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decided: October 19, 1971.


C. A. 9th Cir. Reported below: 441 F.2d 579.

[ 404 U.S. Page 887]

Certiorari denied.

MR. JUSTICE DOUGLAS, dissenting.

Petitioner Lee infringed respondent's copyright and a verdict was rendered against her. Petitioner argued that because the congressional power over copyrights and patents stemmed from the same constitutional provision, they both should be governed by the same standard. Thus, petitioner contended that the copyright was invalid because the book in question lacked "novelty," but the Court of Appeals rejected this argument saying that the appropriate standard for a copyright was "originality" and that the respondent's book met this criterion.*fn1 The standard of copyrightability presents an important question concerning the scope of Congress' enumerated powers. It has not heretofore been decided by this Court*fn2 and, arguably, it was wrongly decided by the courts below.

[ 404 U.S. Page 888]

     In 1961, respondent published and copyrighted a book entitled Face Lifting by Exercise. This book explained how isometric facial exercises could be used to preserve the appearance of youth. It was based on respondent's study of anatomy, physical therapy, and magazine and newspaper articles, but there is nothing in the record to indicate that the ideas it contained constituted anything more than "selecting the last piece to put into the last opening in a jig-saw puzzle." Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 335. It was merely a repetition of the existing state of the art. During 1962, petitioner was employed in respondent's beauty salon and we may assume that it was during this time that petitioner first read respondent's book and learned of respondent's facial exercises. In 1965, petitioner published The Joyce Lee Method of Scientific Facial Exercises. It contained a system of facial exercises strikingly similar to respondent's and, even though it was unquestionably expressed in petitioner's own language, we may safely conclude that it was based on respondent's book. An action for copyright infringement was made out, therefore, if the respondent's copyright was valid and if it embraced the ideas in her book.

 The constitutional power over copyrights is found in the same clause that governs the issuance of patents: "The 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 respective Writings and Discoveries." Art. I, ยง 8, cl. 8. Many of the same interests underlie both grants of power. The Federalist No. 43. While this Court has not had many occasions to consider the constitutional parameters of copyright power, we have indicated that the introductory clause, "To promote the Progress of Science and useful Arts," acts as a limit on Congress'

[ 404 U.S. Page 889]

     power to grant monopolies through patents. In Graham v. John Deere Co., 383 U.S. 1, 5-6, we said:

"The clause is both a grant of power and a limitation. This qualified authority, unlike the power often exercised in the sixteenth and seventeenth centuries by the English Crown, is limited to the promotion of advances in the 'useful arts.' It was written against the backdrop of the practices -- eventually curtailed by the Statute of Monopolies -- of the Crown in granting monopolies to court favorites in goods or businesses which had long before been enjoyed by the public. The Congress in the exercise of the patent power may not overreach the restraints imposed by the stated constitutional purpose. Nor may it enlarge the patent monopoly without regard to the innovation, advancement or social benefit gained thereby. Moreover, Congress may not authorize the issuance of patents whose effects are to remove existent knowledge from the public domain, or to restrict free access to materials already available. Innovation, advancement, and things which add to the sum of the useful knowledge are inherent requisites in a patent system which by constitutional command must 'promote the Progress of . . . useful Arts.' This is the standard expressed in the Constitution and it may not be ignored. And it is in this light that patent validity 'requires reference to a standard written into the Constitution.'" (Citations omitted.)

In Mazer v. Stein, 347 U.S. 201, 219, we indicated that the copyright power is also governed by this same introductory phrase: "The economic philosophy behind the clause empowering Congress to grant patents and copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and

[ 404 U.S. Page 890]

     inventors in 'Science and useful Arts.'" See also Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 249. In other contexts, we have also shown that patents and copyrights stand on the same footing. E. g., United States v. Paramount Pictures, 334 U.S. 131, 158; Sheldon v. Metro-Goldwyn Pictures Corp., 309 U.S. 390, 401. No reason can be offered why we should depart from the plain import of this grant of congressional power and apply more lenient constitutional standards to copyrights than to patents.*fn3 Indeed, for reasons which will later be considered, a copyright may have to meet greater constitutional standards for validity than a patent. The limitations set forth in Graham v. John Deere Co., therefore, apply with at least equal force to copyrights. Cf. Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 59.

An author's "Writing" or an inventor's "Discovery" can, in the constitutional sense, only extend to that which is his own. It may not be broadened to include matters within the public domain. The congressional power to grant monopolies for "Writings and Discoveries" is likewise limited to that which accomplishes the stated purpose of promoting "the Progress of Science and useful Arts." No distinction is made in the constitutional language between copyrights and patents and I ...

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