Louis Brandeis

“ Question II. 'In a case disclosing infringement of a copyright covering a musical composition, there being no proof of actual damages, is the court bound by the minimum amount of $250 set out in the so-called 'no other case' clause of Section 25 (b) of the Copyright Act (17 U.S.C. § 25) , reading, 'and such damages shall in no other case exceed the sum of $5,000 nor be less than the sum of $250, and shall not be regarded as a penalty?" The provision referred to is section 25 of the Act of March 4, 1909, c. ”

“ The American Society of Composers, Authors and Publishers, and one of its members sued the Jewell-La Salle Realty Company in the federal court for Western Missouri for an unauthorized orchestral performance of a musical composition for which they held the exclusive nondramatic performing rights. The infringement was proved, but there was no showing of actual damages. The defendant contended that the plaintiffs were entitled to only $10 statutory damages; the plaintiffs that $250 was the minimum allowable under the Copyright Act of 1909 (17 USCA §§ 1-62) . ”

“ But in all of these cases the Westerman decision was followed. Occasionally, where the statutory measure appeared burdensome under the circumstances, courts have reduced or refused to allow counsel fees. ”

“ The statement relied upon is: 'The provision that in lieu of actual damages and profit such damages shall be awarded as shall appear to the court just, not exceeding the sum of $5,000, is a modification of existing law, decreasing instead of increasing the amount which may be obtained in this way.' Defendant contends that this sentence indicates an intention to continue the distinction between scheduled damages for unauthorized performances, and penalties for copying ”