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75

be copyrighted." This rule has been applied to mere trade catalogues,72 price lists,73 and advertising cards. If, however, the value of a work is not confined to its character as an advertisement, but if it has also any appreciable literary or artistic value, the mere fact that it is designed and used for advertising purposes does not prevent it from being the subject of a valid copyright. A picture is none the less a picture and none the less a subject of copyright because it is or may be used for an advertisement.76 Copyright may be acquired in an advertising catalogue which contains original matter, the product of intellectual labor on the part of the author or designer." It is perhaps impossible to reconcile all the decisions on this subject." It has been denied that any literary or artistic merit

a photograph hasing a daily "price-current" not been dedicated to the public by pub- copyrightable); Mutual Adv. Co. v. lication, it cannot be reclaimed and Refo, 79 Off. Gaz. (U. S.) 159; Hotbe made a proper subject of copy- ten v. Arthur, 1 Hem. & M. 603, 71 right by making changes in the nega- Reprint 264. tive by means of etching, if the changes are merely colorable and not made in good faith for the purpose of producing a new work of art. Snow v. Laird, 98 Fed. 813, 39 CCA 311.

66. Mifflin v. Dutton, 190 U. S. 265, 23 SCt 771, 47 L. ed. 1043 [aff 112 Fed. 1004, 50 CCA 661, 61 LRA 134]; Mifflin v. R. H. White Co., 190 U. S. 260, 23 SCt 769, 47 L. ed. 1040 [aff 112 Fed. 1004, 50 CCA 661, 61 LRA 134 (aff 107 Fed. 708)]; Holmes v. Hurst, 174 U. S. 82. 19 SCt 606, 43 L. ed. 904; West Pub. Co. v. Edward Thompson Co., 176 Fed. 833, 100 CCA 303.

67. Cary v. Longman, 1 East 358, 102 Reprint 138, 7 ERC 78. 68. Gray v. Russell, 10 F. Cas. No. 5,728, i Story 11: Sweet v. Cater, 11 Sim. 572, 34 EngCh 572, 59 Reprint 994; Tonson V. Walker, 3 Swanst. 672, 36 Reprint 1017.

69. Act March 4, 1909 (35 U. S. St. at L. 1075 c 320 § 6).

70. See supra § 91. Abridgments as infringements see infra 304.

Infringement generally see infra §§ 263-335.

71. Meccano v. Wagner, 234 Fed. 912; Stone v. Dugan Piano Co., 220 Fed. 837, 136 CCA 583; J. L. Mott Iron Works v. Clow, 82 Fed. 316, 27 CCA 250; Cobbett v. Woodward, L. R. 14 Eq. 407 [overr Maple v. Junior Army, etc., Stores, 21 Ch. D. 369]; Lamb v. Evans, 67 L. T. Rep. N. S. 523. See also Lamb v. Grand Rapids School Furniture Co., 39 Fed. 474; Collender v. Griffith, 6 F. Cas. No. 3,000, 11 Blatchf. 212 (both cases sometimes cited in support of this rule, but both really only holding that there was no infringement).

"It is uniformly held that advertisements possessing no literary or artistic qualities are not the subject of a copyright." Barnes V. Miner, 122 Fed. 480, 493.

[a] A mere illustrated price catalogue, with pictures of wares offered for sale, and containing letterpress which is confined to a statement of dimensions and prices and is of no literary merit, is not within the protection of the copyright statute. J. L. Mott Iron Works v. Clow, 82 Fed. 316, 27 CCA 250 [aff_72_Fed. 168]; Cobbett v. Woodward, L. R. 14 Eq. 407.

74. Ehret v. Pierce, 10 Fed. 553, 18 Blatchf. 302 [dist Yuengling v. Schile, 12 Fed. 971 (a particular advertising card held not copyrightable as a "print"); Griffin v. Kingston, etc., R. Co., 17 Ont. 660.

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78

"paste and scissors work" will give me all I want,' could it be denied that he would have a right to come here to prevent this unremunerated use of his labour. Let us suppose that Dr. Waagen, or anyone else, had published an interesting description of the paintings to be found in some private gallery, not merely giving the names of the pictures and their painters (though even that would evince some mental exertion deserving protection), but giving a slight history of, and criticism upon, each painting after the manner of this catalogue before me, I cannot conceive that it could be argued for a moment that the owner of the pictures would have the smallest right to copy this description." Hotten V. Arthur, 1 Hem. & M. 603, 607, 71 Reprint 264.

76. Bleistein v. Donaldson Lith. Co., 188 U. S. 239, 23 SCt 298, 47 L. ed. 460 [rev 104 Fed. 993, 44 CCA 296]; McCarthy v. Adler, 227 Fed.

Kaufman, 189 Fed. 215.

75. Meccano v. Wagner, 234 Fed. 912; Stecher Lith. Co. v. Dunston Lith. Co., 233 Fed. 601; Yuengling v. Schile, 12 Fed. 97, 20 Blatchf. 452 (where a chromolithograph which, | 630; National Cloak, etc., Co. v. although used by plaintiff as an advertisement, possessed evident artistic merit, was said to be the subject of copyright); Hotten v. Arthur, 1 Hem. & M. 603, 71 Reprint 264 (a catalogue of a bookseller not consisting of a mere list of dry names, but giving information as to the several items).

