and continuities insofar as they embody original work of authorship," 14 indicate a lack of intent to copyright everything copyrightable under the Constitution. Although the phrase at the end of section 5 in the 1909 act 115 is presumably left intact and section 4 contains sweeping language, the difficulty in determining whether the statute would copyright anything not enumerated within it, which was experienced under the 1909 act, is present here.

H.R.11420.116-In 1936, during the 2d session of the 74th Congress, H.R. 11420 was introduced into committee.117 Section 4 of this bill is the same as in S. 3047 above, and section 5 is also substantially similar, except for subsection (o), which provides for registration of "miscellaneous writings, including works mentioned in section 6 not enumerated above." Section 6 reads, "copyright shall subsist in compilations, abridgments, translations, dramatizations, adaptations, picturizations, novelizations, and arrangements." Section 7 specifically denies copyright to "designs, or textiles, or patterns for wearing apparel, or pictorial representations of such designs or patterns" 118 or to

renditions, interpretations, mechanical and electrical recordings and transcriptions, in respect of any work the author of which shall not have consented in writing to the securing of copyright in such . . . recordings.

119

The latter clause by implication protects these interpretations of records when the author has consented. Since there is no specific classification section for records, this protection indicates that the specific classifications of section 5 are not exclusive and reinforces the view that section 5(o) meant to spend the entire constitutional grant. Although section 5(n) classifies for registration "works prepared expressly for radio broadcasting or for recording by means of electrical or mechanical transcription," these are not the same subjects as in section 7(d). The section 5(n) grant is unconditional whereas the section 7 grant forbids copyright without consent of the author. The only way to resolve this ambiguity is to interpret "works prepared ... for recording" as not including "interpretations in such recordings." A further indication that these subjects are not the same is the fact that in H.R. 10632, mentioned below, both are included in section 5 120 and are thus established as separate categories.

H.R.10632.121-This bill, introduced 122 at the same session as H.R. 11420, would have amended section 4 of the present act by providingThat the works for which copyright may be secured . . . shall include all the writings of an author, whatever the mode or form of their expression, and all renditions and interpretations of a performer and/or interpreter of any musical, Literary, dramatic work, or other compositions, whatever the mode or form of such renditions, performances, or interpretations.

This broad language suggests the correctness of Professor Chafee's theory that the word "writings" in the statute is more narrowly defined than it is in the Constitution.128 Here, section 4 gives copyright to "all the writings of an author. . . and all renditions and interpretations

4(0).

See note 62 supra.

74th Cong., 2d Sess. (1936).

(1936).

Introduced by Sirovich and referred to Committee on Patents, 80 Cong. Rec. 2725 27(e).

7(d).

5(0), (n).

74th Cong., 2d Sess. (1936).

Introduced by Daly and referred to Committee on Patents, 80 Cong. Rec. 1086 (1986). See Chafee, supra note 68, at 504.

of a performer. ." Since this grant shows that renditions are something more than writings, and since Congress cannot constitutionally protect anything but a writing, it seems that the draftsmen were following Professor Chafee's idea and saying that constitutional concept of authors and writings includes at least those renditions and performers covered by the statute. But the poor draftsmanship of many of the copyright bills forbids implying too much from this language which may have been inadvertent.

Section 5 of the 1909 act 124 is amended to include, among other things, "works prepared expressly for radio broadcasting, or for recording by means of electrical or mechanical transcription." 125 Subsection (n) 126 provides for registration of—

the interpretations, renditions, readings, and performances of any work when mechanically reproduced by phonograph record, disks, sound-track tapes, or any and all other substances and means, containing thereon or conveying a reproduction of such interpretations, renditions, readings, and performances. It is puzzling to determine the borderline between section 5(o) and 5(n), a distinction not so obviously drawn as in H.R. 11420.127

H.R. 1270.128 This bill 129 provided for amending section 5 (m) 130 of the present act by substituting "recordings which embody and preserve any acoustic work in a fixed permanent form . . . on any ... (substance) ... by means of which it may be acoustically communicated or reproduced." This seems to have been primarily aimed at protecting performers' rights by extending the concept of writings to include communications through the sense of hearing, if such communications are embodied in some concrete object.131

Conclusions.-The most apparent fact which can be drawn is that the constitutional definition of "writings" has not been the controlling factor in Congress' decisions on the extension of copyright protection.132 Since 1790 Congress has shown a readiness to protect property

124 See note 62 supra.

125 § 5(0).

