FRANK, Circuit Judge.
1. Congressional power to authorize both patents and copyrights is contained in Article 1, § 8 of the Constitution.
Moreover, in 1790, in the year after the adoption of the Constitution, the first Congress enacted two statutes, separately dealing with patents and copyrights. The patent statute, enacted April 10, 1790, 1 Stat. 109, provided that patents should issue only if the Secretary of State, Secretary of War and the Attorney General, or any two of them "shall deem the invention or discovery sufficiently useful and important"; the applicant for a patent was obliged to file a specification "so particular" as "to distinguish the invention or discovery from other things before known and used * * *"; the patent was to constitute prima facie evidence that the patentee was "the first and true inventor or * * * discoverer * * * of the thing so specified."
Thus legislators peculiarly familiar with the purpose of the Constitutional grant, by statute, imposed far less exacting standards in the case of copyrights. They authorized the copyrighting of a mere map which, patently, calls for no considerable uniqueness. They exacted far more from an inventor. And, while they demanded that an official should be satisfied as to the character of an invention before a patent issued, they made no such demand in respect of a copyright. In 1884, in Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 57, 4 S.Ct. 279, 28 L.Ed. 349, the Supreme Court, adverting to these facts said: "The construction placed upon the constitution by the first act of 1790 and the act of 1802, by the men who were contemporary with its formation, many of whom were members of the convention which framed it, is of itself entitled to very great weight, and when it is remembered that the rights thus established have not been disputed during a period of nearly a century, it is almost conclusive." Accordingly, the Constitution, as so interpreted,
The defendants' contention apparently results from the ambiguity of the word "original." It may mean startling, novel or unusual, a marked departure from the past. Obviously this is not what is meant when one speaks of "the original package," or the "original bill," or (in connection with the "best evidence" rule) an "original" document; none of those things is highly unusual in creativeness. "Original" in reference to a copyrighted work means that the particular work "owes its origin" to the "author."
In Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 250, 252, 23 S.Ct. 298, 47 L.Ed. 460, the Supreme Court cited with approval Henderson v. Tompkins, C.C., 60 F. 758, where it was said, 60 F. at page 764: "There is a very broad distinction between what is implied in the word `author,' found in the constitution, and the word `inventor.' The latter carries an implication which excludes the results of only ordinary skill, while nothing of this is necessarily involved in the former. Indeed, the statutes themselves make broad distinctions on this point. So much as relates to copyrights * * * is expressed, so far as this particular is concerned, by the mere words, `author, inventor, designer or proprietor,' with such aid as may be derived from the words `written, composed or made,' * * *. But a multitude of books rest safely under copyright, which show only ordinary skill and diligence in their preparation. Compilations are noticeable examples of this fact. With reference to this subject, the courts have not undertaken to assume the functions of critics, or to measure carefully the degree of originality, or literary skill or training involved."
It is clear, then, that nothing in the Constitution commands that copyrighted matter be strikingly unique or novel. Accordingly, we were not ignoring the Constitution when we stated that a "copy of something in the public domain" will support a copyright if it is a "distinguishable variation";
On that account, we have often distinguished between the limited protection accorded a copyright owner and the extensive protection granted a patent owner. So we have held that "independent reproduction of a copyrighted * * * work is not infringement",
2. We consider untenable defendants' suggestion that plaintiff's mezzotints could not validly be copyrighted because they are reproductions of works in the public domain. Not only does the Act include "Reproductions of a work of art",
Accordingly, defendants' arguments about the public domain become irrelevant. They could be relevant only in their bearing on the issue of infringement, i. e., whether the defendants copied the mezzotints.
3. We think the defendants did not establish the anti-trust "uncleanhands" defense: (1) The Guild's pricefixing provision was explicitly confined to Great Britain and Ireland, and did not affect sales in the United States. (2) As to the Guild agreement to restrict output,
4. The trial judge did not "abuse" his discretion as to the allowance or amount of attorneys' fees. We agree with his rulings, and his reasons therefor, concerning the items of accounting for profits — with but one exception: We think he erred in allowing defendants to deduct their income taxes. He said, "The nature of defendants' acts is, of course darkened somewhat by the use of a false copyright label, by sales after notice, and by the defendant Lithograph's apparent unconcern over the validity of the plaintiff's copyright, so long as defendants Catalda Company and Catalda were willing to indemnify Lithograph"; he also said that defendants "were not innocent of knowledge of the claimed copyright by the plaintiff of the subjects in suit." Nevertheless, he held that "their villainy is not of the deepest dye in that the copying was open, and with no attempt at concealment, under a good-faith claim of a right to copy because of the claimed invalidity of the plaintiff's copyright." With that last conclusion we disagree. Open and unabashed piracy is not a mark of good faith; and we think the "claimed invalidity" unjustified.
