English statutes drawings are copyrightable.36 38 [118] 10. Photographs. In the United States it was held that a photograph was not a "print, cut, or engraving" within the meaning of the earlier copyright law, and was not therefore a proper subject of copyright under that statute.37 Congress, however, in 1865, extended copyright protection to photographs and negatives thereof, by expressly including them among the articles for which copyright was provided; and this express designation of photographs as copyrightable works has been continued in all subsequent statutes.39 Although it was questioned whether a photographer is an author, and a photograph a writing, within the constitutional provision under which copyrights may be granted, the constitutionality of such legislation was sustained.40 Accordingly, since the act of 1865, photographs have been, and now are, copyrightable signs for engineering work, etc." process with the original intellectRules and Regulations for Registra-ual conception of an artist. Courier tion of Claims to Copyright (Copy- Lith. Co. v. Donaldson Lith. Co., 104 right Office Bul. No. 15), rule 14. Fed. 993, 44 CCA 296. 36. Fine Arts Copyright Act, 1862 (25 & 26 Vict. c 68 § 1); Millar v. Polak, [1908] 1 Ch. 433. See also supra § 114. [a] Stamped devices made from drawings.-An artist designed certain devices for gold foil ornaments on Christmas cards, which were reproduced from the original drawings by means of being stamped in mold. Such stamped devices were, in a sufficient sense, "drawings," so as to be capable of registration under the Fine Arts Copyright Act, 1862. Millar v. Polak, [1908] 1 Ch. 433. a 37. Wood v. Abbott. 30 F. Cas. No. 17,938, 5 Blatchf. 325. 38. Act March 3, 1865 (13 U. S. St. at L. 540). 39. Act July 8, 1870 (16 U. S. St. at L. 198 c 230 § 86); U. S. Rev. St. § 4952; Act March 3, 1891 (26 U. S. St. at L. 1107 c 565 § 1); Act Jan. 7, 1904 (33 U. S. St. at L. 4 c 2 § 1); Act March 3, 1905 (33 U. S. St. at L. 1000). as such, and photographers have frequently been protected in the enjoyment of a copyright in their photographic productions." The basis and justification of such copyrights is the undeniable fact that a photograph may embody original work and artistic skill, and be in fact an artistic production, the result of original intellectual conception on the part of its author.43 The fact that the photographer arranged the light, the background, and other details of a photograph, and posed the subject so as to produce an artistic and pleasing picture is sufficient to sustain a copyright for such photograph.** A photograph of natural scenery may be the subject of a copyright. Even a photograph of another picture has been held copyrightable." Probably any photograph is sufficiently original to support a copyright if it is not a piracy." But where a photograph has become public property by publication and sale 45 46 47. Graves' Case, L. R. 4 Q. B. 715, 723 (where Mr. Justice Blackburn said: "The distinction between an original painting and its copy is well understood, but it is difficult to say what is meant by an original photograph. All photographs are copies of some object, such as painting or a statue, and it seems to me that a photograph taken from a picture is an original photograph, in so far that to copy it is an infringement of this statute"). a 44. Burrow-Giles Lith. Co. V. Sarony, 111 U. S. 53, 4 SCt 279, 28 L. ed. 349 [aff 17 Fed. 591] (photograph of Oscar Wilde); Pagano v. Chas. Beseler Co., 234 Fed. 963; Cleland v. Thayer, 121 Fed. 71, 58 CCA 272 (where the elements of originality in a photograph of natural scenery are well stated); Falk V. Gast Lith., etc., Co., 48 Fed. 262 [aff 54 Fed. 890, 4 CCA 648] (photograph of Julia Marlowe). See [a] Originality of photographs.Nottage v. Jackson, 11 Q. B. D. 627 (1) The word 'writings' is not lim[quot Burrow-Giles Lith. Co. v. Sar-ited to the actual script of the auony, supra] (authorship of pho- thor, but includes his printed books, tograph). and all forms of writing, printing, engraving, etching, etc., by which the ideas in his mind are given visible expression. A photograph may therefore be the subject of copyright, for it may give visible expression to an author's idea or conception. Whether a photograph of a building or any other object, which is a mere mechanical reproduction of the physical features or outlines of the object, involving no originality or novelty on the part of him who takes it, is the subject of copyright, may well be doubted. But if a photograph be not only a lightwritten picture of some object, but also an expression of an idea, or thought, or conception of the one who takes it, it is a writing within the Constitutional sense, and the 40. See supra § 85. 