CITE: 188 U.S. 239
CMON: February 1903
PLAIN: Bleistein
DEFND: Donaldson Lithographing
COURT: United States Supreme Court
DATE: February 2, 1903
HISTORY:
This case comes here from the United States Circuit Court of Appeals for
the Sixth Circuit by writ of error. It is an action brought by the
plaintiffs in error to recover the penalties prescribed for infringements
of copyrights. The Circuit Court directed a verdict for the defendant on
the ground that the chromolithographs were not within the protection of
the copyright law, and this ruling was sustained by the Circuit Court
of Appeals. Courier Lithographing Co. v. Donaldson Lithographing Co.,
104 Fed. Rep. 993.
SUMMARY:
Printed and engraved works are copyrightable. Pictorial illustrations
and chromolithographic advertisements are copyrightable.
JUDGE: HOLMES, Justice
MR. JUSTICE HARLAN, with whom concurred MR. JUSTICE McKENNA, dissenting.
DECISION:
Prior History.
ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT.
The case is stated in the opinion of the court. {n1}
OPINION.
MR. JUSTICE HOLMES delivered the opinion of the court.
This case comes here from the United States Circuit Court of Appeals for
the Sixth Circuit by writ of error. Act of March 3, 1891, c. 517,
Section 6, 26 Stat. 828. It is an action brought by the plaintiffs in
error to recover the penalties prescribed for infringements of copyrights.
Rev. Stat. Sections 4952, 4956, 4965, amended by act of March 3, 1891,
c. 565, 26 Stat. 1109, and act of March 2, 1895, c. 194, 28 Stat. 965.
The alleged infringements consisted in the copying in reduced form of
three chromolithographs prepared by employes of the plaintiffs for
advertisements of a circus owned by one Wallace. Each of the three
contained a portrait of Wallace in the corner and lettering bearing some
slight relation to the scheme of decoration, indicating the subject of the
design and the fact that the reality was to be seen at the circus. One of
the designs was of an ordinary ballet, one of a number of men and women,
described as the Stirk family, performing on bicycles, and one of groups
of men and women whitened to represent statutes. The Circuit Court
directed a verdict for the defendant on the ground that the
chromolithographs were not within the protection of the copyright law,
and this ruling was sustained by the Circuit Court of Appeals. Courier
Lithographing Co. v. Donaldson Lithographing Co., 104 Fed. Rep. 993.
There was evidence warranting the inference that the designs belonged to the
plaintiffs, they having been produced by persons employed and paid by the
plaintiffs in their establishment to make those very things. Gill v. United
States, 160 U.S. 426, [*249] 435; Colliery Engineer Company v. United
Correspondence Schools Company, 94 Fed. Rep. 152; Carte v. Evans, 27 Fed. Rep.
861. It fairly might be found also that the copyrights were taken out in the
proper names. One of them was taken out in the name of the Courier Company
and the other two in the names of the Courier Lithographing Company. The
former was the name of an unincorporated joint stock association formed
under the laws of New York, Laws of 1894, c. 235, and made up of the
plaintiffs, the other a trade variant on that name. Scribner v. Clark,
50 Fed. Rep. 473, 474, 475; S.C., sub nom. Belford v. Scribner, 144 U.S. 488.
Finally, there was evidence that the pictures were copyrighted before
publication. There may be a question whether the use by the defendant for
Wallace was not lawful within the terms of the contract with Wallace, or a
more general one as to what rights the plaintiffs reserved. But we cannot
pass upon these questions as matter of law; they will be for the jury when
the case is tried again, and therefore we come at once to the ground of
decision in the courts below. That ground was not found in any variance
between pleading and proof, such as was put forward in argument, but in
the nature and purpose of the designs.
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.
Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53. It is obvious also
that the plaintiffs' case is not affected by the fact, if it be one, that
the pictures represent actual groups -- visible things. They seem from the
testimony to have been composed from hints or description, not from sight
of a performance. 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. Blunt v. Patten, 2 Paine, 397, 400.
See Kelly v. Morris, L. R. 1 Eq. 697; Morris v. Wright, L.R. 5 Ch. 279.
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.
