Announcing the Release of Over 2,000 Pages of Lost Pre-1870 Copyright Records

This post is fairly long, and I don’t want to bury the lede, so here it is: I’ve tracked down and digitized over 2,000 pages of copyright records from before 1870 that had generally been assumed lost.  The whole story follows, but to jump to the records, they are here (part of the GW Law Library Website).
        Since I started this blog in the fall, I’ve occasionally alluded to a number of projects I’ve been working on regarding the pre-1870 copyright records, most notably in my post where I provided links to the transcriptions of a small part of those records.  As the 2015-2016 Abraham L. Kaminstein Scholar in Residence at the US Copyright Office, my efforts were focused on a descriptive and quantitative study of the Office’s records under the Pre-1976 Act, so as to complement Robert Brauneis & Dotan Oliar’s work on the records under the current Act.  Part of that effort has resulted in a study of copyright registrations from 1870-1977, on which I’ve collaborated with Saurabh Vishnubhakat to present at a number of conferences, and which we are currently in the process of writing up into law review format.
        However, while doing that project, I became curious about the oldest records, those from before Copyright was centralized at the Library of Congress in 1870.  Until that point copyright registrations had been made (and the records kept) at the individual Federal District Courts.  In 1870 those records were transmitted to the Library of Congress, but it’s been fairly well-known that a substantial number of records never made it to the Library, and these records have generally been assumed lost.

The Pre-1870 Copyright Records

        The pre-1870 copyright records that made it to the Library were held by the Copyright Office until the 1930s,1  when they were transferred to the Rare Book Room of the Library of Congress, and in 1939 Martin Roberts prepared the first comprehensive study of these records.  His work provides both a narrative description of these records and a checklist of what records came into the possession of the Rare Book Room (pp. 16-19).  The main body of these records were transferred to microfilm, and this is the breakdown of of the microfilm, by number of pages per state:
        Looking at Roberts’s Checklist and these statistics, two things become clear – for New York, Philadelphia, and Boston, whose District Courts together handled 85% of copyright activity before 1870, the Library of Congress has a complete or essentially complete set of the records.  However, for many jurisdictions with a comparatively small volume of copyright activity, records may only exist for the years immediately before 1870, if it at all.  This seemed strange to me, thinking that so many Federal Court records had gone missing, and I began digging into the question.
        What I’ve been describing as a unitary series of records is actually a number of interrelated records.  These are:
  • The actual registrations – Congress provided a specific form for the registration in the 1790 and 1831 Acts, and the Clerk of the Court would either write it out or have application blanks printed where the applicant would fill in the title and other details (all the lost records were handwritten, as only the jurisdictions with a large volume of copyrights bothered to have blanks printed up).  These were generally kept in a record book, meaning that there’s likely no missing records from the period covered by a record book.
  • Title pages – Part of the procedure for registration was the deposit of a title page with the District Court, on which the Clerk would typically make a notation about the registration.  These mostly go in-hand with the registration record, but in a few cases (like the New Hampshire records for 1821-1842 included in this project) they comprise the only record.
  • Assignment records – As now, the Courts would record assignments of copyright and keep records of those assignments.
  • Indices – As the name implies, these are indexes maintained by Courts to assist in locating the copyright registrations they’d made.
  • Account books – the District of Massachusetts and likely others kept records of the funds paid for copyright registrations, and those records are included in this project.

Finding & Digitizing the Lost Records

        One breakthrough was finding the research G. Thomas Tanselle had done on the copyright records in the 1960s, which led to his study Copyright Records and the Bibliographer.  In that study Tanselle identified many records which had not found their way to the Library of Congress, and listed them in Appendix B to that work.  I was able to find all the records Tanselle listed except for the Ohio records for 1829-1842, which have continued to elude me (see below for more on still-missing records).  The work of other bibliographers, including Joseph J. Felcone and Roger E. Stoddard was also extremely helpful.  In addition, using the online National Archives Catalog, older printed sources, and systematic inquiries to the staff at each regional division of the National Archives, I was able to locate copyright records which had not made it to the Library of Congress from seventeen states as well as the District of Columbia.
       At that point, I began to strategize how to get scans of these records, considering that I had no real budget for this project.  Colleagues at law schools local to various National Archives locations were able to connect me with interested law students (who had a camera), and in particular Valerie Snow, Zachary Swartz, and Preston Morgan, who assisted by digitizing materials in Waltham, Atlanta, and Fort Worth, respectively.  A number of colleagues including Brian Frye also assisted with getting scans of these records.
        I am also indebted to the staffs at various regional locations of the National Archives, including those locations, Philadelphia (especially Gail Farr), Seattle, Kansas City, and more.  Thanks are also due to the members of the faculty and law library staff at the George Washington University Law School.  Finally, this project owes much to my colleagues from my time at the Copyright Office.

