Representatives and by the Senate at different times but there has been no relief enacted into law. That the present laws are inadequate has been demonstrated by the failure of various members of the industry to procure protection for their new designs. Attempts to secure protection have failed under the patent laws, under the copyright statutes, under common law copyright, under unfair competition principles and under the Federal Trade Commission. We do not know of any other procedure to attempt. It is clear then that some new statutory protection is needed. I review a few of the court decisions. In Cheney Brothers v. Doris Silk Corp (35 F (2) 279; 3 U. S. P. Q. 162) defendant copied one of plaintiff's textile designs and suit was brought for unfair competition. The bill was dismissed in 1929. Judge Learned Hand speaking for the Second Circuit Court of Appeals said: * * * * * SO * * * plaintiff * * "It is probable that for the most part they [silk designs] have no such originality as would support a design patent. Again, it is impossible to copyright them under the Copyright Act or at least so the authorities of the Copyright Office hold finds itself without protection of any sort. The plaintiff asks for protection only during the season, and needs no more for the designs are all ephemeral. the absence of some recognized right at common law, or under the statutesand the plaintiff claims neither a man's property is limited to the chattels which embody his invention. Others may imitate these at their pleasure. In "[To apply International News Service v. Associated Press (248 U. S. 215) as justifying protection in this case] we are to suppose that the court meant to create a sort of common law patent or copyright for reasons of justice. Either would flagrantly conflict with the scheme which Congress has for more than a century devised to cover the subject matter. "[After examining a number of cases the court continues.] "True, it would seem as though the plaintiff had suffered a grievance for which there should be a remedy, perhaps by an amendment of the copyright law, assuming that this does not already cover the case, which is not urged here. It seems a lame answer in such a case to turn the injured party out of court, but there are larger issues at stake than his redress. Judges have only a limited power to amend the law; when the subject has been confided to a legislature, they must stand aside, even though there be an hiatus in completed justice. * Congress might see its way to create some sort of temporary right, or it might not." * * In Fashion Originators Guild of America v. Federal Trade Commission (312 U. S. 457; 47 U. S. P. Q. 483), the Supreme Court had before it a scheme adopted by dress manufacturers and textile makers to protect their designs from copying. Among other things there was a design registration bureau and an agreement not to sell textiles to dress manufacturers or retailers who purchased goods having pirated designs. The Supreme Court held "this practice constituted an unfair method of competition" and this method of preventing design piracy had to be abandoned although it had been sustained by earlier court decisions. Some NRA codes prohibited design piracy but they fell with the law. In Belding Hemingway Co. v. Future Fashions, Inc. (55 F. Supp. 39; 60 U. S. P. Q. 362), in 1943 a preliminary injunction was issued against a plain copying of a textile design patent. The court cites many cases showing that invention is necessary to a valid design patent but seems to assume invention because the copying is so clear. The case was reversed by the Second Circuit Court of Appeals at 143 F (2) 216, 62 U. S. P. Q. 1, the court saying: "Apparently what the makers of women's dresses really need is that copyright protection, which Congress has hitherto denied them." In White v. Leanore Frocks, Inc. (120 F (2) 113; 49 U. S. P. Q. 686), the same court in a suit on a dress design patent said: "There is little chance that valid design patents can be procured in any such number as to answer their demand. What they need is rather a statute which will protect them against the plagiarism of their designs; a more limited protection and for that reason easier to obtain if the law recognized copyright in the matter at all. Recourse to the courts as the law now stands is not likely to help them. Perhaps, if their grievance is as great as they say, Congress may yet be moved to help them; but short of that, no effective remedy seems open.” The same court in Nat Lewis Purses, Inc., v. Carole Bags, Inc. (88 F (2) 475; 29 U. S. P. Q. 564), says: "A design patent must be the product of 'invention' by which we meant the same exceptioal talent that is required for a mechanical patent. True, the piracy of designs especially in wearing apparel has been often denounced as a serious evil and perhaps it is; perhaps new designs ought to be entitled to a limited copyright. Efforts have been made to induce Congress to change the law so as to give some protection, without success so far; and until it does, new designs are open to all, unless their production demands some salient ability.” * The attitude of the Patent Office has been given us recently in a decision written by Commissioner Ooms in 1946. Er parte Norman (69 U. S. P. O. 553) says: "The Patent Office is thus empowered to grant design patents only for new and original designs which are ornamental and which disclose invention. The design must possess invention. * Courts have recognized the failure of the design patent law to grant the protection which might be available under copyright law [citing case]. This defect in available protection from which appellant suffers is one that cannot be cured by a legally unsound decision in the Patent Office but must be repaired if at all by Congress." The Patent