission to the defendant or any other person to reproduce it. The defendant purchased a copy of the cut from a third person in ignorance of the.plaintiffs’ rights, from which an electrotype plate was made and sold by him to the proprietor of the New York Illustrated Times, who published an impression in the issue of that newspaper in September, 1882. It is assumed that Reinhart had not allowed, this copy to be made before he sold the cut to the plaintiffs. The only question in the case is whether the unauthorized reproduction and sale of a copy of the cut by the defendant was an infringement upon the plaintiffs’ copyright The copyright of. the plaintiffs’ newspaper was a copyright of a book within the-meaning of the copyright laws.

A copyrighted song printed upon a single sheet was held to • protect as “a book,” under the English statute of VIII. Anne, in Clementi agt Golding (2 Camp., 25). This decision was approved and followed in two cases arising under our copyright statutes, in which it was held that a book within these statutes-is not necessarily a book in the ordinary and common acceptations of the word, but may consist of a single sheet as well as of a number of sheets bound together (Clayton agt. Stone, 2. Paine, 382; Drury agt. Ewing, 1 Bond, 540; see also Folsom agt. Marsh, 2 Storey, 100). The plaintiffs might have copyrighted the cut as an independent subject of. copyright They did not choose to do so. So also they could have copyrighted, each poem or song or editorial composition of their newspaper., If they had done this a reproduction of the copyrighted thing would have been piracy, however innocent the defendant might, have been of intentional wrong. They preferred to copyright. their newspaper and secure protection for it as an entire work. The cut was a legitimate part of the protected property as much so as the poems or editorial articles. The pictorial illustrations, are one form of language employed by an author to express his ideas, and when embodied m a book are as much a component, part of it as the printed text But they did not thereby copyright the cut The statute not only makes provision for copyrighting charts, prints, cuts, engravings, &e., but makes a distinction between infringement of a book and of a cut, engraving, &c: A book is infringed by printing, publishing, import.ing, selling or exposing for sale any copy of the book (sec. 4964, R. S.). A chart, print, cut, engraving, &c., is infringed by engraving, etching, working, copying, printing, publishing, importing, selling or exposing for sale a copy of the chart, cut, &c. (sec. 4965). It would' not be infringement of a book within these sections to prepare and arrange the type in exact imitation of the original, so that a copy of the book might be produced by printing, nor would it be to sell the means of making such a copy to another. The printing and publishing of a cut is an, infringement of copyright as well as the printing and publishing of a book, but the copying without printing or publishing is infringement only as to the cut, chart, print, engraving, &c.

The question here is not whether the defendant has infringed the plaintiffs’ copyright in a cut, but whether he has infringed their copyright in their book by making a plate from which a copy of a portion of their book could be produced, and selling the plate to another.

The copyright of a book is not always invaded by reproducing a part of the work. Where portions are extracted and ■published in a book or newspaper by another, the question whether there has been a piracy depends upon the extent and character of his use of them. Thus it is not piracy for a reviewer or commentator to make use of the portions of a copyrighted work for the purposes of fair exposition or reasonable criticism. The question always is whether there is a substantial identity between the original book and the reproduction, or . as it is sometimes expressed, whether there has been an appropriation,, substantially, of the labors of the original author. The law does not tolerate an appropriation which tends to supersede the original. A test frequently applied is whether the extracts . as used are likely to injure the sale of the original work (see Black agt. Murray, 9 Scotch Sess. Cases [3d series], 356). In tbe language of tbe court in Story's Ex'rs agt. Holcomb (4 McLean, 308), the inquiry is wbat effect must tbe extracts have upon tbe original work. If tbey render it less valuable by • superseding its use in any degree, tbe right of tbe author is infringed, and it can be of no importance to know with wbat "intent this was done.

Applying tbe test here, it is not altogether clear that tbe proprietors of tbe Illustrated Limes infringed tbe plaintiff’s rights, although tbey published tbe cut in a competing newspaper.

In Hutton agt. Arthur (Law Rep. [8 Exch., 1]), tbe piracy •complained of was tbe publication of nine caricatures of Napoleon IIL, originally printed separately in numbers of Punch, issued witbin tbe period of 1849 to 1867.

Tbe court found that tbe defendant bad republished them “ for tbe same purpose as tbey were originally published, namely, "to excite tbe amusement of bis readers,” and, therefore, that piracy was made out It was doubted, in that case, whether ‘the publication of a single picture would have been piracy. Kelly, C. B., said: “It is said that tbe copying of a single picture, at all events, would. not be an infringement of tbe ■plaintiff’s copyright; but it is impossible to lay that down as a .general rule.” It is not necessary to determine tbe question here. Assuming that tbe publishing of a single poem or article ■or illustrations from tbe copyrighted newspaper may be piracy, the defendant has not done this. Tbe reproduction of tbe cut .'and tbe sale of tbe stereotype plate without more, treating those .acts as using an extract from tbe plaintiffs’ newspaper, could not injure tbe plaintiffs or interfere, to any appreciable extent, with ■the profits tbey could derive from tbe sale of then copyrighted ■publication. Tbe cut was capable of use innocently in various ■ways, having no relation to tbe -publications and sale of a newspaper. If the defendant bad sold tbe electrotype plate intending, or even expecting, tbe purchasers 'to use it in competition with tbe plaintiff, be might be regarded as having sanctioned that use in advance, and consequently as occupying tbe position <of a party acting in concert with them, and responsible with them as joint-tort feasors (Wallace agt. Holmes, 9 Blatch., 65). Thus it was held in Dehuyper agt. Widdeman (23 Fed. Rep., 871 that a defendant who had printed and sold labels in imitation. of a trade-mark with the purpose of enabling the parties to whom he sold them to palm off their goods upon the public as those of the owner of the trade-mark, was an infringer.

There is no evidence, however, in this case that the defendant contemplated that the purchasers would make any illegitimate use of the plates. They could have used it as he could, to print a trade-mark or an advertising cut, or in other ways which could not interfere with the sale of the plaintiffs’ newspaper. The law will not assume, without evidence, or simply upon proof that the defendant sold the plate to the proprietors of a. newspaper, that he intended to authorize a violation of the plaintiffs’ rights (Averill agt. Williams, 1 Denio, 501). The defendant has copied the cut, but he has not printed or published' it, nor has he exposed for sale any printed or published copy of. any part of the plaintiffs’ newspaper.

Judgment is, therefore, ordered for the defendant  