design, the court has to apply rules of construction that have evolved in the patent law, and to place a very limited construction on the thing that is protected; and therefore the protection is not such as will cover colorable imitation.

I had an experience of that sort where the design was in jewelry, and Judge McComb, one of our greatest judges, looked at the picture of the design patent, and he looked at the piece of jewelry that was stated to infringe, and he said, "There are some little points. around here that are not in the design patent. No infringement.' That was a surprise to me, but there it was.

Then in another case a man had a design patent for a very useful welt for trimming automobiles, and the defendant produced in court a horse yoke-I think that is what you call it; that goes around the horse's neck over the collar-and he had cut out a part of that collar, and that part that he cut out was in shape something like this design; and the circuit court of appeals said, "Not patentable." There was no question about its originality, but it was not new.

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I have worked on this bill with care, and I have made it a copyright_bill-straight copyright. The first thing I did was to strike out the word new." It said new and original." I struck out the words "new and," and it only has to be "original." It only has to be something that a man has created out of his own mind, and it does not make any difference if somebody else published something like that 10 years ago or 50 years ago or 1,000 years, or went out and found in some of the ruins in Egypt, something; that does not make any difference provided it was original with him, it will be protected; and if, when his original design comes out, somebody looks at it and says, "I think that is very much like something else." he can go and find that something else and he can copy that something else with impunity, because, as in the copyright law, the law punishes only those who copy. It gives protection to those who originate and punishes those who copy. That is the copyright law as it has been evolved in the centuries. This is a subject which is properly, copyright, and this is a bill for the copyright registration of designs. Every measure of this bill has been carefully considered. Every opposition to the bill has been carefully considered.

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Mr. LANHAM. You say carefully considered." We had some conflicting things here, I recall, at the former hearings on this bill. I will cite one, for instance, with reference to patterns for ladies' clothes. You say these matters have been considered. Have all the divergent interests been harmonized?

Mr. WILLIAMS. They have.

Mr. LANHAM. And all these groups are now in accord with the phraseology of this proposed legislation, the text of this bill as it appears; is that right?

Mr. WILLIAMS. În conference with the representatives of the manufacturers of dress patterns, I was able to make an amendment to the bill which was satisfactory to them and was satisfactory to me, and the public interest.

Mr. GOODWIN. Where in the bill, was that change made, Mr. Williams?

Mr. WILLIAMS. That is in section 9, paragraph (b), on page 9, líne 3. In enumerating the things that shall not be held as infringing acts, this reads:

(b) Making or selling patterns for dressmaking, or making a garment from such a pattern for the individual use of the maker or a member of the family of the maker, or having such a garment made by an individual employee for the use of the employer or a member of the family of the employer.

That is to say, if a lady wishes to call in a dressmaker to make a dress for her on a pattern which has a design copyright, she may do it, or she may make it herself.

Mr. GOODWIN. Does this bill now meet the objections made at prior hearings by manufacturers of patterns and large establishments selling ladies' garments, who were in opposition to the bill the last time for fear that they might be sued for infringing upon the pattern design?

Mr. WILLIAMS. As to the first part, as to the manufacturers of patterns, I am sure they are entirely satisfied.

As to those who sell dresses containing copyrighted patterns, that is another matter. To sell a dress which is made in accordance with a copyrighted design is an infringement. But even as to that, I have introduced into the bill, after much thought, a provision which affords to the dealer a remarkable protection which does not exist in the patent law. If a dealer has goods that infringe a patent, there is nothing for him to do except to settle up or stand suit. His innocence has nothing to do with it.

If a dealer has goods which infringe a copyrighted design, we have a special provision which seems to me to be excellent, although I am going to suggest an amendment to it; in the definition of infringement, section 8 of the bill. [Reading:]

SEC. 8. Infringement shall include unlicensed copying of or colorable imitation by copying the copyrighted design or any characteristic original feature thereof in manufactured products in the same class, or any similar product, for the purpose of sale or public distribution; or selling or publicly distributing or exposing for sale or public distribution any such product embodying or containing such a copy or colorable imitation.

