Page:Federal Reporter, 1st Series, Volume 6.djvu/189

 SCHREIBBR P. SHARPLESS. 177 �less & Sons," to recover the statutory penalty for the copy' ing, publishing, and selling by defendants of a photograph copyrighted by plaintiffs. The narr. contained four counts, respectively, charging defendants with copying and printing, publishing, exposing to sale, and selling the said photograph. Defendants pleaded "not gailty." On the trial the evidence disclosed the following facts: Plaintiffs, who were photog- raphers, had made and copyrighted a photograph of the ele- phant "Hebe" and her baby " Americus." Notice of the copy- right was printed on each copy of the photograph. The defendants were dry goods merchants in Philadelphia. The Buperintendent of their domestio department (Mr. Thornto.n) desired a new label for certain goods. Seeing bne of plain- tiffs' photographs he bought it, took it to a lithographer, and, ■without the consent of plaintiffs, caused a lithographie copy to be made and 16,000 copies thereof tobe printed for labels. Five thousand of these copies were sent to the defendants' dyer and the remainder were. sent directly to the defendants' store. The dyer attached these labels to 2,800 pieces of goods, which he sent to defendants' store, where they were exposed to sale and about 200 pieces sold. About 200 cir- culars, also, with the lithographie copy upon them, were dis- tributed gratuitously. The defendants did not personally know anything about the matter until the labelled goods arrived at their store, when Mr. Thornton took a piece of the goods with the label on it, together with the photograph con- taining the notice of copyright, to Mr. Charles L. Sharpless, and exhibited them to him. He expressed his approval, and the goods were afterwards sold and the eirculars distributed, as already stated. None of the other members of the firm knew anything about the matter. The court charged the jury that the defendants were not liable for the act of their agent done without their knowledge ; that if the word "pub- lish" was applicable to a picture, these copies were publisbed by sending them to the dyer, and his use of them before Charles L. Sharpless had any knowledge of their existence ; and that the evidence did not warrant a recovery, and their verdict should, therefore, be for defendants. The verdict was v.6,no,2— 12 ��� �