is protected, both dolls of cartoon characters and cemetery memorials are proper subjects of copyright. Whether as a practical matter they should be entitled to such protection is another issue; but certainly in the constitutional sense there would seem to be no prohibition. It is in this area of infringement in another medium, however, that a great deal of confusion has arisen. In Muller v. Triborough Bridge Authority 300 it was held, on the basis of Baker v. Selden, that a drawing showing a novel way to unsnarl traffic congestion was not infringed by the use of the system. The court analogized plaintiff's drawing to the shorthand cases 301 and said that the copyrightalle material was found in the explanation of how to do it and not in the system itself. In a similar case, also relying on Baker v. Selden, the United States Court of Claims held that plaintiff's design showing a camouflaged parachute was not infringed by the United States when it copied this idea.302 The court held that the only monopoly which the copyright gave the author was the exclusive right to reproduce the design as an artistic figure. This latter case may be rationalized since it is not clear from the case whether the United States copied the plaintiff's designs or merely copied the idea of camouflaging parachutes. If it was the latter, the idea, as such, was not copyrightable.803 In the Muller case, however, it is difficult to understand, assuming the Bridge Authority copied plaintiff's actual design for traffic separation, why the plaintiff's design was not protected from copying in the media of concrete. The court made no mention of the word "writings," so it would seem that on the basis of the three-dimensional, the cartoon, and the Jones cases, this design for traffic separation, as well as other architectural designs, should be proper subjects of copyright in a constitutional sense. They certainly meet the standards of intellectual conception, artistic genius, skill, labor, judgment, and originality set up by the courts for holding other nonliterary things copyrightable. In similar fashion to the Muller and Fulmer cases the courts have held that wearing apparel is not copyrightable. In two cases decided in 1911 the courts stated that although pictorial illustrations in plaintiff's catalogues of ladies' attire were clearly copyrightable (even though only a modest grade of art and made solely for advertising purposes), plaintiff had no monopoly in the manufacture and sale of the apparel depicted in the pictures.30 In a leading case on the subject, Jack Adelman, Inc. v. Sonners & Gordon, Inc.,305 the court held that plaintiff's copyright of a drawing of a dress was not infringed by defendant's making and selling a dress copied from plaintiff's drawing. The decision of the court would seem indefensible today, particularly in light of the previous discussion concerning three-dimensional objects and the minimum required standards of originality and artistic creativity. In the Adelman case the court said that the dress itself could hardly be classed as a work of art and filed in the Copyright Office. The drawing, not the dress, was the work of art and plaintiff had only 300 43 F. Supp. 298 (S.D.N.Y. 1942). 301 Brief English Systems, Inc. v. Owen, 48 F. 2d 555 (2d Cir.), cert. denied, 283 U.S. 858 (1931); Griggs v. Perrin, 49 Fed. 15 (C.C.N.D.N.Y. 1892). 302 Fulmer v. United States, 103 F. Supp. 1021 (Ct. Cl. 1952). 303 See text at notes 275-88 supra. 304 National Cloak & Suit Co. v. Standard Mail Order Co., 191 Fed. 528 (C.C.S.D.N.Y. 1911). 305 112 F. Supp. 187 (S.D.N.Y. 1934). See also Cheney Bros. v. Doris Silk Co., 35 F. 2d 279 (2d Cir. 1929), cert. denied, 281 U.S. 728 (1930). the exclusive right to copy and reprint the drawings. It then distinguished King Features Syndicate v. Fleischer on the ground that in that case form was the essence of the cartoon. However, the court did suggest that possibly Congress might enact a law to protect persons such as the plaintiff, as it did in response to the Apollo case. Apparently the court felt that since the National Cloak cases were decided in 1911 and Congress had still not acted to protect wearing apparel, it was not within the court's province to protect them.306 It seems clear from the absence of discussion and the assumption that Congress has the power to enact a law to protect such subjects, that the court saw no constitutional problem. Considering the three-dimensional cases, the cartoon cases, Jones Bros. Co. v. Underkoffler, and sections 4 and 5 of the Copyright Act, there would seem to be no objection to holding that wearing apparel are "writings." If a statuary can be considered a "writings," a dress certainly should be entitled to the same consideration. It is difficult to see the distinction between the Adelman case and King Features Syndicate v. Fleischer. If a twodimensional cartoon can be infringed by a three-dimensional toy, would not a two-dimensional drawing of a dress be infringed by a three-dimensional dress.307 A court held that a dress pattern made to be stamped on dress goods or paper was not a work of art and therefore not copyrightable.308 This case was based on Rosenbach v. Dreyfus,309 where the court held cut-outs of balloons and baskets were not copyrightable because they were not pictorial illustrations or works connected with the fine arts, nor models or designs intended to be perfected as works of