J. H. White Mfg. Co. v. Shapiro

AUGUSTUS N. HAND, District Judge. Complainant copyrighted its catalogue of brass goods, which consisted principally of trimmings for electric light fixtures. Defendant is charged with copying in his catalogue several of the designs for these trimmings, and with thus infringing complainant’s copyrighted catalogue. Defendant moves to dismiss the bill of complaint upon ground (f), among others, which is that the catalogue appears to be merely a trade list of articles of general merchandise, and as such not a proper subject for copyright protection under the law. In Da Prato Statuary Co. v. Giuliani Statuary Co. (C. C.) 189 Fed. 90, it was held that a catalogue containing illustration of articles for the decoration of churches might be copyrighted. A similar conclusion was reached by Judge Witmer in National Cloak & Suit Co. v. Kaufman (C. C.) 189 Fed. 215, in regard to a catalogue containing pictures of women’s gowns manufactured by the complainant showing the latest fashions. Mr. Justice Holmes in Bleistein v. Donaldson Lithographing Co., 188 U. S. 239, 23 Sup. Ct. 298, 47 L. Ed. 460, speaking for the majority of the Supreme Court, sustained a copyright upon advertisements of a circus which were pictorial illustrations of the performers. In the cases of Lamb v. Grand Rapids School Furniture Co. (C. C.) 39 Fed. 474, and J. L. Mott Iron Works v. Clow (C. C.) 72 Fed. 168, it was held that pictorial illustra [958] tions of furniture and artistic plumbing fixtures in a catalogue for use in advertising were not subjects of copyright. These decisions certainly are not without much basis in reason; but I cannot see that the distinction made by them in respect to catalogues for advertising is warranted by the .strict language of the statute, and the case of Bleistein v. Donaldson Lithographing Co., supra, though concurred in by only seven Justices, with a dissent by Harlan and Mc-Kenna, JJ., is binding upon me, and makes it necessary to sustain the copyright upon this motion. Section 4952 of the Revised Statutes provides that: “The author, inventor, designer, or proprietor of any * * * engraving, cut, print, or photograph or negative thereof, or of a painting, drawing, • * * shall * * * have the sole liberty of printing, reprinting, publishing, * * * and vending the same.” Neither the merit nor purpose of the print seems to be regarded by the language of the act. It is to be remembered that the defendant may make his oyn print of the original. He is only precluded from copying the complainant’s illustration, as he is charged with having done. If he has not done this, the suit cannot be sustained. If he has done so, the complainant may well say, in the language of Mr. Justice Holmes in the Bleistein Case, supra, at page 252 of 188 U. S., at page 300 of 23 Sup. Ct. (47 L. Ed. 460): “That these pictures had their worth and their success is sufficiently shown by the desire to reproduce them without regard to the plaintiffs’ rights.” The' complainant can doubtless amend its bill of complaint, so as to obviate the technical- objections (b), (c), and (d), and the bill will then state a good cause of action. The objection (e), that the complainant' has not filed a copy of its catalogue, is now cured. Upon the case as it stands, the motion to dismiss should be granted on these grounds, and denied as to the ground (f), which I have discussed, unless the complainant shall file an amended bill of complaint within 20 days. Footnotes [1] <&wkey;>For otter cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes