15606 Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Notices

1 David Nimmer and Melville B. Nimmer,

Nimmer on Copyright § 2.19 (1994).

the Patent Office. The Commissioner of

Patents actually determines the

patentability of an invention or design

and grants the patent.

The current regulations, 37 CFR

202.10(a) and (b), reflect the Copyright

Office’s policy of accepting the doctrine

of ‘‘election of protection.’’ For many

years, the Copyright Office required

claimants to elect between patent or

copyright protection of useful pictorial,

graphic, or sculptural expressions. The

origin of this policy can be traced to a

1910 decision, Louis de Jonge & Co. v.

Breuker & Kessler Co., 182 F. 150

(C.C.S.E.D. Pa. 1910), aff’d, 191 F. 35

(3d Cir. 1911), aff’d, 235 U.S. 33 (1914),

wherein the court held that a claimant

could elect to secure protection under

either patent or copyright but could not

secure both. Similarly, in 1927, the D.C.

Court of Appeals, in In re Blood, 23 F.2d

772 (D.C. Cir.1927) embraced the

election doctrine.

The primary basis for the existing

Copyright Office policy was the Second

Circuit’s decision in Korzybski v.

Underwood & Underwood, Inc., 36 F.2d

727 (2d Cir. 1929). The court ruled that

‘‘[a]n inventor who has applied for and

obtained a patent cannot extend his

monopoly by taking out a copyright.’’

‘‘The filing of the application for the

patent * * * was a publication [and full

disclosure of the invention] that entitled

anyone to copy the drawings

[representing the invention].’’ Id. at 729

(parenthetical added). However, in a

landmark decision, Mazer v. Stein, 347

U.S. 201 (1954), the Supreme Court

ruled that the same disclosure or

publication might support a design

patent and a copyright. ‘‘Neither the

Copyright statute nor any other says that

because a thing is patentable it may not

be copyrighted.’’ Id. at 217. The Court,

however, expressly refused to entertain

the issue of whether the grant of either

monopoly precluded that of the other. A

few years later, in Vacheron &

Constantin-LeCoultre Watches, Inc. v.

Benrus Watch Co. Inc., 155 F. Supp. 932

(S.D.N.Y. 1957), modified, 260 F.2d 637

(2d Cir. 1958), the district court rejected

arguments that seeking copyright

protection precluded securing design

patent protection. Indeed, the

overlapping protection concerns two

distinct statutory monopolies; and the

doctrine of Korzybski ‘‘must rest upon

the assumption that the owner of the

statutory monopoly has some power to

protect his ‘work,’ for otherwise any

dedication would be without

consideration.’’ 260 F.2d at 642.

In 1968, the Copyright Office

reviewed the election policy and

reaffirmed its position on two grounds—

public policy considerations and the

publication with notice requirement.

The public policy ground was based on

the theory that it is an undue extension

of the patent monopoly to allow, after

the patent has expired, a copyright for

the same design. If copyright protection

were allowed to subsist, the public

would be deprived from exploiting the

work for the duration of the copyright.

The second ground was a more practical

one. The patent procedure required

publication in the Official Gazette

without notice of copyright. Since the

1909 Copyright Act required a notice of

copyright on all published copies to

secure and maintain copyright

protection, this requirement foreclosed

copyright protection for the patent

drawings and placed the work in the

public domain.

Prior to 1974, The United States

Patent and Trademark Office had an

election policy similar to that of the

Copyright Office. The Patent Office

discontinued this requirement in view

of the decision in In re Yardley, 493

F.2d 1389 (C.C.P.A. 1974), wherein the

court stated that even though there is a

definite overlap, ‘‘Congress has not

provided that an author inventor must

elect between securing a copyright or

securing a design patent.’’ Id. at 1394.

‘‘[T]he mere fact’’, said the court ‘‘that

the copyright will persist beyond the

term of any design patent which may be

granted does not provide a sound basis

for rejecting appellant’s patent

application.’’ Id. at 1395. Reassessing its

policy, the Copyright Office chose to

follow Korzybski instead of Yardley, on

the rationale that the latter case was

limited to an interpretation of the design

patent act while Korzybski interpreted

the Copyright Act.

The Copyright Office regulations

based on the election doctrine have

been criticized. In his treatise on

copyright, Nimmer observes:

Without offering the rationale of

publication or any other basis, Copyright

Office Regulations under the 1909 Act simply

provided that once a patent has been issued,

copyright registration would be denied to a

work of art and to a scientific or technical

drawing. There appears to be no statutory or

other justification for this position. It would

seem on principle that if a work otherwise

meets the requirements of copyrightability, it

should not be denied such simply because

the claimant happens to be entitled to

supplementary protection under other

legislation.1

We agree.

