Transcriptions of Pre-1870 US Copyright Records

Until mid-1870, copyright registration duties were handled by the local U.S. District Court of the author or proprietor, while the work itself was deposited with the Department of State (until 1846), Library of Congress (1846-1859, 1865-1870), Smithsonian Institution (concurrently 1846-1859), and Patent Office (1859-1865, 1865-1870 concurrently).  In 1870 all copyright responsibilities were centralized in the Library of Congress.

I’ve been working on a number of projects regarding these oldest federal copyright records, which I hope to discuss more on this blog.  One of these projects has been to assemble all currently existing printed transcriptions of these records.  As each District Court maintained its own records and the pre-1870 records are still organized by Court, these transcriptions have mostly focused on individual states.  The list follows below: Continue reading “Transcriptions of Pre-1870 US Copyright Records”

9th Circuit Historical Records and Briefs: the United States v. Groucho and Chico Marx

Essentially every case filed on appeal has a printed transcript and briefs created as part of the appellate rules of most courts.  These transcripts are a trove of information about the case, because they contain everything recorded from the trial court, typeset and organized.  The briefs, of course, are the written arguments to the appellate court.  The Records and Briefs of the US Supreme Court (available as a database from Gale or on microfilm) are the best-known set of records, but every US Circuit Court of Appeals and state supreme and intermediate appellate court have such records.

Tonight, I discovered that a substantial cache of briefs from the 9th Circuit of Appeals, which had been collected by the Library at UC Irvine School of Law, are available online through the Internet Archive.  It’s unclear if the UC Irvine Library prepared an index to the volumes, but it doesn’t seem to be online anywhere.  There is a tool called the 9th Circuit Historical Records Index System (or 9chris), using the uncorrected OCR from the Internet Archive, but it’s a little wonky (although it works decently once you get used to it).

One case I did find was The United States v. Groucho & Chico Marx, filed 1937 with the 9th Circuit Court of Appeals, where they were appealing their conviction for criminal copyright infringement.  The LA Times has a bit of information about the case, which concerned the use of a script the brothers had been sent but rejected.  The brothers were fined $1,000 but spared prison time.  In 1938 the 9th Circuit affirmed their conviction.

The case file contains a transcription of the original “Mr. Dibble and Mr. Dabble” sketch, transcripts of testimony from Groucho and Chico Marx , transcripts of radio programs in full, and of course the briefs of all parties.

A few other copyright cases I found, in a quick search:

  • K-91, Inc. v. Gershwin Publishing Corporation, 372 F. 2d 1 (9th Cir. 1967).  Case File
  • Warner Bros. Pictures v. Columbia Broadcasting Sys., 216 F.2d 945 (9th Cir. 1954) Case File (the Maltese Falcon / Sam Spade character copyright case)

There’s plenty more up there.  Surely a treasure trove for anyone looking at litigation on the west coast.

Transcribed Proceedings of CONTU

CONTU, or the Commission on New Technological Uses of Copyrighted Works, was established in 1974 by United States Congress to study issues associated with copyrighted works in computers and computer-related works.1.  The Report examined issues of computers and copyright, as well as other related issues like photocopying, and issued its final report in 1978, which asserted inter alia that copyright could protect a computer program.2  Although the final report of CONTU has been available online for some time, transcripts of the proceedings of CONTU were prepared but have only been available in a haphazard manner, on or off-line.  With this post I’ve endeavored to compile and make available all the transcripts of CONTU.

I have linked to the transcripts of 22 out of 23 meetings of CONTU; the transcript to the 22nd Meeting was not easily available, although it was supposedly only an administrative meeting.  If anyone has it, let me know.  This list is adapted from the online version of Appendix G of the report, available here.

In addition to the transcripts I have digitized some of the Administrative Documents of CONTU (PDF, 4 MB), held by the Library of Congress, including the charter and annual reports from 1977 and 1978.

Links below the fold:

Continue reading “Transcribed Proceedings of CONTU”

  1. Wikipedia, CONTU
  2. The Copyright Office had accepted computer programs for registration since 1964, but the issue of whether this was appropriate lingered.

Another Bibliography, This One for Performers/Sound Recordings

A bit ago I posted about the bibliographies the Copyright Office compiled the three bibliographies of design protection produced by the Copyright Office from 1955 to 1976.  Also in 1955, William Strauss of the U.S. Copyright Office produced a Bibliography on Neighboring Rights, which compiled everything known to have been published, up to that time, on the issue of the rights of performers under copyright, including protection under copyright law for sound recordings.  This book is available in a few law libraries but does not seem to be online, so I figured it made sense to share it here, especially given the recent decision of the New York Court of Appeals in the Flo & Eddie Case.

