Story of Bleistein v. Donaldson Lithographing Company: Originality as a Vehicle for Copyright Inclusivity (Copyright)
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Description
On February 2, 1903, with the wife of the President of the United States seated as his guest in the audience, Oliver Wendell Holmes, Jr., newly appointed to the United States Supreme Court, delivered the opinion of the Court in Bleistein v. Donaldson Lithographing Company. The reverberations set off by that succinct and elegant little opinion continue to echo in the copyright case law more than a century later. Bleistein at its inception was, from the viewpoint of a modern reader, an unpreposessing case, involving a garden-variety claim of copyright infringement. The plaintiffs’ company had designed and printed advertising posters for a traveling circus, and when the circus ran short of them, it asked the defendant to make some more. Donaldson Lithographing did so, using the plaintiffs’ designs as its models. For this, 78 the plaintiffs sought damages of one dollar per illicitly copied sheet. But as the litigation progressed from district to circuit to Supreme Court, an aspect of the case, one not hinted at in the complaint, answer, or the questions and answers during testimony at the trial, emerged that gave the dispute its legal gravitas and rendered it memorable. There are many ways to characterize what the Bleistein case was “about” by the time it reached the Supreme Court. Perhaps the simplest thing to say is that the case had morphed by that stage into a debate over the kind of a contribution to “science and useful arts” a claimant had to make to be eligible, as a constitutional matter, for protection by copyright. Although the problem is sometimes said to be deciding how high the threshold of originality should be set to qualify for a copyright, this description does not entirely capture the issue that either the lower courts or the Justices of the Supreme Court understood themselves to be facing when they endeavored to resolve the Bleistein dispute. What separated the majority opinion of the Supreme Court from the decisions below—and from Justices Harlan and McKenna in dissent—was Holmes’s profound skepticism about the propriety of any attempt by judges to engage in qualitative line-drawing to decide which sorts of contributions were or were not copyrightable.
Source Publication
Intellectual Property Stories
Source Editors/Authors
Jane C. Ginsburg, Rochelle Cooper Dreyfuss
Publication Date
2006
Recommended Citation
Zimmerman, Diane L., "Story of Bleistein v. Donaldson Lithographing Company: Originality as a Vehicle for Copyright Inclusivity (Copyright)" (2006). Faculty Chapters. 1455.
https://gretchen.law.nyu.edu/fac-chapt/1455
