Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, rSpj IN HEnORY OF JUDGE DOUGLASS BOARDMAN FIRST DEAN OF THE SCHOOL 1 i By his Wife and Daughter A. JW. BOARDMAN and ELLEN D. WILLIAMS KF2994.D78'"'"""'™""""-"'™'* A treatise on the law of property in int 3 1924 019 216 898 h Cornell University J Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924019216898 A TREATISE THE LAW OF PROPERTY INTELLECTUAL PRODUCTIONS IN GREAT BEITAIN AND THE UNITED STATES. EMBRACING COPYRIGHT IN WORKS OP LITERATURE AND ART, AND PLAYRIGHT IN DRAMATIC AND MUSICAL COMPOSITIONS. BY EATON S. DRONE. BOSTON: LITTLE, BROWN, AND COMPANY. 1879. Copyright, 1879, BY Eaton S. Dkone. Cambridge : Press of John Wilson and Son. THIS BOOK li Dedicated . to mt brothek, JOHN DRONE, without whose help I SHOULD HAVE BEEN WITHOUT THE EDUOATIOK NECESSARY TO WRITE IT. TREFACE. Meaningless, inconsistent, and inadequate statutory provi- sions, ambiguous, erroneous, and conflicting decisions cover the law of copyright witli doubt, difficulties, and confusion. Some of the evils which result from these causes are but seem- ing ones, which disappear when explained, or lose their force when exposed. Others- are real, and of such a nature that they can be overcome only by the power of the legislature. This condition of the law is doubtless due in a measure to the facts that the nature of literary property is somewhat peculiar, that the law relating to it may be regarded as yet in its in- fancy, aijd that it is comparatively seldom that courts are called upon to determine its meaning. But much of the error and confusion which exist can be accounted for only on the theory that the statutes have been often drawn by incompe- tent persons, and often interpreted by those who, however learned in other branches, have had but a limited knowledge of the law of copyright. The English statutes relating to this subject are but a piece , of chaotic patchwork, extending over a century and a half. There are in force not fewer than fourteen acts passed at vari- ous times, from 1735 to 1875. Some of these have been drawn in such ignorance or disregard of others, important provisions have been enacted in such loose, ambiguous lan- guage, incongruous and meaningless clauses are so common. Tl PREFACE. SO many questions have been carelessly left in doubt for judi- cial determination, that often the law can be determined only with the greatest difficulty, and sometimes its meaning baffles all recognized rules of interpretation. These statutes were rightly condemned by the Royal Commissioners on Copyright, when, in their recent report to Parliament, they said : " The law is wholly destitute of any sort of arrangement, incom- plete, often obscure, and even when it is intelligible upon long study, it is in many parts so ill-expressed that no one who does not give such study to it can expect to understand it." The statutes of the United States are free from some of the faults which exist in those of England. But as the former have in many parts been blindly copied from the latter, the same defects are often found in both. That judges in the front rank of jurists should sometimes err and disagree in determining the meaning of the legisla- ture, even when most clearly expressed, is but natural. In the judicial interpretation of such statutes as have been spoken of, much greater allowance is to be made for mis- takes and conflicting opinions. But for much of the error found in this branch of the law the courts alone are responsi- ble. Decisions have been made against fundamental princi- ples which would not have been violated had their governing force been known, against well-grounded authorities which would have been followed had their application been seen, against statutory provisions which would not have been disre- garded had they not been overlooked. One decision has been based on the authority of another when the controlling facts and principles were so different in the two cases that both judgments could not be alike without one being wrong. Opin- ions, not only wrong in principle but without binding force as authorities, have been blindly followed as supposed precedents. Judicial dicta, as uncalled for as erroneous, have been care- lessly expi'essed in one case only to become in another the PREFACE. VU corner-stone of a doctrine still more mischievous. It is hardly necessary to mention that what has been said applies to the smaller and not to the greater part of the decisions on this subject. But the former are so many, their influence so far- reaching, the groundless theories affirmed or recognized in some of them so plausible, that the whole body of the law of copyright is more or less affected by them. If every decision, however clearly wrong it may be, is to be taken as representing the law until it shall be overruled, then must the rights of authors be in endless doubt and confusion. But if, error being eliminated wherever found, the law is to be determined alone by those authorities whose soundness will stand every test, and by those principles whose governing force is recognized, then, excepting some defects which can be reached only by legislation, will the law of copyright become reasonably clear, simple, and harmonious. Under the circum- stances explained, to give the results of the decisions without testing their soundness or explaining their bearing, would be to put forth a digest, whose worth would be as little as the effort required to make it. The task of the juridical writer is to set forth the true principles which govern the law ; to point out the proper meaning of the statutes ; to show what deci- sions are right and what are wrong ; to explain what is doubtful or obscure ;, and, generally, to give the law in a form as true, clear, systematic, and harmonious as it is in his power to do. He is without authority to say what construction sliall be given to statutes, as he is without power to overrule erroneous decisions. But he may point out the true meaning of the law, and show wherein it has been wrongly interpreted. When this has been done, the judicial affirmance of what is right and the rejection of what is wrong will be in many cases but a question of time. In jurisprudence, as elsewhere, error once exposed must sooner or later be eradicated. The maker of a treatise should never lose sight of the fact that his duty is to give the law as it is. But this cannot always be done by sim- VIU PREFACE. ply recording what has been decided by the courts. Jurispru- dence is a science based on principles rather than on single decisions. By the former rather than by the latter the law is to be determined. It is true that one as well as the other are made by judges, and that principles which are not judicially settled or recognized are without force. But principles are fundamental and. general. On them decisions are grounded, by them governed, and with them must harmonize. When two authorities are in conflict, both cannot represent the law. One must be set aside. In this, as in other cases, whether one judgment is right and another wrong may sometimes be a matter of opinion. But often the question is capable of con- clusive demonstration by the application of governing princi- ples which are judicially settled. Dealing thus with principles, the writer of a treatise may determine with reasonable certainty what the law is where it has not been judicially interpreted. In the case of copyright, there are many important questions concerning which the statutes are silent or not clear, and which have not arisen in the courts, though they are likely to come up at any time. Not to consider these, simply because they are not discussed in the reports, is to leave a treatise on this subject lacking, without excuse, in thoroughness and use- fulness. Finding the law in the condition described, my aim has been to treat it on the principles which have been explained. I have given, in the first place, the law as it has been judi- cially interpreted, however erroneous in any case that intei- pretation may be. But I have let no important decision or doctrine go unquestioned, knowing or believing it to be wrong. In denying or questioning the soundness of any authority, I have tried to set forth all the facts, principles, and authorities which have any real bearing on the point in question, and to give fully the reasons for what is pointed out as the true meaning of the law. In this way, whatever is essential to a right understanding of the subject is brought together, so that, PREFACE. IX if in any case the conclusion I have reached is wrong, the error becomes apparent, and the reader still has before him the law as it has been judicially construed. In treating many questions which have not been decided or discussed by the courts, I have given prominence to the fact that the law remains for judicial determination. Where I have not done what I aimed to do, the failure is due to lack of ability, not of effort. E. S. DRONE. New Yoke, January, 1879. TABLE OF CONTENTS. Paob Explanation of Abbreviations xxix Table of Cases xxxv THE ORIGIN AND NATURE OF LITERARY PROPERTY. The origin of property 2 What effect has publication on the author's rights ? 8 How far government may interfere with literary property . . 16 Has the common-law property in published works been taken away by the legislature ? 20 Judicial history relating to the origin and nature of literary property 26 HISTORY OF LITERARY PROPERTY. Early history in England 54 Rights of foreign authors in England 85 Copyright legislation in the United States 87 International copyright 92 CHAPTER L COMMON-LAW PROPERTY IN UNPUBLISHED WORKS. Literary property defined 97 Difference between common-law and statutory right .... 100 Copyright defined 100 The nature and extent of common-law rights 101 XU TABLE OP CONTENTS. Pagb In what productions 101 The author's rights absolute before publication . . . . 102 Literary property personal, and transferable by parol . . 104 No rights lost by parting with manuscript 105 Limited assignment 106 Foreigners' rights 106 Violation of common-law rights 107 By public reading or delivery of lecture 107 By copying works of art 108 By exhibiting copies 109 In what court redress sought 110 Character of the work 110 Originality 110 Literary merit Ill Writings not innocent 112 Question of damage affected by character of production . 114 Publication 115 Author's rights after publication not lost by common law, but taken away by statute 116 When common-law rights are lost by publication . . . . 118 Private circulation of copies not a publication 121 Statutory protection for manuscripts 124 Letters 127 Property in writer after transmission 127 When property is not in writer 132 ,' r "Letters without literary value 132 Eights of receiver 135 May receiver publish for purposes of vindication ? . . . 136 CHAPTER II. WHAT MAY BE COPYRIGHTED. Books 140 Great Britain X4q United States 142 All contents of book covered by copyright ] 44 Title alone not subject of copyright 145 New Editions I45 Is change of one word enough to create title to copyright in new edition ? I49 TABLE OP CONTENTS. XUl Paob Compilations 152 Materials need not be new ^ 154 Copyright is in arrangement and combination of materials . 156 Abridgments, digests, translations, and dramatizations .... 158 Law Reports 159 Matter prepared by reporter 159 Abridgments, digests, and selections of cases 160 Opiuifus of the court 160 May be copyrighted by government 161 Statutes and public documents 164 Publications used for advertising 1 64 Newspapers, magazines, and other periodicals 1 68 In England, special provision for magazines and periodicals . . 170 Newspapers in England 172 Maps, charts, and plans 174 Dramatic and musical compositions 175 Engravings, prints, and cuts 177 Great Britain 177 United States 178 Paintings, photographs, chromos, sculpture, &c 178 Great Britain 178 United States 180 Designs 180 CHAPTER III. QUALITIES ESSENTIAL TO COPYRIGHT. Seditious and libellous publications 181 Immoral productions 185 Blasphemous publications 187 Great Britain 187 United States 193 False pretences as to authorship 196 Originality 198 Work need not be wholly original 199 Collections of well-known facts 201 Compilations 202 Works alike may be original 205 Test of originality 208 xiv TABLE OP CONTENTS. Pagk 208 Literary merit and quality Literary merit 208 Quantity 212 CHAPTER IV. , IN WHOM COPYRIGHT WILL VEST. International Copyright. — Great Britain 214 Foreign works in original language 214 Translations 215 Adaptations of dramatic compositions 215 Newspapers and periodicals 216 Statutory requirements in case of translations 217 Importing piratical copies prohibited 219 Works first published abroad not entitled to copyright, except under International Acts 220 Rights of foreign authors in Great Britain 220 Foreigner resident abroad not entitled to copyright . . . 223 The law criticised 226 Foreigner within British dominions may secure copyright . 229 British subject resident abroad entitled to copyright . . . 230 Law summarized 230 Works of ait 230 Rights of foreigners in the United States 231 No copyright in work of foreign author 231 Statutory prohibition not extended to certain works of art . 231 Translations, abridgments, dramatizations 232 Joint native and foreign authors 232 Meaning of resident 233 Immaterial where work is produced or citizen author resides 234 Foreign assignee of native author 235 Author and assignee 236 Who is author 236 Joint authors 237 Who is assignee 238 Owner of manuscript may secure copyright 239 Rights of employer and author employed 243 Cyclopsedias and periodicals in Great Britain 243 General publications in Great Britain 247 TABLE OP CONTENTS. XV Paob Wallenstein v. Herbert criticised 251 Works of art in Great Britain 254 Employer may secure copyright in United States .... 255 No copyright in worls of foreign author employed . . . 257 Employer not entitled to copyright by mere fact of em- ployment 257 Copyright vests in employer only by agreement .... 258 Cyclopaedias and periodicals in United States 259 Copyright in person in whose name entered 260 Extension for author and family 261 CHAPTER V. STATUTORY REQUISITES FOR SECURING COPYRIGHT. United States 262 Requisites prescribed by acts of 1790 and 1802 .... 262 Difference of judicial opinion as to meaning of acts of 1790 and 1802 262 Requisites prescribed by statute of 1831 264 Judicial construction of statute of 1831 264 What must be done to secure copyright under statute now in force 265 Compliance with statutory requisites essential to copyright . 265 Requisites in case of new editions 269 Must original copyright notice be printed in revised edition? 270 Books in two or more volumes 274 Newspapers and magazines 274 Delivery of copies to Librarian of Congress 275 Penalty for falsely printing copyright notice 276 Fees for securing copyright 276 How to secure renewal of copyright 276 Great Britain 277 Delivery of copies to libraries 277 Registration. — Books 278 Cyclopaedias and periodicals 280 Newspapers 280 Dramatic compositions 280 Engravings and prints 280 Maps 281 Paintings, drawings, and photographs 28-1 xvi TABLE OP CONTENTS, Page Sculpture 281 Registration under International Copyright Acts .... 281 Publication 283 Statutory copyright begins with publication, — does not exist in unpublished works 283 Publication must be within reasonable time after filing title 284 "What is a publication 285 Dramatic compositions "85 Paintings and sculpture 286 United States 286 Great Britain 288 Is circulation of manuscript copies publication ? . . . . 289 Private circulation of copies not publication 290 When a book is published 291 Place of first publication. — Great Britain 292 United States 295 Place of printing 296 Summary of the law 297 United States 297 Great Britain 297 United Kingdom and British dominions defined 298 Colonial copyright 298, note Duration of copyright 299 CHAPTER VI. TRANSFER OF COPYRIGHT. Great Britain. — Books 301 By registration 301 By bequest and in case of intestacy 302 Must assignment of copyright be in writing ? 302 Judicial construction of former statutes, — writing, but not attestation, held to be necessary 302 The doctrine maintained that assignments need not be in writing under English statutes 304 Former statutes considered 304 Judicial opinions against the soundness of the prevailing doctrine 309 Does present statute require assignment to be in writing ? . 311 Authorities in favor of doctrine that under present stat- ute copyright may be transferred by parol 313 TABLE OF CONTENTS. XVU Paqb Engravings, paintings, photographs, &c 316 Engravings and prints 316 Maps 317 Paintings, drawings, and photographs 317 Mode of transfer in the United States 318 Former statutes 318 Meaning of statute in force 319 Mode of transfer before publication 319 Must assignment of copyright in published book be in writing? 320 Transmission by bequest and in case of intestacy . . . 321 In case of bankruptcy 322 Form of written assignment 323 Sale of stereotype plates 324 Renewal of copyright considered with reference to assign- ment 326 Author may divest himself and family of right to re- newal 326 Effect of transfer before publication on renewal .... 327 Bights of parties determined by agreement 328 Absolute assignment before publication gives unlimited right to publish 328 Absolute assignment of copyright held to carry future playright 331 Effect of assignment after publication on renewal . . . 331 Assignee cannot make renewal 333 Author may assign renewed term 333 Limited assignment 334 One or more of several rights in a work may be assigned . 334 Copyright indivisible as to locality 335 Copyright may be assigned for one or more of several countries 335 Is copyright divisible as to time ? 337 ]May limited assignee transfer copyright ? 338 Rights of assignor and assignee as to selling copies .... 338 The law as construed in England 338 In United States, may assignor sell copies after assign- ment? 339 May assignee sell copies after end of limited assign- ment? 341 English decisions questioned 342 Author may not reproduce work after assignment 342 Warranty of title 342 b XVlll TABLE OF CONTENTS. CHAPTEE VII. AGREEMENTS BETWEEN AUTHORS AND PUBLISHERS. Faqb Agreement for publication of one edition. — Number of copies specified 343 Agreement indefinite as to duration and number of copies. — Subsequent editions, if called for. — Transfer of rights of publisher in bankruptcy to tliird persons 345 Division of profits on copies sold above specified number. — publisher bankru[)t. — Author claims as partner in unsold stock 350 Agreement indefinite as to duration and number of copies. — Division of profits. — Publisher may fix selling price. — Author may end agreement by proper notice 351 Agrtement for first edition of specified number, and unlimited second edition if called for 355 Agreement for use of matter in specified editions 360 Agreement with State reporter for publication of law re- ports 362 Principles drawn from foregoing cases 363 Rights of parties after agreement is ended 368 Publisher's right to sell after agreement is ended held not to be exclusive . . ; 368 Above decision questioned 370 Held in England that buyer of copyright for limited time may sell all copies printed during that time 372 And that, after sale of copyright, seller may sell copies printed before sale 373 Law claimed to be diiFerent in United States 373 Negative covenant by author 373 Author may not reproduce work after sale of copyright . . . 374 May publisher make changes in author's manuscript ? . . . . 375 Publisher liable for injury to author by false representations as to authorship of revised edition 377 Publisher entitled to damages when author refuses to supply rest of manuscript after part is piinted 378 Copies printed to replace those destroyed by fire not a new edition 37O Unlawful publications 373 Cyclopaedias and periodicals 379 Title of magazine partnership property 380 TABLE OP CONTENTS. XlX Page: Name of editor not part of title 380 Joint owners of copyright 381 Literary contracts governed by statute of frauds 381 CHAPTER VIII. PIRACY. Piracy defined, and distinguished from plagiarism 383 Fundamental principles by which piracy is determined . . . 383 True test of piracy 385 Lawful uses of copyrighted works 386 Fair use by quotation 386 Extracts for criticism 387 Test of fair use in case of criticism 388 Unfavorable criticism 388 Extracts for other purposes than criticism .... 388 Selections to illustrate work on poetiy 390 For biography 390 To illustrate career of person 391 Objection not to plan, but manner of execution . . . 303 When plan is unlawful 393 Fair use otlierwise than by quotation 394 General principles 394 Directories 396 Descriptive catalogue 396 Work on ethnology 396 Dictionary 397 Statistics 398 General test of fair use 398 General principles relating to piracy 399 Copying from protected work essential to piracy .... 399 Similarity creates presumption of copying 400 Intention to pirate not essential 401 IntentioQ may aid in determining fact of copying .... 402 Ignorance no defence of piracy 403 General forms and tests of piracy 404 Reprint of entire work 404 Purpose for which work is taken immaterial 405 Substantial copy of protected work 407 Substantial identity test of piracy 408 XX TABLE OP CONTENTS. Faob Same rule applies to maps, engravings, paintings, music, &c. 409 When material part is taken 411 Publication complained of need not serve as substitute . 412 What amount is material 413 Value to be considered 414 Piracy in the case of compilations 416 Compilations of common facts 416 Test of piracy 416 Law construed in case of directories 418 Descriptive catalogues 421 Maps 421 Compilations of published materials 422 When materials and arrangement are taken .... 422 When materials, without arrangement, are taken . . 424 When arrangement, but not materials, is copied . . 425 Ascertaining the fact of copying 428 Common errors test of copying 428 Things against presumption of copying 429 Presumption of copying created by likeness must be overcome by defendant 430 CHAPTER IX. ABRIDGMENTS, TRANSLATIONS, AND DRAMATIZATIONS, CONSIDERED WITH REFERENCE TO PIRACY. General principles 433 Abridgments 434 English authorities 435 American authorities 437 The doctrine maintained that an unauthorized abridgment is piratical 440 Translations 445 Statutory provision for reserving right of translation and dramatization 445 Unlicensed translation in absence of reservation .... 446 English authorities 446 American authorities 449 Unlicensed translation held to be lawful 449 The doctrine maintained that an unauthorized translation is piratical 450 TABLE OP CONTENTS. XXI Paob Stowe V. Thomas criticised 454 Dramatizations 456 Publication of unlicensed dramatization not lawful . . . 456 Unauthorized dramatization for performance. — Law as expounded in England 456 The law as construed in England criticised 458 When an unlicensed dramatization for performance is pirat- ical 461 CHAPTER X. REMEDIES IN LAW FOR THE INFRINGEMENT OF COPYRIGHT. Great Britain. — Books 468 Remedies provided by existing statute 469 Action for damages against unlawful printing, importing, or selling 469 Knowledge of- piracy 470 Forfeiture of copies 471 Penalties against unlawful importing 472 Common-law remedies available under statute 473 When common-law remedies not available 474 Limitation of actions 475 Engravings and prints 478 Penalties and forfeitures 478 Action for damages 478 When seller is liable 478 Copying by lithography, photography, or other processes unlawfiil 480 Copies made by hand 480 Substantial identity test of piracy 481 Limitation of actions 482 Maps and charts 482 Paintings, drawings, and photographs 482 Penalties and forfeitures 482 Is unlicensed copying of engraving piracy of painting ? . 483 Penalty for every copy unlawfully sold 484 Unlawful importing prohibited. — Action for damages given 485 Limitation of actions 485 Sculpture 485 XXll TABLE OP CONTENTS. Pa«k United States. — Books 486 Action for damages and recovery of piratical copies . . . 48b Persons liable. — Knowledge of piracy 487 Gratuitous circulation of copies 487 Are copies subject to forfeiture when only part of book is piratical? • . . . . 488 Maps, charts, musical compositions, and works of art .... 491 Penalties and forfeitures 491 Persons liable. — Knowledge of piracy 492 Substantial copy subject to penalties and forfeitures . . . 492 Copying by photography and other processes unlawful . . 492 Is copying of engraving or pliotograph piracy of painting ? 493 Gratuitous circulation of copies 493 Action for damages 493 General provisions 494 Penalty for false printing of copyright notice 494 Unlicensed publication of manuscripts 494 Limitation of actions 494 Neither oral use of production, except dramatic composi- tion, nor exhibition prohibited 495 CHAPTER XI. REMEDIES IN EQUITY FOR THE INFRINGEMENT OF COPYRIGHT. Nature and extent of equity jurisdiction in copyright cases . . 496 Complainant's title. His con.sent, delay, and acquiescence con- sidered as defences of piracy 498 What must appear before equity will interfere .... 498 Defences against charge of piracy 499 Equitable title sufficient in court of equity 500 Suit barred by plaintiff's consent to publication .... 501 When plaintiff's consent may not be implied 502 Delay or acquiescence on part of plaintiff 504 ' Plaintiff not responsible for delay when ignorant of piracy . 505 Delay may be explained 505 Plaintiff's rights not prejudiced by custom 506 Stronger case of acquiescence on final hearing than pre- liminary application 506 TABLE OP CONTENTS. XXUl Paob Are plaintiff's rights lost by apparent acquiescence ? . . 506 Tendency of recent decisions toward doctrine that plain- tiff's rights are not lost by mere delay 508 How piratical copying is ascertained 512 Defendant should point out copied parts, produce manu- script, &c 515 Temporary injunction 515 When tempoi-ary injunction granted 516 When temporary injunction not granted 517 Ephemeral publications 518 Should injunction be refused because piratical may easily be replaced by innocent matter? 519 Account of profits may be ordered when injunction refused 521 Permanent injunction 521 Injunction granted when material piracy clear 521 Injunction may be refused in doubtful case 521 Actual damage need not be proved 521 Injunction granted when action for penalties cannot be maintained 522 Injunction against any wrong-doer 523 Injunction may be refused when piracy slight 523 When consequences to defendant considered 524 .Illustrations of material quantity and value 525 Form of the injunction • 527 Injunction granted only against piratical part 527 Entire work may be restrained when piratical part cannot be separated 529 Form of injunction 530 Account of profits 531 Right to account dependent on right to injunction . . . 632 Account may be ordered before injunction granted . . . 533 Account ordered when not asked for 533 Past sales 533 Discovery 534 Rule of damages 535 Injunctions on other grounds than infringement of copyright . 535 Injunctions protecting titles 635 Breach of trust . ' 637 False representations as to authorship 539 External likeness of publications 540 Libellous, immoral, and blasphemous publications .... 540 Specific performance of agreements 541 XXIV TABLE OP CONTENTS. CHAPTER XII. JURISDICTION OF THE UNITED STATES COURTS. Fagk Statutory penalties and forfeitures must be sued for in court of law 547 Forfeiture of copies at common law 549 CHAPTER XIII. COMMON-LAW PLAYRIGHT IN UNPUBLISHED DRAMAS. Playright defined 553 Are the owner's common-law rights lost by the public perform- ance of a manuscript drama ? 554 Public performance not a publication which defeats copy- right 554 Review of English authorities 555 Review of American authorities 557 Law judicially construed that any person may represent or print play obtained by memory, but not by writing, from public performance 558 Unlicensed performance of play got by memory held law- ful 560 Unlicensed performance of play obtained by memory held piratical 562 Unlicensed printing of play got from public performance held piratical 562 Theory of restrictive notice 664 Result of authorities 565 Refutation of the theory that the right to use a play may be acquired by means of memory 566 Common-law rights in United States not prejudiced by public performance of play 573 Representation made equivalent to publication by English statute? 574 Has common-law playright been taken away by English statute? 575 TABLE OP CONTENTS. XXV Page General principles governing property in unpublished plays . . 576 Acquiescence in unlicensed performances 576 Common-law rights lost by authorized, but not unauthor- ized, publication 577 Dramatizations, adaptations, and translations 580 Immoral plays 581 Foreign dramatists 581 Transfer of playright 581 Remedies for violation of playright 585 CHAPTER XIV. WHAT IS A DRAMATIC COMPOSITION WITHIN THE MEANING OF THE STATUTE. Comprehensive meaning of dramatic composition 587 What meaning should be given to dramatic composition as used in statute ? 590 Judicial interpretation of dramatic composition 591 Broad meaning given by English courts 591 United States 593 Spectacular pieces 595 Scenic eflfects 596 Dramatic composition must be original and innocent . . . 596 Dramatizations, adaptations, and translations 596 Test of originality in dramatization 597 Foreign dramatists 598 Musical compositions 598 Compositions consisting of words and music 598 Instrumental music 599 CHAPTER XV. STATUTORY PLAYRIGHT IN DRAMATIC AND MUSICAL COMPOSITIONS. Playright and copyright distinguished 601 Great Britain ■ . 601 XXVI TABLE OF CONTENTS. Pagb Duration of playright in printed and manuscript composi- tions 601 Conditions on whicli playright may be secured .... 603 Publication and representation considered with reference to playright in Great Britain 605 United States . . - 612 Playright given only in case of copyrighted composition . 612 No statutory playright in unpublished dramas 612 How playright is secured 616 Transfer of playright. — Great Britain 617 Held, that assignment must be in writing 617 Is law settled that assignment must be in writing ? . . . 618 Transfer before playright secured 619 Eegistration 619 Transfer of playright. — United States 621 Mode of transfer 621 Transfer before playright secured 622 Does assignment of copyright carry playright 622 Limited assignment of playright 622 Joint authorship. — Authors employed 624 CHAPTEE XVI. INFRINGEMENT OF PLAYRIGHT. Statutory remedies for violation of playright different from those for invasion of copyright 625 Remedies prescribed by English statute 626 Remedies prescribed by American statute 626 What is an unlawful performance 627 Public and private performances distinguished .... 627 Scenery, costumes, &c., not essential 627 Place of performance 628 Plurality of actors not essential 628 Public reading may amount to performance 629 Who are liable 629 What amounts to piracy 632 Offender liable to penalties under English statute when material part taken 633 How far offender liable under American statute when only part taken 634 TABLE OF CONTENTS. XXVll , Page Substantial identity test of piracy 634 Dramatizations "^° Intention and ignorance o38 Registration "°° Consent in writing "3° Limitation of actions "38 Jurisdiction "3" Music 63^ EXPLANATION OF ABBREVIATIONS USED IN THIS WORK. Abb. Pr. N. s. (N. Y.) Abbotts' Practice Reports, New York. Abb. U. S Abbott's United States Keports, Circuit and District Courts. Ad. & El Adolplms and Bllis's Reports, Queen's Bench. Alb. Law Jour. . . Albany Law Journal, Albany, N. Y. Am American. Am. Law Rec. . . . American Law Record, Cincinnati, Ohio. Am. Law Reg. . . . American Law Register, Philadelphia, Pa. Am. Law Reg. n. s. . American Law Register, New Series, Philadelphia, Pa. Am. Law Rey. . . . American Law Review, Boston, Mass. Am. L. T. N. s. . . American Law Times, New Series, New York, N. Y. Am. L. T. R. . . . American Law Times Reports, Washington, t>. C. Am. L. T. R. N. s. . American Law Times Reports, New Series, New York, N. Y. Am. Rep American Reports. Amb Ambler's Reports, Chancery, Br. Anstr Anstruther's Reports, Exchequer, Br. App. Cas Law Reports, Appeal Cases before House of Lords. Art Article. Atk Atkyns's Reports, Chancery, Br. B Baron. B. Men. (Ky.) . . . Ben. Monroe's Reports, Court of Appeals, Kentucky. Bac. Abr. Prerog. . . Bacon's Abridgment, title Prerogative. Bac. Abr. Stat. . . . Bacon's Abridgment, title Statute. Ball & B Ball and Beatty's Reports, Chancery, Ireland. Barb. Ch. (N. Y.) . . Barbour's Chancery Reports, New York. Barb. S. C. (N. Y.) . Barbour's Supreme Court Reports, New York. Barbeyr. Puf. . . . Barbeyrac's Pufendorf de Jure Naturae et Gentium. Barn. & Ad Barnewall and Adolphus's Reports, King's Bench. Barn. & Aid. . . . Barnewall and Alderson's Reports, King's Bench. . Bam. & Cr Barnewall and Creswell's Reports, King's Bench. Barnardiston, Ch. . Barnardiston's Chancery Reports, Br. Beav. ...... Beavan's Reports, Rolls Court, Br. Best & S Best and Smith's Reports, Queen's Bench. Bing Bingham's Reports, Common Pleas, Br. Bing. N. C Bingham's New Cases, Common Pleas, Br. Biss Bissell's Reports, U. S. Circuit and District Courts, 7th Circuit. Bl. Com Blackstone's Commentaries. Blatchf. . . . Blatchford's Reports, U. S. Circuit Court, 2d Circuit. Bligh N. s Bligh's Reports, New Series, House of Lords. Bond Bond's Reports, U. S. Circuit and District Courts, Southern District of Ohio. Br British. Bro. C. C Brown's Chancery Cases, Br. Bro. P. C Brown's Cases in Parliament. Burr Burrow's Reports, King's Bench. Bush (Ky.) .... Bush's Reports, Court of Appeals, Kentucky. C Chapter. C. B Chief Baron. XXX EXPLANATION OP ABBREVIATIONS. C. B. C. B. N. s. C. C. . . C. C. . . C.J. . . C. L. , . C.P. . . C. P. D. . Camp. . . Car. II. . Car. & Kir. Car. & P. . Carter . . Cent. Law Jour. Ch. . . Ch. D. . . Oliie. Leg. News Chit. . . , Civil Got. . CI Cliff. . . . Cobb. Pari. Hist. Coke . . Coll. . . . Com. (BI.) . Com. (Kent) Com. Dig. . Com. L. K. Cong. Globe . Const. Hist. . Const. Lim. . Construction Stat. Const. Law Coop.temp. Cottenham Coop. temp. Eldon Cowp. . . Cox . . . Cranch C. C. Curtis . . . Daily Reg. (N. Day (Conn.) Deady . . . De G. & J. De G. M. & G. . De G. & Sm. De Jure B. ac P. De Jure Nat. et Dow. & L. . Dow. & Ily. . Dow. Pr. Cas. Drew. . . . Duer (N. Y.) East . . . Eden . . . Edw. Ch. (N. Y Eq. . . . Eq. Jur. . Eq. Rep. . 'I Gent. Common Bench Reports (Manning, Granger, and Scott), Br. Common Bench Reports, New Series, Br. Chancery Cases. Circuit Court of the United States. Chief Justice. Common Law. Common Pleas. Law Reports, Common Pleas Division of the High Court of Justice and the Court of Appeal, Br. Campbell's Reports, Nisi Prius, Br. Charles the Second. Carrington and Kirwan's Reports, Nisi Prius, Br. Carrington and Payne's Reports, Nisi Prius, Br. Carter's Reports, Common Pleas, Br. Central Law Journal, St. Louis, Mo. Chancery. Law Reports, Chancery Division of the High Court of Justice and the Court of Appeal, Br. Chicago Legal News, Chicago, III. Chitty's Reports, King's Bench. Locke's Civil Government. Clause. ' Clifford's Reports. TJ. S. Circuit Court, 1st Circuit. Cobbett's Parliamentary History. Coke's Reports, Br. ■ Collyer's Reports, Chancery, Br. Blackstone's Commentaries. Kent's Commentaries. Comyns's Digest. Common Law Reports, Br. Congressional Globe, Washington, D. C. Ilallam's Constitutional History. Cooley's Constitutional Limitations. Sedgwick's Construction of Statutory and Constitutional Law. Cooper's Chancery Reports, time of Lord Cottenham. Cooper's Chancery Cases, time of Lord Eldon. Cowper's Reports, King's Bench. Cox's Cases in Equity, Br. Cranch's U. S. Circuit Court Reports, District of Co- lumbia. Curtis's Reports, U. S. Circuit Court, 1st Circuit. Daily Register, New York, N. Y. Day's Reports, Supreme Court of Errors, Connecticut. Deady's Reports, U. S. Circuit and District Courts, Ore- gon and California. De Gex and Jones's Reports, Chancery, Br. De Gex, Macnaghten, and Gordon's Reports, Chancery, Br. De Gex and Smale's Reports, Chancery, Br. Grotius de Jure Belli ac Pacis. Pufendorf de Jure Naturae et Gentium. Dowling and Lowndes' Practice Reports, Br. Dowling and Rj-land's Reports, King's Bench. Dowling's Practice Cases, Br. Drewry's Reports, Chancery, Br. Duer's Reports, Superior Court of the City of New York. East's Reports, King's Bench. Eden's Reports, Chancery, Br. Edwards's Chancery Reports, New York. Equity. Story's Equity Jurisprudence. Equity Reports, Br. EXPLANATION OP ABBREVIATIONS. XXXI Esp Espinasse's Nisi Prius Eeports, Br. Exch Exchequer. Exch. Eq Exchequer Equity. Exch. Kep Exchequer lieports (Welsby, Hurlstone, and Gordon), Br. GifE Giffiird's Reports, Chancery, Br. Gray (Mass.) . . . Gray's Keports, Supreme Court, Massachusetts. Grotius de Jure B. ac ( r. »• it t> m- t. • p i Grotius de Jure Belli ae Pacis. H. L House of Lords. H. L. C. House of Luids Cases (Clark). Hall & Tvr Hall and Twells's Reports, Ciiancery, Br. Hallam Const. Hist. . Hallam's Constitutional History. Hans. Piirl. Deb. . . Hansard's Parliamentary Debates. Har. & W Harrison and VVollaston's Reports, King's Bench. Hare Hare's Reports, Chancery, Br. Harring. (Del.).. . . Harrington's Reports, Superior Court and Court of Er- rors and Appeals, Delaware. Hem. & M. . . . Hemming and Miller's Reports, Chancery, Br. Hodges .... Hodges' Reports, Common Pleas, Br. Holmes Holmes's Reports, U. S. Circuit Court, 1st Circuit. Hopk. Ch. (N. Y.) . Hopkins's Ciiancery Heports, New York. How Howard's Reports, United States Supreme Court. How. I'r. (N. Y.) . . Howard's Practice'Reports, New York. Hurl. & C Hurlstone and Coltman's Reports, Exchequer, Br. Hurl. & N Hurlstone and Norman's Reports, Exchequer, Br. Ill Illinois Reports, Supreme Court. Inst Coke's Institutes. Inst, of Nat. Law . . Rutlierforth's Institutes of Natural Law. Int. Rev. Kec. . . . Intern.il Revenue Record, New York, N. Y. Ir. Ch Irish Chancery Keports. Ir. Eq. . . ... Irish Equity Reports. Ir. Law Rep. N. s. . . Irish Law Heports, New Series. Jac Jacob's Reports, Chancery, Br. Jac. II James the Second. Jac. & W. . . . Jacob and Walker's Eeports, Chancery, Br. Johns. & H Johnson and Hemming's Reports, Chancery, Br. Johns. Rep. (N. Y. 2d ( Johnson's Reports, Supreme Court, New York, 2d edi- ed.) ( tion. Jones & Sp Jones and Spencer's Reports, Superior Court of the City of New York. Jur Jurist, London. Jur. N. s Jurist, New Series, London. Kay Kay's Reports, Chancery, Br Kay & J Kay and Johnson's Reports, Chancery, Br. K. B King's Bench. Ken. . .... Kenyoii's Reports, King's Bench. Kent Com Kent's Commentaries. L. J Lord Justice. L. J. Ch Law Journal, Chancery, London. C. P Common Pleas. K. B King's Bench. L. J. N. s. Ch. . . Law Journal, New Series, Chancery, London. C. L. . . Common Law. C. P. . . Common Pleas. Exch. . . Exchequer. Exch. Eq. . Exchequer Equity. Q. B. . . Queen's Bench. L. T. N. 8 Law Times, New Series, or Law Times Reports, London. L. T. R Law Times (Old Series), London. L. & Eq. Reporter . Law and Equity Reporter, New York, N. Y. Law Kep. Ch. . . . Law Reports, Chancery Appeal. C. P. . . Common Pleas. Eq. . . . Equity. Exch. . . Exchequer. XXXll EXPLANATION OP ABBEBVIATIONS. Law Eep. H. L. . . Law Reports, House of Lords. Q. B. . . Queen's Bench. Stat. . . Statutes. Law Reporter . . . Law Reporter, Boston, Mass. (See Monthly Law Repoktek ) Leg. Gaz Legal Gazette, Philadelphia, Pa. Leg. Int Legal Intelligencer, Philadelphia, Pa. Lib Book. Locke Civ. Gov. . . Locke's Civil Government. LofEt Loot's Reports, King's Bench. McLean McLean's Reports, U. S. Circuit Court, 7tli Circuit. Mac. & G Macnaghten and Gordon's Reports, Chancery, Br. Macq Macqueen's Reports, House of Lords, Scotch Appeals. Man. & Gr Manning and Granger's Reports, Common Pleas, Br. Martin (Orleans T.) . Martin's Orleans Term Reports. Mason Mason's Reports, U. S. Circuit Court, 1st Circuit. Mass Massachusetts Reports, Supreme Court. Maugh^am LawsofLit. j Maugham's Laws of Literary Property. Maule & S Maule and Sehvyn's Reports, King's Bench. Me Maine Reports, Supreme Court. Mees. & W Meeson and Welsby's Reports, Exchequer, Br. Meriv Merivale's Reports, Chancery, Br. Mich Michigan Reports, Supreme Court. Minn Minnesota Reports, Supreme Court. Mod Modern Reports, King's Bench. Monthly Law Rep. . Monthly Law Reporter, Boston, Mass. (Continuation of tlie Law Reporter.) Moody & R Moody and Robinson's Reports, Nisi Prius, Br. Moore Moore's Reports, Common Pleas, Br. Moore & Sc Moore and Scott's Reports, Common Pleas, Br. Mor. Diet, of Dec. . Morison's Dictionary of Decisions, Scotland. Mor. Diet, of Dec. Lit. j Morison's Dictionary of Decisions, title Literary Prop- Prop. App. . . . ( erty. Appendix. M. R. •. .... Master of tlie Rolls. My. & Cr Mylne and Craig's Reports, Chancery, Br. Nev. & M Nevile and Manning's Reports, King's Bench. New Rep New Reports, Equity and Common Law, Br. Niles Reg Niles's Register, Baltimore, Md. N. S New Series. N. Y New York Reports, Court of Appeals. N. Y. Leg. Obs. . . New York Legal Observer, New York, N. Y. N. Y. Superior Ct. . New York City Superior Court Reports. N. Y. Supreme Ct. . New York Supreme Court Reports. N. Y. Weekly Dig. . New York Weekly Digest, New York, N. Y. On ap On.appeal. Op. Atty-Gen. . . . Opinions of the Attorney-Generals of the United States. Paige (N. Y.) . . . Paige's Chancery Reports, New York. Paine Paine's Reports, U. S. Circuit Court, 2d Circuit. Pa. Law Jour. Rep. . Pennsylvania Law Journal Reports. Pat. App. Cas. . . . Paton's Appeal Cases, House of Lords, Scotch Appeals. Pet Peters's Reports, United States Supreme Court. Petersd. Abr. . . . Petersdorff's Abridgment. Phila. (Pa.) .... Philadelphia Reports. Phillips Phillips's Reports, Chancery, Br. Pick. (Mass.) .■. . Pickering's Reports, Supreme Court, Massachusetts. Pittsb. Leg. Jour. n. s. Pittsburgh Legal Journal, New Series, Pittsburgh, Pa. P. J Presiding Justice. Plow. Com Plowden's Commentaries or Reports, King's Bench. ^"IrGent.*^"."^"'^^^'; { P"<'«"d°^f de Jure Nature et Gentium. Q. B Queen's Bench. EXPLANATION OF ABBREVIATIONS. XXXUl Q. B Queen's Bench Eeports. Rev. Stat Revised Statutes of Great Britain. Kidg. L. & S. . . . Ridgeway, Lapp, and Schoales's Irisli Term Reports. Rob. (N. Y.) . . . Robertson's Reports, Superior Court of the City of New York. Russ Russell's Reports, Chancery, Br. Russ. & My Russell and Mylne's Reports, Chancery, Br. Ryan & M Ryan and Moody's Reports, Nisi Prius, Br. S Section. Sawyer Sawyer's Reports, U. S. Circuit and District Courts, 9th Circuit. Sc. Sess. Cas. . . Cases in the Court of Session, Scotland. Scott Scott's Reports, Common Pleas, Br. Scott N. R Scott's New Reports, Common Pleas, Br. tion of Stat'^'^& > ^^'^^''^''^'^'^ Construction of Statutory and Constitu- Const. Law .'.'.) tio^^l Law. Ser Series. Serg. & R. (Pa.) . . Sergeant and Rawle's Reports, Supreme Court, Penn- sylvania. Show Shower's Reports, King's Bench. Sim. Sinions's Reports, Chancery, Br. Sim. N. s Simons's Reports, New Series, Chancery, Br. Sim. & St Simons and Stuart's Reports, Chancery, Br. Skin Skinner's Reports, King's Bench. Stark Starkie's Reports, Nisi Prius, Br. Story Story's Reports, TJ. S. Circuit Court, 1st Circuit. Story's Eq. Jur. . . Story's Equity Jurisprudence. Swans Swanston's Reports, Chancery, Br. Sweeny (N. Y.) . . Sweeny's Reports, Superior Court of the City of New York. Taml Tamlyn's Reports, Rolls Court, Br. Tan. Dee Taney's Decisions, U. S. Circuit Court, District of Maryland. T. R Term Eeports (Durnford and East), King's Bench. U. S United States. U. S. Pat. OfE. Gaz. . Official Gazette of the United States Patent Office, Washington, D. C. U. S. Rev. St. . . United States Revised Statutes. U. S. St. at L. . . . United States Statutes at Large. V. C Vice-Chancellor. Ves Vesey's (Junior) Reports, Chancery, Br. Ves. & B Vesey and Beames's Reports, Chancery, Br. Vict Victoria. Victorian Law Rep. . Victorian Law Reports, Australia. Vin. Abr. Stat. . . . Viner's Abridgment, title Statute. Wall Wallace's Reports, United States Supreme Court. Wall. Jr Wallace, Jr.'s Reports, U. S. Circuit Court, 3d Circuit. Wash. C. C Washington's Circuit Court Reports, United States, 3d Circuit. W. Bl Sir William Blackstone's Reports, King's Bench and Common Pleas. ^ W. & M William and Mary. W. R Weekly Reporter, London. ^ Caies '^"'^^ °^ \ '^^^^^y Notes of Cases, Philadelphia, Pa. Wend, (N. Y.) . . . Wendell's Reports, Supreme Court, New York. West. Law Jour. . . Western La*™ Journal, Cincinnati, Ohio. Wils. C. C Wilson's Cliancery Cases, Br. Woodb. & M. . . . Woodbury and Minot's Reports, U. S. Circuit Court, 1st Circuit. Y. & C. Exch. . . . Younge and CoUyer's Reports, Exchequer Equity, Br. c TABLE OF CASES. Names of Cases. When Decided. Where Reported. Where Cited in this Work. Abemethy v. Hutchinson . 1826 IHall&Tw. 28 . . . . 99, 101, 107, 108, 3 L. J. Ch. 209. 119, 122, 285, 522, 537. Albert, Prince, v. Strange . 1849 2 De G. & Sm. 652 ... 101, 102, 103, 107, 13 Jur. 45, 507. 109, 111, 113, 115, On Appeal. 121, 179, 286, 290, 1 Mac. & G. 25. 403, 435, 448, 480, IHall&Tw.l; 13 Jur. 109. 516, 538, 549. 18 L. J. N. B. Ch. 120. Alexander v. Mackenzie 1847 9 Sc. Sess. Cas. 2d ser. 748 153, 164, 204, 205, 291, 406, 408, 409, 474. Archbold v. Sweet . . . 1832 5 Car. & P. 219 1 Moody & E. 162. 198, 377, 539. Atkins's Case 1666 Carter, 89 Bac. Abr. Prerog. P. 5. 4 Burr. 2316. 62, 66, 162. Atwill V. Ferrett .... 1846 2Blatehf. 39 177, 200, 255, 495, 498, 534. Avanzo v. Mudie .... 1854 10 Exch. Rep. 203 ... 281, 283. Bach V. Longman .... 1777 Cowp. 623 6 Petersd. Abr. 537. 140, 175, 221. Backus V. Gould .... 1849 7 How. 798 159, 488, 489, 491. Bacon v. Jones 1839 4 My. & Cr. 433 .... 497, Baily v. Taylor .... 1824 3 L. J. Ch. 66 153, 207, 417, 509, 523. V. Taylor .... 1829 1 Euss. & My. 73 . . . . 153, 207, 417, 520, 8L.J. Ch. 49; Taml. 295. 532. Baker v. Taylor .... 1848 2Blatchf. 82 264, 266, 291, 498. Baldwin v. Society for DifEu- sion of Useful Knowledge 1838 9 Sim. 393 542. Banker v. Caldwell . . . 1859 3 Minn. 94 101, 153. Banks v. McDivitt . . . 1875 13 Blatchf. 163 146, 149, 153, 155, 8 U. S. Pat. Off. Gaz. 860. 156, 159, 164, 205, 207, 208, 270, 894, 412, 423, 425, 427, 516, 517. Barfield v. Nicholson . . 1824 2 Sim. & St. 1 144, 153, 156, 178, 2 L, J. Ch. 90. 205, 206, 208, 248, 281, 374, 399, 408, 410, 424, 541. XXXYl TABLE OF CASES. Names of Cases. When Decided Where Reported^ Where Cited in this Work. Barnett v. Glossop . . . 1835 3 Dow. Pr. Cas. 625 .. . 4 Bing. N. C. 633. 1 Hodges, 94 ; 1 Seott, 621. 303, 304. Bartlett w. Crittenden . .■ 1847 1849 4 McLean, 300 . . . . . 5 McLean, 32. 101, 102, 103, 105, 107, 108, 119, 121, 7 West. Law Jour. 49. 122, 125, 285, 289, 290, 538, 545. Baskett v. Cunningham 1762 1 W. Bl. 370; 2 Eden, '137 . 164. V. University of Cambridge . 1758 1 W. Bl. 105 ; 2 Burr. 661 . 54, 64, 65, 163, Bac. Abr. Prerog. F. 5. 164. 2 Ken. 397. Beal, Ex parte 1868 Law Rep. 3 Q. B. 387 . . 281, 400, 483, 484, 9 Best & S. 395. 493. 37 L, J. N. s. Q. B. 161. 18 L. T. N. s. 285. 16 W. R. 852. Beckford v. Hood .... 1798 7 T. R. 620 278, 283, 474. Bell V. Locke 1840 8 Paige (N. Y.), 75 . . . 536. 0. Walker 1785 1 Bro. C. C. 451 .... 435, 442. V. Wliifcehead . . . 1839 3 Jur. 68 171, 387, 415, 523, 8 L, J. N. s. Ch. 141. 524, 525, 527. Benn v. Le Clercq .... 1873 18 Int. Rev. Rec. 94 . . . 145, 206, 232. 266, 30 Leg. Int. 185. 535, 537, 597, 598, 616. Bentley v. Foster .... 1839 10 Sim. 329 221. Binns V. Woodruff . . . 1821 4 Wash. C. C. 48 . . . . 254, 255. Bishop of Hereford v. Griffin. See Hereford, Bishop of. V. Griffin. Black V. Murray .... 1870 9 Sc. Sess. Cas. 3d ser. 341 . 146, 147, 149, 151, 152, 153, 155, 212, 387, 388, 423, 426. Blackie v. Aikman . . . 1827 5 Sc. Sess. Cas. 719 . . 363. Blackwell v. Harper . . . 1740 2 Atk. 93 Barnardiston, Ch. 210. 278. Blackwood v. Brewster . . 1860 23 Sc. Sess. Cas. 2d ser. 142 378. Blunt V. Patten, in equity . 1828 2 Paine, 397 153, 205, 206, 207, 291, 410, 417, 422, 517. 153, 205, 206, 291, in law . . 1828 2 Paine, 393 400, 410, 417, 422. Bogue V. Houlston . . . 1852 5 De G. & Sm. 267 ... 16 Jur. 372. 21 L. J. N. s. Ch. 470. 144, 178, 281, 497. Bohn V. 'Bogue 1846 10 Jur. 420 387, 412, 413, 500, 523, 524. Boosey v. Davidson . . . 1849 13 Q. B. 257 ; 13 Jur. 678 . 18 L. J. N. s. Q. B. 174. 2 Monthly Law Rep. 574. 221, 278, 292. V. Fairlie .... 1877 7 Ch. D. 301 176, 200, 236, 282, 46 L. J. N. B. Ch. 726. 