Bleistein v. Donaldson Lithographic Co., 188 U.S. 239 (1903)

CASE BRIEF

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.

Full Text Available Here.

COMMENTARY

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.

Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884)

CASE BRIEF

Napolean Sarony, a photographer, sued Burrow-Giles Lithographic Co., a printing company, for copyright infringement under the Copyright Act of 1874 (18 Stat. 78) when it attempted to sell 85,000 unauthorized copies of Sarony's Oscar Wilde No. 18 photograph.

The 1790 Copyright Act explicitly protected any "map, [nautical] chart or book."  In 1802, "prints" were added (2 Stat. 171); in 1831 "musical compositions" were added (4 Stat. 436); in 1856 "dramatic compositions" were added (11 Stat. 138); and in 1856 "photographs" were added (13 Stat. 540).

The primary issue addressed by the United States Supreme Court in 1884 was whether "Congress had the constitutional right to protect photographs and negatives thereof by copyright."  Burrow-Giles Lithograph Co. argued that photographs generally, and certainly Sarony's photograph, lacked originality necessary for copyright protection - "the photograph is the mere mechanical reproduction of the physical features or outlines of some object animate or inanimate, and involves no originality of thought or any novelty in the intellectual operation connected with its visible reproduction in the shape of a picture."

The Supreme Court explained that the appropriate inquiry for copyright protection is "the existence of those facts of originality, of intellectual production, of thought, and conception on the part of the author ...." - the constitutional requirement originally recognized by the Supreme Court in the Trade-Mark Cases. 

Accordingly, the Supreme Court focused on the trial court's factual finding that Sarony made Oscar Wilde No. 18 "entirely from his own original mental conception, to which he gave visible form by posing the said Oscar Wilde in the front of the camera, selecting and arranging the costume, draperies, and other various accessories in said photograph, arranging the subject so as to present graceful outlines, arranging and disposing the light and shade, suggesting and evoking the desired expression, and form such disposition, arrangement, or representation, made entirely by [Sarony] ...."

In other words, photography is not merely the unoriginal manual operation of a camera.  Rather, originality requisite for copyright protection is found in a photographer's selection of any number of artistic choices including angle, lighting, and arrangement of the subject.

Ultimately, the Supreme Court affirmed the Second Circuit's holding that Sarony's photo was an "original work of art" and "the product of [Sarony's] intellectual invention."

Full Text Available Here.

COMMENTARY

The Oscar Wilde No. 18 derivative work above is based on the circa 1882 photograph taken by Napolean Sarony (1821 - 1896).  See Library of Congress, Prints and Photographs Online Catalog (Control No. 98519710).  The photograph is most definitely in the public domain as the duration of copyright protection has expired.  The quick and dirty explanation is as follows:

As the Supreme Court indicates, Sarony took "all steps required ... to obtain copyright of this photograph" including notice formalities.  However, the Copyright Act of 1831 granted authors an initial term of protection for twenty-eight (28) years and a renewal term of protection for another fourteen (14) years.  Thereafter, the Copyright Act of 1909 extended the renewal term another fourteen (14) years, granting authors like Sarony the possibility for a total of fifty-six (56) years of copyright protection.  At best, Sarony's Oscar Wilde No. 18 would have enjoyed its initial term of protection until 1910 and, if renewed, a renewal term until 1938.