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chromolithograph, even though the pictures are photograph. By the Copyright Act of 1911 it is drawn from life. The word 'illustrations' does provided that, in the case of a literary or dramatic not mean that the pictures must illustrate the text work, “copyright” shall include the sole right of a book.67 A design for playing cards has been to make any “cinematograph film, or other condeemed a print. A mere pattern print is not trivance by means of which the work may be copyrightable “print” within the statute;69 neither mechanically performed or delivered," and is a photograph. An engraving reproducing an cinematography” is defined as including any existing work of art is itself copyrightable. 71 work"produced by any process analogous to

In England engravings, cuts, prints, and pictorial cinematography." 79 illustrations are and long have been copyrightable.72 [121] b. Motion Picture Photoplays. By the The act of 1911 provides that "artistic work” shall act of 1912, amending the act of 1909,50 congress include “engravings," and that the latter term specifically authorized the copyrighting of "motion shall include "etchings, lithographs, wood-cuts, picture photoplays' as such, either as a published prints, and other similar works, not being photo- or as an unpublished work.82 The scenario and the

photoplay made therefore may be copyrighted sepa[120] 12. Motion Pictures74 -a. In General. rately.


A photoplay founded on a novel is a In the United States, neither tlfe act of 1909, nor dramatization of the novel and may be copyany prior act, made any mention of motion pic- righted.84 tures, 5 although, as has been seen, motion picture [122] C. Motion Pictures Other Than Photofilms were copyrightable as photographs.76

plays. "Motion pictures other than photoplays” In England, under the former law, cinematograph were specifically authorized to be copyrighted as films were entitled to protection like any

other such by the amendment of 1912,85 even when un701; Hills v. Austrich, 120 Fed._862. notes 51, 52.

versal Film Mfg. Co. v. Copperman, 65. Bleistein V. Donaldson Lith. Infringement of photographic copy- 218 Fed. 577, 134 CCA 305 [aff 212 Co., 188 U. S. 239, 23 SCt 298. 47 L. right see infra § 328.

Fed. 301]; Photo-Drama Motion Piced. 460 (rev 104 Fed. 993, 44 CCA 77. Barker Motion Photography, ture Co. v. Social Uplift Film Corp., 296); De Jonge v. Breuker, etc., Co., Ltd. v. Hutton & Co., Ltd., 28 T. L. Ř. 213 Fed. 374 [aff 220 Fed. 448, 137 182 Fed. 150 [aff 191 Fed. 35, 111 496. See also supra g 118.

CCA 421. CCA 567 (235 U. S. 33, 35 Sct 6, 59 78. St. 1 & 2 Geo. V c 46 $ 1 (2). (a) Motion picture photoplay L. ed. 113)] (reproduction of paint- 79. St. 1 & 2 Geo. V c 46 $ 35 (1). from drama.-The copyright of ing for use as cover for holiday 80. Act March 4, 1909 (35 U. S. motion picture photoplay made from goods may be either copyrighted or St, at L. 1075 C 320 $ 5), as amended an unpublished drama does not conentered in patent office); Yuengling by Act Aug. 24, 1912 (31 U. S. St, at stitute a copyright of the original v. Schile, 12 Fed. 97, 20 Blatchf. 452. L. 488).

drama. O'Neill v. General Film Co., But see Hills v. Hoover, 136 Fed. 701 81. Klein v. Beach, 232 Fed. 240 171 App. Div. 854, 157 NYS 1028. (where, following Hills v. Austrich, (aff 239 Fed. 108, 151 CCA 282); [b] Separation of various rights. 120 Fed. 862,"prints". are distin- | Photo-Drama Motion Picture Co. v. "It was undoubtedly held in Kalem guished from "chromos". in respect Social Uplift Film Corp., 220 Fed. Co. v. Harper, 222 U. S. 55, 32 SCt 20, to the application of the domestic 448, 137 CCA 42; Universal Film Mfg. 56 L. ed. 92, AnnCas1913A 1285, that manufacturing clause).

Co. v. Copperman, 218 Fed. 577, 134 the owner of dramatic rights might 66. Bleistein v. Donaldson Lith.

CCA 305 [aff 212 Fed. 301); Universal forbid their dramatic representation Co., 188 U. S. 239, 23 Sct 29 8, 47 L. Film Mfg. Co. v. Copperman, 212 Fed. by moving pictures, and to the ed.' 460 [rey 104 Fed. 993, 44 CCA 301 [aff 218 Fed. 577, 134 CCA 305). present time the only right to pro296).

82. Act March 4, 1909 (35 U. S. tect moving pictures arises from the 67. Bleistein V. Donaldson Lith. st. at L. 1075 c 320 § 11), as amended words 'dramatic' or 'drama. Thus, Co., 188 U. S. 239, 23 Sct 298, 47 L.

by Act Aug. 24, 1912 (37 U. S. St, at the statutory right to protect against ed. 460 [rev 104 Fed. 993, 44 CCA L. 488).

the making of a moving picture 2961.

[a] Construction of amendment scenario from a book still arises from "These chromolithographs are 'pic

"It is said that the effect of this section 1, subd.. 'b,' and the statutory torial illustrations. The word 'illus- amendment is to add to the list of right to protect against infringement trations' does not mean that they things that may be copyrighted withmust illustrate the text of a book out any reference to publication, so

of the scenario arises from section 1,

subd. 'd.' and that the etchings of Rembrandt

Yet the proceedings for that under section 11, as it now registration of the moving picture or Steinla's engraving of the Madonna di San Sisto could not be pro- righted without publication, and it by sections 5 and 11 of the amend.

stands, a photo play may be copy-play are now specifically controlled tected to-day if any man were able

may also be copyrighted after pub- ment of 1912, and it appears that it to produce them." Bleistein v. Don

lication. aldson Lith. Co., supra.

