## Facts

- A lithography company created three chromolithograph posters advertising a traveling circus (“Great Wallace Show”) and copyrighted the designs before publication.
- The posters depicted (1) a ballet scene, (2) a bicycle act by a performing family, and (3) groups posed and whitened to resemble statues, along with a portrait of the circus owner and related lettering.
- After the circus ran out of posters, it hired another lithography company to reproduce reduced-size copies of the three copyrighted designs without authorization.
- The copyright owner sued in federal court to recover statutory penalties for infringement under federal copyright statutes.
- The trial court directed a verdict for the defendant on the theory that the posters were not protectable subject matter; the court of appeals affirmed.

## Issues

1. Whether chromolithograph circus posters created for advertising qualify as copyrightable “prints” or “pictorial illustrations” under federal copyright law.
2. Whether a work’s commercial or advertising purpose removes it from Congress’s constitutional and statutory copyright power.
3. Whether courts may deny protection based on judgments about artistic merit or the alleged triviality of the images.

## Decision

- The Supreme Court reversed the judgment for the defendant.
- The Court held that the posters were within the statutory categories protecting engravings, prints, and chromolithographs, and were eligible for copyright upon compliance with formalities.
- The Court rejected the argument that advertising purpose disqualifies an otherwise copyrightable pictorial work.
- The Court accepted evidence supporting that the plaintiff owned the designs because they were produced by its employees in the course of their work.

## Legal Principles

- Pictorial works used as advertisements may be copyrighted if they fall within protected statutory categories and statutory conditions are met.
- Copyrightability does not depend on a court’s evaluation of artistic merit; judges should not act as arbiters of the “worth” of pictorial illustrations except within obvious limits.
- Depicting real persons or scenes does not defeat protection; others may copy the underlying subject matter but may not copy the protected expression (“not free to copy the copy”).
- A minimal level of original expression suffices; even modest artistic expression can be protected.
- Evidence that employees created the designs for their employer can support employer ownership of the copyrights.

## Conclusion

The Supreme Court held that circus advertising posters were copyrightable pictorial works and that courts may not deny protection because a work is commercial advertising or because the judge views it as lacking artistic value; protection turns on statutory coverage, originality, and compliance with required formalities.


Bleistein v. Donaldson Lithographing Co., 188 U.S. 239 (1903)