Opinion
No. 5973.
June 8, 1936.
Appeal from the District Court of the United States for the District of New Jersey; William Clark, Judge.
Suit by the Pathe Exchange, Inc., against Emile Snyder, Inc., and another. Decree for defendants, and plaintiff appeals.
Affirmed.
Lewis A.R. Innerarity, of New York City, and John G. Flanigan, of Jersey City, N.J., for appellant.
Saul Joseph E. Cohn, of Newark, N.J. (Merritt Lane, of Newark, N.J., of counsel), for appellees.
Before BUFFINGTON and THOMPSON, Circuit Judges, and DICKINSON, District Judge.
This is an appeal from a final decree of the District Court for the District of New Jersey. Suit was brought for an injunction and to recover statutory damages provided for by 17 U.S.C.A. § 25 arising from the infringement of 198 separate and distinct copyrights of motion picture photoplays owned by the plaintiff. The plaintiff sold films, which had become worn through use, to the defendant company, which was in the business of refining and smelting gold, silver, and platinum. It was customary, before sale, to break up such worn films with an axe so as to prevent their sale and use by nonlicensees of the plaintiff. The films were sold to the defendant without mutilation.
There is a conflict of testimony as to what the oral sales agreement was between the plaintiff and the defendant. The defendant sold some films to a film supply company, but the testimony is not convincing identifying the films so sold as having been bought from the plaintiff. There is no satisfactory proof offered by the plaintiff that any part of the alleged agreement between it and the defendant was violated by the defendant. The trial judge made very clear findings of fact and reached sound conclusions of law, all of which were adverse to the plaintiff's contention. Finding no error on his part, the decree below is affirmed.