Mini-Post: 1947 Copyright Office Report on Editing Music

It’s been too long since I made a proper post – I’ve been busy putting together a piece I’m calling An Empirical Study of 225 Years of American Copyright Registrations (title subject to change, natch), which I fully expect to be the bees knees, all while being no bigger than a breadbox. But there’s still a lot I want to share, and this seems as good a time as any to share a report the US Copyright Office issued in 1947 which has been almost completely forgotten.

Until 1947, the US Copyright Office would not register editions of public-domain music for copyright.  Obviously the music could not be reinserted to copyright protection, but the Office held that merely editing public-domain music was insufficient for copyright protection.  However, in that year the Office issued a report (link to my scans) that gave the history of Office rules for registration of music, and an argument for how they should be changed to include edited versions of public-domain works.  The Office changed its position based on this report and allowed such editions of music to be registered for copyright.  The Office had distributed the report to interested outside parties, and copies are available at a number of law libraries, but I haven’t seen it online.

The issue of whether editions of public domain music are nonetheless protected was litigated in England in the Hyperion Records case, involving a small classical music label in a suit by a scholar over his editions of the music of an early 18th century composer.  However, I think the discussions in the report are illuminating for discussing the scope of music copyright protection and infringement more generally, something Joe Fischman also discusses in his upcoming article Music as a Matter of Law, and I of course discuss in my upcoming article Common-Law Copyright (never miss an opportunity to plug one’s own work).

Property in Copyright – Examining The Ingersoll Copyright Bill of 1844

I’m not pushing a normative argument with this post, I just think it’s useful to understand how some of the debates over copyright have evolved – or not – over 200 years.  Some parts of this article are expanded upon much further in my article The Twilight of the Opera Pirates, which tells the history of the origins of performance rights for music, but I wanted to focus on a different aspect of the Ingersoll Bill than that article looked at.

A question people love to hash out in the public discussions of copyright is whether copyright is a property right.  Of course the question is a little misleading, because copyright is obviously at least a form of property, but what people are really debating is whether copyright is substantially equal to real property in the deference given by the law and society.  These debates are typically accompanied by calls to history, but these are typically given in a general sense without reference to specific incidents.  In the nineteenth century the vast majority of references to property rights in copyright in the records of Congress are in respect to the lengthy fight for international copyright protection, which did not culminate until 1891.  However, the Ingersoll Copyright Bill, introduced in 1844 and quickly disappearing, is the exception, and provides I think an interesting window into what people thought about copyright at the time.

At the beginning of 1844, Charles Jared Ingersoll, a Democratic Congressman from Philiadelphia, who also had a career as a lawyer, orator, and playwright, introduced a copyright bill.[His plays included Edwy and Elgiva and Julian, and his widely circulated Discourse Concerning the Influence of America on the Mind included a discussion of copyright law as well.] This bill was intended as a complete revision of copyright law, and was generally far ahead of its time.  Amendments Ingersoll added two weeks later further modernized his bill, adding performance rights as well as a system of design protection.  However, Section 15 of the bill contained a clause that I haven’t seen in other copyright legislation, at least not phrased this way:

[A]ll copyright shall be deemed personal property, and shall be transmissible by bequest, or, in case of intestacy, shall be subject of the same law of distribution as other personal property.

This clause is obviously aimed partially at insuring that copyrights can be transmitted to heirs, but there’s also a clear intent to assert that copyright is a form of property.  Indeed, reading over the bill and amendments, assertions that copyright is a property right are all over the bill – in stark contrast to the then-in-force 1831 Act, which does not use the word “property” once.

After being introduced the bill was referred to a Select Committee, where it failed to go anywhere.  However, luckily, one of the members of this Select Committee was an elderly John Quincy Adams, still keeping his daily diary.  Ingersoll and Adams were fierce opponents on issues of the gag rule and slavery, so it is perhaps unsurprising that Adams was less than enamored of Ingersoll’s proposal.  When the subject was first broached, Adams noted in his diary that he “offered some suggestions as to the natural right of literary property, to the principles of which, as entertained by me, Ingersoll immediately declared his dissent. His principles are radically depraved, and never can harmonize with mine.”  A month later the bill was discussed again, leading Adams to describe the bill as “an entire but most incongruous system of copyright property, fit for nothing but to multiply litigation.”

It’s of course impossible to know exactly what Adams was referring to, but the property aspects of the Ingersoll bill seem like the obvious answer (although in fairness the bill is sprawling and pointing to any one aspect is difficult).  That said, the very fact that the Ingersoll bill needed to state that copyright is a property right is suggestive that this was not uniformly agreed on.1

An illustrated of the debate as to whether copyright is on par with real property was illustrated in a Senate Report from six years earlier on international copyright, where the Senate Committee on Patents wrote that

The committee do not deem it necessary to argue the question, which has been so much discussed, whether an author has a property in his written and published productions, by natural right, which society is bound to protect. It will, perhaps, be sufficient to admit, that in most cases there will be found equitable considerations, constituting strong claims for aid and protection in some form, to those from whose intellectual labors mankind derive a benefit. Partly with reference to such considerations of justice to authors, and partly with it view to the advancement of literature and science, all civilized nations have established copyright laws.

