U.S. Supreme Court Bobbs-Merrill Co. v. Straus, 210
U.S. 339 (1908) Bobbs-Merrill Co. v.
Straus No. 176 Argued March 12, 13,
1908 Decided June 1, 1908 210
U.S. 339 APPEAL FROM THE CIRCUIT COURT
OF APPEALS FOR THE SECOND
CIRCUIT Syllabus There are differences between the patent and the copyright
statutes in the extent of the protection granted by them, and the
rights of a patentee are not necessarily to be applied by analogy
to those claiming under copyright.

															At common law, an author had a property in his manuscript, and
might have redress against anyone undertaking to publish it without
his authority.

															Copyright property under the federal law is wholly statutory,
and depends upon the rights created under acts of Congress passed
in pursuance of authority conferred by § 8 of Art. I of the federal
Constitution.

															The copyright statutes are to be reasonably construed. They will
not by judicial construction either be unduly extended to include
privileges not intended to be conferred nor so narrowed as to
exclude those benefits that Congress did intend to confer.

															The sole right to vend granted by § 4952, Rev.Stat., does not
secure to the owner of the copyright the right to qualify future
sales by his vendee or to limit or restrict such future sales at a
specified price, and a notice in the book that a sale at a
different price will be treated as an infringement is ineffectual
as against one not bound by contract or license agreement.

															147 F. 15 affirmed.

															The facts are stated in the opinion. Page 210 U. S. 341 MR. JUSTICE DAY delivered the opinion of the Court.

															The complainant in the circuit court, appellant here, the
Bobbs-Merrill Company, brought suit against the respondents,
appellees here, Isidor Straus and Nathan Straus, partners as R. H.
Macy & Company, in the Circuit Court of the United States for
the Southern District of New York to restrain the sale of a
copyrighted novel, entitled "The Castaway," at retail at less than
$1 for each copy. The circuit court dismissed the bill on final
hearing. 139 F. 155. The decree of the circuit court was affirmed
on appeal by the circuit court of appeals, 147 F. 15.

															The appellant is the owner of the copyright upon "The Castaway,"
obtained on the eighteenth day of May, 1904, in conformity to the
copyright statutes of the United States. Printed immediately below
the copyright notice, on the page in the book following the title
page, is inserted the following notice:

															"The price of this book at retail is one dollar net. No dealer
is licensed to sell it at a less price, and a sale at a less price
will be treated as an infringement of the copyright."

															"The Bobbs-Merrill Company"

															Macy & Company, before the commencement of the action,
purchased copies of the book for the purpose of selling the same at
retail. Ninety percent of such copies were purchased by them at
wholesale at a price below the retail price by about Page 210 U. S. 342 forty percent, and ten percent of the books purchased by them
were purchased at retail, and the full price paid therefor.

															It is stipulated in the record:

															Defendants at the time of their purchase of copies of the book,
knew that it was a copyrighted book, and were familiar with the
terms of the notice printed in each copy thereof, as above set
forth, and knew that this notice was printed in every copy of the
book purchased by them.

															The wholesale dealers from whom defendants purchased copies of
the book obtained the same either directly from the complainant or
from other wholesale dealers at a discount from the net retail
price, and at the time of their purchase knew that the book was a
copyrighted book, and were familiar with the terms of the notice
printed in each copy thereof, as described above, and such
knowledge was in all wholesale dealers through whom the books
passed from the complainants to defendants. But the wholesale
dealers were under no agreement or obligation to enforce the
observance of the terms of the notice by retail dealers, or to
restrict their sales to retail dealers who would agree to observe
the terms stated in the notice.

															The defendants have sold copies of the book at retail at the
uniform price of eighty-nine cents a copy, and are still selling,
exposing for sale, and offering copies of the book at retail at the
price of eighty-nine cents per copy, without the consent of the
complainant.

															Much of the argument on behalf of the appellant is based upon
the alleged analogy between the statutes of the United States
securing patent rights to inventors, and the copyright acts,
securing rights and privileges to authors and others. And this
analogy, it is contended, is so complete that decisions under the
patent statutes in respect to the rights claimed in this suit under
the copyright act are necessarily controlling.

															In the main brief submitted by the learned counsel for the
appellant, it is said:

															"All of the argument has been upon the assumption that Page 210 U. S. 343 the very numerous decisions of the circuit courts and circuit
courts of appeals, such as the Heaton-Peninsular case
[ Button-Fastener case], 77 F. 288, the Victor Talking
Machine case, 123 F. 424, and others along the same line, as
well as the Cotton Tie case in this Court, upholding this
restriction, with reference to sales of patented articles, express
the law, and we have been especially confident that such must be
the case, for the reason that this Court, in Bement v. National
Harrow Company, 186 U. S. 70 , has given its
sanction to the broad doctrines laid down in the Heaton-Peninsular case, 77 F. 288."

															The present case involves rights under the copyright act. The
facts disclose a sale of a book at wholesale by the owners of the
copyright at a satisfactory price, and this without agreement
between the parties to such sale obligating the purchaser to
control future sales, and where the alleged right springs from the
protection of the copyright law alone. It is contended that this
power to control further sales is given by statute to the owner of
such a copyright in conferring the sole right to "vend" a
copyrighted book.

															A case such as the present one, concerning inventions protected
by letters patent of the United States, has not been decided in
this Court, so far as we are able to discover. In the so-called
" Cotton Tie case" ( Cotton Tie Co. v. Simmons, 106 U. S. 89 ), the
complainant company owned patents for improvements in metallic
cotton-bale ties, and these cotton-bale ties were manufactured by
the patentee, and stamped in the buckles were the words: "Licensed
to use once only." After the bands had been severed at the cotton
mill, the respondent bought them and the buckles as scrap iron,
rolled and straightened the pieces of the bands, and riveted their
ends together. He then cut them into proper lengths and sold them,
with the buckles, to be used as ties.

															The report of this case in the Circuit Court for the District of
Rhode Island is found in 3 Banning & Arden 320, 1 Fed.Cas. No.
293, p. 623. The report shows that Judge Page 210 U. S. 344 Shepley dismissed the bill on the ground that the attempted
restriction to a single use by the words stamped on the buckle was
not one which the patentee was entitled to impose, as the sale of
the patented article, as an ordinary article of commerce, had taken
it outside of the limits of the patent monopoly, and that the
purchaser took unrestricted title to the buckle, without any
reservation in the vendor. This Court reversed that decision,
holding that the reconstructed ties were not a repair of the old
article, but a recreation of the subject of the patent, and
therefore an infringement. Mr. Justice Blatchford, in delivering
the opinion of the court, said:

															"Whatever right the defendants could acquire to the use of the
old buckle, they acquired no right to combine it with a
substantially new band, to make a cotton-bale tie. They so combined
it when they combined it with a band made of the pieces of the old
band in the way described. What the defendants did in piecing
together the pieces of the old band was not a repair of the band or
the tie, in any proper sense. The band was voluntarily severed by
the consumer at the cotton mill, because the tie had performed its
function of confining the bale of cotton in its transit from the
plantation or the press to the mill. Its capacity for use as a tie
was voluntarily destroyed. As it left the bale, it could not be
used again as a tie. As a tie the defendants reconstructed it,
although they used the old buckle without repairing that."

															That the case was not decided as one of restricted license,
because of the words stamped on the buckle, is shown by the
language of Mr. Justice Blatchford, in concluding his opinion:

															"We do not decide that they are liable as infringers of either
of the three patents merely because they have sold the buckle
considered apart from the band or from the entire structure as a
tie."

