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represented are located in a foreign country and
illustrate a scientific work or reproduce a work of
registration were issued. Subse-
quently, Davidson Brothers, of New
York, by permission of the owner of
the copyrights of the originals, pub-
lished by circulation and sale, repro-
ductions of the original paintings in
the form of illustrated post-cards,
produced by lithographic process in
Germany; and, fearing that the copy-
right of the originals might not pro-
tect the reproductions, immediately
after publication the publishers sent
to the register of copyrights two cop-
ies of each of the reproductions, ac-
companied by fees for entry, with
proper application for entry under
Class 'H' to wit, 'reproductions of a
work of art;' and the question pro-
pounded is, whether under the manu-
facturing provisions of section 15
of the act of March 4, 1909 (35 Stat.
1078), these lithographic reproduc-
tions are entitled to registration.

art,'' s have been officially construed by the attorney-general in opinions rendered to the copyright

dis

beyond the classes embraced in the |
first part of the section. This is
shown by the language that the
specified requirements shall extend,'
which, of course, means that they
were to apply to something which
had not theretofore been mentioned.
And the first character of works af-
fected by the extension are illustra-
tions within a book consisting of
printed text and illustrations pro-
duced by lithographic process or pho-
to-engraving process;' and this being
deemed insufficient, the provisions
were further extended to 'separate
lithographs or photo-engravings.'
The natural inference from this lan-
guage is, that inasmuch as the litho-
graphs and photo-engravings just
previously mentioned are such as
are connected with books, those to
which reference is here made are
separate from books; and that there
being no limitation as to the char-
acter of these separte lithographs
and photo-engravings, and no
tinction as to what uses they shall
be put, all lithographs and photo-
engravings which are not, and are
not intended to be, connected with
books, are included in this second
extension clause; and this construc-
tion must prevail unless the con-
trary is clearly shown by the other
provisions in the act. It may be ad-
mitted that there is an apparent in-
consistency in the language of sec-
tions 12 and 16, and this construction
of the clause of section 15 men-
tioned, but is this inconsistency such
as to require a strained and unnat-
ural meaning to be given to this
clause? As heretofore said, a com-
pliance with these manufacturing
provisions is a prerequisite to the
validity of a copyright. Sections 15
and 16 deal alone with these pro-
visions, while they are referred to
in connection with books and periodi-
cals in section 12; and to determine
the extent of these requirements, all
these sections must be read together.
When this is done it does not follow
that because a certain requirement
is not found in one of the sections
it does not exist at all, and must be
stricken out when found in another.
In many instances the contrary is
the proper method of reaching the
correct meaning of an act, as a
whole, and such method is, I think,
the proper one to adopt in constru-
ing this act. That is, if in either of
these sections there appears a re-
quirement that these manufacturing
provisions apply to lithographs and
photo-engravings, not connected with
or intended to be connected with
books, it should be given its full
force and effect, regardless of wheth-
er it be found elsewhere or not.

From sections 12, 16, and 17, as well as from its own terms, it is clear that a compliance with the manufacturing provisions of this section [15] is a condition precedent to a valid registration of the copyright. But the applicants for the copyrights in question insist that these provisions do not here apply, because, first, they are applicable to only lithographs and photo-engravings which are used as illustrations within books consisting of a printed text and such illustrations, and to lithographs and photo-engravings which are intended to be used in books after importation or to be bound in book form; and, second, because being reproductions of works of art, they are expressly excepted from the conditions relating to manufacture. These two contentions will be considered in the order mentioned. First. Whether or not the first contention shall be sustained depends upon the meaning of the phrase, and also to separate lithographs or photoengravings.' It is insisted that this phrase includes only lithographs and photo-engravings which are to constitute, after importation, parts of books, or to be bound in book form; and the following provisions, which appear in this section and elsewhere in the act, are cited in support of this insistence: (1) In the first clause of the section reference is made only to works mentioned in subsections (a) and (b) of section 5 of the act, which are (a) Books, including composite and cyclopædic works, directories, gazetteers, and other compilations;' '(b) Periodicals, including newspapers;' (2) in section 12, in providing that after copyright has been secured by publication of the work with the notice of copyright two copies shall be deposited in the copyright office, it is specified that these copies, if the work be a book or periodical, shall have been produced in accordance with the manufacturing provisions specified in section fifteen of this act,' and no reference is made to lithographs and photo-engravings; (3) in section 16, in specifying the character of affidavit which shall accompany the work in order to secure the enforcement of the manufacturing provisions of section 15, books alone are mentioned, and no reference is made to litho-planation of its various features, graphs or photo-engravings; and (4) in section 31 the importation of books alone which have not been produced in accordance with the manufacturing provisions of section 15 is prohibited. It is true that in the beginning of section 15 reference is made only to books and periodicals, and that it is there specifically provided where the type shall be set or the plates made from which the books and periodicals shall be printed, and where the books shall be bound, but it is clear that it was intended to make some extension of the application of these provisions

I think it quite probable that
in the act as originally drafted some
of the apparent inconsistencies be-
tween the several sections mentioned
did not exist, but that during the
extended hearings held by the com-
mittee who had the bill in charge,
amendments were determined upon,
which were inserted in section 15
alone, and by inadvertence, sections
12 and 31 were not amended to cor-
respond. This is indicated by the
comments upon section 15 in the ex-

prepared by the committee before the
bill was reported, which comments
are as follows: 'It was felt by your
committee that if there was reason,
as we think there was, for the re-
quirement that the book should be
printed from type set in this coun-
try, there was just as much reason
for

a requirement that the book
should be printed and bound in this
country, and that the ordinary illus-
trations produced by lithographic
process and photo-engraving process.
and separate lithographs or photo-
engravings, should be made in this
country. That protection to the men

engaged in the work of setting type, making plates, printing and binding books is given by this section, which also carries the penalty provision for knowingly making a false affidavit as to compliance with these provisions.' But, however the discrepancies may have arisen, I do not think they are such as to justify a modification of the plain and unequivocal meaning of the clause in section 15, which relates to 'separate' lithographs and photo-engravings, and, therefore, find against the applicants' first contention." 48 Op. Atty.Gen. (Wickersham) 150, 152, 155, 156. 68. See statute quoted supra note

65.

