Commentary on:
Baker v. Selden (1879)

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Primary Sources on Copyright (1450-1900)

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Identifier: us_1879b

 

Commentary on Baker v. Selden 1879

Oren Bracha

School of Law, University of Texas

 

Please cite as:
Bracha, O. (2008) ‘Commentary on Baker v. Selden (1879)', in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org

 

1. Full title

2. Abstract

3. The Significance of the Case

4. Background and Early Litigation

5. The Supreme Court Argument and Decision

6. Baker v. Selden in the Context of Late Nineteenth Century Copyright

7. The Legacy of Baker v. Selden

8. References

1. Full title

Baker v. Selden, 101 US 99 (1879)

 

2. Abstract

A seminal case on the issue of copyrightable subject matter decided by the Supreme Court. The decision denied copyright protection to an accounting form on the ground that functional methods and systems are not proper subject matter of copyright and could only be protected by a patent. The commentary surveys the litigation and its background, the Supreme Court decision, and the broader context of late nineteenth century development of American copyright law within which Baker v. Selden fits. It concludes by briefly discussing the various doctrines of modern copyright law whose origin is traceable, at least in part, to the Baker decision.

 

3. The Significance of the Case

Baker v. Selden[1] is a landmark case on the issue of copyrightable subject matter. Since it was decided by the Supreme Court in 1879 it has exerted influence on the development of numerous copyright doctrines and rules. The gist of the decision which denied copyright protection to a new accounting system could be described on three levels of generality. First, the decision established a distinction between copyrightable expressive content and non-copyrightable functional systems and methods. Second, this distinction was part of a broader attempt by the court to draw a line separating subject matter suitable for the requirements, procedures and scope of protection of patent law and subject matter appropriate for protection under the different regime of copyright. Finally, both the system/expression and the patent/copyright distinctions were part of a general trend in late nineteenth century American copyright law toward developing new mechanisms for circumscribing copyright protection. Ironically this trend was an integral part of the general expansion of the scope and strength of copyright protection during this period. As the traditional concept of copyright as a limited right to reprint a text demised, its built-in restricting character was swept away. In the face of attempts to expand copyright in novel directions judges worked to develop rules that would place some limit on copyright's expansion potential. Baker v. Selden was part of this development during which seminal elements of modern American copyright law such as the idea/expression dichotomy and the fair use doctrine had emerged.

 

4. Background and Early Litigation

At the heart of the Baker v. Selden litigation was a new bookkeeping system developed and publicized by Charles Selden (d. 1871) during the late 1850s and 1860s. Selden, the chief accountant to the treasurer of Hamilton County, Ohio, adapted standard bookkeeping methods into what he called the condensed ledger system. The main innovation of Selden's system was a single "condensed" entry of all transactions in one ledger. Under the existing double entry method transactions in various accounts had to be recorded twice: first in a journal dedicated to a particular account, and then chronologically in a general ledger common to all accounts. Selden's new arrangement of the ledger enabled recording all pertinent information in one "condensed" journal.[2] This basic improvement had great potential for making accounting practices much more efficient. Using the condensed ledger all information was more easily accessible and balances and reports could be produced much faster. The result was saving of labor, time and money as well as easier detection of errors and fraud.[3] All of this was especially valuable in a society that was rapidly growing economically and bureaucratically more complex.

 

Selden sought to capitalize on his innovation in two different ways. The first was publication. Selden published six books, all of which were variants of a short practical guide that explained and exemplified the new system.[4] Selden, however, had more ambitious plans. In May 1865 he entered an agreement with Hamilton County for the use of his system. His plan was to license his system for use in the governmental sector ranging from municipal authorities to the U.S. Department of Treasury as well as to private corporations. Given the significant savings offered by his system, Selden planed to charge lucrative fees for its use.