"I cannot conceive on what principle it is supposed that there is no copyright in a catalogue such as this. This is not a mere dry list of names, like a postal directory, Court guide, or anything of that sort, which must be substantially the same by whatever number of persons issued and however independently compiled. This is a case of a bookseller who issues an account of his stock, containing short descriptions of the contents of the books, calculated to interest either the general public or the persons who may take an interest in the questions treated of by particular books. For example:-Suppose one of the books to be a History of Cheshire; then he gives you a slight account of it, from which it appears that it contains a number of anecdotes respecting county families and other things of that nature; it might well be that persons who did not previously know anything of the work would be guided by the description and induced to purchase the work. There is another point of view in which this case appears to me to be even clearer. Suppose the case of a professional writer (there may well be such), whose peculiar department it is to make out 'Cata

"In this connection, it may be admitted ex gratia argumenti, without being decided, that some form of advertisements, such as characteristic advertisements, come within the protection of the law. But said Judge Jenkins, speaking for the Circuit Court of Appeals in Mott Iron-Works v. Clow, 82 Fed. 316, 27 CCA 250: 'So far as the decisions of the Supreme Court have gone, we think they hold to the proposition that mere advertisements, whether by letterpress or by pictures, are not within the protection of the copy-logue Raisonnées' of this kind, and right laws.' Stone v. Dugan Piano Co.. 220 Fed. 837, 841. 136 CCA 583. Literary and artistic merit see generally supra § 98.

72. J. L. Mott Iron Works V. Clow, 82 Fed. 316. 27 CCA 250. See also infra note 77.

to write such abstracts of the noticeable points in the various books of the catalogue as we have here. A man who is an author for this purpose would naturally expect that the very fact that he had printed such notes for one publisher would 73. J. L. Mott Iron Works V. lead to his employment for a simClow. 82 Fed. 316. 27 CCA 250 [aff ilar purpose by another. Suppose 72 Fed. 1681; Clayton v. Stone, 5 now this other to say to him. 'I F. Cas. No. 2,872, 2 Paine 382 (hold-have no occasion for your services,

[a] A chromo, if a meritorious work of art, may be copyrighted, although designed and used for gratuitous distribution as an advertisement for the purpose of attracting business. Yuengling v. Schile, 12 Fed. 97, 20 Blatchf. 452.

[b] Size of painting-The fact that a painting is only seven by four and one-half inches in size, and could be readily lithographed and used as an advertising label, will not affect the copyright. Schumacher V. Schwencke, 25 Fed. 466, 23 Blatchf.

373.

77. Lawrence v. Cupples, 15 F. Cas. No. 8,135; Davis v. Benjamin, [1906] 2 Ch. 491 (per Swinfen Eady, J.); Lamb v. Evans, [1892] 3 Ch. 462 [app dism [1893] 1 Ch. 218] (classified trade directory); Maple V. Junior Army, etc., Stores, 21 Ch. D. 369 [overr Cobbett v. Woodward, L. R. 14 Eq. 407]; Grace v. Newman, L. R. 19 Eq. 624, 7 ERC 86; Hogg v. Scott, L. R. 18 Eq. 444; Bogue v. Houlston, 5 De G. & Sm. 267, 64 Reprint 1111; Hotten v. Arthur. 1 Hem. & M. 603, 71 Reprint 264; Wilkens v. Aikin, 17 Ves. Jr. 422, 34 Reprint 163.

[a] English cases must be received with caution on this point, as they were decided under a statute giving copyright in "books," and defining "book" to include a sheet of letterpress. See supra § 101. They were not affected by any limitation as to authorship and utility such as are imposed by the federal constitution in this country. See supra § 85.

78. Stone v. Dugan Piano Co., 210 Fed. 399. 400 [aff 220 Fed. 837, 136 CCA 5831.

"As to whether advertisements may be copyrighted, there are cases both ways." Stone v. Dugan Piano Co., supra.

[a] Illustration.-"In Cobbett v. Woodward, L. R. 14 Eq. 407, decided in 1872. an upholsterer published an illustrated catalogue containing engravings of the articles of furniture he offered for sale, with re

79

[§ 140

is necessary, and the validity of a copyright in a business circular,80 and a catalogue or mere list of advertisements and hence not copyrightable. Orarticles for sale,81 has been sustained. Pictorial dinary circus posters may be copyrighted.84 A illustrations or cuts of articles offered for sale conmanual instructing how to use a mechanical toy stituting or contained in advertisements or cataprepared for children, which was more than a mere logues have been held copyrightable and protected advertisement, being a guide to the combinations against piracy,82 although other cases have denied which children might form with the toy, and exthem protection on the ground that they were mere plaining many principles of mechanics, may be copymarks of description. tion was denied, Lord Romilly asThe injunc- | said by Mr. Justice Bradley in Baker | held to be a proper subject of copyrighted.85 serting: 'I know of no law which, 841: v. Selden, 101 U. S. 99, 25 L. ed. right. while it would not prevent the sec"There is a clear distinction 97, 20 Blatchf. 452 [dist Ehret v. ond advertiser from between the book as such and the Pierce, 10 Fed. 553, 18 Blatchf. 302, Yuengling v. Schile, 12 Fed. same article, would prevent him selling the article which it is intended to illusfrom using the same advertisement, lustration; of the other it is the use trate. provided he did not in such adverThe object of the one is ilon the ground that the copyrighted article in that case was not a work tisement, by any device, suggest that by copyright, the latter by patent.' ing. thereof. The former may be secured he of art and had no value as such, was selling the works and de- The complainant does not claim to signs of the first advertiser.' and was merely a mode of advertisIn Maple In the principal case, Brown, V. Junior Army, etc., sale of the wearing apparel depicted nation, monopolize Stores, 21 Ch. D. the manufacture D. J., held that the chromo of Gam369, decided in by reason of its copyright. It does, tistic qualities as in his judgment brinus 1882, the court flatly overruled Cob- however, claim the right thereby to was a work of the imagibett v. Woodward, supra, and held and had such obvious arthat such a book or catalogue as is propriating its exclusive property in which plaintiff may have made, or prevent others from copying and ap-right in question here was the subject of to render it fairly a subject of copyprotection under the laws of Eng- titled by reason such pictures and to this it is en- might have intended to make, of it]. without regard land." to the use J. L. Mott Iron Works v. Clow, 82 Fed. 316, 319, 320, 27 CCA which appears of its copyright 250. to tional Cloak, etc., Co. v. Kaufman, be valid." J. L. Mott Iron Works v. Clow, Na- 82 Fed. 316, 27 CCA 250; Land v. 189 Fed. 215, 219. Grand Rapids School Furniture Co., 39 Fed. 474; Corbett v. Woodward, L. R. 14 Eq. 407 (overruled by later See supra note 81).