[a] Reproduction of foreign work of art.-"The second question is whether or not the cards in question fall within the exception—'Where in either case the subjects represented are located in a foreign country and illustrate a scientific work or reproduce a work of art.' It is insisted on the part of the applicants that the phrase 'or reproduce a work of art should be treated as separate and distinct from the preceding phrases, and that the exception should read as if written 'except where in either case the subjects represented are 10cated in a foreign country and illustrate a scientific work, and except where they reproduce a work of art.' In my judgment, such a construction of the exception is not warranted, and this is clearly shown by the comments of the committee having the bill in charge and by the history of the bill in Congress. The bill, as originally reported, omitted the phrase and illustrate a scientific work or reproduce a work of art,' which left the exception reading 'except where in either case the subjects represented are located in a foreign country.' (Cong. Rec., vol. 43, p. 3702.) Upon this subject the committee in its comments said: 'An exception, so far as lithographs and photo-engravings are concerned, is made in case "the subjects represented are located in a foreign country." It was contended with much force in the hearings before the committee that the color scheme in lithographs to illustrate a scientific work, particularly a work on surgery, must be worked out under the eye of the author. It was further said that a lithograph reproducing a painting must be worked out in front of the painting, and that possibly the same theory would apply to a lithograph of scenery or any lithograph intended to accurately represent the color scheme of any object. The committee finally decided to leave this matter as it is now found in the bill, although it was contended that the exception might well be confined to lithographs illustrating a scientific work or reproducing a work of art. And in accordance with the last suggestion, the committee subsequently added the phrases making the limitation mentioned, as an amendment to the bill. (Cong. Rec., vol. 43, p. 3704.) There can, therefore, be no doubt that the meaning of this exception is, that the subject represented in the lithograph or photo-engraving must be located in a foreign country, whether that subject be something the representation of which is used to illustrate a scientific work or a work of art. It is true that the clause when thus interpreted is not strictly grammatical, but, in fact, by any interpretation, the words 'lithographs or photo-engravings' must be understood as subjects of 'illustrate' and 'reproduce;' as it is quite clear that it is not 'the subjects' that illustrate a scientific work or reproduce a work of art,' but the lithographs or photo-engravings of such subjects. Therefore, the exception is not so broad as is con

COPYRIGHT AND LITERARY PROPERTY

office. Compliance with the domestic manufacturing
requirements is a condition precedent to valid regis-
tration of copyright. The manufacturing pro-

69

tended for by the applicants, but as here construed, since the paintings are located in a foreign country, these cards fall within the exception, provided the paintings 'works of art; and since they have been copyrighted as such, and possess artistic beauty, I know of no reason why they should not be so considered. It has been suggested that if it be held that lithographs and photo-engravings of all works of art located, in a foreign country may be made abroad, the purpose of the law to protect American workmen might be evaded by carrying works of art from this country into a foreign country and there having them lithographed, and also by having paintings made in a foreign country for the purpose of lithographing. Whether or not Congress had such grounds of objection in mind when this act was passed, does not appear from its language; and I am not now called upon to determine whether a painting carried from this country into a foreign country for the purpose of evading the spirit of the law and in fraud of the law would be considered as located in a foreign country in the sense of the statute; but there is certainly nothing in the act to indicate that Congress intended to make any distinction between works of art based upon the purposes for which they are created. If Congress had not intended to brace in the exception paintings created in a foreign country for the purpose of lithographing or photo-engraving, it could easily have expressed such intent; and since it failed to do so by the use of any language from which such a restriction may be implied, it is not within the province of a judicial officer called upon to interpret this statute to read into the act a provision of such a vital character." 28 Op. Atty.Gen. (Wickersham) 150, 156.

visions do not require books to be printed; but if [§ 100 they are printed, the printing must be done within the United States.70

