Table of Contents:

- Statutory Revision

- Amendments to the 1976 Act

Chapter 1 – Introduction

Statutory Revision

Following the 1790 Act, there were omnibus revisions in 1831, 1870, 1909, and 1976. In between each of these general revisions there were amendments to particular provisions, or grants of new subject matter, rights, or remedies. In order to give a flavor of the development of our copyright law, we shall review the various revisions chronologically.

The 1802 Prints and Notice Amendment

Gradually, new copyrightable subject matter was developed and the scope and term of protection enlarged. In 1802, the 1790 Act was amended to include “historical and other prints,”108 and to require, for the first time, copyright {Page 37} owners to include a prescribed notice on every copy of the work distributed to the public.109 The consequences for failure to affix the required notice were not spelled out; however, in Ewer v. Cox, the court held that failure to comply with the requirement and the prerequisites set forth in the 1790 Act resulted in a lack of protection.110 At the same time, affixation of a fraudulent notice {Page 38} was made punishable by a fine of $100.111 The penalty for infringement of prints was $1 per infringing print, qui tam.

The 1802 Act was more expansive, or at least more specific, in the scope of protection, than the 1790 Act, declaring it to be an infringement if any print-seller or “other person whatsoever” caused to be “engraved, etched, copied or sold, in the whole or in part, by varying, adding to, or diminishing from the main design . . . without the consent of the proprietor. . . .”

The 1819 Jurisdictional Amendment

In 1819, original (but not exclusive) jurisdiction over copyright and patent cases was granted to the federal courts,112 ending an anomaly under which state courts heard federal statutory copyright cases. The federal courts had previously been unable to hear such cases unless diversity of citizenship existed.113 This amendment also expressly provided that actions for copyright infringement could be brought in the equity courts, and gave the circuit courts the power to grant injunctions to prevent infringement.

The 1831 General Revision

In 1831, the first of what have been four general revisions of the original Copyright Act occurred.114 Principal among the changes made by this revision {Page 39} were express protection for musical compositions (but without a right of performance)115 and for all types of cuts and engravings; extension of the original term of copyright from 14 to 28 years (still measured from the date of filing the title in the district court); restriction of ownership of the renewal term of 14 years to the author or his or her widow(er) and/or children (and vesting the renewal in them if the author died during the first term);116 extension of the statute of limitations for actions for damages from one to two years;117 and elimination of the requirement that for the original term a notice of claim of copyright be published in a newspaper.118 The form of notice required on copies was simplified.119 At the same time, however, the Act for the first time made clear that affixation of notice on all copies was a condition precedent to protection. Deposit copies were to be delivered to the clerk of the district court within three months after publication. The clerk, on at least an annual basis, was required to transmit the copies, along with certified duplicates of the records, to the Secretary of State.

The 1834 Recordation Amendment

In 1834, the 1790 Act was amended to permit, for the first time, recordation of assignments of copyright.120 Although failure to record did not result in loss {Page 40} of protection, an assignment not recorded within 60 days of the execution was to be “judged fraudulent and void against any subsequent purchaser or mortgagee for valuable consideration without notice.”121

The 1846 Deposit Amendment

In 1846, the Act was amended to require the deposit of one copy of each published work with the Smithsonian Institution (both the requirement of deposit and the Institution itself were established by the Act) and an additional copy with the Library of Congress.122 These copies were in addition to those required to be sent to the Secretary of State.123

The requirement of deposit of those additional copies represented a change in philosophy. Up to this time, deposits were retained by the Secretary of State for preservation purposes only. The deposit requirement for the Library of Congress and the Smithsonian Institute, on the other hand, was motivated by an apparent desire to further knowledge through having the copies available for use.124 Copyright deposits eventually became an important source for the development of the collections of the Library of Congress;125 however, the lack {Page 41} of any enforcement provision in the 1846 Act for failure to deposit with the Smithsonian and the Library, and a court ruling that failure to make these deposits did not invalidate the copyright,126 provided impediments to fulfillment of the Act’s goals.

The 1855 Postal Amendment

In 1855, Congress passed legislation permitting the postage-free mailing of the required deposit copies, presumably to encourage compliance with the law.127

The 1856 Public Performance Amendment

In 1856, the first right of public performance was granted, although it was limited to dramatic compositions.128 The right was not limited to for-profit performances. Violations of the right were to be “assessed at [a] sum not less than one hundred dollars for the first, and fifty dollars for every subsequent performance, as to the court having cognizance thereof shall appear to be just.” This provision represents the first time minimum statutory damages were included in the federal Copyright Act.129 The 1856 Act’s greatest effect was, unexpectedly, on the scope of copyright protection, {Page 42} as the courts expanded infringement findings well beyond the literal words of the dramatic composition.130

The 1859 Deposit Amendment

By an act of 1859, the records and copies of works previously deposited with the State Department were ordered transferred to the Patent Office (at that time a unit of the Interior Department), which then assumed the State Department’s responsibilities.131 At the same time, the law requiring copies to be deposited with the Smithsonian Institution and the Library of Congress was repealed, at the request of the Secretary of the Smithsonian, Joseph Henry, and with the acquiescence of the Librarian of Congress, John Meehan.132

The 1861 Appeals Amendment

In 1861, appeals to the Supreme Court from all judgments and decrees of circuit courts in copyright and patent cases were provided for “in the same manner and under the same circumstances as is now provided by law in other judgments or decrees of such circuit courts, without regard to the sum or value in controversy in the action.”133

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The 1865 Photography and Deposit Amendments

In 1865, copyright protection was extended to photographs.134 At the same time, however, loss of the exclusive right of publication for all classes of works was provided for in cases where the claimant failed to comply with the reestablished requirement of deposit with the Library of Congress (but not the Smithsonian), if the deposit copy was not provided within one month after a request therefor had been made.135

The 1867 Library of Congress Deposit Amendment

In 1867, upon the complaint of the Librarian of Congress Ainsworth Spofford that publishers were not depositing their works with the Library, a penalty of $25 was added for the failure to deposit works within one month after publication.136

The 1870 General Revision

In 1870, the second general revision of the Act occurred.137 This revision had a dramatic effect on the future of copyright law. First, over the objections {Page 44} of authors and publishers,138 all responsibility for administration of copyright matters was transferred to and centralized in the Library of Congress. The Librarian established a small “Copyright Department” to aid him in discharging this responsibility (which grew as the number of claims increased, until, in 1897, a Register of Copyrights was appointed).139 Second, the scope of protected {Page 45} subject matter and rights accorded existing subject matter were greatly expanded. Paintings,140 drawings, chromolithographs, statues and statuaries, and “models or designs intended to be perfected as works of fine art” were protected for the first time. Damages for infringement of these works were set at $10 per copy. At the same time, a right of translation was provided,141 and the right of dramatization was extended to all works.142

The deposit requirement was increased to two copies,143 the time for deposit was reduced from 1 month to 10 days after publication, and it was provided that “no person shall be entitled to a copyright” unless the deposit requirement was met. Compliance with the notice requirement was somewhat softened: rather than being a precondition to protection, compliance was a prerequisite only to the maintenance of an infringement action.

Centralizing copyright administration in the Library of Congress had the {Page 46} effect of dramatically increasing the number of registrations.144 In the December 1, 1870, annual report to Congress, Librarian of Congress Ainsworth Spofford stated that “upward of five thousand copyrights have been recorded in the [Librarian’s] Office during less than six months operation of the law.” Mr. Spofford went on to complain that he had been “obliged to employ two of the Library force constantly upon the business of recording copyrights and preparing certificates of the same, besides devoting more than half of my own time to the prompt dispatch of the business involved.”145 A request for increased funds for additional personnel followed.

1871, the first full year under the new Act, saw a substantial increase in the number of works received, to more than 19,000, with the Librarian of Congress stating that the centralization “appears to give uniform satisfaction to the authors and publishers of the country.”146 The number of works submitted in 1872 increased to more than 22,000, many of which were commercial labels. The 1872 annual report of the Librarian to Congress, accordingly, contained a plea that “mere printed labels” should be protected by the Patent Office as trademarks or “designs for labels.” The Librarian took the position that without pictorial embellishment, such labels were not the “writings of authors” within the meaning of the Constitution. The Librarian proposed, therefore, that the Act be amended to exclude “all prints, cuts, or engravings which are intended to be used upon any article of manufacture (except books). . . .”147

The 1873 Jurisdictional Amendment

In 1873, the federal courts were finally given exclusive jurisdiction over copyright cases. This Act was otherwise a reenactment of the 1870 Act.148

The 1874 Print and Notice Amendments

In 1874, the notice provision, which had required the designation “Entered according to act of Congress, in the year ____ by ____, in the office of the Librarian of Congress, at Washington” to be affixed to all published {Page 47} copies, was amended to permit, as an alternative, the affixation of the word “Copyright” together with the year in which the title was registered and the name of the author.

Acting on the Librarian’s request, Congress also amended the statute by providing:

[I]n the construction of this act, the words “Engraving,” “cut” and “print” shall be applied only to pictorial illustrations or works connected with the fine arts, and no prints or labels designed for use for any other articles of manufacture shall be entered under the copyright laws, but may be registered in the Patent Office.149

By virtue of this provision, the Patent Office began issuing certificates of copyright for prints and labels designed for use with manufactured goods, a procedure that continued until 1940.