Making the Lost Records Available

        The staff at the Burns Law Library at the George Washington university, especially Ken Rodriguez, were instrumental in putting together a guide to these records that will be available to all.  The guide to the lost records is now online here, with links to scanned versions of these records.  Let me know about cool finds, or any other cool uses you find for these records.  My ultimate hope is that the Rare Book Room of the Library of Congress will digitize their holdings of pre-1870 copyright records (which I would guesstimate as being 300,000 pages), and when combined with this project, will represent an essentially complete record of copyright (and thus literary, musical, etc) activity in America in its earliest days.
        Special thanks to the Virginia Historical Society, for giving me permission to share my scans of copyright records they hold from 1864-1865.
        One set of records that is not there yet, but I hope I will be able to link to soon, is the records from South Carolina.  They are held by the South Caroliniana Library at the University of South Carolina, and I’m informed they plan to digitize them in the near future.
        Also of note, the records of the Confederate Secretary of State contain information on copyrights from the states that seceded during the Civil War, and have been put online by the Library of Congress.

Records Still Missing

        One interesting question to ask is “what records are still missing?”  The major set of missing records are from Virginia, where records only exist from the District Court in Richmond (the busiest by far in that era) for 1867-1870, although the inclusion of records from 1864 and 1865 in this project ameliorates the problem slightly.  There is also a printed list of copyright records for 1790-1844 from Richmond, taken from a source that no longer seems to exist. I’ve included a list of other states with records that are still missing below, note that it may not be exhaustive – in particular a list of records received from the US State Dept. in 1870 (that I located and scanned from the Library of Congress Manuscript Division) suggests that there may be some substitute records for these jurisdictions for dates after 1831:
  • Connecticut – No records exist from before 1804
  • District of Columbia – No records exist from before 1845 (the State Dept. records indicate records from 1814-1844 may have survived from there).
  • Georgia – No records exist from before 1845
  • Florida – Essentially no records known before 1870
  • Iowa – No records exist from before 1868
  • Indiana – No records exist for between 1841 and 1853
  • Kansas – No records exist from before 1865
  • Louisiana – Records from before 1851 are extremely spotty – seven records from 1837 and 1838 were located as part of this project, but presumably many more existed at one point.
  • Maryland – No records exist from before 1831 (presumably this represents a decent volume of records)
  • Missouri – No records exist from before 1857 (State Dept. records indicates substitute records for 1834-1852)
  • Mississippi – No records exist from before 1850
  • North Carolina – North Carolina was divided into a large number of Districts in this time, and this project uncovered the records from Raleigh, which presumably had the greatest volume of copyright activity in the state.  Scattered records exist from other Districts, including Cape Fear and Pamplico.
  • Ohio – The copyright record book from the US District Court for the Southern District of Ohio at Cincinnati for 1829-1842 is listed by Tanselle, but I have been unable to find it.  The last mention of it was in a WPA Survey of federal records; this is the Form 58SA created by the WPA cataloging the volume.  I’ve been in touch with the Court and the Chicago location of the National Archives, but neither one can find it.
  • Rhode Island – No records exist from before 1831
  • Texas – Almost no records exist from before 1867
  • Virginia – No records exist from Richmond before 1863, as discussed above.  A letter from 1863 indicates that the records had been destroyed in a recent fire (it’s unclear how the list of copyrights from before 1844 was created, presumably the letter was partly in error).

 What’s Next

        Looking at the Guide, people may note that there are also uploads of letter books as well as what I’m referring to as “ephemeral” copyright records, both held by the Manuscript Division of the Library of Congress.  I plan to blog more about those next.

        As I noted callings these records as “lost” is a bit misleading – or at least my wan attempt at clickbaiting.  However, they have been essentially unknown, especially to the legal community, and I hope this will spur interest in a fascinating area where law and culture converged in early America.

  1. This is discussed in Ruth Shaw Leonard’s unpublished 1944 Master’s Thesis at Columbia Univ. “A Bibliographical Evaluation of the Copyright Records for the United States District Court of Massachusetts, 1800-1809.”

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.

A List of Labels and Other Unusual Copyright Registrations, Compiled in 1859

Although most of the copyright records from before 1870 are held in the Rare Book Room of the Library of Congress, the Manuscript Division of the Library of Congress also has substantial holdings of miscellaneous documents regarding copyright before 1870 in the Library’s Archives, most of which seem to be sourced from the State Department or the Library itself.

