U.S. Supreme Court Bleistein v. Donaldson Lithographing
Co., 188
U.S. 239 (1903) Bleistein v. Donaldson Lithographing
Company No. 117 Decided February 2,
1903 188
U.S. 239 ERROR TO THE CIRCUIT COURT
OF APPEALS FOR THE SIXTH
CIRCUIT Syllabus Chromolithographs representing actual groups of persons and
things, which have been designed from hints or descriptions of the
scenes represented, and which are to be used as advertisements for
a circus are "pictorial illustrations" within the meaning of
Rev.Stat. § 4962, allowing a copyright to the "author, designer, or
proprietor . . . of any engraving, cut, print, . . . or chromo" as
affected by the act of 1874, c. 301, § 3, 18 Stat. 78, 79. And on
complying with all the statutory requirements, the proprietors are
entitled to the protection of the copyright laws.

															The case is stated in the opinion of the Court. Page 188 U. S. 248 MR. JUSTICE HOLMES delivered the opinion of the Court.

															This case comes here from the United States Circuit Court of
Appeals for the Sixth Circuit by writ of error. Act of March 3,
1891, 26 Stat. 828, s. 517, § 6. It is an action brought by the
plaintiffs in error to recover the penalties prescribed for
infringements of copyrights. Rev.Stat. §§ 4952, 4956, 4965, amended
by Act of March 3, 1891, 26 Stat. 1109, c. 565, and Act of March 2,
1895, 28 Stat. 965, c. 194. The alleged infringements consisted in
the copying in reduced form of three chromolithographs prepared by
employees of the plaintiffs for advertisements of a circus owned by
one Wallace. Each of the three contained a portrait of Wallace in
the corner, and lettering bearing some slight relation to the
scheme of decoration, indicating the subject of the design and the
fact that the reality was to be seen at the circus. One of the
designs was of an ordinary ballet, one of a number of men and
women, described as the Stirk family, performing on bicycles, and
one of groups of men and women whitened to represent statues. The
circuit court directed a verdict for the defendant on the ground
that the chromolithographs were not within the protection of the
copyright law, and this ruling was sustained by the circuit court
of appeals. Courier Lithographing Co. v. Donaldson
Lithographing Co., 104 F. 993.

															There was evidence warranting the inference that the designs
belonged to the plaintiffs, they having been produced by persons
employed and paid by the plaintiffs in their establishment to make
those very things. Gill v. United States, 160 U.
S. 426 , Page 188 U. S. 249 160 U. S. 435 ; Colliery Engineer Company v. United Correspondence Schools
Company, 94 F. 152; Carte v. Evans, 27 F. 861. It
fairly might be found also that the copyrights were taken out in
the proper names. One of them was taken out in the name of the
Courier Company and the other two in the name of the Courier
Lithographing Company. The former was the name of an unincorporated
joint-stock association formed under the laws of New York, Laws of
1894, c. 235, and made up of the plaintiffs, the other a trade
variant on that name. Scribner v. Clark, 50 F. 473, 474,
475, S.C. sub nom. Belford v. Scribner, 144 U.
S. 488 .

															Finally, there was evidence that the pictures were copyrighted
before publication. There may be a question whether the use by the
defendant for Wallace was not lawful within the terms of the
contract with Wallace, or a more general one as to what rights the
plaintiff reserved. But we cannot pass upon these questions as
matter of law; they will be for the jury when the case is tried
again, and therefore we come at once to the ground of decision in
the courts below. That ground was not found in any variance between
pleading and proof, such as was put forward in argument, but in the
nature and purpose of the designs.

															We shall do no more than mention the suggestion that painting
and engraving, unless for a mechanical end, are not among the
useful arts, the progress of which Congress is empowered by the
Constitution to promote. The Constitution does not limit the useful
to that which satisfies immediate bodily needs. Burrow-Giles
Lithographic Co. v. Sarony, 111 U. S. 53 . It is
obvious also that the plaintiff's case is not affected by the fact,
if it be one, that the pictures represent actual groups -- visible
things. They seem from the testimony to have been composed from
hints or description, not from sight of a performance. But even if
they had been drawn from the life, that fact would not deprive them
of protection. The opposite proposition would mean that a portrait
by Velasquez or Whistler was common property because others might
try their hand on the same face. Others are free to copy the
original. They are not free to copy the copy. Blunt v.
Patten, 2 Paise 397, 400. See Kelly v. Page 188 U. S. 250 Morris, L.R. 1 Eq. 697; Morris v. Wright, L.R.
5 Ch. 279. The copy is the personal reaction of an individual upon
nature. Personality always contains something unique. It expresses
its singularity even in handwriting, and a very modest grade of art
has in it something irreducible which is one man's alone. That
something he may copyright unless there is a restriction in the
words of the act.

															If there is a restriction, it is not to be found in the limited
pretensions of these particular works. The least pretentious
picture has more originality in it than directories and the like,
which may be copyrighted. Drone, Copyright 153. See Henderson
v. Tompkins, 60 F. 758, 765. The amount of training required
for humbler efforts than those before us is well indicated by
Ruskin.

