페이지 이미지

Class “(a) Books, including composite and cyclopaedic works,

directories, gazetteers, and other compilations” These by no means exhaust the things that may be classed as books. It would pretty nearly hit the mark to say that whatever does not fairly belong to any of the other specified classes would be a book, if it is in fact the writing of an author. "It is the intellectual production of the author which the copyright protects and not the particular form which such production ultimately takes, and the word 'book' as used in the statute is not to be understood in its technical sense of a bound volume, but any species of publication which the author selects to embody his literary product.” Holmes v. Hurst, 174 U.S. 82 (1899).

While ordinarily a book contains a composition of words in readable form, it may also consist entirely of pictorial matter, or tables of figures, lists of symbols in cipher codes (the labor of compilation being deemed sufficient to constitute authorship). Pamphlets, leaflets and folders come within this category, and even a single verse or brief statement separately published.

Of course there must be a limit in this direction. Some things may be so utterly devoid of value and originality as compositions that it would be an undue restriction on the free use of language to grant them copyright protection, and result in unwarranted litigation. While a gem of literature may be compressed within a few words, yet as a rule mere isolated slogans, mottoes and similar sayings do not measure up to copyright standards. No case appears to have arisen in the United States involving a claim of copyright in a slogan or motto, but in an English case copyright protection was unsuccessfully claimed in a beautyparlor slogan, “Youthful appearance is a social necessity.” Lord Justice Scrutton, eminent English authority on copyright law, said in the course of his opinion: “The claim in this case goes beyond anything ever held to be an infringement. The matter, in respect of which copyright is claimed, is too small for the court to attach any proprietary value to it.” Here was applied the age-old maxim de minimis non curat lex. Sinanide v. La Maison Kosmeo, 44 L.T.R. 574 (1928).

When such phrases are associated with pictorial or decorative matter of an original character, the combination might be registrable in Class (k), as a print, unless used merely as a trade mark, in which case registration should be made at the Patent Office.

“Other compilations”

"To compile is to copy from various authors into one work. In this the judgment may be said to be exercised to some extent in selecting and combining the extracts. Such a work entitles the compiler, under the statute, to a right of property. This right may be compared to that of a patentee, who, by a combination of known mechanical structures, has produced a new result. ... A compilation consists of selected extracts from different authors; an abridgment is a condensation of the views of the author.” Story v. Holcombe, 4 McLean 306 (1846). Class “(b) Periodicals, including newspapers”

Each number or issue is to be regarded as a separate publication subject to copyright, so that all the statutory requisites must be complied with for each, just as under the previous law: “Each number of a periodical shall be considered an independent publication”. Revised Statutes 4967. But no court has, as yet, been called upon to define a "periodical” within the meaning of the Copyright Act.

The postal regulations, formulated under a different statute for a different purpose, are hardly applicable here; but probably the remarks of the Supreme Court in construing certain provisions of the postal laws may be accepted as a safe guide, namely, (1) that “A periodical, as commonly understood, is a publication appearing at stated intervals, each number of which contains a variety of original articles by different authors," and (2) that “Books are not turned into periodicals by number and sequence where each volume is complete in itself and betrays no inward need of more-though further adventures may be promised at the end.” Houghton v. Payne, 194 U.S. 88 (1904), and Smith v. Hitchcock, 226 U.S. 53 (1912). Unless the work measures up to the former standard (1), it is as a rule better to apply for registration in the category of books and file the affidavit required by law for that class. Class “(c) Lectures, sermons, addresses (prepared for oral

delivery)” Unpublished monologues as well as certain kinds of radio

scripts are registrable in this category. But when reproduced for sale as published works they assume the status of books, Class (a), and must bear the appropriate copyright notice. Class “(d) Dramatic or dramatico-musical compositions”

When a play is printed and published, it is a “book” in the ordinary sense of the term, but in the legal sense it is still a dramatic composition and registrable as such. Now, everyone knows what a dramatic composition is in its usual significance, but in this connection it may have a much broader meaning. Dialogue certainly is not necessary, for, as said by Justice Holmes in the celebrated Ben Hur case, Kalem v. Harper Bros., 222 U.S. 55 (1911): “Action can tell a story, display all the most vivid relations between men, and depict every kind of human emotion without the aid of a word. ... It would be impossible to deny the title of drama to pantomime as played by masters of the art.” Hence it would seem that at least certain kinds of pantomime and choreographic work would come within this category. “It is essential to such a composition that it should tell some story. The plot may be simple. It may be but the narrative or representation of a single transaction, but it must repeat or mimic some action, speech, emotion, passion, or character, real or imaginary.” Lacombe, J., in Fuller v. Bemis, 50 F. 926 (1892).

