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eral copyright law until it was automatically repealed by the present Act of 1909.

In the oft-cited case of Bleistein v. Donaldson, 188 U.S. 591 (1903), Justice Holmes remarked that the copyright laws "were not to be construed as applying solely to works of the fine arts,” but he was there speaking of crudely made circus posters in contrast to pictures of a high order or merit and not to "models and designs for works of the fine arts."

The Copyright Office has proceeded cautiously in the matter, as if the word “fine" were still there in intent if not in fact. The rule of the Copyright Office (now Sec. 201.4, par. 7, of Tit. 37, Code of Federal Regulations; see Appendix) reads in part as follows:

12. (g) Works of art and models or designs for works of art. This term includes all works belonging fairly to the socalled fine arts (paintings, drawings, and sculpture). The protection of productions of the industrial arts, utilitarian in purpose and character, even if artistically made or ornamented, depends upon action under the patent law; but registration in the Copyright Office has been made to protect artistic drawings notwithstanding they may afterwards be utilized for articles of manufacture."

Design Patents

The reference here is to Section 4929 of the United States Revised Statutes, providing in substance that anyone who has invented a new, original and ornamental design for an article of manufacture, may obtain a patent therefor. The Commissioner of Patents has ruled (and is fully sustained by the courts) that the artistic feature may be either surface ornamentation or shape (configuration) or both combined; that it must involve invention (novelty) just the same as a mechanical patent and therefore requires investigation as to priority; but that unlike a mechanical patent the sole basis of protection is appearance or appeal to the eye; in other words, the artistic effect, which is precisely the quality which gives value to a design for a work of the fine arts. The latter is representative art; the former, applied art, commonly called commercial or industrial art. See Gorham y. White, 81 U. S. 511 (1871); Franklin Lamp Co. v. Albe Lamp Co., 40 USPQ 613 (1939).

Copyrightable Designs

In certain decisions of the courts, both under the old copyright law and the new, we find the view expressed that there are some designs which may be either copyrighted or patented, as the owner chooses, but that he cannot have both kinds of protection. There are, however, certain difficulties along the copyright route.

For example, in the case of De Jonge & Co. v. Breuker & Kessler Co. (arising under the prior copyright law, and reported on final hearing in 182 F. 150), an artist was commissioned to produce a design for Christmas wrapping paper, and he made a painting of artistic excellence, consisting of a representation of small branches or sprigs of holly, mistletoe and spruce arranged in the form of an open cluster having the outline of a square. This painting was copyrighted and the principal defense was that it should have been patented as a design for an article of manufacture. The court held that such a painting was eligible for either class but that the owner must stand by his choice and, having secured copyright, it became necessary to comply fully with the requirements of the copyright law then in force and insert "in the several copies of every edition published" the prescribed notice “on some visible portion thereof or of the substance on which the same shall be mounted,” which had not been done. There were twelve repetitions of the same design on a single sheet of wrapping paper which bore only one notice of copyright. The Circuit Court in its comments said that “the plaintiff would perhaps have had no trouble about notice if the picture had been patented as a design. It was intended for such use, and the protection that was needed could have been best obtained under Section 4929” (i.e., the design patent law). Obviously the presence of twelve copyright notices on the sheet of paper would have destroyed its commercial value.

The Circuit Court of Appeals (191 F. 35) reserved its opinion as to whether the sphere of copyright and patent for such designs overlapped, but agreed with the Circuit Court that, granting this was a work of the fine arts, every reproduction of it must bear the statutory notice. The case went to the Supreme Court, which affirmed the decision. (1914, 235 U.S. 33). The remarks of Justice Holmes are significant in this connection. "Every reproduction of a copyrighted work," he said, "must bear the statutory notice. It is suggested that it is over-technical to require a repetition of the notice upon every square in a single sheet that makes a harmonious whole. This argument tacitly assumes that we can look to such a larger unity as the sheet possesses. But that unity is only the unity of a design that is not patented ... The appellant is claiming the same rights as if this work were one of the masterpieces of the world, and he must take them with the same limitations that would apply to a portrait, a holy family, or a scene of war."

Monuments—In the case of Jones Bros. Co. v. Underkoffler, 31 USPQ 197 (1936), the District Court found that the plaintiff's decorative design for a memorial monument was eligible for either a patent or a copyright. No design patent had been secured, but the plaintiff did register a claim of copyright in the design as a published work of art. It was proved that the defendant had copied his design (with colorable changes) from a photograph of the plaintiff's design and that such photograph bore the plaintiff's copyright notice. This was held sufficient to constitute infringement of the copyrighted design. The court found significance in the omission of the word “fine" before the word "art" in section 1 of the present Copyright Act as implying an intention to extend the sphere of its application to certain objects of art which might also be patented as articles of manufacture. But in no case so far reported is the line of cleavage clearly defined.

