Primary Sources on Copyright (1450-1900)

www.copyrighthistory.org

Identifier: us_1903

Commentary on Bleistein v. Donaldson Lithographing Co. 1903

Oren Bracha

School of Law, University of Texas

Please cite as:
Bracha, O. (2008) ‘Commentary on Bleistein v. Donaldson Lithographing Co. (1903)', in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org

1. Full title

2. Abstract

3. Significance of the Case

4. Originality in Early American Copyright Law

5. Bleistein v. Donaldson in the Lower Courts

6. Bleistein v. Donaldson: the Supreme Court Decision and its Legacy

7. References

1. Full title

Bleistein v. Donaldson Lithographic Co. 188 U.S. 239 (1903)

2. Abstract

A seminal Supreme Court case about the requirement of originality. The 1903 decision was a culmination of a gradual process of development that took place in the nineteenth century. It rejected any substantial originality bar as a prerequisite for copyright protection, expressed the ideological themes underlying this approach, and paved the way for copyright protection to commercial and "low art" expression. The commentary describes the development of originality thought and doctrine in nineteenth century American copyright law. It places the Bleistein litigation and the Supreme Court decision in this context and discusses the case's importance and future legacy.

3. Significance of the Case

Bleistein v. Donaldson Lithographing Co.[1] and the opinion written by Supreme Court Justice Oliver Wendell Holmes Jr. (1841-1935) are considered one of the most important landmarks in the development of American copyright law. What started as a banal infringement dispute between two rival companies in the business of making advertisement posters became one of the most influential cases in the field and is still broadly cited and taught today. Bleistein's importance extended to three interlocking spheres of copyright law and discourse.

First and most concretely, the decision opened the door for the application of copyright to a variety of commercial forms of expression. For over half a century various commercial actors tried to gain business advantages by using copyright protection in commercial contexts - such as product labels, catalogs or advertisements - that had little to do with the notion of copyright as applicable to the product of authors, or even with the broader concept of copyright as the domain of artistic expression, traditionally conceived. These attempts achieved mixed results sometimes meeting the approval of courts and at others blocked by interpretations that resisted the expansion of copyright into this new realm. The Bleistein decision, while not explicitly rejecting any existing precedents, signified a firm approach by the Supreme Court that rejected any impediment to copyright protection in the commercial context and facilitated its extension to rapidly developing industries in the areas such as advertisement and applied arts.

Second, Bleistein entrenched a minimalist approach to the originality requirement in American copyright law. Originality of the work as a threshold requirement for copyright protection began to develop only in the 1830s. From the moment the concept appeared it attracted conflicting views and interpretations. Some courts tried to establish a robust originality requirement in line with the entanglement of modern copyright with the notion of individual original authorship. This was translated into a demand that the protected work would demonstrate either novelty and innovation or a minimal degree of aesthetic artistic merit. Other courts and commentators rejected the attempt to establish a substantial originality bar. While refusing to dispense with originality altogether, they crafted the requirement as creating a very minimal bar that avoided any inquiries about either novelty or merit. Toward the end of the century, the fact that the rhetorical importance of the originality requirement increased notwithstanding, the minimalist approach gradually won the day. The Bleistein opinion that focused mainly on the aesthetic merit aspect of originality marked the final triumph of this trend. The decision somewhat ambiguously construed originality either as merely the requirement that the creator was not a copier or as requiring such a minimal amount of "creativity" as to approach the point of vanishing. Bleistein became the influential and standard precedent for the proposition that originality establishes a very minimal bar for protection under American copyright law.

Third, the decision embodied the ideological and conceptual themes that informed the minimalist approach to originality in copyright law. The decline of support for a robust originality requirement and the general recoil of American courts from originality evaluations can be traced to several underlying ideological tendencies. One of those underlying themes is the skepticism characteristic of modern liberalism toward any governmental measures based on substantive evaluations of the merit or desirability of individual actions, outcomes, or preferences. Related to this aspiration of a neutral state is the view that judges should and can remain neutral by avoiding judicial substantive evaluations of individual actions, outcomes, or preferences. Finally, feeding the minimalist approach to originality was a market concept of value that viewed commercial demand in the market as the ultimate and universal measure of value and as the alternative to governmental or judicial discretion. Holmes' opinion in Bleistein skillfully wove together all of those themes and as a consequence became the manifesto of the minimalist American approach to originality.