 

At some point, probably in order to support his licensing efforts, Selden applied for a patent in his method.[5] The patent was never issued and the grounds for rejection are unknown. It is plausible, however, that the Patent Office regarded a mere method of recording information or an innovative design of forms detached from any physical apparatus or process as an inappropriate subject matter for patent protection. Decades later this view would consolidate into a two formal rules announced by the courts that would deny protection to "business methods" and "printed matter."[6]

 

Despite Selden's optimism, his grand plans never came to fruition. His system was not adopted by other counties, except for short trials, and he went into debt. The last nail in Selden's casket was the 1867 publication by W.C.M. Baker, auditor of Green County, Ohio of his own bookkeeping system. Baker's forms were similar to those of Selden and they offered the same advantages over existing methods. In some respects, however, such as allowing the calculation of interim balances, Baker's forms were different and superior.[7] By the fall of 1871 Baker who licensed his accounting system for a price substantially lower than Selden's, established relationship with more than 40 counties in Ohio and several private firms.[8] On July 30, 1871 Selden, who had been ill, died. His legacy to his wife was chiefly his copyright in his books and heavy debts.

 

It was only after Selden's death that the legal dispute with Baker erupted. The widow, Elizabeth Selden, probably with the help of Selden's friends or creditors, filed a lawsuit in the Federal Court for the Southern District of Ohio against Baker claiming the infringement of the copyright of her husband's book. A testimony obtained in a problematic procedure and later challenged on grounds of both substance and procedure, supplied strong circumstantial evidence that, the differences of the forms notwithstanding, Baker copied his system from Selden.[9] Elizabeth Selden argued that Baker's copying of the forms amounted to an infringement of Selden's copyright and resulted in substantial market damage. In January 1875 the trial court decided in favor of plaintiff. It found that Baker's book was substantially similar to that of Selden and issued an injunction restraining Baker from selling and publishing his book. The court based this finding particularly on the identity of the "device, method and form" employed by the two accounting forms.[10]

 

5. The Supreme Court Argument and Decision

In March 1875, in the wake of a battle of circulars and threatening letters to customers, Baker filed an appeal to the U.S. Supreme Court. The original written argument by Baker's lawyers invoked what would become the main issue in the Supreme Court decision in a somewhat ambiguous way. The brief argued that Selden's form "is a mechanical device by which a skilled person may accomplish certain results."[11] Furthermore, the brief argued that the ledger's "ingenuity as a mechanical device may entitle it to entry at the Patent Office...but copyright is intended to authors not inventors."[12] These arguments, however, were incorporated into and blurred with the more general claims about the failure of the forms to fall under any of the recognized statutory subject matter categories and especially the "book" category. The copyright-patent distinction issue was thus hidden within a more traditional subject matter argument. Selden's lawyers' written argument focused on the question of copyrightable subject matter and the substantial similarity between the two works. On the former they emphasized the liberal construction given in the English and American case law both to the statutory category of a "book" and to the originality requirement. Given this liberal construction, they argued, Selden's forms were subject matter appropriate for copyright protection.[13]

 

It appears that the issue of a distinction between copyright and patent subject matter clearly emerged as the pivotal question in the case during oral argument. At some point, perhaps in response to a question by one of the Justices, Baker's lawyers argued that Selden's system could not be protected by copyright because it was "a contribution to useful mechanical art, not to literature." Selden himself recognized this, they argued, by trying to obtain a patent for his invention.[14] The response of Selden's lawyers, assuming that it is accurately reflected in the Lawyer's Edition report of the case, reveals that they may have not fully appreciated the new tenor of the argument. Selden's ledger, they said, is "a contribution to useful knowledge" and "[i]t embraces one of the most necessary features of every day business life, and serves a purpose of usefulness that needs not demonstration."[15] This was an appropriate argument when attempting to establish the work's originality. In the context of the patent-copyright distinction, however, this claim strengthened Baker's point.