In consideration of the foregoing, the

Copyright Office is issuing this Policy

Decision and amending 37 CFR chapter

II in the manner set forth below.

PART 202—[AMENDED]

1. The authority citation for part 202

continues to read as follows:

Authority: Section 702, 90 Stat. 2541, 17

U.S.C. 702.

2. In § 202.10, paragraphs (a) and (b)

are removed, the existing paragraph (c)

is redesignated as paragraph (b), and a

new paragraph (a) is added to read as

follows:

§ 202.10 Pictorial, graphic, and sculptural

works.

(a) In order to be acceptable as a

pictorial, graphic, or sculptural work,

the work must embody some creative

authorship in its delineation or form.

The registrability of such a work is not

affected by the intention of the author

as to the use of the work or the number

of copies reproduced. The availability of

protection or grant of protection under

the law for a utility or design patent will

not affect the registrability of a claim in

an original work of pictorial, graphic, or

sculptural authorship.

Marybeth Peters,

Register of Copyrights.

Dated: March 14, 1995.

Approved by:

James H. Billington,

The Librarian of Congress.

[FR Doc. 95–7363 Filed 3–23–95; 8:45 am]

BILLING CODE 1410–30–P

NATIONAL FOUNDATION ON THE

ARTS AND THE HUMANITIES

Meeting; Arts in Education Advisory

Panel

Pursuant to section 10(a)(2) of the

Federal Advisory Committee Act (Public

Law 92–463), as amended, notice is

hereby given that a meeting of the Arts

in Education Advisory Panel (Arts Plus

Section) to the National Council on the

Arts will be held on April 10–14, 1995.

The panel will meet from 10:30 a.m. to

5:30 p.m. on April 10; from 9:00 a.m. to

6:00 p.m. on April 11; from 9:00 a.m. to

2:00 p.m. on April 12; and from 8:30

a.m. to 5:00 p.m. on April 13. This

meeting will be held in Room 730, at the

Nancy Hanks Center, 1100 Pennsylvania

Avenue, NW., Washington, DC 20506.

A portion of this meeting will be open

to the public on April 13 from 3:15 p.m.

to 5:00 p.m. for a policy discussion

including a discussion of the FY 96 and

97 Arts Plus guidelines.

The remaining portions of this

meeting from 10:30 a.m. to 5:30 p.m. on

April 10; from 9:00 a.m. to 6:00 p.m. on

April 11; from 9:00 a.m. to 2:00 p.m. on

April 12; and from 8:30 a.m. to 3:15
Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Notices 15607

p.m. on April 13 are for the purpose of

panel review, discussion, evaluation,

and recommendation on applications

for financial assistance under the

National Foundation on the Arts and the

Humanities Act of 1965, as amended,

including information given in

confidence to the agency by grant

applicants. In accordance with the

determination of the Chairman of

February 8, 1994, these sessions will be

closed to the public pursuant to

subsection (c) (4), (6), and 9(B) of

section 552b of Title 5, United States

Code.

Any person may observe meetings, or

portions thereof, of advisory panels

which are open to the public, and may

be permitted to participate in the

panel’s discussions at the discretion of

the panel chairman and with the

approval of the full-time Federal

employee in attendance.

If you need special accommodations

due to a disability, please contact the

Office of Special Constituencies,

National Endowment for the Arts, 1100

Pennsylvania Avenue, NW.,

Washington, DC 20506, 202/682–5532,

TYY 202/682–5496, at least seven (7)

days prior to the meeting.

Further information with reference to

this meeting can be obtained from Ms.

Yvonne Sabine, Committee Management

Officer, National Endowment for the

Arts, Washington, DC 20506, or call

202/682–5788.

Dated: March 20, 1995.

Yvonne M. Sabine,

Director, Office of Council and Panel

Operations, National Endowment for the Arts.

[FR Doc. 95–7289 Filed 3–23–95; 8:45 am]

BILLING CODE 7537–01–M

Meeting; Challenge/Advancement

Advisory Panel

Pursuant to Section 10(a)(2) of the

Federal Advisory Committee Act (Public

Law 92–463), as amended, notice is

hereby given that a meeting of the

Challenge and Advancement Advisory

Panel (Advancement Phase I Review

Section) to the National Council on the

Arts will be held on April 10–11, 1995

from 9:00 a.m. to 5:30 p.m. This meeting

will be held in Room M–14, at the

Nancy Hanks Center, 1100 Pennsylvania

Avenue, NW., Washington, DC 20506.

Portions of this meeting will be open

to the public from 9:00 a.m. to 10:00

a.m. on April 10, for opening remarks

and introductions and from 4:30 p.m. to

5:30 p.m. on April 11 for a policy

discussion.

