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The court throughout this decision takes the view that what the Constitution intended that Congress should protect was the intellectual production,” the "production of genius or intellect,” the “product of intellectual invention,” that which is “ representative of original intellectual conception."
In no instance where any one of these terms is used is it modified by the word “ visible.''
The same view was taken in Trade-Mark cases (100 U. S., 82), where the court held that trade-marks which would certainly come within the definition of visible expressions are not proper subjects of copyright because they do not depend upon novelty, invention, discovery, or any work of the brain. “ The writings,” says the court, “which are to be protected are the fruits of intellectual labor embodied in the form of books, prints, engravings, and the like."
In Higgins v. Keuffel .(140 U. S., 428, 430), in construing article 1, section 8, it is said on page 431 :
“ This provision evidently has reference only to such writings and discoveries as are the result of intellectual labor. It was so held in Trade Mark cases (100 U. S., 82), where the court said, “while the word “writing" may be liberally construed, as it has been, to include original designs for engravings, prints, etc., it is only such as are original ” and are founded in the creative powers of the mind.' It does not have any reference to labels which simply designate or describe the articles to which they are attached and which have no value separated from the articles, and no possible influence upon science or the useful arts. A label on a box of fruit, giving its name as grapes,' even with the addition of adjectives characterizing their quality as 'black,' 'white,' or • sweet,' or indicating the place of their growth, as Malaga or California, does not come within the object of the clause. The use of such labels upon those articles has no connection with the progress of science and the useful arts. It can not, therefore, be held by any reasonable argument that the protection of mere labels is within the purpose of the clause in question. To be entitled to a copyright the article must have by itself some value as a composition, at least to the extent of serving some purpose other than as a mere advertisement or designation of the subject to which it is attached.” In Holmes v. Hurst, 174 U. S., 82–89, the rule is laid down that
* It is the intellectual production of the author which the copyright protects, and not the particular form which such production ultimately takes."
We have seen in the Sarony case that the court includes photographs, negatives, paintings, statuary, models, and designs among the forms in which the fruits of intellectual labor may be embodied.
Phonographic records of musical compositions are certainly as much like writings or books as are statues and negatives. And are they not visible?
The answer is that by visible is meant visible in such a form that it will be recognized by the sense of sight as the expression of the author's idea. But there is no authority for any such restricted definition.
The Supreme Court has not laid down any such rule. The leading text writers on copyright law do not take that view. On the contrary, these writers express the opinion that any embodiment of an author's idea which is sufficient to establish its identity is a proper subject of copyright, and that was the view taken by Justice Aston in Millar v. Taylor, 4 Burr., 2340.
Blackstone, the acknowledged head of all writers on the principles of law, says:
“ The identity of a literary composition consists entirely in the sentiment and the language; the same conceptions clothed in the same words must necessarily be the same composition; and whatever method be taken of exhibiting that composition to the ear or the eye of another, by recital, by writing, or by printing, in any number of copies, or at any period of time, it is always the identical work of the author which is so exhibited.” (Blackstone, 2 Com., 406.)
This quotation has been cited with approval in many American copyright decisions.
Drone, whose work on copyright is recognized as the standard American work on this branch of the law, says on page 6:
“ It has been maintained that material substance is an essential attribute of property ;
that nothing can be the subject of ownership which is not corporeal. This is an error which has arisen from the assumption that materiality is essential to the determination of the identity of a thing. It is clear that a thing must be capable of identification in order to be the subject of exclusive ownership. But when its identity can be determined so that individual ownership may be asserted, it matters not whether it be corporeal or incorporeal.
Whatever, then, having the other requisites of property, can be identified, becomes a proper subject of ownership.
* Indeed, so complete may be the identity of an incorporeal literary composition that, even when it has no existence in writing or print, it may be preserved in its entirety for ages in the memory, passing from generation to generation, from country to country. The composer will conceive and give expression to a musical composition without putting a note on paper. It is a creation, without material form, in the realm of the imagination; but so complete is its incorporeal, invisible form, so marked its individuality, so distinctly perceptible to the musical mind, that another will reproduce it 'by ear, without the aid of written or printed notes."
