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port a new copyright. Where the new matter is be copyrighted." This rule has been applied to separable from the old, or where only a portion of mere trade catalogues,72 price lists,"2 and advertisthe original matter has been rewritten or revised, ing cards.74 If, however, the value of a work is not the new copyright will extend only to such distinct confined to its character as an advertisement, but and separable matter.o7 New editions of copy- if it has also any appreciable literary or artistic righted works must be produced with the consent of value, the mere fact that it is designed and used for the proprietor of the copyright in such works,68 and advertising purposes does not prevent it from being

75 the statute expressly so provides;69 otherwise the the subject of a valid copyright. A picture is new edition is a piracy."0

none the less a picture and none the less a subject [$ 140] 26. Advertisements, Catalogues, and of copyright because it is or may be used for an Price Lists. It has been held that to entitle a work advertisement.76 Copyright may be acquired in an to copyright protection it must have by itself some advertising catalogue which contains original matvalue as a composition, at least to the extent of ter, the product of intellectual labor on the part of serving some purpose other than a mere advertise- the author or designer. It is perhaps impossible ment, and therefore that a production which has no to reconcile all the decisions on this subject.78 It value except as a mere advertising medium cannot has been denied that any literary or artistic merit graph.-Where photograph hasing daily "price-current" not "paste and scissors work” will give been dedicated to the public by pub- copyrightable); Mutual Adv. Co. v. me all I want,' could it be denied lication, it cannot be reclaimed and Refo, 79 Off. Gaz. (U. S.) 159; Hot- that he would have a right to come be made a proper subject of copy- ten v. Arthur, 1 Hem. & M. 603, 71 here to prevent this unremunerated right by making changes in the nega- Reprint 264.

use of his labour.

Let us tive by means of etching, if the [a] A mere illustrated price suppose that Dr. Waagen, or anychanges are merely colorable and not catalogue, with pictures of wares one else, had published an interestmade in good faith for the purpose offered for sale, and containing let- ing description of the paintings to of producing a

work of art. terpress which is confined to a state- be found in some private gallery, Snow v. Laird, 98 Fed. 813, 39 CCA ment of dimensions and prices and not merely giving the names of the 311.

is of no literary merit, is not within pictures and their painters (though 66. Mifflin v. Dutton, 190 U. S. the protection of the copyright stat- even that would evince some mental 265, 23 SCt 771, 47 L. ed. 1043 (aff ute. J. L. Mott Iron Works v. Clow, exertion deserving protection), but 112 Fed. 1004, 50 CCA 661, 61 LRA 82 Fed. 316, 27 CCA 250 (aff 72_Fed. giving slight history of, and 134); Mifflin v. R. H. White Co., 190 168]; Cobbett v. Woodward, L. R. 14 criticism upon, each painting after U. S. 260, 23 SCt 769, 47 L. ed. 1040 Eq. 407.

the manner of this catalogue before (aff 112 Fed. 1004, 50 CCA 661, 61 74. Ehret v. Pierce, 10 Fed. 553, me, I cannot conceive that it could LRA 134 (aff 107 Fed. 708)]; Holmes 18 Blatchf. 302 [dist Yuengling V. be argued for a moment that the v. Hurst, 174 U. S. 82, 19 SCt 606, 43 Schile, 12 Fed. 97] (a particular ad- owner of the pictures would have L. ed. 904; West Pub. Co. v. Edwardvertising card held not copyright- the smallest right to copy this deThompson' Co., 176 Fed. 833, 100 CCA able as a "print"); Griffin v. King- scription." Hotten Arthur, 1 303. ston, etc., R. Co., 17 Ont. 660.

Hem. & M. 603, 607, 71 Reprint 264. 67. Cary v. Longman, 1 East 358, 75. Meccano v. Wagner, 234 Fed. 76. Bleistein v. Donaldson Lith. 102 Reprint 138, 7 ERC 78.

912; Stecher Lith. Co. v. Dunston Co., 188 U. S. 239, 23 SCt 298, 47 L. 68. Gray v. Russell, 10 F. Cas. Lith. Co., 233 Fed. 601; Yuengling v. ed. 460 [rey 104 Fed. 993, 44 CCA No. 5,728, i Story 11: Sweet v. Cater, Schile, 12 Fed. 97, 20 Blatchf. 452 296); McCarthy v. Adler, 227 Fed. 11 Sim. 572, 34 EngCh 572, 59 Re- (where a chromolithograph which, 630; National Cloak, etc., Co. print 994; Tonson Walker, 3 although used by plaintiff as an ad- Kaufman, 189 Fed. 215. Swanst. 672, 36 Reprint 1017.

vertisement, possessed evident artis- [a] A chromo, if a meritorious 69. Act March 4, 1909 (35 U. S. tic merit, was said to be the subject work of art, may be copyrighted, St. at L. 1075 C 320 § 6).

of copyright); Hotten V. Arthur, 1 although designed and used for gra70. See supra § 91. Hem. & M. 603, 71 Reprint 264 (a tuitous distribution

adverAbridgments as infringements see catalogue of a bookseller not con- tisement for the purpose of attractinfra § 304.

sisting of a mere list of dry names, ing business. Yuengling v. Schile, Infringement generally see infra but giving information as to the 12 fed. 97, 20 Blatchf. 452. $ $ 263-335. several items).

