(dissenting).
The original bill filed in this case August 2, 1932, was heard on- defendants’ motion to dismiss April 10, 1933, and the motion was granted April 14,1933. Thereafter, on April 18, 1933* the plaintiff filed a motion “for leave to file an amended bill of complaint, amended by adding the American Mercury, Inc., as a party plaintiff, and in other respects,” attaching thereto the present so-called amended bill. On May 16, 1933, after hearing, an order was entered allowing the plaintiff’s motion, and the so-called amended bill having been filed, on November 10, 1933, the parties were heard by the court “on the pleadings and evidence.” Upon completion of the hearing the matter was taken under advisement and the case continued until the December term, 1933, when, on December 14, 1933, the court announced that a decree would be entered in favor of the plaintiffs. January 3, 1934, a decree was entered in favor of the plaintiffs, that they recover of the defendants “in lieu of actual damages or profits, the sum of five thousand dollars ($5*000), and in addition a reasonable attorney’s fee of fifteen hundred dollars ($1,500).”
It is from that decree that the defendants prosecute this appeal. In their assignments of error they complain among other things that the court erred (1) in allowing the motion of the plaintiff to amend the bill; (2) in assessing damages in the sum of $5*000; (3) that it abused its discretion in awarding damages in the sum of $5,000; (4) that it erred in awarding the sum of $1,500 as a counsel fee; and (5) that it abused its discretion in awarding the sum of $1,500 as a counsel fee.
I agree that the defendants take nothing by their first assignment of error. It is apparently based upon a misconception of the plaintiff’s motion. That motion was not to amend the bill, but for leave to file an amended or new bill. The original bill had been dismissed and, having been dismissed, there was nothing in court by which to amend. The motion for leave to file an amended or new bill having been granted and the bill filed, and the parties having appeared in court and been fully heard thereon, the defendants cannot now complain because they may have misunderstood the plaintiff’s motion.
The second assignment of error is evidently based upon the idea that the court was without authority to assess damages in the sum of $5*000 or any other sum; no actual damages having been shown. In the prayer of the bill the plaintiffs asked for actual damages or, in the alternative, “in lieu of actual damages or profits, such damages as to this court shall appear to be just and proper within the provisions of the act of Congress in such cases made and provided,” and, it being conceded at the trial that no actual damages were shown, the damages awarded were in lieu of actual damages and profits under section 25, title 17, USCA. The question raised by this assignment of error, therefore, is whether, in the absence of proof of actual damages, the court was authorized to make an award, in lieu of actual damages and profits, under section 25 of the Copyright Act. That section in part provides:
Ҥ 25'. If any person shall infringe the copyright in any work protected under the copyright laws of the United States such person shall he liable: * * *
“(b) To pay to the copyright proprietor such damages as the copyright proprietor may have suffered due to the infringement, as well as all the profits which the infringer shall have made from such infringement, * * * or in lieu of'actual damages and profits such damages as to the court shall appear to be just, and in assessing such damages the court may, in its discretion, allow the amounts as hereinafter stated, but [here follow certain specific cases not hero involved], and such damages shall in no other ease exceed the sum of $5*000’ nor be less than the sum of $250; and shall not be regarded as a penalty. But the foregoing exceptions shall not deprive the copyright proprietor of any other remedy given him under this) law, nor shall the limitation as to the amount of recovery apply to' infringements occurring after the actual notice to a defendant, either by service of process in a suit or other written notice served upon him.”
Then follows the so-called schedule of eases in which damages may be awarded and *541stating the terms and manner of arriving at the damages awarded, of which the second item is:
“Second. In the case of any work enumerated in section 5 of this title, except a painting, statute, or sculpture, $1 for every infringing copy made or sold by or found in the possession of the infringer or his agents or employees.”
The plaintiffs’ work was one enumerated in section 5; and it appeared in evidence that the defendants, in getting out their edition of the Boston Sunday Post of August 30', 1931, made 384,834 infringing copies of the plaintiffs’ work, which they sold. And at the trial the defendants admitted that the plaintiffs’ work was duly copyrighted, that the copyright was owned by the plaintiffs, and that they had infringed it; and the plaintiffs admitted that they had shown no actual damage.
