Page:Ripley v. Findlay Galleries.pdf/2

 Appeal from the District Court of the United States for the Northern District of Illinois, Eastern Division; Philip L. Sullivan, Judge.

Action by Aiden Lassell Ripley against Findlay Galleries, Inc., and another for infringement of a common-law copyright in a painting and for infringement of a statutory copyright, wherein a cross-complaint was filed. From an adverse judgment, the defendants appeal.

Reversed and remanded with directions.

Charles B. Cannon, of Chicago, Ill. (Wallace & Cannon, of Chicago, Ill., of counsel), for appellant Findlay Galleries, Inc.

Samuel Topliff, of Chicago, Ill. (Topliff & Horween, of Chicago, Ill., of counsel), for appellant Goes Lithographing Company.

Cedric W. Porter and George P. Dike, both of Boston, Mass. (Dike, Calver & Porter, of Boston, Mass., and C. B. Spangenberg and Dawson, Booth & Spangenberg, all of Chicago, Ill., of counsel), for appellee,

Before SPARKS and MAJOR, Circuit Judges, and BRIGGLE, District Judge.

BRIGGLE, District Judge.

Appellants challenge the propriety of a judgment of the District Court holding that they had unlawfully brought about the reproduction of one of appellee’s paintings and requiring appellants to account to appellee for gains and profits.

Appellee (plaintiff below) is an artist residing in the state of Massachusetts. Appellant, Findlay Galleries, Inc. (one of the defendants below), is an Illinois corporation engaged in conducting an art gallery. Goes Lithographing Company (one of the defendants below) is an Illinois corporation engaged in commercial lithography. The parties will hereinafter be referred to as plaintiff and defendants, as they appeared in the trial court. Jurisdiction is conceded.

In January, 1942, plaintiff consigned to defendant Findlay, as his agent, 11 of his productions for the purpose of exhibition and sale, including among them a water color entitled “Three Grouse in Snow,” which painting is the only one involved in this proceeding. The price fixed for the sale of this painting was $300 with $100 to be retained by Findlay as its commission. Findlay exhibited the various paintings and offered them for sale, but apparently without success. On March 14, 1942, it wrote plaintiff a letter