[b] Size of painting.-The fact 71. Meccano v. Wagner, 234 Fed. "I cannot conceive on what prin- that a painting is only seven by four 912; Stone v. Dugan Piano Co., 220ciple it is supposed that there is no and one-half inches in size, and could Fed. 837, 136 CCA 583; J. L. Mott copyright in a catalogue such as be readily lithographed and used as Iron Works V. Clow, 82 Fed. 316, 27 this. This is not mere dry list an advertising label, will not affect CCA 250; Cobbett y. Woodward, L. R. of

names,

like a postal directory, the copyright. Schumacher 14 Eq. 407 [overr Maple v. Junior Court guide, anything of that Schwencke, 25 Fed. 466, 23 Blatchf. Army, etc., Stores, 21 Ch. D. 369]; sort, which must be substantially | 373. Lamb v. Evans, 67 L. T. Rep. N. S. the same by whatever number of 77. Lawrence v. Cupples, 15 F. 523. See also Lamb v. Grand Rapids persons issued and however inde- Cas. No. 8,135; Davis v. Benjamin, School Furniture Co., 39 Fed. 474; pendently compiled. This is a case (1906) 2 Ch. 491 (per Swinfen Eady, Collender v. Griffith, 6 F. Cas. No. of a bookseller who issues an ac- J.); Lamb v. Evans, [1892] 3 Ch. 462 3,000, 11 Blatchf. 212 (both cases count of his stock, containing short [app dism (1893) 1 Ch. 218] (classified sometimes cited in support of this descriptions of the contents of the irade directory); Maple v. Junior rule, but both really only holding books, calculated to interest either Army, etc., Stores, 21 Ch. D. 369 that there was no infringement). the general public or the persons (overr Cobbett v. Woodward, L. R.

"It is uniformly held that adver- who may take an interest in the 14 Eq. 407); Grace v. Newman, L. R. tisements possessing no literary or questions treated of by particular 19 Eq. 624. 7 ERC_86; Hogg v. Scott, artistic qualities are not the sub- books. For example:-Suppose one L. R. 18 Eq. 444; Bogue v. Houlston, ject of a copyright." Barnes of the books to be a History of 5 De G. & Sm. 267, 64 Reprint 1111; Miner, 122 Fed. 480, 493.

Cheshire; then he gives you a slight Hotten V. Arthur, 1 Hem. & M. 603, In this connection, it may be ad- account of it, from which it appears 71 Reprint 264; Wilkens v. Aikin, 17 mitted ex gratia argumenti, without that it contains a number of anec- Ves. Jr. 422, 34 Reprint 163. being decided, that some form of ad-dotes respecting county families [a] English cases must be revertisements, such as characteristic and other things of that nature; it ceived with caution on this point, as advertisements, come within the pro- might well be that persons who 'did they were decided under a statute tection of the law. But said Judge not previously know anything of the giving copyright in "books," and deJenkins, speaking for the Circuit work would be guided by the descrip- fining "book" to include a sheet of Court of Appeals in Mott Iron-Works tion and induced to purchase the letterpress. See supra § 101. They v. Clow, 82 Fed. 316, 27 CCA 250: work. There is another point of were not affected by any limitation So far 'as the decisions of the Su- view in which this case appears to as to authorship and utility such as preme Court have gone,

think me to be even clearer. Suppose the are imposed by the federal constithey hold to the proposition that case of a professional writer (there tution in this country.

See supra mere advertisements, whether by may well be such), whose peculiar $ 85. letterpress or by pictures, are not department it is to make out 'Cata- 78. Stone v. Dugan Piano Co., 210 within the protection of the copy-logue Raisonnées' of this kind, and Fed. 399. 400 (aff 220 Fed. 837, 136 right laws.' Stone v. Dugan Piano to write such abstracts of the no- CCA 583). Co., 220 Fed. 837, 841, 136 CCA 583. ticeable points in the various books "As to whether advertisements

Literary and artistic merit see of the catalogue as we have here. may be copyrighted, there are cases generally supra § 98.

A man who is an author for this both ways.' Stone v. Dugan Piano 72. J. L. Mott Iron Works V. purpose would naturally expect that Co., supra. Ciow, 8? Fed. 316, 27 CCA 250. See the very fact that he had printed [a] Illustration.-"In Cobbett v. also infra note 77.

such notes for one publisher would Woodward, L. R. 14 Eq. 407, decided 73. J. L. Mott Iron Works V. lead to his employment for a sim- in 1872, an upholsterer published an Clow. 82 Fed. 316. 27 CCA 250 (aff | ilar purpose by another. Suppose illustrated catalogue containing en72 Fed. 1681; Clayton v. Stone, 5 not this other to say to him. 'I gravings of the articles of furniF. Cas. No. 2,872, 2 Paine 382 (hold. I have no occasion for your services, Iture he offered for sale, with re

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is necessary, and the validity of a copyright in a advertisements and hence not copyrightable.88 Orbusiness circular,so and a catalogue or mere list of dinary circus posters may be copyrighted. 84 A articles for sale,91 has been sustained. Pictorial manual instructing how to use a mechanical toy illustrations or cuts of articles offered for sale con- prepared for children, which was more than a mere stituting or contained in advertisements or cata- advertisement, being a guide to the combinations logues have been held copyrightable and protected which children might form with the toy, and exagainst piracy,s2 although other cases have denied plaining many principles of mechanics, may be copythem protection on the ground that they were mere righted. 85 marks of description. The injunc- said by Mr. Justice Bradley in Baker | held to be a proper subject of copytion was denied, Lord Romilly as- v. Selden, 101 U. S. 99, 25 L. ed. right. Yuengling v. Schile, 12 Fed. serting: 'I know of no law which, 841: "There is a clear distinction 97, 20 Blatchf. 452 (dist Ehret v. while it would not prevent the sec- between the book as such and the Pierce, 10 Fed. 553, 18 Blatchf. 302, ond advertiser from selling the article which it is intended to illus- on the ground that the copyrighted same article, would prevent him trate. The object of the one is il- article in that case was not a work from using the same advertisement, lustration; of the other it is the use of art and had no value as such, provided he did not in such adver- / thereof. The former may be secured and was merely a mode of advertistisement, by any device, suggest that by copyright, the latter by patent.' ing. In the principal case, Brown, he was selling the works and de- The complainant does not claim to D. J., held that the chromo of Gamsigns of the first advertiser.' monopolize the manufacture and brinus

a work of the imagiIn Maple V. Junior Army, etc.; sale of the wearing apparel depicted nation, and had such obvious ar Stores, 21 Ch. D. 369, decided in by reason of its copyright. It does, tistic qualities as in his judgment 1882, the court flatly overruled Cob- however, claim the right thereby to to render it fairly a subject of copybett' v. Woodward, supra, and held prevent others from copying and ap- right without regard to the that such a book or catalogue as is propriating its exclusive property in which plaintiff may have made, or in question here was the subject of such pictures and to this it is en- might have intended to make, of it). protection under the laws of Eng-titled " by reason of its copyright 83. J. L. Mott Iron Works y. Clow, land." J. L. Mott Iron Works V. which appears to be valid." Na- 82 Fed. 316, 27 CCA 250; Land v. Clow, 82 Fed. 316, 319, 320, 27 CCA tional Cloak, etc., Co. v. Kaufman, | Grand Rapids School Furniture Co., 250. 189 Fed. 215, 219.

