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18A Authority and boundaries of the law

Where to Look in the Law

This section involves decisions where the law or its propriety was not entirely clear.  As such, there isn’t a law nor laws to cite.  Where particular laws come into relevance within a particular case, they are indicated therein.

What the Supreme Court Ruled


Bleistein vs Donaldson Lithographing Co.

188 U.S. 239 (2-2-1903)

“The alleged infringements consisted in the copying in reduced form of three chromolithographs prepared by employees of the plaintiffs for advertisements of a circus owned by one Wallace… .  The circuit court directed a verdict for the defendant on the ground that the chromolithographs were not within the protection of the copyright law, and this ruling was sustained by the circuit court of appeals… .

“It is obvious also that the plaintiff’s case is not affected by the fact, if it be one, that the pictures represent actual groups,—visible things.  They seem from the testimony to have been composed from hints or description, not from sight of a performance.  But even if they had been drawn from the life, that fact would not deprive them of protection.  The opposite proposition would mean that a portrait by Velasquez or Whistler was common property because others might try their hand on the same face.  Others are free to copy the original.  They are not free to copy the copy… .

“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.  It is an ultimate fact for the moment, whatever may be our hopes for a change.  That these pictures had their worth and their success is sufficiently shown by the desire to reproduce them without regard to the plaintiffs’ rights.”


White-Smith Music Publishing Co. vs Apollo Co.

209 U.S. 1 (2-24-1908)

This case involved player-piano rolls, a fairly new invention at the time of this case.

“Music, it is argued, is intended for the ear as writing is for the eye, and that it is the intention of the copyright act to prevent the multiplication of every means of reproducing the music of the composer to the ear.

“On the other hand, it is contended that while it is true that copyright statutes are intended to reward mental creations or conceptions, that the extent of this protection is a matter of statutory law, and that it has been extended only to the tangible results of mental conception, and that only the tangible thing is dealt with by the law, and its multiplication or reproduction is all that is protected by the statute.”

“[I]t has been held that such mechanical producers of musical tones as are involved in this case have not been considered to be within the protection of the copyright act; and that, if within the power of Congress to extend protection to such subjects, the uniform holdings have been that it is not intended to include them in the statutory protection given.  While it may be that the decisions have not been of that binding character […], it must be admitted that the decisions so far as brought to our attention […] have been uniformly to the effect that these perforated rolls operated in connection with mechanical devices for the production of music are not within the copyright act.”

The Court then looked at how other countries have handled this matter and at Congress having had the opportunity to amend the law, which it did not.  Further, it “is clearly established in the testimony in this case that even those skilled in the making of these rolls are unable to read them as musical compositions, as those in staff notations are read by the performer.  It is true that there is some testimony to the effect that great skill and patience might enable the operator to read this record as he could a piece of music written in staff notation [yet the rolls] are not intended to be read as an ordinary piece of sheet music…

“These perforated rolls are parts of a machine which, when duly applied and properly operated in connection with the mechanism to which they are adapted, produce musical tones in harmonious combination. But we cannot think that they are copies within the meaning of the copyright act.

“It may be true that the use of these perforated rolls, in the absence of statutory protection, enables the manufacturers thereof to enjoy the use of musical compositions for which they pay no value. But such considerations properly address themselves to the legislative, and not to the judicial, branch of the government. As the act of Congress now stands we believe it does not include these records as copies or publications of the copyrighted music involved in these cases.”