4. Originality in Early American Copyright Law

Originality was a foreign concept to American copyright law till well into the nineteenth century. Despite the late eighteenth century rise of justifications of copyright in terms of original authorship and as a means for the promotion of literature or "science and the useful arts,"[2] actual copyright law had no trace of an originality requirement. Copyright, although bestowed on authors since the state statutes of the 1780s,[3] still had the form of the traditional publisher's economic privilege. Historically, both in England and the United States, censorship restrictions aside, a publisher could get protection for any text he acquired, whether or not it was novel or demonstrated aesthetic merit, and, indeed whether or not it could be traced to any individual author. The typical texts in which American publishers received privileges on occasion during colonial times were both dominantly practical and "authorless" as in the case of a colony's collection of statutes. This trend continued under the state and federal regimes. A substantial number of the works registered for copyright protection in the early years of the federal regime were practical, didactic or utilitarian works such as textbooks or practical books, many of which showed little novelty or creativity in the romantic sense.[4] This situation continued undisturbed for decades.

Only in the nineteenth century did litigating parties and commentators begin to develop the notion that the grounding of copyright in the protection of original authorship entailed a threshold requirement - a demand that a work eligible for protection would show a minimal degree of originality. Early legal treatments of this question did not always use the term "originality." As a technical matter, originality questions were often discussed under the rubric of copyrightable subject matter defined in the 1790 Act as "books, maps and charts"[5] and revised in later statutory amendments. Alternatively they were discussed in terms of the statutory and constitutional fundamentals of the field including the assumption that copyright was meant to govern the works of authors and to promote the progress of "science and useful arts."[6] As for substance, originality controversies appeared in two main guises. The one was a question about the degree, if any, of the novelty or innovation that a work had to exhibit in order to qualify for protection. The other involved the extent to which a work was subject to an evaluation of its aesthetic or creative merit as a precondition for protection.

On both fronts there appeared two conflicting lines of cases. Some early decisions were sympathetic to imposing meaningful originality constraints on copyright protection. On the novelty side, the most striking example is the 1850 Jollie v. Jaques[7] in which Justice Samuel Nelson (1792-1873), who a year later would create the non-obviousness doctrine in patent law[8], tried to introduce a similar requirement of innovation into copyright. Refusing to extend copyright protection to an adaptation and rearrangement of a German musical composition, Nelson observed that the arranger was not "the author of the melody or air but simply...by skill and labor, he has adapted it to a new use."[9] "The original air requires genius for it construction," he explained "but a mere mechanic in music, it is said, can make the adaptation."[10] Referring to the new category of "musical compositions" added by the 1831 statute,[11] he concluded that "[t]he musical composition contemplated by the statute must, doubtless be substantially new and original work; and not a copy of a piece already produced, with additions and variations, which a writer of music with experience and skill might readily make."[12]

Similarly there appeared several decisions that read substantial content into the aesthetic merit aspect of originality. The earliest of this line of cases was the 1829 Clayton v. Stone where Justice Smith Thompson (1768-1843) denied protection to a daily "price current," explaining that "the price-current cannot be considered a book within the sense and meaning of the act of congress."[13] According to Thompson certain categories of subject matter simply did not possess the inherent qualities of the kind of work to which the statutory regime under the constitutional clause was meant to apply. "The act in question," he wrote, "was passed in execution of the power here given, and the object, therefore, was the promotion of science; and it would certainly be a pretty extraordinary view of the sciences to consider a daily or weekly publication of the state of the market as falling within any class of them."[14] His conclusion was that the copyright act "was not intended for the encouragement of mere industry, unconnected with learning and the sciences" and that works such as the price current "must seek patronage and protection from its utility to the public and not as a work of science."[15] Throughout the century other decisions treated with skepticism and denied attempt to extend copyright protection to various commercial works thin in creative expression such as labels or sales catalogs.[16]