If there is a restriction it is not to be found in the limited pretensions of
these particular works. The least pretentious picture has more originality in
the than directories and the like, which may be copyrighted. Drone, Copyright,
153. See Henderson v. Tomkins, 60 Fed. Rep. 758, 765. The amount of training
required for humbler efforts than those before us is will indicated by
Ruskin. "If any young person, after being taught what is, in polite circles,
called 'drawing,' will try to copy the commonest piece of real work, --
suppose a lithograph on the title page of a new opera air, or a woodcut in
the cheapest illustrated newspaper of the day -- they will find themselves
entirely beaten." Elements of Drawing, 1st ed. 3. There is no reason to
doubt that these prints in their ensemble and in all their details, in their
design and particular combinations of figures, lines and colors, are the
original work of the plaintiffs' designer. If it be necessary, there is
express testimony to that effect. It would be pressing the defendant's
right to the verge, if not beyond, to leave the question of originality
to the jury upon the evidence in this case, as was done in Hegeman v.
Springer, 110 Fed. Rep. 374.
We assume that the construction of Rev. Stat. Section 4952, allowing a
copyright to the "author, inventor, designer, or proprietor . . . of any
engraving, cut, print . . . [or] chromo" is affected by the act of 1874,
c. 301, Section 3, 18 Stat. 78, 79. That section provides that "in the
construction of this act the words 'engraving', 'cut' and 'print' shall be
applied only to pictorial illustrations or works connected with the fine
arts." We see no reason for taking the words "connected with the fine arts"
as qualifying anything except the word "works", but it would not change
our decision if we should assume further that they also qualified
"pictorial illustrations," as the defendant contends.
These chromolithographs are "pictorial illustrations". The word
"illustrations" does not mean that they must illustrate the text of a
book, and that the etchings of Rembrandt or Steinla's engraving of the
Madonna di San Sisto Could not be protected today if any man were able
to produce them. Again, the act 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; it is "prints or labels designed
to be used for any other articles of manufacture". 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. A picture is none the less a
picture and none the less a subject of copyright that it is used for an
advertisement. And if pictures may be used to advertise soap, or the
theatre, or monthly magazines, as they are, they may be used to advertise
a circus. Of course, 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.
Finally, the special adaptation of these pictures to the advertisement of
the Wallace shows does not prevent a copyright. That may be a circumstance
for the jury to consider in determining the extent of Mr. Wallace's rights,
but it is not a bar. Moreover, on the evidence, such prints are used by
less pretentious exhibitions when those for whom they were prepared have
given them up.
It would be a dangerous undertaking for persons trained only to the law to
constitute themselves final judges of the worth of pictorial illustrations,
outside of the narrowest and most obvious limits. At the one extreme 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. Yet if they command the interest of any public, they have a
commercial value -- it would be bold to say that they have not an aesthetic
and educational value -- and the taste of any public is not to be treated
with contempt. It is an ultimate fact for the moment, whatever may be out
hopes for a change. That these pictures had their worth and their success
is sufficiently shown by the desire to reproduce them without regard to the
plaintiffs' rights. See Henderson v. Tomkins, 60 Fed. Rep. 758, 765. 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.
DISSENT:
MR. JUSTICE HARLAN, with whom concurred MR. JUSTICE McKENNA, dissenting.
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 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 Fed. Rep. 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.
MR. JUSTICE McKENNA authorizes me to say that he also dissents.
FOOTNOTE:
{n1}
Syllabus.
Chromolithographs representing actual groups of persons and things, which
have been designed from hints or descriptions of the scenes represented,
and which are to be used as advertisements for a circus are "pictorial
illustrations" within the meaning of Rev. Stat. Section 4952, allowing a
copyright to the "author, designer, or proprietor . . . of any engraving,
cut, print, . . . or chrome" as affected by the act of 1874, chap. 301,
Section 3, 18 Stat. 78, 79. And on complying with all the statutory
requirements the proprietors are entitled to the protection of the
copyright laws.
This action comes here upon writ of error to the Circuit Court of Appeals
for the Sixth Circuit, which court heard it on writ of error directed to
the United States Circuit Court for the District of Kentucky. The Circuit
Court, at the close of plaintiffs' case, instructed the jury to find a
verdict for defendant, which was done and judgment entered thereon.