In the end the Select Committee on the Ingersoll Bill focused on issues of international copyright instead, including a memorial from Nahum Capen, Miscellaneous Memorials on the issue of international copyright from around the country (my scans from the National Archives, 2 MB), as well as a Memorial from John Jay, presumably a son of the former Chief Justice (my scan from the National Archives, 2 MB).  These all concerned the recently failed effort for international copyright from the late 1830s, not the question of property in copyright.

One of these days I want to write a proper account of the history of copyright in America from 1789 to 1909, and one of the strands I want to show is that the triumph of international copyright in 1891 also represented a triumph of a property model of copyright, which was then codified by the 1909 Act.  In the 1840s the issue was still much more equivocal.  As Justin Hughes has demonstrated, the term “literary property” was already in wide use by authors and advocates of international copyright.  However, the term “property” was assiduously avoided by others, including the pirate press and opponents of international copyright.  In a way, it seems like little about the debate has changed in some 170 years, but the law itself clearly has.

  1. Of course, the counterargument is that it went without saying in previous bills.

Tam, The First Amendment, and Copyright

Last week the Supreme Court decided the case about the Constitutionality of the clause of federal trademark law excluding from registration disparaging, scandalous, or immoral marks, and found this clause to be unconstitutional. Part of the reasoning at both the Circuit Court level and the Supreme Court level was that such a rule would be obviously unconstitutional vis a vis copyrights, and there is no good way to develop a rule that distinguishes copyrights from trademarks in this context. I’ve been telling people informally that the history of copyright registration is actually a lot more complicated, and that I should write an article explaining this. But in the interim, in the interest of getting the information out there, I’ve put the basic information in a blog post.

In rejecting the argument that trademark registration is government speech, and thus excluded from the protection of the First Amendment, Justice Alito’s opinion states the following (Slip Op. at 21-22)

For if the registration of trademarks constituted government speech, other systems of government registration could easily be characterized in the same way.

Perhaps the most worrisome implication of the Government’s argument concerns the system of copyright registration. If federal registration makes a trademark government speech and thus eliminates all First Amendment protection, would the registration of the copyright for a book produce a similar transformation?

The Federal Circuit’s opinion is much lengthier, and explores this issue in greater detail.  This attitude is unsurprising, as nowadays the Copyright Office registers essentially anything.  Indeed, the most frequent copyright litigant, by far, is a pornographer.  However, copyright’s content neutrality has only been well established since fairly recently, and in the past the Copyright Office has denied registration – and Courts have found works uncopyrightable – driven by both legal concerns such as obscenity as well as more amorphous concerns like immorality.

As William Patry notes in a post about this question in 2005, the trial court in Bleistein held that a “picture which represents a dozen or more figures of women in tights, with bare arms, and with much of the shoulders displayed, and by means of which it is designed to lure men to a circus” was not within the protection of the statute, finding it “merely frivolous, and to some extent immoral in tendency.”1  The Supreme Court overruled this decision, but did not address the discussion of morality, focusing on other issues.  Subsequent cases would hold that works that were illegal or immoral were not the subjects of copyright.

The offending poster from Bleistein

In the first part of the twentieth century, federal prosecutions for obscenity through the mail generally made most questions of copyright in works that might even have a shade of obscenity superfluous for domestic authors.  For foreign authors the combination of obscenity prosecutions and the manufacturing clause of the copyright law at that time (requiring that English-language books be printed and typeset in America in order to receive copyright protection) was essentially a bar to copyright protection in America for books that might be within European sensibilities, but on the edge of American ones.  Robert Spoo has written about the travails of as James Joyce in this arena, and it’s a fascinating story all its own.

In the annual report of the Register of Copyrights for 1941, the Copyright Office made clear for the first time as a written policy that it would not register “seditious, blasphemous, immoral or libelous” works, as the Office did not consider them to be copyrightable at all.  1941 Annual Report at 29-30.  Although this policy was anchored in a belief that such works were generally illegal, such a policy goes far beyond the scope of the first amendment today – I can’t say for certain if it did in 1941 though.

It is unclear whether many works were rejected in these standards, but in September of 1954, the Copyright Office issued Ruling Number 32 relating to Obscene Works, reading as follows:

a. The Office will not ordinarily attempt to examine a work to determine whether it contains material that might be considered obscene.
b. If the examiner believes, upon an ordinary examination, that a work is obscene, the Chief of the Examining Division will determine whether the work should be referred to the Department of Justice for possible prosecution. If the work is not so referred, the copyright claim may be registered.
c. When a work is referred to the Department of Justice, registration will be held up pending action by that Department.

The unraveling of this system came in September 1958, with the arrest of Lawrence E. Gichner, owner of a sheet metal company and amateur sexologist, who had attempted to register his book “Erotic Aspects of Chinese Culture.”  Apparently the Copyright Office had referred it on examination to the Department of Justice, who had contacted the Washington, DC police.  The DC police arrested him, and took for evidence fifty crates of material.  The ACLU rushed to Mr. Gichner’s defense, and the Librarian asked the President to ask his Attorney General for an opinion as to whether the Copyright Office was permitted to register works that are illegal or immoral.  On December 18, 1958, the Attorney General answered that the Office was not required to turn away works on the grounds of immorality or illegality.  41 Op. Att’y Gen. 395 (1958).