The 1879 Post Office Amendment

In the Post Office Appropriations Act for 1879, a provision was included that arguably made unlawful the “transmission through the mails of any publication which violates any copyright.”150 The purpose of this provision was to permit foreign newspapers and periodicals to be mailed second class. The final sentence of the two-sentence section read: “Nothing in this act shall be construed as to allow the transmission through the mails of any publication which violates any copyright granted by the United States.”

One possible reading of this language (the author submits, the preferable one) is that it reflected Congress’s intention of ensuring that the provision did not inadvertently create a defense to an existing right. Another (but dubious) interpretation is that the Act created a new right, prohibiting the use of the mails for the shipment of infringing articles.151

The 1882 Useful Articles Notice Amendment

The shifting of responsibility for commercial labels to the Patent Office in the 1874 Act did not reflect a general hostility to copyright in designs incorporated in articles of commerce as is seen in this amendment, which provided for a less restrictive notice for such works:

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[M]anufacturers of designs for molded decorative articles, tiles, plaques, or articles of pottery or metal subject to copyright may put the copyright mark prescribed . . . upon the back or bottom of such articles, or in such other place upon them as it has been usual for manufacturers of such articles to employ for the placing of manufacturers, merchants, and trade marks thereon.152

The 1891 International Copyright Act

After earlier, unsuccessful attempts in the 1830s, 1850s, and 1860s to extend protection to works of foreign authors,153 on March 3, 1891, the so-called International Copyright Act became law.154 Under this Act, protection was available to foreign authors, but only on three conditions: (1) the President, by proclamation, determined that U.S. authors were provided copyright protection in the foreign author’s country on “substantially the same basis” as the country extended protection to the works of its own citizens, or, that the foreign nation was a party to an international agreement that provided for reciprocity and to which the United States could adhere; (2) the foreign author complied with all formalities applicable to works of U.S. authors (e.g., notice and deposit); and (3) foreign authors of books (in all languages) and creators of photographs, chromos, and lithographs had their works either printed from type set “within the limits of the United States” or “from plates made therefrom, or from negatives, or drawings on stone made within the limits of the United States, or transfers made therefrom.”155

This last condition of copyright, known as the manufacturing clause, remained, in amended form, a most unfortunate part of U.S. copyright law until July 1, 1986. The conditioning of copyright protection on local printing was a reactionary return to the monopolistic days of the Stationers Company, {Page 49} and negated the revolutionary step taken by the Statute of Anne and our 1790 Act: protection of authors,not printers.

In the first few years following passage of the Act, bilateral treaties were entered with Belgium (1891), Chile (1896), Costa Rica (1899), Denmark (1893), France (1891), Germany (1892), Italy (1892), Mexico (1896), Netherlands (1899), Portugal (1893), Spain (1891), Switzerland (1891), and the United Kingdom (1891).156 The effect of protection for foreign authors was felt at the Library of Congress within the first six months after the effective date of the act (July 1, 1891). In the 1891 annual report to Congress, Librarian Spofford complained that the increase in the number of applications had “added very largely to the labors of the copyright office. . . .”157 He went on to note that the Library’s copyright business involved, at that time:

correspondence of over 75,000 letters annually, besides recording about 50,000 copyright titles, furnishing certificates under seal of the office to the majority of applicants, crediting, stamping, numbering, and filing away some 60,000 publications deposited as evidence of copyright, furnishing receipts for such deposits, recording multitude of transfers or assignments of copyright, supplying record evidence of entries and deposits to parties requiring them in litigation or otherwise, and producing in thousands of cases of searches, the original copies in the office during any one of the twenty-two years of its existence.158

These activities are strikingly similar to many of those carried out by the Copyright Office today.

Domestically, the 1891 Act made the following revisions: In yet another retrogressive application of formalities that has so regrettably characterized much of our copyright law, the deposit requirement was reduced from ten days after publication to “not later than” the day of publication, regardless of whether publication occurred in the United States or abroad. To effectively bar the infringing importation of copies, the Librarian of Congress was directed to compile entries of registered titles and to provide copies of these entries to the {Page 50} Secretary of the Treasury, who was directed to prepare catalogs of the entries and distribute them to customs officials and postmasters of post offices receiving foreign mail. This catalog of copyright entries has evolved into a valuable resource, used for domestic purposes (e.g., checking for ownership, renewals) as well as for customs.

The 1893 Amnesty Act

In an effort to encourage delinquent authors and publishers to comply with the deposit requirements, Congress passed a law providing that if the deposits were sent in by March 1, 1893, protection would not be forfeited. Unfortunately, the law did not go into effect until March 3, 1893.159

The 1895 Government Works and Penalties Amendments

In 1834, the Supreme Court had held, on public policy grounds, that copyright could not be asserted in the texts of judicial opinions and government edicts.160 The Printing Law of 1895, designed to centralize the printing of government documents in the Government Printing Office, contained the first statutory prohibition on copyright in government publications, stating that “no Government publications shall be copyrighted.”161 This provision was passed in anticipation of an attempt, later made in 1900 by the chairman of the Joint Committee on Printing, Representative Richardson, to assert copyright in a compilation, prepared by the Committee in 1895, of messages and papers of the presidents of the United States.162 After members of Congress complained, the Senate Committee on Printing reviewed the matter, stating an opinion, based in part on the 1895 Printing Law, that copyright should not have been claimed.163

A second amendment in 1895, this time to the Copyright Act, was passed in response to complaints by newspapers that they were liable for “expensive and oppressive” penalties for publishing photographs. The penalties for infringement of photographs “made from any object not a work of the fine arts” were limited to not less than $100 nor more than $5,000. For infringement of paintings, drawings, engravings, etchings, prints, models or designs for a work of art, and photographs of works of fine art, the penalty was set at not less {Page 51} than $250 nor more than $10,000. One half of all penalties recovered went to the United States.164

The 1897 Amendments

Three acts were passed in 1897. The first Act granted a right of public performance to musical compositions, as well as including, for the first time, criminal penalties: If an unlawful performance or representation of a dramatic or musical composition was for profit, the defendant was guilty of a misdemeanor and subject to imprisonment for up to one year. Liberal injunctive relief was also provided.165

The second Act, signed on February 19, 1897, established the position of Register of Copyrights, at an annual salary of $3,000, as part of the legislative branch appropriations bill for the fiscal year ending June 30, 1898.166 The {Page 52} Register was charged with responsibility for the Library’s existing Copyright Department, which was expanded under the Act to 29 clerks, with salaries ranging from $720 to $1,800 per year.167 The first Register, Thorvald Solberg, {Page 53} took office on July 22, 1897, shortly before the Library of Congress moved from the Capitol to the newly built Jefferson Building, across the street. Mr. Solberg was appointed by John Russell Young, Ainsworth Spofford’s successor as Librarian of Congress, after being interviewed at the White House by President McKinley.168

Solberg began his service with the Library of Congress on May 1, 1876, as a cataloger. He was employed by the Library’s law department from 1881-1889, although he was not a lawyer. From 1889 to his appointment in 1897, Solberg was employed by the Boston Book Company. Solberg served as Register of Copyrights for 33 years, the longest of any Register, retiring on April 21, 1930.169 He was instrumental in the revision of the Copyright Act in 1909, and was a champion of authors’ rights, as well as being a strong advocate of United States adherence to the Berne Convention.

The third Act passed in 1897 amended the provisions on affixation of a false notice of copyright, so that the previous penalty ($100) was also applied {Page 54} to anyone who knowingly issued, sold, or imported articles bearing a false notice of copyright. Situations where there was no copyright in the article as well as where the article was owned by someone else were encompassed under the definition of “false.”170

The Louisiana Purchase Exposition Act of 1904

The threat of foreign countries to boycott the 1904 Louisiana Purchase Exposition led Congress to pass a special Act, providing a two-year copyright for foreign exhibitors, dated from receipt of the deposit copy in the Copyright Office, which set up a field station in St. Louis to handle the claims.171

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The Act established the first ad interim protection: Copyright (for the two-year period) was granted without the need to comply with the manufacturing clause, or, apparently, the notice provision; if, however, the author did comply with the clause’s requirements during the two-year period, protection was extended for the full 42 years provided under the statute (28 years for the original term plus the 14-year renewal term).

The Ad Interim Act of 1905

In response to threats from France and Germany to repeal their copyright treaties with the United States over the manufacturing clause, Register Solberg recommended a second, general ad interim law.172 A bill to this effect was introduced and signed into law by President Theodore Roosevelt on March 3, 1905.173 The 1905 Act was, however, less generous than the Louisiana Purchase Exposition Act, since it applied only to books in foreign languages, contained a notice requirement,174 and provided for a period of only one year for filing title and depositing a second175 set of copies with the Copyright Office.