126 This is probably a misprint for subsection (p), since it succeeds subsection (o). It is printed this way in Hearings, supra note 101, at 8-10. For statements urging passage of a similar bill, see ibid. For statements urging defeat, see statements of Gene Buck, id. at 18, and Louis Frohlich, id. at 24.

127 See text at notes 119-20 supra.

128 80th Cong., 1st Sess. (1947).

129 Introduced by Scott and referred to Committee on the Judiciary, 93 Cong. Rec. 552 (1947).

130 See note 77 supra.

131 The subcommittee of the American Bar Association Section of Patents, Trade-Marks and Copyright Law disapproved this section of the bill. ABA, Patent, Trade-Mark & Copyright Law Section, Committee Reports to be Presented at Annual Meeting 1053 (1948). Arguments by witnesses on the unconstitutionality of proposed copyright bills has not prevented Congress from passing dubious sections in the past. Opponents of § 1, which gave rights of mechanical reproduction to copyright owners, and thus overrode White-Smith Music Publishing Co. v. Apollo Co., 209 U.S. 1 (1908), contended this section was unconstitutional. The view was that the Constitution states that authors shall be protected in their writings, and thus they could not be protected against means other than writings. Statement of Horace Pettit, in Hearings Before the Committees on Patents of the Senate and House of Representatives, on Pending Bills to Amend and Consolidate The Acts Respecting Copyright 273 (1908). The rejection of this argument and the many sub silentio decisions upholding the constitutionality of this part of the 1909 act indicate either that the authors' rights to prohibit use by anyone is not restricted to use through writings, contrary to Mr. Pettit's contention, or that all of the § 1 rights, which deal with the exclusive rights of copyright owners, are "writings." If that latter view is followed, the definition of "writings" would be expanded so far that it would even include oral works under § 1 (c). The first view is probably the correct one.

It was also contended that the provision in § 1(e), granting a compulsory license to all record manufacturers as soon as one recorded the song, was unconstitutional as violative of the constitutional phrase "exclusive right." See, e.g., Statement of Nathan Burkan, Counsel, Music Publishers Ass'n, id. at 233, 234; Statement of Robert Underwood Johnson, Secretary, Copyright League, id. at 361. Nevertheless, the section was passed. See Fenning, The Origin of the Patent and Copyright Clause of the Constitution, 17 Geo. L.J. 109 (1929); Note, 22 Chi. L. Rev. 920 (1955).

133 Nowhere in the reports or hearings can an instance be found when it has controlled the decision.

having commercial value, although the bills have often been ambiguous and poorly drawn.133

CASE LAW

Largely unnoticed and unquestioned, the courts have interpreted the copyright provision of the Constitution 134 far beyond its literal wording. Very few courts have decided the question of copyrightability on the basis of whether particular objects were literally "writings" produced by "authors" or whether the framers intended the objects in question to be protected. As a matter of fact, very few courts even deal with the Constitution in their decisions delineating the proper subject matter of copyright.

Even when the courts discuss the words in the Constitution, the analysis rarely includes any discussion of the literal or plain meaning of "writings" and "authors" or what the framers of the Constitution meant and why they used such explicit and limiting words. These words and their applicability to copyright subject matter are discussed on an entirely different level of meaning.

These courts feel that section 8 (exclusive of "inventors" and "discoveries") gives Congress the basic power to regulate copyrights; the clause "to promote the Progress of Science and useful Arts" embodies the various objectives and purposes of copyrights; the phrase "by securing for limited Times... the exclusive Right" sets forth the method by which these objectives are to be accomplished; and "writings" and "authors" require that subjects must conform to certain principles, such as originality, creativity, and intellectual thought, before they are entitled to protection. In no instance is the particular form in which the object may exist the controlling consideration.

In only two cases has the constitutionality of copyright legislation been passed upon by the United States Supreme Court. In the TradeMark Cases 135 the power of Congress to include objects used as trademarks, such as engravings, etchings, and prints, was questioned. Their copyrightability was rejected, not on the ground that they were not literary productions, but rather because they lacked originality and creativity. In the second case, Burrow-Giles Lithographic Co. v. Sarony, the question of whether photographs were writings, i.e., literary productions, was thoroughly discussed. The Court rejected a literal interpretation of writings and held the photographs were copyrightable.

