late as 1873 a patent was granted in England to William Moore for substantially the same device for making combined ingots of iron and steel, securing the variable cavity by the use of a slide, which would hardly have been granted if such a method of casting ingots had previously been in use in England, as the defendant so earnestly contended. On the argument the counsel for the defendants insisted that the complainant had failed to prove any infringement. The reason why specific proof was not offered was, doubtless, owing to the circumstance that the defendants admitted the performance of acts and the use of instrumentalities which the complainant assumed would be sufficient to satisfy the court of the fact of infringement. For instance, the defendants filed in the cases an admission that they had manufactured combined ingots of iron and steel by means of a mold made in conformity to the Letters Patent No. 240,727, granted to them April 26, 1881, as assignees of Alfred E. Jones. If we understand the argument of counsel, it is that there was a failure of expert testimony to inform the court whether or not such an act was an infringement of the several patents of the complainants. We fail to see how experts' testimony would be of any service. Numerous experts could undoubtedly have been found both by the complainants and the defendants who would respectively maintain the views of their employers on a question of that sort; but their evidence would not greatly help the court in deciding what is simply a question of mechanical equivalents. Having in our hands the respective letters patent, the models, and the molds used, we trust it will not be set down as presumption to add that we have quite as much confidence in our own judgment as we should have in the opinion of experts whether the use of the one was an infringement of the claims of either of the others. It need not be claimed that Doyle was the first person who used molds in casting ingots of iron or steel; but the evidence shows that he was the first who manufactured combined ingots of these metals by the use of mechanism which produced a variable cavity in the molds. The several patents of Illingworth and Jones reach the same result as to the variable cavity; but Illingworth has changed, and, as we think, improved, the mechanism. In the Doyle patent the cavity for one of the metals is made by the use of an iron or steel slide, and in the Illing. worth by two covers, one with a plain or straight surface and the other recessed. If such a substituted instrumentality of the mechanism is not a mere equivalent for the metal slide of Doyle, the patent may be held good for the improvement, although it is valueless except in combination with Doyle's invention, and can no more be used without his consent than Doyle can use Illingworth's improvement without his consent. The first admission of the defendants is their use of molds made in conformity to the Jones letters patent. We regard this as a clear infringement of the Doyle patent. Their second, third, fourth, and fifth admissions embrace the use of instrumentalities which not only infringe the Doyle invention, but also the improvement of the Illingworth patent. There are differences in construction and mode of operation shown; but these are not radical or independent enough to take them out of the category of mechanical equivalents. Let a decree be entered in favor of the complainants in both cases for an injunction, and the usual order of reference be made for an ac count. [Supreme Court of the United States.] THE BURROW-GILES LITHOGRAPHIC COMPANY. SARONY. Decided March 17, 1884. 27 O. G., 413. 1. The object of section 4962 R. S. is 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 of exclusive right, and the date at which this right was obtained. This notice is sufficiently given by the words "Copyright, 1882, by N. Sarony," found on each copy of the photograph under consideration. 2. The construction placed upon the Constitution by the first act of 1790 and the act of 1802 by the men who were contemporary with its formation, many of whom were members of the convention which framed it, is of itself entitled to very great weight; and when it is remembered that the rights thus established have not been disputed during a period of nearly a century, it is almost conclusive. 3. An author in the sense in which the term is used in the Constitution is "he to whom anything owes its origin; originator; maker; one who completes a work of science or literature." So, also, by "writings" in this clause of the Constitution is meant the "literary productions" of those authors, and Congress has very properly declared these to include all forms of writing, printing, engraving, etching, &c., by which the ideas in the mind of the author are given visible expression. 4. No doubt entertained that the Constitutio is broad enough to cover an act authorizing copyright of photographs so far as they are representatives of original intellectual conceptions of the author, and the facts being that the photograph in question was made entirely from the plaintiff's original mental conception, to which he gave visible form by posing the subject in front of the camera, selecting and arranging the costume, draperies, &c., arranging and disposing the light and shade, suggesting and evoking the desired expression: Held, that the photograph in question is an original work of art, of which the plaintiff is the author, and of a class of inventions for which the Constitution intended that Congress should secure to him the exclusive right to use, publish, and sell, as it has done by section 4952 R. S. IN ERROR to the circuit court of the United States for the southern district of New York. Mr. David Colman for the plaintiff in error. Mr. Aug. T. Gurlitz for the defendant in error. Mr. Justice MILLER delivered the opinion of the court: This is a writ of error to the circuit court for the southern district of New York. Plaintiff is a lithographer and defendant a photographer, with large business in those lines in the city of New York. The suit was commenced by an action at law in which Sarony was plaintiff and the lithographic company defendant, the plaintiff charging the defendant with violating his copyright in regard to a photograph the title of which is "Oscar Wilde No. 18." A jury being waived, the court made a finding of facts on which a judgment in favor of the plaintiff was rendered for the sum of $600 for the plates and 85,000 copies sold and exposed to sale, and $10 for copies found in his possession, as penalties under section 4965 of the Revised Statutes. Among the finding of facts made by the court, the following presents the principal question raised by the assignment of errors in the case: 3. That the plaintiff, about the month of January, 1882, under an agreement with Oscar Wilde, became and was the author, inventor, designer, and proprietor of the photograph in suit, the title of which is "Oscar Wilde No. 18," being the number used to designate this particular photograph and of the negative thereof; that the same is a useful, new, harmonious, characteristic, and graceful picture, and that said plaintiff made the same at his place of business in said city of New York, and within the United States, entirely from his own original mental conception, to which be gave visible form by posing the said Oscar Wilde in front of the camera, selecting and arranging the costume, draperies, and other various accessories in said photograph, arranging the subject so as to present graceful outlines, arranging and disposing the light and shade, suggesting and evoking the desired expression, and from such