THE MEANING OF "WRITINGS" IN THE COPYRIGHT CLAUSE OF THE CONSTITUTION

1

In 1954 the Supreme Court of the United States decided Mazer v. Stein holding that statuettes of Bali dancers, which had been registered with the Copyright Office as "works of art" 2 but which were actually intended for and used as lamp bases, were entitled to copyright protection. The majority of the Court assumed that constitutionally these statuettes were "writings." But Justice Douglas in a short separate opinion questioned this assumption and in so doing fundamentally challenged the present status of Federal copyright law. After enumerating some of the many and varied objects that have been registered with the Copyright Office, he questioned whether these objects came within the scope of the word "writings" as used in the copyright clause of the Constitution. Desiring that this question be squarely faced, he recommended putting the case down for reargument."

The Constitution provides that

The Congress shall have Power *** (8) To promote the Progress of Science and useful Arts by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

8

A literal reading of this clause would invalidate part of every copyright law passed since 1790 and prevent any copyright protection for such presently protected matter as advertising," photographs and motion pictures,10 paintings," maps,12 cartoons, and three-dimensional objects.

14

But in spite of this the problem of the constitutionality of the copyright statutes, at least in respect to the subjects of copyright, has lain

1347 U.S. 201 (1954).

Pursuant to 17 U.S.C. § 5(g) (1952).

2347 U.S. at 214. Four similar suits had been brought by Stein for infringement of his copyright under this section.

(a) Stein v. Expert Lamp Co., 96 F. Supp. 97 (N.D. Ill.) (relief denied as lamps were purely utilitarian), aff'd, 188 F. 2d 611 (7th Cir.), cert. denied, 342 U.S. 829 (1951). (b) Stein v. Rosenthal, 103 F. Supp. 227 (S.D. Cal. 1952) (relief granted as art form was sufficient in spite of its possible utilitarian uses), aff'd, 205 F. 2d 633 (9th Cir. 1953). (c) Stein v. Benaderet, 109 F. Supp. 364 (E.D. Mich. 1952) (considered Rosenthal case based on mistake and followed Expert Lamp case in denying relief), rev'd per curiam, 214 F.2d 822 (6th Cir. 1954) (based on the Supreme Court decision in Mazer v. Stein). (d) Stein v. Mazer, 111 F. Supp. 359 (D. Md.) (dismissed complaint holding no protection for utilitarian work), rev'd, 204 F. 2d 472 (4th Cir. 1953) (agreeing with Rosenthal case), aff'd, 347 U.S. 201 (1954).

4347 U.S. at 221 (with Justice Black concurring).

Statuettes, bookends, clocks, lamps, door knockers, candlesticks, inkstands, chandeliers, piggy banks, sundials, salt and pepper shakers, fish bowls, casseroles, and ash trays. Ibid.

Art. I, § 8, cl. 8, reprinted in H.R. Doc. No. 739, 81st Cong., 2d Sess., 46 (1951). Webster's New Collegiate Dictionary (1956 ed.) defines writing as: "1. The act of one who writes (in any sense). 2. Something written, as a letter, notice, etc. Specif.: (a) an inscription; (b) any written or printed poper or document, as a deed, contract, etc. ; (e) any written composition; book; as, the writings of Addison.

* See text at notes 208-24 infra. 10 See text at notes 225-31 infra. "See text at notes 232-34 infra. 12 See text at notes 235-39 infra. 12 See text at notes 240-46 infra. 14 See text at notes 247-64 infra.

dormant for many years. In fact, this is the first instance of a direct questioning by a Supreme Court Justice of the general scope of copyright protection since 1884.15

The importance of the problem raised by Justice Douglas demands a thorough and comprehensive study of the history and application of the copyright clause to see if a definition can be found which both explains what has developed and is consistent with the intent of the framers of the Constitution. This note is such a study based upon an examination of all available historical, legislative, and case material.

English Background

HISTORICAL DEVELOPMENTS

The concept of copyright that has existed at common law has prevailed since early Roman times.16 Under this concept, the owners of literary property possessed exclusive rights to the use of their works until dedication to the public, commonly termed "publication"." The subject of these common law rights was not limited to any theory of "writings." 18

The historical origin of statutory copyright protection is commonly traced to the chartering of the Stationer's Company in 1556,19 the main object of which was the suppression in England of the religious ideas of the Protestant Reformation. The printing of any book for sale was forbidden unless it was registered by a member of the Company. While this effected the desired control over the press and vested the Company with a practical monopoly of the trade, an advantage also accrued to the publisher, for the registration of a book by him excluded all others from printing it. In 1694 the Licensing Act, under which the Company then operated, expired and there ensued, from 1695 until 1709, a period in which no copyright protection existed. Pirating during this period became common and publishers joined with authors in petitioning Parliament for protection. Finally, in 1709, the Statute of Anne 20 was passed. The first copyright statute anywhere to be found, its purpose clause explained that books and other writings had been published without the consent of authors or proprietors to their detriment and that of their families. A term of fourteen years of copyright protection was provided for authors,21 with a fourteen year renewal term. This statute changed the purpose of statutory copyright from censorship to protection. This protection became necessary with the invention of printing, the first commercially feasible method of mass production of intellectual property.