136

Most courts have followed Burrow-Giles and assumed that the framers of the Constitution "by writings meant the literary productions of . . . authors." 137 authors." 137 Likewise, in a frequently cited decision of the Seventh Circuit Court of Appeals denying copyright protection to ticker tape reports of current events, the court said that unquestionably the framers of the Constitution had authorship of literary productions in mind in vesting Congress with power under article I, section 8, and if "the intention of the framers... [were] to give boundary to the constitutional grant, many writings, to which copyright has since been extended, would have been excluded." 138

It is not to be presumed that this is the only area in copyright law where congressional confusion is evident.

124 U.S. Const., art. I, § 8, cl. 8.

100 U.S. 82 (1879).

1111 U.S. 53 (1884).

15 Id. at 58.

National Tel. News Co. v. Western Union Tel. Co., 119 Fed. 294, 297 (7th Cir. 1902).

Despite this restricted interpretation of the original meaning intended by the framers, the courts do not seem to consider the literal definition of "writings" binding in deciding the issue of copyrightability. Occasionally, a court will refuse to extend protection to a particular object on the ground that it does not wish to expand the concept of "writings," but there seems to be no doubt these courts thought Congress could so expand it.139

Whether they are granting or withholding copyright protection, the courts agree that the words "writing" and "authors" should be liberally construed.140 Various phrases have been used to express this idea: "the words have received a broad interpretation by the courts"; 141 "both these words are susceptible of a more enlarged definition"; 142 "here as elsewhere, the constitution under judicial construction, has expanded to new conditions as they arose"; 143 and "the history of the copyright law does not justify so narrow a construction of the word 'writings'." 144 It is clear that even though they express the belief that the Constitution was intended only to give power to Congress to protect literary productions, they consider neither themselves nor Congress limited to protecting this form of subject matter. Apparently Mazer v. Stein states the currently accepted view that, at least since the decision of Burrow-Giles in 1884, the question is settled and it has been "made clear that 'writings' was not limited to chirography and typography.'

" 145

Definitions of "Writings" and "Authors" by the Courts

Writings. The courts do not define writings as the from a particular subject matter but rather they determine if the subject matter meets certain standards or principles to which all objects, whatever their form, must conform if they are to be entitled to copyright protection. Writings, thus, are defined not in terms of concrete, tangible forms, but in terms of principles and standards.

In the first definitive statement of the meaning of writings, the Supreme Court in the Trade-Mark Cases held that Congress had no power to protect trade-marks under article I, section 8, not because trade-marks were not in the form of "writings" as it might have declared by literally interpreting the word, but because writings of authors require originality. The Court went on to say that

while the word writings may be liberally construed, as it has been, to include original designs for engravings, prints, etc., it is only such as are original, and are founded in the creative powers of the mind. The writings which are to be protected are the fruits of intellectual labor, embodied in the form of books, prints, engravings, and the like.14

139 See Music Publishing Co. v. Apollo Co., 209 U.S. 1 (1908) (player piano rolls); Atlas Mfg. Co. v. Street & Smith, 204 Fed. 398 (8th Cir.), appeal dismissed, 231 U.S. 348, cert. denied, 231 U.S. 755 (1913), cert. denied, 232 U.S. 724 (1914) (title of literary work): Capitol Records, Inc. v. Mercury Records Corp., 221 F. 2d 657 (2d Cir. 1955); J. L. Mott Iron Works v. Clow, 82 Fed. 316 (7th Cir. 1897) (catalogue of pictures); Jack Adelman Inc. v. Sonners & Gordon, Inc., 112 F. Supp. 187 (S.D.N.Y. 1934) (dress).

140 Trade-Mark Cases, 100 U.S. 82 (1879); Courier Lithographing Co. v. Donaldson Lithographing Co., 104 Fed. 993 (6th Cir. 1900), rev'd sub now. Bleistein v. Donaldson Lithographing Co., 188 U.S. 239 (1903) (the Supreme Court reversed the circuit court on the ground that it had interpreted this section of the Constitution too narrowly); J. L. Mott Iron Works v. Clow, supra note 139: Metro-Goldwyn-Mayer Distributing Corp v. Bijou Theatre Co., 3 F. Supp. 66 (D. Mass. 1933); Hoague-Sprague Corp. v. Frank C. Meyer Co., 31 F. 2d 583 (E.D.N.Y. 1929).

