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compositions have been, and now are, copyrightable as such.82 Even independently of express statutory authority to copyright musical compositions as such, they may be copyrighted as “books,

" that term being held to include sheet music,83 although for some purposes, and in some connections, such as the domestic manufacturing requirements, and the penalties for infringement,85 musical compositions are not "books” within the meaning of the statute. 86 The term “musical composition' as used in the statute includes both words and music.86%

In England musical compositions were copyrightable as "books' under the statute of Anne. Under subsequent statutes musical compositions have been long copyrightable as such.88 When copyright in "dramatic” and “musical” compositions, respectively, was provided for by different statutes, it was held that a song which is a dramatic piece may also be a musical composition.88-90

[0 111] b. Musical Originality. In order to be

copyrightable, musical compositions must be original,01 within the meaning of originality as elsewhere explained. But copyright protection is not confined to absolutely new productions; any substantially new arrangement or adaptation of an old piece may be copyrighted. An arrangement for the pianoforte of the orchestral score of an opera is an original musical composition within the meaning of the copyright law.94 But in order to be copyrightable the new arrangement must be something more than a mere copy of the older piece, with additions and variations such as any writer of music with skill and experience might readily make.95 The distinction is substantially that made in the law of patents between the exercise of inventive genius and the exercise of mere mechanical skill; the former is protected by the statute, but the latter is not. 96

[0 112] 6. Maps. In the United States, from the very beginning of copyright legislation, maps have been specifically enumerated in the statute," and the

87

cases

c 565 $ 1); Act Jan. 7, 1904 (33 St. livered by Kay, L. J., in the case of works' under the provisions of secat L. 4 c 2 § 1 (interim copyright); Fuller v. Blackpool Winter Gardens, tion 6. Mere transpositions into difAct March 3, 1905 (33 St. at L. 1000 etc., Co., Ltd., [1895) 2 Q. B. 429, this ferent keys are not expressly proc 1432).

case was commented on as follows: vided for in the copyright act; but if 82. Henderson v. Tompkins, 60

“I have not found any other report of published with copyright notice and Fed. 758; Atwill v. Ferrett, F. this case. I can scarcely believe copies are deposited with application, Cas. No. 640, 2 Blatchf. 39; Reed v. that this report is accurate. If it registration will be made." Rules Carusi, 20 F. Cas. No. 11,642, Taney was decided that because the words and Regulations for Registration of 72.

of the song were dramatic the music Claims to Copyright (Copyright Of(a) Musical composition defined.

was not a musical composition, I re- fice Bul. No. 15) rule 10. "A musical composition is a ra

spectfully differ from that decision." [c] One who adapts words of his tional collocation of sounds apart 91. Cooper v. James, 213 Fed. 871. own to an old air, adding thereto a from concepts, reduced to a tangible

92. expression from which the colloca

See supra 88 91-97. See also prelude and accompaniment also his

supra $ 109 (dramatic originality). own, acquires a tion can be reproduced either with

copyright in the 93. or without continuous human inter

Hein v. Harris, 175 Fed. 875 combination, and may, in declaring vention." White-Smith Music Pub.

(aff 183 Fed. 107, 105 CCA 399); At- for an infringement against one who Co. v. Apollo Co., 209 U. S. 1, 19, 20,

will v. Ferrett, 2 F. Cas. No. 640, 2 has pirated the whole, properly des 28 SCt 319, 52 L. ed. 655, 14 AnnCas Blatchf. 39; Jollie v. Jacques, 13 F.

scribed himself as the proprietor of

the Cas. No. 7,437, 1 Blatchf. 618; Reed entire composition. Lover 628 (per Holmes, J.).

V. (b) Musical compositions, include v. Carusi, 20 F. Cas. No. 11,642, Davidson, 1 C. B. N. S. 182, 87 ECL (exclusive of dramatico-musical Taney 72; Leader_v. Purday, 7 C. B. 182, 140 Reprint 77; Leader v. Purworks) other vocal and all instru- 4, 62 ECL 4, 137 Reprint 2; Lover y. day, 7 C. B. 4, 62 ECL 4, 137 Remental compositions, with or with- Davidson, 1'c. B. N. S. 182, 87 ECL | print 2. out words. But when the text is 182, 140 Reprint 77.

94. Carte v. Evans, 27 Fed. 861; printed alone, it should be registered “The right of the author of a Wood v. Boosey, L. R. 3 Q. B. 223, 18 as a "book," not as a "musical com- musical composition is not affected | ERC 578. position." Rules and Regulations by the fact that he has borrowed in 95. Cooper V. James,

213

Fed. for Registration of Claims to Copy- general from the style of his prede- 871; The Mikado, etc., Case, 25 Fed. right (Copyright Office Bul. No. 15) cessors. The collocation of notes, 183, 23 Blatchf. 347; Jollie v. Jaques, rule 10.

which constitutes the composition, 13 F. Cas. No. 7.437, 1 Blatchf. 618; 83. See supra $

101. See also becomes his own, even though Reed v. Carusi, 20 F. Cas. No. 11,642, under the statute of Anne strongly suggestive of what has pre- Taney 72. infra note 87.

ceded, and it ceases to be an inven- [a] “The rule laid down by Mr. 84. See supra $ 100.

tion, and becomes an infringement, Justice Nelson in Jollie v. Jaques, 85. See infra § 371.

only when the similarity is substan- 13 F. Cas. No. 7,437, 1 Blatchf. 618, 86. See supra $ 101.

tially a copy, so that to the ear of is this: "The musical composition 8612. Mills Inc. v. Standard Music the average person the two melodies contemplated by the statute must, Roll Co., 223 Fed. 849; Whitmark v. sound to be the same. Therefore the doubtless, be substantially new Standard Music Roll 'Co., 221 Fed. lack of originality and musical merit and original work, and not a copy of 376, 137 CCA 184.

in both songs, upon which the de- a piece already produced, with addi87. White y. Geroch, 2 B. & Ald. fendant insists, is of no consequence tions and variations, which a writer 298, 106 Reprint 376, 1 Chit. 24, 18 in law." Hein v. Harris, 175 Fed. of music with experience and skill ECL 28; Platts v. Button, Coop. 303, 875, 877 [aff 183 Fed. 107, 105 CCA | might readily make.'” Cooper V. 10 EngCh 303, 35 Reprint 566, 19 399).