The Mexico City Convention

The first multilateral copyright convention adhered to by the United States was the Mexico City Convention of 1902, proclaimed by President Theodore Roosevelt on April 9, 1908, and effective between the United States, Costa Rica, Guatemala, Honduras, Nicaragua, and El Salvador on July 1, 1908. This treaty was later superseded by the Buenos Aires Convention in 1914 for all countries except El Salvador. The Convention was entered into without implementing legislation.176

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The 1909 Copyright Act

In each of his annual reports for the years 1901-1904, Register of Copyrights Solberg called for an omnibus revision and consolidation of the copyright laws.177 Toward that goal, he recommended that Congress appoint a commission, comprised of individuals representing the interests affected by copyright, to prepare a draft bill. This procedure had been followed in 1868, and led to the 1870 Act. The Senate Committee on Patents apparently rejected the proposal; instead, the committee asked the Librarian of Congress to convene a series of conferences that would produce a draft bill that could be presented to Congress in 1906.178 Further impetus for revision was given by President Theodore Roosevelt in a December 5, 1905, message to Congress.179

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Three conferences were held by the Library of Congress and the Copyright Office: The first was conducted from May 31-June 2, 1905, in New York City180; the second, November 1-4, 1905, also in New York City181; the third from March 13-16, 1906, in Washington, D.C.182 Before, during, and after these conferences, the Copyright Office prepared memoranda on major issues and carried on an extensive correspondence with the participants. After the first conference, the Office prepared a draft bill that was circulated for comment before the second conference. This draft was then revised, and presented to the third conference.

The first congressional hearings, before the House Committee on Patents on May 2-3, 1906, were held before the introduction of any bills.183 Following these hearings, a bill was prepared by the Copyright Office and introduced on May 31, 1906, in both Houses as H.R. 19853 and S. 6330, respectively.184 Joint hearings on H.R. 19853 and S. 6330 were then conducted before the House and Senate Committees on Patents on June 6-9185 and December 7, 8, 10, and 11, 1906.186 Although many witnesses testified in favor of the bills as drafted, two disputed issues arose: (1) the use of copyrighted music on piano rolls187 and phonographs, and (2) importation by public libraries of books printed abroad.188

In response to opposition to these issues and other parts of the bills, revisions were made and new bills H.R. 25133 and S. 1890 were introduced on January 29, 1907. These bills were favorably reported by the committees shortly after their introduction.189 Opposition continued regarding the grant to music copyright owners of an exclusive right to control the reproduction of their music on mechanical devices, and thus the bills did not pass.

In the 60th Congress, H.R. 25133 and S. 1890 from the 59th Congress {Page 58} were reintroduced, respectively, on December 2 and 16, 1907, as H.R. 243 and S. 2499. Rival bills reflecting opposition to the mechanical reproduction right were introduced on December 18, 1907, and January 6, 1908, as S. 2900 and H.R. 11794. Joint hearings on these bills were held by the Committees on Patents on March 26-28, 1908,190 and before a House subcommittee on January 20, 1909.191

Following the conclusion of the hearings, a number of revision bills were introduced. On February 22, 1909, the House Committee on Patents reported, as amended, one of these bills, H.R. 28192.192 The Senate reported out a similar bill, S. 9440, on March 1, 1909.193 The House passed H.R. 28192 on March 3, 1909; the Senate substituted H.R. 28192 for its own bill, and as substituted, passed H.R. 28192 the same day. On March 4, 1909, President Theodore Roosevelt, on his final day in office, signed the bill.194 The Act became effective July 1, 1909.

In drafting the 1909 Act, care was taken to use in the text, as far as possible, words and phrases that had already received judicial construction. In its final form, the Act was a compromise measure, a composite of several tentative bills and proposals embodying different points of view and interests. Changes appear to have been made in one place without the necessary corresponding changes in other places. This resulted in a lack of clarity and coherence in certain sections and caused substantial difficulties in the administration of the Act.195

Some notable improvements over the old law were achieved in the 1909 Act, however, including:

(1) broadening of the subject matter of copyright by an expanded list of protected works,196 and by the use of a catch-all clause stating Congress’s intent to protect “all the writings” of an author;

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(2) exempting books in foreign languages and photographs of foreign origin from the manufacturing clause;

(3) dating copyright in published works from first publication of the work with a proper notice, instead of from the date of filing of the title, which often took place long before the work was ready for publication, combined with provisions preventing forfeiture for accidental omission of notice;

(4) extending the renewal term by 14 years, thereby bringing the maximum term of protection to 56 years;

(5) making the certificate of registration prima facie evidence of the facts recorded;197

(6) unifying law and equity actions into one proceeding.198

The dispute over mechanical reproduction of musical compositions was resolved by introducing a new concept into U.S. copyright law, the compulsory license. Under Section 1(e) of the Act, copyright owners were granted the exclusive right to authorize the reproduction of their works by mechanical means, subject, however, to the following limitations: After the initial authorized recording of the work had been made, any other person was permitted to make “similar use” of the copyrighted work upon payment to the copyright proprietor of a royalty of two cents “on each part manufactured.”199 Moreover, notwithstanding that the copyright owner was given the exclusive right to publicly perform a musical composition for profit,200 “coin-operated machines” (then found in penny arcades) were given an exemption from any liability or payment, unless a fee was charged for admission to the establishment where the machine was located. Additionally, reflecting the Supreme Court’s June 1, 1908, decision in Bobbs-Merrill Co. v. Straus,201 Section 41 of the Act202 codified the “first sale” or “exhaustion” doctrine, according to which a lawfully obtained copy may be transferred without the consent of the copyright owner.

In a significant number of respects, however, the 1909 Act failed to make substantial improvements over the previous laws. The formalities of notice,203 {Page 60} deposit,204 and registration,205 as well as requirements of American manufacture of English-language books, periodicals, photoengravings, lithographs, and most illustrations embodied in books,206 were retained and made even more onerous. Further, by excluding federal protection for unpublished works except those designed for exhibition, performance, or oral delivery, the Act took a step backward that was not rectified until the general revision of 1976.

In terms of international relations, the 1909 Act was also a disappointment. By requiring foreign authors to comply with the notice, deposit, and manufacturing clause requirements, adherence to the Berne Convention was rendered impossible.207 On the positive side, the 1909 Act: (1) exempted from the manufacturing clause books of foreign origin “in a language or languages other than English”; (2) made explicit that U.S. domicile at the time of first publication satisfied national eligibility requirements; and (3) added a third basis for presidential proclamations (in addition to the national treatment and “open convention” criteria found in the 1891 Act, relations could be established if the foreign country provided protection “substantially equal to the protection secured . . . under this Act or by treaty”).208

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On balance, the 1909 Act continued the lamentable American tendency of retaining the early-eighteenth-century English formalities long after the English had moved to a more continental approach. By so doing, the United States deliberately stood outside the international copyright community for almost 50 years, hardly benefiting our then increasingly important world role. Even worse, domestically, authors continued to be deprived of their rights for minor departures from the prescribed formalities. It was not until the year before the 200th anniversary of our copyright law that we retreated, and then only partially from this antiquated system.

The subsequent development of television and other broadcasting techniques, and visual and aural recording, together with changes in business methods and practices, created unexpected challenges. While the courts found the terms of the Act fairly adaptable, there was, predictably, a lack of uniformity in application in particular cases.

Next section: Amendments to the 1909 Act

108 Act of April 29, 1802, 7th Cong., 1st Sess., 2 Stat. 171. The legislative history of the Act is very brief: On March 24, 1802, Sen. Bradley introduced S. 8. 11 Annals of Congress 202-03, 7th Cong., 1st Sess. (Gales and Seaton’s Register of Debates in Congress). On March 25, the bill was referred to a committee consisting of Sens.Bradley, Morris, and Tracy. Id. at 203. On March 29, the committee reported the bill favorably as amended. Id. at 206. The bill was debated in the Senate on April 1 and 2. Id. at 251. On the latter date, a two-year statute of limitations for false affixation of notice was added, and the bill passed. On April 26 and 27, the House took up the bill, passing it on the latter date without amendment. Id. at 1247 (Apr. 26), 1249 (Apr. 27). President Jefferson signed the bill into law on April 29, 1802.

In Rosenbach v. Dreyfuss, 2 F. 217, 221 (C.C.S.D.N.Y. 1880), an action under the 1870 Act for imposition of a penalty for false affixation of notice, the court held that the term “print” means “apparently, a picture, something complete in itself, similar in kind to an engraving, cut or photograph.” Use of “and other prints” proved unfortunate, though, as manufacturers sent in thousands of commercial labels for registration, leading the Librarian of Congress to launch an ultimately successful campaign to have responsibility for them shifted to the Patent Office in 1874.