141 Id. at 584.

142 Burrow-Giles Lithograph Co. v. Sarony, 111 U.S. 53, 57 (1884).

143 National Tel. News Co. v. Western Union Tel. Co., 119 Fed. 294, 297 (7th Cir. 1902). 144 Harper & Bros. v. Kalem Co., 169 Fed. 61, 64 (2d Cir. 1909), aff'd, 222 U.S. 55 (1911). 145 347 U.S. at 210 n. 15.

148 Trade-Mark Cases, 100 U.S. 82, 94 (1879).

Since trade-marks were the result of use or accident and not of "fancy," "imagination," "genius," or "laborious thought," 147 they were not entitled to copyright protection.

In similar words, the Supreme Court in 1884 held that Congress had the power to protect photographs, not because they were a form of literary production, but because writings included all forms "by which the ideas in the mind of the author are given visible expression." 148 Since the author of the photographs proved the

149

facts of originality, of intellectual production, of thought, and conception [they were in the] class of inventions for which the Constitution intended that Congress should secure to him the exclusive right to use, publish and sell. . . .1 On the basis of these two cases, other courts have similarly defined these words in terms of principles and standards, such as: "the expression of an idea, or thought, or conception" 150 of the one who takes the photograph; subjects which "convey or are capable of conveying the thought of an author"; 151 "creative, intellectual or aesthetic labor in the production of a concrete, tangible form" 152 resulting in an artistic creation; results and "fruits of intellectual labor"; 153 and "labor of the brain in these useful departments of life." 151

Courts have expressly held the following objects to be "writings": an interest and discount time teller consisting of a diagram in contrasting colors with words, markings, and numerals; 155 pictorial illustrations of women's dresses; 156 code words for cable correspondence; 157 a motion picture photoplay film; 158 and a chart for analyzing handwriting 159 Even in these cases which declare a specific subject to be a writing instead of saying a writing is the idea or expression of the thought or conception of the author, the courts say these objects are writings because they are original intellectual and creative conceptions.

It is interesting to note that in the cases involving the motion picture photoplay film and the handwriting chart, the courts discussed section 4 of the Copyright Act 160 which grants copyright protection to "all the writings of an author." Section 5 classifies the works for copyright registration but states that these specifications "shall not be held to limit the subject matter of copyright as defined in section 4." 161 Both courts held that if the objects in issue could not be properly classified within the subjects mentioned in section 5, they were meant to be included as "writings" under section 4.162 Section 5 certainly specifies all forms of literary production so, to these courts at

147 Ibid.

148 Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58 (1884).

149 Id. at 60.

1905).

American Mutoscope & Biograph Co. v. Edison Mfg. Co., 137 Fed. 262, 265 (C.C.D.N.J.

Brown Instrument Co. v. Warner, 161 F. 2d 910, 911 (D.C. Cir.), cert. denied, 332 U.S. 801 (1947).

Hoague-Sprague Corp. v. Frank C. Meyer Co., 31 F. 2d 583 (E.D.N.Y. 1929).

153 J. L. Mott Iron Works v. Clow, 82 Fed. 316, 318 (7th Cir. 1897).

154 National Tel. News Co. v. Western Union Tel. Co., 119 Fed. 294, 297 (7th Cir. 1902).

155 Edwards & Deutsch Lithographing Co. v. Boorman, 15 F. 2d 35 (7th Cir. 1926).

154 National Cloak & Suit Co. v. Kaufman, 189 Fed. 215 (C.C.M.D. Pa. 1911).

Reiss v. National Quotation Bureau, Inc., 276 Fed. 717 (S.D.N.Y. 1921).

15 Metro-Goldwyn-Mayer Distributing Corp. v. Bijou Theatre Co., 3 F. Supp. 66 (D. Mass. 1933).

Deutsch v. Arnold, 98 F. 2d 686 (2d Cir. 1938).

180 17 U.S.C. § 4 (1952). See wording in note 61 supra.

1117 U.S.C. § 5 (1952). See note 62 supra.

Deutsch v. Arnold, 98 F. 2d 686, 688 (2d Cir. 1938); Metro-Goldwyn-Mayer Distributing Corp. v. Bijou Theatre Co., 3 F. Supp. 66, 72 (D. Mass. 1933).

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