39 Fed. 474; Corbett v. Woodward, 79. Collis v. Cater, 78 L. T. Rep. (a) Fashion pictures."The illus- L. R. 14 Eq. 407 (overruled by later N. S. 613; Church v. Linton, 25 Ont. trations which the defendant is al- cases. See supra note 81). 131. See also supra § 98.

leged to have copied from the com- [a] Plumbing supplies.-A price "It makes no difference that the plainant's copyrighted book are so catalogue constituting a volume conpictures in suit are intended for ad- called pictorial illustrations, being taining illustrations of wares offered vertising articles of commerce. De-pictures of ladies attired in the la- for sale, such as washbowls, bathjonge v. Breuker, etc., Co., 182 Fed. test or up-to-date styles, depicting tubs, foot baths, etc., which articles 150 [aff 235 U. S. 33, 35 Sct 6, 59 the fashions in dress, supplemented are without ornamentation, and canL. ed. 113), or that they possessed by information concerning the ma- not well be the subject of artistic little artistic merit. Bleistein V. terials which the complainant offers treatment, is not the proper subject Donaldson Lith. Co., 188 U. S. 239, to make up in accordance therewith, of a copyright, the letterpress being 23 SCt 298, 47 L. ed. 460. It is and the prices at which it will do so. confined to a statement of dimenenough that the evidence shows that Are these

SO

called illustrations sions and price. J. L. Mott Iron the pictures in their details, design, copyrightable component parts

of

Works v. clow, 82 Fed. 316, 27 CCA and combination of lines and colors the complainant's book?

The 250 [aff 72 Fed. 168]. originated with the complainant and contention of the defendant that if 84. Bleistein V. Donaldson Lith. are in fact pictorial illustrations or a picture has no other use than that Co., 188 U. S. 239, 23 SCt 298. 47 works connected with the fine arts."

of a

mere advertisement, and no L. ed. 460 (rev 104 Fed. 993, 44 CCA Stacher Lith. Co. v. Dunston Lith. value aside from this function, it 296]; Hegeman v. Springer, 110 Fed. Co., 233 Fed. 601, 603.

would not be promotive of the use- 374, 49 CCA 86 [aff 189 U. S. 505, 23 80.

Lamb v. Evans, [1893] 1 Ch. ful arts within the meaning of the SCt 849, 47 L. ed. 921] (theatrical 218 (arrangement and headings of a constitutional provisions entitling lithographs advertising the "Black page of newspaper advertisements); the author to protection in the ex- Crook"). Grace v. Newman, L. R. 19 Eq. 623, clusive use thereof, was denied in [a] Chromolithographic adver7 ERC 86; Church v. Linton, 25 Ont. Bleistein v. Donaldson Lith. Co., 188 tisements of a circus, portraying a 131.

U. S. 239, 23 SCt 298, 47 L. ed. 460, ballet, a number of persons perform81. National Cloak, etc., Co. V. the cour saying that a picture is ing on bicycles, and groups of men Kaufman, 189 Fed. 215; Da Prato none the less a picture and none the and women whitened to represent Statuary Co. V. Giuliani Statuary less a subject of copyright that it statues, are proper subjects of copyCo., 189 Fed. 90; Davis v. Benjamin. is used for an advertisement.' The right, under U. S. Rev. St. $ 4952, (1906] 2 Ch. 491; Maple v. Junior complainant's pictures or illustra- as amended by the Act of June 18, Army, etc., Stores, 21 Ch. D. 369 tions are more than mere advertise- 1874 (18 U. S. St. at L. 78 C 301 (overr Cobbett v. Woodward, L. R. ments of wearing apparel. They are, 83), "pictorial illustrations," 14 Eq. 407); Grace v. Newman, L. R. on their face, exceptionally excellent even assuming that only such illus19 Eq. 623, 7 ERC 86; Hotten v. Ar pictures, having value as composi- trations as are “connected with the thur, 1 Hem. & M. 603, 71 Reprint tions. They are no doubt the work fine arts" are within the protection 264; Collis v. Cater, 78 L. T. Rep. embodying the personal reaction of of such laws. Bleistein v. DonaldN. S. 613 (where North, J., said that artists of recognized skill in their son Lith. Co., 188 U. S. 239, 23 SCt such lists could not be distinguished calling, and, furthermore, admittedly, 298, 47 L. ed. 460 [rev 104 Fed. 993, in principle from directories).

aside from their artistic merit as 44 CCA 296]. 82. Meccano v. Wagner, 234 Fed. productions of peculiar value, they 85. Meccano v. Wagner, 234 Fed. 912; J. H. White Mfg: Co. v. Shapiro, portray original conceptions and 912. 227 Fed. 957; National Cloak, etc., Co. creations relating to wearing apparel [a] Manual of instructions for v. Standard Mail Order Co., 191 Fed. of great interest to a large portion use with article sold.-"Whether or 528; National Cloak, etc., Co. V. of the public. In their ensemble, not complainant's Manual may be Kaufman, 189 Fed. 215; Da Prato their details, designs and general properly the subject of copyright Statuary Co. v. Giuliani Statuary particulars they contain the some- may be determined by the test laid Co., 189 Fed. 90: Davis v. Benjamin, thing that appeals to the taste of down by Judge Jenkins in J. L. Mott (1906] 2 Ch. 491; Maple v. Junior an admiring public. It is this se- Iron Works v. Clow, 82 Fed. 316, Army, etc., Stores, 21 Ch. D. 369;cret portrayed by the artist differ- 27 CCA 250, in which he says, reGrace v. Newman, L. R. 19 Eq. 623, | ing from other pictures of this kind ferring to certain decisions of the 7 ERC 86 (where it was held that in which lies their value and which Supreme Court: "The result of these

book of pictures of sepulchral apparently caught the eye of the de- decisions would seem to place this monuments, collected and made for fendant and furnishes the reason construction upon the constitutional a cemetery man, to be shown to cus- for protecting the fruits of the ar- provision under consideration: That tomers ordering a monument,

tist's labors by copyright." Na- only such writings and discoveries the proper subject of copyright): tional Cloak, etc., Co. v. Kaufman, are included as are the result of inCollis v. Cater, 78 L. T. Rep._N. S. 189 Fed. 215, 217, 218.