 

Baker's lawyer later reiterated their newly refined argument in a supplemental brief submitted to the court.[16] Interestingly the supplemental brief revealed what was probably the weakest aspect of the claim that the proper protection for Selden's form was under patent law. It admitted that works of the kind produced by Baker "do not appear to be within the strict scope of the patent law, and they are certainly not within the law of copy-right." This was apparently a recognition that Selden's system, while closer to the utilitarian realm of patents, was barred from patentability under existing patent subject matter rules. The remedy the brief proposed for this gap in the law is intriguing if somewhat inaccurate. Classes of "inventions and designs" to which neither copyright nor patent applied like Selden's system, the brief argued, were governed in England by a tritium quid regime providing protection for designs passed in 1839[17] and amended several times during the century. If it so chose, Congress could pass a similar legislation to correct the "omission" in the United Sates. This was somewhat misleading. In reality, Congress had legislated a design patent regime similar to the British one in 1841[18] and amended it in 1861.[19] Moreover, Selden's system was unlikely to be recognized as a subject matter protectable by a design patent under either the British or the American statutes.

 

The opinion of the court was written by Justice Joseph Bradley (1813-1892). From the outset Bradley centered the opinion on the question of the copyrightability of Selden's system. If Selden "had the exclusive right to the use of the system explained in his book," he wrote "it would be difficult to contend that the defendant does not infringe it." On the other hand, given the differences between the texts, "if it be assumed that the system is open to public use, it seems to be equally difficult to contend that the books made and sold by the defendant are a violation of the copyright of the complainant's book considered merely as a book explanatory of the system."[20] The choice among these possibilities immediately followed: "[w]here the truths of a science or the methods of an art are the common property of the whole world, an author has the right to express the one, or explain and use the other, in his own way."[21]

 

The Baker v. Selden opinion was premised on a distinction between a literary work and any utilitarian information or method conveyed in it, or in Bradley's words on a "clear distinction between the book, as such, and the art which it is intended to illustrate"[22] The former was the subject matter of copyright while the latter could only be properly protected under patent law. Bradley explained that this distinction was not simply an insistence on formal or technical classifications. Patents and copyright protected different subject matter, served distinct policies, involved different procedures and were subject to different substantive requirements. Bradley explained this as follows:

"The novelty of the art or thing described or explained has nothing to do with the validity of the copyright. To give to the author of the book an exclusive property in the art described therein, when no examination of its novelty has ever been officially made, would be a surprise and a fraud upon the public. That is the province of letters-patent, not of copyright. The claim to an invention or discovery of an art or manufacture must be subjected to the examination of the Patent Office before an exclusive right therein can be obtained; and it can only be secured by a patent from the government."[23]

Bradley gave three examples to illustrate his distinction: a book on the preparation of medicines and the medicines themselves, a book on perspective and the drawing method conveyed by it, and a book on "mathematical science" and the mathematical principles explained in it.[24] In all three cases the author's right was limited to the explication of the functional element in the text. The same rule applied to Selden's book: "The copyright of a book on book-keeping cannot secure the exclusive right to make, sell, and use account-books prepared upon the plan set forth in such book."[25] Since Baker only did the latter he did not infringe copyright.

 

The difficulty in the case, Bradley explained, followed from the fact that the literary work and the utilitarian method it conveyed were closely bundled together: "the illustrations and diagrams employed happen to correspond more closely than usual with the actual work performed by the operator who uses the art."[26] Despite the peculiarity of this subset of cases, Bradley insisted that "the principle is the same," namely the functional aspect could be protected only under patent law even at the cost of denying copyright protection to expressive elements closely bundled with it. Thus "where the art" a work "teaches cannot be used without employing the methods and diagrams used to illustrate the book, or such as are similar to them, such methods and diagrams are to be considered as necessary incidents to the art, and given therewith to the public."[27]

 

