Bleinstein v. Donaldson Lithographic Company- 188 U.S. 239; 23 S. Ct. 298; 47 L. Ed. 460; 1903 U.S. LEXIS 1278

Bleinstein v. Donaldson faces the challenge and limitation faced and unanswered by broad definition of authorship in Burrow v. Sarony: What is the minimum originality and creativity required for a work to have copyright protection? The case centers on chromolithographic copies made of engravings of females in ballet costumes, bicycle tricks, and statuary originally used and designed for a circus poster. The circus company who circulated the design for their advertisement filed a copyright infringement suit against the lithographing company for making and distributing copies of their design, and asked for monetary compensation. The defense argued, and won in the circuit court decision, that under the statute, only “pictorial illustrations” and “work’s connected with fine arts” were to be granted copyright protections. The figures portrayed were not photographs and only pictorial replicas of the people that lack originality artworks and they were also immoral ones, as the females were drawn distastefully and crude to trigger excitement for potential customers, and therefore they only contained commercial value for the sole purpose of advertisement and minimal artistic value. Therefore, no copyright protection should be granted. However, Justice Holmes, in this crucial Supreme Court decision, demonstrates his concern over judges’ ability to evaluate art on its aesthetic merit and states that any work of real value, monetary or artistic, should be subjected to copyright—the fact in which this particular work was pirated adds value to the original work—and the court grants the plaintiff the exclusive copyright protection of the design.

Bleinstein v. Donaldson adds great support to my thesis. Unlike Burrow v. Sarony where the court jumped into defining authorship through judging art in its aesthetic qualities and original intention of the art, which is difficult to define or prove, the court admits to the difficulty as the judiciary to be evaluators of fine art. Instead, the court declares that any work of art that shows some value to the society—either in monetary sense, as in the circus advertisement, or in artistic contributions, as in works by Dahli—should be granted copyright protection. Through this decision, the artwork was no longer judged under constraints of morality or people’s perception of “high art.” Though this decision still left many questions, such as where do you draw the line for minimal originality/value to which court will grant copyright, the case is an example that court’s restraint in making aesthetic decisions helped broaden what society perceived as “art” and promoted creativity and progress through making high art more accessible for people.