Obrázky stránek


[ocr errors]


represented are located in a foreign country and " 08 have been officially construed by the attorillustrate a scientific work or reproduce a work of ney-general in opinions rendered to the copyright registration were issued. Subse- , beyond the classes embraced in the engaged in the work of setting type, quently, Davidson Brothers, of New first part of the section. This is making plates, printing and binding York, by permission of the owner of shown by the language that the books is given by this section, which the copyrights of the originals, pub- specified requirements shall extend, also carries the penalty provision for lished by circulation and sale, repro- which, of course, means that they knowingly making a false affidavit ductions of the original paintings in were to apply to something which to compliance with these prothe form of illustrated post-cards, had not theretofore been mentioned. | visions.' But, however the discrepproduced by lithographic process in And the first character of works af- ancies may have arisen, I do not Germany; and, fearing that the copy- fected by the extension are illustra- think they are such as to justify a right of the originals might not pro- tions within a book consisting of modification of the plain and untect the reproductions, immediately printed text and illustrations pro- equivocal meaning of the clause in after publication the publishers sent duced by lithographic process or pho- section 15, which relates to 'separate' to the register of copyrights two cop- to-engraving process;' and this being lithographs and photo-engravings, ies of each of the reproductions, ac- deemed insufficient, the provisions and, therefore, find against the applicompanied by fees for entry, with were further extended to 'separate cants' first contention." 28 Op. Atty.. proper application for entry under lithographs or photo-engravings.' Gen. (Wickersham) 150, 152, 155, 156. Class 'H' to wit, 'reproductions of a The natural inference from this lan- 68. See statute quoted supra note work of art;' and the question pro- guage is, that inasmuch as the litho- 65. pounded is, whether under the manu- graphs and photo-engravings just [a] Reproduction of foreign work facturing provisions of section 15 previously mentioned are such as of art. The second question is of the act of March 4, 1909 (35 Stat. are connected with books, those to whether or not the cards in question 1078), these lithographic reproduc- which reference is here made are fall within the exception—'Where in tions are entitled to registration. separate from books; and that there either case the subjects represented

From sections 12, 16, and 17, being no limitation as to the char- are located in a foreign country and as well as from its own terms, it is acter of these separte lithographs illustrate a scientific work or reproclear that a compliance with the and photo-engravings, and no dis- duce a work of art.' It is insisted on manufacturing provisions of this sec- tinction as to what uses they shall the part of the applicants that the tion 13 15] is a condition precedent be put, all lithographs and photo- phrase 'or reproduce a work of art to a valid registration of the copy- engravings which are not, and are should be treated as separate and right. But the applicants for the not intended to be, connected with distinct from the preceding phrases, copyrights in question insist that books, are included in this second and that the exception should read these provisions do not here apply, extension clause; and this construc- as if written 'except where in either because, first, they are applicable to tion must prevail unless the con- case the subjects represented are loonly lithographs and photo-engrav- trary is clearly shown by the other cated in a foreign country and illusings which are used as illustrations provisions in the act. It may be ad- trate a scientific work, and except within books consisting of a printed mitted that there is an apparent in- where they reproduce a work of art.' text and such illustrations, and to consistency in the language of sec- In my judgment, such a construction lithographs and photo-engravings tions 12 and 16, and this construction of the exception is not warranted, which are intended to be used in of the clause of section 15 men- and this is clearly shown by the combooks after importation or to be tioned, but is this inconsistency such ments of the committee having the bound in book form; and, second, be- as to require a strained and unnat- bill in charge and by the history of cause being reproductions of works ural meaning to be given to this the bill in Congress. The bill, as of art, they are expressly excepted clause? As heretofore said, a com- originally reported, omitted the from the conditions relating to man- pliance with these manufacturing phrase and illustrate a scientific ufacture. These two contentions will provisions is a prerequisite to the work or reproduce a work of art,' be considered in the order mentioned. validity of a copyright. Sections 15 which left the exception reading 'exFirst. Whether or not the first con- and 16 deal alone with these pro- cept where in either case the subtention shall be sustained depends visions, while they are referred to jects represented are located in a upon the meaning of the phrase, 'and in connection with books and periodi- | foreign country. (Cong. Rec., vol. also to separate lithographs or photo-cals in section 12; and to determine 43, p. 3702.) Upon this subject the engravings.' It is insisted that this the extent of these requirements, all committee in its comments said: phrase includes only lithographs and these sections must be read together. 'An exception, so far as lithographs photo-engravings which are to con- When this is done it does not follow and photo-engravings are concerned, stitute, after importation, parts of that because a certain requirement is made in case "the subjects reprebooks, or to be bound in book form; is not found in one of the sections sented are located in a foreign counand the following provisions, which it does not exist at all, and must be try." It was contended with much appear in this section and elsewhere stricken out when found in another. force in the hearings before the comin the act, are cited in support of In many instances the contrary is mittee that the color scheme in liththis insistence: (1) In the first clause the proper method of reaching theographs to illustrate scientific of the section reference is made only correct meaning of an act,

work, particularly a work on surto works mentioned in subsections | whole, and such method is, I think, gery, must be worked out under the (a) and (b) of section 5 of the act,

the proper one to adopt in constru- eye of the author. It was further which are '(a) Books, including com- ing this act. That is, if in either of said that a lithograph reproducing a posite and cyclopædic works, direct- these sections there appears a re- painting must be worked out in front ories, gazetteers, and other compila-quirement that these manufacturing of the painting, and that possibly the tions; '' '(b) Periodicals, including provisions apply to lithographs and same theory would apply to a lithonewspapers;' (2) in section 12, in photo-engravings, not connected with graph of scenery or any lithograph providing that after copyright has or intended to be connected with intended to accurately represent the been secured by publication of the books, it should be given its full color scheme of any object. The work with the notice of copyright force and effect, regardless of wheth-committee finally decided to leave two copies shall be deposited in the er it be found elsewhere or not. this matter as it is now found in copyright office, it is specified that