However, an eagle-eyed reader may note that the Attorney General did not actually hold that immoral works were protected by copyright – in fact he strongly implied the opposite, that both immoral and obscene works are not protected by copyright, but that it was not the job of the Copyright Office to make that determination.  In 1979 and 1982 the Fifth and 9th Circuits held that immoral and obscene works were protected by copyright.  Jartech v. Clancy, 666 F.2d 403 (9th Cir. 1982); Mitchell Bros. Film Group v. Cinema Adult Theater, 604 F.2d 852 (5th Cir. 1979)  However, in 1998, the Southern District of New York noted that it was “far from clear that the Second Circuit will follow the Fifth and Ninth Circuits in rejecting the argument that obscene material is entitled to copyright protection.”  Devils Films, Inc. v. Nectar Video, 29 F. Supp. 2d 174, 176 (S.D.N.Y. 1998).  This would be a minority position, but Courts have been noting a split on the issue ever since (the Second Circuits and most other Circuits have never addressed the issue head-on).

As obscenity has steadily shrank into the darkest corners and immorality has essentially disappeared as a legal standard, it’s easy to miss that there was surprisingly little of substance stating that copyright law protected works which fall into the vague standard of immorality.  In fact, Tam can reasonably be stated to be a precedent for copyright’s neutrality, albeit perhaps an unwitting one.  It seems that with the decision to no longer examine for immorality or obscenity, the law came to recognize that such works were protected by copyright, even in spite of a long tradition to the contrary, only partially told here.  Whether there was a causality to this or it was simply a consequence of the expanding scope of the first amendment is an interesting one.

Further Reading:

  1. the discussion of whether the posters at issue were works of the “fine arts” may have been more relevant to the question of whether the 1874 Print and Label Act controlled than to whether they were copyrightable generally, as I discuss in my article Reimagining Bleistein

Product Labels and the Origins of Copyright Examination

A foundational story about the development of copyright in America is the question of whether product labels could – or should – be protected by copyright.  As far as I can tell this question marked the beginning of denying copyright registration on the grounds of subject matter, and I think is an important story to tell for understanding a number of current debates regarding copyrightability, and also serves as an antecedent to the modern copyright examination system.  I’ve written about this story some in the past, in my 2012 article Reimagining Bleistein: Copyright for Advertisements in Historical Perspective, but it’s worth highlighting this story separately from the broader narrative in that piece, and I’ve found some additional parts to this story since I published that piece.

Although the 1790 Copyright Act only prescribed a limited species of works for protection, for instance omitting music from the list of protected works, Courts would quickly hold that a musical work or even a single sheet of paper could be registered for copyright as a “book” (or after 1802, a “print”).  This matches a general early tendency to be liberal in what could be registered.  However, in 1848 Justice McLean, riding Circuit, held in Scoville v. Toland that a label that reads “Doctor Rodgers’ Compound Syrup of Liverwort and Tar. A safe and certain cure for consumption of the lungs, spitting of blood, coughs, colds, asthma, pain in the side, bronchitis, whooping-cough, and all pulmonary affections. The genuine is signed Andrew Rodgers” is not subject to copyright.  Justice McLean reasoned that the purpose of the label was only to identify the product, and it communicated nothing beyond its association with the product – and accordingly copyright law would not protect it.  In the 1850s, the copyright records show a clear upwards trend in registrations of product labels for copyright protection, and coupled with the Scoville decision, this led some to question whether product labels were protected by copyright – especially regarding patent medicines.

A letter from the Clerk of the US District Court for the Northern District of New York (Aurelian Conkling at the time), published in the New York Journal of Medicine and Collateral Sciences in 1856, highlights the problems these so-called “patent medicines” posed for Clerks who were asked to register their labels for copyright (recall that the District Court Clerks were responsible for copyright registration until 1870).  The letter explains that the usage of “patent” was sardonic, since “these notrums not truly patented, the secret of their preparation being studiously withheld in defiance of…our Patent Laws.”  Rather, these patent medicines would attempt protection by registering their labels for copyright and then bringing suit against competitors for infringement of the copyright.  Mr. Conkling had been refusing to grant copyrights for patent medicine labels for several years at this point.1  Conkling further opined that:

Congress did not intend to prevent the imitations of the stamps and labels of any manufactured article, or goods, or merchandise [under copyright law].  That is a subject of such extensive interest and importance, that, if it had been the intention of Congress, to embrace it in the provisions of the law, that intention would have been distinctly and unequivocally manifested.

In response to a letter from Mr. Conkling, the State Department (responsible for the administration of copyright until 1859) issued a circular stating that “inasmuch as mere labels are not comprehended within the meaning” of the copyright law, clerks were instructed to “refuse, in all cases, to record or issue a certificate for the same” under the copyright law.