In some other cases judges were willing to take an even more aggressive approach in evaluating the artistic merit of specific forms of expression. In the 1867 Martinetti v. Maguire, for example, the court described the play at issue as follows:

"a mere spectacle - in the language of the craft a spectacular piece. The dialogue is very scant and meaningless, and appears to be a mere accessory to the action of the piece - a sort of verbal machinery tacked on to a succession of ballet and tableaux. The principal part and attraction of the spectacle seems to be the exhibition of women in novel dress or no dress, and in attractive attitudes or action. The closing scene is called Paradise, and as witness Hamilton expresses it, consists mainly ‘of women lying about loose' - a sort of Mohammedan paradise, I suppose, with imitation grottos and unmaidenly houris."[17]

"To call such a spectacle a ‘dramatic composition'," the opinion concluded, "is an abuse of language, and an insult to the genius of the English drama. A menagerie of wild beasts, or an exhibition of model artistes might as justly be called a dramatic composition. Like those, this is a spectacle, and although it may be an attractive or gorgeous one, it is nothing more."[18] Unsurprisingly, the court denied copyright protection to the spectacle that "neither ‘promotes the progress of science or useful arts."[19]

The aggressive approach to originality was not uniform. From the first days of originality as a legal requirement a very different line of cases appeared. Justice Joseph Story (1779-1845) wrote the early landmark decisions in this vein. In the 1839 Gray v. Russell[20] and the 1845 Emerson v. Davies[21] Story conceded the existence of a novelty requirement but construed it in minimalist terms. "The

question is not, whether the materials which are used are entirely new and have never been used before," he wrote, "[t]he true question is, whether the same plan, arrangement and combination of materials have been used before."[22] Story accompanied the rule with long prose that denied the possibility of radical novelty and acknowledged the cumulative character of the creative process:

"In truth, in literature, in science and in art, there are, and can be, few, if any, things, which, in an abstract sense, are strictly new and original throughout. Every book in literature, science and art, borrows, and must necessarily borrow, and use much which was well known and used before. No man creates a new language for himself, at least if he be a wise man, in writing a book. He contents himself with the use of language already known and used and understood by others. No man writes exclusively from his own thoughts, unaided and uninstructed by the thoughts of others. The thoughts of every man are, more or less, a combination of what other men have thought and expressed, although they may be modified, exalted, or improved by his own genius or reflection. If no book could be the subject of copy-right which was not new and original in the elements of which it is composed, there could be no ground for any copy-right in modern times"[23]

At the same time, Story adamantly rejected any attempt to impose an originality bar that would scrutinize the aesthetic merit of the relevant work. Whether plaintiff's work "be better or worse," he explained "is not a material inquiry in this case. If worse, his work will not be used by the community at large; if better, it is very likely to be so used. But either way, he is entitled to his copy-right, ‘valere quantum valere potest.'"[24]

Toward the end of the century two somewhat contradictory developments had occurred. On the one hand, the originality requirement was elevated to an unprecedented rhetorical and formal status. Courts and commentators came to treat originality as a constitutive element of copyright law. Several seminal decisions such as the Trademark Cases[25] and Burrow-Giles Lithographic Co. v. Sarony[26] established originality as a fundamental requirement placed at the core of American copyright by the very constitutional mandate to legislate in this field. Thus, for example, Justice Miller's discussion of the constitutional clause in the Trademark Cases concluded that "while the word writings may be liberally construed" it covered only works "such as are original, and are founded in the creative powers of the mind."[27] On the other hand, Story's minimalist approach to originality was becoming dominant and any actual threshold of novelty or merit was under constant erosion. As Eaton Drone observed, referring to originality, in his 1879 treatise "a more liberal doctrine now prevails."[28] Ironically the more rhetorical and formal importance originality attained, the less practical bite was given to it as a doctrinal prerequisite for copyright protection. Bleistein v. Donaldson arrived at the Supreme Court against this background and it was about to become the culmination of this process in which the modern structure of originality in American copyright law was forged.

5. Bleistein v. Donaldson in the Lower Courts

Bleistein v. Donaldson Lithographing Co. started as a rather obscure copyright infringement case in the U.S. District Court of Kentucky. When the Great Wallace Show circus[29] ran out of advertisement posters made for it by the Courier Lithographing Company it ordered additional posters from a competitor - the Donaldson Lithographing Company. When Courier discovered that three of its designs were closely copied, probably motivated by its custom of using existing designs in other advertisement projects,[30] it initiated legal action in which one of its partners - George Bleistein - was named as a plaintiff. The three designs were ordinary advertisement images depicting various circus scenes.[31] Much of the litigation in the district court turned on technical issues such as whether the plaintiff satisfied all the formal perquisites for copyright protection and whether the agreement between Wallace and Courier transferred or licensed the latter's reproduction rights under copyright law.

At a late point of the argument, however, the defense moved for a direct verdict based not just on the previously discussed issues, but also on the premise that copyright was unavailable for mere advertising. Judge Walter Evans agreed. He ruled in favor of the defendant. The grounds for the ruling remained somewhat obscure, although obviously motivated by the specter of what Evans called "the recovery of the enormous penalties demanded for the printing of the cheap show bills."[32] On the statutory level the opinion doubted that the posters at issue could satisfy the statutory definition of an "engraving, cut, print" as limited to "pictorial illustrations or works connected with fine arts."[33] Two out of the three posters the court found "merely frivolous and to some extent immoral" and therefore rejected the possibility that "it was in any wise intended by congress that such a picture should be the subject of the exclusive advantages given by the privilege of copyright."[34] At the end Evans found that "the things copyrighted in this case were by no means such as either the constitution or the legislation of congress intended to protect."[35] "The court," he concluded, "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."[36]

The case was appealed to the Federal Court of Appeals for the Sixth Circuit.[37] The short Court of Appeals opinion that affirmed the trial court's decision concentrated on originality and shifted the focus to the constitutional level. It framed the issue by asking whether the fact that a print was a subject matter recognized by the statute was sufficient to protect a poster whose "arrangement, pose, color, grouping, or expression" failed to be "new or original" and that was devoid of "any merit or value."[38] The court answered with a resounding ‘no' relying on the constitutional mandate of the promotion of progress:

"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"[39]

Since the poster at hand was devoid of "anything useful or meritorious" and of "original artistic qualities" the court found it failed to satisfy the threshold and denied protection.[40] Although the Court of Appeals' decision espoused a robust conception of originality that was falling out of fashion, it was well grounded in existing precedents. The court cited to the Trademark Cases that firmly established a constitutional limitation restricting copyright protection to works that "are original, and are founded in the creative powers of the mind."[41] It also relied on a host of cases that denied protection to commercial subject matter, the chief of which was Higgins v. Keuffel decided by the Supreme Court a few years earlier.[42] Finally the court quoted from Burrow-Giles where the Supreme Court extended copyright protection to a Napoleon Sarony photograph of Oscar Wilde only because it found that Sarony made a substantial creative contribution that embodied "his own original mental conception."[43] The court noted Justice Miller's observation in that case that due to the lack of an examination process in the copyright system it is "much more important that when the supposed author sues for a violation of his copyright, the existence of those facts of originality, of intellectual production, of thought, and conception on the part of the author should be proved, than in the case of a patent right."[44]

It was the appeal court's focus on originality and its insistence on a meaningful merit requirement that turned Bleistein into an important case. Circus posters constituted at the time a substantial part of the emerging advertisement industry's business.[45] If the circus posters could not be protected, most of the industry's output as well as much other commercial expression would be excluded from copyright protection. If the case was important because of its economic implications, it was even more so due to its entanglement with the question of originality that lay at the ideological core of copyright discourse. The court of appeals adopted the traditional approach that took originality seriously and was willing to engage in substantive evaluations of the quality and value of works. Combined with the recent trend of construing originality as a fundamental and constitutional element of the field, this approach would have created a substantial barrier to copyrightability, in a time when powerful material and ideological forces were pulling in the opposite direction.

