Falk v. T. P. Howell & Co.

37 F. 202, 1888 U.S. App. LEXIS 2738

Opinion

Coxe, J.

Since the decision of the supreme court in Burrow-Giles Co. v. Sarony, 111 U. S. 53, 4 Sup. Ct. Rep. 279, there can be no doubt that a photograph which has the artistic merits possessed by the complainant’s photograph is the subject of a copyright. The only question is, do the defendants infringe? That their design is copied directly from the copyrighted photograph is not denied, but it is urged that infringement is avoided, because it is larger than the photograph, and is stamped .on leather, and is intended for the bottom or back of a. chair. It is thought that this proposition cannot be maintained. Differences which relate merely to size and material are not important. They may affect the question of damages, but not the question of infringement. The complainant is-entitled to the usual decree.