BRADY V. DALY, 175 U. S. 148 (1899)

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U.S. Supreme Court

Brady v. Daly, 175 U.S. 148 (1899)

Brady v. Daly

No. 52

Argued October 18, 1899

Decided November 20, 1899

175 U.S. 148


Section 4966 of the Revised Statutes, enacting that

"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,"

is not a penal statute and neither provides for the recovery of a penalty nor a forfeiture.

This action, being brought to recover damages for the violation of a dramatic copyright, and not being one to recover either a penalty or a forfeiture, the circuit court had jurisdiction of it by virtue of Rev.Stat. § 629, Subdivision 9, which confers upon Circuit Courts jurisdiction of all suits at law or in equity arising under the patent or copyright laws of the United States.

In the absence of any federal statute of limitations, an action like this is limited by the limitation existing for the class of actions to which it belongs in the state where it was brought.

The question, as an original one, of how far a copyright of a play protects any particular scene therein from being publicly produced or represented by another, aside from the dialogue contained in the play, is not before the court in this case.

There was no election of an inconsistent remedy, which would bar the plaintiff from recovering in this action.

This was an action at law brought by Augustin Daly, and prosecuted since his death by the executors of his will, for

Page 175 U. S. 149

the violation of a dramatic copyright. In 1867, Daly was the owner of a dramatic composition entitled "Under the Gaslight," and in that year he took out a copyright therefor in the United States.

The play was produced by Daly and his licensees, and became quite popular, and he derived considerable profit from its production by himself and from the royalties he received. The chief value of the play and its popularity depended upon an incident in the third scene of the fourth act, commonly described as the railroad scene, where one of the characters is laid helpless upon a railroad track upon which a railroad train is momentarily expected that will run him down and kill him, and just at the last moment another of the characters contrives to reach the intended victim and drag him from the track as the train rushes in and passes over the spot.

After the play was produced, Dion Boucicault prepared a play called "After Dark," in which he introduced a railroad scene differing but slightly and only colorably from that which appeared in "Under the Gaslight." The plaintiff in error, defendant below, without the consent of Daly, produced and procured to be publicly performed on the stage in divers cities the play "After Dark," including the railroad scene.

On the 20th of May, 1889, Daly brought a suit in equity against the plaintiff in error herein, in the Circuit Court of the United States for the Southern District of New York, in which he prayed that the defendant might be perpetually enjoined from the further performance of the play "After Dark" upon the ground that the performance was an infringement of the copyright of his play "Under the Gaslight," and he asked for an accounting for all money and profits received by the defendant in that suit by reason of the performance of the play "After Dark" and of the railroad scene therein.

The complainant moved for a preliminary injunction, which was denied upon the ground that there was a material variance between the registered title and the published title of "Under the Gaslight," and that therefore the complainant had not a valid copyright. Daly v. Brady, 39 F.2d 5. After the taking of proofs on the issues joined by the defendant's

Page 175 U. S. 150

answer, the circuit court, following the decision of the court upon the motion for an injunction, dismissed the bill with costs. Daly v. Webster, 47 F.9d 3. An appeal was taken by Daly from this decree to the circuit court of appeals, where it was reversed and the cause remanded with instructions to enter the usual decree for an accounting and a perpetual injunction, the circuit court of appeals holding that the plaintiff's copyright was valid, and the railroad scene in his play was itself a dramatic composition and protected by the plaintiff's copyright, which had been infringed by the defendant in the production of the play "After Dark" with the railroad scene therein. Daly v. Webster, 56 F.4d 3. The only charge of infringement consisted in the production of that scene.

Pursuant to the mandate of the circuit court of appeals, a decree for a perpetual injunction was entered by the circuit court November 5, 1892, and it was referred to a master to take proof of the number of unauthorized performances of the play "After Dark," with the railroad scene, which had been given by the defendant. The court did not direct the master, either in the decree or in the order of reference, to ascertain anything in regard to profits; no evidence was offered before him upon that subject, and no finding was made thereon. A final decree in the case, accepting the master's report and making his findings the findings of the court, was entered on April 1, 1893, but no decree for profits was asked or rendered.

Another appeal was taken to the circuit court of appeals, and the decree affirmed, with costs, June 7, 1893. 11 U.S.App. 791.

The mandate of the circuit court of appeals on this second appeal was filed in the circuit court June 14, 1893, and a decree in conformity therewith duly entered. The defendant attempted to obtain a review of the judgment against him by appealing to this Court, but his appeal was dismissed for the reasons stated in Webster v. Daly, 163 U. S. 155.

The present action was commenced July 14, 1893, by Daly against Brady, the plaintiff in error herein, in the United

Page 175 U. S. 151

States Circuit Court for the Southern District of New York to recover damages for the violation of his copyright, placing their amount at $13,700. The complaint contained two counts, the first making no reference to section 4966 of the Revised Statutes, while the second alleged that the defendant had infringed his copyright in violation of the provisions of that section, and that,

"by virtue of the provisions of said act of Congress [the copyright act] and of said section 4966 of the Revised Statutes of the United States, the defendant then and there became liable to pay to said plaintiff the sum of $13,700, lawful money of the United States, as damages."

The answer of the defendant denied the infringement and set up various defenses which are noticed in the following opinion. A jury trial was waived, and the court found the facts as above stated, and held that the copyright obtained by Daly was good and valid and covered and protected the railway scene already described, that the acts of the defendant were in disregard of the copyright and of plaintiff's exclusive rights therein.

It was also found by the court that the evidence did not authorize an increase of the damages above the minimum amount provided for by section 4966 of the Revised Statutes, and that it had no power to establish a rule of damages below the minimum amount provided for therein, and that such section should be construed as penal, rather than remedial in its character. The only testimony in this action on the hearing before the master as to the number of representations which the defendant Brady had given that were infringements of the plaintiff's copyright, and upon which a judgment for damages could be based, was the evidence of the defendant in the equity suit above mentioned, and introduced before the master in this action, and such evidence the court decided was inadmissible for that purpose upon the ground that evidence obtained from a party by means of judicial proceedings could not be used against him for the enforcement of a penalty, and because, of the absence of all legal evidence as to the number of representations, the defendant was entitled to judgment refusing any recovery for damages.

Page 175 U. S. 152

Subsequently, upon application to the court, the cause was opened and testimony, entirely independent of that of the defendant in the plaintiff's examination of him in the accounting before the master in the equity suit, was presented as to the number of times the play of "After Dark" had been produced by the defendant with the railroad scene in it, and upon that evidence a finding was made that the plaintiff was entitled to judgment against the defendant of $50 for each performance falling within the period of two years prior to the commencement of the action -- that is to say, for 126 performances, or the sum of $6,300 with costs. The court restricted the plaintiff's right to damages to two years because it held that the action was brought to recover a penalty, and that the two years' statute of limitations applied. The defendant brought the case by writ of error before the Circuit Court of Appeals for the Second Circuit, where the judgment was affirmed, Brady v. Daly, 83 F.1d 07, and he then sued out a writ of error from this Court, and the case is now here for review.

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