It is interesting to note that §2 of the 1802 Act referred to persons “who shall invent and design, engrave, etch or work” prints, while § 1 referred to persons being the authors of maps, charts, and books. This use of “invent” to refer to the creation of prints continued until the 1909 Act, and raises the issue of whether “authors” always create “writings” and “inventors” always create “discoveries.” The term “invent” to describe the act of creating a print may be traced to the English Engravers’ Act of 1735, 8 Geo. II. But cf. R. Godson, A Practical Treatise For Inventions And Of Copyright at v (1823) (discussing creators of inventions as “artists” and creators of literary works as “scholars”). Indeed, the 1802 Act is, in relevant part, copied almost verbatim from the English statute. The English Act was the result of Hogarth’s efforts to prevent the rampant piracy of his works, including Masquerades and Operas, Harlot’s Progress, and The Rake’s Progress. This last work was pirated before Hogarth’s own prints were distributed, the pirates having come to Hogarth’s house to view the work. SeeKinzle, Plagiaries-by-Memory of the Rake’s Progress and the Genesis of Hogarth’s Second Picture Story, 29 J. of the Warburg and Courtland Institutes (1966). However, as Stephen Stewart noted, the English Act “protected the engraver but only if he was also the designer simply because Hogarth was both the designer and the engraver of his famous works and it probably did not occur to him that some engravers made engravings from the original work of others. The matter was remedied by the Engraving Copyright Act, 1766 (c. 38).” Stewart, Two Hundred Years of English Copyright Law, reproduced in 200 Years of English & American Patent, Trademark and Copyright Law 81, 113 n. 18 (1976). Compare Blackwell

v. Harper, 2 Atk. 93 (1740) (plaintiff who conceived the idea of the print and engraved it could sue) with Jeffreys v. Baldwin, Amb. 164 (1798) (plaintiff who had idea but who neither made drawings of print nor engraved it held not to be a proper claimant).

The issue of authorship in prints was addressed in the United States in Binns v. Woodruff, 3 F. Cas. 421 (C.C.E.D. Pa. 1821) (No. 1,424), in which Supreme Court Justice Bushrod Washington, President George Washington’s nephew, held that the statute covered only two situations: (1) where the claimant not only invented and designed the work, but also engraved or etched it; or (2) where the claimant invented or designed the work, but had another do the physical engraving. In the Binns case, “neither the design, nor general arrangement of th[e] print, nor the parts which composed it, were the invention of the plaintiff,” and thus Justice Washington found that plaintiff was not entitled to copyright. 3 F. Cas. at 424.

109 In the case of books and pamphlets, the author was to insert “at full length in the title-page or in the page immediately following the title” a copy of the record that had been reproduced in newspapers. In the case of all other works, the notice read: “Entered according to act of Congress, the day of 18 [here insert the date of the author’s or proprietor’s name and the State in which he resides].”

110 8F. Cas. 917 (C.C.E.D. Pa. 1824)(No. 4,584). Of the colonial statutes, only Pennsylvania had a notice requirement. It was clear under this statute that affixation of notice to copies was a prerequisite to protection. See Copyright Enactments: Laws Passed in the United States Since 1783 Relating to Copyright 11 Copyright Office Bulletin No. 3 (Revised)(1973). Commentators have suggested that the federal notice provision grew out of the practice of some publishers of reproducing, on the verso of the title page, the full certificate that the 1790 law required to be inserted in newspapers. SeeRoberts, Records in the Copyright Office Deposited by the United States District Courts Covering the Period 1790-1870 at 7 (1939).

111 Actions for forfeitures under this provision had to be commenced within two years from the date the cause of action arose.

112 Act of February 15, 1819, 15th Cong., 2d Sess., 3 Stat. 481. This Act has a very brief legislative history: On January 6, 1819, Senator Otis introduced S. 22. On January 26, the bill was passed by the Senate without amendment. On January 30, the House passed the bill, and President Monroe signed it into law on February 15, 1819.

113 See Kilty v. Green, 4 H. & McH. 345 (General Court of Maryland 1799), reproduced in 14 Copyright Decisions 1790-1909 at 1500; Nichols v. Ruggles, 3 Day 145 (Conn. Supreme Court of Errors 1808), reproduced in 14 Copyright Decisions 1790-1909 at 1919.

114 Act of February 3, 1831, 21st Cong., 2d Sess., 4 Stat. 436. The other general revisions occurred in 1870, 1909, and 1976. Work on the 1831 revision began on January 21, 1830, when Mr. Ellsworth introduced H.R. 145 in the House, and it was referred to the Judiciary Committee. On December 17, 1831, the committee reported an amended version of the bill. The Judiciary Committee’s two-page report was the first copyright legislative committee report and was filed by the committee’s chairman, William Ellsworth of Connecticut. 10 Annals of Congress Appendix cxix-cxx, 21st Cong., 2d Sess.(Gale and Seaton’s Register of Debates in Congress). Ellsworth was the son of Oliver Ellsworth, the third Chief Justice of the Supreme Court. He was also Noah Webster’s son-in-law and later wrote a treatise on copyright law. See W. Ellsworth, A Copy-Right Manual (Boston 1862). In his treatise, Ellsworth stated that the extension of the term from 14 to 28 years in the 1831 Act was done at Webster’s request, id. at 21-22. On January 6, 1831, the House amended the bill to grant to the authors’ heirs, executors, and administrators the benefit of the extended original term of 28 years provided under the Act. On this same date, the House defeated a proposed amendment by Mr. Hoffman to reduce that term to the 14 years provided under the 1790 Act. See 10 Annals of Congress cols. 422-24, 21st Cong., 2d Sess.(Gale and Seaton’s Register of Debates in Congress), and further discussion in Chapter 6, text at notes 23-26. On January 10, 1831, the bill passed the House. On January 19, the Senate Judiciary Committee (by Daniel Webster) reported the bill without amendment. On January 29, the Senate passed the bill, and on February 3, 1831, President Jackson signed it into law.

115 Before this Act, musical compositions had been protected as “books.” See supra note 91.

116 This was not a minor change. Under the 1790 Act, if the author died during the original term, the work went into the public domain at the end of that term, regardless of whether the author had heirs. The 1831 Act changed this by ensuring that the author’s surviving spouse and children received the renewal term under such circumstances. See Chapter 6, text at notes 27-31.

Two questions left unanswered by the 1831 Act were whether the author had the right by inter vivos transfer, to convey, during the first term rights in the renewal term, and whether the author could, by bequest, convey renewal rights to anyone other than the surviving spouse and children. For a discussion of these questions, see Chapter 6, text at notes 32-34, 53-62.

117 The Act also made a distinction for purposes of awarding penalties between infringement of books and infringement of prints, cuts, engravings, maps, charts, and musical works. The fine for books was retained at 50 cents per sheet; for all other works the fine was $1 per infringing sheet. The Act also provided that full recovery of costs “shall be allowed.”

118 The requirement remained, strangely enough, for the renewal term until eliminated by the 1909 Act.

119 The simplified notice read: “Entered according to an act of Congress, in the year ____, by ____, in the clerk’s office of the district court of ____.”

120 Recordation was to be made with the clerk of the district court where the original copyright was deposited, and was to be “proved or acknowledged in such manner as deeds for the conveyance of land are required by law to be proved or acknowledged in the same State or district. . . .” Act of June 30, 1834, 23d Cong., 1st Sess., 4 Stat. 728. Section 205(a) of the 1976 Act currently permits recording any “transfer of copyright ownership or other document pertaining to a copyright. . . .”

121 Section 205(d) of the 1976 Act (as renumbered in 1989), similarly gives priority to a second purchaser of a copyright who takes the copyright in good faith, for valuable consideration, or on the basis of a binding promise to pay royalties and without notice of the first transfer unless the first transferee records as provided in 205(c).

122 Act of August 10, 1846, 29th Cong., 1st Sess., 9 Stat. 106. This legislation began on December 19, 1845, with a bill, H.R. 5, introduced by Mr. Owen and referred to a committee consisting of Mr. Owen and Reprs.Quincy Adams, Davis, Jenkins, Marsh, Sims, and Wilmot. The House passed the bill on April 29, 1846 and the Senate on August 10, 1846. President Polk signed the bill into law the same day.

123 In 1859, the responsibility for deposits was shifted to the Patent Office (at that time a department of the Interior Department).

124 Use of deposit copies for examination purposes did not arise since there was, as yet, no examination for copyrightability.

125 The Library of Congress was originally created in 1800 as the private library of Congress, and consisted almost exclusively of legal books. Its origins as a “national library,” dedicated to the broader dissemination of knowledge, is frequently traced to the 1815 purchase of Thomas Jefferson’s personal library of 6,487 books at a price of $23,950 to replace the 3,000 volume library destroyed when the British burned the Capitol on August 25, 1814. Nevertheless, due to congressional opposition, it did not become a “national library” until the tenure of Librarian of Congress Ainsworth Spofford.Spofford was particularly aggressive in his use of the copyright deposit requirement to enrich the Library’s collections, and was responsible for the restoration of the Library deposit requirement in his third month in office, March 1865, six years after the 1859 Act had abolished the requirement. See John Cole, AinsworthSpofford and the “National Library” (1971) 96-102 (unpublished Ph.D. dissertation, George Washington University (Washington, D.C.)) and note 132, infra.

126 Jollie v. Jaques, 13 F. Cas. 910 (C.C.S.D.N.Y. 1850)(No. 7,437).

127 Act of March 3, 1855, 33d Cong., 2d Sess., 10 Stat. 685.

128 Act of August 18, 1856, 34th Cong., 1st Sess., 11 Stat. 138. Bills to provide such protection had been introduced in 1841. See S. 227, introduced by Senator Preston on January 28, 1841. Journal of the Senate, 26th Cong., 2d Sess. 140-141. The bill was reported by the Judiciary Committee on March 3, 1841, but was then tabled. Id. at 235. The effort began again on April 10, 1856, with the introduction of S. 239 by Sen. Seward. On July 16, the Judiciary Committee reported the bill with minor, technical amendments. The Senate passed the bill as amended on July 17. See 32 Cong. Globe 1647 (July 17, 1856). On August 2, the House referred S. 239 to its Judiciary Committee. The committee was discharged from further consideration of the bill on August 16, and the bill passed that same day. President Pierce signed S. 239 into law two days later.

