Kalem Company v. Harper Brothers

by Oliver Wendell Holmes, Jr.

United States Supreme Court

222 U.S. 55

Kalem Company  v.  Harper Brothers

 Argued: October 31 and November 1, 1911. --- Decided: November 13, 1911

An exhibition of a series of photographs of persons and things, arranged on films as moving pictures and so depicting the principal scenes of an author’s work as to tell the story is a dramatization of such work, and the person producing the films and offering them for sale for exhibitions, even if not himself exhibiting them, infringes the copyright of the author under Rev. Stat., § 4952, as amended by the act of March 3, 1891, c. 565, 26 Stat. 1106.

Quære whether there would be infringement if the illusion of motion were produced from paintings instead of photographs of real persons, and also quære whether such photographs can be copyrighted.

Rev. Stat., § 4952, as amended by the act of March 3, 1891, c. 565, 26 Stat. 1106, confines itself to a well-known form of reproduction and does not extend the power given to Congress under Art. I, § 8, cl. 8 of the Constitution, to secure to authors the exclusive right to their writings for a limited period.

169 Fed. Rep. 61, affirmed.

 

The facts are stated in the opinion.

 

Mr. John W. Griggs and Mr. Drury W. Cooper for appellant:

The Court of Appeals was right in affirming the proposition that the making and publication of a series of pictures of the incidents described in a book is not an infringement of a copyright in the book.

Copyright does not monopolize the intellectual conception, but only the form of expression, i. e., the “arrangement of words,” Holmes v. Hurst, 174 U. S. 86, adopted by the author. It is the writings of the author that are protected, and the statute cannot extend the monopoly to his ideas. White-Smith v. Apollo, 209 U. S. 17; Stowe v. Thomas, 2 Wall. Jr. 547; 23 Fed. Cas. 201, 206; Baker v. Selden, 101 U. S. 99; Johnson v. Donaldson, 3 Fed. Rep. 22; Perris v. Hexamer, 99 U. S. 674, 676; Bobbs-Merill Co. v. Straus, 210 U. S. 339, 347.

A moving picture film, whether made by a modern rapid-fire camera, or by the ancient and laborious process of taking, or drawing, and collating pictures of objects in successive positions, is a picture. Edison v. Lubin, 122 Fed. Rep. 240; Am. Mutoscope Co. v. Edison, 137 Fed. Rep. 262; United States v. Berst, 175 Fed. Rep. 121. And see Edison v. Mutoscope Co., 114 Fed. Rep. 926.

Copyright law differs from the law of patents; in the former there may be two concurrent copyrights in what is identically the same creation, in the latter there can only be one patent, the first inventor being entitled. MacGillivray on Copyrights, 234. And see Baker v. Selden, 101 U. S. 99.

Termination of the author’s common-law rights upon voluntary publication, Millar v. Taylor, 4 Burr. 2331, has been recognized frequently by this court, and was known to the framers of the Constitution. Stephens v. Cady, 14 How. 528, 530; Lithograph Co. v. Sarony, 111 U. S. 53, 58; Holmes v. Hurst, 174 U. S. 82, 86; Wheaton v. Peters, 8 Pet. 591, 676, and cases passim.

If one, by copyrighting a book, can prevent an artist from picturing the scenes described, reason cannot afford room for the orator to use, in his flights of fancy, the author’s created characters or figures of speech, for the idea is not open to appropriation or use in one case more than in the other. But it is the writing only, and not the idea, that is monopolized; the mode of expression and not the thought conveyed. Books and pictures are essentially different.

As to whether a painting is a manuscript, see Parton v. Prang, 18 Fed. Cas. 1273.

A series of moving pictures is not a copy of the book, Perforated Music Roll Case, 209 U. S. 1, nor are defendants’ photographic copies of the book as the word copy is understood. Bennett v. Carr, 96 Fed. Rep. 213.

The statutory monopoly to make copies does not cover the plates and other tools with which they are made and does not pass with their ownership. Stephens v. Cady, 14 How. 530. Being a creature of the statute, this species of property is legally distinct from the underlying ideas upon which it is, after all, predicated, just as from the paper and metal without which it would have no commercial value.

A person may utilize the ideas portrayed in a copyrighted publication, provided he bestows upon his own writings such skill and labor as to produce an original result. Folsom v. Marsh, 2 Story, 100, 115; S. C., 9 Fed. Cas. 342. Utilizing ideas without copyrighting their expression is lawful. Dun Co. v. Lumbermen’s Credit Assn., 209 U. S. 20; Morris v. Wright (1870), L. R. 5 Ch. 279; West Pub. Co. v. Lawyers’ Co., 64 Fed. Rep. 360; 79 Fed. Rep. 756; Edward Thompson Co. v. American Co., 130 Fed. Rep. 369; 157 Fed. Rep. 1003.