6. Bleistein v. Donaldson: the Supreme Court Decision and its Legacy

Faced head on with the question of originality in copyright law, the Supreme Court was divided. Justices Harlan and McKenna sided with the stricter view of originality. Their dissenting opinion, written by Harlan, consisted mainly of an extensive quotation from the decision of the court of appeals accompanied by the conclusion that "[t]he 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."[46]

Writing the majority opinion that upheld the validity of the posters' copyright fell to Justice Holmes. Holmes who was very recently nominated to the court was an art fan.[47] He was also the veteran of a recent disappointing experience with the copyright system.[48] Holmes rejected all originality objections to the copyrightability of the posters, whether statutory or constitutional. One part of his opinion was in line with recent precedents that construed originality as setting some aesthetic merit bar. The posters, Holmes explained, "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" and "[t]he amount of training required for humbler efforts than those before us."[49] In other words, the posters, just like Napoleon Sarony's photograph in the Burrow Giles[50] case demonstrated ample creativity and required skill.

Holmes, however, did not stop here as he might have. He went on to write the manifesto of the minimalist approach to originality in American copyright law. First, he made clear that advertisements and commercial art could not be denied protection 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," he wrote, "and none the less a subject of copyright that it is used for an advertisement."[51]

Second, Holmes made the case against any attempt of enforcing a meaningful aesthetic merit originality requirement or subjecting copyright protection to substantive evaluations of the work. His arguments eloquently stated the various ideological commitments informing the minimalist approach to originality. The major theme was the liberal vision of the neutral state-an impartial polity that functions according to general and universal rules and refrains from making choices among competing substantive values and preferences.[52] Woven with this understanding of the state was a concern about judicial capacity and the proper role of judges. "It would be a dangerous undertaking for persons trained only to the law," Holmes explained, "to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits."[53] If the liberal state was expected to refrain from substantive evaluations of value and remain neutral, this was doubly true in regard to its judges. The call for state and judicial neutrality was made in terms that, characteristic of Holmes, made a strange mix of populism and elitism:

"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."

If the state in general and judges in particular were supposed to refrain from any evaluations of merit and substantive value, what other mechanism would ensure that copyright protection serve "Progress"? Holmes's answer was the market. This echoed both a general transition in nineteenth century American law toward a market concept of value that reduced value to and equated it with commercial demand[54] and the reflection of this attitude within copyright law in the early Story decisions.[55] One court aptly described this in 1894 as the ‘the box-office value' approach and declared: "with reference to matters like this at bar, touching which there are no rules except in the unmeasured characteristics of humanity, their reception by the public may be the only test on the question of insignificance or worthlessness under the copyright statutes."[56] Holmes expressed all of this with a syllogism that became a favorite of courts faced with originality objections: if defendant chose to copy it, the work must have value, or in Holmes's words: "that these pictures had their worth and their success is sufficiently shown by the desire to reproduce them without regard to the plaintiffs' rights."[57]

Holmes, apparently well pleased with himself, summed up the case as follows: "I fired off a decision upholding the cause of low art and deciding that a poster for circus representing décolletés and fat legged ballet girls could be copyrighted. Harlan, that stout old Kentuckian, not exactly an esthete, dissented for high art."[58] How did this decision "upholding the cause of law and art" fit in the broader pattern of American copyright thought about originality? The dominant aspect of Bleistein was, of course, entrenching the minimalist approach to originality. The decision was a culmination of a trend that gathered force during the late nineteenth century of lowering the bar of any originality prerequisite for copyright protection almost to the point of disappearance. Holmes's opinion provided an eloquent declaration of the ideological concerns underlying this trend and became the standard precedent for the minimalist approach. Although the case itself dealt with the aesthetic merit aspect of originality it came to be seen as representing a more general approach that applied to novelty as well.