															We cannot agree that any different view of the Cotton
Tie case was indicated in the comments of the learned justice,
speaking for this Court, in Morgan Envelope Co. v. Albany Paper
Co., 152 U. S. 425 , 152 U. S. 433 .
What was there said in connection Page 210 U. S. 345 with the quotation from the opinion of Mr. Justice Blatchford in
the Cotton Tie case enforces the view that the case was
one of infringement because of the reconstruction of the patented
device.

															In Bement v. National Harrow Co., 186 U. S.
70 , the suit was between the owners of the letters
patent as licensor and licensees, seeking to enforce a contract as
to the price and terms on which the patented article might be dealt
with by the licensee. The case did not involve facts such as in the
case now before us, and concerned a contract of license sued upon
in the state court, and, of course, does not dispose of the
questions to be decided in this case.

															The question was supposed to be involved in the recent case of Cortelyou v. Johnson, 207 U. S. 196 ,
where a patented machine, known as the Neostyle, was sold with a
license, printed on the baseboard of the machine, limiting the use
thereof to certain paper, ink, and other supplies, made by the
Neostyle company. While the question as to the validity of such
license restriction was fully and ably argued by counsel, the case
went off upon the finding that notice of the license restriction
was not brought home to the defendant company.

															If we were to follow the course taken in the argument, and
discuss the rights of a patentee, under letters patent, and then,
by analogy, apply the conclusions to copyrights, we might greatly
embarrass the consideration of a case under letters patent, when
one of that character shall be presented to this Court.

															We may say in passing, disclaiming any intention to indicate our
views as to what would be the rights of parties in circumstances
similar to the present case under the patent laws, that there are
differences between the patent and copyright statutes in the extent
of the protection granted by them. This was recognized by Judge
Lurton, who wrote a leading case on the subject in the federal
courts ( The Button Fastener case, supra ), for he said in
the subsequent case of Park & Sons Co. v. Hartman, 153
F. 24: Page 210 U. S. 346 "There are such wide differences between the right of
multiplying and vending copies of a production protected by the
copyright statute and the rights secured to an inventor under the
patent statutes that the cases which relate to the one subject are
not altogether controlling as to the other."

															We therefore approach the consideration of this question as a
new one in this Court, and one that involves the extent of the
protection which is given by the copyright statutes of the United
States to the owner of a copyright under the facts disclosed in
this record. Recent cases in this Court have affirmed the
proposition that copyright property under the federal law is wholly
statutory, and depends upon the right created under the acts of
Congress passed in pursuance of the authority conferred under
Article I, § 8, of the federal Constitution:

															"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." American Tobacco Co. v. Werckmeister, 207 U.
S. 284 ; White-Smith Music Co. v. Apollo Co., 209 U. S. 1 ;
following the previous cases of Wheaton v.
Peters , 8 Pet. 591; Banks v. Manchester, 128 U. S. 244 -253; Thompson v. Hubbard, 131 U. S. 123 , 131 U. S. 151 .

															The learned counsel for the appellant in this case, in the
argument at bar, disclaims relief because of any contract, and
relies solely upon the copyright statutes, and rights therein
conferred. The copyright statutes ought to be reasonably construed
with a view to effecting the purposes intended by Congress. They
ought not to be unduly extended by judicial construction to include
privileges not intended to be conferred, nor so narrowly construed
as to deprive those entitled to their benefit of the rights
Congress intended to grant.

															At common law, an author had a property in his manuscript, and
might have redress against anyone who undertook to realize a profit
from its publication without authority of the author. Wheaton v.
Peters , 8 Pet. 591, 33 U. S.
659 .

															In Drone on Copyright, that author says, page 100:

															"As the law is now expounded, there are important
differences Page 210 U. S. 347 between the statutory and the common law light. The former
exists only in works which have been published within the meaning
of the statute, and the latter only in works which have not been so
published. In the former case, ownership is limited to a term of
years; in the latter, it is perpetual. The rights do not coexist in
the same composition; when the statutory right begins, the common
law right ends. Both may be defeated by publication. Thus, when a
work is published in print, the owner's common law rights are lost,
and, unless the publication be in accordance with the requirements
of the statute, the statutory right is not secured."

															While the nature of the property and the protection intended to
be given the inventor or author as the reward of genius or
intellect in the production of his book or work of art is to be
considered in construing the act of Congress, it is evident that to
secure the author the right to multiply copies of his work may be
said to have been the main purpose of the copyright statutes.
Speaking for this Court in Stephens v.
Cady , 14 How. 528, 55 U. S. 530 ,
Mr. Justice Nelson said:

															"The copyright is an exclusive right to the multiplication of
the copies, for the benefit of the author or his assigns,
disconnected from the plate, or any other physical existence. It is
an incorporeal right to print and publish the map, or, as said by
Lord Mansfield in Millar v. Taylor, 4 Burr. 2396, 'a
property in notion, and has no corporeal, tangible substance.'"

															This fact is emphasized when we note the title to the act of
Congress, passed at its first session:

															"An Act for the Encouragement of Learning, by Securing the
Copies of Maps, Charts, and Books, to the Authors and Proprietors
of Such Copies, during the Times Therein Mentioned."

															1 Stat. at Large, by Peters, c. 15, p. 124.

															In order to secure this right, it was provided in that statute,
as it has been in subsequent ones, that the authors of books, their
executors, administrators, or assigns, shall have the "sole right
and liberty of printing, reprinting, publishing, and vending" such
book for a term of years, upon complying with the Page 210 U. S. 348 statutory conditions set forth in the act as essential to the
acquiring of a valid copyright. Each and all of these statutory
rights should be given such protection as the act of Congress
requires, in order to secure the rights conferred upon authors and
others entitled to the benefit of the act. Let us see more
specifically what are the statutory rights, in this behalf, secured
to one who has complied with the provisions of the law and become
the owner of a copyright. They may be found in §§ 4952, 4965, and
4970 of the Revised Statutes of the United States, and are as
follows:

															"SEC. 4952. Any citizen of the United States or resident
therein, who shall be the author, inventor, designer, or proprietor
of any book, map, chart, dramatic or musical composition,
engraving, cut, print, or photograph or negative thereof, or of a
painting, drawing, chromo, statute, statuary, and of models or
designs intended to be perfected as works of the fine arts, and the
executors, administrators, or assigns of any such person, shall,
upon complying with the provisions of this chapter, have the sole
liberty of printing, reprinting, publishing, completing, copying,
executing, finishing, and vending the same."

															U.S.Comp.Stat. 1901, p. 3406.

															"SEC. 4965. If any person, after the recording of the title of
any map, chart, musical composition, print, cut, engraving, or
photograph, or chromo, or of the description of any painting,
drawing, statue, statuary, or model or design intended to be
perfected and executed as a work of the fine arts, as provided by
this chapter, shall, within the term limited, and without the
consent of the proprietor of the copyright first obtained in
writing, signed in presence of two or more witnesses, engrave,
etch, work, copy, print, publish, or import, either in whole or in
part, or by varying the main design with intent to evade the law,
or, knowing the same to be so printed, published, or imported,
shall sell or expose to sale any copy of such map or other article,
as aforesaid, he shall forfeit to the proprietor all the plates on
which the same shall be copied, and every sheet thereof, either
copied or printed, and shall further forfeit Page 210 U. S. 349 one dollar for every sheet of the same found in his possession,
either printing, printed, copied, published, imported, or exposed
for sale, and in case of a painting, statute, or statuary, he shall
forfeit ten dollars for every copy of the same in his possession,
or by him sold or exposed for sale, one-half thereof to the
proprietor and the other half to the use of the United States."

															U.S.Comp.Stat. 1901, p. 3414.