I am not prepared to ad- is one thing to secure the copyright 68. Richardson Miller, 20


mit that section 11 has any such upon a drama proper and another to

It is not believed that the
Cas. No. 11,791 (where it was held meaning.

secure it on a moving picture play. phrase, 'works of an author, of which A

man that a design for playing cards was

having general statutory copyrightable).

copies are not reproduced for sale,' dramatic rights like Kauffman might (a! The novelty of a design may

was intended to modify any other make a play and perform it under his consist in the form, outline, or group

nouns except 'lecture,' 'dramatic com- common-law rights without publicaing, or in the use, combination, ar

position,' and 'musical composition.' tion, or he might copyright the play,

the rangement, or harmony, of colors, or

To speak of a photograph as and he would still not have copythe combination of some or all of

work of an author of which copies righted or published his moving picthese attributes. Richardson v. Mil

are not reproduced for sale is ab- ture rights. If he wrote such a ler. 20 F. Cas. No. 11.791.

surd. But, in order to maintain the scenario and made his film, he could 69, Rosenbach v. Dreyfuss, 2 Fed. argument as to two kinds of copy- get a separate copyright upon that. 217. Compare Drury v. Ewing. 7 right, it must be asserted that Of course, he could sell his statutory F. Cas. No. 4,095, 1 Bond 540 (where photograph or a drawing or a work or common-law copyright of the play it was held that dress pattern

of art or a motion picture or a photo and keep the moving picture copymight be copyrighted as a print or play may be copyrighted at any time right, or he could sell each. It chart).

without reference to the use made of seems to me clear that, if he could 70. Wood v. Abbott, 30 F. Cas. it, provided only that 'copies are not do this, he could sell separately the No. 17,938, 5 Blatchf. 325. See also reproduced for sale. In my opinion right to dramatize and the right to supra 118.

it is still true that all the articles make a moving picture play, dividing 71. Lucas v. Cooke, 13 Ch. D. 872. enumerated in section 11 can only be his statutory dramatizing rights, and

72. Newton v. Cowe, 4 Bing. 234, protected on publication by affixing thus giving each assignee the right 13 ECL 482, 130 Reprint 759. See the notice of copyright required by when he had exercised those rights Blackwell v. Harper, 2 Atk. 93, 26 this act, so that, no matter whether to get his own copyright for a drama, Reprint 458 (holding that the act is an article be enumerated in section or for a moving picture show." not confined to works of invention 11 or not, the inquiry is still import Photo-Drama Motion Picture Co. y. only, but means the designing or en- ant, when it was published, and, if it Social Uplift Film Corp., 213 Fed. graving of anything that is already was published before copyright reg- 374, 377 [aff 220 Fed. 448, 137 CCA in nature).

istered, then the copyright sought is 42]. 73. St. 1 & 2 Geo. V c 46 $$ 1, 35. invalidated." Universal Film Mfg. 84. O'Neill v. General Film Co.,

74. Infringement by see infra Co. V. Copperman, 212 Fed. 301, 303 171 App. Div. 854, 157 NYS 1028 (aff § 317. [aff 218 Fed. 577, 134 CCA 305).

152 NYS 599). 75. But see infra 88 121, 122. 83. Klein v. Beach, 232 Fed. 240


Act March 4, 1909 (35 U. S. 76. See supra $ 118 text and ) [aff 239 Fed. 108, 151 CCA 282); Uni- St. at L. 1075 c 320 § 5), as amended




published.S& This provision seems broad enough to are themselves now copyrightable as dramatic,93 or include motion pictures not produced by a photo- musical,94 compositions, as the case may be, prographic process, although perhaps it was only in- vided they are not themselves piracies. There is tended to draw a distinction between dramatic and no requirement in the statute that such compositions nondramatic films, such as exists under the English shall be first copyrighted in ordinary printed or statute.87

manuscript form, unless such requirement is im[123] 13. Mechanical Devices; Music Rolls, plied in the constitutional word "writings,'' 97 conRecords, Etc. In the United States, prior to the strued as meaning a visible expression of an auact of 1909, perforated music rolls, phonograph discs thor's concept.98 Copyright in such a record is or cylinders, or other like devices for the mechani- analogous to copyright in an adaptation or other cal reproduction of sound were not within the pro- version of an existing work which the statute extection of the copyright laws,88 and did not even pressly declares may be copyrighted as a new work. infringe protected works which they were the means Intellectual labor, skill, and individuality enter into of audibly reproducing. The act of 1909 plainly the preparation of such records, and they would makes such mechanical devices, if unauthorized, in- seem to be within the description of "the writings fringements of copyrighted dramatic and musical of an author;'' if so, they are copyrightable.? works which they serve to reproduce. But it is In England it is specifically provided that copynot so clear whether or not this act has made such right shall subsist in records, perforated rolls, and devices themselves capable of copyright, and they other contrivances by means of which sounds may do not fall within any of the specified thirteen be mechanically reproduced, in like manner as if classes of copyrightable subject matter unless they such contrivances were musical works.3 Under prior may be termed dramatic or musical compositions. statutes such devices were not copyrightable as Of course, they are now indirectly protected through "books” which by statutory definition included a the copyright on the composition reproduced by "sheet of music. '14 them. It is possible, however, that such devices [ 1241 14. Articles Designed for Physical Use. by Act Aug. 24, 1912 (37 U. S. St. at tains control of the right to manu- 147 Fed. 226, 77 CCA 368 (aff 209 L. 488).

facture music rolls, and the U. S. 1, 28 SCt 319, 52 L. ed. 655. 14 86. Act March 4, 1909 (35 U. S. mechanical reproduction of such

AnnCas 628)] (where it is said: "The St. at L. 1075 C 320 5), as amended music or composition is optional with meaning of the word 'writings,' as by Act Aug. 24, 1912 (37 U. S. St. at him." Aeolian Co. v. Royal Music employed in the Constitution, has L. 488). Roll Co., 196 Fed. 926, 927.

been expressly defined in Burrows87. St. 1 & 2 Geo. V c 46 $ 35(1) 93. Act March 4, 1909 (35 U. S. Giles Lith. Co. v. Sarony, 111 U. S. (where it is provided that the phrase St. at L. 1075 C 320 g 1(d)).