															"If any young person, after being taught what is, in polite
circles, called 'drawing,' will try to copy the commonest piece of
real work -- suppose a lithograph on the title page of a new opera
air, or a woodcut in the cheapest illustrated newspaper of the day
-- they will find themselves entirely beaten."

															Elements of Drawing, first ed. 3. There is no reason to doubt
that these prints, in their ensemble and in all their
details, in their design and particular combinations of figures,
lines, and colors, are the original work of the plaintiffs'
designer. If it be necessary, there is express testimony to that
effect. It would be pressing the defendant's right to the verge, if
not beyond, to leave the question of originality to the jury upon
the evidence in this case, as was done in Hegeman v.
Springer, 110 F. 374.

															We assume that the construction of Rev.Stat. § 4952, allowing a
copyright to the "author, designer, or proprietor . . . of any
engraving, cut, print . . . [or] chromo," is affected by the act of
1874, 18 Stat. 78, 79, c. 301, § 3. That section provides that,

															"in the construction of this act, the words 'engraving,' 'cut,'
and 'print' shall be applied only to pictorial illustrations or
works connected with the fine arts."

															We see no reason for taking the words "connected with the fine
arts" as qualifying anything except the word "works," but it would
not change our decision if we should assume further that they also
qualified "pictorial illustrations," as the defendant contends. Page 188 U. S. 251 These chromolithographs are "pictorial illustrations." The word
"illustrations" does not mean that they must illustrate the text of
a book, and that the etchings of Rembrandt or Muller's engraving of
the Madonna di San Sisto could not be protected today if any man
were able to produce them. Again, the act, however construed, does
not mean that ordinary posters are not good enough to be considered
within its scope. The antithesis to "illustrations or works
connected with the fine arts" is not works of little merit or of
humble degree, or illustrations addressed to the less educated
classes; it is "prints or labels designed to be used for any other
articles of manufacture." Certainly works are not the less
connected with the fine arts because their pictorial quality
attracts the crowd, and therefore gives them a real use -- if use
means to increase trade and to help to make money. A picture is
nonetheless a picture, and nonetheless a subject of copyright, that
it is used for an advertisement. And if pictures may be used to
advertise soap, or the theater, or monthly magazines, as they are,
they may be used to advertise a circus. Of course, the ballet is as
legitimate a subject for illustration as any other. A rule cannot
be laid down that would excommunicate the paintings of Degas.

															Finally, the special adaptation of these pictures to the
advertisement of the Wallace shows does not prevent a copyright.
That may be a circumstance for the jury to consider in determining
the extent of Mr. Wallace's rights, but it is not a bar. Moreover,
on the evidence, such prints are used by less pretentious
exhibitions when those for whom they were prepared have given them
up.

															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. At the one extreme, some works of genius would be sure to
miss appreciation. Their very novelty would make them repulsive
until the public had learned the new language in which their author
spoke. It may be more than doubted, for instance, whether the
etchings of Goya or the paintings of Manet would have been sure of
protection when seen for the first time. At the other end,
copyright would be denied to Page 188 U. S. 252 pictures which appealed to a public less educated than the
judge. Yet if they command the interest of any public, they have a
commercial value -- it would be bold to say that they have not an
aesthetic and educational value -- and the taste of any public is
not to be treated with contempt. It is an ultimate fact for the
moment, whatever may be our hopes for a change. That these pictures
had their worth and their success is sufficiently shown by the
desire to reproduce them without regard to the plaintiffs' rights. See Henderson v. Tompkins, 60 F. 758, 765. We are of
opinion that there was evidence that the plaintiffs have rights
entitled to the protection of the law. The judgment of the circuit court of appeals is reversed;
the judgment of the circuit court is also reversed, and the cause
remanded to that court with directions to set aside the verdict and
grant a new trial. MR. JUSTICE HARLAN, dissenting:

															Judges Lurton, Day, and Severens, of the circuit court of
appeals, concurred in affirming the judgment of the district court.
Their views were thus expressed in an opinion delivered by Judge
Lurton:

															"What we hold is this: that if a chromo, lithograph, or other
print, engraving, or picture has no other use than that of a mere
advertisement, and no value aside from this function, it would not
be promotive of the useful arts within the meaning of the
constitutional provision, to protect the 'author' in the exclusive
use thereof, and the copyright statute should not be construed as
including such a publication if any other construction is
admissible. If a mere label simply designating or describing an
article to which it is attached, and which has no value separated
from the article, does not come within the constitutional clause
upon the subject of copyright, it must follow that a pictorial
illustration designed and useful only as an advertisement, and
having no intrinsic value other than its function as an
advertisement, must be equally without the obvious meaning of the
Constitution. Page 188 U. S. 253 It must have some connection with the fine arts to give it
intrinsic value, and that it shall have is the meaning which we
attach to the Act of June 18, 1874, amending the provisions of the
copyright law. We are unable to discover anything useful or
meritorious in the design copyrighted by the plaintiffs in error
other than as an advertisement of acts to be done or exhibited to
the public in Wallace's show. No evidence, aside from the
deductions which are to be drawn from the prints themselves, was
offered to show that these designs had any original artistic
qualities. The jury could not reasonably have found merit or value
aside from the purely business object of advertising a show, and
the instruction to find for the defendant was not error. Many other
points have been urged as justifying the result reached in the
court below. We find it unnecessary to express any opinion upon
them in view of the conclusion already announced. The judgment must
be affirmed." Courier Lithographing Co. v. Donaldson Lithographing
Co., 104 F. 993, 996.

