J.L. Mott Iron Works v. Clow

• Citation: 82 F. 316
• Decision Date: 04 October 1897
• Docket Number: 325.
• Parties: J. L. MOTT IRON WORKS v. CLOW et al.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

82 F. 316

J. L. MOTT IRON WORKS v. CLOW et al.

No. 325.

United States Court of Appeals, Seventh Circuit.

October 4, 1897

This is an appeal by the J. L. Mott Iron Works from a decree sustaining the demurrer to its amended bill of complaint, and dismissing the bill for want of equity. The bill charges, in substance, that the J. L. Mott Iron Works since the year 1873 has continuously been engaged in the manufacture of various articles and appliances of useful or ornamental character, or both, in iron and other base metals, and for many years has maintained an office and show room in the city of New York and in the city of Chicago, and has conducted a large business in the articles described throughout the United States; that, during the period from the year 1888 to and including the year 1893, the complainant became the proprietor of certain illustrated books or circulars, with respect to each of which, and before publication, a printed copy of the title was duly deposited with the librarian of congress, and within ten days after publication two completed printed copies were deposited in the same office, and notice of the copyright given by inserting on the title page of each printed and published copy of the work the usual notice that the books or circulars were entered according to the act of congress. The titles to these different publications were as follows: '1888. Catalogue G. Illustrating the Plumbing and Sanitary Department of the J. L. Mott Iron Works.' '1890. Imperial Porcelain Baths.' '1890. Imperial, Newport, Yorkshire, and Hygeia Slop Sinks.' '1891. Imperial Porcelain Baths.' '1892. Lavatories for Use in Steamships, Yachts, Offices, etc., and All Places Where Economy of Space is Required.' '1892. Imperial Porcelain Lined Iron Seat and Foot Baths. ' '1893. Imperial Porcelain Baths.' '1893. Mott's Patent Slop Sinks.' '1893. Bath-Room Fitting.' Copies of their publications are filed as exhibits to the bill. It is alleged that each and every of such books and publications was designed and adapted to be used, and has constantly been used since their several publications, as books of reference by architects, plumbers builders, and other persons interested in constructing houses, or requiring articles of the nature described, or information regarding styles, designs, dimensions, and other qualities of articles of the kind described, and for purposes of comparison of such designs with those of other manufacturers of similar goods. The bill further charges that the defendants, who are engaged in the manufacture of similar articles, published certain catalogues, entitled: '1894. Illustrated Catalogues of James N. Clow and Son Manufacturers and Dealers in Supplies for Plumbers, Steam and Gas Fitters, Water and Gas Works, Railroads and Contractors;' that such catalogue is composed to a large extent of cuts and designs copied from those in the copyrighted catalogues of the complainant, or in some of them, and such cuts or designs, and the plates from which they were printed, were not taken or made from physical copies of articles manufactured by the defendants, or made by artists or engravers originating them, but they were copied directly from the plates, designs, or cuts in the catalogue or circulars of the complainants, taken by photography, or by some other mechanical process not involving the thought or artistic skill prerequisite to make an original design or cut, or to engrave a plate from a physical object or manufactured article. It is charged that the copying of such designs or cuts, and their publication in the catalogue of the defendants is a piracy of the copyrighted catalogues of the complainant, and an infringement of its sole and exclusive right to publish its catalogue for the term of years prescribed by law. The bill specifically states the portions of the defendants' catalogues which have been copied directly, specifying nine plates, pictures or designs from the defendants' catalogue alleged to be copied from plates, pictures, or designs in the complainant's catalogue. The bill prays for an injunction to restrain the further printing, publishing, selling, or disposing of any catalogues containing copies of the complainant's catalogue, or any portion, or either of them, and from printing, publishing, selling, or otherwise disposing of any cuts or designs copied, taken, or colorably altered from the complainant's catalogues, or either of them, during the respective terms of life of the copyrights of the complainant, and that such copying may be declared to be an unlawful piracy of the complainant's catalogue. The demurrer, so far as it is necessary to be stated, proceeds upon the grounds that the matter contained in the several catalogues of the complainant was not the subject-matter of copyright under the copyright laws of the United States, that such publications were simply trade catalogues or circulars, and that neither the cuts, illustrations, nor text could be legally copyrighted, but were common property, and subject to the use of the defendants for the purpose of issuing circulars and advertising the same kind of wares as the wares represented in the several books or catalogues alleged to have been copyrighted.

John H. Hamline, Frank H. Scott, and Frank E. Lord, for appellant.

Jacob Newman, George W. Northrup, and S. O. Levinson, for appellees.

Before WOODS, JENKINS, and SHOWALTER, Circuit Judges.

JENKINS Circuit Judge.

The constitution of the United States grants to the congress 'the power to promote the progress of science and useful arts by securing for limited times to authors and inventors exclusive right to their respective writings and discoveries. ' Article 1, Sec. 8. The power thus granted was exercised by the congress sitting first after the adoption of the constitution. 1 Stat. 124. And, in the act, entitled 'An act for the encouragement of learning,' copyright for the period of 14 years was reserved to the author of any map, chart, book, or books. The congress has since frequently acted with respect to the subject, enlarging and regulating the rights of authors under the constitutional provision. 2 Stat. 171; 4 Stat. 436; 9 Stat. 106; 10 Stat. 685; 11 Stat. 138-380; 14 Stat. 395; 16 Stat. 198; Rev. St. Secs. 4948-4971; 18 Stat. 78; 20 Stat. 359; 22 Stat. 181; 26 Stat. 1106. These statutes exhibit the growth in the number of subjects to which the congress of the United States has deemed the constitutional provision to be applicable. The protection originally extended to maps, charts, and books has been enlarged to comprehend books, pamphlets, maps, charts, dramatic or musical compositions, engravings, cuts, prints, photographs or negatives thereof, paintings, drawings, chromos, statues, statuary, and models or designs intended to be perfected as works of the fine arts. The act of the year 1874 (18 Stat. 78, c. 301) provides that:

'The words 'engravings,' 'cuts,' and 'prints' 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 article of manufacture shall be entered under the copyright law but may be registered in the patent office.'

The clause of the constitution in question has been under consideration by the supreme court, and its purpose determined. Grant v. Raymond, 6 Pet. 218; Wheaton v. Peters, 8 Pet. 591; The Trade- Mark Cases, 100 U.S. 82; Baker v. Selden, 101 U.S. 99; Lithographic Co. v. Sarony, 111 U.S. 53, 4 Sup.Ct. 279; Higgins v. Keuffel, 140 U.S. 428, 11 Sup.Ct. 731. The result of these decisions would seem to place this construction upon the constitutional provision under consideration: That only such writings and discoveries are included as are the result of intellectual labor; that the term 'writings' may be liberally construed to include designs for engraving and prints that are original, and are founded in the creative powers of the mind,--the fruits of intellectual labor; that prints upon a single sheet might be considered a book, if it otherwise met the spirit of the constitutional provision; that, to be entitled to a copyright, the article must have, by and of itself, some value as a composition, at least to the extent of serving some purpose other than as a mere advertisement or designation of the subject to which it is attached. In the case before us the bound volume or catalogue issued by the appellant contains illustrations of the different wares offered for sale giving the dimensions and prices of each. The letterpress of the book is confined to a statement of dimensions and price, is of no literary merit, and gives no other information. It is a mere priced catalogue illustrated with pictures of the wares offered for sale. The copyright is sought to be sustained upon the ground that such illustrations are of artistic merit, and so within the protection of the constitutional provision, that any picture possessing artistic merit when connected with advertising matter becomes...