41. Thornton v. Schreiber, 124 U. S. 612, 8 SCt 618, 31 L. ed. 577; Burrow-Giles Lithographic Co. V. Sarony, 111 U. S. 53, 4 SCt 279, 28 L. ed. 349 [aff 17 Fed. 591]; Pagano v. Chas. Beseler Co., 234 Fed. 963; Gross v. Seligman, 212 Fed. 930, 129 CCA 450; American Mutoscope, etc., Co. v. Edison Mfg. Co., 137 Fed. 262; Falk v. Curtis Pub. Co., 98 Fed. 989; Bolles v. Outing Co., 77 Fed. 966, 23 CCA 594 [aff 175 U. S. 262, 20 SCt 94, 44 L. ed. 156]; Falk v. Donaldson, 57 Fed. 32; Falk v. Brett Lith. Co., 48 Fed. 678; Falk v. Gast Lith. Co., 48 Fed. 262 [aff 54 Fed. 890, 4 CCA 648]; Falk v. Howell, 37 Fed. 202. 42. Pagano v. Chas. Beseler Co., 234 Fed. 963; Gross v. Seligman, 212 Fed. 930, 129 CCA 450; Edison v. Lubin, 122 Fed. 240, 58 CCA 604 [rev 119 Fed. 993, and app dism 195 U. S. 625, 25 SCt 790, 49 L. ed. 349]; Bolles v. Outing Co., 77 Fed. 966, 23 CCA 594, 46 LRA 712 [aff 175 U. S. 262, 20 SCt 94, 44 L. ed. 156]. 43. Bamforth V. Douglass Post Card, etc., Co., 158 Fed. 355; Edison v. Lubin, 122 Fed. 240, 58 CCA 604 [rev 119 Fed. 993, and app dism 195 U. S. 625, 25 SCt 790, 49 L. ed. 349]. [b] Public building and surround-proper subject of copyright." Ameriings.-"The question is not, as de- can Mutoscope, etc., Co. v. Edison fendant suggests, whether the photo- Mfg. Co., 137 Fed. 262, 265. (2) graph of a public building may prop"But it is said that an engraving, a erly be copyrighted. Any one may painting, a print, does embody the take a photograph of a public build-intellectual conception of its author, ing and of the surrounding scene. in which there is novelty, invention, It undoubtedly requires originality originality, and therefore comes to determine just when to take the within the purpose of the Constituphotograph, so as to bring out the tion in securing its exclusive use or proper setting for both animate and sale to its author, while the photoinanimate objects, with the adjunc- graph is the mere mechanical reprotive features of light, shade, posi- duction of the physical features or tion, etc. The photograph in ques- outlines of some object animate or tion is admirable. The photog- inanimate, and involves no origrapher caught the men and women inality of thought or any novelty in in not merely lifelike, but artistic, the intellectual operation connected positions, and this is especially true with its visible reproduction in the of the traffic policeman. The back- shape of a picture. That while the ground, taking in the building of the effect of light on the prepared plate Engineers' Club and the small trees may have been a discovery in the on Forty-First street, is most pleas- production of these pictures, and ing, and the lights and shades are patents could properly be obtained exceedingly well done. There for the combination of the chemother features, which need not be icals, for their application to the discussed in detail, such as the paper or other surface, for all the motor cars waiting for the signal to machinery by which the light reproceed. The work, it seems to me, flected from the object was thrown comes well within what the authori- on the prepared plate, and for all ties have held to be the subject- the improvements in this machinery, matter of copyright." Pagano V. and in the materials, the remainder Chas. Beseler Co., 234 Fed. 963. 964. of the process is merely mechanical, 46. Graves' Case, L. R. 4 Q. B. with no place for novelty, invention, 715. But see Champney v. Haag, 121 or originality. It is simply the Fed. 944 (where the validity of the manual operation, by the use of copyright of a photograph of a copy- these instruments and preparations, righted painting was questioned, but of transferring to the plate the vis are [a] Artistic nature of photograph. -A photograph may be something more than a mere mechanical and chemical product, and may rise to the dignity of art through the blending of the mechanical parts of the [a] "This term covers all positive prints from photographic negatives, but not half tones or other photo-engravings." Rules and Regulations for Registration of Claims to Copyright (Copyright Office Bul. No. 15) rule 15. was assumed valid for the purpose of the decision). 45. Cleland v. Thayer, 121 Fed. 71, 58 CCA 272 [foll Bleistein v. Donaldson Lith. Co., 188 U. S. 239, 23 SCt 298, 47 L. ed. 460] (where from the report it is not clear whether the copyright was sustained as one for a photograph or for a print). [a] A photograph of a yacht under sail, which requires the photographer to select and utilize the best effects of light, clouds, water, and general surroundings, and to combine them under favorable conditions for depicting vividly the subject matter, is an original work of art which may be protected by copyright. Bolles v. Outing Co., 77 Fed. 966, 23 CCA 594, 46 LRA 712 [aff 175 U. S. 362, 20 SCt 94, 44 L. ed. 156]. before copyright is secured,18 the proprietor cannot obtain a valid copyright thereon by making slight and merely colorable