James, 213 Fed. 871, 872. Ves. Jr. 447, 34 Reprint 583; Bach v. (a) Illustration.-In a suit for (b) The addition of alto parts to Longman, Cowp.623, 98 Reprint infringement of an arrangement of well known hymns sung for years 1274; Storace v. Longman [cit Cle- the "Manola Waltzes" the court after with only the three parts of soprano, menti v. Goulding, 11 East 244, 103 taking testimony, made a preliminary tenor, and bass, is not such a new Reprint 998); Hime v. Dale [cit Cle- order appointing two musicians as and original work as entitles the commenti v. Goulding, supra); Clementi experts

to

report "whether the poser to copyright. Cooper v. Goulding, supra; Jefferys V. Manola Waltz, published by com- James, 213 Fed. 871, 872 (where the Boosey, 4 H. L. Cas. 815, 10 Reprint | plainants, was musically different court said: "An alto may be an im681; D'Almaine v. Boosey, 4 L. J. from the Waldteufel composition, in provement to a song to some extent, Exch. 21; Chappell v. Parday, 14 M. what the difference consisted, and and probably is; but it can hardly be & W. 303, 153 Reprint 491.

whether complainants publication is said to be an original composition, [a] A musical composition was a an original musical composition at least in the sense of the copyright writing within the statute of Anne representing any musical author- law. In patents we say that any im(8 Anne c 19). Bach v. Longman, ship." These experts reported as provement which a good mechanic Cowp. 623, 98 Reprint 1274.

follows: "While we do not consider could make is not the subject of a 88. See supra g 69 (where statutes the publication an original composi- | patent, so in music it may be said are enumerated).

tion, with the exception of the har- that anything which a fairly good 89-90. Fuller v. Blackpool Winter | mony, in the last three bars of the musician can make, the same old Gardens, etc., Co., Ltd., [1895) 2 Q. B.

introduction, we regard it as an tune being preserved, could not be 429. Contra Roberts v. Bignell, 3 T. original arrangement, and the work the subject of a copyright"). L. R. 552, decided in 1887 (holding that of a practical harmonist and musi

96.

Cooper v. James, 213 Fed. 871. & song, called "Oh Jenny dear," set cian." The court held that the com- See Patents [30 Cyc 847, 849). to music not of the proprietor's own plainants' publication was a sub- 97. Act May 31, 1790 (1 St. at L. authorship. was not a musical como stantially new adaptation of an old 124 c 15 & 1); Act Febr. 3, 1831 (4 position but a dramatic piece, and piece, which might be copyrighted, St, at L. 436 c 16 § 1); Act July 8,

mere verbal permission to and the injunction was granted. 1870 (16 St. at L. 198 c 230 86); sing it wa's an ineffectual gift, so Schuberth v. Shaw, 21 F. Cas. No. Rev. St. & 4952; Act March 3, 1891 that the proprietor notwithstanding 12.482, 19 AMLReg NS 248.

(26 St. at L, 1106 c 565 $ 1); Act Jan. such permission could recover

the

[b] "'Adaptions' and 'arrange-7. 1904 (33 St, at L. 4); Act March 3, 40s. penalty). But in the opinion de- ments may be registered as 'new 1905 (33 St, at L. 1000).

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copyrighting thereof, as such, has been authorized.98 in the other more comprehensive terms which are

In England the act of 1911 provides that "liter- employed. As used in the copyright statutes, the ary work” shall include maps, and accordingly maps word “chart” refers to a form of map, particumay be copyrighted as literary works,99 and ap- larly a marine map;' and as this was the only meanparently protection for maps cannot be claimed as

ing of the term in 1790, when it first came into the for “engravings.''! In the Copyright Act of 1842

copyright law, and no intention to give it a more the term "book” is expressly defined to include a

extended meaning is evinced by any subsequent "map” which could therefore be copyrighted under this act as a book, or it could be copyrighted as an

statute, but rather the contrary, it retains that engraving under the engravings copyright acts, ac

meaning in spite of the fact that in common parcording as the proprietor chose to call his work a

lance the term has come to include sheets of paper map or an engraving 3

exhibiting tabulated or methodically arranged in[ở 113] 7. Charts. In the United States

formation; "charts” in this latter sense are not charts'' have been specifically named as a subject

"charts" within the meaning of the copyright law." of copyright in every copyright law except the act In England the statute provides that “literary of 1909.4 In the latter act the term "chart” is not work” shall include “charts, plans, tables and comused, although the same subject matter is included

In the act of 1842 "book'' was de98. Stevens v. Gladding, 17 How. | 23 Blatchf. 325.