On page 97 the learned author says:
“There can be no property in a production of the mind unless it is expressed in a definite order of words., But the property is not in the mere words alone, not alone in the one form of expression chosen by the author. It is in the intellectual creation, which language is merely a means of expressing and communicating. The words of a literary composition may be changed by substituting others of synonymous meaning ; but the intellectual creation will remain substantially the same. This truth is judicially recognized in the established principle, that the property of the author is violated by an unauthorized use of his composition, with a colorable change of words; the test of piracy being not whether the identical language, the same words, are used, but whether the substance of the production is unlawfully appropriated. So an intellectual production may be expressed in any number of different languages. The thing itself is always the same; only the means of communication is different. The plot, the characters, the sentiments, the thoughts, which constitute a work of fiction, form an immaterial creation, which may be communicated by a hundred different tongues—by the labial or the sign language of the mute, the raised letters of the blind, the comprehensive characters of stenography. The means of communication are manifold; but the invisible, intangible, incorporeal creation of the author's brain never loses its identity. The Bible has been translated into all tongues, but its truths, its eloquence, its poetry have been the same to all nations.
Literary property, then, is not restricted to the one form of language in which thoughts are expressed, but is in the intellectual creation which is embodied in such language. This creation, in whatever language or form of words it can be identified, the author may claim as his property. That there can be no property in thoughts, conceptions, ideas, sentiments, etc., apart from their association, is clear, for they are then incapable of being identified or owned exclusively. But their arrangement and combination in a definite form constitute an intellectual production, a literary composition, which has a distinct being capable of identification and separate ownership, and possessing the essential attributes of property. The property is not in the simple thoughts, ideas, etc., but in what is produced by their association.
“ The property in an intellectual production is incorporea), and is wholly distinct from the property in the material to which it may be attached. Indeed, literary property may exist independently of any corporeal substance. It may be as perfect in a production expressed in spoken as in one communicated by written or printed words. A poem when read, a lecture when delivered, a song when sung, a drama when acted, may have all the attributes of property, though not a word has been written or printed. The true test is not whether the thing is corporeal or incorporeal, not whether it is attached to a material substance, but whether it is capable of identification so that exclusive ownership may be asserted. The identity of an intellectual production is secured by the language in which it is expressed; and this is true whether the language be spoken or written. When a composition has not been reduced to writing it may be more difficult, and in some cases impracticable, to prove the authorship and thereby to establish a title to ownership. But the manuscript is but a means of proof. And when the title to the ownership is not disputed or can be satisfactorily established without the existence of a writing, as it may be in many cases, it is immaterial whether the composition has been reduced to writing or has been rommunicated only in spoken words.”
We take it that it is conceded by the opponents to section 1, subdivision (g), that a phonograph record or perforated roll embodies or represents a particular musical composition. It is designated by the same name or title, listed in catalogues, and sold as music under that title; its only purpose is to reproduce that particular composition; its value is dependent solely upon the reputation
of the composer and the merit and popularity of the composition. In the manufacture of perforated rolls the musical composition in the ordinary sheet music notation is strictly followed, each note being represented by a corresponding perforation, and these perforations constitute a record of that musical composition. Phonograph records are manufactured from a die or matrix so prepared and arranged in connection with a large horn that when a given musical composition is played or sung into the opening of the horn certain lines and indentations representing the sounds forming or identifying the composition are impressed upon the waxed matrix; so that here these impressions constitute a record of the composition.
Only recently several phonographic records embodying speeches made by the German Emperor expressly for that purpose were prepared for the Smithsonian Institution to be preserved for reference for future generations. These speeches so embodied in these phonograph records are just as truly and accurately recorded as they could be in any book. There is no written or printed copy of these speeches, but they can be as accurately transcribed into script as if they had been printed in type.
It must be admitted that a phonographic record of a musical composition is a sufficient embodiment of the author's idea to establish its identity. If the mechanism in connection with which the record is used produces that and no other composition, it is not because of the peculiar form of the mechanism, but because the record or disk or roll has been so formed as to be an embodiment of that composition.
It is objected that the embodiment of the idea on the phonographic record is in an incomplete form, too unintelligible to be entitled to protection as the expression of the idea.
But that is a feature that is peculiar to many intellectual products that are well recognized as proper subjects of copyright. A book written in cipher, shorthand, or in Sanskrit, would be unintelligible, unless it was translated. But that would not make the book unfit for being copyrighted. Likewise the raised letters or the system of protuberances or depressions for use by the blind as a means of communicating ideas to the blind through the sense of touch are unintelligible. So is a negative unintelligible unless it is developed. So are certain serial photographs used in so-called “moving pictures ” unintelligible until they are exhibited on a screen.