The previous history shows the source of the word "copyright." See 1 Laddas, The International Protection of Literary and Artistic Property (1938) 15:
"In England, the royal grants of privilege to print certain books were not copyrights. They were not granted to encourage learning or for the benefit of authors; they were commercial monopolies, licenses to tradesmen to follow their calling. As gradually monopolies became unpopular, the printers sought to base their claims on other grounds, and called the `right of copy' not a monopoly, but a property right. The Stationers Company had a register in which its members entered the titles of the works they were privileged to print. A custom developed by which members refrained from printing the books which stood on the register in the name of another. Thus members respected each other's `copy,' as it was called, and there grew up a trade recognition of `the right of copy' or copyright. This right was subsequently embodied in a by-law of the Stationers Company. The entry in the register was regarded as a record of the rights of the individual named, and it was assumed that possession of a manuscript carried with it the right to print copies." See also Sheavyn, The Literary Profession in the Elizabethan Age (1909) 52-53, 64-65, 70-71, 76-80
The English doctrine is the same. See Copinger, The Law of Copyrights (7th ed. 1936) 40-44: "Neither original thought nor original research is essential"; he quotes the English courts to the effect that the statute "does not require that the expression must be in an original or novel form, but that the work must not be copied from another work — that it should originate from the author," but only that "though it may be neither novel or ingenious, [it] is the claimant's original work in that it originates from him, and is not copied."
The English doctrine is the same. See Copinger, The Law of Copyrights (7th ed. 1936) 2: "It is not infrequently urged as an objection to granting copyright protection for a long term that the effect is to create a monopoly, but at least, it is not a monopoly of knowledge. The grant of a patent does prevent full use being made of knowledge, but the reader of a book is not by the copyright laws prevented from making full use of any information he may acquire from his reading. He is only prohibited from disseminating that information or knowledge by multiplying copies of the book or of material portions of it: or, possibly, by reading the book aloud in public. Copyright is, in fact, only a negative right to prevent the appropriation of the labours of an author by another. If it could be shown that two precisely similar works were in fact produced wholly independently of one another, the author of the work that was published first would have no right to restrain the publication by the other author of that author's independent and original work. A patentee, on the other hand, has the right to prevent another from using his invention if it in fact infringes the former's patent, notwithstanding that the latter's invention was the subject of independent investigation on his part."
See Judge Learned Hand in Fred Fisher, Inc. v. Dillingham, D.C., 298 F. 145, 150-151: "Take, for example, two faithful compilations or translations. While it may be rare that they should be identical, obviously even that is possible over substantial parts. It could not be maintained that the earlier version destroyed the copyright of the later, and yet, if copyright be analogous to patents, this must result. Certainly, the labor of the second translator or compiler is not lost, so he do not use the work of the first.
"Directories constitute a familiar instance of such compilations. No one doubts that two directories, independently made, are each entitled to copyright, regardless of their similarity, even though it amount to identity. Each being the result of original work, the second will be protected, quite regardless of its lack of novelty. But the best instance is in the case of maps. Here, if each be faithful, identity is inevitable, because each seeks only to set down the same facts in precisely the same relations to each other. So far as each is successful, each will be exactly the same. While I know no case which involves the point, Bowker says on page 255 (Copyright, Its History and Law):
"`Two map makers, collecting at first hand, would naturally make the same map, and each would equally be entitled to copyright. In this respect copyright law differs from patent law, where a first use bars others from the same field.'"
Judge Hand there also said at page 150 of 298 F.: "Any subsequent person is, of course, free to use all works in the public domain as sources for his compositions. No later work, though original, can take that from him. But there is no reason in justice or law why he should not be compelled to resort to the earlier works themselves, or why he should be free to use the composition of another, who himself has not borrowed. If he claims the rights of the public, let him use them; he picks the brains of the copyright owner as much, whether his original composition be old or new. The defendant's concern lest the public should be shut off from the use of works in the public domain is therefore illusory; no one suggests it. That domain is open to all who tread it; not to those who invade the closes of others, however similar."
Plutarch tells this story: A painter, enraged because he could not depict the foam that filled a horse's mouth from champing at the bit, threw a sponge at his painting; the sponge splashed against the wall — and achieved the desired result.
Many great scientific discoveries have resulted from accidents, e.g., the galvanic circuit and the x-ray.
That a statute might so forbid, see the legislation (cited in note 6, supra) of twelve of the states shortly before the addition of the Constitution.
Defendants do not contend, nor is there any evidence in the record, that the restriction was invalid in England.