Article 1, Section 8, Clause 8 of the US Constitution enumerates the power of the federal Congress to legislate,
“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”.[1]
What does this mean for copyright law? More specifically what is the effect of the word “Writings” for the law of copyright? The Supreme Court of the United States has handed down wise standards in this regard for the commercially effective interpretation of this clause. Needless to say, the present author supports these judgments inasmuch as they allow an effective and competitive copyright law to exist in the United States. That said, it is not at all clear that the Framers of the Constitution originally intended for the clause to be so broadly interpreted as it has been. Our purpose is to conduct a ‘bedrock’ analysis of this – as will become apparent – hard clause of the Constitution. Our next aim is to propose a solution based on constitutional theory in favor of the Supreme Court’s interpretation. Obviously, it is unlikely, and indeed (in the ultimate analysis) unnecessary, to amend the Constitution to expressly establish Congress’s power to legislate so broadly as it has hitherto done on copyright. I hope that the reader will see that the issue itself provides an interesting and useful opportunity for us to use the tools of constitutional interpretation, even in so seemingly ‘settled’ a matter as the copyright jurisprudence. Also, it is not a wholly impractical exercise as it may assist in determining if fragrances should be allowed copyright protection under the Constitution.
Perhaps I should say why I have undertaken this task. When reading other commentators, I generally feel dissatisfied by their cursory treatment of the question of what ‘Writings’ means. When the Supreme Court itself has admitted that the definition is beset with difficulties, and a close reading of the case-law reveals developments, indeed, but intellectually inconsistent ones, a more substantive analysis, for the sake of intellectual integrity and satisfaction alone, may be called for. I hope that my efforts in this two-part series will go some way to realizing this ultimate goal. So, in this present Part 1 of our series we will tackle the following issues: the Founder’s originally intended meaning when using the word ‘Writings’, and the Court’s interpretation of that word. What I intend in Part 1 is to show the problems which exist regarding the interpretation of this word. In Part 2, which will be published a week later [edit: it is now live here], we will deal with issues of constitutional interpretation, stare decisis, and how interpretation could, perhaps, develop in the future. I hope at least that our theoretical interpretation will assist you, the reader’s, understanding of the Copyright Clause of the Constitution. And with that, let’s get on with the task at hand.
- What did the Framers intend to mean by the word “Writings” at the time of drafting?
Before we come to a review of the Supreme Court’s jurisprudence we shall discuss the wording of the clause in itself. Indeed, it is the normative and orthodox position to first look at what the Framers at the time, in their context, intended to convey by those words to the population at the time of promulgation.[2] So, what did people in 1798 take “Writings” to mean?
Here Samuel Johnson’s Dictionary, in its 1773 edition, is useful. He defines the word “author” mean: “The first beginner or mover of any thing; he to whom any thing owes its original” (sic).[3] This will become relevant for our discussion of “Writings”. Now, for the word “writing” he gives us three definitions:
“1. A legal instrument; as, the writings of an estate. […]
2. A composure; a book. [...]
3. A written paper of any kind […]” (sic).[4]
Using these definitions, in its broadest possible sense, we may take it that the Copyright Clause was intended for the people to understand in this sense, that Congress be empowered to secure a time limited monopoly over their written papers of any kind to those who are the originators of such written papers. Furthermore, the historical context informing the drafting of the clause, and the use of the clause in enacting copyright legislation very soon after the enactment of the clause, support such a view. In this regard let us consider what The Federalist No. 43 says about this clause. Madison, after having quoted the clause, gives the following gloss on it:
“The utility of this power will scarcely be questioned. The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of individuals. The States cannot separately make effectual provisions for either of the cases, and most of them have anticipated the decision of this point, by laws passed at the instance of Congress.”[5]
For our present purposes we gain the following insight from this comment. That the drafters of the Constitution looked to Great Britain as a model in terms of the sort of copyright protections authors is relevant background. The Framers knew of Great Britain’s copyright law when considering what sort of legislative competence Congress should possess to legislate for the United States’ own copyright law. So, it is only logical that we should consider what sort of works Britain protected by copyright.
