INSURANCE PRESS v. FORD MOTOR CO.

INSURANCE PRESS v. FORD MOTOR CO. (Circuit Court of Appeals, Second Circuit. November 13, 1918.) No. 37. Copyrights <@=>87 — Infringement—Damages. Owner of a copyrighted article, reproduced by defendant and circulated 'free in advertising matter without knowledge of complainant’s rights, held entitled to a small award of damages for the infringement. Appeal from the District Court of the United States for the Southern District of New York. Suit by the Insurance Press against the Ford Motor Company. From the decree, complainant appeals. Affirmed. The opinion of Augustus N. Hand, District Judge, in the District Court, is as follows: The defendant printed in a booklet which it circulated among agents and owners of its automobiles an article entitled “Nerve,” copyright of which belonged to the complainant. This had a large circulation, but was distributed as advertising matter, and not sold, and the publication by the defendant in which the article appeared has now been discontinued. The complainant had sold a few copies of the single article which it had printed, and appears to have made a profit during the first year of the publication of about $260. The complainant waives any right to an accounting for profits, which doubtless could not be established, and seeks to recover for infringement of its copyright under the penal clause of the act. <§=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes I think it probable that the defendant was to some extent benefited by the use of the complainant’s article, and it is not improbable that the complainant lost some chances to make sales by reason of the large circulation the article had in the automobile trade. While I am satisfied that the defendant was entirely innocent in the publication, and took the article from a copyrighted magazine with the permission of that magazine, nevertheless there was plainly a technical violation of complainant’s rights, and I think some damages should be awarded. The amount is undoubtedly speculative, but the case is just one of those cases which I think are intended to he covered by the statute, where no exact amount could ever be worked out under strict rules of evidence upon an accounting. Hendricks Co. v. Thomas Publishing Co., 242 Ted. 37, 154 C. C. A. 629. I feel reasonably sure that the complainant has suffered a very small amount of damages, and that the defendant has secured a very trifling advantage by the publication of the article in the automobile trade, and under the circumstances, shall award the sum of $250 to the complainant, in audition to costs and a counsel fee of $100. The decree should also provide for an injunction. Otis & Otis, of New York City (A. Walker Otis, of New York City, of counsel), for appellant. Crisp, Randall & Crisp, of New York City (W. Benton Crisp and Cyril F. Dos Passes, both of New York City, of counsel), for appellee. Before ROGERS, HOUGH, and MANTON, Circuit Judges. [MAJORITY — PER CURIAM.] PER CURIAM. Decree affirmed.