v.

RAPHAEL TUCK & SONS CO., Limited.

(See S. C. Reporter’s ed. 267-271.)

Copyright — affixing untruthful notice in for¬ eign country — error in admission of testi¬ mony, when not reviewable.

a publication a false statement that it was copyrighted under the laws of the United States is not within the provision of U. S. Rev. Stat. § 4963 (26 Stat. at L. 1109, chap.

amended by the act of March 3, 1891, impos¬ ing a penalty for untruthfully impressing notice of copyright upon an article which was the subject of copyright In the United States.

the admission of proof is not reviewable in the Supreme Court of the United States on writ of error to a circuit' court of appeals, where no error concerning the admission or rejection of testimony was assigned in the latter court, which considered the case upon the assumption that the correctness of the rulings of the lower court in this regard was unchallenged.

[No. 73.]

Argued November 11, 12, 1903. Decided No¬ vember '30, 1903.

IN ERROR to the United States Circuit Court of Appeals for the Second Circuit to review a judgment which affirmed the judgment of the Circuit Court for the Northern District of New York, entered upon a verdict directed for the defendant in a suit 178

for the statutory penalty imposed for affix¬ ing a false notice of copyright to a publica¬ tion. Affirmed.

See same case below, 53 k. C. A. 508, 115 Fed. 85.

The facts are stated in the opinion.

Mr. A. Bell Malcomson argued the cause and filed a brief for plaintiff in error.

Mr. Harold Bianey argued the cause, and, with Messrs. Louis C. Raegcner and 8.

L. Moody, filed a brief for defendant in er¬ ror.

Contentions of counsel sufficiently appear in the opinion.

Mr. Justice White delivered the opinion of the court:

Section 4063 of the Revised Statutes, as amended by the act of March 3, 1891 [26 Stat. at L. 1109, chap. 565, U. S. Comp. Stat.

1901, p. 3412] relating to the notice of copy¬ right to be affixed to copyrighted articles, provided as follows:

“Every person who shall insert or impress such notice, or words of the same purport, in or upon any book, map, chart, musical com¬ position, print, cut, engraving, or photo¬ graph, or other article, for which he has not obtained a copyright, shall be liable to a penalty of one hundred dollars, recoverable one half for the person who shall sue for such penalty, and one half to the use of the United States.”

*On March 3, 1897, the foregoing provi-

sions were amended (29 Stat. at L. 694, chap. 392, U. S. Comp. Stat. 1901, p. 3412), by the following:

“Every person who shall insert or impress such notice, or words of the same purport, in or upon any book, map, chart, dramatic or musical composition, print, cut, engrav¬ ing, or photograph or other article, whether such article be subject to copyright or oth¬ erwise, for which he has not obtained a copy¬ right, or shall knowingly issue or sell any article bearing a notice of United States copyright which has not been copyrighted in this country; or shall import any book, pho¬ tograph, chromo, or lithograph or other arti¬ cle bearing such notice of copyright or words of the same purport, which is not copyrighted in this country, shall be liable to a penalty of one hundred dollars, recover¬ able one half for the person who shall sue for such penalty and one half to the use or the United States; and the importation into the United States of any book, chromo, litho¬ graph, or photograph, or other article bear¬ ing such notice of copyright, when there is no existing copyright thereon in the United States, is prohibited; and the circuit courts of the United States, sitting in equity, are hereby authorized to enjoin the issuing, pub¬ lishing, or selling of any article marked or

191 U. S.

MoLoughlin v. Raphael Tuck & Sons Co.

288-2W

imported in violation of the United States copyright laws, at the suit of any person complaining of such violation : Provided, That this act shall not apply to any importa¬ tion of or sale of such goods or articles brought into the United States prior to the passage hereof.”

The state of the law prior to 1897, perti¬ nent to this case, was therefore this: A penalty was imposed of $100 for untruthful¬ ly impressing upon an article which was subject to be copyrighted in the United States the fact that the same had been copy¬ righted, but there was no provision or penal¬ ty concerning the importation from a for¬ eign country of an article which was un¬ truthfully stamped in such country as hav¬ ing been copyrighted in the United States, and no express provision or penalty concern¬ ing the sale of an article in the United States which was untruthfully stamped as copy-

righted. The amendment *of 1897 caused the previous provision as to untruthfully stamping a notice of copyright to apply, al¬ though the article was not subject to copy¬ right under the law of the United States, and prohibited the importation of an article untruthfully stamped from a foreign country, and also prohibited the sale of an article in the United States which was falsely stamped, the penalty previously provided be¬ ing made applicable to the added prohibi¬ tions.