eighteen additional applications for the entry of claims in similar lithoillustrations.' On October 3, 1910, graphs were received from Mr. Bauentered in class (k), it being stated that they were lithographic prints man, with the request that they be of entry were sent to the applicant. produced in the United States; and On December 12, 1910, a number of they were registered and certificates applications were received, each for painting located in England,' the identifying copy in each case consistthe entry of a copyright claim of a ing of the photograph of a picture showing the shape and size of the customary Christmas card, and the designs on the cards are of the usual kind, not differing in general style from those in the lithographs described above. The register of copyrights further states that the circumstances strongly tend to show 12, 1910, are intended to be reprothat the alleged 'paintings' sought to duced be registered under date of December placed on the market as birthday cards and the like, and are not inas chromolithographs dependent works of art, but the first and purpose of seeking their registration necessary step in the production of the lithographs, and further, that the quired to be manufactured 'by a is to give support to a contention that such lithographs are not reprocess wholly performed within the act, because they fall within the prolimits of the United States,' as provided in section 15 of the copyright jects which are located in a foreign vision excepting lithographs of subcountry and illustrate a scientific upon the following questions: 1. work or reproduce a work of art.' Whether the Register of Copyrights And my opinion is requested has authority to enter a claim in a painting made merely as a first step [b] Registration of foreign-made a 'work of art' within the meaning of lithographs.-(1) The register in the production of a lithograph as copyrights has the authority to enter Whether the Register of Copyrights a claim to copyright in a published has authority to enter a claim to of section 11 of the copyright act? lithograph, not made within the copyright in a published lithograph, United States, where the design, not made within the United States, drawing, or painting which forms where the design, drawing, or paintthe first step in the production of ing, which forms the first step in the such lithograph has been made for production of such lithograph, has the purpose of being converted into a lithograph, and is located in a foreign country, provided the design, located in a foreign country? been made for the purpose of being drawing, or painting with reference converted into a lithograph, and is to which the application is made is a work of art. 28 Op. Atty.-Gen. (Fow-mitted to you for the guidance of answer to these abstract questions ler) 561. (2) "On September 17, 1910, may be found in an opinion transMy J. Bauman submitted a number of applications for the entry of 'paint- there construed that provision of the the Register of Copyrights on Janings' under paragraph (g) section 5 manufacturing clause of the copyuary 27, 1910. of the act of March 4, 1909 (35 Stat. right act which excepts separate (28 Op. 150, 157.) I 1075, ch. 320), which relates 'Works of art; models or designs for 'where in either case the subjects works of art.' The identifying copies represented are located in a foreign to lithographs and deposited with photo-engravings consisted of chromolithographs, all work or reproduce a work of art;' these applications country and illustrate a scientific of which were in the nature of birth- and held that where the painting day, Christmas, or valentine cards, and bore the notice 'Copyright 1910 art and was located in a foreign by J. Bauman,' apparently added country, lithographs was properly classified as a work of with a stamp after the lithograph within the exception. had been completed. On September gress had not intended to embrace in 24, 1910, an additional number of thereof applications, executed in the same fell If Conform, and each accompanied by a lithographing or photo-engraving, it the exception paintings created in a chromolithograph as an identifying could easily have expressed such inforeign country for the purpose of copy, of the same general nature as those first sent, except lacking the the use of any language from which copyright notice, were received. In such a restriction may be implied, it tent; and since it failed to do so by both cases the applicant was formed that the lithographs which registration was sought were is not within the province of a obviously intended for publication, act a provision of such a vital charfor judicial officer called upon and that, therefore, the proper proterpret this statute to read into the cedure would be to register the copyto inright claims therein after publication directed to the fact that the manuacter. I think it quite likely that if under paragraph (k) of said act, the attention of Congress had been which relates to 'Prints and pictorial to a material extent evaded in the facturing clause of the act could be

[graphic]

have been modified in such way as to manner suggested, the phrase 'a work of art,' as used therein, would Congress alone has the power to so prevent such evasion; but the effect is the same whether the omission exception should have in the interest modify the language as to justify the was intentional or by oversight, as of American labor. construction which it is thought this original paintings had already been rights as 'works of art,' and I therefore said, 'Since the paintings are registered by the register of copylocated in a foreign country, these There the art"; and since they have been copyrighted as such, and possess artistic beauty, I know of no cards fall within the exception, prothey should not be so considered." vided the paintings are "works of reason why 28 Op. Atty.-Gen. (Fowler) 557, 560. 69. 28 Op. sham) 150. Atty.-Gen. (Wicker70. 28

, same title, page and note number

The Canadian statute requires, as a condition of copyright protection, that the work shall be printed and published, or reprinted or republished, or in the case of works of art, produced or reproduced, in Canada."1

In England the act of 1911 contains no domestic manufacturing requirements.72

[101] B. Particular Subject Matter-1. Books Generally.73 In its enumeration of works subject to copyright, the act of 1909 specifies: "Books, including composite and cyclopædic works, directories, gazetteers, and other compilations.'' 74 From the very beginning the copyright statutes have provided

in which the book should appear. That is, in the passage of sections 15 and 16, Congress was concerned in where and by whom the work of preparing the books for circulation and sale should be done, and not in the particular method by which the author should impart his ideas to the public. A contrary holding might lead to great uncertainty and confusion. It has been universally held that there is no requirement as to the number of pages on which a work shall appear in order that it may be entitled to the benefit of copyright. If it appear on one or even four pages, then there can be no necessity for a binding; and yet section 15 provides that 'the printing of the text and the binding of the said book shall be performed within the limits of the United States, thus implying, if the strict construction suggested be adopted, that the book must not only be printed, but must also be bound before the claim for copyright in the same can be registered. Of course Congress did not intend to, and did not, introduce such a radical innovation into the copyright law. The meaning of that clause in section 12 which provides

that the book 'shall have been produced in accordance with the manu

facturing provisions of section 15 of this act, is that the book shall not have been produced in violation of that section; and section 15 means that if the book is printed, the printing shall be done as required therein.' Op. Atty.-Gen. (Fowler) 265, 268.

"

71. Rev. St. (1906) c 70 § 6; Act (1886) § 5; Act (1875) § 4 (2); Frowde v. Parrish, 27 Ont. 526.

[a] Canadian typesetting not required. "The plaintiff continues to print and publish his book in Canada from stereotype plates. That is a sufficient 'printing' within the meaning of the Act, though no typographical work is done in the preparation of copies." Frowde v. Parrish, 27 Ont. 526, 528.