															Section 4970 is as follows:

															"The circuit courts, and district courts having the jurisdiction
of circuit courts, shall have power, upon bill in equity filed by
any party aggrieved, to grant injunctions to prevent the violation
of any right secured by the laws respecting copyrights, according
to the course and principles of courts of equity, on such terms as
the court may deem reasonable."

															U.S.Comp.Stat. 1901, p. 3416.

															Section 4965 undertakes to work a forfeiture of copyrighted
articles, and confers a right of action for a penalty. Relief is
given in a single suit, one-half of the money recovered going to
the United States. Werckmeister v. American Tobacco Co., 207 U. S. 375 .

															As this is a suit in equity for relief under § 4970 of the U.S.
Revised Statutes, giving to the circuit and district courts of the
United States the right to grant relief by injunctions to prevent
the violation of rights secured by the copyright statutes, we are
not concerned with rights and remedies under § 4965.

															It is the contention of the appellant that the circuit court
erred in failing to give effect to the provision of § 4952,
protecting the owners of the copyright in the sole right of vending
the copyrighted book or other article, and the argument is that the
statute vested the whole field of the right of exclusive sale in
the copyright owner; that he can part with it to another to the
extent that he sees fit, and may withhold to himself, by proper
reservations, so much of the right as he pleases.

															What does the statute mean in granting "the sole right of
vending the same?" Was it intended to create a right which would
permit the holder of the copyright to fasten, by notice Page 210 U. S. 350 in a book or upon one of the articles mentioned within the
statute, a restriction upon the subsequent alienation of the
subject matter of copyright after the owner had parted with the
title to one who had acquired full dominion over it and had given a
satisfactory price for it? It is not denied that one who has sold a
copyrighted article, without restriction, has parted with all right
to control the sale of it. The purchaser of a book, once sold by
authority of the owner of the copyright, may sell it again,
although he could not publish a new edition of it.

															In this case, the stipulated facts show that the books sold by
the appellant were sold at wholesale, and purchased by those who
made no agreement as to the control of future sales of the book,
and took upon themselves no obligation to enforce the notice
printed in the book, undertaking to restrict retail sales to a
price of one dollar per copy.

															The precise question therefore in this case is, does the sole
right to vend (named in § 4952) secure to the owner of the
copyright the right, after a sale of the book to a purchaser, to
restrict future sales of the book at retail, to the right to sell
it at a certain price per copy, because of a notice in the book
that a sale at a different price will be treated as an
infringement, which notice has been brought home to one undertaking
to sell for less than the named sum? We do not think the statute
can be given such a construction, and it is to be remembered that
this is purely a question of statutory construction. There is no
claim in this case of contract limitation, nor license agreement
controlling the subsequent sales of the book.

															In our view, the copyright statutes, while protecting the owner
of the copyright in his right to multiply and sell his production,
do not create the right to impose, by notice, such as is disclosed
in this case, a limitation at which the book shall be sold at
retail by future purchasers, with whom there is no privity of
contract. This conclusion is reached in view of the language of the
statute, read in the light of its main purpose Page 210 U. S. 351 to secure the right of multiplying copies of the work -- a right
which is the special creation of the statute. True, the statute
also secures, to make this right of multiplication effectual, the
sole right to vend copies of the book, the production of the
author's thought and conception. The owner of the copyright in this
case did sell copies of the book in quantities and at a price
satisfactory to it. It has exercised the right to vend. What the
complainant contends for embraces not only the right to sell the
copies, but to qualify the title of a future purchaser by the
reservation of the right to have the remedies of the statute
against an infringer because of the printed notice of its purpose
so to do unless the purchaser sells at a price fixed in the notice.
To add to the right of exclusive sale the authority to control all
future retail sales by a notice that such sales must be made at a
fixed sum would give a right not included in the terms of the
statute, and, in our view, extend its operation, by construction,
beyond its meaning, when interpreted with a view to ascertaining
the legislative intent in its enactment.

															This conclusion renders it unnecessary to discuss other
questions noticed in the opinion in the circuit court of appeals,
or to examine into the validity of the publisher's agreements,
alleged to be in violation of the acts to restrain combinations
creating a monopoly or directly tending to the restraint of
trade.

															The decree of the circuit court of appeals is Affirmed.

Summary: In Bobbs-Merrill Co. v. Straus, the US Supreme Court ruled that copyright laws do not grant authors the right to control future sales of their work by imposing restrictions on the resale price. While copyright statutes protect the owner's right to multiply and sell their work, they do not allow for the control of future sales through notices or restrictions on resale price. This case affirmed the lower court's decision and highlighted the distinction between patent and copyright laws in terms of the extent of protection granted.


U.S. Supreme Court Mazer v. Stein, 347
U.S. 201 (1954) Mazer v. Stein No. 228 Argued December 3,
1953 Decided March 8, 1954 347
U.S. 201 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FOURTH
CIRCUIT Syllabus Respondents are engaged in the manufacture and sale of electric
lamps. One of the respondents created original works of sculpture,
from the models of which china statuettes were made. The statuettes
were used as bases for fully equipped electric lamps, which
respondents sold. Respondents submitted the statuettes, without any
lamp components added, for registration under the copyright law as
"works of art" or reproductions thereof. Held: the statuettes were copyrightable. Pp. 347 U. S.
202 -219.

															(a) The successive Copyright Acts, the legislative history of
the 1909 Act, and the practice of the Copyright Office show that
"works of art" and "reproductions of works of art" were intended by
Congress to include the authority to copyright such statuettes. Pp. 347 U. S.
208 -214.

															(b) That the statuettes, fitted as lamps or unfitted, may be
patentable does not bar their copyright as works of art. Pp. 347 U. S.
215 -217.

															(c) The intended or actual use in industry of an article
eligible for copyright does not bar or invalidate its registration.
P. 347 U. S.
218 .

															(d) The subsequent registration of a work of art published as an
element in a manufactured article is not a misuse of the copyright.
Pp. 347 U. S.
218 -219.

															204 F.2d 472 affirmed.

															Respondents sued petitioners for copyright infringement, and the
District Court dismissed the complaint. 111 F.
Supp. 359 . The Court of Appeals reversed. 204 F.2d 472. This
Court granted certiorari. 346 U.S. 811. Affirmed, p. 347 U. S.
219 . Page 347 U. S. 202 MR. JUSTICE REED delivered the opinion of the Court.

															This case involves the validity of copyrights obtained by
respondents for statuettes of male and female dancing figures made
of semivitreous china. The controversy centers around the fact
that, although copyrighted as "works of art," the statuettes were
intended for use and used as bases for table lamps, with electric
wiring, sockets, and lamp shades attached.

															Respondents are partners in the manufacture and sale of electric
lamps. One of the respondents created original works of sculpture
in the form of human figures by traditional clay-model technique.
From this model, a production mold for casting copies was made. The
resulting statuettes, without any lamp components added, were
submitted by the respondents to the Copyright Office for
registration as "works of art" or reproductions thereof under §
5(g) or § 5(h) of the copyright law, [ Footnote 1 ] and certificates Page 347 U. S. 203 of registration issued. Sales (publication in accordance with
the statute) as fully equipped lamps preceded the applications for
copyright registration of the statuettes. 17 U.S.C. (Supp. V, 1952)
§§ 10, 11, 13, 209; Rules and Regulations, 37 CFR, 1949, §§ 202.8
and 202.9. Thereafter, the statuettes were sold in quantity
throughout the country both as lamp bases and as statuettes. The
sales in lamp form accounted for all but an insignificant portion
of respondents' sales.

															Petitioners are partners, and, like respondents, make and sell
lamps. Without authorization, they copied the statuettes, embodied
them in lamps, and sold them.