The Circuit Court of Appeals affirmed said judgment.
There were three causes of action which were all based upon sec. 4965 of
the Revised Statutes, quoted on page 60. By order of the Circuit Court,
dated June 10, 1899, the marshal seized 10,590 eight-page prints and
13,205 four-page prints, described in the writ, and also five metal
electrotype plates, all of which he found in the defendant's possession
(page 13).
The action was tried at Covington, Kentucky, on December 12 and 13, 1899,
before Hon. Walter Evans, sitting as Circuit Judge, and a jury.
At the outset of the trial, during the direct examination of the first
witness, the court anticipated the question upon which it afterwards took
the case away from the jury and decided it, by the following remark: "The
real controversy will be whether this is a subject of copyright, whether
it comes within the copyright law."
At the close of the plaintiffs' case, defendant moved for "peremptory
instructions for the defendant." The court said, "State why, in a word,"
to which defendant's counsel answered: "In the first place I want to say
with reference to the Statuary Exhibit. . . . It is alleged in the
petition, and is in fact copyrighted on the 18th of April, and the
publication plainly shows it was prior to that. That is a specific
objection to that one upon that ground specifically -- that is the
Statuary.
"The Court: Now as to the other two.
"Counsel: The specific objection to this one, the Ballet, is that it is an
immoral picture.
"And the general objection that I make to them all is that they are none of
them subject matter of copyright. They are all mere matter of advertising."
The next day the court delivered a written opinion which concludes as
follows:
"The case must turn upon the others (other question), and especially upon the
general proposition that the things copyrighted in this case were by no means
such as either the Constitution or the legislation of Congress intended to
protect by the privilege of copyright. The court cannot bring its mind to
yield to the conclusion that such tawdry pictures as these were ever meant
to be given the enormous protection of not only the exclusive right to print
them, but the additional protection of a penalty of a dollar each for
reprints from them.
"As previously stated, they are neither 'pictorial illustrations' nor 'works
connected with the fine arts' within the meaning of section 4952. Not being
so, there was no authority to grant the copyrights, whether the Constitution
authorizes Congress to promote the fine arts or not.
"The judgment of the court is, that the plaintiffs' on their own showing, are
not entitled to recover, and for that reason the motion of defendant will be
granted, and Il will instruct the jury to find a verdict for it."
The jury, in accordance with said instruction, returned a verdict for the
defendant.
There is no question as to the fact of infringement.
The sheets in evidence, made bt defendant, contain reproductions by means
of cheap electrotype plates of each of the plaintiffs' designs. These
reproductions are not in colors.
The principal questions are:
First. Whether on the question of artistic merit or value of these
lithographic prints or chromos, the Circuit Court was justified in taking
the case from the jury, and condemning them entirely as not being fit
subjects for copyright.
Second. Whether the copyrights were obtained for these prints in accordance
with the Constitution and laws of the United States, and are valid
copyrights.
The second question involves the inquiries: Whether the copyrights were
properly taken out by the plaintiffs, in their trade names of "The Courier
Co." and "The Courier Lithographing Co.," and, incidentally, whether
plaintiffs have the right to sue in their individual names for infringement
of these copyrights; and whether the Statuary Act Design was copyrighted
before it was published.
The three pictures in question are show-bills or circus bills, also called
posters and, more definitely, picture-posters. They are colored lithographs
or chromolithographs, commonly called "chromos." They were designed
primarily to be sold to the proprietors of circuses and other shows,
and by them to be used for advertising; but they could be sold to any one,
or used for any purpose for which they were adapted.
They were made in the plaintiffs' lithographing establishment under a special
contract with the proprietor of a circus, by which the plaintiffs agreed to
design and get up certain representations of scenes supposed to be exhibited
at the show, the plaintiffs reserving rights of design and of copyright,
and with the usual understanding that so long as the proprietor of the
circus used these designs he had the right to them, but if he ceased to use
any of them, the plaintiffs could sell the design or the pictures which
embodied it, to any one.
The fundamental question of the right to copyright such show-bills or
posters, is a question of great importance, involving the protection of an
immense industry. The foundation of the copyright law is in the provision
of the Constitution (art. 1, sec. 8), which authorizes Congress --
"To promote the progress of science and useful arts, by securing for
limited times, to authors and inventors, the exclusive right to their
respective writings and discoveries."