283, 292, 301, 400, 36 L. T. N. s. 918. 411, 561, 562, 608, 25 W. R. 745. 609, 610, 611, 634, Court of Appeal. 640. 7 Ch. D. 301, 309. 47 L. J. N. 8. Ch. 186. 37 L. T. N. s. 590. 26 W. R. 178. TABLE OP CASES. XXXVll Names of Gases. Boosey u. Jefferys (see Jef- ferys v. Boosey) V. Purday . . . Boozey v. Tolkien . . . Boucicault v. Chatterton . V. Delafield . . V. Fox. . . . V. Hart .... V. Wood . . . Bradbury v. Beeton . . . V. Dickens . . . Wyatt. . . . 1863 2 De G. J. & S. 18 ... 88 L. J. N. s. Ch. 394. 506, 518, 534. JoUie V. Jaques .... 1850 IBlatchf. 618 145, 156, 177, 202, 9 N. Y. Leg. Obs. 11. 264, 266, 266, 411, 412, 517, 621, 533, 535, 545, 546, 594. Jones V. Thome .... 1843 1 N. Y. Leg. Obs. 408 . . 101, 567. Keene v. Clarke .... 1867 5 Rob. (N. Y.) 38 . . . . 504, 512, 539, 559, 2 Abb. Pr. N. B. (N. Y.) 341. 560, 564, 565, 566, 568, 578, 577. xliv TABLE OF CASES. Names of Cases. Keene cKimball €/. Wheatlej Kelly V. Hodge . V. Hooper I/. Hutton V, Morris . V. Wymau . . - Kemble v. Eean . . , Kiernan v. Manhattan Quo tation Telegraph Co. . Kimberley v. Jennings . King V. Force .... V. Reed .... King, The, v. Clement . ». Waddington Kyle V. Jeffreys {see Jef- freys V. Kyle) . . . Lacy V. Rhys When Decided. V. Toole . . . Latour v. Bland . . Lawrence v, Cupples V. Dana V. Smith 1860 1860 1873 1839 1868 1866 1869 1829 1876 1836 1820 1804 1821 1822 1859 1864 1867 1818 1875 1869 1822 Where Reported. 16 Gray (82 Mass.), 545. 13 Monthly Law Rep. 66 9 Am. Law Reg. 33 . . 5 Pa. Law Jour. Rep. 501. 4 Phila. (Pa.) 157. 29 L. T. N. s. 387 . . 4 Jur. 21 Law Rep. 3 Ch. 703 . 37 L. J. N. s. Ch. 917. 19 L. T. N. s. 228. 16 W. R. 1182. Law Kep. 1 Eq. 697 . 35 L. J. N. s. Ch. 423. 14 L. T. N. s. 222. 14 W. R. 496. 17 W. R. 399 ... 20 L. T. N. s. 300. 6 Sim. 333 .... 50 How. Pr. (N. Y.) 194 . 6 Sim. 340 ... 2 Cranch, C. C. 208 8 Ves. 223, note . 4 Barn. & Aid. 218 1 Barn, & Cr. 26 . 3 ^acq. 611 .. . 4 Best & S. 873 . . . 10 Jur. N. 8. 612. 33 L. J. N. s. Q. B. 157. 9 L. T. Ts. a. 607. 12 W. R. 309. 15 L. T. N. s. 512 .. . 2 Stark. 382 9 U. S. Pat. Off; Gaz. 254 2 Am. L. T. R. n. s. 402 7 U. S. Pat. Off: Gaz. 81. Where Cited in this Work. 108, 119, 539, 554, 565, 566, 581, 596. 106, 121, 232, 255, 290, 335, 645, 547, 565, 666, 612, 613, 153,631, 153, 412, 423, 622, 145, 635. 186,285, 560, 561, 667, 668, 125, 126, 285, 289, 538, 539, 667-559, 567, 573,J 623, 626. 533. 415, 417, 524, 528. Jac. 471 6 Petersd. Abr. 559". 153,207,394,396, 412, 417, 418, 419, 420, 429, 517, 528, 630. 432, 534. 642. 101, 122, 210. 542. 263. 163. 163. 192. 303, 314, 323. 280, 603, 620. 311, 324, 304, 322, 153, 166, 208, 210, 104, 144, 149, 153, 157, 158, 239, 240, 256, 261, 270, 320, 838, 360, 368, 387, 401, 403, 412, 423, 436, 437, 800, 513, 528, 630. 189, 496, 618. 323, 501. 167, 206, 425. 146, 148. 155, 156, 208, 238, 241,265,. 264, 269, 322, 337, 361, 363, 394, 896, 406, 409, 425, 429, 438, 498, 514, 524, 497, 640. TABLE OP OASES. xIt Names of Cases. When Decided. Where Reported. Where Cited in this Worlt. Leader v. Purday .... 1849 7 C. B. 4 ; 6 Dow. & L. 408 12 Jur. 1091. 18 L. J. N. s. C. P. 97. 177, 249, 322. V. Strange . . . 1849 2 Car. & Kir. 1010 .... 403, 471. Lee V. Simpson .... 1847 3 C. B. 871 4Dow. &'L. 666. 11 Jur. 127. 10 L. J. N. s. C. P. 105. 403, 404, 593. Lewis V. Chapman . . . 1840 3 Beav. 133 403, 507, 508. V. FuUarton . . . 1839 2 Beav. 6 ; 3 Jur. 669 . . 153, 206, 394, 408, 8 L. J. N. s. Ch. 291. 412, 423, 434, 505, 513, 517, 523, 524, 525, 528, 629, 631. Levy V. Rutley 1871 Law Rep. 6 C. P. 523 . . 237, 238, 249, 254, 40 L. J. N. s. C. P. 244. 257, 259, 323, 464, 24 L. T. N. s. 621. 597. 624. 19 W. R. 976. Leyland v. Stewart . . . 1876 4 Ch. D. 419 46 L J. N. s. Ch. 103. 25 W. R. 225. 242, 312, 316. Little V. Gould 1852 2 Blatchf. 165 104, 159, 160, 161, On Appeal. 162, 238, 240, 241, 2 Blatchf. 362. 243, 255, 260, 320, 322, 498, SCO, 516. ...Hall 1855 18 How. 165 101, 125, 159, 160, 318, 319, 362, 545, 546. Longman v. Winchester 1809 16Ves. 269 153, 205, 417, 423, 429. Lover v. Davidson . . . 1856 1 C. B. N. 8. 182 .... 279, 323. , Low t>. Eoutledge .... 1864 33 L. J. N. s. Ch. 717 . . . 10 Jur. N. s. 922. 10 L. T. N. B. 838. 4 New Rep. 491. 12 W. R. 1069. 279, 294, 301. D.Routledge {see Rout- ledge B. Low) . . 1865 Law Rep. 1 Ch. 42 ... ■ 11 Jur. N. s. 939. 35 L. J. N. s. Ch. 114. 13 L. T. N. 8. 421. 14 W. R. 90. 279. ti. Ward 1868 Law Rep. 6 Eq. 415 .. . 144, 229, 292, 293, 37 L. J. N. 8. Ch. 841. 301, 336. 16 W. R. 1114. Lowndes v. Buncombe . . 1822 2 Coop. {temp. Cottenham) 216; IL. J. Ch. 61 . . 497. Lumley v. Wagner . . . 1852 1 De G. M. & G. 604 . . . 16 Jur. 871. 21 L. J. N. 8. Ch. 898. 542, 543. Lyon V. Knowles .... 1863 3 Best &S. 556 9 Jur. N. 8. 774. 32 L. J. N. 8. Q. B. 71. 7 L. T. N. 8. 670. 11 W. R. 266. On Appeal. 630, 632. 1864 5 Best &S. 751 10 L. T. N. 8. 876. 12 W. R. 1083. 630. xlvi TABLE OP CASES. Names of Cases. When Becided. Where Reported. Where Cited in this Work. Mack V. Fetter 1872 Law Rep. 14 Eq. 4-31 . . . 153, 156, 206, 425, 41 L. J. N. 8. Ch. 781. 535, 540. 20 W. R. 964. Macklin v. Richardson . . 1770 Amb. 694 107, 119, 656, 557, 666, 567. 153, 204, 209, 237, Maclean v. Moody . . . 1858 20'Sc. Sess. Cas. 2d ser. 1154 241, 249, 423. M'Neill u. Williams . . . 1847 llJur. 344 153, 207, 417, 430, 497, 517, 625, 533. Manley v. Owen .... 1755 Cited 4 Burr. 2329 .... 101. Manners v. Blair .... 1828 3 Bligh, N. s. 391 . . . . 64. Marsh v. Conquest . . . 1864 17 C. B. N. s. 418 . . . . 280, 304, 603, 617, 10 Jur. N. s. 989. 618, 620, 631. 33 L. J. N. s. C. P. 319. 10 L. T. N. s. 717. 12 W. R. 1006. V. Warren .... 1877 4 Am. L. T. N. s. 126 . . . 9 Chic. Leg. News, 395. 8 Pittsb. Leg. Jour. n. s. 207. 178, 266, 499. Martin v. Wright .... 1833 6 Sim. 297 286, 405, 475. Martinetti v. Maguire . . 1867 IDeadv, 216 182, 186, 540, 581, 1 Abb. U. S. 356. 595, 596, 624, 634. Marzials v. Gibbons . . . 1874 Law Rep. 9 Ch. 518 .. . 167, 237, 243, 249, 43 L. J. N. 8. Ch. 774. 261, 300, 326. 30 L. T. N. s. 666. 22 W. R. 637. Mathieson v. Harrod . . . 1868 Law Rep. 7 Eq. 270 .. . 38 L. J. N. 8. Ch. 139. 19 L. T. N. 8. 629. 17 W. R. 99. 153, 279. Matsell V. Flanigan . . . 1867 2 Abb. Pr. N. s. (N. Y.) 459 535. Matthewson v. Stockdale . 1806 12 Ves. 270 153, 205, 405, 408, 417, 423, 619. Mawman v. Tegg .... 1826 2Russ. 385 171, 322, 387, 400, 405, 412, 429. 487, 497, 500, 506; 515, 523, 524, 526, 528, 529, 530, 531, 532, Maxwell v. Hogg .... 1867 LawRep. 2Ch. 307 . . . 36 L. J. N. 8. Ch. 433. 16 L. T. N. 8. 130. 15 W. R. 467. 533, 635. 145, 280, 536. V. Somerton. . . 1874 30 L. T. N. s. 11 . . . . 22 W. R. 313. 404, 503, 506, 508. Mayhew v. Maxwell . . . 1860 1 Johns. & H. 312 . . . . 172, 173, 244, 245, 3 L. T. N. s. 466. 379. 9 W. R. 118. Metzler v. Wood .... 1878 8 Ch. D. 606 47 L. J. N. 8. Ch. 625. 535, 540. Midwinter v. Hamilton . ( 1748 10 Mor. Diet, of Dec. 8296 . House of Lords Appeal. 28, 101. V. Kincaid . ( 1751 1 Pat. App. Cas. 488 .. . 28, 102. Millar v. Donaldson . . . 1765 2 Eden, 328 27. V. Taylor .... 1769 4 Burr. 2303 1, 7, 12, 15, 20, 21, 22, 23, 24, 26, 27, 6 Petersd. Abr. 523. 28-37, 41, 59, 60, 61, 62, 64, 66, 67, 71,72,99,100,101, 107, IIB, 163, 342, 435, 448, 551. TABLE OF CASES. xlvii Names of Cases. When Decided. Where Reported. Where Cited in this Work. Miller v. MeElroy .... 1839 1 Am. Law Eeg. 198 . . . 170, 517. Millett V. SnowdeH . . . 1844 1 West. Law Jour. 240 . . 401, 403, 487, 492. Monk V. Harper .... 1837 8 Edw. Ch. (N. Y.) 109 . . 5.32, 550. Montague v. Flockton . . 1873 Law Rep. 16 Eq. 189 . . . 42 L. J. N. 8. Ch. 677. 28 L. T. N. s. 580. 21 W. R. 668. 368, 874, 542, 543. Moore ». Clarke .... 1842 9Mees.&W. 692;6Jur.648 410,478,481,492. Morris v. Ashbee .... 1868 Law Rep. 7 Eq. 34 ... 153, 207, 394, 396, 19 L. T. N. s. 550. 417, 419, 420, 503, 508, 522, 528. V. Colman .... 1812 18Ves. 437 374, 541, 542. V. KeUy 1820 1 Jac. & W. 461 .... 119, 304, 557, 566, 567. ■' 153, 207, 394, 396, V. Wright .... 1870 Law Rep. 5 Ch. 279 .. . 22 L. T. N. s. 78. 397, 417, 419, 517. 18 W. R. .327. Morton v. Copeland . . . ■1855 16 C. B. 517 ; 1 Jur. n. s. 979 24 L. J. N. s. C. P. 169. 638. Motte V. Falkner .... 1735 Cited 4 Burr. 2325 .... 2 Bro. P. C. 138. 3 Swans. 675. 26, 71, 116. Murray v. Benbow . . . 1822 6 Petersd. Abr. 558 .. . Ja(^. 474, note. 187, 540. V. Bogue .... 1852 1 Drew. 353 ; 17 Jur. 219 . 148, 153, 156, 205, 22 L. J. N. s. Ch. 457. 208, 278, 279, 394, 1 W. R. 109. 400, 403, 408, 412, 417, 423, 425, 427, 429, 447, 448, 455, 513, 521. V. Elliston .... 1822 5 Barn. & Aid. 657 ... 1 Dow. & Ry. 299. 286, 475, 556, 591. V. Heath .... 1831 1 Barn. & Ad. 804 ... . 339, 479, 538. 0. Maxwell. See Mayhew v. Max- weU. Newbery's Case .... 1774 Loffl, 775 6 Petersd. Abr. 555. 436, 438, 442. Newton v. Cowie .... 1827 4Bing.234 5 L. J. C. P. 159. 12 Moore, 457. 281, 538. Nichols V. Loder .... 1831 2 Coop. (temp. Cottenham) 217 206, 399. V. Ruggles . . . 1808 3 Day (Conn.), 145 .. . 263. Nicol V. Stockdale .... 1785 3 Swans. 687 249. Novello V, James .... 1854 5 De G. M. & 6. 876 . . . 1 Jur. N. s. 217. 24 L. J. N. s. Ch. 111. 3 W. R. 127. 225. V. Sudlow .... 1852 12C. B. 177; 16 Jur. 689 . 21 L. J. N. s. C. P. 169. 291, 403, 470, 474 Oertel v. Jacoby .... 1872 1 44How. Pr. (N. Y.)179. . 40 How. Pr. (N. Y. 10 . . 102, 287. V. Wood .... 1870 102, 287. Oliver v. Oliver .... 1861 11 C. B. N. 8. 139 ... . 8 Jur. N. 8. 512. 128, 135. xlviii TABLE OP CASES. Names of Cases. When Decided. Where Reported. Where Cited in this Work. Ollendorff t>. Black . . . 1850 4DeG. &Sra.209. . . . 14 Jur. 1080. 20 L. J. N. s. Ch. 165. 221. Osborne v. Donaldson . . 1765 2 Eden, 328 27. Osgood V. Allen .... 1872 1 Holmes, 185 145, 264, 268, 514, 7 Am. Law Rev. 568. 535. 6 Am. L. T. R. 20. 3 U. S. Pat. Off. Gaz. 124. 4 Cent. Law Jour. 282. Page V. Townsend . . . 1832 5 Sim. 395 230, 297. V. Wisden .... 1869 20 L. T. N. s. 435 . . . . 17 W. E. 483. 144, 212, 279. Paige V. Banks 1870 7 Blatchf. 152 On Appeal. 159, 238, 240, 327, 328, 329, 330, 332, 333, 498, 512. 1871 13 Wall. 608 101, 159, 238, 327, 328, 329, 330, 332, 333, 498, 512. Palin V. Gathercole . . . 1844 1 Coll. 565 128, 137. Palmer v. De Witt . . . 1868 7 Rob. (N. Y.) 530 ... 5 Abb. Pr. N. s. (N. Y.) 130. 36 How. Pr. (N. Y.) 222. General Term Appeal. 563, 565. 1870 2 Sweeny (N. Y.), 530 . . 121, 285, 289, 296, 3 Alb., Law Jour. 34. 560, 563, 565, 572, 40 How. Pr. (N. Y.) 293. 578, 577. 23 L. T. N. s. 823. Court of Appeals. 1872 47 N. Y. 532 104, 106, 107, 121, 7 Am. Rep. 480. 125, 296, 563, 564, 565, 577. V. MoDonough . . 1869 N. Y. Times, N. Y. Tribune, Aug. 12, 1869 .... 579. Parkinson v. Laselle . . . 1875 3 Sawyer, 330 2 Am. L. T. N. s. 279. 7 Cliic. Leg. News, 268. 266, 498. Parton v. Prang .... 1872 3 Cliff. 537 101, 102, 103, 104, 7 Am. Law Rev. 357. 106, 125, 126, 240, 6 Am L. T. R. 105. 545. 2 U. S. Pat. Off. Gaz. 619. People V. Ruggles .... 1811 8 Johns.Rep. (N. Y.2ded.) 225 193, 194. w. Salem .... 1870 20 Mich. 452 18. Perceval v. Phipps . . . 1813 2 Ves. & B. 19 128, 129, 133, 137. Pierpont v. Powle . . . 1846 2 Woodb. & M. 28 . . . . 255, 261, 332, 496, 498, 531. Pike V. Nicholas .... 1869 Law Rep. 5 Ch. 251 .. . 153, 156, 205, 208, 38L. J. N. s.Ch. 529. 394, 396, 397, 400, 20 L. T. N. s. 906. 408, 412, 417, 419, 17 W. R. 842. 423, 425, 427, 429, On Appeal. 480, 431, 432, 513, Law Rep. 5 Ch. 251. 525, 526, 528, 530, 39 L. J. N. 8. Ch. 435. 538, 584, 585. 18 W. R. 321. Planch^ t>. Braham . . . 1837 8 Car. & P. 68 380, 522, 592, 597, On Appeal. 598, 599, 632, 633, 4 Bing. N. C. 17. 684, 640. 3 Hodges, 288. IJur. 828; 5 Scott, 242. TABLE OP CASES. xlix Names of Cases. When Decided. Where Reported. Where Cited in this Work. Planche v. Colburn . . . 1831 6 Car. & P. 68 On Appeal. 8 Bing. 14. 1 Moore & S'c. 51. 380. Piatt w. Button . . . . 1815 19 Ves. 447 Coop. {temp. Eldon) 303. 176, 508. V. Walter 1867 17 L. T. N. s. 157 . . . . 169, 174, 280. Pope V. Curl 1741 2Atk. 342 128, 133, 136, 136. Poplett V. Stockdale . . . 1825 Ryan & M. 337 2 Car. & P. 198. 186, 378, 379. Power V. Walker .... 1814 3Maule&S. 7; 4 Camp. 8. 302, 303, 304, 309, 310,311,318. Priestley's Case .... . Cited 2 Meriv. 437 . . . . 114, 187. Prince Albert v. Strange. See Albert, Prince, v. Strange. Prince, In re. See Graves, Ex parte. Prowett V. Mortimer . . . 1856 2 Jur. N. 8. 414 635. Pulte V. Derby .... 1852 5 McLean, 328 102, 238, 239, 260, 264, 269, 322, 327, 338. 355-360, 363, 364, 365, 367, 368, 500, 501, 543, 545, 646. Queensbury, Duke of, o. Shebbeare 1758 2 Eden, 329 13, 101, 103, 105, 107, 127, 342. Reade v. Bentley .... 1857 3 Kay & J. 271 ...... 361, 352, 364, 365, 367, 368, 371, 543. V. Bentley .... 1858 4 Kay & J. 656 346, 351, 353, 354, 4 Jur. N. s. 82. 355, 366, 359, 364, 27 L. J. N. s. Ch. 254. 365, 367, 368, 371, 6 W. R. 240. 543. V. Conquest . . . 1861 9 C. B. N. s. 755 .... 101, 400, 467, 458, 7 Jur. N. s. 265. 465, 475. 30 L. J. N. 8. C. P. 209. 3 L. T. N. 8. 888. 9 W. B. 434. V. Conquest . . . 1862 11 C. B. N. s. 479 . . . . 400, 403, 457, 458, 8 Jur. N. 8. 764. 460, 461, 465, 597, 31 L. J. N. 8. C. P. 163. 610, 632, 634, 638. 6L. T.N. 8.677. 10 W. R. 271. V. Lacy 1861 1 Johns. & H. 524 . . . . 401, 403, 443, 455, 7 Jur. N. 8. 463. 456, 460, 461, 638. 30 L. J. N. 8. Ch. 655. 4 L. T. N. 8. 354. 9 W. R. 531. Eeed v. Carusi 1845 Tan. Dec. 72 176, 199, 206, 399, 8 Law Reporter, 410. 411, 492, 493, 495, 499. Bees V. Peltzer 1874 76111.475 2 Cent. Law Jour. 663. 7Chic. Leg. News, 345, 420. 1 N. Y. Weekly Dig. 129. 102, 153, 290. TABLE OP CASES. Names of Cases, When Decided . Where Reported. Where Cired ia this Work. Rennet v. Thompson Bicliardson v. Gilbert V. Miller . . Roberts v. Myers . . . Rock v. Lazarus . . . Rogers v. Jewett . . . Rooney v. Kelly . . . Roper V. Streater Rossiter v. Hall . . . . Routlcdge V. Low [see Low V. Uoutledge) . . . . . Bowortli V. Wilkes . . . Rundell v. Murray . .' . Russell V. Bryant .... V. Smith, in equity . in law . . Saunders v. Smith . . . Sayre f. Moore . Scott V. Stanford Scoville V. Toland . Seeley v. Fisher Shelley r. Ross . . . Shepherd i. Conquest Sheriff v. Coates Shook V. Daly . 1851 1877 1860 1872 1858 1861 1672 1866 1868 1807 1821 18 i9 1816 1848 1838 1785 1867 1818 1841 1871 1856 1830 1875 Cited 2 Bro. C. C. 81 . . 1 Sim. N. s. 336 ... 15 Jur. 389. 20 L. J. N. s. Ch. 553. 3 L: &, Eq. Reporter, 614 12 U. S. Pat. Off. Gaz. 3. 13 Monthly Law Rep. 396 Law Rep. 15 Eq. 104 . . 42 L. J. N. s. Ch. 105. 27 L. T. N. s. 744. 21 W. R. 215. 12 Monthly Law Rep. 339 14 Ir. Law Rep. N. s. 158 Skin. 234 ; 1 Mod. 257 Bac. Ahr. Prerog. F. 5. 4 Burr. 2316. 5 Blatuhf. 362 .. . Law Rep. 3 H. L. 100 37 L, J. N. s. Ch. 454. 18 L. T. N. s. 874. 16 W. R. 1081. 1 Camp. 94 ... . 6 Petersd. Abr. 652. Jac. 811 8 C. B. 836 ; 14 Jur. 201 19 L. J. N. s. C. P. 33; 15 Sim. 181 15 L. J. N. s. Ch. 340. 12 Q. B. 217 ; 12 Jur. 723 17 L. J. N. s. Q. B. 225. 3 Mv. & Cr. 711 . . . . 2 Jur. 491, 536. 7 L. J. N. s. Ch. 227. I Kast, 361, note , , , , Law Rep. 3 Kq. 718 ,. , 36 r,. J. N. s. Ch. 729. 16 L T. N. s. 51. 15 W. R. 757. 6 West. Law Jour. 84 . . II Sim. 581 10 L.J. N. s. Ch. 274. Law Rep. 6 C. P. 631, note, n C. B. 427; 2Jur. N. s.236 25 L. J. K. s. C. P. 127. 1 Russ. & My. 159 . . . 49 How. Pr. (N. Y.) 366 . 1 N. Y, Weekly Dig. 198. 327. 171, 246. 178, 187, 210, 410. 254, 257, 285, 334, 554, 682, 612, 613, 61.5, 617, 623. 281, 403. 488, 492. 101, 158, 342, 375, 412, 451, 474, 488, 613. 63, 163. 180, 265, 410, 493. 86, 227, 228, 229, 292, 294, 298, 336. 144, 206. 387, 401, 402, 405, 408, 410, 412, 465, 474, 481, 492, 153, 156, 158, 278, 302, .304, 328, 497, 601, 602, 504, 607, 508, 692, 628, 629, 630, 600, 628, 280, 466, 591, 692, 599, 603, 628, 629, 159, 405, 496, 497, 501, 502, 604, 506. 405, 407. 153, 204, 386, 388, 394, 398, 401, 406, 408,412, 417,419, 423, 616, 628, 631, 142, MS, 178, 211, 198, 377, 539, 640. 2.38, 464, 2,36, 247, 249, 254, 257, 259, .303, 597, 617,618,024, 474, 523, 527, 186, 640, 681, 582, 596, TABLE OP CASES. ll Names of Cases. When Decided. Shook V. NeuendorfE . V. llankiu . . u. Rankin . . Siebert's Case . Sims V. Marrjat Smith V. Chatto V. Johnson . I.. Johnson . i;. London & South- western Railway Co Snowden v. Noah . . . . Soutliey V. Sherwood . . Spiers v. Brown Spottiswoode v. Clarke Stannard v. Harrison V. Lee . . State V. Chandler . . . Stationers' Co. v. Caman V. Lee V. Parker . V. Partridge V. Seymour V. Wright . Stevens v. Benning . . . 1877 1876 1875 18.56 1851 1874 1859 1863 1854 1825 1817 1858 1846 1871 1870 1871 1837 1775 1681 1713 1677 1681 1854 Where Reported. 11 Daily Reg. (N. Y.) 985 . 6 Biss. 477 8 Chic. Leg. News, 345. 3 Cent. Law Jour. 210 . 7 Op. Atty.-Gen. 656 . 17 Q. B. 281 .... 20 L. J. N. s. Q. B. 454. 31 L. T. N. s. 775 . . 23 \V. R. 290. 4 Blatehf. 252 4Gifl:. 632; 9Jur. N.s. 1223 33 L. J. N. s. Ch. 137. 9 L. T N. s. 437. 3 New Rep. 108. 12 W. R. 122. 1 Kay, 408 ... . Ilopk. Ch. (N. Y.) 396 2 Meriv. 435 .... 6 W. R. 352; 31 L. T. R. 16 2 Phillips, 154; lOJur. 1043 24 L. T. N. 8. 570 . . . . 19 W. R. 811. 23 L. T. N. 8. 306 . . . . On Appeal. Law Rep. 6 Cli. 346 .. . 40 L. J. N. 8. Ch. 489. 24 L. T. N. 8. 459. 19 W R 615. 2Harring. (Del.) 553. . . 2 W. Bl. 1004 2 Show. 258 2 Bro. P. C. 137. Bac. Abr. Prerog. F. 5. Skin 233 10 Mod. 105 ; 4 Burr. 2102 . Bac Abr. Prerog. P. 5. 2 Bro. P, C. 137. 1 Mod. 256; 4 Burr. 2316 . Bac. Abr. Prerog F. 5. Skin. 284 ; 4 Burr. 2328 . . 2 Bro. P. C. 137. IKay &J. 168;3W.R. 131 Where Cited in thle Work. 121, 296, 577, 578, 579. ' 158, 232, 683, 584, 613, 614, 634. 15«, 232, 517, 561, 598, 613, 255. 322, 323, 342, 500- 451, 581, 597, 898, 615, 632, 451, 516, 585, 597, 614, 615. 387, 388, 391, 401, 405, 412, 510, 628, 534. 514, 517. 172, 244, 245, 379. 532. 636. 10-5, 113, 115, 540, 641. 16.3, 1.56, 394, 397, 403, 408, . 427, 429, ■ 521. 496, 497, ' 519, 525, i 540. 174, 182, , 205, 208, , 398, 400, , 42S, 425, , 431, 513, , 498, 518,- 533, 636, ,254. 174, 254. 153, 174, 254, 279, 281, 482. 194. 63. 63. 63. 63. 64. 63. 63. 322, 345, 346, 347, 848, 349, 351, 364, 365, 866, 367, 543. lii TABLE OP CASES. Names of Cases. Stevens v. Benning V. Cady . u. Gladding V. Gladding V. Wildy . Stewart v. Black . Stiff V. Cassell . . When Decided. Stockdale v. Onwliyn . . Storace v. Longman . . . Story V. Derby .... Story's Executors <^. Hol- combe Stowe V. Thomas . Strahan v. Graham Struve V. Schwedler Sweet V. Benning . V. Cater V. Lee V. Maugham V. Shaw . . Talcott V. Moore . . Taylor v. Pillow . . Thompson v. Stanhope 1855 1852 1854 1856 1850 1846 1856 1826 1788 1846 1847 1853 1867 1868 1857 1855 1841 1841 1840 1839 1875 1869 1774 Where Reported. On Appeal. 6 De G. M. & G. 223 . 3 Eq. Rep. 475. 1 Jur. N. s. 74. 24 L. J. N. s. Ch. 153. 3 W. R. 149. Where Cited in this Work. 322, 345, 346, 349, 351, 354, 364, 365, 866, 543. 14 How. 528 153, 318, 324, 325, 326, 838. 17 How. 447 102, 153, 324, 325, 480, 495, 531, 533, 548, 550, 551. 2 Curtis, 608 533. 19 L. J. If. B. Ch. 190 . . 249, 278, 412, 517, 524, 528, 529. 9 Sc. Sess. Cas. 2d ser. 1026 379, 476. 2 Jur. N. 8. 348 541. 2 Car. & P. 163. 7 Dow. & Ry. 625. 4 L. J. K. B. 122. 5 Barn. & Cr. 173 ... . 185, 186. 2 Camp. 27, note o . . . 142, 149, 176. 11 East, 244, note. 4 McLean, 160 513, 514. 4 McLean, 306 153, 158, 387, 388, 5 West. Law Jour. 145. 401, 402, 412, 415, 423, 427, 4.34, 437, 438-440, 441, 442, 445, 513, 514, 515, 524, 528. 2 Wall. Jr. 547 102, 449, 450, 454, 2 Am. Law Reg. 210. 455, 456. 16L. T. N. s. 87 .... 172, 173, 244, 247, 15 W. R. 487. 317, 323, 379, 381, On Appeal. 485, 501, 503, 508, 17 L. T. N. s. 457. 543. 4 Blatchf. 23 264. 16 C. B. 459 158, 159, 171, 244, 3 Am. Law Reg. 684. 245, 258, 260, 280, 1 Jur. N. s. 543. 412, 414. 24 L. J. N. s. C. P. 175. 3 W. R. 519. 11 Sim. 572; 5 Jur. 68 . . 148, 342, 343, 347, 348, 363, 365, 367, 368, 412, 487, 497, 500, 523, 543. 3 Man. & Gr. 452 ... . 381. 6 Jur. 1134. 4 Scott, N. R. 77. 11 Sim. 51; 4 Jur. 479 . . 159, 171, 249, 412, 487, 497, 513, 522. 3 Jur. 217 159, 239, 248, 249, 8 L. J. N. s. Ch. 216. 322, 413, 487, 497, 500. 13 N. Y. Supreme Ct. 106 . 540, 545. 1 N. Y. Weekly Dig. 485. Law Rep. 7 Eq. 418 .. . 338, 339, 373. Amb. 737 103, 105, 127, 128, TABLE OP CASES. liii Names of Cages. When Decided- Where Reported. Where Cited in this Work. Thompson v. Symonds Tichborne v. Mostyn Tinsley v. Lacy . . Tipping V. Clarke . Tompkins b. DufF . V. Eankin Tonson v. Collins . u. Walker V. Walker Toole V. Young Trusler v. Murray . Turner v. Kobinson United States v. Tanner . TJniyersities of Oxford & Cambridge r. Richardson University of Cambridge v. Bryer Updegraph v. Common- wealth Walford v. Johnston . Wall V. Gordon . . Wallack v. Daly . . Wallenstein v. Herbert Ward V. Beeton Warne v. Routledge Walthoe v. Walker Webb V. Powers . 1792 1868 1863 1843 1878 1876 1761 1739 1752 1874 1789 1860 1854 1802 1812 1824 1846 1872 1875 1867 1874 1874 1736 1847 14, 5 T. R. 41 .... Law Rep. 7 Eq. 55, note 1 Hem. & M. 747 . 32 L. J. N. B. Ch. 535. 2 New Rep. 438. 11 W. R. 876. 2 Hare, 38S . . . N. Y. Tribune, Mar. 1 1878 ..... 13 Daily Reg. {N. Y.) 421 493. 3 Cent. Law Jour. 443 1 W. Bl. 301, 321 . . Cited 4 Burr. 2325 . 2 Bro. P. C. 676. 3 Swans. 672 . . . . Law Rep. 9 Q. B. 523 43 L. J. N. s. Q. B. 170. 30 L. T. N. s. 599. 23 W. R. 694. 1 East, 362, note . . 10 Ir. Ch. 121 .. . On Appeal. 10 Jr. Ch. 510. 6 McLean, 128 .. . 6 Ves. 689 .... 16 East, 317 ... 2 Serg. & R. (Pa.) 394 9 Sc. Sess. Cas. 2d ser. 1160, note 12Abb. Pr. N. 8. (N. Y.)349 1 N. Y. Weekly Dig. 198 . 15 L. T. N. s. 364 . . . . On Appeal. 16 L. T. N. s. 453. 15 W. R. 838. Law Rep. 19 Eq. 207 . . . 23 W. R. 533. Law Rep. 18 Eq. 497 . . . 43 L. J. N. s. Ch. 604. 30 L. T. N. 8. 857. 22 W. R. 750. Cited 4 Burr. 2325 . . . 2 Bro. P. C. 138. 3 Swans. 676. 2 Woodb. & M. 497 . . . 281,474,481. 163. 286, 412, 415, 443, 445, 455, 456, 458, 461, 475, 504, 506, 522, 524, 534. 102, 534, 538, 539. 580, 597. 585, 614. 16, 22, 27, 48, 61, 72, 99, 278. 26, 71, 116. 26, 71, 116, 146, 148, 149, 435. 456, 458, 460, 461, 465, 697. 153, 407. 101, 102, 104, 106, 107, 108, 109, 115, 119, 120, 178, 286, 288, 410, 500, 538, 565. 128. 65. 278. 194. 153. 102, 292, 296. 582. 249, 251, 600, 624. 374, 535. 541, 542. 365, 367, 368-371, 374, 541, 542, 543. 6, 71, 116. 153, 156, 208, 321, 408, 409, 414, 423, 427, 437, 513, 523, 525, 526, 527, 530. liv TABLE OP CASES. Names of Cases. When Decided. Where Reported. Where Cited in this Work. Webb V. Rose 1732 Cited 4 Burr. 2330 .... 101, 107. Webster v. Dillon .... 1857 3 Jur. N. 8. 432 374, 543. West V. Francis .... 1822 5 Barn. & Aid. 737 ... 403, 410, 478, 480, 1 Dow. & Ky. 400. 481, 492. Wetmore v. Scovell . . . 1842 3 Edw. Ch. (N. Y.) 515 . . 128, 133. Wheaton v. Peters . . . 1834 8 Pet. 591 1, 32, 43^8, 49, 53, 102, 117, 120, 159, 161, 261, 262, 263, 266, 267, 268, 501. White V. Geroch .... 1819 2 Barn. & Aid. 298 . . . 1 Chit. 24. 142, 144, 176, 290. Wliittingham v. Wooler 1817 2 Swans. 428 387, 438, 525. Widmer v. Greene . . . 1878 14 Daily Reg. (N. Y.) 529 . 682. Wilkius V. Aikin .... 1810 17 Ves. 422 144, 153, 178, 281, 387, 391, 398, 412, 496, 497, 533. Willis V. Tibbals .... 1871 1 Jones & Sp. (33 N. Y. Su- perior Ct. ) 220 . . . . 372, 546. Wilson V. Luke . . . 1875 1 Victorian Law Rep. 127 . 519. Wolcott V. Walker . . 1802 7 Ves. 1 115, 183, 497, 540. Wood K.'Abbott . . 1866 6 Blatchf. 325 180, 492, 493. V. Boosey .... 1867 Law Rep. 2 Q. B. 340 . . 176, 200, 206, 236, 7 Best & S. 869. 279, 282, 292, 301, 36 L. J. N. s. Q. B. 103. 411. 17 L. T. N. s. 530. 15 W. R. 309. On Appeal. 1868 Law Rep. 3 Q. B. 223. 9 Best & S. 175. 37 L. J. N. s. Q. B. 84. 18 L.T.N, s. 105. 16 W. R. 485. V. Chart ... 1870 Law Rep. 10 Eq. 193 . . . 39 L. J. N. 8. Ch. 641. 22 L. T. N. s. 432. 18 W. R. 822. 218, 448. Woolsey v. Judd .... 1855 4 Duer (N. Y.), 379 .. . 112, 12-5, 128, 129, 11 How. Pr. (N. Y.) 49. 131, 133, 137, 138, 545. Wright V. Tallis .... 1845 1 C. B. 893 ; 9 Jur. 946 . . 14 L. J. N. s. C. P. 283. 182, 197, 377, 539. Wyatt V. Barnard .... 1814 3 Ves. & B. 77 . ... 158, 171, 248, 447, 449, 451. V. Wilson .... Cited 1 Mae. & G. 46 . . . 538. THE LAW OF COPYRIGHT AND PLAYRIGHT, THE LAW OF COPYRIGHT AND PLAYRIGHT. THE ORIGIN AND NATURE OF LITERARY PROPERTr. When Anne was Queen of England, Parliament passed An Act for the Encouragement of Learning, which declared that an author should have the sole right of publishing his book for a named term of years, and prescribed penalties against piracy. Whether the origin of copyright is to be found in this legislation or in the common law ; whether the common-law right, if it existed, was taken away or abridged by the statute ; whether since 1710, when the 8 Anne, c. 19, became a law, copy- right in a published work has existed only by statute, — are questions which have divided the opinions of jurists and states- men for more than a century. For half a century after the act of Anne was passed, the chancery courts, in administering the law, did not doubt that, by the common law and indepen- dently of legislation, there was property of unlimited duration in printed books. In 1769, this principle was affirmed by the Court of King's Bench. ^ Five years later, the House of Lords, on an equal division of the judges, declared that the common-law right, after publication, had been taken away by the statute of Anne, and that authors had no rights in their published works except under that act.^ This has since been the law of Eng- land. The English statute was copied by Congress in 1790, and the construction put upon it by the House of Lords was followed by the Supreme Court of the United States in 1834.^ Some of the ablest jurists of England and America have con- 1 Millar v. Taylor, 4 Burr. 2303. « Wheaton v. Peters, 8 Pet. 591. 2 Donaldson v. Becket, 4 Burr. 2408. 1 2 THE LAW OP COPYRIGHT AND PLAYRIGHT. tended that this exposition of the law is wrong ; others have maintained that it is right. The discussion of the subject has given rise to four theories concerning the nature of copyright : — First. That intellectual productions constitute a species of property founded in natural law, recognized by the common law, and neither lost by publication nor taken away by legisla- tion. Second. That an author has, by common law, the exclusive right to control his works before, but not after, publication. Third. That this right is not lost by publication, but is destroyed by statute. Fourth. That copyright is a monopoly of limited duration, created and wholly regulated by the legislature ; and that an author has, therefore, no other title to his published works than that given by statute. The chief question to be determined is, whether copyright is a natural right of property, based on and governed by the same general principles which underlie all property ; or whether it is an artificial right, — a monopoly which has been created by the legislature, and may at any time be swept away by the same power. The true solution of this problem can be reached only by an examination of the fundamental principles on which the right of property rests. The questions to be considered are these : — I. Has an author, by the common law, a property in his intellectual productions ? II. Is such property lost by publication ? III. May it rightfully be taken from the owner by the legis- lature ? IV. Has it been taken away or abridged by statute ? All the great writers on natural law agree in placing the ori- gin of property in preoccupancy. They differ in the grounds and reasons advanced in support of this theory. Grotius and Pufendorf hold that this right is based on social compact ; that there must have been a previous implied assent, or tacit agreement, that the first occupant should become the owner. Barbeyrac, Titius, Locke, Blackstone, and others maintain that such tacit agreement is not necessary, and that the right was ORIGIN AND NATURE OP LITERARY PROPERTY. created by the act of occupancy alone. All, however, reach the same conclusion, that, in that early age, when all land was common, each person became entitled to hold to his own exclu- sive use that which he first occupied.^ This act vested in one man a right which was respected by his fellows, and gave birth to ownership. And this was the theory of the Roman juris- consults.^ Preoccupancy is first possession ; and this is given by crea- tion, by production. The creator is the first possessor of that which he creates. In labor, then, is found the origin of the right to property. Occupancy implies labor. It implied labor in the beginning ; for to take and hold possession of a part of the unoccupied land were impossible without bodily exertion. Still more was physical effort required in later times, when oc- cupancy represented distance overcome, toils endured, and dan- gers passed. Indeed, Locke, Barbeyrac, Titius, and otliers expressly hold that the principle of occupancy is based on labor.^ In commenting on the statement of Paulus, the Ro- 1 Grotius de Jure B. ac P. lib. ii. c. 2, 3 ; Pufendorf de Jure Nat. et Gent, lib. ir. c. 4, 6 ; Locke, Civil Gov. c. 5 ; 2 Bl. Com, c. 1. 2 Maine Ancient Law, c. 8. ' Barbeyr. Puf. lib. iv. c. 4, § 4, n. 4; 2B1. Com. i;. 1. Locke's theory, that labor is the origin of the right of property, is thus explained in his own language : — " Though the earth and all inferior creatures be common to all men, every man has a property in his own person ; tliis nobody has any right to but him- self. The labor of his body and the work of his hands, we may say, are properly his. Whatsoever, then, he removes out of the state tliat nature hath provided and left it in, he hath mixed his labor with and joined to it something that is his own, and thereby makes it his property. It being by him removed from the common state nature hath placed it in, it hath by this labor something annexed to it that excludes the common right of other men. For, this labor being the unquestionable property of the laborer, no man but he can have a right to what that is once joined to ; at least where there is enough, and as good, left in common for others. " Thus this law of reason makes the deer that Indian's who liath killed it ; it is allowed to be his goods who hath bestowed his labor upon it ; though, before, it was the common right of every one. And amongst those who are counted the civilized part of man- kind, who have made and multiplied positive laws to determine property, this original law of nature, for the beginning of property, in what was before common, still takes place ; and, by virtue thereof, what fish any one catches in the ocean, — that great and still remaining common of mankind, — or what ambergris any one takes up here, is, by the labor that removes it out of that common state nature left it in, made his property who takes that pains about it. And, even amongst us, the hare that any one is hunting is thought his who pursues her during the chase ; for, being a beast that is still looked upon as common and no man's private possession, whoever has employed so much labor about any of 4 THE LAW OP COPYRIGHT AND PLATRIGHT. man lawyer, that creation — which implies labor — is an original mode of acquiring property, Grotius thought that this, instead of being classed as a distinct and peculiar mode of acquisition, should be referred to that of occupancy .^ We find, then, the principle of labor expressly advanced by some of the public jurists to explain the origin of property, not denied by others, and in harmony with the theories of all. And this lias continued a fundamental principle, both in theory and practice, throughout the entire history of property. The principle is as old as property itself, that what a man creates by his own labor, out of his own materials, is his to enjoy to the exclusion of all others. It is based not only on natural right, but also on the necessities of society, being essential to the promotion of industry. Before the time of written law, Abraham maintained his right to a well because he had " digged this well ; " ^ and, more than a century later, his son Isaac successfully claimed it as his father's property.^ Even the savage claims for himself the game which he has secured by his own toil, — the fishes which he has caught, the trees which he has felled, and the acorns which he has picked up under the oak. As Locke says, " The grass my horse has bit, the turfs my servant has cut, and the ore I have digged, in any place where I have a right to them in common with others, become iny property, without the assignation or consent of anybody. The labor that was mine removing them out of that common state they were in hath fixed my property in them." * And, where the science of law has attained its highest state, there is no purer, stronger, better title to property than that acquired by production. To him belongs the harvest whose toil has produced it ; to him, the fruit who has planted the tree. This is the natural mode of acquiring property; while succession, purchase, gift, are derivative. It is not only the oldest, but the most meritorious ; because what is held by this title must have been earned by the sweat of the brow, while acqui- sition by purchase, gift, or inheritance, is not inconsistent with that kind as to find and pursue her, l De Jure B. ac P. lib. li. c. 3. has thereby removed her from the 2 Gen. xxi. 80. state of nature wherein she was com- ^ Gen. xxvi. 15, 18. mon, and hath begun a property." * Civil Gov. c. 6, § 28. Civil Gov. 0. 5. ORIGIN AND NATUEE OF LITERARY PROPERTY. 5 idleness. " The most natural claim to a thing," says Ruther- forth, " seems to arise from our having made it ; for no one appears to have so peculiar a right in it as he who has been the immediate cause of its existence." ^ Ownership, then, is created by production, and the producer becomes the owner. This principle is general, and covers all productions, — the whole field of labor. It cannot be applied to the produce of one kind of labor, and withheld from that of another. It matters not whether the labor be of the body or of the mind. The yield of both comes under the same fundamental principle of property, which recognizes no distinction between the poet and the peasant in the ownership of their productions. No theory, no explanation, no consideration, has been advanced by the great writers to account for the inviolability of property in the produce of bodily labor, which does not apply with equal force and directness to property in the fruits of intellectual in- dustry. No vital qualities have been assigned to one which are not equally inherent in the other. All the attributes and conditions marked out by Pufendorf as essential to the consti- tution of property are found in intellectual productions.^ In other words, neither in its origin nor in its essential qualities is literary property sui generis; but it is simply a division, a species, of general property. It is subject to all the funda- mental rules governing the acquisition, possession, and trans- mission of property. It is acquired by labor, succession, gift, purchase ; transmitted by sale, donation, bequest ; lost by abandonment. It may be injured, stolen, borrowed and lent, mortgaged and pawned. It may be the subject of contract, bargain, trade, fraud. Published, it may be seized by cred- itors. Disraeli says you may fill warehouses and freight ships with it.^ ' Inst, of Nat. Law, b. i. c. 3, § 11. themselves, they being analogous to 2 J)e Jure Nat. et Gent. lib. iv. the elements of matter, which are not ' " The origin of the property is in appropriated unless combined ; nor the production. As to works of imagina- ideas expressed by those words, they tion and reasoning, if not of memory, existing in the mind alone, which is the author may be said to create ; and, not capable of appropriation. The in all departments of mind, new books nature of the right of an author in his are the product of the labor, skill, and works is analogous to the rights of capital of the author. The subject of ownership in other personal property." property is the order of words in the Erie, J., Jefferys v. Boosey, 4 H. L. author's composition : not the words C. 867. " A production of the mind 6 THE LAW OF COPYRIGHT AND PLAYRIGHT. That there is an important dividing-line between property in the results of manual and in those of intellectual labor is clear. The former is corporeal ; the latter, without material substance. Literary property is not in the material which preserves the author's production, and is the means of its communication to others, but in the intellectual creation, which is composed of ideas, conceptions, sentiments, thoughts. It is in what is con- veyed by the words of the manuscript or the printed page, and not in the paper or parchment. It is in an invisible, in- tangible creation of the mind, fixed in form and communicated to others by language. Incorporeal itself, it is generally attached to the corporeal. It has been maintained that material substance is an essen- tial attribute of property, — that nothing can be the subject of ownership which is not corporeal. This is an error which has arisen from the assumption that materiality is essential to the determination of the identity of a thing. It is clear that a tiling must be capable of identification, in order to be the sub- ject of exclusive ownership. But when its identity can be determined so that individual ownership may be asserted, it matters not whether it be corporeal or incorporeal. The spirit both of natural and of artificial law is to assign an owner to every thing capable of ownership. The very meaning of the word " property " in its legal sense is " that which is peculiar or proper to any person ; that which belongs exclusively to one." The first meaning of the word from which it is derived — pro- jprius — is " one's own." Property in what is written on paper, as wholly distinct from that in the paper itself, is expressly conceded by Pufendorf; who denounces the doctrine of the Roman lawyers, that, when one man wrote any thing on the parchment of another, the writing belonged to the owner of the blank material, on the ground that " the writing is of more worth than the paper." ^ Whatever, then, having the other requisites of property, can be identified, becomes a proper subject of ownership. This is property in every essential sense in Grigsby v. Breckinridge, 2 Bush (Ky.), wliioh a production of tlie hands is the 485. producer's property." Robertson, J., i De Jure Nat. et Gent. lib. iv. c. 7, §7. ORIGIN AND NATURE OF LITERARY PROPERTY. ( attribute is found no less marked in intellectual than in manual productions. The identity and ownership of the former can be determined as easily and precisely as those of the latter. " I confess I do not know," said Mr. Justice Aston, " nor can I comprehend, any property more emphatically a man's own, nay, more incapable of being mistaken, than his literary works." ^ The absurdity of arguing that the poetry of Tennyson cannot be distinguished from that of Longfellow, or the prose of Carlyle from that of Emerson, would seem to be "sufficiently apparent. And yet the corner-stone of the theory that there can be no property in intellectual productions was laid a century ago, by an English judge, on the error that such productions, being incorporeal, are " not capable of distinguishable proprietary marks ; " and therefore cannot be the subject of property, since ownership cannot be determined.^ Indeed, so complete may be the identity of an incorporeal literary composition, that, even when it has no existence in writing or print, it may be pre- served in its entirety for ages in the memory ; passing from generation to generation, from country to country. The com- po.ser will conceive and give expression to a musical composi- tion without putting a note on paper. It is a creation, witiiout material form, in the realm of the imagination ; but so com- plete is its incorporeal, invisible form, so marked its individu- ality, so distinctly perceptible to the musical mind, that another will reproduce it " by ear," without the aid of written or printed notes. Corporeal possessions perish ; but time does not destroy or efface what is best in literature. The intellectual creations of the Romans have come to us, through twenty centuries, more completely preserved than their temples ; and, while many of their monuments of stone and brass can no longer be distin- 1 Millar v. Taylor, 4 Burr. 2345. or by printing, in any number of " The identity of a literary composi- copies, or at any period of time, it is lion," says Sir William Blaekstone, always the identical work of the autlior "consists entirely in the sentiment and which is so exhibited ; and no man (it the language ; the same conceptions, hath been thought) can have a right clothed in the same words, must neces- to exhibit it, especially for profit, with- sarily be the same composition ; and out the author's consent." 2 Com. whatever method be taken of exhibit- 406. ing that composition to the ear or the ^ Yates, J., Millar v. Taylor, 4 Burr, eye of another, by recital, by writing, 2365-2366. 8 THE LAW OP COPYEIGHT AND PLAYRIGHT. guished, the identity of their intellectual monuments, small even as the gems of Horace, remains whole. That greatest creation of ancient genius, the Iliad, has not only preserved its identity through nearly thirty centuries, but, according to Jacobs and other Greek scholars, it was recited from memory at the Greek festivals for ages before it was " imprisoned in written characters." ^ What Effect has "Publication on the Author's Rights ? It may, then, be assumed that before publication an author has, in the fruits of his intellectual labor, a property as whole and as inviolable as that which exists in material possessions ; that he has supreme control over such productions, may ex- clude others from their enjoyment, may dispose of them as he pleases. It is generally conceded that the author has this right while the work is in manuscript. But it has been argued that publication is an abandonment of the work to the public ; that as soon as published it becomes puhlici juris, and the author's 1 "With respect to the first of tliors with other works of their day: these grounds, that copyright cannot be the vigor of tlie words is unabated; the subject of property, inasmuch as it tlie other works have mostly perished, is a mental abstraction too evanescent It is true that property in the order of and fleeting to be property, and as it is words is a mental abstraction : but so a claim to ideas that cannot be identi- also are many other kinds of property ; fied, nor be sued for in trover or tres- for instance, the property in a stream pass, the answer is, that the claim is of water, which is not in any of the not to ideas, but to the order of words ; atoms of the water, but only in the and that this order has a marked iden- flow of the stream. The right to the tity and a permanent endurance. Not stream is not the less a right of prop- only are the words chosen by a supe- erty, either because it generally be- rior mind peculiar to itself, but in ordi- longs to the riparian proprietor, or nary life no two descriptions of the because the remedy for a violation of same fact will be in the same words, the right is by action on the case, in- and no two answers to your Lordships' stead of detinue or trover. The notion questions will be the same. The order -of Mr. Justice Yates, that nothing is of each man's words is as singular as property which cannot be ear-marked, his countenance; and although, if two and recovered in detinue or trover, authors composed originally with the may be true in an early stage of so- same order of words, each would have ciety, when property is in its simple a property therein, still the probability form, and the remedies for violation of sucli an occurrence is less than that of it also simple ; but is not true in a there should be two countenances that more civilized state, when the relations could not be discriminated. The per- of life and the interests arising there- manent endurance of words is obvious, from are complicated." Erie, J., Jef- by comparing the words of ancient au- ferys v. Boosey, 4 H. L. C. 868. ORIGIN ANB NATURE OP LITERARY PROPERTY. ' 9 property lost, except as far as it may be protected by statute. The effect of this theory is to deny to the author all property except that which he has in the paper on which his thoughts are written. While the manuscript is in his possession, it is his only by virtue of his property in the material ; when he parts with his paper, he loses his entire property. Others admit the existence of a property other than that in the paper, but maintain that when published it is taken from the owner by force of the statute. If by publication this species of property is lost to the owner, it must be on the principle of abandonment or of contract. No other theory has been, and no other can be, advanced. Let us, then, examine each. No principle of law is more firmly established than that there can be no abandonment of property without the consent of the owner. This is conceded by all the writers on natural law, and denied by none. " A thing is understood to be aban- doned," says Grotius, " when it is cast away ; unless it appears that it was so cast away only for a time, and with intention to reclaim it." ^ Pufendorf says : — " To make a thing completely abandoned or forsaken, two points are necessary : first, that the person refuse to own it for the future ; and, secondly, that he divest himself of the possession by leaving the thing or casting it away. If either of these conditions be wanting, the property is not vacated. Thus, if I throw a thing by, yet without intention to quit my right in it, I do not prejudice myself by that action. And, on the other hand, though I am resolved utterly to quit my title to a thing, yet, unless I actually cast it off, I am still the proprietor." ^ In his notes on the same jurist, Barbeyrac adds : — " To authorize us, then, to look upon a thing as abandoned by him to whom it belonged, because he is not in possession, we ought to have some other reasons to believe that he has renounced his personal right to it. Now, as I have observed, we may presume this in respect to those things which remain such as nature has produced them, espe- cially such as are very numerous or are of a vast extent ; though Mr. Titius does not make that distinction, and maintains that one may be master of the sea, although he be not in possession. But as for other 1 De Jure B. ao P. lib. ii. c. 4, § 4. 2 De Jure Nat. et Gent. lib. iv. c. 6, § 12. 10 THE LAW OF COPYRIGHT AND PLAYRIGHT. things, which are the fruits of human industry, and are either produced by nature, or are put into a new form, or are tamed, or are hunted out of their holes, — all this is done with great labor and contrivance, usually ; and it can't be doubted but every one would preserve his right to them till he makes an open renunciation ; and so they ought to be looked upon as his, though he does not keep them ever after, or he loses the possession by some accident, which may easily happen, and is almost unavoidable." ^ Even when goods, supposed to be lost, were found, the law, both in ancient and modern times, has jealously guarded the rights of the owner. Pufendorf cites, after ^lian, a law of the StagiriteS, which reads, a firj KareOov fif] Xdfi^ave : " Take not up what you did not lay down." ^ According to Ulpian, it was theft for a person to convert to his own use, animo lucrandi, property found, when there was no reason to believe it had been abandoned. Even title by prescription or usucaption, which grows out of long undisturbed possession, is based on the same principle ; for the consent of the owner is implied from long neglect to claim his property. To constitute abandonment, then, there must be intention ; without it, there can be no abandonment. Literary and mate- rial property are equally governed by this principle. But such intention is expressly denied by the author, who never ceases to claim his rights of ownership. In publishing his book, he maintains a vigilant watch over his property, and loudly pro- tests against its spoliation. The theory of abandonment, there- fore, must be rejected. If, then, the ownership is transferred by publication from the author to the public, it must be by agreement, express or implied. In the language of Pufendorf, " The concurrence of two wills is required, — the giver's and the receiver's." * What, then, is the compact between the author and the public? In consideration of a sum of money, the author gives to the reader the means of intellectual improvement or enjoyment contained in a book. Now, a book consists of two elements, — the cor- poreal and the incorporeal; the material, — paper, printing, binding, — and the thoughts, ideas, sentiments, conceptions, ' De Jure Nat. et Gent. lib. iv. c. 6, § 1, n. 1. if Ibid. lib. iv. c. 6, § 12. 