															The instant case is one in a series of reported suits brought by
respondents against various alleged infringers of the copyrights,
all presenting the same or a similar question. [ Footnote 2 ] Because of conflicting decisions,
[ Footnote 3 ] we granted
certiorari. 346 U.S. 811. In the present case, respondents Page 347 U. S. 204 sued petitioners for infringement in Maryland. Stein v.
Mazer, 111 F.
Supp. 359 . Following the Expert decision and rejecting the
reasoning of the District Court in the Rosenthal opinion,
both referred to in the preceding note, the District Court
dismissed the complaint. The Court of Appeals reversed, and held
the copyrights valid. Stein v. Mazer, 204 F.2d 472.
[ Footnote 4 ] It said:

															"A subsequent utilization of a work of art in an article of
manufacture in no way affects the right of the copyright owner to
be protected against infringement of the work of art itself."

															204 F.2d at 477.

															Petitioners, charged by the present complaint with infringement
of respondents' copyrights of reproductions of their works of art,
seek here a reversal of the Court of Appeals decree upholding the
copyrights. Petitioners, in their petition for certiorari, present
a single question:

															"Can statuettes be protected in the United States by copyright
when the copyright applicant intended primarily to use the
statuettes in the form of lamp Page 347 U. S. 205 bases to be made and sold in quantity and carried the intentions
into effect?"

															"Stripped down to its essentials, the question presented is: can
a lamp manufacturer copyright his lamp bases?"

															The first paragraph accurately summarizes the issue. The last
gives it a quirk that unjustifiably, we think, broadens the
controversy. The case requires an answer not as to a manufacturer's
right to register a lamp base, but as to an artist's right to
copyright a work of art intended to be reproduced for lamp bases.
As petitioners say in their brief, their contention "questions the
validity of the copyright based upon the actions of respondents."
Petitioners question the validity of a copyright of a work of art
for "mass" production. "Reproduction of a work of art" does not
mean to them unlimited reproduction. Their position is that a
copyright does not cover industrial reproduction of the protected
article. Thus, their reply brief states:

															"When an artist becomes a manufacturer or a designer for a
manufacturer, he is subject to the limitations of design patents,
and deserves no more consideration than any other manufacturer or
designer."

															It is not the right to copyright an article that could have
utility under § 5(g) and (h), note
1 supra, that petitioners oppose. Their brief accepts
the copyrightability of the great carved golden salt cellar of
Cellini, but adds:

															"If, however, Cellini designed and manufactured this item in
quantity so that the general public could have salt cellars, then
an entirely different conclusion would be reached. In such case,
the salt cellar becomes an article of manufacture having utility in
addition to its ornamental value, and would therefore have to be
protected by design patent. " Page 347 U. S. 206 It is publication as a lamp and registration as a statue to gain
a monopoly in manufacture that they assert is such a misuse of
copyright as to make the registration invalid.

															No unfair competition question is presented. The constitutional
power of Congress to confer copyright protection on works of art or
their reproductions is not questioned. [ Footnote 5 ] Petitioners assume, as Congress has in its Page 347 U. S. 207 enactments and, as do we, that the constitutional clause
empowering legislation

															"To promote the Progress of Science and useful Arts, by securing
for limited Times to Authors and Inventors the exclusive Right to
their Page 347 U. S. 208 respective Writings and Discoveries,"

															Art. I, § 8, cl. 8, includes within the term "Authors" the
creator of a picture or a statue. The Court's consideration will be
limited to the question presented by the petition for the writ of
certiorari. [ Footnote 6 ] In
recent years, the question as to utilitarian use of copyrighted
articles has been much discussed. [ Footnote 7 ]

															In answering that issue, a review of the development of
copyright coverage will make clear the purpose of the Congress in
its copyright legislation. In 1790 the First Congress conferred a
copyright on "authors of any map, chart, book or books already
printed." [ Footnote 8 ] Later,
designing, engraving and etching were included; [ Footnote 9 ] in 1831, musical Page 347 U. S. 209 composition; [ Footnote
10 ] dramatic compositions in 1856; [ Footnote 11 ] and photographs and negatives thereof in
1865. [ Footnote 12 ]

															The Act of 1870 defined copyrightable subject matter as:

															". . . any book, map, chart, dramatic or musical composition,
engraving, cut, print, or photograph or negative thereof, or of a
painting, drawing, chromo, statute, statuary, and of models or
designs intended to be perfected as works of the fine
arts. "

															(Emphasis supplied.) [ Footnote 13 ] The italicized part added three-dimensional
work of art to what had been protected previously. [ Footnote 14 ] In 1909, Congress Page 347 U. S. 210 again enlarged the scope of the copyright statute. [ Footnote 15 ] The new Act provided in
§ 4:

															"That the works for which copyright may be secured under this
Act shall include all the writings of an author. [ Footnote 16 ]"

															Some writers interpret this section as being coextensive with
the constitutional grant, [ Footnote 17 ] but the House Report, while inconclusive,
indicates that it was "declaratory of existing law" only. [ Footnote 18 ] Section 5 relating to
classes of writings in 1909 read as shown in the margin with
subsequent additions not material to this decision. [ Footnote 19 ] Page 347 U. S. 211 Significant for our purposes was the deletion of the fine arts
clause of the 1870 Act. [ Footnote 20 ] Verbal distinctions between purely aesthetic
articles and useful works of art ended insofar as the statutory
copyright language is concerned. [ Footnote 21 ]

															The practice of the Copyright Office, under the 1870 and 1874
Acts and before the 1909 Act, was to allow registration "as works
of the fine arts" of articles of the same character as those of
respondents now under challenge. Seven examples appear in the
Government's Page 347 U. S. 212 brief amicus curiae. [ Footnote 22 ] In 1910, interpreting the 1909 Act, the
pertinent Copyright Regulations read as shown in the margin.
[ Footnote 23 ] Because, as
explained by the Government, this regulation "made no reference to
articles which might fairly be considered works of art although
they might also serve a useful purpose," it was reworded in 1917 as
shown below. [ Footnote 24 ]
The amicus brief gives sixty examples selected at
five-year intervals, 1912-1952, said to be typical of registrations
of works of art possessing utilitarian aspects. [ Footnote 25 ] The current pertinent
regulation, published in 37 CFR, 1949, § 202.8, reads thus:

															" Works of art (Class G) -- (a) In General. This class
includes works of artistic craftsmanship, in so far as their form
but not their mechanical or utilitarian aspects are concerned, such
as artistic jewelry, Page 347 U. S. 213 enamels, glassware, and tapestries, as well as all works
belonging to the fine arts, such as paintings, drawings and
sculpture. . . ."

