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Since the enactment of the first United States copyright statute by the First Congress in 1790, the copyright law has had to be added to, modified, revised, and interpreted to meet changing conditions brought about in large part by new technological developments. The statutes were completely rewritten in 1831, 1870, 1909, and just recently, in 1976. In the intervals between those comprehensive revisions, the statutes were amended in some particulars, and they were further adapted to changing conditions by judicial interpretation and, to some extent, by business practice.

Adaptation of the copyright law to changing conditions brought about by new technology has been especially necessary in the twentieth century, primarily for the obvious reason that the rate of technological development has accelerated rapidly. And, because of the long interval of more than 65 years from the 1909 revision, with the statute being amended during that period in only relatively minor respects, the courts have been called upon to take a large part in adapting the law, by interpretation, to meet the problems emanating from the new technologies.

An analysis of the more significant court decisions dealing with those problems, particularly as the decisions reveal the basic principles and philosophical approaches adopted by the courts in construing the copyright statues, may contribute to an understanding of how the copyright law has been shaped and reshaped to fit new conditions flowing from technological innovations, and may be useful in indicating approaches to the solution of similar problems that may be raised by the newer and emerging technologies of today and the foreseeable future.

In this section we shall seek to show how the copyright law has been adapted to resolve the questions raised by the new technologies of the twentieth century that were not dealt with specifically in the statutes because they were just beginning to emerge or were unknown when the statutes were enacted. Among these new technologies are:

motion pictures, silent and with accompanying sound;
sound recordings and sound reproducing mechanisms;
radio and television transmission and reception;

rapid, effecient copying machines;
-- cable television systems;
-- microfilm, videotapes, and computer programs.

We shall review principally the adaptations of the copyright law in court decisions, but some attention will also be given, in passing, to industry practice and to the regulations and practices of the Copyright Office. In addition, we shall summarize the adaptation to the several new technologies reflected in the copyright law revision enacted in 1976.

A.2.1.1 Philosophical Basis of Copyright. To understand how the copyright law has developed and has been adapted to meet new issues, it is important to keep in mind the fundamental philosophy underlying copyright. The basis of copyright is stated in broad terms in the clause of the United States Constitution empowering Congress

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"To Promote the progress of Science and useful Arts, by
securing for limited Times to Authors and Inventors the
exclusive Right to their respective Writings and Dis-

We deduce from the Constitution that the end purpose of copyright is to "promote the progress of science and useful arts," that is, to stimulate the growth and spread of learning and culture for the benefit of society at large; and that, as a means toward achieving this end, authors are to be given exclusive rights in their works; thus, the creation and public dissemination of works of authorship are to be fostered by giving to authors the legal means to realize the economic value of their contributions to society.

The United States Supreme Court has expressed the underlying purpose of copyright as follows:

"The primary object in conferring the monopoly (of copyright) lie(s) 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.' (Fox Film Corporation v. Doyal, 286 U.S. 123, 1932)

"The economic philosophy behind the clause empowering Congress
to grant patents and copyrights is the conviction that en-
couragement of individual effort by personal gain is the best
way to advance public welfare through the talents of authors
and inventors in 'Science and Useful Arts'. Sacrificial days
devoted to such creative activities deserve rewards, commen-
surate with the services rendered."
(Mazer v. Stein, 347 U.S. 201, 219, 1954)

We move on now to a review of how the courts have dealt with the issues raised by the new technologies for which the statutes then in effect made no specific provisions.


Motion pictures have been a prime example of a new technology raising questions, as to the application of the copyright law, that the statutes currently in effect did not deal with specifically. The courts were called upon to resolve these questions in various situations involving (1) the status of motion pictures as copyrightable subjectmatter, (2) the use of copyrighted literary and musical works in motion pictures, (3) the rights embraced in the copyright in motion pictures, and (4) the copyright status of motion picture sound tracks.

A.2.2.1 Copyrightability of Motion Pictures. The question of whether motion pictures could be copyrighted arose at the beginning of the twentieth century when the motion picture art was in its infancy. The pertinent statute then in effect (Section 4952 of the Revised Statutes) had been enacted (in 1870) when motion pictures were unknown. The statute did specify, among the categories of copyrightable works, "any photograph or negative thereof." In the case of Edison v. Lubin, decided in 1903, the maker of a series of 4500 photographs which together were to be projected through a machine to show, as a moving picture, the launching of Kaiser Wilhelm's yacht, asserted copyright in the series of pictures as a single "photograph" under the statute. In the District Court (E.D. Pa., 119 F. 993), it was held that the statute did not extend to "an aggregate of photographs," but that each individual hotograph would have to be registered separately and to bear the prescribed notice of copyright in order to be protected. On appeal the Circuit Court reversed, holding that the series of photographs, which were all on one continuous strip of film, was copyrightable as one "photograph" within the statute (3d Cir. 122 F. 240).