an advertisement of the Great (U. S.) 447, 15 L. ed. 155; Stevens v. (a) History of term "chart" in American Tea Company. The second, Cady, 14 How. (U. S.) 528, 14 L. ed. copyright legislation.—"The original | third, and fourth are identical in 528; Woodman v. Lydiard-Peterson copyright act of 1790 provided for matter with the plaintiff's; and in Co., 192 Fed. 67 (aff 204 Fed. 921, 123 maps, charts, and books. 1 St. at arrangement, except

that

on the CCA 243 (reh den 205 Fed. 900, 126 Large, 124. A chart then was second page of the plaintiff's the CCA 434)); Blunt v. Patten, 3 F. Cas. marine map, as is shown by all the columns divided and printed No. 1,579, 2 Paine 393; 3 F. Cas. dictionaries of the time, both English across the page, and on that page No. 1,580, 2 Paine 397; Drury V. and American. Historical or other cf the infringement they are printed Ewing, 7 F. Cas. No. 4,095, 1 Bond prints were added by the act of 1802, entire up and down the page. These 540; Farmer v. Calvert Lithograph: 1 (2 st. at Large, 171;) musical com- publications would, perhaps, come ing, etc., Co., 8 F. Cas. No. 4,651, 1 positions, cuts, and engravings, by within this new definition of chart. Flipp. 228; Rees v. Peltzer, 75 Ill. 475. the act of 1831, (4 St. at Large, 436;) They are tabular views of these

[a] "This term includes all carto- photographs, by the act of 1865, (13 votes methodically arranged, the graphical works, such as terrestrial St. at Large, 540;) and paintings, notes being explanatory of the tables. maps, plats, marine charts, star drawings, chromos, statues, stat. Still, the compilation of these tables maps, but not diagrams, astrological uary, and models or designs intended was a literary rather than an artistic charts, landscapes, or drawings of to be perfected as works of the fine performance. The printed work has imaginary regions which do not have arts, by the act of 1870, (16 St. at leaves and

pages, although these a real existence." Rules and Regula- Large, 198.) A distinction was made may not be necessary to constitute tions for Registration of Claims to between recoveries for the infringe- a book within the meaning of the Copyright (Copyright Office Bul. No. ment of the copyright of a book, and copyright laws. Clayton v. Stone, 5 15), rule 11.

those for that of the other works, by F. Cas. No. 2,872, 2 Paine 382. When [b] Map derived from prior publl- the act of 1831; the former being books and charts were first protected cations.-A map is subject to copy- fixed at fifty cents and the latter at by the copyright laws this work right, although the material was ob- one dollar for each sheet. This dis- would not have been protected as a tained from prior publications not tinction was preserved in the act of chart; nor

for

many years aftercopyrighted, if it constitutes a new 1870, by giving such damages as wards. No change has been made in arrangement of such old material might be recovered in a civil action the use of that term in the statute and also contains new and original in any court of competent juris

to indicate that congress intended features. Woodman V. Lydiard- diction for the infringement of the that it should take to itself there any Peterson Co., 192 Fed. 67 (aff 204 copyright of a book, and one dollar new definition. On the contrary, it Fed. 921, 123 CCA 243 (reh den 205 for each sheet of all but paintings, has been separated from the word Fed. 900, 126 CCA 434)].

statues, or statuary, and $10 for 'book,' and kept with the word 'map,' 99. St. 1 & 2 Geo. V c 46 $ 35. each copy of those found in the and other words of artistic import,

1. Copinger Copyright (5th ed) p possession of the infringer, and is thus showing an intention to con94 (where it is said: "The only im- continued to the present time. Rev. tinue its use in the same sense of a portance of this seems to lie in the St. $$ 4964, 4965. Thus the literary chart of the class with maps, and fact that the copyright in an engray- composition of books to be read other works of art." Taylor v. Giling made to order vests in the person has for long time been pro

man, 24 Fed. 632, 633, 23 Blatchf. 325. by whom

the plate was ordered, tected in one mode, and the produc- 8. Taylor V. Gilman, 24 Fed. 632, whereas in the case of a literary tion of works of art to be viewed in 23 Blatchf. 325. work the copyright would only so another mode, and charts have al- 9. Taylor v. Gilman, 24 Fed. 632, vest if the person making the plate ways been placed among the works 23 Blatchf. 325. were in the employment of the per

of art. Sheets of paper exhibiting [a] Dressmaker's pattern chart.son who ordered the same 'under a tabulated or methodically, arranged In Drury V. Ewing, 7 F. Cas. No. contract of service or apprentice- | information came to be called charts, 4,095, 1 Bond 540, the court inclined ship.' Sec. 5 (1)").

so that a definition of chart covering to the view that a chart represent. 2. St. 5 & 6 Vict. c 45 8 2; Stan

them was put into the edition of ing a series of diagrams, interspersed nard v. Lee, L. R. 6 Ch. 346.

Worcester's Dictionary published in with printed instructions as to the 3. Stannard V. Lee, L. R. 6 Ch. 1864, and into that of Webster's Dic- mode of using them in taking meas346; Copinger Copyright (5th ed) p 94 tionary published in 1865. The plain- urements for and cutting certain (where the author says: “This seems tiff's work was printed upon a single parts of women's dresses, which was to be the effect of the two somewhat

sheet doubled so as

to make two | printed on one large sheet of paper, puzzling decisions of Stannard

leaves with four pages. On the first from which the diagrems were to be Lee, L. R. 6 Ch. 346, and Stannard v. page was the title and contents, the cut out and pasted on thick paper Harrison, 19 Wkly. Rep. 811, both re- name of the author, and notice of the or pasteboard corresponding with and lating to maps of the scene of war in copyright. On the second, was the showing precisely the forms of the 1870"); MacGillivray Copyright pp popular and electoral votes for presi- diagrams, was copyrightable either 148, 149 (where, after commenting on dent from 1789 to 1880, inclusive, by as a chart or print. See comments Stannard v. Lee, supra, and Stannard political parties, with the names of on this case in Baker v. Selden, 101 v. Harrison, supra, the author says: candidates and explanatory notes. U. S. 99. 25 L. ed. 841. "It is submitted that the true view On the third, was the popular vote [b] Advertising card showing probably is that map

may be for the leading candidates for presi- various colors of paint.-An adverprotected either actif the dent in 1880 by states, with a note tising card devised for the

purrequisite formalities are observed"). giving the scattering vote and the pose of showing paints of various