															So we have a contemporaneous and long continued construction of
the statutes by the agency charged to administer them that would
allow the registration of such a statuette as is in question here.
[ Footnote 26 ]

															This Court once essayed to fix the limits of the fine arts.
[ Footnote 27 ] That effort
need not be appraised in relation to this copyright issue. It is
clear Congress intended the scope of the copyright statute to
include more than the traditional fine arts. Herbert Putnam, Esq.,
then Librarian of Congress and active in the movement to amend the
copyright laws, told the joint meeting of the House and Senate
Committees:

															"The term 'works of art' is deliberately intended as a broader
specification than 'works of the fine arts' in the present statute
with the idea that there is subject matter (for instance, of
applied design, not yet within the province of design patents),
which may properly be entitled to protection under the copyright
law. [ Footnote 28 ]"

															The successive acts, the legislative history of the 1909 Act and
the practice of the Copyright Office unite to show Page 347 U. S. 214 that "works of art" and "reproductions of works of art" are
terms that were intended by Congress to include the authority to
copyright these statuettes. Individual perception of the beautiful
is too varied a power to permit a narrow or rigid concept of art.
As a standard, we can hardly do better than the words of the
present Regulation, § 202.8, supra, naming the things that
appertain to the arts. They must be original, that is, the author's
tangible expression of his ideas. Compare Burrow-Giles
Lithographic Co. v. Sarony, 111 U. S. 53 , 111 U. S. 59 -60.
Such expression, whether meticulously delineating the model or
mental image or conveying the meaning by modernistic form or color,
is copyrightable. [ Footnote
29 ] What cases there are confirm this coverage of the statute.
[ Footnote 30 ]

															The conclusion that the statues here in issue may be copyrighted
goes far to solve the question whether their intended reproduction
as lamp stands bars or invalidates their registration. This depends
solely on statutory interpretation. Congress may, after
publication, protect by copyright any writing of an author. Its
statute creates the copyright. [ Footnote 31 ] It did not exist at common law even Page 347 U. S. 215 though he had a property right in his unpublished work.
[ Footnote 32 ]

															But petitioners assert that congressional enactment of the
design patent laws should be interpreted as denying protection to
artistic articles embodied or reproduced in manufactured articles.
[ Footnote 33 ] They say:

															"Fundamentally and historically, the Copyright Office is the
repository of what each claimant considers to be a cultural
treasure, whereas the Patent Office is the repository of what each
applicant considers to be evidence of the advance in industrial and
technological fields."

															Their argument is that design patents require the critical
examination given patents to protect the public against monopoly.
Attention is called to Gorham Mfg. Co. v.
White , 14 Wall. 511, interpreting the design patent
law of 1842, 5 Stat. 544, granting a patent to anyone who by "their
own industry, genius, efforts, and expense, may have invented or
produced any new and original design for a manufacture. . . ." A
pattern for flat silver was there upheld. [ Footnote 34 ] The intermediate and present law
differs Page 347 U. S. 216 little. "Whoever invents any new, original and ornamental design
for an article of manufacture may obtain a patent therefor, . . . "
subject generally to the provisions concerning patents for
invention. § 171, 66 Stat. 805. As petitioner sees the effect of
the design patent law:

															"If an industrial designer can not satisfy the novelty
requirements of the design patent laws, then his design as used on
articles of manufacture can be copied by anyone."

															Petitioner has furnished the Court a booklet of numerous design
patents for statuettes, bases for table lamps and similar articles
for manufacture, quite indistinguishable in type from the
copyrighted statuettes here in issue. [ Footnote 35 ] Petitioner urges that overlapping of
patent and copyright legislation so as to give an author or
inventor a choice between patents and copyrights should not be
permitted. We assume petitioner takes the position that protection
for a statuette for industrial use can only be obtained by patent,
if any protection can be given. [ Footnote 36 ] Page 347 U. S. 217 As we have held the statuettes here involved copyrightable, we
need not decide the question of their patentability. Though other
courts have passed upon the issue as to whether allowance by the
election of the author or patentee of one bars a grant of the
other, we do not. [ Footnote
37 ] We do hold that the patentability of the statuettes, fitted
as lamps or unfitted, does not bar copyright as works of art.
Neither the Copyright Statute nor any other says that, because a
thing is patentable, it may not be copyrighted. We should not so
hold. [ Footnote 38 ]

															Unlike a patent, a copyright gives no exclusive right to the art
disclosed; protection is given only to the expression of the idea
-- not the idea itself. [ Footnote 39 ] Thus, in Baker v. Selden, 101 U. S. 99 , the
Court held that a copyrighted book on a peculiar system of
bookkeeping was not infringed by a similar book using a similar
plan which achieved similar results where the alleged infringer
made a different arrangement of the columns and used different
headings. The distinction is illustrated in Fred Fisher, Inc.
v. Dillingham, 298 F. 145, 151, when the court speaks of two
men, each a perfectionist, independently making Page 347 U. S. 218 maps of the same territory. Though the maps are identical, each
may obtain the exclusive right to make copies of his own particular
map, and yet neither will infringe the other's copyright. Likewise,
a copyrighted directory is not infringed by a similar directory
which is the product of independent work. [ Footnote 40 ] The copyright protects originality,
rather than novelty or invention -- conferring only "the sole right
of multiplying copies." [ Footnote 41 ] Absent copying, there can be no infringement
of copyright. [ Footnote 42 ]
Thus, respondents may not exclude others from using statuettes of
human figures in table lamps; they may only prevent use of copies
of their statuettes as such or as incorporated in some other
article. Regulation § 202.8, supra, makes clear that
artistic articles are protected in "form, but not their mechanical
or utilitarian aspects." See Stein v.
Rosenthal, 103 F.
Supp. 227 , 231. The dichotomy of protection for the aesthetic
is not beauty and utility, but art for the copyright and the
invention of original and ornamental design for design patents. We
find nothing in the copyright statute to support the argument that
the intended use or use in industry of an article eligible for
copyright bars or invalidates its registration. We do not read such
a limitation into the copyright law.

															Nor do we think the subsequent registration of a work of art
published as an element in a manufactured article, is a misuse of
the copyright. This is not different from Page 347 U. S. 219 the registration of a statuette and its later embodiment in an
industrial article.

															"The copyright law, like the patent statutes, makes reward to
the owner a secondary consideration." United States v.
Paramount Pictures, 334 U. S. 131 , 334 U. S. 158 .
However, it is

															"intended definitely to grant valuable, enforceable rights to
authors, publishers, etc., without burdensome requirements; 'to
afford greater encouragement to the production of literary [or
artistic] works of lasting benefit to the world.'" Washingtonian Pub. Co. v. Pearson, 306 U. S.
30 , 306 U. S.
36 .

															The economic philosophy behind the clause empowering Congress to
grant patents and copyrights is the conviction that encouragement
of individual effort by personal gain is the best way to advance
public welfare through the talents of authors and inventors in
"Science and useful Arts." Sacrificial days devoted to such
creative activities deserve rewards commensurate with the services
rendered. Affirmed. [ Footnote 1 ]

															17 U.S.C. (Supp. V, 1952) § 4:

															"The works for which copyright may be secured under this title
shall include all the writings of an author." Id., § 5:

															"The application for registration shall specify to which of the
following classes the work in which copyright is claimed
belongs:"

															" * * * *" "(g) Works of art; models or designs for works of art."

															"(h) Reproductions of a work of art."

															Errors of classification are immaterial. See note 19 infra. [ Footnote 2 ]

															An unreported action, Stein v. Zuckerman and DuBeshter, was pending in the Eastern District of New York. Note, 66
Harv.L.Rev. 877, 878, n. 8. We are advised that it was dismissed by
consent February 24, 1953.

															[ Footnote 3 ] Stein v. Expert Lamp Co., 188 F.2d 611, Stein v.
Expert Lamp Co., 96 F. Supp.
97 , was the first action brought. Through an accident in
presentation, the trial court determined the case as though the
copyright was on a statuette with lamp attachments. It held the
statuettes not copyrightable because this "was evidence of the
practical use" intended. 96 F. Supp. at 98. On petition for
reconsideration, it held the presence or absence of the attachments
immaterial. Stein v. Mazer, 111 F.
Supp. 359 , 361; Rosenthal v. Stein, 205 F.2d 633, 634.
The Court of Appeals for the Seventh Circuit affirmed on the ground
that the Copyright Act

															"does not refer to articles of manufacture having a utilitarian
purpose, nor does it provide for a previous examination by a proper
tribunal as to the originality of the matter offered for copyright.
. . ." Stein v. Expert Lamp Co., 188 F.2d 611, 613. Stein v. Rosenthal, 103 F.
Supp. 227 , was a second infringement case. It was there
held,

															"Protection is not dissipated by taking an unadulterated object
of art as copyrighted and integrating it into commercially valuable
merchandise."