The last-mentioned case is discussed by the United States circuit court of appeals, third circuit, in Edison v. Lubin (122 Fed., 240). Complainant's operator took in rapid succession on a highly sensitized celluloid film 4,500 pictures, each of which was a shade different from its predecessor and successor, representing the launching of Kaiser Wilhelm's yacht Meteor, and from this a positive reproduction was made on a solid sheet by light exposure, and by means of an appliance similar to a magic lantern these views could be thrown on a screen in rapid succession, so as to give the effect of actual motion and pictorially reproduce the launching. This positive solid sheet was registered with the Librarian of Congress, and copyrighted under title of “ photograph 'Christening and Launching Kaiser Wilhelm's Yacht Meteor.'” The defendant photographed these pictures on a sensitized celluloid film and sold them to exhibitors to enable them to reproduce the picture.
The court held the celluloid sheet to be a “photograph," and said:
" The negative and its positive reproduction represent one act or event, to wit, the launch of the yacht. This launch was portrayed on a single negative film by one operator and a camera, operated from a single point, and such negative simply photographically reproduces in continuous form the view of the launch presented to the eye of an onlooker at the spot occupied by the camera. The instantaneous and continuous operation of the camera is such that the difference between successive pictures is not distinguishable by the eye, and is so slight that the casual observer will take a very considerable number of successive pictures of the series and say they are identical.
To require each of numerous undistinguishable pictures to be individually copyrighted, as suggested by the court, would, in effect, be to require copyright of many pictures to protect a single one.
“ When we consider the positive sheet which was copyrighted, we have a stronger case. What was thus copyrighted was a single celluloid sheet on which a number of objects had been photographically printed or reproduced. That these objects were there portrayed by light action or photography is unquestioned. No matter how the negative was obtained, whether by numerous and successive exposures, is not here material. The statute provides for copy
righting negatives ; but the present issue is not whether the negative in question was one covered by the statute, but whether, when the negative as a whole was photographically reproduced, the reproduction was a photograph. On that point we feel assured. When the reproduction was made, complainant's celluloid negative simply possessed the reproductive capacity by light action incident to the photographic art. The image, which had been thrown by light reflected from the originals and passed through a camera to produce the negative, in the reproducive process produced the positive by light action passed through such transparent negative. The mere circumstance that such positive is pictured on a strip of celluloid, and not on a strip of paper, is immaterial. In either event the reproduction is a light written, and therefore a photographic picture or photograph. To say that the continuous method by which this negative was secured was unknown when the act was passed, and therefore a photograph of it was not covered by the act, is to beg the question. Such construction is at variance with the object of the act, which was passed to further the constitutional grant of power to promote the progress of science and useful arts.' When in recognition of the photographic art Congress saw fit, in 1865, to amend the act of 1831 (13 Stat. L., 540) and extend copyright protection to a photograph or negative, it is not to be presumed it thought such art could not progress, and that no protection was to be afforded such progress. It must have recognized there would be change and advance in making photographs, just as there has been in making books, printing chromos, and other subjects of copyright protection. While such advance has resulted in a different type of photograph, yet it is none the less a photograph-a picture produced by photographic process. From the standpoint of preparatory work in securing the negative, the latter consists of a number of different views, but when the negative was secured the article reproduced therefrom was a single photograph of the whole. And that it is, in substance, a single photograph is shown by the fact that it's value consists in its protection as a whole or unit, and the injury to copyright protection consists not in pirating one picture, but in appropriating it in its entirety.”
Does not the above reasoning apply as strongly to sound-writings, phonographs, as to light-writings, photographs?
The perforated roll or phonographic record is in many respects similar to the positive celluloid sheet. The sole useful and profitable function of each is to serve as a vehicle for communication or reproduction to the senses of the intellectual production embodied therein. Each is not legible or distinguishable until set in operation in connection with the mechanism to which it is adapted. But when once in operation the production embodied in the record becomes intelligible and distinguishable. In the case of perforated rolls and phonograph records the representation is addressed to the sense of hearing; the ear recognizes the composition embodied in the record, tells what it is, and there are conveyed substantially the same impressions and the same emotions are excited in the mind in the same sequence or order as is done by the original composition in ordinary music notation when played by hand on any musical instrument or sung by an artist.
The perforated roll or phonograph record serves the same purpose as the printed music on a sheet--a vehicle for communicating the ideas therein embodied to one of the senses. As was said in the great case of Millar v. Taylor, 4 Burr., 2303–2342 :
“ The printing of it (book) is a mere mechanical act, and the method only of publishing and promulgating the contents of the book. The composition therefore is the substance. The paper, ink, type, only the incidents or vehicle.
