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The right to be secured by Congress must be “exclusive" and hence savors of monopoly, the interests of the public being conserved by limiting its duration. Beyond this, the power of Congress to impose conditions for the enjoyment and exercise of the right is not restricted. Note that the words "copyright" and "patent” are not used in the Constitution, these being the timehonored terms used in the statutes to differentiate between the writings of authors and the discoveries of inventors respectively.
Normally, when one speaks of authors and their writings, one has in mind those who have written something of value as a composition, either for instruction or entertainment; and undoubtedly this was the kind of authorship in the minds of the early lawmakers—at least the preambles to the old Acts so imply, the earliest (Act of 1790) being entitled "An Act for the encouragement of learning.” But when in the course of time the courts came to grapple with the subject, they found that these words "authors” and “writings” would have to be stretched far beyond their historic significance if the purpose of the Constitution was to be fulfilled of promoting the progress of science and useful arts.
In Burrow-Giles Lith. Co. v. Sarony, 111 U.S. 57 (1884), the Supreme Court declared that the "writings" in this clause embrace "all forms of writing, printing, engraving, etching, etc., by which the ideas in the mind of the author are given visible expression,” including photographs in so far at least as they may represent "original intellectual conceptions." While, therefore, the right secured (i.e., the copyright) is an incorporeal, intangible right to do the things included in the Congressional grant, it obviously cannot be exercised until something in the form of a visible writing has come into being. Consequently, a speech delivered orally or a pantomime or dance would not be subject to statutory copyright unless reduced to writing, though possibly the common law might be invoked against unfair use in "palming off” the same by another as his own.
The courts have not been willing to assume the function of critics and to measure carefully the degree of originality or literary or artistic skill involved in the production of a work. Generally speaking, the modern tendency has been to deem that if the work has enough merit and value to be the object of piracy, it should be entitled to protection. The situation was admirably summed up by Judge Grosscup in the so-called "ticker-tape" case. Nat'l Telegraph News Co. v. Western Union Tel. Co., 119 F. 294 (1902). He observed that at the time the Constitution was adopted, and for years afterwards, the application of copyright to productions other than those strictly literary had hardly been mooted. The publication of a book meant in the public mind that literature as such had received an accession. The business world, which nowadays permits nothing to escape as a means for its exploitation, had not pressed into service books and art.
But little by little copyright has been extended under judicial construction to the purposes of commerce, so that it now includes works which the old guild of writers and artists would have disdained. A belief on the part of the courts that in no other way yet devised can the labor of the brain be adequately protected and encouraged in these highly useful departments of life is doubtless responsible for what seems unquestionably a wide departure from the original intent of the Constitutional grant. This has been aptly stated by Judge Learned Hand, to whom is owed a debt for many illuminating opinions on the law of copyright, in Reiss v. National Quotation Bureau, 276 F. 717 (1921):
"Now it is argued that these cases are distinguishable, because they arose under an act of Parliament which was not limited by any Constitution. So, indeed, they were, and if our Constitution embalms inflexibly the habits of 1789, there may be something in the point. But it does not; its grants of power to Congress comprise, not only what was then known, but what the ingenuity of men should devise thereafter. Of course, the new subject matter must have some relation to the grant; but we interpret it by the general practice of civilized peoples in similar fields, for it is not a strait-jacket, but a charter for living people.
The law does not require that the subject of a work shall be new, nor that the materials of which it is composed shall be original. Labor bestowed on the productions of others (if no rights are thereby invaded) will constitute a valid claim, the test of originality being applied to that which represents the claimant's own labor, thought and skill. The man who goes through the streets of a town and puts down the names of the inhabitants, with their occupations and street numbers, may obtain a copyright for his compilation. But of course anyone else may do the same thing and produce almost an identical work; and may even use the other man's work to the extent of checking and verifying results, so long as he is not guilty of "apt appropriation's artful aid." Jewelers' Circular Pub. Co. v. Keystone Pub. Co., 281 F. 83 (CCA 2, 1922); and Produce Reporter Co. v. Fruit Produce Rating Co., 1 F.2d 58 (1924).
An assemblage of interest and discount figures, with symbols and words arranged so as to give at a glance the information desired, was protected as a book, Edwards v. Boorman, 15 F.2d 35 (CCA 7, 1926), and likewise a freight tariff index with respect to the particular arrangement of figures and symbols, but without thereby giving an exclusive right to the information or the method employed. Guthrie v. Curlett, 36 F.2d 694 (CCA 2, 1929). He who constructs a book by a new plan and arrangement of old materials is entitled to a copyright which cannot be upset by showing that some part of the plan or arrangement has been used before. Sherrill v. Grieves, 57 Wash. L.R. 286 (D.C. Sup. Ct., 1929).