There can be no question that, inasmuch as there was no proof of actual da,mage, the court was authorized to assess damages, in lien of actual damages, under and in accordance with the provisions of the statute applicable to a work of the character of the plaintiffs and infringed in the manner above specified; and the only question remaining upon this branch of the case is whether the trial court, in awarding damages in the sum of $5,000, abused its discretion.
As there was but a single infringement of the plaintiffs’ work (Westermann v. Dispatch Printing Co., 249 U. S. 100, 39 S. Ct. 194, 63 L. Ed. 499), the court, under the statute, was required to assess a sum not less than $250'; and, such sum being fixed by Congress in the statute, it is to be presuméd to be just within the meaning of the act; and subdivision second specifically provides that in the case of a work such as that of the plaintiffs the court may award “$1 for every infringing copy made or sold by or found in the possession of the infringer or his agents or employees,” limited, as specified In (b), not to “exceed the sum of $5,000.” If the sum of $250; which the statute prescribes shall be awarded for an infringement consisting of the making of a single copy, is just within the meaning of section 25 (b), then, on proof showing the making of additional infringing copies up to 5',000 or over, an award of $5,000, as fixed by the statute, is likewise to be regarded as just within its meaning. Under the statute, had the infringement consisted in the making of a single copy, or of 250 copies, the plaintiffs would have been entitled to only $250 as a just award. But on its appearing that the defendants made 384,834 infringing copies instead of 1 or 250, the question, is whether the District Judge can be said to have abused his discretion by following the terms of the statute and awarding a dollar a copy for at least 5,000 copies of the total number of infringing copies made and sold. To interpret-the statute, as applied to the circumstances here disclosed, to mean that the District Judge, in awarding damages at a dollar a copy up to $5,000, abused his discretion, would be a travesty on the law and in effect to read out of the statute the provisions of section 25 (b) and subdivision second, authorizing an award of “$1 for every infringing copy made or sold” up to $5,000.
In my opinion the award of the trial court was authorized and not an abuse of discretion. An award of damages within the statutory limits cannot be an abuse of discretion in the ease of an infringement and sale of infringing copies of the nature and number here shown, and I fail to sec wherein this construction of the act, as applied to the circumstances of this case, conflicts or is not in accord with what was held in the two cases decided by the Supreme Court (Westermann v. Dispatch Printing Co., supra; Jewell-La Salle Realty Co. v. Buck, 283 U. S. 202, 51 S. Ct. 407, 75 L. Ed. 978) construing this act.
Now as to the attorney’s fee. Section 40 of the Copyright Act (17 USCA § 40) authorizes the court in its discretion to award a reasonable attorney’s fee. The court in this instance awarded $3,500'. The evidence shows that the services rendered for which this award was made covered at least 100' hours, a substantial portion of which was devoted to the preparation and hearing of the original bill, which was dismissed. The question considered at the hearing- on the motion to dismiss the original bill related solely to whether William A. S. Douglas, the sole plaintiff in that bill, could maintain the suit, for it appeared in the hill that the plaintiff’s work or story was published by the American Mercury, Inc., in its magazine or periodical called the American Mercury, together with other matters, and that the copyright was obtained by the American Mercury, Inc., on an edition of the magazine as a whole. The question was whether, under such circumstances, and it appearing that the American Mercury, Inc., had given to Douglas what purported to be an assignment of the copyright to the extent that it covered his work, this was sufficient to enable him to maintain the suit. Some of the legal services rendered concerned that question and undoubtedly had to do with other things arising- under the original bill. These services, although they in no *542way concerned the present suit, were taken into consideration in awarding the attorney’s fee of $1,500. This manifestly was not authorized and was an abuse of power, but, as the record stands, I do not see how this court can determine what amount can be justly awarded as an attorney’s fee, as the court in this ease has done.
As to this, it seems to me the case should be remanded to the District Court for determination of the amount, and that no sum should be awarded based on services not necessary to the preparation and trial of the action under the present bill.