copyright," was passed. The caption of this act clearly indicates that it was intended to relate solely to the subject of copyrights, and it was not intended to in any respect amend or affect the laws then existing relating to the registration of prints and labels in the Patent Office, and there is nothing in the body of the act which is in the least inconsistent with the caption. The words "prints" and "pictorial illustrations" used in clause (k), section 5, of said act, relate solely to prints and illustrations which were embraced in section 4952, Revised Statutes, and which may be copyrighted; and it does not follow that because no. reference is therein made to prints or labels which are to be used for any other articles of manufacture such prints or labels can not be registered in the Patent Office precisely as could have been done previous to this act. My attention is called to section 47 of said act, whereby it is provided that all records and other things relating to copyrights, required by law to be preserved, shall be kept and preserved in the Copyright Office, Library of Congress, District of Columbia, and shall be under the control of the Register of Copyrights, who shall, under the direction and supervision of the Librarian of Congress, perform all the duties relating to the registration of copyrights; and it is suggested that by this section the previous laws relating to the registration of prints were so modified as to require all prints to be registered by the Register of Copyrights. However, this section is but a copy, with few verbal changes, of section 85 of the act of July 8, 1870, and section 4948, Revised Statutes, which referred alone to the record kept of copyrights in the Copyright Office, and this section by its express terms is likewise limited to such records and does not relate to records kept of prints entered in the Patent Office. Nor can that clause in section 63 of said act which provides that "All laws or parts of laws in conflict with the provisions of this act are hereby repealed” have any effect upon the registration of prints in the Patent Office in accordance with the provisions of the act of June 18, 1874, because that part of said act which relates to the registration of prints in the Patent Office is not in conflict with the provisions of the act of 1909. Furthermore, I do not think that the case of Higgins v. Keuffel (140 U. S., 428, 433), wherein the court defines what labels and prints are, under the Constitution, registrable in the Patent Office, has any bearing upon this question, as under said decision some prints may be thus registered, though intended for use as a label or mark upon a manufactured product, and it is such prints that are required by the act of 1874 to be registered in the Patent Office. I am therefore of the opinion that the Patent Office is still required to register all prints which have heretofore been registered therein under the provisions of said act of June 18, 1874, and in the same manner as they have heretofore been registered. Respectfully, J. A. FOWLER Assistant Attorney-General Approved: GEORGE W. WICKERSHAM The PRESIDENT ["Official Opinions of the Attorneys-General of the United States," vol. 28, pp. 116– 120.] COPYRIGHT LAW-REGISTRATION OF POST-CARD LITHOGRAPHS MADE IN Lithographic reproductions of original paintings in the form of illustrated post-cards, made in Germany, are subject to registration under the copyright law of March 4, 1909 (35 Stat., 1075), provided the original paintings may properly be classified as works of art. DEPARTMENT OF JUSTICE SIR: I have the honor to acknowledge receipt of your communication Jan. 27, 1910 of the 11th instant, in which, for the guidance of the Register of Copyrights, you request my opinion as to whether or not certain lithographs of paintings made in Germany are subject to registration under the copyright law of 1909 (35 Stat., 1075). The following appear to be the facts: Certain paintings were created in England by an artist who was a British subject, and these paintings have never been within the United States. On the presentation of photographs thereof, with applications for registration of copyright under Class "G," section 5, act of March 4, 1909, as "works of art," the applications were passed for entry and certificates of registration were issued. Subsequently, Davidson Brothers, of New York, by permission of the owner of the copyrights of the originals, published, by circulation and sale, reproductions of the original paintings in the form of illustrated post-cards, produced by lithographic process in Germany; and, fearing that the copyrights of the originals might not protect the reproductions, immediately after publication the publishers sent to the Register of Copyrights two copies of each of the reproductions, accompanied by fees for entry, with proper application for entry under Class "H," to wit, "reproductions of a work of art;" and the question propounded is, whether under the manufacturing provisions of section 15 of the act of March 4, 1909 (35 Stat., 1078), these lithographic reproductions are entitled to registration. The act of March 4, 1909, is entitled "An act to amend and consolidate the acts respecting copyright," and the entire subject with reference to what works may be copyrighted, and the manufacturing provisions relating to