art. In neither of these cases was the Constitution mentioned; the courts simply interpreted the statutory provisions covering works of art. A design used on fabrics and dresses was held to be copyrightable but still the creator of the design had no monopoly of the fabrics or dresses on which this design was printed.310 The court seemed to imply that if the copyright notice had been contained in each design on the fabric, the plaintiff might have been protected. This requirement of notice, however, effectually destroys protection for fabrics. This case is dependent upon and in accord with DeJonge & Co. v. Breuker & Kessler Co.,311 involving a painting intended to be used as a design for fancy paper for Christmas boxes. The Supreme Court held that the design alone was entitled to copyright protection because it was artistic in thought and execution and was a work of imagination containing artistic qualities. However, when the design was printed repeatedly on wrapping paper, the paper was not protected because each design did not contain the copyright notice. The Constitution was not discussed and reasons other than the fact that these designs were not "writings" were given for denying copyright protection. The dress design cases are not consistent doctrinally with other de But see Deutsch v. Arnold, 98 F. 2d 686 (2d Cir. 1938); American Mutoscope & Biograph Co. v. Edison Mfg. Co., 137 Fed. 262 (C.C.D.N.J. 1905); Edison v. Lubin, 122 Fed. 240 (3d Cir. 1903); Metro-Goldwyn-Mayer Distributing Corp. v. Bijou Theatre Co., 3 F. Supp. 66 (D. Mass. 1933). In all these cases the courts indicated it is possible to grant copyright protection to objects as "writings" and were not limited to the express words of the statute. Likewise, if a design for the Rushmore cemetery monument in Jones Bros., Inc. v. Underkofler, can be infringed by a model of the memorial itself, the same reasoning should apply to dresses. Kemp & Beatley, Inc. v. Hirsch, 34 F. 2d 291 (E.D.N.Y. 1929). *2 Fed. 217 (S.D.N.Y. 1880). 19 Verney Corp. v. Rose Fabric Converters Corp., 87 F. Supp. 802 (S.D.N.Y. 1949). 11 235 U.S. 33 (1914). cisions, but apparently the reason for this inconsistency is the court's hesitation to grant copyright protection prior to a congressional enactment; they are unwilling to include them under section 4. But it is clear that if Congress did pass a statute including dress designs the courts would not declare the statute unconstitutional on the ground that these objects were not "writings." CONCLUSION From a review of the actions of the colonial legislatures, the Constitutional Convention, Congress, and the courts, it seems clear that the words "writings" and "authors" will no longer limit the subject matter which can be copyrighted, at least in so far as the "form" of the object is concerned. Only by a broad interpretation of the words "writings" and "authors" in terms of standards, such as originality and creativity, and in terms of purpose, such as promoting the progress of the arts and sciences, can the action of both the courts and Congress be justified or rationalized in terms of the words contained in section 8. It seems reasonable to assume that no copyright statute passed by Congress allowing copyright protection to new forms of expression will be declared unconstitutional. This is so, despite the discussion in some cases that certain objects are not "writings" within the meaning of the Constitution. Congress seems to be free to include in a copyright statute any object, conforming to the requirements of originality and creativity, without fear of judicial interference. The confusion created by the broad language of section 4 in the present act should be corrected. The courts should no longer be put in the position of denying protection to objects because of the practical and policy considerations involved while having to speak in quasi-constitutional terms because the plain language of the statute expends the constitutional grant. Congress should specifically enumerate the subjects it desires to cover and not attempt to project itself too far into the future. The hardship of temporary nakedness to new modes of communicating intellectual properties is overbalanced by the semantic difliculties in such projected attempts. Attempts to project coverage present two dangers at opposite poles-protection may be extended to subjects Congress did not specifically exempt and yet did not wish protected, or on the other extreme, the courts may flatly declare a nonenumerated subject "unconstitutional" and thus establish a serious precedent. The history of copyright law has seen both the courts and Congress grant copyright protection as new forms of art or methods of reproduction were developed, with little concern for the limitations that a literal interpretation of "writings" would impose. It is suggested that the courts conform their words to their actions, thus eliminating any confusion about the power of Congress to grant copyright protection to objects which it determines should be covered, so long as they are in accord with basic copyright principles. This is the only approach which is consistent with the history of copyright protection and will insure wise action in the future. Practical considerations present the real problems as they have in the past and not the illusory consideration whether a particular object is literally a "writing" created by an "author." |