Not only is there no evidence here that the copyright proprietors were injured even in the slightest degree; but, on the contrary, the defendant asserted by letter that its films would benefit the complainants, and this they did not deny, but stood upon their naked assertion of legal right.

To transcribe a musical composition by making a record upon a phonograph blank, or by perforating a sheet of paper, requires neither creative nor artistic power, but merely the common skill of the artisan. Yet, to make such record, is not to copy the composition, as has been held in every reported case that has come to our special knowledge. Kennedy v. McTammany, 33 Fed. Rep. 584; White-Smith Co. v. Apollo Co., 77 C. C. A. 368; 147 Fed. Rep. 226; 209 U. S. 1; Boosey v. Wright, 1 Ch. 122; Stern v. Rosey, 17 App. D. C. 562.

Under Lithograph Co. v. Sarony, 111 U. S. 53, and Bleistein v. Donaldson, 188 U. S. 250, the films were legally copyrightable as they were the result of original conception, posing and artistic skill.

A photograph cannot be an infringement of a copyrighted book. See Littleton v. Ditson Co., 62 Fed. Rep. 597; 67 Fed. Rep. 905, holding that “book” is distinct from “musical composition”; Woods v. Abbott, Fed. Cas. No. 17,938, holding that “photograph” is not a “print”; Stowe v. Thomas, 2 Wall. Jr. 547, holding that “translation” is not a “copy”; Hills v. Austrich, 120 Fed. Rep. 862, holding that “stone” does not include “metal plate.”

All the marks of literary property that distinguish the book or the drama are lacking from the picture, save in so far as both involve the same underlying ideas.

The exhibition of the pictures, arranged upon a film which is, during all the time of its use, a part of a machine, is not an infringement of the book copyright.

The complainants’ creation was not copied in the making of the pictures, but they are realizations, in a different art, of some of the ideas to which Gen. Wallace gave a written portrayal. Their exhibition by machine does not approach more nearly the writing of the book than did their making and selling.

Such exhibition of the pictures is not a “public performance or representation” in violation of the Dramatic Copyright Act. Daly v. Palmer, 6 Blatchf. 256; Daly v. Webster, 56 Fed. Rep. 483, distinguished. And see Chatterton v. Cave, 10 C. P. 572; Hanststængel v. Baynes, 1895, App. Cas. 20.

There are no cases in which an exhibition has been declared to be a dramatic performance or representation unless human actors are present, and either performing themselves or at least causing dummies or puppets to move and act. Drone on Copyrights, 587–589; Russell v. Smith, 12 Q. B. 236, 237; Brackett on Theatrical Law, p. 54; Lee v. Simpson, 3 C. B. 871; Day v. Simpson, 18 C. B. (N. S.) 680; Turner v. Robinson, 10 Irish Ch. 121, 510, distinguished.

For cases where the courts have distinguished mechanical arrangement from dramatic performances, see Harris v. Commonwealth, 81 Virginia, 240; Jacko v. The State, 22 Alabama, 73; Fuller v. Bemis, 50 Fed. Rep. 926; Carte v. Duff, 23 Blatchf. 347; 25 Fed. Rep. 183; Serrana v. Jefferson, 33 Fed. Rep. 347.

The copyright statutes are to be construed strictly, and not stretched by resort to equitable consideration. Banks v. Manchester, 128 U. S. 244; Bolles v. Outing Co., 175 U. S. 262, 268; Higgins v. Keuffel, 140 U. S. 428; Thompson v. Hubbard, 131 U. S. 123. See, generally, Oregon Ry. v. Oregonian Co., 130 U. S. 1, 26.

In any event, defendant is not an infringer, direct or contributory. It does not give any performance in, nor does it manage, any theatre. Dramatizing is entirely distinct from public performance or representation. As an act of infringement, it is defined, Rev. Stat., § 4965, and is punishable by forfeiture of plates; as a penal statute it must be strictly construed. Thornton v. Schreiber, 124 U. S. 612; Bolles v. Outing Co., 175 U. S. 262. Section 4966 provides damages against public performances.

Defendant derives no profit from the exhibition, and hence is not within the class against which § 4966 is directed, for that operates against the actual wrongdoer, Brady v. Daly, 175 U. S. 174, not the indirect participant therein.

The defendant is not concerned with the ultimate use to which its films are put, and they are manifestly susceptible of many uses which complainants do not contend to be within the purview of a dramatic copyright. Russell v. Briant, 8 C. B. 836, 848; Harper v. Shoppell, 26 Fed. Rep. 519.

If the act protects copyright in a drama against any exhibition of pictures, it is stretched to cover that which was not the work of the author, but of another, and therefore it is unconstitutional; since that instrument limits the author’s monopoly to his writings.

 

Mr. John Larkin for appellee Harper Brothers.

 

Mr. David Gerber for appellees Klaw & Erlanger.