Chapter LIX: Section I: An Original Literary or Artistic Work

In the United States literary and artistic works are treated similarly under the same series of statutes. The works protected are enumerated in section 4952 of the Revised Statutes as amended by the Act of March 3, 1891 (_The Chace Act_). The protection extends to any book, map, chart, dramatic or musical composition, engraving, cut, print, or photograph or negative thereof, and to any painting, drawing, chromo, statue, statuary, and to models or designs intended to be perfected as works of the fine arts.

[Sidenote: The scope of the Constitution.]

In considering whether a work is within the protection of the Copyright Acts, not only must the enacting words of the statutes be considered, but also, and perhaps principally, the scope of the provision in the Constitution, which grants power to Congress to secure the protection of authors and artists.[1256] The language of the Act must be read in connection with the Constitutional provision and be so construed as to promote the object and conform to the purpose expressed therein. The power given to Congress by the Constitution is a power "to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." In consideration of this restricted power the earlier decisions[1257] construed the Acts of Congress as including only those works which showed a certain degree of intellectual labour in the arts or sciences. In _Clayton_ v. _Stone_[1258] protection was refused to a daily price current or review of the markets issued in a newspaper. Thompson, J., in giving judgment, said:

"The Act was passed in execution of the power given by Congress,
and the object therefore was the promotion of science; and it
would certainly be a pretty extraordinary view of the sciences to
consider a daily or weekly publication of the state of the market
as falling within any class of them. They are of a more fixed,
permanent, and durable character. The term science cannot with any
propriety be applied to a work of so fluctuating and fugitive a
form as that of a newspaper or price current, the subject-matter
of which is daily changing, and is of mere temporary use.... The
title of the Act of Congress is for the encouragement of learning,
and was not intended for the encouragement of mere industry
unconnected with learning and the sciences."

[Sidenote: Illustrated Catalogues.]

This high standard of intellectual requirement was not, however, strictly maintained. In _Brightley_ v. _Littleton_[1259] a blank form of application for a licence to sell liquor at retail, drawn in pursuance of the statutes in that behalf, was protected, and it was said that, although the matter claiming copyright must be original and possess some possible utility, "the originality may be of the lowest order and the utility barely perceptible." In _Ladd_ v. _Oxnard_[1260] the English cases of _Lamb_ v. _Evans_[1261] and _Leslie_ v. _Young_[1262] were cited with approval, and the Court agreed that "the quality and grade of original work required by the Courts under the Copyright Statutes are very moderate." Until the case of _Mott_ v. _Clow_,[1263] the tendency seems to have been to follow the English judges to their extreme view, as expressed by Lord Halsbury in _Walter_ v. _Lane_,[1264] _i. e._ "that the copyright law requires neither literary merit nor intellectual labour nor originality either in thought or in language." The Court, however, in _Mott_ v. _Clow_[1265] refused to follow the English decisions. After reviewing the American, and particularly the earlier American decisions, they say:

"The result of these decisions would seem to place this
construction upon the Constitutional provisions under
consideration that only such writings and discoveries are
included which are the result of intellectual labour; that the
term writings may be liberally construed to include designs for
engravings and prints that are original and are founded in the
creative powers of the mind, the fruits of intellectual labour;
that prints upon a single sheet might be considered a book if
it otherwise met the spirit of the constitutional provision;
and that to be entitled to a copyright, the article must have,
by and of itself, some value as a composition, at least to the
extent of serving some purpose other than a mere advertisement or
designation of the subject to which it is attached."

The "book" before the Court was a catalogue in the form of a bound volume, containing illustrations of household wares offered for sale, and giving the dimensions and price of each. The Court referred to _Maple_ v. _Junior Army and Navy Stores_[1266] where a similar catalogue in England was protected.

"It is to be observed in this case that it was ruled largely upon
the language of the Act of Parliament (5 & 6 Vict. c. 45)....
It is to be here remarked that the Parliament of Great Britain,
unlike the Congress of the United States, is unlimited in power,
and with the construction and effect placed upon the preamble
of the Act by the Court, there would seem to be little escape
from the conclusion at which the Court arrived. In this country
under the Constitution the power lodged with the Congress is not
unlimited, but is restricted to the promotion of the progress
of science and useful arts. The ruling of the English Court is
therefore not pertinent except as it illustrates the subject."