DollsIn Wilson v. Haber Bros. Inc., 275 F. 346 (CCA 2, 1921), the subject was a grotesque figure known as “Kewpie" for which both a design patent and a copyright certificate had been secured. In the specification of the design patent the subject was called a "doll" and in the copyright application a "figure or statuette” and designated “a work of plastic art”. The defendant agreed that both patent and copyright were “good and valid in law." Judge Hough said: "We express no opinion as to the propriety of copyrighting this doll but defendant was at liberty to estop itself from contesting validity and it has done so,” and hence there was no question before the court but that of infringement, and the defendant was found guilty of infringement of both the design patent and the copyright.

In Horsman v. Kaufman, 286 F. 372 (CCA 2, 1922), the subject matter was also a doll. Judge Hough said: "With some difficulty we assume the bust to have been a work of art, and therefore falling within the Copyright Act ... It is plain that the bill and answer sharply present several very debatable questions; e.g., Was this image either a work of art or a reproduction of one? Is it not a fraud upon the Act to use the copyright of a work of which copies are not reproduced for sale as a cover for the business of making dolls' heads, which, as heads, are not capable of copyright?” The court below was accordingly upheld in refusing to grant a preliminary injunction. There is no report of any further proceedings.

Ash Tray-In Frankart v. Apt Novelty Co., 11 USPQ 211 (1931), it was held that the design for an ash tray, consisting of a pedestal sustaining the figure of a nude girl with one leg outstretched and the other bent at the knee, with hands clasped around the tray, was not patentable for want of invention; that the idea of using figures to decorate ash trays was not new; and that there was nothing new in presenting the figure of a nude girl in a natural pose, even though the exact pose may not have been used before. And yet, if the same figure had been designed for purely aesthetic purposes apart from any article of utility, it would certainly have been proper subject for copyright protection as a work of art reproduced in copies for sale, since the element of invention is not essential under the copyright law. Drawing of Design

The Copyright Office rule permits registration "to protect artistic drawings notwithstanding they may afterwards be utilized for articles of manufacture," but this gives no exclusive right to make and sell the article illustrated. “To give an author or designer an exclusive right to manufacture the article described in the certificate of copyright registration, when no official examination of its novelty has ever been made, would unjustly create a monopoly and moreover would usurp the functions of letters patent." Adelman v. Sonner, 21 USPQ 218 (1934); Kemp & Beatley v. Hirsch, 2 USPQ 259 (1929). Nor would the common law protection of the original design survive its publication as embodied in a dress or fabric offered for general sale, Fashion Originators Guild of America, Inc. v. Federal Trade Commission, 114 F. 2d 80 (CCA 2, 1940), aff'd 48 USPQ 483; and it seems that even the law of unfair competition cannot ordinarily be successfully invoked to protect such designs against imitation, short of “palming off.” Cheney Bros. v. Doris Silk Corp., 35 F.2d 279 (CCA 2, 1929).

“The piracy of styles or designs is a problem of much concern in many important industries, particularly the ladies garment industry. The formulation of a comprehensive policy with respect thereto is, generally speaking, for the legislature rather than the courts. Many elements enter into it of a practical, administrative, economic, and commercial character. The business conscience on this question, though troubled and at times stirred, is still somewhat flexible. The whole situation is in a state of transition and mutation. The problem is, how to retain for a man the benefits of his creative genius, without at the same time unduly restricting and hampering manufacture and trade." [Justice Shientag in Margolis v. National Bellas Hess Co., Inc., 249 NYS 175 (1941)].

Such designs as a rule lack the element of “invention" to qualify for design patent and have only a seasonal value in commerce, but it is a real value while it lasts which should not be open to destruction by the easy process of piracy even at the risk of “restricting and hampering manufacture and trade” in such type of business. The copyright law, as it stands, seems inadequate to cover the situation, but there is nothing in the Constitutional clause to prevent Congress from amending the law in this respect and thus close “the hiatus in completed justice” (to quote the words of Judge L. Hand in the Cheney Bros. case, supra). However, all attempts in this direction, and they have been numerous, have so far failed. (See various annual Reports of the Register of Copyrights for detailed information).

Section 1(c) "To deliver or authorize the delivery of the copyrighted work in public for profit if it be a lecture, sermon, address,

or similar production" Lectures and Similar Productions

This covers Class (c) in section 5: "Lectures, sermons, addresses prepared for oral delivery”; the term "similar production" being omitted, but is again found in section 11 where the expression is "lecture or similar production."

The only case directly dealing with this right, so far reported, is Kreymborg v. Durante, 21 USPQ 557 (1934). This involved the recital over the radio of certain poems which had been published in a book of verse duly copyrighted as a published work. On the original argument the plaintiff contended that his poems

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