As the Copyright Office celebrates its 150th birthday, we can look back more than 240 years through the history of copyright protections in the United States to see how the law has changed in response to changing technologies and economics.
The authors of the U.S. Constitution believed that copyright was important enough to explicitly grant the federal government the power to grant authors the exclusive right to their writings.
When the first U.S. Congress convened in 1789, it put enactment of the country’s first Copyright Act on its agenda. The Copyright Act of 1790 extended copyright protections to “maps, charts, and books.” But copyright protection in 2020 covers many more types of creative expression.
The federal courts have been crucial in looking at creative media and setting the boundaries of what is protected and what isn’t. This is a look back at some of the most important court rulings on what is and isn’t protectable throughout the years under U.S. copyright law.
These cases reflect some of the landmarks for American courts for defining the scope of copyright protection: (1) Is a system of accounting and its ledgers protected? (2) Is a photograph protected when the law doesn’t explicitly mention photographs? (3) Is an advertisement protected? And (4) Is a creative work incorporated into a useful article protected?
Bookkeeping Ledgers Play Key Role in Limiting Protection to Expression
Baker v. Selden, 101 U.S. 99 (1879)
In 1859, Charles Selden registered a copyright interest in a book called Selden’s Condensed Ledger, or Book-keeping Simplified. The book described a system of bookkeeping. Most of the book comprised a series of sample bookkeeping forms, accompanied by a few hundred words of explanation. Over the years, Selden issued several versions of this book, but struggled to earn sales.
In 1867, W.C.M. Baker published a very similar book, one which was much more successful. Selden’s widow sued Baker, alleging copyright infringement. The case went to the Supreme Court, where Justice Joseph P. Bradley ruled against Selden, setting forth the principle that became known as the Idea/Expression Dichotomy.
Under this doctrine, copyright law protects only the specific expression of an idea, not the idea itself. Other kinds of law, mainly patent law, might extend protection to an idea, such as a method or process of doing something, but not copyright law.
The specific words Selden used to express his ideas about bookkeeping could be subject to a copyright claim, but the actual bookkeeping method he was describing could not.
This principle survives today in section 102(b) of the Copyright Act, which says, “in no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.”
Photography Is Creative, Not Just a Mechanical Process
Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884)
In 1882, photographer Napoleon Sarony took a photograph of Irish novelist and playwright Oscar Wilde, and titled it Oscar Wilde No. 18. The Burrow-Giles Lithographic Co. started selling lithographs of Oscar Wilde No. 18 without Sarony’s permission and Sarony sued, alleging copyright infringement.
Sarony’s claim was filed under section 4952 of the Copyright Act of 1865, which extended copyright protection to photographs. But Burrow-Giles argued that this statute was unconstitutional. Article I, section 8, clause 8, of the U.S. Constitution authorizes Congress to grant to “authors” exclusive right in their “writings.”
According to Burrow-Giles, a photographer wasn’t an author and a photograph wasn’t a writing, so the statute exceeded Congress’s constitutional authority.
But Justice Samuel Freeman Miller disagreed, pointing out that some of the people who had worked directly with the framers of the Constitution and had attended the Constitutional Convention had been members of Congress that extended protections to maps, charts, etchings, and engravings. Thus, the framers couldn’t have meant “writings” to have such a narrow definition.
The court also rejected the argument that photography was a mechanical process that showed no artistic expression. Some photographs might be mechanical. But in this case, Sarony had exercised artistic choices “by posing the said Oscar Wilde in front of the camera, selecting and arranging the costume, draperies, and other various accessories in said photograph, arranging the subject so as to present graceful outlines, arranging and disposing the light and shade, suggesting and evoking the desired expression, and from such disposition, arrangement, or representation, made entirely by the plaintiff, he produced the picture in suit.” This made the photograph an “original work of art” and qualified it as a member of the class of things that the Constitution allows Congress to protect.
Advertisements are Also Expressive, Even if Commercial
Bleistein v. Donaldson Lithographing Co., 188 U.S. 239 (1903)
The Great Wallace Show, a traveling circus, hired the Courier Lithographing Co. to make several chromolithographs and print advertising posters. Wallace used up the posters that Courier and its employee George Bleistein had made and went to the Donaldson Lithographing Co. to copy three of the posters, which depicted ballet dancers, acrobats, and other circus performers.
Courier sued, alleging infringement. When the case went up on appeal, the U.S. Circuit Court of Appeals for the Sixth Circuit—referring to the posters as “tawdry pictures”—said that these advertising posters were not eligible for copyright protection, either under the Copyright Act of 1870 or under the U.S. Constitution.
“They are neither ‘pictorial illustrations’ nor ‘works connected with the fine arts,’” according to the Sixth Circuit.
At the Supreme Court, however, Justice Oliver Wendell Holmes Jr. rejected this view “[T]he act however construed, does not mean that ordinary posters are not good enough to be considered within its scope,” the court said.
The commercial nature of the posters also didn’t preclude protection. “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.”
A judge shouldn’t be in the position of evaluating artistic merit, the court said, for fear of stifling new developments in art. “It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the work 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.”
“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.”
These concepts were later elaborated on in later cases, in which the Supreme Court specified that a work need show only “a modicum of creativity” in order to qualify for copyright protection.
Is It Just a Lamp? Or Is It a Sculpture That Just Happens Also to Be a Lamp?
Mazer v. Stein, 347 U.S. 201 (1954)
Rena Stein was part of a family business that produced electric lamps, and she created a series of china bases for the lamps, some in the forms of human figures.
These statuette-based lamps were popular enough that Stein’s designs were copied by several competitors. Stein had registered her designs with the Copyright Office and initiated several lawsuits alleging copyright infringement.
The defendants in the case argued that these lamps were useful objects and were thus not protected as works of expression.
At the Supreme Court, however, Justice Stanley F. Reed ruled that a work of expression that is part of a manufactured article can be eligible for copyright protection.
The result is that useful articles, like lamps, or clothing, or other devices and objects, can incorporate artistic works that are protectable under copyright law. In a more recent case, the Supreme Court ruled that designs on cheerleading uniforms were eligible for copyright protection even though they were incorporated into the design of useful articles.
These are just a few of the important court rulings that represent the changing understanding of copyright protection over the decades. And these cases set the stage for acceptance of works in new media of expression as technology has advanced, such as video games. Society and technology promise to advance together as new arts are brought into the copyright fold.
We don’t know what the statuette-lamps of the future will be. The increasing influence of artificial intelligence also promises to complicate the copyright landscape, given that our copyright law requires protected works to have human creators.
For 150 years, the Copyright Office has been offering advice and implementing policy as society and the results of creative endeavors change, and it looks forward to continue its work as new technologies and new creative forms pose new questions to be answered. So, help the Copyright Office celebrate its history and join it as it looks toward the future.
Interesting. I recommend presenting Historic Court Cases on some type of a regular basis.
Thank you for this very informative article, which I will reference in the future for educational purposes.