															I entirely concur in these views, and therefore dissent from the
opinion and judgment of this Court. The clause of the Constitution
giving Congress power to promote the progress of science and useful
arts, by securing for limited terms to authors and inventors the
exclusive right to their respective works and discoveries, does
not, as I think, embrace a mere advertisement of a circus.

															MR. JUSTICE McKENNA authorizes me to say that he also
dissents.

Summary: The case of Bleistein v. Donaldson Lithographing Co. (1903) concerned the copyright protection of chromolithographs, which were designed as advertisements for a circus. The Supreme Court held that these chromolithographs were considered "pictorial illustrations" under the copyright law and were therefore eligible for copyright protection. The Court reversed the lower court's decision and ruled that the plaintiffs, who owned the rights to the chromolithographs, were entitled to protection under the copyright law. The dissenting opinion argued that mere advertisements for a circus should not be protected under the Constitution's clause on copyrights.


U.S. Supreme Court Baker v. Selden, 101 U.S.
99 (1879) Baker v. Selden 101 U.S.
99 APPEAL FROM THE CIRCUIT COURT OF
THE UNITED STATES FOR THE SOUTHERN DISTRICT OF
OHIO Syllabus 1. A claim to the exclusive property in a peculiar system of
bookkeeping cannot, under the law of copyright, be maintained by
the author of a treatise in which that system is exhibited and
explained.

															2. The difference between a copyright and letters patent stated
and illustrated.

															The facts are stated in the opinion of the Court.

															MR. JUSTICE BRADLEY delivered the opinion of the Court.

															Charles Selden, the testator of the complainant in this case, in
the year 1859 took the requisite steps for obtaining the
copyright Page 101 U. S. 100 of a book, entitled "Selden's Condensed Ledger, or Bookkeeping
Simplified," the object of which was to exhibit and explain a
peculiar system of bookkeeping. In 1860 and 1861, he took the
copyright of several other books, containing additions to and
improvements upon the said system. The bill of complaint was filed
against the defendant, Baker, for an alleged infringement of these
copyrights. The latter, in his answer, denied that Selden was the
author or designer of the books, and denied the infringement
charged, and contends on the argument that the matter alleged to be
infringed is not a lawful subject of copyright.

															The parties went into proofs, and the various books of the
complainant, as well as those sold and used by the defendant, were
exhibited before the examiner, and witnesses were examined to both
sides. A decree was rendered for the complainant, and the defendant
appealed.

															The book or series of books of which the complainant claims the
copyright consists of an introductory essay explaining the system
of bookkeeping referred to, to which are annexed certain forms or
banks, consisting of ruled lines, and headings, illustrating the
system and showing how it is to be used and carried out in
practice. This system effects the same results as bookkeeping by
double entry, but, by a peculiar arrangement of columns and
headings, presents the entire operation, of a day, a week, or a
month on a single page or on two pages facing each other, in an
account book. The defendant uses a similar plan so far as results
are concerned, but makes a different arrangement of the columns,
and uses different headings. If the complainant's testator had the
exclusive right to the use of the system explained in his book, it
would be difficult to contend that the defendant does not infringe
it, notwithstanding the difference in his form of arrangement; but
if it be assumed that the system is open to public use, it seems to
be equally difficult to contend that the books made and sold by the
defendant are a violation of the copyright of the complainant's
book considered merely as a book explanatory of the system. Where
the truths of a science or the methods of an art are the common
property of the whole world, any author has the right to express
the one, or explain and use the other, in Page 101 U. S. 101 his own way. As an author, Selden explained the system in a
particular way. It may be conceded that Baker makes and uses
account books arranged on substantially the same system, but the
proof fails to show that he has violated the copyright of Selden's
book, regarding the latter merely as an explanatory work, or that
he has infringed Selden's right in any way, unless the latter
became entitled to an exclusive right in the system.

															The evidence of the complainant is principally directed to the
object of showing that Baker uses the same system as that which is
explained and illustrated in Selden's books. It becomes important,
therefore, to determine whether, in obtaining the copyright of his
books, he secured the exclusive right to the use of the system or
method of bookkeeping which the said books are intended to
illustrate and explain. It is contended that he has secured such
exclusive right because no one can use the system without using
substantially the same ruled lines and headings which he was
appended to his books in illustration of it. In other words, it is
contended that the ruled lines and headings, given to illustrate
the system, are a part of the book, and as such are secured by the
copyright, and that no one can make or use similar ruled lines and
headings, or ruled lines and headings made and arranged on
substantially the same system, without violating the copyright. And
this is really the question to be decided in this case. Stated in
another form, the question is whether the exclusive property in a
system of bookkeeping can be claimed under the law or copyright by
means of a book in which that system is explained? The
complainant's bill, and the case made under it, are based on the
hypothesis that it can be.