The Court cited with approval _Baker_ v. _Selden_,[1267] which had expressly approved _Cobbett_ v. _Woodward_,[1268] an English case overruled in _Maple_ v. _Junior Army and Navy Stores_;[1269] they further cited and approved the judgment of Thompson, J., in _Clayton_ v. _Stone_,[1270] quoted above. The judgment concludes with the following paragraph:

"It is possibly not beyond comprehension that pictures of
slop-sinks, wash-bowls, and bath-tubs, with or without letterpress
statement of dimensions and prices, though intended mainly for
advertisement, may in localities where such conveniences are not
in common use, be the means of instruction and of advancement in
knowledge of the arts, and, when they are the products of original
intellectual thought, may possibly come within the scope of the
Constitutional provision. It is enough for the present purpose to
say that, in our judgment, the Congress has not seen fit to enact
a law which can reasonably be given so broad a construction."

[Sidenote: Directories. Dictionaries.]

[Sidenote: Mercantile Statistics.]

[Sidenote: Forms of Application.]

In considering the authority of some of the cases cited below, the judgment in _Mott_ v. _Clow_[1271] must not be lost sight of. It is probable that some of these cases are not in accordance with it, or with the older cases, such as _Clayton_ v. _Stone_[1272] and _Baker_ v. _Selden_[1273] therein expressly approved. Subject to this note of warning, the following may be taken as examples of what have and what have not been accepted as works of art or literature within the scope of the Constitution and the Acts of Congress. Directories[1274] and dictionaries[1275] have both been protected. In the case of the latter, there is copyright in the definitions of the words, however short. A list of the credit ratings of marble, granite, and stone dealers of the United States and Canada was protected in _Ladd_ v. _Oxnard_.[1276] In _Clayton_ v. _Stone_,[1277] which has been approved as sound law,[1278] a daily state of the market was refused protection. A racing guide containing a list of race-horses and statistics as to their age and performances was protected in one case,[1279] and in the other case a list of trotting horses and their paces.[1280] In _Brightley_ v. _Littleton_[1281] a blank form of application for liquor licence was held to be copyright. In _Carlisle_ v. _Colusa County_[1282] copyright was denied to a blank form of property statement for assessment purposes.

This latter decision appears, however, to have been partly on the ground that as the assessors were obliged to issue a form, it would embarrass their duties if forms drawn up by private persons were entitled to copyright.

A circular in pamphlet form used as an advertisement, and explaining a certain method of distribution of coupons to cash purchasers from certain merchants named in the pamphlet, has been held to be the subject of copyright.[1283] The circuit judge, however, in his judgment, says: "It requires some stretch of imagination to say that this pamphlet comes within the purpose of Congress, the encouragement of learning, and the increase of useful knowledge, but the official charged with the duty has granted a copyright to this pamphlet, and his decision is accepted."[1284]

[Sidenote: Dramatic Works.]

Dramatic works[1285] have been protected, although not of a very high literary standard. In _Henderson_ v. _Tompkins_[1286] protection was given to a topical song which was designed merely to amuse. It was sufficient if it accomplished that purpose.

[Sidenote: Law Reports.]

[Sidenote: Statutes.]

Law Reports are protected so far as they consist of original intellectual matter;[1287] the protection may thus extend to the title-page, table of cases, the head notes, the statements of facts, the argument of counsel, the index, the order and arrangement of cases, the numbering and pagination of the volumes, the table of cases cited in the opinions, the subdivision of the index into condensed titles, and the cross references.[1288] The original work of the reporter is alone protected.[1289] In the opinion of the Court there is no copyright;[1290] these constitute part of the law of the land open to all to make use of as they please, and neither the state, the judge, nor the reporter can acquire or confer any conclusive privilege of copying them. The same rule applies to the head notes in those states where they are prepared by the judge.[1291] On the same grounds of public policy no one can have copyright in the statutes;[1292] the legislature of the state cannot confer it on any one.[1293] There may be copyright in the head notes and arrangement of a digest of the statutes.[1294]

[Sidenote: Notes and Additions. New Arithmetic. Adaptations.]

The contents of a book do not require to be entirely new; if partially old there will be copyright _quoad_ the new material or new arrangement.[1295] Thus there is copyright in notes and additions to an old work,[1296] in a new arithmetic combining old material in new form,[1297] in translations,[1298] in the adaptation of an old drama introducing a new title, new dialogue, minor characters, scenery, and dramatic situations with the orchestration and orchestra part songs and music,[1299] and in the dramatization of a novel.[1300]

[Sidenote: Musical Arrangement.]

