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c 565 § 1); Act Jan. 7, 1904 (33 St. at L. 4 c 2 § 1 (interim copyright); Act March 3, 1905 (33 St. at L. 1000 c 1432).

82. Henderson V. Tompkins, 60 Fed. 758; Atwill v. Ferrett, 2 F. Cas. No. 640, 2 Blatchf. 39; Reed v. Carusi, 20 F. Cas. No. 11,642, Taney 72.

ra

[a] Musical composition defined. "A musical composition is a tional collocation of sounds apart from concepts, reduced to a tangible expression from which the collocation can be reproduced either with or without continuous human intervention." White-Smith Music Pub.

Co. v. Apollo Co., 209 U. S. 1, 19, 20, 28 SCt 319, 52 L. ed. 655, 14 AnnCas 628 (per Holmes, J.).

[b] Musical compositions, include (exclusive of dramatico-musical works) other vocal and all instrumental compositions, with or without words. But when the text is printed alone, it should be registered as a "book," not as a "musical composition." Rules and Regulations for Registration of Claims to Copyright (Copyright Office Bul. No. 15) rule 10.

83. See supra § 101. See also cases under the statute of Anne infra note 87.

84. See supra § 100.

85.

See infra § 371.

86. See supra § 101.

8612. Mills Inc. v. Standard Music Roll Co., 223 Fed. 849; Whitmark v. Standard Music Roll Co., 221 Fed. 376, 137 CCA 184.

87. White v. Geroch, 2 B. & Ald. 298, 106 Reprint 376, 1 Chit. 24, 18 ECL 28; Platts v. Button, Coop. 303, 10 EngCh 303, 35 Reprint 566, 19 Ves. Jr. 447, 34 Reprint 583; Bach v. Longman, Cowp. 623, 98 Reprint 1274; Storace v. Longman [cit Clementi v. Goulding, 11 East 244, 103 Reprint 998]; Hime v. Dale [cit Clementi v. Goulding, supra]; Clementi V. Goulding, supra; Jefferys V. Boosey, 4 H. L. Cas. 815, 10 Reprint 681; D'Almaine v. Boosey, 4 L. J. Exch. 21; Chappell v. Parday, 14 M. & W. 303, 153 Reprint 491.

[a] A musical composition was a writing within the statute of Anne (8 Anne c 19). Bach v. Longman, Cowp. 623, 98 Reprint 1274.

88. See supra § 69 (where statutes are enumerated).

89-90. Fuller v. Blackpool Winter Gardens, etc., Co., Ltd., [1895] 2 Q. B. 429. Contra Roberts v. Bignell, 3 T. L. R. 552, decided in 1887 (holding that a song called "Oh Jenny dear,' "set to music not of the proprietor's own authorship, was not a musical composition but a dramatic piece, and that a mere verbal permission to sing it was an ineffectual gift, so that the proprietor notwithstanding such permission could recover the 40s. penalty). But in the opinion de

94

copyrightable, musical compositions must be orig-
inal, within the meaning of originality as else-
where explained."2 But copyright protection is not
confined to absolutely new productions; any sub-
stantially new arrangement or adaptation of an old
piece may be copyrighted.93 An arrangement for
the pianoforte of the orchestral score of an opera is
an original musical composition within the meaning
of the copyright law. But in order to be copy-
rightable the new arrangement must be something
more than a mere copy of the older piece, with addi-
tions and variations such as any writer of music
with skill and experience might readily make.9
95 The
distinction is substantially that made in the law of
patents between the exercise of inventive genius and
the exercise of mere mechanical skill; the former is
protected by the statute, but the latter is not.96

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

livered by Kay, L. J., in the case of Fuller v. Blackpool Winter Gardens, etc., Co., Ltd., [1895] 2 Q. B. 429, this case was commented on as follows: "I have not found any other report of this case. I can scarcely believe that this report is accurate. If it was decided that because the words of the song were dramatic the music was not a musical composition, I respectfully differ from that decision." 91. Cooper v. James, 213 Fed. 871. 92. See supra §§ 91-97. See also supra § 109 (dramatic originality).

93. Hein v. Harris, 175 Fed. 875 [aff 183 Fed. 107, 105 CCA 399]; Atwill v. Ferrett, 2 F. Cas. No. 640, 2 Blatchf. 39; Jollie v. Jacques, 13 F Cas. No. 7,437, 1 Blatchf. 618; Reed V. Carusi,

20 F. Cas. No. 11,642,

Taney 72; Leader v. Purday, 7 C. B. 4, 62 ECL 4, 137 Reprint 2; Lover v. Davidson, 1 C. B. N. S. 182, 87 ECL 182, 140 Reprint 77.

"The right of the author of a musical composition is not affected by the fact that he has borrowed in general from the style of his predecessors. The collocation of notes, which constitutes the composition, becomes his own, even though strongly suggestive of what has preceded, and it ceases to be an invention, and becomes an infringement, only when the similarity is substantially a copy, so that to the ear of the average person the two melodies sound to be the same. Therefore the lack of originality and musical merit in both songs, upon which the defendant insists, is of no consequence in law." Hein v. Harris, 175 Fed. 875, 877 [aff 183 Fed. 107, 105 CCA 399].

[a] Illustration.-In a suit for infringement of an arrangement of the "Manola Waltzes" the court after taking testimony, made a preliminary order appointing two musicians as experts to report "whether the Manola Waltz, published by complainants, was musically different from the Waldteufel composition, in what the difference consisted, and whether complainants' publication is an original musical composition representing any musical authorship." These experts reported as follows: "While we do not consider the publication an original composition, with the exception of the harmony in the last three bars of the introduction, we regard it as an original arrangement, and the work of a practical harmonist and musician." The court held that the complainants' publication was a substantially new adaptation of an old piece, which might be copyrighted, and the injunction was granted. Schuberth v. Shaw. 21 F. Cas. No. 12.482, 19 AmLRegNS 248.