72. St. 1 & 2 Geo. V c 46. 73. Law books see infra §§ 134138.

74. Act March 4, 1909 (35 U. S. St. at L. 1075 c 320 § 5).

75. See supra §§ 69, 70, 90. [a] In England (1) encyclopedias, reviews, magazines, and periodical works, or works published in a series of books or parts, were specifically protected by the former statute. 5 & 6 Vict. c 45 § 18. (2) Previous to this enactment protection had been afforded such publications under the judicial construction of the word "book," as used in 8 Anne c 19. Sweet v. Maugham, 11 Sim. 51, 34 EngCh 51, 59 Reprint 793; Bell v. Whitehead, 3 Jur. 68; Mawman v. Tegg, 2 Russ. 385, 3 EngCh 385, 38 Reprint 380; Hogg v. Kirby, 8 Ves. Jr. 215, 32 Reprint 336.

76. Scoville v. Toland, 21 F. Cas. No. 12,553, Cox Manual Trade-Mark Cas. 51.

[a] Statutory definition.-"The word 'book' shall be construed to mean every volume and part of a volume, together with all maps, prints or other engravings belonging thereto." Act March 3, 1865 (13

The

for the copyright of books.75 A printed volume,
whether containing many or few pages, is a book,
within the meaning of the copyright law.76
form of the publication is not material." It is the
intellectual production of the author which the copy-
right protects, and not the particular form which
such production ultimately assumes." Hence the
word "book," as used in the statute, is not to be
understood in its technical sense of a bound vol-
ume,79 but includes any species of publication which
the author selects to embody his literary product.
Even a single sheet may be a book.81 It is not even

U. S. St. at L. 540 c 126 § 4) (under
act requiring deposit of books in li-
brary of congress). Under English
statute see infra note 80 [a].

Definitions of "book" see Book 9
C. J. p 136.

77. Clementi v. Golding, 2 Campb.
25. And cases infra notes 78-90.
78. Holmes v. Hurst, 174 U. S.
82, 19 SCt 606, 43 L. ed. 904 [aff 80
Fed. 514, 25 CCA 610 (aff 76 Fed.
757)]; Hervieu v. J. S. Ogilvie Pub.
Co., 169 Fed. 978; Brightley v.
Littleton, 37 Fed. 103; Schumacher
V. Schwencke, 25 Fed. 466, 23 Blatchf.
373; Clayton v. Stone, 5 F. Cas. No.
2,872, 2 Paine 382; Drury v. Ewing,
7 F. Cas. No. 4,095, 1 Bond 540; Rob-
erts v. Myers, 20 F. Cas. No. 11.906,
Brunn. Coll. Cas. 698; Scoville v. Tol-
and, 21 F. Cas. No. 12,553; White v.
Geroch, 2 B. & Ald. 298, 106 Reprint
376, 1 Chit. 24, 18 ECL 28; Platts v.
Button, Coop. 303, 10 EngCh 303,35
Reprint 566, 19 Ves. Jr. 447, 34 Re-
print 583; Bach v. Longman, Cowp.
623,

V.

Storace
98 Reprint 1274;
Longman [cit Clementi v. Goulding,
11 East 244, 103 Reprint 998]; Hime
v. Dale [cit Clementi v. Goulding,
supra]; Clementi v. Goulding, supra;
Jefferys v. Boosey. 4 H. L. Cas. 815,

10 Reprint 681; D'Almaine v. Boo-
sey, 4 L. J. Exch. 21; Chappell_v.
print 491.
Purday, 14 M. & W. 303, 153 Re-

"The literary property intended to
be protected by the act is not to be
determined by the size, form, or
shape in which it makes its appear-
ance, but by the subject-matter of
the work." Hervieu v. J. S. Ogilvie
Pub. Co., 169 Fed. 978, 982 [quot
Clayton v. Stone, supra].

79. Holmes v. Hurst, 174 U. S. 82, 89, 19 SCt 606, 43 L. ed. 904 [aff 80 Fed. 514, 25 CCA 610 (aff 76 Fed. 757)].

"It is the intellectual production of the author which the copyright protects and not the particular form which such production ultimately takes, and the word 'book' as used in the statute is not to be understood in its technical sense of a bound volume, but any species of publication which the author selects to embody his literary product." Holmes v. Hurst, 174 U. S. 82, 89, 19 SCt 606, 43 L. ed. 904.

[a] Collected sheets of literary work-The collected sheets containing, in orderly and connected fashion, the record of the intellectual and literary work of the author, is a "book," although unbound, unless for some particular and special purpose a narrower definition is prescribed by law. In re Hempstead, 95 Fed. 967 [aff 103 Fed. 197, 43 CCA 178] (within tariff law).

[b] Unbound folded sheets.-The term "book," within an act passed in 1851 providing for the recording of grants of lands in California in some book of record, was satisfied by copies of the deed on sheets not bound or fastened together in any manner, but folded, the name of the purchaser being indorsed thereon, and each distinct class kept in a separate bundle, the sheets not being bound in to the form of books until 1856. Mumford v. Wardwell, 6 Wall. (U. S.) 423, 18 L. ed. 756.

