J.H. White Mfg. Co. v. Shapiro

• Decision Date: 11 August 1915
• Citation: 227 F. 957
• Parties: J. H. WHITE MFG. CO. v. SHAPIRO.
• Court: U.S. District Court — Southern District of New York

227 F. 957

J. H. WHITE MFG. CO. v. SHAPIRO.

United States District Court, S.D. New York.

August 11, 1915

Arthur H. Serrell, of New York City, for complainant.

Munn &amp Munn, of New York City, for defendant.

AUGUSTUS N. HAND, District Judge.

Complainant copyrighted its catalogue of brass goods, which consisted principally of trimmings for electric light fixtures. Defendant is charged with copying in his catalogue several of the designs for these trimmings, and with thus infringing complainant's copyrighted catalogue.

Defendant moves to dismiss the bill of complaint upon ground (f), among others, which is that the catalogue appears to be merely a trade list of articles of general merchandise, and as such not a proper subject for copyright protection under the law. In Da Prato Statuary Co. v. Giuliani Statuary Co (C.C.) 189 F. 90, it was held that a catalogue containing illustration of articles for the decoration of churches might be copyrighted. A similar conclusion was reached by Judge Witmer in National Cloak & Suit Co. v Kaufman (C.C.) 189 F. 215, in regard to a catalogue containing pictures of women's gowns manufactured by the complainant showing the latest fashions. Mr. Justice Holmes in Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 23 Sup.Ct. 298, 47 L.Ed. 460, speaking for the majority of the Supreme Court, sustained a copyright upon advertisements of a circus which were pictorial illustrations of the performers. In the cases of Lamb v. Grand Rapids School Furniture Co. (C.C.) 39 F. 474, and J. L Mott Iron Works v. Clow (C.C.) 72 F. 168, it was held that pictorial illustrations of furniture and artistic plumbing fixtures in a catalogue for use in advertising were not subjects of copyright.

These decisions certainly are not without much basis in reason; but I cannot see that the distinction made by them in respect to catalogues for advertising is warranted by the strict language of the statute, and the case of Bleistein v. Donaldson Lithographing Co., supra, though concurred in by only seven Justices, with a dissent by Harlan and McKenna, JJ., is binding upon me, and makes it necessary to sustain the copyright upon this motion. Section 4952 of the Revised Statutes provides that:

'The author, inventor, designer, or proprietor of any * * * engraving, cut, print, or photograph or negative thereof, or of a painting, drawing, * * * shall * * * have the sole liberty of printing,

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