53, 4 SCt 279, 28 L, ed. 349, to include "dramatic work" shall include "any [a] The statute provides that the ‘all forms of writing, printing, encinematograph production where the owner of a dramatic copyright shall graving, etching, etc.. by which the arrangement or acting form or the have the exclusive right: "To per- | ideas in the mind of the author are combination of incidents represented form or represent the copyrighted given visible expression.' The regive the work an original char- work publicly if it be a drama or, if stricted definition of the word 'writacter").

it be a dramatic work and not repro- | ings' does not, it is thought, permit [a] Reasons for distinction.-"No duced in copies for sale, to vend the inclusion in section 4952 of the doubt there is a logical principle any manuscript or any record what- Revised Statutes (U. S. Comp. St. underlying the distinction between a soever thereof; to make or to pro- 1901, p. 3406] of a musical concepdramatic and a non-dramatic film- cure the making of any transcription

tion, or the inclusion of collated the former is the result of an in- or record thereof by or from which, musical sounds or expressions of a tellectual effort combined with tech- in whole or in part, it may in any

musical composition. The words of nical skill; to produce the latter only

or by any method be ex- the statute have reference to the the technical skill is needed. The hibited, performed, represented, pro- tangible object that appeals to the former is therefore given by the Act duced, or reproduced; and to exhibit, sense of sight, and that which is susa higher degree of protection as a perform, represent, produce, or repro- ceptible of being reproduced by printdramatic work, the latter a lower de- duce it' in any manner or by any ing, copying, publishing, etc.”). gree of protection as a photographic method whatsoever." Act March 4, [a] Phonographic record of song work. At the same time it is thought | 1909 (35 U. S. St. at L. 1075 C 320 as" sheet of music."-A phonograph that logic might in this case have $ 1(d)).

record of a song reproducing both been sacrificed to convenience, and 94. Act March 4, 1909 (35 U. S.

words and music is not a "sheet of the distinction certainly seems likely st. at L. 1075 C 320 § 1(e)).

music," and therefore not "a book” to give rise to difficulties in some

[a] The statute provides that the

within § 2 of the Copyright Act of cases, particularly as the dividing owner of the copyright in a musical

1842. Newmark v. National Phonoline between a dramatic and non

composition shall have the exclusive graph Co., Ltd., 51 Sol. J. 412. dramatic film may not always be right: “(a) To print, reprint, pub

99. Copinger Copyright (5th ed) easy to draw.”

Copinger Copyright lish, copy, and vend the copyrighted P 278. (5th ed) p 251.

(e) To perform the

Act March 4, 1909 (35 U. S. St. 88. White-Smith Music Pub. Co. v. copyrighted work publicly for profit

at L. 1075 c 320 g 6). See supra § 95. Apollo Co., 209 U. S. 1, 28 SCt 319, 52 if it be a musical composition and

2. See supra $$ 85, 90. See also L. ed. 655, 14 AnnCas 628; Kennedy v. McTammany, 33 Fed. 584 (app

for the purpose of public perform- Aeolian Co. v. Royal Music Roll Co., ance for profit; and for the purposes

196 Fed. 926 (where, although it is dism 145 U. S. 643 mem, 12 SCt 983 set forth in subsection (a) hereof, to

said that music rolls or records are mem, 36 L, ed. 853 mem). make any arrangement or setting of

not directly copyrightable, licensed 89. See infra $ 322. it or of the melody of it in any sys

rolls were protected against copying 90. See infra 88 322, 323. tem of notation or any form of rec

by others under the statutory com91. See supra $ 90.

ord in which the thought of an au- | pulsory license, on the ground that 92. See infra § 322.

thor may be recorded and from which others had no right to appropriate [a] Indirect protection.—"While, it may be read or reproduced.” Act the skill and labor of the original under the provisions of the copyright March 4, 1909 (35 U. S. St. at L. 1075 maker of the roll or record. The law, such music rolls or records are C 320 g 1(a), (e)).

equity of this is manifest, but it is a not strictly matters of copyright, 95. See supra § 91.

little difficult to how defendCongress in passing the enactment 96. Congress was not concerned ant infringed the musical copyright, evidently intended to protect copy- in the particular method by which which was the ground of the deright proprietors in their right to the author should impart his ideas cision, as defendant had a statutory their productions, and to give them to the public." Per Fowler in 28 right to make records to mechanan exclusive right to print, publish, Op. Atty.-Gen. 265, 269 (holding that ically reproduce such music, and it and vend the same. If the copy

typewritten books may

is also difficult

how the righted work be a musical composi- righted).

musical copyright protected the skill tion, the owner, under the provisions [a] Printing not necessary-8

of the licensee). of the statute, after complying tnere- Anne c 19 did not impose on authors, 3. Copyright Act, 1911 (1 & 2 Geo. with, has the exclusive right to per- as a condition precedent to their de- V c 46 $ 19(1)); Monckton v. Pathé form it publicly for profit, and may, riving any benefit under it that the Fréres Pathephone, Ltd. [1914) 1 K. if he chooses so to do, make 'an composition should be first printed. B. 395; Chappell & Co., Ltd. v. arrangement setting'

the White v. Geroch, 2 B. & Ald. 298, 106 Columbia Graphophone Co., [1914] 2 musical composition, published Reprint 376, 1 Chit. 24, 18 ECL 28. Ch. 745. copyrighted after the passage of the

See supra $ 85.

4. Boosey v. Whight, [1900] 1 Ch. act, for mechanical reproduction. In

98. White-Smith Music Pub. Co. 122, 2 BRC 85; Newmark v. National this manner the copyright owner re- V. Apollo Co., 139 Fed. 427, 430 [aff | Phonograph Co., Ltd., 51 Sol. J. 412.