I think it quite probable that the bill, although it was contended these copies, 'If the work be a book

in the act as originally drafted some that the exception might well be conor periodical, shall have been pro- of the apparent inconsistencies be- fined to lithographs illustrating a duced in accordance with the manu- tween the several sections mentioned scientific work or reproducing a work facturing provisions specified in sec- did not exist, but that during the of art. And in accordance with the tion fifteen of this act, and no refer- extended hearings held by the com- last suggestion, the committee subence is made to lithographs and mittee who had the bill in charge, sequently added the phrases making photo-engravings; (3) in section 16, amendments were determined upon, the limitation mentioned, as in specifying the character of affida- which were inserted in section 15 amendment to the bill. (Cong. Rec., vit which shall accompany the work alone, and by inadvertence, sections vol. 43, p. 3704.) There can, therein order to secure the enforcement of 12 and 31 were not amended to cor- fore, be no doubt that the meaning the manufacturing provisions of sec. respond. This is indicated by the of this exception is that the subject tion 15, books alone are mentioned, comments upon section 15 in the ex- represented in the lithograph or phoand no reference is made to litho-planation of its various features, to-engraving must be located in a graphs or photo-engravings; and (4) prepared by the committee before the foreign country, whether that subin section 31 the importation of bill was reported, which comments ject be something the representation books alone which have been are as follows: 'It was felt by your of which is used to illustrate a scienproduced in accordance with the man- committee that if there was reason, tific work or a work of art. It is true ufacturing provisions of section 15 is as we think there was, for the re- that the clause when thus interpreted prohibited. It is true that in the be- quirement that the book should be is not strictly grammatical, but, in ginning of section 15 reference is printed from type set in this coun- fact, by any interpretation, the words made only to books and periodicals, try, there was just as much reason lithographs

photo-engravings' and that it is there specifically pro- for a requirement that the book must be understood as subjects of vided where the type shall be set or should be printed and bound in this ‘illustrate' and 'reproduce;' as it is the plates made from which the country, and that the ordinary illus- quite clear that it is not the subbooks and periodicals shall be print-trations produced by lithographic jects' that 'illustrate scientific ed, and where the books shall be process and photo-engraving process. work or reproduce a work of art,' bound. but it is clear that it was in- and separate lithographs or photo- but the lithographs or photo-engravtended to make some extension of engravings, should be made in this ings of such subjects. Therefore, the the application of these provisions 'country. That protection to the men exception is not so broad as is con













office. Compliance with the domestic manufacturing visions do not require books to be printed; but if requirements is a condition precedent to valid regis- they are printed, the printing must be done within tration of copyright.69 The manufacturing pro- the United States.? tended for by the applicants, but as , illustrations.' On October 3, 1910, manner suggested,

the phrase here construed, since the paintings eighteen additional applications for work of art,' as used therein, would are located in a foreign country, the entry of claims in similar litho- have been modified in such way as to these cards fall within the excep-graphs were received from Mr. Bau- prevent such evasion; but the effect tion, provided the paintings man, with the request that they be is the same whether the omission 'works of art;' and since they have entered in class (k), it being stated was intentional or by oversight, as been copyrighted as such, and pos- that they were lithographic prints Congress alone has the power to so sess artistic beauty, I know of no produced in the United States; and modify the language as to justify the reason why they should not be so they were registered and certificates construction which it is thought this considered. It has been suggested of entry were sent to the applicant. exception shuuld have in the interest that if it be held that lithographs On December 12, 1910, a number of of American labor.

There the and photo-engravings of all works of applications were received, each for original paintings had already been art located, in a foreign country may the entry of a copyright claim of a registered by the register of copybe made abroad, the purpose of the painting located in England,' the rights as 'works of art,' and I therelaw to protect American workmen identifying copy in each case consist- fore said, 'Since the paintings are might be evaded by carrying works ing of the photograph of a picture located in a foreign country, these of art from this country into a for- showing the shape and size of the cards fall within the exception, proeign country and there having them customary Christmas card, and the vided the paintings are “works of lithographed, and also by having designs on the cards are of the usual art"; and since they have been copy. paintings made in a foreign country kind, not differing in general style righted as such, and possess artistic for the purpose of lithographing. from those in the lithographs de- beauty, I know of no reason why Whether or not Congress had such scribed above. The register of copy- they should not be_so considered.' grounds of objection in mind when rights further states that the cir- 28 Op. Atty.-Gen. (Fowler) 557, 560. this act was passed, does not appear cumstances strongly tend to show


28 Op. Atty.-Gen. (Wickerfrom its language; and I am not now that the alleged 'paintings' sought to sham) 150. called upon to determine whether a be registered under date of December 70. 28 Op. Atty.-Gen. (Fowler) painting carried from this country 12, 1910, are intended to be repro- 265. into a foreign country for the pur-duced chromolithographs and (a) Reason for rule.The meanpose of evading the spirit of the law placed on the market as birthday | ing of that clause in section 12 of and in fraud of the law would be cards and the like, and are not in- the act of 1909, which provides that considered as located in a foreign dependent works of art, but the first the book "shall have been produced country in the sense of the statute; necessary step in the production of in accordance with the manufacturbut there is certainly nothing in the the lithographs, and further, that the ing provisions of section 15 of this act to indicate that Congress intend- purpose of seeking their registration act," is that the book shall not have ed to make any distinction between is to give support to a contention been produced in violation of that works of art based upon the pur- that such lithographs are not act; but the provision does not poses for which they are created. If quired to be manufactured by a attempt to prescribe any regulation Congress had not intended to process wholly performed within the to the form in which the book brace in the exception paintings cre- limits of the United States,' as pro- should appear. Section 15 means ated in a foreign country for the pur- vided in section 15 of the copyright that if the book is printed, the printpose of lithographing or photo-en-act, because they fall within the pro- ing shall be done as required therein. graving, it could easily have ex- vision excepting lithographs of sub- 28 Op. Atty.-Gen. (Fowler) 265, 269. pressed such intent; and since it jects which are located in a foreign [b] Mimeographed work.-"The failed to do so by the use of any country and illustrate a scientific copyright, therefore, is obtained by language from which such a restric- work or reproduce a work of art.' publication of the book and the giv. tion may be implied, it is not within