A single song may be dramatically rendered, but that would not necessarily make it a dramatico-musical composition. It would have to be dramatic in its very nature and purpose. Witmark v. Pastime Amusement Co., 298 F. 490 (1924). A series of songs interspersed with recitations having dramatic quality would come within this class. Green v. Luby, 177 F. 287 (1909). And of course operas, operettas and many choral works belong here too. Class “(e) Musical compositions”

These include not only instrumental pieces, but also songs consisting of words with musical accompaniment, and both elements are protected under the one copyright; for section 3 provides that the copyright “shall protect all the copyrightable component parts of the work copyrighted,” which is merely declaratory of a time-honored rule of construction. Harper v. Donohue, 144 F. 496 (1905); Ford v. Blaney, 148 F. 644 (1906). It was held in

one case, however, that the copyright of a song secured under the former law did not protect the words unless they were separately copyrighted as a book. Witmark v. Standard Music Co., 221 F. 376 (CCA 3, 114). The court here misconstrued a rule of the Copyright Office which was only to the effect that the words of a song published in the first instance without musical accompaniment, would be classed as a book, just as it would be under the present law. Musical selections and compilations published in book form are registrable in the music category.

Any system of musical notation would presumably be sufficient if capable of being read by the performer, but the courts have held that perforated piano rolls and phonographic records are not "copies” of musical compositions but merely parts of the mechanism necessary for their reproduction in sound. WhiteSmith Music Co. v. Apollo Co., 209 U.S. 1 (1908); Stern v. Rosey, 17 App. D.C. 562 (1901); Kennedy v. McTammany, 33 F. 584 (1888). In the Report No. 2222 accompanying the present Act (see Appendix), the following explanation is given: “It is not the intention of the Committee to extend the right of copyright to the mechanical reproductions (i.e., the devices) themselves, but only to give the composer or copyright proprietor (of the music) the control, in accordance with the provisions of the bill, of the manufacture and use of such devices."

Class “(f) Maps"

Along with these under the old law were included “charts," signifying “marine maps," Taylor v. Gilman, 24 F. 632 (1885); but the term "chart” is nowadays applied to so many things that it was thought best not to use the term in the present law. Certain so-called charts may be registrable as books and others as drawings of a scientific or technical character.

The term "maps" covers the whole field of cartography, whether terrestrial or celestial. Certain kinds of maps are frequently accompanied by a substantial amount of text matter and perhaps illustrations, such as automobile road-maps, and in such cases it is better as a rule to regard them as belonging to the more comprehensive class of "books” and use the form of notice appropriate to that class, viz., Copyright, or Copr. accompanied by the year date of publication and the name of the copyright proprietor. Where protection is desired for the map alone, the shorter form of notice provided in section 18 may be used and should be printed in immediate proximity to the map.

New editions of city maps designed to keep pace with growing development by adding new subdivisions have been deemed entitled to copyright as new works. Sauer v. Detroit Times, 247 F. 687 (1917). But the use of arbitrary signs and symbols explained by reference to a key to facilitate the location of buildings, etc., on the map is not deemed a copyrightable feature. Perris v. Heximer, 99 U.S. 674 (1878).

Class “(g) Works of art; models or designs for works of art"

Works of art may for most practical purposes be divided into four classes (see United States v. Perry 146 U.S. 71 (1892)]:

(1) The fine arts properly so called, intended solely for ornamental purposes, such as paintings in oil on canvas or other material, mosaics, carvings and statuary in stone or metal, not generally susceptible of commercial reproduction.

(2) Minor objects of art, intended also for ornamental purposes, but unlike the former, usually reproduced in quantities for sale from the original; such as statuettes, vases, plaques, drawings, etchings, and the thousand and one articles passing under the general name of bric-a-brac.

(3) Objects which serve primarily an ornamental, and incidentally a useful purpose, such as painted or stained glass windows and tapestry.

(4) Objects primarily designed for a useful purpose, but made ornamental to please the eye and gratify the taste, such as ornamental clocks, curtains, rugs, gas fixtures, household furniture, etc., commonly called applied art.

Not all of these classes, however, would come within the scope of the existing copyright law. Congress has provided otherwise for No. (4) in Section 4929 of the Revised Statutes to the effect that “any person who has invented any new, original and ornamental design for an article of manufacture” may on certain conditions obtain a patent therefor; and hence the registration of such a design would come within the jurisdiction of the Patent Office whenever the finished product is an article of utility, however artistic in appearance it may be. Thus, in determining whether or not the object is a work of art in the copyright sense, one must look to the purpose it is intended to serve. If that purpose is primarily ornamental, then, as a rule, the Copyright Act applies; but if it is primarily utilitarian, the design patent

« 이전계속 »