In order to reach his conclusion Bradley had to dismiss Drury v. Ewing decided seventeen years earlier by the same federal Ohio court that ruled in favor of Selden.[28] The Drury court found that a chart consisting of diagrams for measuring and cutting women's garments was a "book" protected under the copyright statute. Bradley distinguished the question of whether a chart was a "book" decided in Drury from the question of copyright protection to the utilitarian method. Unlike Selden's forms, Drury's diagrams were merely descriptions of the method. The actual "practical use could only be exemplified in cloth on the tailor's board and under his shears; in other words, by the application of a mechanical operation to the cutting of cloth in certain patterns and forms."[29] The functional method itself in Drury was just as uncopyrightable as the accounting system: "[s]urely the exclusive right to this practical use was not reserved to the publisher by his copyright of the chart."[30] Bradley's handling of Drury demonstrated how his decision reoriented subject matter analysis. Previous decisions and most of the parties' arguments in Baker v. Selden itself focused on the question of whether the work at hand could be considered as falling within one of the statutory subject matter categories, usually that of a "book." The Baker v. Selden decision shifted the focus to the different question of whether the copyright owner was seeking protection under copyright for a utilitarian method or system.

 

For affirmative support to his decision Bradley relied on two English precedents and one American decision. One of the English precedents was more or less analogous to the case at hand. In Page v. Wisden copyright protection was denied to a cricket scoring-sheet with the court observing that "to say that a particular mode of ruling a book constituted an object for a copyright is absurd."[31] The two other decisions cited, however, were more traditional subject matter cases. The English Cobbett v. Woodward denied copyright protection to a furniture catalog found to be "mere advertisement."[32] In Clayton v. Stone Justice Thompson sitting as a circuit judge denied copyright protection to a "daily price current," he found to be a work of "mere industry" rather than a work of science and learning.[33] These two last precedents relied on judgments about the merit or creativity of the works, not on the Selden v. Baker distinction between expressive works and functional methods. The irony was that as copyright attitudes were changing, subject matter limitation on practical or commercial expression would soon be swept away and the decisions relied on by Bradley would become anachronistic.[34] By contrast, the rule that was based on these precedents in Selden v. Baker endured, developed, and became the source of a host of various modern copyright doctrines.

 

6. Baker v. Selden in the context of Late Nineteenth Century Copyright

Baker v. Selden was part of a more comprehensive structural transformation experienced by American copyright law during the late nineteenth and early twentieth centuries. During the nineteenth century the doctrines defining the scope and strength of copyright protection and the concept of copyright latent in those doctrines had undergone a gradual but profound change. The traditional approach understood copyright as a limited exclusive right to reprint and sell copies of a text. In essence, this meant the right to print verbatim reproductions of a protected text, or versions with such minor changes from the original as to constitute an evasion of the prohibition on reprinting. A host of secondary uses and derivative uses of texts were not within the scope of copyright narrowly conceptualized in this way. Throughout the century this concept declined and was gradually supplanted by a much broader understanding of copyright as an exclusive right to control the reproduction and exploitation of an intellectual work, irrespective of changes of form or media. Eaton S. Drone expressed this new concept in his 1879 treatise, as follows:

"Literary property, as has been shown, is not in the language alone; but in the matter of which language is merely a means of communication. It is in the substance and not in the form alone. That which constitutes the essence and value of literary composition... may be capable of expression in more than one form of language different than the original."[35]

Legal doctrine changed in a similar direction, gradually expanding copyright protection well beyond the area of verbatim reprints.

 

The somewhat ironic upshot of this process was the need to create new doctrinal mechanisms to limit the scope of copyright protection. As the former self-restricting character of copyright dissolved, the potential for expansion of protection became vast. In response judges worked to develop new doctrinal and conceptual means for imposing some limit on the coverage and scope of copyright protection. One important example of this process was the appearance and development of the fair use doctrine.[36] Another was the new version of the idea/expression dichotomy that withheld copyright protection to abstract ideas. Baker v. Selden and its rule against extending protection to utilitarian systems was part of this general effort to circumscribe the seemingly unlimited potential for expansion of the newly conceived field of copyright.