'arrange

[b] "Adaptions' and ments' may be registered as 'new

works' under the provisions of section 6. Mere transpositions into different keys are not expressly provided for in the copyright act; but if published with copyright notice and copies are deposited with application, registration will be made." Rules and Regulations for Registration of Claims to Copyright (Copyright Office Bul. No. 15) rule 10.

[c] One who adapts words of his own to an old air, adding thereto a prelude and accompaniment also his own, acquires a copyright in the combination, and may, in declaring for an infringement against one who has pirated the whole, properly described himself as the proprietor of the entire composition. Lover V. Davidson, 1 C. B. N. S. 182, 87 ECL 182, 140 Reprint 77; Leader v. Purday, 7 C. B. 4, 62 ECL 4, 137 Reprint 2.

94. Carte v. Evans, 27 Fed. 861; Wood v. Boosey, L. R. 3 Q. B. 223, 18 ERC 578.

95. Cooper V. James, 213 Fed. 871; The Mikado, etc., Case, 25 Fed. 183, 23 Blatchf. 347; Jollie v. Jaques, 13 F. Cas. No. 7.437, 1 Blatchf. 618; Reed v. Carusi, 20 F. Cas. No. 11,642, Taney 72.

[a] "The rule laid down by Mr. Justice Nelson in Jollie v. Jaques, 13 F. Cas. No. 7,437, 1 Blatchf. 618, is this: "The musical composition contemplated by the statute must, doubtless, be substantially a new and original work, and not a copy of a piece already produced, with additions and variations, which a writer of music with experience and skill might readily make.'" Cooper V. James, 213 Fed. 871, 872.

[b] The addition of alto parts to well known hymns sung for years with only the three parts of soprano, tenor, and bass, is not such a new and original work as entitles the composer to a copyright. Cooper v. James, 213 Fed. 871, 872 (where the court said: "An alto may be an improvement to a song to some extent, and probably is; but it can hardly be said to be an original composition, at least in the sense of the copyright law. In patents we say that any improvement which a good mechanic could make is not the subject of a patent, so in music it may be said that anything which a fairly good musician can make, the same old tune being preserved, could not be the subject of a copyright").

96. Cooper v. James, 213 Fed. 871. See Patents [30 Cyc 847, 849].

97. Act May 31, 1790 (1 St. at L. 124 c 15 § 1); Act Febr. 3, 1831 (4) St. at L. 436 c 16 § 1); Act July 8, 1870 (16 St. at L. 198 c 230 § 86); Rev. St. § 4952; Act March 3, 1891 (26 St. at L. 1106 c 565 § 1); Act Jan. 7, 1904 (33 St. at L. 4); Act March 3, 1905 (33 St. at L. 1000).

COPYRIGHT AND LITERARY PROPERTY

copyrighting thereof, as such, has been authorized."

In England the act of 1911 provides that "literary work" shall include maps, and accordingly maps may be copyrighted as literary works,99 and apparently protection for maps cannot be claimed as for "engravings."" In the Copyright Act of 1842 the term "book" is expressly defined to include a "map" which could therefore be copyrighted under this act as a book,2 or it could be copyrighted as an engraving under the engravings copyright acts, according as the proprietor chose to call his work a map or an engraving.3

[113] 7. Charts. In "charts" have been specifically named as a subject the United States of copyright in every copyright law except the act of 1909.4 In the latter act the term "chart" is not used, although the same subject matter is included

98. Stevens v. Gladding, 17 How. (U. S.) 447, 15 L. ed. 155; Stevens v. Cady, 14 How. (U. S.) 528, 14 L. ed. 528; Woodman v. Lydiard-Peterson Co., 192 Fed. 67 [aff 204 Fed. 921, 123 CCA 243 (reh den 205 Fed. 900, 126 CCA 434)]; Blunt v. Patten, 3 F. Cas. No. 1,579, 2 Paine 393; 3 F. Cas. No. 1,580, 2 Paine 397; Drury v. Ewing, 7 F. Cas. No. 4,095, 1 Bond 540; Farmer v. Calvert Lithographing, etc., Co., 8 F. Cas. No. 4,651, 1 Flipp. 228; Rees v. Peltzer, 75 Ill. 475. [a] "This term includes all cartographical works, such as terrestrial maps, plats, marine charts, maps, but not diagrams, astrological star charts, landscapes, or drawings of imaginary regions which do not have a real existence.' tions for Registration of Claims to Rules and RegulaCopyright (Copyright Office Bul. No. 15), rule 11.

"

[b] Map derived from prior publications.-A map is subject to copyright, although the material was obtained from prior publications not copyrighted, if it constitutes a new arrangement of such old material and also contains new and original features. Woodman Peterson Co., LydiardFed. 921, 123 CCA 243 (reh den 205 192 Fed. 67 [aff 204 Fed. 900, 126 CCA 434)].

V.

99. St. 1 & 2 Geo. V c 46 § 35. 1. Copinger Copyright (5th ed) p 94 (where it is said: "The only importance of this seems to lie in the fact that the copyright in an engraving made to order vests in the person by whom the plate was ordered, whereas in the case of a literary work the copyright would only so vest if the person making the plate were in the employment of the person who ordered the same 'under a contract of service ship.' Sec. 5 (1)"). or apprentice

2. St. 5 & 6 Vict. c 45 § 2; Stannard v. Lee, L. R. 6 Ch. 346. 3.

V.

