# Brief for Petitioner — F. W. Woolworth Co. v. Contemporary Arts, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386407_0183%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for Petitioner - **Published:** January 1, 1952 - **Citation:** 344 U.S. 228 ## Text o . e - ' LIBRARY oe SUPREME COURT. U.S. a ah — Supreme Court nf the United States ’“Ocroner Term, 1952 - ) as 42° oO Se 00L WworTH CO., Pe titioner, a oatnal CONTEMPORARY ARTS, ING. Respondent, ‘ON WRIT OF CERTIORARI TO THE UNITED STATES | cou RT OF APPEALS FOR THE FIRST CIRCU IT. < BRIEF FOR PETITIONER, f Ca Martin A. Scuencr, KENNETH 'W. GreeNawa i, ° Attorneys for Petitioner, | One Wall Street, New York 5, New York. JoHn H.. Barser,. Of Counsel. ‘ | ¢ APPRPA!T PeImInTinge oo rae en see 6 ee eee” bce, ee i” te “s, INDEX. J | . Rot oe a PAGE Opinions Betow ................™ . al Catal SM eee eee a RONNIE 8 core S62 en ae eS id Tue Srarure [NYOLVED 2.00.02... SPE ic Ra SE yee 2 STATEMENT OR CIRO en 9 (a) Preliminary Statement . Pt E ete Sie, ERM 2 () Phe material facts hearing on the application “of Section 101(b) of T itle 17-U. S.C. to. this in MSEC ae SLULTIES Se oA AES | Che ee aN ee SPECIFICATION oF AssigNepD ERRORS TO BE I BGED 2 9 SUMMARY OF: ARGUMENT -22....... 0 10 ARGUMENT: Port I—The decisions helow have construed and applied the ‘‘in lien’? clayse of §LO1(b) of the Copyright Act in conflict vith Srp of - this Court and with decisions of COurts_ of Appeals. of other Cireuits. -Where, as here, there was siathematically cer- tain and undisputed proof of defendant’s: profits from the alleged infringing articles and no proof of actual damages,-no bdsis for a discretionary award of statutory damages eMteG erty Pornt I1--The ‘ir lieu’? clanse of Section 101(b) of the Copyright Act is not intended as a penalty, but has been’ so applied herein nce Sa texts ool 26 Concrusion Lccksperiesom-scbemanabebedcuuep distin toncbceiboccovencasets 29 af Table of Cases Dar illa Vv. Brunswick-Balky C ‘ollender a aN ay Cir. . Fed. (2d) 567 (1938), cert. den. 304 UU. Rie 2. 183 Doiglas v.-C unningham 294 U. 5. 207, 209 ees 13, 14, 22, é 23, 25; 7 . Jewell-LaSalle Realty. Eo: = vied, Zon.U. S§. AED lc aiuinensceeets nobel Os de ata 14, 25 Malsed vy, Marshall Fiéld €o., 96 FF. Supp. 372 . (US.D.C., Mi an, BDI ig _ Sammons v. Colonial Press, 1 ir., 126 F. (2a) 341 | gt a eg oe Shotdort Vs Metro-Gaiduyn Pictures Corp., 309-U. S. Tc ae AAOMOY gi BN os 13, 23, 27 — Turner & Dahuke mY, C rowley, 0 dina 2 F. 749,754. (191 pilose aan Stig eee es Dt Dish sutawaelndes bel chee ©2029 27 » Universal Pictures Co. v. ‘Harok# Lloy Corp., 9 Cir. 162 Fy (2d) 34 (1947) UP LCN SEBO UP tele Sic DN CT 18, 24 : Washingtonian Pib. Co., Inc. v.., Pearson, D.C. Cir, 140 FL (20) 465 (1944) Sint el BOB FREER IMEEM 18 Westermann Co, v. Dispatch Printing Co., 249 UC ct LA 2 1) tll TG Ae es Sanat ea aetna 15, 6 25,2 Statutes Cited Révined Rules of the Supreme ( Court of the United States, Rule 38, Par. o(b) nteeqaohoubyidererastscrsnees Se, Cod as ] Title 17, U. S. Code: Section 101 (b) du ta hae CeUaeeawweoseddceeukubanee “9 ”, 9, 10, Ll, 12, 26; o7 Title 28, U.S. Code: res me Bection 19641) 0 peageonmndinaeacilic sisunenasnias 1 = Authorities Cited Amdur, **Copyright Law and Fraction” ,-p. ».° 1133 et*seq. ey ‘Arguments before Committee on’ Patents. of the Senate and House of Representatives, gt bse on the bills S. 6330°s and. H.R. 19853, Dee, , 8-90; - > Supreme Court af thé Auited States - — AVCTOBER TeRM, 1952 £ No. 42 . A X 2 . = : t ————— . F.W. Wootworrn Co., : ‘ Petitioner, against. Cont EMPORARY Arts, INc., . ‘Respondent. 1 7 te % nsf ON WRIT OF CERTIORARL TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT: rr ae nr BRIEF. FOR PETITIONER Opinions Below ny ie The opinion of the United States Court. of Appeals for First Circuit (R. 268-80) is officially reported in 193 ", (2d} 162, The memorandum of decision of the United sae District Court for the District of Massachusetts (R. 15-25) is officially reported in 93 F. ‘Supp. 739.- Jurisdiction | o! The jurisdiction of. this Court is invoked under: Title : 28 U. S.-Code, Section 12 254(1) and Rule 38, Paragraph o(b) of the Revised sercci of the silt hear Court of the United States, : hts ay ee On. June 2 1952, this Court made an aeaw (R. 281) granting the petition herein for a writ of certiorari to the United States Court of Appéals for the First Cireuit’ ; ‘limited to- the question presented ‘by the application of ‘Section! 1Ol¢b) of Tithe 17 of _ the ‘i nited States Code to “this ease’ ‘The Statute Involved “The statute involved jierein. is. Section 101(b) of Title Ii of the United States Codes (foymerly Section 2 {D)).. It is printed herein at pages 11-12. : STATEMENT OF THE CASE (a) Prelieianey Seatsucaed This action was commenced November 1, 1949, by /plain- tiff, Contemporary Arts, Iné., the respondent here, in the ‘United Ste ites District Court for the District of Massa- chusetts, against F. W, Woolworth Co., the petitioner here, for alleged infringement of copyright (R. 5-7), The’ copyright allegedly infringed’ is for a-‘*work af art’’, entitled **Coeker-spaniel in show position’’. The work was published March 26, 1942, two. copies. of it being “deposited in bai Copyright Office on March 28, 1942 (PI. fix. 3;-R. 28, 252). Plaintiff sued as the copyright assignee (PI. Kix. 4: i 0-6, 28, 253). The complaint alleged (R. ©) that defendant had in- fringes plaintiffs’ copyright ‘‘in said seulpture and work of art’? by reproducing and selling copies thereof. Plain. . tiff demanded, in its complaint, damages and profits or statutory damages of not less than $250 (RR. 6), Plaintiff; on trial, produced. and offered: in evidence: as -the infringed articles and.as embodying the copyright”, three dog statuette models, each of wate differed from - 3 the other and none of which was identified to be a dupli- cate of the deposited work upon whieh ‘a copyright had heen obtained (R. 31, 50;, Asithe Court of Appeals noted (Rh. 269), one Was of” buff colored plaster with a spot of black on the muzzle aind on each eye, which retailed for $4.00 (Pl. Ex. 5s R. 31) ; ore, smaller, was of red porcelain, which retailed for $9.00 (PI. Ex. 6; R. 31); and one,-also smaller, was of black and white ‘porcelain, which -retailed for $15.00 (Pl. Ex. 7: R. 31). These ‘fembodiments”’ were diverse as to color, - size and materials and also, in certain ways, as to shape_ and aspect (R. 272-3). 7” . ee The alleged infringsnig article was a light-brown ceramic statuette of-a cocker-spaniel dog in show position (Pl. Ex. l; Det. Kx. A; R.