CITE:  101 U.S. 99
CMON:  October 1879
PLAIN: Baker
DEFND: Selden
COURT: Supreme Court
DATE:  October 1879

Appeal from the Circuit Court of the United States for the Southern District
of Ohio. The facts are stated in the opinion of the court.

  Methods (of bookkeeping) not copyrightable, but potentially patentable.
  Artistic methods potentially patentable.

Mr. Justice Bradley delivered the opinion of the court.

Charles Selden, the testator of the complainant in this case, in the year
1859 took the requisite steps for obtaining the copyright of a book,
entitled "Selden's Condensed Ledger, or Book-keeping Simplified", the object
of which was to exhibit and  explain a peculiar system of book-keeping.
In 1860 and 1861, he took the copyright of several other books, containing
additions to and improvements upon the said system. The bill of complaint
was filed against the defendant, Baker, for an alleged infringement of these
copyrights. The latter, in his answer, denied that Selden was the author or
designer of the books, and denied the infringement charged, and contends on
the argument that the matter alleged to be infringed is not a lawful subject
of copyright.

The parties went into proofs, and the various books of the complainant, as
well as those sold and used by the defendant, were exhibited before the
examiner, and witnesses were examined on both sides. A decree was rendered
for the complainant, and the defendant appealed.

The book or series of books of which the complainant claims the copyright
consists of an introductory essay explaining the system of book-keeping
referred to, to which are annexed certain forms or blanks, consisting of
ruled lines, and headings, illustrating the system and showing how it is to
be used and carried out in practice. This system effects the same results  
as book-keeping by double entry; but, by a peculiar arrangement of columns
and headings, presents the entire operation, of a day, a week, or a month,
on a single page, or on two pages facing each other, in an account-book.
The defendant uses a similar plan so far as results are concerned; but makes
a different arrangement of the columns, and uses different headings. If the
complainant's testator had the exclusive right to the use of the system
explained in his book, it would be difficult to contend that the defendant
does not infringe it, not, withstanding the difference in his form of
arrangement; but if it be assumed that the system is open to public use,
it seems to be equally difficult to contend that the books made and sold by  
the defendant are a violation of the copyright of the complainant's book
considered merely as a book explanatory of the system. Where the truths of
a science or the methods of an art are the common property of the whole
world, and author has the right to express the one, or explain and use the
other, in his own way. As an author, Selden explained the system in a  
particular way. It may be conceded that Baker makes and uses account-books
arranged on substantially the same system; but the proof fails to show that
he has violated the copyright of Selden's book, regarding the latter merely
as an explanatory work; or that he has infringed Selden's right in any way,  
unless the latter became entitled to an exclusive right in the system.

The evidence of the complainant is principally directed to the object of
showing that Baker uses the same system as that which is explained and
illustrated in Selden's books. It becomes important, therefore, to determine
whether, in obtaining the copyright of his books, he secured the exclusive
right to the use of the system or method of book-keeping which the said
books are intended to illustrate and explain. It is contended that he has
secured such exclusive right, because no one can use the sysstem without
using substantially the same ruled lines and headings which he has appended
to his books in illustration of it. In other words, it is contended that the
ruled lines and headings, given to illustrate the system, are a part of the
book, and, as such, are secured by the copyright; and that no one can make
or use similar ruled lines and headings, or ruled lines and headings made
and arranged on substantially the same system, without violating the
copyright. And this is really the question to be decided in this case.
Stated in another form, the question is, whether the exclusive property in
a system of book-keeping can be claimed, under the laws of copyright, by
means of a book in which that system is explained?  The complainant's bill,
and the case made under it, are based on the hypothesis that it can be.

It cannot be pretended, and indeed it is not seriously urged, that the
ruled lines of the complainant's account-book can be claimed under any
special class of objects, other than books, named in the law of copyright
existing in 1859. The law then in force was that of 1831, and specified
only books, maps, charts, musical compositions, prints, and engravings.
An account-book, consisting of ruled lines and blank columns, cannot be
called by any of these names unless by that of a book.