The relevant statute of the British Parliament is the Statute of Anne.[6] Throughout the statute protection is granted over rights in a “book or books”, and to nothing else. Furthermore, the preamble to the British statute uses the phrase “books and other writings” in reference to the sort of works which the provisions following it were intended to protect. A reasonable inference from this would be that at its maximum extent the statute could be interpreted as protecting only works of authors composed of the written word. For, there it is books and other writings, not other works of the human hand which are protected. The long title, referencing “printed books” is not particularly useful in understanding the intent of the Copyright Clause, because the Framers provide for a broad legislative competence to protect “Writings”, which is not qualified beyond “Writings” for the promotion of the “Progress of Science” by a time-limited monopoly. We shall consider this further when we come to our discussion of the case-law. So while the Constitution does not expressly limit Congress’s competence to printed books, but seems to grant a general power to protect productions of the written word, or productions analogous to it; it does seem limited thus far on the plain, and historical sense of the clause. We say here “analogous to it” inasmuch as the interpretation the first generation of legislators themselves gave seems to be somewhat broader than strictly the written word alone. The constitutional requirement of the monopoly to be time-limited itself seems to be derived from English common-law jurisprudence of Donaldson v Becket establishing that the term of copyright under the Statute of Anne was not perpetual.[7]
Now we must consider what the first generation of the United States’ legislators thought their power to legislate for copyright was. The Copyright Act of 1790,[8] signed into law by George Washington, protects a “map, chart, book or books”, including those “made and composed, and not printed or published”.[9] An 1802 revision broadens the subject matter to include “musical compositions, and cuts, in connection with prints and engravings”[10] which nonetheless is consistent with the broad categories of the original provisions including maps and charts. This is consistent with our analysis of the writings “Writings” to convey the meaning of “a written paper of any kind”.[11] However, it does not follow that just because Congress used its enumerated power in a certain way, its power was strictly limited to the extent to which it used it.[12] Indeed, there could be numerous policy considerations for it to have a restricted use of the power in initially legislating on copyright, and then, over time, to gradually expand the ambit of copyright protection. Indeed, nowhere does the Constitution limit the power of Congress to that which the first generation of federal legislators thought was expedient, or else much perfectly lawful federal legislation would be unlawful. But surely the generation to whom the Constitution was first promulgated best understood the meaning first intended by its Framers, who used the language in the same way? At least, there must be a very strong presumption that the categories which they did choose to protect were covered by the Constitution. The Supreme Court itself has affirmed this view in the very case which marks the departure from the original, plain understanding of “Writings”.[13]
In considering the original meaning of “Writings”, it is useful, at this point, to consider what Story in his most instructive Commentaries has to say of this provision of the Constitution. “It was”, says he, “doubtless to this knowledge of the common law and statuteable rights of authors and inventors [in Great Britain], that we are to attribute this constitutional provision”.[14] By thus referring to the law of Great Britain as the proper context in which the Framers formulated this provision, Story seems to implicitly recognize that the British understanding of copyrightable works in the Statute of Anne to inform the Constitution’s own provisions denoting what sort of works may be copyrightable. However, this only strengthens our argument about the original meaning of ”Writings” in the constitutional sense. Story further suggests, in relation to the motives for including the Copyright Clause, that, without the sort of copyright protection enumerated in the Constitution,
“authors would have little inducement to prepare elaborate works for the public, if their publication was to be at a large expense, and, as soon as they were published, there would be an unlimited right of depredation and piracy of their copyright”.[15]
Note here how, in his interpretation of the clause, that Story has in mind works that are capable of “publication”. This word seems critical to Story’s own interpretation of the clause, and so a little diversion in considering its meaning may be useful. In both Noah Webster’s Dictionary of 1828, which was likely available to Story, and in Samuel Johnson’s Dictionary edition of 1773, a “publication” is taken to be in connection to either the written or spoken word.[16] Having already considered the meaning of “Writings” above, it seems that Story’s own interpretation of the power would be one concerning authorial productions which have some written manifestation, and thus coheres with the foregoing analysis.