In music it has been held that a valid claim may attach to any substantially new adaptation of a piece, such as an arrangement for piano of the orchestral score of an opera; and vice versa, Edmunds v. Stern, 248 F. 897 (CCA 2, 1918); and also an improvisation from subconscious memory of an old folk song. Italian Book Co. v. Rossi, 27 F.2d 1014 (1928). On the other hand, the addition of an alto part to well-known tunes long sung with the other three parts was held not to constitute a new and original work, the court expressing the opinion that "anything which a fairly good musician can make, the same old tune being preserved, cannot be the subject of copyright.' Cooper v. James, 213 F. 871 (1914). In recent cases the court remarked that a composition, to be the subject of copyright, must have sufficient originality to make it a new work rather than a copy of the old with minor changes which any skilled musician might make, Norden v. Oliver Ditson Co., 28 USPQ 183 (1936); and that when material is taken from the public domain it must be so transformed by the borrower as to entitle him to a claim of originality. Hirsch v. Paramount Pictures, 32 USPQ 233 (1937).
Advertisements have long been tuft-hunters in the polite society of copyrights. In Higgins v. Keuffel, 140 U.S. 428 (1890), the Supreme Court intimated that a mere advertisement could have no possible influence upon science and the useful arts to bring it within the scope of copyright law. But in the leading case of Bleistein v. Donaldson, 188 U.S. 239 (1903), Justice Holmes remarked, in delivering the opinion, that "a picture is none the less a picture and none the less a subject of copyright that it is used for an advertisement"; and that "it would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations.” Justices Harlan and McKenna (following Higgins v. Keuffel, supra) dissented on the ground that the circus posters in question had no value other than as mere advertisements. In Mott Iron Works v. Clow, 82 F. 316 (CCA 7, 1897), the court denied copyright to a price catalogue containing pictures of common household conveniences, such as bathtubs, coffeepots, washbowls, etc., because of value only as advertisements of complainant's wares. But 18 years later, in White Mfg. Co. v. Shapiro, 227 F. 957 (1915), the District Court (SDNY) upheld copyright in a similar catalogue containing cuts of brass goods, such as trimmings for electric light fixtures, and expressed the opinion that the distinction in the Mott v. Clow case, while with much basis in reason, was not warranted by the strict language of the statute, and that “the defendants' desire to reproduce the pictures without regard to the plaintiff's right was sufficient evidence that they had their worth and their success.” That this is now the settled law with respect to advertisements seems beyond peradventure of a doubt. See Jewelers' Circular Pub. Co. v. Keystone Co., 281 F. 83 (CCA 2, 1922); also Westermann v. Dispatch Printing Co., 249 U.S. 100 (1919), where the Supreme Court did not question the validity of a copyright in cuts of women's apparel used merely as illustrations of seasonal styles. Of course it was only the pictures, and not the articles illustrated, that were protected by the copyright. For a summary of cases on the whole subject of advertisements, see Ansehl v. Puritan Co., 61 F.2d 131 (CCA 8, 1932).
Of course one would not expect the doors of a court of equity to be opened to the knock of unclean hands; and so, advertisements must reflect the truth and avoid misrepresentations which deceive the public, if they expect the protection of the copyright law, which is obligated to "promote the general welfare” as well as the progress of science and useful arts. Stone v. Dugan, 220 F. 837 (CCA 5, 1915). But as the court admitted, this does not mean that extravaganzas may not be indulged in for the purpose of illustration and to accomplish a laudable end in view; for otherwise the modern use of applied psychology for advertising purposes would have to be given up.
Part 2–Classification of Subject-Matter of Copyright
In pursuance of its constitutional power, Congress has passed many statutes for the protection of authors, gradually extending and enlarging the subject-matter and scope of protection as the need arose until now it covers not only books, maps and charts, as originally planned, but comprehends as well "all the writings of an author" as provided in section 4 and elaborated in sections 5 and 6 of the Copyright Act of 1909. (For complete text of the Act with amendments to date, see Appendix.)
This of course does not mean that an individual author can secure in advance a general or blanket copyright on everything he may subsequently produce. Each of his works separately published must be treated as a separate work for which the same formalities are to be observed as if it were by a different author.
In section 5 he is required to specify in his application for registration to which of the designated classes the work in which copyright is claimed belongs. This enumeration is sufficiently comprehensive to include practically everything heretofore recognized by the courts as "writings of an author", but it is not meant to be exclusive. It is primarily an administrative provision to enable the Copyright Office to perform its task in an orderly fashion, including the publication of a Catalogue of Copyright Entries in conformity with the classes mentioned. Hence this section very properly closes with a proviso that these specifications shall not be held to limit the subject matter of copyright, "nor shall any error in classification invalidate or impair the copyright protection secured under this Act.” Obviously then, it is the actual nature of the work that determines the scope of the copyright protection secured, even though it might have been registered in the wrong class. Green v. Luby, 177 F. 287 (1909).