The remaining portions of this

meeting from 10:00 a.m. to 5:30 p.m. on

April 10 and from 9:00 a.m. to 4:30 p.m.

on April 11 are for the purpose of Panel

review, discussion, evaluation, and

recommendation on applications for

financial assistance under the National

Foundation on the Arts and the

Humanities Act of 1965, as amended,

including information given in

confidence to the agency by grant

applicants. In accordance with the

determination of the Chairman of

February 8, 1994, these sessions will be

closed to the public pursuant to

subsection (c) (4), (6) and (9)(B) of

section 552b of Title 5, United States

Code.

Any person may observe meetings, or

portions thereof, of advisory panels

which are open to the public, and may

be permitted to participate in the

panel’s discussions at the discretion of

the panel chairman and with the

approval of the full-time Federal

employee in attendance.

If you need special accommodations

due to a disability, please contact the

Office of Special Constituencies,

National Endowment for the Arts, 1100

Pennsylvania Avenue, NW.,

Washington, DC 20506, 202/682–5532,

TTY 202/682–5496, at least seven (7)

days prior to the meeting.

Further information with reference to

this meeting can be obtained from Ms.

Yvonne Sabine, Committee Management

Officer, National Endowment for the

Arts, Washington, DC 20506, or call

202/682–5788.

Dated: March 20, 1995.

Yvonne M. Sabine,

Director, Office of Council and Panel

Operations, National Endowment for the Arts.

[FR Doc. 95–7288 Filed 3–23–95; 8:45 am]

BILLING CODE 7537–01–M

Meeting; Media Arts Advisory Panel

Pursuant to Section 10(a)(2) of the

Federal Advisory Committee Act (Public

Law 92–463), as amended, notice is

hereby given that a meeting of the

Media Arts Advisory Panel (Arts on

Television Section) to the National

Council on the Arts will be held on

April 6–7, 1995, from 10:00 a.m. to 6:00

p.m. on April 6 and from 9:00 a.m. to

4:00 p.m. on April 7. This meeting will

be held in Room 716, at the Nancy

Hanks Center, 1100 Pennsylvania

Avenue, NW., Washington, DC 20506.

Portions of this meeting will be open

to the public from 10:00 a.m. to 10:15

a.m. on April 6, for opening remarks

and from 3:30 p.m. to 4:00 p.m. on April

7, for a policy discussion.

The remaining portions of this

meeting, from 10:15 a.m. to 6:00 p.m. on

April 6 and from 9:00 a.m. to 3:30 p.m.

on April 7 are for the purpose of Panel

review, discussion, evaluation, and

recommendation on applications for

financial assistance under the National

Foundation on the Arts and the

Humanities Act of 1965, as amended,

including information given in

confidence to the agency by grant

applicants. In accordance with the

determination of the Chairman of

February 8, 1994, these sessions will be

closed to the public pursuant to

subsection (c) (4), (6) and (9)(B) of

section 552b of Title 5, United States

Code.

Any person may observe meetings, or

portions thereof, of advisory panels

which are open to the public, and may

be permitted to participate in the

panel’s discussions at the discretion of

the panel chairman and with the

approval of the full-time Federal

employee in attendance.

If you need special accommodations

due to a disability, please contact the

Office of Special Constituencies,

National Endowment for the Arts, 1100

Pennsylvania Avenue, NW.,

Washington, DC 20506, 202/682–5532,

TYY 202/682–5496, at least seven (7)

days prior to the meeting.

Further information with reference to

this meeting can be obtained from Ms.

Yvonne Sabine, Committee Management

Officer, National Endowment for the

Arts, Washington, DC 20506, or call

202/682–5788.

Dated: March 20, 1995.

Yvonne M. Sabine,

Director, Office of Council and Panel

Operations, National Endowment for the Arts.

[FR Doc. 95–7287 Filed 3–23–95; 8:45 am]

BILLING CODE 7537–01–M

Meeting

Pursuant to Section 10(a)(2) of the

Federal Advisory Committee Act (Public

Law 92–463), as amended, notice is

hereby given that a meeting of the Music

Advisory Panel (Jazz Fellowships/Jazz

Ensembles Section) to the National

Council on the Arts will be held on

April 4–7, 1995 from 9:00 a.m. to 5:30

p.m. This meeting will be held in Room

M–14, at the Nancy Hanks Center, 1100

Pennsylvania Avenue, NW.,

Washington, DC 20506.

A portion of this meeting will be open

to the public from 4:00 p.m. to 5:30 p.m.

on April 7, 1995 for a policy discussion

and guidelines review.

The remaining portions of this

meeting, from 9:00 a.m. to 5:30 p.m. on

April 4–6 and from 9:00 a.m. to 4:00

p.m. on April 7 are for the purpose of

Panel review, discussion, evaluation,

and recommendation on applications

for financial assistance under the