3 Ibid. lib. iv. c. 9, § 2. ORIGIN AND NATUKE OF LITERARY PROPERTY. 11 which constitute the invisible creation of the mind. The former is simply a channel of communication, a vehicle of conveyance, for the latter. The author impliedly says to the reader : " I will grant you the perpetual privilege of using my literary production in return for a small sum of money, but on condition that you do not injure it and render it worthless, as a source of profit to me, by multiplying and circulating copies. I will provide you with a manuscript or printed copy to enable you to read and enjoy the work. That copy shall be yours to keep for ever, or to dispose of as you please ; but in the intel- lectual contents of the book you have simply a right of use in common with thousands of others. This property and the right of multiplying it I reserve to myself. It is worth twenty thousand dollars ; but I will admit you to a common use of it for one dollar." These terms are accepted by the buyer, who is willing to pay the named price for the enjoyment, instruction, or information to be derived from reading the book. He thus becomes the owner of the entire property in the material substance of the book ; and with the book, as such material substance, he may do as he pleases. But in the intellectual contents of the book, — the literary creation, — he acquires a right not of property, but of use. He is simply privileged to make of it certain uses which are implied in the contract. He is entitled to all the enjoyment, improvement, instruction, and infoi'mation to be derived from reading the book. He may lend the book to be read by another ; may sell it, or give it away, or destroy it. That particular copy is his to keep for ever. All these uses are within the terms of purchase, — are covered by the consideration passed. They do not injure the author's property, or depreciate its value. But as the author grants simply the use of his liter- ary production, reserving to himself the exclusive ownership, the buyer may not exercise any proprietary rights, or in any way interfere with the author's property. To multiply copies of the work is a violation of the contract, — a direct invasion of the author's rights, an appropriation of his property, which has no warrant in law, no justification in equity. There is no contract, express or implied, no understanding that the buyer of a copy of the book is a purchaser of the right to multiply 12 THE LAW OP COPYRIGHT AND PLAYRIGHT. copies. This right may be worth twenty thousand dollars, while the amount given for the book is but one dollar. No consideration is paid for the copyright ; and there is a principle of justice older than written law, that property can be acquired only by a valid consideration, or with the owner's consent. To say that property worth twenty thousand dollars may be acquired for one dollar, against the will of the owner, is a violation of the first principle of construing contracts. The rights which vest in the purchaser of a book have been aptly compared with those acquired by the buyer of a ticket to a place of public amusement. The latter is entitled to all the enjoyment, instruction, and information to be derived from witnessing the performance. He may, perhaps, give or sell his ticket to another, who may enjoy the same advantages in his stead. He has paid for one seat in the theatre, and he may claim the right to use it. But no one will argue that the privi- lege of using one ticket carries the right to multiply it a thou- sand-fold ; that the holder may print other tickets, and sell them for his own profit; that the right of admission vests any right of property in the theatre or the play. In this case, the ticket- holder is entitled to just what he pays for. So the buyer of a book is entitled to just what he pays for, and no more ; and nothing can be clearer than that, in paying for a copy of the book, he does not pay for the copyright. " All the knowledge which can be acquired from the contents of a book," said Mr. Justice Willes, " is free for every man's use: if it teaches mathematics, physic, husbandry; if it teaches to write in verse or prose ; if, by reading an epic poem, a man learns to make an epic poem of his own, — he is at lib- erty. . . . The book conveys knowledge, instruction, or enter-- tainment; but multiplying copies in print is a quite distinct thing from all the book communicates. . . . And there is no incongruity to reserve that right, and yet convey the free use of all the book teaches." ^ If the author should furnish the reader with a manuscript copy with the same understanding that is created by the deliv- ery of a printed one, no one would claim that the manuscript might be lawfully published without the consent of the author ; 1 Millar v. Taylor, 4 Burr. 2381. ORIGIN AND NATURE OP LITERARY PROPERTY. 13 yet the contract is the same in both cases. How, then, can the rights of the parties be changed ? As early as 1758, it was held in England that permission given to take a copy of Clar- endon's manuscript history did not carry the right to print such copy, even a century after the author's death. The court said that any use might be made of the copy except publication.^ According to Grotius, the exclusive right of using and trans- ferring property is a necessary consequence of the recognition of the right of property itself.^ It is the peculiarity of literary property that only by the multiplication of copies can it have any value to its owner ; by publication alone can the author secure the reward of his labor. Without this, his toil is with- out fruit, his property without value. Can it, then, be a sound principle of law, of ethics, of reason, that property is lost by the very act which alone gives it value ? Those who concede to intellectual productions all the essential attributes of prop- erty before publication, but insist that such property is de- stroyed by publication, say in effect to men of letters : " Every man is entitled to the fruits of his labor. You are sole owners of your productions. Your literary property is sacred, and shall continue inviolable as long as you do not use it ; but be- ware of publication, which, though the only road to reward, is a certain one to ruin. Your manuscript is yours for all pur- poses except publication. You may read it, lend it to your neighbor, lock it up in your safe, burn it ; but you must keep it from the printer." Such reasoning is a burlesque, which might be entertaining if it were confined to theory ; but reduced to practice, as it has been, it becomes grievously serious. It is a ridiculous doctrine which recognizes the existence of a species of property, and yet pronounces its only use unlaw- ful and self-destructive. If the property is recognized, a mode of use must be conceded. To say that authors have rights of property in their literary productions, and that they are lost by publication, which is their only source of value, is absurd. It is destructive of the first principles, the essence, the very no- tion, of the right of "property. " Property," says Pufendorf, 1 Duke of Queensbury v. Sheb- ^ pg Jure B. ao P. lib. ii. c. 6, beare, 2 Eden, 329. § 1. 14 THE LAW OP COPYRIGHT AND PLATRIGHT. " implies a right of excluding others from your possession, which right would be altogether insignificant, if it could not be effectually exercised ; 'twould be 'in vain for you to claim that as your own which you can by no means hinder others from sharing with you." ^ This view of the law was well expressed a century ago, by a learned English judge, when the Court of King's Bench af- firmed the perpetuity of literary property. Mr. Justice Aston said : — " It is settled and admitted, and is not now controverted, that liter- ary compositions, in their original state, and the incorporeal right of the publication of them, are the private and exclusive property of the author ; and that they may ever be retained so ; and that, if they are ravished from him before publication, trover or trespass lies. I should be glad to know, then, in such a case, where the property is admitted, how the damages ought to be estimated by a jury. Should they confine their consideration to the value of the ink and paper ? Certainly not. It would be most reasonable to consider the known character and ability of the author, and the value which his work, so taken from him, would produce by the publication and sale. And yet, what could that value be, if it was true that the instant an author pub- lished his works they were to be considered by the law as given to the public, and that his private property in them no longer existed ? The present claim is founded upon the original right to this work, as being the mental labor of the author, and that the effect and produce of the labor is his. It is a personal, incorporeal property, salable and profit- able. It has indicia certa ; for, though the sentiments and doctrine may be called ideal, yet, when the same are communicated to the sight and understanding of every man, by the medium of printing, the work becomes a distinguishable subject of property, and not totally destitute of corporeal qualities. " Now, without publication, 'tis useless to the owner, because with- out profit ; and property without the power of use and disposal is an empty sound. In that state, 'tis lost to the society in point of improve- ment, as well as to the author in point of interest. Publication, there- fore, is the necessary act and only means to render this confessed property useful to mankind and profitable to the owner. In this they are jointly concerned. Now, to construe this only and necessary act to make the work useful and profitable, to be destructive at once of 1 De Jure Nat. et Gent. lib. iv. c. 5, § 1. ORIGIN AND NATURE OF LITERARY PROPERTY. 15 the author's confessed original property, against his expressed will, seems to be quite harsh and unreasonable. . . . " But it was said at the bar, ' If a man buys a book, it is his own.' What ! is there no difference betwixt selling the property in the work and only one of the copies ? To say, ' Selling the book conveys all the right' begs the question. For, if the law protect the book, the sale does not convey away the right, from the nature of the thing, any more than the sale conveys it where the statute protects the book. The proprietor's consent is not to be carried beyond his manifest intent. Would not such a construction extend the partial disposition of the true owner beyond his plain intent and meaning? which, from the principles I have before laid down, is no more to be done in this com- pact than in the case of borrowing or hiring. Can it be conceived that, in purchasing a literary composition at a shop, the purchaser ever thought he bought the right to be the printer and seller of that specific work? The improvement, knowledge, or amusement which he can derive from the perusal is all his own ; but the right to the work, the copyright, remains in him whose industry composed it. The buyer might as truly claim the merit of the composition, by his purchase, in my opinion, as the right of multiplying the copies and reaping the profits. " The invasion of this sort of property is as much against every man's sense of it as it is against natural reason and moral rectitude. It is against the conviction of every man's own breast who attempts it. He knows it not to be his own ; he knows he injures another; and he does not do it for the sake of the public, but mala fide et animo lucrandi." ■'■ Those who contend that authors can have no property in their published works, except under the statute, lay great stress on the assumed analogy between literary productions and inventions. It is argued that the latter are clearly a monopoly, and therefore the former must be ; that inventors are entitled to no rights in the productions of their genius, except those conferred by the patent-laws ; and therefore authors have no property in their books other than that se- cured by the copyright statutes. In considering the nature of literary property, it is not material to determine whether inven- tions may or may not be the subject of property, or whether they do or do not constitute a monopoly. If they are not 1 MiUar v. Taylor, 4 Burr. 2340-2342. 16 THE LAW OP COPYRIGHT AND PLATRIGHT. analogous to literary productions, the argument from one to the other does not hold. If there be an analogy, it does not follow that, because property has not been recognized in one, it does not exist in the other. It is a question whether inven- tions are a proper subject of property. To assume that they are not, and on that assumption argue that the same is true of intellectual productions, is a shallow petitio prindpii. This fallacy has been well exposed by one of the soundest of Eng- lish lawyers. After maintaining that there is a distinction between literary productions and inventions, Sir William Blackstone says : " But supposing, after all, that there was no real distinction between literary and mechanical compositions, yet the conclusion drawn from this argument is very illogical and unjust. If it be reasonable to allow a property in a liter- ary production (and I submit it is highly so), can we argue thus ? Books and machines are of the same nature ; no prop- erty is allowed in a machine ; therefore, none should be allowed in a book. The argument would rather stand thus : Books and machines are of the same nature ; property should be allowed in books ; and, therefore, it should also be allowed in machines. But, since they are of natures very different, both arguments will fall to the ground." ^ The principles above set forth are equally applicable to works of the drama, music, sculpture, and painting. Here also the laborer is entitled to the full fruits of his labor. As reward in these cases often comes not from publication in print, but from representation or performance on the stage, or public exhibition, it is also contrary to the first principles of property that ownership should be lost by such public repre- sentation, performance, or exhibition. The producer of a drama or a musical composition, a painting or a statue, is enti- tled to its exclusive public use, whether by circulating copies or by performing or exhibiting the original. How FAB Government may Interfere with Literary Property. Assuming it to be the true doctrine, that literary property, both before and after publication, is founded on the same prin- 1 Tonson v. ColUns, 1 W. Bl. 344. ORIGIN AND NATURE OF LITERARY PROPERTY. 17 ciples, lias tlie same essential attributes, is the same in every respect, as ordinary property, it necessarily follows that it must be governed by the same fundamental rules, and protected by the same great safeguards that are thrown around all property. Whatever violates the sanctity of one violates the sanctity of the other. How far, then, may the legislature interfere with those material possessions which constitute private property ? To preserve the sanctity of property has ever been a chief function of government. Next to protecting the lives and lib- erties of the people, it is the highest. Centuries ago, it was foreseen that sovereignty itself was to be feared as the most dangerous enemy of this rigiit. As a bulwark against invasion from this source, the Magna Charta was made to declare that property should not be taken from the owner, except by the " law of the land." The same great guaranty has been sa- credly treasured through more than six centuries of English history. It has been firmly implanted in the Constitution of the United States, which declares that private property shall not be taken for public use without just compensation, and in the constitution of every State. There are, however, cases in which the government may rightly interfere with private prop- erty against the will of the owner. On the universal principle of eminent domain, recognized by all writers on jurisprudence, and grafted in the constitutional law of America, the property of the individual is subordinate to the general welfare, and may, without his consent, be taken for public uses. But even here the powers of the State are sharply defined and strictly limited; since no property can be taken except for public uses, and none without just compensation.^ These two condi- tions — public use and compensation — must always exist. Without either, the taking is unlawful. It is true that the line between what is and what is not a public use has not been clearly drawn. But the use must be open to all persons, — not one, or a few, — and it must be demanded by public necessity, convenience, or welfare. There must exist " the necessity of accomplishing some public good, which is otherwise impracti- 1 Grotius de Jure B. ac P. lib. iii. 2 Kent, Cora. '339, and the authori- c. 19, § 7 ; c. 20, § 7 ; Pufendorf de ties there cited ; Cooley, Const. Lim. Jure Nat. et Gent. lib. viii. c. 5, §§ 3, 7 ; 530, 559. 2 18 THE LAW OF COPYRIGHT AND PLATRIGHT. cable." 1 " That only can be considered " a public use, says a high authority, " where the government is supplying its own needs, or is furnishing facilities for its citizens in regard to those matters of public necessity, convenience, or welfare, which, on account of their peculiar character, and the difficulty (per- haps impossibility) of making provision for them otherwise, it is alike proper, useful, and needful for the government to provide." ^ On this principle, railroads, canals, and highways may be run through rich farms without the owner's consent ; Capitols, custom-houses, and couj-t-houses built on valuable private lots ; levees thrown up ; marshes drained ; cities supplied with pure water ; and other measures of general utility effected. The legislature may also interfere with private property to abate a nuisance, or to protect persons or property from danger or injury. Again, in the interests of society, certain restric- tions as to the succession of the ownership of property, as to the power of the owner to control it by will, may be imposed by positive law. To these principles literary property is no exception. If a nuisance, it may be abated. If harmful to society, as obscene literature is, it may be seized. If damaging to the property of others, as libellous publications may be, it may be suppressed. If needed for necessary public uses, it may be taken against the will of the owner, who must, however, be compensated. In these respects, it is subject to the same rules and conditions which govern other species of property. But the legislation which reduces the ownership of literary property from perpetuity to a term of years does not proceed on any of these principles. Such property is not claimed to be a nuisance, or detrimental to the proprietary rights of others. The docti'ine of eminent domain has never been pleaded in justification of sucli legislation. Nor can it be ; for the two vital principles of that doctrine — public use and compensation — are wanting. It is true that literature is for the geheral good of society. In a certain sense, it is for, public use ; but only in the sense in which all kinds of merchandise and wares may be said to be pro bono publico. The use made of 1 Cooley, J., People v. Salem, 20 Mich. 481. ^ Cooley, Const. Lira. 533. ORIGIN AND NATURE OF LITERARY PROPERTY. 19 books is of the same public nature as that made of grain, fuel, textile fabrics, &c. But this is wholly different from that pub- lic use which is contemplated by the doctrine -of eminent do- main. The owners of these commodities cannot rightfully be made to contribute them to the public demand, either with or without compensation, except perhaps in an extreme case not likely to arise. The case of literature is precisely analogous. There is no difference in principle between a statute which re- quires an author to surrender his works to the public at a pre- scribed time, and one which would compel the owner of the Mammoth Cave, after a term of years, to admit visitors without charge to view its subterranean wonders ; or one which would limit the ownership of mines or fields to a term of years. Again, no compensation is made for literary property appro- priated by statute. Sophistry may assert that statutory pro- tection produces an enhanced value during the term prescribed, and that this is an equivalent for the final loss of the copyright. Conceding, for the sake of the argument, what is not conceded in fact, that there is an increase in value wholly due to the statutes, this cannot be regarded, on any principle of natural or constitutional law, as taking the place of that indemnity which is a vital constituent of the doctrine of eminent domain. This must be not conditional, but absolute ; not doubtful, but certain ; not left to the future, but determined when the prop- erty is taken.i It is an established principle of the doctrine of eminent domain, that, when a part of private property is taken for public purposes, the enhanced value thus given to the re- mainder may be considered in determining the remuneration due the owner ; but this affords no analogy to justify the taking of the whole on an undetermined, doubtful, supposititious, or, perhaps, no compensation, as in the case of literary property. The conclusion, then, is inevitable, that the copyright statute which' deprives authors of property in their intellectual produc- tions after a term of years, cannot be defended on any princi- ple which sanctions the taking of private property for public uses, or which justifies the regulation of private property for the common welfare. No one will contend that the State has I 2 Kent, Com. 339 ; Cooley, Const. Lim. 559 et seq. 20 THE LAW OF COPYRIGHT AND PLAYBIGHT. any right to control proprietary rights in an unpublished work, that it may compel the autlior to publish his production for the benefit of society. And, yet, to interfere with the author's rights in a manuscript is the same in principle as to regulate his rights in a printed composition. The right of property is the same after as before publication. It is as inviolable in one case as in the other. Has the Common-law Property in Published Works been Taken Away by the Legislature ? I have endeavored to show that the ownership of literary prop- erty is perpetual by the common law, and that it cannot rightly be taken away or abridged by the legislature. It remains to be considered whether it has been so taken away or abridged. That the acts of Parliament and of Congress have been judicially con- strued to have this effect, and that this construction is the set- tled law of England and of the United States, is well known. The examination of the subject, then, involves the inquiry, whether the law has been rightly expounded by the courts. It will be necessary to consider the statute of Anne alone.^ No English or American statute since passed has by express words taken away the common-law copyright in a book ; and, in interpreting the meaning of the several acts, the courts have simply adopted the judicial construction given to the statute of Anne by the House of Lords in 1774. It is a fact which may be regarded as judicially conceded, that copyright in printed books was not created by legislation, but that it existed by the common law long before, and when the statute of Anne was passed.^ This doctrine was declared by the King's Bench in Millar v. Taylor ; ^ and it has never been judicially overruled. It was expressly approved by a majority of the judges in Donaldson v. Becket ; * and was in effect af- firmed in that case by the House of Lords, whose judgment was not, that copyright had been created by the statute of Anne, but that the common-law right had been superseded by the statutory. Tlie Parliament of Anne, therefore, in passing a law for the protection of literary property, was dealing with 1 8 Anne, c. 19. " See History of Literary Property, post, pp. 68-68. 3 4 Burr. 2303. « Ibid, 2408. ORI«IN AND NATURE OP LITERARY PROPERTY. 21 an existing, recognized right ; and the statute affords ample internal evidence that this fact was clearly known and acted on by the members.^ It is a settled principle of construction, that a statute cannot rightly be interpreted as taking away a common-law right, unless express words are used for that pur- pose, or a clear intention to that effect is apparent.^ It cannot be successfully claimed that the statute of Anne by express language destroyed the common-law right. Had this been so, the contrary construction could not have been given to the act by the courts during more than half a century after its passage, and its meaning could not have been the subject of so nauch doubt and learned discussion. The sole ground, then, on which the statute could be construed as taking away or abridging the common-law right was a clearly implied intention of Parliament to that effect. That such intention was not clearly implied is shown by the following facts : — 1. For half a century after the statute became a law, it was the uniform practice of the chancery courts to grant injunc- tions protecting the common-law property in printed booi^s in which the statutory copyright had expired.* Had there been any ground for the belief that Parliament had intended to destroy the common-law right, or any reasonable doubt as to the meaning of the statute, no injunction of this kind would have been granted.* " Every adjudication upon the act since it was passed," said Mr. Justice Willes in 1769, " is an au- thority that there never was an idea that this act had decided against the property of authors at common law." ^ 1 " The particular wording of the ''■ Sedgwick, Construction of Stat. & enacting clause is very material, as it Const. Law, 75, 342 ; Potter's Dwarris precisely adopts the identical expres- on Statutes, 185, 219. sions used in the decrees, ordinances, ^ gee jiost, pp. 70, 71. and statutes referred to ; alike speaking * " There never was a douht in the of the right of authors as a known, Court of Chancery, till a doubt was subsisting, transferable property. I am raised there from decency upon a sup- not satisfied with saying that such posed doubt in this court in the case of right may be implied from the words : Tonson and Collins [brought in 1760]. they are so express that the legislature There is not an instance. of an injunc- cannot be otherwise understood than as tion refused, till it was refused upon speaking of a known property. ' The the grounds of that doubt. The Court copy of the book,' 'the title to the of Chancery never grants injunctions, copy,' is a technical recognition of in cases of this kind, where there is the right, in the words of the act." any doubt." Lord Mansfield, Millar v. Aston, J., MUlar v. Taylor, 4 Burr. Taylor, 4 Burr. 2400. 2350. 5 Ibid. 2334. 22 THE LAW OF COPYRIGHT AND PLAYRIGBT. 2. In the three law cases, Tonson v. Collins,^ Millar?;. Tay- lor,2 and Donaldson v. Becket,^ in which the defendants sought to show that there was no copyright in printed books except under the statute, the chief ground on which this theory was based was, not that the common-law right had been taken away or abridged by the statute, but that copyright was created by the statute, and hence did not exist by the common law. This reasoning would not have been advanced, if the intention of Parliament to abridge an existing right had been clear. 3. In Millar v. Taylor, the King's Bench, on the opinion of three of its four judges, decided that the statute of Anne did not take away the common-law right. 4. Six of the twelve judges, including Lord Mansfield, in Donaldson v. Becket were of the same opinion. This evidence is conclusive that there was neither an ex- pressed nor a clearly implied intention to interfere with the common-law right. The effect which Parliament intended that the statute should have, can be satisfactorily determined by considering the pur- pose for which the act was needed, and for which it was passed. The most direct and valuable evidence on this point is afforded by the petitions which were made by booksellers to Parliament, and in answer to which the law was enacted. That of 1709, which immediately preceded the introduction of the bill, ex- pressly set forth the fact that copyright was recognized by the common law, and that a remedy was afforded by the common law for its protection. But this remedy was inadequate. What was wanted, and what was asked for, was a more effective remedy, — a speedier and more direct means of protecting literary property and punishing pirates than that afforded by the uncertain, cumbersome machinery of the common law.* 1 1 W. Bl. 301, 321. Journal of the House of Commons), but 2 4 Burr. 2303. upon the common-law remedy being 8 Ibid. 2408. inadequate, and the prpofs difficult to ^ " This act was brought in at the ascertain the damage really suffered sohcitation of authors, booksellers, and by tlie injurious multiplication of the printers, but principally of the two copies of those books which they had latter ; not from any doubt or distrust bought and published. And this ap- of a just and legal property in the pears from the case they presented to works or copyright (as appears by the the members at the time. All the sane- petition itself, p. 240, vol. xvi., of the tion they could obtain was a protection ORIGIN AND NATURE OF LITERARY PROPERTY. 23 To these appeals for additional protection for property, whose ownership was of unlimited duration, it is not likely that Parliament would respond by reducing that ownership to a short term of years, and by imposing upon authors the op- pressive tax from which they were free under the common law, of giving to public libraries nine copies of every book published. It is hardly conceivable that, under these circumstances, they would pass a measure so important as one sweeping away a long- existing right of property, without expressing such intention in the most unmistakable language. Parliament avowedly leg- islated in the interests of literature, and for the better protection of literary property. If it had been intended to destroy or abridge the existing rights of authors, it would have been mockery to entitle the statute An Act for the Encouragement of Learning, and to declare that it was designed "for the encouragement of learned men to compose and write useful books." The prayer of the petitioners was that " confiscation of counterfeit copies be one of the penalties to be inflicted on offenders." ^ Parliament was thus plainly asked to provide pen- alties against piracy, in addition to the remedies afforded by of their right, by inflicting penalties on Parliament. For by common law a the wrongdoer." Aston, J., Millar v. bookseller can recover no more costs Taylor, 4 Burr. 2350. than he can prove damage ; but it is The petition presented Deo. 12, impossible for him to prove tlie tenth, 1709, set forth, " Tliat it has been the nay, perliaps the hundredth, part of constant usage for the writers of books the damage he suffers ; because a to sell their copies to booksellers or thousand counterfeit copies may be printers, to the end they migl)t hold dispersed into as many different hands those copies as their property, and en- all over the kingdom, and lie not able joy the profit of making and vending to prove tlie sale of ten. Besides, the impressions of them ; yet, divers per- defendant is always a pauper ; and so sons have of late invaded the proper- the plaintiff must lose his costs of ties of others, by reprinting several suit. No man of substance has been books, without the consent, and to the known to offend in this particular ; great injury, of the proprietors, even to nor will any ever appear in it. There- their utter ruin, and to the discour- fore the only remedy by the common agement of all writers in any useful law is to confine a beggar to the rules department of learning." 16 Commons' of the King's Bench or Fleet ; and Journal, 240. there he will continue the evil prac- Among the reasons given in support tice with impunity. We therefore of the application for a bill was tlie pray that confiscation of counterfeit following : " The liberty now set on copies be one of tlie penalties to be in- foot of breaking through this ancient flicted on offenders." 4 Burr. 2318. and reasonable usage is no way to be * Ibid, efiectually restrained but by an act of 24 THE LAW OP COPYRIGHT AND PLATRIGHT, the cofnmon law. They passed a law for that purpose. There is nothing in the statute, nothing in any contemporaneous record, showing that the legislature had any other purpose in view. The declaration in the statute that the author of a book, or his assign, shall have the sole right of printing it for a specified period, " and no longer," has been cited to show that Parlia- ment intended to restrict the ownership of literary property to a term of years. But the words, " and no longer," apply only to. the penalties prescribed by the statute, and cannot rightly be construed as aifecting the common-law right or remedies. The right to sue for the statutory penalties was given for a term of years, " and no longer ; " but, both during this term and after its expiration, the common-law remedies remained unimpaired. " The words, ' no longer,' " said Lord Mansfield, "add nothing to the sense, which is exactly the same whether these words are added or not." ^ If it had been intended to destroy the common-law right, and to make the statutory the only protection for literary property, not only would this purpose have been made clear beyond doubt and dispute, but the provisions of the statute would have been very different. The statutory means for pro- tection would have been at least as complete as those afforded by the common law. The ordinary remedies by injunction and by action for damages would have been expressly provided. The facts that the only remedies given were penalties, that the forfeited copies were not to be given to the injured owner, but were to be destroyed, and that the money penalty might be re- covered, not exclusively by the person aggrieved, but by a common informer, are in harmony with the construction that the statute was not designed to disturb the common-law rights and remedies. They are not reasonably consistent with the view that Parliament, in passing the statute, intended to take away the common-law right. So far was it from the intention of Parliament to interfere with the existing rights and remedies of authors, that a decla- ration was put into the statute, which, in the opinion of three 1 4 Burr. 2406. " "What the act add nothing to the sense, any more than gives witli a sanction of penalties is for they would in a will, if a testator gave a term ; and the words, ' and no longer,' for years." Willes, J., Ibid. 2333. ORIGIN AND .NATURE OF LITERARY PROPERTY. 25 of tlie four judges in Millar v. Taylor, was intended expressly to save the common-law right, and to guard against the possi- bility of the statute being construed to take away that right. Section 9 declared " that nothing in this act contained shall extend, or be construed to extend, to prejudice or confirm any right that the said universities, or any of them, or any person or persons, have, or claim to have, to the printing or reprinting any book or copy already printed or hereafter to be printed." " It has been said,'' remarked Mr. Justice Aston, " that this was inserted that the rights which the universities or others had under letters-patent might not be affected. There can be no ground for this ; for the act does not at all meddle with letters-patent, or enact a title that could either prejudice or confirm them. This proviso seems to be the effect of extraor- dinary caution that the rights of authors at common law might not be affected ; for, if it had not been inserted, I apprehend clearly, they could not have been taken away by construction, but the right and the remedy would still remain unaffected by the statute." ^ If the reasoning which has here been followed be correct, the only sound conclusions are these : — • 4 Burr. 2352. " Had there been the that of authors, or derired from them : least intention," said Lord Mansfield, no other right could possibly be prej- " to take or declare away every pre- udieed or confirmed by any expression fence of right at the common law, it in the act. The words of the saving would have been expressly enacted, and are adapted to this right : ' Book or there must have been a new preamble, copy already printed, or hereafter to totally different from that which now be printed.' They are not applicable stands. But the legislature has not left to prerogative copies. If letters-patent their meaning to be found out by loose to an author or his assigns could give conjectures. The preamble certainly any right, they might come under the proceeds upon the ground of a right of generalty of the saving. But so little property having been violated, and was such a right in the contemplation might be argued from as an allowance of the legislature, that there is not a or confirmation of such right at the word about patents in the whole act. common law. The remedy enacted Could they have given any right, it was against the violation of it, being only not worth saving ; because it never temporary, might be argued from as exceeded fourteen years." Ibid. 2406. implying there existed no right but " What," asked Mr. Justice Willes, what was secured by the act. There- " was the right to be saved, either as fore, an express saving is added, ' that to books already printed, or much more nothing in tliis act shall extend or be as to books hereafter to be printed, but construed to extend to prejudice or the common-law right ? Without this confirm any right,' &c. ; ' any right ' is proviso it might fairly have been ar- manifestly any other right than the gued, tliat there is nothing in this act term secured by the act. The act which can prejudice the property of speaks of no right whatsoever but authors in the copy." Ibid. 2334. 26 THE LAW OP COPYRIGHT AND PLAYEIGHT. Literary property, like all property, has its origin in natural law, and not in legislation ; it is, therefore, a natural and not an artificial right. It has the same general attributes, is governed by the same general principles, and is subject to the same general condi- tions, that obtain in the case of all property. Its ownership, Uke that of all property, is transferred only with the consent of the owner. It is no more lost by publication than the ownership of land is lost by a grant of the privilege of hunting, felling timber, or digging minerals, within its borders. The legislature may rightfully interfere with it, only as it may interfere with other property. In passing the statute of Anne, Parliament did not intend to destroy or prejudice the common-law rights and remedies of authors. The judicial interpretation given to that act by the House of Lords, in 1774, is contrary not only to right and jus- tice, but to the true purpose and meaning of the statute as determined by settled rules of construction. Judicial History relating to the Origin and Nature op Literary Property. A review of the judicial history of this subject will show that common-law copyright in published works was recog- nized by the English coui-ts until 1774 ; that this principle has been maintained by many of the most learned British jurists; and that the decisions which support the prevailing doctrine rest on one disputed precedent, like a pyramid on its apex. Prior to the statute of Anne, authors had a perpetual prop- erty in their works, by the common law.^ During half a century after this statute was passed, its meaning was not dis- puted ; it being generally understood that the only purpose and effect of the act was to provide a cumulative remedy against piracy. The Court of Chancery proceeded uniformly on this assumption, and granted, between 1735 and 1752, not fewer than five injunctions restraining piracy of printed books not protected by the statute.^ The injunctions were granted and 1 See History of Literary Property, Walthoe v. Walljer, Tonson v. Walker, post, pp. 68-68. cited 4 Burr. 2325 ; Tonson v. Walker, - Eyre v. Walker, Motte v. Falkner, 3 Swans. 672, ORIGIN AND NATURE OP LITERARY PROPERTY. 27 acquiesced in on the ground that the ownership of literary property was perpetual by tlie common law, and had not been taken away or abridged by the statute. These were equity decisions ; but, in speaking of their weight. Lord Mansfield said that " the judicial opinions of those eminent lawyers and great men who granted or continued injunctions, in cases after publication, not within 8 Queen Anne, uncontradicted by any book, judgment, or saying, must weigh in any question of law ; much more in a question of mere theory and speculation as to what is agreeable or repugnant to natural principles. I look upon these injunctions as equal to any final decree." i " The whole jurisdiction exercised by the Court of Chancery since 1710," said Mr. Justice Willes in 1769, " against pirates of copies, is an authority that authors had a property antecedent to which the act gives a temporary additional security." ^ In 1760, the plea was first raised in an English court of law, that the purpose and effect of the statute of Anne were to give to authors a limited monopoly in their productions ; that copy- right had been created by the statute, and existed only by vir- tue of it ; and that no author had an exclusive right to his book after publication, and consequently no remedy against piracy, except under the statute. This theory found no favor with the judges, who had not, however, the opportunity to ex- pose its unsoundness ; for the case was discovered to be one of collusion, and was therefore thrown out of court. But all of the judges are known to have favored the plaintiff.^ 1 Millar v. Taylor, 4 Burr. 2399. 2 ibid. 2323. " They considered the act," said ^ Xonson v. Collins, 1 W. Bl. 301, Lord Mansfield, " not as creating a 321. " I have been informed, from the new offence, but as giving an addi- best authority, that, so far as the court tional security to a proprietor griered ; had formed an opinion, they all in- and gave relief without regard to any clined to the plaintiff." Willes, J., of the provisions in the act, or whether Millar u. Taylor, 4 Burr. 2327. In the term was or was not expired. No 1765, doubtless in consequence of the injunction can be obtained till the legal questions raised but not decided court is satisfied that the plaintiff has in Tonson v. Collins, the Lord Chan- a clear legal right. And where, for the cellor dissolved the injunction which sake of the relief, the Court of Chan- had been granted against the publica- cery proceeds upon a ground of com- tion of a book in which the copyright mon or statute law, their judgments are had expired. Osborne i>. Donaldson, precedents of high authority in all the and Millar v. Donaldson, 2 Eden, 328. courts of "Westminster Hall." Ibid. As early as 1748, it was held in Scot- 2407. land that copyright in a published book 28 THE LAW OP COPYRIGHT AND PLATRIGHT. Soon after, the same plea was again offered in defence of piracy. The fact that this was a bold attack upon the citadel of literary property : that the work in controversy was Thom- son's Seasons ; that in the contest were the first lawyers of the English bar ; that Lord Mansfield, then in the noon of his fame, as Chief Justice of the King's Bench, presided over the trial, — make the case of Millar v. Taylor one of the most im- portant, as it is one of the most famous, in the English reports. The action was brought in 1766, and was decided by the Court of King's Bench in 1769.^ The copyright secured by the statute of Anne had expired. The direct issue was raised, whether a right of property in a published work was given by the common law. The origin and nature of literary property were discussed by the judges in the most elaborate opinions that have ever been pronounced on the subject. The questions considered were: 1. Whether intellectual productions have the attributes of property ; 2, whether the exclusive right of an author to mul- tiply copies of his book existed by the common law, and had been recognized prior to the statute of Anne ; 3, whether this right is lost by publication ; 4, whether it had been taken away or abridged by the statute of Anne. Three of the four judges — Lord Mansfield, and Justices Aston and Willes — maintained, with a degree of learning and tlioroughness that has not since been equalled in the examina- tion of this question, that literary property did exist by the common law, and that its ownership was neither lost by publi- cation nor abridged by the statute of Anne. Their opinions were founded on the general principle underlying all property, that the laborer is entitled to enjoy the fruits of his labor, whether manual or mental ; that the common-law existence of literary property was attested by the history of two centuries ; that the author's rights could not be prejudiced by publication, which was the only means of rendering his property useful or did not exist by the common law in- decided in 1773, 10 Mor. Diet, of Dec. dependently of the statute of Anne. 8307 ; Cadell v. Robertson (1804), Ibid. Mid winter v. Hamilton, 10 Mor. Diet, of Lit. Prop. App. 5 ; on ap. ( 181 1 ) 5 Pat. Dec. 8295; on ap. (Midwinter v. Kin- App. Cas. 493. caid) 1 Pat. App. Cas. 488. To the i 4 Burr. 2303. same effect are Hinton v. Donaldson, OEIGIN AND NATURE OP LITERARY PROPEETT. 