15 In Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884), the question was squarely presented to and decided by the Supreme Court.

16 See Bowker, Copyright, Its History and Its Law 8 (1912).

17 For a modern discussion of what constitutes publication, see Note, 15 Temp. L.Q. 531 (1941).

18 See Prince Albert v. Strange, 1 Macn. & G. 25, 41 Eng. Rep. 1171 (ch. 1849). This case. which granted protection for unpublished etchings, while subsequent to the first English copyright statute, preceded any statutory copyright protection for paintings, etchings, and like items, and was therefore decided strictly on common-law principles. See also Scrutton, Law of Copyright 152 (3d ed. 1896).

19 See Birrell, The Law and History of Copyright in Books c. 2 (1899; 6 Holdsworth, History of English Law 360-79 (1927).

20 8 Anne, c. 19 (1710). In 1735 a statute extending copyright protection to "inventors and engravers" of historical and other prints was passed. 8 Geo. 2, c. 13 (1735). A reading of it shows a close identity with the terms of the Statute of Anne.

21 This was the first acknowledgment of a copyright in authors. Birrell, op. cit. supra note 19, at 93. Theretofore registration with the Stationers' Company has assured only a publisher's copyright. For an excellent coverage of the copyright problem in England from 1710 to 1780, see Collins, Authorship in the Days of Johnson (1927).

History of the copyright clause

The English law of copyright was presumably familiar to colonial lawyers. Although the Articles of Confederation did not have a copyright clause, the Continental Congress, alive to the problems of authors, recommended that the states provide copyright protection.23 Twelve states passed copyright laws prior to the Constitutional Convention.24 Eight of these states protected writings in the literal sense.25 In four of these, the subjects of copyright were books and pamphlets.26 Other modes of enumerating subjects were: "books," 27 "books, treatises, and other literary works," 28 and "book or books, writing or writings." 29 Three states provided protection for maps and charts as well as books.30 Two of these statutes did not use the word "writings," hence an extension to maps and charts could not have been implied. Connecticut, however, used the term "writings" in apposition to "author" in the preamble, and thereafter used author in apposition to book, pamphlet, map, or chart and would thus imply that maps and charts were writings, a slight expansion of the definition.82 These statutes, however, were limited in operation to the territorial jurisdiction of the particular states. There was no national uniform copyright protection. The resulting lack of complete coverage produced a receptive atmosphere at the time of the Constitutional Convention for the creation of authority enabling the establishment of federal copyright protection.

31

Noah Webster seemed to have been particularly active at this time in urging copyright legislation upon the states. See Webster, Collection of Papers on Political, Literary and Moral Subjects 173-75 (1843).

24 Journals, Continental Congress 326 (1783).

Conn. Acts & Laws 1784-90, p. 133 (1784); Mass. Acts & Laws 1782, c. 58; Digest of Laws of Ga., p. 323 (1876); 1 Md. Laws 1692-1784, c. 34 (Kilty 1783) (law contingent upon every state passing a copyright law); 4 N.H. Laws 1783, c. 1; N.J. Acts 1776-83, p. 325 (1783); N.Y. Laws 1786, c. 54; N.C. Laws 1785, c. 26, republished in 24 N.C. State Records 747 (1905); 11 Pa. Stat. at Large, c. 1079 (1782); R.I. Acts & Resolves, p. 6 (1783); 4 S.C. Stat. at Large, No. 122 (1784); 12 Va. Stat. at Large, c. 6 (Hening 1785). The only exception in the original thirteen colonies was Delaware which didn't pass any

law.

Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, South Carolina, and Virginia. See note 24 supra.

Virginia, New York, New Jersey, and Pennsylvania protected books and pamphlets. South Carolina: books. North Carolina: books, maps, and charts. Georgia and Connecticut: books, pamphlets, maps, and charts. Massachusetts, New Hampshire, Rhode Island; books, treatises, and other literary works. Ibid.

The term "author" was used in apposition to all of the above subjects in each of the eleven statutes, while it appears in apposition to the term "writings" in the Connecticut (in the preamble) and Maryland statutes. Ibid.

"Securing" appears in the titles of the statutes of Virginia, North Carolina, Massachusetts, New Hampshire, and Rhode Island. Ibid.