If an inflexibly literal approach be adopted, and if on such an approach what we have said about the original meaning of “Writings” is to be applied to copyright law, then we are in a grave predicament. For then the Court will be forced to nullify the far more generous provisions for copyright protection the Copyright Act of 1976,[17] and contradict the settled jurisprudence of the Supreme Court for since at least Burrow-Giles Lithographic Co. v Sarony.[18]Naturally, if we are absolutely required to upset the settled, working, regime of law for the abstract and theoretical meaning which is the Constitution’s true meaning, then constitutional interpretation would require contradicting the very “general Welfare” which the Constitution seeks to protect.[19] Before undertaking the foolhardy step of nullification we ought to consider whether it is necessary at all. Before this we must consider what the jurisprudence, now quite developed and intricate, takes “Writings” to mean as the subject matter of Congress’s legislative competence. It will be explained later that the question is not so easily decided, and that the jurisprudence should in fact be retained.
B. The Supreme Court’s interpretation of “Writings”
- Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884)
The fundamental case marking an expansion of the court’s understanding of the breadth of subject matter covered by “Writings” is the celebrated case of Sarony. That case is questionable because it is uncertain if the category of photograph would have come under copyrightable subject matter under the original meaning of the Constitution. For Miller J., delivering the opinion of the Court, the interaction of the constitutional term of “Authors” with “Writings” was essential to if photographs were copyrightable.[20] The key sentence from the judgment stating this, and on which the judgment essentially turns, says:
“We entertain no doubt that the Constitution is broad enough to cover an act authorizing copyright of photographs, so far as they are representatives of original intellectual conceptions of the author”.[21]
It is soundly arguable that the sort of case presented in Sarony, where the plaintiff made genuine intellectual choices, represents a work of creative authorship in the sense of the Constitution.[22] Indeed, it perfectly satisfied the definition of author we have derived from Johnson, as representative of the meaning received by the people at the time of promulgation, as that person to whom anything – here a writing, which is an intellectual production – owes its origin.[23] It is in this sense also that Miller J. takes ‘author’ to mean.[24] However in that same paragraph the honorable Justice seems to subtly obscure the distinction between a writing specifically (which we submit has a narrower meaning) and the broader category of an intellectual expression, when he says the categories protected in 1790 and 1802 were ”writings” whereby it “is meant […] to include all forms of writing, printing, engravings, etchings, etc., by which the ideas in the mind of the author are given visible expression”.[25] It is evident here that less weight is thus given to “writings” as a distinct but related concept to authorship but instead of being both a specification of the mode of fixation, and implying a standard of originality, it is taken to imply originality and a very bare notion of fixation only. This is most certainly the case, for Miller J. then proceeds to opine that:
“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”.[26]
It is peculiar that the Court considered the meaning of “author” but never considered the original definition of a “writing”. For the Court held that if a photograph could not be distinguished from the copyrightable categories under previous Acts, photographs should be considered copyrightable.[27] Yet surely in order to ascertain, at a basic level, what is the fundamental basis for any such category to exist, the meaning of the constitutional term of “Writings” must be established certainly? For it is by that word that the Constitution enumerates the subject matter in relation to which Congress may legislate to provide copyright protection. It is this very point that the Court fails to establish, instead choosing to vacate “Writings” of most of its substantive significance.