disposition, arrangement, or representation, made entirely by the plaintiff, he produced the picture in suit, Exhibit A, April 14, 1882, and that the terms "author," "inventor," and "designer," as used in the art of photography and in the complaint, mean the person who so produced the photograph. Other findings leave no doubt that plaintiff had taken all the steps required by the act of Congress to obtain copyright of this photograph, and section 4952 names photographs among other things for which the author, inventor or designer may obtain copyright which is to secure him the sole privilege of reprinting, publishing, copying, and vending the same. That defendant is liable under that section and section 4965 there can be no question if those sections are valid as they relate to photographs. Accordingly, the two assignments of error in this court by plaintiff in error are, first, that the court below decided that Congress had and has the constitutional right to protect photographs and negatives thereof by copyright. The second assignment related to the sufficiency of the words "Copyright, 1882, by N. Sarony," in the phototographs, as a notice of the copyright of Napoleon Sarony under the act of Congress on that subject. With regard to this latter question it is enough to say that the object of the statute is 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 of exclusive right, and the date at which this right was obtained. This notice is sufficiently given by the words "Copyright, 1882, by N. Sarony," found on each copy of the photograph. It clearly shows that a copyright is asserted, the date of which is 1882, and if the name Sarony alone was used it would be a sufficient designation of the author until it is shown that there is some other Sarony. When, in addition to this, the initial letter of the christian name Napoleon is also given, the notice is complete. The constitutional question is not free from difficulty. The eighth section of the first article of the Constitution is the great repository of the powers of Congress, and by the eighth clause of that section Congress is authorized To promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries. The argument here is that a photograph is not a writing nor the production of an author. Under the acts of Congress designed to give effect to this section the persons who are to be benefited are divided into two classes, authors and inventors. The monopoly which is granted to the former is called a "copyright," that given to the latter "letters patent," or, in the familiar language of the present day, "patent-right." We have, then, copyright and patent-right, and it is the first of these under which plaintiff asserts a claim for relief. It is insisted in argument that a photograph, being a reproduction on paper of the exact features of some natural object or of some person, is not a writing of which the producer is the author. Section 4952 of the Revised Statutes places photographs in the same class as things which may be copyrighted with "books, maps, charts, dramatic or musical compositions, engravings, cuts, prints, paintings, drawings, statues, statuary, and models or designs intended to be perfected as works of the fine arts." "According to the practice of legislation in England and America," says Judge Bouvier (2 Law Dictionary, 363), "the copyright is confined to the exclusive right secured to the author or proprietor of a writing or drawing which may be multiplied by the arts of printing in any of its branches." The first Congress of the United States, sitting immediately after the formation of the Constitution, enacted that the Author or authors of any map, chart, book or books, being a citizen or resident of the United States, shall have the sole right and liberty of printing, reprinting, publishing, and vending the same for the period of fourteen years from the recording of the title thereof in the clerk's office, as afterward directed. (1 U. S. S., 124, s. 1.) This statute not only makes maps and charts subjects of copyright, but mentions them before books in the order of designation. The second section of an act to amend this act, approved April 29, 1802 (2 U. S. S., 171), enacts that from the 1st day of January thereafter he who shall invent and design, engrave, etch, or work, or from his own works shall cause to be designed and engraved, etched, or worked, any historical or other print or prints, shall have the same exclusive right for the term of fourteen years from recording the title thereof as prescribed by law. By the first section of the act of February 3, 1831 (4 U. S. S., 436), entitled an act to amend the several acts respecting copyright, musical compositions, and cuts in connection with prints and engravings, are added, and the period of protection is extended to twenty-eight years. The caption or title of this act uses the word copyright for the first time in the legislation of Congress. The construction placed upon the Constitution by the first act of 1790 and the act of 1802 by the men who were contemporary with its formation, many of whom were members of the convention which framed it, is of itself entitled to very great weight; and when it is remembered that the rights thus established have not been disputed during a period of nearly a century, it is almost conclusive. Unless, therefore, photographs can be distinguished in the classification on this point from the maps, charts, designs, engravings, etchings, cuts, and other prints, it is difficult to see why Congress cannot make them the subject of copyright as well as the others. These statutes certainly answer the objection that books only, or writ ing in the limited sense of a book and its author, are within the constitutional provision. Both these words are susceptible of a more enlarged definition than this. An author in that sense is "he to whom anything owes its origin; originator; maker; one who completes a work of science or literature."-Worcester. So, also, no one would now claim that the word "writing" in this clause of the Constitution, though the only word used as to subjects in regard to which authors are to be secured, is limited to the actual script of the author, and excludes books and all other printed matter. By "writings" in that clause is meant the "literary productions" of those authors, and Congress very properly has declared these to include all forms of writing, printing, engraving, etching, &c., by which the ideas in the mind of the author are given visible expression. The only reason why photographs were not included in the extended list in the act of 1802 is probably that they did not exist, as photography as an art was then unknown, and the scientific principle on which it rests and the chemicals and machinery by which it is operated have all been discovered long since that statute was enacted. Nor is it to be supposed that the framers of the Constitution did'not understand the nature of copyright and the objects to which it was commonly applied, for copyright, as the exclusive right of a man to the production of his own genius or intellect, existed in England at that time, and the contest in the English courts, finally decided by a very close vote in the House of Lords, whether the statute of 8 Anne, chapter 19, which authorized copyright for a limited time, was a restraint to that extent on the common law or not, was then recent. It had attracted much attention, as the judgment of the King's Bench, delivered by Lord Mansfield, holding it was not such a restraint in Millar v. Taylor (4 Burrows, 2303), decided in 1769, was overruled on appeal in the House of Lords in 1774. (Ibid., 2408.) In this and other cases the whole ques |