And my opinion is requesteding of notice of copyright required the province of a judicial officer upon the following questions: 1. by the act; and it is suggested that called upon to interpret this statute Whether the Register of Copyrights in consequence of the reference in to read into the act a provision of has authority to enter a claim in a section 12 to the manufacturing prosuch a vital character." 28 Op. Atty.- painting made merely as a first step visions in section 15, and the requireGen. (Wickersham) 150, 156.

in the production of a lithograph as ments of said section 15, the copy[b] Registration of foreign-made a 'work of art' within the meaning of right can not be enforced, and may Lithographs-(1) The register of section 11 of the copyright act? 2. be subsequently entirely defeated, copyrights has the authority to enter Whether the Register of Copyrights and the register of copyrights can a claim to copyright in a published has authority to enter a claim to not issue a certificate of registration lithograph, not made within the copyright in a published lithograph, in consequence of a failure to deUnited States, where the design, not made within the United States, posit in the copyright office two drawing, or painting which forms where the design, drawing, or paint-copies printed as required by said the first step in the production of ing, which forms the first step in the section. Section 15, among other such lithograph has been made for production of such lithograph, has things, provides: "That of the printed the purpose of being converted into been made for the purpose of being book or periodical specified in seco a lithograph, and is located in a for- converted into a lithograph, and is tion five, subsections (a) and (b) of eign country, provided the design, located in a foreign country? My

this act :

the text of all copies drawing, or painting with reference answer to these abstract questions accorded protection under this act to which the application is made is a may be found in an opinion trans

shall be printed from type set work of art. 28 Op. Atty.-Gen. (Fow-mitted to you for the guidance of within the limits of the United ler) 561. (2) "On September 17, 1910, the Register of Copyrights on Jan- States, etc.' The use of the word J. Bauman submitted a number of

uary 27, 1910. (28 Op. 150, 157.) I 'printed' in connection with 'book' appl cations for the entry of ‘paint there construed that provision of the might very well be construed as a ings' under paragraph (g) section 5 manufacturing clause of the copy- recognition that other kinds of books of the act of March 4, 1909 (35 Stat. right act which excepts separate are subject to copyright, but that the 1075, ch. 320), which relates to lithographs and photo-engravings provision of this section, in so far as ‘Works of art; models or designs for 'where in either

the subjects it applies to books, is restricted to works of art. The identifying copies represented are located in a foreign printed books. But, in addition to deposited with these applications country and illustrate scientific this, the purpose of section 15 should consisted of chromolithographs, all work or reproduce a work of art;' be taken into consideration in deof which were in the nature of birth- and held that where the painting termining whether or not it has the day, Christmas, or valentine cards, was properly classified as a work of effect of limiting the right of copyand bore the notice 'Copyright 1910 art and was located in a foreign right to printed books; and the lanby J. Bauman,' apparently added country, lithographs thereof fell guage of that section, as well as the with a stamp after the lithograph within the exception.

If Con- report of the committee which had had been completed. On September gress had not intended to embrace in the bill in charge, clearly shows that 24, 1910, an additional number of the exception paintings created in a it was inserted solely for the purpose applications, executed in the same foreign country for the purpose of of protecting American Labor, and form, and each accompanied by a lithographing or photo-engraving, it that it was not the design of Conchromolithograph as an identifying could easily have expressed such in- gress to thereby, in any respect, recopy, of the same general nature as tent; and since it failed to do so by strict the character of works which, those first sent, except lacking the the use of any language from which under other sections of the act, copyright notice, were received. In such a restriction may be implied, it might be copyrighted. In drafting both cases the applicant was in- is not within the province of a the bill it was no doubt assumed formed that the lithographs for judicial officer called upon to in- that books would ordinarily and which registration was sought were terpret this statute to read into the probably universally, be printed for obviously intended for publication, act a provision of such a vital char- circulation; and the purpose was to and that, therefore, the proper pro- acter. I think it quite likely that if require all the printing of books procedure would be to register the copy- the attention of Congress had been tected under the act to be done as right claims therein after publication directed to the fact that the manu- described in said section 15, but it under paragraph (k) of said act, facturing clause of the act could be was certainly not intended to prewhich relates to ‘Prints and pictorial to a material extent evaded in the scribe any regulation as to the form





[ocr errors]

The Canadian statute requires, as a condition of for the copyright of books.75 A printed volume, copyright protection, that the work shall be printed whether containing many or few pages, is a book, and published, or reprinted or republished, or in the within the meaning of the copyright law.76 The case of works of art, produced or reproduced, in form of the publication is not material." It is the Canada.71

intellectual production of the author which the copyIn England the act of 1911 contains no domestic right protects, and not the particular form which

72 manufacturing requirements.

such production ultimately assumes.78 Hence the [$ 101] B. Particular Subject Matter—1. Books word "book," as used in the statute, is not to be Generally? 73 In its enumeration of works subject to

understood in its technical sense of a bound volcopyright, the act of 1909 specifies: “Books, includ- ume, but includes any species of publication which ing composite and cyclopædic works, directories, the author selects to embody his literary product. 80 gazetteers, and other compilations." From the Even a single sheet may be a book.