In 1859, copyright responsibilities were moved to the Interior Department, which delegated them to the Patent Office (although registrations themselves remained the responsibility of the clerks of the district courts). Shortly after this act was put into effect the Patent Office put out a circular to the same effect as the State Department circular a few years earlier, specifically directing the district courts not to register “stamps, labels, and other trade-marks of any manufactured articles, goods, or merchandise” because “the acts of Congress relating to copyright are designed to promote the acquisition and diffusion of knowledge, and to encourage the production and publication of works of art,” and thus labels were not “embraced within the meaning of the [copyright] acts.” Thus a label, no  matter how artful, could not be registered as copyright, but might be registered as a design patent.2  It’s likely that the list of labels, trademarks, etc that the Patent Office produced in 1859 and supplemented in 1861 stemmed out of the release of this circular.

In spite of these clear pronouncements, compliance with these circulars varied.  In a Series of Letters from 1864-1866 (PDF, 4 MB, from the miscellaneous files of copyright records in the Rare Book Room of the Library of Congress), a successor as clerk of the District Court for the Northern District of New York complained that he was getting many requests to register labels, and that a common complaint was that the Southern District of New York had no such compunctions about issuing copyright registrations for product labels.  Given that the Southern District had a much higher volume of copyright registrations that is perhaps understandable that less attention would be paid at the Southern District (there are 4,484 pages of copyright records microfilmed from the Northern District from 1820-1870, compared with 54,822 from the Southern District for the same period).  Perhaps more notable is that aside from the Northern District of New York, there’s no real record of other courts refusing to register labels (that I’ve found – the copyright records of many Courts are overflowing with labels by the end of the 1860s).

Nonetheless, the Copyright Office issued a Circular in response in 1866 (PDF, 1 MB, this copy from the NJ 1846-1870 Copyright Files at the Library of Congress) making clear that their views on whether labels were protected by copyright had not changed.  The language the Commissioner of Patents used is a development from Justice McLean’s opinion in Scoville v. Toland 18 years earlier, and it has a whiff of the concept of aesthetic separability that was argued in Mazer v. Stein 88 years later.

As all the acts of Congress related to copyrights are designed to promote the acquisition and diffusion of knowledge, and to encourage the productions and publication of works of art, it has always been held that stamps, labels, and other trade-marks of any manufactured article, goods,or merchandise are not embraced within the meaning of the acts.  When any production is issued as an object of art, having value in itself, and intended for sale as such, it properly comes within the provisions of the copyright law; but when, however artistically executed, it is not produced for sale as a work of art, but is designed to be affixed in the manner of a label to a manufactured article, it then plainly falls under the act relating to patents for designs, and consequently cannot be protected by copyright.

As noted, despite repeated encouragement from Washington, it does not seem that other Districts followed the lead of the Northern District of New York.  As I tell in much greater detail in my article, when copyright was centralized at the Library of Congress in 1870, the Library was quickly overwhelmed with applications to register product labels for copyright, and in 1874 the Librarian convinced Congress to pass a law transferring responsibility for registering labels to the Patent Office, where they would be a sui generis form of intellectual property registered along the same rules as those for registration of copyright.  The statute attempted to create this entire new form of intellectual property in one paragraph of statutory language, and hijnks predictably ensued, including a case where the Patent Office repeatedly ignored mandamus from what is now the D.C. Circuit Court of Appeals to register labels without examination.

The decision of the Supreme Court in the Trade-Mark Cases in 1879 (holding the 1870 Trademark Act unconstitutional) did not stop the process of label registration, but the Supreme Court’s 1891 holding in Higgins v. Keuffel that a label for india ink was not protected by copyright did pause the system of label registrations with the Patent Office for a number of years.

The label at issue in the case of Higgins v. Keuffel, along with its registration information.

However, in 1893 the Comissioner of Patents ruled that labels could be registered, provided they were of sufficient originality to meet the authorship requirements of the copyright clause (which the label from Higgins did not).  However, the Comissioner held that the advertisement at issue in Ex parte H.J. Heinz Co., 62 O.G. 1064 (Comm’r Patents, 1893) was of sufficient originality to qualify for registration as a label.

The product label Heinz successfully registered following an appeal to the Commissioner of Patents in 1893.

Somewhat surprisingly, commercial labels and advertisements would not be returned to the jurisdiction of the Copyright Office until 1940.  The story – especially after 1874 – is told in greater detail in my article, but I’ve brought it up a few times lately, and it seemed to be worth highlighting.

  1. Apparently the denied copyright registrations included a “elixir of life” as well as a “diarrhoea cordial.”  Letter at 423.  Surely the latter would test the limits of aesthetic non-discrimination even today.
  2. This paragraph is copied essentially verbatim from pg. 352 of my 2012 article.  What’s next is new, though.

Pre-1870 Copyright Records from the Manuscript Division of the Library of Congress

The Rare Book Room isn’t the only part of the Library of Congress with copyright records from before copyright was entrusted with the Library in 1870.  As I blogged about a few weeks ago, there are many copyright records outside the Library of Congress.  And of course the Rare Book Room of the Library of Congress holds the main body of these pre-1870 records.  However, the Manuscript Division of the Library of Congress also has four boxes of pre-1870 copyright records.  These records are held within the Library of Congress Archives, one of the collections of the Manuscript Reading Room.

