The Court in its discussion of the nature of copyright under the Constitution said that the sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits derived by the public from the labors of authors. A copyright, like a patent, is "at once the equivalent given by the public for benefits bestowed by the genius and meditations and skill of individuals and the incentive to further efforts for the same important objects." 195 The creator of a cartoon character of a horse was granted protection against reproductions of the horse in the form of toys, on the ground that it is "the commercial value of his property that . . . is protected," and this is done "to encourage the arts by securing to him the monopoly in the sale of the objection of the attraction." 196 This interpretation has been used as one of the grounds to deny copyright protection to certain subjects. In these cases, the courts state that because protection of the particular subject matter would not benefit the public it is not entitled to protection. In the case involving illustrations of bath tubs and slop sinks one of the grounds on which they were declared unprotected was the fact that the object of the constitutional provision was to promote the dissemination of learning, by inducing intellectual labor in works which would promote the general knowledge in science and useful arts. It sought to stimulate original investigation, whether in literature, science or art for the betterment of the people, that they might be instructed and improved with respect to those subjects." 197 In very similar words a New York district court refused to grant protection to a fundamental plot which had been common property before the author wrote his play. "Copyright protection is extended to authors, mainly with a view to inducing them to give their ideas to the public so that they may be added to the intellectual store, accesible to the people, and that they may be used for the intellectual advancement of mankind." 199 According to the analysis of the court, if this particular author were allowed to withdraw this idea for a plot from the stock of materials to be used by other authors this would deprive the world of improvements and retard the progress of the arts.199 This interpretation has probably been largely responsible for the actual definitions given to "writings" and "authors." 4. The Constitution Is a Flexible Document, Interpreted in Light of New Arts and Methods of Reproduction.-Under this theory of judicial interpretation the courts have evolved the idea that the Constitution was not meant to be a static document but should be interpreted to take into consideration changes in society brought about through the developments in science and the arts. As new arts and methods of reproduction are developed, Congress has the power to enact new copyright laws to extend protection to these new subjects. Courts operating under this theory have granted protection to certain objects prior to their specific inclusion under the specifications set forth in the statute. 10 Id. at 127. 199 King Features Syndicate v. Fleischer, 299 Fed. 533, 536 (2d Cir. 1924). 199 Id. at 408. The Supreme Court in the Burrow-Giles case stated that the only reason why photographs were not included in the extended list in the act of 1802 is probably that they did not exist, as photography as an art was then unknown, and the scientific principle on which it rests, and the chemicals and machinery by which it is operated, have all been discovered long since that Statute was enacted.20 200 Pictorial illustrations have been properly included in the copyright statutes because "in keeping pace with the growth of the subject of this constitutional provision, many statutes have been enacted, extending and enlarging its protection." 201 The two leading cases granting copyright protection to motion pictures on the ground that they were photographs supported their expansion of both the statute (which did not expressly protect motion pictures or motion picture photoplay films when these cases were decided) and the Constitution on this theory of a flexible constitution.202 In 1903 motion pictures were held to be photographs within the meaning of the 1865 statute because it was in accord with the purpose of the constitutional grant of power. When Congress amended the copyright act in 1865 to include photographs, it is not to be presumed it thought such art could not progress and no protection afforded such progress. It recognized there would be change and advance as in other subjects of copyright protection." 