Musical compositions were granted a public performance right in 1897. Act of January 6, 1897, 44th Cong., 2d Sess., 29 Stat. 481. Unlike the right found in §1(e) of the 1909 Act, this right was not limited to for-profit performances.

At the urging of the write Bulwer Lytton, the United Kingdom granted dramatic rights in 1833, 3 & 4 Will. 4, ch. 15.

129 See Brady v. Daly, 175 U.S. 148 (1899), for a decision under this Act. The colonial statutes of Massachusetts, New Hampshire, and Rhode Island contained minimum damage provisions.

130 See Daly v. Palmer, 6 F. Cas. 1132 (C.C.S.D.N.Y. 1868)(No. 3,552), discussed in Chapter 8, text at notes 118-37.

131 Act of February 5, 1859, 35th Cong., 2d Sess., 11 Stat. 380.

132 See John Cole, Ainsworth Spofford and the “National Library” (1971) 13-30 (unpublished Ph.D. dissertation, George Washington University (Washington, D.C.)). At this time, the Library of Congress had a collection of fewer than 50,000 volumes. Henry had sharply disagreed with Charles Coffin Jewett, his Assistant Secretary in charge of the Smithsonian’s library, over the role of the Smithsonian. Jewett was pushing to have the Smithsonian assume the role of the “national library,” contrary to Henry’s wish. This disagreement led to Jewett’s dismissal, and ultimately to the 1866 transfer of 40,000 volumes from the Smithsonian’s collections to the Library of Congress, which, under Librarian of Congress Ainsworth Spofford, became the “national library.” See also supra note 125.

133 Act of February 18, 1861, 36th Cong., 2d Sess., 12 Stat. 130. This legislation began on April 2, 1860, with Rep. Hickman’s introduction of H.R. 554. The bill was not referred to a committee, but instead was considered and passed by the House on January 7, 1861. On February 2, the Senate Judiciary Committee favorably reported the bill with amendments reflecting alterations in phraseology. SeeCong. Globe 698, 36th Cong., 2d Sess. (Feb. 2, 1861). On February 6, the Senate took up the bill, but recommitted it to the Judiciary Committee. On February 11, the Judiciary Committee favorably reported the bill with additional amendments, and the Senate passed it the same day. Cong. Globe 841, 36th Cong., 2d Sess. (Feb. 11, 1861). On February 16, the House agreed to the Senate amendments. President Lincoln signed the bill on February 18, 1861.

In 1893, appeal to the Supreme Court of copyright and patent decisions by the District of Columbia Court of Appeals was permitted without regard to the amount in controversy. Act of February 9, 1983, 52d Cong., 2d. Sess., 27 Stat. 436.

134 Act of March 3, 1865, 38th Cong., 2d Sess., 16 Stat. 198. This Act had a remarkably short legislative history. On February 22, 1865, the Committee on Patents and the Patent Office, which had been studying the issue, reported S.468, which was passed by the Senate the same day. See Cong. Globe 981, 38th Cong., 2d Sess. (Feb. 22, 1865) (remarks of Sen. Cowan, stating the intent of the bill to “extend to and include photographs and the negatives thereof which shall hereafter be made, which are to inure to the benefit of their authors in the same manner and to the same extent and upon the same conditions as to the authors of prints and engravings”). The House passed the bill on March 2, and President Lincoln signed it into law the next day.

135 The provision was inserted at the request of Librarian Spofford.Spofford was vigilant in his efforts to ensure compliance with the law’s requirements. In addition to carrying on an extensive correspondence with publishers, he also made trips to the federal district courts in New York, Philadelphia, and Boston to check their copyright records. As a result of lobbying by the Patent Office, the requirement of transmitting a deposit copy to the Patent Office remained, despite Spofford’s attempt to have the requirement repealed. The appointment of Samuel S. Fisher, a Cincinnati friend of Spofford’s, as Commissioner of Patents on April 26, 1869, changed the political climate, with the result that administration of all copyright matters was centralized in the Library of Congress in 1870. See infra text at notes 137-47.

136 Act of February 18, 1867, 39th Cong., 2d Sess., 14 Stat. 395. See 1866 Annual Report of the Librarian of Congress at 5, wherein Mr. Spofford noted that imposition of the penalty had resulted in deposit of “a largely increased proportion of American publications.” In 1866, the first full year of the 1865 law’s operation, only 1,996 deposits were made. In 1867, with only a partial year’s operation under the new 1867 law, 1,449 deposits were made.

137 Act of July 8, 1870, §§85-111, 41st Cong., 2d Sess., 16 Stat. 198, 212-16. The drafting of the revision principally was done by three commissioners appointed by President Johnson under the Act of June 27, 1866, 39th Cong., 1st Sess., 14 Stat. 74, to “revise, simplify, arrange, and consolidate all statutes of the United States. . . .” The impetus for including copyright revision in 1870 stemmed, however, from the efforts of Librarian of Congress Spofford, who, with the approval of Rep. Thomas A. Jenckes of Rhode Island, chairman of the Committee on Patents, and Commissioner of Patents Samuel S. Fisher, had the general copyright revision attached as an amendment to H.R. 1714, a bill to reform the patent laws. See 43 Cong. Globe 2683-84, 41st Cong., 2d Sess. (Apr. 14, 1870) (speech of Rep. Jenckes); Spofford, The Copyright System of the United States – Its Origin and Growth, reproduced in Celebration of the Beginning of the Second Century of the American Patent System 152 (1882). An April 9, 1870 letter from Spofford to Jenckes formed the bulk of Jenckes’ April 14, 1870, speech favoring centralization of copyright in the Library of Congress. Spofford’s letter may be found in The Jenckes Papers, Container 40, Manuscript Division, Library of Congress. See also Cole, Of Copyright, Men & A National Library, Quarterly J. of the Library of Congress (Copyright Society of the U.S.A. 1970).

H.R. 1714 was reported by the House Committee on Patents on April 7, 1870. 43 Cong. Globe 2502. On April 13, the bill was recommitted to the Committee on Patents. 43 Cong. Globe 2650. The bill was debated in the House on April 14, 20, and 21, passing that final day. See 43 Cong. Globe 2854-57, 2872, 2880. The Senate Committee on Patents reported the bill as amended on May 31, 1831. On June 24, the Senate passed H.R. 1714 as amended. 43 Cong. Globe 4822-23, 4826. On June 25, the House voted to disagree with the Senate amendments and requested a conference. 43 Cong. Globe 4858. Reps. Jenckes, Calkin, and Kellogg were named as House conferees on June 28. On June 29, the Senate voted to insist on their amendments and named Sens. Willet, Hamilton, and Carpenter as their conferees. On July 2, 1870, the Conference Committee report was presented to both bodies and passed. 43 Cong. Globe 5136. President Grant signed the bill into law on July 8, 1870.

The constitutionality of this Act was challenged 27 years later, when the position of Register of Copyrights was created. The basis for the challenge was a provision in the 1870 law placing the Librarian’s actions (including the granting or denial of copyrights) under the supervision of Congress’s Joint Committee on the Library. See28 Cong. Rec. 5497-5500 (May 21, 1896).

138 Journal of the Senate, 41st Cong., 2d Sess. 781 (June 10, 1870); id. at 837-838 (June 18, 1870). Given this opposition, it appears that the principal motivation for centralization was not simplification of procedures for applicants, but rather enrichment of the collections of the Library of Congress. See 1897 Annual Report of the Librarian of Congress at 12: “[The 1870 Act] assured the Library a complete collection of American publications. . . .” Under the Act, the entire collection of 23,070 books previously deposited with the State Department was transferred to the Library of Congress. As late as 1897, the Library had not been able, due to inadequate staffing levels, to assimilate all the material it received pursuant to the 1870 Copyright Act. See id. at 5: “The copyright . . . material [is still] lying in indiscriminate heaps on the Library floors. . . .” An earlier bill, introduced in 1862 to centralize the administration of copyright matters in the Patent Office, had been successfully opposed by “publishers, artists, and others.” See Journal of the Senate, 37th Cong., 2d Sess. 468 (May 12, 1862).

139 See further discussion in textinfra at notes 166-69.

140 On March 23, 1824, during the first session of the 18th Congress, Sen. Lowrie of Pennsylvania, at the request of Rembrandt Peale introduced S. 77, a bill to extend copyright to paintings. 41 Annals of Congress 418 (Gales and Seaton’s Register of Debates in Congress). Peale wanted to protect his famous equestrian portrait of President Washington. Peale said he was willing to sell the painting to the Congress only if he could “have the same privilege of profiting by his work as writers of books have in theirs.” 41 Annals of Congress 511 (Apr. 12, 1824). On March 30 the bill was favorably reported by the Judiciary Committee. On April 12, S. 77 was debated and defeated on the Senate floor. Id. at 446. In opposing protection for paintings, Sen. Mills of Massachusetts remarked, “had such an act been in existence before Mr. Peale executed his painting, he could not have completed it, as Stuart had previously executed a portrait of Washington, from which Mr. Peale’s was but a copy, with some little embellishment. . . . [S]uch an act of Congress would have a great tendency to retard the progress of the art of painting, as it would do away with the right of imitating, and attempting to excel paintings already in existence.” One of Stuart’s engravings of Washington, the portrait found on the $1 bill, is perhaps the most widely distributed work of art in this country.