4. Act May 31, 1790 (1 St. at L. electoral vote for president and vice- colors, consisting of a sheet of paper 124 c 15 $ 1); Act Febr. 3, 1831 (4 president by states. On the fourth, to which were attached square pieces St. at L. 436 ( 16 $ 1); Act July 8, was the electoral college for 1884 by of paper of the various colors, and 1870 (16 St. at L. 198 C 230 $ 86); states, with blanks for the number some lithographic work advertising Rev. St. $ 4952; Act Jan. 7, 1904 (33 of each for each leading political the sale of the paint, surrounding St. at L. 4 c 2$ 1); Act March 3, party, the total electoral vote, the the squares, was held to be neither a 1905 (33 St. at L. 1000).

number necessary for a choice. the chart, an engraving, nor a book, and 5. See supra $ 90.

day of election, and the day of the not to be the subject of a copyright. 6. Taylor v. Gilman, 24 Fed. 632. meeting, of electoral colleges. The Ehret Pierce, 10 Fed. 553, 18 23 Blatchf. 325; Ehret v. Pierce, 10 alleged infringing copies are printed Blatchf. 302. Fed. 553, 18 Blatchf. 302.

upon a single sheet folded in the 10. Copyright Act, 1911 (1 & 2 7. Taylor v. Gilman, 24 Fed. 632, same manner. On the first page is Geo. V c 46 § 35).

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fined to include "chart.") 11

rights. [114] 8. Artistic Works12-a. Works of Art. In England, subject to the provisions of the statIn the United States the term "works of art,” as ute, copyright is given in “every original descriptive of an authorized subject of copyright, is artistic work,”: 25 and it is provided that "artistic new in the act of 1909.13 This precise term was not work" includes works of painting, drawing, sculpused in any prior copyright statute, and the right ture, and artistic craftsmanship, and architectural to copyright works of this character prior to the works of art, and engravings and photographs.26 act of 1909 was found in the statutory words “en- [Q 115] b. Models or Designs for. Models or graving," "cut,”

'cut," "print," "photograph," "paint- designs for works of art,27 or, in the phrase of the ing, drawing, " "chromo, “statues,

former statute, models or designs intended to be ary,” and “models or designs intended to be per- perfected as works of the fine arts,28 are themselves fected as works of the fine arts,” to all of which copyrightable as independent works. subjects the right of copyright was ultimately ex- 10 116] C. Reproductions of. Reproductions of tended.15

Some of these terms have been preserved a work of art are copyrightable as independent in the act of 1909,28 and some have been omitted,?? works by express provision of the act of 1909.29 but all of the subject matter described by them is This descriptive phrase is new in this statute. But copyrightable under the act of 1909, being compre- even under the former statute if the reproduction hended in the general terms used in that act.18 involved the exercise of intellectual qualities and arThere was no cutting down of the subjects of copy- tistic skill it was itself copyrightable,

as in the right, but, on the contrary, a deliberate extension case of an engraving, 1 or photograph, 32 of an exof copyright to “all the writings of an author.” 19 isting work of art. 33 Several different reproductions Paintings, and statues or statuary~i are copyright- of the same original may each be independently able. The size of a painting is not material on the copyrighted. 31 question whether it is a proper subject of copy- [ 117] 9. Drawings or Plastic Works. The right.22 Whether or not any particular production statute authorizes the copyrighting of "drawings is a work of art is a question of fact23 to be deter- or plastic works of a scientific or technical charmined in the first instance by the register of copy

Under both the present and the former 11. St. 5 & 6 Vict. c 45 $ 2.

ture.--"The copyright act does not design, in respect of such character (a) A cardboard pattern sleeve mention models, but, as appears by or design, or any model for such with scales, figures, and descriptive English authorities, the art of building or structure, provided that words for adapting it to sleeves of modelling is considered certain the protection afforded by this Act different dimensions printed on it is kind of sculpture, and sculpture is shall be confined to the artistic not copyrightable as a map, chart, or mentioned both in the English Act character and design, and shall not plan, and must be protected, if at all. and the Canadian." Beullac extend to processes or methods of by a patent. Hollinrake v. Truswell, Simard, 39 Que. Super. 97, 99 [aff construction; 'engravings' include (1894] 3 Ch. 420. 39 Que. Super. 517).

etchings, lithographs, wood-cuts, 12. Artistic merito necessity of [b] A figure of an elk made of prints, and other similar works, not see supra § 98.

canvas and plaster,

and erected being photographs; ‘photograph' inInfringement of see infra $$ 324– over a city street as a feature of a cludes photo-lithograph and any 327.

public celebration,

held not work produced by any process anal13. Act March 4, 1909 (35 St. at copyrightable, even on the assump- ogous to photography." Copyright L. 1075 c 320 $ 5); 28 Op. Atty.-Gen. tion

"that this creation

Act, 1911 (1 & 2 Geo. V c 46 $ 35). (Fowler) 557.

'statue, within the law of

copy- [b] "Prior to 1862, there was [a]

“This term includes all works right," it being assumed that the statutory copyright in paintings in belonging fairly to the so-called fine

circumstances necessarily implied a England." Hanfstaengl Art Pub. Co. (Paintings, drawings, arts.

and
dedication to the public. Carns v. v. Holloway, [1893) 2 Q. B. 1, 8.

242 Fed. 745
Productions of the in- Keefe,
sculpture.)

(where the "Drawings" see infra § 117. dustrial arts utilitarian in purpose opinion shows such a misapprehen- 27. A March 4, 1909 (35 U. S. and character

St. at L. 1075 c 320 $ 5).
not subject to
sion of the requirements of the copy-

to rob
it of any

28. copyright registration, even if artis right statute

Act July 8, 1870 (6 U. S. St. tically made or ornamented.” Rules weight as an authority).

at L. 198 c 230 8 86); U. S. Rev. St. and Regulations for Registration of

(c) Toy soldiers made of metal § 4952.