That is the definition of what infringement is. [Continuing reading:]

If such sale or public distribution or exposure for sale or public distribution is by anyone other than the manufacturer or importer of the copy or colorable imitation, it shall be

I think I shall read it in the form in which I suggest the amendment. [Reading:]

it shall be lawful only as to goods purchased under such circumstances that the purchaser may have reasonably inferred that the design was not copyrighted: Provided, however, That to obtain the benefit of this exemption, a prompt and full disclosure must be made to the copyright owner upon request as to the source

And there I have added

and all particulars of the purchase of the goods, and the evidence thereof must be given if requested, in any suit or action against the manufacturer or importer. In what I have read I have struck out lines 15 and 16, and inserted: Shall be lawful only as to goods purchased under such circumstances that the purchaser may have reasonably inferred that the design was not copyrighted: Provided

And so forth.

And I have added in line 19, between the word "and" and the word "particulars," the word "all." That is to say, it is very difficult to prove that a defendant had knowledge that the design was copyrighted when he bought the goods. The defendant being a retailer, and therefore studying this to make it as easy as possible without in any way impairing the protection of the innocent, I worked out, with one of my colleagues, that clause, which is about as far as we can go in protecting the innocent and yet making it as easy as possible to prove that the guilty are guilty.

Mr. LANHAM. May I ask you a question, there? You have been talking with reference to two classes that would be affected by this. I want to carry that a little further, to a third class, and see if that third class is protected by the verbiage of that section. There is a pretty well defined rumor-we have discussed this heretofore-that it is more or less customary for ladies to see some pattern of clothes or some model of clothes in a store window, and then go home and make practically a duplicate of that model by their own handiwork. They are not penalized by this bill for doing that-I mean someone not in the trade?

Mr. PERKINS. Is not that taken care of by section (b)?

Mr. WILLIAMS. It is taken care of by section (b) to this extent, "making a garment from such a pattern "—and that is a pattern which has a design-" for the individual use of the maker or a member of the family of the maker," and so forth.

Mr. LANHAM. Would that include immunity for the window shopper who sees something that is attractive and goes home and duplicates it by her own needlework?

Mr. WILLIAMS. For her own use.

Mr. LANHAM. Yes; I mean for her own use or for the use of a member of her family. She would be protected in that?

Mr. WILLIAMS. Yes, I think so. In fact, it is a little broader. She can buy a pattern for it and make it.

The CHAIRMAN. Let me ask you this. Let us go a little further. Take designs, for instance. A lady passing down the street sees a beautiful dress in the window, goes home and thinks that she wants to have a dress like that, so she goes and buys the material. Can she employ a dressmaker and say to the dressmaker, "There is a dress up here in a window and I want you to make me a dress like it." Can she do that?

Mr. WILLIAMS. Yes.

The CHAIRMAN. And that would be no infringement?

Mr. WILLIAMS. No; if for her own use or for the use of a member of her family. That is the limitation.

Mr. LANHAM. You recall at the former hearings we had controversies along these various lines, and my questions are simply directed in an effort to ascertain whether those differences have all been ironed out here.

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Just following that question again, suppose this dressmaker has a number of customers, ladies, who see that same dress, and in the same manner, come to the dressmaker and say, I want you to make that same dress for me"; and suppose she made 8 or 10 dresses for 8 or 10 different ladies who had requested her to make for them a copy of that dress?

The CHAIRMAN. The different tastes of women would make that impossible. [Laughter.]

Mr. WILLIAMS. What we have endeavored to prevent is that dressmaker getting that pattern for a particular design and supplying her customers with it as a matter of trade; and what we have endeavored to exempt is the dressmaker who comes into the household and under the protection of the household makes dresses for the trade.

Mr. ENGLEBRIGHT. In other words, you are aiming at a traffic in patterns?

Mr. WILLIAMS. Yes.

Mr. PERKINS. Is not that also taken care of in your definition of infringement, which provides that there can be no infringement unless it is for the purposes of sale or public distribution?

Mr. WILLIAMSs. Yes. For instance the language on that was "manufacture, sale or use." In this law we do not say anything about "use."

The provisions of this bill have been gone over in six prior hearings. I am ready now to answer any questions, but I do not think I should attempt to go over it section by section.