It is not even very beginning the copyright statutes have provided in which the book should appear. U. S. St. at L. 540 c 126 % 4) (under 19 SCt 606, 43 L. ed. 904 [aff 80 Fed. That is, in the passage of sections act requiring deposit of books in li- 514, 25 CCA 610 (aff_76 Fed. 757)). 15 and 16, Congress was concerned inbrary of congress). Under English [a] The English Copyright Act of where and by whom the work of pre- statute see infra note 80 [a].

1892 (1) provides that "the Word paring the books for circulation and Definitions of "book" see Book 9 ‘Book' shall be construed to sale should be done, and not in the C. J. p 136.

and include every Volume, Part or particular method by which the au- 77. Clementi v. Golding, Campb. Division of a Volume, Pamphlet, thor should impart his ideas to the 25. And cases infra notes 78-90. Sheet of Letter-press, Sheet of public. A contrary holding might 78. Holmes v. Hurst, 174 U. S. Music, Map, Chart, or Plan separately lead to great uncertainty and con; 82, 19 SCt 606, 43 L. ed. 904 (aff 80 published. 5 & 6 Vict. c 45 $ 2. fusion. It has been universally held Fed. 514, 25 CCA 610 (aff 76 Fed. (2) The definition includes dramatic that there is no requirement as to

757)]; Hervieu v. J. S. Ogilvie Pub. pieces and musicial compositions in the number of pages on which a

Co., 169 Fed. 978; Brightley v. print or manuscript. 8 Halsbury L. work shall appear in order that it Littleton, 37 Fed. 103; Schumacher Eng. p 142. (3) The phrase "sepamay be entitled to the benefit of v. Schwencke, 25 Fed. 466, 23 Blatchf. rately published" has been taken to copyright. If it appear on one or

373; Clayton v. Stone, 5 F. Cas. No. apply to the entire definition. Each even four pages, then there can be 2,872, 2 Paine 382; Drury. v. Ewing, part that is separately and clearly no necessity for a binding; and yet 7 F. Cas. No. 4,095, 1 Bond 540; Rob- distinguished in the volume itself is section 15 provides that 'the printing erts v. Myers, 20 F. Cas. No. 11.906, separately published, within the of the text and the binding of the Brunn, Coll. Cas. 698; Scoville X: Tol- meaning of $ 2: Johnson v. Newnes, said book shall be performed within and, 21 F. Cas. No. 12,553; White v. (1894) 3 Ch. 663; Lamb v. Evans, the limits of the United States," thus Seroch, 2. B. & Ald. 298, 106 Reprint ||18931 i Ch. 218. See also Lawrence implying, if the strict construction 376, 1 Chit. 24, 18 ECL 28; Platts v. & Bullen, Ltd. v. Aflalo, (1904) A. C.

the suggested be adopted, that the book Button, Coop. 303, 10 EngCh 303, 35

17 (where the question as to must not only be printed, but must

Reprint 566, 19 Ves. Jr. 447, 34 Re- meaning of "separately published" also be bound before the claim for print 583; Bach v. Longman, Cowp. was raised, but not decided). (4)

623, 98 Reprint 1274; Storace V. A copyright in the same can be reg.


Christmas card is within istered. Of course Congress did not

Longman (cit Clementi v. Goulding, definition (Hildesheimer v. Dunn, 64 intend to, and did not, introduce such

11 East 244, 103 Reprint 998); Hime L. T. Rep. N. S. 452), (5) and a radical innovation into the copy: supra); clementi v. Goulding, supra; ing a trade catalogue (Davis x; Ben

v. Dale (cit Clementi v.. Goulding, also is a sheet of illustrations formright law. The meaning of that clause in section 12 which provides 10 Reprint 681; D'Almaine v. BooJefferys v. Boosey, 4 H. L. Cas. 815, jamin, [1906] 2 Ch. 491). (6) The

word "book" includes a part of a that the book 'shall have been pro

sey, 4 L. J. Exch._21; Chappell v. duced in accordance with the manu

book under the interpretation clause facturing provisions of section 15 of Purday, 14 M. & W. 303, 163 Re- of g 2 of the Copyright Act of 1842.

. this act, is that the book shall not

Kelly's Directories, Ltd. v. Gavin, have been produced in violation of

"The literary property intended to [1901] 1 Ch. 374.

be protected by the act is not to be that section; and section 15 means

[b] “This term includes all printed determined by the size, form, that

or literary works (except dramatic comif the book is printed, the

shape in which it makes its appear. positions) whether published in the printing, shall be done as required ance, but by the subject-matter of ordinary shape of

book or therein." Op. Atty.-Gen. (Fowler) the work." Hervieu v. J. S. Ogilvie pamphlet, or printed as a leaflet, 265, 268.

Pub. Co., 169 Fed. 978, 982 (quot card, or single page. The term 'book 71. Rev. St. (1906) c 70 $ 6; Act Clayton v. Stone, supra).

as used in the law includes tabulated (1886) $ 5; Act (1875) 4 (2); 79. Holmes v. Hurst, 174 U. S. 82, forms of information, frequently Frowde v. Parrish, 27 Ont. 526.

89, 19 SCt 606, 43 L. ed. 904 (aff 80 called charts; tables of figures show(a)

Canadian typesetting not re- Fed. 514, 25 CCA 610 (aff 76 Fed. ing the results of mathematical comquired.- "The plaintiff continues to 757)].

putations, such as logarithmic tables; print and publish his book in Canada "Ít is the intellectual production of interest, cost, and wage tables, etc., from stereotype plates.

