one case, however, that the copyright of a song secured under the former law did not protect the words unless they were separately copyrighted as a book. Witmark v. Standard Music Co., 221 F. 376 (CCA 3, 114). The court here misconstrued a rule of the Copyright Office which was only to the effect that the words of a song published in the first instance without musical accompaniment, would be classed as a book, just as it would be. under the present law. Musical selections and compilations published in book form are registrable in the music category.

Any system of musical notation would presumably be sufficient if capable of being read by the performer, but the courts have held that perforated piano rolls and phonographic records are not "copies" of musical compositions but merely parts of the mechanism necessary for their reproduction in sound. WhiteSmith Music Co. v. Apollo Co., 209 U.S. 1 (1908); Stern v. Rosey, 17 App. D.C. 562 (1901); Kennedy v. McTammany, 33 F. 584 (1888). In the Report No. 2222 accompanying the present Act (see Appendix), the following explanation is given: "It is not the intention of the Committee to extend the right of copyright to the mechanical reproductions (i.e., the devices) themselves, but only to give the composer or copyright proprietor (of the music) the control, in accordance with the provisions of the bill, of the manufacture and use of such devices."

Class "(f) Maps"

Along with these under the old law were included "charts," signifying "marine maps," Taylor v. Gilman, 24 F. 632 (1885); but the term "chart" is nowadays applied to so many things that it was thought best not to use the term in the present law. Certain so-called charts may be registrable as books and others as drawings of a scientific or technical character.

The term "maps" covers the whole field of cartography, whether terrestrial or celestial. Certain kinds of maps are frequently accompanied by a substantial amount of text matter and perhaps illustrations, such as automobile road-maps, and in such cases it is better as a rule to regard them as belonging to the more comprehensive class of "books" and use the form of notice appropriate to that class, viz., Copyright, or Copr. accompanied by the year date of publication and the name of the copyright proprietor. Where protection is desired for the map alone, the

shorter form of notice provided in section 18 may be used and should be printed in immediate proximity to the map.

New editions of city maps designed to keep pace with growing development by adding new subdivisions have been deemed entitled to copyright as new works. Sauer v. Detroit Times, 247 F. 687 (1917). But the use of arbitrary signs and symbols explained by reference to a key to facilitate the location of buildings, etc., on the map is not deemed a copyrightable feature. Perris v. Heximer, 99 U.S. 674 (1878).

Class "(g) Works of art; models or designs for works of art” Works of art may for most practical purposes be divided into four classes [see United States v. Perry 146 U.S. 71 (1892)]:

(1) The fine arts properly so called, intended solely for ornamental purposes, such as paintings in oil on canvas or other material, mosaics, carvings and statuary in stone or metal, not generally susceptible of commercial reproduction.

(2) Minor objects of art, intended also for ornamental purposes, but unlike the former, usually reproduced in quantities for sale from the original; such as statuettes, vases, plaques, drawings, etchings, and the thousand and one articles passing under the general name of bric-a-brac.

(3) Objects which serve primarily an ornamental, and incidentally a useful purpose, such as painted or stained glass windows and tapestry.

(4) Objects primarily designed for a useful purpose, but made ornamental to please the eye and gratify the taste, such as ornamental clocks, curtains, rugs, gas fixtures, household furniture, etc., commonly called applied art.

Not all of these classes, however, would come within the scope of the existing copyright law. Congress has provided otherwise for No. (4) in Section 4929 of the Revised Statutes to the effect that "any person who has invented any new, original and ornamental design for an article of manufacture" may on certain conditions obtain a patent therefor; and hence the registration of such a design would come within the jurisdiction of the Patent Office whenever the finished product is an article of utility, however artistic in appearance it may be. Thus, in determining whether or not the object is a work of art in the copyright sense, one must look to the purpose it is intended to serve. If that purpose is primarily ornamental, then, as a rule, the Copyright Act applies; but if it is primarily utilitarian, the design patent

law applies. We shall deal with designs in more detail when we come to consider the rights secured.

Class "(h) Reproductions of a work of art”

These include such reproductions as present an existing original work of art (whether in the public domain or not) in the same or a different medium of expression, such as a photograph or engraving or etching of a painting or major piece of sculpture. Where the painting or drawing is merely the first step toward the production of a lithograph or engraving and serves no further purpose as a separate work, the registration should ordinarily be applied for in Class (k) (prints). So also where small objects of art are reproduced in quantities for sale, it is customary to register as published works of art rather than reproductions. Hard and fast lines of demarcation cannot well be drawn for the various types of artistic productions, and in case of doubt as to classification it is better to consult the Copyright Office for the appropriate form of application.