-28-9), whieh retailed for $1.19. This article was. purchased by Woolworth early in 1949 from Sabin Manufacturing Co.. of McKeesport, Pennsylvania (R. 73-5, 123). Sabin, in turn, had obtained it from Lepere Pottery Company of Zanesville, Ohio (R. 124) wKich had acquired it (ie., the dies, molds and a plaster reproduction of it) as part of the stock of Burley Pottery Company of Zanesville, Ohio after Burley had made and sold ‘the dog statuette in 1938, and had later, during that year, gone out | of business (R. 139,189,141, 148-9, 154-5, 159; Def. Kx. I’; R. 136). Sah Sette ested clare ; ‘ Defendant's primary defense to thé infringement claim was that the ceramic statuette of a deg which it had sold Was not copied, directly or indirectly, froin plaintiff ’s work copyrighted in .1942. but Wits, in fact, an’ exact copy and reproduction of a statuette designed and modeled: inde- pendently, -by:a Craftsman named Moyer, using his own. pet cocker-spaniel English type as a model, in 1938, while ‘he was in the employ of said Burley Pottery Company, ‘which company, in that -year, manufactured and sold such statuettes but later‘went ‘out of busmess and disposed 4 of its stock. > In support of this defense, Moyer testified to his- making of said cocker-spaniel model, is aforesaid, and produced a grey plaster statuette (Def. Ex. Fy; R: 136), with the year date “1938” embedded in it, which he identified as an early replica of his work and which he said he found, together with -the Burley set of dies and inolds from which te make it, in the storeroom of the — Lepere concern, for whom he Ifad later gone to work.. As the Court of Appeals stated (R. 269), thes issue of agri dior pah was ‘“‘hotly contested’’, ' However, that Court upheld the District Court’s finding of infringement, as heing supported by -ample evidence and as not being clearly erroneous (R. 272-3). It also upheld, as not erroneottx (om the theory that defendant had ** gambled on a favorable discretionary ruling’’ by the trial court and having lost, could hardly be heard to complain) the ruling by the trial judge ‘in rejecting the evidenee, offered on rebuttal by defendant; of a scientific expert from M.LT. on materials and plasters to the effect _ that the plaster model (Def. Ex. F—from which the alleged infeinging model was made) was authentie and as old as the 1958 year date imprinted on it which evidence would have shown that the original of defendant’ s article ante- dated by four years plaintiff's copyright (R. 273-5, 229- 40). The Court of Appeals also overruled defendant’s contention that it had not received from the trial judge a fair and impartial trial, though it recognized that the trial judge had made remarks which were “both unszemly- and uncalled for’’ (R. 279-80), | The District Court adjudged plaintiff's copyrig t-to be valid and infringed and awarded plaintiff. joeroned damages in the maximum amount = $5,000, as well ¢ $2,000 as an attorney's fee (R. 14, 2). —_ i . The Court of Appeals affirmed that Ph, ad nt, with an ‘additional attorney's fee of $500 (RR. 280). . The order Allowing: certiorari (R, Ont J, Innits the review by this Court **to the question, -presented by the apyrlica- ‘tion vf Seetion 44 (b) of. Title 17 of the. United States Code to this case.”’ ‘ Accordingly, the factual statement which Yollows is. restricted to the- ‘fact ts bearing on that question, (b) The material facts bearing ss the Sunlicaiion: of | Section 101(b) of Title 17 U.S.C. to this case. : Defendant? s profits from its sale of the alleged bntring: ing artic le, a dog statuette, were proved with exactness. At the commencement of the trial, if was stipulated. (RK. 26-7) that Woolworth had purchased, as a trial order, from. its ae Sabin Manufacturing Co. of MekKeeés- port, Pa., 127 dozen (1524) .of ¥aid dog statuettes which Oke fae ee for sale in 34, only, of its more than 1,00 retail stores; that Woolworth had paid 60e-for each statuette and had sold theni at $1.19 eac h, for a gross eas of O9¢ per statuette: and that its total gross profit < $899, 1G, During plaintiff's case, the Woolworth: buser, Lindquist, testified likewise (R. 72-4); and was cross- examined by. plaintiff’s counsel (R. 74). Later, Sabin testified to the same effect (R. 122-3), It was also proved, without con tradiction, that Woolworth had placed with Sabin’ this: single trial order of 127 dozen dog statuettes in Jatuary 1949, and that this merchandise had been delivered to Woolworth stores in Mareh, April and May, 1949 (RL 73. 123, (132, 26, 255-6). Woolworth did not, after placing said trial order, es or purehase any nore of said dog ‘Statuettes (Ro 125, 255-6). The order was placed and the A Was received (and presumably disposed of) by said stores before Woolworth had knowledge %of - . 6 plaintiff's copyrighted work or of. the clained infringe-. ment (R. 74). ° Plaintiff’s notice. of intringe mment, dated May 23, 1949 and addressed to asstore, was: received hy the Woolworth company about June 1, 149, and Wool- worth promptly notified Sabin of. it (R:. 123, 127-9, 957: Pl. Ex, FE). Sabin thereupon automatically discontinued dealing in the article, which, incidentally, had proved a poor seller (R. 123-4). : | Woolworth, through Lindquist, had placed said. order from a finished sample of said dog statuette exhibited by Sabin (R. 74, 124). Sabin was not the manufacturer, but merely the factory distributor for the manutacturer, | Lepere Pottery of Zanesville, Ohio, a small factory with whom he had dealt for some vears (R. 123-7). Plaintiff’s counsel conceded that Woolworth had acted innocently in selling the article, stating GR. 76): © “The Woolworth Company is in the innocent position of a bystander. . It appears, from what . Mr. Lindquist says, he doesn’t know haps Was a . copy right: on the dog.’’ There was no proof that W oolworth, Sabin, Lepere, Burley or Mover ever had seen of had access to. plaintiff ’s copyrighted dog statuette or any copy or reproduction thereof or any of the diverse “embodiments”? thereof. or that anyone of them had knowledge: of sieseeat S- copy- right prior-to said notices. eG. ‘Not only were defendant’s “profits proved with mathe- matical certainty, but plaintiff did not prove any actual: damages or make anv real effort to do so. Neither did plaintiff inake any showing that it was difficult. or IM pos- ‘sible to prove actual damages. ° Moreover, no such dif- Boas ficulty or linpossibility existed in fact. The subject matter of the alleged infringement——one specific statuette— (un like a story in a newspaper which Is combined with other copyrighted features. or a motion’ picture to which the - 182). 