the type and plates from which they shall be printed, and what importations thereof are excluded, are fully covered by the provisions of this act; and, consequently, all prior laws relating thereto are, by implication, repealed. Henderson's Tobacco, 11 Wall., 652, 657. Our inquiry, therefore, must be confined to the provisions of this act alone. Section 15 of the act reads as follows (35 Stat., 1078): That of the printed book or periodical specified in section five, subsections (a) and (b) of this act, except the original text of a book of foreign origin in a language or languages other than English, the text of all copies accorded protection under this act, except as below provided, shall be printed from type set within the limits of the United States; either by hand or by the aid of any kind of typesetting machine, or from plates made within the limits of the United States from type set therein, or, if the text be 60811-19 ΙΟ produced by lithographic process, or photo-engraving process, then by a process wholly performed within the limits of the United States, and the printing of the text and binding of the said book shall be performed within the limits of the United States; which requirements shall extend also to the illustrations within a book consisting of printed text and illustrations produced by lithographic process, or photo-engraving process, and also to separate lithographs or photo-engravings, except where in either case the subjects represented are located in a foreign country and illustrate a scientific work or reproduce a work of art; but they shall not apply to works in raised characters for the use of the blind, or to books of foreign origin in a language or languages other than English, or to books published abroad in the English language seeking ad interim protection under this act. From sections 12, 16, and 17, as well as from its own terms, it is clear that a compliance with the manufacturing provisions of this section is a condition precedent to a valid registration of the copyright. But the applicants for the copyrights in question insist that these provisions do not here apply, because, first, they are applicable to only lithographs and photo-engravings, which are used as illustrations within books consisting of a printed text and such illustrations, and to lithographs and photo-engravings which are intended to be used in books after importation or to be bound in book form; and, second, because being reproductions of works of art, they are expressly excepted from the conditions relating to manufacture. These two contentions will be considered in the order mentioned. First. Whether or not the first contention shall be sustained depends upon the meaning of the phrase, "and also to separate lithographs or photo-engravings." It is insisted that this phrase includes only lithographs and photo-engravings which are to constitute, after importation, parts of books, or to be bound in book form; and the following provisions, which appear in this section and elsewhere in the act, are cited in support of this insistence: (1) In the first clause of the section reference is made only to works mentioned in subsections (a) and (b) of section 5 of the act, which are (a) Books, including composite and cyclopaedic works, directories, gazetteers, and other compilations. (b) Periodicals, including newspapers. (2) in section 12, in providing that after copyright has been secured by publication of the work with the notice of copyright, two copies shall be deposited in the Copyright Office, it is specified that these copies "if the work be a book or periodical, shall have been produced in accordance with the manufacturing provisions specified in section fifteen of this act;" and no reference is made to lithographs and photo-engravings; (3) in section 16, in specifying the character of affidavit which shall accompany the work in order to secure the enforcement of the manufacturing provisions of section 15, books alone are mentioned, and no reference is made to lithographs or photo-engravings; and (4), in section 31 the importation of books alone which have not been produced in accordance with the manufacturing provisions of section 15, is prohibited. It is true that in the beginning of section 15 reference is made only to books and periodicals, and that it is there specifically provided where the type shall be set or the plates made, from which the books and periodicals shall be printed, and where the books shall be bound, but it is clear that it was intended to make some extension of the application of these provisions beyond the classes embraced in the first part of the section. This is shown by the language that the specified "requirements shall extend," which, of course, means that they were to apply to something which had not theretofore been mentioned. And the first character of works affected by the extension are illustrations "within a book consisting of printed text and illustrations produced by lithographic process, or photo-engraving process;" and this being deemed insufficient, the provisions were further extended to “separate lithographs or photo-engravings." The natural inference from this language is, that inasmuch as the lithographs and photo-engravings just previously mentioned are such as are connected with books, those to which reference is here made are