tellectual labor; that the term "writ613; Slingsby v. Bradford Patent [b] Pictures of statuary offered ings" may be liberally construed to Truck, etc., Co., [1905] W. N. 122 for sale are copyrightable. Da include designs for engraving and (where an illustrated catalogue was Prato Statuary Co. v. Giuliani Statu- prints that are original, and are treated as copyrightable, but denied ary Co., 189 Fed. 90 (dist J. L. Mott founded in the creative powers of protection on the ground that it Iron Works v. Clow, 82 Fed. 316, 27 the mind, the fruits of intellectual contained fraudulent representation). CCA 250, on the ground of differ- labor

that. to be entitled to a "The fallacy in the argument that enco in character of objects de- copyright, the article must have, by the complainant cannot copyright picted).

and of itself, some value as a com'productions of the industrial arts' (c) 'A chromo entitled "Gambri- position, at least to the extent of lies in the confusion of the pictures nus and his followers," intended as serving some purpose other than as with the things they depict in a a glorification of lager beer drinking, a mere advertisement or designation particular way; that is, the wearing and designed and circulated as of the subject to which it is atapparel which appears in the illus- advertisement of the publisher's tached.' When this, together with tration as part of the pictures. As business as a lager beer brewer, was other statements in the opinion, is

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( 141] 27. Labels and Prints for Manufactured ture shall be entered under the copyright law, but Articles. By specific provisions of the act of 1874,88 they may be registered in the patent office in conwhich was not repealed by the Copyright Act of formity with the regulations provided by law as to 1909, and is still in force,87 no prints or labels de- copyright of prints. Only such cuts, prints, and signed to be used for any other articles of manufac- engravings as constitute pictorial illustrations or applied to complainant's Manual, it as section 4962, in chapter 3 of said | eight hundred and eighty-six, obcannot be successfully denied that title, which relates solely to copy- tain a patent therefor.' As I uncomplainant's Manuals were prop- | rights, and thus the distinction be- derstand, the Patent Office construed erly copyrighted. Aside from the tween the two characters of prints this amendment to apply solely to attractiveness of the designs them- was preserved with equal clearness the second class of patents above selves, it is certain that much in the Revised Statutes. By the act described, and held that it did not thought and labor must have been of June 18, 1874 (18 Stat. 78), Con- affect the registration in that office given to their construction. They gress amended the law relating to of artistic prints to be placed on are more than an advertisement of patents, trade-marks, and copyrights articles of manufacture. This concomplainant's wares. They instruct by, in section 1 thereof, providing struction was, in my opinion, corthe purchaser how to use the strips that no person shall-maintain an rect, inasmuch as the act of July 18, of metal and wheels and nuts and action for infringement of his copy- 1874, was not incorporated in the angles and plates, without which right unless he shall give notice Revised Statutes, they being only a even a particularly bright boy would thereof

for a print, cut, en- codification of the laws enacted on not be able himself to think out the graving

by inscribing upon

before December 1, 1873 (sec. many models set forth. It can some visible portion thereof,' cer- 5601), and consequently said act of scarcely be doubted, too, that in con- tain statements therein set forth, 1874 was not repealed by the amendstructing models based on the illus- and by the third section it was pro- ment of May 9, 1902. With the law trations, many mechanical devices, vided that in the construction of the in this condition, the act of March of which he would otherwise have act the words-'engraving, cut and 4, 1909 (35 Stat. 1075), entitled 'An

the no knowledge, are brought to his print shall be applied only to pic- act to amend and consolidate mind, and many principles of torial illustrations or works

acts respecting copyrights,' was chanics imparted to him." Meccano nected with the fine arts, and no passed. The caption of this act

prints or labels designed to be used clearly indicates that it V. Wagner, 234 Fed. 912, 921.

was in86. Act June 18, 1874 (18 U. S. for any other articles of manufac-tended to relate solely to the subject St. at L. 78 c 301 $ 3).

ture shall be entered under the copy- of copyrights, and it was not in87. Stecher Lith. Co. v. Dunston right law, but may be registered in

tended to in any respect amend or Lith. Co., 233 Fed. 601; 28 Op. Atty.- the Patent Office;' and the Commis- affect the laws then existing relatGen. (Fowler) 116.

sioner of Patents was charged with ing to the registration of prints and (a) Duty of patent office to reg- the supervision and control of the

labels in the Patent Office, and there ister prints-The Copyright Act of entry or registry of such prints or is nothing in the body of the act March 4, 1909 (35 U. S. St. at L. labels, in compliance with such regu

which is in the least inconsistent 1075), did not relieve the patent lations as applied to the registry

with the caption. The words 'prints' office of its duty, and it is still re- of copyrights, except that a fee of and 'pictorial illustrations,' used in quired to register all prints which $6 was to be paid instead of $1 pro

clause (k), section 5, of said act, have heretofore been registered vided for registering a copyright.

