Bleistein v. Donaldson Lithographing: Circus Posters, Originality, and the Anti-Discrimination Principle

Bleistein v. Donaldson Lithographing Co., 188 U.S. 239 (1903), is the fountainhead of the modern rule that copyright’s originality requirement is undemanding and that courts must not condition protection on their own judgments of artistic merit. The Courier Lithographing Company had produced color posters advertising the “Great Wallace Show,” a traveling circus, and George Bleistein sued a rival printer, Donaldson, that copied three of them. The lower courts had doubted whether mere advertising, made to sell circus tickets rather than to serve as “fine art,” was the kind of work the Constitution and Copyright Act meant to protect. Writing for a 7–2 Court, Justice Holmes rejected that skepticism in a short, now-canonical opinion, holding that the posters were copyrightable and cautioning that “it would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations.”

At a glance

• Case: Bleistein v. Donaldson Lithographing Co., 188 U.S. 239 (1903)
• Court: Supreme Court of the United States, on error to the Sixth Circuit
• Decided: February 2, 1903; 7–2
• Opinion: Justice Holmes for the Court; Justice Harlan dissenting, joined by Justice McKenna
• Subject matter: Copyrightability of chromolithograph posters created to advertise a circus
• Holding: Pictorial advertisements are copyrightable; a work is not disqualified because it serves a commercial purpose, and courts should not gauge copyright by their assessment of artistic worth

The facts and the “advertising is not art” objection

The posters at issue were ordinary commercial chromolithographs: colored illustrations depicting circus scenes — ballet performers, an athletic act, a group of men and women — arranged with the circus’s name to draw crowds. Bleistein’s company held the copyrights; Donaldson copied and printed the same images for a competing exhibition. The defense did not deny the copying. Instead it argued that the works fell outside the statute because they were mere advertisements. On this view, the Copyright Clause authorizes protection to “promote the Progress of Science” and covers only works of genuine artistic or intellectual value, whereas a poster designed solely to sell tickets is a commercial instrument, not the “writings” of an “author” in any meaningful sense.

That argument reflected a then-common intuition that copyright should be reserved for works of elevated purpose. It put squarely before the Court the question whether the reason a work is made — to inform or beautify versus to advertise and sell — bears on its eligibility for copyright. Holmes answered that it does not.

Holmes’s low originality threshold

Holmes located copyrightability in the fact of individual authorship, not in the dignity of the subject or the loftiness of the aim. “The copy is the personal reaction of an individual upon nature,” he wrote; a work embodies “a very modest grade of art,” yet it “has in it something irreducible, which is one man’s alone.” Even a photograph or a commercial drawing expresses the maker’s choices — of pose, arrangement, line, and color — and that expressive residue, however humble, is enough. Personality, Holmes observed, “always contains something unique,” and “that something he may copyright.” Originality, in other words, requires only that the work originate with its author and carry some minimal imprint of the author’s own expression; it does not require novelty, artistic ambition, or aesthetic accomplishment.

Holmes also dispatched the commercial-purpose objection directly. That the pictures were used to advertise did not strip them of protection: works are not the less connected with the fine arts because their “pictorial quality” is combined with a commercial use, and “a picture is none the less a picture and none the less a subject of copyright” for being made to sell goods. The statute’s coverage of “pictorial illustrations” turned on what the works were — pictures embodying an author’s expression — not on the motive behind them. This holding severed copyrightability from commercial taint and remains the doctrinal basis for protecting advertising, packaging, catalogs, and countless everyday visual works.

Aesthetic non-discrimination

The opinion’s most influential passage is its warning against judicial art criticism. Holmes reasoned that if legal training conferred no reliable competence to appraise pictures, then courts asked to deny copyright to works “outside the fair use” of educated taste would be poorly equipped and would err in two directions. On one side, “some works of genius would be sure to miss appreciation,” because “their very novelty would make them repulsive until the public had learned the new language in which their author spoke” — Holmes invoked Goya and Manet as examples of artists once scorned. On the other side, judges might just as wrongly disparage works whose appeal to a narrower public was real and legally sufficient. The safer rule was to keep courts out of the business of ranking artistic worth altogether.

This “aesthetic non-discrimination” principle does double duty. It keeps the originality standard objective and low, and it guards against the danger that copyright would favor established, respectable art over the commercial, the popular, or the avant-garde. A century later it remains a fixture of copyright doctrine, invoked whenever a defendant argues that a design, character, or image is too crude, too functional, or too commercial to deserve protection. Justice Harlan, joined by Justice McKenna, dissented, adhering to the view that mere advertisements did not promote the useful arts and so lay beyond the constitutional grant — a position the Court’s later law decisively left behind.

Open questions

Bleistein set a floor but did not map the entire field. Holmes framed originality as something “irreducible” belonging to one author, yet he did not quantify how much creativity suffices, and the Court would not supply a general formulation for nearly ninety years. In Feist Publications, Inc. v. Rural Telephone Service Co. (1991), the Court finally held that originality requires not just independent creation but also a “minimal degree of creativity” — a “creative spark” — thereby denying copyright to a garden-variety alphabetical telephone directory. Feist is best read as completing Bleistein: the bar is low, but it is not zero, and rote, mechanical compilations of fact fall below it. The line between the “modest grade of art” Holmes protected and the noncreative selection Feist rejected continues to be litigated in cases about databases, forms, measurements, and functional designs.

Implications

• Originality is easy to satisfy. Any work reflecting a minimal spark of the author’s own expression qualifies; novelty, artistic merit, and cultural value are irrelevant to copyrightability.
• Commercial purpose is not disqualifying. Advertisements, packaging, labels, and product imagery are copyrightable subject matter; being made to sell something does not forfeit protection.
• Courts will not judge artistic worth. Litigants cannot defeat copyright by arguing that a work is ugly, tasteless, crude, or lowbrow; aesthetic merit is off-limits as a legal criterion.
• There is still a floor. Bleistein’s low bar is a floor, not its absence; after Feist, purely mechanical, uncreative compilations lack the minimal creativity copyright requires.

Frequently asked questions

What did Bleistein v. Donaldson decide? The Supreme Court held that pictorial advertisements — here, chromolithograph posters promoting a circus — are copyrightable, and that a work does not lose copyright protection merely because it was made for commercial or advertising purposes. Justice Holmes established that copyright’s originality requirement is met by a work reflecting the author’s personal expression, however modest.

What is the “aesthetic non-discrimination” principle? It is Holmes’s warning that judges, trained only in law, make dangerous arbiters of artistic worth. Courts should not deny copyright based on their own assessment of a work’s beauty, taste, or cultural value. This principle keeps the originality threshold low and objective, protecting commercial and avant-garde works alike.

How low is the originality bar after Bleistein? Very low. Holmes wrote that a work need only contain something “irreducible” that is one man’s own — a personal reaction of an individual upon nature. This standard, later refined in Feist as requiring a minimal “creative spark,” means the vast majority of pictorial, graphic, and sculptural works easily qualify for copyright.

Authorities and sources

• Bleistein v. Donaldson Lithographing Co., 188 U.S. 239 (1903) (argued January 13–14, 1903; decided February 2, 1903). Justia; Cornell Legal Information Institute.
• Full text of the opinion via Library of Congress, U.S. Reports.
• Holmes authorship, 7–2 vote, and Harlan dissent (joined by McKenna) corroborated by Wikipedia: Bleistein v. Donaldson Lithographing Co..
• Modern originality standard in Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991), Justia.