Circus Posters and the History of Copyrighting Adverts

Argument for Plaintiffs in Error

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. § 4952, allowing a copyright to the "author, designer, or proprietor ... of any engraving, cut, print... . or chromo" as affected by the act of 1874, chap. 301, § 3, 18 Stat. 78, 79. And on complying with all the statutory requirements the proprietors are entitled to the protection of the copyright laws.

The case is stated in the opinion of the court.

Mr. Ansley Wilcox and Mr. Arthur von Briesen for plaintiffs in error:

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 able 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 questions), 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 I 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 by 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. YOJ. CLXXXVIII-16.

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 the 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. Scltile, 12 Fed. Rep. 97, 101; Sehurmaker v. Schwencke, 25 Fed. Rep. 466 ; 1amb v. Grand Ra )ids 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; Callaghaan v. Myers, 128 U. S. 617; Scribner v. Allen Co., 49 Fed. Rep. 854; Werckmeister 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 MHr. 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 -Mere. Agency v: Jewelers Pub. Co., 84 Hun (N. Y. Sup. Ct.), 12, 16; Callag7ian 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 NI. 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 Oh. Div. 48.