MR. JUSTICE REED delivered the opinion of the Court.
This case involves the validity of copyrights obtained by respondents for statuettes of male and female dancing figures made of semivitreous china. The controversy centers around the fact that although copyrighted as "works of art," the statuettes were intended for use and used as bases for table lamps, with electric wiring, sockets and lamp shades attached.
Respondents are partners in the manufacture and sale of electric lamps. One of the respondents created original works of sculpture in the form of human figures by traditional clay-model technique. From this model, a production mold for casting copies was made. The resulting statuettes, without any lamp components added, were submitted by the respondents to the Copyright Office for registration as "works of art" or reproductions thereof under § 5 (g) or § 5 (h) of the copyright law,
Petitioners are partners and, like respondents, make and sell lamps. Without authorization, they copied the statuettes, embodied them in lamps and sold them.
The instant case is one in a series of reported suits brought by respondents against various alleged infringers of the copyrights, all presenting the same or a similar question.
Petitioners, charged by the present complaint with infringement of respondents' copyrights of reproductions of their works of art, seek here a reversal of the Court of Appeals decree upholding the copyrights. Petitioners in their petition for certiorari present a single question:
The first paragraph accurately summarizes the issue. The last gives it a quirk that unjustifiably, we think, broadens the controversy. The case requires an answer, not as to a manufacturer's right to register a lamp base but as to an artist's right to copyright a work of art intended to be reproduced for lamp bases. As petitioners say in their brief, their contention "questions the validity of the copyright based upon the actions of the respondents." Petitioners question the validity of a copyright of a work of art for "mass" production. "Reproduction of a work of art" does not mean to them unlimited reproduction. Their position is that a copyright does not cover industrial reproduction of the protected article. Thus their reply brief states:
It is not the right to copyright an article that could have utility under §§ 5 (g) and (h), note 1, supra, that petitioners oppose. Their brief accepts the copyrightability of the great carved golden saltcellar of Cellini but adds:
No unfair competition question is presented. The constitutional power of Congress to confer copyright protection on works of art or their reproductions is not questioned.
In answering that issue, a review of the development of copyright coverage will make clear the purpose of the Congress in its copyright legislation. In 1790 the First Congress conferred a copyright on "authors of any map, chart, book or books already printed."
The Act of 1870 defined copyrightable subject matter as:
The italicized part added three-dimensional work of art to what had been protected previously.
Some writers interpret this section as being coextensive with the constitutional grant,
The practice of the Copyright Office, under the 1870 and 1874 Acts and before the 1909 Act, was to allow registration "as works of the fine arts" of articles of the same character as those of respondents now under challenge. Seven examples appear in the Government's
So we have a contemporaneous and long-continued construction of the statutes by the agency charged to administer them that would allow the registration of such a statuette as is in question here.
This Court once essayed to fix the limits of the fine arts.
The successive acts, the legislative history of the 1909 Act and the practice of the Copyright Office unite to show
The conclusion that the statues here in issue may be copyrighted goes far to solve the question whether their intended reproduction as lamp stands bars or invalidates their registration. This depends solely on statutory interpretation. Congress may after publication protect by copyright any writing of an author. Its statute creates the copyright.
But petitioners assert that congressional enactment of the design patent laws should be interpreted as denying protection to artistic articles embodied or reproduced in manufactured articles.
Their argument is that design patents require the critical examination given patents to protect the public against monopoly. Attention is called to Gorham Co. v. White, 14 Wall. 511, interpreting the design patent law of 1842, 5 Stat. 544, granting a patent to anyone who by "their own industry, genius, efforts, and expense, may have invented or produced any new and original design for a manufacture . . . ." A pattern for flat silver was there upheld.
Petitioner has furnished the Court a booklet of numerous design patents for statuettes, bases for table lamps and similar articles for manufacture, quite indistinguishable in type from the copyrighted statuettes here in issue.
Unlike a patent, a copyright gives no exclusive right to the art disclosed; protection is given only to the expression of the idea—not the idea itself.
Nor do we think the subsequent registration of a work of art published as an element in a manufactured article, is a misuse of the copyright. This is not different from
"The copyright law, like the patent statutes, makes reward to the owner a secondary consideration." United States v. Paramount Pictures, 334 U.S. 131, 158. However, it is "intended definitely to grant valuable, enforceable rights to authors, publishers, etc., without burden-some requirements; `to afford greater encouragement to the production of literary [or artistic] works of lasting benefit to the world.' " Washingtonian Co. v. Pearson, 306 U.S. 30, 36.