There is no doubt that a work on the subject of book-keeping, though only
explanatory of well-known systems, may be the subject of a copyright; but,
then, it is claimed only as a book.  Such a book may be explanatory either
of old systems, or of an entirely new system; and, considered as a book,
as the work of an author, conveying information on the subject of
book-keeping, and containing detailed explanations of the art, it may be  
a very valuable acquisition to the practical knowledge of the community.
But there is a clear distinction between the book, as such, and the art
which it is intended to illustrate. The mere statement of the proposition
is so evident, that it requires hardly any argument to support it. The
same distinction may be predicated of every other art as well as that of
book-keeping. A treatise on the composition and use of medicines, be they
old or new; on the construction and use of ploughs, or watches, or churns;
or on the mixture and application of colors for painting or dyeing; or on
the mode of drawing lines to produce the effect of perspective, would be
the subject of copyright; but no one would contend that the copyright of
the treatise would give the exclusive right to the art or manufacture  
described therein. The copyright of the book, if not pirated from other
works, would be valid without regard to the novelty, or want of novelty,
of its subject-matter. The novelty of the art or thing described or
explained has nothing to do with the validity of the copyright.  To give
to the author of the book an exclusive property in the art described
therein, when no examination of its novelty has ever been officially made,  
would be a surprise and a fraud upon the public. That is the province of
letters-patent, not of copyright.  The claim to an invention or discovery
of an art or manufacture must be subjected to the examination of the Patent
Office before an exclusive right therein can be obtained; and it can only
be secured by a patent from the government.

The difference between the two things, letters-patent and copyright, may be
illustrated by reference to the subjects just enumerated. Take the case of
medicines. Certain mixtures are found to be of great value in the healing
art. If the discoverer writes and publishes a book on tbe subject (as
regular physicians generally do), he gains no exclusive right to the  
manufacture and sale of the medicine; he gives that to the public. If he
desires to acquire such exclusive right, he must obtain a patent for the
mixture as a new art, mannfacture, or composition of matter. He may
copyright his book, if he pleases; but that only secures to him the
exclusive right of printing and publishing his book. So of all other
inventions or discoveries.

The copyright of a book on perspective, no matter how many drawings and
illustrations it may contain, gives no exclusive right to the modes of
drawing described, though they may never have been known or used before.
By publishing the book, without getting a patent for the art, the latter
is given to the public. The fact that the art described in the book by  
illustrations of lines and figures which are reproduced in practice in
the application of the art, makes no difference. Those illustrations are
the mere language employed by the author to convey his ideas more clearly.
Had he used words of description instead of diagrams (which merely stand
in the place of words), there could not be the slightest doubt that others,
applying the art to practical use, might lawfully draw the lines and
diagrams which were in the author's mind, and which he thus described by
words in his book.

The copyright of a work on mathematical science cannot give to the author
an exclnsive right to the methods of operation which he propounds, or to
the diagrams which he employs to explain them, so as to prevent an engineer
from using them whenever occasion requires. The very object of publishing a  
book on science or the useful arts is to communicate to the world the useful
knowledge which it contains.  But this object would be frustrated if the
knowledge could not be used without incurring the guilt of piracy of the
book. And where the art it teaches cannot be used without employing the
methods and diagrams used to illustrate the book, or such as are similar to  
them, such methods and diagrams are to be considered as necessary incidents
to the art, and given therewith to the public; not given for the purpose of
publication in other works explanatory of the art, but for the purpose of
practical application.

Of course, these observations are not intended to apply to ornamental
designs, or pictorial illustrations addressed to the taste. Of these it
may be said, that their form is their essence, and their object, the
production of pleasure in their contemplation. This is their final end.
They are as much the product of genius and the result of composition, as
are the lines of the poet or the historian's periods. On the other hand,
the teachings of science and the rules and methods of useful art have  
their final end in application and use; and this application and use are
what the public derive from the publication of a book which teaches them.
But as embodied and taught in a literary composition or book, their essence
consists only in their statement. This alone is what is secured by the
copyright.  The use by another of the same methods of statement, whether  
in words or illustrations, in a book published for teaching the art, would
undoubtedly be an infringement of the copyright.

Recurring to the case before us, we observe that Charles Selden, by his
books, explained and described a peculiar system of book-keeping, and
illustrated his method by means of ruled lines and blank columns, with 
proper headings on a page, or on successive pages. Now, whilst no one has
a right to print or publish his book, or any material part thereof, as a  
book intended to convey instruction in the art, any person may practise and
use the art itself which he has described and illustrated therein. The use
of the art is a totally different thing from a publication of the book
explaining it. The copyright of a book on book-keeping cannot secure the
exclusive right to make, sell, and use account-books prepared upon the plan
set forth in such book. Whether the art might or might not have been
patented, is a question which is not before us. It was not patented, and
is open and free to the use of the public. And, of course, in using the art,
the ruled lines and headings of accounts must necessarily be used as
incident to it.

The plausibility of the claim put forward by the complainant in this case
arises from a confusion of ideas produced by the peculiar nature of the
art described in the books which have been made the subject of copyright.
In describing the art, the illustrations and diagrams employed happen to
correspond more closely than usual with the actual work performed by the
operator who uses the art. Those illustrations and diagrams consist of
ruled lines and headings of accounts; and it is similar ruled lines and
headings of accounts which, in the application of the art, the book-keeper
makes with his pen, or the stationer with his press; whilst in most other
cases the diagrams and illustrations can only be represented in concrete  
forms of wood, metal, stone, or some other physical embodiment. But the
principle is the same in all. The description of the art in a book, though
entitled to the benefit of copyright, lays no foundation for an exclusive
claim to the art itself. The object of the one is explanation; the object
of the other is use.  The former may be secured by copyright.  The latter
can only be secured, if it can be secured at all, by letters-patent.