The successful 1870 effort appears to have been the result of petitions by William Morris Hunt and Boston artists. See Journal of the Senate, 41st Cong., 1st Sess. 17 (Mar. 8, 1869).

141 The right to translate one’s work reversed Stowe v. Thomas, 23 F. Cas.201 (C.C.E.D. Pa. 1853)(No. 13,514), which had held that an unauthorized German translation of Harriet Beecher Stowe’s Uncle Tom’s Cabin was not an infringement.

142 The statute used the expression “authors may reserve the right to dramatize or to translate their own works,” leading to ambiguity regarding whether authors had to affirmatively state such a reservation of rights. The legend “All rights reserved” stems from an 1874 Library of Congress regulation promulgated under the 1870 Act, advising authors to use the legend (or “Right of Translation Reserved”) below the copyright notice. A written statement to this effect could also be filed with the Library. When the 1891 Act replaced the phrase “may reserve the right to translate or dramatize” with “shall have the exclusive right to dramatize or translate any of their works,” the Library’s regulations were amended in 1893 to state that an affirmative reservation of rights was no longer required. The legend “All rights reserved” was later used in the Buenos Aires Convention. See Chapter 17, text at note 102.

143 For paintings, drawings, statues, statuaries, models, and designs for works of the fine arts, a photograph of the work was the required deposit.

144 The 1870 revision, of course, divested not only the district courts, but also the Patent Office of any responsibility of administering the copyright law. The first registration made in the Library of Congress under the 1870 Act was for a travel book, San Domingo, registered on July 10, 1870.

145 1870Annual Report of the Librarian of Congress at 4.

146 1871Annual Report of the Librarian of Congress at 4.

147 1872Annual Report of the Librarian of Congress at 4-5.

148 Act of Dec. 1, 1873, 43d Cong., 1st Sess. All the laws in force on this date were reported in H.R. 1215 on January 14, 1874, passed by the House on April 1, 1874, and by the Senate on May 27, 1874, and signed by President Grant on June 20, 1874, 43d Cong., 1st Sess.As with the 1870 Act, the principal drafting of the December 1, 1873, Act was done by the presidential commissioners appointed under the 1866 Act. See supra note 137.

149 Act of June 18, 1874, 43d Cong., 1st Sess., 18 Stat. 78. See review of this Act in Fargo Mercantile Co. v. Brechet & Richter, 295 F. 823 (8th Cir. 1924). The Act began on June 1, 1874, when the Senate Committee on Patents reported S. 876 and the Senate passed the bill the same day. On June 11, the House amended the bill by increasing the fee for recording the title of any print or label that was not a trademark from $3 to $6. 2 Cong. Rec. 213 (June 11, 1874). On June 12, the Senate agreed to the House amendment, and President Grant signed the Act on June 18, 1874.

150 Act of March 3, 1879, 55th Cong., 3d Sess., 20 Stat. 359.

151 See 1928-1929 Annual Report of the Register of Copyrights at 8.

152 Act of August 1, 1882, 47th Cong., 1st Sess., 22 Stat. 181. But cf. 1902-1903 Annual Report of the Register of Copyrights at 445: “[I]n the legislation previous to this enactment [these articles] are nowhere found thus designated, while they would seem to be included in the provisions of section 4929 of the patent law.” See also Chapter 2, note 593.

153 For a discussion of these efforts, see Chapter 17, text at notes 14-38.

154 Act of March 3, 1891, 26 Stat. 1106. (The 51st Congress ended on March 2, 1891). The Act is also sometimes referred to as the “Chace Act” after Sen. Jonathan Chace of Rhode Island, who was a forceful proponent of international copyright relations, but who resigned on April 9, 1889. The Act was effective on July 1, 1891. The first foreign work registered under the 1891 Act was a play, Saints and Sinners, by British author Henry Arthur Jones, registered on July 3, 1891. The preface to the play notes the Act and its great importance to English authors. George P. Brett’s Tim: A Story of School Life, was registered on the same day as Jones’ work. On July 6, 1891, the Library of Congress received eight plays by Rostand, Zola, and others.

155 An exception was made for books in foreign languages; the condition applied, however, to English-language translations of such works. The Act did permit importing two copies of a work intended for personal use only, without the need to comply with the manufacturing clause.

156 See generally Copyright Office Circular 38a, International Copyright Relations of the United States. After passage of the 1909 Act, the Attorney General offered an opinion that new proclamations had to be issued, based on his interpretation of the 1909 Act as representing the exclusive mechanism through which copyright could be secured. 29 Op. Att’y Gen. 222 (Mar. 10, 1910). On April 10, 1910, President Taft issued proclamations, including retroactive provisions, for the benefit of citizens of Austria, Belgium, Chile, Costa Rica, Cuba, Denmark, France, Germany, Great Britain, Italy, Mexico, the Netherlands, Norway, Portugal, Spain, and Switzerland. A separate proclamation was issued for citizens of Luxembourg on June 29, 1910. The 1976 Act addressed this issue statutorily, providing in Transitional and Supplementary Section 104: “All proclamations issued by the President under section 1(e) or 9(b) of title 17 as it existed on December 31, 1977, or under previous copyright statutes of the United States, shall continue in force until terminated, suspended, or revised by the President.”

157 This reference to “copyright office” was to a department set up in the Librarian’s office. The Copyright Office, as we know it today, was not formally established until the Act of 1897.

158 1891Annual Report of the Librarian of Congress at 5.

159 Act of March 3, 1893, 52d Cong., 2d Sess., 27 Stat. 743.

160 Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834).

161 Act of January 12, 1895, 53d Cong., 3d Sess., 28 Stat. 608.

162 Berger, Copyright in Government Publications, Copyright Office Study No. 33, 86th Cong., 2d Sess. 29 (Senate Comm. Print 1961).

163 S. Rep. No. 1473, 56th Cong., 1st Sess. (1900).

164 Act of March 2, 1895, 53d Cong., 3d Sess., 28 Stat. 965. This Act began as H.R. 8407, introduced by Mr. Covert on January 8, 1985, but it was amended substantially on the floor on March 2, when it both passed the House and the Senate and was signed into law by President Cleveland.

165 Act of January 6, 1897, 44th Cong., 2d Sess., 29 Stat. 694. This Act began as S. 2306, introduced by Senator Hill on February 27, 1896. The Senate Committee on Patents reported the bill with amendments on April 24. The Senate passed the bill as amended on May 20. 28 Cong. Rec. 5464. On December 7, the House Committee on Patents reported S. 2306 without amendment. H.R. Rep. No. 2290, 54th Cong., 2d Sess.However, on December 10, the bill was reconsidered by the committee for the purpose of considering various amendments. The bill was passed the same day by the House after amendments to exempt charitable or benevolent performances and to imply consent to a public performance from the sale of sheet music or a printed copy of a dramatic composition were defeated after spirited debate. These debates also contain a substantial discussion of the need for injunctive relief, criminal penalties, and mandatory minimum statutory damages. See 29 Cong. Rec. 85-91 (Dec. 10, 1897). The Senate agreed to the House amendments on December 14, and President McKinley signed the Act on January 6, 1897.

166 Act of February 19, 1897, 54th Cong., 2d Sess., 29 Stat. 545. The Librarian of Congress had requested that the Library be relieved of all copyright responsibilities, and protested (to no avail) the legislation’s creation of a Copyright Office in the Library. See 29 Cong. Rec. 385 (Dec. 21, 1896) (remarks of Mr. Cummings). Bills introduced in the first session of the 54th Congress provided for the Register to be selected by Congress’s Joint Committee on the Library of Congress, rather than by the Librarian. See S. 425, 54th Cong., 1st Sess. (Dec. 5, 1895) (Morrill), 27 Cong. Rec. 38; H.R. 1243, 54th Cong., 1st Sess. (Dec. 10, 1895) (Bankhead), 27 Cong. Rec. 127. S. 425 was reported by the Committee on the Library on February 20, 1896. 28 Cong. Rec. 1959. On May 8, 1896, S. 425 was brought up on the floor of the Senate, but passed over because it would occasion “discussion,” a prescient observation. 28 Cong. Rec. 4695, 54th Cong., 2d Sess.The bill was then attached to a conference report on an omnibus appropriations bill (H.R. 9643), over the objections of the House, which considered the appointment provision unconstitutional. See 29 Cong. Rec. 316, 54th Cong., 2dSess. (Dec. 19, 1896) (remarks of Mr. Quigg). On May 21, 1896, the conference report was taken up by the Senate, and a heated floor debate challenging the constitutionality and wisdom of the provision regarding the Register’s selection took place, with the result that the conference report was disapproved. See 28 Cong. Rec. 5496-5507 (May 21, 1896). On December 19 and 21, 1896, the issue of the Register’s selection by the Joint Committee on the Library was debated in the House. See 29 Cong. Rec. 316-17 (Dec. 19, 1896) (House), 29 Cong. Rec. 378, 379 (Dec. 21, 1896) (House). On December 21, Mr. Fairchild proposed, apparently in jest, that the Register be appointed by the Committee on Patents. 29 Cong. Rec. 387-88, 390. The amendment was rejected. On January 20, 1897, an amendment was offered in the Senate by the Appropriations Committee to have the Register appointed by the Librarian, and the Senate agreed to it the same day. 30 Cong. Rec. 975, 54th Cong., 2d Sess. (Jan. 20, 1897). The Senate agreed to the conference report (and referred to the Register’s appointment by the Librarian) on February 15, 1897. See 30 Cong. Rec. 1832-33. The House agreed to the conference report on February 17. See 30 Cong. Rec. 1945-47 (Feb. 17, 1897) (remarks of Mr. Dockery: “We have yielded to the Senate in the matter of confirmation, and in my opinion the House conferees were fully justified in this action. The bill as now agreed upon requires the incoming President on or after the 1st July next to appoint, subject to confirmation by the Senate, a Librarian who shall conduct the operations of the Library in the magnificent new Library building. . . . I sincerely hope that the President-elect will select some one for Librarian solely with reference to his fitness to discharge the duties of that great office”).

