I. By means of a mold made in conformity to Letters Patent of the United States No. 240,727, granted to them April 26, 1881, as assignees of Alfred E. Jones, a copy of which is hereto annexed, n arked "Complainant's Exhibit Jones's Patent." II. By means of a mold made with two covers, in all respects like that shown in the above-named letters patent, except that there were two covers instead of one, and the slide was omitted. The covers are so made that a part of the cover first used projects into the molds. The process is as follows: The mold being clamped together, the first metal to be cast is poured into it, and when sufficiently set the cover is removed and a second one, perfectly flat, is inserted in its place. When this is done there remains a space between the newly-cast metal and the side or cover of the mold, into which is cast the remaining part of the ingot. The mold is shown in the model complainant's Exhibit E, when both covers are used and the slide is omitted, one cover having a projection into the mold and the other being flat. III. By means of a mold of three parts, each part being composed, as usual, in two-part molds of three sides rising from a closed base. The operation of the mold is as follows: The two parts of the mold are joined together in the usual manner by rings and wedges, and an ingot is cast therein in the usual way. Immediately that the metal is set one side of the mold is removed, and another, a little larger, is fixed by rings and wedges in the place of the side removed. Into the space thus made, adjacent to the glowing ingot of metal, the molten metal to complete the ingot is poured. When sufficiently cooled the combined ingot is removed, as is usually done in ingot-molds of two parts. This mold is represented by complainant's Exhibit F. The size and proportions of the parts, however, are not correct; only the arrangement and operation of the parts are intended to be illustrated. IV. By means of a mold of two parts, in which one of the parts is like the ordinary two-parts mold, viz, with three sides and a bottom, the other part being made flat on one side and with a projection on the other so arranged as to project between the sides and into the other part when the two are joined together. The operating of the mold is as follows: The two parts of the mold being joined together by rings and wedges in the usual way (the projecting part of one side extending into the recess in the other), the metal is cast into it, and when the metal is set the side with the projection is removed and turned so that its flat side is toward the center of the mold. There is thus left an open space in the mold, into which is cast the metal which is intended to complete the ingot. The combined ingot is removed in the ordinary way of removing single ingots. This mold is represented by complainant's Exhibit G. The same limitation is made in regard to this exhibit as to Exhibit F above. མ. By means of a mold similar to that last described, with the exception that instead of one cover there are two, one being flat, and one having a projection on its inner surface, as just described. The operation is the same as of Exhibit G, with the ex ception that instead of turning the cover so that the projection shall be outermost the flat cover is used. This mold is represented by Exhibit H. The same limitation is made to this exhibit as to Exhibit F above. FRANCIS FORBES, Solicitor for the defendants in above causes. The subject-matter of the controversy has reference to the use of molds in casting combined ingots of iron and steel. The patent oldest in date for the employment of mechanism for such a purpose was granted to Patrick Doyle on February 1, 1870, and numbered 99,299. The patentee says that his invention relates to improvements in molds for making ingots of iron and steel in a manner so as to dispose of the one metal on one or more sides of the other and to secure a perfect union of the two, and that it consists of a vertical mold of four or other number of plain sides, one or more of which may be detachable and clamped to the other by strong bands in which a strong thick plate of metal is arranged to fit near one side from top to bottom, snugly to occupy a part of the space when the metal of which the greater part of the ingot is to be composed is poured in, and to remain until the same has solidified sufficiently to retain its position, when it is withdrawn, leaving a space for the other metal, which, being poured in, unites perfectly with the first and forms the required composition ingot. In introducing his specifications the pantentee speaks of his invention as an "improved" mold for making combined iron and steel ingots, thereby implying that other molds were in use of which he regarded his as an improvement. Not only the scope of this patent but the valid. ity of the subsequent issues to Illingworth and Jones must be determined by the state of the art at the time when the Doyle patent was granted. The evidence on this subject is meager. After looking through the testimony with care, we fail to find anything relating to to the state of the art, except the statement of Mr. Illingworth that he had been