J. L. MOTT IRON WORKS v. CLOW et al., 82 F. 316

JENKINS. Circuit Judge. The constitution of the United States grants to the congress the “power to promote the progress of science and useful arts by securing for limited times to authors and inventors exclusive right to their respective writings and discoveries.”

Article 1, § 8. The power thus granted was exercised by the congress sitting first after the adoption of the constitution. 1 Stat. 124. And, in the act, entitled “An act for the encouragement of learning,” copyright for the period of 14 years w'as reserved to the author of any map, chart, book, or books. The congress has since frequently acted with respect to the subject, enlarging and regulating the rights of authors under the constitutional provision. 2 Stat. 171; 4 Stat. 436; 9 Stat. 106; 10 Stat. 685; 11 Stat. 138-380; 14 Stat. 395; 16 Stat. 198; Rev.

St. §§ 4948-4971; 18 Stat. 78; 20 Stat. 359; 22 Stat. 181; 26 Stat. 1106. These statutes exhibit the growth in the number of subjects to which the congress of the United States has deemed the constitutional provision to be applicable. The protection originally extended to maps, charts, and books has- been enlarged to comprehend books, pampbYts, maps, charts, dramatic or musical composition, engravings, cuts, prints, photographs or negatives thereof, paintings, drawings, chromos, statues, statuary, and models or designs intended to be perfected as works of the fine arts.

The act of the year 1874 (18 Stat. 78, c. 301) provides that: “The words ‘engravings,’ ‘cuts’ and ‘prints’ 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

article of manufacture shall be entered under the copyright law but may be registered in the patent office.” The clause of the constitution in question has been under consideration by the supreme court, and its purpose determined. Grant v. Raymond, 6 Pet. 218; Wheaton v. Peters, 8 Pet. 591; The Trade-Mark Cases, 100 U. S. 82; Baker v. Selden, 101 U. S. 99; Lithographic Co. v. Sarony, 111 U. S. 53, 4 Sup. Ct. 279; Higgins v. Keuffel, 140 U. S. 428, 11 Sup. Ct. 731.

The result of these decisions would seem to place this construction upon the constitutional provision under consideration: That only such writings and discoveries are included as are the result oí intellectual labor; that the term “writings” may be liberally construed to include designs for engraving and prints that are original, and are founded in the creative powers of the mind, — the fruits of intellectual labor; that prints upon a single sheet might be considered a book, if it otherwise met the spirit of the constitutional provision; that, to be entitled to a copyright, the

article must have, by and of itself, some value as a composition, at least to the extent of serving some purpose other than as a mere advertisement or designation of the subject to which it is attached. In the case before us the bound volume or catalogue issued by the appellant contains illustrations of the different wares offered for sale, giving the dimensions and prices of each. The letterpress of the book is confined to a statement of dimensions and price, is of no literary merit, and gives no other information. It is a mere priced catalogue illustrated with pictures of the wares offered for sale.

The copyright is sought to be sustained upon the ground that such illustrations are of artistic merit, and so within the protection of the constitutional provision; that any picture possessing artistic merit when connected with advertising matter becomes part of the book, and is within legal protection. The particular illustrations claimed to have been copied are of a washbowl, a slop sink, a bath tub, a footbath, a sponge holder, a brush holder, and a robe hook. With the possible, exception of the bath tub, neither subject has ornamentation, or could well be the subject of artistic treatment.

There is some attempt at ornamentation with respect to the surroundings of the bath tub, consisting of a representation of the conventional tiled floor and tiled wainscoting. We discover nothing original in the treatment of the subject; it is merely the picture of the bath tub in ordinary use, placed in a room having a tiled floor and tiled wainscoting, with the usual supply fittings in respect of plumbing. It is said that the book may be used as a book of reference by architects and owners with respect to furnishing a house.