Stannard v. Lee, L. R. 6 Ch. 346; Copinger Copyright (5th ed) p 94 (where the author says: to be the effect of the two somewhat "This seems puzzling decisions of Stannard Lee, L. R. 6 Ch. 346, and Stannard v. Harrison, 19 Wkly. Rep. 811, both relating to maps of the scene of war in 1870"); MacGillivray Copyright pp 148, 149 (where, after commenting on Stannard v. Lee, supra, and Stannard v. Harrison, supra, the author says: "It is submitted that the true view probably is protected map may be requisite formalities are observed"). either act if the 4. Act May 31, 1790 (1 St. at L. 124 c 15 § 1); Act Febr. 3, 1831 (4 St. at L. 436 c 16 § 1); Act July 8, 1870 (16 St. at L. 198 c 230 $ 86); Rev. St. § 4952; Act Jan. 7, 1904 (33 St. at L. 4 c 2 § 1); Act March 3, 1905 (33 St. at L. 1000).

that under

a

5. See supra § 90.

6. Taylor v. Gilman, 24 Fed. 632, 23 Blatchf. 325; Ehret v. Pierce, 10 Fed. 553, 18 Blatchf. 302.

7.

Taylor v. Gilman, 24 Fed. 632,

23 Blatchf. 325.

.7

8

[§§ 112-113

in the other more comprehensive terms which are employed. As used in the copyright statutes, the word "chart" refers to a form of map, particularly a marine map; and as this was the only meaning of the term in 1790, when it first came into the copyright law, and no intention to give it a more extended meaning is evinced by any subsequent statute, but rather the contrary, it retains that meaning in spite of the fact that in common parlance the term has come to include sheets of paper exhibiting tabulated or methodically arranged information; "charts" in this latter sense are not 'charts" within the meaning of the copyright law. In England the statute provides that "literary work" shall include "charts, plans, tables and compilations.'' 10 In the act of 1842 "book" was de

66

a

copyright legislation.-"The original
copyright act of 1790 provided for
[a] History of term "chart" in
maps, charts, and books.
Large, 124.
1 St. at
A chart then was
marine map, as is shown by all the
dictionaries of the time, both English
prints were added by the act of 1802,
and American.
(2 St. at Large, 171;) musical com-
Historical or other
positions, cuts, and engravings, by
photographs, by the act of 1865, (13
the act of 1831, (4 St. at Large, 436;)
St. at Large, 540;) and paintings,
drawings, chromos,
uary, and models or designs intended
statues, stat-
to be perfected as works of the fine
Large, 198.) A distinction was made
arts, by the act of 1870, (16 St. at
between recoveries for the infringe-
ment of the copyright of a book, and
the act of 1831; the former being
those for that of the other works, by
fixed at fifty cents and the latter at
one dollar for each sheet.
tinction was preserved in the act of
might be recovered in a civil action
1870, by giving such damages as
in
diction for the infringement of the
court of competent juris-
copyright of a book, and one dollar
for each sheet of all but paintings,
statues, or statuary, and $10 for
each copy of those found in
possession of the infringer, and is
the
continued to the present time.
St. §§ 4964, 4965.
Rev.
Thus the literary
composition of
has
books
for
to be read
long
tected in one mode, and the produc-
time been pro-
tion of works of art to be viewed in
another mode, and charts have al-
ways been placed among the works
of art.

any

a

This dis

Sheets of paper exhibiting
information came to be called charts,
tabulated or methodically arranged
so that a definition of chart covering
them was put into the edition of
1864, and into that of Webster's Dic-
Worcester's Dictionary published in
tionary published in 1865. The plain-
tiff's work was printed upon a single
sheet doubled
leaves with four pages.
as to make two
page was the title and contents, the
On the first
name of the author, and notice of the
copyright. On the second, was the
popular and electoral votes for presi-
dent from 1789 to 1880, inclusive, by
political parties, with the names of
candidates and explanatory notes.

SO

On the third, was the popular vote
giving the scattering vote and the
for the leading candidates for presi-
dent in 1880 by states, with a note
president by states.
electoral vote for president and vice-
was the electoral college for 1884 by
On the fourth,
states, with blanks for the number
party, the total electoral vote, the
of each for each leading political
number necessary for a choice, the
meeting of electoral colleges.
day of election, and the day of the
alleged infringing copies are printed
The
upon a single sheet folded in the
On the first

same manner.

an

votes

third, and fourth are identical in matter with the plaintiff's; and in advertisement of American Tea Company. The second, the Great arrangement, except that on the second page of the plaintiff's the columns are divided and printed cf the infringement they are printed across the page, and on that page entire up and down the page. These publications would, perhaps, come They are tabular views within this new definition of chart. notes being explanatory of the tables. of these methodically arranged, the Still, the compilation of these tables performance. was a literary rather than an artistic leaves The printed work has and pages, although these may not be necessary to constitute books and charts were first protected a book within the meaning of the copyright laws. F. Cas. No. 2,872, 2 Paine 382. When Clayton v. Stone, 5 by the copyright laws chart; nor this would not have been protected as a work for many wards. years afterNo change has been made in the use of that term in the statute to indicate that congress that it should take to itself there any intended new definition. On the contrary, it

has been separated from the word 'book,' and kept with the word 'map,' and other words of artistic import, thus showing an intention to tinue its use in the same sense of a conchart of the class with maps, and other works of art." man, 24 Fed. 632, 633, 23 Blatchf. 325. Taylor v. Gil8. Taylor v. Gilman, 24 Fed. 632, 23 Blatchf. 325.

9.

Taylor v. Gilman, 24 Fed. 632, 23 Blatchf. 325.