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Except, perhaps, such devices as perforated music ment publications, but does not always enforce it.10 rolls, disc and cylinder records, for the mechanical [ 0 126] 16. Official Letters and Documents. The reproduction of dramatic and musical compositions, author or proprietor may obtain a copyright in ofliarticles designed for physical use rather than to cial letters and documents, if their publication is convey information or intellectual conceptions are not contrary to public policy;"? but such right is not copyrightable, and must be protected, if at all, subject to that of the government to publish such under the patent laws.? This rule has been applied documents when the public survice renders it necesto indexed letter files, card index cards, score sary. cards,1° railway tickets,11 paper cut-outs for making [127] 17. Translations.19 Translations from a articles,12 and other devices. 13

foreign language are original works within the [125] 15. Government Publications. In the meaning of the copyright law, and may be copyUnited States the act of 1909 expressly provides righted.2 If the question was ever doubtful, the that no copyright shall subsist in "any publication doubt has been removed by express statutory enactof the United States Government, or any reprint, ment that translations shall be regarded as new in whole or in part thereof." 14 But the publication works subject to copyright.21 of copyright matter by the government, either sepa- [ 128] 18. Market Quotations and News Items. rately or in a public document, does not cause any Market quotations and news items transmitted by abridgment or annulment of such copyright or au- telegraph and printed on “tickers” are not the

thorize any use of such matter, without the consent subject of statutory copyright.22 But the system • of the copyright owner.15

and business of furnishing such telegraphic news In England the crown has copyright in govern- service may constitute property which will be pro5. See supra § 123.

[a] Blank account books are not Representatives, Jan. 30, 1907, No. 6. Amberg File, etc., Co. v. Smith, the subject of a copyright. Baker v. 7083 p 10. 82 Fed. 314, 315, 27 CCA 246 (aff 78 Selden, 101 U. S. 99, 25 L. ed. 841; 16. St. 1 & 2 Geo. V c 46 $ 18. Frd. 479); Libraco, Ltd. Shaw Griffin v. Kingston, etc., R. Co., 17 Crown copyright see infra § 164. Walker, Ltd., 58 Sol. J. 48. Ont. 660, 665.

17. Folsom v. Marsh, 9 F. Cas. "The copyright law embraces those [b] A campaign badge in the form | No. 4,901, 2 Story 100. things that are printed and published of a monogram is not copyrightable, 18. Folsom v. Marsh, 9 F. Cas. for information, and not for use in and must be protected. if at all, by No. 4,901. 2 Story 100. themselves." Amberg File, etc., Co. a design patent. Royal Sales Co. v. 19, Translations as infringements v. Smith, supra. Gaynor, 164 Fed. 207.

see infra § 301. [a] The test"The character of [c] An album for holding photo- 20. Stevenson v. Fox, 226 Fed. what is published is the test of copy- graphs, with pictorial borders con- 990; Emerson v. Davies, 8 F. is. right. If what is published is not taining views of castles with short No. 4,436, 3 Story 768; Lesser v. separately published, is not a pub- descriptions attached, is not a "book" Sklarz, 15 F. Cas. No. 8.276a; Shook lication complete in itself, but is within 5 & 6 Vict. c 45 § 1, so as to V. Rankin, 21 F. Cas. No. 12.804. 6 only a direction on a tool or machine, be capable of obtaining copyright for Biss. 477; Fleron v. Lackaye. 14 NYS to be understood and used with it, the contents. Schove v. Schmincke, 292; Byrne v. Statist Co., (1914) 1 K. such direction cannot, in my opinion, 33 Ch. D. 546.

B. 622; Lauri v. Renad, (1892) 3 Ch. be severed from the tool or machine [d] Directions on device 402; Wood v. Chart, L. R. 10 Eq. 193; of which it is really part, and can- measuring apparatus, useful only in Burnett v. Chetwood (cit Southey v. not be monopolized by its inventor connection with that apparatus, are Sherwood, 2 Meriv. 435, 441, 35 Reunder the copyright act." Hollin- not such a literary production as is print 1006): Wyatt v. Barnard. 3 Ves. rake v. Truswell, [1894] 3 Ch. 420, subject to copyright. Hollinrake V. & B. 77, 35 Reprint 408; Rooney v. 426 (per Lindley, J.).

Truswell, (1894) 3 Ch. 420. 424 Kelley, 14 Ir. C. L. 158. 7. Amberg File, etc., Co. v. Smith, (where Herschell, L. C., said: "What 21. Act March 4, 1909 (35 U. S. St. 82 Fed. 314, 27 CCA 246 (aff 78 Fed. the Plaintiff has sought to protect at L, 1075 c 320 6). 479); Hollinrake v. Truswell. (1894) under the Act for the protection of 22. National Tel. News Co. 3 Ch. 420. See Patents [30 Cyc 803). literary productions is not a literary Western Union Tel, Co., 119 Fed. 294,

8. Amberg File, etc., Co. v. Smith, production, but an apparatus for the 298, 60 LRA 805 (where the court 82 Fed. 314, 27 CCA 246 (aff 78 Fed. use of which certain words and fig- said that printed tape “has no value 479).

ures must necessarily be inscribed at all as a book or article. It lasts 9. Hollinrake v. Truswell, (1894) upon it. It is quite true that, not- / literally for an hour, and is in the 3 Ch. 420; Libraco, Ltd. V. Shaw withstanding the words of the pre- waste basket when the hour has Walker, Ltd., 58 Sol. J. 48 (holding amble, the protection of copyright passed. It is not desired by the that cards adapted for use in a card may be obtained for works which patron for the intrinsic value of the index system, which of themselves cannot be said, in the ordinary sense happening recorded--the happening, convey no meaning or information, of the term to have literary merit. as an happening, may have no value. are not copyrightable).