Those who looked closely at the guide to these records hosted by GW Law may have already noticed these records.  They fall into two categories of records – letter books of copyright correspondence with the State Department, and what I’ve termed “ephemeral” copyright records, to indicate small lists of copyright registrations, usually compiled by the clerk of the court.

The letter books are correspondence related to copyright with the Secretary of State, who was mostly responsible for copyright deposits until 1870.  There are three continuous letter books for 1818-1824, 1824-1828, and 1828-1832.  The bulk of the letters in these books are cover letters that accompanied individual deposits, although there are other documents as well.  For instance, there is a letter in the 1828-1832 book from counsel for Henry Wheaton, attempting to establish the proper deposit of Wheaton’s Reports as part of the litigation that would become the Supreme Court case of Wheaton v. Peters.  There is also a book that appears to be deposits with the State Department for 1853-1854, but it is on onion paper and was too fragile and voluminous to scan easily.  According to the Roberts survey of the copyright records, there is also a letter book of the Patent Office regarding copyright matters for 1859-1870 as well in the Rare Book Room, which would presumably be digitized along with the rest of the copyright-related material held there.

In addition to these letter books there is also a single box of miscellaneous pre-1870 records in the Library of Congress archives, which I have dubbed “Ephemeral Copyright Records.”  I’ve already blogged about the most interesting such document, which is a list of all registrations of labels and other nontraditional copyrighted works up to 1861.  However, there are other interesting documents there as well, including a list of records created by the Library circa 1870 of documents received from the State Department, a short list of copyright deposits for which no registration could be identified, and a number of records created by individual courts.  Some of these records appear to be the only extant records of the relevant registrations, while others give us a picture of literary activity in that district – one list for a six-month period in New York City in 1859-1860 shows over a thousand titles being entered (although under 400 were actually secured with a deposit).

I hope these scans are helpful to researchers and lawyers; leave a comment if you have any questions.

The Copyright Office’s Amicus Brief from Mazer v. Stein

A short post for World IP Day, now nearly over.  In part of the run-up to the Star Athletica argument, I had a chance to look at the amicus brief the Copyright Office filed with the Supreme Court in Mazer v. Stein some 64 years earlier (and not the Solicitor General – although they are among the names listed on the brief, the Copyright Office is the only office identified on the cover page, and the final signature block before the appendices).

In a brief filed in Mazer the Copyright Office went above and beyond the usual contours of the amicus brief form, offering a detailed history of office registration practice for works of design.  The body of the brief identifies the history of the regulations, and the Appendix B is a partial reprinting of relevant listings in the Catalog of Copyright Entries for 1912-1952.  Perhaps most interestingly, Appendix C of the brief comprises photostatic reproductions of the registrations filed for works of design from before 1909.

The amicus brief has long been available through Gale’s database of Supreme Court Records and Briefs, sourced from the microfilm, but the conversion to black and white rendered the final exhibit essentially illegible.  Accordingly, I’ve uploaded a scan of the US Copyright Office’s original copy of the amicus brief, which they were good enough to allow me to photograph after their wonderful program in honor of today.

Here it is.  Enjoy, and a happy World IP Day.

Announcing the Release of Over 2,000 Pages of Lost Pre-1870 Copyright Records

This post is fairly long, and I don’t want to bury the lede, so here it is: I’ve tracked down and digitized over 2,000 pages of copyright records from before 1870 that had generally been assumed lost.  The whole story follows, but to jump to the records, they are here (part of the GW Law Library Website).
        Since I started this blog in the fall, I’ve occasionally alluded to a number of projects I’ve been working on regarding the pre-1870 copyright records, most notably in my post where I provided links to the transcriptions of a small part of those records.  As the 2015-2016 Abraham L. Kaminstein Scholar in Residence at the US Copyright Office, my efforts were focused on a descriptive and quantitative study of the Office’s records under the Pre-1976 Act, so as to complement Robert Brauneis & Dotan Oliar’s work on the records under the current Act.  Part of that effort has resulted in a study of copyright registrations from 1870-1977, on which I’ve collaborated with Saurabh Vishnubhakat to present at a number of conferences, and which we are currently in the process of writing up into law review format.
        However, while doing that project, I became curious about the oldest records, those from before Copyright was centralized at the Library of Congress in 1870.  Until that point copyright registrations had been made (and the records kept) at the individual Federal District Courts.  In 1870 those records were transmitted to the Library of Congress, but it’s been fairly well-known that a substantial number of records never made it to the Library, and these records have generally been assumed lost.