[a] Dressmaker's pattern chart.— In Drury v. Ewing, 7 F. Cas. 4,095, 1 Bond 540, the court inclined No. to the view that a chart representing a series of diagrams, interspersed with printed instructions as mode of using them in taking measto the urements for and cutting parts of women's dresses, which was certain printed on one large sheet of paper, from which the diagrams were to be cut out and pasted on thick or pasteboard corresponding with and paper diagrams, was copyrightable showing precisely the forms of the as a chart or print. either on this case in Baker v. Selden, 101 See comments U. S. 99. 25 L. ed. 841. various colors of paint.-An adver[b] Advertising card showing tising card devised pose of showing paints of various for the purof paper of the various colors, and colors, consisting of a sheet of paper to which were attached square pieces some lithographic work advertising the sale of the paint, surrounding chart, an engraving, nor a book, and the squares, was held to be neither a not to be the subject of a copyright. Ehret v. Pierce, 10 Blatchf. 302. Fed. 553, 18 10. Copyright Act, 1911 Geo. V c 46 § 35). (1 &

cumulative Annotations, same title, page and note number

fined to include "chart."' 11

14

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[ 114] 8. Artistic Works12-a. Works of Art. In the United States the term "works of art," as descriptive of an authorized subject of copyright, is new in the act of 1909.13 This precise term was not used in any prior copyright statute, and the right to copyright works of this character prior to the act of 1909 was found in the statutory words "engraving," "cut," "print," "photograph," "painting," "drawing," "chromo, "statues,' "statuary," and "models or designs intended to be perfected as works of the fine arts,' " to all of which subjects the right of copyright was ultimately extended.15 Some of these terms have been preserved in the act of 1909,16 and some have been omitted,17 but all of the subject matter described by them is copyrightable under the act of 1909, being comprehended in the general terms used in that act.18 There was no cutting down of the subjects of copyright, but, on the contrary, a deliberate extension of copyright to "all the writings of an author. Paintings and statues or statuary21 are copyrightable. The size of a painting is not material on the question whether it is a proper subject of copyright.22 Whether or not any particular production is a work of art is a question of fact23 to be determined in the first instance by the register of copy11. St. 5 & 6 Vict. c 45 § 2.

[a] A cardboard pattern sleeve with scales, figures, and descriptive words for adapting it to sleeves of different dimensions printed on it is not copyrightable as a map, chart, or plan, and must be protected, if at all, by a patent. Hollinrake v. Truswell, [1894] 3 Ch. 420.

12. Artistic merit, necessity of see supra § 98.

Infringement of see infra §§ 324

327.

13. Act March 4, 1909 (35 St. at L. 1075 c 320 § 5); 28 Op. Atty.-Gen. (Fowler) 557.

[a] "This term includes all works belonging fairly to the so-called fine (Paintings, drawings, and Productions of the in

arts.

to

sculpture.)
dustrial arts utilitarian in purpose
and character are not subject
copyright registration, even if artis-
tically made or ornamented." Rules
and Regulations for Registration of
Claims to Copyright (Copyright
Office Bul. No. 15) rule 12. See also
infra § 124.

14. See supra § 90.
15. See supra § 90.
16. [a] Terms preserved in new
statute. "Models
or designs,"
"prints," and "photographs." See
Act March 4, 1909 (35 U. S. St. at L.
1075 c 320 § 5).

17. [a] Terms omitted from new statute. "Engraving," "cut," painting," "drawing," "chromo," "statues," and "statuary." See Act March 4, 1909 (35 U. S. St. at L. 1075 c 320 § 5).

18. Copyright of:

Cuts see infra § 119.
Chromos see infra § 119.
Engravings see infra § 119.
Models or designs see infra § 115.
Photographs see infra § 118.
Prints see infra § 119.

19. See supra § 90.

20. 28 Op. Atty.-Gen. (Fowler) 557; Lucas v. Cooke, 13 Ch. D. 872. [a] Painting in production of lithograph.-The register of copyrights has authority to enter a claim in a painting, which is made merely as a first step in the production of a lithograph, as a "work of art" within the meaning of the act of March 4, 1909 (35 U. S. St. at L. 1078 § 11). provided the painting itself is a work of art. 28 Op. Atty.-Gen. (Fowler)

557.

19

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In England, subject to the provisions of the statute, copyright is given in "every original artistic work," 25 and it is provided that "artistic work includes works of painting, drawing, sculpture, and artistic craftsmanship, and architectural works of art, and engravings and photographs.26

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[§ 115] b. Models or Designs for. Models or designs for works of art,27 or, in the phrase of the former statute, models or designs intended to be perfected as works of the fine arts,28 are themselves copyrightable as independent works.

[116] c. Reproductions of. Reproductions of a work of art are copyrightable as independent works by express provision of the act of 1909.29 This descriptive phrase is new in this statute. But even under the former statute if the reproduction involved the exercise of intellectual qualities and artistic skill it was itself copyrightable,30 as in the case of an engraving, or photograph,3 32 of an existing work of art. 33 Several different reproductions of the same original may each be independently copyrighted.34

V.

31

design, in respect of such character or design, or any model for such building or structure, provided that the protection afforded by this Act shall be confined to the artistic character and design, and shall not extend to processes or methods of construction; 'engravings' include etchings, lithographs, wood-cuts, prints, and other similar works, not being photographs; 'photograph' includes photo-lithograph and any work produced by any process analogous to photography." Copyright Act, 1911 (1 & 2 Geo. V c 46 § 35).