Yet Bleistein reflected also the other aspect of the modern approach to originality - the insistence on originality and human creativity as a fundamental of the field. This was apparent in Holmes's discussion of the unique quality of creative works:

"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."

The expression of personality formula was an ambiguous legal concept but an effective rhetorical device. It appropriated the image of the original author whose personality or spirit leaves its unique mark on the world, a mark that is always traceable to the individual who created it. At the same time Holmes insisted that this unique mark of personality existed even in "a modest grade of art." Similarly the opinion that established the copyrightability of purely commercial designs and dismissed the relevance of aesthetic merit to copyright was replete with references to the great masters. The opinion, like general copyright discourse, embraced the image of the great original author while purging almost all practical expression of that notion in the law. This duality was the real legacy of Bleistein. Although some subsequent courts relied on the case to support a "sweat of the brow" theory that explicitly rejected originality altogether and extended protection to any undertaking involving effort and expenditure,[59] originality never completely died in American copyright thought. It survived as a fundamental ideological component of the field and at times would rise from the ashes to exert some practical influence. This became apparent nearly ninety years after Bleistein in the seminal Supreme Court decision in Feist Publications, Inc. v. Rural Tel. Serv. Co.[60] that revolved around the question of the creativity and original contribution of... a telephone directory.

7. References

Governmental papers and legislation

Statutes

Copyright Act 1790, 1 Stat. 124 (1790)

Cases

American

Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1883)

Clayton v. Stone, 5 F. Cas. 999 (S.D.N.Y. 1829)

Emerson v. Davies, 8 F. Cas. 615 (C.C.D. Mass. 1845)

Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991)

Gray v. Russell, 10 F. Cas. 1035 (C.C.D. Mass. 1839)

Higgins v. Keuffel, 140 U.S. 431 (1891)

Jollie v. Jacques, 13 F. Cas. 910 (S.D.N.Y. 1850)

Martinetti v. Maguire, 16 F. Cas. 920 (C.C.Cal. 1867)

Trademark Cases, 100 U.S. 82 (1879)

Books and Articles

Bracha, O., "The Commodification of Patents 1600-1836: How Patents Became Rights and Why We Should Care." Loy. L. A. L. Rev. 38 (2004): 177-244

Ginsburg, J., "No Sweat? Copyright and Other Protection for Works of Information After Feist v. Rural Telephone." Colum. L. Rev. 92 (1992): 338-388

Littrell, R., "Toward a Stricter Originality Standard for Copyright Law." B.C.L.Rev. 43 (2001): 193-226

Zimmerman, D. L., "The Story of Bleistein v. Donaldson Lithographing Company: Originality as a Vehicle for Copyright Inclusivity", in R. C. Dreyfuss and J. Ginsburg (eds), Intellectual Property Stories (New York: Foundation Press, 2006)

[1] 188 U.S. 239 (1903).

[2] See U.S. Const., art I, §8, cl. 8. See also us_1789.

[3] See the commentary for us_1783a.

[4] James Gilreath, "American Literature, Public Policy, and the Copyright Laws before 1800" in Federal Copyright Records, 1790-1800 (Washington, D.C.: U.S. Government Printing Office, 1987), xxii; Joseph F. Felcone, "New Jersey Copyright Registrations, 1791-1845," Proceedings of the American Antiquarian Society 104 (2004): 51, 54-5.

[5] 1 Stat. 124 §1 (1790).

[6] See U.S. Const., art I, §8, cl. 8.

[7] 13 F. Cas. 910 (S.D.N.Y. 1850).

[8] Hotchkiss v. Greenwood, 52 U.S. 248 (1851).

[9] 13 F. Cas. 913.

[10] Ibid.

[11] 4 Stat. 436 §1 (1831).

[12] 13 F. Cas. 914-5.

[13] Clayton v. Stone, 5 F. Cas. 999, 1000 (S.D.N.Y. 1829).

[14] Ibid., 1001.

[15] Ibid.