But there is, as I have pointed The value of the tape to the patron 10. Page v. Wisden; 20 L. T. Rep. Jout, `a marked distinction between is almost wholly in the fact that the N. S. 435, 436 (where a line in a scor- these and the claim of protection un- knowledge thus communicated ing sheet with the words "runs at the der the Copyright Act for words and earlier, in point of time, than knowlfall of each wicket" was held not figures inscribed on and necessarily edge communicated through other capable of copyright, a particular forming part of apparatus or means,

persons other than mode of ruling a book not constitut- tool").

those having a like service. In just ing an object of copyright).

14. Act March 4, 1909 (35 St. at L. this quality-to coin a word, the pre11. Griffin v. Kingston, etc., R. Co., 1075 C 320 $ 7); Du Puy v. Post Tele- communicatedness of the information 17 Ont. 660 (applying rule to gram Co., 210 Fed. 883, 127 CCA 493; --is the essence of appellee's servscore cards to railway tickets). Woodman v. Lydiard-Peterson Co., ice; the quality that wins from the

12. Rosenbach v. Dreyfuss, 2 Fed. 192 Fed. 67 (aff 204 Fed. 921, 123 CCA patron his patronage"). 21? (where it was held that prints 243, and reh den 205 Fed. 900, 126 [a] Reason for rule.-"Judged by of balloons and hanging baskets, with CCA 434] (government map).

a test like this, the printed matter printing on them for embroidery and 15. Act March 4, 1909 (35 U. S. on the tape in question is in no sense cutting lines, showing how the paper St. at L. 1075 C 320 § 7).

copyrightable. It is, at most, the may be cut and joined to make the [a] Purpose of statute "Section mere annal of events transpiring. different parts fit together, and not 7 was inserted for the reason that True, the happenings of a race track, intended as a mere pictorial repre- the Government often desires to or the incidents of a college boat sentation of something, are not copy- make use in its publications of copy- race, may be put in narrative, involvrightable); Hollinrake v. Truswell, righted material, with the consent of ing creative imagination; or the do[1894) 3 Ch. 420 (cardboard pattern the owner of the copyright, and it ings of a board of trade become the sleeve).

has been regarded heretofore basis of a useful book article 13. Royal Sales Co. v. Gaynor, 164 necessary to pass a special act every evincing originality. But the printed Fed. 207. See also supra $ 101. time this was done, providing that tape under consideration is no such

"No copyright exists in toys, such use by the Government should book or article, and affects no such games, dolls, advertising novelties, not be taken to give to anyone the dignity. It is, in its totality, nothinstruments or tools of any kind, right to use the copyrighted material ing more or less than the transmisglassware, embroideries, garments, found in the Government publication. sion by electricity, over long dislaces, woven fabrics, or any similar It was thought best, instead of being tances, of what a spectator of the articles." Rules and Regulations for obliged to resort every little while event, occupying a fortunate position Registration of Claims to Copyright to a special act, to have some general to see or hear, would have communi(Copyright Office Bul. No. 15) rule legislation on this subject." Report cated, by word of mouth, to his less

of Committee on Patents to House of fortunate neighbor. It is

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tected under the common law.23 A compilation of tions of patents are not subjects of copyright.35 stock exchange quotations in book form is, how- [ 133] 23. Cyclopedic and Composite Works.86 ever, copyrightable.24

Cyclopedic and composite works may be copy[ 0 129] 19. Credit Ratings.25 A book of credit righted, and the statute now specifically so proratings and financial standing of persons engaged in particular lines of business is entitled to copy- [1134] 24. Legal Works—a. Law Reports. right, where the information has been collected from Law reports may be copyrighted, but such copyright original sources.

will extend only to those parts which are the work [ 0 130] 20. Directories and Gazetteers.27 While of the reporter, such as the syllabi, index, abridgthere are intimations of judicial opinion to the con- ments of the arguments of counsel, statements of trary,28 it has long been settled that directories29 facts, and other like features.3 For reasons largely and gazetteers30 are copyrightable as books, and the of public policy, there can be no copyright in those statute now specifically so provides.31

parts of the report which are the product of the [0 131] 21. Abstracts of Title.32 A book made judges made in the performance of their official up of abstracts of title to lands is copyrightable.3 duties as such,40 including the opinions of the

[132] 22. Patent Specifications. Specificachange merely, over wider area, of Kelly v. Hodge, 29 L. T. Rep. N. S. Co. 372. ordinary sight-seeing; and the ex- 387; Kelly v. Hooper, 1 Y. & Coll. 197, Eng.-Sweet v. Benning, 16 C. B. change is in the language of the ordi- 20 EngCh 197, 62 Reprint 852.

459, 81 ECL 459, 139 Reprint 838; nary sight-seer. Matter of this char- "Directories and works of like Hodges v. Welch, 2 Ir. Eq. 266; Sweet acter is not, within the meaning of character have been specifically pro- Shaw, 3 jur. 217; Saunders v. the copyright law, the fruit of in- tected, at least since Lewis v. Fullar-Smith, 3 Myl. & C. 711, 14 Engch tellectual labor, and would not. if ton, 2 Beav. 6, 17 EngCh 6, 48 Re- 711, 40 Reprint 1100; Sweet V. actually copyrighted, be protected by print 1080 decided in 1839, and that Maugham, 11 Sim, 51, 34 EngCh 51, the oourts. J. L. Mott Iron Works v. they are to be protected is

59 Reprint 793. See Butterworth v. Clow, 82 Fed. 316, 27 CCA 250." | firmly established." Sampson, etc., Robinson, Ves. Jr. 709, 31 Reprint National Tel. News Co. v. Western Co. v. Seaver-Radford Co., 140 Fed. 817 (where an injunction was granted Union Tel. Co., 119 Fed. 294, 56 CCA 539, 542, 72 CCA 55 (rev 134 Fed. against a colorable abridgment of the 198, 60 LRA 805. 890).