29 valuable ; that the obvious intent of the legislature in framing the act of Anne was to pi-ovide a cumulative remedy against piracy, without disturbing the existing right of literary prop- erty ; and that there was nothing in the act to indicate that such was not its sole object and effect. The sound and en- lightened views expressed by Lord Mansfield may well be quoted here : — • "From premises either expressly admitted, or which- cannot and therefore never have been denied, conclusions follow, in my apprehen- sion, decisive upon all the objections raised to the property of an author in the copy of his own work, by the common law. I use the word ' copy ' in the technical sense in which that name or term has been used for ages, to signify an incorporeal right to the sole printinc and publishing of somewhat intellectual communicated by letters. It has all along been expressly admitted that by the common law an author is entitled to the copy of his own work until it has been once printed and published by his authority; and that the four cases in chancery cited for that purpose are agreeable to the common law; and the relief was properly given in consequence of the legal right. The property in the copy thus abridged is equally an incorporeal right to print a set of intellectual ideas or modes of thinking, communicated in a set of words and sentences and modes of expression. It is equally detached from the manuscript, or any other physical existence whatso- ever. . . . " No disposition, no transfer, of paper upon which the composition is written, marked, or impressed, though it gives the power to print and publish, can be construed a conveyance of the copy, without the au- thor's express consent to print and publish, much less against his will. The property of the copy thus narrowed may equally go down from generation to generation, and possibly continue for ever, though neither the author nor his representatives should have any manuscript whatso- ever of the work, — original, duplicate, or transcript. . . . "If the copy belongs to an autlior after publication, it certainly be- longed to him before. But, if it does not belong to him after, where is the common law to be found which says there is such a property before? All the metaphysical subtleties from the nature of the thing may be equally objected to the property before. It is incorporeal ; it relates to ideas detached from any physical existence. There are no indicia ; another may have had the same thoughts upon the same sub- ject, and expressed them in the same language, verbatim. At what time and by what act does the property commence ? The same string 30 THE LAW OP COPYRIGHT AND PLAYEIGHT. of questions may be asked upon the copy before publication. Is it real or personal ? Does it go to the heir or to the executor ? Being a right which can only be defended by action, is it, as a chose in action, assignable or not ? Can it be forfeited ? Can it be taken in execution ? Can it be vested in the assignees, under a commission of bankruptcy ? "The common law as to the copy before publication cannot be found in custom. Before 1732, the case of a piracy before publication never existed ; it never was put oi; supposed. There is not a syllable about it to be met with anywhere. The regulations, the ordinances, the acts of Parliament, the cases in Westminster Hall, all relate to the copy of books after publication by the authors. Since 1732, there is not a word to be traced about it, except from the four cases in chan- cery. ... " From what source, then, is the common law drawn, which is ad- mitted to be so clear in respect of the copy before publicatiou? From this argument : Because it is just that an author should reap the pecu- niary profits of his own ingenuity and labor. It is just that another should not use his name without his consent. It is fit that he should judge when to publish. It is fit he should not only choose the time, but the manner, of publication, — how many, what volume, what print. It is fit he should choose to whose care he will trust the accuracy and correctness of the impression, to whose honesty he will confide, not to foist in additions ; with other reasonings of the same effect. " I allow them sufficient to show it is agreeable to the principles of right and wrong, the fitness of things, convenience, and policy, and therefore to the common law, to protect the copy before publication. But the same reasons hold after the author has published. He can reap no pecuniary profit, if, the next moment after his work comes out, it may be pirated upon worse paper, and in worse print, and in a cheaper volume. The 8th of Queen Anne is po answer. We are considering the common law upon principles before and inde- pendent of that act. The author may not only be deprived of any profit, but lose the expense he has been at. He is no more master of the use of his own name. He has no control over the correctness of his own work. He cannot prevent additions. He cannot retract errors. He cannot amend or cancel a faulty edition. Any one may print, pirate, and perpetuate the imperfections, to the disgrace and against the will of the author ; may propagate sentiments under his name which he disapproves, repents, and is ashamed of. He can exer- cise no discretion as to the manner in which, or the persons by whom, his work shall be published. For these and many more reasons, it seems to me just and fit to protect the copy after publication. ORIGIN AND NATURE OF LITERARY PEOPEETT. 31 " All objections which hold as much to the kind of property before as to the kind of property after publication, go for nothing; they prove too much. There is no peculiar objection to the property after, except that the copy is necessarily made common after the book is once pub- lished. Does a transfer of paper upon which it is printed necessarily transfer the copy, more than the transfer of paper upon which the book is written ? The argument turns in a circle : ' The copy is made com- mon, because the law does not protect it ; and the law cannot protect it, because it is made common.' The author does not mean to make it common ; and, if the law says he ought to have the copy after publica- tion, it is a several property, easily protected, ascertained, and secured. The whole, then, must finally resolve in this question, whether it is agreeable to natural principles, liioral justice and fitness, to allow him the copy after publication as well as before. The general consent of this kingdom for ages is on the afiirmative side. The legislative au- thority has taken it for granted, and interposed penalties to protect it for a time." * After the most thorough examination of the general scope and purpose of the statute of Anne, the circumstances under which it was passed, and especially the language employed to express its meaning, the three judges in the majority agreed that to interpret the statute as creating a right for a term of years, or as destroying an existing right, was contrary to the obvious intent of the legislature, the plain meaning of the act, and the most natural and established rules of construing stat- utes. Lord Mansfield thought that it was " impossible to imply this act into an abolition of the common-law right, if it did exist; or into a declaration that no such right ever existed. . . . Had there been the least intention to take or declare away every pretence of right at the common law, it would have been expressly enacted ; and there must have been a new preamble, totally different from that which now stands." ^ Mr. Justice Yates, dissenting from the conclusions reached by his associates, argued that there could be no property in intellectual productions ; that the sole right of an author to the copy of his published works was unknown in England before the statute of Anne ; and that copyright was a limited monopoly created, and wholly regulated, by that act. 1 4 Burr. 2396-99. ^ Ibid. 2405, 2406. 32 THE LAW OP COPYRIGHT AND PLATRIGHT. ' The thoughtful student will seek in vain in the reported opinion of this judge for good reasons to support his remark- able theory. Those who are convinced by the sound reasoning of the court, and are led to the conclusions reached by it, will look upon his exposition of legal principles as wholly unsound, his reasoning as sophistry, and his statement of facts as contrary to plain history. This bad law, sophistry, and perversion of facts, were woven into a solemn judicial opinion, which is plau- sible enough to have misled many intelligent men, but which was doubtless heard with surprise by the other judges of the court. Mr. Justice Yates asserted that " nothing can be the object of property which has not a corporeal substance." ^ And yet materiality is no more essential to the right of property than is color or shape. A subject of property must be capable of iden- tification, in order that ownership may be assei'ted. This is a necessary attribute of property ; and, where it exists with the other essential qualities, it matters not whether the thing be corporeal or incorporeal. He denied that intellectual productions could be the subject of property, because they could not be identified.^ And yet he admitted the king's property in prerogative copies ; that mem- bers of the stationers' company had exercised the exclusive right of printing books ; that injunctions had been granted protecting authors from piracy ; and that the statute of Anne 14 Burr. 2361. "But the prop- the plaintiff of." Mr. Justice Thomp- erty here claimed," he continued, "Is son said, that tliis viewof the nature of all ideal : a set of ideas which hare no copyright " would hardly deserve a bounds or marks whatever, nothing serious notice, had it not been taken that is capable of a visible possession, by a distinguished judge." Wheaton nothing that can sustain any one of v. Peters, 8 Pet. 673. the qualities or incidents of property. * " There is another maxim, too," he Their whole existence is in the mind said, "concerning property, 'that alone ; incapable of any other modes nothing can be an object of property of acquisition or enjoyment than by that is not capable of distinguishable mental possession or apprehension ; proprietary marks.' . . . Now, where safe and invulnerable from their own are the indicia or distinguishing marks immateriality ; no trespass can reach of ideas ? What distinguishing marks them ; no tort, affect them ; no fraud can a man fix upon a set of intellectual or violence, diminish or damage them, ideas, so as to call himself the proprie- Yet these are the phantoms which the tor of them ? They have no ear-marks author would grasp and confine to upon them ; no tokens of a particular himself; and tliese are what the de- proprietor." 4 Burr. 2365-66. fendant is charged with having robbed ORIGIN AND NATURE OP LITERARY PROPERTY. 33 gave a monopoly in books for a limited term. Every one of these conceded facts shows the falsity of the assertion that intellectual productions are incapable of identification. Worse than useless would have been the statute securing the exclusive right of printing aliterary composition, if the ownership of such production were beyond the possibility of determination. The very admissions of Mr. Justice Yates show that the meum and tuum line can be drawn and preserved with the same ease and precision in-the case of literary productions as in that of lands or bonds. Equally fallacious is his argument, that there can be no prop- erty in intellectual productions because they are not capable of separate possession.^ The possession of any kind of property is often, and may always be, theoretical. It is only by a fiction of the law that the owner is said in many cases to be in pos- session of real property. He cannot actually and personally possess extensive lands. He may be the owner of estates in opposite parts of the world, — of fields which he never sees. The legal possession is in him ; the actual possession, with the riglit of use, may be in another. So personal property is transferred, with the right of use, to the actual possession of any person, without prejudice to the owner's title. It is the right of ownership which gives the title to legal possession. Where this right exists, it matters not whether or not the property is in the actual possession of the owner. When the property is identified and the legal title established, the law protects the rightful owner. The same is true of literary property^ This principle was conceded by Mr. Justice Yates, in the case of material possessions. " But how can an author," he asked, "after publishing a work, confine it to himself?" ^ This is 1 4 Burr. 2357, 2363, 2384, 2385. publication, he might have excluded 2 "It is not necessary, I own, that all the world from participating with the proprietor should always have the him, or knowing the sentiments it con- total actual possession in himself. A tained. But by publishing the work potential possession, a power of con- the whole was laid open ; every senti- fining it to his own enjoyment, and ex- ment in it made public for ever ; and eluding all others from partaking with the author can never recall them to him, is an object or accident of prop- himself, never more confine them to erty. But how can an author, after himself and keep them subject to his publishing a work, confine it to himself t own dominion." 4 Burr. 2363. If he had kept the manuscript from 3 34 THE LAW OF COPYRIGHT AND PLATEI6HT. equivalent to asking how the owner who has vested the use of his lands in another, or has sent his vessels and cargoes in charge of another to distant seas, can confine his property to himself. He admitted that property is acquired by labor ; but argued that the property created by mental labor is in the material manuscript, which merely preserves the results of the author's industry, and not in the intellectual production, which alone is the fruit of t!iat industry.^ He conceded that an author has an exclusive right to his production while it is in manuscript, and that it may pass from his possession into that of others ; but that no one is entitled to publish it without authority.^ The unlicensed publication of a composition cannot be any violation of property in the material manuscript, since that may be returned without injury to the author after publication ; jor publication may be from a copy, leaving the original undisturbed in the author's posses- sion. Tlie only ground ori which the author may prevent the publication of his manuscript is that of property in the incor- poreal, literary composition. But Mr. Justice Yates denied the existence of this ground, in holding that an intellectual produc- tion could not be the subject of property. He conceded that the owner might lend his manuscript to another person with the stipulation that it should not be published ; but he denied, what is tlie same in principle, that the owner might publish his manuscript with the stipulation or contract that no person, without authority, should republish it.^ He defended the right of the author before publication, on the ground that the manu- script is then in " his dominion." But, when the author has intrusted his manuscript to another, it is in his' dominion only by a fiction of law. On the same principle, the literary prop- erty in the work, after publication, continues in the dominion of the author until his title in the property' ceases. If Mr. Justice Yates intended to maintain, that manuscript, but not published, productions may be the subject of property, the fallacy was well exposed by Lord Mansfield, who forcibly pointed out that every argument against the existence of liter- 1 4 Burr. 2357. " Ibid. 2360, 2364, 2378. 3 ibid. 2364. ORIGIN AND NATURE OP LITERARY PROPERTY. 35 ary property after publication applies with equal force to the existence of such property before publication. ^ Mr. Justice Yates asserted that the act of publication is " a gift to the public," and that the " author must be deemed to intend it " as such.2 And yet the author loudly protests against the unlicensed appropriation of his work, and never ceases to assert his ownership.^ He declared that property in copies was unknown before the statute of Anne was passed. And yet the twelve sworn jury- men sitting before him had found, after careful investigation, " that before the reign of her late Majesty, Queen Anne, it was usual to purchase from authors the perpetual copyright of their books, and to assign the same from hand to hand for valuable considerations, and to make the same the subject of family settlements for the provision of wives and children." * He said that in framing the statute of Anne " the legislature had no notion of any such things as copyrights as existing for ever at common law ; but that, on the contrary, they under- stood that authors could have no right in their copies after they had made their works public, and meant to give them a security which they supposed them not to have had before." ^ And yet, as has been shown, the very persons who petitioned for that act, and who were instrumental in securing its passage, expressly informed Parliament, in written language whose meaning could not be mistaken, that authors then liad and previously had had in their published works exclusive rights, which were perpetual by the common law. Because the word " vesting " was used by Parliament, he urged that there could have been no property in books before 1 4 Burr. 2.397. law protects copyright after publica- 2 Ibid. 2363. tion, the reasoning In law is, that the ^ " With respect to the third objec- law does not so protect it, because tion, that by publication the property publication operates as a gift to the is given to the public : if it is meant as public ; and the reasoning in fact is, a fact that the author intends to give that the publication must be taken to it, it is contrary to the truth ; for the operate as a gift to the public, because proprietors of copyright have continu- after publication the law does not pro- ously claimed to keep it. Ifit is meant tect copyright." Erie, J., Jeiferys v. that the publication operates in law as Boosey, 4 H. L. C. 872. a gift to the public, the question is * 4 Burr. 2.306. begged, and the reasoning is in a circle. ^ Ibid. 2390. Per the question being, whether the 36 THE LAW OF COPYRIGHT AND PLATRIGHT. the act of Anne.^ And yet this word is found only in the title, which is not an essential part of the act ; while the word " secured " is employed in the body of the statute.^ He believed that "the property of authors must be subject to the same rule of law as the property of other men is gov- erned by." ^ And yet he offered three hours of special pleading to show that this " same rule " was not applicable to literary property. ' " The labors of an author," he said, " have certainly a right to a reward."* And yet he alone, of the four judges whose duty it was to see that that right was protected, declared the only means by which such reward is possible to be a bar to its realization. Having thus argued that the industry of authors was enti- tled to no protection from English law other than what the legislature might choose to give, and having sought to support this position by extra-judicial objections to the just rights claimed for men of letters,^ he did not hesitate to declare : " I wish as sincerely as any man that learned men may have all the encouragements and all the advantages that are consistent with the general right and good of mankind." ^ 1 4 Burr. 2389. time; disputes also might arise among ^ "The word 'vesting' in the title authors themselves, whether the works cannot he argued from as declaratory of one author were or were not the that there was no property before. The same with those of another author ; title is but once read ; and is no part or whether there were only colorable of the act. In the body, the word differences, ^- a question that would be ' secured ' is made use of." Lord liable to great uncertainties and doubts. Mansfield, ibid. 2406. So, whether those who should compile 8 Ibid. 2359. notes on a publication, and should in- 4 Ibid. 2360. sert the text, should be liable to an ac- 5 " I have before observed the dan- tion for it ; or, if the notes were good, gerous snares which this ideal property the author might refuse the publication will lay, as it carries no proprietary of them." Ibid. 2394. marks in itself, and is not hound down « Ibid. 2394. " But if the monop- to any formal stipulations. So obscure oly," he continued, " now claimed be a property, especially after the work contrary to the great laws of property, has been a long while published, might and totally unknown to the ancient and lead many booksellers into many liti- common law of England ; if the estab- gations. And, in such litigations, many lisliing of this claim will directly con- doubtful questions might arise: such tradict the legislative authority, and as, whether the author of the work did introduce a species of property con- not intend it as a gift to the public; trary to the end for which the whole whether, since that, he has not aban- system of property was established ; if doned it to the public, and at what it will tend to embroil the peace of ORIGIN AND NATURE OF LITERARY PROPERTY. 37 As Chief Justice of tlie Court of King's Bench, Lord Mans- field now pi'onounced one of the grandest judgments in Eng- lish judicial literature. It may well be given in the language of Mr. Justice Aston : " Upon the whole, I conclude, that upon every principle of reason, natural justice, morality, and com- mon law ; upon the evidence of the long-received opinion of this property appearing in ancient proceedings and in law cases ; upon the clear sense of the legislature, and the opinions of the greatest lawyers of their time in the Court of Chancery since that statute, — the right of an author to the copy of his work appears to be well founded ; and that the plaintiff is , therefore, upon this special verdict, entitled to his judgment. And I hope the learned and industrious will be permitted from henceforth not only to reap the same, but the profits of their ingenious labors, without interruptions, to the honor and advantage of themselves and their families." ^ Thus, in the tribunal over which Lord Mansfield presided, the cause of piracy suffered a signal and deserved defeat. But in 1774 the attack on literary property was renewed, in the House of Lords, in the case of Donaldson v. Becket,^ which had been brought on appeal from the Court of Chancery, where an injunction had been granted in conformity with the law as declared in Millar v. Taylor. Eleven judges were ordered to give their opinions on the same vital questions that had been exhaustively reviewed and settled, five years before, by the King's Bench. Ten were of opinion that at common law the author of an unpublished liter- ary composition had the sole right of publishing it for sale, and might bring an action against any person who published the manuscript without his consent. One dissented from this view. Eight maintained that by the common law the author's ex- clusive rights were not lost or prejudiced by publication ; in other words, that copyright in a published work existed by the common law. society with frequent contentions, — strip tlie subject of his natural right — contentions most liighly disfiguring the if these or any of these mischiefs face of literature, and highly disgusting would follow, I can never concur in to a liberal mind ; if it will hinder or establishing such a claim." suppress the advancement of learning i i Burr. 2354. and knowledge ; and, lastly, if it should 2 ibid. 2408. 38 ' THE LAW OF COPYRIGHT AND PLATRIGHT. Three believed that publication was an abandonment of the common-law property. Seven of the eleven judges expressed the opinion, that the ownership of literary property was perpet- ual by the common law. Five maintained that the statute of Anne did not destroy, abridge, or in any way prejudice the common-law property in a published work, and did not deprive the author of his com- mon-law remedies. Six contended that the common-law right, after publication, was taken away by the statute, to which alone the author must look for protection.^ Lord Mansfield, being a peer, did not deliver an opinion ; but it was well known that he firmly adhered to the enlight- ened doctrines which he had before advocated.^ Including him, the twelve judges were evenly divided in opinion as to whether the statute of Anne had abridged the author's common-law property, or left it perpetual : while nine to three believed that^ under the common law, publication was not an abandonment of the author's rights ; or, in other words, that his property was the same after as before publication. Chief among those who advised the Lords that literary prop- erty was not less inviolable than any species of property known to the law of England, was Sir William Blackstone, whose teachings will ever be a pure fountain source of knowledge for all students of English jurisprudence. 1 The questions submitted to the at common law, is it taken away by judges were as follows : — the statute of 8th Anne ? And is an 1. " Whether at common law an au- author by the said statute precluded thor of any book or literary composi- from every remedy, except on the tion had the sole right of first printing foundation of the said statute, and on and publishing the same for sale ; and the terms and conditions prescribed might bring an action against any per- thereby t " No, five ; including Lord son who printed, published, and sold Mansfield, six. Yes, six. the same, without his consent." Ten 4. " V\^hether the author of any judges, or eleven including Lord Mans- literary composition, and his assigns, field, answered yes ; and one, no. had the sole right of printing and pub- 2. "If the author had such right lishing the same in perpetuity by the originally, did the law take it away, common law ■? " Yes, seven ; with upon his printing and publishing such Lord Mansfield, eight. No, four, book or literary composition 1 and 5. " Whether this right is in any might any person afterward reprint, way impeached, restrained, or taken and sell for his own benefit, such book away by the statute 8th Anne ? " No, or literary composition, against the will ' five ; with Lord Mansfield, six. Yes, of the author f " No, eight ; including six. 4 Burr. 2408. Lord Mansfield, nine. Yes, three. ^ See ibid. 2417. 8. " If such action would have lain ORIGIN AND NATURE OF LITERARY PROPERTY. 39 Lord Camden now moved the judgment of the House, and exerted his influence on the wrong side. He declared that there was no foundation for the perpetual ownership of literary property, either in the common law or in the principles of sound policy or good sense. That his specious harangue should have turned the scale, as it is said to have done, is certainly not to the credit of the House of Lords. The absurd character of the speech is well shown by the following speci- men: — "If there be any thing in the world common to all mankind, science and learning are in their nature puhlici juris, and they ought to be as free and general as air or water. They forget their Creator, as well as their fellow-creatures, who wish to monopolize his noblest gifts and greatest benefits. Why did we enter into society at all, but to en- lighten one another's minrd, for the common welfare of the species ? Those great men, those favored mortals, those sublime spirits, who share that ray of divinity which we call genius, are intrusted by Prov- idence with the delegated power of imparting to their fellow creatures that instruction which heaven meant for universal benefit. They must not be niggards to the world, or hoard up for themselves the common stock. We know what was the punishment of him who hid his talent ; and Providence has taken care that there shall not be wanting the noblest motives and incentives for men of genius to communicate to the world those truths and discoveries which are nothing if uncom- municated. Knowledge has no value or use for the solitary owner: to be enjoyed, it must be communicated. Scire tuum nihil est, nisi te scire hoc sciat alter. Glory is the reward of science, and those who deserve it scprn all meaner views. I speak not of the scribblers for bread, who tease the press with their wretched productions : fourteen years is too long a privilege for their perishable trash. It was not for gain that Bacon, Newton, Milton, Locke, instructed and delighted the world ; it would be unworthy such men to traffic with a dirty book- seller for so much a sheet of letter-press. When the bookseller offered Milton five pounds for his Paradise Lost, he did not reject it, and commit his poem to the flames ; nor did he accept the miserable pit- tance as the reward of his labor. He knew that the real price of his work was immortality, and that posterity would pay it. Some authors are as careless about profit as others are rapacious of it ; and what a situation would the public be in, with regard to literature, if there were no means of compelling a second impressiou of a useful work to be put forth, or wait till a wife and children are to be provided for by the 40 THE LAW OF COPYRIGHT AND PLAYRIGHT. sale of an edition ! All our learning will be locked up in the hands of the Tonsons and the Lintons of the age, who will set what price upon it their avarice chooses to demand, till the public become as much their slaves as their own hackney compilers are." ^ It would seem that this extravagant speech would have moved the" peers only to disgust ; that the highest judicial tri- bunal of England, deliberating on one of the greatest questions ever brought before it, would have been guided by the pure principles which had been so forcibly expounded by the Chief Justice and the profoundest jurists of England, rather than by the fallacious theories of Judge Yates and the Sophomoric rhet- oric of Lord Camden. But it was not so. Contrary to right and reason, it declared that literary property may be lost by the only act — publication — which renders it useful ; contrary to the intention of that body, as it had been judicially inter- preted for half a century, it decided that Parliament, in legis- lating '• for the encouragement of learned men to compose and write useful books," meant to aiford such encouragement by taking from authors far more than it gave to them ; contrary to these and other considerations, it fixed in English jurispru- dence an unjust law, which has ruled the legislatures and courts of England and America for a century. It would be natural to suppose that if the House of Lords had been moved by a sincere desire to reach the truth, to ascertain what the law really was, to rest their judgment on a foundation of rock, they would have sought the opinion of that chief justice sitting in their presence whose profound knowledge of the law had given honor to English jurisprudence in every country of Europe ; whom Lord Campbell pronounced " the brightest ornament to the profession of the law that appeared in England during the last century ; "^ who, in the language of Lord Thurlow, himself a great jurist, was " a surprising man ; ninety-nine times out of a hundred, he was right in his decisions and opinions ; and, when once in a hundred times he was wrong, ninety-nine men out of a hundred would not discover it." * 1 17 Cobb. Pari. Hist. 999. 471. Lord Cliatham, long the polit- 2 4 Lives of the Chief Justices, 13. ical opponent of Lord Mansfield, com- 8 See Foss's Judges of England, paring him with those great jurists, ORIGIN AND NATURE OF LITERARY PROPERTY. 41 Nor was this mere rhetoric. For it is a matter of history that, of the many thousand judgments pronounced by him during the tliird of a century that he was chief justice of the Court of King's Bench, all but two received the unanimous approval of his associate judges ; and, what is still more remarkable, only two were reversed on appeal to a higher tribunal ; and, what is more extraordinary still, in all this time, when among the political opponents who argued causes before him were such lawyers as Dunning and Erskine, there never was a bill of exceptions tendered to his direction.' And yet among his judgments were many that have become historic. When the law was yet unsettled, he proclaimed from the English bench that the owner's title to a wreck, when no living thing had come to the shore, was superior to that claimed by the king ; that governors of English provinces must answer in English courts for wrongful acts against individuals ; that Turks, Hin- doos, men of every creed, might be sworn as witnesses in English courts, according to the forms of their own religion ; that " Slaves cannot breathe in England: if their lungs Receive our air, that moment they are free ; They touch our country and their shackles fall." Errare, mehercule, malo cum Platone quam, cum istis vera sentire. Rightly, then, did the continental lawyers place the bust of Lord Mansfield beside those of Grotius and D'Aguesseau.^ Somers and Holt, said : " I vow to Book. The first case of Milton's Par- God, I think the noble lord excels adise Lost was upon my motion. I them both in abilities." argued the second, which was solenmly 1 3 Campbell's Lives of the Chief argued by one on each side. I argued Justices (4 vols., London), 265, 266. the case of Millar against Kincaid, in 2 Probably no English judge of the the House of Lords. Many of the last century studied the subject of precedents were tried by my advice, literary property so thoroughly as The accurate and elaborate investiga- did Lord Mansfield, 'In concluding tion of the matter in this cause, and in his opinion in Millar v. Taylor, 4 the former case of Tonson and Collins, Burr. 2407, he said : " The subject at has confirmed me in what I always large is exhausted, and therefore I incUned to think, — that the Court of have not gone into it. I have had fre- Chancery did right in giving relief quent opportunities to consider of it. upon the foundation of a legal prop- I have travelled in it for many years, erty in authors, independent of the I was counsel in most of the cases entry, the term for years, and all the which had been cited from Chancery ; other provisions annexed to the secu- I have copies of all from the Register rity given by the act." 42 THE I^AW OP COPYEIGHT AND PLATRIGHT. That the peers did not seek light from this pure source, that they did not follow the safe counsel of that great teacher of law, Sir William Blackstone, is as little to their credit as the unsound and unjust law they proclaimed. And Lord Mansfield himself has been justly censured, that at this, the greatest crisis in the history of literary property, he allowed a trivial matter of etiquette to prevent him from repeating and emphasizing those unanswerable arguments on which his great judgment of five years before rested. Perhaps he did not realize that the grand structure of literary property was in danger of falling, — that his peers could be moved by the empty declamation of Lord Camden to set aside the authority of two centuries, and proclaim a doctrine condemned by the best lawyers of England. The only question decided in Donaldson v. Becket, in con- formity with the expressed opinions of a majority of the judges, was that the common-law copyright in a book after publication in print was taken away by the statute of Anne. On this point alone the House of Lords can be rightly said to have overruled the judgment in Millar v. Taylor. Two-thirds of the judges who advised the Lords, or three-fourths including Lord Mans- field, held to the doctrine that, in the absence of any statute, literary property exists by the common law, and is not lost or prejudiced by publication. There is nothing in the judgment of the House of Lords to unsettle this doctrine, or to overrule the authority of Millar v. Taylor as far as it affirmed it. On the other hand, the decision in Donaldson v. Becket, that common-law copyright in published works was taken away by the statute of Anne, necessarily implied the existence of that right. ^ The judgment rendered by the House of Lords in 1774 has continued to represent the law ; but its soundness has been questioned by very high authorities. In delivering the opinion of the full bench of the Court of Exchequer in 1851, in Boosey 1 Eeferring, in the House of Lords, ever, reversed the decree under appeal, to the judgment in Donaldson v. in accordance with the opinion given Becket, and the different opinions on the main point by the majority of expressed by the judges on the qucs- the judges ; and, upon the general tions, whether there was copyright at question of literary property at eora- commonlaw, and whether it had been mon law, no judgment whatever was taken away by the statute. Lord pronounced." Jefferys v. Boosey, 4 Brougham said: "This House, how- H. L. C. 961. ORIGIN AND NATURE OP LITERARY PROPERTY. 43 V. Jefferys, Lofd Campbell said : " The first question discussed before us was whether authors have a copyright in their works at common law. This is not essential for our determination of the present case. If it were, we are strongly inclined to agree with Lord Mansfield and the great majority of the judges, who, in* Millar v. Taylor and Donaldson v. Becket, declared them- selves to be in favor of the common-law right of authors."^ And when the sarne case came before the House of Lords, in 1854, although the consideration of this subject was not essen- tial to the determination of the issue before the house, Mr. Justice Erie delivered an elaborate argument in support of the doctrine maintained by Lord Mansfield.^ Mr. Justice Coleridge gave expression to similar views, and added : " If thei'e was one subject more than another upon which the great and varied learning of Lord Mansfield, his special familiarity with it, and the philosophical turn of his intellect, could give his judgment peculiar weight, it was this. I require no higher authority for a position which seems to me in itself reasonable and just."^ In the Scotch case of Cadell v. Robertson, decided by the Court of Session in 1804, Lord Monboddo, dissenting from the opin- ions of his colleagues, maintained that copyright existed in a published work by the common law, and was not taken away by the statute of Anne.* In the United States, the authorities have been divided not less than in England, regarding the origin and nature of literary property. Indeed, the doctrines there prevalent have ruled our courts. In 1834, it became the duty of the Supreme Court of the United States, in the case of Wheaton v. Peters, to declare the meaning of the law of 1790, and to determine the same question that had been decided by the Court of King's Bench in 1769, and by the House of Lords in 1774 ; viz., whether copy- right in a published work existed by the common law, and, if so, whether it had been taken away by statute. The court held that the law had been settled in England to the effect that, since the passing of the 8 Anne, c. 19, an author had no right in a published work excepting that secured by statute ; that there 1 6 Exch. Rep. 592. " Ibid. 903. 2 Jefferys v. Boosey, 4 H. L. C. 866-877. < 6 Fat. App. Cas. 618. 44 THE LAW OP COPYRIGHT AND PLATRIGHT. was no common law of the United States, and that the common law as to copyright had not been adopted in' Pennsylvania, in which State the cause of action before the court arose ; that, by the copyright statute of 1790, Congress did not affirm an existing right, but created one.^ ' This judgment, lilce that of the House of Lords in Donald- son V. Becket, which was followed, rests on a divided opinion of the judges. Three agreed with Mr. Justice McLean, who delivered the opinion of the court, two dissented, and one was absent. In opposing the opinion of the majority, Justices Thomp- son and Baldwin expounded the true principles governing literary property, with a clearness and force, a comprehensive grasp, that recall the great arguments on this question by Sir William Blackstone, Lord Mansfield, and Justices Aston and Willes. Tlieir opinions are among the most masterly to be found on the subject of copyright. Mr. Justice Thompson based his argument on the firm ground, that " the great prin- ciple on which the author's right rests is, that it is the fruit or production of his own labor, and that labor by the faculties of the mind may establish a right of property as well as by the faculties of the body." " Whether literary property," he added, " is sui generis, or under whatever denomination of rights it may be classed, it seems founded upon the same principle of general utility to society which is the basis of all other moral rights and obligations. Thus considered, an author's copy- right ought to be esteemed an inviolable right established in sound reason and abstract morality." ^ He then maintained that the right of an author in his published works was recog- nized and protected as property by the common law in this country ; that it was farthest from the intention of Congress, in legislating for the " encouragement of learning," to take away or abridge that right ; and that the statute could not be properly construed to have that effect. " Congress having before them," he said, " the statute of Anne, and apprised of the doubt entertained in England as to its effect upon the 1 8 Pet. 591, 654. published report of Wheaton v. Peters, " Ibid. 670, 672. The language 110, 112. quoted is taken from the separately ORIGIN AND NATURE OP LITERARY PROPERTY. 45 common-law right, if it had been intended to limit or abridge that right, some plain and expUcit provision to that effect would doubtless have been made ; and not having been made, is, to my mind, satisfactory evidence that no such effect was intended." ^ Speaking of the first copyright law passed in 1790, he said : " Protection is the avowed and real purpose for which it is passed. There is nothing here admitting the con- struction that a new right is created. The provision in no way or manner deals with it as such. It in no manner limits or withdraws from the right any protection it before had. It is a forced and unreasonable interpretation, and in violation of all the well-settled rules of construction, to consider it as restricting, limiting, or abolishing any pre-existing right." ^ ' 1 8 Pet. 696. 2 Ibid. 692. " In construing statutes," said Mr. Justice Thompson, " three points are to be regarded : the old law, the mischief, and the remedy ; and the construction should be such, if possible, to suppress the mischief and advance the remedy. 1 Bl. Com. 87 ; Bac. Abr. Stat. I. pi. 31, 32. An aflBrmalive statute does not abrogate the common law. If a thing is at common law, a statute cannot restrain it, unless it be in negative words. Plow. Com. 113 ; 2 Kent, Com. 462 ; 2 Mason, 451 ; 1 Inst. Ill, 115; 10 Mod. 118; Bac. Abr. Stat. 9. Where a statute gives a rem- edy where there was one by the com- mon law, and does not imply a negative of the common-law remedy, there will be two concurrent remedies. In such case, the statute remedy is accumula- tive. 2 Burr. 803-5 ; 2 Inst. 200 ; Com. Dig., Action upon Statute, C. " Considering the common-law right of the author established, and with these rules of construing statutes kept in view, I proceed to the consideration of the acts of Congress. "The first law was passed in the year 1790 (Story's ed. of Laws of United States, vol. i. p. 94), and ia entitled ' An Act for the encourage- ment of learning, by securing the copies of maps, charts, and books to the authors and proprietors of such copies, during the times therein men- tioned.' " The first section declares, that ' the author of any book or books already printed, being a citizen of the United States, &c., and who hath not trans- ferred the copyright to any other person, and any other person, being a citizen of the United States, &c., who hath purchased or legally acquired the copyright of such book, in order to print, reprint, publish, or vend the same, shall have the sole right and liberty of printing, reprinting, publish- ing, and vending the same, for fourteen years from the recording the title thereof in the clerk's ofiice, as hereinafter directed.' The like provision is made with respect to books or manuscripts not printed, or thereafter composed. The title and this section of the act obviously consider and treat this copy- right as property, — sometliing that is capable of being transferred ; and the right of the assignee is protected equally with that of the author; and the object of the act, and all its pro- visions, purport to be for securing the right. Protection is the avowed and real purpose for whicli it is passed. There is nothing here admitting the construction that a new right is cre- ated. The provision in no way or manner deals with it as such. It in no manner limits or withdraws from 46 THE LAW OP COPYRIGHT AND PLAYEIGHT. These doctrines were also maintained with clearness and force by Mr. Justice Baldwin. " If authors had not a right of property by the common law," he said, " or if that part of the common law has not been adopted here, it becomes a matter of serious inquiry what the public and the profession are to consider as evidence of the law, and the rules as to right and remedy by which other property is to be governed. If the judicial history of the law of copyright does not establish its existence indepen- dent of statutes in England, and if the acts of Congress passed professedly for the encouragement of learning, hy securing the copyright of authors, is, by fair construction, an abrogation of the common-law right, I am much mistaken if the opinion of the majority of the court in this case does not, in its conse- quences, open a new epoch in the history of our jurisprudence. I, for one, must look to other than the accustomed sources of information to find the common law, to new tests of its adop- tion here, and new rules of construing statutes, as well in their effect on the pre-existing law of property as the settled prin- ciples by which their provisions are interpreted. There are none more ancient or sacred than, that the common law can be altered only by act of Parliament ; that statutes and usages which derogate from its rules shall be construed strictly, and not be extended by equity beyond their words or neces- sary implication ; and that a statute which gives an addi- tional remedy, or inflicts new penalties and forfeitures for the violation of a right, leaves the injured party the option of appeal- ing to the statute or common law for redress. In the applica- tion of these principles to the acts of Congress on copyright, there can be found no one provision which either professes, or the right any protection it before had. sumes it did not intend to make any It is a forced and unreasonable inter- alteration ; for, if such was the inten- pretation, and in violation of all the tion, the legislature would hare so well-settled rules of construction, to expressed it. 11 Mod. 148; 19 Vin. consider it as restricting, limiting, or Abr. 512, Stat. E. 6, pi. 12 ; and hence abolishing any preexisting right, the rule as laid down in Plowden. If Statutes are not presumed to make a thing is at common law, a statute any alteration in the common law cannot restrain it, unless it be in nega- further or otherwise than the act tive words. It is in every sense an expressly declares. And, therefore, affirmative statute, and does not abro- where the act is general, the law pre- gate the common law." 8 Pet. 691. ORIGIN AND NATURE OP LITERARY PROPERTY. 47 by implication can be construed, to alter the common law. Tlieir titles and enactments are affirmative and remedial for the security of the right of property in authors." ^ The meaning of the first American copyright law, therefore, as construed by these jurists, was the same as that of the first English copyright law as interpreted by the Court of King's Bench in 1769 ; viz., that it did not create a right, but gave a cumulative security or protection to one already existing. It did not, therefore, abridge the ownership of literary property, perpetual under the common law. The judgment of the court, as has been seen, was based on two grounds : 1. That the common law of England did not prevail in the United States. 2. That in England it had been decided that the common-law property in published works had been taken away by statute. The first position rested on a foundation of sand, which has since been swept away. " The whole structure of our present jurisdiction," said Mr. Justice Thonipson in his dissenting opinion, " stands upon the original foundation of the common law." The doctrine is now well settled in this country, that a complete property in unpublished works is secured by the common law. This was admitted by the Supreme Court in Wheaton v. Peters. It has since been repeatedly affirmed by the same tribunal, by the Circuit Court of the United States, and by every State court in which the question has been raised.^ If the common law thus prevails in the United States with reference to unpublished pro- ductions, there is no principle, independently of the statute, by which it can be held not to prevail in the case of published works. The controlling question in Wheaton v. Peters was whether this common-law right, after publication, had been taken away' by the statute of 1790. The doctrine had been settled in England, that copyright in a published work existed by the 1 See Mr. Justice Baldwin's opinion this act shall extend to affect, preju- in the separately published report of dice, or confirm the rights which any Wheaton v. Peters, 134, 152. person may have to the printing or ^ See post, p. 101. The statute " to publishing of any book or pamphlet at promote literature " passed by the State common law, in cases not mentioned in of New York in 1786 expressly recog- this act." 2 Laws of New York (Jones nized the common-law rights of authors & Varick's ed., 1789), 320. Section 4 provided " that nothing in 48 THE LAW OP COPYRIGHT AND PLAYEIGHT. common law. Donaldson v. Becket decided simply that this right had been taken away or superseded in England by the act of Anne. But this statute did not change or affect the common law in the United States, for the obvious reason that the statute had no operation here. Whether Congress intended to take away this right, whether the statute of 1790 could rightly be construed to take it away, was an open question in this country. Had the court recognized this as the pivotal point in the case, and, after an examination of the fundamen- tal principles of literary property and the rules of statutory construction, not less thorough than that found in the opinions of the dissenting judges, had reached the conclusion, that there was no right in a published work except that secured by the statute, the judgment would still be open to criticism. But in holding that the common-law right, if it existed in this country, had been taken away by statute, the court simply followed the doubtful and disputed precedent of tlie House of Lords, without testing its soundness. The judges Ui the minority grounded their opinions on fundamental principles, wliich are not shaken by any reasoning to be found in the opinion of the Court. Tliese considerations deprive Wheaton V. Peters of much of its weight as an authority. The main question decided by the Supreme Court in 1834 has not since been brought before that tribunal ; consequently, the judgment of that year has continued to represent the law in this country. The law which for a century has denied to men of letters in England and America the full fruits of their labor has grown out of the groundless theories of one man ; and these orig- inated not with the judge, but with the advocate. As a lawyer, Joseph Yates had been retained in the first controversy that arose in an English court of law under the statute of Anne, and argued in vain to establish the theory that copyright was a monopoly.! If a decision had been reached, this plea would doubtless have received from the court a condemnation so unanimous and decided as to have destroyed all hope of its success thereafter. Unfortunately, liowever, this opportunity 1 Tonson v. Collins, 1 W. Bl. 321. ORIGIN AND NATURE OP LITERARY PROPERTY. 