George Bleistein, and several of his partners in the Courier Litho. Co., sued the Donaldson Litho. Co. for copyright infringement when Donaldson made approximately 23,800 unauthorized copies of three chromolithograph posters advertising the "Great Wallace Shows" traveling circus.
Before pressing forward, some may be interested to learn that lithography is a method for making prints from a flat surface, such as a stone, by pressing ink or wax into paper or fabric. Chromolithography is merely the same method applied to colored lithograph prints.
In any event, Courier had originally designed and registered copyrights in the posters in 1898. Courier printed the posters for the circus, and when the circus ran out of copies, it hired Donaldson to print more using Courier's designs.
The primary issue addressed by the Supreme Court was whether Courier's chromolithograph designs, which were used strictly for advertising, fell "within the protection of the copyright law." The issue may seem trite to contemporary readers, especially considering that even the Copyright Act of 1874 explicitly protected "any engraving, cut, print ... [or] chromo." 18 Stat. 78, 79. However, Supreme Court precedent at the time arguably denied copyright protection for works such as advertising copy, sales catalogs, and product labels. See e.g. Higgins v. Keuffel, 140 U.S. 428 (1891) (denying copyright protection for labels on bottles of disappearing ink for want of "some purpose other than as a mere advertisement or designation of the subject to which it was attached").
Donaldson sought to leverage such authority by arguing that the advertising posters in question were not "connected with the fine arts" and were thus excluded from the Copyright Act.
Justice Holmes, in drafting the majority opinion of the Court, expressed what some have dubbed "profound skepticism" of this view. In an oft-quoted passage of the decision, Justice Holmes warned that:
It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits. At the one extreme some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke . . . At the other end, copyright would be denied to pictures which appealed to a public less educated than the judge. Yet if they command the interest of any public, they have a commercial value - it would be bold to say that they have not an aesthetic or educational value - and the taste of any public is not to be treated with contempt.Indeed, "[a] picture is none the less a picture and none the less a subject of copyright that it is used for an advertisement." Accordingly, the Supreme Court held that Courier's chromolithograph posters fell within the protection of the copyright law.
To reach this result, Justice Holmes painted a subtle judicial gloss on the sine qua non of copyright law, the originality requirement. He suggested that every work which is "drawn from life" is a "personal reaction of an individual upon nature," and thus, can be inherently original. He also suggested that the originality requirement might be satisfied simply by the "amount of training required" to create a work.
The point to take away in light of Justice Holmes' judicial gloss, is that the degree of originality requisite for copyright protection was, and continues to be, purposefully minimal.
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The Great Wallace Shows: Colossal 3 Ring Circus, 2 Elevated Stages, was first created / published by the Courier Lithographic Company c1898. See Library of Congress, Prints and Photographs Online Catalog (Control No. 2007684720). The work is in the public domain because its copyright duration has expired. The initial copyright term of the work lasted twenty-eight (28) years from publication, until 1926. If renewed, registration lasted another twenty-eight (28) years, until 1954.
For a great insight into the history and ramifications of Bleistein, see Dianne Leenheer Zimmerman, The Story of Bleistein v. Donaldson Lithographing Company: Originality As A Vehicle For Copyright Inclusivity, in Jane C. Ginsburg and Rochelle Cooper Dreyfus, eds., INTELLECTUAL PROPERTY STORIES at p. 77 (2006). The article develops a very useful progression of the originality requirement from the Trade-Mark Cases to Feist Publications Inc. v. Rural Telephone Services.