GOO
FEDERAL REPORTER.
Gubmitted to their inYestigation is, by its nature, one of those works of art which the law of 1790 protects; in particular, the decision by which the judges of the fact decide that a photographic portrait is a production of the mind cvming under the terms of the law, is not under the control of the Cour de Cassation. Rej. 28 Nov .1862, aff. .Meyer et Pierson, Pataille, 62,419. (3) That if, in 5clleral, the reproduction of a pkture or of a portrait by photographic process may not constitute a work of art in the spirit of the law, it is otherwise when there is joined to the ordinary labor of the photographer that of the designer, or any other artistic combination; in particular, the fact of a photographic llegative having been touched up by a draughts man and haVing undergone important modifications, gives to it, unquestionably, the character of a work of art· Paris, 29 .A.. VI'. 186!, aff. Duroni et Muller, Pataille, 0,1, 235. (4) That if the photographic products are not necessarily works which should be classed in the category of fine arts, they can be consitlered as such, and be protected by the law of 1793. when they are invested with the characteristics exacted by that law; particularly, in a portrait, the pose, the arrangement of the clothing, and the accessories, may give to the work the imprint of the persouality of the photographer. ami place him under the protection of the law. Paris, 6 Mai, 186·1, aff. Masson, Pataille. 64, 232. " Our Opinion. Of these three theories we do not hesitate, so far as we are concerned, to adopt the second; but the last, especially, seems to us altogether inadmissiule. It may be argued that the work of the photographer is or is not protected by the law, and. without agreeing with those who maintain the negative, we, at least, understand their view. As to the intermediate opinion, it is evidently contrary to the letter as well as to the spirit of the law. It cannot, indeed, have come into tl'e mind of the legislator to transform our tribunals into academies, and to confide to our jUdges the duty of deciding that this is art and that that is not. Are such powers granted to our judges in the matters of drawing, of painting, and of sculpture; that is, in those departments which are certainly regulated by the law of 1793'( Can they say of one i;ainting that it is a work of art, and of another that it has in it nothing artistic? Can they grant protection to the one and refuse it to the other? No; the law is wiser; good or bad, whether it conform or not to the laws of resthetics, every painting, drawing, and piece of sculpture is a work of art. Thns it was rightly said by l'avocat imperial Thomas, ill the conclusioni" which ,,-e gave above, that it is impossible to avoid this altel'llative; either refuse the title of artistic works to all photographs, or grant it to all; outside of that there is only rOOIll for arbitrariness, lind, consequently, for danger, as well for the judge as for the litigant. "Let us now come to the reasons which, in our estimation. justify the second llleory. The law of 1703 is a general law; we think we have shown that: it protects, as we haye seen, every production of the mind, provided it be conm'cted with"le fine arts; and we have admitted, in common with all authors, that a casting, even of a natural object, comes ul1ller the provisions of the law. How, after that. could we exclude photography? ,Vhat impresses the adversaries of our theory is that. in photosraphy, the apparatus plays so important a role,-e\'en the preponderant role. ,Yhat does that show? If the painter, after having conceiYeu his picture. should find the means of reprod'icing it on the can \"<lS with one stroke, just as he conceived it, would it be his work was a production of the mind? ,Yhat matters the denied greater or less rapidity and ease of the execution? Is it not the conception, however expressed, which constitufes the artistic work: The piIotographer conceives his work; he arranges the accessories and play of light; he arranges the distance of his instrument according as he wants. in the reprolluction, either distinctness or size; thus, also, he outains this or that effect of perspect-
SARONY V. BURROW-GILES LITHOGRAPHIC CO.
