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anyone the right to use the copyrighted material found in the government publication. It was thought best, instead of being obliged to resort every little while to a special act, to have some general legislation on this subject.”
Even without such consent, members of Congress may undoubtedly quote ad libitum from copyrighted material in the course of debates on the floor, and this proviso safeguards the quoted material when it appears subsequently in the Congressional Record. But generally speaking, when the head of a department or bureau of the Government wishes to include copyright material in an official document, he should secure beforehand the consent of the copyright proprietor, in view of the following considerations:
Under the Tucker Act of 1887 (now embodied in the U. S. Code, Tit. 28, sec. 250), a suit for damages cannot be instituted in the Court of Claims against the Government in cases "sounding in tort,” which would include an infringement of copyright. Lanman v. United States, 27 C. Cls. 260 (1892). But the immunity of the Government does not extend to its agents or employees. As remarked by the Supreme Court in a patent case, Belknap v. Schild, 161 U. S. 10 (1896): “The exemption of the United States from judicial process does not protect their officers and agents, civil or military, in time of peace, from being personally liable to an action of tort by a private person whose rights of property they have wrongfully invaded or injured, even by authority of the United States . . . Such officers or agents, although acting under the order of the United States, are therefore personally liable to be sued for their own infringement of a patent.”
In a recent copyright case, Towle v. Ross, 45 USPQ 143 (1940), the defendants acting as employees of the United States, and for the benefit of the Government, made photographic reproductions of an essential part of plaintiff's copyrighted map without his consent. Plaintiff got wind of this and objected, whereupon the work stopped and the reproductions were never used. Nevertheless plaintiff brought suit for infringement of copyright and damages against defendants individually. The court held that the making of these reproductions constituted infringement, whether defendants acted in good faith and
by mistake or by design, since each had actual notice of the existing copyright. The court awarded plaintiff the statutory minimum damages of $250, but allowed no costs or attorney's fees. Said the court:
“The position of defendants as employees of the United States cannot protect them from the award of damages. The immunity of the sovereign cannot in a republic immunize its agents also. The acts were done for the benefit of the Government by the employees thereof. The foundations of arbitrary power would be firmly laid if the agents could violate the rights of citizen and themselves escape unscathed.”
Section 40 of the Copyright Act provides that in all actions and proceedings under the Act full costs shall be allowed, "except when brought by or against the United States or any officer thereof.” In this connection the court, supra, remarked that the defendants came within the spirit of the exception even if they were not "officers”, and that it would be contrary to the intention of Congress here to absolve the higher administrative heads and assess all the costs and attorney fees to the clerk who did their bidding.
Nice questions may arise as to whether or not a given work is a “publication of the United States Government” within the meaning of Section 7. No case defining these terms comprehensively is found, but they undoubtedly embrace all official documents and reports published at Government expense, as well as the interminable registers, bulletins and circulars of information issued by the various bureaus, agencies and projects maintained by the Government.
In DuPuy v. Post Telegram Co., 210 F. 883 (CCA 3, 1914), it was held that a bulletin, entitled “Peace Day-Suggestions and material for its observance in the schools," issued by the United States Bureau of Education, which had been prepared by the secretary of the American School Peace League at the request of the Bureau, and with no reservation as to copyright by the compiler, was a public document within Section 7, and therefore that "a word redress of the substance” thereof could not take it from the public under the guise of copyright claim.
In Sherrill v. Grieves, Sup. Ct. Dist. of Col., 57 Wash. L. R. 286 (1929), the court was unable to subscribe to the contention that by entering the employment of the Government a person sells all his energies, physical and mental, to the Government if
they relate to any subject dealt with by him in performing his duties. And so it was held that the fact that the plaintiff, while engaged as instructor at a military school maintained by the Government, permitted the local school press to print a pamphlet containing some of his lectures on military sketching, did not make it a public document in the statutory sense. Ideas, Methods, Plans, Systems
From the copyright point of view, thoughts and ideas are “trifles light as air” until they have been reduced to some form of visible writing, and even then it is the author's individual expression of his ideas that may be protected by copyright rather than the ideas as such. And this applies equally to the idea or concept underlying methods, plans or systems embodied in books. Baker v. Selden, 101 U. S. 99 (1879); Kaeser & Blair, Inc. v. Merchants Ass'n., 17 USPQ 357 (CCA 6, 1933). Once the book is published, the ideas go into the common reservoir.
“However good and valuable an idea, plan, scheme or system is, the moment it is disclosed to the public (without the protection of a patent), it becomes public property, and the fact that it has been made public by advertising and the expenditure of effort, time and money on the part of the originator does not alter the situation." (Affiliated Enterprises, Inc. v. Gruber, 32 USPQ 94 (CCA 1, 1936)—one of the numerous “Bank Night” cases)
Obviously, any attempt to secure protection for the idea, etc., by the copyright route would prove abortive and defeat the very purpose in view, because of the necessity of publishing a composition of words disclosing the same.