29. Claims

Act March 4,
were protected as a work of sculp-
Copyright
to
(Copyright

1909 (35 U. S. Office Bul. No. 15) rule 12.

ture under the Sculpture Copyright St. at L. 1075 C 320 $ 5). See also

Act (54 Geo. III C 56). Britain v. [a] “This term refers to such infra § 124.

reproductions
Hanks, 86 L. T. Rep. N. S. 765.
See supra § 90.

(engravings,

wood14.

22. Schumacher v. Schwenke, 25 cuts, etchings, casts, etc.) as 15. See supra $ 90.

Fed. 466, 23 Blatchf. 373 (picture tain in themselves an artistic ele16. (a) Terms preserved in new statute, -"Models

seven by four and one-half inches). ment distinct from that of the origor designs, See infra § 433.

inal work of art which has been "prints," and "photographs." See

24. 28 Op. Atty.-Gen. (Fowler) 557. reproduced." Rules and Regulations Act March 4, 1909 (35 U. S. St. at L.

[a] The meaning of “work of for Registration of Claims to Copy1075 C 320 $ 5).

art."-"Its application to a partic-right (Copyright Office Bul. No. 15), 17. [a] Terms omitted from new ular work, does not present a ques:

rule 13. statute. "Engraving," "cut," paint

tion of law, but of fact, and [b] Picture post cards.-Lithoing," "drawing," "chromo," "statues,"

is not, therefore, one for decision by graphic reproductions of original and "statuary." See Act March 4,

The phrase appears to be a new paintings, in the form of illustrated 1909 (35 U. S. St. at L. 1075 C 320

one in the copyright statutes, and post cards, made in Germany, are $ 5).

experts would doubtless often differ subject to registration under Act of 18. Copyright of:

as to its application; and the Reg- March 4, 1909 (35 U. S. St. at L. Cuts see infra § 119.

ister of Copyrights must, therefore, 1075), provided the original paintChromos see infra § 119.

when application for registration is ings may properly be classified as Engravings see infra § 119. made, determine for himself the works of art.

28 Op. Atty.-Gen. Models or designs see infra § 115.

question whether the work presented (Wickersham) 150. Photographs see infra § 118.

is one of art, but in so doing he 30. Beullac Simard, 39 Que. Prints see infra § 119.

not,
of course,

act arbitrarily Super. 97 [aff 39 Que. Super. 517]. 19. See supra $ 90.

and without good reason.' 28 Op. 31, See infra § 119. 20. 28 Op. Atty.-Gen. (Fowler) | Atty.-Gen. (Fowler) 557, 561.

32. See infra § 118. 557; Lucas V. Cooke, 13 Ch. D. 872. 25. Copyright Act, 1911 (1 & 2

33.

Beullac Simard, 39 Que. [a] Painting production of Geo. V c 46 $ 1).

Super. 97 (aff 39 Que. Super. 517]; Lithograph.—The register of copy- 26. St. 1 & 2 Geo. V c 46 § 35. and cases infra $$ 118, 119. rights has authority to enter a claim See Britain v. Hanks, 86 L. T. Rep. [a] A bas-relief in papier-mache in a painting, which is made merely N. S. 765 (toy soldiers protected as of an historical figure taken from a as a first step in the production of a sculptures);, Caproni v.* Alberti, 65 portrait on the public domain is lithograph, as a "work of art" within L. T. Rep. N. S. 785 (where casts of copyrightable. Beullac v. Simard, 39 the meaning of the act of March 4, fruit and leaves were protected un- Que. Super. 517 [aff 39 Que. Super. 1909 (35 U. S. St. at L. 1078 8 11), der the former Sculpture Copyright 97). provided the painting itself is a work Act).

34. See supra § 94. of art. 28 Op. Atty.-Gen. (Fowler) (a) Further statutory definitions. 35. Act March 4, 1909 (35 U. S. 557.

-"Work of sculpture' includes St. at L. 1075 C 320 8 5). 21. Beullac V. Simard, 39 Que. casts and models; 'architectural work (a) “This term includes diagrams, Super. 97 [aff 39 Que. Super. 5171 of art' means any building or struc- or models illustrating scientific or

(a) Modeling included in sculp-ture having an artistic character or technical works, architects' plans, de

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as

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English statutes drawings are copyrightable.36 as such, and photographers have frequently been

[0 118] 10. Photographs. In the United States protected in the enjoyment of a copyright in their it was held that a photograph was not a “print, photographic productions. The basis and justificut, or engraving' within the meaning of the earlier cation of such copyrights is the undeniable fact copyright law, and was not therefore a proper sub- that a photograph may embody original work and ject of copyright under that statute.37 Congress, artistic skill, 42 and be in fact an artistic production, however, in 1865, extended copyright protection to the result of original intellectual conception on the photographs and negatives thereof, by expressly part of its author. 4 The fact that the photographer including them among the articles for which copy- arranged the light, the background, and other details right was provided ;38 and this express designation of a photograph, and posed the subject so as to of photographs as copyrightable works has been produce an artistic and pleasing picture is sufficient continued in all subsequent statutes.39 Although it to sustain a copyright for such photograph.44 A was questioned whether a photographer is an au- photograph of natural scenery may be the subject of thor, and a photograph a writing, within the con- a copyright. Even a photograph of another picstitutional provision under which copyrights may ture has been held copyrightable. Probably any be granted, the constitutionality of such legislation photograph is sufficiently original to support a copywas sustained. 40

40 Accordingly, since the act of 1865, right if it is not a piracy." But where a photograph photographs have been, and now are, copyrightable has become public property by publication and sale signs for engineering work, etc." process with the original intellect- was assumed valid for the purpose Rules and Regulations for Registra- ual conception of an artist. Courier of the decision). tion of Claims to Copyright (Copy- Lith. Co. v. Donaldson Lith. Co., 104 47. Graves' Case, L. R. 4 Q. B. right Office Bul. No. 15), rule 14. Fed. 993, 44 CCA 296.

