CITE:  122 F. 240
CMON:  April 1903
PLAIN: Edison, Thomas
DEFND: Lubin
COURT: Circuit Court of Appeals, Third Circuit
DATE:  April 20, 1903

[See also 119 F. 993 and supra (C.C.E.D. Pa., Jan 13, 1903); 195 U.S.
625, 25 S.Ct. 790, 49 L.Ed. 349 (U. S. Sup. Ct. -- Appeal dismissed
Nov. 7, 1904)]

Appeal from the Circuit Court of the United States for the Eastern
District of Pennsylvania.

A series of 4,500 pictures, representing the launching of a vessel, were
taken by means of a camera on a celluloid film in rapid succession, and
from this a positive reproduction was made by light exposure on another
celluloid sheet, adapted to be used in a magic lantern or similar device
to reproduce the same scene at different instants of times. Held, that
such sheet was a "photograph", and subject to copyright as such in its

  Motion picture, considered as a series of images, is copyrightable.

Before Acheson, Circuit Judge, and Buffington and Kirkpatrick, District


In the court below, Thomas A. Edison, appellant, filed a bill in equity
against Sigmund Lubin, appellee, praying an injunction for alleged
infringement of a copyright. That court, being of opinion (see 199 F. 993)
such copyright had no statutory warrant, entered a decree dismissing the
bill, whereupon complainant took this appeal. The question involved is
novel, interesting, and, within its sphere, important.

The complainant's operator, by means of a pivoted camera of special
construction, designed and owned by complainant, took in rapid succession,
on a single highly sensitized celluloid film 300 feet long, 4,500 pictures,
each of which was a shade different from its predecessor and successor,
and all of which collectively represented a different points Kaiser
Wilhelm's yacht Meteor while being christened and launched. From this
film or negative a positive reproduction was made on a celluloid sheet by 
light exposure. The value of such celluloid reproduction is that by means
of an appliance similar to a magic lantern these views may be thrown on a
screen in rapid succession so as to give the effect of actual motion, and
pictorically reproduce the launching precisely as it took place. This 
positive celluloid sheet was sent by the complainant to the Department
of the Interior, and by it copyrighted to him as proprietor under "the
title of a photograph, the title to which is in the following words, to
wit, 'Cristening and Launching Kaiser Wilhem's Yacht Meteor.'"

The complainant thereafter placed on the copies thereof issued by him
a notice of copyright inscribed on a celluloid plate fastened on the
front and at one end of the sheet. From the other end of one of such
marked articles about one-third thereof was detached by some unknown
person, and came into the hands of respondent, without knowledge on his
part of hits having been copyrighted. The 1,500 pictures on this part,
which represented a part of the launch, Lubin photographed on a sensitized
celluloid film. From this negative he reproduced a positive on a 
celluloid sheet, which was, of course, an exact reproduction of the
copyrighted one of the complainant. These were sold to exhibitors, and
enabled them to reproduce the part of the launch therein represented.

The act of Congress of July 8, 1870, Rev. Stat. 4952 [U. S. Comp. Stat.
1901, p. 3406], under which the Department of the Interior issued this
copyright, provides:

    "Any citizen of the United States * * * who shall be * * * the author
    or proprietor of any * * * photograph or negative thereof * * * shall
    upon complying with the provisions of this chapter have the sole
    liberty of printing, reprinting, publishing, completing, copying,
    executing, finishing and vending the same."

Does such act warrant the granting of this copyright?  On that question
the court below said:

    "That section extended the copyrighting system to 'any * * *
    photograph,' but not to any aggregation of photographs, and I think
    that, to acquire the monopoly it confers, it is requisite that 
    every photograph, no matter how or for what purpose it may be
    conjoined with others, shall be separately registered, and that
    the prescribed notice of copyright shall be inserted upon each of 