“ The value proves it. And though the defendant may say 'those materials are mine' yet they can not give him a right to the substance, which (on whose paper or parchment soever it is impressed) must ever be invariably the same. Nay, his mixing, if I may so call it, his such like materials with the author's property does not render the author's property less distinguishable than it was before, for the identical work or composition will still appear beyond a possibility of mistake.”
To distinguish one musical composition from another in ordinary sheet music notation requires a technical knowledge of the art of music. To the untutored mind a sheet of music is no more intelligible or distinguishable than the perforations or impressions on perforated rolls or phonograph records. When records embodying different compositions are set in operation in connection with the mechanism to which they are adapted, the most unlettered in music can distinguish one from the other.
The discussion on the meaning of the word “ writing" may be summed up by quoting a statement found in the opinion of the United States Circuit Court of Appeals in National Telegraph News Company v. Western Union Telegraph Company, 119 Fed. Rep., at p. 297, to wit:
Nothing, it would seem, evincing in its make-up that there has been underneath it, in some substantial way, the mind of a creator or originator is now excluded." (From copyright protection.)
It is safe to conclude that phonograph devices are proper subjects of copyright.
The objection to subdivision 1 (g), based on the word writing" in the Constitution, is shown to be untenable, even if that subdivision attempted to make phonographic records, disks, perforated rolls, or cylinders subjects of copyright.
But, as has already been pointed out, this subdivision does not state new subjects of copyright, but enlarges the rights which shall be secured to authors in their works. The subjects of copyright which this provision is particularly designed to protect are musical compositions. And the opponents of this subdivision admit that musical compositions are writings. Musical compositions were protected under the act of the 31st of May, 1790. (See Clayton v. Stone, 2 Paine, 382.)
The constitutionality of the subdivision, does not at all depend on the construction of the word writing” unless it should appear that the rights of the author in his writings are restricted to the right to reproduce in writing and that the security to be extended to him is limited to protection against infringements in writing.
But nothing of the kind is shown. The language of the Constitution does not justify such a restricted meaning and the courts have never so strued it.
Here again the Sarony case may be cited in favor of a broad construction. Congress added, by the act of 1856, to the rights secured to the author the sole right of performing a dramatic composition, and this right was incorporated in section 4952 of the Revised Statutes. This apparently extends the author's right beyond that of reproducing in writing and the protection beyond that against infringement in writing. And since the decision in the Sarony case added protection against infringement by public performance was given by the act of January 6, 1897, section 4966 of the Revised Statutes was amended so as to secure to musical compositions the same measure of protection as was afforded to productions of a strictly dramatic character and for added means for the protection of dramatic or operatic works against infringement by performance. (U. S. Rev. Stat., Supp., Vol. II, p. 536.).
Section 4952 is referred to in the Sarony decision with the approving remark that the “ Constitution intended that Congress should secure the exclusive right to use, publish, and sell, as it has done by section 4952 of the Revised Statutes." The right to
would undoubtedly include the right to embody in the form of a photograph or perforated roll.
It must be realized by the objectors that the acts of 1856, protecting dramatic compositions against piracy by representation, and the act of 1897, extending the same protection to all musical compositions, are a complete refutation of the contention that a writing”. can be protected only against infringement in writing.
Realizing that their contentions must fall in view of the acts extending copyright to public representation and performance, they assert that these acts 'are unconstitutional, It is not conceivable that this absurd assertation will receive any weight. Nor is it reasonable to suppose that this Congress will draw into question the constitutionality of the act enacted by Congress in 1856, when it is remembered that for more than half a century dramatic works have been protected against representation under this very act, and the right of Congress to grant such protection has been firmly established and recognized by the courts. (See Daly V. Palmer, 6 Blatchf., 256 ; Daly v. Webster, 175 U. S., 148, and Lithographic Co. V. Sarony, supra.)
A refusal to grant the protection to dramatic and musical compositions against representation would have rendered ineffectual and nugatory the primary object sought to be attained by Article I, section 8, of the Constitution.
A dramatic composition is a literary work in which the narrative is represented by dialogue and action. pantomime is a species of theatrical entertainment in which the action is wholly represented by gesticulation without the use of words. (Daly v. Palmer, 6 Blatchf., 256.) In each case the primary