 

Baker v. Selden is sometimes described as an early, perhaps the first, case applying the idea/expression dichotomy to copyright.[37] As Pamela Samuelson recently argued, this is inaccurate.[38] The traditional version of the rule that copyright protection extended to concrete expression only existed in Anglo-American copyright law as early as the eighteenth century. This early antecedent, however, was different than the modern version of the doctrine. It was a necessary correlate of the understanding of copyright as a limited right of making verbatim reprints. Rather than a regularly applied doctrine, the idea/expression distinction was an incidental observation on the system sometimes made by judges or commentators. In the rare occasions where such observations were made, as in the British and American literary property debates, judges sometimes referred to the happy consequence of this trait of the system, namely, the unrestricted flow of knowledge in society.[39]

 

The new version of the idea/expression dichotomy that developed in the late nineteenth and early twentieth centuries was different. It operated in the context of copyright protection that extended to high levels of abstraction well beyond verbatim reproduction. Judges came to use the distinction as a regularly applied rule for setting some cap on this expansion. When claims for protection were made on very high levels of abstraction judges would label them as impermissible attempts to protect ideas.[40]

 

While Baker v. Selden was part of the same general process that gave rise to the modern idea/expression dichotomy it dealt with a different aspect of the problem of expanding copyright protection. The gist of the Baker opinion was not the level of abstraction or concreteness of the subject matter to which protection applied. Its heart was, rather, the distinction between expressive subject matter suitable for copyright protection and utilitarian or functional subject matter that could be protected, if at all, only under the patent regime designed for it. Most of the various legal doctrines that developed out of Baker v. Selden are traceable to this rationale.

 

7. The Legacy of Baker v. Selden

In the century following its decision, Baker v. Selden has become a seminal influential case. Numerous doctrines and rules in modern American copyright can be traced, at least in part, to this case and to its underlying rationale. A testament to its importance is the fact that fifteen years after Baker v. Selden was decided it was cited by a British court-a relatively rare event at that time.[41] Unsurprisingly, in the United States the decision's influence was deeper and more enduring. What follows describes the more significant influences of Baker v. Selden in American copyright law, rather than being an exhaustive survey.[42]

 

In the decades following Baker many decisions rejected various attempts to extend copyright protection to functional methods, systems and schemes ranging from a shorthand system[43] to a scheme for reorganizing insolvent insurance companies.[44] As part of the 1976 reform of copyright law the rule was codified in section 102(b) of the 1976 Copyright Act that explicitly denies protection to any "procedure, process, system, method of operation."[45] Surprisingly, it was after this codification that a few cases that ignored the rule or subjected it to very narrow constructions appeared.[46] Baker's narrower ruling is preserved today in the widespread if not uniform refusal of courts to extend copyright protection to blank forms,[47] and by a Copyright Office rule that denies registration to such subject matter.[48]

 

More generally, since Baker American copyright law, with some notable exceptions,[49] was resistant to attempts to leverage copyright protection in order to attain exclusive rights in utilitarian and functional subject matter. One prominent group of cases involved failed attempts to impose liability on parties who "copied" designs of useful articles such as a parachute[50] or a gas pipeline[51] from copyrighted drawings of those items. As to more direct attempts to extend copyright protection to useful articles, these are controlled by the "useful article" doctrine which was added to the 1976 Copyright Act. The definition of "Pictorial, graphic, and sculptural works" in this Act provides that "works of artistic craftsmanship" are protected only "insofar as their form but not their mechanical or utilitarian aspects are concerned." It also mandates that "the design of a useful article... shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article."[52]

 

