photographed plaintiffs' books instead of paying to have scholars make the corrections by original work, I am forced to the conclusion that defendants have infringed plaintiffs' copyright.' "" The copyright protection afforded here covered editing and scholarly additions, rather than the public domain letters or standard shaped accent marks.48

If Desclee hinted at, and Ricordi stated, that what the Regulation refers to as "ordinary typography" is indeed not copyrightable, these pronouncements are at best dicta. Not until Amplex, in 1960, did one questioning the statutory copyrightability of a type face, a type font, or typography have a citable judicial reference. Plaintiff in the case sought an injunction to prevent distribution of a business competitor's allegedly infringing sales catalog. Plaintiff's copyrighted work consisted of "pen-and-ink line drawing" illustrations of plexiglass letters and other products sold by both parties. The only lettering involved was of two standard styles: Egyptian standard and Condensed Egyptian; and the court clearly excluded the lettering per se from copyright protection: "The plaintiff makes no claim to the right to exclusively use [sic] such lettering and indeed could not, since they are obviously within the public domain.” “

What the court did protect was plaintiff's illustrations which showed "distinguishable variation in the arrangement and manner of presentation-the dark background, the particular size of the letters, their spacing, their arrangement into three rows. . . ." It is significant, I feel, that the Court nowhere discussed the issue of the copyrightability of typography, per se. It merely noted the slight degree of originality necessary to sustain copyright in an illustration, citing, inter alia, Bleistein v. Donaldson Lithographing Co." "Applying the extremely liberal tests which have been used to determine whether an illustration is capable of copyright, we think it beyond question that both the arrangements of the Egyptian and Modified Egyptian lettering appearing on Pages 18 and 20 of the plaintiff's catalog contain enough originality and creativeness to justify protection under the Copyright Act."

11 52

Later, the court remarked that "[i]f it be argued that these drawings contain an extremely small degree of skill and originality, the answer would seem to be that so long as they contain enough skill and originality to justify another's copying them, contrary to copyright notice against such copying, such copying will be enjoined."

In other words, the subject matter protected by the copyright in the court's mind was the advertising layout or arrangement depicted in the illustrations, rather than the lettering; though the court wisely did not speculate whether lettering could, under other circumstances, enjoy statutory copyright protection. In reaching its decision, the court was obviously influenced strongly by the fact that plaintiff had incurred considerable expense in compiling its advertising catalog, and that defendant, a "substantial competitor," would have enjoyed a considerable commercial advantage had it been permitted to copy the catalog and distribute it to its customers. But the case was decided on grounds of the statute, rather than unfair competition, and such equitable considerations should be submerged in interpreting the case. They are useful only in evaluating the soundness (and precedent value) of the opinion.

In reviewing the Amplex opinion, it might also be said that the court's commentary on typographical arrangement (or typography, as we use the term) was not crucial to its conclusion; defendant was found to have copied original illustrations of other products from the same catalog.

"This [plaintiff's copyrightable authorship] is even more evident in the case of the drawings of the several products, which although simple in form, present an original effort at illustration of the particular products. Having gone to the trouble of independently producing these illustrations and thereafter copyrighting them, the plaintiff will be protected against intentional copying by a competitor." "4

47 Id., at 693.

48 Cf. Magnus Organ Corp. v. Magnus, 154 U.S.P.Q. 431 (D.N.J. 1967) (Upholding copyright in a book consisting of numbers and chord buttons superimposed over the musical notes of public domain songs).

40 184 F. Supp. at 286-87.

50 Id., at 288.

61 Bleistein v. Donaldson Lithographing Co., 188 U.S. 239 (1903).

52 184 F. Supp. at 287 (citations omitted).

B3 Id., at 288 (footnotes omitted).

54 Id., at 288.

One holding of Amplex, then, was that original pictorial prints or engravings of standard lettering can be so arranged and presented in a sales catalog that their illustration is worthy of statutory copyright protection from direct, intentional copying by a business competitor. What weight the Office should accord this holding of the Pennsylvania district court is a focal question for this study. The case is somewhat puzzling, and its precedent value on the typography point is narrowed because of a decision rendered by the same court two years later. In Surgical Supply Service, Inc. v. Adler, the copyrights in price lists registered in Class K were invalidated for want of a minimum degree of artistic or literary merit.

