UC Berkeley

The Story of Baker v. Selden: Sharpening the Distinction between Authorship and Invention

To be published in Jane C. Ginsburg and Rochelle C. Dreyfuss, Intellectual Property Stories (forthcoming Foundation Press 2005)

This Story grows out of a study of the Supreme Court Record and other historical materials about the well-known 1880 copyright case of Baker v. Selden. Among the surprises the Story reveals are that Selden was not, as some have surmised, the author of a treatise on bookkeeping, nor was he the inventor of the now universally used T-account system of bookkeeping. Selden’s books are better described as minor variants on one another, consisting of 20-some pages of bookkeeping forms with sample entries, a short preface, and an introduction. Most of the 650 words of text in the last book puff the merits of his system rather than explaining how to use it. Baker, not Selden, is mentioned in works on the history of bookkeeping, and Baker’s books on bookkeeping (but not Selden’s) are still available in various public and university libraries. Though burdened with thousands of dollars of debt, Selden’s widow hired a prominent intellectual property lawyer to represent her in the lawsuit against Baker which charged him with pirating the Selden system. She believed she was owed damages (in today’s dollars) of a quarter-million dollars a year from Baker and his customers. Baker probably lost at the trial court level because he hired an inexperienced young lawyer; Baker won before the Supreme Court in part because he was represented by a team of supple heavy-hitters.

The most important lesson of this Story concerns the legal principle the Court was trying to promulgate. Although Baker v. Selden is widely cited as the genesis of the “idea/expression” distinction in copyright law, the Story shows that this distinction predated Baker. Nor is Baker the genesis of the “merger” doctrine (which holds that if an idea can only be expressed in one or a small number of ways, copyright law will not protect the expression because it has “merged” with the idea). The main objective of the Supreme Court’s decision was to sharpen the distinction between authorship and invention. The complaint spoke of Selden as the author and inventor of several books and of a bookkeeping system. His lawyer kept speaking about its novelty in the state of the art. Selden’s widow claimed exclusive rights not only to stop Baker from publishing competing books, but also to collect damages from all of Baker’s customers for their use of the infringing system. That Selden had sought, but apparently not obtained, a patent on his bookkeeping system seems to have affected the Court.

To clarify the proper roles of patent and copyright in protecting the fruits of intellectual labor, the Baker opinion introduced a new framework for analyzing copyright claims. It directed courts to consider whether the defendant had copied the author’s description, explanation, illustration, or depiction of a useful art (such as a bookkeeping system) or ideas, or had only copied the useful art or ideas themselves. In the absence of a patent, the useful art depicted in a work, along with its ideas, could be used and copied by anyone, even in directly competing works. Any necessary incidents to implementing the art (e.g., blank forms illustrating use of the system) could likewise be used and copied by second comers without fear of copyright liability.

The Baker opinion’s rich analysis of the roles of copyright and patent in protecting intellectual creations has, over the past 125 years, spawned at least eight significant copyright doctrines, including four codified in the Copyright Act of 1976, as well as a few enduring controversies.