engaged in the steel business for seventeen years; that prior to the Doyle invention he had never seen any molds or other mechanism with which skate-metal, which was a combination of steel and iron, could be made; that the only mode of manufacturing such a combination of which he had any knowledge was to weld together the iron and steel into one bar and then rolling it out, and that this was the only method then in use at his works. Accepting this as the state of the art at this time, it must be conceded that there was novelty and value in the Doyle improvement. It was a step from the mere mechanical combination by welding to a chemical one resulting from the fusion and union of the two metals when in a heated state. It was the introduction of the variable cavity, whereby the amount of the one metal or the other could be accurately adjusted and obtained by the exercise of ordinary mechanical skill. We are confirmed in our view of the Doyle patent by the fact that as late as 1873 a patent was granted in England to William Moore for substantially the same device for making combined ingots of iron and steel, securing the variable cavity by the use of a slide, which would hardly have been granted if such a method of casting ingots had previously been in use in England, as the defendant so earnestly contended. On the argument the counsel for the defendants insisted that the complainant had failed to prove any infringement. The reason why specific proof was not offered was, doubtless, owing to the circumstance that the defendants admitted the performance of acts and the use of instrumentalities which the complainant assumed would be sufficient to satisfy the court of the fact of infringement. For instance, the defendants filed in the cases an admission that they had manufactured combined ingots of iron and steel by means of a mold made in conformity to the Letters Patent No. 240,727, granted to them April 26, 1881, as assignees of Alfred E. Jones. If we understand the argument of counsel, it is that there was a failure of expert testimony to inform the court whether or not such an act was an infringement of the several patents of the complainants. We fail to see how experts' testimony would be of any service. Numerous experts could undoubtedly have been found both by the complainants and the defendants who would respectively maintain the views of their employers on a question of that sort; but their evidence would not greatly help the court in deciding what is simply a question of mechanical equivalents. Having in our hands the respective letters patent, the models, and the molds used, we trust it will not be set down as presumption to add that we have quite as much confidence in our own judgment as we should have in the opinion of experts whether the use of the one was an infringement of the claims of either of the others. It need not be claimed that Doyle was the first person who used molds in casting ingots of iron or steel; but the evidence shows that he was the first who manufactured combined ingots of these metals by the use of mechanism which produced a variable cavity in the molds. The several patents of Illingworth and Jones reach the same result as to the variable cavity; but Illingworth has changed, and, as we think, improved, the mechanism. In the Doyle patent the cavity for one of the metals is made by the use of an iron or steel slide, and in the Illing. worth by two covers, one with a plain or straight surface and the other recessed. If such a substituted instrumentality of the mechanism is not a mere equivalent for the metal slide of Doyle, the patent may be held good for the improvement, although it is valueless except in combination with Doyle's invention, and can no more be used without his consent than Doyle can use Illingworth's improvement without his consent. The first admission of the defendants is their use of molds made in conformity to the Jones letters patent. We regard this as a clear infringement of the Doyle patent. Their second, third, fourth, and fifth admissions embrace the use of instrumentalities which not only infringe the Doyle invention, but also the improvement of the Illingworth patent. There are differences in construction and mode of operation shown; but these are not radical or independent enough to take them out of the category of mechanical equivalents. Let a decree be entered in favor of the complainants in both cases for an injunction, and the usual order of reference be made for an ac count. [Supreme Court of the United States.] THE BURROW-GILES LITHOGRAPHIC COMPANY v. SARONY. Decided March 17, 1884. 27 O. G., 413. 1. The object of section 4962 R. S. is to give notice of the copyright to the public by placing upon each copy in some visible shape the name of the author, the existence of the claim of exclusive right, and the date at which this right was obtained. This notice is sufficiently given by the words "Copyright, 1882, by N. Sarony," found on each copy of the photograph under consideration. 