On petition for writ of certiorari to the United States Court of
Appeals for the Ninth Circuit. The petition for a writ of
certiorari is denied.
Mr. Justice DOUGLAS, dissenting. Petitioner infringed
respondent's copyright and a verdict was rendered against her.
Petitioner argued that because the congressional power over
copyrights and patents stemmed from the same constitutional
provision, they both should be governed by the same standard. Thus,
petitioner contended that the copyright was invalid because the
book in question lacked 'novelty,' but the Court of Appeals
rejected this argument saying that the appropriate standard for a
copyright was 'originality' and that the respondent's book met this
criteria. [Footnote 1
standard of copyrightability presents an important question
concerning the scope of Congress' enumerated powers. It has not
heretofore been decided by this Court2 and, arguably, it was
wrongly decided by the courts below.
Page 404 U.S.
In 1961, respondent published and copyrighted a book entitled
Face Lifting by Exercise. This book explained how isometric facial
exercises could be used to preserve the appearance of youth. It was
based on respondent's study of anatomy, physical therapy and
magazine and newspaper articles, but there is nothing in the record
to indicate that the ideas it contained constituted anything more
than 'selecting the last piece to put into the last opening in a
jig-saw puzzle.' Sinclair & Carroll Co. v. Interchemical Corp.,
, 335, 1147. It was merely a repetition of the existing
state of the art. During 1962, petitioner was employed in
respondent's beauty salon and we may assume that it was during this
time that petitioner first read respondent's book and learned of
respondent's facial exercises. In 1965, petitioner published The
Joyce Lee Method of Scientific Facial Exercises. It contained a
system of facial exercises strikingly similar to respondent's and,
even though it was unquestionably expressed in petitioner's own
language, we may safely conclude that it was based on respondent's
book. An action for copyright infringement was made out, therefore,
if the respondent's copyright was valid and if it embraced the
ideas in her book.
The constitutional power over copyrights is found in the same
clause that governs the issuance of patents: 'The Congress shall
have Power ... 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.' Art.
I, 8, cl. 8. Many of the same interests underlie both grants of
power. The Federalist No. 43. While this Court has not had many
occasions to consider the constitutional parameters of copyright
power, we have indicated that the introductory clause, 'To promote
the Progress of Science and useful Arts,' acts as a limit on
Page 404 U.S.
power to grant monopolies through patents. In Graham v. John
Deere Co., 383 U.S.
, 5-6, 687-688, we said:
'The clause is both a grant of power
and a limitation. This qualified authority, unlike the power often
exercised in the Sixteenth and Seventeenth Centuries by the English
Crown, is limited to the promotion of advances in the 'useful
arts.' It was written against the backdrop of the practices
eventually curtailed by the Statute of Monopolies of the Crown in
granting monopolies to court favorites in goods or businesses which
had long before been enjoyed by the public. The Congress in the
exercise of the patent power may not overreach the restraints
imposed by the stated constitutional purpose. Nor may it enlarge
the patent monopoly without regard to the innovation, advancement
or social benefit gained thereby. Moreover, Congress may not
authorize the issuance of patents whose effects are to remove
existent knowledge from the public domain, or to restrict free
access to materials already available. Innovation, advancement, and
things which add to the sum of the useful knowledge are inherent
requisites in a patent system which by constitutional command must
'promote the Progress of ... the useful Arts.' This is the standard
expressed in the Constitution and it may not be ignored. And it is
in this light that patent 'validity requires reference to a
standard written into the Constitution." (Citations omitted.)
In Mazer v. Stein, 347 U.S.
, 219, 471, we indicated that the copyright power is also
governed by this same introductory phrase: 'The economic philosophy
behind the clause empowering Congress to grant patents and
copyrights is the conviction that encouragement of individual
effort by personal gain is the best way to advance public welfare
through the talents of authors and
Page 404 U.S.
inventors in 'Science and useful Arts." See also Bleistein v.