															103 F. Supp. at 230. On appeal, the Court of Appeals for the
Ninth Circuit affirmed, saying,

															"The theory that the use of a copyrighted work of art loses its
status as a work of art if and when it is put to a functional use
has no basis in the wording of the copyright laws, and there is
nothing in the design patent laws which excludes a work of art from
the operation of the copyright laws." Rosenthal v. Stein, 205 F.2d 633, 635.

															In Stein v. Benaderet, 109 F.
Supp. 364 , 365, a district court of Michigan held that it is
the "intent and purpose" of the designer which determines whether
an object is copyrightable as a work of art. The court said
plaintiffs should have applied for a design patent, and held for
defendants. An appeal is pending now in the Court of Appeals for
the Sixth Circuit.

															The opinions in the above cases and those of the District Court
and the Court of Appeals in the present litigation deserve careful
reading.

															[ Footnote 4 ]

															In this case, the Register of Copyrights participated as amicus curiae, and supported respondents. Through the
Solicitor General, he has also filed a brief in this Court and
participated in the oral argument. 346 U.S. 882.

															[ Footnote 5 ]

															We do not reach for constitutional questions not raised by the
parties. Chicago & G.T. R. Co. v. Wellman, 143 U. S. 339 , 143 U. S. 345 ; New York ex rel. Rosevale Realty Co. v. Kleinert, 268 U. S. 646 , 268 U. S. 651 ; CIO v. McAdory, 325 U. S. 472 , 325 U. S. 475 .
The fact that the issue was mentioned in argument does not bring
the question properly before us. Herbring v. Lee, 280 U. S. 111 , 280 U. S. 117 .

															No question of our jurisdiction emerges. Chicot County
Drainage Dist. v. Baxter State Bank, 308 U.
S. 371 . Compare Kalb v. Feuerstein, 308 U. S. 433 , and Continental Illinois Nat. Bank & Trust Co. v. Chicago, R.I.
& P. R. Co., 294 U. S. 648 , 294 U. S.
667 . Compare on the constitutional question the following: Burrow-Giles Lithographic Co. v. Sarony, 111 U. S.
53 , upheld the copyright of a photograph unanimously. It
was said:

															"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." Id. at 111 U. S.
58 .

															"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." Id. at 111 U. S.
60 . Bleistein v. Donaldson Lithographing Co., 188 U.
S. 239 , 188 U. S.
249 -250, upheld a copyright on circus posters. The Court
said:

															"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. . . . 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." Kalem Co. v. Harper Bros., 222 U. S.
55 , 222 U. S. 63 ,
involved pirating by motion pictures of the copyrighted dramatic
rights of a book. This Court said:

															"It is argued that the law, construed as we have construed it,
goes beyond the power conferred upon congress by the Constitution,
to secure to authors for a limited time the exclusive right to
their writings. Art. I, § 8, cl. 8. It is suggested that to extend
the copyright to a case like this is to extend it to the ideas, as
distinguished from the words in which those ideas are clothed. But
there is no attempt to make a monopoly of the ideas expressed. The
law confines itself to a particular, cognate, and well known form
of reproduction. If, to that extent, a grant of monopoly is thought
a proper way to secure the right to the writings, this court cannot
say that Congress was wrong." See also Schreiber v. Thornton, 17 F. 603, reversed
on other grounds, Thornton v. Schreiber, 124 U.
S. 612 , 124 U. S.
613 . See Fenning, The Origin of the Patent and Copyright
Clause of the Constitution, 17 Geo.L.J. 109; 2 Story, Constitution
(5th ed.), c. XIX. Trade-Mark Cases, 100 U. S. 82 .
Congress had passed a trademark act under the Patent and Copyright
Clause. A unanimous Court held this effort to protect trademarks
was unconstitutional.

															"The ordinary trademark has no necessary relation to invention
or discovery. . . . If we should endeavor to classify it under the
head of writings of authors, the objections are equally strong. In
this, as in regard to inventions, originality is required. And
while the word writings may be liberally construed, as it has been,
to include original designs for engraving, prints, &c., it is
only such as are original, and are founded in the creative powers
of the mind. The writings which are to be protected are the
fruits of intellectual labor, embodied in the form of books,
prints, engravings, and the like."

															The trademark does not

															"depend upon novelty, invention, discovery, or any work of the
brain. It requires no fancy or imagination, no genius, no laborious
thought. It is simply founded on priority of appropriation." See, as to commerce, id. at 100 U. S. 95 -98;
Robert, Commentary on the Lanham Trade-Mark Act, 15 U.S.C.A. (§§
81-1113, 1948) p. 265.

															[ Footnote 6 ] National Licorice Co. v. Labor Board, 309 U.
S. 350 , 309 U. S. 357 ,
note 2; General Talking Pictures Corp. v. Western Electric
Co., 304 U. S. 175 ; Crown C. & S. Co. v. Ferdinand Gutmann Co., 304 U. S. 159 , and
cases cited; Gunning v. Cooley, 281 U. S.
90 . The policy is incorporated in Rule 38(2), Revised
Rules of the Supreme Court of the United States, and the practice
of bringing "additional questions into a case" has been condemned
recently in Irvine v. California, 347 U.
S. 128 , 347 U. S.
129 .

															[ Footnote 7 ]

															Ball, Law of Copyright and Literary Property (1944) 390; Howell,
Copyright Law (1952) 130; 1 Ladas, The International Protection of
Literary and Artistic Property (1938) 247; Weil, Copyright Law
(1917) 227; Derenberg, Copyright No-Man's Land: Fringe Rights in
Literary and Artistic Property, 1953 Copyright Problems Analyzed
(CCH) 215; Pogue, Borderland -- Where Copyright and Design Patent
Meet, 52 Mich.L.Rev. 33; Notes, 21 Geo.Wash.L.Rev. 353; 66
Harv.L.Rev. 877; 27 Ind.L.J. 130. See Report of the
Copyright Committee, Board of Trade, October 1952, Artistic
Copyright and Industrial Designs, pp. 82 et seq. [ Footnote 8 ]

															1 Stat. 124.

															[ Footnote 9 ]

															2 Stat. 171.

															[ Footnote 10 ]

															4 Stat. 436.

															[ Footnote 11 ]

															11 Stat. 139.

															[ Footnote 12 ]

															13 Stat. 540. Between 1789 and 1904, there were, in all, some
twenty-five laws dealing with copyrights. Salberg, Copyright in
Congress (1905) 89-93.

															[ Footnote 13 ]

															§ 86, 16 Stat. 212. This Act also vested control of records
relating to copyrights in the Librarian of Congress, and provided
he should administer the law. Id., § 85.

															[ Footnote 14 ]

															In connection with the phrase in the 1870 Act "intended to be
perfected as works of the fine arts," see the 1874
amendatory Act, 18 Stat. 78, and Bleistein v. Donaldson
Lithographing Co., 188 U. S. 239 .
Section 3 contained the following provision:

															"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, and no prints or labels
designed to be used for any other articles of manufacture shall be
entered under the copyright law, but may be registered in the
Patent Office."

															This was repealed in 1939, and the following enacted:

															"SEC. 2. Section 5(k) of the Act entitled 'An Act to amend and
consolidate the Acts respecting copyright' approved March 4, 1909,
is hereby amended to read: '(k) Prints and pictorial illustrations
including prints or labels used for articles of merchandise.'"

