This coming term, the Supreme Court will hear Fourth Estate Public Benefit Corp. v. Wall-Street.com, regarding whether a party has standing to sue upon application for copyright, or whether a party must wait for the Copyright Office to register (or reject) their application.  The Supreme Court only occasionally wades into this realm of technical copyright registration issues, and one of the last times the Supreme Court did so in earnest was in the 1939 case of Washingtonian Publishing Co. v. Pearson et al, where a divided court held that a 13 month delay between publication and registration did not invalidate the copyright in the work.  Although the issue is not the same in Fourth Estate, the issues are sufficiently adjacent (and issues of this ilk come before the Court so rarely), it’s unsurprising that Washingtonian v. Pearson is among the most-cited cases in Petitioner’s brief that was filed last month.

While serving as Abraham L. Kaminstein Scholar in Residence at the Copyright Office two years ago, I noticed that the Office has a bound volume of documents from the Washingtonian case, and that the transcript of record from the case available on microfilm and online from Gale includes fewer documents.  I’ve uploaded what I’m calling a “complete” casefile for Washingtonian v. Pearson, including documents from subsequent proceedings in the case after the Supreme Court remanded it.  Several years later the D.C. Circuit Court of Appeals upheld the damages award of the District Court in the amount of $15.46 (plus a worthless judgment against a bankrupt publisher), a number Washingtonian Publishing was none too pleased with, marking an anticlimax to the case.

As well as these documents, I’ve uploaded the testimony from the case following remand, which is to me the most interesting thing I found.  It includes the testimony of Drew Pearson, the defendant in this case, and longtime author of the “Washington Merry-go-Round” column.  From the testimony the broader context of the case becomes more clear – the Washingtonian magazine was owned by the still-famous Mayflower Hotel, which in 1931 declared bankruptcy.  This is why the issues of Washingtonian in question were not registered – they apparently kept publishing, but no funds were available to cover the registrations.  The shadow of the Depression hangs over this case – the corporate defendant Liveright Publishing filed for bankruptcy as well during this time.  It is doubtful that the litigation costs were terribly welcome by any of the parties to this case.

Finally, I’ve uploaded a selection of pleadings from the case that I don’t believe made their way into the transcript of record.  These include a motion to dismiss the case, a motion to strike parts of the defendant’s answer (those focusing on ownership of copyright, or lack thereof), and a motion for rehearing by the plaintiff.  Unlike the previous documents these do share parts of the argument over the issue of copyright formalities, but I don’t know if they actually add new information about the case and its reasoning/argument.

I had hoped to find a transcript of the oral argument from this case to add to my collection, but no such document was in the archives.  It might still exist, but I don’t know where it would be in this case.

One interesting thing about case reporters is that even though the text of reported cases themselves been denied copyright protection by the courts, going all the way back to 1834 in Wheaton v. Peters, case reports have been consistently registered for copyright.  In the latter part of the 1980s, Mead (the service now known as Lexis) introduced star pagination, allowing a reader to identify when a new page began in the printed reporter, which was published by West.  West Publishing sued, and in 1986 the 8th Circuit held that West had shown a likelihood of success that the Mead star pagination feature infringed their copyrights in page numbers, in other words the selection and arrangement of the case text.

In 1988 the parties settled, but concerns lingered about the applicability of copyright to law reporters and other legal compilations.  This was amplified by the 1991 Supreme Court decision in Feist v. Rural Telephone, which cast the holding of the 8th Circuit in the Mead case into some doubt.  In Congress a bill was introduced to make clear that page numbers in legal compilations could not be protected by copyright.  Thus a Congressional hearing was held on May 14th, 1992, before a subcommittee of the House Judiciary Committee, to discuss the issue of whether copyright should protect such things as page numbers.  The text of this hearing has long been available, but I think it’s much more interesting on video, and in some cases it illuminates the content of the hearing as well.  I’ve included the video below.

Robert Fulton is generally remembered as the inventor of the steamboat.  There is some controversy over his debts to previous inventors, but Fulton was the one able to develop a steamboat which was commercially successful, and which led to the rise of steamboat transit.  I hadn’t thought about it much, but his patent in his steamboat is one of the key documents in the history of American invention and technology.  That changed a bit ago when Adam Mossoff tweeted this out about how the patents Robert Fulton took out in his famous steamboat were lost, and I couldn’t just leave it be.

On this date in #innovation history: Robert Fulton gets a second #patent in 1811 for his #invention of first commercially practical steamboat (unfortunately, his patent was lost in the fire that consumed the US Patent Office in 1836) @uspto #PatentsMatter #IndustrialRevolution pic.twitter.com/Q6fs79kQRl

— Adam Mossoff (@AdamMossoff) February 9, 2018

Perhaps nothing gets my attention more than saying that something is “lost,” so I had to look into it.  It turns out that the patents are less lost than has commonly been assumed.  Read More

Two years ago last month, I was reading the trial court opinion from White-Smith v. Apollo from 1905 (the player piano case), and I noticed a cite to a 1878 Supreme Court case I hadn’t heard of before, Perris v. Hexamer.  I gave the decision a read and found that it was about the copyrightability – or rather lack of copyrightability – of using specific colors and shapes to denote features on a map, where the alleged infringing map was of a different city (and thus obviously not copied).  At this time I was about to close out a year as the Abraham L. Kaminstein Scholar in Residence at the U.S. Copyright Office, and I was a bit loathe to admit that I’d never even heard of a Supreme Court case on copyrightability.  So, instead, I asked the coterie of IP professors I’m friends with on Facebook “why don’t people talk about Perris v. Hexamer more?” (the story continues after the jump)

Read More

Below is a video recorded at the U.S. Copyright Office in early 1987, at an event for staff, where Waldo Moore, who had been at the Office since 1951, provided some history of the Copyright Office, and discussed some of the individuals who had held the position of Register of Copyrights.  Moore retired the year before he gave this talk, and William Patry has a nice piece about him on his now-defunct blog.  Much of the material Moore includes in his talk has, to my knowledge, not been published.

I will caution, for those seeking details on recent events, the Moore is quite circumspect about events from 1970 on, preferring to speak about earlier eras.  Looming in the background of the talk was George Cary’s appointment as Register in 1971, which led Barbara Ringer to sue and that appointment to be vacated, at which point George Cary retired and Barbara Ringer was named Register.  George Cary is specifically mentioned as being in the audience for this talk, which would make discussion of the controversy impolitic (it probably would have been even without him in the room).