															It cannot be pretended, and indeed it is not seriously urged,
that the ruled lines of the complainant's account book can be
claimed under any special class of objects, other than books, named
in the law of copyright existing in 1859. The law then in force was
that of 1831, and specified only books, maps, charts, musical
compositions, prints, and engravings. An account book, consisting
of ruled lines and blank columns, cannot be called by any of these
names unless by that of a book.

															There is no doubt that a work on the subject of bookkeeping, Page 101 U. S. 102 though only explanatory of well known systems, may be the
subject of a copyright, but then it is claimed only as a book. Such
a book may be explanatory either of old systems or of an entirely
new system, and, considered as a book, as the work of an author,
conveying information on the subject of bookkeeping, and containing
detailed explanations of the art, it may be a very valuable
acquisition to the practical knowledge of the community. But there
is a clear distinction between the book as such and the art which
it is intended to illustrate. The mere statement of the proposition
is so evident that it requires hardly any argument to support it.
The same distinction may be predicated of every other art as well
as that of bookkeeping. A treatise on the composition and use of
medicines, be they old or new; on the construction and use of
ploughs, or watches, or churns; or on the mixture and application
of colors for painting or dyeing; or on the mode of drawing lines
to produce the effect of perspective -- would be the subject of
copyright; but no one would contend that the copyright of the
treatise would give the exclusive right to the art or manufacture
described therein. The copyright of the book, if not pirated from
other works, would be valid without regard to the novelty, or want
of novelty, of its subject matter. The novelty of the art or thing
described or explained has nothing to do with the validity of the
copyright. To give to the author of the book an exclusive property
in the art described therein when no examination of its novelty has
ever been officially made would be a surprise and a fraud upon the
public. That is the province of letters patent, not of copyright.
The claim to an invention or discovery of an art or manufacture
must be subjected to the examination of the Patent Office before an
exclusive right therein can be obtained, and it can only be secured
by a patent from the government.

															The difference between the two things, letters patent and
copyright, may be illustrated by reference to the subjects just
enumerated. Take the case of medicines. Certain mixtures are found
to be of great value in the healing art. If the discoverer writes
and publishes a book on the subject (as regular physicians
generally do), he gains no exclusive right to the manufacture and
sale of the medicine; he gives that to the Page 101 U. S. 103 public. If he desires to acquire such exclusive right, he must
obtain a patent for the mixture as a new art, manufacture, or
composition of matter. He may copyright his book if he pleases, but
that only secures to him the exclusive right of printing and
publishing his book. So of all other inventions or discoveries.

															The copyright of a book on perspective, no matter how many
drawings and illustrations it may contain, gives no exclusive right
to the modes of drawing described, though they may never have been
known or used before. By publishing the book without getting a
patent for the art, the latter is given to the public. The fact
that the art described in the book by illustrations of lines and
figures which are reproduced in practice in the application of the
art makes no difference. Those illustrations are the mere language
employed by the author to convey his ideas more clearly. Had he
used words of description instead of diagrams (which merely stand
in the place of words), there could not be the slightest doubt that
others, applying the art to practical use, might lawfully draw the
lines and diagrams which were in the author's mind, and which he
thus described by words in his book.

															The copyright of a work on mathematical science cannot give to
the author an exclusive right to the methods of operation which he
propounds, or to the diagrams which he employs to explain them, so
as to prevent an engineer from using them whenever occasion
requires. The very object of publishing a book on science or the
useful arts is to communicate to the world the useful knowledge
which it contains. But this object would be frustrated if the
knowledge could not be used without incurring the guilt of piracy
of the book. And where the art it teaches cannot be used without
employing the methods and diagrams used to illustrate the book, or
such as are similar to them, such methods and diagrams are to be
considered as necessary incidents to the art, and given therewith
to the public -- not given for the purpose of publication in other
works explanatory of the art, but for the purpose of practical
application.

															Of course these observations are not intended to apply to
ornamental designs or pictorial illustrations addressed to the
taste. Of these it may be said that their form is their
essence, Page 101 U. S. 104 and their object, the production of pleasure in their
contemplation. This is their final end. They are as much the
product of genius and the result of composition as are the lines of
the poet or the historian's period. On the other hand, the
teachings of science and the rules and methods of useful art have
their final end in application and use, and this application and
use are what the public derive from the publication of a book which
teaches them. But as embodied and taught in a literary composition
or book, their essence consists only in their statement. This alone
is what is secured by the copyright. The use by another of the same
methods of statement, whether in words or illustrations, in a book
published for teaching the art would undoubtedly be an infringement
of the copyright.

															Recurring to the case before us, we observe that Charles Selden,
by his books, explained and described a peculiar system of
bookkeeping, and illustrated his method by means of ruled lines and
blank columns, with proper headings on a page or on successive
pages. Now whilst no one has a right to print or publish his book,
or any material part thereof, as a book intended to convey
instruction in the art, any person may practice and use the art
itself which he has described and illustrated therein. The use of
the art is a totally different thing from a publication of the book
explaining it. The copyright of a book on bookkeeping cannot secure
the exclusive right to make, sell, and use account books prepared
upon the plan set forth in such book. Whether the art might or
might not have been patented is a question which is not before us.
It was not patented, and is open and free to the use of the public.
And of course, in using the art, the ruled lines and headings of
accounts must necessarily be used as incident to it.

