George Bleistein v. Donaldson Lithographing Company

• Decision Date: 02 February 1903
• Docket Number: No. 117,117
• Citation: 188 U.S. 239,23 S.Ct. 298,47 L.Ed. 460
• Parties: GEORGE BLEISTEIN, John W. Bridgman, John A. Rudolph, Ansley Wilcox, Gerritt B. Lansing, and Edwin Fleming, Doing Business under the Name of The Courier Company and the Courier Lithographing Company, Plffs. in Err. , v. DONALDSON LITHOGRAPHING COMPANY
• Court: U.S. Supreme Court

188 U.S. 239

23 S.Ct. 298

47 L.Ed. 460

GEORGE BLEISTEIN, John W. Bridgman, John A. Rudolph, Ansley Wilcox, Gerritt B. Lansing, and Edwin Fleming, Doing Business under the Name of The Courier Company and the Courier Lithographing Company, Plffs. in Err.,

v DONALDSON LITHOGRAPHING COMPANY.

No. 117.

Argued January 13, 14, 1903.

Decided February 2, 1903.

Messrs. Ansley Wilcox and Arthur Von Briesen, and Messrs. Wilcox & Miner for plaintiffs in error.

[Argument of Counsel from pages 239-246 intentionally omitted] Messrs. Edmund W. Kittredge and Joseph Wilby for defendant in error.

[Argument of Counsel from pages 246-248 intentionally omitted] 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. at L. 828, shap. 517, § 6, U. S. Comp. Stat. 1901, pp. 549, 550). It is an action brought by the plaintiffs in error to recover the penalties prescribed for infringements of copyrights. Rev. Stat. §§ 4952, 4956, 4965 (U. S. Comp. Stat. 1901, pp. 3406, 3407, 3414), amended by act of March 3, 1891 (26 Stat. at L. 1109, chap. 565), and act of March 2, 1895 (28 Stat. at L. 965, chap. 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. 44 C. C. A. 296, 104 Fed. 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. 426 435, 40 L. ed. 480, 483, 16 Sup. Ct. Rep. 322; Colliery Engineer Co. v. United Correspondence Schools Co. 94 Fed. 152; Carte v. Evans, 27 Fed. 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, chap. 235), and made up of the plaintiffs, the other a trade variant on that name. Scribner v. Clark, 50 Fed. 473, 474, 475, S. C., sub nom. Belford, C. & Co. v. Scribner 144 U. S. 488, 36 L. ed. 514, 12 Sup. Ct. Rep. 734.

Finally, there was evidence that the pietures 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 Lithographing Co. v. Sarony, 111 U. S. 53, 28 L. ed. 349, 4 Sup. Ct. Rep. 279. 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, Fed. Cas. No. 1,580. See Kelly v Morris 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 Fed. 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, 49 C. C. A. 86, 110 Fed. 374.

We assume that the construction of Rev. Stat. § 4952 (U. S. Comp. Stat. 1901, p. 3406), 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. at L. 78, 79, chap. 301, § 3, U. S. Comp. Stat. 1901, p. 3412). 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...