7 infringer contributed his own tafents). presented no dif- ficulty as to proof of. damage. | Any. so-called ‘difficulty’ that plaintiff might have had ) proving its alleged actual damages, if any, Was of its . own choosing (R. 114,119, 120, 121), allowed from unchallenged statements and rulings by the District Court (R.: 77,. 111. 113-115; 117-119, 120-1) and represented merely. fhe assertions of its counsel (R. 114, 119-21, 183). Plaintiff did not prove by any evidence that any such difficulty or’ impossibility actually existed. It never pro- duced any ef its books or records of its business opera- tions, though oral and speculative testimony on the subject was early objected _ to on tlrat specific ground (R. 115, When given an opportunity by the District Court to put in evidentiary proofs of actual damages, piaintiff’s counsel | ‘stated ‘Our reliance was on statutory damages, your Honor”? (R. 182-8, 238) ; and at this time the District Court advised plainfiff’s counsel of the difieulties ‘‘un- less vou show some actual damages’? (R. 183).° Later,. however, during rebuttal, plaintiff's counsel merely made an offer of proof of some evidence of actual damages, again without any books or records to support it, which offer he did not follow up, after defendant’s counsel indicated tne necessity of plaintiff’s producing sates rec- ords and his exercising the right of cross examination in respect thereof (R. 245.6). Moreover, plaintiff failed to avail itself of the rare opportunity, suggested by the Court at the end of the trial, to have a special master appointed to ‘es 0% damages”’ (RL 247). Plaintiff's position throughout was that its-reliance was on statutory damages and that it, on its own election, had a right to statutory damages in eh of and irrespective of actual damages « or | profits (R. » 182-3 3,°248- a8). 8 Plaintiff did not produce or identify. ‘upon Me trial the dog sfat uette which was the basis of the copyright and actually deposited in the Copyright Office or a replica thereof, but only three variant models, each: of which * was. said by its counsel! to ‘fembhody"*: the copyright (R. 31, 50). Plaintiff did not prove that it was selling its copyrighted dog statuette at the titne- Woolworth placed its trial order ‘with Sabin for - the .aileged infringing statuette. Plaintiff produced no books or records to show that it was de ealing in said copyrighted dog statuette, let alone all of said three variant models, during the very brief period of several months in 1949 of the. alleged - infringement. The whole award for damages and counsel fee is in reality predicated upon a showing that was never _ made; to wit, that plaintiff had been damaged’ in its sale of said copyrighted work of art. | Also, there was no evidence that the alleged iattabing statuette .and plaintiff's s ‘Statnettes were competitive articles or sold in the satne market. According to plain- tiff, its dog.statuettes were distributed through dealers and ‘sold to dog fanciers, kennel shops, dog clubs, dog breeders, trainers. and judges and at og shows and as ee They were also sold at high- priced gift shops (R. 111-12, 116, 221). The alleged infringing article was sold in sale a | few of defendant’s low- priced stores, none of which were in New England where plaintiff had its place of business R. 10). Nor was it shown that defendant’s said sales occurred ‘during the same time period as the sales of plaintiff’s copyrighted article or of any one or all of- the several “embodiments’’ thereof, Hereinafter, under Point I (at pages 12-13), are set forth the basis of the District Court’ s award of maximum statutory damages and the basis of the Court of Appeals. abate ; ae 9 affirmance thereof, with referenees to the texts af their eapectey e opinions. - _ Specification of heitaned Errors to be Urged i. \y was efror for the Court of, Appeals ios thre irst Chyeuit, on an appeal in a copy right infringement suit, to-uphold the Distriet Court's award to plaintiff of maximurn Statutory damages in lieu of ‘plaintiff’s actual damages and defendant's profits, where plaintiff neither proved actual tlamages nor difficulty or impossibility of proving such: actual damages and where defendant's: profits were se with mathematical certainty. 2. It was error for ee Court. of Appeals tor the F irst Cire uit, to allow, on appeal, by a unique method of compu- tation: of damages without statutory or judicial sanction “in a copyright infringeme nt, suit, an award of statutory damages in an arbitrary, amount, in addition to the pre- cise amount of defendant's gross. profits, in order to maintain the exact amount of the ‘District. Court’s ; award of maximum ‘statutory damages. ab 3: The award of statutory damages, under the cireum- stance es-of this case, was erroneous-in thiat it amounted to the imposition of a penalty. 4. The decision of the Court of Appeals for the First . Circuit, in ‘its interpretation and application yf Section 1Ol(b) of the. Copyright ‘Act, particularly the “in lieu”? clause thereof, is erroneous in that it is in confliet with the decisions of this Court and with the decisions of the ° Courts of Appeals of other Cirenits. \ « 10 ce Summary of Argument The decisions below have construed and applied the “*in lieu"? clause of Seetion T01(b). of the Copyright Act in conflict with decisions of this Court and with decisions of Courts of Appeals of other Circuits. No basis for-a discretionary award of statutory damages existed in this’ case because there was exact and undisputed proof of defendant's profits from the alleged infringing articles, no proof of actual damages to plaintiff, and no showing » that it was difficult or impossible to prove such damages. Under the circumstances .of this ease, ‘the District Court’s award of maximum statutory damages, instead of the ascertained amount of ‘defendant’s profits, amounted to the imposition of a penalty. The Court of Appeals’ _ having held clearly erroneous. the District Court’s finding that profits could not be determined with legal certainty, . ‘it had_ no legal basis for affirming the District Conrt’s gross award of $5,000 statutory damages. The Court of Appeals should have. modified the judgment’ below by. limiting the award to the amount of defendant’s profits, as proved. , ; E ee | : Where either actual damages or profits are proved, there is no basis for an award of statutory damages under ; Section 1O1(b) of the Copyright Act. In-wo event, may a Court aWard, as did the Court of Appeals, both statu- tory damages and profits. ; . \ oe Ss ARGUMENT fi POINT I1— The -decisions below have construed and applied the “in lieu” clause of §101(b) of