"In the case at bar, there is a mere advertisement consisting of a bare list of articles and prices. The trial judge cannot, under any test of literary or artistic merit, find such advertisement to be the proper subject of a valid copyright. It clearly lacks the legal minimum or originality necessary for a copyright.

"The catalogues or other advertisements held to be copyrightable had some originality or quasi-artistic character." 66

The decision also read prior law as requiring that a work "be connected with the fine arts" to be copyrightable." This suggests that the Amplex catalog's copyrightability might have rested more on the product illustrations than the opinion patently indicated. Or perhaps the court was simply more sympathetic toward the copyright claims of one who illustrated his public domain letters against a shaded background in three rows, exercising some creativity in his manner of presentation, as opposed to one who listed articles and prices in a standard practice manner, exhibiting little creativity.

58

If the Amplex opinion seems to have been dictated in large part by the law of the market place, the same might be said of that rendered by the Southern District of New York court in the 1968 case of Pantone, Inc. v. A.I. Friedman, Inc. Like Amplex, this case involved plaintiff's attempts to uphold his statutory copyright in the face of an alleged infringement by a business competitor. Plaintiff here was an artists' supplies dealer who prepared and assembled an advertising booklet containing an allegedly original color matching system. Each of the seventy-two pages in the booklet bore a series of bands of selected colors, arranged to provide a range of selections derived by using eight basic colors and black and transparent white.

"Plaintiff's selection of the eight basic colors and of blends of these colors to provide a range of acceptable color values, presented in attractive gradations moving from one basic hue and its variations into another, was the product of a great deal of effort which required careful consideration of numerous artistic factors including the aesthetic attributes of each shade and its use in the commercial art field." "

The court granted a motion for a preliminary injunction to restrain defendant from copying and vending a like booklet. It cited, inter alia, the Amplex case as authority for holding that "plaintiff's mode of expression, combination and arrangement of colors in its booklet" possessed “sufficient originality and uniqueness" to qualify the work for copyright. "Although the mere portrayal of a series of gradations of color shades, standing alone, would present a doubtful case for copyright protection, the arrangement here possessed the already described unique quality which apparently gained ready recognition on the part of artists in a critical profession."" Thus, the colors themselves were not copyrightable (indeed, defendant's colors were not exact copies of plaintiff's); but their arrangement and presentation in an advertising booklet were protected against copying by a business competitor, particularly where defendant distributed with his copy a cross-reference sheet designed to create the false impression that plaintiff's and defendant's color matching systems were interchangeable. The court seemed to be recognizing copyright protection for an original arrangement and presentation of standard material.

In sum, the few, and generally low-level, court opinions relevant to our study have affirmed, in dicta, the non-copyright-ability of "ordinary typography" without defining the term. At the same time, at least one court has been willing under the aegis of the Copyright Law, to protect the original illustration and presentation of public domain lettering in trade catalogs against direct copying by a

65 Surgical Supply Service, Inc. v. Adler, 206 F. Supp. 564 (E.D. Pa. 1962). 50 Id., at 569.

57 Ibid.

68 Pantone, Inc. v. A. I. Friedman, Inc., 294 F. Supp. 545 (S.D.N.Y. 1968). Id., at 547

0 Id, at 548.

business competitor. Although the authority for this opinion is perhaps weak, the decision in turn became (non-binding) precedent for an analogous one offering statutory copyright protection for an arrangement of standard colors in an advertising booklet. The scope of the two decisions has not been tested further by the courts; and in the absence of definite judicial resolutions of the problems raised by this study, it might be useful to examine trends in the law and Office practice concerning copyrightability of works of art in general.

C. Copyrightability of Works of Art Generally

One of the greatest mysteries of federal copyright law is the meaning of the constitutional term "writings" of an author, the works in which copyright protection may be secured. Congressional enacting legislation has been almost as vague as the Constitution, and the present law says only that "[t]he works for which copyright may be secured under this title shall include all the writings of an author."