															The plausibility of the claim put forward by the complainant in
this case arises from a confusion of ideas produced by the peculiar
nature of the art described in the books which have been made the
subject of copyright. In describing the art, the illustrations and
diagrams employed happen to correspond more closely than usual with
the actual work performed by the operator who uses the art. Those
illustrations and diagrams consist of ruled lines and headings of
accounts, and Page 101 U. S. 105 it is similar ruled lines and headings of accounts which, in the
application of the art, the bookkeeper makes with his pen, or the
stationer with his press, whilst in most other cases the diagrams
and illustrations can only be represented in concrete forms of
wood, metal, stone, or some other physical embodiment. But the
principle is the same in all. The description of the art in a book,
though entitled to the benefit of copyright, lays no foundation for
an exclusive claim to the art itself. The object of the one is
explanation; the object of the other is use. The former may be
secured by copyright. The latter can only be secured, if it can be
secured at all, by letters patent.

															The remarks of Mr. Justice Thompson in the circuit court in Clayton v. Stone & Hall, 2 Paine 392, in which
copyright was claimed in a daily price-current, are apposite and
instructive. He says:

															"In determining the true construction to be given to the act of
Congress, it is proper to look at the Constitution of the United
States to aid us in ascertaining the nature of the property
intended to be protected. 'Congress shall have power to promote the
progress of science and useful arts, by securing for limited times
to authors and inventors the exclusive right to their writings and
discoveries.' The act in question was passed in execution of the
power here given, 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. Although great praise may be due to the plaintiffs for their
industry and enterprise in publishing this paper, yet the law does
not contemplate their being rewarded in this way; it must seek
patronage and protection from its utility to the public, and not a
work of science. 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. . . . We are accordingly of opinion that the paper in
question is not Page 101 U. S. 106 a book the copyright to which can be secured under the act of
Congress."

															The case of Cobbett v. Woodward, Law Rep. 14 Eq. 407,
was a claim to copyright in a catalogue of furniture which the
publisher had on sale in his establishment, illustrated with many
drawings of furniture and decorations. The defendants, being
dealers in the same business, published a similar book, and copied
many of the plaintiff's drawings, though it was shown that they had
for sale the articles represented thereby.

															The court held that these drawings were not subjects of
copyright. Lord Romilly, M.R., said:

															"This is a mere advertisement for the sale of particular
articles which any one might imitate, and any one might advertise
for sale. If a man not being a vendor of any of the articles in
question were to publish a work for the purpose of informing the
public of what was the most convenient species of articles for
household furniture, or the most graceful species of decorations
for articles of home furniture, what they ought to cost, and where
they might be bought, and were to illustrate his work with designs
of each article he described -- such a work as this could not be
pirated with impunity, and the attempt to do so would be stopped by
the injunction of the Court of Chancery; yet if it were done with
no such object, but solely for the purpose of advertising
particular articles for sale, and promoting the private trade of
the publisher by the sale of articles which any other person might
sell as well as the first advertiser, and if in fact it contained
little more than an illustrated inventory of the contents of a
warehouse, I know of no law which, while it would not prevent the
second advertiser from selling the same articles, would prevent him
from using the same advertisement, provided he did not in such
advertisement by any device suggest that he was selling the works
and designs of the first advertiser."

															Another case, that of Page v. Wisden, 20 L.T.N.S. 435,
which came before Vice-Chancellor Malins in 1869, has some
resemblance to the present. There, a copyright was claimed in a
cricket scoring sheet, and the Vice-Chancellor held that it was not
a fit subject for copyright, partly because it was not new, but
also because "to say that a particular Page 101 U. S. 107 mode of ruling a book constituted an object for a copyright is
absurd."

															These cases, if not precisely in point, come near to the matter
in hand, and, in our view, corroborate the general proposition
which we have laid down.

															In Drury v. Ewing, 1 Bond, 540, which is much relied on
by the complainant, a copyright was claimed in a chart of patterns
for cutting dresses and basques for ladies, and coats, jackets,
&c., for boys. It is obvious that such designs could only be
printed and published for information, and not for use in
themselves. Their practical use could only be exemplified in cloth
on the tailor's board and under his shears -- in other words, by
the application of a mechanical operation to the cutting of cloth
in certain patterns and forms. Surely the exclusive right to this
practical use was not reserved to the publisher by his copyright of
the chart. Without undertaking to say whether we should or should
not concur in the decision in that case, we think it cannot control
the present.

															The conclusion to which we have come is that blank account books
are not the subject of copyright, and that the mere copyright of
Selden's book did not confer upon him the exclusive right to make
and use account books, ruled and arranged as designated by him and
described and illustrated in said book.

															The decree of the circuit court must be reversed and the cause
remanded with instructions to dismiss the complainant's bill, and
it is So ordered.

Summary: In Baker v. Selden, the U.S. Supreme Court ruled that a copyright does not give its owner the exclusive right to use a specific system or method of doing something, but only the right to print, publish, and use the book in which the system or method is explained. The case specifically dealt with a copyrighted book explaining a unique system of bookkeeping, and the Court decided that while the book itself was protected by copyright, the system it described was not, and others were free to use and publish blank account books based on that system.