That is a the author which the copyright pro- single poems, and the words of a sufficient printing within the mean- tects and not the particular form

song when printed and published ing of

the Act, though no typo- which such production ultimately without music; librettos; descriptions graphical work is done in the takes, and the word 'book'as used of motion pictures or spectacles; preparation of copies." Frowde v. in the statute is not to be under- encyclopædias; catalogues; directParrish, 27 Ont. 526, 528.

stood in its technical sense of a ories; gazeteers and similar compila72. St. 1 & 2 Geo. V c 46.

bound volume, but any species of tions; circulars or folders containing 73. Law books see infra 88 134- publication which the author selects information in the form of reading 138.

to embody, his literary product." matter other than mere lists of 74. Act March 4, 1909 (35 U. S. Holmes v. Hurst, 174 U. S. 82, 89, 19 articles, names and addresses, and St. at L. 1075 c 320 $ 5). SCt 606, 43 L. ed. 904.

literary contributions to periodicals 75. See supra $$ 69, 70, 90.

[a] Collected sheets of literary or newspapers.". Rules and Regula(a) In England (1) encyclopedias, work. The collected sheets contain- tions for Registration of Claims to reviews, magazines, and periodicaling, in orderly and connected fash. Copyright (Copyright Office Bul. No. works, or works published in a series ion, the record of the intellectual and 15) rule 4. of books or parts, were specifically literary work of the author, is a protected by

[c] As any composition.-(1) Any the former statute. "book," although unbound, unless for composition, whether large or small, 5 & 6 Vict. c 45 $ 18. (2) Previous some particular and special purpose although found in


with this enactment protection had narrower definition is prescribed other compositions, is a book, within been afforded such publications under by law. In re Hempstead, 95 Fed. 54 Geo. III $ 156, granting a copythe judicial construction of the word 967 (aff 103 Fed. 197, 43 CCA 178] | right to the authors of books. White "book," as used in 8 Anne 19. (within tariff law).

V. Geroch, 2 B. & Ald. 298, 106 Sweet V Maugham, 11 Sim. 51, 34 [b] Unbound folded sheets.-The Reprint 376. (2) The term "book," EngCh 51, 59 Reprint 793; Bell v. term "book," within an act passed Whitehead, 3 Jur. 68; Mawman

within the meaning of the copyright V.

in 1851 providing for the recording laws, includes any composition, large Tegg, 2 Russ. 385, 3 EngCh 385, 38 of grants of lands in California in or small, which includes results of Reprint 380; Hogg v. Kirby, 8 Ves. some book of record, was satisfied successive mental processes rationJr. 215, 32 Reprint 336.

by copies of the deed on sheets not ally combined, whether it fills 76. Scoville v. Toland, 21 F. Cas. bound or fastened together in any great volume or is contained in a No. 12,553, Cox Manual Trade-Mark manner, but folded, the name of the single sheet. Keene v. Wheatley, 14 Cas. 51.

purchaser being indorsed thereon, F. Cas. No. 7,644. [a] Statutory definition.-"The and each distinct class kept in a sep- 81.

Higgins v. Keuffel, 140 U. S. word 'book' shall be construed to arate bundle, the sheets not being 428, 11 SCt 731, 35 L. ed. 470 [aft mean every volume and part of a bound in to the form of books until 30 Fed. 627); J. L. Mott Iron Works volume, together with all

maps, 1856. Mumford v. Wardwell, 6 Wall. v. Clow, 82 Fed. 316, 27 CCA 250; prints or other engravings belong- (U. S.) 423, 18 L. ed. 756.

Oliver Ditson Co. v. Littleton, 67 ing thereto." Act March 3, 1865 (13 80. Holmes v. Hurst, 174 U. S. 82,' Fed. 905, 15 CCA 61; Littleton v.





a 86

[ocr errors]




necessary that the work shall be printed,$2 although been held not to include various other works or it must have been reduced to material form.83 The productions, particularly articles designed priterm "book" has been held to include: A letter;84 | marily for physical, rather than intellectual, use an article published in an encyclopedia85 or in a and enjoyment,92 including an indexed letter file,93 newspaper; a newspaper,87 magazine, or other index cards,m4 a railroad ticket,85 a cardboard patperiodical;68 blank legal forms;89 and other works tern sleeve, a label,97 the face of a barometer, alenumerated below.90 But the term “book” has though containing letter-press,98 a photograph album Oliver Ditson Co., 62 Fed. 597 [aff. defines a book to be: 'A collection, been held that each part of a peri67 Fed. 905, 15 CĆA 61); Clayton v. of sheets of paper or similar mate-odical is a book within the meaning Stone, 5 F. Cas. No. 2,872, 2 Paine rial, blank, written or printed, bound of the act." Holmes v. Hurst, 174 382; Drury v. Ewing. 7 F.' čas. No together; commonly, many folded U. S. 82, 90, 19 SCt 606, 43 L. ed. 4,095, 1 Bond 540; Keene v. Wheat- and bound sheets containing contin- | 904. ley, 14 F. Cas. No. 7,644; Scoville v. uous printing or writing.' The 89. Brightley v. Littleton, 37 Fed. Toland, 21 F. Cas. No. 12,553, Cox courts have shown the greatest lib- 103. Manual Trade-Mark Cas. 51; Davis v. erality in interpreting the copyright Logal blanks as subjects of copyBenjamin, [1906] 2 Ch. 491; Walter laws, and have, in favor of authors, right see infra § 138. v. Howe, 17 Ch.D. 708; Clementi v. extended the word 'book' SO

as to 90. Davis V. Benjamin, (1906) 2 Golding, 2 Campb. 25; Clementi v. make it include works which do not Ch. 491 (a trade advertisement with Goulding, 11 East 244, 103 Reprint fall even within this broad defini- illustrations). 998 (single sheet of music); D'Al- tion. In Clayton v. Stone, 5 F. Cas. [a] Dressmaling pattern.--A chart maine v. Boosey, 4 L. J. Exch. 21; No. 2,872 (2 Paine 382, 391) the on à single sheet, containing diaLife Pub. Co. y. Rose Pub. Co., 12 court held that a newspaper could grams representing a system of takOnt. L. 386, 8 OntWR 28; Church not

