The outlines of the engraving are then placed upon the plate either by tracing with carbon paper from a photograph of the original work which it is desired to reproduce in this medium or by a tracing taken from such a photograph on gelatine sheets transferred to the copper plate by rubbing carbon black or some similar substance in the lines of the tracing on the gelatine sheet and transferring of them by pressing the sheet upon the copper plate. The tool is drawn across the plate many times in various directions so that the plate is roughened by the process.
The mezzotint engraving process is performed by first rocking a copper plate, that is, drawing across the plate under pressure a hand tool having many fine and closely spaced teeth. The artists employed to produce these mezzotint engravings in suit attempted faithfully to reproduce paintings in the mezzotint medium so that the basic idea, arrangement, and color scheme of each painting are those of the original artist.
It is a tedious process requiring skill and patience and is, therefore, rather expensive compared with modern color photographic processes. The mezzotint method lends itself to a fairly realistic reproduction of oil paintings. Concededly the subjects of the eight engravings are paintings by other persons than the mezzotint engravers, all of them being well-known paintings executed in the late eighteenth or early nineteenth centuries and all now in the public domain. The first question in the case is whether these mezzotint engravings are copyrightable under the constitutional provision giving the Congress the power to legislate copyright monopolies and under the legislation passed pursuant to the grant of power to the Congress.
The defendants, a color lithographer, a dealer in lithographs and the dealer's president, produced and sold color lithographs of the eight mezzotints.
The plaintiff, a British print producer and dealer, member of the Fine Arts Trade Guild, copyrighted in the United States *975 eight mezzotint engravings of old masters produced at its order by three mezzotint engravers. Cataldo, all of New York City, for Catalda.Įhrich, Royall, Wheeler & Holland and James G. Uhlman, all of New York City, for plaintiff. *974 Guggenheimer & Untermyer, Eugene Untermyer, William J.
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