Re: A Constitutional question

From: William T. McGrath <WMcGrath[_at_]DMMLaw.com>
Date: Mon, 17 Nov 2003 16:25:59 -0500

I have read the case dozens of times over the past decade (I teach Copyright Law at John Marshall Law School), and I am convinced that Justice Holmes was confused -- that is to say he did not pick up on the distinction you noted that "useful Arts" in the Constitution refers to what we call "science". As a partial justification, it seems he was led into this problem by the dissent of Justice Harlan. I believe the Holmes language that you cited was in response to an argument by Harlan that "If a chromo, lithograph, or other print . . . has no other use than that of a mere advertisement . . . it would not be promotive of the useful arts, within the meaning of the constitutional provision . . . [The work] must have some connection with the fine arts to give it intrinsic value . . . ." This final sentiment is what then gave rise to Holmes' famous comment that "it would be a dangerous undertaking for persons trained only in the law to constitute themselves the final judges of the worth of pictorial illustrations. . . ."

         Also, if you look at the definition of "Science" in the OED you will see that it means "knowledge" in the general sense. That is how it is used in the Constitution.

Bill McGrath

At 11:12 AM 11/17/2003 -0500, you wrote:

>It has always struck me as a little amusing that in the constitutional
>phrase -- "To promote the progress of Science and the useful Arts by
>securing for limited times to Authors and Inventors the exclusive right to
>their respective Writings and Discoveries" -- the word "Science" refers
>(generally) to what we now call 'art', while the word "Arts" refers to
>what we would now call "science." I.e., that the grant of (copyright)
>rights to Authors in their Writings promotes the progress of Science, and
>the grant of (patent) rights to Inventors promotes the (useful) Arts.
>
> But I had occasion recently to re-read Justice Holmes opinion in
> Bleistein v. Donaldson Lithographing, and noticed this: the case
> concerned whether 3 of plaintiff's 'chromolithographs,' which had been
> used as circus advertisements, were protected by copyright, and Holmes wrote:
>
>"We shall do no more than mention the suggestion that painting and
>engraving unless for a mechanical end are not among the useful arts, the
>progress of which Congress is empowered by the Constitution to promote.
>The Constitution does not limit the useful to that which satisfies
>immediate bodily needs."
>
>Nice Holmesian phrasing -- but what do the "useful arts" have to do with
>the case? Whether engraving is among the "useful arts" would seem to be
>question relevant to the issue of their patentability, not
>copyrightability. Am I confused? Was Holmes? Both of us? Neither?
>David Post
>
>********
>David Post Temple Law School 215 204 4539 Postd[_at_]erols.com
>http://www.temple.edu/lawschool/dpost/writings.html
>"Things should be as simple as possible, but not simpler." Albert Einstein.
>********
>
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---

William T. McGrath
Davis, Mannix & McGrath
125 S. Wacker Dr., Suite 1700
Chicago, IL 60606-4402
Phone: 312-332-4748
Fax: 312-332-6376 Received on Tue Nov 18 2003 - 02:25:59 GMT