Where a painter by repainting a copyrighted picture effects a substantial change, the original copyright does not protect the picture as repainted. Rev. Stat., § 4959, and see Fed. Stat. Ann.; Lawrence v. Dana, 15 Fed. Cas. No. 8,136; Drone on Copyrights, 146; 9 Cyc. 924.

In an action to recover for an infringement of a copyright it must be shown that the publication complained of is a copy of or copied from the copyrighted painting. Reproduction of a copyrighted photograph of a painting is not an infringement of the copyright on the painting. Champney v. Haag, 121 Fed. Rep. 944.

The insertion or impression of a copyright notice upon a painting before applying for a copyright is prohibited. Rev. Stat., 4963, and see Fed. Stat. Ann.

A variance can only be where there is a clear discrepancy between averment and proof. 29 Am. & Eng. Ency. 580; Walford v. Anthony, 21 E. C. L. 75.

A brief by Mr. E. L. Coburn and Mr. Josiah M. McRoberts was filed by leave of the court for the Tribune Company as amicus curiæ to which a reply brief was filed by the counsel for plaintiff in error.

MR. JUSTICE DAY delivered the opinion of the court.

The plaintiff in error, also plaintiff below, brought an action in the Circuit Court of the United States for the Northern District of Illinois to recover damages under § 4965 of the Revised Statutes of the United States, because of the publication by the defendant of more than one thousand copies of a newspaper containing a picture of a painting, copyrighted by the plaintiff. The plaintiff alleged that he had in all respects complied with the Revised Statutes of the United States by causing to be deposited, on or about the fifth day of November, 1901, a photograph and a description of the painting for the purpose of having it copyrighted, which deposit was before

publication of the same in the United States or in any foreign country. By reason of the premises and the compliance with the statutes of the United States the plaintiff claimed to be entitled to a copyright for the painting for the term of twentyeight years from and after the recording of the title thereof by the Librarian of Congress on November 7, 1901.

There were other allegations, and proofs tending to show a publication of a copy of the photograph in the newspaper of the defendant company. In the course of the trial it appeared that the plaintiff had deposited a description and photograph of the same painting with the Librarian of Congress on October 7, 1901, for the purpose of securing a copyright. The trial court charged the jury, as a matter of law, that the plaintiff had brought his suit upon the wrong copyright, and therefore directed a verdict in favor of the defendant. Upon writ of error the Circuit Court of Appeals for the Seventh Circuit affirmed this judgment. Caliga v. Inter Ocean Newspaper Co., 157 Fed. Rep. 186. The case is now here for review.

The photographs filed upon the two applications for a copyright are identical. Nor is any substantial change in the painting shown; the copyrights undertaken to be secured were, therefore, upon the same painting. The difference is that in the copyright sued upon, that of November 7, 1901, the title and description are, "The Guardian Angel. Portrait of a young girl sitting, hair arranged smoothly over the ears, hair parted in the middle. Her guardian angel stands behind her, one hand resting on her left shoulder, the other on her right arm." The description accompanying the application for the copyright of October 7, 1901, is, "Maidenhood; A Young Girl seated beside a Window; An Angel stands behind her."

The question in this case is: Is the second attempt to copyright valid and effectual, or was the court right in charging in substance that it was void and of no effect?

We have had such recent and frequent occasions to consider the nature and extent of the copyright laws of the United States, as the same were before the recent revision, which took

effect July 1, 1909, that it is unnecessary to enter into any extended discussion of the subject now. Bobbs-Merrill Co. v. Straus, 210 U. S. 339; White-Smith Music Pub. Co. v. Apollo Company, 209 U. S. 1; American Tobacco Company v. Werckmeister, 207 U. S. 284; Bong v. Campbell Art Co., 214 U. S. 236. In these cases the previous cases in this court were cited and reviewed.