80. Holmes v. Hurst, 174 U. S. 82,

78

80

19 SCt 606, 43 L. ed. 904 [aff 80 Fed. 514, 25 CCA 610 (aff 76 Fed. 757)].

Each

[a] The English Copyright Act of 1842 (1) provides that "the Word 'Book' shall be construed to mean and include every Volume, Part or Division of a Volume, Pamphlet, Sheet of Letter-press, Sheet of Music, Map, Chart, or Plan separately published.' 5 & 6 Vict. c 45 § 2. (2) The definition includes dramatic pieces and musicial compositions in print or manuscript. 8 Halsbury L. Eng. p 142. (3) The phrase "separately published" has been taken to apply to the entire definition. part that is separately and clearly distinguished in the volume itself is separately published, within the meaning of § 2. Johnson v. Newnes, [1894] 3 Ch. 663; Lamb v. Evans, [1893] 1 Ch. 218. See also Lawrence & Bullen, Ltd. v. Aflalo, [1904] A. C. 17 (where the question as the meaning of "separately published" was raised, but not decided). (4) A Christmas card is within the definition (Hildesheimer v. Dunn, 64 L. T. Rep. N. S. 452), (5) and so also is a sheet of illustrations forming a trade catalogue (Davis v. Benjamin, [1906] 2 Ch. 491). (6) The word "book" includes a part of a book under the interpretation clause of § 2 of the Copyright Act of 1842. Kelly's Directories, Ltd. v. Gavin, [1901] 1 Ch. 374.

to

[b] "This term includes all printed literary works (except dramatic compositions) whether published in the ordinary shape of a book or pamphlet, or printed as a leaflet, card, or single page. The term 'book' as used in the law includes tabulated forms of information, frequently called charts; tables of figures showing the results of mathematical computations, such as logarithmic tables; interest, cost, and wage tables, etc., single poems, and the words of a song when printed and published without music; librettos; descriptions of motion pictures or spectacles; encyclopædias; catalogues; directories; gazeteers and similar compilations; circulars or folders containing information in the form of reading matter other than mere lists of articles, names and addresses, and literary contributions to periodicals or newspapers." Rules and Regulations for Registration of Claims to Copyright (Copyright Office Bul. No. 15) rule 4.

[c] As any composition.-(1) Any composition, whether large or small, although found in company with other compositions, is a book, within 54 Geo. III § 156, granting a copyright to the authors of books. White V. Geroch, 2 B. & Ald. 298, 106 Reprint 376. (2) The term "book," within the meaning of the copyright laws, includes any composition, large or small, which includes results of successive mental processes rationally combined, whether it fills great volume or is contained in a single sheet. Keene v. Wheatley, 14 F. Cas. No. 7,644.

a

81. Higgins v. Keuffel, 140 U. S. 428, 11 SCt 731, 35 L. ed. 470 [aff 30 Fed. 627]; J. L. Mott Iron Works v. Clow. 82 Fed. 316, 27 CCA 250; Oliver Ditson Co. V. Littleton, 67 Fed. 905, 15 CCA 61; Littleton V.

85

83

necessary that the work shall be printed,82 although
it must have been reduced to material form.8 The
term "book" has been held to include: A letter;84
an article published in an encyclopedia or in a
newspaper;86
a newspaper, magazine, or other
periodical;88 blank legal forms;89 and other works
enumerated below.90 But the term "book" has

87

Oliver Ditson Co., 62 Fed. 597 [aff 67 Fed. 905, 15 CCA 61]; Clayton v. Stone, 5 F. Cas. No. 2,872, 2 Paine 382; Drury v. Ewing, 7 F. Cas. No. 4,095, 1 Bond 540; Keene v. Wheatley, 14 F. Cas. No. 7,644; Scoville v. Toland, 21 F. Cas. No. 12,553, Cox Manual Trade-Mark Cas. 51; Davis v. Benjamin, [1906] 2 Ch. 491; Walter v. Howe, 17 Ch. D. 708; Clementi v. Golding, 2 Campb. 25; Clementi v. Goulding, 11 East 244, 103 Reprint 998 (single sheet of music); D'Almaine v. Boosey, 4 L. J. Exch. 21; Life Pub. Co. v. Rose Pub. Co., 12 Ont. L. 386, 8 OntWR 28; Church v. Linton, 25 Ont. 131; Griffin v. Kingston, etc., R. Co., 17 Ont. 660 (holding railroad ticket not copyrightable). But see Hime v. Dale, 2 Campb. 28 note (where Lord Ellenborough doubted whether a song published on a single sheet of paper was protected by the statute of 8 Anne c 19, because a book meant in common acceptation a plurality of sheets).

82. 28 Op. Atty.-Gen. (Fowler) 265; Roberts v. Myers, 20 F. Cas. No. 11,906, Brunn. Coll. Cas. 698 (holding that there might be a copyright in Boucicault's drama "The Octoroon," although it had never been printed).

[a] Typewritten pages fastened together and having a printed cover and title-page are subject to registration under the copyright law of March 4, 1909 (35 U. S. St. at L. 1075). 28 Op. Atty.-Gen. (Fowler) 265.

96

94

as to

98

89. Brightley v. Littleton, 37 Fed. 103.

Legal blanks as subjects of copyright see infra § 138.

