E. I. Horsman & Ætna Doll Co. v. Kaufman

HOUGH, Circuit Judge.

Argument on these causes has gone beyond the necessities of decision; we prefer to base judgment on what •must be decided, not on matters that might be discussed.

*373Both litigations arise out of the making of one plaster image, which in 1914 was lawfully owned by plaintiffs predecessor. This image was a bust, representing, in the white of plaster, the head and shoulders of an infant, wearing the chubby empty smile which for a long time we have associated with dolls’ faces.

With some difficulty we assume the bust to have been a work of art, and therefore falling within section…