As a result of the decisions of this court certain general propositions may be affirmed. Statutory copyright is not to be confounded with the common-law right. At common-law the exclusive right to copy existed in the author until he permitted a general publication. Thus, when a book was published in print, the owner's common-law right was lost. At common-law an author had a property in his manuscript, and might have an action against any one who undertook to publish it without authority. The statute created a new property right, giving to the author, after publication, the exclusive right to multiply copies for a limited period. This statutory right is obtained in a certain way and by the performance of certain acts which the statute points out. That is, the author having complied with the statute and given up his common-law right of exclusive duplication prior to general publication, obtained by the method pointed out in the statute an exclusive right to multiply copies and publish the same for the term of years named in the statute. Congress did not sanction an existing right; it created a new one. Wheaton v. Peters, 8 Pet. 591, 661. Those violating the statutory rights of the author or proprietor are subject to certain penalties, and to the payment of certain damages, as is provided in the statute.

Section 4952 of the Revised Statutes as amended in 1891 (3 Comp. Stat., § 3406), provides that the proprietor of any painting, upon compliance with the provisions of the copyright act, has the sole right of publishing, copying and vending the same. By § 4953 we find that this right exists for the period of twenty-eight years from the recording of the title of the copyright, with a right to certain extensions after the ex

piration of the twenty-eight years, as provided in § 4954. In § 4956 we find that a copyright is secured by depositing, on or before the day of publication, in this or any foreign country, in case of a painting, a photograph of the painting, accompanied by a description thereof. There is absolutely no provision in the statutes for a second filing of the photograph or description, nor is there any provision as to filing any amendments thereto, and as the matter is wholly the subject of statutory regulation, we are at a loss to perceive by what authority any second application for the same painting, with a view to securing a copyright thereon, can be sustained. If it could be, we see no reason why the proprietor might not thus extend the limit of copyright fixed in the statute by an indefinite number of new applications and filings with the Librarian.

The argument of the plaintiff in error is that, inasmuch as the statutory copyright is not complete before a publication of the subject-matter thereof, and no publication being shown prior to the second application, it was within his power, while his rights were thus inchoate, to make the second application for the copyright, that of November 7, 1901. Assuming that these premises are correct and that publication was requisite to complete the right to be secured by the statute, it by no means follows that a second copyright is warranted by the statute. On the other hand, as we have already stated, the statute is barren of any provisions to that end. There is no provision, as there is in the patent law, for an amended application, and under the patent law it has been held that there is no authority for double patenting. Miller v. Eagle Manufacturing Company, 151 U. S. 186. This is so because the first patent exhausts the statutory right secured by the act of Congress.

In this case the plaintiff had complied with all the terms of the statute on October 7, 1901. He then attempts to take out a new copyright under the same statute on November 5, 1901, for the same painting, by depositing a new description of the painting and the same photograph. It is true there is a change

in the title of the painting, and a slight change in the description, but these matters are immaterial and cannot enlarge the right of the plaintiff. We think the same principle, in this aspect, controls, as in the case of a patent. The plaintiff had already exhausted his statutory right and the second attempt availed him nothing.

These views render it unnecessary to consider whether the record shows a publication of the painting prior to November 5, 1901. For the reasons stated, we are of opinion that the Circuit Court of Appeals was right in holding that the attempted duplication of the copyright was void and of no effect. Affirmed.

UNITED STATES v. STEVENSON

ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF MASSACHUSETTS.

No. 292. Argued October 14, 15, 1909.-Decided November 29, 1909.

On writ of error taken by the United States under the Criminal Appeals Act of March 2, 1907, c. 2564, 34 Stat. 1246, where the indictment was dismissed as not sustained by the statute and also as bad on principles of general law, this court can only review the decision so far as it is based on the invalidity or construction of the statute; it cannot consider questions of general law. United States v. Keitel, 211 U. S. 370.

In determining whether a special remedy created by a statute for enforcing a prescribed penalty excludes all other remedies, the intention of Congress may be found in the history of the legislation, and, in the absence of clear and specific language, Congress will not be presumed to have excluded the Government from a well-recognized method of enforcing its statutes.

The fact that a penal statute provides for enforcing the prescribed penalty of fine and forfeiture by civil suit does not necessarily exclude enforcing by indictment; and so held in regard to penalty for assisting the immigration of contract laborers prescribed by §§ 4 and 5 of the Immigration Act of February 20, 1907, c. 1134, 34 Stat. 898. Although the term misdemeanor has at times been used in the statutes