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law applies. We shall deal with designs in more detail when we come to consider the rights secured. Class “(h) Reproductions of a work of art”
These include such reproductions as present an existing original work of art (whether in the public domain or not) in the same or a different medium of expression, such as a photograph or engraving or etching of a painting or major piece of sculpture. Where the painting or drawing is merely the first step toward the production of a lithograph or engraving and serves no further purpose as a separate work, the registration should ordinarily be applied for in Class (k) (prints). So also where small objects of art are reproduced in quantities for sale, it is customary to register as published works of art rather than reproductions. Hard and fast lines of demarcation cannot well be drawn for the various types of artistic productions, and in case of doubt as to classification it is better to consult the Copyright Office for the appropriate form of application. Class “(i) Drawings or plastic works of a scientific or technical
character" This is a new class not mentioned in copyright legislation prior to 1909, and covers a number of “writings” which do not seem to fit well in any of the other classes. Architectural drawings seem obviously to belong to this class, but where they are other than working plans they may be essentially artistic in character and come within Class (g), works of art. Anatomical drawings and figures belong here; and also relief maps, and certain kinds of graphic charts such as stock-market charts.
In a case arising in the Supreme Court of the District of Columbia, Brock v. Nat'l Electric Supply Co., 186 O.G. 985 (1911), the court deemed that it was the use to be made of the drawings and plastic works rather than the knowledge and skill required for their production that was referred to in the words “scientific or technical.” In another case, Korzybski v. Underwood, 36 F.2d 727 (CCA 2, 1929), the court, while admitting that a diagram illustrating thought processes might belong to this category, ruled that the inventor having applied for and obtained a patent for his device could not extend his monopoly by taking out a copyright on what he had already diagrammatically disclosed in his application for a patent.
Class “(j) Photographs”
This class was first included in 1865, shortly after the invention of modern photography, and the Supreme Court ruled, Burrow-Giles Lith. Co. v. Sarony, 111 U.S. 53 (1884), that at least some photographs were copyrightable in so far as they embodied artistic conception on the part of the photographer; but the court queried whether copyright could be had for “the mere mechanical reproduction of the physical features or outlines of some object, animate or inanimate, involving no originality of thought.” Coming down to more recent times we find Judge Learned Hand declaring in Jewelers' Circular Pub. Co. v. Keystone Pub. Co., 274 F. 932 (1921), that “no photograph, however simple, can be unaffected by the personal influence of the author, and no two will be absolutely alike. Moreover, this seems to me quite beside the point, because under section 5 (j) photographs are protected without regard to the degree of personality' which enters into them.” And this seems quite in line with all the decisions since the Sarony case. In Pagano v. Bessler, 234 F. 963 (1916), the photograph of a public building was held copyrightable, the reaction of the photographer being found in determining just when to take it so as to bring out the proper setting with reference to light, shade, etc. But of course anyone else would be at liberty to take a picture of the same building from the same position and get practically the same result, without thereby infringing.
Class “(k) Prints and pictorial illustrations”
These are carried over from the old law. In Bleistein v. Donaldson, 189 U.S. 239 (1903), Justice Holmes remarked that the term “pictorial illustrations” does not necessarily mean that they must illustrate the text of a book. But they must illustrate something (e.g., prevailing fashions in attire), whereas "prints" may include mere decorative features of a distinctive character, such as the border of a bond or diploma. Both types are united in the official form of application. Such works are usually produced by lithographic or similar process from drawings or sketches which serve no further purpose than as a basis for the reproduction. When they reproduce an existing work of art, the registration should preferably be made in Class (h).
This class now includes "prints and labels used for articles of
merchandise," formerly registered in the Patent Office. See Chapter III, page 24. Class “(1) Motion picture photoplays,” and Class “(m) Motion
pictures other than photoplays” In Europe and throughout the British Empire the general term for both classes is “cinemas”, from the Greek word meaning motion. These were first specifically included in our law by the amendatory Act of Aug. 24, 1912 (37 St. L. 488), when the industry began to assume major proportions. Prior to that date they were registered for copyright in Class (j) as photographs, following the precedent established in the case of Edison v. Lubin, 122 F. 240 (1903), where a motion picture showing the launching of the Kaiser's yacht was held copyrightable as a single photograph, and in American Mutoscope v. Edison, 137 F. 262 (1905), where a series of pictures telling a connected story was likewise protected as a single photograph, and one copyright notice affixed by means of a metal plate to the end of the film was held sufficient to cover the entire work.