changes therein, as by an alteration of the negative from which it is printed.49 A picture produced from a negative which has been altered by etching is not a photograph subject to copyright as such.50 A series of photographs on a film suitable for projecting moving pictures on a screen may be copyrighted as a photograph,51 although in taking the negatives the camera was placed in different localities.52 At least this was true as the law stood prior to its amendment in 1912. By the act of 1909, as amended by the act of 1912, motion picture photoplays and other motion pictures are made distinct subjects of copyright, and in view of this fact it is, perhaps, no longer proper to copyright them as photographs. The court will not inquire as to whether a photograph is good, bad, or indifferent, and artistic merit is immaterial.54 53 In England the copyright of photographs is conferred by the grant of copyright to "every artistic work, 55 it being expressly provided that the phrase "artistic work" shall include "photo 51. Harper v. Kalem Co., 169 Fed. 61, 94 CCA 429 [aff 222 U. S. 55, 32 SCt 20, 56 L. ed. 92, AnnCas1913 A 1285]; American Mutoscope, etc., Co. v. Edison Mfg. Co., 137 Fed. 262; Edison v. Lubin, 122 Fed. 240, 58 CCA 604 [rev 119 Fed. 993, and app dism 195 U. S. 625, 25 SCt 790, 49 L. ed. 349]; Barker Motion Photography, Ltd. v. Hutton & Co., Ltd., 28 L. T. R. 496. "The series of photographs taken by the defendant constitutes a single picture, capable of copyright as such." Harper v. Kalem Co., 169 Fed. 61, 63, 94 CCA 429 [aff 222 U. S. 55, 32 SCt 20, 56 L. ed. 92, Ann Cas1313A 1285]. 16. ible representation of some existing above." Rules and Regulations for 60. U. S. Rev. St. § 4952; Act 48. See supra § 50; and generally as to effect of publication supra §§ 40-45. 49. Snow v. Laird, 98 Fed. 813, 39 CCA 311. [a] Transitory character of pictures in a periodical affords no reason for denying them copyright protection. Mail, etc., Co. v. Life Pub. Co., 192 Fed. 899, 113 CCA 377. 61. See supra § 90. 50. Snow v. Laird, 98 Fed. 813, 39 CCA 311. [a] Picture reproduced from partly etched negativeA picture which was produced by the use of a negative which had been changed by etching so as to introduce into the picture an object which was not in the group of objects which were exposed to the camera could not be copyrighted as a photograph. Snow v. Laird, 98 Fed. 813, 39 CCA 311. [a] "Postal cards can not be copyrighted as such. The pictures thereon may be registered as 'prints or pictorial illustrations' or as 'photographs.' Text matter on a postal card may be of such a character that it may be registered as a 'book.'" Rules and Regulations for Registration of Claims to Copyright (Copyright Office Bul. No. 15), rule 18 (m). Artistic works see supra §§ 114 54. See supra § 98. graphs.'' 56 66 9966 61 [ 119] 11. Prints and Pictorial Illustrations; Engravings; Cuts.58 In the United States, the act of 1909 specifically authorizes copyright in "prints and pictorial illustrations.'' 59 The corresponding terms used in prior acts were "engraving," "cut, print," "painting,' "drawing," and "chromo."60 The subject matters formerly described by the terms engraving, cut, painting, drawing, and chromo are now copyrightable either as "prints and pictorial illustrations," or under other designations in the statute. The words "engraving, cut and print," as used in the prior statutes, were by the act of 1874 expressly limited so as to apply only "to pictorial illustrations or works connected with the fine arts.' This act of 1874 was not repealed by the general copyright act of 1909.63 It has been said that the word "print," as used in the statute in connection with "engraving," "cut," and "photograph," means apparently a picture, something complete in itself, similar in kind to an engraving, cut, or photograph. The term "print" may include a 55. Copyright Act, 1911 (1 & Geo. V c 46 § 1). 2 2 56. Copyright Act, 1911 (1 & Geo. V c 46 § 35). 57. St. 25 & 26 Vict. c 68 § 1; Graves' Case, L. R. 4 Q. B. 715 (photograph of a picture protected). 58. See also infra § 141. 59. Act March 4, 1909 (35 St. at L. 1075 c 320 § 5). [a] "This term comprises all printed pictures not included in the various other classes enumerated 11 62 64 116. 62. Act June 18, 1874 (18 U. S. [a] Construction of statute."The act however construed, does not mean that ordinary posters are not good enough to be considered within its scope. The antithesis to 'illustrations or works connected with the fine arts' is not works of little merit or of humble degree, or illustrations addressed to the less educated classes; it is 'prints or labels designed to be used for any other articles of manufacture.' Certainly works are not the less connected with the fine arts because their pictorial quality attracts the crowd and therefore gives them a real use-if use means to increase trade and to help to make money. A picture is none the less a picture and none the less a subject of copyright that it is used for an advertisement. And if pictures may be used to advertise soap, or the theatre, or monthly magazines, as they are, they may be used to advertise a circus. Of course, the ballet is as | legitimate a subject for illustration as any other. A rule cannot be laid down that would excommunicate the paintings of Degas." Bleistein V. Donaldson Lith. Co., 188 U. S. 239. 