I’ve gone through the four boxes of copyright records in the Library of Congress Archives, and there’s fascinating stuff there, which I will likely base several more posts around what’s there.  But while giving a talk at the Works in Progress in IP Colloquium this past weekend (which Rebecca Tushnet liveblogged, for those interested), I mentioned a list I found there of what I’ve been referring to as “irregular” copyright registrations that was compiled in 1859, although the document is entitled “Catalogue of Trade-Marks, Lables, &c, Arranged by State.”  In the same file was what appears to be a supplement, which brings the coverage of this document up to 1861.  The document does not give a specific starting date, although a non-systematic look at the document shows that the earliest date on it is 1818.

The document is available here.  Note that it is presented as two separate documents on the Internet Archive – it defaults to the 1861 Supplement, but the link to the main 1859 document is just below the document itself (direct link to the main 1859 document here).  The document is a list of product labels but also other materials including almanacs, charts, and miscellaneous other works registered for copyright that were not the sort of books commonly thought of when copyright was mentioned.

It’s not entirely clear to me who created this list, or why it was created; it would have involved substantial work to assemble it from the various District Courts all over the country that were doing copyright registrations at the time.  However, my best guess relates to the battle over copyright registration in patent medicine labels, something I wrote about on pp. 350-352 of my article Reimagining Bleistein.1  Briefly, in 1856 the Secretary of State had sent out a circular, on the urging of the Clerk of the District Court for the Northern District of New York,  stating that product labels were not the proper subject of copyright and should not be registered.  Three years later in 1859 the Patent Office took over responsibility for copyright deposits and issued a similar circular, which I’ve included a transcription of below.  My guess is that the effort to create a catalog of nonstandard copyright registrations was part of the same effort that produced this circular:

As the acts of Congress relating to copyright are designed to promote the acquisition and diffusion of knowledge, and to encourage the production and publication of works of art; and as the “map, chart, musical composition, print, cut or engraving” to be protected by copyright must have a title applicable to itself, which title is to be recorded, it is therefore held that stamps, labels and other trade-marks of any manufactured article, goods or merchandise are not embraced within the meaning of the acts.2

  1.  https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1507125
  2. Circular reproduced in The Law of Copyright, N.Y. Times, July 25, 1859

Transcriptions of Pre-1870 US Copyright Records

Until mid-1870, copyright registration duties were handled by the local U.S. District Court of the author or proprietor, while the work itself was deposited with the Department of State (until 1846), Library of Congress (1846-1859, 1865-1870), Smithsonian Institution (concurrently 1846-1859), and Patent Office (1859-1865, 1865-1870 concurrently).  In 1870 all copyright responsibilities were centralized in the Library of Congress.

I’ve been working on a number of projects regarding these oldest federal copyright records, which I hope to discuss more on this blog.  One of these projects has been to assemble all currently existing printed transcriptions of these records.  As each District Court maintained its own records and the pre-1870 records are still organized by Court, these transcriptions have mostly focused on individual states.  The list follows below: Continue reading “Transcriptions of Pre-1870 US Copyright Records”

9th Circuit Historical Records and Briefs: the United States v. Groucho and Chico Marx

Essentially every case filed on appeal has a printed transcript and briefs created as part of the appellate rules of most courts.  These transcripts are a trove of information about the case, because they contain everything recorded from the trial court, typeset and organized.  The briefs, of course, are the written arguments to the appellate court.  The Records and Briefs of the US Supreme Court (available as a database from Gale or on microfilm) are the best-known set of records, but every US Circuit Court of Appeals and state supreme and intermediate appellate court have such records.

Tonight, I discovered that a substantial cache of briefs from the 9th Circuit of Appeals, which had been collected by the Library at UC Irvine School of Law, are available online through the Internet Archive.  It’s unclear if the UC Irvine Library prepared an index to the volumes, but it doesn’t seem to be online anywhere.  There is a tool called the 9th Circuit Historical Records Index System (or 9chris), using the uncorrected OCR from the Internet Archive, but it’s a little wonky (although it works decently once you get used to it).

One case I did find was The United States v. Groucho & Chico Marx, filed 1937 with the 9th Circuit Court of Appeals, where they were appealing their conviction for criminal copyright infringement.  The LA Times has a bit of information about the case, which concerned the use of a script the brothers had been sent but rejected.  The brothers were fined $1,000 but spared prison time.  In 1938 the 9th Circuit affirmed their conviction.

The case file contains a transcription of the original “Mr. Dibble and Mr. Dabble” sketch, transcripts of testimony from Groucho and Chico Marx , transcripts of radio programs in full, and of course the briefs of all parties.

