Page:Copyright, Its History And Its Law (1912).djvu/269

 1896, the periodical Sports printed and sold as a separate sheet an illustration licensed for use in the periodical, it was held in the Queen's Bench Division that publication and sale of the supplement separately from the paper was beyond the terms of the license and therefore an infringement.

Copyright in a work of art is dependent upon character rather than use. "A picture is none the less a pictureandnonethelessasubjectof copyright that it is used for an advertisement," said Justice Holmes in the U. S. Supreme Court, in Bleistein v. Donaldson Lith. Co., in 1903, the leading case on this subject, in which three lithographs designed for a circus poster were protected. In Mott v. Clow, in 1896, Judge Grosscup in the U. S. Circuit Court in Illinois had held that illustrations, in this instance of bathtubs in a trade catalogue, which "are mere advertisements," are not entitled to copyright; and in Schumacher v. Wogram, in 1888, it had been held by Judge Wallace that a picture of a young woman holding a bouquet intended for a cigar label could not be protected as copyright, but should be registered as a trade-mark. "The distinction here," said Judge Wallace, "seems to be that a picture expressly intended as a label should be considered a trade-mark, though a picture which may be used for a label is not for this reason excluded from copyright." An artistic design for paper-box covers was held copyrightable in 1910 in De Jonge v. Breuker & Kessler, in the U. S. Circuit Court, by Judge McPherson, who also held that the same subject could not be protected both under copyright and as trade-mark.

That an illustration of a person, incident or scene in a copyright work is not an infringement of its copyright, was indicated in 1909 in Harper v. Kalem Co., in the opinion of the U. S. Circuit Court of Appeals in