relate old

prints and illustratherein under the act of June 18, Under the provisions of these two

tions which were embraced in sec1874 (18 U. S. St. at L. 78), and in

tion statutes, as interpreted by the Com

4952, Revised Statutes, and the same manner as they have here- missioner of Patents, two classes of which may be copyrighted; and it tofore been registered. 28 Op. Atty.- patents were granted, one for inven

does not follow that because no refGen. (Fowler) 116. tions in an art, for a machine, a

erence is therein made to prints or 88. Steclier Lith. Co. v. Dunston manufacture, or composition of mat

labels which are to be used for any Lith. Co., 233 Fed. 601. ter, or any improvement thereon, and

other articles of manufacture such [a] Construction of statute by the other for ornamental designs prints or labels can not be regisattorney-general. "By the act of placed upon or worked into

tered in the Patent Office precisely

and July 8, 1870 (16 Stat. 198), as ap- forming an inseparable part of ar

as could have been done previous to pears from the caption of said act. ticles of manufacture. And, in ad

this act. My attention is called to Congress revised, consolidated, and dition to these, the Commissioner of

section 47 of said act, whereby it amended the statutes then existing Patents entered for registration, 'in

is provided that all records and other relating to patents and copyrights. conformity with the regulations pro

things relating to copyrights, reThe first 76 sections of this statute vided by law as to copyright of quired by law to be preserved, shall related exclusively to patents, while prints,' artistic prints which describe

be kept and preserved in the Copysections 85 to 110 related to copy- the article of manufacture to which right Office, Library of Congress, rights. By section 71 of said act it refers or is to be attached.

District of Columbia, and shall be

Beit was provided that any person who, cause these registrations were made

under the control of the register of by his own industry, genius, efforts, in accordance with the copyright copyrights, who shall. under the diand expense has invented or

rection and supervision of the Lipro- law. they were, by the Patent Office, duced (among otlıer things) any new designated 'copyrights,' although

brarian of Congress. perform all the and original impression, ornament, such designation was probably in a

duties relating to the registration of pattern, print, picture, to be technical sense erroneous, as the act

copyrights; and it is suggested that painted, cast, otherwise placed of 1874 expressly provided that such

by this section the previous laws reon or worked into any article of prints or labels should not be en

lating to the registration of prints manufacture, may, upon the payment tered under the copyright law,' the

were so modified as to require all of the duty required by law, and sole distinction to them being

prints to be registered by the regisother due proceedings had, the same that they should be entered in con

ter of copyrights. However, this secas in the case of inventions or dis- formity with the copyright law. But

tion is but a copy, with few verbal coveries, obtain a patent therefor. the nomenclature of the right con

changes, of section 85 of the act of By section 86, which is the second ferred by the registration of such July 8. 1870. and section 4948, Resection relating to copyrights, it was prints can make no difference, as it

vised Statutes, which referred alone provided that any citizen of the is clear that the register of copy

to the record kept of copyrights in United States or resident therein rights had nothing to do with such

the Copyright Office, and this section who shall be the author, inventor, prints, that all proceedings relating by its express terms is likewise limdesigner, or proprietor of any thereto were conducted in the Patent

ited to such records and does not (among other things) engraving, office, and that the law under which

relate to records kept of prints encut, print, or photograph, or nega. they were entered was a part of the

tered in the Patent Office. Nor can tive thereof, shall, upon complying laws under which that office

that clause in section 63 of said act with the provisions of this act, have operated. On May 9, 1902 (32 Stat. which provides that 'All laws or the sole liberty of printing, reprint- 193)., Congress passed an act by

parts of laws in conflict with the ing, publishing, completing. copying, which section 4929. Revised Statutes, provisions of this act are hereby executing, finishing, and vending the was amended so as to read: 'Any repealed' have any effect upon the same. It will thus be

that person who has invented any new, registration of prints in the Patent the word 'print' was used in this act original, and ornamental design for Oflice in accordance with the proin connection with both things which an article of manufacture not known Visions of the act of June 18, 1874, might be patented and also those or used by others in this country because that part of said act which subject to copyright, but the distinc- before his invention thereof, and not relates to the registration of prints tion between the two characters of patented or described in any printed in the Patent Office is not in conflict prints was clearly drawn by the publication in this or any foreign with tho provisions of the act of clause in said section 71, which lim-country before his invention thereof,

1909. Furthermore, I do not think ited the prints that might be pat- or more than two years prior to his that the case of Higgins v. Keuffel ented to those which were 'to be application, and not in public use (140 U. S. 428, 11 SCt 731. 35 L. ed. placed on or worked into any ar- or on sale in this country for more 470) wherein the court defines what ticle of manufacture.' In codifying than two years, prior to his appli- | labels and prints are, under the Conthis act section 71 was carried into the Revised

cation, unless the same is proved stitution, registerable in the Patent Statutes, with slight to have been abandoned. may, upon Office, has any bearing upon this verbal changes, as section 4929, in chapter 1 of title 60. which relates

payment of the fees required by law question, as under said decision some solely to patents,

and other due proceedings had the prints may be thus registered, while section 86

in was copied, with slight modifications,

cases of inventions or though intended for use as a label discoveries covered by section forty- or mark upon a manufactured prod

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works connected with the fine arts may be entered with the reproductions. In such cases he has an under the copyright law. Under this statute no election to protect the work either by a copyright labels, even though possessed of artistic merit, can or a design patent;93 but he cannot do both. The be copyrighted, if they are designed to be used for word “designed” in the statute refers to the quality any article of manufacture. But the mere fact of the painting, not to the state of mind or the inthat copies of a painting may be used as labels does tention of the author or owner.

95 Mere labels which not preclude the painting from being the subject simply designate or describe the articles to which of a valid copyright.91 If the work is artistic it is they are attached, and which have no value sepacopyrightable whatever the owner may intend to do rated from the articles, have never been within the uct, and it is such prints that are macher v. Schwencke, 25 Fed. 466, 23 think, entitled to copyright, whatrequired by the act of 1874 to be Blatchf, 373.

ever the applicant may intend to do registered in the Patent Office." 28 [a] Rule applied.-"In Schu- with the reproductions. Whether he Op. Atty.-Gen. (Fowler) 116-120. macher v. Schwencke, 25 Fed. 466, 23 can adequately protect them under