[§ 117] 9. Drawings or Plastic Works. The statute authorizes the copyrighting of "drawings or plastic works of a scientific or technical character.'' 35 Under both the present and the former ture. "The copyright act does not mention models, but, as appears by English authorities, the art of modelling is considered a certain kind of sculpture, and sculpture is mentioned both in the English Act and the Canadian." Beullac Simard, 39 Que. Super. 97, 99 [aff 39 Que. Super. 517]. [b] A figure of an elk made of canvas and plaster, and erected over a city street as a feature of a public celebration, was held not copyrightable, even on the assumption "that this creation was 'statue,' within the law of copyright," it being assumed that the circumstances necessarily implied a dedication to the public. Carns v. Keefe, 242 Fed. 745 (where the opinion shows such a misapprehension of the requirements of the copyright statute as to rob it of any weight as an authority).

a

[c] Toy soldiers made of metal were protected as a work of sculpture under the Sculpture Copyright Act (54 Geo. III c 56). Britain v. Hanks, 86 L. T. Rep. N. S. 765.

22. Schumacher v. Schwenke, 25
Fed. 466, 23 Blatchf. 373 (picture
seven by four and one-half inches).
23. See infra § 433.

24.
28 Op. Atty.-Gen. (Fowler) 557.
[a]
The meaning of "work of
art.""Its application to a partic-
ular work, does not present a ques-
tion of law, but one of fact, and
is not, therefore, one for decision by
me. The phrase appears to be a new
one in the copyright statutes, and
experts would doubtless often differ
as to its application; and the Reg-
ister of Copyrights must, therefore,
when application for registration is
made, determine for himself the
question whether the work presented
is one of art, but in so doing he
can not, of course, act arbitrarily
and without good reason." 28 Op.
Atty.-Gen. (Fowler) 557, 561.

25. Copyright Act, 1911 (1 & 2
Geo. V c 46 § 1).

26. St. 1 & 2 Geo. V c 46 § 35. See Britain v. Hanks, 86 L. T. Rep. N. S. 765 (toy soldiers protected as sculptures); Caproni v. Alberti, 65 L. T. Rep. N. S. 785 (where casts of fruit and leaves were protected under the former Sculpture Copyright Act).

[a] Further statutory definitions. "Work of sculpture' includes casts and models; 'architectural work of art' means any building or struc[a] Modeling included in sculp-ture having an artistic character or

21. Beullac v. Simard, 39 Que. Super. 97 [aff 39 Que. Super. 5171.

[b] "Prior to 1862, there was no statutory copyright in paintings in England." Hanfstaengl Art Pub. Co. v. Holloway, [1893] 2 Q. B. 1, 8. "Drawings" see infra § 117.

27. Act March 4, 1909 (35 U. S. St. at L. 1075 c 320 § 5). 28. Act July 8, 1870 (6 U. S. St. at L. 198 c 230 § 86); U. S. Rev. St. § 4952.

29.

Act March 4, 1909 (35 U. S. St. at L. 1075 c 320 § 5). [a] "This term refers to such reproductions (engravings, woodcuts, etchings, casts, etc.) as contain in themselves an artistic element distinct from that of the original work of art which has been reproduced." Rules and Regulations for Registration of Claims to Copyright (Copyright Office Bul. No. 15), rule 13.

[b] Picture post cards.-Lithographic reproductions of original paintings, in the form of illustrated post cards, made in Germany, are subject to registration under Act of March 4, 1909 (35 U. S. St. at L. 1075), provided the original paintings may properly be classified as works of art. 28 Op. Atty.-Gen. (Wickersham) 150. 30. Beullac Simard, 39 Que. Super. 97 [aff 39 Que. Super. 517]. 31. See infra § 119. 32. See infra § 118. 33. Beullac V. Simard, 39 Que. Super. 97 [aff 39 Que. Super. 517]; and cases infra §§ 118, 119.

v.

[a] A bas-relief in papier-mache of an historical figure taken from a portrait on the public domain is copyrightable. Beullac v. Simard, 39 Que. Super. 517 [aff 39 Que. Super. 97).

34. See supra § 94.

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

[a] "This term includes diagrams or models illustrating scientific or technical works, architects' plans, de

English statutes drawings are copyrightable.36

38

[118] 10. Photographs. In the United States it was held that a photograph was not a "print, cut, or engraving" within the meaning of the earlier copyright law, and was not therefore a proper subject of copyright under that statute.37 Congress, however, in 1865, extended copyright protection to photographs and negatives thereof, by expressly including them among the articles for which copyright was provided; and this express designation of photographs as copyrightable works has been continued in all subsequent statutes.3 Although it was questioned whether a photographer is an author, and a photograph a writing, within the constitutional provision under which copyrights may be granted, the constitutionality of such legislation was sustained. Accordingly, since the act of 1865, photographs have been, and now are, copyrightable

40

signs for engineering work, etc." Rules and Regulations for Registration of Claims to Copyright (Copyright Office Bul. No. 15), rule 14.

36. Fine Arts Copyright Act, 1862 (25 & 26 Vict. c 68 § 1); Millar v. Polak, [1908] 1 Ch. 433. See also supra § 114.

39

42

as such, and photographers have frequently been
protected in the enjoyment of a copyright in their
photographic productions." The basis and justifi-
cation of such copyrights is the undeniable fact
that a photograph may embody original work and
artistic skill, and be in fact an artistic production,
the result of original intellectual conception on the
part of its author.13 The fact that the photographer
arranged the light, the background, and other details.
of a photograph, and posed the subject so as to
produce an artistic and pleasing picture is sufficient
to sustain a copyright for such photograph.44 A
photograph of natural scenery may be the subject of
a copyright.15 Even a photograph of another pic-
ture has been held copyrightable. Probably any
photograph is sufficiently original to support a copy-
right if it is not a piracy.1
47 But where a photograph
has become public property by publication and sale
was assumed valid for the purpose
of the decision).

process with the original intellect-
ual conception of an artist. Courier
Lith. Co. v. Donaldson Lith. Co., 104
Fed. 993, 44 CCA 296.