U.S. Supreme Court Burrow-Giles Lithographic Company v.
Sarony, 111 U.S.
53 (1884) Burrow-Giles Lithographic Company v.
Sarony Submitted December 13,
1883 Decided March 17,
1884 111 U.S.
53 I N ERROR TO THE CIRCUIT COURT OF THE
UNITED STATES FOR THE SOUTHERN DISTRICT OF
NEW YORK Syllabus It is within the constitutional power of Congress to confer upon
the author, inventor, designer, or proprietor of a photograph the
rights conferred by Rev.Stat. § 4952, so far as the photograph is a
representation of original intellectual conceptions.

															The object of the requirement in the Act of June 18, 1874, 18
Stat. 78, that notice of a copyright in a photograph shall be given
by inscribing upon some visible portion of it the words Copyright,
the date, and the name of the proprietor, is to give notice of the
copyright to the public, and a notice which gives his surname and
the initial letter of his given name is sufficient inscription of
the name.

															Whether a photograph is a mere mechanical reproduction or an
original work of art is a question to be determined by proof of the
facts of originality, of intellectual production, and of thought
and conception on the part of the author, and when the copyright is
disputed, it is important to establish those facts.

															This was a suit for an infringement of a copyright in a
photograph of one Oscar Wilde. The defense denied the
constitutional right of Congress to confer rights of authorship
on Page 111 U. S. 54 the maker of a photograph, and also denied that the surname of
the proprietor with the initial letter of his given name prefixed
to it ("N. Sarony") inscribed on the photograph was a compliance
with the provisions of the Act of June 18, 1874. 18 Stat. 78. The
essential facts appear in the opinion of the Court. The judgment
below was for the plaintiff. The writ of error was sued out by the
defendant.

															MR. JUSTICE MILLER delivered the opinion of the Court.

															This is a writ of error to the Circuit Court for the Southern
District of New York.

															Plaintiff is a lithographer, and defendant a photographer, with
large business in those lines in the City of New York. The suit was
commenced by an action at law in which Sarony was plaintiff and the
lithographic company was defendant, the plaintiff charging the
defendant with violating his copyright in regard to a photograph,
the title of which is "Oscar Wilde, No. 18." A jury being waived,
the court made a finding of facts on which a judgment in favor of
the plaintiff was rendered for the sum of $600 for the plates and
85,000 copies sold and exposed to sale, and $10 for copies found in
his possession, as penalties under section 4965 of the Revised
Statutes. Among the finding of facts made by the court, the
following presents the principal question raised by the assignment
of errors in the case:

															"3. That the plaintiff, about the month of January, 1882, under
an agreement with Oscar Wilde, became and was the author, inventor,
designer, and proprietor of the photograph in suit, the title of
which is 'Oscar Wilde, No. 18,' being the number used to designate
this particular photograph and of the negative thereof; that the
same is a useful, new, harmonious, characteristic, and graceful
picture, and that said plaintiff made the same at his place of
business in said City of New York, and within the United States,
entirely from his own Page 111 U. S. 55 original mental conception, to which he gave visible form by
posing the said Oscar Wilde in front of the camera, selecting and
arranging the costume, draperies, and other various accessories in
said photograph, arranging the subject so as to present graceful
outlines, arranging and disposing the light and shade, suggesting
and evoking the desired expression, and from such disposition,
arrangement, or representation, made entirely by the plaintiff, he
produced the picture in suit, Exhibit A, April 14, 1882, and that
the terms 'author,' 'inventor,' and 'designer,' as used in the art
of photography and in the complaint, mean the person who so
produced the photograph."

															Other findings leave no doubt that plaintiff had taken all the
steps required by the act of Congress to obtain copyright of this
photograph, and section 4952 names photographs, among other things,
for which the author, inventor, or designer may obtain copyright,
which is to secure him the sole privilege of reprinting,
publishing, copying, and vending the same. That defendant is
liable, under that section and section 4965, there can be no
question if those sections are valid as they relate to
photographs.

															Accordingly, the two assignments of error in this Court by
plaintiff in error are:

															1. That the court below decided that Congress had and has the
constitutional right to protect photographs and negatives thereof
by copyright.

															The second assignment related to the sufficiency of the words
"Copyright, 1882, by N. Sarony," in the photographs, as a notice of
the copyright of Napoleon Sarony under the act of Congress on that
subject.

															With regard to this latter question, it is enough to say that
the object of the statute is to give notice of the copyright to the
public by placing upon each copy, in some visible shape, the name
of the author, the existence of the claim of exclusive right, and
the date at which this right was obtained.

															This notice is sufficiently given by the words "Copyright, 1882,
by N. Sarony," found on each copy of the photograph. It clearly
shows that a copyright is asserted, the date of which is 1882, and
if the name Sarony alone was used, it would be a Page 111 U. S. 56 sufficient designation of the author until it is shown that
there is some other Sarony.

															When, in addition to this, the initial letter of the Christian
name Napoleon is also given, the notice is complete.

															The constitutional question is not free from difficulty.