89. Bleistein Donaldson Lith. Blatchf. 373, it was decided that a the copyright law, and still use them Co., 188 U. S. 239, 23 SCt 298, 47 L. painting upon which artistic skill as he may wish, is his affair. His ed. 460 (rev 104 Fed. 993, 44 CCA had been expended was copyrightable common sense will be likely to in296); De Jonge v. Breuker, etc., Co., although it could be readily litho- form him correctly upon this subject. 182 Fed. 150 (aff 191 Fed. 35, 111 CCA graphed and used as an advertising If, however, the painting is obvi jusly 567 (aff 235 V. S. 33, 35 Sct 6, 59 L. label. Judge Coxe's language is as a mere design, lacking in such artised. 113)]. See also supra $ 119, follows: 'It is contended by the de- tic quality as entitles it to be ranked

(a) Rule applied.-"In Rosenbach fendants that the complainant's among the productions of the fine v. Dreyfuss, 2 Fed. 217, the articles painting was designed as a label for arts, copyright may be properly rein question were 'prints of balloons cigar boxes. This, it is said, is evi- fused. And it is not difficult to conand hanging baskets, with printing denced by its size, and by the fact ceive of a third situation in which on them for embroidery, and cutting that copies appear to be advertised the Librarian may well be in doubt lines showing how the paper may in complainant's catalogue of labels. what his decision should be. In that be cut and joined to make the dif- That lithographic copies are applica-event it is probable that he may ferent parts fit together, and not in- ble to this purpose cannot be denied. find it most desirable not to intertended a mere pictorial repre- They may also be used for many fere with the applicant's choice, leavsentation of something'; and it was other purposes. The proof in this ing him to take the consequences of held that they were not copyright-case discloses some of them. But his election. As it seems to me, if able. The act of 1874 was consid- the subject of the copyright is, in applicants understand clearly that ered, and the articles were decided fact, a painting, executed by an ar- they cannot apply for protection of not to be 'pictorial illustrations of tist with pencil and brush, and can one kind and hope to receive protecworks connected with the fine arts,' itself be used only as paintings are tion of the other, they will probably but 'prints or labels designed to be used. The fact that copies may be be very careful to ask for precisely used for other articles of manufac- utilized for advertising purposes what they want." De Jonge y. Breuture.' This being so, they did not does not change the character of the ker, etc., Co., 182 Fed. 150, 152, 154 belong to the fine arts, and could not original. If the painting itself is to [aff 191 Fed. 35, 111 CCA 567 (att be copyrighted, although they might be considered a label because copies 235 U. S. 33, 35 SCt 6, 59 L. ed. be patented under section 4929 of the may be so used, no masterpiece 113)). Revised Statutes.

In Schu- would escape such desecration. It 94. De Jonge v. Breuker, etc., Co., macher v. Wogram, 35 Fed. 210, it will hardly do to call the Sistine 182 Fed. 150 [aff 191 Fed. 35, 111 CCA appeared that the plaintiffs were Madonna or the Aurora labels, be- 567 (aff 235 U. S. 33, 35 SCt 6, 59 L. manufacturers of prints or labels, cause by the sacrilege of modern en- ed. 113)]. selling them for the purpose of being terprise copies of Raphael's Cherubs 95. De Jonge v. Breuker, etc., Co., affixed to cigar boxes and other arti- or Guido's Goddess may be trans- 182 Fed. 150 [aff 191 Fed. 35, 111 CCA cles. They copyrighted a picture rep- ferred to a blacking box or a per- 567 (aff 235 V. S. 33, 35 SCt 6, 59 L. resenting a young woman holding a fumery bottle. Were it contended ed. 113)). bouquet of flowers, entitled 'Nose- that this painting was intended ex- {a}, "Designed" construed.--"The gay.' From this they struck off clusively for a label, or as the first principal defense is that the paintprints, which they sold to dealers in step in making a label, much ing was not the subject of copyright cigars, substituting the words 'Opera stronger

for the defendants at all, but should have been patented Bouquet' (a name descriptive of a would be presented. But such is not under section 4929 of the Revised brand of cigars) in place of the word the fact, and it is clear from the aff- Statutes (U. S. Comp. St. 1901, p. 'Nosegay.' An action was brought to davits that it cannot be established 3398), as a design for an article of restrain infringement of some of by evidence.'" De Jonge v. Breuker, manufacture. In my opinion the testhese prints. Judge Wallace denied etc., Co., 182 Fed. 150, 153 [aff 191 timony does not sustain this defense. a motion for a preliminary injunc- Fed. 24, 111 CCA 567 (aff 235 U. S. Whatever force the argument may tion, saying: 'The facts show an at- 33, 35 Sct 6. 59 L. ed. 113)].

possess, where a painting is obviously tempted evasion by the plaintiffs of 92. De Jonge v. Breuker, etc., Co., a mere design and can be nothing the provisions of section 3 of the act 182 Fed. 150 [aff 191 Fed. 35, 111 CCA else, it is not persuasive where the of Congress of June 18, 1874, "to 567 (aff 235 U. S. 33, 35 SCt 6, 59 painting may with equal propriety amend the law relating to patents, L. ed. 113)).

belong either to the fine or to the trade-marks, and copyrights." That

93.

De Jonge v. Breuker, etc., Co., useful arts. It clearly appears that section declares in substance that no 1.82 Fed. 150 [aff 191 Fed. 35, 111 the painting now in question is artisprints or labels designed to be used CCA 567 (aff 235 U. S. 33, 35 SCt 6, tic in thought and execution, and it for any article of manufacture can 59 L. ed. 113)].