44. Burrow-Giles Lith. Co. V.
Sarony, 111 U. S. 53, 4 SCt 279, 28
L. ed. 349 [aff 17 Fed. 591] (photo-
graph of Oscar Wilde); Pagano v.
Chas. Beseler Co., 234 Fed. 963:
Cleland v. Thayer, 121 Fed. 71, 58
CCA 272 (where the elements of
in a photograph of
natural scenery are well stated);
Falk v.
a
Gast Lith., etc., Co., 48
Fed. 262 [aff 54 Fed. 890, 4 CCA 648]
(photograph of Julia Marlowe). See
Nottage v. Jackson, 11 Q. B. D. 627
[quot Burrow-Giles Lith. Co. v. Sar-
ony, supra] (authorship of pho-
tograph).

[a] Stamped devices made from drawings.-An artist designed certain devices for gold foil ornaments on Christmas cards, which were re-originality produced from the original drawings by means of being stamped in mold. Such stamped devices were, in a sufficient sense, "drawings," so as to be capable of registration under the Fine Arts Copyright Act, 1862. Millar v. Polak, [1908] 1 Ch. 433.

37. Wood v. Abbott. 30 F. Cas. No. 17,938, 5 Blatchf. 325.

38. Act March 3, 1865 (13 U. S. St. at L. 540).

39. Act July 8, 1870 (16 U. S. St. at L. 198 c 230 § 86); U. S. Rev. St. § 4952; Act March 3, 1891 (26 U. S. St. at L. 1107 c 565 § 1); Act Jan. 7, 1904 (33 U. S. St. at L. 4 c 2 § 1); Act March 3, 1905 (33 U. S. St. at L. 1000).

[a] "This term covers all positive prints from photographic negatives, but not half tones or other photo-engravings." Rules and Regulations for Registration of Claims to Copyright (Copyright Office Bul. No. 15) rule 15.

40. See supra § 85.

45. Cleland V. Thayer, 121 Fed. 71, 58 CCA 272 [foll Bleistein v. Donaldson Lith. Co., 188 U. S. 239, 23 SCt 298, 47 L. ed. 460] (where from the report it is not clear whether the copyright was sustained as one for a photograph or for a print).

[a] A photograph of a yacht under sail, which requires the photographer to select and utilize the best effects of light, clouds, water, and general surroundings, and to combine them under favorable conditions for depicting vividly the subject matter, is an original work of art which may be protected by copyright. Bolles v. Outing Co., 77 Fed. 966, 23 CCA 594, 46 LRA 712 [aff 175 U. S. 362, 20 SCt 94, 44 L. ed. 156].

46

47. Graves' Case, L. R. 4 Q. B. 715, 723 (where Mr. Justice Blackburn said: "The distinction between an original painting and its copy is well understood, but it is difficult to say what is meant by an original photograph. All photographs are copies of some object, such as a painting or a statue, and it seems to me that a photograph taken from a picture is an original photograph, in so far that to copy it is an infringement of this statute").

(2)

[a] Originality of photographs.(1) The word 'writings' is not limited to the actual script of the author, but includes his printed books, and all forms of writing, printing, engraving, etching, etc., by which the ideas in his mind are given visible expression. A photograph may therefore be the subject of copyright, for it may give visible expression to an author's idea or conception. Whether a photograph of a building or any other object, which is a mere mechanical reproduction of the physical features or outlines of the object, involving no originality or novelty on the part of him who takes it, is the subject of copyright, may well be doubted. But if a photograph be not only a lightwritten picture of some object, but also an expression of an idea, or thought, or conception of the one who takes it, it is a writing within the Constitutional sense, and the [b] Public building and surround- proper subject of copyright." AmeriV.ings.-"The question is not, as decan Mutoscope, etc., Co. v. Edison fendant suggests, whether the photo- Mfg. Co., 137 Fed. 262, 265. graph of a public building may prop"But it is said that an engraving, a erly be copyrighted. Any one may painting, a print, does embody the take a photograph of a public buildintellectual conception of its author, ing and of the surrounding scene. in which there is novelty, invention, It undoubtedly requires originality originality, and therefore comes to determine just when to take the within the purpose of the Constituphotograph, so as to bring out the tion in securing its exclusive use or proper setting for both animate and sale to its author, while the photoinanimate objects, with the adjunc- graph is the mere mechanical reprotive features of light, shade, posi- duction of the physical features or tion, etc. The photograph in ques-outlines of some object animate or tion is admirable. The photog- inanimate, and involves no origrapher caught the men and women inality of thought or any novelty in in not merely lifelike, but artistic, the intellectual operation connected positions, and this is especially true with its visible reproduction in the of the traffic policeman. The back- shape of a picture. That while the ground, taking in the building of the effect of light on the prepared plate Engineers' Club and the small trees may have been a discovery in the on Forty-First street, is most pleas- production of these pictures, and ing, and the lights and shades are patents could properly be obtained exceedingly well done. There for the combination of the chemother features, which need not be icals, for their application to the discussed in detail, such as the paper or other surface, for all the 43. Bamforth V. Douglass Post motor cars waiting for the signal to machinery by which the light reCard, etc., Co., 158 Fed. 355; Edison proceed. The work, it seems to me, flected from the object was thrown v. Lubin, 122 Fed. 240, 58 CCA 604 comes well within what the authori- on the prepared plate, and for all [rev 119 Fed. 993, and app dism 195 ties have held to be the subject- the improvements in this machinery, U. S. 625, 25 SCt 790, 49 L. ed. 349]. matter of copyright." Pagano and in the materials, the remainder [a] Artistic nature of photograph. Chas. Beseler Co., 234 Fed. 963. 964. of the process is merely mechanical, -A photograph may be something 46. Graves' Case, L. R. 4 Q. B. with no place for novelty, invention, more than a mere mechanical and 715. But see Champney v. Haag, 121 or originality. It is simply the chemical product, and may rise to Fed. 944 (where the validity of the manual operation, by tne use of the dignity of art through the blend- copyright of a photograph of a copy- these instruments and preparations, ing of the mechanical parts of therighted painting was questioned, but of transferring to the plate the vis