Let us consider then the interaction of the word “Authors” to the word “Writings” in the Copyright Clause. It is to authors that the time-limited monopoly to their writings is guaranteed. In this sense, writings conditions the meaning of what authorial works qualify for constitutionally permissible copyright protection. Therefore, something may conceivably be an authorial work, but if it is not a writing – if it is not characterized by creative authorship – then no provision can be lawful which purports to extend protection to such a writing based on article 1, section 8, clause 8 of the Constitution.[28] It is right to say that it is from the interaction of “Authors” with “Writings” from which the creativity requirement arises.[29] Furthermore, the ”Writings” requirement condition the rights of authors, inasmuch as an author of a work qua his status as an author cannot be entitled to the protection of anything except that which comes under the category of a writing. Thus, copyright protection could not be extended to, to use an undisputable example, a set of confidential spoken comments which were nowhere recorded. That is not to say that state law might not protect them under the base of confidential information, or some other cause of action.[30] Likewise, mere facts can receive no copyright protection, though the manner they are expressed may.[31] Nevertheless, from this analysis an Act of Congress extending copyright protection must satisfy two basic criteria: first, the persons over whose works to the right is afforded must be characterized by creative authorship; second, the works which are so protected must fall under those sort of works which are writings.
What has been said in the previous paragraph may seem trite, but it is most assuredly not. Indeed, it is on that analysis that the Sarony falls into difficulties. Consider Miller J.’s reasoning: it is because a work is characterized by creative authorship that it is a writing constitutionally permitted to be afforded copyright protection. How else can his reasoning be made sense of? For an author in Sarony is considered to be one who is capable of formulating “original intellectual conceptions”.[32] Writings, which is the only class of items Congress is permitted to grant such protections over, are reduced to merely being ”representatives”, that is fixations, of such conceptions.[33] The clause itself seems to indicate a mutual conditioning of authorship by writings and vice versa, the nature of this conditioning is modified in Sarony to fixation being the only true effect of the word “Writings”. One wonders why the Framers did not draft the clause to use language which would more easily bear the sense which Sarony reads into it. Was the more general “creation”[34] insufficient that the much narrower “Writings” was employed? For creation was defined more generally as, “Any thing produced or caused”, [35] and so more accommodating. To argue thus would be clean contrary to any sound conception of the language used in the Constitution, especially considering that a writing, at the time of the Founding, had quite a restricted sense as we have seen.[36] Though let us note that the wide construction of the Copyright Clause prior to Sarony was correct as to the original meaning of the clause. Indeed, our argument as to the positive meaning of the clause may be summarized by the position in the Trademark Cases:
“In this [as regards writings] as in regard to inventions, originality is required. And while the word writings may be liberally construed, as it has been, to include original designs for engravings, prints, &c., it is only such as are original and are founded in the creative powers of the mind. The writings which are to be protected are the fruits of intellectual labor, embodied in the form of books, prints, engravings, and the like.”[37]
This is significant. “The writings which are to be protected” suggests there may be writings which may not be protected. These are those which are not the “fruits of intellectual labor” or are not “embodied” in the correct form of fixation. That said, a wide construction of the clause ensures that a large amount of subject matter is copyrightable, and that it is thus commercially exploitable, and promotes the increase of the various fields of knowledge which are thus protected. The increasing expansion was based upon the originality requirement, which itself was constitutionally consistent. Nevertheless, the continued expansion of protectable subject matter (or, at least, matter the Courts were willing to protect) saw the Court in Sarony misconstrue the clause by giving undue weight to originality at the expense of the mode of fixation (i.e., “Writings”) requirement contrary to the sense of the Constitution. The later case-law indicates this to be the general trend of jurisprudence including at the highest level.
- Expansion of subject matter following Sarony
It is not necessary here to engage in an exhaustive discussion of the complete jurisprudence and precise reasoning concerning the constitutionally covered subject matter in all the notable cases following Sarony. We need only undertake an examination of what matter has been protected, and synthesize the body of reasoning which has emerged in the body of post-Sarony case-law on the subject matter covered by “Writings”. We may then conveniently compare this with the fundamental reasoning in Sarony itself. After this we shall undertake to expound a constitutionally consistent doctrine recognizing the disjuncture between the jurisprudence and the sense of the Constitution, but, nevertheless, recognizing even originalist grounds for not reverting to a stricter interpretation of the “Writings” criterion.