In one case it was held that the adaptation of a musical piece from the notation suitable to one instrument to that suitable to another was not a sufficiently intellectual process to entitle the adapter to copyright in his adaptations.[1301] It was said that "a mere mechanic could make the adaptation and accompaniment." Since then, however, it has been held that a musical arrangement is the subject of copyright. In _Thomas_ v. _Lennox_[1302] an orchestral accompaniment for a non-copyright oratorio by Gounod was held to be the subject of copyright. In _Carte_ v. _Evans_[1303] an arrangement for the pianoforte of the orchestral score of an opera was held to be copyright.

[Sidenote: New Editions.]

Copyright in new editions runs _quoad_ the new material from the date of the new edition.[1304] The additions or corrections must be of substantial value. A work which is _publici juris_ cannot be reclaimed by colourable and immaterial alterations or additions.[1305]

[Sidenote: Form of Publication.]

[Sidenote: Mechanical Devices.]

[Sidenote: Letter File.]

[Sidenote: Account Book.]

A book need not be a book in the ordinary sense of the word; the word in the Act is not to be construed by reference to lexicographers: "the literary property to be protected by the Act is not to be determined by the size, form, or shape in which it makes its appearance, but by the subject-matter."[1306] A single sheet containing literary matter will be protected as a book.[1307] No doubt, however, the subject to be protected must be _ejusdem generis_ as a book or leaflet. The subject-matter must convey, and the form must be suitably adapted for conveying, information to the reader. The copyright law embraces those things that are printed and published for information and not for use in themselves. Thus what is really a mechanical instrument, and if original entitled to protection under the patent law, will not be protected by the copyright law. In _Amberg File_ v. _Shea_[1308] protection was claimed in a letter file. It was said that the spaces between the index letters were adjusted to the average requirements of the correspondent. These average requirements were ascertained by exhaustive research in different directories. Copyright was refused. In _Baker_ v. _Selden_[1309] blank account books of an original type or pattern were refused protection. The judge in that case drew the distinction between what was a proper subject of the patent laws and what was a proper subject of copyright law--"The object of the one is explanation, the object of the other is use."[1310] In _Drury_ v. _Ewing_[1311] a "ladies' chart for cutting dresses and basques for ladies, and coats, jackets, &c., for boys" was protected. It is almost certain, however, that this decision would not now be accepted as sound. Mere labels will not be protected as copyright works.[1312] They may be protected by registration in the Patent Office.[1313]

[Sidenote: Originality.]

Copyright may be obtained for works of the imagination, or for a mere collection and arrangement of material open to all mankind.[1314] What is meant by originality as a requisite of copyright is that what is claimed as the subject of copyright, whether it be the composition or arrangement of matter, must not have been taken from some literary or artistic work already in existence. It need not be the first of its kind; the same thing may have been done before so as to produce identically the same result.[1315] If the second author, artist, or composer goes about his work independently, searching out his material from the original sources, he is equally entitled to copyright with the first. Herein copyright law differs from the law of patents; in the former there may be two concurrent copyrights in what is identically the same creation, in the latter there can only be one patent, the first inventor being entitled.

[Sidenote: Letters.]

Letters may be the subject of copyright, whether of a business or private nature, and although never intended by the writer to be published as literary productions. In _Folsom_ v. _Marsh_[1316] the letters of George Washington were the subject of controversy. Story, J., in giving judgment, laid down the law as to the property in letters at some length:

"There is no small confusion in the books with reference to the
question of copyright in letters. Some of the _dicta_ seem to
suppose that no copyright can exist except in letters which are
professedly literary, while others again recognise a much more
enlarged and liberal doctrine upon the whole subject. In the
first place I hold that the author of any letter or letters (and
his representatives), whether they are literary compositions or
familiar letters or letters of business, possess the sole and
exclusive copyright therein; and that no persons, neither those
to whom they are addressed nor other persons, have any right
or authority to publish the same upon their own account or for
their own benefit. But consistently with this right the persons
to whom they are addressed may have, nay, must by implication
possess the right to publish any letter or letters addressed to
them upon such occasions as require or justify the publication or
public use of them, but this right is strictly limited to such
occasions. Thus a person may justifiably use and publish in a
suit at law or in equity such letter or letters as are necessary
and proper to establish his right to maintain the suit or defend
the same. So if he be aspersed or misrepresented by the writer or
accused of improper conduct in a public manner, he may publish
such parts of such letter or letters, but no more, as may be
necessary to vindicate his character and his reputation, or free
him from unjust obloquy and reproach. If he attempt to publish
such letter or letters on other occasions not justifiable, a
Court of Equity will prevent the publication by an injunction
as a breach of private confidence or contract or of the rights
of the author, and _a fortiori_ if he attempt to publish them
for profit, for then it is not a mere breach of confidence or
contract, but it is a violation of the exclusive copyright of the
writer. In short, the person to whom letters are addressed has but
a limited right or special property (if I may so call it) in such
letters as a trustee, or bailee for particular purposes, either of
information or of protection or of support of his own rights and
character. The general property and the general rights incident to
property belong to the writer, whether the letters are literary
compositions or familiar letters or details of facts or letters of
business. The general property in the manuscript remains in the
writer and his representatives as well as the general copyright.
_A fortiori_ third persons standing in no privity with either
party are not entitled to publish them to subserve their own
private purposes of interest or curiosity or passion."