															53 Stat. 1142. This was an amendment to § 5(k) of the Act of
1909, 35 Stat. 1077. It is to be noted, however, that the 1909 Act
did not conform to the 1874 language, but the present Act, 17
U.S.C. (Supp. V, 1952) § 5(k), does contain the amendatory language
of the 1939 Act.

															[ Footnote 15 ]

															S.Rep.No.6187, 59th Cong., 2d Sess., p. 4:

															"The existing statutes attempt specifications which are
unfortunate because necessarily imperfect and requiring frequent
additions to cover new forms or new processes. The bill, in its
general definition, substitutes a general term, 'all the works of
an author.' The term used in the constitution is 'writings.' But
Congress has always construed this term broadly, and, in doing so,
has been uniformly supported by judicial decision. It has, for
instance, interpreted it as authorizing subject matter so remote
from its popular significance as photographs, paintings, statuary,
and dramas, even if unwritten."

															"As thus interpreted, the word 'writings' would today in popular
parlance be more nearly represented by the word 'works,' and this
the bill adopts, referring back, however, to the word 'writings' by
way of safe anchorage, but regarding this as including 'all forms
of record in which the thought of an author may be recorded and
from which it may be read or reproduced.'" Burrow-Giles Lithographic Co. v. Sarony, 111 U. S.
53 (1884), has held that photographs were copyrightable
in spite of the argument that the Constitution only specified
protection for "writings" of an "author." This decision made clear
that "writings" was not limited to chirography and typography.

															[ Footnote 16 ]

															35 Stat. 1076.

															[ Footnote 17 ]

															Weil, Copyright Law (1917) 214; Howell, The Copyright Law (3d
ed. 1952) 8.

															[ Footnote 18 ]

															H.R.Rep.No.2222, 60th Cong., 2d Sess. 10. The report is not very
clear on the point, however.

															[ Footnote 19 ]

															"The application for registration shall specify to which of the
following classes the work in which copyright is claimed
belongs:"

															"(a) Books, including composite and cyclopaedic works,
directories, gazetteers, and other compilations;"

															"(b) Periodicals, including newspapers;"

															"(c) Lectures, sermons, addresses, prepared for oral
delivery;"

															"(d) Dramatic or dramatico-musical compositions;"

															"(e) Musical compositions;"

															"(f) Maps;"

															"(g) Works of art; models or designs for works of art;"

															"(h) Reproductions of a work of art;"

															"(i) Drawings or plastic works of a scientific or technical
character;"

															"(j) Photographs;"

															"(k) Prints and pictorial illustrations:"

															" Provided, nevertheless, That the above specifications
shall not be held to limit the subject matter of copyright as
defined in section four of this Act, nor shall any error in
classification invalidate or impair the copyright protection
secured under this Act."

															35 Stat. 1076.

															Subsection (k) was amended by the addition of the words
"including prints or labels used for articles of merchandise" in
1939. 53 Stat. 1142. See note 14 supra. Two more classes "(l)
Motion-picture photoplays" and "(m) Motion pictures other than
photoplays" were added in 1912. 37 Stat. 488.

															[ Footnote 20 ] See note 14 supra, for repeal of clause defining engraving cuts and
prints in terms of "fine art."

															[ Footnote 21 ]

															Title 17 of the United States Code, entitled "Copyrights," was
codified into positive law in 1947 without change in the pertinent
provisions. 61 Stat. 652, 17 U.S.C.(Supp. V., 1952) §§ 4, 5.

															[ Footnote 22 ] E.g., "A female figure bearing an urn in front partly supported by
drapery around the head. The figure nude from the waist up and
below this the form concealed by conventionalized skirt draperies
which flow down and forward forming a tray at the base. Sides and
back of skirt in fluted form. The whole being designed as a
candlestick with match tray. The figure standing and bent forward
from hips and waist."

															[ Footnote 23 ]

															" Works of art. -- This term includes all works
belonging fairly to the so-called fine arts. (Paintings, drawings,
and sculpture.)"

															"Productions of the industrial arts utilitarian in purpose and
character are not subject to copyright registration, even if
artistically made or ornamented."

															Rules and Regulations for the Registration of Claims to
Copyright, Bulletin No. 15 (1910) 8.

															[ Footnote 24 ]

															"Works of art and models or designs for works of art. -- This
term includes all works belonging fairly to the so-called fine
arts. (Paintings, drawings, and sculpture.)"

															"The protection of productions of the industrial arts,
utilitarian in purpose and character, even if artistically made or
ornamented, depends upon action under the patent law, but
registration in the Copyright Office has been made to protect
artistic drawings notwithstanding they may afterwards be utilized
for articles of manufacture."

															37 CFR, 1939, § 201.4(7).

															[ Footnote 25 ] E.g., " Lighting fixture design. By F. E. Guitini.
[Bowl-shaped bracket embellished with figure of half-nude woman
standing in bunch of flowers.] Copyright December 28, 1912.
Registration number G 42645. Copyright claimant: Kathodion Bronze
Works, New York."

															[ Footnote 26 ] Great Northern R. Co. v. United States, 315 U.
S. 262 , 315 U. S.
275 .

															[ Footnote 27 ] United States v. Perry, 146 U. S.
71 , 146 U. S.
74 .

															[ Footnote 28 ]

															Arguments before the Committees on Patents of the Senate and
House of Representatives, conjointly, on S. 6330 and H.R. 19853, To
Amend and Consolidate the Acts Respecting Copyright, 59th Cong.,
1st Sess., June 6-9, 1906, p. 11. The statement is applicable to
the 1909 Act, since §§ 5(g) and (h) of the 1909 Act are identical
with the same sections of S. 6330 and H.R. 19853. Although there
were other hearings and reports ( see 51 House Committee
Hearings before Committee on Patents (1906-1912), on Consolidating
and Revising the Copyright Laws; H.R.Rep.No.2222, 60th Cong., 2d
Sess. 3), this statement of Mr. Putnam is the only explanation of
the change in statutory language, though S.Rep.No. 6187, 59th
Cong., 2d Sess., p. 11, refers to "works of art" as a new
designation and mentioned the deletion of "fine" from the
category.

															[ Footnote 29 ] Cf. H. C. White Co. v. Morton E. Converse & Son
Co., 20 F.2d 311.

															[ Footnote 30 ] Burrow-Giles Lithographic Co. v. Sarony, 111 U. S.
53 , 111 U. S. 60 ; Bleistein v. Donaldson Lithographing Co., 188 U.
S. 239 , 188 U. S. 250 ; Louis De Jonge & Co. v. Breuker & Kessler Co., 182
F. 150, 152; F. W. Woolworth Co. v. Contemporary Arts, 193
F.2d 162, 164; see same case, 344 U. S. 344 U.S.
228; Yuengling v. Schile, 12 F. 97, 100; Schumacher v.
Schwencke, 25 F. 466; Pellegrini v.
Allegrini, 2 F.2d
610 .

															[ Footnote 31 ] Wheaton and Donaldson v.
Peters and Grigg , 8 Pet. 591, 33 U. S. 661 ; Fox Film Corp. v. Doyal, 286 U. S. 123 , 286 U. S.
127 .

															[ Footnote 32 ]

															Lord Brougham and Lord St. Leonards in Jefferys v.
Boosey, IV H.L.C. 815, 968, 979, 10 Eng.Rep. 681, 741,
745.