49 was not given to the court, and when the question was next brought before the King's Bench, Joseph Yates was one of the judges, and reiterated the same arguments on the bench that he had offered at the bar. Courts are too often the slaves of precedent. Too often do they use a foundation already prepared, without examining its strength, rather than build a new one ; too often do they follow a decision without questioning its validity. Thus, an unsound law rooted in our jurisprudence may prevail for generations. A more marked illustration of this evil can nowhere be found than in the judicial history of copyright in England and America during the past century. The fundamental principles governing literary property were never more thoroughly ex- amined than by the judges of the King's Bench in 1769. They based their judgment on a foundation of rock. That foundation was afterward rejected by the House of Lords, who selected one of sand. The wisdom of this change has since been assumed by the majority, not proved. No court has since gone back of that decision, or tested its soundness. It has ruled the courts of two nations for a century. The rock foun- dation of 1769 is hidden with sand and drift; its strength, known only to those who dig below the surface. When the British Parliament was asked (1837-42) to throw around literary property the same protection given to every other species, the reply was: "The House of Lords has declared that in published books there are no rights except what the legislature may choose to give." When the House of Lords, in 1864, sitting as the highest court known to English law, was advised to recognize the full rights of the author to the fruits of his labor, it followed the precedent of 1774.^ When the Supreme Court of the United States was urged, in 1834, to rise above precedent, and to found its judgment on the universal principles of property, the majority declared that the law of literary property had been settled since 1114:? The anomaly of the present law of copyright is apparent to many thoughtful persons.^ Literary productions are the one 1 JefFerys v, Boosey, 4 H. L. C. 815. "Literary property is the lowest in the 2 Wheaton v. Peters, 8 Pet. 591. market. It is declared by the law only 3 Tliis has been pointed out by so many years' purchase, after whicln Hood with no less truth than wit. the private right becomes common ; 4 60 THE LAW OP COPYRTGHT AND PLATRIGHT. great species of property which the law has left without that protection to'wliich it is entitled. Even to inventions a protec- tion is guaranteed by the United States which is denied to literature ; for our laws make no distinction between a native and a foreign applicant for a patent, while the works of a foreign author are laid open to piracy. The manufacturers, farmers, and manual laborers of England and the United States toil in the confidence that the fruits of their industry will be protected and shielded for their children by the same law that defends their lives and liberties. The maker of a piece of cloth, a box, a wagon, or a house, has therein a title whose duration is not limited. His property is protected because it is the product of his labor. But time and money spent in producing a work of and, in the mean time, the estate being notoriously infested with poachers, is as remarkably unprotected by game- laws. An author's winged thoughts, though laid, hatched, bred, and fed within his own domain, are less his property than is the bird of passage that of the lord of the manor on whose soil it may happen to alight. An author cannot employ an armed keeper to protect his preserves ; he cannot apply to a pinder to arrest the animals that trespass on his grounds ; nay, he cannot even call in a common consta- ble to protect his purse on the king's highway ! I have had thoughts my- self of seeking the aid of a policeman, but counsel learned in the law have dissuaded me from such- a course: there was no way of defending myself from the petty thief but by picking my own pocket ! Thus I have been com- pelled to see my own name attached to catchpenny works, none of mine, hawked about by placard-men in the street ; I, who detest the pufiSng sys- tem, have apparently been guilty of the gross forvyardness of walking the pavement by proxy for admirers, like the dog Bashaw ! I have been made, nominally, to ply at stage-coach win- dows with my wares, like Isaac Jacobs with his cheap pencils, and Jacob Isaacs with his cheap penknives to cut them wiih ; and without redress. For whether I had placed myself in the hands of the law, or taken the law in my own hands, as any bumpkin in a barn knows, there is nothing to be thrashed out of a man of straw. Now, with all humility, if my poor name be any recommendation of a book, I conceive I am entitled to reserve it for my own benefit. What says the proverb 1 ' When your name is up, you may lie abed.' But what says the law; — at least, if the owner of the name be an author ? Why, that any one may steal his bed from under him, and sell it; that is to say, his reputation, and the revenue which it may bring. " In the mean time, for other street frauds thereis asummary process. The vender of a flash watch, or a razor ' made to sell,' though he appropriates no maker's name, is seized without ceremony by A 1, carried before B 2, and committed to C 3, as regularly as a child goes through its alphabet and numeration. They have defrauded the public, forsooth, and the public lias its prompt remedy ; but for the literary man, thus doubly robbed of his money and his reputation, what is his redress but by injunction, or action, against walking shadows t — a truly homoeo- pathic remedy, which pretends to cure by aggravating the disease." 6 Hood's Works (10 vols. London), 381. ORIGIN AND NATURE OP LITERARY PROPERTY. 51 literature capable of doing good to men through all coming time, give to the producer no title beyond a brief term of years. If Tennyson or Darwin, Emerson or Worcester, had spent their lives in making bricks, digging for gold, or hunting for diamonds, no English law would deny them everlasting title to the products of their industry. The law which puts an arbitrary terminus on the owner- ship of literary property is the same in principle with one that would abridge the farmer's right to his orchards and grain- fields. If there were the remotest danger that this principle would ever be applied to material possessions, every English tongue would clamor for a new Magna Charta. Its actual appli- cation would raise every Saxon hand in rebellion. And yet, for a century, the same principle has been applied with impunity to a species of property no less valuable, no less inviolable.^ To-day the English nation says to its greatest poet : " Queen Mary shall be yours for forty-two years, and no longer." If the same genius had made a beer-barrel, his title to it would run against all future time. To take from one and give to all is not less communism in the case of literary property than it is in that of any other kind of property. There is still too much truth in Thomson's words : — " Is there no patron to protect the Muse, And fence for her Parnassus' barren soil? To every labor its reward accrues, And they are sure of bread who swink and moil : But a fell tribe the Aonian hive despoil, As ruthless wasps oft rob the painful bee ; Thus while the laws not guard that noblest toil, Ne for the Muses other meed decree, They praised are alone, and starve right merrily." During this century, the progress in legislation has been steady toward a juster recognition of the rights of authors. In England, the absolute duration of copyright has,. by two exten- 1 " We should be all shocked if the possibility of their invoking the aid of law tolerated the least invasion of the the laws." Report in favor of interna- rights of property in the case of mer- tional copyright, submitted to the chandise; whilst those which justly United States Senate by Henry Clay, belong to the works of authors are ex- in 1837. 2 Senate Documents, 24th posed to daily violation, without the Cong. 2d Sess. (1836-37), Bep. No. i79. 52 THE LAW OF COPYRIGHT AND PLAYRIGHT. sions, been made three times greater than it was before 1814. The exclusive right of dramatists and composers to represent their productions on the stage has been recognized and pro- tected by statute. Statutory protection has been provided for works of art. Foreign authors and dramatists have been ad- mitted to the privileges of the English laws. The nation is now, doubtless, on the eve of another important advance toward a higher recognition and better protection of property in intel- lectual productions. The Royal copyright commissioners, whose report was submitted to Parliament in June, 1878, recommend that the duration of copyright be enlarged ; that all works be effectively protected against piratical translation, abridgment, and dramatization ; and that the same privileges provided for Englishmen be given to foreign authors. The International Literary Congress, which was called together by the SocietS des Grens de Lettres de France, and met in Paris in June, 1878, under the presidency of Victor Hugo, afiSrmed the principle that the right of an author to his intellectual produc- tions is a species of property whose ownership is unlimited in duration, and declared that in all countries better protection should be provided for the fruits of literary labor. Similar good signs are to be found in the judicial treatment of ques- tions relating to copyright. While authors have suffered much from narrow and unsound decisions, there are many recent cases in which the courts have risen to a high level in deter- mining rights of literary property, and there are indications that such rights will be better understood and recognized in the future than they have been in many instances in the past. The progress of legislation and jurisprudence is constantly uprooting bad laws. The light of to-day shows the mistakes of yestei'day. The errors of to-day will be exposed by the en- lightenment of to-morrow. Progress is fatal to wrong. Time alone will show whether the grand principles governing literary property so well expounded by Lord Mansfield and other great jurists will again prevail ; whether the judgment proclaimed by the Court of King's Bench in 1769 will again be recognized as the true law ; whether the truth will again become clear to all, as it was to Mr. Justice Thompson when he said, " Every prin- ciple of justice, equity, morality, fitness, and sound policy, con- ORIGIN AND NATURE OF LITERARY PROPERTY. 53 curs in protecting the literary labors of men to the same extent that property acquired by manual labor is protected ; " ^ and as it was to Mr. Justice Baldwin when he maintained, that " to place the proprietors of literary property on a worse footing in courts of equity than the owners of other property would not only be subversive of all principles of justice, but in direct repugnance to the, spirit of the Constitution and laws." ^ But, until these things shall come to pass, an inviolable right will be denied to men of letters.^ 1 Wheaton v. Peters, 8 Pet. 672. 2 See opinion of Mr. Justice Bald- win, in the separately published report of Wheaton v. Peters, 134, 139. 5 " We are surprised at the unde- fined state of property, in those early stages of society, when piracy is con- sidered a noble employment, fit to be extolled by bards ; but we must not forget that there are rights of property to this day unacknowledged, which future generations will consider as sacred as we do those acknowledged centuries ago. Because there was no copyright in early times, — because there were no books, or books did not yield any profit to make copyright worth any thing, — it is believed by many, to this day, that copyright is an invented thing, and held as a grant be- stowed by the mere grace and pleasure of society ; while, on the contrary, the right of property in a book seems to be clearer and more easily to be deduced from absolute principle than any other. It is the title of actual production and of preoccupancy. If a canoe is mine because I made it, shall not that be mine which I actually created, — a composition'! It has been asserted that the author owes his ideas to soci- ety; therefore, he has no particular right in them. Does the agriculturist not owe his ideas to society, present and past ? Could he get a price for his produce except by society ? But a work of compilation, it is objected, is not creation or invention. In the form in which it is presented, it is invention. The ideas thus connected, though they are, separately, common stock, like the wild pigeons flying over my farm, are the compiler's, are preoccupied by him, and belong to him in their present order and arrangement. The chief difficulty has arisen from the fact that ideas thus treated, thrown into a book, had for a long time no moneyed value to be expressed numerically, and that copyright has therefore not the strength of antiquity on its side. ... It strikes every one nowadays as very barbar- ous, that in former times commodities belonging to any foreign nation were considered as good prize ; yet we allow robbing in the shape of reprint, to the manifest injury of the author. The flour raised in Pennsylvania has full value in Europe, and is acknowledged as private property ; but the composi- tion of a book, the production of which has cost far more pains, is not consid- ered as private property." Lieber, 2 Political Ethics (Woolsey's ed. Phila. 1875), 121. 54 THE LAW OP COPYRIGHT AND PLAYRIGHT. HISTORY OP LITERARY PROPERTY. The history of literary property in England may be traced with satisfactory precision through this and the preceding cen- tury ; but beyond that the recorded facts are of doubtful im- port, and their interpretation has given rise to conflicting opinions. It has been claimed, that since the introduction of printing into England, in the latter half of the fif- teenth century, the right of publishing and selling a literary production has existed as a species of property .^ There is, howerer, no direct evidence that copyright was recognized by the law as a species of private property before 1558. In 1534, Henry VIII. granted to the University of Cambridge the right of printing certain books, in which the crown claimed a pre- rogative right.^ Afterward, patents cum privilegio were granted to individuals. Prom the middle of the sixteenth to the close of the seventeenth century, numerous decrees, ordinances, and acts, relating to the publication of books, were passed ; but what was their relation to literary property, or their effect upon the rights of authors, cannot be determined with precision. Decrees were promulgated by the Star Chamber in 1556, 1585, 1623, and 1687, regulating the number of presses iand the manner of printing throughout the kingdom, providing for the licensing of printing, and prohibiting the publication and importation of unlicensed books.^ Ordinances and acts for 1 The date of the introduction of ^ Baskett v. University of Cam- printing into England has been a sub- bridge, 1 W. Bl. 105. jectof dispute. According to the gen- » i„ X556, by a decree of the Star erally received account, the art was Chamber, it was forbidden, among other brought from Holland by John Caxton, things, to print contrary to any ordi- about 1471 ; but it has also been claimed nance, prohibition, or commandment in to have been first practised at Oxford, any of the statutes or laws of the in 1468. realm ; or in any injunction, letters- HISTORY OF LITERARY PROPERTY. 55 like purposes were passed by Parliament at various times from 1643 to 1692. These decrees and ordinances have occupied a prominent place in the conti-oversy concerning literary property, and have been cited by high authorities as showing that the property of an author in his book was recognized and protected during this period as a common-law right. But whatever benefit they may have been to authors, by affording additional protection to their productions, either fully or in part, their primary and chief object was the regulation of the press for political and ecclesiastical purposes. Every reader of English history knows to what unwarrantable extremes the crown went during this period in preventing the liberty of the press, and to what a despotic censorship all publications, and especially those re- lating to politics and religion, were subjected. ^ The declared patent, or ordinances set forth or to be set forth by the queen's grant, com- mission, or authority. By another de- cree, dated June 23, 1585, every boolc was required to be licensed, and all persons were prohibited from printing " any book, work, or copy against the form or meaning of any restraint con- tained in any statute or laws of this realm, or in any injunction made by her Majesty or her Privy Council ; or against the true intent and meaning of any letters-patent, commissions, or pro- hibitions under the great seal ; or con- trary to any allowed ordinance set down for the good government of the Stationers' Company." In 1623, a proc- lamation was issued to enforce this de- cree; reciting that it had been evaded, among other ways, " by printing be- yond sea such allowed books, works, or writings as have been imprinted within the realm by such to whom the sole printing thereof, by letters-patent or lawful ordinance or autliority, doth ap- pertain." In 1637, the Star Chamber again decreed that "no person is to print or import (printed abroad) any book or copy which the Company of Stationers, or any other person, hath or shall, by any letters-patent, order or entrance in their register book, or other- wise, have the right, privilege, author- ity or allowance, solely to print." 4 Burr. 2312. For tlie "rules and ordi- nances made and set forth by the Arch- bishop of Canterbury and Lords of the Privy Council in the Star Chamber, for redressing abuses in printing," see Strype's Life of Archbishop Whitgift, Appendix No. xxiv. 1 " It is natural to suppose that a government thus arbitrary and vigilant must have looked with extreme jeal- ousy on the ditfusion of free inquiry through the press. The trades of printing and bookselling, in fact, though not absolutely licensed, were always subject to a sort of peculiar superintendence. Besides protecting the copyright of authors, the council frequently issued proclamations to re- strain the importation of books, or to regulate their sale. It was penal to utter, or so- much as to possess, even the most learned works on the Catholic side ; or, if some connivance was usual in favor of educated men, the utmost strictness was used in suppressing that light infantry of literature, — the smart and vigorous pamphlets with which the two parties arrayed against the church assaulted her opposite flanks. Stow, the well-known chronicler of Eng- land, who lay under a suspicion of an attachment to popery, had his library 56 THE LAW OP COPYRIGHT AND PLATRIGHT, purpose of the Stationers' Company, chartered by Philip and Mary in 1556, was to prevent the propagation of the Protestant Reformation. After reciting that several seditious and hereti- cal books, both in rhymes and tracts, were daily printed, re- newing and spreading great and detestable heresies against the Catholic doctrine of tlie Holy Mother Church, the charter pro- vided for the suppression of this evil by constituting ninety- seven named persons an incorporated society of the art of a stationer, and ordered that no person not a member of this society should practise the art of printing. The master and wardens of the society were empowered to search, seize, and burn all prohibited books, and to imprison any person found exercising the art of printing without authority.^ From 1566 to 1641, the crown exercised over the press an unlimited au- thority, which was enforced by the summary powers of search, confiscation, and imprisonment given to the Stationers' Com- pany, and by the Star Chamber, whose jurisdiction was then , supreme. searched by warrant, and his unlawful books taken away ; several of which were but materials for his history. Whitgift, in this as in every other respect, aggravated the rigor of pre- ceding times. At his instigation, the Star Chamber, 1585, published ordi- nances for the ■ regulation of the press. The preface to these recites ' enormi- ties and abuses of disorderly persons professing the art of printing and sell- ing books ' to have more and more in- creased, in spite of the ordinances made against them, which it attributes to the inadequacy of the penalties hither- to inflicted. Every printer, therefore, is enjoined to certify his presses to the Stationers' Company, on pain of hav- ing them defaced, and suffering n year's imprisonment. None to print at all, under similar penalties, except in Lonc^on, and one in each of the two universities. No printer who has only set up his trade within six months to exercise it any longer, nor any to begin it in future until the excessive multi- tudes of printers be diminished and brought to such a number as the Arch- bishop of Canterbury and Bishop of London for the time being shall think convenient ; but, whenever any addi- tion to the number of master printers shall be required, the Stationers' Com- pany shall select proper persons to use that calling, with the approbation of the ecclesiastical commissioners. None to print any book, matter, or tiling whatsoever, until it shall have been first seen, perused, and allowed by the Archbishop of Canterbury or Bishop of London, except the queen's printers, who shall require the license only of the chief justices. Every one selling books printed contrary to the intent of this ordinance to suffer three months' imprisonment. The Stationers' Com- pany empowered to search houses and shops of printers and booksellers, and to seize all books printed in contraven- tion of this ordinance, to destroy and deface the presses, and to arrest and bring before the council those who shall have offended therein." Hallam, 1 Const. Hist. (3 vols., London), 238. See also vol. iii. p." 2. 1 JVIaugham, Laws of Lit. Prop. (London, 1829) 12. HISTORY OF LITERAKY PROPERTY. 57 The despotic decrees, which, for more tlian three-quarters of a century, had served to control the press, expired with the abolition of the Star Chamber in 1641. But their spirit and worst features were revived by various ordinances passed by Parliament during the next half century, which likewise had for their main object the censorship of the press. Such were the ordinances of 1643, 1647, 1649, and 1652.1 The Licensing Act of Charles II.,^ passed in 1662, is often cited as a marked recognition of the rights of authors in their literary property. But, like all the preceding enactments, it was aimed directly and chiefly at the press.^ Its preamble and provisions disclose the same tyrannical purposes that are so prominently indicated in the earlier ordinances.^ In the spirit of the Star Chamber decrees, it ordered that no person should 1 The ordinance of 1643, c. 12, re- cited in its preamble that " divers good orders have been lately made by both Houses of Parliament for suppressing the great late abuses and frequent dis- orders in printing many false, forged, scandalous, seditious, libellous, and un- licensed papers, pamphlets, and books, to the great defamation of religion and government." It then ordered that no book, pamphlet, or paper be printed or sold, unless first approved and licensed by persons appointed for this purpose by Parliament. To enforce this pro- vision, the master and wardens of the Stationers' Company, and other desig- nated persons, were authorized and re- quired to search for and seize unli- censed printing-presses and scandalous or unlicensed papers, pamphlets, or books; to arrest the authors and print- ers ; and, " in case of opposition, to break open doors and locks." Of similar import, and for the same primary purpose of controlling the press, were the ordinances of 1647, e. 95, 1649, c. 60, and 1652, c. 34. Sco- bell's Acts. 2 13 & 14 Car. II. c. 33. Keble's Statutes at Large, 1250. ' Indeed, while the bill was pending, the king sent a special message to the House of Commons, saying tliat the passing of the act was necessary to the peace of the kingdom, as the exor- bitant liberty of the press had been a great occasion of the late Rebellion, and the schisms in the church ; and urging the House " to give a speedy dispatch to that bill." 8 Commons' Journal, 425. * What could be more in harmony with the spirit of the Star Chamber proceedings than its preamble ! " Whereas the well government and regulating of printers and printing- presses is matter of public care and of great concernment, especially consid- ering, that, by the general licentious- ness of the late times, many evil-dis- posed persons have been encouraged to print and sell heretical, schismatical, blasphemous, seditious, and treasonable books, pamphlets, and papers, and still do continue such their unlawful and exorbitant practice, to the high dis- honor of Almighty God, the endanger- ing the peace of these kingdoms, and raising a disaffection to his most ex- cellent Majesty and his government ; for prevention whereof, no surer means can be advised than by reducing and limiting the number of printing-presses, and by ordering and settling the said art or mystery of printing by act of Parliament, in manner as hereinafter is expressed." 58 THE LAW OP COPYRIGHT AND PLAYEIGHT. presume to print " any heretical, seditious, schismatical, or offensive books or pamphlets, wherein any doctrine or opinion shall be asserted or maintained which is contrary to the Chris- tian faith, or the doctrine or discipline of the Church of Eng- land, or which shall or may tend or be to the scandal of religion or the church, or the government or governors of the church, state, or commonwealth, or of any corporation or particular person or persons whatever." It then prohibited the publica- tion of unlicensed books, presci'ibed regulations as to printing, and empowered the king's messengers, and the master and wardens of the Stationers' Company, to seize books suspected of containing matters hostile to the church or government. It was necessary to print, in the beginning of every licensed book, the certificate of the licenser, to the effect that the book con- tained nothing " contrary to the Christian faith or the doctrine or discipline of the Church of England, or against the state and government of this realm, or contrary to good life or good manners, or otherwise, as the nature and subject of the work shall require." To prevent fraudulent changes in a book after it had been licensed, a copy was required to be deposited with the licenser when application was made for a license. The Licensing Act was continued by several acts of Par- liament till 1679. It was re-enacted in 1685,^ and again in 1692,2 and finally expired in 1694. It is plain, then, that the primary and chief object of all the decrees, ordinances, and acts promulgated, either by the Star Chamber or by Parliament, prior to the act of Anne, in 1710, was the regulation of the press, and the suppression of all writ- ings obnoxious to the government or the church. But most, if not all, of them contained clauses recognizing property in books, and providing for its protection. What the extent of this protection was, or what was the exact status of literary property, cannot be precisely determined. The Star Chamber decree of 1023, promulgated to secure the enforcement of that of 1585, contained a clause referring to persons in whom the sole right of printing a book was vested " by letters-patent or lawful ordinance or authority." 1 1 Jae. II. c. 17, a. 15. ^ iW.&U.c. 24, s. 14. HISTORY OP LITERARY PROPERTY. 59 The later decrees and ordinances contained express clauses rec- ognizing and providing for the protection of private property in books. The Star Chamber decree of 1637 ordered that no person should " print or import (printed abroad) any book or copy which the Company of Stationers, or any other person, hath or shall, by any letters-patent, order, or entrance in their register book, or otherwise, have the right, privilege, authority or allowance, solely to print." ^ The ordinance of 1643 pro- hibited the printing or importing of any book that had been lawfully licensed and entered in the register of the Stationers' Company, " for any particular member thereof, without the license and consent of the owner." The penalty prescribed was forfeiture of the book to the owner, " and such further punishment as shall be thought fit." This clause was repeated in the ordinances of 1647, 1649, and 1652.^ The clause in the Licensing Act of Charles II., intended for the protection of literary property, prohibited any person from printing or importing, without the consent of the owner, any book which any person had the sole right to print, by virtue of letters-patent, or " by force or virtue of any entry or entries thereof duly made, or to be made, in the register book of the said Company of Stationers, or in the register book of either of the universities." The penalty of piracy was forfeiture of the book, and six shillings and eight pence for each copy ; half to go to the king, and half to the owner .^ Here we find express statutory provision for the protection of literary property. But it is contended by some that these clauses were applicable only to members of the Stationers' Company ; and were, therefore, no benefit to authors outside of that organization. On the other hand, it is maintained that the protection was intended for all books and all authors, whetlier within or without the Company of Stationers. This question cannot be determined satisfactorily from the language of tlie acts, and little light is thrown upon it by contemporary records. Carte, the historian, writing in 1736, after a careful examination of the records of the Stationers' Company an,d other documents, had no doubt that the property clauses 1 4 Burr. 2312. " Scobell's Acts. ' 3 13 & 14 Car. II. c. 33, s. 6 ; Keble's Statutes at Large, 1250. 60 THE LAW OP COPYRIGHT AND PLAYEIGHT. in the ordinances under consideration were intended for the benefit of all authors.^ Most of the judicial proceedings of the Star Chamber are missing ; and no record of any prosecution for printing without license, or against letters-patent, or pirat- ing another's copy, or " any other disorderly printing," has been found. Mr. Justice Willes said that " it is certain that down to the year 1640, copies were protected and secured from piracy by a much speedier and more effectual remedy than actions at law or bills in equity. No license could be obtained to print another man's copy ; not from any prohibition, but because the thing was immoral, dishonest, and unjust. And he who printed without a license was liable to great penalties." ^ That the sole right of publishing a book existed as a species of property during this early period of English history is estab- lished by ample evidence, aside from that afforded by the de- crees and ordinances which have been cited. Indeed, in his famous speech for the liberty of unlicensed printing, published in 1644, against the ordinance of 1643, Milton shows how fully the right of an author to his productions was then recog- nized, in theory at least, when he says, that " one of the glosses used to color that ordinance, and make it pass, was the just 1 " 'Tis certain," says Carte, " that the sole right of printing it ; so that no printer, since the invention of the art there has scarce ever been a book of printing, ever liad in England a riglit published in England but it belonged to print the works of another man to some author or proprietor, exclusive without his consent. There ever was of all other persons. This is evident a property in all books here printed ; to every one who hath ever viewed the and for the making of it known, the ' stationers' register, from the erection of better to prevent all invasion thereof, that company down to the year 1710, when the Stationers' Company were when the act 8 Anne was passed, which incorporated, all authors, and the pro- refers to this as an unusual practice. It prietors to whom they sold their copies, was indeed so customary that I hardly constantly entered them in the register think there ever was a book (unless of that company as their property, of a seditious nature) printed till within The like method was taken with regard forty years last past, but, however to foreign books, to which no subject inconsiderable it was for size or value, of England could pretend an original the property thereof was ascertained, right. To prevent the inconveniences and the sole right of printing it se- of different persons engaging (perhaps cured to the proprietor, by such entry." unknown to one another) in printing Published in Reasons for a Farther of the same work (which might prove Amendment of the Act 54 Geo. III. the ruin of both), tlie person who first c. 156, by Sir Egerton Brydges (Lon- resolved on it, and entered his design don, 1817). in that register, became thereby the 2 4 Burr. 2313. legal proprietor of such work, and had HISTORY. OP LITERARY PROPERTY. 61 retaining of each man his several copy ; which God forbid should be gainsaid." ^ In Millar v. Taylor, the jury found, " that, before the reign of her late Majesty, Queen Anne, it was usual to purchase from authors tlie perpetual copyright of their books, and to assign the same from hand to hand for val- uable considerations, and to> make the same the subject of family settlements for the provisions of wives and children." ^ In the same case, Lord Mansfield said, " I use the word ' copy,' in the technical sense in which that name or term has been used for ages, to signify an incorporeal right to the sole print- ing and publishing of somewhat intellectual communicated by letters." ^ For a century and a half before the reign of Anne, an ex- tensive traffic was carried on in copyrights by members of the Stationers' Company, who invested much capital in buying from authors the right to publish their books. Carte " was surprised, on carefully examining one of the registers in Queen Elizabeth's time, from 1576 to 1595, to find, even in the in- fancy of English printing, above two thousand copies of books entered as the property of particular persons, either in whole or in shares, and mentioned from time to time to descend, be sold, and be conveyed to others."* These entries, showing that copies were entered as property, appear as early as 1558.^ 1 Carte says that in 1641, " when do so enjoy a property, all scholars the licentiousness of the press was car- will be utterly deprived of any reeom- ried to the greatest height, and there pense from the stationers or printers for wanted not persons to insinuate to the their studies or labor in writing or pre- members of the then House of Com- paring books for the press.' " Printed mons that it would be conrenient to by Brydges, see ante, p. 60, note 1. lay all copies open for every printer ^ 4 Burr. 2306. The same fact had that pleased to publish them, Featley, before been found by the jury in Ton- Burges, Gouge, Byfield, Calamy, Sea- son v. Collins, 1 W. Bl. 326. man, and several other divines, favor- ^ 4 Burr. 2396. Mr. Justice Willes ites of the prevaihng party in that said: "The name 'copy of a book,' House, thought it proper to sign a which has been used for ages as a paper declaring, ' that to their knowl- term to signify the sole right of print- edge very considerahle sums of money ing, publishing, and selling, shows this had been paid by stationers and printers species of property to have been long to many authors for the copies of such known, and to have existed in fact and useful books as had been imprinted; usage as long as the name." Ibid, in regard whereof (they say), we con- 2311. ceive it to be both just and necessary * Printed by Brydges. See ante, that they should enjoy a property for p. 60, note 1. the sole imprinting of their copies ; ^ " in 1558, and down from that and we further declare that, unless they time, there are entries of copies for 62 THE LAW OP COPTEIGHT AND PLATRIGHT. During the reign of Charles II., there were decided several controversies concerning the right of printing certain books, which have been cited as showing that the crown claimed a property in copies analogous to that belonging to the author. The books thus claimed by the king were known as preroga- tive copies, and comprised the English translation of the Bible and the Common Prayer-book, as well as all extracts from them (such as primers, psalters, and psalms), almanacs, law reports, acts of Parliament, and the Latin Grammar. The first reported case of this kind was decided in 1666. Atkins, claiming the right as the king's patentee to print all law books, had obtained an injunction restraining the members of the Stationers' Company from printing Rolle's Abridgment. An appeal was taken to the House of Lords, where it was argued that the laws belonged to the king, who paid the judges who pronounced them. The Lords, agreeing " that a copyright was a thing acknowledged at common law," held " that the king had this right, and had granted it to the patentees." ^ The next case was that of Roper v. Streater, decided in 1672. Roper, who had bought from the executors of Mr. Justice Croke the third part of his reports, brought an action against Streater for printing it without authority. Streater was a law patentee, and pleaded the king's grant. The Common Pleas decided in favor of the plaintiff, on the ground that he, " by pur- chase from the executors of the author, was owner of the copy particular persons. In 1559, and down- always been reputed the owners of ward from that time, there are persons such books or copies as had been entered fined for printing other men's copies, to them in the register of the company, In 1573, there are entries which take and ought therefore to have tlie sole notice of the sale of the copy and the printing of them — provided a penalty price. In 1582, there are entries with for the invasion of such right. A an express proviso, ' that, if it be found similar by-law was passed in 1694, any other has a right to any of the which, after reciting that copies had copies, then the license touching such been " constantly bargained and sold of the copies so belonging to another amongst the members of this company shall be void.' " Willes, J., 4 Burr, as their property, and devised to chil- 2313. dren and others for legacies, and to In 1681, when all legislative pro- their widows for their maintenance," tection had ceased, the Stationers' ordained that no book entered by one Company made a by-law, which, — after member should be printed or sold by reciting that members of the company another without license. 4 Burr. had a great part of their estates in 2306. copies, and that by the ancient usage i Carter, 89 ; 4 Burr. 2316. of the company such persons had HISTORY OP LITERARY PROPERTY. 63 at common law." This judgment was reversed in the House of Lords, where it was held that " the copy belonged to the king." 1 The case of the Stationers' Company against Seymour, in 1677, was a controversy between the plaintiffs as grantees of the crown, and the defendant, who had printed Gadsbury's Almanac, without license. The court held that the property of an almanac which has " no particular author " was in the king ; and that the " prognostications " added by the defendant " do not alter the case ; no more than if a man should claim a property in another man's copy by reason of some inconsid- erable additions of his own." ^ The king's pvoperty in prerogative copies was recognized in 1681, in suits brought by the Stationers' Company against Lee ^ and against Wright.* Opinions differ as to the nature of the right thus claimed by the crown. Lord Mansfield emphatically maintained that it was founded on the same principles of property which govern in the case of individuals, and that it could be defended on no other ground.^ By others it has been regarded as an ' Skin. 234 ; 1 Mod. 257 ; 4 Burr, to crown copies. The reason is very 2316. obvious ; it will occur to every one 2 1 Mod. 256 ; 4 Burr. 2316. In that hears me. The fact, however, is 1775, the Common Pleas decided so ; there were none before the Resto- against the validity of the crown ration. Upon every patent which has patent for the exclusive printing of been litigated since, the counsel for the almanacs. Stationers' Company u. patentee (whatever else might be Carnan, 2 W. Bl. 1004. See also thrown out, or whatever encourage- Stationers' Company v. Partridge, 10 ment they might have, between the Mod. 105 ; 4 Burr. 2402. Bestoration and Kevolution, to throw * 2 Show. 258. See also Stationers' out notions of power and prerogative), Company v. Parker, Skin. 233. have tortured their invention to stand * Skin. 234; 4 Burr. 2328. upon property. Upon Rolie's Abridg- ' " Crown copies are, as in the case ment, they argued from tlie Year Books, of an author, civil property ; which is which are there abridged, that the deduced, as in the case of an author, Year Books, having been compiled at from the king's right of original publi- the king's expense, were the king's cation. The kind of property in the property, and therefore the printing of crown, or a patentee from the crown, is them belonged to his patentee. Upon just the same : incorporeal, incapable Croke's Reports, they contended that of violation but by a civil injury, and the king paid tlie judges who made only to be vindicated by the same the decisions ; ergo, the decisions were remedy, — an action upon the case, or a his. The judges of Westminster Hall bill in equity. thought they belonged to the author ; " There were no questions in West- that is, to the purchaser from, or the minster Hall before the Restoration, as executor of, the author : but, so far, 64 THE LAW OP COPYRIGHT AND PLATRIGHT. exercise of naked prerogative, based on reasons of church and state.^ the controversy turned upon property. In Seymour's Case, 1 Mod. 256 (who printed Gadbury's Almanac without leave of the Stationers' Company, who had a patent for the sole printing of almanacs), Pemberton resorted to prop- erty. He argued, besides arguing from the prerogative, that an almanac had no certain author: therefore the king has the property ; and, by consequence, may grant his property. It was far fetched ; and it is truly said that the consequence did not follow. For, if there was no certain author, the prop- erty would not be the king's, but common. Pemberton was a very able lawyer, and saw the necessity of get ting a property, if he could make it out. . . . " Acts of Parliament are the works of the legislature ; and the publication of tliera has always belonged to the king, as the executive part, and as the head and sovereign. . . . " The copy of the Hebrew Bible, the Greek Testament, or the Septuagint, does not belong to the king : it is com- mon. But the English translation he bought ; therefore it has been con- cluded to be his property. If any man should turn the Psalms, or the writings of Solomon or Job, into verse, the king could not stop the printing or sale of such a work : it is the author's work. The king has no power or control over the subject-matter : his power rests in property. His whole right rests upon the foundation of property in the copy, by the common law. What other ground can there be for the king's having a property in the Latin Gram- mar, which is one of his ancient copies, than that it was originally composed at his expense f Whatever the common law says of property in the king's case, from analogy to the case of authors, must hold conclusively , in my apprehen- sion, with regard to authors." Lord Mansfield, Millar v. Taylor, 4 Burr. 2401-2405. See remarks of same judge, 4 Burr. 2402, on the case of the Station- ers' Company v. Partridge ; and 4 Burr. 2404, on the decision in Baskett v. Uni- versity of Cambridge. See also views of Mr. Justice Willes, Millar v. Taylor, 4 Burr. 2328-29, 2332. 1 " Upon the whole of this preroga- tive claim of the crown, it appears to me, that the right of the crown to the sole and exclusive printing of what is called prerogative copies is founded on rea- sons of religion or of State. The only consequences to which they tend are of a national and public concern respect- ing the esta:blished religion or govern- ment of the kingdom ; and have no analogy to the case of private authors. There is no instance of the crown's intermeddling with, or pretending any such right in, private compositions. . . . It is mentioned as one ground of the king's right to print them, that some of these prerogative books were composed at his expense. But in fact it is no private disbursement of the king, but done at the public charge, and part of the expenses of government. It can hardly be contended that the produce of expenses of a public sort are the private property of the king, when pur- chased with public money. He cannot sell nor dispose 'of one of those compo- sitions. How, then, can they be liis private property, like the private prop- erty claimed by an author in his own compositions?" Yates, J., Millar v. Taylor, 4 Burr. 2383, 2384. In moving the judgment of the House of Lords in 1828, in Manners v. Blair, 3 Bligh, n. s. 402, which was a controversy involving the right of the crown to grant a patent for the exclu- sive printing of Bibles, Lord Chancellor Lyndhurst said: "But although the power of the king and his preroga- tive in pjngland has never been ques- tioned, it has been rested by judges on diflerent principles. Some judges have been of opinion that it is to be founded on the circumstance of the translation of the Bible, having been actually paid for by King James, and .its having be- HISTORY OP LITEEAEY PEOPEETT. 65 According to Sir William Blackstone, the king, as the head of the state, had the right of promulgating, and consequently the exclusive privilege of printing, all acts of Parliament, proclamations, orders of council, &c. ; and, as head of the church, the right to publish the liturgies and books of divine service ; while his claim to the exclusive printing of the Bible rested also on the additional ground of his having paid for the translation. " He is also," says the same authority, " said to have a right by purchase to the copies of such law-books, gram- mars, and other compositions as were compiled or translated at the expense of the crown." ^ It has been shown that literary property existed and was recognized during at least a century and a half prior to 1710, when the first copyright statute went into force. What was the origin of this property, the source of its existence ? There is not a clause or a word in any of the decrees, acts, or ordi- nances relating to books from the earliest, passed in 1556, to the latest, in 1692, that can be construed as creating copyright. Whether these enactments were applicable to all authors, or were intended only for the benefit of the members of the Sta- tioners' Company, is immaterial to the present inquiry. They simply provided remedies, more or less complete, for all, or a come the property ' of the crown, and opinion of Lord Camden, as expressed therefore it has been referred to a spe- in the case of Donaldson u. Becket, 4 cies of copyright. Other judges have Burr. 2408, in most direct and eloquent referred it to the circumstance of the terms, in this House ; that was the king of England being the supreme opinion also expressed by Chief Baron head of the church of England, and Skinner, in the case of Eyre and Strahan that he is vested with the preroga- v. Carnan, Court of Exchequer, 1781 ; tive with reference to that character, and I think that may be collected or in- Other judges have been of opinion, ferred to be the opinion of a learned and I confess, for my own part, I am and noble earl, now a member of your disposed to accede to that opinion, that Lordships' House, from what fell from it is to be referred to another con- that noble and learned lord in the case sideration ; namely, to the character of of the Universities of Oxford and Cam- the duty imposed upon the chief exec- bridge v. Richardson, 6 Ves. 704." utive officer of the government, to ' 2 Com. 410. See also as to pre- superintend the publication of the acts rogative copies, Baskett v. Univer- of the legislature, and acts of state of sity of Cambridge, 1 W. Bl. 105 ; thatdescription, and also of those works Baskett w. Cunningham, Ibid. 370; upon which the established doctrines Eyre v. Carnan, 5 Bac. Abr. Prerog. of our religion are founded, — that it is I". 