It is settled that the words "authors" and "writings," in this section, are
not confined to literary writers and their works, but include, among others,
designers, engravers and lithographers, as well as photographers.
Burrow-Giles Litho. Co. v. Sarony, 111 U.S. 53; Trade Mark Cases, 100 U.S. 82.
Picture-posters or show bills, such as these chromolithographs were, are not
designed for close inspection or long-continued study, like an oil painting,
a steel or wood engraving, or an etching, and they are not to be judged by
the same standards. They are intended to catch the eye of the passer on
the street, or any one who merely glances at them, and to challenge his
attention, -- if possible to compel him to look again, so that he will
observe what is the subject of the poster and have this forced upon his
mind, and will be attracted by it. Their function is to illustrate
something, and to advertise it by appealing quickly to the imagination,
and conveying instantly a strong and favorable impression. Thus, to be
successful, they require artistic ability, and above all things
creativeness or originality of a high order, but peculiar. They must be
designed boldly, and executed on broad lines, with not much attention to
detail, so that the spirit of the picture will stand out at once, and
almost leap at you, and will not be lost in a mass of details and minor
features.
Such is the ideal picture-poster, a special and peculiar branch of pictorial
art, and one into which many gifted artists, highly successful in other
fields, have ventured with greater or less success. Charles Hiatt's work
entitled "Picture Posters", published in 1895 by George Bell & Sons,
London; "The Modern Poster", by Alexandre and others, published in 1895
by Charles Scribner's Sons.
Certainly it does not lie in the mouth of the pirate, who has stolen and
copied them at some expense and considerable risk, to deny that they have
merit and value.
I. The designs were proper subjects of copyright and each of these
picture-posters was a proper subject of copyright, within the language
and the spirit of the copyright law. There was abundant evidence of
originality of design, of artistic merit, and of practical value and
usefulness, as to each of the pictures.
If any of these qualities was seriously questioned by the defence, it became
the duty of the court to send the case to the jury.
All of the pictures are new and original designs and involve new and original
conceptions and creations. There was enough evidence on this subject to
require to case to be submitted to the jury if any question was raised
about it, citing, and in some instances distinguishing, as to definition
of author, writings, etc., The Trade Mark Cases, 100 U.S. 82; Lithograph Co.
v. Sarony, 111 U.S. 53; Nottage v. Jackson, 11 Q.B. Div. 627; Brightly v.
Littleton, 37 Fed. Rep. 103; Carlisle v. Colusa County, 57 Fed. Rep. 979;
Drury v. Ewing, Fed. Cases, No. 4095.
If any one of the pictures was sufficiently proved to be new and original,
this was enough to carry the case to the jury upon this question; they were
all proved to be new and original.
II. As to artistic merit and value. The pictures being original designs,
we maintain that they are of sufficient artistic merit and of sufficient
value and usefulness to be entitled to copyright. At least there was
enough evidence of this to require the case to be submitted to the jury,
if any question was raised about it, -- and furthermore no such question
was raised by the defence.
"If a copyrighted article has merit and value enough to be the object of
piracy, it should also be of sufficient importance to be entitled to
protection." Drone on Copyright, p. 212, cited with approval in Henderson v.
Tomkins, 60 Fed. Rep. 758, 765; Church v. Linton, 25 Ont. Rep. 121; Hegeman v.
Springer, 110 Fed. Rep. 374; Bolles v. Outing Co., 77 Fed. Rep. 966;
175 U.S. 262; Richardson v. Miller, Fed. Cases, No. 11,791.
We have nothing to do with cases involving attempts to copyright mere
catalogues or price lists, or labels, sometimes containing pictures,
reproduced by photographic or other mechanical processes, of articles
intended for sale, but which obviously have no artistic merit or
originality. These decisions, whether condemning or upholding such
copyrights, do not touch the questions involved in the case at bar.