A few other copyright cases I found, in a quick search:

  • K-91, Inc. v. Gershwin Publishing Corporation, 372 F. 2d 1 (9th Cir. 1967).  Case File
  • Warner Bros. Pictures v. Columbia Broadcasting Sys., 216 F.2d 945 (9th Cir. 1954) Case File (the Maltese Falcon / Sam Spade character copyright case)

There’s plenty more up there.  Surely a treasure trove for anyone looking at litigation on the west coast.

Transcribed Proceedings of CONTU

CONTU, or the Commission on New Technological Uses of Copyrighted Works, was established in 1974 by United States Congress to study issues associated with copyrighted works in computers and computer-related works.1.  The Report examined issues of computers and copyright, as well as other related issues like photocopying, and issued its final report in 1978, which asserted inter alia that copyright could protect a computer program.2  Although the final report of CONTU has been available online for some time, transcripts of the proceedings of CONTU were prepared but have only been available in a haphazard manner, on or off-line.  With this post I’ve endeavored to compile and make available all the transcripts of CONTU.

I have linked to the transcripts of 22 out of 23 meetings of CONTU; the transcript to the 22nd Meeting was not easily available, although it was supposedly only an administrative meeting.  If anyone has it, let me know.  This list is adapted from the online version of Appendix G of the report, available here.

In addition to the transcripts I have digitized some of the Administrative Documents of CONTU (PDF, 4 MB), held by the Library of Congress, including the charter and annual reports from 1977 and 1978.

Links below the fold:

Continue reading “Transcribed Proceedings of CONTU”

  1. Wikipedia, CONTU
  2. The Copyright Office had accepted computer programs for registration since 1964, but the issue of whether this was appropriate lingered.

Movie Copyright Litigation from 1915: O’Neill v. General Film Co.

Today’s New York Times ran an article about the modernization of the Archives for New York County, and it reminded me of some research I did there for my draft article on common-law copyright.  Although I ended up not using it that much, I tracked down the files from a number of nonmusical common-law copyright cases, and this led me to the same New York County Municipal Archives, to look at the case file for O’Neill v. General Film Co., 171 App. Div. 854 (N.Y. App. Div. 1916).

The case was brought by James O’Neill, best known today as father of Eugene O’Neill, but an important actor of his day who owned the American common-law copyright rights to Charles Fechter’s English stage adaptation of the County of Monte Cristo.  He sued the General Film Company for distributing a film also based on the novel The Count of Monte Christo, which he alleged was also based on Fechter’s adaptation, and made substantially the same editorial and dramatic choices as Fechter.  1  O’Neill had been playing the lead role of Edmond Dantes for some 35 years by this point, to tremendous financial success, and in the same year the suit was originally brought (1912), he had starred in an authorized adaptation of The Count of Monte Christo.

Both sides hired prominent lawyers.  The plaintiff hired Dittenhoefer, Gerber & James, likely the leading theatrical law firm of its day – Judge A.J. Dittenhoefer had been a leading theater lawyer for decades at this point.2.  The defendant hired Nathan Burkan, a rising star in the legal world who only a few years later (and before the appeal was decided) would help found ASCAP.

At trial, the Court took testimony and ruled in favor of the plaintiff O’Neill, holding that the motion picture at issue infringed his rights in the the Fechter play at common law.  On appeal, the Court had no difficulty affirming the trial court on the count of copying, but found the question of chain of title and publication more pressing.  On the question of whether O’Neill truly had valid title to the common-law rights in the play the Court was equivocal, finding the evidence scanty, but ultimately affirmed the trial Court and held that he had produced sufficient evidence to bring the case and create a rebuttal presumption of ownership.  The Court had the most difficulty with publication – they agreed that performance of the play or taking photos of the production did not constitute a divestative publication that would destroy common-law rights, which only made sense following existing NY precedents and the US Supreme Court’s recent decision in Ferris v. Frohman.  However, O’Neill had signed a contract several weeks earlier with the Famous Players Film Co,3 and the Court was concerned that this might have been a divstative publication of the unpublished play.  In the end, the Appellate Division held that the motion picture rights to any part of the unpublished play that were used in the authorized motion picture were deemed published, and thus the common-law rights had been lost.  However, O’Neill retained the common-law film rights to whatever parts of Fechter’s play had not been used in the motion picture.

