Opinion · Court of Appeals for the Ninth Circuit

Buck v. Bilkie

Buck v. Bilkie, 63 F.2d 447 (9th Cir. 1933)

Type
Opinion
Court
Court of Appeals for the Ninth Circuit
Jurisdiction
Federal
Date
1933-02-13
Topic
general

PER CURIAM. Appeal by plaintiffs from so much of a decree enjoining further violation of their copyright in a musical composition as denied to them any damages or attorneys’ fees. In the absence of proof of actual damages, an award of at least $250 damages is mandatory. Jewell-LaSalle Realty Co. v. Buck, 283 U.

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13 opinions
BUCK v. BILKIE,63 F.2d 447(9th Cir. 1933)
BUCK et al. v. BILKIE.
No. 6754.
Circuit Court of Appeals, Ninth Circuit.
February 13, 1933.
Appeal from the District Court of the United States for the Southern District of California, Central Division; Paul J. McCormick, Judge.

Copyright infringement suit by Gene Buck, as president of the American Society of Composers, Authors and Publishers, and another, against Flo V. Bilkie. From a decree granting an injunction, but denying damages and attorneys' fees, plaintiffs appeal.

Decree modified.
Philip Cohen, of Los Angeles, Cal. (Nathan Burkan, Louis O. Frolich, and Abraham Walter Socolow, all of New York City, N.Y., of counsel), for appellant.
Before WILBUR, SAWTELLE, and MACK, Circuit Judges.
PER CURIAM.
Appeal by plaintiffs from so much of a decree enjoining further violation of their copyright in a musical composition as denied to them any damages or attorneys' fees.

In the absence of proof of actual damages, an award of at least $250 damages is mandatory. Jewell-LaSalle Realty Co. v. Buck,283 U.S. 202, 51 S. Ct. 407, 75 L. Ed. 978, construing 17 U.S.C. § 25 (b), 17 US CA § 25(b), the Copyright Act § 25(b).

Under section 40 of the act (17 US CA § 40), "the Court may award to the prevailing party a reasonable attorney's fee." Any such award is clearly discretionary: We find no abuse of discretion in the denial of attorneys' fees, inasmuch as infringement ceased immediately on what defendant testified to have been the first notice received.

The decree will be modified by adding thereto an award of the statutory minimum of $250 damages, in addition to the costs.Page 448