Copyright Casefiles from the Archives, Vol. 1: Pierce & Bushnell v. Werckmeister

I’m pleased to announce one of the first fruits of a partnership between the Boston Public Library, National Archives at Waltham, and the Internet Archive.1  At my suggestion, they’ve begun digitizing the case files for a number of copyright cases that I thought were particularly worth seeing from before 1923.  The National Archives at Waltham includes federal court records from all of New England, but I limited my list of cases to the First Circuit – so if there are suggestions for cases from Connecticut or Vermont, feel free to leave them in the comments or just tell me directly.  I’ve also only requested case files from cases before 1923 to avoid any possible copyright issues, at least for now.

The first casefile to come online is the file for Pierce & Bushnell Mfg. Co. v. Werckmeister, 72 F. 54 (1st Cir. 1896), which reversed Werckmeister v. Pierce & Bushnell Mfg. Co., 63 F. 445 (C.C.D. Mass. 1894).  Briefly put, the case involved photographic reproduction of a painting entitled “Die Heilige Cacilie” by the German artist Gustav Naujok, who assigned all reproduction rights to Photographische Gesellschaft Berlin, which in turn photographed the work, copyrighted the photograph with the Librarian of Congress, and inscribed the notice required under the 1870 Copyright Act, as amended in 1891.  The painting depicts “the patron saint of music, St. Cecilia, sitting before an organ, and cherubs dropping flowers, and by means of the artistic coloring of the picture and the expression in the face of St. Cecilia, express emblematically the power of sacred music.”  Case File, Transcript of Record at 1.  It was undisputed that Pierce & Bushnell Mfg. Co. had made copies of the work without permission.  However, upon suit by Emil Werckmeister, a principal of Photographische Gesellschaft Berlin, Pierce & Bushnell argued that the copyright was invalid, because no copyright notice was inscribed on the original painting, and that it had been publicly exhibited without that notice before any copyright was registered.

The Circuit Court for the District of Massachusetts (sitting as a trial court, as it would in certain matters until 1911) disagreed with the defendants, and held that the copyright was valid, and that copyright notice only needed to be inscribed on copies of a work, not on the original.  The case file thus shows the case presented to the then-new First Circuit Court of Appeals – including the main and supplemental briefs of both parties, the transcript of record including interrogatories taken as part of the litigation.  Unfortunately, it does not seem that any example of the photograph at issue is included.

The Circuit Court of Appeals would overturn the trial court, and hold that notice was required on the original painting.  However, the Supreme Court would overrule that result in a different case, also involving Werckmeister, in 1907.  American Tobacco Co. v. Werckmeister, 207 U.S. 284 (1907).

Lots more coming, including (I hope) the case file from Folsom v. Marsh.

  1. In particular, I’d like to thank Tom Blake at the Boston Public Library for taking the lead in facilitating this project, as well as Alfie Paul at the National Archives.

Author: Zvi S. Rosen

Lawyer and sometimes academic. I've written a fair deal about the evolution of intellectual property law into its present form, this blog is a way to share things that don't fit into a full-length article.

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