Ehret v. Pierce

• Decision Date: 28 July 1880
• Citation: 10 F. 553
• Parties: EHRET v. PIERCE.
• Court: U.S. District Court — Eastern District of New York

10 F. 553

EHRET v. PIERCE.

United States Circuit Court, E.D. New York.

July 28, 1880

Erastus New, for plaintiff.

Alfred B. Cruikshank, for defendant.

BENEDICT D. J.

This is a suit in equity, brought to restrain the defendant from publishing a certain form of advertising cards devised for the purpose of displaying paints of various colors, upon the ground that it infringes upon a copyright obtained in 1855 by one Thomas D. Morris, and thereafter assigned to the plaintiff.

The subject of the copyright upon which the plaintiff's right of action depends is designated, 'A specimen pattern of Morris' tinted zinc paints. Card of outside colors. ' Such is the title recorded. It consists of a sheet of paper having attached thereto 30 square bits of paper, painted in various colors, each square having a different color, and each being numbered. Surrounding these squares is lithographic work, containing, above the squares, the words 'Specimen pattern of Morris' tinted zinc paints. Recommended to builders, architects, and painters for their strength, freshness of color, durability, and cheapness. Colors selected from this card by number will be warranted to correspond with the pattern. Prepared dry or ground in oil and for sale by Thomas D. Morris, 18 School street, Boston. Card of outside colors. ' Below the squares are the words: 'Morris' improved groundwork for all kinds of wood graining; also medium for oil and distemper graining and decorative painting;' and on one side the words, 'Also, Morris' unrivaled snow-white and No. 1 French zinc paints;' and on the other side the words, 'Any color not on the card will be matched from sample and ground to order at short notice.'

The first question that presents itself for determination is whether such a card as above described can be the subject of a copyright under the act of February 3, 1831, (4 U.S. St. at Large, 436.) The act of 1831 is confined, by its terms, to the following matters, viz., a book, map, chart, musical composition, print, cut, or engraving. The plaintiff in his bill designates the matter in question as an engraving or chart. Morris himself, who took out the copyright, calls it a chart. It is not possible to hold such an article to be a chart, within the meaning of the act of 1831. The word 'chart,' used in that statute, refers to a form of map. This card is no map. Neither is it a print, cut, engraving, or book, within the meaning of the statute. True, it has lithographic work upon it, and also words and sentences; but it has none of the characteristics of a work of art, or of a literary production. It is an advertisement, and nothing more. Aside from its function as an...