Class "(i) Drawings or plastic works of a scientific or technical character"

This is a new class not mentioned in copyright legislation prior to 1909, and covers a number of "writings" which do not seem to fit well in any of the other classes. Architectural drawings seem obviously to belong to this class, but where they are other than working plans they may be essentially artistic in character and come within Class (g), works of art. Anatomical drawings and figures belong here; and also relief maps, and certain kinds of graphic charts such as stock-market charts.

In a case arising in the Supreme Court of the District of Columbia, Brock v. Nat'l Electric Supply Co., 186 O.G. 985 (1911), the court deemed that it was the use to be made of the drawings. and plastic works rather than the knowledge and skill required for their production that was referred to in the words "scientific or technical." In another case, Korzybski v. Underwood, 36 F.2d 727 (CCA 2, 1929), the court, while admitting that a diagram illustrating thought processes might belong to this category, ruled that the inventor having applied for and obtained a patent for his device could not extend his monopoly by taking out a copyright on what he had already diagrammatically disclosed in his application for a patent.

Class "(j) Photographs"

This class was first included in 1865, shortly after the invention of modern photography, and the Supreme Court ruled, Burrow-Giles Lith. Co. v. Sarony, 111 U.S. 53 (1884), that at least some photographs were copyrightable in so far as they embodied artistic conception on the part of the photographer; but the court queried whether copyright could be had for "the mere mechanical reproduction of the physical features or outlines of some object, animate animate or inanimate, involving no originality of thought." Coming down to more recent times we find Judge Learned Hand declaring in Jewelers' Circular Pub. Co. v. Keystone Pub. Co., 274 F. 932 (1921), that "no photograph, however simple, can be unaffected by the personal influence of the author, and no two will be absolutely alike. Moreover, this seems to me quite beside the point, because under section 5 (j) photographs are protected without regard to the degree of 'personality' which enters into them." And this seems quite in line with all the decisions since the Sarony case. In Pagano v. Bessler, 234 F. 963 (1916), the photograph of a public building was held copyrightable, the reaction of the photographer being found in determining just when to take it so as to bring out the proper setting with reference to light, shade, etc. But of course anyone else would be at liberty to take a picture of the same building from the same position and get practically the same result, without thereby infringing.

Class "(k) Prints and pictorial illustrations"

These are carried over from the old law. In Bleistein v. Donaldson, 189 U.S. 239 (1903), Justice Holmes remarked that the term “pictorial illustrations" does not necessarily mean that they must illustrate the text of a book. But they must illustrate something (e.g., prevailing fashions in attire), whereas "prints" may include mere decorative features of a distinctive character, such as the border of a bond or diploma. Both types are united in the official form of application. Such works are usually produced by lithographic or similar process from drawings or sketches which serve no further purpose than as a basis for the reproduction. When they reproduce an existing work of art, the registration should preferably be made in Class (h).

This class now includes "prints and labels used for articles of

merchandise," formerly registered in the Patent Office. See Chapter III, page 24.

Class "(1) Motion picture photoplays," and Class "(m) Motion pictures other than photoplays"

In Europe and throughout the British Empire the general term for both classes is "cinemas", from the Greek word meaning motion. These were first specifically included in our law by the amendatory Act of Aug. 24, 1912 (37 St. L. 488), when the industry began to assume major proportions. Prior to that date they were registered for copyright in Class (j) as photographs, following the precedent established in the case of Edison v. Lubin, 122 F. 240 (1903), where a motion picture showing the launching of the Kaiser's yacht was held copyrightable as a single photograph, and in American Mutoscope v. Edison, 137 F. 262 (1905), where a series of pictures telling a connected story was likewise protected as a single photograph, and one copyright notice affixed by means of a metal plate to the end of the film was held sufficient to cover the entire work.

A photoplay in the literal sense is a play exhibited pictorially, whether accompanied by dialogue in "sound" or not; but it is not essential that it be based upon or reproduce an existing dramatic composition. Metro-Goldwyn-Mayer Distributing Corp. v. Bijou Theatre Co., 3 F.Supp. 66 (1933). It may be based upon a novel or story, Kalem v. Harper Bros., 222 U.S. 58 (1911), and hence would qualify for copyright under section 6 either as a dramatization or as an adaptation of the original work for pictorial purposes. Many so-called "shorts", little comedy subjects used to fill in between the main features, are deemed photoplays by virtue of the action displayed. Vitaphone Corp. v. Hutchinson, 33 USPQ 422 (1937).

The remaining Class (m) includes such pictorial representation as newsreels, travelogues, educational and scientific subjects. There has been some conflict in the court decisions as to the nature and extent of the rights secured for these two classes, to which further reference will be made when dealing with that branch of the law.