Term Reports). Newspapers as subjects of copy- [a] Trade directory.-The head- 40. Callaghan v. Myers, 128 U. S. right see supra § 102.

ings of a trade directory under which 617, 9 SCt 177, 32 L. cd. 547; Banks 23. See supra $ 21, 54.

trade advertisements are classified v. Manchester, 128 U. S. 244, 9 SC 36, 24. Exchange Tel. Co., Ltd. v. are the subject of copyright. Lamb 32 L. ed. 425 [aff 23 Fed. 143); Gregory, 73 L. T. Rep. 120 (app dism v. Evans, [1893) 1 Ch. 218.

Wheaton v. Peters, 8 Pet. (U. S.) 591, (1896) 1 Q. B. 147).

30. See supra note 29.

8 L. ed. 1055; State v. Gould, 34 Fed. 25. Compilations generally

31. Act March 4, 1909 (35 U. S. St. 319; Banks v. West Pub. Co., 27 Fed. supra $ 95. at L. 1075 C 320 $ 5(a)).

50; Little v. Gould, 15 F. Cas. No. 26. Dun Lumbermen's Credit 32. Common-law rights see supra 8,394, 2 Blatchf. 165, 15 F. Cas. No. Assoc., 144 Fed. 83, 75 CCA 241 (aff $$ 7, 8.

8,395, 2 Blatchf. 362 (under N. Y. 209 U. S. 20, 28 SCt 335, 52 L. ed. 33. Banker v. Caldwell, 3 Minn. 94. Const. (1846) art 6 $ 22, which pro663. 14 Anncas 501); Ladd v. Oxnard, See also Stover v. Lathrop, 33 Fed. vides that all "judicial decisions shall 75 Fed. 703. 348 (where, admitting copyright,

be free for publication by any per27. See also supra § 95. there was no infringement).

son"); Ex p. Brown, 166 Ind. 593, 78 28. Hartford Printing Co. v. Hart- 34. See generally Patents [30 Cyc NE 553; Nash v. Lathrop. 142. Mass. ford Directory, etc., Co., 146 Fed. 332, 803).

29, 6 NE 559; Banks v. Manchester, 333.

35. Wyatt v. Barnard, 3 Ves. & B. 2 Del. Co. (Pa.) 372; Tichborne v. “The plaintiff invokes the law be- | 77, 35 Reprint 408. But see Newton Mostyn, L. R. 7 Eq. 55 note. See also cause he was the owner, proprietor, v. Cowe, 4 Bing, 234, 13 ECL 482, 130 Rex v. Clement, 4 B. & Ald. 218, 6 and compiler of a book. In so far as Reprint 759 (where it was held that ECL 458, 106 Reprint 918; Millar v. he may have used his brains to get an engraving on a reduced scale of Taylor, 4 Burr. 2303, 98 Reprint 201; up an artistic book in the way of a specification of a new invention en

Atkins' Case (cit Millar v. Taylor, 4 grouping, classifying, and setting rolled at the patent office may be the

Burr. 2303, 2315, 2316, 98 Reprint forth the facts which it contains, subject of copyright, such reduc-201]); Roper v. Streater (cit Millar there would be reason in his claim; tion having required labor and some v. Taylor, supra); Baskett v. Cambut in so far as he merely records degree of skill to preserve the pro

bridge Univ., 2 Burr. 661, 97 Reprint accurately the names of residents, portions).

499, 2 Ld. Ken. 397, 96 Reprint 1222, with their occupations, and where to 36. Legal encyclopedia see infra W. Bl. 105, 96 Reprint 59; Gurney v. find them at home and in business, $ 137.

Longman, 13 Ves. J. 493, 33 Reprint it is impossible to discover wherein Renewal of copyright see infra $8

379; 8 Bacon Abr. tit Prerogative the useful arts and sciences are pro237-239.

p 114 (F) 5. moted. The labor involved therein 37. See infra § 137.

"The question is one of public is purely mechanical, and to protect 38. Act March 4, 1909 (35 U. S. St. policy, and there has always been a the copyright affords a certain meas- at L. 1075 C 320 $ 5(a)).

judicial consensus, from the time of ure of monopoly in the right to make 39. U. S.-Callaghan v. Myers, 128

the decision in the case of Wheaton such a of labor and money. U. S. 617, 9 SCt 177, 32 L. ed. 547;

v. Peters, 8 Pet. 591, 8 L. ed. 1055 Copyrights upon directories have, Banks v. Manchester, 128 U. S. 244, that no copyright could under the however, been cared for by the courts 9 SCt 36, 32 L. ed. 425 (aff 23 Fed.

statutes passed by Congress, be so many times that it would be pre- 143]; Paige v. Banks, 13 Wall. 608, secured in the products of the labor sumptuous for me, without solicita- 20 L. ed. 709 [aff 18 F. Cas. No. done by judicial officers in the distion, to attempt a practical expres- 10,671, 7 Blatchf. 152); Litile v. Hall, charge of their judicial duties. Tho sion of my own views. The com- 18 How. 165, 15 L. ed. 328; Backus v.

whole work done by the judges conplainant's lawful copyright is there- Gould, 7 How. 798, 12 L. ed. 919;

stitutes the authentic exposition and fore assumed, and, sternly repressing Wheaton v. Peters, 8 Pet. 591, 8 L interpretation of the law, which, such tendencies as these suggestions ed. 1055; West Pub. Co. v. Edward binding every citizen, is free for pubwould lead us toward, it will be my Thompson Co., 169 Fed. 833 [mod lication to all, whether it is a declapurpose to decide the matter upon the on other grounds 176 Fed. 833, 100 ration of unwritten law, or an incases presented." Hartford Printing CCA 303) West Pub. Co. v. Lawyers' terpretation of constitution or Co. v. Hartford Directory, etc., Co., Co-op. Pub. Co., 64 Fed.. 360, 25 а statute. Nash V. Lathrop, 142 supra.

