Under Rev.Stat., §§ 4952, 4970, as they were before the Act of
March 4, 1909, every reproduction of a copyrighted work must bear
the statutory notice. One notice is not sufficient for several
reproductions on the same sheet, even though the several
reproductions make one harmonious whole.
Although a painting may be patentable as a design, if the owner
elects to copyright, he must protect his copyright by repeating the
statutory notice on every reproduction thereof.
191 F. 35 affirmed.
The facts, which involve the construction of the copyright law
as to the statutory notice of copyright upon reproductions of
paintings, are stated in the opinion.
Page 235 U. S. 35
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is a bill to restrain an alleged infringement of a
copyright under the law as it was before the Act of March 4, 1909,
viz., Rev.Stat. §§ 4952, 4970; Act of June 18, 1874, c.
301, 18 Stat. 78. The work alleged to be infringed was described as
a painting representing
Page 235 U. S. 36
sprigs of holly, mistletoe, and spruce arranged in the form of
an open cluster having substantially the outline of a square. It
was exhibited in court, was a water color painting in fact, and no
doubt might have been framed and used for the same purposes of
pleasure as other more considerable works of art. But it was so
designed that it could be reproduced in repetitions that fitted and
continued one another side by side and above and below, and was
reproduced in that way with twelve repetitions upon strips of paper
having much the look of wall paper, and intended to be used in
covering or wrapping boxes during the holiday season. Each strip
bore a single notice of copyright. The circuit court, assuming that
infringement was established, was of opinion that the work was a
painting, capable of copyright, and also a design, patentable as
such, but held that, as the appellant had elected to copyright, the
notice must be repeated on each of the twelve squares, although
they did not present themselves as separate squares on the
continuous strip. 182 F. 150. The circuit court of appeals,
reserving its opinion as to whether the sphere of copyright and
patent for design overlapped, agreed with the circuit court that,
if this was a painting, every reproduction of it must bear the
statutory notice, and affirmed the dismissal of the bill. 191 F.
35.
It seems to us that the case is disposed of by the statement.
The thing protected, and the only thing, was the painting, the
whole of which was reproduced in a single square. Every
reproduction of a copyrighted work must bear the statutory notice.
American Tobacco Co. v. Werckmeister, 207 U.
S. 284,
207 U. S. 294.
It is suggested that it is overtechnical to require a repetition of
the notice upon every square in a single sheet that makes a
harmonious whole. This argument tacitly assumes that we can look to
such larger unity as the sheet possesses. But that unity is only
the unity of a design that is not patented.
Page 235 U. S. 37
The protected object does not gain more extensive privileges by
being repeated several times upon one sheet of paper, as anyone
would recognize if it were the Gioconda. The appellant is claiming
the same rights as if this work were one of the masterpieces of the
world, and he must take them with the same limitations that would
apply to a portrait, a Holy Family, or a scene of war.
Decree affirmed.