The Federal Reporter. Volume 139 Cases Argued and Determined in the Circuit Courts of Appeals and Circuit and District Courts of the United States. September-December, 1905. Page: 430
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139 FEDERAL REPORTER.
found in Perris v. Hexamer, 99 U. S. 674, 25 L. Ed. 308. It is there
"A copyright gives the author or the publisher the exclusive right of mul-
tiplying copies of what he has written or printed. It follows that, to infringe
this right, a substantial copy of the whole or of a material part must be pro-
By section 4952 of the Revised Statutes [U. S. Comp. St. 1901.
p. 3406], the author or proprietor of any musical composition, upon
compliance with the provisions of the copyright act, is given the
exclusive liberty of copying and vending the same. Are the per-
forated music sheets or rolls, which are designed to mechanically
represent or reproduce the copyrighted musical composition, copies
thereof, within the meaning and intent of the statute? What did
Congress intend by the words "musical composition"? These
questions, though not entirely new, are interesting and important.
The words "musical composition" undoubtedly relate to the intel-
lectual conception of the composer; but manifestly a careful read-
ing of the copyright law, in connection with the authorities con-
struing the act, indicates that protection only of the material sem-
blance in which the musical composition finds expression is afford-
ed. Ditson v. Littleton, 67 Fed. 905, 15 C. C. A. 61. The musical
composition, as an idea in the concrete, is not copyrightable as such.
That which gives the conception corporeal and tangible existence
is the subject of copyrighting. To hold otherwise, indeed, would
be a wide departure from the obvious intention of Congress in ex-
tending to the author, inventor, designer, proprietor, etc., the pro-
tection secured by statute. But it is vigorously insisted that the
proofs show that the perforated music sheet is in fact a record of
the musical composition. Many witnesses of musical distinction
have testified that the perforations are a form of notations without
bars or measurements, and hence not only correspond with the
tones of the musical composition, but that a perforated music roll
or sheet is actually a record thereof. Opposed to this contention
is the suggestion that under the constitutional power of Congress
"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," a copyrightable musical com-
position must be a writing, and not, as already intimated, a mental
conception not reduced to material form. The meaning of the word
"writings," as employed in the Constitution, has been expressly
defined in Lithographic Co. v. Sarony, 111 U. S. 53, 4 Sup. Ct. 279,
28 L. Ed. 349, to include "all forms of writing, printing, engraving,
etching, etc., by which the ideas in the mind of the author are given
visible expression." The restricted definition of the word "writ-
ings" does not, it is thought, permit the inclusion in section 4952
of the Revised Statutes [U. S. Comp. St. 1901, p. 3406] of a musical
conception, or the inclusion of collated musical sounds or expres-
sions of a musical composition. The words of the statute have
reference to the tangible object that appeals to the sense of sight,
and that which is susceptible of being reproduced by printing, cope -
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The Federal Reporter. Volume 139 Cases Argued and Determined in the Circuit Courts of Appeals and Circuit and District Courts of the United States. September-December, 1905., legislative document, 1906; Saint Paul, Minnesota. (digital.library.unt.edu/ark:/67531/metadc38185/m1/441/: accessed November 13, 2018), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.