Mazer and the Balinese Dancer

As folks who read this blog have doubtless heard, the Supreme Court recently decided the “Cheerleader Case” of Star Athletica v. Varsity Brands, which is the first case to seriously examine the Useful Articles doctrine in copyright since the Mazer v. Stein decision from 1954.  I blogged about Mazer v. Stein around the time of the oral argument in Star Athletica, sharing the transcript of argument from both the Supreme Court and District Court.  However, Sy Damle tweeted this, and it inspired me to double-check (and share) the actual statutes whose copyrightability was at issue in Mazer v. Stein:

And Sy is right…people were talking about the figure at issue in Mazer v. Stein as a “Balinese” dancer as early as the 1950s.  Stein maintained a fairly extensive catalog of statuettes that also functioned as lamp bases (PDF, 7 MB, my scan), and was involved in a number of seperate cases, one of which led to the Supreme Court decision in Mazer v. Stein.  However, looking at the original complaint in Mazer, none of the six at issue is a Balinese dancer; as Sy and I realized, the Balinese dancer was actually at issue in Stein v. Expert Lamp, where the District Court and 7th Circuit held that the lamp base was not eligible for copyright prior to being de facto overruled by the Mazer decision.  A Petition for Write of Certiorari of certiorari had been filed in by Stein in the Expert Lamp case in 1951 (so two years before the Mazer cert petiton was filed) but denied – the circuit split likely was not ripe yet.

There’s an interesting story here about how mistakes propagate in the literature.  The first mention of a statutette of a Balinese dancer being at issue in Mazer was in a note in the Cornell Law Quarterly, 39 Cornell L. Q. 725 (1953-1954), which asserted that all the cases involved by Stein involved essentially the same facts, not realizing that Stein had designed many lamps and different lamps had been copied by different competitors.  The assertion that Mazer was about Balinese dancers was repeated in the January 1955 issue of the Harvard Law Review, 68 Harv. L. Rev. 489, 517 (1954-1955).  The June 1954 Issue of the ABA Journal also stated that Mazer was about a statuette of a “Bali Dancer.”  The note didn’t cite any authority for this proposition, but the line about it being a Balinese dancer would be steadily repeated over time until it became canon.  In 1977 Melville Nimmer, author of the leading treatise on copyright, repeated this line about the Balinese Dancer in his widely cited article The Subject Matter of Copyright under the Act of 1976, 24 UCLA L. Rev. 978 (1977).

In each case citation was only made to the reported decision in Mazer v. Stein, which has no comment about what sort of human figure was on the lamp base.  However, the appellate record contains a details on the works at issue, and the transcript of the argument before the Supreme Court shows that the figure of a female ballet dancer was actually brought to the Supreme Court for the argument.  I’ve reproduced the listings of images at issue in Mazer v. Stein with images of the statuettes at issues  (along with copyright registration numbers and dates – all taken from the complaint) below the jump:

Continue reading “Mazer and the Balinese Dancer”

19th Century Congressional Extensions of Patents

Under the Patent Act of 1836, a patent had a 14-year initial term, and could be renewed for seven more years by the Commissioner of Patents.1  In theory, that would be the end of the matter, but in practice the inventor would sometimes petition Congress for a further 7-year extension.  While doing some research in the National Archives on an unrelated project2 I found a number of these, and scanned them using CamScanner.

The impetus for posting them now is Sean O’Connor’s excellent new article Origins of Patent Exhaustion: Jacksonian Politics, ‘Patent Farming,’ and the Basis of the Bargain.  His article includes extensive discussion of the litigation over the patent received by William Woodworth in 1828 for an improved wood-planing machine, which in addition to receiving a Congressional extension in 1845, was the subject of two Supreme Court Cases – Wilson v. Rousseau, 45 U.S. 646 (1846) and Bloomer v. McQuewan, 55 U.S. 539 (1852) – both concerning the effect of extension on assignments.3 Until 1843, Woodworth entered into a cross-licensing agreement with Uri Emmons, who patented a similar wood planing machine in 1829 (patents were not examined under the pre-1836 system).  However in 1843 the Comissioner of Patents did not renew the Emmons patent, leaving the market to Woodworth.  With the Congressional extension of the Woodworth patent set to expire in 1856, the heirs of Uri Emmons petitioned congress to revive the Emmons patent for a seven year term, an action that was not successful so far as I can tell.  However their petition is fascinating, including examples of renewals of expired patents by Congress and other oddities of term that would likely not be tolerated today.  My scan of their petition is here.

An even more famous patent is that received by Samuel Morse for the telegraph,whose legal journey has been written about extensively by Adam Mossoff.  Morse received a patent for his invention in 1840, which was extended to 1861 by the Commissioner of Patents.  In 1860 Morse lobbied Congress for a further 7-year extension of his patent, but it does not appear it was granted.  In support of his application Morse filed a hand-written petition, a copy of his brief from 1854, and a newly-produced brief by Charles Mason written in support of the extension.  I have uploaded these documents to Archive.org here.  Also included was the Decision of the Comissioner of Patents approving the extension of Morse’s 1846 patent for improvements to the telegraph, which has been reproduced elsewhere.

Finally, I’ve included a petition by William Atchinson attempting to reclaim patents for rubber he had assigned away by purposes of a Congressional extension here.

  1. The National Archives has a list of all requests for renewal filed with the Patent Office, which I’ve uploaded here: Patent Extension List.
  2. Specifically, I was doing a little sleuthing for Brian Frye for what would become his article about slavery and patent law for a coming symposium.
  3. There’s more information on the Woodworth patent and machine here.