be copyrighted on account of ing measures for and cutting v. Linton, 25 Ont. 131; Griffin its method of publication, but in the women's dresses, with instructions Kingston, etc., R. Co., 17 Ont. 660 course of its opinion the court said: for its use. is a "book" within the (holding railroad ticket not Copy- It seems to be well settled in Eng-copyright law. Drury V. Ewing. 7 rightable). But see Hime v. Dale, land, that a literary production, to F. Cas. No. 4.095, 1 Bond 540 [dist 2 Campb. 28 note (where Lord Ellen- be entitled to the protection of the Baker v. Selden, 101 U. S. 99, 25 borough doubted whether song statute on copyrights, need not be a L. ed. 841). published on a single sheet of paper book in the common and ordinary Advertisements generally as subwas protected by the statute of 8 acceptation of the word-a volume, jects of copyright see infra 140. Anne c 19, because a book meant in written or printed, made up of sev- 91. See cases infra notes 92-6. common acceptation a plurality of eral sheets and bound up together. [a] "The term 'book' can not be sheets).

It may be printed on one sheet, as applied to-Blank books for use in 82.

28 Op. Atty.-Gen. (Fowler) the words of a song or the music business or in carrying out any sys265; Roberts v. Myers, 20 F. Cas. accompanying it. It is true that tem of transacting affairs, such as No. 11,906, Brunn. Coll. Cas. 698 the English statute of 8 Anne, in record books, account books, memo(holding that there might be a copy- the preamble, speaks of books and randum books, diaries or journals, right in Boucicault's drama "The other writings; but the body of the bank deposit and check books; forms Octoroon," although it had

act speaks only of books, the same of contracts or leases which do not been printed).

in the act of Congress; and a contain original copyrightable mat(a) Typewritten pages fastoned learned commentator upon American ter; coupons; forms for use in comtogether and having a printed cover law (2 Kent's Com. 311) seems to mercial, legal, or financial transacand title-page are subject to regis- think the English decisions on this tions, which are wholly or partly tration under the copyright law of subject have been given upon the blank and whose value lies in their March 4, 1909 (35 U. S. St. at L. body of the statute of Anne, with- usefulness and not in their merit as 1075). 28 Op. Atty.-Gen. (Fowler) out laying any stress upon the literary compositions." Rules and 265. words or other writings in the pre- Regulations

for Registration

of (b) Mimeographed work.-"The amble.' See also Drone on Copyrights, Claims to Copyright (Copyright Ofpublishers, Thomas Nelson & Sons, 142, and Cyc. 898. Clearly, there- fice Bul. No. 15) rule 51. have sent to the Copyright Office fore. the work submitted is a book [b] А book containing blank for deposit under the copyright law, defined both by lexicographers forms, but not containing a single and for copyright registration, two and the courts, and the claim for English sentence, is not a composicopies of an article entitled Nelson's copyright therein may be registered tion within the purview of the copyBureau of Research: A few speci- unless there is some provision in the right law and is not copyrightable. mens of inquiries and

act which prohibits it." 28 Op. Atty.- | U. S v. Young, 26 Wash L. 546. These copies consist of 122 type-Gen. (Fowler) 265.

92. See cases infra this section written pages, with a printed cover Domestic manufacturing provi- passim. and title page, said cover and pages sions, effect of see supra 8 100.

[a] A card cut in shape to cast being fastened together in the usual

See infra § 106.

a shadow resembling that portrayed manner in which typewritten docu- 84. Macmillan v. Dent, [1906] 1 in Mr. Holman Hunt's picture "Ecce ments are fastened. It is explained Ch. 101, 3 AnnCas 1113.

Homo" with verses by Longfellow, by the applicants that they publish 85. Black v. Henry G. Allen Co., was held not to be a book," plainan encyclopaedia, one of the essen- 56 Fed. 764.

tiff being the inventor of a trick, tial features of which is that it is 86. Brightley v. Littleton, 37 Fed. and not the author of a literary comkept up-to-date; that in connection 103; Walter v. Howe. 17 Ch. D. 708. position. Cable v. Marks, 52 L. J. with the published encyclopaedia the 87. Harper v. Shoppell, 26 Fed. Ch. 107. privilege is offered its subscribers of 519, 23 Blatchf. 431; Walter v. Howe, Articles designed for physical uso submitting letters of inquiry upon 17 Ch. D. 708 [overr Cox v. Land, see infra § 124. any subject whatsoever; that to such etc., Journal Co., L. R. 9 Eq. 324]; 93. Amberg File, etc., Co. v. Shea, inquiries careful and elaborate Life Pub. Co. v. Rose Pub. Co., 12 78 Fed. 479 [aff 82 Fed. 314, 27 CCA answers are prepared under the suOnt. L. 386, 8 OntWR 28.

246). pervision of eminent authorities, and

[a] Newspaper comic supplement. 94. Libraco, Ltd. v. Shaw Walker, these answers are typewritten and -"I think the serial the Comic Pic- Ltd., 58 Sol. J. 48. copies struck off by means of the torial Sheet' is clearly 'book' [a] Cards bearing only the words mimeograph; that the copies pro- within sec. ? of the Copyright Act, "name" and "address," intended to be duced in this way are issued for

5 & 6 Vict., in which the term 'book filled out and used as a card index, general circulation; and it is in

is defined as 'every volume, part or are not "a literary work" and therethese sheets of answers bound as division of a volume, pamphlet, sheet

fore not copyrightable. Libraco, stated that the publishers desire to of letter-press, etc., separately pub

Ltd. v. Shaw Walker, Ltd., 58 Sol. J. register a claim for copyright; and lished.' In Walter v. Howe, 17 Ch. D.