90. Davis v. Benjamin, [1906] 2 Ch. 491 (a trade advertisement with illustrations).

been held not to include various other works or productions, particularly articles designed primarily for physical, rather than intellectual, use and enjoyment,92 including an indexed letter file,93 index cards, a railroad ticket,95 a cardboard pattern sleeve, a label,9 the face of a barometer, although containing letter-press, a photograph album defines a book to be: 'A collection, been held that each part of a periof sheets of paper or similar mate- odical is a book within the meaning rial, blank, written or printed, bound of the act." Holmes v. Hurst, 174 together; commonly, many folded U. S. 82, 90, 19 SCt 606, 43 L. ed. and bound sheets containing contin- 904. uous printing or writing.' The courts have shown the greatest liberality in interpreting the copyright laws, and have, in favor of authors, extended the word 'book' so make it include works which do not fall even within this broad definition. In Clayton v. Stone, 5 F. Cas. No. 2,872 (2 Paine 382, 391) the court held that a newspaper could not be copyrighted on account of its method of publication, but in the course of its opinion the court said: 'It seems to be well settled in England, that a literary production, to be entitled to the protection of the statute on copyrights, need not be a book in the common and ordinary acceptation of the word-a volume, written or printed, made up of several sheets and bound up together. It may be printed on one sheet, as the words of a song or the music accompanying it. It is true that the English statute of 8 Anne, in the preamble, speaks of books and other writings; but the body of the act speaks only of books, the same as in the act of Congress; and a learned commentator upon American law (2 Kent's Com. 311) seems to think the English decisions on this subject have been given upon the body of the statute of Anne, without laying any stress upon the words or other writings in the preamble.' See also Drone on Copyrights, 142, and 9 Cyc. 898. Clearly, therefore. the work submitted is a book

[b] Mimeographed work. "The
publishers, Thomas Nelson & Sons,
have sent to the Copyright Office
for deposit under the copyright law,
and for copyright registration, two
copies of an article entitled Nelson's
Bureau of Research: A few speci-
mens of inquiries and answers.
These copies consist of 122 type-
written pages, with a printed cover
and title page, said cover and pages
being fastened together in the usual
manner in which typewritten docu-
ments are fastened. It is explained | Ch. 101, 3 AnnCas 1113.
by the applicants that they publish
an encyclopaedia, one of the essen-
tial features of which is that it is
kept up-to-date; that in connection
with the published encyclopaedia the
privilege is offered its subscribers of
submitting letters of inquiry upon
any subject whatsoever; that to such
inquiries careful and elaborate
answers are prepared under the su-
pervision of eminent authorities, and
these answers are typewritten and
copies struck off by means of the
mimeograph; that the copies pro-
duced in this way
are issued for
general circulation; and it is in
these sheets of answers bound as
stated that the publishers desire to
register a claim for copyright; and
you ask my opinion as to whether
or not the register of copyrights
has authority, under the copyright
act of March 4, 1909 (35 Stat. 1075),
to register the same. The real
question is, whether or not, under
the copyright law, a book must be
printed before a claim for copyright
therein can be admitted to registra-
tion. If copies of this work were
not reproduced for sale, it is con-
ceded that the claim should be regis-
tered under section 11 of the act;
but inasmuch as numerous copies
are struck off for circulation, it is
thought, and correctly so I think,
that if copyrighted at all, it must
be as a publication, and not as a
mere manuscript.

as defined both by lexicographers
and the courts, and the claim for
copyright therein may be registered
unless there is some provision in the
act which prohibits it." 28 Op. Atty.-
Gen. (Fowler) 265.

Domestic manufacturing provi-
sions, effect of see supra § 100.
83. See infra § 106.

84. Macmillan v. Dent, [1906] 1
85. Black v. Henry G. Allen Co.,
56 Fed. 764.

86. Brightley v. Littleton, 37 Fed. 103; Walter v. Howe. 17 Ch. D. 708.

87. Harper v. Shoppell, 26 Fed. 519, 23 Blatchf. 431; Walter v. Howe, 17 Ch. D. 708 [overr Cox v. Land, etc., Journal Co., L. R. 9 Eq. 324]; Life Pub. Co. v. Rose Pub. Co., 12 Ont. L. 386, 8 OntWR 28.

Webster

[a] Newspaper comic supplement. -"I think the serial the 'Comic Pictorial Sheet' is clearly a 'book' within sec. 2 of the Copyright Act, 5 & 6 Vict., in which the term 'book' is defined as 'every volume, part or division of a volume, pamphlet, sheet of letter-press, etc., separately published.' In Walter v. Howe, 17 Ch. D. 708, it was held that a newspaper, being 'a sheet of letter-press,' was a 'book' under sec. 2 of the Act, and also a periodical work' under sec. 19. See also Trade Auxiliary Co. v. Middlesborough, etc.. Tradesmen's Protective Assoc., 40 Ch. D. 425, and other cases cited in Scrutton's Law of Copyright, 4th ed., p. 111." Life Pub. Co. v. Rose Pub. Co., 12 Ont, L. 386. 390, 8 OntWR 28.

88. Holmes v. Hurst, 174 U. S. 82, 19 SCt 606, 43 L. ed. 904; Henderson v. Maxwell, 4 Ch. D. 163; Bradbury v. Hotten, L. R. 8 Exch. 1.

[a] "Under the English copyright act of 1845, provision is made for the publication of works in a series of books or parts, but it has always

[a] Dressmaking pattern.-A chart on a single sheet, containing diagrams representing a system of taking measures for and cutting women's dresses, with instructions for its use. is a "book" within the copyright law. Drury v. Ewing, 7 F. Cas. No. 4.095, 1 Bond 540 [dist Baker v. Selden, 101 U. S. 99, 25 L. ed. 841].

Advertisements generally as subjects of copyright see infra § 140. 91. See cases infra notes 92-6. [a]

"The term 'book' can not be applied to-Blank books for use in business or in carrying out any system of transacting affairs, such as record books, account books, memorandum books, diaries or journals, bank deposit and check books; forms of contracts or leases which do not contain original copyrightable matter; coupons; forms for use in commercial, legal, or financial transactions, which are wholly or partly blank and whose value lies in their usefulness and not in their merit as literary compositions." Rules and Regulations for Registration of Claims to Copyright (Copyright Office Bul. No. 15) rule 51.

