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BRADY v. DALY.

decided: November 20, 1899.

BRADY
v.
DALY.



ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT.

Author: PECKHAM

[ 175 U.S. Page 152]

 MR. JUSTICE PECKHAM, after stating the facts, delivered the opinion of the court.

The first objection made by the plaintiff in error to the judgment in this case is that the Circuit Court had no jurisdiction of the action because it was brought to recover a penalty or forfeiture under section 4966 of the Revised Statutes, and it was contended that the District Courts of the United States have by law exclusive jurisdiction over that class of actions.

Whether the District Courts still have exclusive jurisdiction over an action to recover for a forfeiture or a penalty arising from a violation of the copyright act, it is not necessary to

[ 175 U.S. Page 153]

     here determine, because we think that section 4966 of the Revised Statutes, upon which this suit is founded, is not a penal statute, and therefore the action in this case is not one to recover either a penalty or a forfeiture, and the Circuit Court had jurisdiction of the action by virtue of section 629 of the Revised Statutes, subdivision 9, which grants jurisdiction to the Circuit Courts "of all suits at law or in equity arising under the patent or copyright laws of the United States." Section 4966 of the Revised Statutes reads as follows:

"Any person publicly performing or representing any dramatic composition for which a copyright has been obtained, without the consent of the proprietor thereof, or his heirs or assigns, shall be liable for damages therefor, such damages in all cases to be assessed at such sum, not less than one hundred dollars for the first, and fifty dollars for every subsequent performance, as to the court shall appear to be just."

The act of August 18, 1856, c. 169, 11 Stat. 138, was the first Federal statute which conferred upon the author or proprietor of any dramatic composition, designed or suited for public representation, "along with the sole right to print and publish the said composition, the sole right also to act, perform or represent the same, or cause it to be acted, performed or represented on any stage or public place during the whole period for which the copyright is obtained." The same act further provided that any "manager, actor or other person acting, performing or representing the said composition, without or against the consent of the said author or proprietor, his heirs or assigns, shall be liable for damages to be sued for and recovered by action on the case or other equivalent remedy, with costs of suit in any court of the United States, such damages in all cases to be rated and assessed at such sum not less than one hundred dollars for the first, and fifty dollars for every subsequent performance, as to the court having cognizance thereof shall appear to be just."

Section 101, of chapter 230, of the Statutes of July 8, 1870 16 Stat. 198, 214, reenacted the provision of the act of 1856,

[ 175 U.S. Page 154]

     giving damages to the proprietor of any dramatic composition against any person wrongfully representing the same. Then came the revision of the statutes, and section 4966 embodies the provisions contained in the above mentioned acts of 1856 and 1870, in regard to the recovery of damages.

These statutes, it will be perceived, all use the word "damages" when referring to the wrongful production of a dramatic composition. No word of forfeiture or penalty is to be found in them on that subject. It is evident that in many cases it would be quite difficult to prove the exact amount of damages which the proprietor of a copyrighted dramatic composition suffered by reason of its unlawful production by another, and yet it is also evident that the statute seeks to provide a remedy for such a wrong and to grant to the proprietor the right to recover the damages which he has sustained therefrom.

The idea of the punishment of the wrongdoer is not so much suggested by the language used in the statute as is a desire to provide for the recovery by the proprietor of full compensation from the wrongdoer for the damages such proprietor has sustained from the wrongful act of the latter. In the face of the difficulty of determining the amount of such damage in all cases, the statute provides a minimum sum for a recovery in any case, leaving it open for a larger recovery upon proof of greater damage in those cases where such proof can be made. The statute itself does not speak of punishment or penalties, but refers entirely to damages suffered by the wrongful act. The person wrongfully performing or representing a dramatic composition is, in the words of the statute, "liable for damages therefor." This means all the damages, that are the direct result of his wrongful act. The further provision in the statute, the those damages shall be at least a certain sum named in the statute itself, does not change the character of the statute and render it a penal instead of a remedial one. The whole recovery is given to the proprietor, and the statute does not provide for a recovery by any other person in case the proprietor himself neglects to sue. It has nothing in the nature

[ 175 U.S. Page 155]

     of a qui tam action about it, and we think it provides for the recovery of neither ...


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