"For a limited time" appears only in the Virginia statute which was submitted by Madison at the instance of Noah Webster. 2 Brant, James Madison 371 (1948). While Brant attributes the copyright clause to Madison, Curtis attributes it to Pinckney. 1 Curtis, Constitutional History 531 (2d ed. 1889). There seems to be no evidence conclusively proving that either was solely responsible for its suggestion or specific phraseology. Fenning, The Origin of the Patent and Copyright Clause of the Constitution, 17 Geo. L.J. 109 (1929).

"Exclusive right" appears in the titles of the Massachusetts, New Hampshire, and Rhode Island statutes. It is interesting to note that these statutes did not contain restrictive provisions concerning the sale of printed matter at reasonable prices or the maintenance of a sufficient supply for the public. See note 24 supra. It has been suggested that the use of the phrase "exclusive right" in the Constitution indicates an intent that no restriction encumber the copyright. Fenning, Copyright Before the Constitution, 17 J. Pat. Off. Soc'y 379, 384 (1935). An excellent discussion of the state copyright statutes appears in 1 Crosskey, Politics and the Constitution 482-85 (1953).

South Carolina. See note 24 supra.
Massachusetts, New Hampshire, Rhode Island.

Ibid.

29 Maryland. Ibid. The disjunctive here suggests that the word "writings" extends beyond "books." This extension may be indicative of an expansion definition of writings or it may merely signify other writings within the literal definition, such as newspapers, pamphlets, and periodicals.

30 North Carolina, Georgia, and Connecticut.

31 North Carolina and Georgia.

22 Connecticut. Ibid.

46479-60

Ibid.

Ibid.

The committee proceedings of the convention were secretly conducted, and the final form of the copyright clause was approved without debate. In the available records of the proceedings, there is no direct evidence which conclusively establishes the intended scope of the copyright clause, and, accordingly, there is no direct evidence concerning the meaning of the word "writings"-whether it was intended to be construed literally or as a word of art encompassing many objects outside of its literal meaning. Some material, however, is available from which several inferences of possible intent can be drawn.

Four clauses differing from the one finally adopted were suggested to the Constitutional Convention. None used the word writings. The clauses read: "To secure to literary authors their copyrights for a limited time"; 34 "To secure to authors exclusive rights for a certain time"; 35 "To secure to authors the exclusive right to their performances and discoveries"; 36 and "To encourage, by proper premiums and provisions, the advancement of useful knowledge and discoveries." 37 The fact that the clause contained the word "writings," while the original proposals did not, permits opposing conjectures: (1) the word was used as a limitation upon the broad scope of all the proposals; or (2) since the word was included by the committee on style and there was no consideration by the convention, it can be inferred that the change was not substantive but merely formal.

The Federalist sheds more interpretive light upon the probable scope of the clause. It should be remembered, however, that Madison's purpose in The Federalist was to present his analysis in a light which he felt would be most acceptable to the nation. Referring to the clause as it appears in the Constitution, Madison stated:

The utility of this power will scarcely be questioned. The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of individuals. The States cannot separately make effectual provision for either of the cases, and most of them have anticipated the decision of this point, by laws passed at the instance of Congress."

It may very well be argued, from the above quotation, that the intent of the clause was to establish harmony between federal copyright protection and the development of common-law protection. The statement places no limitation, either direct or implied, upon the scope of the clause but rather intimates that the types of objects protected will expand when the common law sees fit to expand them. Following this reasoning, the clause was not intended to deal specifically with the subjects of copyright but merely to assure uniform protection through nationwide laws.39 Since the legislature has the authority to change

23 Madison, Debates in the Federal Convention of 1787, at 512-13 (Hunt & Scott ed. 1920); Journal, Acts and Proceedings, of the Convention 328-29 (1819).

345 Elliot, Debates on the Federal Constitution 440 (1845). The first drafts of the Constitution, submitted by Edmund Randolph and Charles Pickney, did not contain copyright provisions. Journal. Acts and Proceedings, of the Convention 67, 71 (1819). 35 Ibid. See also 2 Madison, Journal of the Constitutional Convention 550 (1894). 28 Madison, Debates in the Federal Convention of 1787. at 420 (Hunt & Scott ed. 1920); Journal, Acts and Proceedings, of the Convention 259-61 (1819).

37 2 Madison, Journal of the Constitutional Convention 550 (1894).

33 The Federalist, No. 43, at 278 (Modern Library ed. 1937). Madison, a member of the committee which framed the copyright clause, was referring in this paragraph to the case of Millar v. Taylor, 4 Burr. 2303, 98 Eng. Rep. 201 (K.B. 1769) (holding that a perpetual copyright existed at common law), which concerned literary property; to the state copyright statutes, which concerned printed matter; and to the resolution of the Continental Congress, supra note 23, which concerned only books.

a Curtis, A Treatise on the Law of Copyright 81 (1847). See 3 Story, Commentaries on the Constitution of the United States c. 19 (1833).