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

63 F.2d 447 (1933)

BUCK et al.
v.
BILKIE.

No. 6754.

Circuit Court of Appeals, Ninth Circuit.

February 13, 1933.

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.