« iepriekšējāTurpināt »
quote liberally for the purpose of review or criticism, whether favorable or adverse. Hill v. Whalen, 220 F. 359 (1914).
"So, also, it is clear that, under some circumstances and for certain purposes, a subsequent publisher may draw from the earlier publication its identical words and make use of them. This is peculiarly so with reference to works in regard to the arts and sciences, using these words in the broadest sense, because with reference to them any publication is given out as a development in the way of progress, and to a certain extent, by common consent, including the implied consent of the first publisher, others interested in advancing the same art or science may commence where the prior author stopped. This includes medical and legal publications, in which the entire community has an interest." [Judge Putnam in Sampson & Murdock Co. v. Seaver-Radford Co., 140 F. 539 (CCA 1, 1905)).
Where, however, the borrower is not engaged in promoting the progress of arts and science, but only in promoting the sale of his particular product, the appropriation of even a small (but significant for the user's purpose) portion of a scientific treatise, may go beyond the limits of "fair use," especially where it might imply a lack of ethical nicety on the part of the scientist if such commercial use had been authorized. Henry Holt & Co., Inc. v. Liggett & Myers Tobacco Co., 37 USPQ 449 (1938).
Text Books—The question of "fair use" frequently comes up with respect to certain school text books. Here the very nature and purpose of the work may carry an implied authorization to copy portions on the blackboard or otherwise for the purpose of class instruction—sums in arithmetic, for example. Of course, the copyright does not extend to the facts or information conveyed, and hence the teacher may expound the facts in his own language; otherwise the profession of teaching or writing of books would have to be given up. See Oxford Book Co. v. College Entrance Book Co., 39 USPQ 7 (1938). But care must be exercised not to reproduce substantial portions of the book, or make abridgments, “versions”, or paraphrases thereof in typewritten or other printed form for distribution to the members of the class, as a substitute for the original. The permission of the proprietor should always be sought for such use of the book. Merely giving credit to the source, though proper from the standpoint of ethics, is not in itself enough to meet the requirements of the law. Macmillan v. King, 223 F. 862 (1914);
Chicago Record v. Tribune Assn., 275 F. 797 (CCA 7, 1921); Henry Holt & Co., Inc. v. Liggett & Myers Tobacco Co., supra.
Legal Publications—For an interesting discussion of "fair use" of legal publications in the preparation of similar works by other authors, see Anderson v. Baldwin, 27 F.2d 82 (CCA 6, 1928). Here the court remarked that legal text books differ fundamentally within the law of copyright from compilations and citations in digests, and that greater latitude is expected as to authors consulting the former than as to compilers using similar compilations and digests in the preparation of their own. See also West Pub. Co. v. Lawyers Cooperative Pub. Corp., 79 F. 756 (1897); and West Pub. Co. v. Thompson, 176 F. 833 (1910).
Musical Works—It is not so much the quantity as it is the quality and value of the part taken that is to be considered in connection with "fair use." Take the case of a song or musical piece, where the success of the composition may depend upon a single phrase or two. In Boosey v. Empire Music Co., 224 F. 646 (1915), the use of the single musical phrase "I hear thee calling me” in another song with an entirely different theme was held nevertheless to be a substantial and material part. And so likewise in Wilkie v. Santly Bros., 28 USPQ 452 (1935), aff'd 34 USPQ 269, the use of several bars embodying the heart of the song was held to overstep the limits of fair use. These cases demonstrate that the common notion among some writers of music that a certain number of bars may be appropriated from a copyrighted piece of music is unsafe to follow. A careful analysis of the whole subject with respect to music will be found in Fischer v. Dillingham, 298 F. 145 (1924). See also Darrell v. Joe Morris Music Co., 46 USPQ 167 (CCA 2, 1940).
News—The annals of current events, "mere news”, belong to the public, but not so the particular narration of the writer. Chicago Record v. Tribune Assn., 275 F. 797 (CCA 7, 1921). The law protects “the copyrighted work,” but without denying to others the right to treat the same subject in their own independent way, for otherwise the progress of science and useful arts would be hindered rather than promoted. The appropriation of “news” by rival agencies has been dealt with by the courts in a special way upon general principles of law relating to unfair competition, with which we have no immediate concern. See International News Service v. Associated Press, 248 U.S. 215 (1918).