48. you ask my opinion as to whether 708, it was held that a newspaper,


Griffin V. Kingston, etc., R. not the register of copyrights being 'a sheet of letter-press.' was a

Co., 17 Ont. 660. has authority, under the copyright 'book' under sec. 2 of the Act. and

96. Hollinrake v. Truswell, [18941 act of March 4, 1909 (35 Stat. 1075), also a periodical work under sec. 19. 3 Ch. 420 (holding that a cardboard to register the

The real See also Trade Auxiliary Co. v. Mid: pattern sleeve is not copyrightable question is, whether or not, under dlesborough, etc., Tradesmen's Pro- as a book, map, chart, or plan). But the copyright law, a book must be tective Assoc., 40 Ch. D. 425, and see supra note 90 (a). printed before a claim for copyright other cases cited in Scrutton's Law 97. Higgins v. Keuffel, 140 U. S. therein can be admitted to registra- of Copyright, 4th ed., p. 111.". Life 428, 11 SCt 731, 35 L. ed. 470 [aff tion. If copies of this work were Pub. Co. v. Rose Pub. Co., 12 Ont. L. 30 Fed. 627]. not reproduced for sale, it is con- 386. 390, 8 OntWR 28.

Labels for manufactured articles ceded that the claim should be regis- 88. Holmes v. Hurst, 174 U. S. 82, see infra § 141. tered under section 11 of the act; 19 SCt 606, 43 L. ed. 904; Henderson 98. Davis v. Comitti, 54 L, J. Ch. but inasmuch as numerous copies V. Maxwell, 4 Ch. D. 163; Bradbury 419. are struck off for circulation, it is v. Hotten, L. R. 8 Exch. 1.

[a] Reason for rule-There can thought, and correctly so I think, [a] "Under the English copyright be no copyright in the face of a that if copyrighted at all, it must act of 1845, provision is made for barometer, as the face is a necesa be as a publication, and not as the publication of works in a series sary part of the instrument, and, if mere manuscript.

Webster of books or parts, but it has always separated therefrom, is without use










[ocr errors]


with pictorial and descriptive borders,99 blank ac- of dramatic compositions. The word “book” count books,' a cricket scoring sheet, and an enve- means, however, the entire work, and does not inlope bearing an inscription and containing an clude or authorize the copyrighting of an incomplete inclosure. A musical composition, although printed and fragmentary part of it.? in book form, is not a book within the meaning of [$ 102] 2. Newspapers and Periodicals. Periodithe domestic manufacturing clause of the act of cals, including newspapers, are expressly named in 1891,* although in other connections and under other the present statute as proper subjects of copystatutes it may be deemed a book. The same is true or meaning, and the whole barometer | Manual Trade-Mark Cas. 51, help the see supra $ 100. cannot possibly be considered а defendant. In none of these cases 5. Littleton v. Oliver Ditson Co., book. Davis v. Comitti, 54 L. J. Ch. has the question ever. been deter- 62 Fed. 597 [aff 67 Fed. 905, 15 CCA 419.

mined whether a musical composi- 61]; Clemetti v. Golding. 2 Campb. 99. Schove v. Schmincké, 33 Ch. tion is a book. It must also be | 25; D'Almaine Boosey, 4 L.J. D. 546 (holding that such album is remembered that the question now Exch. 21.

But see Witmark v. a book in form only and not the sub- presented is not strictly whether a Standard Music Roll Co., 221 Fed. ject of copyright).

musical composition can ever be re- 376, 137 CCA 184 (holding that а. 1. Baker v. Selden, 101 U. S. 99, garded as a book, but whether con. musical composition consisting of 107, 25 L. ed. 841.

gress meant in the act of March 3, words and music is not a book; that "The conclusion to which we have | 1891. to include musical composition a book is a literary composition). come is, that blank account-books within the terms of the proviso re- 6. Hervieu V. J. S. Ogilvie Pub. are not the subject of copyright; ferred to. Nor do I think the dic- | Co., 169 Fed. 978. and that the mere copyright of Sel- tionary definitions of 'book' render “The case of Littleton v. Oliver den's book did not confer upon him much assistance, because the Ditson Co., 62 Fed. 597 (decided the exclusive right to make and use word is used in so many different by Judge Colt of the First Ciraccount-books, ruled and arranged senses. It may refer to the sub-cuit) and his decision affirmed by as designated by him and described ject-matter, as literary composition; the Court of Appeals (67 Fed. 905, and illustrated in said book.” Baker or to form, as a number of leaves 15 CCA 61) involves the very quesv. Selden, supra.

of paper bound together; or a writ- tion presented here, except in that 2. Page v. Wisden, 20 L. T. Rep. ten instrument or document; or a

case it was a musical composition, N. S. 435 (where a copyright was

particular subdivision of a literary while in this it is dramatic; but by claimed in a cricket scoring-sheet, composition; or the words of

the language of the statute dramatic and the vice chancellor held that it opera,

Littleton V. Oliver and musical compositions are coupled was not a fit subject for copyright,

Ditson Co., 62 Fed. 597, 599 [aff 67 | together. Hence the holding of that partly because it was not new, but Fed. 905, 15 CCA 61]." (2) "That court that a musical composition is also because "to say that a particu- musicial compositions, as such, differ, not .cluded in the proviso as a book lar mode of ruling a book consti

in the view of the copyright law, applies with equal force to the ques. tuted an object for a copyright is from books, as such, necessarily fol- tion presented in the case at bar." absurd").

lows from the fact that when musi- Hervieu V. J. S. Ogilvie Pub. Co., 3. Cable v. Marks, 52 L. J. Ch. cal compositions were first made

supra. 107.

incopyrightable the penalty for

“The question here presented is

made Littleton v. Oliver Ditson Co., fringing was

expressly and not whether a dramatic composition 62 Fed. 597 [aff 67 Fed. 905, 15 CCA distinctively other than that for in

can ever be regarded as a book, but

Act 61] [foll Hervieu V. J. S. Ogilvie fringing the copyrighted book.

whether Congress intended, by the Pub. Co., 169 Fed. 978).