Office is controlled by appeals to the Court of Customs and Patent Appeals and that court on May 7, 1946, in Faustmann (33 C. C. P. A. 1065, 69 U. S. P. Q. 541) said in refusing a design patent after citing many cases: "The authority for granting of a design patent is based upon four propositions-the design must be new, original, ornamental, and must be the product of invention. * * It has been a uniform holding of this court, following the settled law announced by other courts, that the production of a design patent must involve the element of invention and it is well settled that no lesser degree of inventive skill is required than other kinds of patented articles." There are no Federal Trade Commission cases. It has never attempted to clamp down on design piracy as unfair competition for it was generally conceded that in such controversies the requisite public interest on which the jurisdiction of the Commission depends is not present. The industry has set up in New York a Design Registration Bureau which searches textile designs presented to it in an endeavor to keep the reputable members of the industry from using old designs or interfering with a design already developed by another. This has worked satisfactorily within limits but it is a voluntary organization and has had no authority in law. A textile design is the work of an artist or author and probably not that of an inventor. The value of many textile designs is of short life since styles change and what is popular today may be useless or even ludicrous in a few weeks. In order to be useful any protection given a textile design must be given promptly and there must be a provision from promptly registering the design and when once registered provision must be made for a prompt court order preventing or stopping copying. For many years there has been on the statute books a design patent law but it does not give any real protection to textile designs since in order to get a valid design patent the designer must be an inventor. "No lesser degree of inventive skill is required in the production of designs than other kinds of patented inventions," such as a radio device or a typesetting machine for instance. The courts have generally held textile design patents invalid because they could not find any invention in a mere new artistic production. In addition to the invention impediment to design patents there is a delay of months for processing and examining in the Patent Office and then again weeks for printing, before the patent issues. Design patents are issued for as long as 14 years while all the protection most textile designs need is the few months before a style changes. Under the design patent law it takes months of litigation to stop infringement but by then the fashion has changed. The defects of the present situation and the needs for better protection is indicated in the court opinions quoted above and will be explained in more detail by other witnesses. The matter is explained in a book, the Pirates Will Get You, by Sylvan Gotshal and Alfred Lief, published in 1945 by Columbia University Press, and the past attempts to procure an adequate new law are set out in the Indiana Law Journal (vol. 19, No. 3, April 1944, pp. 235 to 257) in an article Design Piracy by Maurice A. Weikart. The French law which has been helpful in protecting French textile designs appears on page 139 of hearings before the Committee on Patents, House of Representatives, Seventy-second Congress, first session, May 10, 11, 17, 1932, and the English law at page 101 of the same hearings. Since no present law is effective to give adequate protection to a new textile design a new law, H. R. 2 60, has been prepared which contains some phases of copyright law and some phases of patent law and must therefore be distinguished from those laws. It refers to the originator of the new textile design not as an inventor but as an author and thus keeps within article I, section 8 of the Constitution. It may be referred to as a design registration law. The scheme set out in this bill is an experiment. It should not be forced on all industry at this time. The experience of the design-registration bureau in New York seems to indicate it will work for textiles and that particular industry is desirous of trying it. If it works it may be that in the future it can be easily applied to other industries as fast as the Register of Copyrights can get ready to handle them. · It may be well to review the bill briefly. Section 1 contains definitions indicating that protection is to be given to a new design woven into or applied to the surface or fiber of yarn of a woven, knitted, or lace textile fabric. Section 2 provides that before the design is used application for registration shall be made to the Register of Copyrights with a fee and gives foreigners the rights they are entitled to under the International Convention for the Protection of Industrial Property. Section 3 authorizes the Register of Copyrights to establish a public file of textile designs for search. Section 4 provides that the Register shall examine and search all designs to see that they are new. Section 5 provides that if found new the Register shall issue a certificate of registration of the design. Section 6 provides for an appeal if registration is refused. Section 7 stipulates that protection shall last 1 year with an extension to 5 years in all if the design is actually applied to a textile. Section 8 provides for marking the textile to show the design is registered. Section 9 states what is an infringement of the registered design but protects the rights of a retailer who has made an honest mistake in buying infringements. Section 10 requires a court to grant prompt injunction against infringing use of a registered design. Sections 11 and 12 provide penalties for