															The eighth section of the first article of the Constitution is
the great repository of the powers of Congress, and by the eight
clause of that section Congress is authorized

															"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."

															The argument here is that a photograph is not a writing nor the
production of an author. Under the acts of Congress designed to
give effect to this section, the persons who are to be benefited
are divided into two classes -- authors and inventors. The monopoly
which is granted to the former is called a copyright; that given to
the latter, letters patent, or, in the familiar language of the
present day, patent right.

															We have then copyright and patent right, and it is the first of
these under which plaintiff asserts a claim for relief.

															It is insisted in argument that, a photograph being a
reproduction, on paper, of the exact features of some natural
object or of some person, is not a writing of which the producer is
the author.

															Section 4952 of the Revised Statutes places photographs in the
same class as things which may be copyrighted with

															"books, maps, charts, dramatic or musical compositions,
engravings, cuts, prints, paintings, drawings, statues, statuary,
and models or designs intended to be perfected as works of the fine
arts."

															"According to the practice of legislation in England and
America," says Judge Bouvier, 2 Law Dictionary 363,

															"the copyright is confined to the exclusive right secured to the
author or proprietor of a writing or drawing which may be
multiplied by the arts of printing in any of its branches."

															The first Congress of the United States, sitting immediately
after the formation of the Constitution, enacted that the

															"author or authors of any map, chart, book, or books, being
a Page 111 U. S. 57 citizen or resident of the United States, shall have the sole
right and liberty of printing, reprinting, publishing, and vending
the same for the period of fourteen years from the recording of the
title thereof in the clerk's office, as afterwards directed."

															1 Stat. 124, 1.

															This statute not only makes maps and charts subjects of
copyright, but mentions them before books in the order of
designation. The second section of an act to amend this act,
approved April 29, 1802, 2 Stat. 171, enacts that from the first
day of January thereafter, he who shall invent and design, engrave,
etch, or work, or from his own works shall cause to be designed and
engraved, etched, or worked, any historical or other print or
prints shall have the same exclusive right for the term of fourteen
years from recording the title thereof as prescribed by law.

															By the first section of the Act of February 3, 1831, 4 Stat.
436, entitled "An act to amend the several acts respecting
copyright, musical compositions, and cuts, in connection with
prints and engravings," are added, and the period of protection is
extended to twenty-eight years. The caption or title of this act
uses the word "copyright" for the first time in the legislation of
Congress.

															The construction placed upon the Constitution by the first act
of 1790 and the act of 1802, by the men who were contemporary with
its formation, many of whom were members of the convention which
framed it, is of itself entitled to very great weight, and when it
is remembered that the rights thus established have not been
disputed during a period of nearly a century, it is almost
conclusive.

															Unless, therefore, photographs can be distinguished in the
classification of this point from the maps, charts, designs,
engravings, etchings, cuts, and other prints, it is difficult to
see why Congress cannot make them the subject of copyright as well
as the others.

															These statutes certainly answer the objection that books only,
or writing, in the limited sense of a book and its author, are
within the constitutional provision. Both these words are
susceptible of a more enlarged definition than this. An author
in Page 111 U. S. 58 that sense is "he to whom anything owes its origin; originator;
maker; one who completes a work of science or literature."
Worcester. So also no one would now claim that the word "writing"
in this clause of the Constitution, though the only word used as to
subjects in regard to which authors are to be secured, is limited
to the actual script of the author, and excludes books and all
other printed matter. By writings in that clause is meant the
literary productions of those authors, and Congress very properly
has declared these to include all forms of writing, printing,
engravings, etchings, etc., by which the ideas in the mind of the
author are given visible expression. The only reason why
photographs were not included in the extended list in the act of
1802 is probably that they did not exist, as photography, as an
art, was then unknown, and the scientific principle on which it
rests, and the chemicals and machinery by which it is operated,
have all been discovered long since that statute was enacted.

															Nor is it supposed that the framers of the Constitution did not
understand the nature of copyright and the objects to which it was
commonly applied, for copyright, as the exclusive right of a man to
the production of his own genius or intellect, existed in England
at that time, and the contest in the English courts, finally
decided, by a very close vote in the House of Lords, whether the
statute of 8 Anne, c.19, which authorized copyright for a limited
time, was a restraint to that extent on the common law or not, was
then recent. It had attracted much attention, as the judgment of
the King's Bench, delivered by Lord Mansfield, holding it was not
such a restraint, in Millar v. Taylor, 4 Burrows 2303,
decided in 1769, was overruled on appeal in the House of Lords in
1774. Id., 2408. In this and other cases, the whole
question of the exclusive right to literary and intellectual
productions had been freely discussed.

															We entertain no doubt that the Constitution is broad enough to
cover an act authorizing copyright of photographs, so far as they
are representatives of original intellectual conceptions of the
author.