The court also held that, as the violation of a copyrighted photograph
was a subject of penalty under a subsequent section, the section
authorizing the copyright must be strictly construed. An examination
shows that the negative and its positive reproduction represent one act
or event, to wit, the launch of the yacht. This launch was portrayed on
a single negative film, by one operator and a camera, operated from a
single point, and such negative simply photographically reproduces in
continuous form the view of the launch presented to the eye of an onlooker
at the spot occupied by the camera. The instantaneous and continuous
operation of the camera is such that the difference between successive
pictures is not distinguishable by the eye, and is so slight that the
casual observer will take a very considerable number of successive 
pictures of the series, and say they are identical. It is only when
pictures far removed from each other in the series are compared that
differences are seen, but in every one the platform from which the
christening took place, and on which prominent persons attending the
launch stood, is depicted. To require each of numerous undistinguishable
pictures to be individually copyrighted, as suggested by the court, would,
in effect, be to require copyright of many pictures to protect a single
one. So much for the negative.

When we consider the positive sheet which was copyrighted, we have a
stronger case.  What was thus copyrighted was a single celluloid sheet,
on which a number of objects had been photographically printed or
reproduced. That these objects were there portrayed by light action or 
photograph is unquestioned. No matter how the negative was obtained,
whether by numerous and successive exposures, is not here material.
The statute provides for copyrighting negatives; but the present issue
is not whether the negative in question was one covered by the statute,
but whether, when the negative, as a whole, was photographically
reproduced, the reproduction was a photograph. On that point we feel
assured. When the reproduction was made, complainant's celluloid
negative simply possessed the reproductive capacity by light action
incident to the photographic art. The image, which had been thrown by
light reflected from the originals and passed through a camera to
produce the negative, in the reproductive process produced the positive
by light action passed through such transparent negative. The mere
circumstance that such positive is pictured on a strip of celluloid,
and not on a strip of paper, is immaterial. In either event, the
reproduction is a light-written, and therefore a photographic picture
or photograph. To say that the continuous method by which this negative
was secured was unknown when the act was passed, and therefore a
photograph of it was not covered by the act, is to beg the question. 
Such construction is at variance with the object of the act, which was
passed to further the constitutional grant of power "to promote the
progress of science and useful arts." When Congress, in recognition of
the photographic art, saw fit in 1865 to amend the act of 1831 (13 Stat.
540), and extend copyright protection to a photograph or negative, it
is not to be presumed it thought such art could not progress, and that
no protection was to be afforded such progress. It must have recognized
there would be changed and advance in making photographs, just as there 
has been in making books, printing chromos, and other subjects of
copyright protection. While advance has resulted in a different type
of photograph, yet it is none the less a photograph -- a picture produced
by photographic process. From the standpoint of preparatory work in securing 
the negative, the latter consists of a number of different views, but
when the negative was secured the articles reproduced therefrom was a
single photograph of the whole. And that it is, in substance, a single
photograph, is shown by the fact that its value consists in its protection
as a whole or unit, and the injury to copyright protection consists not
in pirating one picture, but in appropriating it in its entirety.

We are further of opinion the photograph in question met the statutory
requirement of being intended to be perfected and completed as a work
of the fine art. It embodies artistic conception and expression. To obtain
it requires a study of lights, shadows, general surroundings, and a vantage
point adapted to securing the entire effect. In Bolles v. The touting 
Company, 77 F. 966 (2d Cir., 1897), depicting a yacht under full sail was
held to constitute an original work of art; and in view of the recent
decision of the Supreme Court (Bleistein v. Donaldson Lithographing Co.,
188 US 239, 23 S.Ct. 298, 47 L.Ed. 460, 1903) in reference to the 
character, in that regard, of a circus poster, we have no question
that the present photograph sufficiently fulfills the character of a work
of the fine arts. We are also of opinion the sheet was duly marked, for
it was such as "to give notice of the copyright to the public by placing
upon each copy in some visible shape the name of the author, the existence
of the claim to exclusive right, and the date at which this right was
obtained", which in Burrow-Giles Co. v. Sarony, 111 U. S. 755, 4 S.Ct.
279, 28 L.Ed. 346 (1884), was said to be the object of the statute.

The decree of the court below is therefore reversed, with directions
to enter a decree for the complainant.