Donaldson Lithographing Co., 188 U.S.
, 249. In other contexts, we have also shown that patents
and copyrights stand on the same footing. E. g., United States v.
Paramount Pictures, 334 U.S.
, 158, 929; Sheldon v. Metro-Goldwyn Pictures Corp.,
, 401, 684. No reason can be offered why we should depart
from the plain import of this grant of congressional power and
apply more lenient constitutional standards to copyrights than to
patents. [Footnote 3
for reasons which will later be considered, a copyright may have to
meet greater constitutional standards for validity than a patent.
The limitations set forth in Graham v. John Deere Co., therefore,
apply with at least equal force to copyrights. Cf. Burrow-Giles
Lithographic Co. v. Sarony, 111 U.S.
, 59, 281.
An author's 'Writing' or an inventor's 'Discovery' can, in the
constitutional sense, only extend to that which is his own. It may
not be broadened to include matters within the public domain. The
congressional power to grant monopolies for 'Writings and
Discoveries' is likewise limited to that which accomplishes the
stated purpose of promoting 'the Progress of Science and useful
Arts.' No distinction is made in the constitutional language
between copyrights and patents and I would not create one by
judicial gloss. Where, as here, a writer has published a book which
compiles and applies infor-
Page 404 U.S.
mation available to all men, should that writer have a monopoly
on the ideas in that book through a copyright issued merely because
the words used were the author's own?
Patents which did not serve the broad goals of furthering
scientific advancement and bettering the lot of mankind (Great
Atlantic & Pacific Tea Co. v. Supermarket, 340 U.S. 147
131, concurring opinion) have been held invalid because they lacked
utility, did not more than combine existing inventions, were
obvious to someone schooled in the art, or sought to monopolize
ideas within the public domain. Graham v. John Deere Co., supra;
Great Atlantic & Pacific Tea Co. v. Supermarket Equipment
Corp., supra; Hotchkiss v. Greenwood, 11 How. 248. It is not
obvious that respondent's system of facial exercises was patentable
under these standards. It arguably amounted to nothing more than an
application of existing knowledge based upon sources available to
all men. We have repeatedly held that patents so devoid of novelty
were invalid. To create a monopoly under the copyright power which
would not be available under the patent power would be to betray
the common birthright of all men at the alter of hollow
The application of the constitutional standard of 'novelty' will
not 'invalidate the copyright in the substantial portion of all
literary works, where novelty as distinguished from originality is
a very rare commodity,' as one commentator has suggested. [Footnote 4
] If johann Spies'
Page 404 U.S.
Historia von Dr. Johann Fausten, Christopher Marlowe's The
Tragical History of Dr. Faustus, Goethe's Faust and all the other
countless operatic, symphonic, dramatic and literary versions of
the Faustian legend were published for the first time today,
copyright protection could well be extended to all. '[A] copyright
gives no exclusive right to the art disclosed; protection is given
only to the expression of the idea-not the idea itself.' Mazer v.
Stein, supra, 347 U.S., at 217. The manner in which the words or
musical notes are combined to recount the Faustian legend could
well satify the constitutional requirement of novelty even though
the broad ideas they describe may be part of the public domain.
This question is not before us in the present case, however,
because the manner of expression used by petitioner was
unquestionably her own and it was only the ideas of respondent that
were used. [Footnote 5
Serious First Amendment questions would be raised if Congress'
power over copyrights were construed to include the power to grant
monopolies over certain ideas. See Nimmer, Does Copyright Abridge
the First Amendment Guarantees of Free Speech and Press?, 17
U.C.L.A.L.Rev. 1180 (1970). The framers of the Bill of Rights added
the guarantees of freedom of speech and of the press because they
did not feel them to be sufficiently protected by the original
Constitution. This liberty is necessary if we are to have free,
open, and lively debate of political and social ideas. The
Page 404 U.S.
interest in having the fullest information available on the
murder of President Kennedy,' for example, led one court to
conclude that photographs of the assassination were not entitled to
the full range of copyright protection. Time, Inc. v. Bernard Geis
Assoc., 293 F.