															But it is said that an engraving, a painting, a print, does
embody Page 111 U. S. 59 the intellectual conception of its author, in which there is
novelty, invention, originality, and therefore comes within the
purpose of the Constitution in securing its exclusive use or sale
to its author, while a photograph is the mere mechanical
reproduction of the physical features or outlines of some object,
animate or inanimate, and involves no originality of thought or any
novelty in the intellectual operation connected with its visible
reproduction in shape of a picture. That while the effect of light
on the prepared plate may have been a discovery in the production
of these pictures, and patents could properly be obtained for the
combination of the chemicals, for their application to the paper or
other surface, for all the machinery by which the light reflected
from the object was thrown on the prepared plate, and for all the
improvements in this machinery, and in the materials, the remainder
of the process is merely mechanical, with no place for novelty,
invention, or originality. It is simply the manual operation, by
the use of these instruments and preparations, of transferring to
the plate the visible representation of some existing object, the
accuracy of this representation being its highest merit.

															This may be true in regard to the ordinary production of a
photograph, and that in such case, a copyright is no protection. On
the question as thus stated we decide nothing.

															In regard, however, to the kindred subject of patents for
invention, they cannot, by law, be issued to the inventor until the
novelty, the utility, and the actual discovery or invention by the
claimant have been established by proof before the Commissioner of
Patents, and when he has secured such a patent, and undertakes to
obtain redress for a violation of his right in a court of law, the
question of invention, of novelty, of originality is always open to
examination. Our copyright system has no such provision for
previous examination by a proper tribunal as to the originality of
the book, map, or other matter offered for copyright. A deposit of
two copies of the article or work with the Librarian of Congress,
with the name of the author and its title page, is all that is
necessary to secure a copyright. It is therefore much more
important that when the supposed author sues for a violation of his
copyright, the Page 111 U. S. 60 existence of those facts of originality, of intellectual
production, of thought, and conception on the part of the author
should be proved than in the case of a patent right. In the case
before us, we think this has been done.

															The third finding of facts says, in regard to the photograph in
question, that it is a

															"useful, new, harmonious, characteristic, and graceful picture,
and that plaintiff made the same . . . entirely from his own
original mental conception, to which he gave visible form by posing
the said Oscar Wilde in front of the camera, selecting and
arranging the costume, draperies, and other various accessories in
said photograph, arranging the subject so as to present graceful
outlines, arranging and disposing the light and shade, suggesting
and evoking the desired expression, and from such disposition,
arrangement, or representation, made entirely by plaintiff, he
produced the picture in suit."

															These findings, we think, show this photograph to be an original
work of art, the product of plaintiff's intellectual invention, of
which plaintiff is the author, and of a class of inventions for
which the Constitution intended that Congress should secure to him
the exclusive right to use, publish, and sell, as it has done by
section 4952 of the Revised Statutes.

															The question here presented is one of first impression under our
Constitution, but an instructive case of the same class is that of Nottage v. Jackson, 11 Q.B.D. 627, decided in that court
on appeal, August, 1883.

															The first section of the Act of 25 & 26, Vict. c. 68,
authorizes the author of a photograph, upon making registry of it
under the Copyright Act of 1882, to have a monopoly of its
reproduction and multiplication during the life of the author.

															The plaintiffs in that case described themselves as the authors
of the photograph which was pirated in the registration of it. It
appeared that they had arranged with the captain of the Australian
cricketers to take a photograph of the whole team in a group, and
they sent one of the artists in their employ from London to some
country town to do it. The question in the case was whether the
plaintiffs, who owned the establishment in London where the
photographs Page 111 U. S. 61 were made from the negative and were sold, and who had the
negative taken by one of their men, were the authors or the man
who, for their benefit, took the negative. It was held that the
latter was the author, and the action failed because plaintiffs had
described themselves as authors.

															Brett, M.R., said in regard to who was the author:

															"The nearest I can come to is that it is the person who
effectively is as near as he can be the cause of the picture which
is produced -- that is, the person who has superintended the
arrangement, who has actually formed the picture by putting the
persons in position, and arranging the place where the people are
to be -- the man who is the effective cause of that."

															Lord Justice Cotton said:

															"In my opinion, 'author' involves originating, making,
producing, as the inventive or mastermind, the thing which is to be
protected, whether it be a drawing, or a painting, or a
photograph,"

															and Lord Justice Bowen says that photography is to be treated
for the purposes of the act as an art, and the author is the man
who really represents, creates, or gives effect to the idea, fancy,
or imagination.

															The appeal of plaintiffs from the original judgment against them
was accordingly dismissed.

															These views of the nature of authorship and of originality,
intellectual creation, and right to protection confirm what we have
already said. The judgment of the circuit court is accordingly
affirmed.

Summary:
The case of Burrow-Giles Lithographic Company v. Sarony (1884) centered around the question of whether a photograph can be considered an original work of art and thus eligible for copyright protection. The Court concluded that Congress has the constitutional power to grant copyright protection to photographs that represent original intellectual conceptions.

The Court further clarified that the purpose of requiring a copyright notice on photographs is to inform the public of the copyright, and inscribing the proprietor's surname and the initial letter of their given name is sufficient.

In determining whether a photograph is a mere mechanical reproduction or an original work of art, the Court emphasized the importance of considering proof of originality, intellectual production, thought, and conception on the part of the author.

In this specific case, the Court affirmed the lower court's judgment, recognizing the photograph in question, titled "Oscar Wilde, No. 18," as an original work of art created through the intellectual invention of the plaintiff, thus granting the plaintiff exclusive rights under the copyright law.