251, 23 SCt 298, 47 L. ed. 460 [rev 104 Fed. 993, 44 CCA 296]. [b] Illustrations not connected with fine arts.-"The protection of the law is not confined to pictorial illustrations known as works of fine arts. This was not so even under the preceding act. In the case of Bleistein v. Donaldson Lith. Co., 188 U. S. 239, 23 SCt 298, 47 L. ed. 460, Justice Holmes, delivering the opinion of the court, said: We see no reason for taking the words connected with "the fine arts" as qualifying anything except the word "works," but it would not change our decision if we should assume further that they also qualified "pictorial illustrations," as the defendant contends.' If there is any limitation whatever to this term, it must be found in the words of the Constitution confining pictorial illustration to the 'useful arts." National Cloak, etc., Co. v. Kaufman, 189 Fed. 215, 218. But see Royal Sales Co. v. Gaynor, 164 Fed. 207, 209 (where Ward, J., uses the phrase "connected with the fine arts" to qualify "pictorial illustrations" as subjects of copyright); J. L. Mott Iron Works v. Clow, 72 Fed. 168 [aff 82 Fed. 316, 27 CCA 250] (where Grosscup, J., held illustrations in an advertisement not copyrightable because not connected with the fine arts). [c] Chromolithographic advertisements of a circus, portraying a ballet, a number of persons performing on bicycles, and groups of men and women whitened to represent statues, are proper subjects of copyright as "pictorial illustrations." Bleistein v. Donaldson Lith. Co., 188 U. S. 239, 23 SCt 298, 47 L. ed. 460 [rev 104 Fed. 993, 44 CCA 296]. 63. Stecher Lith. Co. v. Dunston Lith. Co., 233 Fed. 601; 28 Op. Atty.Gen. 116; Copyright Office Bul. No. 14 p 40. See also infra § 141. 64. Rosenbach v. Dreyfuss, 2 Fed. 217. [a] Pattern prints of balloons with directions and cutting lines, designed to be cut up and made into the physical articles, are not copyrightable as prints. Rosenbach v. Dreyfuss, 2 Fed. 217. [b] Railroad ticket.-"The ticket is certainly not a map, chart or musical composition, nor is it a print or engraving, within the meaning of the section, although it may be printed or engraved." Griffin v. Kingston, etc., R. Co., 17 Ont. 660, 664. [c] Pictures printed in successive colors from metal plates, from which plates part of the metal has been cut out so as to leave portions thereof in relief, are within the copyright law. Hills v, Hoover, 136 Fed. chromolithograph,65 even though the pictures are drawn from life.66 The word "illustrations" does not mean that the pictures must illustrate the text of a book.67 A design for playing cards has been deemed a print.68 A mere pattern print is not a copyrightable "print" within the statute; neither is a photograph.70 An engraving reproducing an existing work of art is itself copyrightable." In England engravings, cuts, prints, and pictorial illustrations are and long have been copyrightable." The act of 1911 provides that "artistic work" shall include "engravings,' " and that the latter term shall include "etchings, lithographs, wood-cuts, prints, and other similar works, not being photographs." 73 [§ 120] 12. Motion Pictures74. In the United States, neither the act of 1909, nor -a. In General. any prior act, made any mention of motion pictures, although, as has been seen, motion picture films were copyrightable as photographs.76 75 In England, under the former law, cinematograph films were entitled to protection like any other 701; Hills v. Austrich, 120 Fed. 862. 65. Bleistein v. Donaldson Lith. Co., 188 U. S. 239, 23 SCt 298, 47 L. ed. 460 [rev 104 Fed. 993, 44 CCA 2961; De Jonge v. Breuker, etc., Co., 182 Fed. 150 [aff 191 Fed. 35, 111 CCA 567 (235 U. S. 33, 35 SCt 6, 59 L. ed. 113)] (reproduction of painting for use as cover for holiday goods may be either copyrighted or entered in patent office); Yuengling v. Schile, 12 Fed. 97, 20 Blatchf. 452. But see Hills v. Hoover, 136 Fed. 701 (where, following Hills v. Austrich, 120 Fed. 862, "prints" are guished from "chromos" in respect distinto the application of the domestic manufacturing clause). 66. Bleistein v. Donaldson Lith. Co., 188 U. S. 239, 23 SCt 298, 47 L. ed. 460 [rev 104 Fed. 993, 44 CCA 2961. 67. Bleistein v. Donaldson Lith. Co., 188 U. S. 239, 23 SCt 298, 47 L. ed. 460 [rev 104 Fed. 993, 44 CCA 2961. 