It is a book of reference, certainly, in the sense that it may be referred to to ascertain the goods the appellant deals in, and the prices asked for them; but no information is imparted with regard to construction, or the special merits of particular construction. The pictures may appeal to the eye as pretty representations of a slop sink or a bath tub, but no one could gather from inspection how to construct them. The only information conveyed has reference to the dimensions and cost price of the article, and the place where they can be obtained.

In brief, they are mere advertisements of the appellant’s wares, with nice cuts or illustrations of the goods accompanying and forming part of the advertisement, as an allurement to customers. The question, therefore, which confronts' us, is, were such things intended to be protected by the constitutional provision in question? The object of that provision was to promote tbe dissemination of learning, by inducing intellectual labor in works which would promote the general knowledge in science and useful arts.

It is not designed as a protection to traders in the particular manner in which they might shout their wares. It sought to stimulate original investigation,' whether in literature, science, or art, for the betterment of the people, that they might be instructed and improved with respect to those subjects. Undoubtedly a large discretion is lodged in the congress with respect to the subjects which could properly be included within the constitutional provision; but that discretion is not unlimited. It is bounded and circumscribed by the lines of the general object sought to be accomplished.

We are referred to several cases in the courts of England in which the subject of copyright of advertisements has been considered. It may be well to briefly examine them. In Hotten v. Arthur, 1 Hem. & M. 603, decided in 1863, the copyright was of a catalogue of curious books offered for sale by a bookseller.

Tbe court ruled in 'favor of tlio copyright, — not, however, sustaining the copyright of a.nv advertisement, but upon the ground that it contained original matter, the product of intellectual labor on the part of the author, — observing: “This is not a mere dry list of names, like a postal directory, court guide, or anything of that sort, which mast he substantially the same, by whatever number of persons issued, and however independently compiled.

This is a case of a bookseller who issues an account of his stock, containing short descriptions of the contents of the books, calculated to interest either the general public, or the persons who may take an interest in the questions treated by any particular books.” This case we do not consider to be pertinent to the matter in hand. In Cobbett v. Woodward, L. R. 14 Eq. 407, decided in 1872, an upholsterer published an illustrated catalogue containing engravings of the articles of furniture he offered for "sale, with remarks of description. The injunction was denied.

Lord Romilly asserting: “X know of no law which, while it would not prevent the second advertiser from selling the same article, would prevent him from using the same advertisement, provided he did not in such advertisement, by any device, suggest that he was selling the works and designs of the first advertiser.” In Grace v. Newman, L. R. 19 Eq. 623, decided in 1875, the plaintiff was engaged in the business of a stone and marble mason. He published a volume of lithographic sketches of monumental designs from cemeteries and churchyards.

The court ruled in favor of the injunction, observing that under the decisions in Hotten v. Arthur, supra, a catalogue may, under certain circumstances, be protected by injunction; that, while the work in question had little letterpress, it was full of interesting matter, which would often be referred to and com suited as well by persons who contemplated their own deaths, as by others in reference to those who have died.

In other words, it was a collection of designs of artistic merit, tending to the cultivation of artistic taste; it was not a catalogue of wax-es which the publisher of the catalogue had on hand and for sale, nor of things which he had manufactured, but it contained designs of artistic monuments throughout England, duplicates of which the publisher proposed to make when ordered. The injunction seems to have been sustained upon the ground that it was a book of reference or of art. In Maple & Co. v. Junior Army & Navy Stores, 21 Ch. Div. 369, decided in 1882, the court flatly overruled Cobbett v.