Section 1(b) “To translate the copyrighted work into other languages or dialects, or make any other version thereof, if it be a
literary work" Literary Work
The "literary work” here is not confined to belles-lettres or works of elevated thought or language but includes as well works in the vernacular, and is distinguishable from such other copyrightable subjects as pictures, paintings, music, motion pictures, and the like. A writing in the form of an advertisement, a direction sheet for a game, or an item appearing in the column of a newspaper, would, if duly copyrighted, enjoy the right here secured. Sebring v. Steubenville Pottery Co., 14 USPQ 46 (1934). Versions
The term "any other version” is apparently used in the same broad sense as in section 6 to include abridgments, adaptations, arrangements or dramatizations as well as translations, all of which constitute "new works" and should for adequate protection be duly copyrighted the same as the originals upon which they are based. An adaptation or arrangement of a story for motion picture purposes would no doubt be included in this right, as well as in the right to dramatize,
Telling the same story in other words, with or without variations in details, would be making another "version" thereof. But a mere sketchy outline, such for example, as may be given in a review or description in the newspapers or otherwise, would ordinarily come within the doctrine of "fair use." See Ricordi v. Mason, 201 F. 184 (1911), aff'd 210 F. 277 (CCA 2), where a booklet giving a fragmentary description of plot and characters of various operas was held not to constitute a "version" of such operas within the meaning of the Act. When one publishes a work, it must be deemed that the public is given something more than the mere right to read and enjoy (or condemn) it; for it then becomes open to criticism and comment, which includes the right to quote and summarize so far as necessary to that end, short of making a “new version.”
Section 1(b), clause 2 "To dramatize it if it be a non-dramatic work" Here as elsewhere in this sub-section, the little word "it" refers of course to "the copyrighted work,” which is more comprehensive than "a literary work." A book of cartoons, for example, depicting imaginary characters may be infringed by dramatization. Hill v. Whalen, 220 F. 359 (1914). And so likewise, a motion picture photoplay based upon a copyrighted novel or story or other non-dramatic work would be a dramatization thereof. Kalem Co. v. Harper Bros., 222 U. S. 55 (1911).
In an English case the copyright of a story told in words was held infringed by the performance in public of a ballet or other choreographic work, which by reproducing the same original combinations or series of ideas or incidents tells the same story through the medium of action. Holland v. Vivian Van Damm Productions, Ltd., in Copyright Cases, p. 69, 1936, by E. J. Macgillivray.
Where fictitious news is presented to the public in the newspapers as fact, it has been held, as a matter of morals, that “he who puts forth a thing as verity shall not be heard to allege for profit that it is fiction," and hence that a dramatization based upon the alleged occurrence, none of the actual text being appropriated, would not be an unlawful use of the story as reported. But had any substantial part of the language of the writer of the article been utilized, the result would have been different. Davies v. Bowes, 209 F. 53 (1913), aff'd 219 F. 178.
This clause, you will observe, deals only with non-dramatic works which are still under copyright. When the statutory term has expired, they are open to the public for dramatization, but that does not mean that the first one to make a dramatization is entitled to prevent others from making independent dramatizations of their own from the common source. McCaleb v. Fox Film Corp., 298 F. 48 (CCA 5, 1924).
Section 1(b), clause 3 "To convert it into a novel or other non-dramatic work if it be a drama”
This is a right not recognized under the former statutes. See Fitch v. Young, 230 F. 743 (1916). It would seem equally applicable to photoplays as cognate forms of production.
Section 1(b), clause 4 "To arrange or adapt it if it be a musical work" This includes such arrangements or adaptations as result in "new works” subject to separate copyright under section 6; for example, an arrangement for orchestra or band, or conversion into a dramatico-musical work. Edmonds v. Stern, 248 F. 897 (CCA 2, 1918).
The right to transpose into other keys, and to change the fingering, phrasing, pedaling, and the like, is incidental to the original copyright. Such embellishments do not as a rule involve new creative musical work requiring a separate copyright. Cooper v. James, 215 F. 871 (1914); Norden v. Ditson Co., 28 USPQ 183 (1936).
Section 1(b), clause 5 “To complete, execute, and finish it if it be a model or design for a work of art"
In the older Acts the phrase was "models or designs intended to be perfected as works of the fine arts," i.e., works used solely for aesthetic or ornamental purposes, in contrast to artistic designs for articles serving primarily a utilitarian purpose for which a design patent may be secured.
Works of Art
It is a question to what extent, if any, the elimination of the word “fine” has changed the law.* Some confusion or overlapping seems always to have existed with respect to certain types of artistic works. For example, the Copyright Act of 1870 included "statue and statuary," and the Patent Act of the same year, "any new design for a bust, statue, alto relievo or bas relief." In 1882 Congress passed an Act headed "An Act to Amend the Statutes in Relation to Copyright" (22 St. L., p. 181) wherein the manufacturers of "designs for molded, decorative articles, tiles, plaques or articles of pottery or metal subject to copyright” were authorized to put the copyright notice upon the back or bottom, and this continued as part of the gen
* In a memorandum submitted by the Librarian of Congress at the Hearings in June, 1906 (p. 8. of the printed volume), the following explanation appears: “The term 'work of art' is deliberately intended as a broader specification than 'works of fine arts' in the present statute, with the idea that there is subjectmatter (e.g., of applied design, yet not within the province of design patents) which may properly be entitled to protection under the copyright law."