715, 723 (where Mr. Justice Black36. Fine Arts Copyright Act, 1862 44. Burrow-Giles Lith. Co.

burn said: “The distinction between (25 & 26 Vict. c 68 $ 1); Millar v. Sarony, 111 U. S. 53, 4 SCt 279, 28 an original painting and its copy is Polak, (1908] 1 Ch. 433. See also L. ed. 349 [aff 17 Fed. 591] (photo-well understood, but it is difficult to supra § 114.

graph of Oscar Wilde); Pagano v. say what is meant by an original [a] Stamped devices made from Chas. Beseler Co., 234 Fed. 963: | photograph.

All

photographs are drawings.-An artist designed cer- Cleland v. Thayer, 121 Fed. 71, 58 copies of some object, such tain devices for gold foil ornaments

CCA 272 (where the elements of painting or a statue, and it seems on Christmas cards, which were re- originality in

photograph of

to me that a photograph taken from produced from the original drawings natural scenery

well stated); a picture is an original photograph, by means of being stamped in a Falk v. Gast Lith., etc., Co., 48 in so far that to copy it is an inmold. Such stamped devices were, Fed. 262 [aff 54 Fed. 890, 4 CCA 648] | fringement of this statute"). in a sufficient sense, "drawings," so (photograph of Julia Marlowe). See [a] Originality of photographsas to be capable of registration un- Nottage v. Jackson, 11 Q. B. D. 627 (1) "The word 'writings' is not limder the Fine Arts Copyright Act, [quot Burrow-Giles Lith. Co. v. Sar- ited to the actual script of the au1862. Millar v. Polak, (1908) 1 Ch. ony, supra) (authorship of pho- thor, but includes his printed books, 433. tograph).

and all forms of writing, printing. 37. Wood v. Abbott, 30 F. Cas. 45. Cleland v. Thayer, 121 Fed. engraving, etching, etc., by which No. 17,938, 5 Blatchf. 325.

71, 58 CCA 272 [foll Bleistein v. the ideas in his mind are given vis38. Act March 3, 1865 (13 U. S. Donaldson Lith. Co., 188 U. s. 239, ible expression. A photograph may St. at L. 540).

23 SCt 298, 47 L. ed. 460) (where therefore be the subject of copy39. Act July 8, 1870 (16 U. S. St. from the report it is not clear right, for it may give visible exat L. 198 c 230 86); U. S. Rev. St. whether the copyright

pression to an author's idea or con§ 4952; Act March 3. 1891 (26 U. S. tained as one for a photograph or ception. Whether a photograph of St. at L. 1107 c 565 $ 1); Act Jan. 7. | for a print).

a building or any other object, which 1904 (33 U. S. St. at L. 4 c 2 $ 1);

A photograph of a yacht un- is a mere mechanical reproduction Act March 3, 1905 (33 U. S. st. at der sail, which requires the photog: of the physical features or outlines L. 1000).

rapher to select and utilize the best of the object, involving no orig[a] "This term covers all posi- effects of light,, clouds, water, and inality or novelty on the part of him tive prints from photographic nega- general surroundings, and to combine who kes it, is the subject of_copy tives, but not half tones or other them under favorable conditions for right, may well be doubted. But if photo-engravings." Rules and Regu- depicting vividly the subject matter, a photograph be not only a lightlations for Registration of Claims is an original work of art which may written picture of some object, but to Copyright (Copyright Office Bul. be protected by copyright.

Bolles v. also an expression of an idea, or No. 15) rule 15.

Outing Co., 77 Fed. 966. 23 CCA 594, thought, or conception of the 40. See supra $ 85.

46 LRA 712 [aff 175 U. S. 362, 20 SCt who takes it, it is a writing within 41. Thornton v. Schreiber, 124 U. 94, 44 L. ed. 156).

the Constitutional sense, and the S. 612, 8 SCt 618, 31 L. ed. 577; [b] Public building and surround- proper subject of copyright.” AmeriBurrow-Giles Lithographic Co.

ings.--"The question is not, as de- can Mutoscope, etc., Co. v. Edison Sarony, 111 U. S. 53, 4 Sct 279, 28 L. ed. 349 [aff 17 Fed. 591); Paganograph of a public building may propfendant suggests, whether the photo- Mfg. Co.137 Fed. 262, 265. (2)

“But it is said that an engraving, a v. Chas. Beseler Co., 234 Fed. 963; erly be copyrighted. Any one may painting, a print, does embody the Gross v. Seligman, 212 Fed. 930, 129 take a photograph of a public build- | intellectual conception of its author, CCA 450; American Mutoscope, etc., ing and of the surrounding scene. in which there is novelty, invention, Co. y. Edison Mfg. Co., 137 Fed. 262; It" undoubtedly requires originality originality, and

therefore Falk v. Curtis Pub. Co., 98 Fed. 989; to determine just when to take the within the purpose of the ConstituBolles v. Outing Co., 77 Fed. 966. 23 photograph, so as to bring out the lion in securing its exclusive use or CCA 594 (aff 175 U. S. 262, 20 SCt | proper setting for both animate and

sale to its author, while the photo94, 44 L. ed. 156); Falk v. Donald- | inanimate objects, with the adjunc- graph is the mere mechanical reproson, 57 Fed. 32; Falk V. Brett Lith.

tive features of light, shade, posi- duction of the physical features or Co., 48 Fed. 678; Falk v. Gast Lith.