separate from books; and that, there being no limitation as to the character of these separate lithographs and photoengravings, and no distinction as to what uses they shall be put, all lithographs and photo-engravings which are not, and are not intended to be, connected with books, are included in this second extension clause; and this construction must prevail unless the contrary is clearly shown by the other provisions in the act. It may be admitted that there is an apparent inconsistency in the language of sections 12 and 16, and this construction of the clause of section 15 mentioned, but is this inconsistency such as to require a strained and unnatural meaning to be given to this clause? As heretofore said, a compliance with these manufacturing provisions is a prerequisite to the validity of a copyright. Sections 15 and 16 deal alone with these provisions, while they are referred to in connection with books and periodicals in section 12; and to determine the extent of these requirements all these sections must be read together. When this is done it does not follow that because a certain requirement is not found in one of the sections, it does not exist at all, and must be stricken out when found in another. In many instances the contrary is the proper method of reaching the correct meaning of an act, as a whole, and such method is, I think, the proper one to adopt in construing this act. That is, if in either of these sections there appears a requirement that these manufacturing provisions apply to lithographs and photoengravings, not connected with or intended to be connected with books it should be given its full force and effect, regardless of whether it be found elsewhere or not. Such lithographs and photo-engravings are clearly not included in that clause of section 12 which relates to this subject, and which reads Which copies, if the work be a book or periodical, shall have been produced in accordance with the manufacturing provisions specified in section fifteen of this act. nor are they mentioned in section 16; but, as above shown, they are embraced in the unqualified language of section 15. Their absence from section 16, in which the contents of the affidavit required to show a compliance with section 15 is minutely set forth, is especially striking; but it certainly can not be held that section 16 is controlling, and that the manufacturing provisions apply only to works mentioned therein, because it is expressly restricted to books. Not even are periodicals mentioned, and nothing is there said about lithographs and photoengravings which are used as illustrations of books. This limitation in section 16 was manifestly made by design, and not by oversight, as shown by its introductory language, to wit: “That in the case of the book the copies so deposited shall be accompanied by an affidavit," thus indicating that books were here separated from other things which had been associated with them in the preceding section. The reason for making this distinction does not appear, but the failure to express the reason does not justify the conclusion that it did not exist, and certainly does not require that section 15 should be vitally altered so as to correspond with this section. In section 31 a subject is dealt with which is materially different from that treated in the above-mentioned sections. Here it is specified what copyrighted books may be admitted to importation; and a violation of this section does not invalidate the copyright. Consequently, its relationship to said sections is not so intimate as that between themselves, and the existence of any discrepancy between its and their language is not entitled to as much consideration. But, likewise in this section only books are mentioned, and no reference is made even to periodicals. I think it quite probable that in the act as originally drafted some of the apparent inconsistencies between the several sections mentioned did not exist, but that during the extended hearings held by the committee who had the bill in charge, amendments were determined upon, which were inserted in section 15 alone, and by inadvertence, sections 12 and 31 were not amended to correspond. This is indicated by the comments upon section 15 in the explanation of its various features prepared by the committee before the bill was reported, which comments are as follows: It was felt by your committee that if there was reason, as we think there was, for the requirement that the book should be printed from type set in this country, there was just as much reason for a requirement that the book should be printed and bound in this country and that the ordinary illustrations produced by lithographic process and photo-engraving process and separate lithographs or photo-engravings should be made in this country. That protection to the men engaged in the work of setting type, making plates, printing and binding books is given by this section, which also carries the penalty provision for knowingly making a false affidavit as to compliance with those provisions. But however the discrepancies may have arisen, I do not think they are such as to justify a modification of the plain and unequivocal meaning of the clause in section 15 which relates to "separate" lithographs and photo-engravings, and therefore find against the applicants' first contention. |