A photoplay in the literal sense is a play exhibited pictorially, whether accompanied by dialogue in “sound” or not; but it is not essential that it be based upon or reproduce an existing dramatic composition. Metro-Goldwyn-Mayer Distributing Corp. v. Bijou Theatre Co., 3 F.Supp. 66 (1933). It may be based upon a novel or story, Kalem v. Harper Bros., 222 U.S. 58 (1911), and hence would qualify for copyright under section 6 either as a dramatization or as an adaptation of the original work for pictorial purposes. Many so-called "shorts”, little comedy subjects used to fill in between the main features, are deemed photoplays by virtue of the action displayed. Vitaphone Corp. v. Hutchinson, 33 USPQ 422 (1937).
The remaining Class (m) includes such pictorial representation as newsreels, travelogues, educational and scientific subjects. There has been some conflict in the court decisions as to the nature and extent of the rights secured for these two classes, to which further reference will be made when dealing with that branch of the law.
Commercial Prints and Labels
The registration of commercial prints and labels was transferred from the Patent Office to the Copyright Office, Library of Congress, by the amendatory law approved July 31, 1939, effective July 1, 1940 (53 St. L. 1142). During the interval the Patent Office transported to the Copyright Office the vast accumulations of over 65 years, consisting of applications, correspondence, deposits, indexes, records and so-called specimen books displaying in regular order the prints and labels registered since 1874, totaling 73,145 items (of which approximately 55,063 were labels and 18,082 prints). Before considering the new Act, it will be profitable to give some heed to section 3 of the old Act of 1874, which it replaces, and to the practices of the Patent Office thereunder.
Part 1—Former Law and Practice Prior to 1870 the commercial world filed its emblems of trade for registration in the Clerk's Office of the various District Courts in accordance with the provisions of the general copyright law. But in that year the copyright law was changed so as to require all deposits and entries to be made in the Library of Congress, and all copies of works of whatsoever character previously deposited elsewhere, as well as all records relating thereto, were transferred to the care of the Librarian of Congress. The Library at that time was located in limited quarters at the Capitol Building, and in order to relieve the Librarian from the need of entering and providing space for the constantly growing accumulation of advertisements, cartons, labels, and similar articles, which he regarded as beneath the dignity of literature proper, Congress at his request incorporated in the amendatory Act of June 18, 1874 (18 St. L. 78) (the primary purpose of which was to authorize a shorter form of copyright notice) the following provision:
Sec. 3. That in the construction of this act, the words "engraving, cut, and print” shall be applied only to pictorial illustrations or works connected with the fine arts, and no prints or labels designed to be used for any other articles of manufacture shall be entered under the copyright law, but may be registered in the Patent Office. And the Commissioner of Patents is hereby charged with the supervision and control of the entry or registry of such prints or labels, in conformity with the regulations provided by law as to copyright of prints, except that there shall be paid for recording the title of any print or label, not a trade-mark, six dollars, which shall cover the expense of furnishing a copy of the record, under the seal of the Commissioner of Patents, to the party entering the same.
That this was intended to be part of the general copyright law, distinct from the sphere of patent, trade mark or design law, was early decided in the case of Marsh v. Warren, 14 Blatch. 263 (1878), and confirmed by the Supreme Court in Higgins v. Keuffel, 140 U.S. 428 (1891), and for many years the Patent Office governed itself accordingly. Under these circumstances, one would have thought that when the present law entitled "An Act to Amend and consolidate the Acts respecting Copyright”, containing a general repealing clause, went into effect July 1, 1909, old section 3 would have passed into the discard. The Commissioner of Patents thought so; but the Register of Copyrights was doubtful, presumably because his original draft of the bill had expressly included commercial prints and labels "as heretofore registered in the Patent Office”, but this was later objected to in the committee hearings and stricken as being "unconstitutional” (Hearings, Vol. 1, June 6, 1906, p. 172). So the question was submitted to the Attorney General, who approved the finding of his Assistant to the effect that the Act of 1909 was not "in conflict with" section 3 of the Act of 1874 and that consequently the Patent Office was still required to register all such prints and labels as theretofore. 28 Op. Att. Gen. 116 (1909), approved without opinion by a later Attorney General in 1914, 203 O.G. 602.
In Hoague-Sprague Co. v. Meyer, 27 F.2d 176 (1928), some doubt as to the correctness of this ruling was indicated by Judge Inch on motion for preliminary injunction, but on trial of the