Eric Eldred, et al.* vs Janet Reno, Attorney General

D.D.C. (10-28-1999) ¤ 74 F.Supp. 2d 1
D.C. Cir. (2-16-2001) ¤ 239 F.3d 372, affirmed; 255 F.3d 849, rehearing and rehearing en banc denied
U.S. Supreme Court cert. granted, 534 U.S. 1126 (2-19-2002); order granting cert. amended, 534 U.S. 1160 (2002)

Eric Eldred, et al.* vs John D. Ashcroft, Attorney General

537 U.S. 186 (1-15-2003)

Eldred and other petitioners operated businesses offering “products or services [which] build on copyrighted works that have gone into the public domain”.  Until 1998, they could be confident that any copyrighted American works over 75 years of age had fallen out of copyright.  (At the end of 1997, all such works from 1922 lost whatever copyright they had.)  In 1998, the U.S. Congress passed the Copyright Term Extension Act (abbreviated CTEA; Act also referred to as the Sonny Bono act), which expanded all American copyrights still in effect an additional twenty years.  On pre-1978 works, copyrights would last for 95 years rather than 75 years, and 1923 copyrights which previously would have expired at the end of 1998 instead were rescheduled to expire at the end of 2018.

The petitioners argued that under the U.S. Constitution, (1) the mention of “limited Times” for copyrights precluded “enlarging the term for published works with existing copyrights”, and (2) “the First Amendment’s free speech guarantee” were interfered with by the term extension.  (Note: “Petitioners do not challenge the CTEA’s ‘life-plus-70-years’ time span itself. They maintain that Congress went awry not with respect to newly created works, but in enlarging the term for published works with existing copyrights.”)

The Attorney General responded that the Act passed by Congress is lawful, “holding that the CTEA does not violate the Copyright Clause’s ‘limited Times’ restriction because the CTEA’s terms, though longer than the 1976 Act’s terms, are still limited, not perpetual, and therefore fit within Congress’ discretion.  The [District Court] also held that there are no First Amendment rights to use the copyrighted works of others.  The District of Columbia Circuit affirmed.”

Regarding the complaint that copyright terms were being extended beyond what could be considered “limited Times”, the Supreme Court affirmed the findings of the lower courts, which it summarized as follows: “The court found nothing in the constitutional text or history to suggest that a term of years for a copyright is not a ‘limited Time’ if it may later be extended for another ‘limited Time.’”

Regarding the complaint that the First Amendment guarantees of free speech were curtailed by the extension, the Supreme Court affirmed the findings of the court below it: “The appeals court reasoned that copyright does not impermissibly restrict free speech, for it grants the author an exclusive right only to the specific form of expression; it does not shield any idea or fact contained in the copyrighted work, and it allows for ‘fair use’ even of the expression itself.”  “[T]he ‘fair use’ defense codified at §107 allows the public to use not only facts and ideas contained in a copyrighted work, but also expression itself for limited purposes.  ‘Fair use’ thereby affords considerable latitude for scholarship and comment, and even for parody”.

Elaborations concerning the legitimacy of extending copyright duration:

The Supreme Court did not accept the position held by petitioners that although new copyrights could be granted the longer term, older copyrights should be held to the shorter terms already in place.  What the Court found instead was “Congress’ unbroken practice since the founding generation of applying new definitions or adjustments of the copyright term to both future works and existing works”.  “History reveals an unbroken congressional practice of granting to authors of works with existing copyrights the benefit of term extensions so that all under copyright protection will be governed evenhandedly under the same regime… .  The CTEA follows this historical practice by keeping the 1976 Act’s duration provisions largely in place and simply adding 20 years to each of them.”

The Supreme Court recognized that the Congress had both the authority to extend copyrights and a legitimate reason to do so.  Four years before the extension legislation, the United States had entered into reciprocal copyright recognition agreements with most of the other countries of the world.  “A key factor in the CTEA’s passage was a 1993 European Union (EU) directive instructing EU members to establish a baseline copyright term of life plus 70 years and to deny this longer term to the works of any non-EU country whose laws did not secure the same extended term.  By extending the baseline United States copyright term, Congress sought to ensure that American authors would receive the same copyright protection in Europe as their European counterparts” do there.

The Supreme Court looked upon CTEA as “a rational exercise of the legislative authority conferred by the Copyright Clause.  On this point, the Court defers substantially to Congress.  The CTEA reflects judgments of a kind Congress typically makes, judgments the Court cannot dismiss as outside the Legislature’s domain.”