This bill also changed the way the Librarian of Congress was appointed. See 30 CONG. REc. 1947 (Feb. 17, 1897). In 1800 the Library was established under the direction of the clerk of the House of Representatives and the Secretary of the Senate. In 1802, the law was amended, with a Librarian appointed by the President. President Jefferson, however, appointed Representative John Beckley, who also served as the clerk of the House of Representatives, as Librarian at a salary of $2 per day. In 1807, Patrick Magruder was appointed clerk of the House and also served as Librarian and it was not until 1815 that President Madison appointed a Librarian who was not a member of Congress. George Watterston, who served until 1829, was removed by President Jackson, apparently for writing editorials critical of Jackson. John F. Meehan was appointed by Jackson in 1829 and served until 1861, when President Lincoln terminated his employment and appointed John G. Stephenson, a physician. Stephenson was fired in 1864 for shortchanging booksellers, for dubious bookkeeping practices, and for engaging in war speculation. Lincoln then appointed Ainsworth Spofford in 1861. The 1897 Act required that the Librarian be appointed by the President with the advice and consent of the Senate. The result, if not the purpose, of this change was to permit the new Administration to replace Spofford. In the 1896 election, Grover Cleveland had lost to William McKinley. After passage of the 1897 Act, President McKinley fired Spofford and replaced him with John Russell Young, a newspaperman. Young died 18 months later in 1899. McKinley then appointed 38-year-old Herbert Putnam, the librarian of Boston Public Library, who served 56 years.

167 Before the establishment of the Copyright Office in this Act, the Library employed 24 persons on copyright matters, not including the Librarian, only 5 fewer than were established under the 1897 Act. Responding to the ever growing number of applications, in 1900, Congress increased the number of clerks to 38 and added a messenger boy. The next year 9 more clerks were added. The 1898 Annual Report of the Librarian, S. Doc. No. 24, 55th Cong., 3d Sess. at 55, contains a list of questions to be asked during the examination of those applying for a position in the Copyright Office. These questions went to the accounting and recordation functions of the Office and did not include any questions as to whether a deposit constituted copyrightable subject matter, the examination role being one the Office had not yet generally assumed. See Chapter 16, text at note 77.

In the first decision regarding the Librarian’s refusal to register a work, United States v. Everson, 26 Wash. L. Rep. 546 (Sup. Ct. D.C. 1898), the court rejected an effort to compel, by mandamus, registration for a completely blank book. The court indicated at the same time, however, that “the act is mandatory. . . The Librarian has no discretion in relation to the matter of recording.”

168 Apparently, Solberg’s appointment had been a “done deal.” See 29 Cong. Rec. 317 (Dec. 19, 1896):

MR. DRAPER: If I may interrupt the gentleman a moment, I should like to be informed how the minor officers are now appointed in the Library, and how they have been appointed for years past, so as to understand this proposed change.

MR. QUIGG: . . . In theoretical practice the Librarian of Congress . . . has made the appointments. In actual practice I do not think that has occurred. . . . I do remember an incident in connection with the bill for the registration of copyright. I remember that when that bill was being considered by the House in the last Congress, before it got very far everybody knew who was to be the register of copyrights; and I remember that the bill did not make much progress until it was known who was to be the register of copyrights; and I suspect the policy has been for the Librarian to appoint as he thought it wise to do.

Mr. Quigg’s reference to an earlier bill presumably refers to H.R. 8211, 54th Cong., 1st Sess. (April 15, 1896) (bill to provide for a commissioner of copyrights and to revise the copyright laws). See also S. 425, 54th Cong., 1st Sess. (Dec. 5, 1895) (bill to provide for a register of copyrights). See Chapter 16, note 76 for a discussion of Solberg’s efforts to secure the Register’s position.

169 Solberg’s long tenure may have placed him out of touch with changes in social mores. An article in an English journal reported that the (U.S.) National Women’s Party had objected to a decision by Solberg that a married woman should register her claim to copyright in her husband’s name. See 38 The Author, Playwright, & Composer No. 3 at 87 col. 2 (Apr. 1927). Apparently in response to this decision, a bill was introduced providing that “registration of claims to copyright by married women shall not be held invalid or prejudiced by reason of being made or having been made in the maiden name of the author who claims copyright.” H.R. 15,546, 69th Cong., 2d Sess.(1926).

170 Act of March 3, 1897, 54th Cong., 2d Sess., 29 Stat. 694. This Act began as H.R. 10223, introduced by Mr. Fairchild on February 3, 1897. On February 5, the House Committee on Patents reported the bill with amendments, H.R. Rep. No. 2813, 54th Cong., 2d Sess. H.R. 10223 passed the House on February 9. On February 20, the Senate Committee on Patents reported the bill with amendments. On March 3, the Senate passed H.R. 10223 as amended, and the House agreed to the Senate amendments on the same day, with President McKinley signing the Act into law that day.

171 Act of January 7, 1904, 58th Cong., 2d Sess., 33 Stat. 4. For a decision under this Act, see Encyclopedia Brittanica Co. v. Werner Co., 135 F. 841 (C.C.D.N.J. 1905). Similar temporary protection was established for the Panama-Pacific Exposition of 1913. Act of September 18, 1913, Pub. L. No. 63-14, 63d Cong., 1st Sess., 38 Stat. 112. Under this latter Act, both the Copyright Office and the Patent Office were directed to set up field stations in San Francisco to process applications. Copyright protection was to last until three years after the close of the exposition on December 4, 1915. Apparently due to the world war in Europe, only four certificates of registration were ever issued, and these were handled by the Patent Office field station, since, given the lack of interest, the Copyright Office was reluctant to send an employee. See 1915-1916 Annual Report of the Register of Copyrights, reproduced in 1916 Annual Report of the Librarian of Congress at 184-85.

By the Act of July 19, 1932, Pub. L. No. 72-294, 72d Cong., 1st Sess., 47 Stat. 703, protection for foreign exhibitors at the 1933 Chicago World’s Fair Centennial Celebration (“A Century of Progress”) was established. The term of protection was for the duration of the fair plus six months. No registrations were made under the Act, however. 1934 Annual Report of the Register of Copyrights at 11.

Two resolutions were approved in 1937 for the benefit of foreign exhibitors at international expositions. On May 28, 1937, legislation was passed protecting works of foreign exhibitors at the Golden Gate International Exposition to be held in San Francisco in 1939, with protection lasting for the duration of the exposition plus six months, P. Res. 35, 75th Cong., 1st Sess., 50 Stat. 211. When the exposition was postponed one year, the resolution was reintroduced and passed, substituting the new date. Act of April 22, 1940, P. Res. 62, 76th Cong., 3d Sess., 54 Stat. 157. An identical law was enacted on June 11, 1937, P. Res. No. 41, 75th Cong., 1st Sess., 50 Stat. 254, for the benefit of foreign exhibitors at the New York World’s Fair of 1939. In 1938, the same provisions were enacted for the benefit of exhibitors at the Pacific Mercado International Exposition, held in Los Angeles in 1940. Act of May 3, 1938, P. Res. 100, 75th Cong., 3d Sess., 51 Stat. 593. Copyright Office records cited in the Register’s annual reports do not show registrations under any of these acts.

172 1904Annual Report of the Register of Copyrights at 142. Because the Act only extended ad interim protection to works in a foreign language, it was of no help to Canada and Great Britain, who were the largest suppliers of foreign books. As a result, §35(3) of the 1911 English Act included a requirement that works be simultaneously published in Great Britain within 14 days. The 1921 Canadian Copyright Act (effective January 1, 1924) contained manufacturing clause provisions in §§14(1), 15, and 16. These provisions were implemented in a 1923 Order in Council and were designed to be consistent with the November 13, 1908 Additional Protocol to the Berlin Berne Convention text. See Keyes & Brunet, Copyright in Canada: Proposals for a Revision of the Law 77-78 (1977).