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79. Collis v. Cater, 78 L. T. Rep. N. S. 613; Church v. Linton, 25 Ont. 131. See also supra § 98.

V.

"It makes no difference that the pictures in suit are intended for advertising articles of commerce. jonge v. Breuker, etc., Co., 182 Fed. De150 [aff 235 U. S. 33, 35 SCt 6, 59 L. ed. 113], or that they possessed little artistic merit. Donaldson Lith. Co., 188 U. S. 239, Bleistein 23 SCt 298, 47 L. ed. 460. enough that the evidence shows that It is the pictures in their details, design, and combination of lines and colors originated with the complainant and are in fact pictorial illustrations or works connected with the fine arts." Stacher Lith. Co. v. Dunston Lith. Co., 233 Fed. 601, 603.

80. Lamb v. Evans, [1893] 1 Ch. 218 (arrangement and headings of a page of newspaper advertisements); Grace v. Newman, L. R. 19 Eq. 623, 7 ERC 86; Church v. Linton, 25 Ont. 131.

81. National Cloak, etc., Co. v. Kaufman, 189 Fed. 215; Da Prato Statuary Co. v. Co., 189 Fed. 90; Davis v. Benjamin. Giuliani Statuary [1906] 2 Ch. 491; Maple v. Junior Army, etc., Stores, [overr Cobbett v. Woodward, L. R. 21 Ch. D. 369 14 Eq. 407]; Grace v. Newman, L. R. 19 Eq. 623, 7 ERC 86; Hotten v. Arthur, 1 Hem. & M. 603, 71 Reprint 264; Collis v. Cater, 78 L. T. Rep. N. S. 613 (where North, J., said that such lists could not be distinguished in principle from directories).

V.

82. Meccano v. Wagner, 234 Fed. 912; J. H. White Mfg. Co. v. Shapiro, 227 Fed. 957; National Cloak, etc., Co. v. Standard Mail Order Co., 191 Fed. 528; National Cloak, Kaufman, 189 Fed. 215; Da Prato etc., Co. V. Statuary Co. Co., 189 Fed. 90; Davis v. Benjamin, Giuliani Statuary [1906] 2 Ch. 491; Maple v. Junior Army, etc., Stores, 21 Ch. D. 369; Grace v. Newman, L. R. 19 Eq. 623, 7 ERC 86 (where it was held that a book of pictures of sepulchral monuments, collected and made for a cemetery man, to be shown to customers ordering a the monument, proper subject of copyright); Collis v. Cater, 78 L. T. Rep. N. S. 613; Slingsby v. Bradford Patent

was

Truck, etc., Co., [1905] W. N. 122 (where an illustrated catalogue was treated as copyrightable, but denied protection on the ground that it contained fraudulent representation). "The fallacy in the argument that the complainant cannot 'productions of the industrial arts' copyright lies in the confusion of the pictures with the things they depict in a particular way; that is, the wearing apparel which appears in the illustration as part of the pictures.

and

SO

no

[a] Fashion pictures.-"The illus-
trations which the defendant is al-
plainant's copyrighted book are
leged to have copied from the com-
called pictorial illustrations,
pictures of ladies attired in the la-
being
test or up-to-date styles, depicting
by information concerning the ma-
the fashions in dress, supplemented
terials which the complainant offers
to make up in accordance therewith,
and the prices at which it will do so.
copyrightable
Are these SO called illustrations
component
the complainant's book?
parts of
contention of the defendant that if
The
a picture has no other use than that
value aside from this function, it
of a
mere advertisement, and
ful arts within the meaning of the
would not be promotive of the use-
the author to protection in the ex-
constitutional provisions entitling
clusive use thereof, was denied in
Bleistein v. Donaldson Lith. Co., 188
U. S. 239, 23 SCt 298, 47 L. ed. 460,
the court saying that 'a picture is
none the less a picture and none the
less a subject of copyright that it
complainant's pictures
is used for an advertisement.' The
tions are more than mere advertise-
or illustra-
ments of wearing apparel. They are,
pictures, having value as composi-
on their face, exceptionally excellent
tions.

embodying the personal reaction of
artists of recognized skill in their
They are no doubt the work
calling, and, furthermore, admittedly,
aside from their artistic merit as
productions of peculiar value, they
portray original
creations relating to wearing apparel
conceptions and
their details, designs and
of great interest to a large portion
of the public. In their ensemble,
thing that appeals to the taste of
particulars they contain the some-
general
an admiring public.
cret portrayed by the artist differ-
It is this se-
ing from other pictures of this kind
apparently caught the eye of the de-
in which lies their value and which
fendant and furnishes
for protecting the fruits of the ar-
the reason
tist's labors by copyright."
tional Cloak, etc., Co. v. Kaufman,
Na-
189 Fed. 215, 217, 218.
[b] Pictures of statuary offered
for sale are
Prato Statuary Co. v. Giuliani Statu-
copyrightable. Da
ary Co.. 189 Fed. 90 [dist J. L. Mott
CCA 250, on the ground of differ-
Iron Works v. Clow, 82 Fed. 316, 27
ence in character
picted].
of objects de-

nus and his followers," intended as
[c] A chromo entitled "Gambri-
and designed and circulated as
a glorification of lager beer drinking,
advertisement of
As business as a lager beer brewer, was
the publisher's

an

83.

cases.

[a] Plumbing supplies.-A price catalogue constituting a volume containing illustrations of wares offered for sale, such as washbowls, bathtubs, foot baths, etc., which articles are without ornamentation, and cannot well be the subject of artistic treatment, is not the proper subject of a copyright, the letterpress being confined to a statement of dimensions and price. Works v. Clow, 82 Fed. 316, 27 CCA J. L. Mott Iron 250 [aff 72 Fed. 168]. Co., 188 U. S. 239, 23 SCt 298, 47 84. Bleistein V. Donaldson Lith. L. ed. 460 [rev 104 Fed. 993, 44 CCA 296]; Hegeman v. Springer, 110 Fed. 374, 49 CCA 86 [aff 189 U. S. 505, 23 SCt 849, 47 L. ed. 921] (theatrical lithographs advertising the "Black Crook").

