formalities of notice, deposit and registration were retained, as well as the requirement of American manufacture of books and periodicals in the English language even though of foreign origin. The American system is in direct contrast to that existing in most foreign countries at the present time, which have largely dispensed with formalities as a prerequisite to protection. Some critics consider that it has on the whole proved eminently suited to American needs; others, that it has outgrown its usefulness. However that may be, it will be apparent from our survey of the present law that in some particulars there is room for improvement both for domestic and international purposes.*

* The whole problem of copyright law reform, especially in relation to the international aspect, has engaged the attention of Congressional Committees for many years. For a comprehensive study, see article in Har. vard Law Review, March, 1938, Vol. 51, No. 5, pp. 906-923.

Chapter II

Subject-Matter of Copyright

Part 1-General Characteristics of Copyrightable Material

Consider for a moment the pregnant terms used in the Constitutional provision upon which the Copyright Act is founded, namely, Article I, Section 8, Clause 8, that Congress shall have power "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 discoveries."

The word "science" is here apparently used in the comprehensive sense of knowledge or learning (L: scire), as well as in its more restricted modern sense; and the term "useful arts," while covering things of utility, "is not limited to that which satisfies immediate bodily needs," Holmes, J., in Bleistein v. Donaldson, 188 U.S. 239 (1903). Hence both terms are equally applicable to copyrights and patents; and the subject matter must tend to promote progress in each sphere of activity and thereby "promote the general welfare" as indicated in the preamble to the Constitution.

In his standard treatise on the "Law of Property in Intellectual Productions", published in 1879 but still often quoted on fundamentals, Eton S. Drone earnestly contended that the term "securing" in this clause of the Constitution meant, with respect to authors, merely the confirming of a right already existing at common law; but as already noted, the courts both in England and in this country had long before settled this question to the effect that Parliament and Congress in passing the first Copyright Acts did not sanction an existing right, but created a new one, the enjoyment and exercise of which depended upon strict compliance with the terms of the statute.

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),