Bleistein v. Donaldson Lithographing Company, 188 U.S. 239 (1903), is a case in which the United States Supreme Court found that advertisements were protected by copyright. The case is now cited for the proposition that commercial speech can be protected by copyright.
The named plaintiff was George Bleistein, an employee of the Courier Lithographing Company. The company had been hired by Benjamin Wallace, owner of a traveling circus called the "Great Wallace Show" (which would later become the Hagenbeck-Wallace Circus) to design and produce a number of chromolithographs used to produce posters to promote the circus. The posters featured images from the circus, such as ballet dancers and acrobats. When Wallace ran out of posters, rather than ordering more from the plaintiff, Wallace hired the Donaldson Lithographing Company - a competitor of the plaintiff - to manufacture copies of three of those posters. Courier (and Bleistein, in name) sued Donaldson for copyright infringement. Donaldson objected on the basis that the posters were merely advertisements, and thus should not be considered eligible for copyright protection either under the Constitution of the United States or under the controlling Copyright Act of 1870. The United States Court of Appeals for the Sixth Circuit held that the posters were not amenable to copyright protection, and Courier appealed.
The PostersEdit
Holmes described the posters as being "of an ordinary ballet", of "the Stirk family, performing on bicycles", and of "men and women whitened to represent statues".
"an ordinary ballet"
"the Stirk family, performing on bicycles"
"men and women whitened to represent statues"
Opinion of the CourtEdit
Justice Oliver Wendell Holmes Jr., writing for the Court, found that it was irrelevant that the posters were made for advertising. Holmes laid out this ruling in language which has become well-worn in copyright case law:[1]
It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits. At the one extreme, some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke. It may be more than doubted, for instance, whether the etchings of Goya or the paintings of Manet would have been sure of protection when seen for the first time. At the other end, copyright would be denied to pictures which appealed to a public less educated than the judge. Yet if they command the interest of any public, they have a commercial value -- it would be bold to say that they have not an aesthetic and educational value -- and the taste of any public is not to be treated with contempt.
DissentsEdit
A dissenting opinion was submitted by Justice Harlan, joined by Justice McKenna, agreeing with the Sixth Circuit that advertising posters "would not be promotive of the useful arts within the meaning of the constitutional provision", and were therefore not "fine art" for the Constitution permitted protection.
ReferencesEdit
^Bleistein v. Donaldson Lithographing Co., 188U.S. 239 (1903).
Further readingEdit
Diane Leenheer Zimmerman, "The Story of Bleistein v. Donaldson Lithographing Company: Originality as a Vehicle for Copyright Inclusivity", in Jane C. Ginsburg and Rochelle Cooper Dreyfuss, Intellectual Property Stories (2005), pp. 77–108.
External linksEdit
Text of Bleistein v. Donaldson Lithographing Co., 188U.S. 239 (1903) is available from:CourtListenerGoogle ScholarJustiaLibrary of Congress
October 18, 2023
bleistein, donaldson, lithographing, bleistein, donaldson, lithographing, company, 1903, case, which, united, states, supreme, court, found, that, advertisements, were, protected, copyright, case, cited, proposition, that, commercial, speech, protected, copyri. Bleistein v Donaldson Lithographing Company 188 U S 239 1903 is a case in which the United States Supreme Court found that advertisements were protected by copyright The case is now cited for the proposition that commercial speech can be protected by copyright Bleistein v Donaldson Lithographing CompanySupreme Court of the United StatesSubmitted December 13 1883Decided February 2 1903Full case nameGeorge Bleistein et al v Donaldson Lithographing CompanyCitations188 U S 239 more 23 S Ct 298 47 L Ed 460 1903 U S LEXIS 1278Case historyPriorJudgment for defendant Courier Lithographing Co v Donaldson Lithographing Co 104 F 996 6th Cir HoldingIllustrations created primarily for the purpose of advertising are within the protection of copyright Court membershipChief Justice Melville Fuller Associate Justices John M Harlan David J BrewerHenry B Brown George Shiras Jr Edward D White Rufus W PeckhamJoseph McKenna Oliver W Holmes Jr Case opinionsMajorityHolmes joined by Fuller Brown White Brewer Shiras PeckhamDissentHarlan joined by McKennaLaws appliedU S Const art I U S Rev Stat 4952 4965 Copyright Act of 1874 Contents 1 Facts 1 1 The Posters 2 Opinion of the Court 3 Dissents 4 References 5 Further reading 6 External linksFacts EditThe named plaintiff was George Bleistein an employee of the Courier Lithographing Company The company had been hired by Benjamin Wallace owner of a traveling circus called the Great Wallace Show which would later become the Hagenbeck Wallace Circus to design and produce a number of chromolithographs used to produce posters to promote the circus The posters featured images from the circus such as ballet dancers and acrobats When Wallace ran out of posters rather than ordering more from the plaintiff Wallace hired the Donaldson Lithographing Company a competitor of the plaintiff to manufacture copies of three of those posters Courier and Bleistein in name sued Donaldson for copyright infringement Donaldson objected on the basis that the posters were merely advertisements and thus should not be considered eligible for copyright protection either under the Constitution of the United States or under the controlling Copyright Act of 1870 The United States Court of Appeals for the Sixth Circuit held that the posters were not amenable to copyright protection and Courier appealed The Posters EditHolmes described the posters as being of an ordinary ballet of the Stirk family performing on bicycles and of men and women whitened to represent statues nbsp an ordinary ballet nbsp the Stirk family performing on bicycles nbsp men and women whitened to represent statues Opinion of the Court EditJustice Oliver Wendell Holmes Jr writing for the Court found that it was irrelevant that the posters were made for advertising Holmes laid out this ruling in language which has become well worn in copyright case law 1 It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations outside of the narrowest and most obvious limits At the one extreme some works of genius would be sure to miss appreciation Their very novelty would make them repulsive until the public had learned the new language in which their author spoke It may be more than doubted for instance whether the etchings of Goya or the paintings of Manet would have been sure of protection when seen for the first time At the other end copyright would be denied to pictures which appealed to a public less educated than the judge Yet if they command the interest of any public they have a commercial value it would be bold to say that they have not an aesthetic and educational value and the taste of any public is not to be treated with contempt Dissents EditA dissenting opinion was submitted by Justice Harlan joined by Justice McKenna agreeing with the Sixth Circuit that advertising posters would not be promotive of the useful arts within the meaning of the constitutional provision and were therefore not fine art for the Constitution permitted protection References Edit Bleistein v Donaldson Lithographing Co 188 U S 239 1903 Further reading EditDiane Leenheer Zimmerman The Story of Bleistein v Donaldson Lithographing Company Originality as a Vehicle for Copyright Inclusivity in Jane C Ginsburg and Rochelle Cooper Dreyfuss Intellectual Property Stories 2005 pp 77 108 External links EditText of Bleistein v Donaldson Lithographing Co 188 U S 239 1903 is available from CourtListener Google Scholar Justia Library of Congress Retrieved from https en wikipedia org w index php title Bleistein v Donaldson Lithographing Co amp oldid 1177934693, wikipedia, wiki, book, books, library,