601
ive. After that, what matters the rapidity, the perfection, the fidelity of the instrnment with which he executes what he has conceived, arranged, created? ·We have said many times already that the author's right was derived from the creation which gives to the work its character of individuality. Is this individuality lacking here? Is it not certain that two photographers, reproducing, each for himself, the same scene or the same model, will obtain two pictures capable of being distinguished? There is, therefore, a creation in the juridical sense of the word. The argument which we have used in an analogous question lllay be used here: Suppose the discovery of the photograph to have remained secret; its inventor presents the copies obtained by its process, without disclosing the mystery; he allows it to lJe believpd that this copy is obtained by some improvement in the ordinary process of printing and engraving. Would anyone think of denying his right? Would not this copy be put in the same c:ttegol'Y as other copies, and would the protection of the law be unhesitatingly granted to it? Why change opinions because the process of photography is known? Has its work not remained the same? lIas it lost anything of its personal character? "It is almost useless to add-so {'vident is it-that our theory has the advantage of respecting the rights of each person; for if the photographer has the property in his proof, his property does not go beyoml that, and everybody is none the less free to reproduce the same subject. Why not leave to him the property in the work which he has conceived anll executed? ·Why encourage the piracy of his ri vals ? ·What good does society deri ve?" DESCInPTIVE ADVERTISDIENTS. It was adjudged in Englanll in 1872 that there could be no copyright in a descriptive advertisement, illustrated or otherwise, of articles which anyone might sell'! In that case an upholsterer had published an illustrated fUl'llishing guide, with engnwings of the articles of fUl'lliture which he sold, and descriptive remarks thereon. A bill was filed to restrain another upholsterer from publishing, for the purpose of his own trade, a similar work, in which many of tlte said engraVings were alleged to be copied. And it was Itch! that he could not be restrained from copying illustrations which were merely descriptive of his stock, or of common articles of furniture. Lord HmlILLY, M. H., declared: "At the last it always comes round to this: that, in fact, there is no copyright ip. an advertisement. If you copy the advertisement of another, you do him no wrong, unless in so doing you lead the public to believe that you sell the articles of the person whose ad\'ertiscment you copy." In a case decided two years it appeared that a cemetery stone-mason employed and remunerated a person to collect monumental designs, and published a book contai/ling sketches of SUCll designs, with scarcely any letterpress. It was held that a tradesman who employed another, for renumeration, to compile a book of designs for him, was himself entitled to copyright in the book, and that a book in the nature of an advertising catalogue might be the subject of copyright. The distinction between the two cases seems to be that in the latter case the subject-matter was a book, which had a value as a book of reference, while in the former case it was a simple of articles offered for sale. In this country it was held 3 that an adnrtising card, devised for the pur" ])ose of displaying paints of various colors, "consisting <Jf a sheet of paper llaving attached thereto square bits of paper painted in various colors, each square having a different color, TI·ith some lithographic work surrounding the squares advertising the sale of the colors," was not the subject of copy_ 1 Cobbett v. Woodward. L. R. U Eq. 407. 2Grace v. :\ewman. L. R. 19 Eq. 623.
SEhret v. Pierce, 10 Fed. Rep. 553; S. C. \3 tllalcl.lf.30"2.
(}02
right. ,. True, it has lithographic work upon it," said BENEDICT, J., "and abo words and sentences; Illi L it has none of the characteristics of a work of art, or of a literary proclilction. It is an advertisement, and nothing more. Aside from its functions as an advertisement of the paints, it has no value." In a sUbsequent case it was decided, in the circuit court for the Bouthem dist rid of .New York, that a chromo, which was a' meritorious work of art, might be copyrightell, though designed and used for gratuitous distribution as an advertisement for the purpose of attracting lmsiness. 