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CHAMPNEY v. HAAG.

(Circuit Court, E. D. Pennsylvania.

March 18, 1903.)

No. 42.

L Copyrights — Reproduction of Photographs — Infringement.

Where illustrations published by defendant, which were alleged to constitute an infringement of the copyright on plaintiff’s painting, were reproductions of a copyrighted photograph of such painting, and not of the painting, such illustrations constituted an infringement of the copyright on the photographs only, and not on the copyright of plaintiffs painting.

Motion by Defendant for Judgment upon Reserved Point, Notwithstanding the Verdict.

Henry C. Quinby, for plaintiff.

Ira J. Williams, for defendant.

J. B. McPHERSON, District Judge.

Upon more careful examination and consideration than was possible at the trial, I am satisfied that the evidence shows beyond question that the illustrations published by the defendant were reproductions of the photograph that had been copyrighted by Curtis & Cameron, and were not reproductions of the plaintiff’s painting by any other hand or by any other process. If the photograph was copyrightable by reason of possessing artistic value that had been contributed to it by the photographers, the right of action for the publication complained of would belong to them, and not to the painter. No attempt was made at the trial of this suit to attack the photographers’ copyright, and it was therefore necessary to regard it as at least prima facie valid. No doubt it was attacked in another suit brought by the photographers themselves, but that proceeding was still undetermined, no final judgment having been entered when the trial of this action took place. For these reasons, it seems to me that the verdict, which rests necessarily upon the finding that the illustrations in question were not copied from the photograph, has no foundation in the testimony, and that the plaintiff’s case entirely failed of support. The defendant, I think, is entitled to judgment notwithstanding the verdict. To the entry of such judgment, an exception is granted to the plaintiff.

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