the Copyright Act in conflict with decisions of this Court and with deci- sions of Courts of Appeals of other Circuits. Where, as here, there was mathematically certain and undisputed proof of defendant’s profits from the alleged infringing articles and no proof of actual damages, no basis for a discretionary award of statu- tory damages existed. N The award by ‘the District Court of $5,000 damages was based on the Copyright Act, Title 17, U.S. ¢ ‘ode, Sec, 101 (formerly See. 25(b)), whieli permits an award of statu tory damages ‘‘in lieu of actual damages and profits’’ The statute, so far as applicable, provides: ‘S101. Infringement “Tf any person shall infringe the copyright in any work protected under the’ copyright laws of the United States such person shall be liable: * * * + a ‘‘(hb) Damages and profits; amount; other reme. dies. To pay to the copyright: proprietor such dats. _ ages as the copyright proprietor inay 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 plaintilf shall be required to prove. sales only, and. the defendant shall be required to prove every #¢lement of cost which he claims, or in lieu of actu damages ane 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, * * and such damave- shall in no other case exeeed the. sum of $5,000 ‘12 ’ E a ; her be fess than the sum of $250, and shall not be regarded as ‘a penalty. But the foregoing ex- ‘ceptions shall not deprive the copyright proprietor of any other remedy giver him under, the law, nor shall the limitation as to the amount of recovery apply .to infringements occurring -after the actual notice to a defendant, either by.service of process . _ in a suit or other, written notice served upori him. “First. In the case of a painting, statue or sculpture, $10 for every infringing copy made or af sold or found in the possession of the infringer or his agents or employees; * *° *,” a | wy 4 ‘- ; A . : . , In making its award, the Distriet Court found: | "It is difficult, if not impossib , for the plaintiff fo prove ifs actual damages and defendant’s profits, » with. the certainty required by thé law»for the _ Tecovery of actual damages and profits: (R. 24) * * * * * “Pursuant to S 101 of the ‘Copyright Act, and: ‘in‘lieu of actual damages and profits’ the Court in. its diseretion awards the plaintiff stafutory dam- ages in-the amount. of $5,000, at the rate of $10 per infringing copy for the first 500 infringing copies.”’ (R. 25) | Ai Actually, there, Was’ precise, mathematical ‘and undis- puted evidence of defendant’s profits. from its sale of the alleged infringing article. Under the statute,’in order’ i to prove such profits, plaintiff was required only to prove _ Sales-and this was ‘done. The facts as to such sales, which resulted in a total gross profit’ to defendant of $899.16, are stated above and were found by both Courts below (R. 16, 24; 269, 279). ‘’ In view. of such undisputed facts, the Court of Appeals: found (R. 279): fet a PCIE Nee 2. Jit is true that the defendant by showing: its ‘gross profits, (fol) 282) which the plaintiff does not. oe , Gaaeee f & | me are dispute and with which the defendant appears to be content, has made clearly erroneous the district ‘court-s finding that. profits cannot be determined with legal certainty. Thus anv assessment of’ "profits under the ‘in lieu’ clause is precluded.’’ However, in deciding the remaining question—and the question now before this Court—as to whether when de- -fendant’s profits have been ascertained, a court may nevertheless make an award of statutory damages under the ‘in lieu’ clause, the Court of Appeals, in a confusing statement made an unprecedented~ ruling permitting an award of defendant's ‘actual profits ($899.16) plus statu- tory damages in the purely arbitrary amount of ‘$4,100 and odd cents,’’ thusQnaintaining the gross statutory damage award of the District Court (R. 279). | The decision -of the District Court, as well as -the de- cision of the Court of Appeils affirming it, are in conflict with the decision of this Court in Sheldon v. Metro- Goldwyn Pictures Corp., 309 U. S. 390, 399 (1940), in which it was held that the *‘in lieu’’ clause was not appli- cable’ where, profits have been proved, and with the rule ‘stated by this Court in Douglas vy. Cunningham, 294 U. S. 207, 209 (1935), that the statutory damage provision was adopted to afford a copyright owner relief ‘‘in a case where the rules of law. render difficult or impossible proof of damages or discovery of profits’, eee In Sheldon v. Metro-Goldwyn Piéetures Corp. infringement, which was deliberate, was of by defendant's motion picture. Defenda from the motion picture, amounting to $4 Z, 6 proved.: ‘Phere was no proof. of actual Court, in interpreting Sectian 20(b) of the Copy stated, at page 399; 3 ’ « ’ hg “We agree with petitioners that the ‘in. lieu” clause is not applicable here, as the: profits have 4 “~w? - Lie ee Se been proved and the: only question is-as to° their apportionment.’? °°, | 3 In the earlier case of Douglas v. Cunningham, supra, the alleged infringement consisted of the unauthorized - publication of plaintiff’s co yrighted story in some 384,000 copies of a Sunday editio of a Boston newspaper. The infringenient was found to be vlear, but innocent. There was no proof of: plaintiff's actual damages or of defend- ants’ profits. The trial judge ruled that no actual damage had been shown and granted plaintiff $9,000 statutory .— damages and a counsel fee, but the First Cireuit Court of. ‘Appeals reassessed the statutory damages in the minimum amount of $250. This Court reversed the Court ~of Appeals and stated, at pages 208-9 vos The sole question presented by the petition for certiorari is whether consistently with §25(b) of the Act of 1909, an appellate court may review .the - action of a trial judge in assessing’ an amount in . lieu, of actual damages, where the amount awarded is within the limits imposed by the seetion.”’ In answering that question in the. negative and in cen- struing the purpose of Section 25(b) of the Copyright Act, this Court stated, at page 209; “The phraseology of the section was adopted to avoid «the strictness. of construction incident to a law imposing penalties, and. to give the owner of a copyright some recompense for injury done him, in a-case where the rules of. law render difficult or - impossible proof of damages or discovery of profits. ‘In this respect the old law was -unsatisfactory.”’ In two earlier cases this Court had occasion to con- sider Section, 25(b). | Sete In Jewell-LaSalle fiealty Co. v. Buck, 283 U.S. Ale (1931), where the infringement consisted of ‘an unauthor- | ie ¥ 15 ized performance of a musical composition, there was no showing of actual damages and an award of $250 minimuin ‘ fm) statutory damages was upheld. This Court pointed out, at page 206, that: ahr: the primary purpose of §25 Was to. ineor- porate in one section all of the civil remedies there. tofore given, including statuto ‘vy. damages where aclual proof was lacking.’ ([talices supplied.) In Westermann Co. v. Dispatch Printing Co., 249 U. S. 100 (1919), the infringements consisted of publications in a newspaper of copyrighted illustrations of styles and this Court held that an -award of: $250 minimum statutory damages in each case was proper. There was no proof of plaintiff's agtual damages or of defendant’s profits and both’ parties recognized that, under: the’ proofs, the damages had. to be assessed under the “in liew’’ clause of the‘statute. ‘In none of these cases ‘is there any suggestion that statutory damages may properly be awarded in the dis- cretion of the court where there is proof either of plain- tiff ‘s'actual: damages or of defendant's profits. — The decisions below, also, are contrary tofand in direct conflict with the decisions of other United States ‘Courts of Appeals. | 3 wih The leading case of Davilla vy. Brunswick-Balke Col- lender Co., 2 Cir, 94 Fed. (2d) 567 (1938) ; ceFt. den., 304 U.S. 572, is exactly in point on the question here involved; and there the ryle is stated to be iuat proof of profits precludes the recovery of statutory damages and that it is -not a matter of choice with the plaintiff whether profits, or statutory damages are to be allowed. In the Davilla ‘ase, the — infringenient— consisted of unauthorized phogegraphic records of plaintiff's copy- righted’ song and there was proof of defendant’s profits. 4 DOS: 16 | The District Court iad confirmed-the ‘award by a master: of $5,000 stattitory dainages and an attorney's fee to plaintiff. The Court of Appeals tor the Secon! Circuit unanitnously modified that decision by eliminating the $9,000 award of statiitory damages and in. place thereof, awarded -profits in the sum of $1,057.53, with a reduced attorney's fee. ; Therein,” defendant's protits ‘were proved by-a_state- ment, filed by defendant, setting forth the nitnber of records sold, the selling. price and ‘the cost of production. The Second Cireuit’ Court of Appeals stated. at page “Whether profits shall be awarded or statutory damiges allowed is:not a matter of choice with a plaintiff. In Douglas “a Cunninghain, 294 Us S. 207, 209, 5D S. Ct. 365, 366, 79 LL: Kd. 862, the.ecourt said: ‘I'he phraseology of the section was adopted to avoid’ the strictness of construction incitlent toa law imposing penalties, and to give the owner of a copyright some. recompense for injury done him, in a case where-the rules of law render difficult or impossible proof of damages or discovery of profits.’ See Jewell-LaSalle Realty Cor r.. Buck, 283 U. S. “02, 51S. Ct. 407, 75 L. Ed. 978; Hendricks Co. v. Thomas Pub, Co.) 2 Cir, 245 F.°37."" The Court algo stated, at pages 069-70 (italics ours) : ‘On the issues as framed, weethink here was ample evidence to make-an award of damages on the basis of actual profits, and therefore the master wid the court beiow were in error in granting statutory damages. The master’s report is based ‘on the theory that there. Was an inadequate explana- . tion of appellant's failure to produce certain books, that there was error in the first statement madé to appellee as to the mumber of sales, and therefore appellant probably sold or disposed’ of more than. W285 records. Be that as it may, actual profits 17 were sufficicutly established before the master so as to. preclude :the recovery of statutory damages. . * * * * ¥ Since thie aimnouil of the sales US sufficiently proved, ‘there was noe basis for an award of ‘statu- tory damages... Such an award should not be based- . upon the idea of punishment, but eepend: upon the absence of proof of actual profits and damages, Turner. & Dahnken +. Crowley, 9 Cir. 252. F. 749° (04; Westeanann Co. ¢. Dispateh, Printing Co., 249 U.S. 100, 39%§8: Ct. 194, 63 L. Hd. 499," in Sammons vy. Colonial Press, 1 Cir., 126 F, (2d) 341 (1942), the Court of Appeals for the First Circuit unani- | mously approved and followed the Davilla case. Therein, the District Court had awarded plaintiff, as to one defend- ant, statutory damages in the mjnimum amount of $250. On plaintiff's apveal, the Court of Appeals reversed and ¢ remanded the éase. to the District Court for the purpose of ascertaining if that defendant had made. any profits, With instructions that. the amount of such profits, if ariy, would be the measure of recovery. The Court of Appeals stated, at page 350: “No evidence ‘of actual damages having been given, if Colonial. Press made no profits for which itis accountable thé assessment by the district court under §25(b) of statutory damages against Colonial ° in the minimum amount of $250 cannot be reviewed “upon appeal. Douglas ¢. Cunningham, 1935, 204 U.S, 207, 210, 55'S. Ct. 365; 79 L, Ed. S62; Hartfield v, Peterson, 2 Cir., 1937, 91 F. 2d. 998, 1001. How- ever, If the district court finds after further hearing upon remand that Colonial Press made profits for Which it must account, the. amount of such profits will be the measure of recovery, and it will no -longer be- permissible to dlecree statutory damages ‘in lew of actual damages and profits.” Sheldon vw, Metro-Goldwyn Pictures Corp., 1940, .309 U. S. 18 390, 399, 60S. Ct. G81, 683, 84 L. Ed. 825: Davilla v. Branswick-Balke CoHender Co. of New York, 2 Cir, 1938, 94 F. 9q 967, 569). Cf. Johns 2& Johns Printing Co. 7. Paull-Pioneer “Music Corp., 8 Cir., ~1989,;-102 F, 2d 282." : SAY B : However, in the instant case, that ‘same’ Court has brushed aside the Pardla case simply with the comment that while the language therefrom relied upon by. petitioner ‘seems to lend support to its arguinent that proof’of actual profits precludes the assessment of Statutory damages under the ‘in lieu’ clause,’’ such language was ‘‘taken out of context’? (R. 276-7).. That comment is without. basis since, obviously, the Davilla case is exactly in point. here. Realizing that, respondent's attorney, much more forth-_ rightly than said Court, sought to avoid the’ Davilla case, in his brief herein opposing certiorari, on the ground it “was “wrongly decided’? (with which we disagree). In Universal Pictures Co. v. Harold Lloyd Corp., 9 Cir., 162 F, (2d) 354 (1947), the Court of Appeals for the Ninth Circuit has adopted the same rule. Therein.on plaintiff’s - cross appeal, it stated at page 378: ee aie ‘Award of statutory damages in the terms’? of ‘the statute is proper only in the -absence of proot of actual damages and profits. The court: having found the extent of both, the point fails. The court awarded actnal damages, holding the award on that basis as adequate without resorting to the use of statutory damages. We find no error, in this 99 course. The rule of the Sheldon and Davilla cases, cited above, has also been followed in® the Court of Appeals for the’ District of Columbia. In Washingtonian Pub. Co., Inc: y. Pearson, -D;-C. Cir. 140 ¥F. (2d) 465 (1944), that Court. stated: ‘ . 