1 It was designed, said the court, as a symbolic glorification of lager-beer drinking. In the center was a conspicuous figure of King Garnbrinus, his left arm resting upon a keg of lager, the right holding up a foaming glass of beer. On either side of him were a dozen ligures of persons representing various classes in life, into whose eager hands his page was distributing the beer. .. This chromo, by its subject, its brilliant coloring, its excellent flnish, and the artistic grouping of its ligures, forms a striking picture, suitable for hanging in saloons. and well calculated to draw attention to the plaintiff, whose name is printed in large type beneath the figures as a person engaged in the lager-beer business, and constituting, therefore, a valuable mode ot' advertising." The distinction between this case and that of Ehret v. Pierce, supra, anu Cobbett v. Woodward, supra, lies in the fact that it was not a mere print or engraving of an article offered for sale. It was in itself a work of the imagination, possessing artistic qualities. And the court laiu down the proposition that when the work in question was clearly one of al'listie merit, it was not material whether the person claiming the copyright expected to obtain his reward directly through a sale of the copies, or indirectly tlmJUgh an increase of profits in his business, to be obtained through their gratuitous distribution. PmxTs. In RosenbarJh v. DreYfnss,2 the question was whether" prints of small balloons, with printing for embroidery and cutting lines," and" prints of hanging baskets, with printing for embroidery and cutting lines," were subject to copyright. The form of the different parts of the balloon was marked out with lines showing how the paper was to ue cut to make the different parts fit together, so as to ':onstruct of them a balloon, and with marks showing howand where they might be embroillered. It \Vas not subject to copyright as being a" print," within the meaning of the statute. "It {the word' print ') means, apparently, a picture; something complete in itself, similar in kind to an engraving, cut, or photograph. It clearly does not lIleall something printed on paper, that is not intended for use as a picture, but is itself to ue cut up and embroil1ered, and thus made into an entirely different article, as a balloon or hanging basket." It was also held that they did not corne within the clause, "models or designs intendel1 to be perfected as works of the fine arts." LDIITED TO XATIVE ART. The claim has been reccntlv advanced that the act of 1870 (Rev. St. § authorizes citizen or resident of this conntry, if he be .. proprietor" of any book, map, print, etc., to obtain a copyright therefor, although the author, inventor. or designer was an alien. The literal reading of the section of the act does not require that both the "author" ami the" proprietor" shall be citizpns or residents of the Vnited States. O\Ying to the peculiar phraseology of the statute, it \yas claimed that as to" drawings, chromos, statues, statuary, and models," a" proprietor" might obtain a copyrigllt, though the artist or author was an alien. But the court held that such a holding \yould illyolye a reversal of the policy of the government from its founuation, to protect American artists aUlI
,I
1
Yue!1gling v. Schi!C', 12 Fed.TIe? 97.
22 Fe,l. Rep. 217.
SCHREIBER V.
THORNTON.
603
authors onlY' and that the word" proprietor," as used in the copyright laws, ment the of an artist or author who might ·himself ohtain a copyright.1 1
HENRY
WADE ROGEl:S.
v.
1"4 Fed. Hep. 97.
SCIIREIDER and others, who sne as well for the United States as for themselves, v. THORNTON. 2 (District Court, E. D. Pennsylvania. 1. April 24,1883.)
COPYRTGHT-COrYING AND PUIlUSHTXG COPYRIGHTED PHOTOGRAPIT-CONSTI'l'UTIONAUTY OF HEY. DT. §§ 4U52 AND 49G5-POWER OF (JOIWI:ESS TO DECUHE COPYltIGIIT TO PHOPIlIETOIt O}' A PHOTOGTIAPil.
The act of congress (HcY. Dt. §§ 4952 and 4965) securing a copyright to the proprictor of a photograph, and imposing a pcnalty for the infringcmcnt of such copyright, is constitutbnul.
2.
QUI 'fA)I ACTfON-l'EXALTY FOI: TilE INFHINGEMENT OF COrYRlGilT TO TITE PHornnnOBS OF A l'HOTOGHAPH.
In an act ton by sevc.ral persons, bcing the proprietors of It duly copyrighted photograph, to recover, as well for the United btatcs as for themselvcs, the pcnalty for infringcment providcd by section 4%5, it appeared that the defcndant had cau,;ed lithographic copies of the photograph to he made, of which 14,SUQ werc fO'llld in his po,session or controL Held, that the defendant was liaille to a pcnalty of one dollar for each copy so found in his possession or control.
Motion for a New Trial. ThiS was a qui tam action, pursuant to section 4!)G5, Rev. St., brought by Francis Schreiber and others, suing us well for the United States as for themselves, against Edward B. 'l'hornton, to recover a statutory penalty for the copying, printing, pu blishing, selling, and exposing to sale by the defendant of a photograph, copyrighted by plaintiffs. The defendant pleaded "not guilty." The facts appearing upon the trial were similar to those disclosed by the evidence in a former trial for the same matter, and fully reported in Schreibcr v. Sharplcss, 6 FiW. REP. 175. The plaintiffs, being photographers, had made r. ::.d copyrighted, as proprietors, a certain photograph, the title thereof being "The Uother Elephant 'Hebe' and her baby 'Americus,' the first known to have been born in captivity in the world. Born at Philadelphia, United States, March 10, 1880. The property of Cooper and Bailey." Xotice of the copyright was printed on each copy of the photograph. The defendant had charge of the dry goods department of the business house of Sharpless & Sons, dealing in general merchandise, and desired a new label for certain goods. He purchased one of plaintiff's photographs, took it to a lithographer, and caused a lithographic copy thereof to be made, und 15,':WO copies _I
TIcporteu. by Albert B. Guilbert, Esq., of the Philadelphia bar.