Bleistein[38] in 1903 confirmed that photographs, in that case produced by chromolithography, continued to be protectable, and that judges, being trained in law and for other policy considerations, should not make aesthetic judgments in determining if a writing qualified for copyright protection.[39] Later on in that decade, White-Smith[40] seemed to indicate that the Court was perhaps reining in its expansive approach, where it refused to allow piano rolls to be considered writings for the purposes of the Copyright Act, as amended in 1891. Day J., delivering the opinion of the Court, said that,
“Music, it is argued, is intended for the ear, as writing is for the eye, and that it is the intention of the Copyright Act to prevent the multiplication of every means of reproducing the music of the composer to the ear”.[41]
It is important to note that the Court only construed the Act. As such, its understanding of what a writing constituted was limited to the extent that it only construed the maximum extent Congress chose to exercise its lawful power under the Copyright Clause. So, it did not consider whether Congress could lawfully protect a “writing” which is intended for the ear but cannot be read by the eye. It did not consider whether any such distinction existed in the Constitution itself. Thus it was left open to Congress to claim exercise of such a power, which it duly did the year following the case, protecting mechanically reproduced music.[42] In Goldstein[43] the Court confirmed that musical recordings fell within the purview of the Constitution’s “Writings” requirement when Burger C.J. held that,
“although the word “writings” might be limited to script or printed material, it may be interpreted to include any physical rendering of the fruits of creative intellectual or aesthetic labor.[44] Thus, recordings of artistic performances may be within the reach of Clause 8”.[45]
Here, itself citing Sarony, the Court confirms the judicial approach of effectively emptying the “Writings” requirement of most of its substantive significance in that whilst originality and fixation are required, the mode of fixation requirement implied by that word is entirely ignored. A most remarkable instance of the application of the Court’s reasoning is Mazer v Stein.[46] In protecting sculpture, it enunciated the bare standard that a work “must be original, that is, the author’s tangible expression of his ideas”,[47] with no reference to writings qua writings, in the mold of Sarony. Indeed, even Feist’s originality standard, quite correct as a standard on our reasoning, comes in the tradition of this body of case-law by being blind to the requirement of a mode of fixation, which the plain sense of the word indicates.[48]
One commentator has observed:
“The “Writings” requirement in the Copyright Clause is not a limitation, because a motion picture film has been held to be a writing in a constitutional sense [citing Kalem Co. v Harper Bros. 222 U.S. 55 (1911)].”[49]
Very little concern has been shown for the actual meaning and intended effect of the “Writings” requirement, with, as we have explained, its threefold effect requiring creativity, fixation, and mode of fixation. If the requirement that a copyrightable works be a ‘Writings’ is not a limitation, then the word has been emptied of all original meaning. Indeed the “Writings” requirement “is not a limitation” because of what the Supreme Court has decided, contrary to the sense of the word in the Constitution itself.[50] It would be tedious to relate many more cases where the Court has considered the meaning of “Writings”. It is, on the strength of the Court’s judgments that Congress expansively legislated to protect not only writings as they were understood during the time the clause was promulgated, but also motion pictures, sculptures, and many other categories in the present 1976 Act.[51] Raising the issue of mode of fixation, after the settling of the case-law on “Writings” may seem theoretical at best and disruptive at worst, but, as we shall argue, may be material for future litigation on the Copyright Clause.
However, this is the point where we pause for this week. Next week, in the concluding Part 2 of this series we will consider constitutional interpretation and stare decisis, alongside room for development in the interpretation of subject matter under the Constitution.
[Access Part 2 via this hyperlink]
[1] U.S. Const. art. I, § 8, cl. 8
[2] Therefore, see Calder v Bull 3 U.S. 386 (1798) 391 where Chase J. considered that where a words had acquired technical meaning, where “they had been in use long before the Revolution, and had acquired an appropriate meaning, by legislators, lawyers, and authors”, it was that meaning which was relevant to deciding a case. It is submitted that the meaning of terms, generally, should be decided on the basis of what they were understood to mean at the time.