tion, etc. The photograph in ques-outlines of some object animate or Co., 48 Fed. 262 [aff 54 Fed. 890, 4 tion is admirable. The photog- inanimate, and involves origCCA 648]; Falk v. Howell, 37 Fed. rapher caught the men and women inality of thought or any novelty in 202.

in not merely lifelike, but artistic, the intellectual operation connected 42. Pagano v. Chas. Beseler Co., positions, and this is especially true

with its visible reproduction in the 234 Fed. 963; Gross V. Seligman, 212 of the traffic policeman. The back- shape of a picture. That while the Fed. 930, 129 CCA 450; Edison ground, taking in the building of the

effect of light on the prepared plate Lubin, 122

Fed. 240,

58 CCA 604 Engineers' Club and the small trees may have been a discovery in the (rev 119 Fed. 993, and app dism 195 on Forty-First street, is most pleas- production of these pictures, and U. S. 625, 25 SCt 790, 49 L. ed. 349); ing, and the lights and shades are patents could properly be obtained Bolles v. Outing Co., 77 Fed. 966, 23 exceedingly well done. There

for the combination of the chemCCA 594, 46 LRA 712 [aff 175 U. S. other features, which need not be | icals, for their application to the 262, 20 SCt 94, 44 L. ed. 156).

discussed in detail, such the paper or other surface, for all the 43. Bamforth v. Douglass Post motor cars waiting for the signal to machinery by which the light reCard, etc., Co., 158 Fed. 355; Edison proceed. The work, it seems to me, flected from the object was thrown v. Lubin, 122 Fed. 240, 58 CCA 604 comes well within what the authori- on the prepared plate, and for all (rev 119 Fed. 993, and app dism 195 ties have held to be the subject- | the improvements in this machinery, U. S. 625, 25 SCt 790, 49 L. ed. 349). matter of copyright." Pagano v. and in the materials, the remainder

Artistic nature of photograph. Chas, Beseler Co., 234 Fed. 963. 964. of the process is merely mechanical, -A photograph may be something 46. Graves' Case, L. R. 4 Q. B. with no place for novelty, invention, more than mere mechanical and 715. But see Champney v. Haag, 121 originality. It

is simply the chemical product, and may rise to Fed. 944 (where the validity of the manual operation, by tne the dignity of art through the blend copyright of a photograph of a copy- these instruments and preparations, ing of the mechanical parts of the righted painting was questioned, but of transferring to the plate the vis

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Prior to this act photographs were obtain a valid copyright thereon by making slight given copyright protection by specific designation and merely colorable changes therein, as by an alter- as such in the Fine Arts Copyright Act of 1862.57 ation of the negative from which it is printed.*' A [ý 119] 11. Prints and Pictorial Illustrations; picture produced from a negative which has been Engravings; Cuts.58 In the United States, the act altered by etching is not a photograph subject to of 1909 specifically authorizes copyright in "prints copyright as such. A series of photographs on a and pictorial illustrations." 59 The corresponding film suitable for projecting moving pictures on a terms used in prior acts were • engraving," "cut, screen may be copyrighted as a photograph,” al- "print," "painting," "drawing," and "chromo."i 60 though in taking the negatives the camera was The subject matters formerly described by the terms placed in different localities." At least this was engraving, cut, painting, drawing, and chromo are true as the law stood prior to its amendment in now copyrightable either as "prints and pictorial 1912. By the act of 1909, as amended by the act illustrations," or under other designations in the of 1912, motion picture photoplays and other mo- statute.61 The words “engraving, cut and print,” tion pictures are made distinct subjects of copy- as used in the prior statutes, were by the act of right,53 and in view of this fact it is, perhaps, no 1874 expressly limited so as to apply only “to piclonger proper to copyright them as photographs. torial illustrations or works connected with the fine The court will not inquire as to whether a photo

This act of 1874 was not repealed by the graph is good, bad, or indifferent, and artistic merit general copyright act of 1909.63 It has been said is immaterial.54

that the word “print," as used in the statute in In England the copyright of photographs is con- connection with “engraving," "cut," and "photoferred by the grant of copyright to “every

graph,'' means apparently a picture, something comartistic work, 55 it being expressly provided that plete in itself, similar in kind to an engraving, cut, the phrase "artistic work” shall include "photo- or photograph.64 The term “print'' may include a ible representation of some existing , above." Rules and Regulations for (b) Illustrations not connected object, the accuracy of this repre- Registration of Claims to Copyright with fine arts.--"The protection of sentation being its highest merit. (Copyright Office Pul. No. 15), rule the law is not confined to pictorial This may be true in regard to the 16.

illustrations known as works of fine ordinary production of a photograph, 60. U. S. Rev. St. § 4952; Act arts. This was not

even under and, further, that in such

March 3, 1891 (26 U. S. St. at L. the preceding act. In the case of copyright is no protection. On the 1107_c565 $ 1); Act Jan. 7, 1904 Bleistein v. Donaldson Lith, Co., 188 question as thus stated we decide (33 U. S. St. at L. 4. c 2 § 1); Act U. S. 239, 23 Sct 298, 47 L. ed. 460, nothing." Burrow-Giles Lith, Co. v. March 3, 1905 (33 U. S. St. at L. Justice Holmes, delivering the opinSarony, 111 U. S. 53, 58, 4 SCt 279, 281000).

ion of the court, said: We see no L. ed. 349 [aff 17 Fed. 591). [a] Transitory character of pic

for taking the words con48. See supra § 50; and generally tures in a periodical affords no rea- nected with "the fine arts" as qualito effect of publication supra son for denying them copyright pro- fying anything except

the

word $$ 40-45.

tection. Mail, etc., Co. v. Life Pub. "works," but it would not change our 49. Snow v. Laird, 98 Fed. 813, 39 Co., 192 Fed. 899, 113 CCA 377. decision if we should assume furCCA 311.

