DEJONGE & COMPANY

v.

BREUKER & KESSLER COMPANY

U.S. | 1914-11-09

No. 18

235 U.S. 33 Supreme Court of the United States (1914) Caution

Also reported at: 59 L. Ed. 113 · 35 S. Ct. 6 · 1914 U.S. LEXIS 1044 · SCDB 1914-031

Cited by 39 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

DeJonge & Company sought to enjoin infringement of a copyright in a water color painting of holiday foliage designed to be reproduced repeatedly on strips of paper for wrapping boxes, but the copyright notice appeared only once per strip rather than on each individual repetition. The Supreme Court affirmed the lower courts' dismissal, holding that every reproduction of a copyrighted work must bear the statutory copyright notice, and that the repetition of the painting on a single sheet did not exempt the work from this requirement merely because the repetitions formed a harmonious design.

Opinion of the Court

Mr. Justice Holmes

Mr. Justice Holmes delivered the opinion of the court.

This is a bill to restrain an alleged infringement of a copyright under the law as it was before the act of March 4, 1909; c. 320, 35 Stat. 1075; viz. Rev. Stat., §§ 4952, 4970; act of June 18, 1874, c. 301, 18 Stat.

78. The work alleged to be infringed was described as a painting representing sprigs of holly, mistletoe and spruce, arranged in the form of an open cluster having substantially the outline of a square. It was exhibited in court, was a water color painting in fact, and no doubt might have been framed and used for the same purposes of pleasure as other more considerably, works of art. But it was so designed that it could be reproduced in repetitions that fitted and continued one another side by side and above and below, and was reproduced in that way with twelve repetitions upon strips of paper having much the look of wall paper and intended to be used in covering or wrapping boxes during the holiday season. Each strip bore a single notice of copyright. The Circuit Court, assuming that infringement was established, was of opinion that the work was a painting capable of copyright and also a design patentable as such, but held that, as the appellant had elected to copyright, the notice must be repeated on each of the twelve squares, although they did not present themselves as separate squares on the continuous strip. 182 Fed. Rep.

150. The Circuit Court of Appeals, reserving its opinion as to whether the sphere of copyright and patent for design overlapped, agreed with the Circuit Court that, if this was a painting, every reproduction of it must bear the statutory notice, and affirmed the dismissal of the bill. 191 Fed. Rep. 35, 111 C.

C. A. 567.

It seems to us that the case is disposed of by the statement. The thing protected and the only thing was the painting, the whole of which was reproduced in a single square. Every reproduction of a copyrighted work must bear the statutory notice. American Tobacco Co. v. Werckmeister, 207 U. S. 284, 294. It is suggested that it is overtechnical to require a repetition of the notice upon every square in a single sheet that makes a harmonious whole. This argument tacitly assumes that we can look to such larger unity as the sheet possesses. But that unity is only the unity of a design that is not patented. The protected object does not gain more extensive privileges by being repeated several times upon one sheet of paper, as any one would recognize if it were the Gioconda. The appellant is claiming the same rights as if this work were one of the masterpieces of the world, and he must take them with the same limitations that would apply to a portrait, a holy family, or a scene of war. Decree affirmed.

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By (13 total)

Mazer v. Stein, 347 U.S. 201 (U.S. 1954)

…ight Laws are mutually exclusive. As to overlapping of Design Patent and Copyright Laws, however, a different answer has been given by the courts. Louis De Jonge & Co. v. Breuker & Kessler Co., 182 F. 150, affirmed on other grounds in 191 F. 35, and 235 U. S. 33; see also cases cited in note 37, infra. This Court said, p. 525: “It is a new and original design for a manufacture, whether of metal or other material; ... to be either worked into, or on, any article of manufacture; or a new and original shape o…
Peter PAN Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487 (2d Cir. 1960)

…hasized by the highest authority, Mifflin v. R. H. White & Co., 1903, 190 U.S. 260, 23 S.Ct. 769, 47 L.Ed. 1040, Mifflin v. Dutton, 1903, 190 U.S. 265, 23 S.Ct. 771, 47 L.Ed. 1043; Louis Dejonge & Co. v. Breuker & Kessler Co., 1914, 235 U.S. 33, 37, 35 S.Ct. 6, 59 L.Ed. 113 and when Congress has wished to make an exception, it has known how to do so, see 17 U.S.C. § 21. The notice requirement serves an important public purpose; the copyright proprietor is protected so long and only so long as he gives eff…
Washingtonian Publ'g Co. v. Pearson, 306 U.S. 30 (U.S. 1939)

…ial illustrations; Motion-picture photo-plays; Motion pictures other than photoplays. Brandéis, J., dissenting, International News Service v. Associated Press, 248 U. S. 215, 250. Louis Dejonge & Co. v. Breuker & Kessler Co., 191 F. 35, 36; aff’d, 235 U. S. 33. Koppel v. Downing, 11 App. D. C. 93, 104.…

Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.

Join FLexlaw to unlock all legal intelligence

Authorities Cited

Gorham Co. v. White, 14 Wall. 511 (U.S. 1871)
Bleistein v. Donaldson Lithographing Co., 188 U.S. 239 (U.S. 1903)
Callaghan v. Myers, 128 U.S. 617 (U.S. 1888)
Am. Tobacco Co. v. Werckmeister, 207 U.S. 284 (U.S. 1907)
Globe Newspaper Co. v. Walker, 210 U.S. 356 (U.S. 1908)
Bolles v. Outing Co., 175 U.S. 262 (U.S. 1899)
Mifflin v. R. H. White Co., 190 U.S. 260 (U.S. 1903)

Full citator, related cases, and AI research tools

Open in FLexlaw