[a] ballet, a number of persons performChromolithographic tisements of a circus, portraying a advering on bicycles, and groups of men and women whitened to represent statues, are proper subjects of copyright, under U. S. Rev. St. § 4952, as amended by the Act of June 18, 1874 (18 U. S. St. at L. 78 c § 3). as "pictorial 301 illustrations," even assuming that only such illustrations as are "connected with the fine arts" are within the protection of such laws. son Lith. Co., 188 U. S. 239, 23 SCt Bleistein v. Donald298, 47 L. ed. 460 [rev 104 Fed. 993, 44 CCA 296].

85.

316,

rethe

Meccano v. Wagner, 234 Fed. 912. [a] Manual of instructions for use with article sold.-"Whether or not complainant's Manual may be properly the subject of copyright may be determined by the test laid down by Judge Jenkins in J. L. Mott Iron Works v. Clow, 82 Fed. 27 CCA 250, in which he says, ferring to certain decisions of Supreme Court: "The result of these decisions would seem to place this provision under consideration: That construction upon the constitutional only such writings and discoveries are included as are the result of inings" may be liberally construed to tellectual labor; that the term "writinclude designs for engraving and prints that founded in the creative powers of are original, and are the mind, the fruits of intellectual labor copyright, the article must have, by that, to be entitled to a position, at least to the extent and of itself, some value as a comserving some purpose other than as of a mere advertisement or designation the subject to which it is attached.' When this, together with other statements in the opinion,

of

, same title, page and note number

[141] 27. Labels and Prints for Manufactured Articles. By specific provisions of the act of 1874,86 which was not repealed by the Copyright Act of 1909, and is still in force,87 no prints or labels designed to be used for any other articles of manufac

applied to complainant's Manual, it cannot be successfully denied that complainant's Manuals were properly copyrighted. Aside from the attractiveness of the designs themselves. it is certain that much thought and labor must have been given to their construction. They are more than an advertisement of complainant's wares. They instruct the purchaser how to use the strips of metal and wheels and nuts and angles and plates, without which even a particularly bright boy would not be able himself to think out the many models set forth. It can scarcely be doubted, too, that in constructing models based on the illustrations, many mechanical devices, of which he would otherwise have no knowledge, are brought to his mind, and many principles of mechanics imparted to him." Meccano v. Wagner, 234 Fed. 912, 921.

86. Act June 18, 1874 (18 U. S. St. at L. 78 c 301 § 3).

87. Stecher Lith. Co. v. Dunston Lith. Co., 233 Fed. 601; 28 Op. Atty.Gen. (Fowler) 116.

[a] Duty of patent office to register prints. The Copyright Act of March 4, 1909 (35 U. S. St. at L. 1075), did not relieve the patent office of its duty, and it is still required to register all prints which have heretofore been registered therein under the act of June 18, 1874 (18 U. S. St. at L. 78), and in the same manner as they have heretofore been registered. 28 Op. Atty.Gen. (Fowler) 116.

88. Stecher Lith. Co. v. Dunston Lith. Co., 233 Fed. 601.

88

ture shall be entered under the copyright law, but
they may be registered in the patent office in con-
formity with the regulations provided by law as to
copyright of prints. Only such cuts, prints, and
engravings as constitute pictorial illustrations or
eight hundred and eighty-six, ob-
tain a patent therefor.' As I un-
derstand, the Patent Office construed
this amendment to apply solely to
the second class of patents above
described, and held that it did not
affect the registration in that office
of artistic prints to be placed on
This con-
articles of manufacture.
struction was, in my opinion, cor-
rect, inasmuch as the act of July 18,
1874, was not incorporated in the
Revised Statutes, they being only a
codification of the laws enacted on
or before December 1, 1873 (sec.
5601), and consequently said act of
1874 was not repealed by the amend-
ment of May 9, 1902. With the law
in this condition, the act of March
4. 1909 (35 Stat. 1075), entitled 'An
act to amend and consolidate the
acts respecting copyrights.' was
passed. The caption of this act
clearly indicates that it was in-
tended to relate solely to the subject
of copyrights, and it was not in-
tended to in any respect amend or
affect the laws then existing relat-
ing to the registration of prints and
labels in the Patent Office, and there
is nothing in the body of the act
which is in the least inconsistent
with the caption. The words 'prints'
and pictorial illustrations,' used in
clause (k), section 5, of said act,
relate solely to prints and illustra-
tions which were embraced in sec-
tion 4952, Revised Statutes, and
which may be copyrighted; and it
does not follow that because no ref-
erence is therein made to prints or
labels which are to be used for any
other articles of manufacture such
prints or labels can not be regis-
tered in the Patent Office precisely
as could have been done previous to
this act.
And, in ad-
My attention is called to
section 47 of said act. whereby it
is provided that all records and other
things relating to copyrights, re-
quired by law to be preserved, shall
be kept and preserved in the Copy-
right Office, Library of Congress,
District of Columbia, and shall be
under the control of the register of
copyrights, who shall, under the di-
rection and supervision of the Li-
brarian of Congress, perform all the
duties relating to the registration of
Copyrights; and it is suggested that
by this section the previous laws re-
lating to the registration of prints
so modified as to require all
prints to be registered by the regis-
ter of copyrights. However, this sec-
tion is but a copy, with few verbal
changes, of section 85 of the act of
July 8. 1870, and section 4948, Re-
vised Statutes, which referred alone
to the record kept of copyrights in
the Copyright Office, and this section
by its express terms is likewise lim-
ited to such records and does not
relate to records kept of prints en-
tered in the Patent Office. Nor can
that clause in section 63 of said act
which provides that 'All laws or
parts of laws in conflict with the
provisions of this act are hereby
repealed' have any effect upon the
registration of prints in the Patent
Office in accordance with the pro-
visions of the act of June 18, 1874.
because that part of said act which
relates to the registration of prints
in the Patent Office is not in conflict
with the provisions of the act of
1909. Furthermore, I do not think
that the case of Higgins v. Keuffel
(140 U. S. 428. 11 SCt 731. 35 L. ed.
470) wherein the court defines what
labels and prints are, under the Con-
stitution, registerable in the Patent
Office, has any bearing upon this
question, as under said decision some
prints
may be thus registered,
though intended for use as a label
or mark upon a manufactured prod-