41. Thornton v. Schreiber, 124 U. S. 612, 8 SCt 618, 31 L. ed. 577; Burrow-Giles Lithographic Co. Sarony, 111 U. S. 53, 4 SCt 279, 28 L. ed. 349 [aff 17 Fed. 591]; Pagano v. Chas. Beseler Co., 234 Fed. 963; Gross v. Seligman, 212 Fed. 930, 129 CCA 450; American Mutoscope, etc., Co. v. Edison Mfg. Co., 137 Fed. 262; Falk v. Curtis Pub. Co., 98 Fed. 989; Bolles v. Outing Co., 77 Fed. 966, 23 CCA 594 [aff 175 U. S. 262, 20 SCt 94, 44 L. ed. 156]; Falk v. Donaldson, 57 Fed. 32; Falk v. Brett Lith. Co., 48 Fed. 678; Falk v. Gast Lith. Co., 48 Fed. 262 [aff 54 Fed. 890, 4 CCA 648]; Falk v. Howell, 37 Fed. 202.

V.

42. Pagano v. Chas. Beseler Co., 234 Fed. 963; Gross v. Seligman, 212 Fed. 930, 129 CCA 450; Edison Lubin, 122 Fed. 240, 58 CCA 604 [rev 119 Fed. 993, and app dism 195 U. S. 625, 25 SCt 790, 49 L. ed. 349]; Bolles v. Outing Co., 77 Fed. 966, 23 CCA 594, 46 LRA 712 [aff 175 U. S. 262, 20 SCt 94, 44 L. ed. 156].

are

V.

48

before copyright is secured, the proprietor cannot obtain a valid copyright thereon by making slight and merely colorable changes therein, as by an alteration of the negative from which it is printed.49 A picture produced from a negative which has been altered by etching is not a photograph subject to copyright as such.50 A series of photographs on a film suitable for projecting moving pictures on a screen may be copyrighted as a photograph,51 although in taking the negatives the camera was placed in different localities.52 At least this was true as the law stood prior to its amendment in 1912. By the act of 1909, as amended by the act of 1912, motion picture photoplays and other motion pictures are made distinct subjects of copyright, and in view of this fact it is, perhaps, no longer proper to copyright them as photographs. The court will not inquire as to whether a photograph is good, bad, or indifferent, and artistic merit is immaterial.54

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"print, ""
'"painting,"
‚"'"'drawing," and "chromo.'' 60

61

The subject matters formerly described by the terms
engraving, cut, painting, drawing, and chromo are
now copyrightable either as "prints and pictorial
illustrations," or under other designations in the
statute. The words "engraving, cut and print,"
as used in the prior statutes, were by the act of
1874 expressly limited so as to apply only "to pic-
torial illustrations or works connected with the fine
arts.'' 62
This act of 1874 was not repealed by the
general copyright act of 1909.63 It has been said
that the word "print," as used in the statute in
connection with "engraving," "cut," and "photo-
graph," means apparently a picture, something com-
plete in itself, similar in kind to an engraving, cut,
or photograph. The term "print" may include a

64

In England the copyright of photographs is conferred by the grant of copyright to "every artistic work, 55 it being expressly provided that the phrase "artistic work" shall include "photoible representation of some existing | above." Rules and Regulations for object, the accuracy of this repre- Registration of Claims to Copyright sentation being its highest merit. (Copyright Office Pul. No. 15), rule This may be true in regard to the ordinary production of a photograph, and, further, that in such case copyright is no protection. On the question as thus stated we decide nothing." Burrow-Giles Lith. Co. v. Sarony, 111 U. S. 53, 58, 4 SCt 279, 28 L. ed. 349 [aff 17 Fed. 591].

a

48. See supra § 50; and generally as to effect of publication supra §§ 40-45.

49. Snow v. Laird, 98 Fed. 813, 39 CCA 311.

50. Snow v. Laird, 98 Fed. 813, 39 CCA 311.

[a] Picture reproduced from partly etched negative. A picture which was produced by the use of a negative which had been changed by etching so as to introduce into the picture an object which was not in the group of objects which were exposed to the camera could not be copyrighted as a photograph. Snow v. Laird, 98 Fed. 813, 39 CCA 311.

51. Harper v. Kalem Co., 169 Fed. 61, 94 CCA 429 [aff 222 U. S. 55, 32 SCt 20, 56 L. ed. 92, AnnCas1913A 1285]; American Mutoscope, etc., Co. V. Edison Mfg. Co., 137 Fed. 262; Edison v. Lubin, 122 Fed. 240, 58 CCA 604 [rev 119 Fed. 993, and app dism 195 U. S. 625, 25 SCt 790, 49 L. ed. 349]; Barker Motion Photography, Ltd. v. Hutton & Co., Ltd., 28 L. T. R. 496.