2. The construction placed upon the Constitution by the first act of 1790 and the act of 1802 by the men who were contemporary with its formation, many of whom were members of the convention which framed it, is of itself entitled to very great weight; and when it is remembered that the rights thus established have not been disputed during a period of nearly a century, it is almost conclusive. 3. An author in the sense in which the term is used in the Constitution is "he to whom anything owes its origin; originator; maker; one who completes a work of science or literature." So, also, by "writings" in this clause of the Constitution is meant the "literary productions" of those authors, and Congress has very properly declared these to include all forms of writing, printing, engraving, etching, &c., by which the ideas in the mind of the author are given visible expression. 4. No doubt entertained that the Constitutio is broad enough to cover an act authorizing copyright of photographs so far as they are representatives of original intellectual conceptions of the author, and the facts being that the photograph in question was made entirely from the plaintiff's original mental conception, to which he gave visible form by posing the subject in front of the camera, selecting and arranging the costume, draperies, &c., arranging and disposing the light and shade, suggesting and evoking the desired expression: Held, that the photograph in question is an original work of art, of which the plaintiff is the author, and of a class of inventions for which the Constitution intended that Congress should secure to him the exclusive right to use, publish, and sell, as it has done by section 4952 R. S. IN ERROR to the circuit court of the United States for the southern district of New York. Mr. David Colman for the plaintiff in error. Mr. Aug. T. Gurlitz for the defendant in error. Mr. Justice MILLER delivered the opinion of the court: This is a writ of error to the circuit court for the southern district of New York. Plaintiff is a lithographer and defendant a photographer, with large business in those lines in the city of New York. The suit was commenced by an action at law in which Sarony was plaintiff and the lithographic company defendant, the plaintiff charging the defendant with violating his copyright in regard to a photograph the title of which is "Oscar Wilde No. 18." A jury being waived, the court made a finding of facts on which a judgment in favor of the plaintiff was rendered for the sum of $600 for the plates and 85,000 copies sold and exposed to sale, and $10 for copies found in his possession, as penalties under section 4965 of the Revised Statutes. Among the finding of facts made by the court, the following presents the principal question raised by the assignment of errors in the case: 3. That the plaintiff, about the month of January, 1882, under an agreement with Oscar Wilde, became and was the author, inventor, designer, and proprietor of the photograph in suit, the title of which is "Oscar Wilde No. 18," being the number used to designate this particular photograph and of the negative thereof; that the same is a useful, new, harmonious, characteristic, and graceful picture, and that said plaintiff made the same at his place of business in said city of New York, and within the United States, entirely from his own original mental conception, to which be gave visible form by posing the said Oscar Wilde in front of the camera, selecting and arranging the costume, draperies, and other various accessories in said photograph, arranging the subject so as to present graceful outlines, arranging and disposing the light and shade, suggesting and evoking the desired expression, and from such disposition, arrangement, or representation, made entirely by the plaintiff, he produced the picture in suit, Exhibit A, April 14, 1882, and that the terms "author," "inventor," and "designer," as used in the art of photography and in the complaint, mean the person who so produced the photograph. Other findings leave no doubt that plaintiff had taken all the steps required by the act of Congress to obtain copyright of this photograph, and section 4952 names photographs among other things for which the author, inventor or designer may obtain copyright which is to secure him the sole privilege of reprinting, publishing, copying, and vending the same. That defendant is liable under that section and section 4965 there can be no question if those sections are valid as they relate to photographs. Accordingly, the two assignments of error in this court by plaintiff in error are, first, that the court below decided that Congress had and has the constitutional right to protect photographs and negatives thereof by copyright. The second assignment related to the sufficiency of the words "Copyright, 1882, by N. Sarony," in the phototographs, as a notice of the copyright of Napoleon Sarony under the act of Congress on that subject. With regard to this latter question it is enough to say that the object of the statute is to give notice of the copyright to the public by placing upon each copy in some visible shape the name of the author, the existence of the claim of exclusive right, and the date at which this right was obtained. This notice is sufficiently given by the words "Copyright, 1882, by N. Sarony," found on each |