Page:The copyright act, 1911, annotated.djvu/87

 Civil Remedies. 75

tiou restraining the defendants from infringing the § 6(1).

current or any future numbers of a periodical (i).

An injunction may be refused where the infringement is trivial and there is no serious probability of it being repeated (w).

(2) Damages. Damages.

If proceedings are taken under sect. 7, damages may be recovered as in an action for conversion, that is to say, the plaintiff will be entitled to the gross proceeds of the sales of the infringing work. The pleadings ought to state specifically that the claim is made on this basis.

If the claim is not, or cannot be, made under sect. 7, the damage recoverable is the actual loss which the plaintift' has suffered as the natural or probable conse- quence of the infringement. Such loss may be proved by showing a diminution of the plaintiff's sales; but in many cases consequential damage of a more indirect character may be established, as where the plaintiff's work has been vulgarised by the unauthorised reproduction. In the cast! of advertisements, show cards and similar copy- right matter, the defendant's infringement maj' have ren- dered the plaintiff's advertisements practically useless, and he might properly claim as damages the cost of having fresh advertisements prepared and printed.

Damages may be assessed by a judge or jurj' upon evi- dence given in Court, or may be the subject of an inquiry in Chambers.

(3; Profits. Profits.

This is an equitable remedy, and is usually an alternative to a claim for damages. The gross profits of the defen- dant's sale may bo recovered as damages under sect. 7, but apart from that section, the profits recoverable in equity/ are the net profits {x).

If the defendant's work is not wholly piratical, the

��(t) J]radbur>/\. Sharp (1891), W. N. 143.

(«) Cox V. land and Water (1869), L. R. 9 Eq. 324 : Southern v. Bailes (1894), 38 S. J. fiBl ; Baily v. Taylor (1829), 1 Russ. & M. 73 ; Leicis v. FuUarton (1839), 2 Beav. 6, 11.

(.*•) Belfe V. JDelamotte (1857), 3 K. & J. 581. See Pike v. Nicholas (1869), L. R. 5 Ch. 251, 255, 260; Hogc/ v. Kirby (1803), 8 Ves. 215, 223; Grimsonx. Ei/re (1804), 9 Ves. 341" 346; Kelly v. Hooper (1841), 1 Y. & C. 197, 199'; Colburn v. Simms (1843), 2 Hare, 543.

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