One last important doctrine to be mentioned here whose origin can be found in Baker v. Selden is the merger doctrine. The merger doctrine is sometimes described as the rule under which when there is only one or a limited number of ways of expressing an idea, the expression as well as the idea are not protectable by copyright. Baker which did not deal directly with the idea/expression dichotomy did not explicitly declare such a rule. The decision, however, did employ a broader principle on which the merger doctrine seems to be premised. Selden's ledger embodied both an essential part of the system and expressive graphic-textual subject matter. The court, while acknowledging this found that when the functional system cannot be used without recourse to the expressive element the latter is a "necessary incidents to the art, and [is] given therewith to the public."[53] In other words, when a choice became inevitable, the rationale for not protecting functional methods trumped the rationale for protecting expressive elements. Throughout the twentieth century courts employed the same reasoning, often citing Baker v. Selden, to deny protection in similar situations when protectable and unprotectable elements were closely bundled together.[54] In the 1980s this rule came to be known as the merger doctrine.[55]

 

Interestingly, despite the lasting influence of Baker v. Selden it is one of the case's most central premises that had become less than universally accepted in contemporary copyright thinking. Justice Bradley's decision in Baker, as one would recall, was based on a distinction between the copyright and patent regimes, and on the assumption that at least some subject matter could only be governed by the latter. However, future attempts to draw sharp distinctions between the various intellectual property regimes and deny copyright protection due to coverage by another regime were met with mixed result. A landmark case in this respect is the 1954 Mazer v. Stein.[56] Faced with a copyright claim for lamp-based statuettes the Supreme Court rejected the argument that because this kind of functional subject matter could have been protected by a design patent copyright protection was unavailable. While dealing with the design-patent/copyright rather than the patent/copyright interface, the logic of Mazer still stands in considerable tension with Baker's premise of neatly separated intellectual property regimes, each governing the appropriate subject matter. Later cases and commentary point in different directions in regard to this question. This controversial character within modern copyright thought of one of Baker's v. Selden's main premises notwithstanding, the case still retains its viability and importance today, more than a century after it was decided and often in contexts unimagined in 1879.

8. References

 

Governmental papers and legislation

Legislation

United Kingdom

An Act to Secure to Proprietors of Designs for Articles of Manufacture the Copyright of Such Designs for Limited Time, 2 Vict. C. 17 (1839).

 

United States

1976 Copyright Act, 17 USC §101.

Act of August 29, 1842, ch. 263, § 2, 5 Stat. 543.

Act of March 2, 1861, ch. 88, § 11, 12 Stat. 246.

Copyright Office Rule, 37 C.F.R. §202.1(c).

 

Cases

United Kingdom

Cobbett v. Woodward, (1872) Law Rep. 14 Eq. 407

Hollinrake v. Truswell, (1894) 3 Chanc. D. 420

Millar v. Taylor, (1769) 4 Burr. 2302 (K.B.)

Page v. Wisden, [1869] 20 L.T.N.S. 435

 

United States

ADA v. Delta Dental Plans Ass'n, 126 F.3d 977 (7th Cir. 1997)

Apple Computer Inc. v. Franklin Computer Corp., 714 F.2d 1240 (3d Cir. 1983)

Berardini v. Tocci, 190 F. 329 (C.C.D.N.Y. 1911)

Brief English Systems v. Owen, 48 F.2d 555 (2d Cir. 1931)

Clayton v. Stone, 5 F. Cas. 999 (Cir. Ct., S.D.N.Y., 1829)

Crume v. Pacific Mutual Life Ins. Co., 140 F.2d 182 (7th Cir. 1944)

Drury v. Ewing, 7 F. Cas. 1113 (C.C.S.D. Ohio 1862)

Dymow v. Bolton, 11 F.2d 690 (2d Cir. 1926)

Eichel v. Marcin, 241 F. 404 (S.D.N.Y. 1913)

Fulmer v. U.S., 103 F. Supp. 1021 (Ct. Cl. 1952)

Holmes v. Hurst, 174 U.S. 82, 86 (1899)

Hotel Security Checking Co. v. Lorraine Co., 160 F. 467 (2d Cir. N.Y. 1908)