LRA 441 [rev other grounds Mass. 29, 35, 6 NE 559. In Wheaton 29. National Cloak, etc., Co. 79 Fed. 756, 25 CCA 648, 35 LRA v. Peters, at p. 668, it was said by Kaufman 189 Fed. 215; Hartford 400); Myers v. Callaghan, 5 Fed. this court, that it was 'unanimously Printing Co. v. Hartford Directory, 726, 10 Biss. 139, 20 Fed. 441; Banks of opinion that no reporter has or etc., Co., 146 Fed. 332; Sampson, etc., V. McDivitt, 1 F. Cas. No. 961, 13 can have any copyright in the writCo. v. Seaver-Radford Co., 140 Fed. Blatchf. 163; Chase v. Sanborn, 5 F. ten opinions delivered by this court; 539, 72 CCA 55 (rey 134 Fed. 890); Cas. No. 2,628, 4 Cliff. 306; Cowen v. and that the judges thereof cannot Trow Directory, etc., Co. v. U. S. Banks, 6 F. Cas. No. 3,295, 24 How Pr confer on any reporter any such Directory Co., 122 Fed. 191; Williams (N. Y.) 72; Gould v. Hastings, 9 F. right.' What a court, a judge V. Smythe, 110 Fed. 961; Trow Cas. No. 5,639; Gray V. Russell. 10 thereof, cannot confer on a reporter Directory, etc., Co. v. Boyd, 97 Fed. F. Cas. No. 5,728, 1 Story 11; Little as the basis of a copyright in him, 586; Morris v. Wright, L. R. 5 Ch. v. Gould, 15 F. Cas. No. 8,394, 2 they cannot confer

any other 279; Lamb v. Evans, [1893] 1 Ch. 218; Blatchf. 165, 15 F. Cas. No. 8,395, 2 person or on the State." Banks v. Mathieson v. Harrod, L. R. 7 Eq. 270; Blatchf. 362.

Manchester, 128 U. S. 244, 253, 9 SCt Morris v. Ashbee, L. R. 7 Eq. 40; Ind.-Ex p. Brown, 166 Ind. 593, 78 36, 32 L. ed. 425 (aff 23 Fed. 143). Kelly v. Morris, L. R. 1 Eq. 697, 7 NE 553.

(a) Constitutional provision makERC 102; Lewis v. Fullarton. 2 Beav. Mass.--Nash v. Lathrop, 142 Mass. ing judicial decisions public property: 6, 17 EngCh 6, 48 Reprint 1080; Collis 29. 6 NE 559.

-In the case of Little v. Gould, 16 V. Cater, 78 L. T. Rep. N. S. 613; Pa.-Banks v. Manchester, 2 Del. F. Cas. No. 8.394, 2 Blatchf. 165, it







So a





court,41 syllabi, and statements of facts,

or other

[$ 138] e. Legal Blanks. It has been held that matter prepared by the judges.43 In Connecticut a blank forms for legal instruments required by statcontrary view has been expressed.44

ute may possess sufficient originality to entitle them [ 135] b. Statutes and Court Rules. In Eng- to be copyrighted,$5 although minor parts of such land the crown has, by virtue of its prerogative, the forms are old, if they are so combined with the exclusive right to the publication, among other parts drawn in pursuance of the statute as to make things, of acts of parliament.45 In the United States a complete form. 56 there can be no copyright in statutes themselves [$ 139] 25. New Editions. New editions of ex

46 for the same reasons that are applicable to reports. isting works which are but reprints of the original But a particular compilation of statutes may, on without alteration or addition are not copyrightaccount of the judgment and skill displayed in the able, but are protected, if at all, by the original combination and analysis and the addition of origi


But where new and original matter is nal features by the compiler, be so original as to incorporated into a new edition by the exercise of entitle the author to a copyright therein.*

intellectual skill, a new copyright may be obtained copyright may be had in an analysis of acts of par- thereon, such editions being new works within the liament with appendixes. Annotated court rules meaning of the statute.59 This was true even under may be copyrighted. 49

the former statutes, and the copyright act of [136] C. Digests. Digests of decisions are of 1909 specifically so provides.o1 In the case of new course copyrightables as compilations,51 and this is editions, the subsequent copyright covers only what true, although they are made up of syllabi para- is new and original in the new edition ;02 it does not graphs previously published and copyrighted in the operate to extend or to enlarge the prior copyrights form of reports, or of digest paragraphs previously or to remove from the public domain the portions published in earlier digests, but which have been which have been dedicated to the public.63 This rule recompiled, with additions, and so made into a new also has been incorporated in the statute.64 Merely digest.53

colorable changes not made in good faith for the [$ 137] d. Cyclopedias and Textbooks. Cyclo- purpose of producing a new work will not confer pedias of law and legal textbooks are copyrightable a right to a copyright. So mere mechanical aggreand have often been protected against piracy. gation of matter previously published will not supwas held that the provision of N. Y. his copyright would embrace all such | by every applicant for a license to Const. (1846) art 6 $ 22, that all matters, for they constitute no part sell liquor at retail has been held "judicial decisions shall be free for of that which is public property, and to be entitled to the protection of publication by any person" was not are plainly produced by the the copyright statute. Plaintiff's repugnant to the constitution of the piler." Howell v. Miller, 91 Fed. forms were declared to be sufficiently United States. For a construction of 129, 138, 33 CCA 407.

original. “They are founded upon this provision see Little v. Gould, 15 48. Alexander v. Mackenzie, 9 Dec. and are adapted to the requirements F. Cas. No. 8,395, 2 Blatchf. 362. Ct. Sess. (2d ser). 748.

of the Pennsylvania statute of 1887, 41. See cases supra note 40.


