Louis Dejonge Company v. Breuker Kessler Company

• Decision Date: 09 November 1914
• Docket Number: No. 18,18
• Citation: 59 L.Ed. 113,235 U.S. 33,35 S.Ct. 6
• Parties: LOUIS DEJONGE & COMPANY, Appt., v. BREUKER & KESSLER COMPANY
• Court: U.S. Supreme Court

235 U.S. 33

35 S.Ct. 6

59 L.Ed. 113

LOUIS DEJONGE & COMPANY, Appt.,

v BREUKER & KESSLER COMPANY.

No. 18.

Argued October 27, 28, 1914.

Decided November 9, 1914.

Messrs. Seward Davis, Walter F. Thompson, and Charles E. Wilson for appellant.

[Argument of Counsel from pages 33-35 intentionally omitted] Mr. Frank S. Busser for appellee.

Mr. Justice Holmes delivered the opinion of the court:

This is a bill to restrain an alleged infringement of a copyright under the law as it was before the act of March 4, 1909; viz., Rev. Stat. §§ 4952, 4970, U. S. Comp. Stat. 1901, pp. 3406, 3416; act of June 18, 1874, chap. 301, 18 Stat. at L. 78, U. S. Comp. Stat. 1901, p. 3411. The work alleged to be infringed was described as a painting repre- senting sprigs of holly, mistletoe, and spruce, arranged in the form of an open cluster having substantially the outline of a square. It was exhibited in court, was a water color painting in fact, and no doubt might have been framed and used for the same purposes of pleasure as other more considerable works of art. But it was so designed that it could be reproduced in repetitions that fitted and continued one another side by side and above and below, and was reproduced in that way with twelve repetitions upon strips of paper having much the look of wall paper, and intended to be used in covering or wrapping boxes during the holiday season. Each strip bore a single notice of copyright. The circuit court, assuming that infringement was established, was of opinion that the work was a painting, capable of copyright, and also a design, patentable as such, but held that, as the appellant had elected to copyright, the notice must be repeated on each of the twelve squares, although they did not present themselves as separate squares on the continuous strip. 182 Fed. 150. The circuit court of appeals, reserving its opinion as to whether the sphere of copyright and patent for design overlapped, agreed with the circuit court that, if this was a painting, every reproduction of it must bear the statutory notice, and affirmed the dismissal of the bill. 111 C. C. A. 567, 191 Fed. 35.

It seems to us that the case is disposed of by the statement. The thing protected and the only thing was the painting, the whole of which was reproduced in a single square. Every reproduction of a copyrighted work must bear the statutory notice. American Tobacco Co. v. Werckmeister, 207 U. S. 284, 294, 52 L. ed. 208, 215, 28 Sup. Ct. Rep. 72, 12 Ann. Cas....