The remarks of Mr. Justice Thompson in the Circuit Court in Clayton v.
Stone & Hall (2 Paine, 392), in which copyright was claimed in a daily
price-current, are apposite and instructive.  He says: "In determining
the true construction to be given to the act of Congress, it is proper to
look at the Constitution of the United States, to aid us in ascertaining the  
nature of the property intended to be protected. 'Congress shall have power
to promote the progress of science and useful arts, by securing for limited
times to authors and inventors the exclusive right to their writings and
discoveries.'  The act in question was passed in execution of the power here
given, and the object, therefore, was the promotion of science; and it  
would certainly be a pretty extraordinary view of the sciences to consider
a daily or weekly publication of the state of the market as falling within
any class of them.  They are of a more fixed, permanent, and durable
character.  The	term 'science' cannot, with any propriety, be applied to
a work of so fluctuating and fugitive a form as that of a newspaper or
price-current, the subject-matter of which is daily changing, and is of
mere temporary use. Although great praise may be due to the plaintiffs for
their industry and enterprise in publishing this paper, yet the law does not
contemplate their being rewarded in this way : it must seek patronage and
protection from its utility to the public, ahd not as a work of science.  
The title of the act of Congress is, 'for the encouragement of learning',
and was not intended for the encouragement of mere industry, unconnected
with learning and the sciences. . . . We are, accordingly, of opinion that
the paper in question is not a book the copyright to which can be secured
under the act of Congress."

The case of Cobbett v. Woodward (Law Rep, 14 Eq. 407) was a claim to
copyright in a catalogue of furniture which the publisher had on sale
in his establishment, illustrated with many drawings of furniture and
decorations. The defendants, being dealers in the same business, published
a similar book, and copied many of the plaintiff's drawings, though it was  
shown that they had for sale the articles represented thereby.  The court
held that these drawings were not subjects of copyright. Lord Romilly, M.R.,
said: "This is a mere advertisement for the sale of particular artic1es
which anyone might imitate, and any one might advertise for sale. If a man
not being a vendor of any of the articles in question were to publish a
work for the purpose of informing the public of what was the most convenient
species of articles for household furniture, or the most graceful species
of decorations for articles of home furnitnre, what they ought to cost,
and where they might be bought, and were to illustrate his work with
designs of each article he described, -- such a work as this could not be
pirated with impunity, and the attempt to do so would be stopped by the
injunction of the Court of Chancery; yet if it were done with no such
object, but solely for the purpose of advertising particular articles for
sale, and promoting the private trade of the publisher by the sale of
articJes which any other person might sell as well as the first advertiser,
and if in fact it contained little more than an illustrated inventory of
the contents of a warehouse, I know of no law which, while it would not  
prevent the second advertiser from selling the same articles, would prevent
him from using the same advertisement; provided he did not in such
advertisement by any device suggest that he was selling the works and
designs of the first advertiser."

Another case, that of Page v. Wisden (20 L. T. N. S. 435), which came
before Vice-Chancellor Malins in 1869, has some resemblance to the present.
There a copyright was claimed in a cricket scoring-sheet, and the
Vice-Chancellor held that it was not a fit subject for copyright, partly
because it was not new, but also because  "to say that a particular mode
of ruling a book constituted an object for a copyright is absurd".

These cases, if not precisely in point, come near to the matter in hand,
and, in our view, corroborate the general proposition which we have laid

In Drury v. Ewing (1 Bond, 540), which is much relied on by the complainant,
a copyright was claimed in a chart of patterns for cutting dresses and
basques for ladies, and coats, jackets, &c., for boys. It is obvious that
such designs could only be printed and published for information, and not
for use in themselves.  Their practical use could only be exemplified in
cloth on the tailor's board and under his shears; in other words, by the
application of a mechanical operation to the cutting of cloth in certain
patterns and forms. Surely the exclusive right to this practical use was
not reserved to the publisher by his copyright of the chart. Without
undertaking to say whether we should or should not concur in the decision  
in that case, we think it cannot control the present.

The conclusion to which we have come is, that blank account-books are not
the subject of copyright; and that the mere copyright of Selden's book
did not confer upon him the exclusive right to make and use account-books,
ruled and arranged as designated by him and described and illustrated in
said book.

The decree of the Circuit Court must be reversed, and the cause remanded
with instructions to dismiss the complainant's bill; and it is

So ordered.