The Supreme Court justices ruled 7-2 in favor of this verdict.

(EDITOR’S NOTE: the lead counsel for Eldred, et al., was Lawrence Lessig, who has been at the forefront of advocacy for legalizing noncommercial file-sharing web-site and for permitting compilation (remixing) of existing works without permissions.  Those wanting to know more about his views can find them on his blog and elsewhere on the internet.  These statements do not constitute an endorsement by the proprietor of

(SECOND EDITOR’S NOTE: Criticism against CTEA and the Eldred v. Ashcroft decision often derides the legislation as the “Mickey Mouse Act” and an Act “bought and paid for” by the Walt Disney Company.  Gripes common on the internet state that Disney managed to get the Act passed just months before Mickey Mouse would have fallen into the public domain.  However, lobbying by Disney would not explain the legislation having been passed when it was nor why the extensions began with the 1923 copyrights rather than those of a later year.  At the time of the 1998 Act, Disney did not own any copyrights with beginning dates earlier than 1928.  The CTEA could have been passed as late as 2003 without any effect on the company’s exclusive use of Mickey Mouse or any other property.  Nothing in the preceding remarks should be taken to deny that Disney did pay for a lobbying effort to urge extension of copyrights.)

[* The “et al.” in this case included Eldritch Press (internet site), Higginson Book Company (reprint publisher), Jill A. Crandall, Tri-Horn International, Luck’s Music Library, Inc., Edwin F. Kalmus & Co. (sheet music publisher), Inc., American Film Heritage Association, Moviecraft, Inc., Dover Publications, Inc., Copyright’s Commons (advocacy organization), and such amici as the Free Software Foundation, the American Association of Law Libraries, and the College Art Association.  The Attorney General’s side was joined as amici by the Motion Picture Association of America, the Recording Industry Association of America (RIAA), American Society of Composers, Authors, and Publishers (ASCAP), Broadcast Music Incorporated (BMI), The Sherwood Anderson Literary Estate Trust, The Sherwood Anderson Foundation, National Music Publishers Association, Inc., and The Songwriters Guild of America.]

(“Fair use” under copyright law is the subject of a full, lengthy page elsewhere on this web site.  Harper & Row v. Nation Enterprises, the first case summarized on that page, was discussed in the Supreme Court decision in Eldred v. Ashcroft.)

What the Lower Courts Ruled


Metro-Goldwyn-Mayer Distributing Corporation vs Bijou Theatre Co. of Holyoke, et al.

D.C.Mass (3-13-1933) ¤ 3 F.Supp. 66

The Bijou Theatre did something blatantly against its license agreement with MGM: it exhibited each of many MGM films for one day longer than they contracted for.  In its defense, the theater company argued that the copyrights were invalid in that the films were registered in class L even many were founded on stories that originated with the film production.  The defendant argued that a Circuit Court of Appeals decision had indicated that unless a motion picture photoplay “is founded on copyrighted novels, dramas, scenarios, or other dramatic compositions, or upon dramatic productions of which the plaintiff is the sole proprietor, the plaintiff fails to show any infringement of its copyright.”  The trial Court hearing this case answered, “This is not the decision of the circuit court of appeals, nor am I satisfied that by way of dictum the circuit court of appeals has indicated that such would be its decision.”  The decision cites article I, sec. 8, cl. 8, of the Constitution, which uses the word “writings” in the sense that it has included “maps, charts, designs, engravings, cuts, and other prints, as well as photographs”.  Regardless of what the MGM films were based on, whether previously created for another medium or not, so long as the completed films were of a dramatic nature, they belonged in class L.