Feb. 3, 1831 (4 Stat. 437, 438, 38 act above quoted, to include dra

And it stands in

'Book' | 6. 7). [a]

the Reason for ruler(1)

matic compositions within the terms

Act March 3, 1891 of the proviso. has been distinguished from 'musi. I present statute.

Dictionary defini(26 Stat. 1109, $$ 7, 8). There are tions of the word 'book' are of no cal composition' in the statutes re


in (4 particulars

which the aid lating to copyright since 1831.

in settling this question. Stat. 436.) The specific designation

statutes make the same distinction, stands squarely upon the meaning of but in this

the result is un- the act. of any article in an act or series

Hervieu v. J. S. Ogilvie avoidable. What of acts of congress requires that

were copyrighted Pub. Co., supra. such article be treated by itself, and here were clearly musical composi

28 Op. Atty.-Gen. (Wickerexcludes it from general terms con

tions, and nothing else, and the dis- sham) 176. tained in the same act or in sub

tinction thus made by these penal (a) Reason for rule"I am asked ter's Dwarris on

provisions cannot be maintained unsequent acts.

what action should be taken by the Statutes,

less the result reached by the circuit register of copyrights when an appp.

198, 272: Vietor V. Arthur, 104 U. S. 498, 26 L. ed. 633;

court is accepted. The word 'litho- plication is made which presents Arthur v. Lahey, 96' U. S. 112, 24 graph,' found in the proviso in sec- either of the following conditions:

tion 3 of the statute under conL. ed. 766; Homer V. Austin, 1 Wall.

1. Where the


interim deposit

sub(U. S.) 486, 17 L. ed. 688; Arthur v. sideration, represents only a

under section 21 is a complete book, Stephani, i Wall. (U. S.) 125, 24

division of the matters embraced in and the permanent deposit under L. ed. 771. If, in a popular sense,

the word 'print' in the same section, section 22 is only a part of such and speaking particularly in referwhich gets its meaning and limita- book. 2. Where both the ad interim

and ence to form, "book' may be said to

tion, for the purposes of this statute, permanent deposits are fraginclude a musical composition, the

from its immediate association with ments of the work. 3. Where the

the words 'engraving, cut.' This is to this propositior. is that answer

copy, printed and bound in accordwhere two words of a statute are

emphasized by the third section of ance with the manufacturing procoupled together, one of which gen

the act of June 18, 1874 (18 Stat. visions of section 15 of the act and

78), which expressly limits the word deposited in the first instance, is only erically includes the other, the more general term is used in a meaning to pictorial illustrations or works con

a fragment of the work. 4. Where

Moreover, nected with the fine arts.

Endl. exclusive of the specific one.

a complete book is deposited, but the Interp. St. $ 396; Reiche v. Smythe, the introduction of the proviso by affidavit correctly indicates that only 13 Wall. (U. S.) 162, 20 L. ed. 566. the words in the case' constitutes a a part of the work is printed in the

United legislative selection from what pre

States. In reply to The reasoning upon which this rule

these of specific designation is based is cedes it. and shows that the quali- questions I have the honor to say:

The first two questions involve a that such designation is expressive fying effect of the proviso was inof the legislative intention to

tended to be limited to a part only construction of sections 21 and 22 of clude the article specifically named

of the things named in the body of the copyright act, which relate to from the general term which might

the section. These words necessarily procuring a copyright in a book pub

make the whole section in pari ma- lished abroad in the English language, otherwise include it. Smythe V.

teria. It is true that in some parts while the last two involve the general Fiske, 23 Wall. (U. S.) 374, 23 L. of the statutes the words "book,' | provisions of the act.

Does ed. 47; Reiche v. Smythe, 13 Wall.

'print' and musical composition, the word book," as here used, mean (U. S.) 162, 20 L. ed. 566. The

refer to the intellectual conception the entire book or a fragment of a English cases cited by the de

the essential element, and in book? It appears to me that there fendant to the effect that 'book' in

other parts may refer more par- can be but one answer to this quescludes musical composition' are not ticularly to the material form in tion. The requirement in section_21 material in the present controversy, which it is expressed but nowhere that a deposit in the copyright office because the statute law of the two

does either element exclusively within the time specified 'of one countries is different. The early exist, because intellectual con- complete copy of the foreign edition English statute of 8 Anne, c. 19;ception is copyrightable until it has clearly indicates that in the enactsays, in the preamble, "books and taken material

shape. Therefore, ment of these sections the entire book other writings, while, in the modern there is no reason for holding that was in the mind of Congress, and not English statute 5 & 6 Vict. c. 45, the use of the words 'book, photo- a fragment thereof. I am also of § 2, "book’ is defined to include vari- graph, chromo, or lithographi' in the the opinion that the same meaning ous specific things, as ‘map, chart, proviso. involves a departure from should be given the word 'book'as sheet of music,' etc. Nor do the the distinctive idea appertaining to it appears in class (a), section 5, American cases cited, Clayton either in other parts of the statutes and elsewhere in the act. Stone, 5 F. Cas. No. 2,872, 2 Paine touching the subject-matter of copy- When it was enacted in section : 382; Drury Ewing,

7 F Cas. right." Oliver Ditson Co. v. Little- 'that the author or proprietor of any No. 4,095, 1 Bond 540; Scoville v. ton, 67 Fed. 905, 906. 15 CCA 61. work made the subject of copyright Toland, 21 F. Cas. No. 12,533, Cox Domestic manufacturing clause I by this act

shall have copy






« PředchozíPokračovat »