72 "These chromolithographs are 'pictorial illustrations.' The word 'illustrations' does not mean must illustrate the text of a book, that they and that the etchings of Rembrandt or Steinla's engraving of the Madonna di San Sisto could not be protected to-day if any man were able to produce them." aldson Lith. Co., supra. Bleistein v. Don68. Richardson V. Miller, Cas. No. 11,791 (where it was held that a design for playing cards was copyrightable). 20 F. [a] The novelty of a design may consist in the form, outline, or grouping, or in the use, combination, arrangement, or harmony, of colors, or the combination of some these attributes. or all of Richardson v. Miller. 20 F. Cas. No. 11,791. 69. Rosenbach v. Dreyfuss, 2 Fed. 217. Compare Drury F. Cas. No. 4,095, 1 Bond 540 (where V. Ewing. 7 it was held that might be copyrighted as a print or dress pattern chart). a 70. Wood v. Abbott, 30 F. Cas. No. 17,938, 5 Blatchf. 325. supra § 118. See also 71. Lucas v. Cooke, 13 Ch. D. 872. 72. Newton v. Cowe, 4 Bing. 234, 13 ECL 482, 130 Reprint 759. Blackwell v. Harper, 2 Atk. 93, 26 See Reprint 458 (holding that the act is not confined to works of invention only, but means the designing or engraving of anything that is already in_nature). [§§ 119-122 photograph." By the Copyright Act of 1911 it is [121] b. Motion Picture Photoplays. By the [122] c. Motion Pictures Other Than Photoplays. "Motion pictures other than photoplays" were specifically authorized to be copyrighted as such by the amendment of 1912,85 even when un notes 51, 52. Infringement of photographic copy- 78. St. 1 & 2 Geo. V c 46 § 1 (2). 81. Klein v. Beach, 232 Fed. 240 [aff 239 Fed. 108, 151 CCA 282]; Photo-Drama Motion Picture Co. v. 448, 137 CCA 42; Universal Film Mfg. Social Uplift Film Corp., 220 Fed. Co. v. Copperman, 218 Fed. 577, 134 CCA 305 [aff 212 Fed. 301]; Universal Film Mfg. Co. v. Copperman, 212 Fed. 301 [aff 218 Fed. 577, 134 CCA 305]. 82. Act March 4, 1909 (35 U. S. St. at L. 1075 c 320 § 11), as amended by Act Aug. 24, 1912 (37 U. S. St. at L. 488). versal Film Mfg. Co. v. Copperman, 218 Fed. 577, 134 CCA 305 [aff 212 Fed. 3011; Photo-Drama Motion Picture Co. v. Social Uplift Film Corp., 213 Fed. 374 [aff 220 Fed. 448, 137 CCA 421. as now amendment is to add to the list of 73. St. 1 & 2 Geo. V c 46 §§ 1, 35. 75. But see infra §§ 121, 122. 85. Act March 4, 1909 (35 U. S. St. at L. 1075 c 320 § 5), as amended 76. See supra § 118 For later cases, developments and changes in the law see cumulative Annotations, same title, page and note number. from drama.-The copyright of a [a] Motion picture photoplay motion picture photoplay made from an unpublished drama does not constitute a copyright of the original drama. O'Neill v. General Film Co., 171 App. Div. 854, 157 NYS 1028. [b] Separation of various rights. -"It was undoubtedly held in Kalem Co. v. Harper, 222 U. S. 55, 32 SCt 20, 56 L. ed. 92. AnnCas1913A 1285, that forbid their dramatic representation the owner of dramatic rights might by moving pictures, and present time the only right to proto the tect moving pictures arises from the words 'dramatic' or 'drama.' Thus, the statutory right to protect against right to protect against infringement scenario from a book still arises from the making of a moving picture section 1, subd.. 'b,' and the statutory of the scenario arises from section 1, by sections 5 and 11 of the amendsubd. 'd.' play are now specifically controlled Yet the proceedings for registration of the moving picture ment of 1912, and it appears that it is one thing to secure the copyright upon a drama proper and another to secure it on a moving picture play. dramatic rights like Kauffman might A man having general statutory make a play and perform it under his common-law rights without publication, or he might copyright the play, righted or published his moving picand he would still not have copyture rights. If he wrote such a scenario and made his film, he could get a separate copyright upon that. Of course, he could sell his statutory right, or common-law copyright of the play and keep the moving picture copyor he could sell each. seems to me clear that, if he could It do this, he could sell separately the right to dramatize and the right to make a moving picture play, dividing his statutory dramatizing rights, and thus giving each assignee the right when he had exercised those rights to get his own copyright for a drama, or for a moving picture Photo-Drama Motion Picture Co. v. show.' Social Uplift Film Corp., 213 Fed. 374, 377 [aff 220 Fed. 448, 137 CCA 42]. 84. O'Neill v. General Film Co.. 171 App. Div. 854, 157 NYS 1028 [aff 152 NYS 599]. 