The Pre-1870 Copyright Records

        The pre-1870 copyright records that made it to the Library were held by the Copyright Office until the 1930s,1  when they were transferred to the Rare Book Room of the Library of Congress, and in 1939 Martin Roberts prepared the first comprehensive study of these records.  His work provides both a narrative description of these records and a checklist of what records came into the possession of the Rare Book Room (pp. 16-19).  The main body of these records were transferred to microfilm, and this is the breakdown of of the microfilm, by number of pages per state:
        Looking at Roberts’s Checklist and these statistics, two things become clear – for New York, Philadelphia, and Boston, whose District Courts together handled 85% of copyright activity before 1870, the Library of Congress has a complete or essentially complete set of the records.  However, for many jurisdictions with a comparatively small volume of copyright activity, records may only exist for the years immediately before 1870, if it at all.  This seemed strange to me, thinking that so many Federal Court records had gone missing, and I began digging into the question.
        What I’ve been describing as a unitary series of records is actually a number of interrelated records.  These are:
  • The actual registrations – Congress provided a specific form for the registration in the 1790 and 1831 Acts, and the Clerk of the Court would either write it out or have application blanks printed where the applicant would fill in the title and other details (all the lost records were handwritten, as only the jurisdictions with a large volume of copyrights bothered to have blanks printed up).  These were generally kept in a record book, meaning that there’s likely no missing records from the period covered by a record book.
  • Title pages – Part of the procedure for registration was the deposit of a title page with the District Court, on which the Clerk would typically make a notation about the registration.  These mostly go in-hand with the registration record, but in a few cases (like the New Hampshire records for 1821-1842 included in this project) they comprise the only record.
  • Assignment records – As now, the Courts would record assignments of copyright and keep records of those assignments.
  • Indices – As the name implies, these are indexes maintained by Courts to assist in locating the copyright registrations they’d made.
  • Account books – the District of Massachusetts and likely others kept records of the funds paid for copyright registrations, and those records are included in this project.

Finding & Digitizing the Lost Records

        One breakthrough was finding the research G. Thomas Tanselle had done on the copyright records in the 1960s, which led to his study Copyright Records and the Bibliographer.  In that study Tanselle identified many records which had not found their way to the Library of Congress, and listed them in Appendix B to that work.  I was able to find all the records Tanselle listed except for the Ohio records for 1829-1842, which have continued to elude me (see below for more on still-missing records).  The work of other bibliographers, including Joseph J. Felcone and Roger E. Stoddard was also extremely helpful.  In addition, using the online National Archives Catalog, older printed sources, and systematic inquiries to the staff at each regional division of the National Archives, I was able to locate copyright records which had not made it to the Library of Congress from seventeen states as well as the District of Columbia.
       At that point, I began to strategize how to get scans of these records, considering that I had no real budget for this project.  Colleagues at law schools local to various National Archives locations were able to connect me with interested law students (who had a camera), and in particular Valerie Snow, Zachary Swartz, and Preston Morgan, who assisted by digitizing materials in Waltham, Atlanta, and Fort Worth, respectively.  A number of colleagues including Brian Frye also assisted with getting scans of these records.
        I am also indebted to the staffs at various regional locations of the National Archives, including those locations, Philadelphia (especially Gail Farr), Seattle, Kansas City, and more.  Thanks are also due to the members of the faculty and law library staff at the George Washington University Law School.  Finally, this project owes much to my colleagues from my time at the Copyright Office.

Making the Lost Records Available

        The staff at the Burns Law Library at the George Washington university, especially Ken Rodriguez, were instrumental in putting together a guide to these records that will be available to all.  The guide to the lost records is now online here, with links to scanned versions of these records.  Let me know about cool finds, or any other cool uses you find for these records.  My ultimate hope is that the Rare Book Room of the Library of Congress will digitize their holdings of pre-1870 copyright records (which I would guesstimate as being 300,000 pages), and when combined with this project, will represent an essentially complete record of copyright (and thus literary, musical, etc) activity in America in its earliest days.
        Special thanks to the Virginia Historical Society, for giving me permission to share my scans of copyright records they hold from 1864-1865.
        One set of records that is not there yet, but I hope I will be able to link to soon, is the records from South Carolina.  They are held by the South Caroliniana Library at the University of South Carolina, and I’m informed they plan to digitize them in the near future.
        Also of note, the records of the Confederate Secretary of State contain information on copyrights from the states that seceded during the Civil War, and have been put online by the Library of Congress.