as section 4962, in chapter 3 of said | title, which relates solely to copyrights, and thus the distinction between the two characters of prints was preserved with equal clearness in the Revised Statutes. By the act of June 18, 1874 (18 Stat. 78), Congress amended the law relating to patents, trade-marks, and copyrights by, in section 1 thereof, providing that no person shall-'maintain an action for infringement of his copyright unless he shall give notice thereof for a print, cut, engraving by inscribing upon some visible portion thereof,' certain statements therein set forth, and by the third section it was provided that in the construction of the act the words-'engraving, cut and print shall be applied only to pictorial illustrations or works connected with the fine arts, and no prints or labels designed to be used for any other articles of manufacture shall be entered under the copyright law, but may be registered in the Patent Office;' and the Commissioner of Patents was charged with the supervision and control of the entry or registry of such prints or labels, in compliance with such regulations as applied to the registry of copyrights, except that a fee of $6 was to be paid instead of $1 provided for registering a copyright. Under the provisions of these two statutes, as interpreted by the Commissioner of Patents, two classes of patents were granted, one for inventions in an art, for a machine, a manufacture, or composition of matter, or any improvement thereon, and [a] Construction of statute by the other for ornamental designs attorney-general.-"By the act of placed upon or worked into and July 8, 1870 (16 Stat. 198), as ap- forming an inseparable part of arpears from the caption of said act. ticles of manufacture. Congress revised, consolidated, and dition to these, the Commissioner of amended the statutes then existing Patents entered for registration, 'in relating to patents and copyrights. conformity with the regulations proThe first 76 sections of this statute vided by law as to copyright of related exclusively to patents, while prints,' artistic prints which describe sections 85 to 110 related to copy- the article of manufacture to which rights. By section 71 of said act it refers or is to be attached. it was provided that any person who, cause these registrations were made by his own industry, genius, efforts, in accordance with the copyright and expense has invented or law, they were, by the Patent Office. duced (among other things) any new designated 'copyrights,' although and original impression, ornament, such designation was probably in a pattern, print, or picture, to be technical sense erroneous, as the act painted, cast, or otherwise placed of 1874 expressly provided that such on or worked into any article of prints or labels should not be enmanufacture, may, upon the payment tered under the copyright law,' the of the duty required by law, and sole distinction as to them being other due proceedings had, the same that they should be entered in conas in the case of inventions or dis-formity with the copyright law. But coveries, obtain a patent therefor. By section 86, which is the second section relating to copyrights, it was provided that any citizen of the United States or resident therein who shall be the author, inventor, designer, or proprietor of any (among other things) engraving, cut, print, or photograph, or negative thereof, shall, upon complying with the provisions of this act, have the sole liberty of printing, reprinting, publishing, completing, copying, executing, finishing, and vending the same. It will thus be seen that the word 'print' was used in this act in connection with both things which might be patented and also those subject to copyright, but the distinction between the two characters of prints was clearly drawn by the clause in said section 71, which limited the prints that might be patented to those which were 'to placed on or worked into any article of manufacture.' In codifying this act section 71 was carried into the Revised Statutes, with slight verbal changes, as section 4929, in chapter 1 of title 60, which relates solely to patents. while section 86 was copied, with slight modifications,

pro

be

Be

the nomenclature of the right con-
ferred by the registration of such
prints can make no difference, as it
is clear that the register of copy-
rights had nothing to do with such
prints, that all proceedings relating
thereto were conducted in the Patent
Office, and that the law under which
they were entered was a part of the
laws under which that office

was

operated. On May 9, 1902 (32 Stat.
193). Congress passed an act by
which section 4929, Revised Statutes.
was amended so as to read: 'Any
person who has invented any new,
original, and ornamental design for
an article of manufacture. not known
or used by others in this country
before his invention thereof, and not
patented or described in any printed
publication in this or any foreign
country before his invention thereof,
or more than two years prior to his
application, and not in public use
or on sale in this country for more
than two years, prior to his appli-
cation, unless the same is proved
to have been abandoned. may, upon
payment of the fees required by law
and other due proceedings had. the
same as in cases of inventions or
discoveries covered by section forty-

were

works connected with the fine arts may be entered under the copyright law.89 Under this statute no labels, even though possessed of artistic merit, can be copyrighted, if they are designed to be used for any article of manufacture.90 But the mere fact that copies of a painting may be used as labels does not preclude the painting from being the subject of a valid copyright.91 If the work is artistic it is copyrightable whatever the owner may intend to do

uct, and it is such prints that are required by the act of 1874 to be registered in the Patent Office." 28 Op. Atty.-Gen. (Fowler) 116-120.

89. Bleistein v. Donaldson Lith. Co., 188 U. S. 239, 23 SCt 298, 47 L. ed. 460 [rev 104 Fed. 993, 44 CCA 296]; De Jonge v. Breuker, etc., Co., 182 Fed. 150 [aff 191 Fed. 35, 111 CCA 567 (aff 235 U. S. 33, 35 SCt 6, 59 L. ed. 113)]. See also supra § 119.