The differing opinions of the District and Circuit Courts in this case are illustrative of two opposite judicial approaches to the application of the terms of the copyright statute to a later technological innovation. The District Court said:

"It may be true, as has been argued, that this construction of
the section renders it unavailable for the protection of such
a series of photographs as this; but if, for this reason, the
law is defective, it should be altered by Congress, not
strained by the courts. I understand that when this act was
passed these groups of consecutive photographs were practi-
cally speaking, not in existence; and, in the absence of any

expression of the will of Congress which can be applied to them, I am not at liberty to conjecture what further provision, if any, would have been made, if their creation had been foreseen."

In contrast, as the Circuit Court of Appeals saw it:

"The negative and its positive reproduction represent one act
or event, to wit, the launch of the yacht...To say that the
continuous method by which this negative was secured was
unknown when the act was passed, and therefore a photograph
of it was not covered by the act, is to beg the question.
Such construction is at variance with the object of the act,
which was passed to further the constitutional grant of power
"to promote the progress of science and useful arts". When
Congress, in recognition of the photographic art, saw fit...
to extend copyright protection to a photograph or negative,
it is not to be presumed it thought such art could not pro-
gress, and that no protection was to be afforded such pro-
gress. It must have recognized there would be change and
advance in making photographs, just as there has been in mak-
ing books, printing chromos, and other subjects of copyright
protection. While such advance has resulted in a different
type of photograph, yet it is none the less a photograph--a
picture produced by photographic process... And that it is, in
substance, a single photograph is shown by the fact that its
value consists in its protection as a whole or unit, and the
injury to copyright protection consists not in pirating one
picture, but in appropriating it in its entirety."

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That the Circuit Court was eager to apply the act so as to protect the motion picture is further shown by its additional comment:

"We are further of opinion the photograph in question met the statutory requirement of being intended to be perfected and completed as a work of the fine arts. It embodies artistic conception and expression. To obtain it requires a study of lights, shadows, general surroundings, and a vantage point adapted to securing the entire effect... We have no question that the present photograph sufficiently fulfills the character of a work of the fine arts."

In sum, the District Court opinion reflects the approach of giving the terms of the statute the application they had when enacted, with reluctance to extend those terms to subsequent technological innovations; while the Circuit Court opinion shows the tendency to construe the terms of the act in the light of the basic purpose of copyright to protect

works of authorship and, in that light, to extend the act to new technological developments that can be analogized to objects specified in the act.

The holding by the Circuit Court of Appeals in Edison v. Lubin was fol-
lowed and carried a step further in American Mutoscope & Biograph Co.
V. Edison Mfg. Co., 137 F. 262 (D.N.J. 1905). The Lubin decision had
equated the motion picture of a single, continuous event -- made at one
time and place using a pivoted camera -- with a "photograph"; in
American Mutoscope the motion picture consisted of several sequences of
pictures taken at different times and places so that, when shown as a
continuous series, they told a story. Said the court in American

"I am unable to see why, if a series of pictures of a moving
object taken by a pivoted camera (as in the Lubin case) may
be copyrighted as a photograph, a series of pictures telling
a single story ..., even though the camera be placed at dif-
ferent points, may not also be copyrighted as a photograph.
Though taken at different points, the pictures express the
author's ideas and conceptions embodied in the one story. In
that story, it is true, there are different scenes.

But no
one has ever suggested that a story told in written words may
not be copyrighted merely because, in unfolding its incidents,
the reader is carried from one scene to another."

Here again, the court finds its way to protection of a work of authorship in a new technological medium by analogizing that medium with an older one specifically provided for in the statute.

A. White-Smith v. Apollo. We digress briefly from the motion picture cases to mention, in its chronological order, the ruling of the U.S. Supreme Court in 1908 in the celebrated case of White-Smith Music Publishing Co., v. Apollo Co., 209 U.S. 1, on the question of whether the making of sound recordings (piano rolls in this case) by which music could be played, infringed the copyright in the music. The court held that the exclusive right to copy the music was not infringed because "copy" was understood to denote a visual reproduction of the written musical score. This ruling that visual perceptibility was an essential element of a "copy" was to be cited profusely thereafter in various contexts including some of the motion picture issues. We shall examine the White-Smith decision more fully in the later discussion of cases dealing with sound recordings as a new technology.

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