Statutory copyright is not to be confounded with the exclusive
property of the author in his manuscript at common law.
In enacting the copyright statute, Congress did not sanction an
existing right, but created a new one dependent on compliance with
the statute. Under existing copyright law of the United States,
there is no provision for filing amendments to the first
application, and, the matter being wholly subject to statutory
regulation, copyright on a second application cannot be sustained.
The statutory limit of copyright cannot be extended by new
157 F. 186 affirmed.
The facts are stated in the opinion.
Page 215 U. S. 186
MR. JUSTICE DAY delivered the opinion of the Court.
The plaintiff in error, also plaintiff below, brought an action
in the Circuit Court of the United States for the Northern District
of Illinois to recover damages under § 4965 of the Revised Statutes
of the United States because of the publication by the defendant of
more than one thousand copies of a newspaper containing a picture
of a painting, copyrighted by the plaintiff. The plaintiff alleged
that he had in all respects complied with the Revised Statutes of
the United States by causing to be deposited, on or about the fifth
day of November, 1901, a photograph and a description of the
painting, for the purpose of having it copyrighted, which deposit
Page 215 U. S. 187
publication of the same in the United States or in any foreign
country. By reason of the premises and the compliance with the
statutes of the United States, the plaintiff claimed to be entitled
to a copyright for the painting for the term of twenty-eight years
from and after the recording of the title thereof by the Librarian
of Congress on November 7, 1901.
There were other allegations, and proofs tending to show a
publication of a copy of the photograph in the newspaper of the
defendant company. In the course of the trial, it appeared that the
plaintiff had deposited a description and photograph of the same
painting with the Librarian of Congress on October 7, 1901, for the
purpose of securing a copyright. The trial court charged the jury,
as a matter of law, that the plaintiff had brought his suit upon
the wrong copyright, and therefore directed a verdict in favor of
the defendant. Upon writ of error, the Circuit Court of Appeals for
the Seventh Circuit affirmed this judgment. 157 F. 186. The case is
now here for review.
The photographs filed upon the two applications for a copyright
are identical. Nor is any substantial change in the painting shown;
the copyrights undertaken to be secured were therefore upon the
same painting. The difference is that, in the copyright sued upon,
that of November 7, 1901, the title and description are,
"The Guardian Angel. Portrait of a young girl sitting, hair
arranged smoothly over the ears, hair parted in the middle. Her
guardian angel stands behind her, one hand resting on her left
shoulder, the other on her right arm."
The description accompanying the application for the copyright
of October 7, 1901, is, "Maidenhood. A Young Girl seated beside a
window; an Angel stands behind her."
The question in this case is: is the second attempt to copyright
valid and effectual, or was the court right in charging in
substance that it was void and of no effect?
We have had such recent and frequent occasions to consider the
nature and extent of the copyright laws of the United States, as
the same were before the recent revision, which took
Page 215 U. S. 188
effect July 1, 1909, that it is unnecessary to enter into any
extended discussion of the subject now. Bobbs-Merrill Co. v.
Straus, 210 U. S. 339
White-Smith Music Pub. Co. v. Apollo Co., 209 U. S.
; American Tobacco Co. v. Werckmeister,
207 U. S. 284
Bong v. Campbell Art Co., 214 U.
. In these cases the previous cases in this Court
were cited and reviewed.
As a result of the decisions of this Court, certain general
propositions may be affirmed. Statutory copyright is not be
confounded with the common law right. At common law, the exclusive
right to copy existed in the author until he permitted a general
publication. Thus, when a book was published in print, the owner's
common law right was lost. At common law, an author had a property
in his manuscript, and might have an action against anyone who
undertook to publish it without authority. The statute created a
new property right, giving to the author, after publication, the
exclusive right to multiply copies for a limited period. This
statutory right is obtained in a certain way and by the performance
of certain acts which the statute points out. That is, the author,
having complied with the statute, and given up his common law right
of exclusive duplication prior to general publication, obtained by
the method pointed out in the statute an exclusive right to
multiply copies and publish the same for the term of years named in
the statute. Congress did not sanction an existing right; it
created a new one. Wheaton v.
8 Pet. 591, 33 U. S. 661
Those violating the statutory rights of the author or proprietor
are subject to certain penalties, and to the payment of certain
damages, as is provided in the statute.
Section 4952 of the Revised Statutes as amended in 1891 (3
Comp.Stat., 3406), provides that the proprietor of any painting,
upon compliance with the provisions of the copyright act, has the
sole right of publishing, copying, and vending the same. By § 4953,
we find that this right exists for the period of twenty-eight years
from the recording of the title of the copyright, with a right to
certain extensions after the
Page 215 U. S. 189
expiration of the twenty-eight years, as provided in § 4954. In
§ 4956, we find that a copyright is secured by depositing, on or
before the day of publication, in this or any foreign country, in
case of a painting, a photograph of the painting, accompanied by a
description thereof. There is absolutely no provision in the
statutes for a second filing of the photograph or description, nor
is there any provision as to filing any amendments thereto; and, as
the matter is wholly the subject of statutory regulation, we are at
a loss to preceive by what authority any second application for the
same painting, with a view to securing a copyright thereon, can be
sustained. If it could be, we see no reason why the proprietor
might not thus extend the limit of copyright fixed in the statute
by an indefinite number of new applications and filings with the
The argument of the plaintiff in error is that, inasmuch as the
statutory copyright is not complete before a publication of the
subject matter thereof, and no publication being shown prior to the
second application, it was within his power, while his rights were
thus inchoate, to make the second application for the copyright --
that of November 7, 1901. Assuming that these premises are correct,
and that publication was requisite to complete the right to be
secured by the statute, it by no means follows that a second
copyright is warranted by the statute. On the other hand, as we
have already stated, the statute is barren of any provisions to
that end. There is no provision, as there is in the patent law, for
an amended application, and, under the patent law, it has been held
that there is no authority for double patenting. Miller v.
Eagle Manufacturing Company, 151 U. S. 186
This is so because the first patent exhausts the statutory right
secured by the act of Congress.
In this case, the plaintiff had complied with all the terms of
the statute on October 7, 1901. He then attempts to take out a new
copyright under the same statute on November 5, 1901, for the same
painting, by depositing a new description of the painting and the
same photograph. It is true there is a change
Page 215 U. S. 190
in the title of the painting, and a slight change in the
description, but these matters are immaterial, and cannot enlarge
the right of the plaintiff. We think the same principle, in this
aspect, controls as in the case of a patent. The plaintiff had
already exhausted his statutory right, and the second attempt
availed him nothing.
These views render it unnecessary to consider whether the record
shows a publication of the painting prior to November 5, 1901. For
the reasons stated, we are of opinion that the circuit court of
appeals was right in holding that the attempted duplication of the
copyright was void and of no effect.