Distinguishing Mott Iron Works v. Clow, 82 Fed. Rep. 216; also citing
Yuengling v. Schile, 12 Fed. Rep. 97, 101; Schumaker v. Schwencke,
25 Fed. Rep. 466; Lamb v. Grand Rapids School Furniture Co., 39 Fed. Rep.
474; Drone on Copyright, 164, 165; Grace v. Newman, L.R. 19 Eq. Cases, 623;
Maple v. Junior Army & Navy Stores, L.R. 21 Ch. Div. 369; Church v. Linton,
25 Ont. Rep. 131; Carlisle v. Colusa County, 57 Fed. Rep. 979.
"The degree of merit of the copyrighted matter the law is not concerned with.
Any is legally enough. To use it or not use it, is voluntary on the part
of the public."
III. The copyrights were properly taken out by the plaintiffs in their
trade names of "The Courier Co." and "The Courier Litho. co.", and the
plaintiffs have the right to sue in their individual names for infringement
of these copyrights.
That copartners in business, who are the proprietors of a copyrighted
article, may take out a copyright in either of their copartnership or trade
names, is well settled. Scribner v. Clark, 50 Fed. Rep. 473; affirmed as
Belford v. Scribner, 144 U.S. 488; Callaghan v. Myers, 128 U.S. 617;
Scribner v. Allen Co., 49 Fed. Rep. 854; Werckneister v. Springer Lith.
Co., 63 Fed. Rep. 808; Rock v. Lazarus, Law Rep. 15 Eq. Cases, 104;
Weldon v. Dicks, Law Rep. 10 Ch. Div. 247; Fruit-Cleaning Co. v. Fresno
Home Packing Co., 94 Fed. Rep. 845.
Finally, the plaintiffs were the "proprietors" of each of the copyrighted
prints, and as such were authorized to take out the copyrights by the express
language of the copyright law, Rev. Stat., sec. 4952, which includes
"proprietors" with "authors, inventors (and) designers." Colliery Eng. Co.
v. United etc., Co., 94 Fed. Rep. 152.
No formal assignment of the right to a copyright is necessary. Consent is
sufficient to constitute one the proprietor. Carte v. Evans, 27 Fed. Rep.
861. See also Schumacher v. Schwencke, 25 Fed. Rep. 466; Little v. Gould,
Fed. Cases, No. 8395; Lawrence v. Dana, Fed. Cases, No. 8136; Sweet v.
Benning, 81 Eng. Com. Law Rep. 459; 16 Com. Bench Rep. 459; Gill v.
United States, 160 U.S. 426, 435.
All of the pictures, and particularly the Statuary Act Design, were
copyrighted before publication.
The law is well settled that there was no publication of these prints when
they were shipped from Buffalo on April 11, or when they were received by
Mr. Wallace at Peru, Indiana, on or about April 15. There was no
publication until they were exposed to the general public, so that the
public, without discrimination as to persons, might enjoy them. This must
have been some time after April 15, when the last copyright was surely
completed.
Publication is a legal conclusion which follows from certain acts. Drone
on Copyright, p. 291; Jewelers Merc. Agency v. Jewelers Pub. Co., 84 Hun
(N.Y. Sup. Ct.), 12, 16; Callaghan v. Myers, 128 U.S. 617; Black v. Henry
G. Allen Co., 56 Fed. Rep. 764; Belford v. Scribner, 144 U.S. 488; Garland
v. Gemmill, 14 Canada Sup. Ct. Rep. 321; Prince Albert v. Strange, 2 De Gex
& Smale, 652; 1 MacNaghten & Gorden; 47 Eng. Ch. Rep. 25. The representation
of a play upon the stage regularly at a theatre, does not constitute a
publication. Tompkins v. Halleck, 133 Massachusetts, 32; Palmer v.
De Witt, 47 N.Y. 532; Boucicault v. Hart, Fed. Cases, No. 1692.
The use by a teacher of his manuscript and allowing pupils to make copies for
the purpose of obtaining his instruction, does not amount to a publication.
Bartlett v. Crittenden, Fed. Cases, Nos. 1076 and 1082. The printing of
copies of an operetta and distributing them to artists, for private use only
in learning their parts, and the representing of the operetta on the stage,
is not a publication. French v. Kreling, 63 Fed. Rep. 621; Reed v. Carusi,
Fed. Cases, No. 11,642; Blume v. Spear, 30 Fed. Rep. 629; Exch. Tel. Co. v.
Cent. News, Law Rep. 2 Ch. Div. 48.