86 published. This provision seems broad enough to include motion pictures not produced by a photographic process, although perhaps it was only intended to draw a distinction between dramatic and nondramatic films, such as exists under the English statute.s 87 [§ 123] 13. Mechanical Devices; Music Rolls, Records, Etc. In the United States, prior to the act of 1909, perforated music rolls, phonograph discs or cylinders, or other like devices for the mechanical reproduction of sound were not within the protection of the copyright laws,8 88 and did not even infringe protected works which they were the means of audibly reproducing. The act of 1909 plainly makes such mechanical devices, if unauthorized, infringements of copyrighted dramatic and musical works which they serve to reproduce.90 But it is not so clear whether or not this act has made such devices themselves capable of copyright, and they do not fall within any of the specified thirteen classes of copyrightable subject matter unless they may be termed dramatic or musical compositions.91 Of course, they are now indirectly protected through the copyright on the composition reproduced by them. It is possible, however, that such devices. 92 by Act Aug. 24, 1912 (37 U. S. St. at L. 488). 86. Act March 4, St. at L. 1075 c 320 by Act Aug. 24, 1912 L. 488). 1909 (35 U. S. 87. St. 1 & 2 Geo. V c 46 § 35 (1) (where it is provided that the phrase "dramatic work" shall include "any cinematograph production where the arrangement or acting form or the combination of incidents represented give the work an original character"). [a] Reasons for distinction.-"No doubt there is a logical principle underlying the distinction between a dramatic and a non-dramatic filmthe former is the result of an intellectual effort combined with technical skill; to produce the latter only the technical skill is needed. The former is therefore given by the Act a higher degree of protection as a dramatic work, the latter a lower degree of protection as a photographic work. At the same time it is thought that logic might in this case have been sacrificed to convenience, and the distinction certainly seems likely to give rise to difficulties in some cases, particularly as the dividing line between a dramatic and nondramatic film may not always be easy to draw." Copinger Copyright (5th ed) p 251. 88. White-Smith Music Pub. Co. v. Apollo Co., 209 U. S. 1, 28 SCt 319, 52 L. ed. 655, 14 AnnCas 628; Kennedy v. McTammany, 33 Fed. 584 [app dism 145 U. S. 643 mem, 12 SCt 983 mem, 36 L. ed. 853 mem]. See infra §§ 322, 323. See infra § 322. 94 95 96 9997 are themselves now copyrightable as dramatic,93 or musical, compositions, as the case may be, provided they are not themselves piracies. There is no requirement in the statute that such compositions shall be first copyrighted in ordinary printed or manuscript form, unless such requirement is implied in the constitutional word "writings, construed as meaning a visible expression of an author's concept.98 Copyright in such a record is analogous to copyright in an adaptation or other version of an existing work which the statute expressly declares may be copyrighted as a new work.1 Intellectual labor, skill, and individuality enter into the preparation of such records, and they would seem to be within the description of "the writings of an author;" if so, they are copyrightable.2 99 In England it is specifically provided that copyright shall subsist in records, perforated rolls, and other contrivances by means of which sounds may be mechanically reproduced, in like manner as if such contrivances were musical works.3 Under prior statutes such devices were not copyrightable as "books" which by statutory definition included a "sheet of music."4 [§ 1241 14. Articles Designed for Physical Use. 93. Act March 4, 1909 (35 U. S. St. at L. 1075 c 320 § 1(d)). [a] The statute provides that the owner of a dramatic copyright shall have the exclusive right: "To perform or represent the copyrighted work publicly if it be a drama or, if it be a dramatic work and not reproduced in copies for sale, to vend any manuscript or any record whatsoever thereof; to make or to procure the making of any transcription or record thereof by or from which, in whole or in part, it may in any manner or by any method be exhibited, performed, represented, produced, or reproduced; and to exhibit, perform, represent, produce, or reproduce it in any manner or by any method whatsoever.' Act March 4. 1909 (35 U. S. St. at L. 1075 c 320 § 1(d)). [a] Phonographic record of song as "sheet of music."-A phonograph record of a song reproducing both words and music is not a "sheet of music," and therefore not "a book" within § 2 of the Copyright Act of 1842. Newmark v. National Phonograph Co., Ltd., 51 Sol. J. 412. 99. Copinger Copyright (5th ed) p 278. 1. (e) To perform the copyrighted work publicly for profit if it be a musical composition and for the purpose of public performance for profit; and for the purposes set forth in subsection (a) hereof, to make any arrangement or setting of it or of the melody of it in any system of notation or any form of record in which the thought of an author may be recorded and from which it may be read or reproduced." Act March 4, 1909 (35 U. S. St. at L. 1075 c 320 1(a), (e)). 