Records Still Missing

        One interesting question to ask is “what records are still missing?”  The major set of missing records are from Virginia, where records only exist from the District Court in Richmond (the busiest by far in that era) for 1867-1870, although the inclusion of records from 1864 and 1865 in this project ameliorates the problem slightly.  There is also a printed list of copyright records for 1790-1844 from Richmond, taken from a source that no longer seems to exist. I’ve included a list of other states with records that are still missing below, note that it may not be exhaustive – in particular a list of records received from the US State Dept. in 1870 (that I located and scanned from the Library of Congress Manuscript Division) suggests that there may be some substitute records for these jurisdictions for dates after 1831:
  • Connecticut – No records exist from before 1804
  • District of Columbia – No records exist from before 1845 (the State Dept. records indicate records from 1814-1844 may have survived from there).
  • Georgia – No records exist from before 1845
  • Florida – Essentially no records known before 1870
  • Iowa – No records exist from before 1868
  • Indiana – No records exist for between 1841 and 1853
  • Kansas – No records exist from before 1865
  • Louisiana – Records from before 1851 are extremely spotty – seven records from 1837 and 1838 were located as part of this project, but presumably many more existed at one point.
  • Maryland – No records exist from before 1831 (presumably this represents a decent volume of records)
  • Missouri – No records exist from before 1857 (State Dept. records indicates substitute records for 1834-1852)
  • Mississippi – No records exist from before 1850
  • North Carolina – North Carolina was divided into a large number of Districts in this time, and this project uncovered the records from Raleigh, which presumably had the greatest volume of copyright activity in the state.  Scattered records exist from other Districts, including Cape Fear and Pamplico.
  • Ohio – The copyright record book from the US District Court for the Southern District of Ohio at Cincinnati for 1829-1842 is listed by Tanselle, but I have been unable to find it.  The last mention of it was in a WPA Survey of federal records; this is the Form 58SA created by the WPA cataloging the volume.  I’ve been in touch with the Court and the Chicago location of the National Archives, but neither one can find it.
  • Rhode Island – No records exist from before 1831
  • Texas – Almost no records exist from before 1867
  • Virginia – No records exist from Richmond before 1863, as discussed above.  A letter from 1863 indicates that the records had been destroyed in a recent fire (it’s unclear how the list of copyrights from before 1844 was created, presumably the letter was partly in error).

 What’s Next

        Looking at the Guide, people may note that there are also uploads of letter books as well as what I’m referring to as “ephemeral” copyright records, both held by the Manuscript Division of the Library of Congress.  I plan to blog more about those next.

        As I noted callings these records as “lost” is a bit misleading – or at least my wan attempt at clickbaiting.  However, they have been essentially unknown, especially to the legal community, and I hope this will spur interest in a fascinating area where law and culture converged in early America.

  1. This is discussed in Ruth Shaw Leonard’s unpublished 1944 Master’s Thesis at Columbia Univ. “A Bibliographical Evaluation of the Copyright Records for the United States District Court of Massachusetts, 1800-1809.”

Mazer and the Balinese Dancer

As folks who read this blog have doubtless heard, the Supreme Court recently decided the “Cheerleader Case” of Star Athletica v. Varsity Brands, which is the first case to seriously examine the Useful Articles doctrine in copyright since the Mazer v. Stein decision from 1954.  I blogged about Mazer v. Stein around the time of the oral argument in Star Athletica, sharing the transcript of argument from both the Supreme Court and District Court.  However, Sy Damle tweeted this, and it inspired me to double-check (and share) the actual statutes whose copyrightability was at issue in Mazer v. Stein:

And Sy is right…people were talking about the figure at issue in Mazer v. Stein as a “Balinese” dancer as early as the 1950s.  Stein maintained a fairly extensive catalog of statuettes that also functioned as lamp bases (PDF, 7 MB, my scan), and was involved in a number of seperate cases, one of which led to the Supreme Court decision in Mazer v. Stein.  However, looking at the original complaint in Mazer, none of the six at issue is a Balinese dancer; as Sy and I realized, the Balinese dancer was actually at issue in Stein v. Expert Lamp, where the District Court and 7th Circuit held that the lamp base was not eligible for copyright prior to being de facto overruled by the Mazer decision.  A Petition for Write of Certiorari of certiorari had been filed in by Stein in the Expert Lamp case in 1951 (so two years before the Mazer cert petiton was filed) but denied – the circuit split likely was not ripe yet.

There’s an interesting story here about how mistakes propagate in the literature.  The first mention of a statutette of a Balinese dancer being at issue in Mazer was in a note in the Cornell Law Quarterly, 39 Cornell L. Q. 725 (1953-1954), which asserted that all the cases involved by Stein involved essentially the same facts, not realizing that Stein had designed many lamps and different lamps had been copied by different competitors.  The assertion that Mazer was about Balinese dancers was repeated in the January 1955 issue of the Harvard Law Review, 68 Harv. L. Rev. 489, 517 (1954-1955).  The June 1954 Issue of the ABA Journal also stated that Mazer was about a statuette of a “Bali Dancer.”  The note didn’t cite any authority for this proposition, but the line about it being a Balinese dancer would be steadily repeated over time until it became canon.  In 1977 Melville Nimmer, author of the leading treatise on copyright, repeated this line about the Balinese Dancer in his widely cited article The Subject Matter of Copyright under the Act of 1976, 24 UCLA L. Rev. 978 (1977).

In each case citation was only made to the reported decision in Mazer v. Stein, which has no comment about what sort of human figure was on the lamp base.  However, the appellate record contains a details on the works at issue, and the transcript of the argument before the Supreme Court shows that the figure of a female ballet dancer was actually brought to the Supreme Court for the argument.  I’ve reproduced the listings of images at issue in Mazer v. Stein with images of the statuettes at issues  (along with copyright registration numbers and dates – all taken from the complaint) below the jump:

Continue reading “Mazer and the Balinese Dancer”

19th Century Congressional Extensions of Patents

Under the Patent Act of 1836, a patent had a 14-year initial term, and could be renewed for seven more years by the Commissioner of Patents.1  In theory, that would be the end of the matter, but in practice the inventor would sometimes petition Congress for a further 7-year extension.  While doing some research in the National Archives on an unrelated project2 I found a number of these, and scanned them using CamScanner.