Though it enumerates classes of material subject to copyright, the Law does not set particular standards for deciding when a work falls within a class. The legislative vagueness may be a boon for those who have been forced to apply a sixty year old law to modern productions and moods, for it affords the possibility of flexibility in administering the law. At the same time, it means that persons faced with administering the law should consider how far a legislative agency like the Copyright Office should advance on its own in expanding the substantive scope of the law, absent legislative or judicial command.

It is extremely important that Office policy regarding registrability of a particular type of work be sound, for its practice is the only route open to most applicants. True, a prospective copyright applicant may have ultimate recourse to the courts, but not until he has first either exhausted his administrative remedies and waded through the time-consuming, expensive mandamus procedure or been called into court as a defendant in an infringement suit." Even if he perseveres to this extent, he might face the burden of disproving the validity of Office actions to the court. So, the Office should not be too quick to deny registration to any given class of material.

1 U.S. Const. art. I § 8.

63 Walter Derenberg. in a study preparatory to the proposed revision of the present Copyright Law, presented an interesting discourse on the alternative interpretations of constitutional "writings." Since it may be useful, from a philosophical point of view, to bear these in mind, they are summarized here.

"... [T]he legislative history of the copyright acts does not provide an express answer. What rationale can be gleaned from the reports and the acts that will explain the present development of congressional copyright protection?

"The first theory to present itself is that the copyright clause was intended to protect literal 'writings,' meaning such objects as books and periodicals-words written in a form intelligible to all who can read. This is the most obvious and the most easily disposed of limitation on the scope of copyright insofar as legislative history is concerned. Not only is there no recognition of this construction in the congressional reports, but, as will be shown later, from the first enactment in 1790 to the most recent codification 1947, the acts themselves exceed this narrow definition.

"Two other theories, however, are more probable and do find support in the legislative history. It can fairly be maintained that the copyright clause reflects a desire to protect the commercial value of the productive effort of the individual mind. From this evolves the plausible conclusion that the clause was intended to protect all intellectual property capable of extensive reproduction, and that whenever new methods of reproduction made possible the 'pirating' of unprotected works resulting from intellectual effort, the clause could be expanded. (note 45: In line with this reasoning, it might be argued that the founders, in using the word 'writings,' used it as the one word that would encompass all the items that needed protection, and intended that it would expand along with technical progress. If the Constitution is a living instrument, it is logical to presume that its component parts must also 'live'.)

"A third conclusion as to the scope of the clause involves the proposition that the first part of the clause "To promote the Progress of Science and useful Arts'-defines and colors the entire clause. and that whatever may be construed as promoting science and the useful arts falls within the definition of 'writings.'

"The latter two theories achieve the same result-a broad scope of coverage. The evidence to support either of them, although more implied than express, is convincing. As will be seen by an examination of all the pertinent copyright acts, either of these theories or a combination of them could be the proper meaning of the copyright clause so far as copyright legislation and proposed legislation is concerned."

[W. Derenberg, "The Meaning of 'Writings' in the Copyright Clause of the Constitution." In Studies On Copyright (Arthur Fisher Memorial ed.), Vol. 1, Study No. 3 at 71-72 (1963).]

63 Copyright Law of the United States, 17 U.S.C. § 4 (1964).

417 U.S.C. § 13 (1964); Vacheron & Constantin-Le Coultre Watches, Inc. v. Benrus Watch Co., Inc., 155 F. Supp. 932 (S.D.N.Y. 1957), aff'd.. 260 F. 2d 636 (2d Cir. 1958): Comment, "The Role of the Register of Copyrights in the Registration Process: A Critical Appraisal of Certain Exclusionary Regulations," 116 U. Pa. L. Rev. 1380 (1968).

At the same time, by being unduly lax in granting registration, the Office would shift an equally onerous burden on the would-be users of the type of work. Either a person must refrain from using such a work, or he must assume the unhappy risk of successfully asserting the invalidity of the registration in his defense in an infringement suit. This may well be a difficult task, for courts accord prima facie validity to the certificates of registration issued by the Office; and experience has shown that they frequently rely on Office expertise and the actions which presumably result therefrom.