, 146 (SDNY 1968). The arena of public debate would be
quiet, indeed, if a politician could copyright his speeches or a
philosopher his treatises and thus obtain a monopoly on the ideas
they contained. We should not construe the copyright laws to
conflict so patently with the values that the First Amendment was
designed to protect.
Application of the novelty standard does not require that a
person whose literary work is used by another be left without a
remedy. We deal here only with the extent of Congress' enumerated
constitutional powers. Quite different questions would be raised by
actions for unfair competition or conversion of a common law
property interest. International News Service v. Associated Press,
248 U.S. 215
Similarly, different questions would be involved had Congress acted
pursuant to other enumerated powers. Cf. Missouri v. Holland,
252 U.S. 416
respondent's rights are limited to that which is necessary to
'promote the Progress of Science and useful Arts.' This requires a
level of 'novelty' which respondent arguably has not satisfied.
I would grant certiorari and set the case for argument.
Runge v. Lee,
, 581 (CA9 1971): 'The standard of 'novelty' urged by
appellants is applicable to patents, but not to copyrights. The
copyright standard is one of 'originality': 'The requirements for
the 'originality' necessary to support a copyright are modest. The
author must have created the work by his own skill, labor and
judgment, contributing something 'recognizably his own' to prior
treatments of the same subject. However, neither great novelty nor
superior artistic quality is required." Quoting Doran v. Sunset
House Dist. Corp., 197 F.
, 941, 944 (SD Cal.1961), aff'd 304
( CA9 1962).
Mazer v. Stein,
347 U.S. 201
dealt only with the statutory standards for copyrightability
because the constitutional questions were not raised until oral
argument. Respondent's reliance upon Mazer as an expression of the
constitutional standards, for copyrights is misplaced, therefore.
Those cases in which we have considered the constitutional
ramifications of the copyright power have not dealt with the
standard of copyrightability. E. g., Bleistein v. Donaldson
Lithographing Co., 188 U.S. 239
Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53
. See also
Note, 68 Harv.L.Rev. 517 (1955).
for the distinction made by the courts below is, at best, flimsy.
It is true that the standards of 'novelty,' 35 U.S.C. 102, and
'non-obviousness,' 35 U.S.C. 103, are embodied in the patent
statutes. 'Originality,' however, is not set forth in the copyright
laws as a sufficient measure of copyrightability and it owes its
development solely to the courts. E. g., Du Puy v. Post Telegram
Co., 210 F. 8d
(CA3 1914); Edward Thompson Co. v. American Law Book Co.,
122 F. 9d
(CA2 1903). A longstanding, but erroneous, pattern of
statutory interpretation may not be spared from the force of a
constitutional mandate by reason of its longevity. Erie R. Co. v.
Tompkins, 304 U.S.
M. Nimmer on
Copyright 33 n. 7a (1971). Professor Nimmer seems to have retreated
somewhat from this view, however. Nimmer, Does Copyright Abridge
the First Amendment Guarantees of Free Speech and Press?, 17 U.C.L.
A.L.Rev. 1180 (1970). Even if it were assumed that the application
of the 'novelty' standard curtailed the monopoly afforded by the
copyright, it has recently been demonstrated that this would not
seriously affect the publishing industry nor would it disserve the
interests underlying the copyright power. Breyer, The Uneasy Case
for Copyright: A Study of Copyright in Books, Photocopies, and
Computer Programs, 84 Harv.L.Rev. 281 ( 1970).
I recognize that
if copyright protection prevented only literal copying, the clever
plagiarist could avoid its sanctions by changing irrelevant words.
Protecting the manner of expression, however, cannot be allowed to
become the tail that wags the dog.