203 A motion picture photoplay film not based on a novel or dramatic production was protected on the ground, among others, that it could be considered a "writing" under section 4 or a photograph under the 1865 statute. In either case, the court said this decision was supportable because- they were copyrightable and copyrighted under prior acts passed before they were invented. . . . While statutes should not be stretched to apply to new situations not fairly within their scope, they should not be so narrowly construed as to permit their evasion because of changing habits due to new inventions and discoveries.204 The court also referred to President Roosevelt's message to Congress in 1905 in which he said: Our copyright laws urgently need revision. They are imperfect in definition, confused and inconsistent in expression; they omit provision for many articles which, under modern reproductive processes, are entitled to protection. . . . 205 Similarly, the Court of Appeals for the Seventh Circuit expressed the view that the courts have extended protection to the literature of commerce which the old guild of authors would have disdained, such as catalogues, mathematical tables, statistics, and guide books, because "here as elsewhere, the constitution, under judicial construction, has been expanded to meet new conditions as they arose." 206 If one accepts the philosophy that the words of the Constitution are susceptible of expanded meaning to handle unanticipated situations, 200 111 U.S. at 58. 201 National Cloak & Suit Co. v. Kaufman, 189 Fed. 215, 218 (C.C.M.D. Pa. 1911). 202 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). 203 Edison v. Lubin, supra note 202, at 242. 204 Metro-Goldwyn-Mayer Distributing Corp. v. Bijou Theatre Co., 3 F. Supp. 66, 72 (D. Mass. 1933). 205 Id. at 71. 206 National Tel. News Co. v. Western Union Tel. Co., 119 Fed. 294, 297 (7th Cir. 1902) (dictum). this is a very credible approach. It is possible to say that at the time the Constitution was written the need for statutory copyright extended only to literary productions. Statutory copyright was needed to expand common-law copyright as the methods of reproduction made copying of literary works economically feasible. All new additions to copyright law since common-law copyright, including our own statutes, have been induced by the developments in the arts and the methods of reproduction. Therefore, within the spirit of section 8 it is possible to give a broad interpretation to "writings" and "authors" to include objects not within the literal definition of these words because the need to protect them was not known to the framers. This approach to the Constitution was probably best stated by Judge Learned Hand in a case upholding the copyrightability of cable code words. He said it is not true that the Constitution embalms inflexibly the habits of 1789 . . . . [I]ts grants of power to Congress comprise, not only what was then known, but what the ingenuity of men should devise thereafter. . . . [T]he new subject-matter must have some relation to the grant; but we interpret it by the general practices of civilized peoples in similar fields, for it is not a strait-jacket, but a charter for a living people." Subjects Granted Copyright Protection Other Than Literary Productions 207 The courts have shown considerable leniency in applying the standards they have developed to construe section 8. As a matter of fact in most of the cases discussed below, the question of the Constitution and its relation to copyright is not discussed. However, since most of them cite cases in which the Constitution is discussed as authority for their decisions, presumably these courts are relying on the reasoning in the cited interpretations. 1. Advertising.-It was the "circus poster case," Bleistein v. Donaldson Lithographing Co.,208 that substantially modified the standards for copyrightability set forth in the Trade-Mark and Burrow-Giles cases, thus allowing the courts to grant copyright protection to a number of things which would not have been permitted under earlier standards. It must be noted again, however, that these are standards of copyright and have nothing to do with the form of the subject matter. In other words, the definitions of "writings" and "authors" set forth previously, though still valid and controlling must themselves be interpreted broadly on the basis of the Bleistein case. Prior to this "circus poster case," some courts had held that materials designed for no other purpose than mere advertising were not copyrightable, regardless of their form. In an early Supreme Court case, decided in 1891, a label for an ink bottle was denied protection because the object did not serve some purpose "other than as a mere advertisement or designation of the subject to which it is attached." 