The Copyright Office did a very substantial study on performance rights for sound recordings in 1978, which included a selected bibliography of its own, commencing on page 1143.

An 1899 Proposal for a Proto-Federal Circuit

Although we tend to think of the idea of a modern appeals court focused on intellectual property issues as a recent phenomenon, in fact there had been attempts as early as 1878 create a specialized patent court.1  The issue of the complexity of intellectual property matters, especially patent law, was already apparent, and this was exacerbated by the creation of the Circuit Courts of Appeal in 1891, and the immediate circuit splits that ensued on patent law and other issues.

In 1898 Sen. Henry C. Hansbrough of North Dakota proposed the creation of a “High Court of Patents, Copyrights, and Trademarks.”2  In the new Congress the following year he reintroduced his bill, this time numbered 56th Cong., S. 1883.  The bill would have created a Court coordinate to the Supreme Court with jurisdiction over intellectual property issues, with seven Justices.  The bill would have also worked a repeal of the 1891 Act creating the Circuit Courts of Appeal and reset the federal Courts to their pre-1891 state, where both the District and Circuit Courts were trial courts with differing jurisdiction.3

Despite some support in industry publications like The American Machinist, this bill never went anywhere, but it was hardly the end of the issue, and bills to create specialized trial or appellate courts for intellectual property would continue for years to come.  The failure of the US Commerce Court in 1913 put a bit of a dent in the push for specialized Article 3 Courts generally, including the push for a specialized court in intellectual property.  The addition of patent jurisdiction to the Article 1 US Court of Customs in 1929 created an appellate patent court, but only for appeals from the Patent Office, not from the District Courts.  It would not be until 1982 that the Federal Circuit Court of Appeals was created to solve the problem of uniformity and expertise that had motivated Hansbrough’s proposal over 80 years earlier.

  1.  Felix Frankfurter, The Business of the Supreme Court of the United States – A Study in the Federal Judicial System, 39 Harv. L. Rev. 587, 615 (1926).  Part 5 of the Frankfurter piece gives the history of these attempts from 1878 through 1920.
  2. 55th Cong., S. 4256
  3. The 1891 Act did not abolish the trial-level Circuit Courts, which continued to exist until the Judicial Code of 1911 became effective

Bibliographies on Design Protection

From 1955 through 1976, the Copyright Office published three bibliographies on the issue of copyright protection for designs.  The first was prepared by Barbara Ringer, later the Register of Copyrights, in 1955.  A supplement was issued four years later.  These have been available online in the past, but the final such bibliogaphy, prepared by Kelsey Martin Mott, was published in 1976 but is not available anywhere online as far as I can tell.  I’ve included all three below.

At oral argument in Star Athletica, one frequent refrain was that design protection had been part of the proposed 1976 Act, but was removed from the bill at the 11th hour before passage.  These bibliographies were produced as part of that effort, to ensure that the Copyright Office and Congress stayed on top of current developments in design protection as the copyright bill wended its way forward over a 20+ year period.

Design protection was proposed again in the early 1990s but ran aground, supposedly due to conflict between carmakers and third-party auto parts manufacturers backed by the insurance industry.1  Time will tell if a new push comes after the decision in Star Athletica.

  1. There’s a nice summary of the history of design protection legislation in the statement then-Register of Copyrights Marybeth Peters gave to Congress in 2006.

Researching Proposed but Failed Amendments to the US Constitution

In the wake of the recent election, there’s been a lot of talk about amending the Constitution regarding the Electoral College, or making other structural changes.1  When I was writing my article In Search of the Trade-Mark Cases about a decade ago I discovered that there had been eight attempts to amend the Constitution to provide for federal trademark law in the United States without the limitations of the Commerce Clause, such as they are.2  I was surprised to discover this, and I wanted to share some of the research methods for finding Constitutional Amendments that did not succeed through US history.

There have been over 11,000 proposed amendments to the US Constitution.3  However, a comprehensive survey of proposed amendments to the Constitution is surprisingly challenging.  The simplest solution nowadays is to use Lexis Congressional, but that’s a subscription service and isn’t easily available to most.4.  Michael J. Lynch’s short article The Other Amendments is an excellent start,5 pointing a reader to indices that provide  constitutional amendments proposed by Congress:

I hope this list is at least somewhat useful.  Looking through these lists, it’s clear there’s a failed Constitutional Amendment for everyone.

  1. Proposals to amend the Constitution to modify or abolish the Electoral College are a long tradition, with at least 700 officially proposed amendments on the subject, according to Fairvote.
  2. There were two attempts in the years immediately following the Supreme Court’s 1897 Decision in the Trade-Mark Cases, another two in 1911 and 1913, most likely surrounding protecting trademarks at the Pan-Pacific Exhibition, and four from 1949-1955, which stemmed from the movement for a registration-based federal trademark system.  This is discussed at length at the end of my article.
  3. The WaPo Article describes a proposed 1911 Amendment to allow Congress to regulate migratory birds as being “unusual,” but any con law nerd will recognize that this was part and parcel of the controversy that led to Missouri v. Holland less than a decade later.
  4. And even many libraries that subscribe don’t have the Congressional Bills and Resolutions portion of the database
  5. The Department of Justice also has a useful guide on its website

The Firing of Rufus L.B. Clarke from the Patent Office in 1895

Both IP historians and con law fans will find interest in this post, about an event that seems to have been poorly reported in the histories up to this point, about the President’s power to remove a senior IP official in the government.

Rufus L.B. Clarke is best remembered, if he is remembered at all, as one of the framers of the Iowa Constitution of 1857, and for arguing for racial equality at that Constitutional Convention.1  Following this Clarke went to Washington, D.C., where he became one of the three Chief Examiners in the Patent Office in 1869, by appointment of the President and consent of the Senate.2  The Board of Examiners-in-Chief were not in charge of examination, but instead constituted a board of appeal of examiner decisions on patents, who formed an intermediate step before a decision would be appealed to the Commissioner.3

Clarke’s career was somewhat bumpy at the Patent Office, and in 1875 the Commissioner of Patents attempted to remove him, as Clarke explained in a letter to President Grant.4  This effort at his removal apparently was unsuccessful, and Clarke remained at the Patent Office as one of their Chief Examiners until 1895, when the President informed Clarke that his employment as Examiner-in-Chief was terminated, effective upon the confirmation of his successor.  He was replaced by one J.H. Brickenstein.

Clarke was born in 1817, and thus at this point was nearly eighty years old.  Nonetheless, he elected to tenaciously fight his removal. Clarke submitted to the Senate a a brief and other supporting documents (PDF, 12 MB) laying out the background of his case, and arguing that the President had no Constitutional power to remove him.5  Clarke made a general argument that the President lacked the authority to remove executive appointees, but also a more specific argument that as a judicial officer, the President lacked the authority as a remove him.    Brickenstein submitted his own memorandum to the Senate in this matter (included in the same PDF file above), arguing that while the Board of Examiners-in-Chief may have been a judicial tribunal, this did not make it an Article III Court with all the protections from removal that the Constitution provides.

There is no documentation of the Senate taking a particular action in regards of Clarke’s petition, and the Official Register of the US Government for subsequent years shows that Brickenstein remained as an Examiner-in-Chief while Clarke did not regain this position.  Clarke lived another fifteen years after his removal, passing in 1910.  The controversy has not generated extensive attention, but it is an interesting one, both in terms of the structure of the Patent Office and in terms of the Presidents authority over quasi-judicial officers.

  1.  Robert R. Dykstra, Bright Radical Star: Black Freedom and White Supremacy on the Hawkeye Frontier 161 (1993).  He was also a delegate to the 1860 Republican Convention that nominated Abraham Lincoln.
  2. Dykstra refers to his subsequent career as a series of “anonymous patronage jobs” in Washington. Id. at 239.
  3. This was a creation of the Patent Act of 1861, 12 Stat. 246
  4.  John Y. Simon, et al, The Papers of Ulysses S. Grant: 1875 at 220.
  5. Parts of this file were reproduced in a print by the Senate Committee on Patents for the 54th Congress, and were subsequently reproduced as part of a CIS Microfilm, now on Proquest Congressional (for subscribers).  It is at CIS Number S3629, SuDoc Number Y4.P27/2:C55.

Copyright Registration of Coat Patterns from 1845

I’ve posted about the oral argument heard before the Supreme Court in the Star Athletica case, and the Supreme Court has since posted the audio of the argument.  Apropos of that, I wanted to share something I found in the 1790-1845 Copyright Record Book for New Jersey.