Kalem Company v. Harper Bros., 222 U.S. 55 (1911)

Kern River v. Gas Transmission Co. v. Coastal Corp., 899 F.2d 1458 (5th Cir. 1990)

London v. Biograph Co., 231 F. 696 (2d Cir. 1916)

Mazer v. Stein, 347 U.S. 201 (1954)

Nutt v. National Institute Inc., 31 F.2d 236 (2d Cir. 1929)

Simms v. Stanton, 75 F. 6, 10 (C.C.N.D. Cal. 1896)

Stodart v. Mutual Film, 249 F. 507 (S.D.N.Y. 1917)

Time-Saver Check, Inc. v. Deluxe Check Printers, Inc. 178 USPQ (BNA) 510 (N.D. Tex. 1973)

Toro Co. v. R & R Products Co., 787 F.2d 1208 (8th Cir. 1986)

United States Credit System Co. v. American Credit Indem. Co., 59 F. 139 (2d Cir. N.Y. 1893)

 

Books and Articles

Hudson. ''A Brief History of the Development of Design Patent Protection in the United States.'' J. Pat. Off. Soc'y 30 (1948): 380-400.

Kaplan, Benjamin. An Unhurried View of Copyright (New York: Columbia University Press, 1967)

Nimmer, Melville B. and David Nimmer. Nimmer on Copyright (New York: M. Bender, 2006, §§2.03, 2.18)

Samuelson, Pamela. "The Story of Baker v. Selden: Sharpening the Distinction Between Authorship and Invention." In Intellectual Property Stories, ed. by Jane C. Ginsburg and Rochelle Cooper Dreyfuss (New York: Foundation Press, 2006), 159-93

___. "Why Copyright Law Excludes Systems and Processes from the Scope of Its Protection." Tex. L. Rev. 85 (2007): 1921-1977


[1] 101 US 99 (1879).

[2] See Selden's ledger reproduced in the brief for Baker submitted to the Supreme Court. Argument for Appellants, 6-7; us_1879d.

[3] Pamela Samuelson, "The Story of Baker v. Selden: Sharpening the Distinction Between Authorship and Invention," in Intellectual Property Stories, ed. Jane C. Ginsburg and Rochelle Cooper Dreyfuss (New York: Foundation Press, 2006), 159.

[4] Ibid., 169.

[5] Supplemental Brief for the Appellant 2, us_1879d.

[6]See e.g. United States Credit System Co. v. American Credit Indem. Co., 59 F. 139 (2d Cir. N.Y. 1893); Hotel Security Checking Co. v. Lorraine Co., 160 F. 467 (2d Cir. N.Y. 1908); Berardini v. Tocci, 190 F. 329 (C.C.D.N.Y. 1911).

[7] See Baker's form reproduced in the brief for Baker submitted to the Supreme Court. Argument for Appellant, 6-7; us_1879d.

[8] Samuelson, "Story of Baker v. Selden," 162.

[9] Ibid., 164-65, 172.

[10] Supreme Court Transcript of Record Baker v. Selden, in U.S. Records and Briefs of the United States Supreme Court 9.

[11] Argument for Appellants, 5; see us_1879d.

[12] Ibid., 9.

[13] Argument for Appellee, 3-6; see us_1879c.

[14] 25 L. Ed. 841.

[15] Ibid., 842.

[16] Supplemental Brief for the Appellant; see us_1879d.

[17] An Act to Secure to Proprietors of Designs for Articles of Manufacture the Copyright of Such Designs for Limited Time, 2 Vict. C. 17 (1839).

[18] Act of August 29, 1842, ch. 263, § 2, 5 Stat. 543.

[19] Act of March 2, 1861, ch. 88, § 11, 12 Stat. 246. See generally Hudson, ''A Brief History of the Development of Design Patent Protection in the United States,'' J. Pat. Off. Soc'y 30 (1948): 380.

[20] 101 U.S. 100.