[a] Rule applied.-"In Rosenbach v. Dreyfuss, 2 Fed. 217, the articles in question were 'prints of balloons and hanging baskets, with printing on them for embroidery, and cutting lines showing how the paper may be cut and joined to make the different parts fit together, and not intended as a mere pictorial representation of something'; and it was held that they were not copyrightable. The act of 1874 was considered, and the articles were decided not to be 'pictorial illustrations of works connected with the fine arts,' but 'prints or labels designed to be used for other articles of manufacture.' This being so, they did not belong to the fine arts, and could not be copyrighted, although they might be patented under section 4929 of the Revised Statutes. In Schumacher v. Wogram, 35 Fed. 210, it appeared that the plaintiffs were manufacturers of prints or labels, selling them for the purpose of being affixed to cigar boxes and other articles. They copyrighted a picture representing a young woman holding a bouquet of flowers, entitled 'Nosegay.' From this they struck off prints, which they sold to dealers in cigars, substituting the words 'Opera Bouquet' (a name descriptive of a brand of cigars) in place of the word 'Nosegay.' An action was brought to restrain infringement of some of these prints. Judge Wallace denied a motion for a preliminary injunction, saying: "The facts show an attempted evasion by the plaintiffs of the provisions of section 3 of the act of Congress of June 18, 1874, "to amend the law relating to patents, trade-marks, and copyrights." That section declares in substance that no prints or labels designed to be used for any article of manufacture can be copyrighted, but authorizes them to be registered and protected as trade-marks in proper cases. If the experiment of the plaintiffs can succeed, this statute is inoperative whenever the prints or labels contain a pictorial illustration; and it could be wholly nullified by the device of printing pictures on labels. The case of Schumacher v. Schwencke, 25 Fed. 466, 23 Blatchf. 373, is distinguishable from the present, because in that case the court found that the picture copyrighted was not made to be used for labels.'"' De Jonge v. Breuker, etc., Co., 182 Fed. 150. 152. 153 [aff 191 Fed. 35, 111 CCA 567 (aff 235 U. S. 33, 35 SCt 6. 59 L. ed. 113)].

90. Bleistein v. Donaldson Lith. Co., 188 U. S. 239, 23 SCt 298, 47 L. ed. 460 [rev 104 Fed. 993, 44 CCA 296]; Stecher Lith. Co. v. Dunston Lith. Co., 233 Fed. 601; Schumacher v. Wogram, 35 Fed. 210.

91. Stecher Lith. Co. v. Dunston Lith. Co., 233 Fed. 601; De Jonge v. Breuker, etc., Co., 182 Fed. 150 [aff 191 Fed. 35, 111 CCA 567 (aff 235 U. S. 33, 35 SCt 6, 59 L. ed. 113)]; Schu

with the reproductions.92 In such cases he has an election to protect the work either by a copyright or a design patent;93 but he cannot do both.94 The word "designed" in the statute refers to the quality of the painting, not to the state of mind or the intention of the author or owner." 95 Mere labels which simply designate or describe the articles to which they are attached, and which have no value separated from the articles, have never been within the

macher v. Schwencke, 25 Fed. 466, 23 Blatchf. 373.

[a] Rule applied. "In Schumacher v. Schwencke, 25 Fed. 466, 23 Blatchf. 373, it was decided that a painting upon which artistic skill had been expended was copyrightable although it could be readily lithographed and used as an advertising label. Judge Coxe's language is as follows: It is contended by the defendants that the complainant's painting was designed as a label for cigar boxes. This, it is said, is evidenced by its size, and by the fact that copies appear to be advertised in complainant's catalogue of labels. That lithographic copies are applicable to this purpose cannot be denied. They may also be used for many other purposes. The proof in this case discloses some of them. But the subject of the copyright is, in fact, a painting, executed by an artist with pencil and brush, and can itself be used only as paintings are used. The fact that copies may be utilized for advertising purposes does not change the character of the original. If the painting itself is to be considered a label because copies may be SO used, no masterpiece would escape such desecration. will hardly do to call the Sistine Madonna or the Aurora labels, because by the sacrilege of modern enterprise copies of Raphael's Cherubs or Guido's Goddess may be transferred to a blacking box or a perfumery bottle. Were it contended that this painting was intended exclusively for a label, or as the first step in making a label, a much stronger case for the defendants would be presented. But such is not the fact, and it is clear from the affidavits that it cannot be established by evidence." De Jonge v. Breuker, etc., Co., 182 Fed. 150, 153 [aff 191 Fed. 24, 111 CCA 567 (aff 235 U. S. 33, 35 SCt 6. 59 L. ed. 113)].

It

92. De Jonge v. Breuker, etc., Co., 182 Fed. 150 [aff 191 Fed. 35, 111 CCA 567 (aff 235 U. S. 33, 35 SCt 6, 59 L. ed. 113)].

93. De Jonge v. Breuker, etc., Co., 182 Fed. 150 [aff 191 Fed. 35, 111 CCA 567 (aff 235 U. S. 33, 35 SCt 6, 59 L. ed. 113)].

[a] Election between copyright and patent.-"Since it was qualified for admission into the two statutory classes, I see no reason why it might not be placed in either. But it could not enter both. The method of procedure, the term of protection, and the penalties for infringement, are so different that the author or owner of the painting that is eligible for both classes must decide to which region of intellectual effort the work is to be assigned, and he must abide by the decision. Ordinarily, of course, there is no difficulty. Not many paintings are suitable for use as designs, and only a few designs possess the qualities demanded by the fine arts. But it is easily conceivable that here and there a painting may be eligible for either class, and the water color in question is, I think, an excellent example. Such a work may be used in both the fine and the useful arts; but it can have protection in only one of these classes. The author or owner is driven to his election, and must stand by his choice. painting is obviously artistic, it is, I

If a

|

think, entitled to copyright, whatever the applicant may intend to do with the reproductions. Whether he can adequately protect them under the copyright law, and still use them as he may wish, is his affair. His common sense will be likely to inform him correctly upon this subject. If, however, the painting is obviously a mere design, lacking in such artistic quality as entitles it to be ranked among the productions of the fine arts, copyright may be properly refused. And it is not difficult to conceive of a third situation in which the Librarian may well be in doubt what his decision should be. In that event it is probable that he may find it most desirable not to interfere with the applicant's choice, leaving him to take the consequences of his election. As it seems to me, if applicants understand clearly that they cannot apply for protection of one kind and hope to receive protection of the other, they will probably be very careful to ask for precisely what they want." De Jonge v. Breuker, etc., Co., 182 Fed. 150, 152, 154 [aff 191 Fed. 35, 111 CCA 567 (aff 235 U. S. 33, 35 SCt 6, 59 L. ed. 113)].