The economic philosophy behind the clause empowering Congress to grant patents and copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in "Science and useful Arts." Sacrificial days devoted to such creative activities deserve rewards commensurate with the services rendered.
Opinion of MR. JUSTICE DOUGLAS, in which MR. JUSTICE BLACK concurs.
An important constitutional question underlies this case—a question which was stirred on oral argument but not treated in the briefs. It is whether these statuettes of dancing figures may be copyrighted. Congress has provided that "works of art," "models or designs for works of art," and "reproductions of a work of art" may be copyrighted (17 U. S. C. § 5); and the Court holds that these statuettes are included in the words "works of art." But may statuettes be granted the monopoly of the copyright?
Article I, § 8 of the Constitution grants Congress the power "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors . . . the
Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, held that a photograph could be copyrighted.
Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, held that chromolithographs to be used as advertisements for a circus were "pictorial illustrations" within the meaning of the copyright laws. Broad language was used in the latter case, ". . . 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." 188 U. S., at 250. But the constitutional range of the meaning of "writings" in the field of art was not in issue either in the Bleistein case nor in Woolworth Co. v. Contemporary Arts, 344 U.S. 228, recently here on a writ of certiorari limited to a question of damages.
At times the Court has on its own initiative considered and decided constitutional issues not raised, argued, or briefed by the parties. Such, for example, was the case of Continental Bank v. Rock Island R. Co., 294 U.S. 648, 667, in which the Court decided the constitutionality of § 77 of the Bankruptcy Act though the question was not noticed by any party. We could do the same here and decide the question here and now. This case, however, is not a pressing one, there being no urgency for a decision. Moreover, the constitutional materials are quite meager (see Fenning, The Origin of the Patent and Copyright Clause of the Constitution, 17 Geo. L. J. 109 (1929); and much research is needed.
The interests involved in the category of "works of art," as used in the copyright law, are considerable. The
"The works for which copyright may be secured under this title shall include all the writings of an author."
Id., § 5:
"The application for registration shall specify to which of the following classes the work in which copyright is claimed belongs:
"(g) Works of art; models or designs for works of art.
"(h) Reproductions of a work of art."
Errors of classification are immaterial. See note 19, infra.
Stein v. Rosenthal, 103 F.Supp. 227, was a second infringement case. It was there held "Protection is not dissipated by taking an unadulterated object of art as copyrighted and integrating it into commercially valuable merchandise." Id., at 230. On appeal, the Court of Appeals for the Ninth Circuit affirmed, saying "The theory that the use of a copyrighted work of art loses its status as a work of art if and when it is put to a functional use has no basis in the wording of the copyright laws and there is nothing in the design-patent laws which excludes a work of art from the operation of the copyright laws." Rosenthal v. Stein, 205 F.2d 633, 635.
In Stein v. Benaderet, 109 F.Supp. 364, 365, a district court of Michigan held that it is the "intent and purpose" of the designer which determines whether an object is copyrightable as a work of art. The court said plaintiffs should have applied for a design patent and held for defendants. An appeal is pending now in the Court of Appeals for the Sixth Circuit.
The opinions in the above cases and those of the District Court and the Court of Appeals in the present litigation deserve careful reading.
No question of our jurisdiction emerges. Chicot County Dist. v. Bank, 308 U.S. 371. Compare Kalb v. Feuerstein, 308 U.S. 433, and Continental Illinois Nat. Bank & Trust Co. v. Chicago, R. I. & P. R. Co., 294 U.S. 648, 667.
Compare on the constitutional question the following: Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, upheld the copyright of a photograph unanimously. It was said: "By writings in that clause is meant the literary productions of those authors, and Congress very properly has declared these to include all forms of writing, printing, engraving, etching, &c., by which the ideas in the mind of the author are given visible expression." Id., at 58.
"These findings, we think, show this photograph to be an original work of art, the product of plaintiff's intellectual invention, of which plaintiff is the author, and of a class of inventions for which the Constitution intended that Congress should secure to him the exclusive right to use, publish and sell, as it has done by section 4952 of the Revised Statutes." Id., at 60.
Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 249-250, upheld a copyright on circus posters. The Court said:
"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. . . . 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."
Kalem Co. v. Harper Bros., 222 U.S. 55, 63, involved pirating by motion pictures of the copyrighted dramatic rights of a book. This Court said:
"It is argued that the law construed as we have construed it goes beyond the power conferred upon Congress by the Constitution, to secure to authors for a limited time the exclusive right to their writings. Art. I, § 8, cl. 8. It is suggested that to extend the copyright to a case like this is to extend it to the ideas as distinguished from the words in which those ideas are clothed. But there is no attempt to make a monopoly of the ideas expressed. The law confines itself to a particular, cognate and well known form of reproduction. If to that extent a grant of monopoly is thought a proper way to secure the right to the writings this court cannot say that Congress was wrong."