5 ; Universities of Oxford and Cam- a duty imposed upon the first executive bridge v. Richardson, 6 Ves. 689 ; magistrate, carrying with it a corre- Grierson v. Jackson, Ridg. L. & S. spending prerogative. That was the 304. 6 66 THE LAW OF COPYRIGHT AND PLATRIGHT. few owners of a species of property not newly created, but found existing. None of them referred to any term during which the remedies were to continue, or abridged in any way the duration of the ownership of the property. Old acts expired and new ones were passed ; but before the first and after the last, and independently of all of them, property in copies was a recognized fact.i Nor is there any other legislative act during this period to account for the origin of literary property. Its existence, then, could have been only by the common law.. This conclusion is amply confirmed by the authorities. In the earliest reported case concerning literary property, the House of Lords, in 1666, unanimously agreed that " a copy- right was a thing acknowledged at common law." ^ Mr. Justice Willes declared that the Star Chamber decree of 1637 " ex- pressly supposes a copyright to exist otherwise than by patent, order, or entry in the register of the Stationers' Company, which could only be by the common law ; " ^ and that, in passing the ordinance of 1643, both Houses of Parliament took it for granted that copyrights " could only stand upon the common law."* Of the Licensing Act of Charles II., the same jurist said : " The sole property of the owner is here acknowledged in express words as a common-law right ; and the legislature who passed that act could never have entertained the most distant idea that the productions of the brain were not a sub- ject-matter of property." * 1 Mr. Justice Aston thought, " This duced the two Houses to malce an ordi- idea of an author's property has been nance which prohibited printing, unless so long entertained that the copy of a the book was first licensed and entered book seems to have been not famil- in the register of the Stationers' Cora- iarly only, but legally, used as a techni- pany. Copyrights, in their opinion, cal expression of the author's sole right then, could only sland upon the com- of printing and publishing that work ; mon law ; both Houses take it for and that these expressions, in a variety granted. The ordinance, therefore, of instruments, are not to be considered prohibits printing without consent of as the creators or origin of that right the owner ; or importing, if printed or property, but as speaking the Ian- abroad, upon pain of forfeiting the guage of a known and acknowledged same to the owner or owners of the right, and, as far as they are active, copies of the said books, &c. This pro- operating in its protection." 4 Burr, vision necessarily supposes the prop- 2346. erty to exist; it is nugatory if there ''■ Atkins's case. Carter, 89; 4 Burr, was no owner. An owner could not at 2315. that time exist but by the common » 4 Burr. 2313. law." Ibid. 2314. * " The licentiousness of libels in- 5 "in 1662, the act of 13 & 14 C. II. HISTOEY OF LITERARY PROPERTY. 67 • The booksellers, who, just before the statute of Anne was passed, petitioned Parliament for additional protection against piracy, admitted that they had a property in copies which could then exist only by the common law.i This fact was recognized by Parliament in passing the statute of Anne ; and, after this act went into force, it was the uniform practice of the Court of Chancery to grant injunctions protecting common-law copy- right in published works. The common-law existence of liter- ary property was expressly affirmed by the Court of King's Bench in Millar v. Taylor ;2 whose judgment, as far as it affirmed the existence of the property as a historical fact, has never been reversed. The same doctrine was expressly approved by a majority of the judges, who advised the House of Lords in Donaldson v. Becket.^ The history of literary property, from the middle of the six- teenth to the close of the seventeenth century, shows : — First. The existence of such property is traced back by record to 1558, when an entry of copies appears in the regis- ter of the Company of Stationers ; and, by probability, to the latter part of the fifteenth century, when printing was intro- duced into England. Second. There is no legislation during, this period creating this property, or conferring ownership ; none abridging its perpetuity, or restricting its enjoyment. Third. Its existence, then, is due to the common law, and (the Licensing Act) prohibits print- doth solely and properly belong to any ing any book, unless first licensed and particular person or persons. The sole entered in the register of the Station- property of the owner is here acknowl- ers' Company. It also prohibits print- edged in express words as a common- Ing witliout the consent of the owner, law right ; and the legislature wht) upon pain of forfeiting the book and passed that act could never have enter- 6s, 8d. each copy; half to the king, and tained the most distant idea that the half to the owner ; to be sued for by productions of the brain were not a the owner in six months; besides subject-matter of property. To sup- being otherwise persecuted as an of- port an action on this statute, owner- fender against the act. The act sup- ship must be proved, or the plaintifi" poses an ownership at common law. could not recover ; because the action And the right Itself is particularly rec- is to be brought by the owner, who is to ognized in the latter part of the third have a moiety of the penalty." 4 Burr, section of the act, where the cliancellor 2314. and vice-chancellor of the universities ' See ante, p. 22 and note 4. are forbid to meddle with any book or ^4 Burr. 2303. books the right of printing whereof " Ibid. 2408. 68 THE LAW OP COPYRIGHT AND PLATRIGfHT. this necessary conclusion is supported by contemporary and later authorities. It is for those who believe with Judge Tates and Lord Cam- den that literary property " is all ideal," and was unknown in England before the statute of Anne, to explain away this cen- tury and a half of its recognized existence. It is for those who, with Lord Macaulay, contend that copyright is a monop- oly, who believe with Baron Pollock that it " is altogether an artificial right, a creature of the municipal law, and has no existence by the common law of England," ^ to point to the legislation that created it or made it a monopoly ; and, if the statute of Anne is cited for this purpose, — none earlier can be cited, — it is for them to reconcile with their theory the acknowledged existence of literary property independent of any legislation during the century and a half preceding that statute. That literary property was shielded from arbitrary and oppressive government interference during this early period of English history, is not claimed. At a time when many rights of the subject were held subordinate to the pleasure of the crown, the title of an author to the fruits of his industry was no exception. When the labors of literary men were neu- tralized by the despotic regulation and suppression of the pub- lication of books, it was an unwarranted invasion of private property that would not have been tolerated in later times. But the inquiry with which we are now most concerned is, not whether literary property was strictly inviolable in these times, but whether it had an acknowledged existence, — the affirma- tive of which is denied by those who maintain that copyright is a creature of legislation. When the Licensing Act had finally expired in 1694, and there was no legislative restriction on the piratical printing of books, men of letters and booksellers began to complain loudly of the evils of piracy. In 1703, 1706, and 1709, the owners 1 " Copyright is altogether an arti- country, to be enjoyed for such time flcial right, not naturally and neces- and under such regulations as the law sarily arising out of the social rules of each state may direct, and has no that ought to prevail among mankind existence by the common law of Eng- assembled in communities, but is a land." Jefferys v. Boosey, 4 H. L. C. creature of the municipal law of each 937. HISTORY OP LITEEABT PROPERTY. 69 of copies petitioned Parliament for a law to protect their copy- rights more effectively. It was in answer to these appeals that the 8 Anne, c. 19, became a law, in 1710. This was the first English statute distinctly affirming copyright and provid- ing for its protection. It was entitled " An Act for the En- couragement of Learning by vesting the copies of printed books in the authors or purchasers of such copies during the times therein mentioned." The preamble declares that " print- ers, booksellers, and other persons have of late frequently taken the liberty of printing, reprinting, and publishing, or causing to be printed, reprinted, and published, books and other writings, without the consent of the authors or proprietors of such books and writings, to their very great detriment, and too often to the ruin of them and their families ; " and that the object of the act is to prevent " such practices for the future, and for the encouragement of learned men to compose and write useful books." It provided that the owner of the copyright in any book already printed should have the exclusive right of publishing it for twenty-one years ; and that the author of any book not then published should have the sole liberty of publishing it for fourteen years from the time of first publication. At the end of this period, the same rigfit was continued in the author, if living, for another term of fourteen years. Any person who should publish, import, or sell piratical copies was made liable to forfeit such copies to the owner of the copyright, to be by him destroyed, and to pay one penny for every sheet found in his possession. One-half of this penalty was to go to the queen, and the remainder to any person who should sue for it. There was a proviso, however, which permitted the importa- tion and sale of " any books in Greek, Latin, or any other foreign language, printed beyond the seas." That no person might offend against the act through ignorance, it was pro- vided that no book should be entitled to protection unless the title to the copy had been entered, before publication, in the register-book of the Company of Stationers, which should al- ways be kept open for inspection at the hall of the company. The act further required nine copies of every book to be delivered to this company, for the use of the royal library in 70 THE LAW OP COPYRIGHT AND PLAYRIGHT. London, the universities of Oxford and Cambridge, the four universities in Scotland, Sion College in London, and the Library of the Faculty of Advocates in Edinburgh. If any bookseller or printer should sell or offer for sale a book " at such a price or rate as shall be conceived by any person or persons to be too high or unreasonable," the price might be reduced and fixed at a reasonable figure by the Arch- bishop of Canterbury, the Chancellor or Lord-keeper of the Great Seal, the Bishop of London, the Chief Justices of the Queen's Bench and Common Pleas, or other designated ofii- cials. This provision was repealed in 1739 by the 12 Geo. II. c. 36. The act of Anne prohibited any one from importing a book which had been printed without the written consent of the owner of the copyright. There is no reason why this pro- vision should not have been held sufficient to prevent the importation of English copyrighted books reprinted abroad without due authority ; excepting of course those reprinted in a foreign language, which came under a special proviso. But in 1739 was passed the 12 Geo. II. c. 36, whose preamble recited that " the duties payable upon paper imported into this kingdom to be made use of in printing greatly exceed the duties payable upon the importation of printed books, whereby foreigners and others are encouraged to bring in great num- bers of books originally printed and published in this kingdom, and reprinted abroad, to the dijninution of his Majesty's rev- enue and the discouragement of the trade and manufacture of this kingdom." The statute then provided for a forfeiture of copies, and imposed penalties in the case of the unauthorized importation of all copyrighted books originally published in England and reprinted abroad. This act was temporary ; but it was several times renewed. The act of Anne extended protection to two classes of books : 1, those already published, in which copyright was vested for twenty-one years ; 2, those not then published, for which a term of fourteen years was secured. The copyright, therefore, in books of the first class expired at the end of twenty-one years, or in 1731 ; and hence, whatever protection was granted by the court after that year to a book published before the statute was HISTORY OF LITERARY PROPERTY. 71 passed, must hare been on the ground that copyright was founded in the common law. Not fewer than five cases of this kind are recorded in the quarter of a century following 1731. In 1735, injunctions were issued by Sir Joseph Jekyll, Master of the Rolls, against printing a book entitled The Whole Duty of Man, which had first appeared in 1657 ; ^ and by Lord Talbot, protecting Pope's and Swift's Miscellanies, many of which had been published before 1710.^ In 1736, Sir Joseph Jekyll granted an injunction protecting Nelson's Festivals and Pasts, which had originally appeared in 1703 ; ^ and, in 1739, Lord Hardwicke restrained the unauthorized publication of Milton's Paradise Lost, to which the plaintiff derived title under an assign- ment made by the author, in 1667.* Another injunction was granted by this judge, in 1752, against printing an edition of the same poem, with a biography by Penton, and notes by Bentley and Dr. Newton. The biography and the notes had been published after the statute, and were within its protection; but the poem did not come within the provisions of the act.^ All of these books had been originally published before the passing of the copyright statute ; and all of the injunctions were granted after the statutory term had expired. None of the cases, therefore, were within the statute. The court did not hesitate to recognize and protect the author's common-law rights in his published work. In 1760, an action was brought by Tonson against Collins, for piracy of the Spectator, in which the plaintiff claimed the exclusive right of publication by assignment from Addison and Steele. The defence was set up that there was no property in a published work, except that secured by the statute, and that the statutory copyright in the Spectator had expired. The 1 Eyre v. Walker, cited 4 Burr. "K the inclination of Lord Hardwicke's 2325. own opinion," said Mr. Justice Willes, 2 Motte V. Falkner, Ibid. " had not been strongly with the plain- 3 Walthoe v. Walker, Ibid. tiff, he never would hare granted the * Tonson v. Walker, Ibid. injunction to the whole, and penned it 5 Tonson v. Walker, 3 Swans. 672. in the disjunctive ; so that printing the Lord Hardwicke thought there might poem, or the life, or Bentley's notes, be some question about the plaintiff's without a word of Dr. Newton's, would right to restrain the publication of the have been » breach. The injunction poem ; but he granted the injunction is not barely to the selling of that book, against the publication either of the of which Newton's notes made a part, poem, or the notes and biography, but to future printing." 4 Burr. 2326. 72 THE LAW OP COPYRIGHT AND PLAYRIGHT. case was found to be one of collusion, and no decision was rendered. 1 In 1769, the origin and nature of literary property were exhaustively discussed by the judges of the King's Bench, of which Lord Mansfield was chief justice, in the case of Millar v. Taylor, which yet stands out as one of the great landmarks in the history of this controversy .^ The book in controversy was Thomson's Seasons, which had been first published by the poet in 1727-30. The copyright was then sold to Andrew Millar, who was the owner of it in 1763, when Robert Taylor issued an edition without license. In 1766, Millar brought an action for piracy ; and, as the term of years secured by the statute of Anne had expired, the direct issue was raised whether a per- petual property, by common law and independent of the statute, remained in the author and his assigns after publication. Lord Mansfield and Justices Aston and Willes maintained the affirma- tive, in elaborate opinions, while Mr. Justice Yates contended that copyright was the creature of the statute. The judgment of the court was that copyright was founded in the common law, and that it had not been taken away by the statute of Anne, which was intended merely to give for a term of years a more complete protection. In 1774, the authority of this decision was overruled by the House of Lords, in the case of Donaldson v. Becket.^ Several questions relating to the origin and nature of literary property were submitted to the judges, among whom there was a marked diversity of opinion. A majority held that, by the common law, an author had the exclusive right of publishing his book ; and that this right was not, by virtue of the common law, lost or prejudiced by publication. But the only question on which judg- ment was passed was whether the common-law right in a pub- lished book, had been destroyed by the statute of Anne. The affirmative was maintained by six, and the negative by five, judges. Lord Mansfield, being a peer, did not express his opin- ion ; but it was well known that he adhered firmly to the view that the common-law right had been in no wise impaired by the statute. Including him, the judges were evenly divided on this question. 1 Tonson v. Collins, 1 W. Bl. 301, 321. 2 4 Burr. 2303. ' Ibid. 2408. HISTORY OP LITERARY PROPERTY. 73 In moving for judgment, Lord Camden made a specious harangue against the rights of authors, and the House of Lords declared that the statute had taken away all common-law rights after publication ; and hence that, in a published book, there was no copyright except that given by the statute.^ The judgment of the House of Lords very naturally caused much alarm among men of letters, and especially among the London booksellers, who had invested much money in copy- rights which they had supposed to be perpetual, but which were now left without protection. Application was made to Parlia- ment for a law vesting in authors and their assigns the copy- right of such books as were not protected by the statute of Anne. A bill for that purpose was passed by the House of Commons, in May, 1774 ; but it was rejected by the Lords, and hence failed to become a law. The universities now applied to Parliament, and obtained, in 1775, an act " for enabling the two universities in England, the four universities in Scotland, and the several colleges of Eton, Westminster, and Winchester, to hold in perpetuity their copy- right in books given or bequeathed to the said universities and colleges, for the advancement of useful learning' and other purposes of education." ^ Thus, what was denied to literature was granted to these wealthy corporations. In 1801, the provisions of the English copyright statutes were extended to Ireland by 41 Geo. III. c. 107 ; which also provided for the recovery of damages by action in cases of piracy, increased the penalty from one to three pence a sheet, and imposed a heavier tax upon authors, by requii^iug them to give eleven instead of nine copies to public libraries. The duration of copyright granted by the Parliament of Anne in 1710, — fourteen years absolute, with a contingent term of the same length, — continued without change till 1814, when it was enlarged to the absolute term of twenty-eight years, without provision for extension, except that, if the author were living at the end of that period, his copyright was to continue during his life.^ 1 For a fuller treatment of the cases privileges were conferred upon Trinity of Millar v; Taylor and Donaldson v. College, Dublin, in 1801, by 41 Geo. Becket, see ante, pp. 28 et seq. Ill- c. 107, 2 15 Geo. III. c. 53. The same ^ 54 Qeo. III. 0. 156. 74 THE LAW OP COPYRIGHT AND PLATRIGHT. Early in the reign of Victoria, it was thought to be "high time that literature should experience some of the blessings of legislation," and earnest efforts were made to secure an exten- sion of the term during which authors might enjoy the profits of their works. The movement was begun in Parliament, under the lead of Sergeant Talfourd, in 1837, and ended with the passing of the copyright law of 1842.^ Sergeant Talfourd and many, if not all, of his supporters believed, and stoutly maintained, that the title of an author to his intellectual pro- ductions was the same as that of a land-owner to his estates, and that it was as clearly contrary to right and justice for Par- liament to limit the ownership of the former as it would be to abridge that of the latter. The claims of literature, therefore, were presented on their only true basis of property, and not of expediency. But there was so little hope of gaining a complete victory that Parliament was not asked to proclaim the per- petuity of the ownership of literary property, but merely to extend the term of statutory copyright so as to continue for sixty years after the death of the author. This was clearly a compromise of the rights of authors, and was so understood by the friends of the bill ; but it was looked upon as a decided advance upon the existing law, and the best that could be hoped for under the circumstances. The result proved that this feeling was well grounded ; for so strong was the opposition to the just claims of literature that the term of copyright was fixed at forty-two years, or during the life of the author, and seven years after his death, in case this should be a longer period than forty-two years. Mr. Sergeant Talfourd represented the cause of letters in the House of Commons with eloquence and perseverance.^ He 1 5 & 6 Vict. c. 45. all, and those who think the property 2 " Although I see no reason,'' said should last as long as the works which Mr. Sergeant Talfourd, " why authors contain truth and beauty live, that I should not be restored to that inherit- propose still to treat it on the principle ance which, under the name of pro- of compromise, and to rest satisfied taction and encouragement, has been with a fairer adjustment of the differ- taken from them, I feel that the subject ence than the last act of Parliament has so long been treated as a matter of affords. I shall propose, subject to compromise between those who deny modification when the details of the that the creations of the inrentive measure shall be discussed, that the faculty, or the achievements of the term of property in all works of learn- reason, are the subjects of property at ing, genius, and art, to be produced HISTOEY OP LITERARY PROPERTY. 75 was aided by the petitions of the most distinguished British authors, including Wordsworth, Sir Walter Scott, Archibald Alison, Sir David Brewster, Professor Wilson, Thomas Carlyle, hereafter, or In which the statutable copyright now subsists, shall be ex- tended to sixty years, to be computed from the death of the author; which will at least enable him, while provid- ing for tlie instruction and the delight of distant ages, to contemplate that he shall leave in his works themselves some legacy to those for whom a nearer, if not a higher, duty requires him to provide, and which shall make ' death less terrible.' . . . " The term allowed by the existing law is curiously adapted to encourage the lighest works, and to leave the noblest unprotected. Its little span is ample for authors who seek only to amuse ; who, ' to beguile the time, look like the time ; ' who lend to frivolity or corruption ' lighter wings to fly ; ' who sparkle, blaze, and expire. These may delight for a season, glisten as the fire-flies on the heaving sea of public opinion, — the airy proofs of the intel- lectual activity of the age ; yet surely it is not just to legislate for those alone, and deny all reward to that literature which aspires to endure. Let us sup- pose an author of true original genius, disgusted with the inane phraseology which had usurped the place of poetry, and devoting himself from youth to its service; disdaining the gauds which attract the Careless, and unskilled in the moving accidents of fortune ; not seeking his triumph in the tempest of the passions, but in the serenity which lies above them, — whose works shall be scoffed at, whose name made a by- word : and yet who shall persevere in his high and holy course, gradually impressing thoughtful minds with the sense of truth made visible in the severest forms of beauty, until he shall create the taste by which he shall be appreciated; influence, one after another, the master-spirits of his age ; be felt pervading every part of the national literature, — softening, rais- ing, and enriching it; and when at last he shall find his confidence in his own aspirations justified, and the name which once was the scorn admitted to be the glory of his age, — he shall look forward to the close of his earthly career as the event that shall conse- crate his fame, and deprive his children of the opening harvest he is beginning to reap. As soon as his copyright becomes valuable, it is gone ! " This is no imaginary case. I refer to one who 'in this setting part of time ' has opened a vein of the deepest sentiment and thought before unknown ; — who has supplied the noblest anti- dote to the freezing eflFects of the scien- tific spirit of the age ; — who, while he has detected that poetry which is the essence of the greatest things, has cast a glory around the lowliest conditions of humanity, and traced out the subtle links by which they are connected witli the highest, — of one whose name will now find an echo, not only in the heart of the secluded student, but in that of the busiest of those who are fevered by political controversy, — of William Wordsworth. Ought we not to requite such a poet, while yet we may, for the injustice of our boyhood ? For those works which are now insen- sibly quoted by our most popular writers, the spirit of which now min- gles with our intellectual atmosphere, he probably has not received through the long life he has devoted to his art, until lately, as much as the same labor, with moderate talent, might justly pro- duce in a single year. Shall the law, whose terra has been amply sufficient to his scorners, now afford him no pro- tection, because he has outlasted their scoflis ; because his fame has been fostered amidst the storms, and is now the growth of years 1 " Three Speeches delivered in the House of Commons in Favor of a Measure for an Extension of Copyright. By T. N. Tal- fourd, Sergeantat-Law, London, 1840. 76 THE LAW OP COPYRIGHT AND PLATRIGHT, Thomas Hood, Thomas Campbell, Charles Dickens, Robert Browning, Douglas Jerrold, Leigh Hunt, Mary Eussell Mitford, and others. Among other things, it was said that the existing law was " curiously adapted to encourage the lightest works, and to leave the noblest unprotected ; " and that its effect, in the case of many of the best works of literature, was to deprive the author and his children of their property just when it became the most valuable. This, as well as the injustice of terminal copyright in general, was forcibly shown by the facts given in the petition of Sir Archibald Alison. He said that he had given twenty-five years' labor to his History of Eu- rope, and had spent i;4,000 in visiting the Continent, and securing the material necessary to its preparation. It was not expected that a work of such magnitude and so costly (the price of the seven volumes being then .£4 15s.) would get into general circulation in Great Britain, even under the most favorable circumstances, " till the accuracy of the infor- mation it contains is tested by the examination of intelligent persons of all the countries whose transactions it embraces, and its reputation, if it is to attain any, is reflected to this country from the adjoining empires." At that time a third edition of the work had been called for, and it had been trans- lated into French and German. It gave, therefore, good prom- ise of success ; yet, judging of the future, profits from what he iiad then received, the author did not expect to be indem- nified in less than fourteen years for the actual outlay in its preparation ; while, if the work should stand the test of time, it could not " be expected to come into general circula- tion for many years more, and would probably be on the eve of reaching its highest point at the time when the copyright of it, under the existing law, would expire." ^ 1 The case of Mr. Alison is repre- unavoidably necessary for your peti- sentative of a class of authors, by no tioner to visit in person the principal means small in number, whose works countries in Europe, and purchase the are among the most valuable contribu- works, in all its languages, bearing tions to literature. His petition was upon so extensive a subject, as follows : — " That, during the last twenty-five " Tliat, with a view to the coUee- years, your petitioner has, with this tion of the materials and the acquisi- view, six times repaired to the Conti- tion of the local information requisite nent, and repeatedly visited the princi- for a work of such magnitude, it was pal parts of Francej Italy, Switzerland, HISTORY OF LITERARY PROPERTY. 77 The key-note of the opposition on this occasion was furnished by Lord Camden's absurd harangue in the last century. It and Germany ; that the cost of these journeys has already exceeded £1,500, and the expense of the books found to be necessary for the compilation of the undertaking has amounted to above £2,000. If your petitioner liyes to com- plete his undertaking, his total expend- iture on account of it will be about £4,000. " That, during the last twenty-five years, he has been engaged, almost without interruption except by his professional avocations, in the study and reading requisite for the collection of his materials ; and for the last twelve has been sedulously occupied in the composition of the work, which al- ready extends to seven thick volumes, octavo. " That the sale of the work of such magnitude, and so costly (the price of the seven volumes being £i 15s.), es- pecially when undertaken by an author wholly unknown to the public, neces- sarily was at first very slow. " That it must be obvious to every one acquainted with the subject, that a work of such magnitude and expense, the cost of it when completed being £5 10s. cannot be expected to get into general circulation in this country, even under the most favorable circumstan- ces, till the accuracy of the information it contains is tested by the examination of intelligent persons of all the countries whose transactions it embraces ; and its reputation, if it is to obtain any, is re- flected to this country from the adjoin- ing empires. It is now undergoing this ordeal, and is in course of publication at Paris in the French language, and of translation at Leipsic into the German. " That your petitioner has not dis- posed of the entire copyright of any part of the work, but merely sells to his publishers each successive edition of it as it is called for by the public. Two editions have already been printed, and a third will shortly go to press. "That your petitioner, judging of the future profits of the work by what he has already received, cannot expect to be indemnified for the actual outlay expended in its prosecution, with the interest at the lowest rate on the sums from the period at which they were advanced, in less than four- teen years. " That, if the work should stand the test of time and general exam- ination, it cannot be expected to come into general circulation for many years more, and would probably be on the eve of reaching its highest point at the time when the copyright of it, under the existing law, would ex- pire. " That no person can be more strongly impressed than your peti- tioner is with the extremely uncertain nature of every literary reputation, and the very small number of works which ever survive more than a few years beyond the period of their publi- cation. But if his hist6ry, from the labor and expense bestowed on its composition, is destined to survive its author, and if the sale of it shall con- tinue when the work is finished, at the same average rate at which it has gone on since the publication commenced, he will be reimbursed for his advances in fourteen years from the period of publication ; in fourteen more, he will be remunerated at about one-half the rate which he would have obtained if he had devoted the same time and labor on any of the ordinary publica/- tions of the day. But at the same rate of sale, should the copyright be con- tinued for thirty or forty years longer, the work would become a property of great value to your petitioner's family." Mr. Hood's petition was not pre- sented to the august body to whom it was addressed. It contains so much truth and wisdom mingled with wit, that his language may well be given here : — " The humble petition of the under- signed, Thomas Hood, Sheweth, — 78 THE LAW OP COPYRIGHT AND PLATBIGHT. was assumed, as a matter of course, that an author had no more claim to works on which he had devoted years of toil and "That your petitioner is the pro- prietor of certain copyrights which the law treats as copyhold, but which, in justice and equity, should be his freeholds. He cannot conceive how Hood's Own, without a change in the title-deeds as well as the title, can become Everybody's Own hereafter. " That your petitioner may burn or publish his manuscripts at his own option, and enjoys a right in and control over his own productions which no press, now or hereafter, can justly press out of hira. " That as a landed proprietor does not lose his right to his estate in per- petuity by throwing open his grounds for the convenience or gratification of the public, neither ought the property of an author in his works to he taken from him, unless all parks become commons. " That your petitioner, having sun- dry snug little estates in view, would not object, after a term, to contribute his private share to a general scramble, provided the landed and moneyed in- terests, as well as the literary interest, were thrown into the heap ; but that, in the mean time, the fruits of his brain ought no more to be cast amongst the public than a Christian woman's apples or a Jewess's oranges. "That cheap bread is as desirable and necessary as cheap books ; but it hath not yet been thought just or expedient to ordain that, after a certain number of crops, all cornfields shall become public property. " That, whereas in other cases long possession is held to affirm a right to property, it is inconsistent and unjust that a mere lapse of twenty-eight or any other term of years should deprive an author at once of principal and in- terest in his own literary fund. To be robbed by Time is a sorry encourage- ment to write for Futurity I "That a work which endures for many years must be of a sterling char- acter, and ought to become national property; but at the expense of the public, or at any expense save that of the author or his descendants. It must he an ungrateful generation that, in its love of cheap copies, can lose all regard for ' the dear originals.' " That, whereas your petitioner has sold sundry of his copyrights to cer- tain publishers for a. sum of money, he does not see how the public, which is only a larger firm, can justly acquire even a share in copyright, except by similar means ; namely, by purchase or assignment. That the public, having constituted itself by law the executor and legatee of the author, ought in justice, and according to practice in other cases, to take to his debts as well as his literary assets. "That, when your petitioner shall be dead and buried, he might with as much propriety and decency have his body snatched as his literary re- mains. " That, by the present law, the wisest, virtuousest, discreetest, best of authors, is tardily rewarded, precisely as a vi- cious, seditious, or blasphemous writer is summarily punished ; namely, by the forfeiture of his copyright. "That, in case of infringement on his copyright, your petitioner cannot conscientiously or comfortably apply for redress to the law whilst it sanctions universal piracy hereafter. " That your petitioner hath two chil- dren, who look up to him not only as the author of the Comic Annual, but as the author of their being. That the effect of the law as regards an author is virtually to disinherit his next of kin, and cut him off with a book in- stead of a shilling. " That your petitioner is very willing to write for posterity on the lowest terms, and would not object to the long credit; but that, when his heir shall apply for payment to posterity, he will be referred back to antiquity. " That, as a man's hairs belong to his head, so his bead should belong to his HISTORY OF LITERARY PROPERTY. 79 pounds of sterling than what Parliament might choose to give him. Indeed, the interests of the author appear to have been entirely overlooked in the discussion. The paramount inquiry was directed to the effect that any change in the law might have on the interests of society, — paper-makers, printers, binders, proof-readers, &c. The opposition was based entirely on matters of expediency, and the fact or the possibility that an issue of property, of right, or of justice, might be involved, in no wise became the subject of inquiry. The Solicitor- General thought " that books should be had for the benefit of heirs ; whereas, on the contrary, your petitioner hath ascertained, by a nice calculation, that one of his principal copyrights will expire on the same day tliat his only son should come of age. The very law of nature protests against an unnatural law which compels an author to write for anybody's posterity except his own. " Pinally , whereas it has been urged, 'if an author writes for posterity, let him look to posterity for his reward,' your petitioner adopts that very ar- gument, and on its very principle prays for the adoption of the bill in- troduced by Mr. Sergeant Talfourd, seeing that by the present arrangement posterity is bound to paj' everybody or anybody but the true creditor." 8 Hood's Works (10 vols., London), 105. The various petitions presented to the House of Commons are given in the volume of speeches published by Sergeant Talfourd. See ante, p. 75, end of note. Much evidence was taken by the Royal Copj'right Commissioners, whose report was submitted to Parliament in June, 1878, to the effect, that, unless the duration of copyright is long enough, an author cannot realize a fair reward for the time and money which he has spent on a work of lasting value, and that this fact has a marked ten- dency to lessen the production of such works. In 1845, Wordsworth, then an old man, told Mr. Alexander Mac- millan, the well-known publisher, that he had just begun to receive any con- siderable sums from the sale of his poems. His returns were then about £300 a year ; whereas in 1876, in the opinion of Mr. Macmillan, the copy- rights of the poet, if they had not ex- pired, would have been worth £1,000 a year. Minutes of the Evidence taken before the Royal Commission on Copy- right, p. 16. Mr. Herbert Spencer pub- lished his early works at a great loss. It was twenty-four years before his losses were made up by the increasing value of his copyrights. Ibid. 257. In his. opinion, no publisher would have un- dertaken the publication of the Inter- national Scientific Series, unless he had " many years to recoup himself." Ibid. 286. Professor Huxley pointed out the ruinous effect which a short term of protection must have on the production of such a work as Cuvier's Ossemens Fossiles which is as valu- able and as much consulted now as when it was first published, a half a century ago. And the same, he said, is equally true of the whole class of botanical, zoological, and anatomical works, and the great mass of illus- trated books relating to physical science. Ibid. 307. A like opinion was expressed by Mr. T. H. Farrer concerning several valuable classical dictionaries which he had edited. Ibid. 277. The testimony of these and other witnesses is to the effect, that the extent and quality of literary production are largely influenced by the opportunities which the law gives to authors to realize the pecuniary re- ward of theif labors. 80 THE LAW OF COPYRIGHT AND PLATRIGHT. the public at the lowest possible price ; and, therefore, no greater inducement should be held out to authors than may be necessary for securing the production of the desired works ; " that "he could never 'bring himself to support any measure which goes further than to give the authors the minimum of inducement to produce their works ; and he did not think the legislature is in conscience at liberty to go further." Sir Ed- ward Sugden declared that he was " one of those who thought that there was no common-law copyright in the author beyond the manuscript when it was written, or whilst it remained in his own possession."^ Mr. Strutt alone of the opposition did not forget that the issue was one of property ; for he declared that, " from the moment an author puts his thoughts upon paper, and delivers them to the world, his property therein utterly ceases." ^ Worthy disciples of Lord Camden were these men. Chief among them was Lord Macaulay, who, it will be supposed, might have understood the merits of a cause so vital to his own profession, and represented it with some degree of intelligence. JBut, bringing the resources and methods of the rhetorician to the discussion of a theme that needed the mind of a jurist and a statesman, he exerted his influence to enforce the fallacies of Yates and Camden. With Yates, he thought that " copyright is a monopoly, and produces all the effects which the general voice of mankind attributes to monopoly." With Camden, he believed that the author's interests were not to be considered in legislating concerning the fruits of his toil. Going beyond either of them, he declared the " principle of copyright " to be " a tax on readers for the purpose of giving a bounty to writers. The tax is an exceedingly bad one ; it is a tax on one of the most innocent and most salutary of human pleasures ; and never let us forget, that a tax on innocent pleasures is a premium on vicious pleasures." Groping in such fog as this, it is not strange that Macaulay did not approach the only true ground on which the copyright question can be properly discussed ; viz., property. How little he understood the matter on which he was speaking, will be made apparent to the thoughtful by a representative passage from his speech : — 1 43 Hans. Pari. Deb. 3d ser. 555. 2 ibid. 1071. HISTORY OP LITERARY PROPERTY. 81 ^ " We all know how faintly we are affected by the prospect of very distant advantages, even when they are advantages which we may rea- sonably hope that we shall ourselves enjoy. But an advantage that is to be enjoyed more than half a century after we are dead, by somebody, we know not by whom, perhaps by somebody unborn, by somebody utterly unconnected with us, is really no motive at all to action. It is very probable that, in the course of some generations, land in the unexplored and unmapped heart of the Australasian Continent will be very valuable. But there is none of us who would lay down five pounds for a whole province in the heart of the Australasian Continent. We know that neither we, nor anybody for whom we care, will ever receive a farthing of rent from such a province. And a man is very little moved by the thought that in the year 2,000 or 2,100 somebody who claims through him will employ more shepherds than Prince Esterhazy, and will have the finest house and gallery of pictures at Victoria or Sydney. Now, this is the sort of boon which my honor- able and learned friend holds out to authors. Considered as a boon to them, it is a mere nullity ; but, considered as an impost on the public, it is no nullity, but a very serious and pernicious reality. " I will take an example. Dr. Johnson died fifty-six years ago. If the law were what my honorable and learned friend wishes to make it, somebody would now have the monopoly of Dr. Johnson's works. Who that somebody would be it is impossible to say ; but we may venture to guess. I guess, then, that it would have been some bookseller, who was the assign of another bookseller, who was the grandson of a third book- seller, who had bought the copyright from Black Frank, the Doctor's servant and residuary legatee, in 1785 or 1786. Now, would the knowledge that this copyright would exist in 1841 have been a source of gratification to Johnson ? Would it have stimulated his exertions ? Would it have once drawn him out of his bed before noon ? Would it have once cheered him under a fit of the spleen ? Would it have in- duced him to give us one more allegory, one more life of a poet, one more imitation of Juvenal? I firmly believe not. I firmly believe that, a hundred years ago, when he was writing our debates for the Gentleman's Magazine, he would very much rather have had twopence to buy a plate of shin of beef at a cook's shop underground. Con- sidered as a reward to him, the difference between a twenty-years' and a sixty years' term of posthumous copyright would have been nothing, or next to nothing. But is the difference nothing to us ? I can buy Rasselas for sixpence ; I might have had to give five shillings for it. I can buy the Dictionary, the entire, genuine Dictionary, for two guineas, perhaps for less; I might have had to give five or six guineas for it. . Do I 6 82" THE LAW OP COPYRIGHT AND PLAYRIGHT. grudge this to 'a man like Dr. Johnson ? Not at all. Show me that the prospect of this boon roused him to any vigorous effort, or sustained his spirits under depressing circumstances, and I am quite willing to pay the price of such an object, heavy as that price is. But what I do complain of is, that my circumstances are to be worse, and Johnson's none the better; that I am to give five pounds for what to him was not worth a farthing. The principle of copyright is this. It is a tax on readers for the purpose of giving a bounty to writers. The tax is an exceedingly bad one ; it is a tax on one of the most innocent and most salutary of human pleasures ; and never let us forget, Ihat a tax on innocent pleasures is a premium on vicious pleasures." ^ Apply this reasoning to the fruits of manual labor, and the satire becomes plain. Ask what interest the farmer, the mer- chant, the laborer, may feel in what becomes of his life's earn- ings after his death, when one of the strongest instincts of the father's heart is that the property left by him shall be enjoyed by his children and Iceep them from want. Often is this holy feeling the highest stimulus to labor, the chief motive in the accumulation of earnings. It is the will of the parent, as it is then tlie right of tlie ofiFspring, that the latter shall succeed to the property of the former. And yet Macaulay asked the Parliament of England what interest an author can have in his works after his death ! How much better Disraeli spoke on the same theme : — " There are works requiring great learning, great industry, great labor, and great capital, in their preparation. They assume a palpable form. You may fill warehouses with them, and freight ships. And the tenure by which they are held is, in my opinion, superior to that of all other property ; tor it is original. It is tenure which does not exist in a doubtful title, which does not spring from any adventitious cir- cumstances. It is not found ; it is not purchased ; it is not prescrip- tive. It is original. So it is the most natural of all titles, because it is the most simple and least artificial. It is paramount and sovereign, because it is a tenure by creation. The fault, therefore, that I find, not with the design of the bill, but with the bill itself, is that the title held by such a paramount tenure should for a moment be compro- mised." 