94. De Jonge v. Breuker, etc., Co., 182 Fed. 150 [aff 191 Fed. 35, 111 CCA 567 (aff 235 U. S. 33, 35 SCt 6, 59 L. ed. 113)].

95. De Jonge v. Breuker, etc., Co., 182 Fed. 150 [aff 191 Fed. 35, 111 CCA 567 (aff 235 U. S. 33, 35 SCt 6, 59 L. ed. 113)].

[a] "Designed" construed.-"The principal defense is that the painting was not the subject of copyright at all, but should have been patented under section 4929 of the Revised Statutes (U. S. Comp. St. 1901, p. 3398), as a design for an article of manufacture. In my opinion the testimony does not sustain this defense. Whatever force the argument may possess, where a painting is obviously a mere design and can be nothing else, it is not persuasive where the painting may with equal propriety belong either to the fine or to the useful arts. It clearly appears that the painting now in question is artistic in thought and execution, and it was therefore entitled to protection by a copyright, if a copyright was desired. It appears just as clearly that neither the artist nor his patron intended to reproduce the painting as such a work of art is ordinarily reproduced, but intended to multiply it as a design for a fancy paper to cover boxes and other articles for the holiday season. Nevertheless, when the painting left the artist's hand, it was of such a character as made it eligible either for copyright or for patenting, at the option of the author or owner. As it seems to me, Act June 18, 1874, c. 301, 18 Stat. 78 (U. S. Comp. St. 1901, p. 3411), did not forbid it to be copyrighted. A reproduction would certainly not be a 'label,' and, while no doubt it might be a 'print,' and might with propriety be regarded as 'designed to be used for [an] article of manufacture,' it could with equal propriety be described as a 'pictorial illustration or work connected with the fine arts'-quite as accurately as the circus posters that were thus classified in Bleistein v. Donaldson Lith. Co., 188 U. S. 239, 23 SCt 298, 47 L. ed. 460-and therefore it could

power to regulate interstate and foreign commerce, congress has provided for the registration of trademarks in the patent office."

protection of the copyright law.96 Chromos as dis-
tinguished from prints and labels may be entered
under the copyright law, and need not be registered
in the patent office, even when adapted and in-
tended for use as labels on articles of commerce.98
[142] 28. Trade-Marks. Trade-marks are not
copyrightable,"
,99 and it is beyond the constitutional
power of congress to make them so.1 But under its

97

not be definitely assigned for the present purpose either to the fine or to the useful arts, until the author or the owner decided under which statute he would protect his property. It is, I think, difficult to see how a painting that may be either copyrighted or patented can be said to be designed' for one rather than for the other form of protection until the author or owner makes his final choice. Up to that time he may do what he pleases with his property. If he chooses to copyright it as a work of art, he may do so; if he prefers to patent it as a design, he is free to do this also; and the mere fact that he originally intended to take one of these courses rather than the other does not prevent him from changing his purpose at the last moment. His state of mind upon this matter has nothing to do with the quality of the painting; and it is this quality, and not the intention of the author or owner, that determines what protection may be given to the artist's work." De Jonge v. Breuker, etc., Co., 182 Fed. 150, 151 [aff 191 Fed. 35, 111 CCA 567 (aff 235 U. S. 33, 35 SCt 6, 59 L. ed. 113)].

96. Higgins v. Keuffel, 140 U. S. 428, 431, 11 SCt 731, 35 L. ed. 470 [aff 30 Fed. 6271; Stecher Lith. Co. v. Dunston Lith. Co., 233 Fed. 601; De Jonge v. Breuker, etc., Co., 182 Fed. 150 [aff 191 Fed. 35, 111 CCA 567 (aff 235 U. S. 33, 35 SCt 6, 59 L. ed. 113)]; Royal Sales Co. v. Gaynor, 164 Fed. 207 (monogram and campaign badge); Schumacher v. Wogram, 35 Fed. 210; Coffeen v. Brunton, 5 F. Cas. No. 2,946, 4 McLean 516; Marsh v. Warren, 16 F. Cas. No. 9,121, 14 Blatchf. 263; Scoville v. Toland, 21 F. Cas. No. 12,553; Margetson v. Wright, 2 De G. & Sm. 420, 64 Reprint 188; Griffin v. Kingston, etc., R. Co., 17 Ont. 660, 665.

"To be entitled to a copyright the article must have by itself some value as a composition, at least to the extent of serving some purpose other than as a mere advertisement or designation of the subject to which it is attached." Higgins v. Keuffel, supra.

[a] Reason for rule.-"A label on a box of fruit giving its name as 'grapes,' even with the addition of adjectives characterizing their quality as 'black,' or 'white,' or 'sweet,' or indicating the place of their growth, as Malaga or California, does not come within the object of the clause. The use of such labels upon those articles has no connection with the progress of science and the useful arts.

So a label designating ink in a bottle as 'black,' 'blue,' or 'red,' or 'indelible,' or 'insoluble,' or as possessing any other quality, has nothing to do with such progress. It cannot, therefore, be held by any reasonable argument that the protection of mere labels is within the purpose of the clause in question." Higgins v. Keuffel, 140 U. S. 428, 431, 11 SCt 731, 35 L. ed. 470 [aff 30 Fed. 627].