"The series of photographs taken by the defendant constitutes a single picture, capable of copyright as such." Harper v. Kalem Co., 169 Fed. 61, 63, 94 CCA 429 [aff 222 U. S. 55, 32 SCt 20, 56 L. ed. 92, Ann Cas1313A 1285].

Notice of copyright on moving picture films see infra § 218.

52. American Mutoscope, etc., Co. v. Edison Mfg. Co., 137 Fed. 262.

53. Act March 4, 1909 (35 U. S. St. at L. 1075 c 320 § 5), as amended by Act Aug. 24, 1912 (37 U. S. St. at L. 488).

Moving picture

infra §§ 120-122.

copyrights see

54. See supra § 98.

16.

60. U. S. Rev. St. § 4952; Act March 3, 1891 (26 U. S. St. at L. 1107 c 565 § 1); Act Jan. 7, 1904 (33 U. S. St. at L. 4 c 2 § 1); Act March 3, 1905 (33 U. S. St. at L. 1000).

[b] Illustrations not connected with fine arts.-"The protection of the law is not confined to pictorial illustrations known as works of fine arts. This was not so even under the preceding act. In the case of Bleistein v. Donaldson Lith. Co., 188 U. S. 239, 23 SCt 298, 47 L. ed. 460, Justice Holmes, delivering the opinion of the court, said: We see no reason for taking the words connected with "the fine arts" as quali

[a] Transitory character of pictures in a periodical affords no reason for denying them copyright pro-fying anything except the word tection. Mail, etc., Co. v. Life Pub. Co., 192 Fed. 899, 113 CCA 377. 61. See supra § 90.

[a] "Postal cards can not be copyrighted as such. The pictures thereon may be registered as 'prints or pictorial illustrations' or as 'photographs.' Text matter on a postal card may be of such a character that it may be registered as a 'book.' Rules and Regulations for Registration of Claims to Copyright (Copyright Office Bul. No. 15), rule 18(m). Artistic works see supra §§ 114

116.

Drawings or supra § 117.

plastic works see

62. Act June 18, 1874 (18 U. S. St. at L. 78 c 301 § 3); Bleistein v. Donaldson Lith. Co., 188 U. S. 239, 23 SCt 298, 47 L. ed. 460 [rev 104 Fed. 993, 44 CCA 296]; National Cloak, etc., Co. v. Kaufman, 189 Fed. 215.

[a] Construction of statute."The act however construed, does not mean that ordinary posters are not good enough to be considered within its scope. The antithesis to 'illustrations or works connected with the fine arts' is not works of little merit or of humble degree, or illustrations addressed to the less educated classes; it is 'prints or labels designed to be used for any other articles of manufacture.' Certainly works are not the less connected with the fine arts because their pictorial quality attracts the crowd and therefore gives them a real use if use means to increase trade and to help to make money. A picture is none the less a picture and none the less a subject of copy

55. Copyright Act, 1911 (1 & 2 right that it is used for an adverGeo. V c 46 § 1).

56. Copyright Act, 1911 (1 & 2 Geo. V c 468 35).

57. St. 25 & 26 Vict. c 68 8 1; Graves' Case, L. R. 4 Q. B. 715 (photograph of a picture protected). 58. See also infra § 141.

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

[a] "This term comprises all printed pictures not included in the various other classes enumerated

tisement. And if pictures may be used to advertise soap, or the theatre, or monthly magazines, as they are, they may be used to advertise a circus. Of course, the ballet is as legitimate a subject for illustration as any other. A rule cannot be laid down that would excommunicate the paintings of Degas." Bleistein Donaldson Lith. Co., 188 U. S. 239. 251, 23 SCt 298, 47 L. ed. 460 [rev 104 Fed. 993, 44 CCA 296].

V.

"works," but it would not change our decision if we should assume further that they also qualified "pictorial illustrations," as the defendant contends.' If there is any limitation whatever to this term, it must be found in the words of the Constitution confining pictorial illustration to the 'useful arts.'" National Cloak, etc., Co. v. Kaufman, 189 Fed. 215, 218. But see Royal Sales Co. v. Gaynor, 164 Fed. 207, 209 (where Ward, J., uses the phrase "connected with the fine arts" to qualify "pictorial illustrations" as subjects of copyright); J. L. Mott Iron Works v. Clow, 72 Fed. 168 [aff 82 Fed. 316, 27 CCA 250] (where Grosscup. J., held illustrations in an advertisement not copyrightable because not connected with the fine arts).

[c] Chromolithographic advertisements of a circus, portraying a ballet, a number of persons performing on bicycles, and groups of men and women whitened to represent statues, are proper subjects of copyright as "pictorial illustrations." Bleistein v. Donaldson Lith. Co., 188 U. S. 239, 23 SCt 298, 47 L. ed. 460 [rev 104 Fed. 993, 44 CCA 296].

63. Stecher Lith. Co. v. Dunston Lith. Co., 233 Fed. 601; 28 Op. Atty.Gen. 116; Copyright Office Bul. No. 14 p 40. See also infra § 141.

64. Rosenbach v. Dreyfuss, 2 Fed. 217.

[a] Pattern prints of balloons with directions and cutting lines, designed to be cut up and made into the physical articles, are not copyrightable as prints. Rosenbach v. Dreyfuss, 2 Fed. 217.

is

[b] Railroad ticket.-"The ticket certainly not a map, chart or musical composition, nor is it a print or engraving, within the meaning of the section, although it may be printed or engraved." Griffin v. Kingston, etc., R. Co., 17 Ont. 660, 664.

[c] Pictures printed in successive colors from metal plates, from which plates part of the metal has been cut out so as to leave portions thereof in relief, are within the copyright law. Hills v. Hoover, 136 Fed.

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