In the 1902 case of Bleistein v. Donaldson Lithographing Company, the U.S. Supreme Court ruled in favor of George Bleistein and his colleagues from a lithographic company who had sued Donaldson Lithographing for copyright infringement. The plaintiffs claimed that Donaldson reproduced their circus posters without permission after they were commissioned by a now-bankrupt circus company to create them. The court held that original works of art are eligible for copyright protection, regardless if they have commercial value or not, thereby rejecting the lower courts' decisions which stated otherwise due to perceived lack of 'fine arts'. This landmark ruling established an important precedent in American copyright law: it affirmed that creativity - no matter how humble or unconventional - is worthy of legal protection.

In the dissenting opinion for BLEISTEIN v. DONALDSON LITHOGRAPHING COMPANY, Justice Harlan argued that commercial advertisements should not be protected by copyright law because they lack the necessary creativity and originality. He contended that these types of works are purely utilitarian in nature, designed solely to promote a product or service rather than to contribute any artistic expression or intellectual thought. Therefore, according to Justice Harlan's viewpoint, granting them copyright protection would go beyond the intended scope of the Copyright Act and potentially stifle competition in advertising industry by limiting access to common themes and images used in ads.