The impetus for posting them now is Sean O’Connor’s excellent new article Origins of Patent Exhaustion: Jacksonian Politics, ‘Patent Farming,’ and the Basis of the Bargain.  His article includes extensive discussion of the litigation over the patent received by William Woodworth in 1828 for an improved wood-planing machine, which in addition to receiving a Congressional extension in 1845, was the subject of two Supreme Court Cases – Wilson v. Rousseau, 45 U.S. 646 (1846) and Bloomer v. McQuewan, 55 U.S. 539 (1852) – both concerning the effect of extension on assignments.3 Until 1843, Woodworth entered into a cross-licensing agreement with Uri Emmons, who patented a similar wood planing machine in 1829 (patents were not examined under the pre-1836 system).  However in 1843 the Comissioner of Patents did not renew the Emmons patent, leaving the market to Woodworth.  With the Congressional extension of the Woodworth patent set to expire in 1856, the heirs of Uri Emmons petitioned congress to revive the Emmons patent for a seven year term, an action that was not successful so far as I can tell.  However their petition is fascinating, including examples of renewals of expired patents by Congress and other oddities of term that would likely not be tolerated today.  My scan of their petition is here.

An even more famous patent is that received by Samuel Morse for the telegraph,whose legal journey has been written about extensively by Adam Mossoff.  Morse received a patent for his invention in 1840, which was extended to 1861 by the Commissioner of Patents.  In 1860 Morse lobbied Congress for a further 7-year extension of his patent, but it does not appear it was granted.  In support of his application Morse filed a hand-written petition, a copy of his brief from 1854, and a newly-produced brief by Charles Mason written in support of the extension.  I have uploaded these documents to Archive.org here.  Also included was the Decision of the Comissioner of Patents approving the extension of Morse’s 1846 patent for improvements to the telegraph, which has been reproduced elsewhere.

Finally, I’ve included a petition by William Atchinson attempting to reclaim patents for rubber he had assigned away by purposes of a Congressional extension here.

  1. The National Archives has a list of all requests for renewal filed with the Patent Office, which I’ve uploaded here: Patent Extension List.
  2. Specifically, I was doing a little sleuthing for Brian Frye for what would become his article about slavery and patent law for a coming symposium.
  3. There’s more information on the Woodworth patent and machine here.

A List of Labels and Other Unusual Copyright Registrations, Compiled in 1859

Although most of the copyright records from before 1870 are held in the Rare Book Room of the Library of Congress, the Manuscript Division of the Library of Congress also has substantial holdings of miscellaneous documents regarding copyright before 1870 in the Library’s Archives, most of which seem to be sourced from the State Department or the Library itself.

I’ve gone through the four boxes of copyright records in the Library of Congress Archives, and there’s fascinating stuff there, which I will likely base several more posts around what’s there.  But while giving a talk at the Works in Progress in IP Colloquium this past weekend (which Rebecca Tushnet liveblogged, for those interested), I mentioned a list I found there of what I’ve been referring to as “irregular” copyright registrations that was compiled in 1859, although the document is entitled “Catalogue of Trade-Marks, Lables, &c, Arranged by State.”  In the same file was what appears to be a supplement, which brings the coverage of this document up to 1861.  The document does not give a specific starting date, although a non-systematic look at the document shows that the earliest date on it is 1818.

The document is available here.  Note that it is presented as two separate documents on the Internet Archive – it defaults to the 1861 Supplement, but the link to the main 1859 document is just below the document itself (direct link to the main 1859 document here).  The document is a list of product labels but also other materials including almanacs, charts, and miscellaneous other works registered for copyright that were not the sort of books commonly thought of when copyright was mentioned.

It’s not entirely clear to me who created this list, or why it was created; it would have involved substantial work to assemble it from the various District Courts all over the country that were doing copyright registrations at the time.  However, my best guess relates to the battle over copyright registration in patent medicine labels, something I wrote about on pp. 350-352 of my article Reimagining Bleistein.1  Briefly, in 1856 the Secretary of State had sent out a circular, on the urging of the Clerk of the District Court for the Northern District of New York,  stating that product labels were not the proper subject of copyright and should not be registered.  Three years later in 1859 the Patent Office took over responsibility for copyright deposits and issued a similar circular, which I’ve included a transcription of below.  My guess is that the effort to create a catalog of nonstandard copyright registrations was part of the same effort that produced this circular:

As the acts of Congress relating to copyright are designed to promote the acquisition and diffusion of knowledge, and to encourage the production and publication of works of art; and as the “map, chart, musical composition, print, cut or engraving” to be protected by copyright must have a title applicable to itself, which title is to be recorded, it is therefore held that stamps, labels and other trade-marks of any manufactured article, goods or merchandise are not embraced within the meaning of the acts.2

  1.  https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1507125
  2. Circular reproduced in The Law of Copyright, N.Y. Times, July 25, 1859