falsely registering a design or for suing on a false registration. Section 13 provides for transferring ownership of a registered design. Section 14 allows the Register of Copyrights to promulgate rules for his office. Section 15 extends protection against imported infringements of a registered textile design. Section 16 stops issue of design patents on textiles. Section 17 postpones for 6 months the coming into effect of the act. Section 18 keeps valid other parts of the act if any part is held invalid. We believe this new law will take away no rights and will protect the rights of designers in their productions. It does not require that invention be present in a textile design. It provides for prompt search by a Government bureau to insure protection only to new designs. It limits the protection to a short time. It provides that after the design is found new by the Government it may be given prompt protection by a court if infringed, stolen, or copied while at the same time preserving all rights of defense. I have given an outline only, but the details will be filled in by the witnesses to follow me. REPORT OF SAM B. WARNER ON H. R. 2860-TEXTILE DESIGN BILL This report deals with the following problems: 1. The inadequacy of the legal protection of textile designs. 2. The need for the legal protection of textile designs. 3. The kind of protection given by the bill. 4. Why the bill is limited to textile designs. 5. Why jurisdiction is transferred to the Copyright Office. 6. Why the Copyright Office can keep up to date in searches. 1. The inadequacy of the legal protection of textile designs In recent years the lawyers for textile manufacturers have tried to protect the novel designs of their clients under the patent law, under the copyright law, under the principles of common-law copyright, and under the doctrine of unfair competition. Every possible legal approach has been tried, and each has failed. As the courts have several times said, relief against design piracy can be obtained only by new legislation. (White v. Leanore Frocks, Inc. (120 F. 2d. 113, 2 C. C. A. 1941); Roseweb Frocks, Inc. v. Moe Feinberg-Mor Wiesen, Inc. (40 F. Supp. 979, D. C., S. D. N. Y., 1941); Belding Heminway Co. v. Future Fashions, Inc., (143 F. 2d 216, 2 C. C. A. 1944).) Textile designs, like other designs, come under the patent law (35 U. S. C. 73). Unfortunately, the patent law has not been successful in protecting novel designs for textiles, because for a design to be patentable it must not only be novel, that is, new and original, but must also constitute an invention. To be the product of invention a design must be the result of inventive genius beyond the power of the ordinary designer with knowledge of the prior art. (Mary Muffet v. Loma Dress Co. (39 F. Supp. 415, D. C., S. D. N. Y., 1941); Dresner & Son, Inc. v. Doppelt (120 F. 2d 50, (7 C. C. A. 1941); Gold Seal Importers v. Morris White Fashions (124 F. 2d 141, 2 C. C. A. 1941); Western Auto Supply Co. v. AmericanNational Co. (114 F. 2d 711, 6 C. C. A. 1940). See also Atlantic Works v. Brady (107. U. S. 192 (1883).) This requirement of invention eliminates from patent protection most novel textile designs, because the courts do not conceive, and rightly, that the faculties necessary to produce a new textile design resemble the inventive genius required to devise the steam engine or the electric light. Thus few textile designs are patented and in nearly all the cases coming before the courts the patents are held to be invalid. During the last 10 years no case relating to the patent of textile design has arisen in the Federal courts, but of 67 cases relating to patents for other designs, the patent was upheld in 18 cases and declared to be invalid in 49. Another reason why the patent law has not been successful in protecting novel textile designs is the delay involved in the issuance of patents. The difficulty of determining whether a novel textile design is the product of inventive genius is so great that between 3 months and a year ordinarily elapses between the receipt of the application in the Patent Office and the issuance of the patent. As the useful life of new designs is ordinarily under 9 months, this often means that the design has lived out its useful life before a patent can be obtained. Designs for works of art may also be copyrighted, and the copyright gives the exclusive right to reproduce the design in any form, except as an article of utility. (Jack Adelman, Inc. v. Sonner's & Gordon, Inc. (21 U. S. P. Q. 218, D. C., S. D. N. Y., 1934). See also Howell: The Copyright Law, pp. 122-125.) This exception means as a practical matter that it will do the author of a novel design for a textile no good to copyright the design. Neither can the author successfully claim common-law copyright protection, because it is held that offering for sale a fabric embodying the design constitutes a publication of the design and thus brings the common-law protection to an end. (Fashion Originators Guild of America, Inc. v. Federal Trade Commission (114 F. 2d 80, 2 C. C. A. 1940), aff'd 312 U. S. 457 (1941)). An effort has also been made to prevent one manufacturer from using the novel textile designs of another on the ground that such copying constituted unfair competition, but it has failed. (See Cheney Bros. v. Doris Silk Corp., 35 F. 2d 279 (2 C. A. A. 1929), cert. denied 281 U. S. 728.) 