2 1 8 Macaulay's Works (ed. by Lady Trevelyan), 200. 2 43 Hans. Pari. Deb. 3d ser. 575. HISTORY OP LITERARY PROPERTY. 83 It is not a pleasant spectacle to contemplate the authors and scholars to whom this century is most indebted begging in vain from the Parliament of Victoria a right which had been enjoyed by the literary men of the Elizabethan age. It is less pleasant to know that their defeat was due to the triumph of such igno- rance and sophistry as pervade the notions of Yates, Camden, and Macaulay. Like the statute of Anne, the 5 & 6 Vict/ c. 45, granted copyright in a " book ; " but the latter act defined this word " to mean and include every volume, part or division of a vol- ume, pamphlet, sheet of letter-press, sheet of music, map, chart, or plan separately published." The statute also provided for the regulation of the copyright in articles published in encyclopaedias, reviews, magazines, and periodicals. The duration of copyright in books fixed by the law of 1842 has continued to the present time. In the reign of William IV., authors were freed from a part of the oppressive tax which had been unjustly imposed on them for more thah a century. The number of copies required to be delivered to public libraries — which had been nine under the act of 1710,^ and eleven under that of 1801 ^ and that of 1814 3 — was reduced to five in 1836,* at which number it was continued by the statute of 1842. The last named law, 5 & 6 Vict. c. 45, provides, that a copy of the best edition of every book published shall be delivered to the British Museum ; and, if demanded, a copy, " on the paper of which the largest num- ber of copies of such book or edition shall be printed for sale," shall be given to the Bodleian Library at Oxford, the Public Library at Cambridge, the Library of the Faculty of Advocates at Edinburgh, and the Library of Trinity College, Dublin.^ In 1835 was passed the 5 & 6 Will. IV. c. 65, vesting in authors the sole privilege of publishing their lectures ; so that no one, " by taking down the same in shorthand or otherwise in writing, or in any other way, obtain or make a copy," may publish the lecture without the consent of the author. The latter, however, is required to give notice in writing to " two justices living within five miles from the place where such 1 8 Anne, c. 19. ' 41 Geo. III. o. 107. 8 54 Geo. III. c. 156. 4.6 & 7 WiU. IV. e. 110. » s. 8. 84 THE LAW OF COPYRIGHT AND PLAYRIGHT. lecture or lectures shall be delivered, two days at the least before delivering the same." The protection granted does not extend to " any lecture or lectures delivered in any university or public school or college, or on any public foundation, or by any individual in virtue of or according to any gift, endow- ment, or foundation." There is nothing in this statute to pre- vent any person from publicly delivering a lecture without the consent of the author. Copyright in prints and engravings was first granted in 1735 by the 8 Geo, II. c. 13, whose provisions have been modified by several later acts. By 7 Geo. III. c. 38, passed in 1767, the term of protection was extended from fourteen to twenty- eight years. The first statute for the protection of sculpture was the 38 Geo. III. c. 71, passed in 1798 ; but this was so defective that the law was revised in 1814 by the 54 Geo. III. c. 56, by which copyright is granted for fourteen years, with provision for an extension of fourteen years. It was not until 1862 that statutory copyright was conferred upon the authors of paintings, drawings, and photographs. By the 25 & 26 Vict. c. 68, passed in that year, such authors, provided they are British subjects, or resident within the dominions of the crown, may acquire the " sole and exclusive right of copying, engraving, reproducing, and multiplying such painting or drawing and the design thereof, or such photo- graph and the negative thereof, by any means, and of any size, for the term of the natural life of such author, and seven years after his death." Until 1833, there was no statute securing the exclusive right of representing a dramatic composition, and the few cases which had arisen in the courts gave dramatists little hope of protection for their common-law rights from these tribunals. The act of 3 & 4 William IV. c. 15, was passed in 1833 to meet this want. It gives to the " author of any tragedy, com- edy, play, opera, farce, or any other dramatic piece or enter- tainment," the sole liberty of representing, or causing it to be represented, at any place of dramatic entertainment in the British dominions. Protection is extended to both printed and manuscript dramatic compositions. Any person pirating HISTORY OP LITERARY PROPERTY. 85 a play is made liable to the payment of not less than forty shillings for every unlicensed representation, " or to the full amount of the benefit or advantage arising from such repre- sentation, or the injui-y or loss sustained by the plaintiff there- from, whichever shall be the greater damages." The provisions of this statute were extended to musical compositions by the 5 & 6 Vict. c. 45 ;i and the term of protection for both dramatic and musical compositions was enlarged from twenty-eight years to that prescribed for copy- right in books. Rights op Foreign Authors in England. In 1838 was passed the first " Act for securing to authors, in certain cases, the benefit of international copyright." ^ The ob- ject of this statute was to enable foreign authors to copyright their books in England, and to secure to English authors simi- lar advantages in foreign countries. The Queen was empow- ered to direct, by an Order in Council, that the author of a book first published in a foreign country should have copyright therein in the United Kingdom for a specified period, by com- plying with certain prescribed regulations ; but only on con- dition that similar privileges should be conferred by such country upon English authors. This law related only to books, and contained no provision for confefring upon authors the exclusive right of representing or performing dramatic pieces and musical compositions first published or publicly performed in a foreign country ; and did not apply to prints, sculpture, and other works of art. For the protection of such productions, the 7 & 8 Vict. c. 12, was passed in 1844. It repealed the act above cited, but re-enacted its general provisions relating to books, and extended them to prints, articles of sculpture, and other works of art. Provision was also made for conferring upon dramatists whose works had first been given to the public in foreign countries the sole lib- erty of representing or performing them for a specified period, in any part of the British dominions. While the 7 & 8 Vict.' c. 12, provided for extending protection to foreign books in the 1 s. 20. " 1 & 2 Vict. 0. 59. 86 THE LAW OP COPTRIGHT AND PLAYEI6HT. original language, it declared that nothing in it should be con- strued to prevent the printing, publication, or sale of transla- tions of foreign works.' By the 15 & 16 Yict. c. 12, passed in 1852, provision was made for the protection of translations of books and of dramatic compositions. The act, however, declared that " fair imitations, or adaptations to the English stage," of foreign dramatic and musical compositions, might be made by any person.^ This provision was repealed in 1875 by the 38 Vict. c. 12, which empowered the Queen, by Order in Council, to protect foreign plays against this species of piracy. International copyright conventions have been made between Great Britain and the following countries : Prussia and Saxony, in 1846 ; Brunswick, Tliuringian Union, Hanover, g,nd Olden- burg, in 1847 ; Prance, in 1851 ; Anhalt and Hamburg, in 1853 ; Belgium, in 1854 ; Prussia (additional), in 1855 ; Spain, in 1857 ; and Sardinia, in 1860. In the general copyright statutes. Parliament has made no express distinction between native and foreign authors. It has granted copyright to " authors," without prescribing any re- striction as to nationality. Tliere has been a marked diversity of judicial opinion as to the true meaning of the law on this point. Some jurists have contended that the privileges granted must be presumed to have been intended for British subjects exclusively. Others have maintained that both the spirit and the letter of the law are broad enough to embrace, on equal terms, all authors, whether native or foreign. Prior to 1854, the decisions of the courts on this question were conflicting. In that year, the House of Lords, in the case of JefFerys v. Boo- sey,^ held, on a divided opinion of the advising judges, that a foreign author, resident abroad, was not entitled to English copyright. In 1868, in the case of Routledge v. Low,* the same tribunal, protecting the rights of an American author who had been in Canada at the time of the publication of her novel in London, declared that an alien became entitled to English copyright by first publishing in the United Kingdom, provided he were anywhere within the British dominions at the time of 1 s. 18. 2 s. 6. 3 4 H. L. C. 815. * Law Eep. 3 H. L. 100. HISTORY OF LITERARY PROPERTY. 87 such publication. This judgment has continued to represent the law. Copyright Legislation in the United States. The first legislation on the subject of literary property in the United States appears at the close of the Revolution. In Jan- uary, 1783, Connecticut passed a " Law for the encouragement of literature and genius," with a preamble setting forth that " it is perfectly agreeable to the principles of natural equity and justice that every author should be secured in receiving the profits that may arise from the sale of his works ; and such security may encourage men of learning and genius to publish their writings, which may do honor to their country and ser- vice to mankind." ^ In March of the same year, the legislature of Massachusetts . passed " An Act for the purpose of securing to authors the exclusive right and benefit of publishing their literary produc- tions for twenty-one years." ^ The views entertained at that early day in this enlightened Commonwealth, concerning the importance and justice of protecting the rights of authors, are expressed in the strong language of the preamble : — " Whereas the improvement of knowledge, the progress of civiliza- tion, the public weal of the community, and the advancement of human happiness, greatly depend on the efforts of learned and ingenious per- sons in the various arts and sciences : as the principal encouragement such persons can have, to make great and beneficial exertions of this nature, must exist in the legal security of the fruits of their study and industry to themselves ; and as such security is one of the natural rights of all men, there being no property more peculiarly a man's own than that which is produced by the labor of his mind, — Therefore, to encour- age learned and ingenious persons to write useful books for the benefit of mankind, be it enacted," &c. — The act then declares that all books, treatises, and other literary works shall be the sole property of the authors, if citizens of the United States, their heirs and assigns, for twenty-one years from the date of first publication ; and pre- 1 St. of Conn. (ed. 1786) 133. ^ 1 Laws of Mass. (ed. 1807) 94. 88 THE LAW OP COPYRIGHT AND PLAYRIGHT. scribes penalties for violations of this right. This law, as well as that of Connecticut, contained a proviso that its benefits should not extend to the citizens of any other State which had not passed a similar law. At this time, the subject of literary property was brought before the old Congress by sundry papers and memorials ; and on the 2d of May, 1783, the following resolution, reported by Mr. Madison, was adopted : — " Resolved, That it be recommended to the several States to secure to the authors or publishers of any new books not hitherto printed, being citizens of the United States, and to their executors, administra- tors, and assigns, the copyright of such books for a certain time, not less than fourteen years from the first publication ; and to secure to the said authors, if they shall survive the term first mentioned, and to their executors, administrators, and assigns, the copyright of such books for another term of time not less than fourteen years, such copy or exclu- sive right of printing, publishing, and vending the same, to be secured to the original authors or publishers, their executors, administrators, and assigns, by such laws and such restrictions as to the several States may seem proper." ^ Pursuant to this recommendation, copyright laws were passed by Virginia in 1785,^ New York in 1786,^ and by other States, securing to authors, for a limited time, exclusive property in their literary works. Under this system, it was necessary for authors, in order to enjoy the benefits of protection in States other than that in which they resided, to copyright their works in each State having such laws. Authors' rights, therefore, depended on the legislation in the several States, as there was no national law relating to copyright. In order to afford to literary property, as well as to useful inventions and discoveries, adequate protection throughout the United States by a general law, the Federal Constitution, framed in 1787, empowered Congress " to promote the progress of science and useful arts by securing for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries." * Pursuant to this provision, the first copy- ' 8 Journals of Congress, 189. 2 12 Hening's Statutes at Large, 30. 8 2 Laws of New York (Jones & Varick's ed., 1789), 320. * Art. 1, s. 8, cl. 8. HISTORY OP LITERARY PROPERTY. 89 right law of the United States was passed May 81, 1790. It was entitled " An Act for the encouragement of learning, by securing the copies of maps, charts, and books to the authors and proprietors of such copies, during the times therein men- tioned." * This statute gave to authors who were citizens or residents of the United States, their heirs and assigns, copyright in maps, charts, and books for fourteen years ; and provided for a second term of the same length, if the author should be living at the expiration of the first. The applicant was required, before publication, to deposit, in the clerk's office of the district court in the judicial district where he resided, a printed copy of the title of the book or map, within two months after publi- cation ; to publish the record of this fact for four weeks in one or more newspapers printed in the United States; and, within six months after publication, to deliver to the Secretary of State of the United States a copy of the book. The penalty pre- scribed for publishing, importing, or selling a book in violation of the act was forfeiture of copies to the author or owner, " who shall forthwith destroy the same," and the payment of fifty cents for every sheet found in possession of the offender, — one half to go to the author or owner, and the other half to the United States. The act also provided a remedy against the unauthorized publication of manuscripts belonging to citizens or residents of the United States, — a provision which has been continued by subsequent statutes to the present time. The next statute relating to copyright was that of April 29, 1802, which went into effect the following January.^ This required the copy of the record in the district clerk's office, besides being published in a newspaper, to be printed on the title-page of the book, or that immediately following. It also extended the provisions of the act of 1790 to " the arts of designing, engraving, and etching historical and other prints." The act of Feb. 15, 1819, gave to the circuit courts original cognizance, in equity and at law, of all controversies respecting literary property arising under the laws of the United States."^ In 1831, the acts of 1790 and 1802 were repealed, and the law relating to copyright was embodied in one statute.* The 1 1 U. S. St. at L. 124. Mid. 436. 2 2 Id. 171. 1° December, 1880, Mr. Ellsworth 3 8 xd. 481. from the Committee on the Judiciary, 90 THE LAW OP COPYRIGHT AND PLATRI&HT. term of protection was extended from fourteen to twenty-eight years, with provision for a renewal for fourteen years to the author, his widow or children. The conditions to be observed by the author were somewhat changed. He was no longer required, except in the case of a renewal, to publish in a newspaper a copy of the record of filing the title, or to print it on the title-page. The former requirement now disappeared ; and, instead of the latter, it became essential to print in the book, or on the map or musical composition, the words which had formerly been used in the case of maps and engravings : " Entered according to act of Congress," &c. A printed copy of the title of the book was to be deposited before publication, and a copy of the book within three months after publication, with the district clerk, who was required to transmit, at least once a year, to the Secretary of State, a copy of such records, with the books deposited. The forfeitures and penalties were similar to those prescribed in the preceding statutes. Musical compositions were now for the first time expressly provided for, being put on the same footing as books. By the act of 1834, it was provided that all deeds in writing for the transfer or assignment of copyrights should be recorded in the office where the original copyright had been recorded ; and that every such deed which should thereafter be made, and not proved and recorded as prescribed, within sixty days after execution, should be void against any subsequent buyer without notice.^ The act of 1846, establishing the Smithsonian Institution, required one copy of every book, map, chart, musical composi- made to Congress a report, in which the then the literary man has title perfect following language was used : — and absolute, and should have his "Your committeebelieve that the just reward : he writes and he labors as as- claims of authors require from our siduously as does the mechanic or hus- legislation a, protection not less than bandman. The scholar who secludes what is proposed in the bill reported, himself, and wastes his life, and often Upon the first principles of proprietor- his property, to enlighten the world, has ship in property, an author has an the best rights to the profits of those exclusive and perpetual right, in pref- labors : the planter, the mechanic, the erence to any others, to the fruits of professional man, cannot prefer a better his labor. Though the nature of liter- to what is admitted to be his own.", ary property is peculiar, it is not the Reports of Committees, 21st Cong. 2d less real and valuable. If labor and Sess. (1830-31) Rep. No. 3. effort in producing what before was i 4 U. S. St. at L. 728. not possessed or known will give title, HISTORY OP LITERARY PROPERTY. 91 tion, print, cut or engraving, to be delivered within three months after publication to that institution, and one copy to the Library of Congress.i This provision was repealed in 1859, by a stat- ute which further provided that all copyright publications and the records relating to copyrights should be transferred from the State Department to that of the Interior, which was now made the custodian of such publications and records.^ In 1865, the owner was again required to transmit, within one month after publication, a copy of every book or other copyrighted article to the Library of Congress ; ^ and, in 1867, a penalty of twenty-five dollars was imposed for failure to make such delivery.* In 1861, an act was passed providing for an appeal of copy- right cases to the Supreme Court of the United States, without regard to the amount in controversy.^ In 1865, photographs and negatives were brought within the provisions of the copyright laws.^ Until 1856, there was no statute giving to dramatists control over the public representation of their plays. This want was met by the act of August 18 of that year, which conferred upon the author or owner of a dramatic composition, besides the exclusive right of printing and publishing given by previous laws, the sole liberty of performing or causing it to be per- formed in public. Any person infringing this right was made liable to damages, in a sum not less than one hundred dollars for the first and fifty dollars for every subsequent perform- ance.'' The provisions of this statute applied only to cases in which copyright was secured under the act of 1831 ; and, as the benefits of that law were by express words limited to citizen or resident authors, foreign dramatists acquired no rights by the Statute of 1856. All statutes relating to copyright were repealed in 1870, and the entire law on the subject embodied in one act.^ No change was made in the duration of copyright. To the things pro- 1 Act of Aug. 10, 1846, s. 10 ; 9 U. S. ^ 12 Id. 130. St. at L. 106. " 13 Id. 840. 2 Act of Feb. 5, 1859, ss. 6, 8 ; 11 U. ^ 11 Id. 138. S. St. at L. 380. ' Act of July 8, 1870, ss. 85 et seq. ; 16 8 13 Id. 540. U- S. St. at L. 212. 1 14 Id. 395. 92 THE LAW OP COPYRIGHT AND PLATRIGHT. tected by previous statutes were added paintings, drawings, chromes, statues, statuary, and models or designs intended to be perfected as works of the fine arts. A printed copy of the title of every book was required to be filed with the Librarian of Congress before publication ; and two copies of the book, to be delivered, within ten days after publication, to the same officer. In the case of paintings and certain other works of art, a description must be filed before and a photographic copy deliv- ered after publication. In 1873-74, the copyright, with all other statutes of the United States, was revised.^ In 1874, it was provided that the copyright notice appearing in a book or on a work of art might be in the form previously in use, or in the words " Copyright, 18 — , by A. B." ^ International Copyright. The subject of international • copyright has been brought before Congress several times, by bill or report ; but no law for that purpose has ever been passed. In February, 1837, a peti- tion of British authors, asking protection for foreign works in the United States, was presented to the Senate by Henry Clay.^ The subject was referred to a select committee, consisting of Messrs. Clay, Preston, Buchanan, Webster, and Ewing of Ohio. In the same month, this committee made a report urging Con- gress to pass an international copyright law, and submitted a bill for that purpose.* In the report was this language : — " That authors and inventors have, according to the practice among civilized nations, a property in the respective productions of their genius, is incontestable ; and that this property should be protected as eiFectually as any other property is, by law, follows as a legitimate consequence. Authors and inventors are among the greatest benefac- tors of mankind. They are often dependent exclusively upon their own mental labors for the means of subsistence ; and are frequently, from the nature of their pursuits or the constitution of their minds, incapable of applying that provident care to worldly affairs which other 1 U. S. Rev. St. ss. 4948-4971. ' 2 Senate Documents, 24tli Cong. 2 18 U. S. St. at L. 78. 2d Sess. (1836-37) Rep. No. 134. 4 Ibid. Rep. No. 179. HISTORY OF LITERARY PROPERTY. 93 classes of society are in the habit of bestowing. These considerations give additional strength to their just title to the protection of the law. " It being established that literary property is entitled to legal protec- tion, it results that this protection ought to be aiForded wherever the property is situated. A British merchant brings or transmits to the United States a bale of merchandise, and the moment it comes within the jurisdiction of our laws they throw around it effectual security. But, if the work of a British author is brought to the United States, it may be appropriated by any resident here, and republished, without any compensation whatever being made to the author. We should be all shocked if the law tolerated the least invasion of the rights of prop- erty in the case of the merchandise, whilst those which justly belong to the works of authors are exposed to daily violation, without the possibility of their invoking the aid of the laws. " The committee think that this distinction in the condition of the two descriptions of property is not just; and that it ought to be reme- died by some safe and cautious amendment of the law." On Feb. 21, 1868, Mr. Baldwin, from the Committee on the Library, reported favorably to the House of "Repi-esentatives a bill for extending protection to the works of foreign authors. " We are fully persuaded," said the committee, " tliat it is not only expedient, but in a high degree important, to the United States to establish such international copyright laws as will protect tlie rights of American authors in foreign countries, and give similar protection to foreign authors in this country. It would be an act of national honor and justice, in which we should find that justice is the wisest policy for nations, and brings the richest rewards."' Bills for extending protection to the works of foreign authors were introduced in the House of Representatives by Mr. Cox of New York, Dec. 6, 1871, and by Mr. Beck of Kentucky, Feb. 21, 1872; and in the Senate, by Mr. Sherman of Ohio, Feb. 21, 1872. Each of these was read twice, referred to the Committee on the Library, and ordered to be printed.^ On Dec. 18, 1871, a resolution, offered by Mr. Cox, was 1 House Reports, 40th Cong. 2d Representatives Baldwin of Massaohu- SesS. (1867-68) Rep. No. 16. This setts, Pruyn of New York, and Spald- committee was composed of Senators ing of Ohio. Morgan of New York, Fessenden of 2 Cong. Globe, 42d Cong. 2d Seas. Maine, and Howe of Wisconsin; and (1871-72) parts i. 29, ii. 1174, 1151. 94 THE LAW OP COPYRIGHT AND PLAYRI6HT. passed by the House, " that the Committee on the Library, be directed to consider the question of an international copy- right ; and to report to this House what, in their judgment, would be the wisest plan, by treaty or law, to secure the prop- erty of authors in their works, without injury to other rights and interests ; and, if in their opinion congressional legisla- tion is the best, that they report a bill for that purpose." ^ The whole subject for the time being seems to have been disposed of by the adverse report made to the Senate, Feb. 7, 1873, by Mr. Morrill of Maine, from the Joint Committee on the Library. This report closed as follows : — " Your committee are satisfied that no form of international copy- right can fairly be urged upon Congress, upon reasons of general equity or of constitutional law ; that the adoption of any plan for the purpose which has been laid before us would be of very doubtful advantage to American authors, as a class, and would be not only an unquestionable and permanent injury to the manufacturing interests concerned in producing books, but a hinderance to the diffusion of knowledge among the people and to the cause of universal education ; that no plan for the protection of foreign authors has yet been devised which can unite the support of all, or nearly all, who profess to be favorable to the general object in view ; and that, in the opinion of your committee, any project for an international copyright will be found upon mature deliberation to be inexpedient." ^ 1 Cong. Globe, 42d Cong. 2d Sess. circulation, and to increase the already (1871-72) part i. 199. existing obstacles to tlie dissemination Speeches in favor of Mr. Cox's bill of knowledge : Tlierefore, resolved that were made in committee of the whole the Joint Committee on the Library be by Mr. Archer of Maryland, March 23, and it hereby is instructed to inquire 1872, and afterwards by Mr. Storm of into the praotioability of arrangements Pennsylvania. Ibid, part iii. 1931, 2410. by means of which such reproduction, On Feb. 12, 1872, Mr. Kelly of both here and abroad, may be facilitated, Pennsylvania offered the following freed from the great disadvantages resolution in the House, which was re- that must inevitably result from the ferred to the Committee on the Library : grant of monopoly privileges such as " Whereas it is expedient to facilitate are now claimed in behalf of foreign the reproduction here of foreign works authors and domestic publishers." of a higher character than that of those Ibid, part ii. 972. now generally reprinted in this coun- ^ Senate Reports, 42d Cong. 3d Sess. try; and whereas it is in like manner (1872-73) Rep. No. 409. This com- desirable to facilitate the reproduction mittee consisted of Senators Morrill of abroad of the works of our own authors; Maine, Sherman of Ohio, and Howe of and whereas the grant of monopoly Wisconsin ; and Representatives Peters privileges, in case of reproduction here of Maine, Wheeler of New York, and or elsewhere, must tend greatly to in- Campbell of Ohio, crease the cost of books, to Umit their HISTORY OP LITEBAET PROPEETT. 95 Thus, Congress has repeatedly refused to grant protection to the works of foreign authors, and in every copyright statute passed since the formation of the government has emphatically declared that such works are legitimate subjects of piracy. This country is put to shame by the legislation of England and other foreign nations on this subject. The English laws, as far as they relate to foreign authors, show a comprehensive liberality, a broad, catholic spirit, not found in tliose of the United States. Not only are special advantages offered by the international copyright laws to men of letters of any country which will extend reciprocal privileges to English authors, but, in legislating " for the encouragement of learning " in Great Britain, Parliament has made no distinction between native and foreign authors. In the opinion of many statesmen and jurists, the law invites men of learning everywhere to send their productions to the United Kingdom for first publication, that England may become a centre of learning and culture. The most learned judges of the realm, from Lord Mansfield down to Lord Chancellor Cairns, have given this interpreta- tion to the statutes, have maintained that this is the law of the realm. It is true that the decision of the House of Lords in 1854 imposes on a foreign author a condition from which a subject is free ; ^ but the former may acquire the full benefit of the statute by his presence within the British dominions at the time of publication. The judgment making even this bodily presence necessary has been shaken to the foundation ; ^ and now the Royal Commissioners on Copyright, in their report submitted to Parliament in June, 1878, recommend that, on the condition of first publication in Great Britain, " the benefit of the copyright laws should extend to all British subjects and aliens alike." ^ After reviewing the steady refusal of the United States to grant protection to British authors, either by law or treaty, the commissioners take this enliglitened and philosophic position: — " It has been suggested to us that this country would be justified in taking steps of a retaliatory character, with "a view of enforcing inci- 1 Jefferys v. Boosey, 4 H. L. C. 815. ^ Report of the Royal Commission- 2 See Chap. IV., Rights of Foreign ers on Copyright, p. xiv, § 64. Authors in Great Britain. 96 THE LAW OP COPYRIGHT AND PLATEIGHT. dentally, that protection from the United States which we accord to them. This might be done by withdrawing from the Americans the privilege of copyright on first publication in this country. We have, however, come to the conclusion, that, on the highest public grounds of policy and expediency, it is advisable that our law should be based on correct principles, irrespectively of the opinions or the policy of other nations. We admit the propriety of protecting copyright ; and it appears to us that the principle of copyright, if admitted, is one of universal application. We therefore recommend that this country should pursue the policy of recognizing the author's rights, irrespec- tive of nationality." ^ Not less liberal should be the United States. Her gates bearing the inscription Tros Tyriusque mihi nulla discrimine agetur, should be opened wide to the authors of all tongues, all races, all creeds. All countries should be one for noble men who labor, in whatever vineyard, for the advancement of knowledge and truth. Whoever shall move^ Congress to pass a law inviting authors, composers, and artists, of every nation under the sun, to send their treasures of learning, science, and art to our shores, where they shall be protected, will deserve a monument more durable than brass. 1 Report of the Royal Commissioners on Copyright, p. xxxviii, § 251. COMMON-LAW PROPERTT IN UNPUBLISHED WORKS. 97 CHAPTER I. COMMON-LAW PROPERTY IN UNPUBLISHED WORKS. Literary Property defined. — Literary property is the ex- clusive right of the owner to possess, use, and dispose of intellectual productions. An intellectual creation without material form may exist in the mind of the author. But it is only when embodied in written or spoken language that it can possess the attributes of property ; for it is only by language that it can have any being out of the author's mind, that it can be enjoyed by others, that it can be identified. There can, then, be no property in a production of the mind unless it is expressed in a definite order of words. But the property is not in the mere words alone, — not alone in the one form of expression chosen by the author. It is in the intellectual creation, which language is merely a means of expressing and communicating. The words of a literary com- position may be changed by substituting others of synonymous meaning ; but the intellectual creation will remain substantially the same. This truth is judicially recognized in the established principle, that the property of the author is violated by an unau- thorized use of his composition, with a colorable change of words ; the test of piracy being not whether the identical lan- guage, the same words, are used, but whether the substance of the production is unlawfully appropriated. So an intellectual production may be expressed in any number of different lan- guages. The thing itself is always the same ; only the means of communication is different. The plot, the characters, the sentiments, the thoughts, which constitute a work of fiction, form an immaterial creation, which may be communicated by a hundred different tongues, — by the labial or the sign lan- guage of the mute, the raised letters of the blind, the compre- hensive characters of stenography. The means of communication ,7 98 THE LAW OF COPTETGHT AND PLAYRIGHT. are manifold ; but the invisible, intangible, incorporeal creation of the author's brain never loses its identity. The Bible has been translated into all tongues ; but its truths, its eloquence, its poetry, have been the same to all nations. Literary property, then, is not restricted to the one form of language in which thoughts are expressed, but is in the inteU lectual creation which is embod^ied in such language. This creation, in whatever language or form of words it can be iden- tified, the author may claim as his property. That there can be no property in thoughts, conceptions, ideas, sentiments, &c., apart from their association, is clear ; for they are then incapa- ble of being identified or owned exclusively. But their arrange- ment and combination in a definite form constitute an intellectual production, a literary composition, which has a distinct being capable of identification and separate ownership, and possess- ing the essential attributes of property. The property is not , inihe simple thoughts, ideas, &c., but in what is produced by their association. The property in an intellectual production is incorporeal, and is wholly distinct from the property in the material to which it may be attached. Indeed, literary property may exist inde- pendently of any corporeal substance. It may be as perfect in a production expressed in spoken as in one communicated by written or printed words. A poem when read, a lecture when delivered, a song when sung, a drama when acted, may have all the attributes of property, though not a word has been writ- ten or printed. The true test is not whether the thing is cor- poreal or incorporeal, not whether it is attached to a material substance, but whether it is capable of identification so that exclusive ownership may be asserted. The identity of an intellectual production is secured by the language in which it is expressed ; and this is true whether the language be spoken or written. When a composition has not been reduced to writing, it maybe more difficult, and in some cases impracticable, to prove the authorship, and thereby to establish a title to owner- ship. But the manuscript is but a means of proof. And when the title to the ownership is not disputed, or can be sdtisfacto- rily established without the existence of a writing, as it may be iu many cases, it is immaterial whether the composition has COMMON-LAW PROPERTY IN UNPUBLISHED WORKS. 99 been reduced to writing, or has been communicated only in spoken words. The Iliad was as valid a subject of property when recited from memory at the Greek festivals as it was when, long afterward, it appeared in written or printed lan- guage.^ As material property may pass out of the actual or personal possession of the owner, while the legal possession or title is in him, so literary property is within the legal domain of the owner, though it be in the actual possession of another. The owner may part with the paper on which a composition is writ- ten, or the book in which it is printed, without forfeiting any proprietary right in the composition itself. The legal title to Clarendon's History was not affected by the fact that a manuscript copy was for a century in the custody of those who were not the owners of the copyright. An intellectual produc- tion differs from any material substance in that it is capable of being multiplied or copied indefinitely, and of being used and 1 " The property in the copy thus abridged, is equally an incorporeal right to print a set of intellectual ideas or modes of thinking, communicated in a set of words and sentences and modes of expression. It is equally de- tached from the manuscript, or any other physical existence whatsoerer. . . . The property of the copy, thus narrowed, may equally go down from generation to generation, and possibly continue for ever, though neither the author nor his representatives should iave any manuscript whatsoever of the work, original, duplicate or manu- script. Mr. Gwynne was entitled, un- doubtedly, to the paper of the tran- script of Lord Clarendon's History; which gave him the power to print and publish it after the fire at Peters- ham, which destroyed one original. This might have been the only manu- script of it in being. Mr. Gywnne might have thrown it into the fire had he pleased. But at the distance of near a hundred years, the copy was adjudged the property of Lord Clar- endon's representatives ; and Mr. Gwynne's printing and publishing it without their consent was adjudged an injury to that property, for which in different shapes he paid very dear." Lord Mansfield, Millar v. Taylor, 4 Burr. 2.396, 2397. " A literary composition," said Sir William Blackstone, " as it lies in the author's mind, before it is substantiated by reducing it into writing, has the essential requisites to make it the sub- ject of property. While it thus lies dormant in the mind, it is absolutely in the power of the proprietor. He alone is entitled to the profits of com- municating, or making it public." Tonson w. Collins, 1 W. Bl. 322. In Abernethy v. Hutchinson, Lord Eldon doubted whether there could be property in lectures which had not been reduced to writing, and refused to grant an injunction on' this ground until the question should be deter- mined at law. 8 L. J. (Cli.) 209; s. c. 1 Hall & Tw. 28. As there was no question in this case that the plain- tifl" was the author and the owner of the lectures for which he claimed pro- tection, his property therein was in no wise affected by the non-existerceof a manuscript. 100 THE LAW OF COPYRIGHT AND PLATRIGHT. enjoyed at the same time by an unlimited number of persons. The right of property in it is the exclusive right to own and to use the thing itself. The owner may alone enjoy it, and exclude every other person from its enjoyment; or, without parting with the ownership, he may admit others to a private or personal use of the production. For the latter purpose, a copy is made and given to the user, who becomes the owner of the material copy, with a limited right to use and enjoy the intellectual production. But the production itself remains the property of the owner ; and the user acquires no rights of ownership entitling him to multiply copies, or otherwise to make a public use of the work. This is a right of property vested solely in the owner.^ Difierence between Common-Law Eind Statutory Right. — Property in intellectual productions is recognized and pro- tected in England and the United States, both by the common law and by the statute. But, as the law is now expounded, there ar& important differences between the statutory and the common-law right. The former exists only in works which have been published within the meaning of the statute ; and the latter, only in works which have not been so published. In the former case, ownership is limited to a term of years ; in the latter, it is perpetual. The two rights do not co-exist in the same composition ; when the statutory right begins, the com- mon-law right ends. Both may be defeated by publication. Thus, when a work is published in print, the owner's common- law rights are lost ; and, unless the publication be in accord- ance with the requirements of the statute, the statutory right is not secured. The common-law property in a literary com- position is violated by any unauthorized public use of it, whether by printing and circulating copies, or by reading it in public. Statutory copyright may be infringed by the circulation of copies ; but not by publicly reading copies.^ Copyright Defined. — Copyright is the exclusive right of 1 " No disposition/' said Lord Mans- author's express consent to print and field, "no transfer of paper upon which publish, much less against his will." the composition is written, marked or 4 Burr. 2396. impressed, though it gives the power ^ Statutory playright in a dramatic to print and publish, can be construed composition may be violated by pub- a conveyance of the copy, without the licly reading it. COMMON-LAW PROPERTY IN UNPUBLISHED WORKS. 101 the owner to multiply and to dispose of copies of an intellec- tual production.^ It is the sole right to the copy or to copy it. The word is used indifferently to signify the statutory and the common-law right of the owner in a literary or musical composition or work of art. As there are essential differences between the two rights, one is sometimes called copyright after publication, or statutory copyright ; and the other, copyright before publication, or common-law copyright. Copyright is also used synonymously with literary property. Thus, the exclusive right of the owner publicly to read a literary com- position, to exhibit a work of art, or to represent a drama, is often called copyright. This is not strictly correct ; and, es- pecially in the case of dramatic compositions, there are reasons for distinguishing in name the right of multiplying copies from that of representation. This latter right may well be called playright, for reasons which are given elsewhere.^ The Nature and Extent of Common-Law Rights. In what Productions. — Two principles are settled in English and American jurisprudence : 1. At common law, the owner of an unpublished literary composition has an absolute prop- erty therein .3 2. When the composition is published in print, the common-law right is lost.* 1 The 5 & 6 Vict. c. 45, s. 2, defines Obs. 408 ; Bartlett v. Crittenden, 4 Mc- copyright " to mean the sole and ex- Lean, 300, 5 Id. 32 ; Little v. Hall, elusive liberty of printing or otherwise 18 How. 165, 170 ; Banker v. Caldwell, multiplying copies of any subject to 3 Minn. 94 ; Paige u. Banks, 13 Wall, which the word is herein applied." 608 ; Parton v. Prang, 3 Cliff. 537 ; Copyright in a book, as secured by the Carter v. Bailey, 64 Me. 458 ; Kiernan American statute, is " the sole liberty v. Manhattan Quotation Telegraph Co., of printing, reprinting, publishing, . . . 50 How. Pr. (N. Y.) 194. To the same and vending the same." U. S. Rev. effect are the authorities cited in the Sts. s. 4952. following note and in notes 1, 2, 3, ^ See beginning of Chap. XIII. p. 128. See also the authorities cited * Br. Webb v. Rose, cited 4 Burr, in considering the common-law prop- 2330 ; Forrester v. Waller, Ibid. 2331 ; erty in dramatic compositions. Chap. Manley v. Owen, Ibid. 2329 ; Duke of XIII. Queensbury v. Shebbeare, 2 Eden, 329; * Br. Donaldson «. Becket, 4 Burr.. Millar v. Taylor, 4 Burr. 2803; Aber- 2408; Colburn u. Simms, 2 Hare, 543; nethy v. Hutchinson, 1 Hall & Tw. 28 ; Chappell u. Purday, 14 Mees. & W. Prince Albert v. Strange, 2 De G. & 303; Jefferys v. Boosey, 4 H. L. C. Sm. 652; on ap. 1 Mac. & G. 25; Tur- 815; Reade v. Conquest, 9 C. B. n. s. ner v. Robinson, 10 Ir. Ch. 121, 510. 755; Rooney v. Kelly, 14 Ir. Law Rep. Am. Jones v. Thome, 1 N. Y. Leg. n. s. 158; Midwinter v. Hamilton, 10 102 THE LAW OP COPYRIGHT AND PLAYEIGHT. It may be regarded as conceded that the same is true of all kinds of intellectual productions which have been made the subject of statutory copyright, including maps,' charts, musical compositions, engravings,^ photographs, paintings,^ works of sculpture, &c. In short, all productions of literature, the drama, music, and art, are within the protection of the law. " The property of an author or composer of any work," said Lord Chancellor Cottenham, " whether of literature, art or science, in such work unpublished and kept for his private use or pleasure, cannot be disputed, after the many decisions in which that proposition has been affirmed or assumed." * The Author's Rights absolute before Publication. — The prop- erty of an author in his intellectual production is absolute until he voluntarily parts with all or some of his rights.^ There is no principle of law by which he can be compelled to publish it or to permit others to enjoy it.^ He has a right Mor. Diet, of Deo. 8295 ; on ap. (Mid- winter V. Kincaid) 1 Pat. App. Cas. 488 ; Hinton v. Donaldson, 10 Mor. Diet, of Dec. 8307 ; Cadell v. Robert- son, Id. Lit. Prop. App. p. 16 ; on ap. 5 Pat. App. Cas. 493. Am. Wheaton v. Peters, 8 Pet. 591 ; Pulte V. Derby, 5 McLean, 828; Stowe u. Tliomas, 2 Wall. Jr. 547 ; Stevens t. Gladding, 17 How. 447 ; Wall v. Gor- don, 12 Abb. Pr. N. b. (N. Y.) 849; Rees V. Peltzer, 75 111. 475; Bouci- canlt V. Wood, 2 Biss. 34. 1 Rees V. Peltzer, supra. 2 Prince Albert v. Strange, infra. ' Turner v. Robinson, 10 Ir. Ch. 121, 510 ; Parton v. Prang, 3 Cliff. 