The plaintiff in error in 1898 commenced this action in the circuit court of the United States against the defendant in error, to re¬ cover the $100 penalty, provided in the stat¬ ute, for each of eighty-three alleged distinct violations of the statute. The basis of the first to the seventieth cause of action was as¬ serted to be that on or about the 1st day of August, 1896, the defendant, “at the city of New York, in the state of New York, did publish and issue a certain picture book or booklet” (a distinct article being named in the statement of each of the seventy distinct causes of action), “and in and upon said book did knowingly insert and impress a false and fictitious notice that the same was copyrighted . . .” The seventy-first and

seventy-second causes of action charged that the defendant on the 11th day of June, 1897, in the city of New York, “did knowingly is¬ sue and sell a certain picture book,” de¬ scribed therein, with a false notice of copy¬ right stamped on it. The seventy-third to the eighty-third and last cause of action charged the commission as to different pub¬ lications, of like acts, in the city of New York on or about April 26, 1897.

On the trial to a jury the defendant ad¬ mitted that all the publications referred to had on them an untruthful statement that they had been copyrighted under the laws of 191 U. S.

the United States, which statement had been affixed in a foreign country at their re¬ quest and for their account. It was also proved by the defendant, without conflict in the testimony, that all the publications hav¬ ing on them the untruthful statement of copyright were imported into the United States prior to the enactment of the amend¬ ment of 1897. Under this state of *the proof [270'J the trial court instructed a verdict for the defendant. Error was prosecuted by the plaintiff to the circuit court of appeals, and that court affirmed the judgment. 53 C. G.

A. 508, 115 Fed. 85. The court held that the penal provisions of the law had no ex¬ traterritorial operation, and therefore did not embrace the act of affixing in a foreign country to a publication a false statement that it was copyrighted under the laws of the United States. Concerning the sales made after the passage of the amendment of 1897, the court held that the trial court had correctly instructed the jury that as the books so sold after the amendment of 1897 were imported into the United States prior thereto, the right to sell them in the United States was saved by the proviso of that amendment.

The court below was clearly right in its conclusions as to the nonextraterritorial operation of the law as it stood prior to the amendment of 1897. Flash v. Conn, 109 U.

S. 376, 27 L. ed. 968, 3 Sup. Ct. Rep. 263.

In saying this we do not wish to be consid¬ ered as holding that where an act done in a foreign country against a penal provision of the law of the United States is but the in¬ itial step in accomplishing a subsequent vio¬ lation in the United States of other penal provisions, that the act done in the foreign country might not, under some circumstan¬ ces, be treated as having been performed in the United States. On this question we inti¬ mate no opinion whatever, as the circum¬ stances of the case do not require us to do so. Under the law as it stood prior to 1897 there w£ts no provision forbidding the impor¬ tation of an article falsely stamped in a for¬ eign country, or prohibiting the sale in the United States of an article falsely stamped.

There could, therefore, be no possible rela¬ tion between subsequent lawful acts per¬ formed in the United States concerning the article falsely stamped in a foreign country.

The court was also manifestly right con¬ cerning the articles falsely stamped which were imported into the United States prior to the amendment of 1897, but sold in the United States subsequent to that amend¬ ment. The proviso expressly excluded from the operation of that amendment “any im¬ portation *of or sale of such goods or articles

brought into the United States prior to the passage hereof.” Whilst this was not dis-

179

271-278

Oct. Term,

Supreme Court of the United States.

puted in the argument at bar, it was insisted that the court below erred in affirming the act of the trial court in instructing a ver¬ dict on this subject, because the evidence did not unquestionably establish that the arti¬ cles which were sold after March 3, 1897, were in fact imported prior to that date. To support this contention the evidence which is contained in the bill of exceptions is referred to. We are of opinion that the claim is without merit, and that from the testimony, as preserved in the bill of excep¬ tions, it results that the trial court correct¬ ly instructed the jury on the subject.

It is urged, however, that error was com¬ mitted by the trial court in the admission of proof concerning the date of the importa¬ tion of the articles sold after March 3, 1897. Whilst we think the contention is without merit, we shall not review the grounds upon which it is based, because it is not open to inquiry upon the record before us. No er¬ ror concerning the admission or rejection of testimony was assigned in the circuit court of appeals, and that court, in considering the case, treated it as involving only two issues, — the extraterritorial operation of the pro¬ visions of the law, as it stood prior to March 3, 1897, and the effect of the proviso which formed a part of that amendment. And this upon the assumption that the correct¬ ness of the ruling of the lower court concern¬ ing the admission of testimony was unchal¬ lenged by the plaintiff in error. We say up¬ on the assumption, since the opinion of the court of appeals makes no reference to any question concerning the admissibility of tes¬ timony, and because the assignment of er¬ rors made for that court was directed to the adequacy of the “admissions and testi¬ mony” to sustain the action of the trial court in instructing a verdict.

Affirmed.

Mr. Justice Holmes did not hear the ar¬ gument, and took no part in the decision of this case.

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