61.
See supra § 90.

ther that they also qualified “pic50. Snow v. Laird, 98 Fed. 813, 39 [a] "Postal cards can not be copy- torial illustrations," as the defendCCA 311.

righted

such The pictures ant contends.' If there is any limi[a] Picture reproduced from partly thereon may be registered as 'prints tation whatever to this term, it must etched negative-A picture which or pictorial illustrations' or as 'pho- | be found in the words of the Conwas produced by the use of a nega- tographs.' Text matter on a postal stitution confining pictorial illustrative which had been changed by card may be of such a character that tion to the 'useful arts.' National etching so as to introduce into the it may be registered as a 'book.' Cloak, etc., Co. v. Kaufman, 189 Fed. picture an object which was not in Rules and Regulations for Registra- 215, 218. But see Royal Sales Co. the group of objects which were ex- tion of Claims to Copyright (Copy- V. Gaynor, 164 Fed. 207, 209 (where posed to the camera could not be right Office Bul. No. 15), rule 18(m). / Ward, J., uses the phrase "connected copyrighted as a photograph. Snow Artistic works see supra $8 114- with the fine arts". to qualify "picv. Laird, 98 Fed. 813, 39 CCA 311. 116.

torial illustrations'' as subjects of 51. Harper v. Kalem Co., 169 Fed. Drawings or plastic works copyright); J. L. Mott Iron Works 61, 94 CCA 429 [aff 222 U. S. 55, 32 supra § 117.

v. Clow, 72 Fed, 168 (aff 82 Fed. 316, Sct 20, 56 L. ed. 92, AnnCas1913A

62.

Act June 18, 1874 (18 U. S. 27 CCA 250) (where Grosscup. J., 1285); American Mutoscope, etc., Co. St. at L. 78 c 301 $3); Bleistein v. held illustrations in an advertise

Edison Mfg. Co., 137 Fed. 262; Donaldson Lith. Co., 188 U. S. 239, ment not copyrightable because not Edison v. Lubin, 122 Fed. 240, 58 23 SCt 298, 47 L. ed. 460 [rev 104 connected with the fine arts). CCA 604 (rev 119 Fed. 993, and app Fed. 993, CCA 296]; National [c] Chromolithographic advertisedism 195 U. S. 625, 25 SCt 790, 49 Cloak, etc., Co. v. Kaufman, 189 Fed. ments of a circus, portraying a balL. ed. 349); Barker Motion Photog- 215.

let, a number of persons performing raphy. Ltd. v. Hutton & Co., Ltd., [a Construction

of statute.- on bicycles, and groups of men and 28 L. T. R. 496.

"The act however construed, does women whitened to represent stat"The series of photographs taken not mean that ordinary posters are ues, are proper subjects of copyby the defendant constitutes a single not good enough to be considered right

"pictorial illustrations. picture, capable of copyright

within its scope. The antithesis to Bleistein v. Donaldson Lith. Co., 188 such." Harper v. Kalem Co., 169 illustrations or works connected U. S. 239, 23 SCt 298, 47 L. ed. 460 Fed. 61, 63, 94 CCA 429 [aff 222 U. with the fine arts' is not works of (rev 104 Fed. 993, 44 CCA 296). S. 55, 32 SCt 20, 56 L. ed. 92, Ann little merit or of humble degree, or 63. Stecher Lith. Co. v. Dunston Cas1313A 1285).

illustrations addressed the less Lith. Co., 233 Fed. 601; 28 Op. Atty.Notice of copyright on moving educated classes; it is 'prints Gen. 116; Copyright Office Bul. No. picture films see infra § 218.

labels designed to be used for any 14 p 40. See also infra § 141. 52. American Mutoscope, etc., Co. other articles of manufacture.' Cer- 64. Rosenbach v. Dreyfuss, 2 Fed. V. Edison Mfg. Co., 137 Fed. 262. tainly works are not the less con- 217.

53. Act March 4, 1909 (35 U. S. nected with the fine arts because {a) Pattern prints of balloons St. at L. 1075 c 320 $ 5), as amended their pictorial quality attracts the with directions and cutting lines, deby Act Aug. 24, 1912 (37 U. S. St. crowd and therefore gives them a signed to be cut up and made into at L. 488).

real use-if use means to increase the physical articles, are not copyMoving picture copyrights

trade and to help to make money. rightable as prints. Rosenbach infra $$ 120-122.

A picture is none the less a picture Dreyfuss, 2 Fed. 217. 54. See supra $ 98.

and none the less a subject of copy- [b] Railroad ticket-"The ticket 55. Copyright Act, 1911 (1 & 2 right that it is used for an adver- is certainly not map, chart Geo. V c 46 § 1).

tisement. And if pictures may be musical composition, nor is it a print 56. Copyrignt Act, 1911 (1 & 2 used to advertise soap, or the the- or engraving, within the meaning of Geo. V c 46 $ 35).

atre, or monthly magazines, as they the section, although it may be 57.

St. 25 & 26 Vict. c 68 1; are, they may be used to advertise a printed or engraved." Griffin V. Graves' Case, L. R. 4 Q. B. 715

circus. Of course, the ballet is as Kingston, etc., R. Co., 17 Ont. 660, (photograph of a picture, protected). legitimate, a subject for illustration 664. See also infra $ 141.

as any other. A rule cannot be laid (c) Pictures printed in successive 59. Act March 4, 1909 (35 St. at down that would excommunicate the colors from metal plates, from which L. 1075 C 320 $ 5).

paintings of Degas." Bleistein v. plates part of the metal has been (a) “This term comprises all Donaldson Lith. Co., 188 U. S. 239. cut out SO

to leave portions printed pictures not included in the 251, 23 SCt 298, 47 L. ed. 460 [rev thereof in relief, are within the copyvarious other classes enumerated 104 Fed. 993, 44 CCA 296).

right law. Hills v. Hoover, 136 Fed.

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