[16] See e.g. Scoville v. Toland, 21 F. Cas. 863 (C.C.D.Oh. 1848); Higgins v. Keuffel, 140 U.S. 428, 431 (1891); J.L. Mott Iron Works v. Clow, 82 F. 316, 319 (7th Cir. 1897).

[17] Martinetti v. Maguire, 16 F. Cas. 920, 922 (C.C.Cal. 1867).

[18] Ibid.

[19] Ibid.

[20] 10 F. Cas. 1035 (C.C.D. Mass. 1839).

[21] 8 F. Cas. 615 (C.C.D.Mass. 1845).

[22] 8 F. Cas. 618-9. See also Chief Justice Taney's opinion in: Reed v. Carusi, 20 F. Cas. 431 (C.C.D.Md. 1845).

[23] 8 F. Cas. 619.

[24] 8 F. Cas. 620-21.

[25] 100 U.S. 82 (1879).

[26] 111 U.S. 53 (1883).

[27] 100 U.S. 94.

[28] Eaton S. Drone, A Treatise on the Law of Property in Intellectual Productions in Great Britain and the United States (Boston: Little, Brown, 1879), 210.

[29] The circus was founded in 1884 by Ben Wallace and a few partners under the name "Wallace & Co.'s Great World Menagerie, International Circus, Museum, Alliance of Novelties, and Mardi-Gras Street Carnival." The name was later changed several times. Diane Leenheer Zimmerman, "The Story of Bleistein v. Donaldson Lithographing Company: Originality as a Vehicle for Copyright Inclusively," in Intellectual Property Stories, ed. Rochelle Cooper Dreyfuss and Jane Ginsburg (New York: Foundation Press, 2006), 79.

[30] Ibid., 84.

[31] See us_1902b.

[32] Bleistein v. Donaldson Lithographing Co., 98 F. 608, 611 (C.C.D.Ky. 1899).

[33] Ibid., 610-1.

[34] Ibid., 611.

[35] Ibid., 612-3.

[36] Ibid., 613.

[37] Courier Lithographing Co. v. Donaldson Lithographing Co., 104 F. 993 (6th Cir. 1900).

[38] Ibid., 994.

[39] Ibid., 996.

[40] Ibid., 996-7.

[41] 100 U.S. 94.

[42] 140 U.S. 431 (1891).

[43] 111 U.S. 61.

[44] Ibid., 59-60.

[45] Zimmerman, "Bleistein v. Donaldson," 79-80; John Culhane, The American Circus: An Illustrated History (New York: Holt, 1990), 370.

[46] 188 U.S. 253.

[47] Zimmerman, "Bleistein v. Donaldson," 94.

[48] Several years earlier Holmes acting as the executor of his father's estate tried to enforce copyright to the elder Homes' book The Autocrat of the Breakfast Table. The Supreme Court found that the copyright was forfeited because the individual essays composing the work were previously published in The Atlantic without the statutorily required notice. Holmes v. Hurst, 174 U.S. 82 (1899).

[49] 188 U.S. 250.

[50] 111 U.S. 61.

[51] 188 U.S. 251.

[52] Oren Bracha, "The Commodification of Patents 1600-1836: How Patents Became Rights and Why We Should Care," Loy. L. A. L. Rev. 38 (2004): 177, 236-7.

[53] 188 U.S. 251.

[54] Bracha, "Commodification of Patents," 235; Morton J. Horwitz, The Transformation of American Law, 1780-1860 (Cambridge, Mass: Harvard University Press, 1977), 160-88.

[55] See Gray v. Russell, 10 F. Cas. 1035; Emerson v. Davies, 8 F. Cas. 615.

[56] Henderson v. Tompkins, 60 F. 758, 763-4 (C.C.D.Mass. 1894).

[57] 188 U.S. 252.

[58] Quoted in Sheldon M. Novick, Honorable Justice: The Life of Oliver Wendell Holmes (Boston: Little, Brown, 1989), 254.

[59] See Jeweler's Circular Pub. Co. v. Keystone Pub. Co., 281 F. 83 (2nd Cir. 1922).

[60] 499 U.S. 340 (1991)