I have one other section or amendment to suggest. On page 1 of the bill, there is, on line 8, the word "such," as to which it has been pointed out to me it might be possible to misunderstand what was meant; so that I suggest an amendment, by striking out the word such

Mr. LANHAM. Where is that?

Mr. WILLIAMS. Line 8, on page 1; strike out the word "such and insert" the "; and after the word " author," insert the words "of such a design"; so that it will read, "or the legal representative or assignee of the author of such a design."

The purpose there is to say that in any event a concern domiciled in the United States, which owns a design which it has purchased from a foreigner, may register that, whether or not the country of which he is a citizen or subject shall have established reciprocal copyright connections with the United States. It just makes clearer the sense, without in any way changing it.

There are many here who wish to speak upon this bill, and I am going to suggest that Mr. William Exton, jr., may be next heard by the committee, if I may.

The CHAIRMAN. Before we hear Mr. Exton, we have Members of Congress here, and it is always customary to hear the Members of Congress if they desire to be heard. Mr. Bloom is here, and he desires to be heard on this bill, for or against it, at this time. The committee will be glad to hear him now.

Mr. BLOOM. Mr. Chairman and gentlemen, I thank you very much for giving me this opportunity to speak on this bill. I have nothing. to say; but if I may be permitted, I would like to ask Mr. Williams one question. This is in line with what he was talking of.

I would like to ask Mr. Williams, then, whether section (b) in section 9, page 9 of the bill, does not apply only to the sale of patterns? What would happen in the case of a magazine which prints patterns? Would they not be excluded from making dresses from patterns that are printed and sold in the newspapers or magazines? The pattern is not sold, and I do not think that that would cover it.

Mr. PERKINS. Again, would not that be covered by the definition of infringement?

Mr. BLOOM. No, it would not be covered by the definition of infringement, because subsection (b) of section 9 specifically mentions the making and selling of patterns for dressmaking. The daily papers all print patterns, which would not be covered by that, because the pattern is not made and sold for that specific purpose. It is sold as a part of the newspaper.

Mr. ENGLEBRIGHT. Are they copyrighted?

Mr. BLOOM. No; they are not copyrighted, because a great many of these papers have people who make these patterns for the newspapers, and they sell them out as special articles, the same as they would an article written by Mr. Brisbane or Fannie Hurst; and that is not broad enough to cover the real intent of what I understand Mr. Williams is talking about. I think that any pattern that is sold, the people should not be deprived of using that pattern for making a dress or a garment or anything, at home. Of course this only calls for a garment. Would an apron be called a garment? Would a suit for a boy? Many of these people get out patterns for little suits of clothes for little boys. Now, of course, if that would be understood to mean anything that a pattern was made for; but specifically I call attention to the fact that this does not cover the right to use a pattern published in a newspaper or magazine or any paper, for that purpose. Mr. LANHAM. May I ask this question? I do not know that I have it quite clear in my mind. Unless there is copyright legislation, as to patterns published in newspapers or magazines, would not the public have free access to them, anyway?

Mr. BLOOM. The newspaper itself would be copyrighted, but the design may be copyrighted. You know-of course the gentlemen of the committee realize what a difficult thing it has been always to determine what a design copyright means. Now if you are going to specifically prohibit or permit the making of patterns for dressmaking, or making a garment, this is the making or selling of the pattern; that is such things as the Butterick patterns. You see, that is the individual pattern-the making and selling of patterns.

Mr. LANHAM. When a magazine or newspaper publishes these patterns, do they publish them with a view of selling the pattern, or to give information? If it is not for the purpose of selling them, can they not simply state that fact, that the public is free to go ahead and use them? In other words, if there is no disposition on their part to sell the pattern, how would they come under the provisions of that act? I mean, how could anyone misunderstand, if notice was given to the public

Mr. BLOOM. The pattern is copyrighted, the same as an article in the newspapers is copyrighted. They are all copyrighted as an article in the newspaper is copyrighted.

Mr. LANHAM. Then if the newspaper or magazine has no desire to traffic in these patterns, can not the newspaper say so, and that this pattern may be used?

Mr. BLOOM. Yes; but I am going into something else here; that that design does not give you the right of a copyright pattern for me, taking it out of there, lifting it out of the paper and making a

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