See also Schreiber v. Thornton, 17 F. 603, reversed on other grounds, Thornton v. Schreiber, 124 U.S. 612.
See Fenning, The Origin of the Patent and Copyright Clause of the Constitution, 17 Geo. L. J. 109; 2 Story, Constitution (5th ed.), c. XIX.
Trade-Mark Cases, 100 U.S. 82, 94. Congress had passed a trade-mark act under the Patent and Copyright Clause. A unanimous Court held this effort to protect trade-marks was unconstitutional:
"The ordinary trade-mark has no necessary relation to invention or discovery. . . . If we should endeavor to classify it under the head of writings of authors, the objections are equally strong. In this, as in regard to inventions, originality is required. And while the word writings may be liberally construed, as it has been, to include original designs for engravings, prints, &c., it is only such as are original, and are founded in the creative powers of the mind. The writings which are to be protected are the fruits of intellectual labor, embodied in the form of books, prints, engravings, and the like." The trade-mark does not "depend upon novelty, invention, discovery, or any work of the brain. It requires no fancy or imagination, no genius, no laborious thought. It is simply founded on priority of appropriation."
See as to commerce, id., at 95-98; Robert, Commentary on the Lanham Trade-Mark Act, 15 U. S. C. A. (§§ 81-1113, 1948) p. 265.
This was repealed in 1939 and the following enacted:
"SEC. 2. Section 5 (k) of the Act entitled `An Act to amend and consolidate the Acts respecting copyright' approved March 4, 1909, is hereby amended to read: `(k) Prints and pictorial illustrations including prints or labels used for articles of merchandise.' " 53 Stat. 1142. This was an amendment to § 5 (k) of the Act of 1909, 35 Stat. 1077. It is to be noted, however, that the 1909 Act did not conform to the 1874 language, but the present Act, 17 U. S. C. (Supp. V, 1952) § 5 (k), does contain the amendatory language of the 1939 Act.
"The existing statutes attempt specifications which are unfortunate because necessarily imperfect and requiring frequent additions to cover new forms or new processes. The bill in its general definition substitutes a general term, `all the works of an author.' The term used in the constitution is `writings.' But Congress has always construed this term broadly, and in doing so has been uniformly supported by judicial decision. It has, for instance, interpreted it as authorizing subject-matter so remote from its popular significance as photographs, paintings, statuary, and dramas, even if unwritten.
"As thus interpreted, the word `writings' would to-day in popular parlance be more nearly represented by the word `works;' and this the bill adopts; referring back, however, to the word `writings' by way of safe anchorage, but regarding this as including `all forms of record in which the thought of an author may be recorded and from which it may be read or reproduced.' "
Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884), has held that photographs were copyrightable in spite of the argument that the Constitution only specified protection for "writings" of an "author." This decision made clear that "writings" was not limited to chirography and typography.
"(a) Books including composite and cyclopaedic works, directories, gazetteers, and other compilations;
"(b) Periodicals, including newspapers;
"(c) Lectures, sermons, addresses, prepared for oral delivery;
"(d) Dramatic or dramatico-musical compositions;
"(e) Musical compositions;
"(g) Works of art; models or designs for works of art;
"(h) Reproductions of a work of art;
"(i) Drawings or plastic works of a scientific or technical character;
"(k) Prints and pictorial illustrations.
"Provided, nevertheless, That the above specifications shall not be held to limit the subject-matter of copyright as defined in section four of this Act, nor shall any error in classification invalidate or impair the copyright protection secured under this Act." 35 Stat. 1076.
Subsection (k) was amended by the addition of the words "including prints or labels used for articles of merchandise" in 1939. 53 Stat. 1142. See note 14, supra. Two more classes "(1) Motion-picture photoplays" and "(m) Motion pictures other than photoplays" were added in 1912. 37 Stat. 488.
"Productions of the industrial arts utilitarian in purpose and character are not subject to copyright registration, even if artistically made or ornamented." Rules and Regulations for the Registration of Claims to Copyright, Bulletin No. 15 (1910), 8.
"The protection of productions of the industrial arts utilitarian in purpose and character even if artistically made or ornamented depends upon action under the patent law; but registration in the Copyright Office has been made to protect artistic drawings notwithstanding they may afterwards be utilized for articles of manufacture." 37 CFR, 1939, § 201.4 (7).