Case Files from the Archives; Vol 2: Folsom v. Marsh, Gilbert & Sullivan, and More!

Some of you may have noticed a post I did last week, about the digitization of the First Circuit’s case file from Pierce & Bushnell v. Werckmeister.  I was excited to be able to share that one, but indicated it was only the tip of the iceberg.   Well, the rest of the case files are now online, and they’re amazing.  To be clear, these are not the reported decisions, but are rather the various papers filed with the Court, including pleadings, evidentiary documents, orders, exhibits, and more, only available to the public before via a trip the National Archives at Boston.  As before, a major thank you is in order to The Boston Public Library, The National Archives – Boston, and the Internet Archive for getting these digitized.

Edit to add: the remaining case files from this project have been posted and I’ve discussed them in a subsequent post here.

The star of this batch is almost certainly the case file from Folsom v. Marsh, 9. F.Cas. 342 (C.C.D. Mass. 1841), “widely regarded as the first ‘fair use’ case in the United States.”1  To borrow verbiage from the Copyright Office’s Fair Use Index, this is a case  brought by Jared Sparks, who owned copyrights in President Washington’s personal and official papers that he edited for The Writings of George Washington, published a twelve-volume work including President Washington’s papers with plaintiff publisher Folsom, Wells and Thurston. Defendant Reverend Charles Upham, a writer and anthologist, copied 353 pages of President Washington’s papers in the two-volume work The Life of Washington in the Form of an Autobiography, published by defendant Marsh, Capen and Lyon.

Plaintiffs alleged that defendants infringed their copyrights because Upham copied the papers verbatim from Spark’s book. The court found that defendant’s use of plaintiff’s letters was not fair use. In reaching this conclusion, the court recognized principles that are the foundations for the modern fair use doctrine, stating: “In short, we must often, in deciding questions of this sort, look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.” Although the standard narrative that Folsom v. Marsh created fair use has been largely displaced,2 it is still the most important case to the formation of the fair use doctrine.

The case file is a rich resource for learning more about Folsom v. Marsh.  It includes the Court’s final decree, certification of deposit by the State Department (hand-signed by Daniel Webster), a copy of the 1827 contract between John Marshall, Bushrod Washington, and Jared Sparks to collect and published the complete letters of George Washington, another such contract from 7 years later between John Forsyth, then-secretary of state, and George C. Washington, the letter appointing George S. Hillard as Special Master in the case to determine the amount of infringement, Hillard’s complete report, as well as the complaint and answer. No copy of Justice Story’s opinion is in the file; the case was reported by Justice Story’s son William.

In addition to the Folsom v. Marsh case file, there are a number of other newly digitized case files.  They are:

  • Dielman v. White, 102 F. 892 (C.C.D. Mass. 1900).  Case File.  This is a case about the right to photograph certain mosaics in the then-new Library of Congress Jefferson Building.  Includes pleadings and extensive testimony, as well as a catalog of reproductions of the artwork in the Library.
  • Arthur S. Sullivan el al. v. Charles A. White 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.  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.
  • Richard D’Oyly Carte v. John Clark (Unreported, C.C.D.MA. 1880).  Case File.  Breach of contract suit over the failure of John Clark, a.k.a. Signor Broccolini, to perform in Carte’s productions in America, where he was performing as The Pirate King in Pirates of Penzance.  Carte is of course best known as the impresario behind Gilbert & Sullivan.  Includes a substantial affidavit from Carte.
  • Kennedy v. McTammany, 33 F. 584 (C.C.D. Mass. 1888).  Case File.  This was the first case in America to address the question of whether a piano roll is a copy of the musical composition performed when the roll is used with a player piano.  In holding the negative, this case lead directly to the Supreme Court’s decision in White-Smith v. Apollo 20 years later.  Includes substantial pleadings which go into technical detail regarding the player piano mechanism.
  • Emerson v. Davies, 8 F. Cas. 615 (C.C.D. Mass. 1845).  Case File.  Case regarding whether certain tables could be protected; generally credited with establishing the “sweat of the brow” doctrine rejected by the Supreme Court in 1991 in Feist v. Rural Telephone.
  • Sampson & Murdock Co. v. Seaver-Radford Co., 140 F. 539 (1st Cir. 1905).  Case File.  This case is about copyright in city directories, and held the information theirin protected.  This case is among the leading cases to be overruled by Feist v. Rural Telephone.  Case file includes the transcript of record and briefs.
  • White-Smith Music Pub. Co. v. Goff, 187 F. 247 (1st Cir. 1911). Case File.  This case is about the rights of a music publisher to renew a copyright where the author had died.  The Court affirmed the District Court in holding that the renewal term was a separate term and the proprietor had no right to apply for the renewal term.  Case file includes the transcript of record and briefs.  Also includes a copy of the Attorney General’s opinion on the issue, also available at 28 Op. Att’y Gen. 162 (1910).
  • Gray v. Russell, 10 F. Cases 1035 (C.C.D.Mass. 1839).  Case File.  This case is generally seen as one of the final nails in the coffin of the rule permitting unlicensed publication of abridgements.  In an opinion by Justice Story the Court found that an abridgement of a Latin book with all the notes copied verbatim from the source text was an infringement.  The case file includes a detailed report of a special master and handwritten pleadings to the Court.
  1. Wikipedia Article, Folsom v. Marsh
  2. See, for instance, Matthew Sag’s article The Pre-History of Fair Use

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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