209 Subsequently, other courts, ignoring the fact that the only thing sought to be protected in that case was the statement on the label "water-proof drawing ink," held that illustrations in price catalogues of bathtubs and slop sinks210 and in circus poster advertisements were not copy Reiss v. National Quotation Bureau, Inc., 276 Fed. 717, 719 (S.D.N.Y. 1921). 20s 188 U.S. 239 (1903). 20 Higgins v. Keuffel, 140 U.S. 428, 431 (1891). See also Cross v. Oneida Paper Products Co., 117 F. Supp. 191 (D.N.J. 1954). 14 J. L. Mott Iron Works v. Clow, 82 Fed. 316 (7th Cir. 1897). 211 rightable. It was held that to be protected pictures must have some other use, intrinsic merit, or value aside from just advertising.212 However, since the Supreme Court upheld the copyrightability of circus posters, advertisements have been almost unformly protected, whether they were pictures or merely a general lay-out. Justice Holmes stated in Bleistein v. Donaldson: The Constitution does not limit the useful to that which satisfies immediate bodily needs. . . . A very modest grade of art has in it something irreducible, which is one man's alone. That something he may copyright unless there is a restriction in the words of the act. . . . A picture is none the less a picture and none the less a subject of copyright [despite the fact] that it is used for an advertisement." 213 As a result of the Bleistein philosophy, photographs or illustrations used to advertise such things as dress fashions,214 "B.V.D.'s," 215 and piston rings,216 have been held proper subjects of copyright. Pictures of vegetables were held to be copyrightable even though they had little artistic merit. The court felt it was enough if in details, designs, and combination of lines and colors a picture originated with the plaintiff and was in fact a picture, illustration, or work of art connected with the fine arts.217 Likewise, an advertising lay-out containing pictures of cosmetics and toilet articles was granted copyright protection with little emphasis on originality. The court seemed to think that any work involving labor or brain skill should be protected because courts should seek to "increase rather than to restrict, the subject matter of copyright." 218 Recently, a case extended copyright protection even to an advertisement composed primarily of a dot-counting contest.219 Illustrations in catalogues used exclusively to sell the plaintiff's products have almost always been granted protection since the "circus poster case," including those with illustrations of electrical conductors,220 religious statuary,221 and brass goods.222 The grant of copyright protection to pictures of extension shoes in a sales catalogue was upheld because the pictures were "originally designed and prepared by persons of skill and artistic capacity." Although the pictures contained little that was original, they were "quasi-artistic" and this was enough.2 223 In none of these advertisements is a writing, in the literal sense, involved. But the only issue considered was whether they were the result of original or creative intellectual thought or labor as modified by the "modest grade of art" principle of the Bleisten case 22 and 211 Courier Lithographing Co. v. Donaldson Lithographing Co., 104 Fed. 993 (6th Cir. 1900), rev'd sub. nom. Bleistein v. Donaldson, 188 U.S. 239 (1903). 212 See also Lamb v. Grand Rapids School Furniture Co., 39 Fed. 474 (C.C.W.D. Mich. 1889) (protection denied to illustrations of furniture in price catalogue because court said they had no value independent of their use as advertiseinents). 213 188 U.S. at 249-51. A rigorous dissent supported the view that the clause in the Constitution did not embrace mere advertisements and that if the object had no connection with the fine art, or with intrinsic value other than advertising, it was without the obvious meaning of the Constitution. Id. at 252-53. 214 National Cloak & Suit Co. v. Kaufman, 189 Fed. 215 (C.C.M.D. Pa. 1911). Cf. L. A. Westerman Co. v. Dispatch Printing Co., 249 U.S. 100 (1919). 215 Golden Rule, Inc. v. B.V.D. Co., 242 Fed. 929 (8th Cir. 1917). 