95. See supra § 91. 94. Act March 4, 1909 (35 U. S. St. at L. 1075 c 320 § 1(e)). [a] The statute provides that the owner of the copyright in a musical composition shall have the exclusive right: "(a) To print, reprint, publish, copy, and vend the copyrighted work 89. See infra § 322. 90. 91. 92. 96. Congress was not concerned copy [a] Indirect protection.-"While, under the provisions of the copyright law, such music rolls or records are not strictly matters of copyright, Congress in passing the enactment evidently intended to protect copyright proprietors in their right to their productions, and to give them an exclusive right to print, publish, and vend the same. If the copyrighted work be a musical composition, the owner, under the provisions [a] Printing not necessary.-8 of the statute, after complying there- Anne e 19 did not impose on authors, with, has the exclusive right to per- as a condition precedent to their deform it publicly for profit, and may, riving any benefit under it that the if he chooses so to do, make 'an composition should be first printed. arrangement or setting' of the White v. Geroch, 2 B. & Ald. 298, 106 musical composition, published or Reprint 376, 1 Chit. 24, 18 ECL 28. copyrighted after the passage of the 97. See supra § 85. act, for mechanical reproduction. In 98. White-Smith Music Pub. Co. this manner the copyright owner re- v. Apollo Co., 139 Fed. 427, 430 [aff 147 Fed. 226, 77 CCA 368 (aff 209 U. S. 1, 28 SCt 319, 52 L. ed. 655. 14 AnnCas 628)] (where it is said: "The meaning of the word 'writings,' as employed in the Constitution, has been expressly defined in BurrowsGiles Lith. Co. v. Sarony, 111 U. S. 53, 4 SCt 279, 28 L. ed. 349, to include 'all forms of writing, printing, engraving, etching, etc., by which the ideas in the mind of the author are given visible expression.' The restricted definition of the word 'writings' does not, it is thought, permit the inclusion in section 4952 of the Revised Statutes [U. S. Comp. St. 1901, p. 3406] of a musical conception, or the inclusion of collated musical sounds or expressions of a musical composition. The words of the statute have reference to the tangible object that appeals to the sense of sight, and that which is susceptible of being reproduced by printing, copying, publishing, etc."). Act March 4, 1909 (35 U. S. St. at L. 1075 c 320 § 6). See supra § 95. 2. See supra §§ 85, 90. See also Aeolian Co. v. Royal Music Roll Co., 196 Fed. 926 (where, although it is said that music rolls or records are not directly copyrightable, licensed rolls were protected against copying by others under the statutory compulsory license, on the ground that others had no right to appropriate the skill and labor of the original maker of the roll or record. The equity of this is manifest, but it is a little difficult to see how defendant infringed the musical copyright, which was the ground of the decision, as defendant had a statutory right to make records to mechanically reproduce such music, and it is also difficult to see how the musical copyright protected the skill of the licensee). 3. Copyright Act, 1911 (1 & 2 Geo. Vc 46 19(1)); Monckton v. Pathé Fréres Pathephone, Ltd. [1914] 1 K. B. 395; Chappell & Co., Ltd. V. Columbia Graphophone Co., [1914] 2 Ch. 745. 4. Boosey v. Whight, [1900] 1 Ch. 122. 2 BRC 85; Newmark v. National Phonograph Co., Ltd., 51 Sol. J. 412. 5. See supra § 123. 6. Amberg File, etc., Co. v. Smith, 82 Fed. 314, 315, 27 CCA 246 [aff 78 Fed. 4791; Libraco, Ltd. V. Shaw Walker, Ltd., 58 Sol. J. 48. "The copyright law embraces those things that are printed and published for information, and not for use in themselves." Amberg File, etc., Co. v. Smith, supra. [a] The test.-"The character of what is published is the test of copyright. If what is published is not separately published, is not a publication complete in itself, but is only a direction on a tool or machine, to be understood and used with it, such direction cannot, in my opinion, be severed from the tool or machine of which it is really part, and cannot be monopolized by its inventor under the copyright act.' Hollinrake v. Truswell, [1894] 3 Ch. 420, 426 (per Lindley, J.). 7. Amberg File, etc., Co. v. Smith, 82 Fed. 314, 27 CCA 246 [aff 78 Fed. 4791; Hollinrake v. Truswell, [1894] 3 Ch. 420. See Patents [30 Cyc 803]. 8. Amberg File, etc., Co. v. Smith, 82 Fed. 314, 27 CCA 246 [aff 78 Fed. 479]. 9. Hollinrake v. Truswell, [1894] 3 Ch. 420; Libraco, Ltd. v. Shaw Walker, Ltd., 58 Sol. J. 48 (holding that cards adapted for use in a card index system, which of themselves convey no meaning or information, are not copyrightable). 