was therefore entitled to protection be copyrighted, but authorizes them [a] Election between copyright by a copyright, if a copyright was to be registered and protected as and patent.-"Since it was qualified desired. It appears just as clearly trade-marks in proper cases. If the for admission into the two statutory that neither the artist nor his patron experiment of the plaintiffs can suc- classes, I see no reason why it might intended to reproduce the painting as ceed, this statute is inoperative not be placed in either. But it could such a work of art is ordinarily rewhenever the prints or labels contain not enter both. The method of pro- produced, but intended to multiply it a pictorial illustration; and it could cedure, the term of protection, and a design for a fancy paper to be wholly nullified by the device of the penalties for infringement, are cover boxes and other articles for printing pictures on labels. The case so different that the author or owner the holiday season. Nevertheless, of Schumacher v. Schwencke, 25 Fed. of the painting that is eligible for when the painting left the artist's 466, 23 Blatchf. 373, is distinguish- both classes must decide to which hand, it was of such a character as able from the present, because in region of intellectual effort the work made it eligible either for copyright that case the court found that the is to be assigned, and he must abide or for patenting, at the option of picture copyrighted was not made to by the decision. Ordinarily, of the author or owner. As it seems be used for labels.'" De Jonge v. course, there is no difficulty. Not to me, Act June 18, 1874, c. 301, 18 Breuker, etc., Co., 182 Fed. 150. 152. many paintings are suitable for use Stat. 78 (U. S. Comp. St. 1901, p. 153 [aff 191 Fed. 35, 111 CCA 567 (aff as designs, and only a few designs 3411), did not forbid it to be copy235 U. S. 33, 35 SCt 6. 59 L. ed. possess the qualities demanded by righted. A reproduction would cer113)).

the fine arts. But it is easily con- tainly not be a 'label,' and, while no 90. Bleistein v. Donaldson Lith. ceivable that here and there a paint-doubt it might be a 'print, and might Co., 188 U. S. 239, 23 SCt 298, 47 L. ing may be eligible for either class, with propriety be regarded as 'de. ed. 460 [rev 104 Fed. 993, 44 CCA and the water color in question is, signed to be used for (an) article of 296); Stecher Lith. Co. v. Dunston I think, an excellent example. Such manufacture,' it could with equal Lith. Co., 233 Fed. 601; Schumacher a work may be used in both the fine propriety be described as a 'pictorial v. Wogram, 35 Fed. 210.

and the useful arts; but it can have illustration or work connected with 91. Stecher Lith, Co. v. Dunston protection in only one of these the fine arts'-quite as accurately as Lith. Co., 233 Fed. 601; De Jonge v. classes. The author or owner is the circus posters that Breuker, etc., Co.. 182 Fed. 150 [aff | driven to his election, and must classified in Bleistein v. Donaldson 191 Fed. 35, 111 CCA 567 (aft 235 U. stand by his choice.

If a Lith. Co., 188 U. S. 239, 23 Sct 298, S. 33, 35 SCt 6, 59 L. ed. 113)]; Schu- 1 painting is obviously artistic, it is, i 47 L. ed. 460-and therefore it could

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protection of the copyright law.98 Chromos as dis- power to regulate interstate and foreign commerce, tinguished from prints and labels may be entered congress has provided for the registration of tradeunder the copyright law, and need not be registered marks in the patent office.? in the patent office, even when adapted and in- [ 0 143] 29. Title of Work.: Titles consisting of tended for use as labels on articles of commerce. 98 common words and lacking originality are clearly

[ 0 142] 28. Trade-Marks. Trade-marks are not not protected by copyright. Where the title of a copyrightable,99 and it is beyond the constitutional copyrighted production is the original production of power of congress to make them so. But under its the author's mind, probably the courts in protecting not be definitely assigned for the should have the sole liberty of vend- articles and for plays, more than present purpose either to the fine or ing the same. Section 3 of the act | forty years ago. Stringer v. Frohto the useful arts, until the author of 1874, which seems not to have man, 152 NYS 935. (2) Such words or the owner decided under which heen repealed by the act of 1905, pro- as “Charity," "Faith," and the like statute he would protect his prop- vides that in construing the acts the cannot be appropriated as the title of erty. It is, I think, difficult to see words 'engraving,' 'cut,' and 'print' a copyrighted work and receive the how a painting that may be either shall be applied only to pictorial protection of the copyright. Isaacs copyrighted or patented can be said illustrations or works of the fine v. Daly, 39 N. Y. Super. 511. (3) Nor to be designed for one rather than arts, and that 'no prints or labels can a hackneyed phrase like "Splenfor the other form of protection until designed to be used for any other did Misery' be protected by copythe author or owner makes his final articles of manufacture shall be en- right. Dicks v. Yates, 18 Ch. D. 76. choice. Up to that time he may do tered under the copyright law, but (4) Where the words "Post Office Diwhat he pleases with his property. may, be registered in the Patent Of- rectory' had been used by plaintiff If he chooses to copyright it as a fice.' Upon carefully reading such as the title of a copyrighted work, an work of art, he may do so; if he provisions I am of the opinion that injunction restraining defendants prefers to patent it as a design, he section 4952 makes a clear distinc- from using these words as a part of is free to do this also; and the mere tion between chromos and engrav- their directory was refused. Kelly v. fact that he originally intended to ings, cuts, and prints, and as section Byles, 13 Ch. D. 682. (5) The mere take one of these courses rather than 3 plainly omits chromos they do not taking of a title consisting of two the other does not prevent him from come under the provision relating to ordinary words of the English lanchanging his purpose at the last mo- registration in the Patent Office. In guage, such

Castle Album, ment. His state of mind upon this making the distinction Congress no would not he

an infringement of matter has nothing to do with the doubt had in mind the ordinary defi- copyright. Schove v. Schmincke, 33 quality of the painting; and it is this nition of the word 'chromo'

or

Ch. D. 546. quality, and not the intention of the chromo-lithograph,' as a picture pro- [b] Common phrase with special author or owner, that determines duced from drawings on stones; each meaning.-"The plaintiff, in the year what protection may be given to the color being represented by a different | 1911, wrote an original comedy, enartist's work." De Jonge v. Breuker, stone. This view I think finds sup- titled 'Where There's a Will There's etc., Co., 182 Fed. 150, 151 [aff 191 port in Hills V. Austrich, 120 Fed. a Way.' The plot dealt with the Fed. 35, 111 CCA 567 (aff 235 U. S. 862, and in Hills v. Hoover, 136 Fed. question of a testament, and the 33, 35 SCt 6, 59 L. ed. 113)].