Mr. Edmund W. Kittredge, with whom Mr. Joseph Wilby was on the brief, for
defendant in error, contended that the plaintiff in error was not entitled to
copyright. The evidence established that these three prints were ordered by
B.E. Wallace, proprietor of the circus known as the "Wallace Shows," under
contract with him as an advertisement for his show, and they have never been
made for anybody else. All of these pictures purported to be representations
of acts to be done in the Wallace Shows, and all were made under a
representation by Wallace, expressed on the face of the pictures, that his
show was going to do these things. All these posters contain reading matter
indicating that these were pictures of acts to be done in the Wallace Shows,
and they all included pictures of Mr. Wallace himself.
They were prints and the copyright inscription was insufficient. But for the
provision in the first clause of this act the inscription, "Copyright, 1898,
Courier Litho. Co., Buffalo, N.Y.," would have been fatal to the plaintiffs'
right of action. Thompson v. Hubbard, 131 U.S. 123. The inscription
prescribed by section 4962 of the Revised Statutes was otherwise
indispensable to the maintenance of an action for the infringement
of a copyright. The notice given on each one of these pictures was that
authorized by the act of June 18, 1874. Having thus availed themselves of
the provisions of this act, clearly the plaintiffs are not in position to
claim that the pictures are not covered by its provisions. Again, if these
pictures were chromos, and not prints, cuts or engravings, then under the
allegations of the petition they were not admissible in evidence because
they were not in support of the allegations of the petition. As to what
a chromo is and how statute should be construed, Yuengling v. Schile,
12 Fed. Rep. 107; Bolles v. Outing Company, 175 U.S. 262; Thornton v.
Schreiber, 124 U.S. 612; Rosenbach v. Dreyfuss, 2 Fed. Rep. 217;
Ehret v. Pierce, 10 Fed. Rep. 554; S.C., 18 Blatch. 302; Schumacher v.
Wogram, 35 Fed. Rep. 210; Higgins v. Kueffel, 140 U.S. 428. As to
advertisements and copyrights, citing Cobbett v. Woodward, L.R. 14 Eq. 407,
cited with approval by this court in Baker v. Selden, 101 U.S. 106;
Clayton v. Stone & Hall, 2 Paine, 392; Mott Iron Works v. Clow,
82 Fed. Rep. 216.
There was no evidence tending to show that the plaintiffs themselves, or
either of them, were the authors of these prints. It was claimed that
they were the proprietors because, as they also claimed, the design or
conception was that of their employes, working for them, under salaries,
and that their designs were the property of the employer. If they were
not themselves the authors, then it was incumbent upon them to allege how
they acquired title as proprietors from the author, inventor or designer.
Lithographic Co. v. Sarony, 111 U.S. 53; Nottage v. Jackson, 11 Q.B.D.
627; Atwell v. Ferret, 2 Blatch. 46; Bimms v. Woodworth, 4 Wash. C.C. Rep.
48; Black v. Allen Co., 42 Fed. Rep. 618; S.C., 56 Fed. Rep. 764; Press
Pub. Co. v. Falk, 59 Fed. Rep. 524; Pollard v. Photograph Co., 40 Ch. Div.
345; Moore v. Rugg, 46 N.W. 141; Dielman v. White, 102 Red. Rep. 892;
Parton v. Prang, 3 Clifford, 537; Little v. Good, 2 Blatch. 166.
It is incumbent upon the plaintiffs, in a case like this, for the recovery of
penalties, to allege and to prove as alleged, every fact essential to the
validity of their copyright. Jones v. Van Zandt, 5 How. 372.
The copyright law does not protect what is immoral in its tendency. A print
representing unchaste acts of scenes calculated to excite lustful or sensual
desires in those whose minds are open to such influences, and to attract them
to witness the performance of such scenes, is manifestly of that character.
It is the young and immature and those who are sensually inclined who are
liable to be influenced by such scenes and representations, and it is their
influence upon such persons that should be considered in determining their
character. Broder v. Zeno Mauvais Music Co., 88 Fed. Rep. 74; Dunlop v.
United States, 165 U.S. 501; Martinetti v. Maguire, Fed. Cases, No. 9173,
The Black Crook case.