19 ‘Since the ‘in lieu’ clause is not intended as a penalty, the court was right in awarding no dam- ages, That ¢lause ‘was adopted * * * to sive the owner of aé opyright some recompense for injury done him, in a case where the rules of glaw render ripe ‘ult or impossible proof of damages or diseovery profits’ (Douglas, et al. . Cunningham, et al., . = U.S. 207,- 209, 55'S. ns 365, 366, ¥9 1... Kd. 862). It is not applicable here, first beequse. there Was no ‘injury done’ te appellant (Woodman. +r. Lvdiard-Peterson Co: C, us D. Minn., 198 F. 67; ef. Lo A. Westermann Co. ». Dispatch Printing Co., 294 1. S. 100, 108, 39'S. Ct 194, 63 L. Ed. 499) and heeona hecause ‘the profits have been , proved i. oe Sheldon Fy. Metro-Goldwyn Pictures Corp.. 309 U.S. 390, 399, GO S. Ct. 681, 684, 84 L. Ed. 825; Davilla +. Brunswick-Balke Collender Co, of “New York, 2 Cir., 94 F. oe 567).°° A very recent case directly in point arose in a District | sepa in the Ninth Circuit.” In Malsed v. Marshall Field +» 96 FL Supp. 872 (U.S. D.C W. D. Wash. N. D., 1951), ution was brought for infrinkement of copyright on a_ abel and plaintiff sought an injunetion, damages and orotits, In making an award of $100 profits, the Court said at pages 376-7 (Italics in original) : * "The ‘in lieu’ provision is, as the: language of the section states specifically, ‘in lieu of actual ° damages and profits.’ . “It does not apply where either actual damages or profits. are “ascertainable. This has. been the roling of the courts ever sitice the section was amended to its present form, The folléysing quota. tions are. typical: ‘**The phraseology of the section was adopted to avoid the strictness of construction-incident to a a law- imposing ‘penalties, and to give the owner of a copyright some recompense for injury done him, in case where the rules of law render dif- ¢ 20 = feult or impossible proof of damages or discovery of pr ofits, In this: respect the old law was unsatis- factory.’ - Doviglas ¢. Cunningham, 1935, 294 0. S.: 207, 209, 55 S. Ct. 365, 366, 79 L. Ed. S62. -(Empha- sis added.) "The plaintiff seems to suppose that, regard. less of any Joss, it nay satisfy its spleen by treat ing the allowances as ‘pe nalties: but the. seetion expressly declares:-that they are not to be regarded as such. ‘They are ‘tin liew of actual’ d: undges and profits,’’ and are limited to ‘such damages as to the court) shall appear to be just,’’ though it is true that the court may use them without proof. of the qQantum of the loss. The minimum was all that Was proper, When we can see, as we’ ean, ‘that the ‘plaintiff has not been damaged.” (Russell & Stoll Co. r. Oceanic Klectrieak Supply. Co... 3:(r,, 1936, SUF, 2d S64, S65, ye’ ice Dy ; - e e .. = * o & : S| se : “Lhe ‘In Lieu’ Provision Does Not Apply. “The plaintiff takés the view that, because the recovery of hoth profits and damages are allowable, the ‘in lieuw* provision is effective in case one or ‘the other element of recovery is difficult of ascer- tainient. The weakness of this argument is that it overlooks the very wording of the section Wwhigh is fo the effect that in order that the ‘in lieu’ pro- Vision be resorted to, there must be dittie ulty or lmnpossibiity of computing both damages and profits, Or, differently put, if profits me ascertainable, the niin provided In the ‘in lieu’ provision need e be resorted*to) The Supreme Court in Sheldon Metro-Goldwyn Corp., 1940, 309 UL oS. 390, 396. 60 S. Ct. 681, 684, $4 La Ed, 820, has said so gpe- cifieally: “We agree with petitioners that the **in. lieu’ , clause is net applicable here, as the profils have been.proved and the only question is ‘as to their apportionment.’ (Emphasis added.) . * dub, whe n the plaintiff has suffered no damages, and ‘the profits are asce ‘rtajirah le, te resort-to. the te ‘ pt, 21 ‘in Hew’ clause and award to the plaintiff a mini- mum based upon her theory of three publications,—. the printing, of the“five hundred labels and the two advertisements--would amount te the imposition of a penalty. And the tin lieu’ provision has been declared by the cases vot to be such, yut rather,the - ejuitable substitute for cases which present. diffi-. culty or intpossibility of -proof. as to damages and -” profits, -Douglas +. Cunningham, stpra, 294 U. S. at. pages, 209-210, 55.8. Ct. 865, 79 LL. Ed. 862. Where no such difficulty exists; where, on the con. _ trary, exact proof of profits has. been made, and no- - other damage is sliown to have flown from the vio- lation, there is no need for resorting to the ‘in lieu’ -:\ provision.” \ a eed a as As shown in. the statement of facts, not only were defendant’s profits proved with certainty, but plaintiff. failed to prove any actual damages or’ that itéwas difficult. or impossible to, prove sueh damages.’ No such difficulty or impossibility eXisted in. fact because plaintiff's dam- agesy if any, were readily susceptible of proof.t Plaintiff, - lowever, relied sokely on. stit@ory damages and took the” position throughout that: it, onaits” own election, had the right to statutory damages in plage of and irrespective * of actual damages or profits. | Ree | The District Judge Moreover, was under a inisappre- ~ henson ‘as to the appropriate rile of dantage to be applied im such a-case as ‘this, It was his erroneous position that, once Infringement Of copyright was proved, all die. had to do was to apyity the statutory measure or. vard- stick of statutory damages which he regarded as “fixed! "(R. 77, 11, 118-4.- £19.21. 