The printed record of the case on appeal, which I scanned at The New York State Library in Albany, proved much more manageable than the original handwritten records of the case at The New York County Archives.  It contains a transcript of the testimony at trial which includes extensive documentation of theater practices for common-law copyright, by the plaintiff and others.4   The appellate briefs of the parties are also included, laying out the issue of common-law copyright as it was understood as of 1915.  However, not everything from the records in the New York County Archives is reproduced in the printed appellate record.  Notably, the New York County Archives has what appears to be a complete copy of Fechter’s dramatization, dated 1868.  Fechter’s drama has been reprinted several times, although not recently, and in differing versions.  It might be of interest to literary scholars.  In addition, the case file included a number of advertisements as exhibits; I’ve included them after the jump.

Continue reading “Movie Copyright Litigation from 1915: O’Neill v. General Film Co.”

  1. The film was not actually made by General Film, but rather by the Selig Polyscope Company in Chicago.  General Film was the distribution company of the Edison Trust.
  2. Dittenhoefer is best-remembered today for his association with Abraham Lincoln
  3. Famous Players later merged into what would become Paramount
  4. The testimony begins at page 61

Another Bibliography, This One for Performers/Sound Recordings

A bit ago I posted about the bibliographies the Copyright Office compiled the three bibliographies of design protection produced by the Copyright Office from 1955 to 1976.  Also in 1955, William Strauss of the U.S. Copyright Office produced a Bibliography on Neighboring Rights, which compiled everything known to have been published, up to that time, on the issue of the rights of performers under copyright, including protection under copyright law for sound recordings.  This book is available in a few law libraries but does not seem to be online, so I figured it made sense to share it here, especially given the recent decision of the New York Court of Appeals in the Flo & Eddie Case.

The Copyright Office did a very substantial study on performance rights for sound recordings in 1978, which included a selected bibliography of its own, commencing on page 1143.

Copyright Case Files from the Archives, Vol. 3: A Few More Cases and a Register of Trademarks from 1874-1879

As the New Year approaches, it seems appropriate to share the remainder of the case files digitized by The Boston Public Library, The National Archives – Boston, and the Internet Archive.  In addition to the three case files, there is a somewhat confusing register of trademarks and labels created by the U.S. District Court for Massachusetts from 1874-1879.  Also, I want to wish all my readers a Happy New Year, and to expect lots more on this blog in 2017, including plenty more on common-law copyright for sound recordings, pre-1870 copyright record information, and generally more intellectual property history than you might think possible.

The case files are:

  • Arthur S. Sullivan el al. v. Louis P. Goulland et al (Unreported, C.C.D.MA. 1879).  Case File.  This is a case about piracy in the operetta The Pirates of Penzance, by Gilbert & Sullivan – a companion to the Sullivan v. White case discussed in the previous post on these files.  I’ve written about this case in my article on the origins of the public performance right in music, and I’m excited to have full-color scans of the case file online.  Included in the file are multiple examples of illicit scores of the songs from The Pirates of Penzance.
  • Greene v. Bishop, 10 F. Cas. 1128 (C.C.D. Mass. 1858).  Case File.  The opinion by Justice Clifford is famous for being one of the first after Folsom v. Marsh (also in the previous post) to discuss fair use, along with the copyrightability of abridgements.  The case file tips the scales at 733 pages, and includes substantial evidentiary documents, including lengthy answers to interrogatories.
  • Lawrence v. Dana, 15 F. Cas. 26 (C.C.D. Mass. 1869).  Case File.  Another early fair use case from MA, another giant case file at 762 pages.  This case concerns whether the copying of the notes on cases from Henry Wheaton’s treatise on international law was fair use.1  The Court’s opinion references the evidence in the case file frequently and excerpts it as well, so it is helpful to see the entire case file.  The file is also a bit more readable than the case file in Greene v. Bishop, as parts of it are typeset instead of being entirely handwritten.

In addition to the case files, there is a register of trademarks and product labels registered for copyright with the District Court in Boston from 1874-1879.  I’m not entirely sure why this volume exists.  Under the 1870 Trademark Act registration was done at the Patent Office, and the 1874 Print and Label Act moved copyright registration for product labels and advertising prints was moved to the Patent Office as well.  Copyright registration had of course been in the District Courts until 1870, but the 1870 Copyright Act moved it to the Library of Congress, and no measure moved any part of it back to the District Courts since.  Whatever the case, the record book is here, and I welcome comments or suggestions as to why it exists – there is no record of such a book existing in any other District Court.2  There are some fascinating product labels from the 1870s pasted into the record book.

  1. This is the same Wheaton who was the Supreme Court Reporter and plaintiff in Wheaton v. Peters.
  2. Ignore the “Minute Book in Bankruptcy” title on the cover – I assume they just repurposed a blank minute book