1903 Bleistein Abridged

1903 Bleistein Abridged - Bleistein v. Donaldson...

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1 Bleistein v. Donaldson Lithographing Co. 188 U.S. 239 (1903) 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. It is an action brought by the plaintiffs in error to recover the penalties prescribed for infringements of copyrights. 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 copy- right law, and this ruling was sustained by the Circuit Court of Appeals. 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. It fairly might be found also that the copyrights were taken out in the proper names. 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 con- tract 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 me- chanical 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 immedi- ate 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 de-
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This note was uploaded on 01/13/2012 for the course LAW 33800A taught by Professor Williamfisher during the Fall '10 term at Harvard.

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1903 Bleistein Abridged - Bleistein v. Donaldson...

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