2. The need for the legal protection of textile designs Protection of their designs is just as important to designers of textiles as is the protection of books to the authors of books. If it were not for copyright, authors of books could obtain from publishers, motion-picture companies, etc., very little for their works. The Reverend Charles M. Sheldon, author of In His Steps, the all-time American best seller, is said to have received only $75 for that book because he neglected to secure a copyright, and only one of the forty-odd publishers of the work bothered to make him a gift of any royalties. Manufacturers of textiles have to take out of profits whatever they pay to designers. They cannot afford to pay much so long as competitors can copy their fabrics and sell them without paying anything to the author of the design. Just as the public gets better books by protecting literary property and enabling people to live by writing, so it would get better textile designs if the authors of the designs had their brain children protected and could make a good living by dreaming up novel textile designs. It is no chance that the two countries which produce the best textile designs, England and France, have both excellent copyright laws protecting such designs. The framers of the Constitution recognized the true function of the protection of all varieties of writings when in article I, section 8, they gave Congress the power to give authors the exclusive right to their writings in order to promote the progress of science and the useful arts. The failure of the law to protect novel textile designs has not only hampered the development of such designs in the United States, but has also made them expensive. Piracy increases rather than decreases the price of textiles. Shifting machinery to produce a new design and experimenting until exactly the right colors, design, weave, and tension are secured is expensive in the textile industry just as changing models is in the automobile industry. The price which a manufacturer has to charge for a fabric embodying a new design depends on the number of yards he can sell. If he can, a manufacturer will drop his price and sell more and more yards of the same cloth, rather than go to the expense of changing over to another pattern that may turn out not to catch the public fancy. The pirate reduces the sales of the legitimate manufacturer not only by securing part of the market himself, but by producing shoddy goods which hurt the reputation of the textile embodying the novel design. The pirates themselves can seldom give the public the benefit of novel designs on good goods at a low price. They are usually not skillful and well-equipped manufacturers, but fly-by-night concerns. Thus they can seldom produce the same quality of goods as cheaply as legitimate manufacturers. Besides they dare not manufacture in large quantities for they cannot tell how many yards they can sell in competition with the original manufacturer. 3. The bill gives a new kind of protection H. R. 2860 provides for neither patents nor copyrights, but a hybrid between the two, as appears from the following provisions: (a) The period of protection is much shorter than that of either patents or copyrights, being only 1 year with a possibility of renewal for four more years (sec. 7). The shortness of the period of protection is one of the strong points of H. R. 2860. It will make monopoly of designs impossible and insure that the great majority of desirable designs are at all times in the public domain. Nevertheless, 5 years is a long enough period to allow the author of a novel design to obtain a reasonable return from his creation. (b) The contribution of the claimant is different from that in either patents or copyrights. There need be no invention, but there must be more than mere authorship, for the design must be novel, not merely original (sec. 2), A novel textile design is defined as being a "design which has never before, anywhere in the world, been represented pictorially as a textile design or been applied to or incorporated in any textile" (sec. 1c). This is a different standard from that provided in the patent law (35 U. S. C. 73) which defines a patentable design as one "not known or used by others in this country before his invention thereof, and not patented or described in any printed publication in this or any foreign country before his invention thereof * 串 The reason for the change in phraseology is that it would not be desirable to allow the registering in the United States of foreign designs which had not previously been used or registered in a foreign country or described in a book. In providing that a textile design is novel if it has never before been a textile design, though it may have a counterpart in nature or in other forms of art, the bill is both taking cognizance of the contribution of the author makes when he adopts a design for textile use and following section 50 of the English statute which permits a person to copyright a new design for a particular kind of article though the same design may be in common use, as applied to articles of a different variety. (See A. D. Russell-Clarke, Copyright in Industrial Designs (London, 1933) pp. 32-33.) This limitation on novelty also serves to make the bill more workable, because it would be very difficult for the Copyright Office to make a search of all objects in the world from which a textile design might be taken. On the other hand, there is now in the Library of Congress a great wealth of publications depicting textile designs. In addition, the design registration bureau in New York and a number of leading textile manufacturers have offered to turn over to the Copyright Office their large collections of textile designs. (c) What constitutes a violation of the textile design bill is different from what constitutes a violation of either the patent law or the Copyright Act. No person may manufacure or assist in the manufacture of an infringing textile, but a person who sells an infringing textile violates the provisions of the bill (sec. 9c) only if he knows that the textile infringes, and not even then under certain circumstnces. It does not constitute a violation of the bill to make or sell illustra |