701, wherein Judge Lacombe, and word 'will' in the title was used in 96. Higgins v. Keuffel, 140 U. S. latér Judge Holland, recognized the the sense of testament. In Novem428, 431, 11 SCt 731, 35 L. ed. 470 distinction between pictures pro- ber, 1912, the defendant presented at (aff 30 Fed. 627]; Stecher Lith. Co. duced from drawings on stones and the Criterion Theatre a play, entitled v. Dunston Lith. Co., 233 Fed. 601; pictures made from metal plates." | 'Where There's a Will

The De Jonge v. Breuker, etc., Co., 182 Stecher Lith, Co. v. Dunston Lith. word 'will' in the defendant's play Fed. 150 [aff 191 Fed. 35, 111 CCA Co., 233 Fed. 601, 602.

had the same double meaning as in 567 (aff 235 U. S. 33, 35 SCt 6, 59 L. 98. Stecher Lith. Co. v. Dunston

the plaintiff's. Warrington, J., said ed. 113)); Royal Sales Co. v. Gaynor, Lith. Co., 233 Fed. 601; Hutchings v. the suggestion of the plaintiff was 164 Fed. 207 (monogram and cam- Sheard, (1881] W. N. 20.

that her title, the familiar proverb, paign badge); Schumacher v. Wog- [a] Rule applied.-"The plaintiff's had in reference to the plot of the ram, 35 Fed. 210; Coffeen v. Brunton, chromo in the present case is not a play a peculiar meaning--namely, 5 F. Cas. No. 2,946, 4 McLean 516; mere engraving or print of any arti- that the word 'will' did not mean an Marsh Warren, 16 F. Cas. No. cle which the complainant offers for act of volition, but a testamentary 9,121, 14 Blatchf. 263; Scoville v. To- sale. It is a work of the imagination, disposition. She claimed that hers land, 21 F. Cas. No. 12,553; Marget- and has such obvious artistic quali- was an original title, and said that son v. Wright, 2 De G. & Sm. 420, 64 ties as, in my judgment, render it in the defendant's title, having reReprint 188; Griffin v. Kingston, etc., fairly a subject of copyright, without gard to the plot, the word 'will had R. Co., 17 Ont. 660, 665.

regard to the use which the plaintiff the same meaning as in hers. She "To be entitled to a copyright the has made or may intend to make of did not complain of the play itself. article must have by itself some it. Where the work in question is All that she said was that the title value as a composition, at least to clearly one of artistic merit, it is not was a material part of the play, that the extent of serving some purpose material, in my judgment, whether there was originality in the title, and other than as a mere advertisement the person claiming a copyright ex- that she was entitled to restrain inor designation of the subject to pects to obtain his reward directly fringement. There was no satisfacwhich it is attached." Higgins v. through a sale of the copies, or in- tory decision in favour of the conKeuffel, supra.

directly through

increase of

tention that there was copyright in [a] Reason for rule.-"A label on profits in his business to be obtained the title of a book by itself, but a box of fruit giving its name as through their gratuitous distribu- there was plenty of authority for 'grapes,' even with the addition of tion." Yuengling v. Schile, 12 Fed. saying, that if there was copyright, adjectives characterizing their qual- 97, 100, 20 Blatchf. 452 [quot De the title must be such as to be of ity as 'black,' or 'white,' or 'sweet,' Jonge v. Breuker, etc., Co., 182 Fed.

an original and peculiar nature. In or indicating the place of their 150, 153 (aff 191 Fed. 35, 111 CCA

the case of Dick v. Yates, 18 Ch. D. growth, as

Malaga or California, 567, and aff235 U. S. 33, 35 SCt 6, 76, it was pointed out that there does not come within the object of 59 L. ed. 113)].

could be no copyright in such comthe clause. The use of such labels

U. S. v. Steffens, 100 U. S. 82, mon words as 'splendid misery. The upon those articles has no connection 25 L. ed. 550.

words of the title of the plaintiff's with the progress of science and the "Trade-marks

not be copy-play were a familiar proverb, and useful arts.

So a label designating righted nor registered in the Copy-words which were at some time or ink in a bottle as 'black,' 'blue,' or right Office." Rules and Regulations other in everybody's mouth. Could ‘red,' or 'indelible,' or 'insoluble,' or for Registration of Claims to Copy- the plaintiff appropriate such words as possessing any other quality, has right (Copyright Office Bul. No. 15) to herself by giving them the pecunothing to do with such progress. rule 18 (m).

liar meaning which she said they It cannot, therefore, be held by any

1. U. S. v. Steffens, 100 U. S. 82, bore in this play? In his opinion, if reasonable argument that the pro25 L. ed. 550.

there could be copyright in the title tection of mere labels is within the 2. See Trade-Marks, Trade-Names, of a play, there could not be in this purpose of the clause in question.” and Unfair Competition [38 Cyc 854 case, where the title consisted of a Higgins v. Keuffel, 140 U. S. 428, 431, et segl.

hackneyed proverb.” Broad v. Meyer, 11 SCt 731, 35 L. ed. 470 [aff 30 Fed. 3. Common-law rights in title see 57 Sol. J. 145. 627). supra $ 23.

5. Benn v. Leclercq, 3 F. Cas. No. 97. Stecher Lith. Co. v. Dunston Infringement of title see infra & | 1,308; Isaacs v. Daly, 39 N. Y. Super. Lith. Co., 233 Fed. 601. 275.

511; Dicks V. Yates, 18 Ch. D. 76. (a) chromos not within act of 4. Stringer v. Frohman, 152 NYS [a] Title of drama.—A person 1874. The copyrights in question 935; Dicks v. Yates, 18 Ch. D. 76; who deposits in the copyright office were obtained in the year 1908 under Broemel v. Meyer, 29 T. L. R. 148. the title of a drama, which title iş the act of 1905, which amended sec

[a] Rule applied.-(1) The author not original with himself, cannot setion 4952, and subsequently provided of a copyrighted story published in cure such title to the exclusion of that the proprietor of any engrav

magazine and book form cannot en- others who have applied such title ing, cut, print, or photograph, or join use of the title for a play not to a dramatic composition founded on negative thereof, or of a painting, connected with the story, where it the same story before the date of drawing, or chromo, intended to be appears that the same title has been such deposit. Benn v. Leclercq. 3 F. perfected as works of the fine arts,

frequently used before for magazine Cas. No. 1,308.

V.

an

99.

can

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