[b] A book containing blank forms, but not containing a single English sentence, is not a composition within the purview of the copyright law and is not copyrightable. U. S. v. Young, 26 Wash. L. 546.

92. See cases infra this section passim.

[a] A card cut in shape to cast a shadow resembling that portrayed in Mr. Holman Hunt's picture "Ecce Homo" with verses by Longfellow, was held not to be a book," plaintiff being the inventor of a trick, and not the author of a literary composition. Cable v. Marks, 52 L. J. Ch. 107.

Articles designed for physical use see infra § 124.

93. Amberg File, etc., Co. v. Shea, 78 Fed. 479 [aff 82 Fed. 314, 27 CCA 246].

94. Libraco, Ltd. v. Shaw Walker, Ltd., 58 Sol. J. 48.

[a] Cards bearing only the words "name" and "address," intended to be filled out and used as a card index, are not "a literary work" and therefore not copyrightable. Libraco, Ltd. v. Shaw Walker, Ltd., 58 Sol. J.

48.

95. Griffin v. Kingston, etc., R. Co., 17 Ont. 660.

96. Hollinrake v. Truswell, [1894] 3 Ch. 420 (holding that a cardboard pattern sleeve is not copyrightable as a book, map, chart, or plan). But see supra note 90 [a].

97. Higgins v. Keuffel, 140 U. S. 428, 11 SCt 731, 35 L. ed. 470 [aff 30 Fed. 627].

Labels for manufactured articles see infra § 141.

98. Davis v. Comitti, 54 L. J. Ch. 419.

neces

[a] Reason for rule. There can be no copyright in the face of a barometer, as the face is a sary part of the instrument, and, if separated therefrom, is without use

[blocks in formation]

or meaning, and the whole barometer cannot possibly be considered a book. Davis v. Comitti, 54 L. J. Ch. 419.

99. Schove v. Schmincké, 33 Ch. D. 546 (holding that such album is a book in form only and not the subject of copyright).

1. Baker v. Selden, 101 U. S. 99, 107, 25 L. ed. 841.

come

"The conclusion to which we have is, that blank account-books are not the subject of copyright; and that the mere copyright of Selden's book did not confer upon him the exclusive right to make and use account-books, ruled and arranged as designated by him and described and illustrated in said book." Baker v. Selden, supra.

2. Page v. Wisden, 20 L. T. Rep. N. S. 435 (where a copyright was claimed in a cricket scoring-sheet, and the vice chancellor held that it was not a fit subject for copyright, partly because it was not new, but also because "to say that a particular mode of ruling a book constituted an object for a copyright is absurd").

3. Cable v. Marks, 52 L. J. Ch. 107.

4. Littleton v. Oliver Ditson Co., 62 Fed. 597 [aff 67 Fed. 905, 15 CCA 61] [foll Hervieu v. J. S. Ogilvie Pub. Co., 169 Fed. 978].

[a] Reason for rule.-(1) "Book' has been distinguished from 'musical composition' in the statutes re(4 lating to copyright since 1831. Stat. 436.) The specific designation of any article in an act or series of acts of congress requires that such article be treated by itself, and excludes it from general terms contained in the same act or in subPotter's Dwarris on sequent acts. Statutes, pp. 198, 272; Vietor V. Arthur, 104 U. S. 498, 26 L. ed. 633; Arthur v. Lahey, 96 U. S. 112, 24 L. ed. 766; Homer v. Austin, 1 Wall. (U. S.) 486, 17 L. ed. 688; Arthur v. Stephani, 1 Wall. (U. S.) 125, 24 L. ed. 771. If, in a popular sense, and speaking particularly in reference to form, 'book' may be said to include a musical composition, the answer to this proposition. is that where two words of a statute are coupled together, one of which generically includes the other, the more general term is used in a meaning Endl. exclusive of the specific one. Interp. St. § 396; Reiche v. Smythe, 13 Wall. (U. S.) 162, 20 L. ed. 566. The reasoning upon which this rule of specific designation is based is that such designation is expressive of the legislative intention to clude the article specifically named from the general term which might otherwise include it. Smythe V. Fiske, 23 Wall. (U. S.) 374, 23 L. ed. 47; Reiche v. Smythe, 13 Wall. (U. S.) 162, 20 L. ed. 566. The English cases cited by the defendant to the effect that 'book' includes 'musical composition' are not material in the present controversy, because the statute law of the two countries is different. The early English statute of 8 Anne, C. 19. says, in the preamble, 'books and other writings,' while, in the modern English statute 5 & 6 Vict. c. 45, § 2, 'book' is defined to include various specific things, as 'map, chart, sheet of music,' etc. Nor do the American cases cited. Clayton V. Stone, 5 F. Cas. No. 2,872, 2 Paine 382; Drury v. Ewing. 7 F. Cas. No. 4.095, 1 Bond 540; Scoville v. Toland, 21 F. Cas. No. 12,533, Cox

ex

was

of dramatic compositions. The word "book" means, however, the entire work, and does not include or authorize the copyrighting of an incomplete and fragmentary part of it.

[102] 2. Newspapers and Periodicals. Periodicals, including newspapers, are expressly named in the present statute as proper subjects of copy

see supra § 100.