But on the other hand, one may privately disclose an original idea, plan or scheme to others on such terms or under such circumstances as to imply a limitation upon the use to be made of it, the misappropriation of which would be actionable as a breach of trust or contract. Ketcham v. New York World's Fair 1939 Incorporated, 46 USPQ 307 (1940); Dodge v. Comstock, 251 N.Y. Supp. 172 (1931); Moore v. Ford Motor Co., 43 F.2d 685 (CCA 2, 1930), re trade secrets; Cole v. Phillips H. Lord, Inc., 50 USPQ 490 (N.Y. App.Div., 1941), re formula for radio program. Seditious, Libelous, Fraudulent, Immoral or Indecent Works
“He that hath committed iniquity shall not have equity," and hence the courts will not protect by injunction works of this nature. Harms v. Stern, 231 F. 649 (CCA 2, 1916); Kerr on Injunction, 5th ed., 413. Obviously, they do not tend to promote the general welfare or the progress of science and useful arts, and so do not come within the constitutional provision.
The element of indecency has figured in a few copyright cases. For example, the old Negro song "Ma Angeline” (the 'hottest gal in town) so shocked the court that copyright protection was denied until the offensive word was eliminated. Broder v. Zeno, 88 F. 74 (1904). But times and customs change and we find the present-day attitude fairly gauged by Judge Knox in Simonton v. Gordon, 12 F.2d 116 (1925): “Whatever may be the view of the prudist with respect to 'Hell's Playground', I think that the book, when judged by the standards of current literature, should not be held unentitled to copyright ... If the copyright is invalid upon the gound of immorality, it augurs ill for many present-day novels and magazines, to say nothing of numerous dramas which now meet with public approval.”
The mailing of obscene, libelous, fraudulent or treasonable matter is prohibited by the Criminal Code. Title 18 of the U.S. Code.
The protection of titles is a constantly recurring question. From the importance given under the old copyright regime to the filing of the title, it became, and still continues, not uncommon for lawyers as well as laymen to speak of “copyrighting" the title of a work. But this notion that the title is in itself subject to copyright protection separate and apart from the particular work it identifies is directly contrary to the fundamental conception of copyright and to the uniform decisions of the courts.
So far as can be discovered, the question first came up in our courts in the oft-cited case of Jollie v. Jaques, 1 Blatch. 618 (1852), where the plaintiff argued that the title of his piece of music, “The Serious Family Polka”, was original and that his prior registration entitled him to restrain the defendant from using the same title for another composition. On this point the court remarked: “The right secured is the property in the piece of music, the production of the mind and genius of the author, and not in the mere name given to the work. ... The title is an appendage to the book or piece of music for which the copyright is taken out, and if the latter fails to be protected, the title goes with it, as certainly as the principal carries with it the incident.” This principle has been followed ever since in a large number of cases, not only with respect to music but as to books and other productions as well. Intern. Film Service v. Association Producers, 273 F. 585 (1921), and cases cited.
However, it is not to be supposed that an author or proprietor whose work has become identified in the public mind under a distinctive title is at the mercy of any person who may seek to gain advantage by appropriating it to his own use. The power of the courts may be invoked to restrain such practices under equitable principles relating to unfair competition, quite irrespective of the limitations of the copyright law.
The question has frequently come up with respect to the use of titles of stories and plays for motion picture purposes. Here the courts make an important distinction between works still under copyright and those which are in the public domain. In the case of the former, the same title may not ordinarily be used to designate a motion picture even though based upon an entirely different story, for the very good reason that the author still enjoys the exclusive right to exploit his story or play in the same manner and the use of his title by another might well result in destroying the value of that right. In the recent case of Hemingway v. Film Alliance, 46 USPQ 568 (1940), the defendant was enjoined from using “The Fifth Column" as the title of a motion picture because of its prior adoption by the plaintiff for his well-known play. See also Paramore v. Mack Sennett, Inc., 9 F.2d 66 (1925), in re “Yukon Jake”; and Patten v. Superior Talking Pictures, 23 USPQ 248 (1934), in re “Frank Merriwell”.
Similar protection may also be accorded against any colorable imitation of a preempted title if its use under the circumstances is likely to mislead the public. Nat'l. Pictures Theatres, Inc. v. Foundation Film Corp., 266 F. 208 (CCA 2, 1920). Here the plaintiff had secured from the authors the motion-picture rights in their popular play “Blind Youth”, and the defendant was enjoined from using the title “The Blindness of Youth” for a competitive picture founded upon another play bearing an entirely different title.
But where the words of the title are not distinctive in them