Sammons v. Colonial Press Inc.

126 F.2d 341 (1942) | Cited 19 times | First Circuit | March 12, 1942

On Petition for Rehearing.

MAGRUDER, Circuit Judge.

In a petition for rehearing the plaintiffs say that we read too much into the concession in their brief as to the deductibility of overhead expenses. They meant to concede no more than this: "That expenses of the overhead variety which were incurred specifically for the production of the infringing work, and which would not have been incurred but for the production of the infringing work, are deductible, but that expenses of the overhead variety which would have been incurred regardless of whether the infringing work was produced are not deductible." By way of illustration, they sa, "suppose that an infringer of a copyright should rent space specifically for the purpose of doing the work of publishing and selling an infringing book, which space would not have been rented except for such particular purpose. We believe that under the decided cases the money spent for such rent, despite the fact that it constitutes 'overhead', would be deductible as a cost. On the other hand, if an infringer should conduct his infringing activity in a space which was regularly rented by him, and which would have been rented by him in any event, so that no additional rent cost was incurred because of the infringing activity, then we believe that the rent should not be allowed as a deduction." From the foregoing it is apparent that the plaintiffs are using the term "overhead" in a sense not in accord with the general accounting usage. In Webster's New International Dictionary (2d Ed., Unabridged), the term "overhead" in accountingis defined as "Those general charges or expense, collectively, in any business which cannot be charged up as belonging exclusively to any particular part of the work or product, as rent, taxes, insurance, lighting, heating, accounting and other office expenses, and depreciation; * * * ." The plaintiffs' illustration of space rented specifically and exclusively for the purpoe of printing the infringing book describes an expense which would not fall within the ordinary definiion of "overhead" but rather would be a direct cost chargeable in its entirety to the particular job. As we read the decided cases allowing an infringer to deduct that portion of the general overhead expense properly allocable to the particular job, they are referring to "overhead" in the general accounting usage, not in the restricted sense now urged by the plaintiffs. We hold that such deduction of a proper proportion of those general overhead expenses which assisted in the production of the infringement is allowable, at least in a case like the present where the infringement was not conscious and deliberate.

The petition for rehearing is denied.

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