[3] Samuel Johnson, A Dictionary of the English Language (2nd ed, 1773)
[4] ibid
[5] James Madison, The Federalist No 43
[6] 8 Ann. c. 21
[7] 4 Burr. 2408
[8] 1 Stat. 124
[9] ibid §1
[10] cf. Burrow-Giles Lithographic Co. v. Sarony 111 U.S. 53 (1884)
[11] Samuel Johnson, op cit
[12] cf. Martin v Hunter’s Lessee 14 U.S. 304 (1816) 326-327: ”It could not be foreseen what new changes and modifications of power might be indispensable to effectuate the general objects of the charter, and restrictions and specifications which at the present might seem salutary might in the end prove the overthrow of the system itself. Hence its powers are expressed in general terms, leaving to the legislature from time to time to adopt its own means to effectuate legitimate objects and to mould and model the exercise of its powers as its own wisdom and the public interests, should require” (Story J.)
[13] Sarony, op. cit., at 58: ”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.”
[14] Joseph Story, Commentaries on the Constitution of the United States, Book 3, ch 19, § 1147 (1833)
[15] ibid
[16] Thus Noah Webster, American Dictionary of the English Language (1828) has the following entry for ”publication”:
“1. The act of publishing or offering to public notice, notification to a people at large, either by words, writing or printing; proclamation; divulgation; promulgation; as the publication of the law at mount Sinai; the publication of the gospel; the publication of statutes or edicts.
2. The act of offering a book or writing to the public by sale or by gratuitous distribution. The author consented to the publication of his manuscripts.
3. A work printed and published; any pamphlet or book offered for sale or to public notice; as a new publication; a monthly publication”
Samuel Johnson, op. cit., has the following entries:
“1. The act of publishing; the act of notifying to the world; divulgation; proclamation.
[…]
2. Edition; the act of giving a book to the publick. […]” (sic)
[17] 17 U.S.C. §102
[18] 111 U.S. 53 (1884)
[19] U.S. Const., Preamble.
[20] ibid at 58
[21] ibid
[22] Feist Publications, Inc. v Rural Tel. Serv. Co. 499 U.S. 340 (1991) 346, 362
[23] Samuel Johnson, op. cit.
[24] Sarony, op. cit.,at 58.
[25] ibid
[26] ibid
[27] ibid at 57
[28] cf. Feist Publications, Inc. v Rural Tel. Serv. Co. 499 U.S. 340 (1991) 362
[29] Ned Snow, “Science, Creativity, and the Copyright Clause” [2023] 74 Hastings L.J. 1121, 1154
[30] This may include information qualifying as a trade secret: Wis. Stat. § 943.205 (2024).
[31] Baker v Selden 101 U.S. 99 (1879)
[32] Sarony, op. cit., at 58
[33] ibid
[34] Defined in Samuel Johnson, op. cit., as “Any thing produced, or caused.”
[35] Ibid.
[36] Cf. United States v Sprague 282 U.S. 716 (1931) 731
[37] Trademark Cases 100 U.S. 82 (1879) 94
[38] Bleistein v Donaldson Lithographing Co 188 U.S. 239 (1903)
[39] ibid at 251
[40] White-Smith Music Pub Co v Apollo Co 209 U.S. 1 (1908)
[41] ibid at 11
[42] 35 Stat. 1075
[43] Goldstein v California 412 U.S. 546 (1973)
[44] Internal citation of Burrow-Giles Lithographic Co v Sarony 111 U. S. 53 (1884) 58; Trademark Cases 100 U. S. 82 (1879) 94.
[45] Goldstein, op. cit., at 411-412.
[46] Mazer v Stein 347 U.S. 201 (1954)
[47] ibid at 214
[48] Feist, op. cit., at 346, 351, 354-355.
[49] Thomas Boggs Richards, ”The Value of the Copyright Clause in Construction of Copyright Law” [1975] 2 Hastings Const. L.Q. 221, 235.
[50] ibid
[51] 17 U.S.C. §102
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