This is out of order. I missed it. It was decided Feb. 2, 1903.
Bleistein v. Donaldson Lithographing Co., 188 U.S. 239.
This is an opus for the time, the majority opinion, by Holmes, is 13 pages long. The case is also notable for two other reasons. First, this opinion drew a dissent, by the Great Dissenter himself, Justice John Marshall Harlan Pause: Wonder what his parents intended him to be when they named him? Unpause, in which Justice McKenna joined. Second, Holmes here, and the Supreme Court majority, reverse an apparently unanimous three-judge federal Circuit Court of Appeals decision authored by Holmes Civil War frenemy and future Supreme Court brother Horace Harmon Lurton. Justice Harlan's dissent is almost entirely cut-and-paste of Judge Lurton's opinion. Very interesting.
This is a copyright case, part of a class of cases that we now call intellectual property that is a linchpin of a modern economy but which in 1903 was new, restrictive on holders' rights and primitively formulated. The statutes governing here were passed only in 1891 and revised in 1895. In this case the subject was the unauthorized use by defendant of images produced by employees of plaintiff to promote a circus.
We shall do no more than mention the suggestion that painting and engraving, unless for a mechanical end, are not among the useful arts, the progress of which Congress is empowered by the Constitution to promote. The Constitution does not limit the useful to that which satisfies immediate bodily needs.
Copyright in the fin de siecle was limited to the "useful arts", only to those "which satisfies immediate bodily needs.” Artwork? Egad, what is the world coming to!
"We shall do no more than mention": that is classic Homes-ese, dismissive. As this,
It is obvious also that the plaintiff's case is not affected by the fact, if it be one, that the pictures represent actual groups -- visible things.
For my delimited task Bleistein is an important opinion by Holmes. The passage below encapsulates Holmes-isms: the dismissive, the reference to famous personages, the jurisprudential zinger. Beyond my writ, Holmes here was what he was indifferently: brilliant, far-sighted, eloquent, and right.
But even if they had been drawn from the life, that fact would not deprive them of protection. The opposite proposition would mean that a portrait by Velasquez or Whistler was common property because others might try their hand on the same face. Others are free to copy the original. They are not free to copy the copy.
The copy is the personal reaction of an individual upon nature. Personality always contains something unique. It expresses its singularity even in handwriting, and a very modest grade of art has in it something irreducible which is one man's alone. That something he may copyright unless there is a restriction in the words of the act.
...The least pretentious picture has more originality in it than directories and the like, which may be copyrighted.
...
...the act, [i.e. statute] however construed, does not mean that ordinary posters are not good enough to be considered within its scope. The antithesis to "illustrations or works connected with the fine arts" is not works of little merit or of humble degree, or illustrations addressed to the less educated classes;...Certainly works are not the less connected with the fine arts because their pictorial quality attracts the crowd, and therefore gives them a real use -- if use means to increase trade and to help to make money. ...the ballet is as legitimate a subject for illustration as any other. A rule cannot be laid down that would excommunicate the paintings of Degas.
It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations...some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke. It may be more than doubted, for instance, whether the etchings of Goya or the paintings of Manet would have been sure of protection when seen for the first time. At the other end, copyright would be denied to pictures which appealed to a public less educated than the judge.
...the taste of any public is not to be treated with contempt.
THERE is Holmes' pragmatism.
...We are of opinion that there was evidence that the plaintiffs have rights entitled to the protection of the law.
The judgment of the circuit court of appeals is reversed; the judgment of the circuit court is also reversed, and the cause remanded to that court with directions to set aside the verdict and grant a new trial.So far, and by a l-o-n-g stretch, this is my favorite opinion by Justice Holmes. This is Justice Harlan's dissent.
Judges Lurton, Day, and Severens, of the circuit court of appeals, concurred in affirming the judgment of the district court. Their views were thus expressed in an opinion delivered by Judge Lurton:
"What we hold is this: that if a chromo, lithograph, or other print, engraving, or picture has no other use than that of a mere advertisement, and no value aside from this function, it would not be promotive of the useful arts within the meaning of the constitutional provision, to protect the 'author' in the exclusive use thereof, and the copyright statute should not be construed as including such a publication if any other construction is admissible. If a mere label simply designating or describing an article to which it is attached, and which has no value separated from the article, does not come within the constitutional clause upon the subject of copyright, it must follow that a pictorial illustration designed and useful only as an advertisement, and having no intrinsic value other than its function as an advertisement, must be equally without the obvious meaning of the Constitution.
It must have some connection with the fine arts to give it intrinsic value, and that it shall have is the meaning which we attach to the Act of June 18, 1874, amending the provisions of the copyright law. We are unable to discover anything useful or meritorious in the design copyrighted by the plaintiffs in error other than as an advertisement of acts to be done or exhibited to the public in Wallace's show. No evidence, aside from the deductions which are to be drawn from the prints themselves, was offered to show that these designs had any original artistic qualities. The jury could not reasonably have found merit or value aside from the purely business object of advertising a show, and the instruction to find for the defendant was not error. Many other points have been urged as justifying the result reached in the court below. We find it unnecessary to express any opinion upon them in view of the conclusion already announced. The judgment must be affirmed." Courier Lithographing Co. v. Donaldson Lithographing Co., 104 F. 993, 996.
I entirely concur in these views, and therefore dissent from the opinion and judgment of this Court. The clause of the Constitution giving Congress power to promote the progress of science and useful arts, by securing for limited terms to authors and inventors the exclusive right to their respective works and discoveries, does not, as I think, embrace a mere advertisement of a circus.
BOO HARLAN, BOO HARLAN!😁