Hence, the Office step should be sure, if not slow. A review of trends in court opinions and Office practices concerning registrability of works of art generally will help us to determine whether an Office step toward registration of an individual type face, type font, and/or typography would fall on solid ground. 1. The law

67

Miss Schrader, during her term as head of the Office's Arts Examining Sec tion, prepared a memorandum surveying reported court cases on copyrightability from Bailie v. Fisher through October of 1968, with particular emphasis on works of art. That review began by setting forth the quantitative standard of originality enunciated by Justice Holmes in upholding the copyrightability of circus poster advertisements in Bleistein v. Donaldson Lithographing Co." "A picture is nonetheless a picture and nonetheless a subject of copyright that it is used for an advertisement.

...

"It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations outside of the narrowest and most obvious limits."

It continues, quoting from Bell v. Catalda: "

""Originality means that the work owes its origin to the author; all that is needed is that the author contributed something more than a merely trivial variation, something recognizably his own; originality means little more than a prohibition of actual copying; it is enough if it be his own.' It is very instructive however to examine the work which is the subject of the case. With few exceptions, the work contains considerable original authorship in the guarantitative sense, and it is a quantitative rather than a qualitative standard which the Copyright Office attempts to apply. We are not art critics." "

The memo examined the particular works involved in cases during the aforementioned period, and cited pertinent court language on standards of copyrightable authorship for works of art. A review of these comments indicates that courts for the most part determine the registrability of works on a case-by-case basis, and that they generally affirm the Holmes view that originality is a quantitative standard which requires that the author add something of his own, something which has not been copied.

This study reviews cases decided from the memo to date and refers to opinions spanning both periods in commenting upon judicial attitudes and opinions relevant to our topic. Special emphasis has been placed on cases not covered in Miss Schrader's memo. Cases discussed elsewhere in the paper are, for the most part, omitted here.

The opinions reviewed indicate that while courts differ in their approaches to problems of copyrightability, they are of a mind in requiring that a work exhibit some originality and/or creativity in order to be statutorily copyrightable. And, the trend seems to be to require a small quantity of authorship, particularly where plaintiff seeks to uphold his copyright against a business competitor.3

65 17 U.S.C. § 209 (1964). provides that certificates of registration shall be admitted by any court as "prima facie evidence of the facts stated therein."

66 Comment, supra note 64 at 1385-6, note 32.

67 Bailie v. Fisher, 258 F. 2d 425 (D.C. Cir. 1958).

68 Memo from D. Schrader to file on "Survey of Copyrightability Cases Decided Since Bailie v. Fisher," October 1968 (unpublished collection of Schrader memos found in Copyright Office Library). No additional research has been done on cases covered in this

memo.

69 Bleistein v. Donaldson Lithographing Co.. 188 U.S. 239 (1903).

70 Id., at 251. cited in Schrader. supra note 68, at 2.

71 Alfred Bell & Co. Ltd. v. Catalda Fine Arts, Inc., 86 F. Supp. 399 (S.D.N.Y. 1949), modified. 191 F. 2d 99 (2d Cir. 1951).

72 Schrader, supra note 68. at 3-4

73 See, e.g.. language to this effect in Day-Brite Lighting, Inc. v. Sta-Brite Fluorescent Mfg. Co., 308 F. 2d 377 (5th Cir. 1962), discussed in Schrader, supra note 68 at 22-23; National Chemsearch Corp. v. Easton Chemical Co., 160 U.S.P.Q. 537 (S.D.N.Y. 1969).

In several cases, the arrangements of public domain items, in the view of the court, involved enough originality and/or creativity, to warrant sustaining the copyright. Thus, the Fifth Circuit court of Appeals in Tennessce Fabricating Co. v. Moultrie Manufacturing Co.," reversed the district court and held to be copyrightable as a work of art an architectural metal casting print "formed entirely of intercepting straight lines and arc lines." In reaching this decision, the court cited with approval Sec. 202.10 (b) of the Copyright Office Regulations, as well as our Circular 32, and concluded that plaintiff's architectural unit possessed at least "the minimal degree of creativity" required for copyright.

