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I. COPYRIGHT: CASES AND MATERIALS
Artistic values cannot be weighted, for no universally acceptable unit or artistic weight has ever
been agreed upon, nor have any so-called artistic laws retained their sanctity for a protracted
period of time. I think it unlikely that any Legislature would be so addle-pated as to appoint the
judiciary to decide whether Frank Lloyd Wright, Palladio, Pheidias, Corbusier or the plaintiff
had produced buildings of artistic character or design in the sense that they are artistically good
or artistically bad.
The art of architecture has never been more happily described than by Vetruvius’ phrase –
firmitas, utilitas, venustas. Assuming an equal capacity to produce firmitasand utilitasthe
distinction between the good and the mediocre architect is the degree in which he produces the
quality of venustas. This is frequently translated “beauty” but is, I think, more happily, and
equally properly, translated as “delight”, and the experience of it will depend, as I have indicated,
upon the person, the age, and the place. Therefore, to interpret the Act properly, the tribunal
should not attempt to exercise a personal aesthetic judgment but to consider the intent of the
creator and its result.
Suppose a man were to build himself a pig-pen garnished with fretted gingerbread and with four
lovely turrets, yet firm and commodious. Let it stand in its multi-coloured horror a mid-Victorian
blot upon the landscape. Let us assume that no contemporary could accept this edifice as
anything but an architectural excrescence of the most loathsome kind, yet to its creator it would
well be a thing of beauty and to its inhabitants a porcine paradise. An attempt has been made to
produce venustasand some originality displayed. This, in my view, is sufficient to render such
building the subject-matter of copyright.
NOTE:An early 20thcentury U.S. case is to the same effect. A defendant, who
was sued for infringing copyright in a set of circus advertisements, claimed the
works had no copyright because they were not of high quality, dealt with trite
themes, and were not fine art but merely advertisements. The Court dismissed
these arguments and found for the plaintiff: Bleistein v. Donaldson
Lithographing Co., 188 U.S. 239 (U.S.: Supreme Court, 1903):
[The Copyright Act,] however construed, does not mean that ordinary posters are not
good enough to be considered within its scope. ... Certainly works are not the less
connected with the fine arts because their pictorial quality attracts the crowd and
therefore gives them a real use - if use means to increase trade and to help to make
money. A picture is none the less a picture and none the less a subject of copyright
that it is used for an advertisement. And if pictures may be used to advertise soap, or
the theatre, or monthly magazines, as they are, they may be used to advertise a circus.
Of course, the ballet is as legitimate a subject for illustration as any other. A rule
cannot be laid down that would excommunicate the paintings of Degas. ...
It would be a dangerous undertaking for persons trained only to the law to constitute
themselves final judges of the worth of pictorial illustrations, outside of the
narrowest and most obvious limits. At the one extreme some works of genius would
be sure to miss appreciation. Their very novelty would make them repulsive until the
public had learned the new language in which their author spoke. It may be more than
doubted, for instance, whether the etchings of Goya or the paintings of Manet would
have been sure of protection when seen for the first time. At the other end, copyright
would be denied to pictures which appealed to a public less educated than the judge.
Yet if they command the interest of any public, they have a commercial value - it
would be bold to say that they have not an aesthetic and educational value - and the
taste of any public is not to be treated with contempt. It is an ultimate fact for the