248); and ‘plaintiff's unsel “aequiesced in that. position (R. 11, 114, 121, .248).: It. ie also apparent from said cited referencées to the Record “that the Distriet Judge was under a further ertoneous inpression that he was required to assess statutory dam oh aa : q i } ~~ - Douglas vy. Cunningham, 294 v. 22 ages for infringement of copyright at $10 for each copy up to $5,000, Actually, under the stafute, the. $100 figure . is purely discretionary. (See W estermann C6... Dis- patch Printing Co., 249 U.S. 100, 105, supra; Turner : Dahunken vy. Crowley, 9 Cir, 252 FP. 749, 754 (1918) . S. 207, 218, supra; pa Copyright Law and P ractice, a p. 1133 ef seq.) While plaintiff’s counsel conceded and the District Court -recognized. that defendant was “in the innocent position of a bystander” (R. 76), nevertheless, that Court anche an award of statitory damages and: attorney’s fee Which amounted to the imposition of a penalty. Such awards could have been no more punitive if defendant tad been a deliberate infringey, after notice (ef. it. 34), Despite that state of the Record, the Court of Appeals stated that the District Court, on adequate evide nee, cate- rorically found that the plaintiff had suffered damage — from the alleged‘ infringement (R, 278). Actually, the » District Court made no such finding. The District Court stated merely, that: ‘the plaintiff, offered testimony’ * that the sale of its dog statuette Was harmed by the. ‘sale of thre W oolworth dog ¢R. 24) and. then restated, praetically verbatim, the offers of eyide neé as made. by plaintiff *s counsel, which. offers were rejected (R. 113-119, 244-6, V48), and the assertions in his opening statement (R. 32). No such lestimony was actually received. The Court of Appeals thus assumed that. the plaintiff sustained actual damages - and that While defendant's profits ‘in the amount of $899.16 were proved within the requirements of the statute, neS€rthele ess, plaintidf in addi- tion to these profits was entitled to statutory damages. The. rationale for this novel method of calculation appears -— to iaye been the Court,of Appeals’ erroneous conclusion that inca copyright action, once infringément’ is estab- cae if plaintiff Ix entitled to both his own actual daro. : 23 ages and defendant's profits. It alse placed a new and unwarranted interpretation on the case of Douglas _v. Cunningham, supra, by citing that case ax authorjty for tie proposition that statutory damages are recoverable When ‘it is difficult or impossible for a plaintiff to prove thie actual amount of either damages or profits with the certainty required by law’? (R. 219)" (italies supplied). Actually, this Court has already. stated that the pro- prietor of a copyright, like the holder: of a patent, Is entitled to actual damages or actual profits, Whichever is greater. In. Sheldon vy. Metro-Goldwyn Pictures Corp., supra, this Court examined .the intent of Congress in enacting in 1909 the section in the Copyright Act pro. viding for dainages, Which section, for the first time, gave statutory sanction for the recovery of profits.» In 309 U.S, at page 400, the Court said: ‘*In passing the Copyright Act, the apparent inten- tion of Congress was to assimilate the remedy with ‘respect to the recovery of profits to that ‘already recognized in patent cases. Not only is there no sug gestion that Congress intended that the award of profits should be governed by a -different principle in copyright cases but. the eontrary is clearly iftdi- ‘cated by the committee reports on the bill. As to }25(b) the: House Committee said: % ‘Section 25 deals with the matter of civil reme- dies for infringement of a copyright *°* *, The provision that the copyright proprietor may have * such damages as well as the profits which the infringer shall have made is substantially the same provision’ found in section 4921 of the Revised Statutes relating to. remedies for the infringement of patents. The courts have aisually construed that: to mein that the owner of the patent might have one or the other, whichever was the greater. Ag such a provision was found’ both-in the trade-mark and patent laws the comuittee felt’ that it might be properly included in the copyright laws’,”’ «- 2 ; The issue of Whether a successful plaintiff in a copy- right case was entitled to both profits and damages was squarely met in Universal. Pictures Co. v. Harold Lloyd Corporation, 162° F. (2d) 354, 375-6. supra. Therein an award of $40,600 actual damages had been made and when defendant vappealed and denied infringement, plaintiff cross-appealed on the question of damages and sought, in addition to plaintiff's damages, defendant’s profits. The Court in refusing to grant profits, in addition.to damages, relied on the’ Sheldon case, supra, referred to the intent of Congress as expressed in the Committee report quoted above and’stated that the intention of Congress was to ’ award a copyright) proprietor cither actual damages or defendant's actual profits, whichever Was the larger, When the Senate and’ House Bills revising the Copy right Act were before the Joint’ Committee, this section of the statute was criticized since if appeared to permit” a double remedy in allowing the recovery ot both profits and damages. As the Cominittee report (quoted in. the in the Sheldon case above) points out, a’ similar sttuite Patent. Act has been construed hy the Wourts not such a double recovery. All of this wis brought Out in the Committee hearings and. prestunably was influentfat | . the passage of the Aet containing the present language as | fo profits and damages (see pp. 174.5, 408 of ** Argunente before Conimittee on Patents of the Senate and House of Representatives, Conjeinted, on the bills S. 6330 and H.R. 19853, Dee. 7, & 10, 11. 19067"). Since a cppyright proprietor is not entitled to both profits and damages, but only one or the other, obviously the Court of Appeals was unjustified in awarding profits plus stattitory damages. Even if. the Court of Appeals fad any evidential basis for assuming that plaintiff had suffered some damages, ‘it certainly liad no evidential bas?s for assuming that such damages exceeded the amount .of defendant’s profits. pear: 20 There is no authority either im the sfatute or in any court decision for a court’ s exercising its discretion under the facts of this case. The statute precludes the exercise ‘of discretion whenever actual damages or profits are ‘proved. gDiscretion, Which is not reviewable, comes into play only whe neither profigs nor damages have been proved, in Which event, the court-has diseretion in making an award within the £P50-$5,000 statutory limitations {Westermann vy. se meet Printing Co., supra; Jewell- La- Salle Realty Co. v. Buck, ‘supra; Bouaios v. Cunninghani, supra), The Court of Appeals eee inan effort to justify. its decision (R. 276-7), to distinguish the cases. cited by petitioner (the ee Nrom which that Court) admits lends support to petitioner’: swargument that proof of actual: profits precludes the assessment of statutory: damage) under the ‘tin lieu’? clause). The substance of that \ attempted distinction is that in the present case alone there is a ‘‘live’’ issue of plaintiff's damages (R.277). However, the only ease that that Court specifically, at- tempted to distinguish was its own earher decision in Sammons vy. Colonial Press, supra. “As to that case, ‘thre Court said (R. 277-78): : - “It is made clearly to appear that there was no issue of the plaintiff’s damages, the only recovers sought .or the only recovery available, on the evi- dence being thie infringer’ ’s profits,’’ but ‘the case at bar differs: radically from those upon whieh the appellant relies in that here we have a live issue of daniages.”’ t —v Actually, in the Sammons case. the: Court (pp. 544-5) merely said that because of the difficulty of proof, the playntiff did not attempt te prove damages which would have been measured by the ** profits which the plaintiffs 26 would have made upon additional sales of its copyrighted book, had not the infringing book been competing in the market.’? The Court did not say that fhe plaintiff had not suffered actual damages; (and, in -taet stated that normally a copyright proprietor. is “presumed to have suffered from the infringement” (p. 545),) but only that- therein there was no evidence of actual damawes. Like- Wise, in the present case, there Was no evidence of actual damages. Nor. can the two cases be distinguished, as the Court: suggests (R. 277-8), because the plaintiff” herein ‘in its complaint specifically demanded, in addition 40 an Injunction, attorney's fees and costs, both damiiges and . profits in such amount ‘as to the court shall appear proper «= * Be hy .* In the Sammons case, sapra, plaintiff likewise in’ its complaint sought’ statutory damages in addition to an injunetion. What the Court of Appeals has really done herein is to depart-from its decision in the Sammons case, wherein it followed the Darilla decision and has thus brought itself in. conflict with that deeision of ‘the Second Circuit. It is-clear from the foregoing. ae respectfully submit, . that both Courts below have misconstrued and misapplied: - Section LOT(b) of the Copvright Ae and that their dee. sions are in confliet With the decisions’ of this Court and of Courts of Appeals ot other Cirenits, | POINT II The ‘‘in lieu” clause of Section 101(b) of the. Copy- right Act is not intended as a penalty, but has.been so applied herein. | | : ‘The award ot) maximum statutory damages against ‘defendant, under the circumstances: of this Case, amounted to the imposition of a penalty, & learly 27 Although it was conceded that defendant was in the “innocent position of a bystander’’ and was not a delib. erate infringer, had no knowledge before notice of plain- tiff’s copyright and ceased dealing in the ‘accused article promptly upon receiving such notice or even prior thereto: and ,although defendant's total gross profits from the sale of the alleged infringing article were only $899.16: and although there was no proof of actual damages to the plaintiff, either in an amount exceeding the amount of such profits or in- any amount whatever; nevertheless, the Distriet Court ‘in its discretion’? made an award of statutory damages against the defendant in the maximum amount of $5,000 with an attorney’s fee of $2,000 and the Court. of Appealshas, by a novel ealeulation and theory, upheld that award, with an additional attorney's ' fee of $500. There is, in the cireumstances of this ease, no rational hasis for either the award or its affirmance, or for such Siowesnstie ee fees. Section 101(b) of the Copv- right Act: specifically provides, in respect of statutory damages, that such damages ‘shall’ not he regarded as a penalty’. It has heen stated repeatedly and in numerous cases that the ‘‘in ‘lieu’ clause is not intended as a penalty and that damages are not to he awarded as based upon the idea of punishment. (See, for instance. the. following eases: Sheldon ¥. Metro-Goldwun € ‘orp., supra, at page 399; Douglas y. Cunningham, supra, at page 204: Westermann Co. vy. Dispatch Printing Co., supra, at pages 107-9; Davilla vy. Brunswick-Balke Collender Co... supra, at page 570: Turner & Dahnken vy. Crowley, 9 Cir, 25° F. 749, 754 (1918).) ae | The -District> Court Judge seems to have had the erroneous impression that the statutory damage provision Was predicated upon the theory that such.damages are punitive and plaintiff's counsel concurred in this errone. ous view (R, 34). ° . _* - Sas 28 ay ; f r The only plausible explanation. of this award of statu- tory damages in ‘the \aiicimum amount against defendant appears to be found in the hostility manifested against defendant throughout che ‘suit by the Distriet Judge.’ ‘This may well have been caused. or furthered by the wholly unwarranted invectives directed at defendant by plaintiff *s counsel,” f oy at The Court of Appeals overlooked said remarks of _ plaintiff's eounsel as being yrompted by -“exeess of zeal p Se in. & hotly contested. trial’’. It recognized that certain of the remarks of the trial Judge in the course of ‘the pro--— cooding were ‘*hoth unseemly and unealled for’? and ‘would better have een. left unsaid, and are better not yuoted’’ (R. 279-80), In these expressions, in. and. of themselves, the Court. of Appeal found: no’ reversible error (R. 280) and that point is not before this Court. But that is quite apart from the question of whether such “expressions are indigative of the punitive nature of the award. : , ‘For example, see Record. at p. 11.and alse at pp. 125, 127, 130, 138-43, 148, 150-1, 155, 158, 160, 163-4. 175, 181, 189-202/ 208-f2. 222, 237-8: also, ‘note how the trial juage opened the door wide for plaintiff for rebuttal with assurances. te, defendant's cotinsel that he would be given the “same latitude” and would “not he ‘foreclosed if he had any other evidence” (R. 181-2) and how later, the trial judge excluded defendant's most faite ac rebuttal evidence regarding the authenticity and date of tts grey plaster model (R. 229, cf seq.). I? rexample, sve Record, })h. 33-5 ancl 45, . ° i 44 29 CONCLUSION The judgment of the Court of Appeals for the First Circuit should be reversed, with costs and disburse- ments to defendant, and the judgment of the District Court for the District of Massachusetts should be modified, with costs and disbursements to defendant, | so as to limit plaintiff’s recovery to the amount of defendant’s profits, without counsel fee. ‘Respectfully submitted, ~~ -Martix A. Scuenck. ; KENNETH W. Greena WALT, | Atlorneys for Petitioner. Joun H, Barper, Of Counsel. Dated: October, 1952. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386407_0183%3A4. Public record. Not legal advice.