Banks v. McDivitt, 2 F. Cas. relating to the sale of liquors. While Banks v. Manchester, 128 U. S. No. 961, 13 Blatchf. 163.

minor parts of each form are old, 244, 9 SCt 36, 32 L. ed. 425 (aff 23 50. West Pub. Co. Lawyers' | they are so combined with the parts Fed. 143); West Pub. Co. v. Edward Co-Op. Pub. Co., 64 Fed. 360, 25 LRA drawn in pursuance of the statute Thompson Co., 169 Fed. 833 (mod on

441 (rev on other grounds 79 Fed. to make a complete form. Το other grounds 176 Fed. 833, 100 CCA 756, 25 CCA 648. 35 LRA 400); David- prepare such instruments requires 303); Chase v. Sanborn, 5 F. Cas. son v. Wheelock, 27 Fed. 61; Banks some learning, and involves some No. 2,628.

v. McDivitt, 2 F. Cas. No. '961. 13 literary labor; quite as much as the 43. Banks v. Manchester, 128 U. S. Blatchf. 163; Sweet v. Benning. 16 compilation of facts or figures, or 244, 9 SCt 36, 32 L. ed. 425 [aff 23 C. B. 459, 81 ECL 459, 139 Reprint extracts from books. Such compilaFed. 143]; and cases supra note 40. 838.

tions are entitled to a copyright, un44. Gould v. Banks, 53 Conn. 415, Infringement of law digest see der the construction given to the 2 A 886, 55 AmR 143. It has been infra § 310.

statute." Brightley v. Littleton, 37 said that the observations on this

51. See supra § 95.

Fed. 103, 104.

52. point were unnecessary to the de

West Pub. Co.

Edward 57. See supra 88 92, 93. cision of the case before the court. Thompson Co., 176 Fed. 833, 100 CCA 58. Notice of copyright in new Per Wallace, J., in State v. Gould, 303.

editions see infra § 219. 53.

West 34 Fed. 319.

Pub. Co.

Edward 59. West Pub. Co. Edward 45. Drone Copyright p 164; Bas

Thompson Co., 176 Fed. 833, 100 CCA Thompson Co., 176 Fed. 833, 100 CCA kett v. Cambridge Univ., 2 Burr. 661, 303.

303; Banks v. McDivitt. 2 F. Cas.

54. 97 Reprint 499, 2 Ld. Ken. 397, 96

See infra § 310.

No. 961, 13 Blatchf. 163; Gray v. Reprint 1222, W. Bl. 105, 96 Reprint

55, Brightley v. Littleton, 37 Fed. Russell. 10 F. Cas. No. 5,728, 1 Story 59; Baskett v. Cunningham, 2 Eden

103; Alexander v. Mackenzie, 9 Dec. 11; Lawrence v. Dana, 15 F. Cas. No. 137, 28 Reprint 848, W. Bl. 370, 96

Ct. Sess. (2d ser) 748; Church v. 8,136, 4 Cliff. 1. Reprint 208; Eyre v. Carnan, 8 Bac.

Linton, 25 Ont. 131. But see Car- [a] New editions of maps as well Abr. p 144 tit Prerogative (F) 5.

lisle v. Colusa County, 57 Fed. 979 as of books are included and conSee also Banks v. West Pub. Co., 27 (where it was held, construing Cal. templated by the copyright laws. Fed. 50 (discussing early cases un

Pol. Code $ 3630, that there could Farmer v. Calvert Lith., etc., Co., 8 der the king's prerogative).

be no copyright in any particular F. Cas. No. 4.651, 1 Flipp. 228. Crown copyright see infra 8 164. arrangement of the matter which 60. See also cases supra note 59. 46. Howell V. Miller, 91 Fed. 129,

the California code required the as- 61. Act March 4, 1909 (35 U. S. 33 CCA 407; Davidson v. Wheelock,

sessors to deliver to each person as St. at L. 1075 C 320 $ 6); West Pub. 27 Fed. 61; Banks v. West Pub. Co.,

blank form of property state

Co. Edward Thompson Co., 176 27 Fed. 50, 59 (dictum by Brewer,ments, for the assessors should not Fed. 833, 100 CCA 303 (applying the J.).

he embarrassed in the performance statute). 47. Howell v. Miller, 91 Fed. 129, of their duties by any distinctions of 62. Caliga v. Inter-Ocean News33 CCA 407; Davidson v. Wheelock,

convenience of forms prepared by paper Co., 157 Fed. 186, 84 CCA 634 27 Fed. 61. private persons).

(aff 215 U. S. 182, 30 SCt 38, 54 L. (a) Scope of compiler's copyright. "One may copyright a book of ed. 150]; Kipling V.

Putnam, 120 "Upon like grounds

forms or series of papers to be

Fed. 631, 57 CCA 295, 65 LRA 873. opinion that Howell was entitled to filled in by applicants for liquor

See also supra § 91. have copyrighted his volumes of An- licenses: Brightley v. Littleton, 37 63. Kipling V. Putnam, 120 Fed. notated Statutes, and that such copy- Fed. 103. In this the Judge said: 631. 57 CCA 295. 65 LRA 873. right covers all in his books that "The matter must be original and 64. Act March 4, 1909 (35 U. S. may fairly be deemed the result of possess some possible utility. The St. at L. 1075 C 320 $ 6). his labors. Speaking generally. this originality, however, may be of the 65. Snow V. Laird, 98 Fed. 813, would include marginal references, lowest order, and the utility barely 39 CCA 311; Black v. Murray, 9 Sc. notes, memoranda, table of contents, perceptible.' Church v. Linton, 25 Sess. Cas. (3d ser) 341 (where it indexes, and digests of judicial de- Ont. 131, 134.

was discussed, although not decided, cisions prepared by him from orig- 56. Brightley v. Littleton, 37 Fed. whether by a change of one word a inal sources of information; also 103.

copyright may be acquired in a new such headnotes as are clearly the [a] Rule applied.-A series of edition); Cary V. Faden, 5 Ves. Jr. result of his labors, We do not per

blank forms for the instruments re- 24, 31 Reprint 453. ceive any difficulty in holding that I quired by a liquor tax law to be filed [a] Reclaiming published photo


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