216 No-Leak-O Piston Ring Co. v. Norris, 277 Fed. 951 (4th Cir. 1921). 217 Stecher Lithographic Co. v. Durston Lithograph Co., 233 Fed. 601 (W.D.N.Y. 1916). 218 Anschl v. Puritan Pharmaceutical Co., 61 F. 2d 131, 136 (8th Cir. 1932), quoting Weil, American Copyright Law 277 (1917). 219 Gordon v. Weir, 111 F. Supp. 117 (E.D. Mich. 1953). 220 Burndy Engineering Co. v. Penn Union Elec. Corp., 25 F. Supp. 507 (W.D. Pa. 1938). 221 Da Prato Statuary Co. v. Giuliani Statuary Co., 189 Fed. 90 (C.C.D. Minn. 1911). 222 J. H. White Mfg. Co. v. Shapiro, 227 Fed. 957 (S.D.N.Y. 1915). 223 Campbell v. Wireback, 269 Fed. 372 (4th Cir. 1920). 224 188 U.S. at 239. fulfilled the basic objectives of copyright. It is apparent from these advertising decisions that copyright standards, and thus the definition of "writings," have been considerably modified to meet new conditions, particularly the rise of extensive advertising. However, the approach to article I, section 8 of the Constitution and its meaning has not been changed. The standards merely have been, and probably will continue to be, made more flexible. 2. Photographs and Motion Pictures.-Photographs and motion pictures need little discussion since the grounds on which they have been held copyrightable have been considered previously. Suffice it to say that on the basis of the ideas expressed in the Burrow-Giles case and to a certain extent those in the Bleistein case, many photographs have been held proper subjects of copyright including those of the following subject matter: Colorado scenery,225 water falls,2 a scene on Fifth Avenue,227 and various persons.228 226 With similar reasoning, primarily because they were first held copyrightable as photographs, motion pictures depicting a ship launching 229 and telling a connected story,230 and simply a motion picture photo play 231 have been held protectable under the Constitution. Generally, the courts will say that since the production of these works requires the arranging, selecting, and utilizing of light, shadows, general surroundings, and vantage point to secure the entire effect, they have the character of works of art. 3. Paintings. Although some of the copyright cases involving paintings were decided prior to the Burrow-Giles and Bleistein cases, the courts have generally used the same reasoning to uphold protection.232 In an engaging case it was held that a painting was entitled to copyright protection even though its theme had been taken from another picture. The court stated that "works of art, to be copyrightable, do not... need to disclose the originality of invention." 283 A distinguishable variation of the same theme is sufficient. Similarly, a defendant in a later case claimed that mezzotint engravings of paintings of old masters were not proper subjects of copyright because they were copies themselves, but the court said that it was sufficient if "the 'author' contributed something more than a 'merely trivial' variation, something recognizably 'his own'." 234 The court seemed to imply in this decision that a copy of a painting by hand would always involve some variation entitling the subsequent picture to copyright. Cleland v. Thayer, 121 Fed. 71 (8th Cir. 1903). Journal Publishing Co. v. Drake, 199 Fed. 572 (9th Cir. 1912). E.g., Gross v. Seligman, 212 Fed. 930 (2d Cir. 1914) (nude girl); Falk v. Donaldson, 57 Fed. 32 (S.D.N.Y. 1893) (Miss Marlowe); Falk v. T. P. Howell & Co., 37 Fed. 202 (S.D.N.Y. 1888) (girl portrayed as "Yum-Yum" in "the Mikado"). Edison v. Lubin, 122 Fed. 240 (3d Cir. 1903) (motion picture held to be "photograph" to come within the statute). 1905). American Mutoscope & Biograph Co. v. Edison Mfg. Co., 137 Fed. 262 (C.C.D.N.J. Metro-Goldwyn-Mayer Distributing Corp. v. Bijou Theatre Co., 3 F. Supp. 66 (D. Mass. 1933) (motion picture copyrightable although not founded on copyrighted novel or dramatic composition). American Tobacco Co. v. Werckmeister, 207 U.S. 284 (1907). The primary issues were technical ones of publication and notice, the court assuming the copyrightability of paintings. See also Schumacher v. Schwencke, 30 Fed. 690 (C.C.S.D.N.Y. 1887); Schumacher v. Schwencke, 25 Fed. 466 (C.C.S.D.N.Y. 1885). Cf. De Jonge & Co. v. Breuker & Kessler Co., 235 U.S. 33 (1914) (painting clearly copyrightable but technical requirements not fulfilled). Gerlach-Barklow Co. v. Morris & Bendien, Inc., 23 F. 2d 150, 161 (2d Cir. 1927). Alfred Bell & Co. v. Catalda Fine Arts, Inc., 191 F. 2d 99, 103 (2d Cir. 1951). |