Marx et al vs United States

C.C.A., 9th Cir. [Cal.] (4-12-1938) ¤ 96 F.2d 204, 37 USPQ 380

The plaintiffs had committed a brazen infringement of a copyrighted unperformed radio script.  Although one of the two authors (brothers Garrett and Carroll Graham) had told the plaintiffs (in August 1935) that they had copyrighted their script, the plaintiffs on September 1, 1936, broadcast “in somewhat altered but plainly recognizable form the copyrighted material which had been submitted by the Grahams.”  Al Boasberg, who had been at the August 1935 meeting with the Grahams and the appellants, had been the only person contracted to supply the script for the 1936 broadcast.  After losing in lower court, the infringers sued the government for what they regarded as elastic laws.  The appellants argued in their defense that Section 11 of the Copyright Act “is unconstitutional.”  Citing the Constitution, “The argument is that no duration is prescribed for copyrighted works of which copies are not reproduced for sale”.

As to the argument that the Grahams’ script was not published (not that an unpublished work was not entitled to copyright protection), the Court ruled: “‘Publication’ in Section 23 of Copyright Act of 1909 has no definite and fixed meaning; it may mean one thing as related to published works and another thing as to works not reproduced for sale: there may be a limited publication.”

As to the argument that “no duration is prescribed” and that the Constitution (Article I, section 8) merely “empowers congress to secure to authors for a limited time, only,” the Court ruled that Congress had decided what “a limited time” was: “Congress intended that the time limit prescribed by sec. 23 should have application to all copyrights secure by this act… . In view of the declared purpose to limit all copyrights to twenty-eight years, sec. 23 should be construed, in the case of works of which copies are not reproduced for sale, as having reference to the date of deposit.”  (The Grahams’ script had been.)

(The appellants’ had further arguments that “the indictment is insufficient” but these were easily answered by the Court.)

Appellant Marx fared much better as a radio entertainer when a decade later he began to host a largely-unscripted quiz show entitled You Bet Your Life.


Vacheron & Constantin-le Coultre Watches, Inc. vs Benrus Watch Company

USDC SDNY (9-27-1957) ¤ 155 F.Supp. 932, 115 USPQ 115

Vacheron & Constantin-le Coultre Watches, Inc. vs Benrus Watch Company

USCA 2nd Cir (10-21-1958) ¤ 260 F.2d 637, 119 USPQ 189

The lower court ruled that a watch is not a work of art.  The watch in this lawsuit had a patent, which had been infringed, thus there could be an action on the patent violation, but not a verdict for copyright infringement.

On appeal, the suit was dismissed, although the patent infringement was “remanded for trial”.  The Judge in the appeals case wrote (regarding the Register of Copyrights who had refused the plaintiff’s copyright application) that “it might be argued that Register’s decision whether the plaintiff’s wrist watch was a ‘work of art’… involved such an exercise of discretion that ‘mandamus’ will not go to review it.  It is true that ‘works of art’ is a loose phrase whose perimeters is hard to define; nevertheless, the decision here did not demand the exercise of a discretion that was conclusive with the Register.  There were no disputed facts, and the mere fact that the meaning of the phrase, ‘works of art’, admits of debate does not make it different from many statutes whose interpretation is every day regarded as reviewable by the courts.”

Other Information


From the dissent in Stewart v. Abend (1990):

“While the fact that the radio was not developed at the time the Copyright Act … was enacted may raise some question as to whether it properly comes within the purview of the statute, it is not by that fact alone excluded from the statute. In other words, the statute may be applied to new situations not anticipated by Congress, if, fairly construed, such situations come within its intent and meaning… . While statutes should not be stretched to apply to new situations not fairly within their scope, they should not be so narrowly construed as to permit their evasion because of changing habits due to new inventions and discoveries.”


Cases Summarized in Other Sections

Dr. Oliver Wendell Holmes vs George D. Hurst (launch this) was the Supreme Court decision that copyright protects “intellectual production”, which is different from “the particular form”.  The Court thus reasoned that when the word “book” appears in the statute, it is to be interpreted broadly.




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