															[ Footnote 33 ]

															Two cases are relied upon to support the position of the
petitioners. Taylor Instrument Companies v. Fawley-Brost
Co., 139 F.2d 98, and Brown Instrument Co. v. Warner, 82 U.S.App.D.C. 232, 161 F.2d 910. These cases hold that the
Mechanical Patent Law and Copyright Laws are mutually exclusive. As
to overlapping of Design Patent and Copyright Laws, however, a
different answer has been given by the courts. Louis De Jonge
& Co. v. Breuker & Kessler Co., 182 F. 150, affirmed on other grounds in 191 F. 35, and 235 U. S. 235 U.S.
33; see also cases cited in note 37 infra. [ Footnote 34 ]

															This Court said, p. 81 U. S.
525 :

															"It is a new and original design for a manufacture, whether of
metal or other material; . . . to be either worked into, or on, any
article of manufacture; or a new and original shape or
configuration of any article of manufacture -- it is one or all of
these that the law has in view. And the thing invented or produced,
for which a patent is given, is that which gives a peculiar or
distinctive appearance to the manufacture, or article to which it
may be applied, or to which it gives form. . . . It therefore
proposes to secure for a limited time to the ingenious producer of
those appearances the advantages flowing from them. . . . It is the
appearance itself, therefore, no matter by what agency caused, that
constitutes mainly, if not entirely, the contribution to the public
which the law deems worthy of recompense."

															[ Footnote 35 ] E.g., Design Patent 170.445 Base for table lamps, a
fanciful statuette of a girl standing in front of a high rock in
bathing costume.

															[ Footnote 36 ]

															The English Copyright Act, 1911, § 22, 4 Halsbury's Statutes of
England (2d ed.) p. 800, does not protect designs registrable under
the Patents and Designs Act (now the Registered Designs Act, 1949,
17 Halsbury's Statutes of England (2d ed.)), unless such designs
are not used or intended to be used as models or patterns to be
multiplied by any industrial process. The Board of Trade has ruled
that a design shall be deemed to be used as a model or pattern to
be multiplied by industrial process within the meaning of § 22 when
the design is reproduced or intended to be reproduced in more than
fifty single articles. The Copyright (Industrial Designs) Rules,
1949, No. 2367, 1 Statutory Instruments 1949, p. 1453.

															[ Footnote 37 ] See Rosenthal v. Stein, note 3 supra; In re Blood, 57 App.D.C. 351, 23
F.2d 772; Korzybski v. Underwood & Underwood, Inc., 36
F.2d 727; William A. Meier Glass Co. v. Anchor Hocking Glass
Corp., 95 F. Supp.
264 , 267; Jones Bros. Co. v.
Underkoffler, 16 F. Supp.
729 ; Louis De Jonge & Co. v. Breuker & Kessler
Co., 182 F. 150; 66 Harv.L.Rev. 884; 52 Mich.L.Rev. 33; cf. Taylor Instrument Companies v. Fawley-Brost Co., 139
F.2d 98.

															[ Footnote 38 ] See Pogue, Borderland -- Where Copyright and Design
Patent Meet, 52 Mich.L.Rev. 33, 58.

															[ Footnote 39 ] F. W. Woolworth Co. v. Contemporary Arts, 193 F.2d 162; Ansehl v. Puritan Pharmaceutical Co., 61 F.2d 131; Fulmer v. United States, 122 Ct.Cl. 195, 103 F. Supp.
1021; Muller v. Triborough Bridge
Authority, 43 F. Supp.
298 .

															[ Footnote 40 ] Sampson & Murdock Co. v. Seaver-Radford Co., 140 F.
539. See Annotation, 26 A.L.R. 585.

															[ Footnote 41 ] Jewelers Circular Pub. Co. v. Keystone Publishing, 281
F. 83, 94.

															[ Footnote 42 ] White-Smith Music Pub. Co. v. Apollo Co., 209 U. S.
1 ; Bleistein v. Donaldson Lithographing Co., 188 U. S. 239 , 188 U. S. 249 ; Arnstein v. Porter, 154 F.2d 464, 468-469; Alfred Bell
& Co., Ltd. v. Catalda Fine Arts, Inc., 191 F.2d 99, 103; Ansehl v. Puritan Pharmaceutical Co., supra; Christie v.
Cohan, 154 F.2d 827.

															Opinion of MR. JUSTICE DOUGLAS, in which MR. JUSTICE BLACK
concurs.

															An important constitutional question underlies this case -- a
question which was stirred on oral argument, but not treated in the
briefs. It is whether these statuettes of dancing figures may be
copyrighted. Congress has provided that "works of art," "models or
designs for works of art," and "reproductions of a work of art" may
be copyrighted, 17 U.S.C § 5, and the Court holds that these
statuettes are included in the words "works of art." But may
statuettes be granted the monopoly of the copyright?

															Article I, § 8 of the Constitution grants Congress the power

															"To promote the Progress of Science and useful Arts, by securing
for limited Times to Authors . . . the Page 347 U. S. 220 exclusive Right to their respective Writings. . . ."

															The power is thus circumscribed: it allows a monopoly to be
granted only to "authors" for their "writings." Is a sculptor an
"author," and is his statute a "writing," within the meaning of the
Constitution? We have never decided the question. Burrow-Giles Lithographic Co. v. Sarony, 111 U. S.
53 , held that a photograph could be copyrighted. Bleistein v. Donaldson Lithographing Co., 188 U.
S. 239 , held that chromolithographs to be used as
advertisements for a circus were "pictorial illustrations" within
the meaning of the copyright laws. Broad language was used in the
latter case,

															". . . 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."

															188 U.S. at 188 U. S. 250 .
But the constitutional range of the meaning of "writings" in the
field of art was not in issue either in the Bleistein case
nor in F. W. Woolworth Co. v. Contemporary Arts, 344 U. S. 228 ,
recently here on a writ for certiorari limited to a question of
damages.

															At times, the Court has, on its own initiative, considered and
decided constitutional issues not raised, argued, or briefed by the
parties. Such, for example, was the case of Continental
Illinois Nat. Bank & Trust Co. v. Chicago, Rock Island R.
Co., 294 U. S. 648 , 294 U. S. 667 ,
in which the Court decided the constitutionality of § 77 of the
Bankruptcy Act, though the question was not noticed by any party.
We could do the same here, and decide the question here and now.
This case, however, is not a pressing one, there being no urgency
for a decision. Moreover, the constitutional materials are quite
meager ( see Fenning, The Origin of the Patent and
Copyright Clause of the Constitution, 17 Geo.L.J. 109 (1929)), and
much research is needed.

															The interests involved in the category of "works of art," as
used in the copyright law, are considerable. The Page 347 U. S. 221 Copyright Office has supplied us with a long list of such
articles which have been copyrighted -- statuettes, book ends,
clocks, lamps, door knockers, candlesticks, inkstands, chandeliers,
piggy banks, sundials, salt and pepper shakers, fish bowls,
casseroles, and ash trays. Perhaps these are all "writings" in the
constitutional sense. But, to me, at least, they are not obviously
so. It is time that we came to the problem full face. I would
accordingly put the case down for reargument.

Summary:
The case of Mazer v. Stein (1954) centered on the copyrightability of statuettes created as bases for electric lamps. The respondents, engaged in the manufacture and sale of electric lamps, created original sculptures that were used as the basis for china statuettes. These statuettes were then fitted with electric wiring, sockets, and lampshades to create fully equipped electric lamps. The respondents sought to copyright these statuettes as "works of art" under the copyright law.

The main issue before the Court was whether these statuettes, intended for industrial use, could be considered "works of art" and thus eligible for copyright protection. The Court held that the statuettes were copyrightable, interpreting "works of art" broadly to include such items. The Court also noted that the potential for patentability did not preclude copyright protection.

Additionally, the Court discussed the constitutional implications of the case, specifically addressing the meaning of "writings" in the context of art. However, the Court chose to postpone a definitive decision on the constitutional question, citing the need for further research and the lack of urgency in the case. The Court affirmed the lower court's decision, upholding the copyrightability of the statuettes.