188 U.S. 239 (1903), 117, Bleistein v. Donaldson Lithographing Company

Docket Nº:No. 117
Citation:188 U.S. 239, 23 S.Ct. 298, 47 L.Ed. 460
Party Name:Bleistein v. Donaldson Lithographing Company
Case Date:February 02, 1903
Court:United States Supreme Court

Page 239

188 U.S. 239 (1903)

23 S.Ct. 298, 47 L.Ed. 460



Donaldson Lithographing Company

No. 117

United States Supreme Court

February 2, 1903




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 248

HOLMES, J., lead opinion

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,

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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.

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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...

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