ABSTRACT
It was in evidence that more than a million copies of the card of the plaintiffs have been sold since the year 1885, and that they have been used at nearly every election in the kingdom. It was urged, probably with truth, that such a card was practically the only mode of instructing the illiterate voter how to record his vote, and it is obvious that if the privilege of instructing the illiterate voter how to vote, by the only vehicle by which the act of voting can be represented to the eye, and the instructions how to vote and whom to vote for can be brought home to him, be vested in the plaintiffs for seven years beyond the termination of a life which may very well subsist for half a century longer – for Mr Jefferson is now only 36 years of age – and be their monopoly, it is difficult to put an adequate value upon their property in such a right. If that period should shortly arrive, which to many politicians appears to be a kind of constitutional millennium, when all the remaining ignorance, male and female, of the three kingdoms shall be swept into the electoral fold, the amount of political power which may become vested in the plaintiffs or their assignees will be greater than it is possible to estimate, and the destinies of the country may be placed in the hands of the fortunate owner of the talisman. The mere choice of subject can rarely, if ever, confer upon the author of the drawing an exclusive right to represent the subject, and certainly where the subject chosen is merely the representation to the eye of a simple operation which must be performed by every person who records a vote, there cannot possibly be an exclusive right to represent in a picture that operation. It may well be that something special in the way of artistic treatment even of this simple
operation, if it existed, might be the subject of copyright; but nothing of the kind has been suggested or exists in the present case, and if it does exist without being discovered it has not been imitated, for there is nothing which in any flight of imagination can be called artistic about either the plaintiffs’ or the defendants’ representation of a hand making the mark of a cross. It may be also that even the coarsest, or the most commonplace, or the most mechanical representation of the commonest object is so protected on registration that an exact reproduction of it, such as photography for instance would produce, would be an infringement of copyright. But in such a case it must surely be nothing short of an exact literal reproduction of the drawing registered that can constitute the infringement, for there seems to me to be in such a case nothing else that is not the common property of all the world. It is possible that in this case the proprietors of the drawing registered may have a right to be protected from a reproduction of their picture of a hand drawing a cross in which every line, dot, measurement, and blank space shall be rendered exactly as in the original, or in which the variations from such minute agreement shall be microscopic. But I cannot see how they can possibly make a higher claim, or say that because they have registered a drawing of a hand pencilling a cross within a square that no other person in the UK is at liberty to draw a hand pencilling a cross within a square for perhaps the next half century.