97. Stecher Lith. Co. v. Dunston Lith. Co., 233 Fed. 601.

[a] Chromos not within act of 1874-"The copyrights in question were obtained in the year 1908 under the act of 1905, which amended section 4952, and subsequently provided that the proprietor of any engraving, cut, print, or photograph, or negative thereof, or of a painting, drawing, or chromo, intended to be perfected as works of the fine arts,

[§ 143] 29. Title of Work. Titles consisting of common words and lacking originality are clearly not protected by copyright. Where the title of a copyrighted production is the original" production of the author's mind, probably the courts in protecting

should have the sole liberty of vending the same. Section 3 of the act of 1874, which seems not to have been repealed by the act of 1905, provides that in construing the acts the words 'engraving,' 'cut,' and 'print' shall be applied only to pictorial illustrations or works of the fine arts, and that 'no prints or labels designed to be used for any other articles of manufacture shall be entered under the copyright law, but may be registered in the Patent Office.' Upon carefully reading such provisions I am of the opinion that section 4952 makes a clear distinction between chromos and engravings, cuts, and prints, and as section 3 plainly omits chromos they do not come under the provision relating to registration in the Patent Office. In making the distinction Congress no doubt had in mind the ordinary definition of the word 'chromo' or 'chromo-lithograph,' as a picture produced from drawings on stones; each color being represented by a different stone. This view I think finds support in Hills v. Austrich, 120 Fed. 862, and in Hills v. Hoover, 136 Fed. 701, wherein Judge Lacombe, and later Judge Holland, recognized the distinction between pictures produced from drawings on stones and pictures made from metal plates." Stecher Lith. Co. v. Dunston Lith. Co., 233 Fed. 601, 602.

98. Stecher Lith. Co. v. Dunston Lith. Co., 233 Fed. 601; Hutchings v. Sheard, [1881] W. N. 20.

[a] Rule applied.-"The plaintiff's chromo in the present case is not a mere engraving or print of any article which the complainant offers for sale. It is a work of the imagination, and has such obvious artistic qualities as, in my judgment, render it fairly a subject of copyright, without regard to the use which the plaintiff has made or may intend to make of it. Where the work in question is clearly one of artistic merit, it is not material, in my judgment, whether the person claiming a copyright expects to obtain his reward directly through a sale of the copies, or indirectly through an increase of profits in his business to be obtained through their gratuitous distribution." Yuengling v. Schile, 12 Fed. 97, 100, 20 Blatchf. 452 [quot__De Jonge v. Breuker, etc., Co., 182 Fed. 150, 153 (aff 191 Fed. 35, 111 CCA 567, and aff 235 U. S. 33, 35 SCt 6, 59 L. ed. 113)].

99. U. S. v. Steffens, 100 U. S. 82, 25 L. ed. 550.

"Trade-marks can not be copyrighted nor registered in the Copyright Office." Rules and Regulations for Registration of Claims to Copyright (Copyright Office Bul. No. 15) rule 18 (m).

1. U. S. v. Steffens, 100 U. S. 82, 25 L. ed. 550.

2. See Trade-Marks, Trade-Names, and Unfair Competition [38 Cyc 854 et seq].

3. Common-law rights in title see supra § 23.

infringement of title see infra

275.

4. Stringer v. Frohman, 152 NYS 935; Dicks v. Yates, 18 Ch. D. 76; Broemel v. Meyer, 29 T. L. R. 148.

[a] Rule applied.-(1) The author of a copyrighted story published in magazine and book form cannot enjoin use of the title for a play not connected with the story, where it appears that the same title has been frequently used before for magazine

articles and for plays, more than forty years ago. Stringer v. Frohman, 152 NYS 935. (2) Such words as "Charity," "Faith," and the like cannot be appropriated as the title of a copyrighted work and receive the protection of the copyright. Isaacs v. Daly, 39 N. Y. Super. 511. (3) Nor can a hackneyed phrase like "Splendid Misery" be protected by copyright. Dicks v. Yates, 18 Ch. D. 76. (4) Where the words "Post Office Directory" had been used by plaintiff as the title of a copyrighted work, an injunction restraining defendants from using these words as a part of their directory was refused. Kelly v. Byles, 13 Ch. D. 682. (5) The mere taking of a title consisting of two ordinary words of the English language, such as "Castle Album," would not be an infringement of copyright. Schove v. Schmincke, 33 Ch. D. 546.

[b] Common phrase with special meaning.-"The plaintiff, in the year 1911, wrote an original comedy, entitled 'Where There's a Will There's a Way.' The plot dealt with the question of a testament, and the word 'will' in the title was used in the sense of testament. In November, 1912, the defendant presented at the Criterion Theatre a play, entitled 'Where There's a Will The

word 'will' in the defendant's play had the same double meaning as in the plaintiff's. Warrington, J.. said the suggestion of the plaintiff was that her title, the familiar proverb, had in reference to the plot of the play a peculiar meaning-namely, that the word 'will' did not mean an act of volition, but a testamentary disposition. She claimed that hers was an original title, and said that in the defendant's title, having regard to the plot, the word 'will' had the same meaning as in hers. She did not complain of the play itself. All that she said was that the title was a material part of the play, that there was originality in the title, and that she was entitled to restrain infringement. There was no satisfactory decision in favour of the contention that there was copyright in the title of a book by itself, but there was plenty of authority for saying, that if there was copyright, the title must be such as to be of an original and peculiar nature. In the case of Dick v. Yates, 18 Ch. D. 76, it was pointed out that there could be no copyright in such common words as 'splendid misery.' The words of the title of the plaintiff's play were a familiar proverb, and words which were at some time or other in everybody's mouth. Could the plaintiff appropriate such words to herself by giving them the peculiar meaning which she said they bore in this play? In his opinion, if there could be copyright in the title of a play, there could not be in this case, where the title consisted of a hackneyed proverb." Broad v. Meyer, 57 Sol. J. 145.

5. Benn v. Leclercq, 3 F. Cas. No. 1,308; Isaacs v. Daly, 39 N. Y. Super. 511; Dicks v. Yates, 18 Ch. D. 76.

[a] Title of drama.-A person who deposits in the copyright office the title of a drama, which title is not original with himself, cannot secure such title to the exclusion of others who have applied such title to a dramatic composition founded on the same story before the date of such deposit. Benn v. Leclercq. 3 F. Cas. No. 1,308.

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