5. Littleton v. Oliver Ditson Co., 62 Fed. 597 [aff 67 Fed. 905, 15 CCA 61]; Clemetti v. Golding, 2 Campb. 25; D'Almaine v. Boosey, 4 L. J. Exch. 21. But see Witmark v. Standard Music Roll Co., 221 Fed. 376, 137 CCA 184 (holding that a musical composition consisting of words and music is not a book; that a book is a literary composition). 6. Hervieu v. J. S. Ogilvie Pub. Co., 169 Fed. 978.

"The case of Littleton v. Oliver

by Judge Colt of the First Cirthe Court of Appeals (67 Fed. 905, 15 CCA 61) involves the very question presented here, except in that case it was a musical composition, while in this it is dramatic; but by the language of the statute dramatic and musical compositions are coupled together. Hence the holding of that court that a musical composition is not .cluded in the proviso as a book applies with equal force to the question presented in the case at bar." Hervíeu v. J. S. Ogilvie Pub. Co., supra.

"The question here presented is not whether a dramatic composition can ever be regarded as a book, but whether Congress intended, by the act above quoted, to include dramatic compositions within the terms of the proviso. Dictionary definitions of the word 'book' are of no aid this in settling question. It stands squarely upon the meaning of the act.' Hervieu v. J. S. Ogilvie Pub. Co., supra.

7. 28 Op. Atty.-Gen. (Wickersham) 176.

Manual Trade-Mark Cas. 51, help the
defendant. In none of these cases
has the question ever been deter-
mined whether a musical composi-
tion is a book. It must also be
remembered that the question now
presented is not strictly whether a
musical composition can ever be re-
garded as a book, but whether con-
gress meant in the act of March 3,
1891, to include musical composition
within the terms of the proviso re-
ferred to. Nor do I think the dic-
tionary definitions of 'book' render
us much assistance, because the Ditson Co., 62 Fed. 597 (decided
word is used in so many different
senses. It may refer to the sub-cuit) and his decision affirmed by
ject-matter, as literary composition;
or to form, as a number of leaves
of paper bound together; or a writ-
ten instrument or document; or a
particular subdivision of a literary
composition; or the words of an
opera, etc.' Littleton V. Oliver
Ditson Co., 62 Fed. 597, 599 [aff 67
Fed. 905, 15 CCA 61]. (2) "That
musicial compositions, as such, differ,
in the view of the copyright law,
from books, as such, necessarily fol-
lows from the fact that when musi-
cal compositions were first made
copyrightable
in-
the penalty for
fringing
made expressly and
distinctively other than that for in-
Act
fringing the copyrighted book.
Feb. 3, 1831 (4 Stat. 437. 438, §§
And it SO stands in the
6, 7).
Act March 3, 1891
present statute.
(26 Stat. 1109, §§ 7, 8). There are
other particulars in which the
statutes make the same distinction,
but in this one the result is un-
avoidable. What were copyrighted
here were clearly musical composi-
tions, and nothing else, and the dis-
tinction thus made by these penal
provisions cannot be maintained un-
less the result reached by the circuit
court is accepted. The word 'litho-
graph,' found in the proviso in sec-
tion 3 of the statute under con-
sub-
sideration, represents only a
division of the matters embraced in
the word 'print,' in the same section.
which gets its meaning and limita-
tion, for the purposes of this statute,
from its immediate association with
the words 'engraving, cut.' This is
emphasized by the third section of
the act of June 18, 1874 (18 Stat.
78), which expressly limits the word
to pictorial illustrations or works con-
nected with the fine arts. Moreover,
the introduction of the proviso by
the words 'in the case' constitutes a
legislative selection from what pre-
cedes it. and shows that the quali-
fying effect of the proviso was in-
tended to be limited to a part only
of the things named in the body of
the section. These words necessarily
make the whole section in pari ma-
teria. It is true that in some parts
of the statutes the words book,'
'print,' and 'musical composition,'
refer to the intellectual conception
as the essential element, and in
other parts may refer more par-
ticularly to the material form in
which it is expressed; but nowhere
does either element exclusively
exist, because no intellectual con-
ception is copyrightable until it has
taken material shape. Therefore,
there is no reason for holding that
the use of the words 'book, photo-
graph, chromo, or lithograph,' in the
proviso, involves a departure from
the distinctive idea appertaining to
either in other parts of the statutes
touching the subject-matter of copy-
right." Oliver Ditson Co. v. Little-
ton, 67 Fed. 905, 906. 15 CCA 61.
Domestic manufacturing clause

[a] Reason for rule.-"I am asked what action should be taken by the register of copyrights when an application is made which presents either of the following conditions: the 1. Where ad interim deposit under section 21 is a complete book, and the permanent deposit under section 22 is only a part of such book. 2. Where both the ad interim and permanent deposits are fragments of the work. 3. Where the copy, printed and bound in accordance with the manufacturing provisions of section 15 of the act and deposited in the first instance, is only a fragment of the work. 4. Where a complete book is deposited, but the affidavit correctly indicates that only a part of the work is printed in the United States. In reply to these questions I have the honor to say: The first two questions involve a construction of sections 21 and 22 of the copyright act, which relate to procuring a copyright in a book published abroad in the English language, while the last two involve the general provisions of the act. Does the word book,' as here used, mean the entire book or a fragment of a book? It appears to me that there can be but one answer to this question. The requirement in section 21 that a deposit in the copyright office within the time specified of one complete copy of the foreign edition' clearly indicates that in the enactment of these sections the entire book was in the mind of Congress, and not a fragment thereof. I am also of the opinion that the same meaning should be given the word 'book' as it appears in class (a), section 5, and elsewhere in the act. When it was enacted in section 8 'that the author or proprietor of any work made the subject of copyright by this act ... shall have copy

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