It is not quite accurate to say that the receiver of a letter is merely a trustee or bailee for particular purposes. Clearly the receiver of a letter is entitled to destroy it unless there is any express or implied stipulation to the contrary, and probably he can prevent the sender from publishing it by refusing to produce it if it is in his possession.

[Sidenote: No Copyright in Titles.]

As a rule there can be no copyright in a title.[1317] The deposit of the title-page with the Librarian of Congress does not give the author any exclusive right to the use of that title.[1318] A title can only be protected as a trade mark in connection with a particular literary or artistic production which has become known to the public. The public must be shown to be deceived or to be in danger of being deceived.[1319] A title may be protected by registration as a trade mark.[1320]

[Sidenote: Photographs.]

Photographs were first protected by the Statute of March 3, 1865; before then protection was refused to them under the head of prints, cuts, or engravings.[1321] It seems to have been doubted at one time whether the protection of photographs was not _ultra vires_ of the powers conferred by the Constitution. There is certainly an apparent difficulty in bringing a photograph within the expression "writings" used in the Constitution; but this word has received an extremely wide and liberal construction, and has been held to be capable of including any literary or artistic production of the intellect. Photographs have been now frequently protected, but it is not every photograph that will be protected, there must be some evidence that the photographer has exercised an intellectual choice of subject-matter, expression, arrangement, light, or other circumstances or conditions which go to the production of an artistic photograph.[1322] It will be a question of fact for the Court or jury whether the photograph is a mere manual reproduction of subject-matter or an original work of art.[1323] In a portrait there may be copyright in so far as the photographer has relied on his own judgment for the choice of light, background, pose, or attitude.[1324] In one case the photograph of a yacht under sail was protected. It required the photographer to select and utilise the best effects of light, cloud, water, and general surroundings, and combine them under favourable conditions for depicting vividly and accurately the view of a yacht under sail.[1325]

A slight colourable alteration in a non-copyright photograph will not entitle it to copyright.[1326]

[Sidenote: Engravings.]

Engravings, cuts, and prints will be protected,[1327] but there must be at least some merit in them as artistic or instructive productions. Thus the prints of common articles of household use in a tradesmen's catalogue,[1328] drawings of billiard tables in a similar catalogue,[1329] a card of specimen colours and tints of zinc paints,[1330] and a poster with coloured drawings of a circus performance[1331] have all been refused protection. If there is real artistic merit in a drawing it will not be disentitled to protection merely on the ground that it has been used as an advertisement.[1332]

It has been held that playing cards printed in colours are entitled to protection as "prints."[1333]

[Sidenote: Pictures.]

The Act of June 18, 1874, enacts that the protection of the Copyright Acts conferred on "engravings," "cuts," and "prints" shall not extend to prints or labels designed to be used for any articles of manufacture. This Act cannot be evaded by attempting to copyright the picture or drawing from which the label is designed. In _Schumacher_ v. _Wogram_[1334] the Court refused protection under the Copyright Acts to a picture representing a young woman holding a bouquet of flowers intended to be reproduced on labels for cigar boxes. The reason for refusing protection of the copyright law to such productions is that their only real value is as a trade mark connected with a particular article of manufacture.[1335] They are not designed in themselves to instruct or amuse. As trade marks they will be protected if registered in the Patent Office. The fact that a picture could be readily lithographed and used as a label does not deprive it of copyright;[1336] it must in order to lose its copyright have been made with the intention of being used as a label. If the painting itself were to be considered a label because copies might be so used, no masterpiece would be entitled to copyright. A painting, engraving, or print in order to be protected must be a pictorial representation of something and not merely a design.[1337]