173 Act of March 3, 1905, 58th Cong., 3d Sess., 33 Stat. 1000.

174 The notice consisted of “Published , nineteen hundred and Privilege of copyright in the United States reserved under the Act approved March 3, 1905, by [name of author].”

175 Initial (ad interim) protection required deposit within 30 days after publication.

176 InBogsch, Protection of Works of Foreign Origin, Copyright Office Study No. 32, 86th Cong., 2d Sess. 3 (Senate Comm. Print 1960), it was stated that the lack of implementing legislation “create[d] some area of uncertainty, as [the] Convention [] may be thought to exclude the applicability of some provisions in the present U.S. statute; the manufacturing clause . . . and the requirement of a specified form of copyright notice. . . .”

177 The 1903 report contained a special section on existing copyright legislation “prepared with a view to bringing out the discrepancies in the texts of these various statutes and the contradictory provisions contained in them which result not only in practical difficulties in the administration of the Copyright Office but in frequent misunderstandings as to the nature and scope of the protection afforded by copyright.” Report of the Register of Copyrights on Copyright Legislation, reproduced in 1903 Annual Report of the Librarian of Congress at 437-593. The Register’s report was used during the revision conferences that led to the 1909 Act.

178 See January 27, 1905, letter from Sen. Kittredge of South Dakota to Librarian of Congress Herbert Putnam, reproduced in E. Brylawski & A. Goldman, 5 Legislative History of the 1909 Copyright Act at p. M5 (1976) (“Brylawski & Goldman”), and, S. Rep. No. 3380, 58th Cong., 3d Sess. (1905).

179 This message read:

Our copyright laws urgently need revision. They are imperfect in definition, confused and inconsistent in expression; they omit provision for many articles which, under modem reproductive processes, are entitled to protection; they impose hardships upon the copyright proprietor which are not essential to the fair protection of the public; they are difficult for the courts to interpret and impossible for the Copyright Office to administer with satisfaction to the public. Attempts to improve them by amendment have been frequent, no less than twelve acts for the purpose having been passed since the Revised Statutes. To perfect them by further amendment seems impracticable. A complete revision to them is essential. Such a revision, to meet modem conditions, has been found necessary in Germany, Austria, Sweden, and other foreign countries, and bills embodying it are pending in England and the Australian colonies. It has been urged here, and proposals for a commission to undertake it have, from time to time, been pressed upon Congress.

The inconveniences of the present conditions being so great, an attempt to frame appropriate legislation has been made by the Copyright Office, which has called conferences of the various interests especially and practically concerned with the operation of the copyright laws. It has secured from them suggestions as to the changes necessary; it has added from its own experience and investigations, and it has drafted a bill which embodies such of these changes and additions as, after full discussion and expert criticism, appeared to be sound and safe. In form this bill would replace the existing insufficient and inconsistent laws by one general copyright statute. It will be presented to the Congress at the coming session. It deserves prompt consideration.

180 A transcript of these proceedings is reproduced in 1 Brylawski & Goldman, Part C. SeeLitman, Copyright Legislation and Technological Change, 68 Or. L. Rev. 275 (1989) for a review of problems that arose from the Librarian’s failure to invite certain affected interests.

181 Atranscript of these proceedings is reproduced in 2 Brylawski & Goldman.

182 Atranscript of these proceedings is reproduced in 3 Brylawski & Goldman.

183 These hearings are reproduced in 4 Brylawski & Goldman, Part F-G.

184 See 1 Brylawski & Goldman, Part B.

185 These hearings are reproduced in 4 Brylawski & Goldman, Part H.

186 These hearings are reproduced in 4 Brylawski & Goldman, Part J.

187 This dispute arose as a result of the efforts of the Aeolian Company to secure the exclusive rights from as many music publishers as possible for perforated music sheets to be used in Aeolian’s automatic musical instruments and machines. This dispute reached the Supreme Court in White-Smith Pub. Co. v. Apollo Co., 209 U.S. 1 (1908), in which the Court held that a perforated pianola music roll was not a “copy” of a musical composition and, therefore, did not infringe the copyright in the composition.

188 See 5 Brylawski & Goldman, Part M at 24-30.

189 H.R.Rep. No. 7083, 59th Cong., 2d Sess. (1907), reproduced in 6 Brylawski & Goldman, Parts N and P; S. Rep. No. 6187, 59th Cong., 2d Sess.(1907), reproduced in id., Parts Q and R.

190 These hearings are reproduced in 5 Brylawski & Goldman, Part K.

191 5Brylawski & Goldman, Part L.

192 H.R.Rep. No. 2222, 60th Cong., 2d Sess. (1909), reproduced in 6 Brylawski & Goldman, Part S.

193 S.Rep. No. 1108, 60th Cong., 2d Sess. (1909). This report is identical to H.R. Rep. No. 2222. See supra note 192.

194 Act of March 4, 1909, Pub. L. No. 60-349, 60th Cong., 2d Sess., 35 Stat. 1075.

195 In the first three years after the effective date of the Act, 63 opinions on its interpretation were requested of the Attorney General and the Treasury Department. Of these opinions, 53 involved rulings on the manufacturing and importation clauses. Digests of these opinions are printed as addenda to the Register of Copyrights’ 1912-1913 Annual Report. For an expression of judicial exasperation over the 1909 Act, see Rohauer v. Killiam Shows, Inc., 551 F.2d 484, 486 (2d Cir.), cert. denied, 431 U.S. 949 (1977): “As has been so often true in cases arising under the Copyright Act of 1909, neither an affirmative nor a negative answer is completely satisfactory. A court must grope to ascertain what would have been thought of the 1909 Congress on an issue about which it almost certainly never thought at all.”

196 The most significant change in the subject matter provision – contained in new Section 5 – was the protection in class 5(g) of “works of art,” rather than as previously, “works of fine art.” The subsequent history of protection of pictorial, graphic, and sculptural works embodied in useful articles is reviewed in Chapter 2, text at notes 590-734. Other subject matter changes embodied in the 1909 Act were express protection for compilations, periodicals, lectures, sermons, and addresses prepared for oral delivery.

197 The fee for registration was set at $1 for all works except photographs for which a certificate of registration was not desired, the fee for such works being 50 cents.

198 17 U.S.C. §27 (1909). Similar provisions were not embodied in other federal statutes until the 1938 promulgation of the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 38.

199 The Act did not, however, overturn the Supreme Court’s opinion in White-Smith Music Pub. Co. v. Apollo Co., 209 U.S. 1 (1908), which held that a piano roll (and by extension, a phonorecord) was not a “copy” of the music recorded therein.

200 In this respect, the 1909 Act represented a retrenchment, since the 1897 Act did not have a for-profit limitation.

201 210 U.S. 339 (1908), discussed in Chapter 11, text at notes 42-45.

202 This section was subsequently renumbered Section 27 in 1947.

203 The notice requirement was revised to consist of the word “Copyright,” or the abbreviation “Copr.,” accompanied by the name of the copyright proprietor. The date of first publication was required for printed literary, musical, or dramatic works. For pictorial, graphic, and sculptural works, the notice could consist of ©, accompanied by the initials, monogram, mark, or symbol of the copyright proprietor, provided the name of the proprietor was also placed or enumerated on other accessible places on the copy.

204 The importance of deposit under the 1909 Act is seen in Sections 12 and 13. Section 12 provided, in relevant part, that no action for infringement could be brought until the deposit requirement had been satisfied. Section 13 stated that the failure to comply with the Register of Copyrights’ demand for deposit copies would result in a fine of $100 and twice the cost of the retail price of the best edition of the work, and, more importantly, forfeiture of copyright. The deposit requirement was increased to the providing of two copies of the “best edition” of the work; this provision had been objected to by publishers since the Librarian of Congress also requested (and obtained) the authority to transfer or sell copies to other libraries, or, to simply destroy unwanted copies. See Sections 59-60. The Library somewhat ameliorated the potential harshness of these provisions by agreeing to return, on request, unwanted deposit copies.

205 Under Section 12, registration was made a prerequisite to the bringing of an infringement action; under prior law, affixation of notice was the only prerequisite.

206 Under the 1891 Act, only the type or plates from which the work was printed or reproduced had to be manufactured in the United States; the actual printing could be done outside the country. Under the 1909 Act, the actual printing had to be done in the United States. A new requirement of binding in the United States was added. The term for ad interim protection of English-language books and periodicals first published abroad was set at only 30 days from the date of deposit in the Copyright Office. Section 16 of the 1909 Act also required the filing of an affidavit of compliance, while Section 17 made the filing of a false affidavit a misdemeanor. Import prohibitions were contained in Sections 31-33.

207 Berne did, nevertheless, have an effect on the United States’ international relations. Section 1(e) of the 1909 Act required a special finding by the President, before issuing a proclamation granting foreign authors protection, that the author’s country granted U.S. musical authors mechanical reproduction rights. Article 13 of the Berne Convention, as revised by the 1908 Berlin Conference, granted such rights to authors of musical works, and thus, as noted by the Register of Copyrights in his 1910-1911 annual report, provided a sufficient basis to satisfy Section 1(e)’s requirement. 1910-1911 Annual Report of the Register of Copyrights at 16.

208 17 U.S.C. §8(b)(1909).