10. Page v. Wisden, 20 L. T. Rep. N. S. 435, 436 (where a line in a scoring sheet with the words "runs at the fall of each wicket" was held not capable of copyright, a particular mode of ruling a book not constituting an object of copyright). 11. Griffin v. Kingston, etc., R. Co., 17 Ont. 660 (applying rule as to score cards to railway tickets). 12. Rosenbach v. Dreyfuss, 2 Fed. 217 (where it was held that prints of balloons and hanging baskets, with printing on them for embroidery and cutting lines, showing how the paper may be cut and joined to make the different parts fit together, and not intended as a mere pictorial representation of something, are not copyrightable); Hollinrake v. Truswell, [1894] 3 Ch. 420 (cardboard pattern sleeve). 13. Royal Sales Co. v. Gaynor, 164 Fed. 207. See also supra § 101. "No copyright exists in toys, games, dolls, advertising novelties, instruments or tools of any kind, glassware, embroideries, garments, laces, woven fabrics, or any similar articles." Rules and Regulations for Registration of Claims to Copyright (Copyright Office Bul. No. 15) rule 12. [a] Blank account books are not | Representatives, Jan. 30, 1907, No. the subject of a copyright. Baker v. 7083 p 10. Selden, 101 U. S. 99, 25 L. ed. 841; Griffin v. Kingston, etc., R. Co., 17 Ont. 660, 665. 20. Stevenson V. Fox, 226 Fed. 990; Emerson v. Davies, 8 F. Cas. No. 4,436, 3 Story 768: Lesser v. Sklarz. 15 F. Cas. No. 8.276a; Shook v. Rankin, 21 F. Cas. No. 12.804. 6 Biss. 477; Fleron v. Lackaye. 14 NYS 292; Byrne v. Statist Co., [1914] 1 K. B. 622; Lauri v. Renad, [1892] 3 Ch. 402; Wood v. Chart, L. R. 10 Eq. 193; Burnett v. Chetwood [cit Southey v. Sherwood, 2 Meriv. 435, 441. 35 Reprint 1006]; Wyatt v. Barnard. 3 Ves. & B. 77, 35 Reprint 408; Rooney v. Kelley, 14 Ir. C. L. 158. 21. Act March 4, 1909 (35 U. S. St. at L. 1075 c 320 § 6). 22. National Tel. News Co. V. Western Union Tel. Co., 119 Fed. 294, 298, 60 LRA 805 (where the court said that printed tape "has no value at all as a book or article. It lasts literally for an hour, and is in the waste basket when the hour has passed. It is not desired by the patron for the intrinsic value of the happening recorded-the happening, as an happening, may have no value. The value of the tape to the patron is almost wholly in the fact that the knowledge thus communicated is earlier, in point of time, than knowledge communicated through other means, or to persons other than those having a like service. In just this quality to coin a word, the precommunicatedness of the information -is the essence of appellee's service; the quality that wins from the patron his patronage"). 15. Act March 4, 1909 (35 U. S. St. at L. 1075 c 320 § 7). [a] Purpose of statute. "Section 7 was inserted for the reason that the Government often desires to make use in its publications of copyrighted material, with the consent of the owner of the copyright, and it has been regarded heretofore as necessary to pass a special act every time this was done, providing that such use by the Government should not be taken to give to anyone the right to use the copyrighted material found in the Government publication. It was thought best, instead of being obliged to resort every little while to a special act, to have some general legislation on this subject." Report of Committee on Patents to House of [a] Reason for rule.-"Judged by a test like this, the printed matter on the tape in question is in no sense copyrightable. It is, at most, the mere annal of events transpiring. True, the happenings of a race track, or the incidents of a college boat race, may be put in narrative, involving creative imagination; or the doings of a board of trade become the basis of a useful book or article evincing originality. But the printed tape under consideration is no such book or article, and affects no such dignity. It is, in its totality, nothing more or less than the transmission by electricity, over long distances, of what a spectator of the event, occupying a fortunate position to see or hear, would have communicated, by word of mouth, to his less fortunate neighbor. It is an ex [b] A campaign badge in the form of a monogram is not copyrightable. and must be protected, if at all, by a design patent. Royal Sales Co. v. Gaynor, 164 Fed. 207. [c] An album for holding photo- [d] Directions on a device or | 14. Act March 4, 1909 (35 St. at L. 1075 c 320 § 7); Du Puy v. Post Telegram Co., 210 Fed. 883, 127 CCA 493; Woodman V. Lydiard-Peterson Co., 192 Fed. 67 [aff 204 Fed. 921, 123 CCA 243, and reh den 205 Fed. 900, 126 CCA 434] (government map). 16. St. 1 & 2 Geo. V c 46 § 18. Crown copyright see infra § 164. 17. Folsom v. Marsh, 9 F. Cas. No. 4,901, 2 Story 100. 18. Folsom v. Marsh, 9 F. Cas. No. 4,901, 2 Story 100. 19. Translations as infringements see infra § 301. |
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