Bleistein v. Donaldson Lithographing Co.
The Supreme Court ruled that circus advertisement posters could be copyrighted, rejecting the idea that judges should decide which pictures count as fine art before protecting them.
The decision means that commercial and popular artwork, not just paintings admired by critics, can qualify for copyright protection, as long as it shows some originality from its creator.
“Others are free to copy the original. They are not free to copy the copy.”
Explaining that using real-life subjects does not strip a picture of copyright protection.
How it got here: A federal trial court directed a verdict against the poster company, the Sixth Circuit Court of Appeals affirmed, and the company brought a writ of error to the Supreme Court.
The Case in Depth
What happened
A lithography company made three colorful posters advertising a traveling circus owned by a man named Wallace, showing a ballet, a bicycle-riding family act, and performers posed as statues. A rival lithography company copied reduced versions of these posters. The original company sued for copyright infringement, and the case turned on whether such advertising images could be copyrighted at all.
The question before the Court
Could a company copyright colorful advertising posters for a circus, or were they too commercial and low-brow to count as art protected by copyright law?
The Court's answer
Yes — the Court ruled that circus advertisement posters could be copyrighted. It held that copyright law protects any picture showing genuine originality from its creator, regardless of whether the image serves a commercial purpose like advertising or whether judges consider it fine art. The statute's real dividing line was between actual pictures and mere product labels, not between 'high' and 'low' art.
The Court explained that requiring judges to rank artistic merit before granting copyright protection would be dangerous, since novel or popular works might be unfairly dismissed by legal minds untrained in art. Because there was evidence the posters were original creative works produced by the company's own designer, the case should go to a jury rather than be thrown out as a matter of law, so the lower courts' rulings against the company were reversed.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
Advertisers, illustrators, and commercial artists gained clear legal footing to protect their work from copying, even when it was created purely to sell tickets or products. The ruling stopped courts from acting as art critics deciding what counts as 'real' art, opening copyright protection to a much wider range of everyday commercial images.
What changes now
The case was sent back to the trial court with instructions to set aside the directed verdict and hold a new trial, where a jury would decide factual questions such as originality, ownership, and whether the defendant's use might have been permitted under any agreement with the circus owner. The ruling itself did not resolve who ultimately owned or could use the images—only that the posters were capable of copyright protection.
What this does not decide
The Court did not decide who actually owned the rights to use the images given the circus owner's possible contractual claims, nor did it decide that these particular posters were in fact original — it only held that commercial and advertising pictures are not automatically excluded from copyright and sent the factual questions back for a jury to resolve.
Concurrences and dissents
Dissent — Justice Harlan
“We are unable to discover anything useful or meritorious in the design copyrighted by the plaintiffs in error other than as an advertisement of acts to be done or exhibited to the public in Wallace's show.”The dissent's view that the posters had no value beyond advertising and so deserved no copyright protection.
Justice Harlan, joined by Justice McKenna, would have affirmed the lower courts' rulings that advertising images with no purpose beyond promoting a circus show are not the kind of work the Constitution's copyright clause was meant to protect. He adopted the Court of Appeals' reasoning that a picture used only as an advertisement, with no independent artistic value, lacks the intrinsic connection to the fine arts required for copyright, and found no evidence the posters had any artistic merit beyond their commercial function.
How the Court got there
The legal reasoning, step by step
- The Court framed the legal question as whether these advertising pictures counted as 'pictorial illustrations or works connected with the fine arts' under the copyright statute, the standard Congress set for what could be copyrighted.
- The Court rejected the idea that only text-illustrating or traditionally 'fine' art qualifies, reasoning that the statute's contrast was not between fine art and low art but between genuine pictures and mere product labels attached to other manufactured goods.
- The Court reasoned that any picture showing personal originality, however modest, reflects the unique personality of its creator and is therefore copyrightable, since copying an original does not become lawful just because the original itself depicted something drawn from real life.
- The Court explained that judges are poorly suited to serve as art critics distinguishing worthy from unworthy pictures, because doing so risks denying protection to genuinely novel or popular works that a specialized legal audience might undervalue.
- Applying this reasoning, the Court found evidence that the posters were original creative works produced by the company's own designers and properly copyrighted, meaning the case should have gone to a jury rather than being decided against the company as a matter of law.