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).

Class "(a) Books, including composite and cyclopaedic works, directories, gazetteers, and other compilations"

These by no means exhaust the things that may be classed as books. It would pretty nearly hit the mark to say that whatever does not fairly belong to any of the other specified classes would be a book, if it is in fact the writing of an author. "It is the intellectual production of the author which the copyright protects and not the particular form which such production ultimately takes, and the word 'book' as used in the statute is not to be understood in its technical sense of a bound volume, but any species of publication which the author selects to embody his literary product." Holmes v. Hurst, 174 U.S. 82 (1899).

While ordinarily a book contains a composition of words in readable form, it may also consist entirely of pictorial matter, or tables of figures, lists of symbols in cipher codes (the labor of compilation being deemed sufficient to constitute authorship). Pamphlets, leaflets and folders come within this category, and even a single verse or brief statement separately published.

Of course there must be a limit in this direction. Some things may be so utterly devoid of value and originality as compositions that it would be an undue restriction on the free use of language to grant them copyright protection, and result in unwarranted litigation. While a gem of literature may be compressed within a few words, yet as a rule mere isolated slogans, mottoes and similar sayings do not measure up to copyright standards. No case appears to have arisen in the United States involving a claim of copyright in a slogan or motto, but in an English case copyright protection was unsuccessfully claimed in a beautyparlor slogan, "Youthful appearance is a social necessity." Lord Justice Scrutton, eminent English authority on copyright law, said in the course of his opinion: "The claim in this case goes beyond anything ever held to be an infringement. The matter, in respect of which copyright is claimed, is too small for the court to attach any proprietary value to it." Here was applied the age-old maxim de minimis non curat lex. Sinanide v. La Maison Kosmeo, 44 L.T.R. 574 (1928).

When such phrases are associated with pictorial or decorative matter of an original character, the combination might be registrable in Class (k), as a print, unless used merely as a trade

mark, in which case registration should be made at the Patent Office.

"Other compilations"

"To compile is to copy from various authors into one work. In this the judgment may be said to be exercised to some extent in selecting and combining the extracts. Such a work entitles the compiler, under the statute, to a right of property. This right may be compared to that of a patentee, who, by a combination of known mechanical structures, has produced a new result. . . . A compilation consists of selected extracts from different authors; an abridgment is a condensation of the views of the author." Story v. Holcombe, 4 McLean 306 (1846).

Class "(b) Periodicals, including newspapers"

Each number or issue is to be regarded as a separate publication subject to copyright, so that all the statutory requisites must be complied with for each, just as under the previous law: "Each number of a periodical shall be considered an independent publication". Revised Statutes 4967. But no court has, as yet, been called upon to define a "periodical" within the meaning of the Copyright Act.

The postal regulations, formulated under a different statute for a different purpose, are hardly applicable here; but probably the remarks of the Supreme Court in construing certain provisions of the postal laws may be accepted as a safe guide, namely, (1) that "A periodical, as commonly understood, is a publication appearing at stated intervals, each number of which contains a variety of original articles by different authors," and (2) that "Books are not turned into periodicals by number and sequence where each volume is complete in itself and betrays no inward need of more-though further adventures may be promised at the end." Houghton v. Payne, 194 U.S. 88 (1904), and Smith v. Hitchcock, 226 U.S. 53 (1912). Unless the work measures up to the former standard (1), it is as a rule better to apply for registration in the category of books and file the affidavit required by law for that class.

Class "(c) Lectures, sermons, addresses (prepared for oral delivery)"

Unpublished monologues as well as certain kinds of radio

scripts are registrable in this category. But when reproduced for sale as published works they assume the status of books, Class (a), and must bear the appropriate copyright notice. Class "(d) Dramatic or dramatico-musical compositions"

When a play is printed and published, it is a "book" in the ordinary sense of the term, but in the legal sense it is still a dramatic composition and registrable as such. Now, everyone knows what a dramatic composition is in its usual significance, but in this connection it may have a much broader meaning. Dialogue certainly is not necessary, for, as said by Justice Holmes in the celebrated Ben Hur case, Kalem v. Harper Bros., 222 U.S. 55 (1911): "Action can tell a story, display all the most vivid relations between men, and depict every kind of human emotion without the aid of a word. . . . It would be impossible to deny the title of drama to pantomime as played by masters of the art." Hence it would seem that at least certain kinds of pantomime and choreographic work would come within this category. "It is essential to such a composition that it should tell some story. The plot may be simple. It may be but the narrative or representation of a single transaction, but it must repeat or mimic some action, speech, emotion, passion, or character, real or imaginary." Lacombe, J., in Fuller v. Bemis, 50 F. 926 (1892).

A single song may be dramatically rendered, but that would not necessarily make it a dramatico-musical composition. It would have to be dramatic in its very nature and purpose. Witmark v. Pastime Amusement Co., 298 F. 490 (1924). A series of songs interspersed with recitations having dramatic quality would come within this class. Green v. Luby, 177 F. 287 (1909). And of course operas, operettas and many choral works belong here too.

Class "(e) Musical compositions"

These include not only instrumental pieces, but also songs consisting of words with musical accompaniment, and both elements are protected under the one copyright; for section 3 provides that the copyright "shall protect all the copyrightable component parts of the work copyrighted," which is merely declaratory of a time-honored rule of construction. Harper v. Donohue, 144 F. 496 (1905); Ford v. Blaney, 148 F. 644 (1906). It was held in