Woodward, and held that such a book or catalogue as is in question here was the subject of protection under the laws of England. It is to be observed in this case that it was ruled largely upon the language of the act of parliament. That act had for a

preamble the following: “Whereas it is expedient to amend the law relating to copyright and to afford greater encouragement to the production of literary works of lasting benefit to the world.” This was followed by an enacting clause, as follows: “The word ‘book’ shall be construed to mean and include every volume, part or division of a volume, pamphlet, sheet or letter-press, sheet of music, map, chart or plan separately published.” And “the" word ‘copyright’ shall be construed to mean the sole and exclusive right of printing or otherwise multiplying copies of any subject to which the said work is herein applied.” The court ruled that the act does not say "that it is expedient to afford greater encouragement to the production of literary works of lasting benefit to the world and to amend the law of copyright relating thereto,” but that it is expedient to amend the law of copyright generally, merely adding the principal reason of doing so; that there was nothing in the

preamble to cut down the enacting part, even if the enacting part had not been clear; and that there was nothing in the act to exclude a book consisting of pictures only, or to restrict the act to books containing letterpress. It is to be here remarked that the parliament of G-reat Britain, unlike the congress of the United States, is unlimited in power; and, with the construction and effect placed upon the

preamble of the act by the court, there would seem to be little escape from the conclusion to which the court arrived. In this country, under the constitution, the power lodged with congress is not unlimited, but is restricted to the promotion of the progress of science and useful arts. The ruling of the English court is therefore not pertinent, except as it illustrates the subject. It is further to be said that the case of Cobbett v. Woodward, overruled by the case of Maple & Co. v. Junior Army & Navy Stores, has been expressly approved and quoted at length by the supreme court of the United States. Baker v.

Selden, 101 U. S. 99, 105, in which case the court also cited approvingly the remarks of Mr. Justice Thompson in Clayton v. Stone, 2 Paine, 382, Fed. Cas. No. 2,872, in which it was said that the acts of congress in respect to copyright were intended for the encouragement of learning, and were not intended for the encouragement of mere industry, unconnected with learning and the sciences.

In this latter case a daily price current was held not to be within the purview of the copyright law, and it was said that: “The act in question was passed in execution of tbe power here given [by tbe constitution], and tbe object, therefore, was tbe promotion of science; and it would certainly be a pretty extraordinary view of tbe sciences to consider-a daily or weekly publication of tbe state of tbe market as falling within any class of them. They are of a moro fixed, permanent, and durable character.

The term ‘science’ cannot with any propriety he applied to a work of so fluctuating and fugitive a form as that oí a newspaper or price current, the subject-matter of which is daily changing, and is oí mere temporary use. Although great praise may be due to the plaintiffs for their industry and enterprise In publishing this paper, yet tlie law does not contemplate their being-rewarded in this way. It must seek patronage and protection from its utility to the public, and not as a work of science.” in the Sarony Photograph Case (4 Sup.

Ct. 279), the court ruled that it was within the constitutional power of congress to confer upon the inventor, designer, or proprietor , of a photograph a copyright, so far as the photograph is an

interpretation of original, intellectual conception. The court declined to decide whether the copyright law is applicable to the ordinary production of a photograph, but, with respect to the particular photograph then before the court, held that it was entitled to protection as a work of art originating in the mental conception of the author, which was given visible form and expression by the selection and arrangement of various accessories; and upon that ground alone, as we read the opinion, the copyright was sustained. In the later case of Higgins v. Keuffel, 140 U. S. 428, 11 Sup.

Ct. 731, the court observes that the provision of the constitution ‘‘evidently has reference only to such writings and discoveries as are the result of intellectual labor”; and, “to be entitled to a copyright, the

article must have by itself some value as a composition, at least to the extent of serving some useful purpose other than as a mere advertisement or designation of the subject io which it is attached.” So far as the decisions of the supreme court have gone, we think they hold to the proposition that mere advertisements, whether by letterpress or by picture, are not within the protection of the copyright law.

It is possibly not beyond comprehension that pictures of slop sinks, washbowls, and batli tubs, with or without letterpress statement of dimensions and prices, though intended mainly for advertisement, may, in localities where such conveniences are not in common use, be the means of instruction and of advancement in knowledge of the arts, and, when they are the product of original, intellectual thought, may possibly come within the scope of the constitutional provision.

It is enough for (he present purpose to say that, in our judgment, congress has not seen fit io enact a law which can reasonably be given so broad a construction. The decree will be affirmed.