75

Similarly, plaintiff's device for teaching the fingering of chords on a guitar was protected from copyright infringement in Trebonik v. Grossman Music Corporation, on grounds that it "arranges and presents chords in an original, creative, and even novel way." The court emphasized that "no one prior to the plaintiff ever attempted to present a categorized system of available guitar chords in a quick reference system such as a wheel" and "none of the earlier works, however, undertook to depict such a large number of chords or to present any comprehensive system of classifying any substantial number of available chords."

Gelles-Widmer Co. v. Milton Bradley Co., contained language upholding copyright in an arrangement of "basic materials and arithmetical problems [which] "may have been old and in the public domain," because "the arrangement, the plan, and the manner in which they were put together by the author, does constitute originality."

78

In Peter Pan Fabrics, Inc. v. Dan River Mills, the Southern District of New York upheld copyright in a pattern based on a public domain daisy pattern. The court said the "juxtaposition and arrangement of the flowers" constituted sufficient originality to support a copyright claim. In so deciding, it noted that the design as purchased had to be embellished and expanded before it could be engraved on the rollers. This slight addition, though a very modest grade of originality, was nonetheless sufficient.

Finally, Millworth Converting Corp. v. Slifka Fabrics," contains lower court dicta, affirmed on appeal, to the effect that:

"The copyright law does not require that there be originality [in this context, apparently meaning novelty] in artistic arrangements. If it did it would be impossible to get a copyright on different 'versions' of the same work.

"In the present case the print displays sufficient originality to warrant a copyright. The fact that the artistic arrangement of the print is derived from the artistic arrangement of the embroidery on a fabric does not prevent it from being subject to copyright."

11 80

At the same time, courts say there must indeed be a quantity (more than "a minimum") of original authorship to sustain a copyright; a work must exhibit a 'distinguishable variation' from pre-existing works." And cases were found during this period that denied copyrightability for want of sufficient amounts of creative authorship. In Florabelle Flowers, Inc. v. Joseph Markovits, Inc., for example, the court denied plaintiff's motion for a preliminary injunction on grounds that his imitation flowers lacked even a “faint trace" of originality. The court recognized that "the accidental or contrived creation, if it qualifies objectively, is doubtless enough" to sustain the requirements of originality. But it said that: "[d]efendants make an impressive showing, thus far unanswered, that the kind of plastic flower in question, with face, with or without a pot, and with the few other accoutrements this one displays, are all old familiar elements of the trades in which both parties are engaged.” “

Tennessee Fabricating Co. v. Moultrie Manufacturing Co., 164 U.S.P.Q. 481 (5th Cir. 1970), cert. denied, 398 U.S. 928 (1970).

75 Trebonik v. Grossman Music Corp., 163 U.S.P.Q. 352 (N.D. Ohio 1969).

76 Gelles-Weidmer Co. v. Milton Bradley Co., 313 F. 2d 143 (7th Cir. 1963).

77 Ibid., cited in Schrader, supra note 68. at 29.

78 Peter Pan Fabrics, Inc. v. Dan River Mills, 161 U.S.P.Q. 119 (S.D.N.Y. 1969).

79 Millworth Converting Corp. v. Slifka Fabrics, 124 US.P.Q. 413 (S.D.N.Y.), 276 F. 2d 443 (2d Cir. 1960).

80 124 U.S.P.Q. at 414, cited in Schrader, supra note 68, at 18. Contra, Gardenia Flowers. Inc. v. Joseph Markovits, Inc.. 280 F. Supp. 776 (S.D.N.Y. 1968) (denying copyright protection, for want of creativity, in plaintiff's arrangement of artificial flowers).

Millworth Converting Corp. v. Slifka Fabrics, 124 U.S.P.Q. 413 (S.D.N.Y.), 276 F. 2d 443 (2d Cir. 1960); cf. United Merchants and Manufacturers, Inc. v. K. Gimble Accessories, Inc.. 294 F. Supp. 151 (S.D.N.Y. 1968).

Florabelle Flowers, Inc. v. Joseph Markovits, Inc., 160 U.S.P.Q. 611 (S.D.N.Y. 1968). 83 Id., at 614.