[21] Ibid., 100.

[22] Ibid., 102.

[23] Ibid.

[24] Ibid., 102-103.

[25] Ibid., 104.

[26] Ibid.

[27] Ibid., 103.

[28] Drury v. Ewing, 7 F. Cas. 1113 (C.C.S.D. Ohio 1862).

[29] 25 L. Ed. 845.

[30] Ibid.

[31] [1869] 20 L.T.N.S. 435.

[32] [1872] Law Rep. 14 Eq. 407.

[33] 5 F. Cas. 999 (Cir. Ct., S.D.N.Y., 1829).

[34] See the commentary for us_1903.

[35] Eaton S. Drone, A Treatise on the Law of Property in Intellectual Productions in Great Britain and the United States (Boston: Little, Brown, 1879), 451.

[36] See the commentary for us_1841.

[37] See Melville Nimmer and David Nimmer, Nimmer on Copyright, §2.18[D](1) (New York: M. Bender, 2004). For an explanation of the sources of this understanding of Baker v. Selden see Pamela Samuelson, "Why Copyright Law Excludes Systems and Processes from the Scope of Its Protection," Tex. L. Rev. 85 (2007): 1921, 1953-58.

[38] Ibid., 1958-61.

[39] See e.g. Millar v. Taylor, (1769) 4 Burr. 2302 (K.B.). Richard Peters, Report of the Copy-Right Case of Wheaton v. Peters Decided in the Supreme Court of the United States 114 (1834).

[40] See e.g. Simms v. Stanton, 75 F. 6, 10 (C.C.N.D.Cal. 1896); Holmes v. Hurst, 174 U.S. 82, 86 (1899); Kalem Company v. Harper Bros., 222 U.S. 55 (1911); Eichel v. Marcin, 241 F. 404, (S.D.N.Y. 1913); London v. Biograph Co., 231 F. 696 (2nd Cir. 1916); Stodart v. Mutual Film, 249 F. 507 (S.D.N.Y. 1917); Dymow v. Bolton, 11 F. 2d 690 (2nd Cir. 1926); Nutt v. National Institute Inc., 31 F. 2d 236 (2nd Cir. 1929).

[41] Hollinrake v. Truswell, (1894) 3 Chanc. D. 420.

[42] For a more comprehensive survey and discussion see Samuelson, "Story of Baker v. Selden," 180-92.

[43] Brief English Systems v. Owen, 48 F. 2d 555 (2d Cir. 1931)

[44] Crume v. Pacific Mutual Life Ins. Co., 140 F. 2d 182 (7th Cir. 1944). See generally Samuelson, "Story of Baker v. Selden," 183.

[45] 17 U.S.C. §102(b).

[46] See e.g. Toro Co. v. R & R Products Co., 787 F. 2d 1208 (8th Cir. 1986); ADA v. Delta Dental Plans Ass'n, 126 F. 3d 977 (7th Cir. 1997).

[47] See e.g. Time-Saver Check, Inc. v. Deluxe Check Printers Inc., 178 USPQ (BNA) 510 (N.D. Tex. 1973).

[48] 37 C.F.R. §202.1(c).

[49] The most notable exception is copyright protection to computer software, where the Baker principle was only partially and inconsistently applied. See Samuelson, "Why Copyright Law Excludes Systems," 1961-73.

[50] Fulmer v. U.S., 103 F. Supp. 1021 (Ct. Cl. 1952).

[51] Kern River v. Gas Transmission Co. v. Coastal Corp., 899 F. 2d 1458 (5th Cir. 1990).

[52] 17 USC §101. A "useful article" is defined as "an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information." Ibid.

[53] 99 U.S. 103.

[54] See Samuelson, "Story of Baker v. Selden," 189-90.

[55] See Apple Computer Inc. v. Franklin Computer Corp., 714 F. 2d 1240 (3d Cir. 1983).

[56] 347 U.S. 201 (1954).


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