Before 1870, the individual District Courts registered copyrights on behalf of residents of their respective Districts.  Most of the records made it to Washington, DC when copyright was centralized there in 1870, but a fair number did not.  The records for before 1845 in New Jersey were considered lost for decades until Joseph Felcone transcribed them.  The original that he used to create his transcription is now in the National Archives Regional Division in New York City, and I digitized that volume today as part of a larger project that I’ll be talking about much more in the coming weeks and months.

In the copyright record book was a complete copy of a pamphlet from 1845, entitled Index of Fashion for Fall A.D. 1845 (PDF, 592kb).  The volume contains some prefatory information, but it is largely patterns for garments and instructions on how to make them.  It does not appear that any issue was seen with the copyright registration of this document,1 and indeed a similar volume had been deposited earlier that year:

idxoffashionsummer

  1. While uncommon, District Courts did sometimes reject copyright applications, for instance in the case of Patent Medicines, as I have written about in the past.

How Copyright Came to the Library of Congress

With recent events, new focus has been put upon the relationship between the US Copyright Office and the Library of Congress.  I think it’s worth exploring a bit of how things got this way.  In this post, I’ll explicate a bit on how copyright ended up in the Library of Congress, and in a subsequent post I’ll explore how the Copyright Office became its own entity.  I’ve already posted a bit about the early interactions between the Library of Copyright and nascent Copyright Office, and I hope to post more about that as well.

As most people who dabble in copyright know, copyright in America has generally consisted of three parts: Notice, Registration, and Deposit.  The notice is generally an act taken by the author or his/her assignee (generally the publisher)to provide notice of copyright – in the very beginning this actually required publishing a notice in a newspaper, but mostly all that has been required is placing a copyright notice on the work.  Registration is of course the act of registering the work for copyright with the statutorily-designated register.  Deposit is the act of depositing one or more copies pursuant to the statute.

From 1790 to 1846, Copyrighted works were registered with the local federal district court, and the registration was only perfected when copies were deposited with the Secretary of State in Washington DC – at first directly by the author/publisher, and later by the clerk of the District Court in bulk.  However, in 1846 the act establishing the Smithsonian Institution contained a provision requiring deposit of copies registered for copyright with both the new Smithsonian and the Library of Congress.1  This provision was not part of the original versions of the act, but instead was proposed orally by Stephen Douglas (of Lincoln/Douglas fame) as the final amendment offered before the successful vote on the bill in the House.2  Accordingly, there is precious little legislative history for the change, although it does generally fit into the Smithson bequest’s requirement that it be used to fund “an establishment for the increase and diffusion of knowledge among men.”

However, the Smithsonian Institution was never particularly happy with being a depository for copyright books, and in 1859, with the acquiescence of the Librarian of Congress, Congress shifted the venue for copyright deposit to the Patent Office.  And even as these changes for copyright deposit ensued, copyright registration had steadfastly remained with the local district courts.  In 1862 a bill was introduced in the House of Representatives to move copyright registration to the Patent Office and divest the District Courts of their registration duties.  In response, a group of publishers sent a memorial (PDF, 1MB) to Congress, protesting any such change.  The bill never gained any traction, although it is possible there were simply higher priorities in Congress in 1862.

In 1865, the newly-appointed Librarian of Congress, Ainsworth Spofford, was able to insert language into the law adding photographs to copyright law revitalizing the requirement of deposit of copyrighted works with the Library of Congress.3  The new librarian vigilantly lobbied to increase the role of the Librarian of Congress, and when a friend of Spofford’s was appointed the new commissioner of Patents in 1869, the resistance to Spofford’s efforts faded away.4  In 1870 the only omnibus revision of intellectual property law in American history was passed, and one of its changes was the transfer of all copyright registration and deposit activities to the Library of Congress.

This story continues with the story of how the Copyright Office formed

  1. 9 Stat. 102, 106.  The relevant §10 of the Law stated that “the author or proprietor of any book, map, chart, musical composition, print, cut, or engraving, for which a copyright shall be secured under the existing acts of Congress, or those which shall hereafter be enacted respecting copyrights, shall, within three months from the publication of said book, map, chart, musical composition, print, cut, or engraving, deliver, or cause to be delivered, one copy of the same to the librarian of the Smithsonian Institution, and one copy to the librarian of Congress Library, for the use of the said libraries.”  An amendment was proposed by Sen. Dix to replace “Congress Library” with “Library of Congress,” but this amendment did not succeed.
  2. Pg. 749 of the Congressional Globe, April 29, 1846
  3.  13 Stat. 540.
  4. This is discussed in more detail in the footnotes to William Patry’s Copyright Law and Practice.