637 ; Oer- tel B.Wood, 40 How. Pr. (N.Y.) 10 ; Oer- tel V. Jacob)', 44 How. Pr. (N. Y.) 179. * Prince Albert u. Strange, 1 Mac. & G. 25, 42. In the same case, Vice- Chancellor Bruce said : " Such then being, as I believe, the nature and foundation of the common law as to manuscripts independently of Parlia- mentary additions or subtractions, its operations cannot of necessity be con- fined to literary subjects. That would be to limit the rule by the example. Wherever the produce of labor is lia- ble to invasion in an analogous man- ner, there must, I suppose, be a title to analogous protection or redress." 2 De G. & Sm. 652, 696. In Tipping u. Clarke, 2 Hare, 383, the court did not doubt the existence of common-law property in unpub- lished books of account. 5 " The right of the author before publication we may take to be un- questioned, and we may even assume that it never was, when accurately de- fined, denied. He has the undisputed right to his manuscript ; he may with- hold it, or he may communicate it, and communicating, he may limit the number of persons to whom it is im- parted, and impose such restrictions as he pleases upon their use of it. The fulfilment of the annexed conditions he may proceed to enforce, and for their breach he may claim compensa- tion." Lord Brougham, Jefferys v. Boosey, 4 H. L. C. 962. 6 " There is no law which can com- pel an author to publish. No one can determine this essential matter of publication but the author. His manu- scripts, however valuable, cannot with- out his consent be seized by his credi- tors as property." McLean, J., Bartlett V. Crittenden, 5 McLean, 37. COMMON-LAW PROPERTY IN UNPUBLISHED WORKS. 103 to exclude all persons from its enjoyment ; and, when he chooses to do so, any use of the property without his consent is a violation of his rights. He may admit one or more per- sons to its use, to the exclusion of all others ; and, in doing so, he may restrict the uses which shall be made of it. He may give a copy of his manuscript to another person, without part- ing with his literary property in it.^ He may circulate cop- ies among his friends, for their own personal enjoyment, without giving them or others the right to publish such copies.^ 1 Duke of Queensbury v. Shebbeare, 2 Eden, 329 ; Thompson u. Stanhope, Amb. 737. 2 Prince Albert v. Strange, 2 De G. & Sm. 652 ; on ap. 1 Mac. & G. 25 ; Bartlett v. Crittenden, 4 McLean, 300, 5 Id. 32. " The nature of the right of an author in his works is analogous to the rights of ownership in other personal property, and is far more extensive than the control of copying after pub- lication in print, whicli is the limited meaning of copyright in its common acceptation, and which is the right of an author, to which the statute of Anne relates. Thus, if after composi- tion the author chooses to keep his writings private, he has the remedies for wrongful abstraction of copies anal- ogous to those of an owner of person- alty in the like case. He may prevent publication ; he may require back the copies wrongfully made ; he may sue for damages if any are sustained ; also, if the wrongful copies were publislied abroad, and the books were imported for sale without knowledge of the wrong, still the author's right to liis composition would be recognized against the importer, and such sale would be stopped. . . . Again, if an author chooses to impart his manu- script to otliers without general publi- cation, he has all the rights for dispos- ing of it incidental to personalty. He may make an assignment either abso- lute or qualified in any degree. He may lend, or let, or give, or sell any copy of his composition, with or with- out liberty to transcribe, and if with liberty of transcribing, he may fix the number of transcripts which he permits. If he prints for private circulation only, he still has the same rights, and all these rights he may pass to his as- signee. About the rights of the au- thor, before publication, at common law, all are agreed." Erie, J., Jefferys V. Boosey, 4 H. L. C. 867. " Undoubtedly," said Mr. Justice Clifford, " the author of a book, or of an unpublished manuscript, or of any work of art, has at common law, and independently of any statute, a prop- erty in his work until he publishes it or it is published by his consent or allowance ; and that property unques- tionably exists in pictures as well as in any other work of art. He lias the undisputed right to his manuscript ; he may withhold or may communicate it, and communicating, he may limit the number of persons to wliom it shall be imparted, and impose such restric- tions as he pleases upon tlie use of it. He may annex conditions, and proceed to enforce them, and for their breach he may claim compensation. Jefferys V. Boosey, 4 H. L. C. 815, 962 ; Millar V. Taylor, 4 Burr. 2396 ; Duke of Queensbury v^ Shebbeare, 2 Eden, 329. Numerous other decided cases also affirm the same proposition, that the author of an unpublished manuscript has the exclusive right of property therein, and that he may determine for himself whether the manuscript shall be made public at all ; that he may, in all cases, forbid its publica- tion by another before it has been pub- lished by him or by his consent or allowance." Parton v. Prang, 3 Cliff. 548. 104 THE LAW OP COPYRIGHT AND PLAYRIGHT. So, also, without forfeiting his rights, he may communicate his work to the general public, when such communication does not amount to a publication within the meaning of the statute. Thus, in the United States, a manuscript lecture., sermon, or any literary composition, may be delivered or read to the public by the author, or a dramatic or musical composition publicly performed, and no. person without the consent of the author acquires the right to make a similar public use of it, or to print it.i And the same is true in England of literary compositions which are not dramatic. Literary Property Personal, and may be transferred by Parol. — The literary property in an unpublished work is personal, and is subject to the same general rules which govern per- sonal property. It may be transmitted by bequest, gift, sale, operation of law, or any mode by which personal property is transferred. " This property in a manuscript, is not distin- guishable from other personal property. It is governed by the same rules of transfer and succession, and is protected by the same process, and has the benefit of all the remedies accorded to other property so far as applicable." ^ While there has been much discussion as to the, necessity of a writing in assigning statutory copyright, it has never been disputed, and is well settled, that the literary property in an unpublished work may be transferred by word of mouth.^ " Personal property," said Mr. Justice Clifford, " is transfer- able by sale and delivery ; and there is no distinction in that respect, independent of statute, between literary property and property of any other description." * 1 See Chap. XIII. The case of Power v. Walker, 3 Maule 2 Allen, J., Palmer v. De Witt, 47 & S. 7, shows that it was the statute N. Y. 538. and not the common law which required 3 Turner v. Eobinson, 10 Ir. Ch. 121, that the assignment should be in writ- 510 ; Little v. Gould, 2 Blatchf. 165, ing. It would be a waste of time to 862 ; Lawrence v. Dana, 2 Am. L. T. add more than that the copyright is R. N. s. 402 ; Palmer o. De Witt, 47 incident to the ownership, and passes N. Y. 532 ; Parton v. Prang, 3 Cliff, at the common law with a transfer of 537. " The first section of the English the work of art." Smith, M. R., Tur- statute of the 8 Anne, c. 19, dis- ner v. Robinson, 10 Ir. Ch. 142. tinctly recognizes the right to transfer * Parton v. Prang, 3 Cliff. 550. and assign copyright by the common " Owners of personal property," con- law, although assignments under that tinned the same judge, " have the act must be in writing and witnessed, right to sell and transfer the same as COMMON-LAW PROPERTY IN UNPUBLISHED WORKS. 105 No Rights Lost by Parting with Manuscript. — When the owner parts with his manuscript, he does not transfer the ex- clusive right to copy it, unless there be an express or implied agreement to that effect. Where the second Lord Clarendon had given to Mr. Gwynne the manuscript of his father's His- tory of the Reign of Charles II., and said that " he might take a copy thereof, and make use of the same as he should think fit," the court held, " it was not to be presumed that Lord Clarendon, when he gave a copy of the work to Mr. Gwynne, intended that he should have the profit of multiplying it in print ; that Mr. Gwynne might make every use of it except that." ^ And so when Lord Chesterfield told Mrs. Stanhope that she might keep certain letters which he had written to his son, whose widow she was, it was held that he " did not mean to give her leave to print and publish them." ^ Southey did not lose his rights in his manuscript by letting it remain twenty-three years in the possession of a bookseller.^ " To make a gift of a copy of the manuscript," said Mr. Justice McLean, " is no more a transfer of the right or abandonment of it, than it would be a transfer or an abandonment of an exclusive right to republish, to give the copy of a printed work."* inseparable incidents of the property ; property to another ; and if he does and the author or proprietor of a manu- so, his assignee takes the entire prop- script or picture possesses that right as erty, and it is a great mistake to sup- fully, and to the same extent, as the pose that any act of Congress, at the owner of any other personal property, date of the sales of the picture in this the same being incident to the owner- case required that such an assignment ship. Sales may be absolute or con- should be in writing; and the pleadings ditional, and , they may be with or show that the sale and delivery in each without qualifications, limitations, and case were absolute and unconditional, restrictions; and the rules of law and without any qualification, limita- applicable in such cases to other per- tion, or restriction, showing that the sonal property must be applied in entire property was transferred from determining the real character of a sale the complainant and became rested in of literary property. Proper attention the respondent." to these considerations will furnish the i Duke of Queensbury v. Shebbeare, true explanation of many, if not all, 2 Eden, 329. the cases referred to by the complain- 2 Thompson v. Stanhope, Amb. 737. ant, which are supposed to support the ' Southey v. Sherwood, 2 Meriv. second proposition for which he con- 435. The injunction was refused on tends. Beyond doubt the right of first other grounds. publication is vested in the author ; * Bartlett v. Crittenden, 5 McLean, hut he may sell and assign the entire 41. 106 THE LAW OP COPYRIGHT AND PLATRIGHT. But an unconditional sale of a painting is a transfer of the entire property in it.^ Limited Assignment. — The owner may make an absolute or a limited assignment of his rights. He may convey the exclu- sive right to publish his manuscript in one country, and reserve to himself the exclusive right of publication in another.^ So also he may transfer the sole liberty of representing an unpub- lished drama in any place, without parting with the similar right for any other place.^ Foreigners' Rights. — Whatever may be the disabilities of an alien under the copyright statutes, his rights at common law are the same as those of a citizen.* " This incorporeal right or property may be possessed by any one who may acquire or hold personal property in England, as far as the right of prop- erty depends upon the common law. The right or property is merely personal ; and an alien friend, by the common law, has as much capacity to acquire, possess and enjoy such personal right or property as a natural-born British subject." ^ " The alienage of the author," said the New York Court of Appeals, " is no obstacle to him or his assignee in proceeding in our courts for a violation, or to prevent a violation of his rights of property in his unpublished works." ^ 1 Barton v. Prang, 3 Cliflf. 537. See Calvin's case (7 Ooke, 17 a), it was also Turner u. Robinson, 10 Ir. Ch. 121, held that ' an alien friend may, by the 510. common-law, have, acquire, and get ^ See Chap. VI. within the realm by gift, trade, or other 'See Chap. XV., Transfer of Play- lawful means, any treasure or goods right. personal whatsoever, as well as any * Jefferys o. Boosey, 4 H. L. C. Englishman, and may maintain action 815 ; Keene v. Wheatley, 9 Am. Law for the same.' This has always been Reg. 33 ; Crowe v. Aiken, 2 Biss. 208 ; accepted as the common law of the Palmer v. De Witt, 47 N. Y. 532. United States. An alien friend may 5 Wightman, J., Jefferys v. Boosey, resort to the tribunals of this State for 4 H. L. C. 885. " By the common law the prosecution of any right recognized of England," said Maule, J., "aliens by our laws, or the redress of any are capable of holding all sorts of per- wrong cognizable by our courts, sonal property and exercising all sorts " The right to literary property is as of personal rights." Ibid. 895. sacred as that to any other species of 6 Palmer v. De Witt, 47 N. Y. 540. property. The courts of the State are "Real property," said Allen, J., in open to an alien friend pursuing his prop- delivering the opinion of the cqurt, erty, and seeking to recover it from a 538, "is governed by the lex loci rei wrong-doer; and there is nothing in Slice, and an alien can only acquire and any positive law, or in the policy of the have title as permitted by the local government, which would close the law. But not so as to personalty. In door against the same alien friend COMMON-LAW PKOPERTY IN UNPUBLISHED WORKS. 107 Violation op Common-Law Rights. The owner's common-law rights are invaded when, without his consent, his manuscript is published in print,^ when his dramatic or musical composition is publicly performed,^ or when copies of his work of art are either publicly circulated or exhibited.^ He is entitled to prevent or to restrain by injunction the unlawful use of his work, and to recover by an action at law for the damages he has sustained. By Public Reading or Delivery of Lecture. — There is no reported case in which it has been expressly held that the unauthorized delivery in public of an unpublished lecture, or the public reading, of a manuscript, is a violation of the owner's common-law rights. But the principle is clear that such use of an unpublished production is piratical. It is the same in prin- ciple as the unlicensed representation of a manuscript play. When Abernethy, the distinguished surgeon, sought to restrain the publication in the Lancet of unpublished lectures which he had delivered at St. Bartholomew's Hospital in London, Lord Eldon was " clearly of opinion that when persons were admitted as pupils or otherwise to hear these lectures, al- though they were orally delivered, and although the parties might go to the extent, if they were able to do so, of putting down the whole by means of shorthand, yet they could do seeking protection for the fruits of his for the protection of acknowledged mental labor, by restraining its publi- rights of property, and are entitled to cation against his wishes. The pro- the remedies given by law." teetion offered by the common law to ^ Br. Webb v. Eose, cited 4 Burr. literary labor is very slight at the 2330; Forrester v. Waller, Ibid. 2381; best; but, such as it is, it is accorded Duke of Queensbury v. Sliebbeare, 2 to an alien friend and citizen alike, Eden, 329 ; Macklin B.Richardson, Amb. and both are regarded with equal favor. 694 ; Millar v. Taylor, 4 Burr. 2303 ; Ab- " In declaring the rules of law and ernethy v. Hutchinson, 1 Hall & Tw. 28. applying legal remedies for the redress Am. Bartlett v. Crittenden, 4 McLean , or prevention of wrong, there is no 300, 5 Id. 32; Palmer v. De Witt, distinction between the right of the 47 N. Y. 532 ; Boucicault v. Hart, 13 banker to his bills and bonds, embez- Blatehf . 47. To the same effect are the zled and found here in the possession cases in which the publication of let- of a wrong-doer, and the right of an ters has been enjoined, cited post, p. 128, author to his manuscript clandestinely notes 1, 2, 3. or surreptitiously taken and brought ^ gee Chap. XIII. here for publication, to his prejudice ' Prince Albert v. Strange, 2 De G. and the destruction of all its value as & Sm. 652 ; on ap. 1 Mac. & G. 25 ; property. Both resort to the courts Turner v. Robinson, 10 Ir. Ch. 121, 510. 108 THE LAW OP COPYRIGHT AND PLAYRIGHT. that only for the purposes of their own information, and could not publish for profit that which they had not obtained the right of selling." ^ By Copying Works of Art. — In Turner V. Robinson,^ the defendant was charged with piracy, in haying made for sale copies of a painting representing the death of Chatterton. He denied direct copying, but admitted that he had seen the original while on exhibition, and said that he had made his photographs from an arrangement of figures, objects, and scen- ery, which he had prepared in his own gallery. He further admitted that he had made the arrangement from his recollec- tion of the painting, and with a view of presenting a stereo- scopic photograph of the same representation as that given by the painting. The court did not hesitate to declare that this was an unlawful use of the plaintiff's property. " The Stereo- scopic Slides," said the Lord Justice of Appeal, " are not photographs taken directly from the picture, in the ordinary mode of copying ; but they are photographic pictures of a model itself copied from, and accurately imitating in its design and outline, the petitioner's painting. It is through this medium that the photograph has been made a perfect representation of the painting. Thus the object contrived and achieved, and the consequent injury, are the very same as if the copy had, in 1 Abernethy v. Hutchinson, 1 Hall & he can, and afterward to use the Tw. 40. Lord Eldon, however, doubted information thus acquired in his own whether there could be property in medical practice, or to communicate it lectures which had not been reduced to students or classes of his own, with- to writing, and granted an injunc- out involving the right to commit the tion on the ground of breach of con- lecture to writing, for the purpose of fidence. subsequent publication in print or by In Keene v. Kimball, 16 Gray (82 oral delivery. So any one of the Mass.), 551, Hoar, J., said: "We do audience at a concert or opera may not intend in this decision to inti- play a tune which his ear has enabled mate that there is any right to report, him to catch, or sing a, song which he phonographically or otherwise, a leo- may carry away in his memory, for his ture or other written discourse which own entertainment or that of others, its author delivers before a public for compensation or gratuitously, while audience, and which he desires again he would have no right to copy or to use in like manner for his own publish the musical composition." See profit, and to publish it without his also language of McLean, J., Bartlett consent, or to make any use of a copy v. Crittenden, 4 McLean, 303, 304, thus obtained. The student who at- quoted post, p. 122. tends a medical lecture may have a ^ \0 Ir. Ch. 121, 610. perfect right to remember as much as COMMON-LAW PROPEETY IN UNPUBLISHED WORKS. 109 breach of confidence, been made on the view, and by the eye ; and no court of justice can admit that an act illegal in itself can be justified by a novel or circuitous mode of effecting it. If it is illegal, so must the contrivance be by means of which it was effected." ^ By Exhibiting Copies. — In Prince Albert v. Strange,^ the defendant was enjoined not only from exhibiting copies of etchings which he had taken from plates unlawfully obtained, but also from selling descriptive catalogues of such etchings. It was contended on behalf of the defendant, that while the owner might prevent the sale or public exhibition of copies of the drawings, it was no violation of any rights of property to publish a mere description of them. The soundness of this distinction was not recognized by the court. " It being admitted," said Lord Cottenham, " that the defendant could not publish a copy, that is an impression of the etching, how in principle does a catalogue, list, or description differ ? A copy or impression of the etching would only be a means of communicating knowledge and information of the original, and does not a list and description do the same ? The means are different, but the object and effect are similar ; for in both the object and effect is to make known to the public more or less of the unpublished work and composition of the author, which he is entitled to keep wholly for his private use and pleasure, and to withhold altogether, or so far as he may please, from the knowledge of others."^ This ruling was doubtless correct in this case, because the etchings had been kept wholly private by the owners, and had in no sense been published. But when drawings, paintings, statues, or any works of art, have been published by being publicly exhibited, there seems to be no principle of property which will enable the owner to prevent another from publishing a verbal description of them. When a thing is kept in strict privacy, the owner may have a right to say that even a descrip- tion of it shall not be made public ; but when the thing itself is published, as it may be by being publicly exhibited, though the owner's rights of property are not lost by such publication, 1 10 Ir. Ch. 521. 2 2 De G. & Sm. 652; on ap. 1 Mac. & G. 25. 3 1 Mac. & G. 43. 110 THE LAW OP COPYRIGHT AND PLATRIGHT. it is difficult to see how in law they are prejudiced by a mere description in writing of the work. In what Court Redress Sought. — In the United States, actions, and suits for the infringement of common-law rights, must be brought in a State court, unless a federal court has jurisdiction by virtue' of the citizenship of the parties ; in which case redress may be sought in either tribunal.^ Character op the Work. In the case of statutory copyright, the theory of the law is that a work, to be entitled to protection, must be oiiginal, and innocent, and have some literary, art, or other value, which will contribute to the information, instruction, or enjoyment of others than the owner. It is true that the requirements of the law as to value are by no means exacting, and that statutory copyright may be secured for a production whose merit is little more than nothing. But the statute was not intended to protect a thing utterly destitute of any value as a literary or art production. The question now arises, whether the same principles govern literary property at common law ; and whether all protection is to be denied to a production which is not original, valuable, or innocent. At common law, the author has two general remedies for the protection of his property in a work which he has not himself made public in any way. He is entitled, 1, to prevent its unauthorized publication ; 2, to claim damages which he has sustained by such publication. We shall first consider whether the former remedy exists when the work is without the quali- ties essential to statutory copyright. Originality.- — With respect to originality, the principle seems to be the same whether statutory or common-law protection is claimed. For this consideration affects directly the title of the property. If a person claims to be the owner of an intel- lectual production, on the ground that it is the creation of his own mind, it is obvious that his title will fail when there is an entire absence of originality, when the production is a mere copy of something else. 1 See Chap. XII. COMMON-LAW PROPERTY IN UNPUBLISHED WORKS. Ill Literary Merit. — Is it essential that a manuscript, a statue, or a painting shall have literary or art merit, however little, to be entitled to the protection of tlie common law ? The sound doctrine would seem to be that value, at least market or commercial value, is not an essential attribute of this kind of property. What may be the literary or art merit of the work, what value it may have to the public, or how far it may be use- ful to society, are not legitimate subjects of inquiry in determin- ing the owner's exclusive right to its control before publication. Property may exist in that which has no commercial value. A person may own a useless swamp, a barren crag, or a sterile waste so worthless that he cannot give it away ; yet it belongs to him, and the law will aid him in preventing another from appropriating it, or otherwise unlawfully using it. The same is true of intellectual property. A manusci-ipt may be void of literary qualities, a painting destitute of merit, a statue without art excellence. Yet it may be valued by the owner ; and, whether it is or not, he has a right to say that it shall not be made public, or used without his consent. It is im- material for what purpose the work has been produced, or whether the author did or did not intend it for public use. Were the rule otherwise, the author might be wrongly subjected at any moment to humiliation, loss of reputation, or substantial injury, by the publication of his production against his will. " The question, however," said Vice-Chancellor Bruce, " does not turn upon the form or amount of mischief or advantage, loss or gain. The author of manuscripts, whether he is famous or obscure, low or high, has a right to say of them, if inno- cent, that whether interesting or dull, light or heavy, salable or unsalable, they shall not without his consent be published." ^ ^ Prince Albert v. Strange, 2 De G. common law of this exclusire right 1 & Sm. 694. " What, however," con- Does it exist only when the manuscript tinned the same judge, " can be the de- is intended to be published 1 or does it fendant's right or that of any person depend upon its pecuniary value or but the owners of the plates to this intrinsic merits as a literary composi- benefit ? It is for them to use, or be- tion 1 To each question we think the stow or withhold, nor can a stranger reply may be confidently given cer- be allowed to say tliat they do not tainly not. In none of the cases is want it. They alone are entitled to there any reference to these circum- decide whether, and when, and how, stances or any of them as necessary to and for whose advantage their property be averred or proved in order to estab- shall be made use of." Ibid. 698. lish the rights of the author or the " What then is the foundation at jurisdiction of the court ; and in some 112 THE LAW OF COPYRIGHT AND PLAYRIGHT. This doctrine has been fully recognized in the case of letters, ■which are considered further on in this chapter ; and the prin- ciples which have been judicially affirmed in such cases are equally applicable to all kinds of unpublished works. Writings not Innocent. — The publication of an immoral, seditious, blasphemous, or libellous work, is looked upon as unlawful ; and for that reason it has been held that such a work cannot be the subject of statutory copyright.^ Hence, when the author has published a work of this kind, he is powerless to prevent any other person from republishing it, and he is not entitled to recover for damages sustained through loss of profits by such unauthorized publication. This principle was extended to unpublished works by Lord Eldon, who held that the common law affords no protection for a manuscript which is not innocent. The question was brought before him in 1817, when the poet Southey applied for an, injunction to restrain the publication of Wat Tyler. This poem had been written in 1794, and sent by the poet to a bookseller, who decided not to publish it. The manuscript was not returned to the author ; and twenty-three years after- ward the poem was published for the first time by the defendant, who had by some means obtained the manuscript, or a copy, without the knowledge or consent of the author. The motion for an injunction was opposed on the ground that the poem was seditious, and therefore the author was entitled to no protection. This view of the law was adopted by Lord BIdon, who, misapplying a dictum of Chief Justice Eyre, refused to grant the injunction until Southey should establish his rights at law, and said : " If this publication is an innocent one, I apprehend that I am authorized by decided cases, to say that whether the author did or did not intend to make a profit by its publication, he has a right to an injunction to prevent any the admitted facts repel the supposition \>y an enemy with the view to secure that such proofs could he required. . . . profits to himself, or to disgrace the We can perceive no reason for doubt- artist by its public exhibition, a court ing that the exclusive property of an of equity would renounce its principles autlior rests exactly upon the same should it refuse to protect the owner, ground as that of a manufacturer or the unfortunate artist, by a peremptory artist — a painting maybe a wretched injunction." Duer, J., Woolsey u. Judd, daub— a statue, a lamentable abor- 4 Duer (N. Y.), 386. tion ; yet, should either be purloined i See Chap. III. COMMON-LAW PROPERTY IN UNPUBLISHED WORKS. 113 other person from publishing it. If, on the other hand, this is not an innocent publication, in sun.h a sense as that an action would not lie in case of its having been published by the author, and subsequently pirated, I apprehend that this court will not grant an injunction." ^ In holding that an author has no right to prevent the publi- cation of a work which he cannot lawfully publish. Lord Eldon overlooked a vital distinction between literary property at the common law and copyright as regulated by the statute. The latter is a right which exists only in a published work, and which entitles the owner to control the publication of a work after he has himself published it. The right relates solely to publication, which is the foundation of the right. When the publication is unlawful, it is clear that the right cannot be enforced ; for the statute will not aid one person in restraining another from publishing what neither has a right to publish. Hence, when the protection of the statute is sought, it is proper to inquire whether the character of the work is such as will render its publication unlawful. But to apply this principle to unpublished works will be destructive of valuable rights of property therein. For a work whose general publication may be objectionable or unlawful may be put to innocent and legitimate uses without being gen- erally published. This fact is recognized by the common law, which does not restrict the rights of property in an unpublished work to its publication, but protects the owner in every harm- less use of it. Even though he may not privately or confiden- tially communicate it to a limited number of persons, for restricted uses, he has a right to keep it to himself, and to say that no person without his consent shall publish or use it in any way whatever. This right to exclude others from its use is as inviolable as the right to publish.^ The two rights are distinct 1 Southey v. Sherwood, 2 Meriv. protecting property it is that the com- 437. " So the injunction," says Lord mon law, in cases not aided nor pre]- Campbell, " was refused ; and hun- udiced by statute, shelters the privacy dreds of thousands of copies of Wat and seclusion of thoughts and senti- Tyler, at the price of one penny, ments committed to writing and de- were circulated over the kingdom." sired by the author to remain not gen- 10 Lives of the Chancellors (5th Eng- erally known." Bruce, V. C, Prince lish ed.), 257. Albert v. Strange, 2 De G. & Sm. 2 " Upon the principle, therefore, of 695. 8 114 THE LAW OP COPYRIGHT AND PLAYRIGHT. and independent. The right to publish may be defeated by the fact that the work cannot be lawfully published ; but this con- sideration cannot prejudice the right to prevent publication. The theory of Lord Eldon is based on the ground that a work immoral, seditious, or libellous, is unlawful, and therefore entitled to no protection. It rests solely on the assumed unlaw- ful character of the production. But the law takes no cogni- zance of these obnoxious qualities until the work is published. The violation of the law consists ifi publishing the offensive matter. Publication is the essence of the wrong. Whatever may be the character of the work, it is innocent and harmless in the eye of the law while the owner keeps it to himself; and, because he cannot make any public use of it, he does not thereby lose the right to possess and enjoy it himself, and to exclude others from its use. Question of Damage affected by Character of Production. — The above considerations apply in determining the right of an author to prevent the unlicensed publication of his work. But the principle is different wlien he seeks to recover for a loss of profits which he has sustained by such publication. In such case, the market-value of the work will be a legitimate subject of inquiry. For,, when the profits of publication are claimed, it must appear that the work can be lawfully published ; and it is obvious that the author is not entitled to such profits, when the publication is unlawful by reason of being immoral, sedi- tious, libellous, or blasphemous. ^ This doctrine was referred to by Lord Chief Justice Eyre, in a case which is not reported, but was cited by Sir Samuel Eom- ily in his argument in Southey i;. Sherwood.^ Dr. Priestley, having lost certain unpublished manuscripts in consequence of a mob in Birmingham, brought an action for damages against the hundred, in which he offered to prove by booksellers that the manuscripts were of great pecuniary value for publication. The defence set up was that Dr. Priestley had been in the habit of publishing works injurious to the administration of the gov- 1 Whether the author may main- is a question which will not be exam- tain an action for damages, otlier than ined here. It can hardly be considered the loss of profits, for the unlicensed a question of property, publication of an obnoxious manuscript, ^ 2 Meriv. 437. COMMON-LAW PROPERTY IN UNPUBLISHED WORKS. 115 eminent ; but no evidence to that effect was offered. The Lord Chief Justice is reported to have said, that, " if any such evi- dence had been produced, he should have held it fit to be received against the claim made by the plaintiff." This ruling was correct ; for the question of damages would have been clearly affected by proof showing that the publication of the manuscripts by the author would liave been unlawful by reason of their seditious character. And to this extent only go the expressed views of the Chief Justice who presided at the trial. But this dictum, on which Lord Eldon based his decision in Southey v. Sherwood, gives no support whatever to the doctrine there affirmed. There was a vital distinction between the two cases. Southey claimed the right to prevent publication ; whereas Dr. Priestley sued for the loss of profits, which he alleged he might have realized by publication.^ Publication. We may now inquire what is a publication of an intellectual production, and what kind of a publication it is that works a forfeiture of the owner's common-law rights. Properly speak- ing, a work, is published when it is communicated to the gen- eral public. Literary, dramatic, and musical compositions may be published by being read, represented, or performed, or by the circulation of printed or manuscript copies. Paintings, works of sculpture, and similar productions, are published when publicly exhibited. In short, to publish a thing is to make it public by any means or in any manner of which it is capable of being communicated to the public.^ At common law, the ^ Lord Campbell has sharply critl- "It is by publication of the thing cised the decision of Lord Eldon in itself," said the court, " that the com- Southey v. Sherwood, and also that in mon-law right is lost, and not by the Wolcott B.Walker. See Chap. Ill, note, publication of something else." 10 Ir. ■ 2 In Prince Albert v. Strange, Vice- Ch. 121, 133. And so the court said that Chancellor Bruce held, that to publish the publication of a bust would not be a descriptive catalogue of etchings or a publication of the statue itself. Ibid, drawings amounts to a publication of If publication of an engraving of a them. 2 De G. & Sm. 662, 694. In picture is not a publication of the Turner i/. Robinson, it was held that picture itself, publication of a descrip- printing in a magazine an engraving live catalogue of etchings cannot be a of a painting was a publication of the publication of the etchings. What engraving, but not of the painting, the court meant in Prince Albert v. 116 THE LAW OF COPYRIGHT AND PLATRIGHT. ■word publication may be used in this large sense ; but it has a more restricted signification when used with reference to the statutes conferring copyright. The latter meaning will be considered after it has been shown that the common-law rights in a work are forfeited only when it is published within the meaning of the statute. Author's Rights after Publication not lost by Common Law, but taken away by Statute. — At common law, the ownership of literary property is not lost by any publication of the work. A literary composition may be published in print or read to the public, a dramatic or musical composition may be publicly per- formed, a work of art may be publicly exhibited, without preju- dice to the owner's rights or the remedies for the protection of those rights. The rights and the remedies are the same after as before publication. When these rights are lost by publica- tion, it is not by force of the common law, but by operation of the statute, as it has been judicially construed. This principle is put beyond doubt by the judgment pronounced by the House of Lords in 1774 in Donaldson v. Becket.^ Before this deci- sion was rendered, the courts of chancery had uniformly recog- nized and protected common-law copyright in printed books ; ^ and the court of King's Bench, after an exhaustive examina- tion of the question, had affirmed, in Millar v. Taylor,^ that the exclusive rights of an author in his work were not lost by pub- lication, either by operation of the common law or of the stat- ute. In Donaldson v- Becket, the House of Lords held that there was no copyright in a printed book, except that given by the statute. But this judgment was based on the ground that the common-law right had been taken away by the statute. To this extent it overruled Millar v. Taylor. But it left undis- Strange was, that the plaintiffs com- tive of the common-law property in mon-law property in the etchings was the painting. The Master of the Rolls violated by a publication of a descrip- • said that this theory was " destitute tive catalogue. What the court meant of all color of foundation." 10 Ir. in Turner v. Robinson was, that the Ch. 143. owner's common-law rights in the i 4 Burr. 2408. painting were not lost when he pub- ' Eyre v. Walker, Motte v. Falkner, lished an engraving of it. It was fur- Walthoe v. Walker, Tonson v. Walker, ther argued in the latter case that cited 4 Burr. 2325 ; Tonson v. Walker, the sale of the painting by the owner 3 Swans. 672. amounted to a publication destruc- ' 4 Burr. 2303. COMMON-LAW PROPERTY IN UNPUBLISHED WORKS. 117 turbed the principle affirmed in the latter case, that publication does not, by force of tlie common law, work an abandonment of the owner's rights. Nine of the twelve judges summoned in Donaldson v. Becket were of opinion that, by the common law, the copyright in a book is not lost by its publication in print. The decision of the House of Lords was not against this doctrine, and may fairly be assumed to have been in har- mony with it.^ This judgment of the highest judicial tribunal of England has since continued to be the controlling authority on the law and the principles involved in the question under consideration. It is true that the Supreme Court of the United States held, in Wheaton v. Peters, that the statute of 1790 did not sanction an existing right, but created one.^ The reason given for this conclusion was, that the common law of England relating to literary property did not prevail in the United States. This doctrine, if it ever had any support, may now be regarded as exploded.^ The court further held that, even if the common law did prevail in this country, as the statute of Anne had been construed in England to have taken away the common-law property in published works, the same construction should be given to the act of Congress. This is the only ground which can support the decision of the court, and this rests solely on the precedent of Donaldson v. Becket. The law, as declared by the House of Lords in that case, was followed with approval by the Supreme Court in Wheaton v. Peters, and it has been followed in every English and American decision which affirms the doctrine, that there can be no copyright after publication, except under the statute. Hence, the doctrine may be regarded as well grounded, both in England and the United States, that, when an author loses his rights by publishing his work, it is by operation of the statute, and not of the common law. Tliis principle has an important bearing in determining the common- law rights of authors in their productions, and will serve to make the law clear in some cases whose adjudication might otherwise be attended with doubt and difficulty, and perhaps injustice. 1 See ante, pp. 37, 42. 2 g Pet. 591, 654. 3 See ante, p. 47. 118 THE LAW OF COPYEIGHT AND PLATRIGHT. When Common-Law Rights are Lost by Publication. — In determining whether the author's rights are forfeited by a pub- lication of his work, two tests are to be applied : 1, whether there is any statute relating to the species of production for which protection is sought, or governing the kind of right which is claimed ; 2, whether the work has been published within the meaning of the statute. The former inquiry will be first considered. As the owner of any work has by the common law an exclu- sive right to publish it, and that right is not lost after publica- tion by virtue of the common law, but is taken away solely by operation of the statute, it is obvious that, if no statute has been passed, the force of the common law will not be annulled. It is equally true that, when a statute is passed to regulate copy- right in a certain class of works, it may destroy the common- law right after publication in any work embraced within its operation, but not in one of a diflferent class to which the statute does not apply. Thus, the statute of Anne related exclusively to books. It did not apply to works of art, and hence could not take away or change the owner's common-law rights in such works. But the statutes since passed regulating the copyright in paintings and works of sculpture will doubtless be held to have the same effect on the common-law property in such productions as the statute of Anne had in the case of books. So, also, the act of Anne regulated only the right of printing books. Hence, it could not properly be construed to take away the exclusive riglit of the author at common law publicly to perform his unprinted plays. But the 3 & 4 Will. IV. c. 15, which regulates playright, may be held to annul the corresponding common-law right. The second test to be applied in determining whether the common-law right is destroyed by publication is, whether the work has been published within the meaning of the statute. The statute does not apply to a work not so published, and hence can have no effect on the common-law rights therein. What, then, is a publication within the meaning of the statute ? This question is more fully considered in treating the same topic in another connection.^ It is there shown that * See Chap. V., Publication. COMMON-LAW PROPERTY IN UNPUBLISHED WORKS. 119 no English or American statute regulating copyright in a lit- erary composition takes efifect until the composition is published in print, or by the public circulation of copies. Until such publication takes place, the common-law rights continue in full force. Hence, the owner of a literary composition which has not been published in print or by the circulation of copies may read it or permit it to be read in public, without any prejudice tohis common-law rights therein. ^ This statement must be qualified in the case of dramatic compositions under the English, but not the American, law. In the United States, there is no statute governing the right of representing or performing a manuscript dramatic or musical composition. Hence, the common-law rule applies, and the owner's rights are not lost by the public representation or per- formance of such composition .2 The law was the same in England^ until the 3 & 4 Will. lY. c. 15, was passed, which, as extended and amended by the 6 & 6 Vict. c. 45, s. 20, now regulates the exclusive right of representing and performing dramatic and musical compositions. These statutes apply to manuscript as well as to printed productions, and, within their meaning, the public representation or performance of a manu- script composition is a publication. On the principle that common-law copyright in a book is lost by publishing it in print, the common-law playright in a manuscript dramatic or musical composition must be forfeited by its public representation or performance.* Before the existence of statutory copyright in paintings, it was properly held by the Irish Chancery Court that the owner's common-law rights in a painting were not prejudiced by his public exhibition of it, or by the publication in a magazine of an engraving and a description of the painting." But, since 1 Abernethy w. Hutchinson, 1 Hall 5 Turner w. Robinson, 10 Ir. Ch. 121, & Tw. 28; Bartlett v. Crittenden, 4 510. "If there was no statute pro- McLean, 300, 5 Id. 82 ; Keene v. Kim- tecting copyright in literary worlcs," ball, 16 Gray (82 Mass.), 545; Bouci- said the Master of the Rolls, "and Sir cault V. Fox, 5 Blatchf. 87. Walter Scott had read out Waverley ^ See Chap. XIII. to a large party of friends, it is idle to ' Coleman v. Wathen, 5 T. R. 245 ; say that such would have amounted Morris v. Kelly, 1 Jac. & W. 461. See to a publication, so as to hare deprived also Macklin v. Richardson, Amb. 694. him of his common-law right ; and the * See Chap. XIII. painter or the owner of a painting, 120 THE LAW OF COPYRIGHT AND PLAYRIGHT. this decision was rendered, a statute lias been passed regulating the copyright in paintings.^ Copyright in works of sculpture is likewise governed by statute.^ In the United States, also, paintings and sculpture are subjects of statutory protection. Whether the common-law property in such works is lost by the public exhibition of the original, or by the circulation of engravings, photographs, or other copies, will depend on what is a publication of the work within the meaning of the statute. This is a difficult question, which is considered else- where in this work.^ The conclusion, then, to which we are brought is, that no common-law rights in a work are lost by publication, unless there be a statute to take away these rights, and unless the work be published within the meaning of the statute. This principle, as has been seen, was in effect affirmed in Donaldson V. Becket,* and in Wheaton v. Peters,^ by the highest judicial tribunals of England and of the United States, whose judgments are still supreme. But, inferior courts have in some cases lost sight of it, and hence have given weight to considerations which were clearly irrelevant. Thus, in Turner v. Robinson, it was held that the owner's common-law rights in a painting were not lost by its public exhibition.^ This was sound, because there was then no statute to take away these rights. But the court attached much importance to the fact that the painting was exhibited for the special purpose of securing subscribers for an engraving of it, and to the fact that the public had been warned, by notice, against taking photographic or other copies of the work. Neither of these considerations had any true bearing on the question. So, also, in the United States, there is no statute who exhibits it at such exhibitions as a publication so as to deprive a painter, those of London, Dublin, and Man- or the owner of a painting of his com- chester, and, having regard to the mon-law right." Ibid. 140. object of such exhibitions, should be i 25 & 26 Vict. c. 68. considered as allowing it to be viewed ^ 54 Geo. III. C..56. See also 13 & by the public, on a tacit understanding 14 Vict. c. 104, s. 6. that an improper advantage would not ' See Chap. V., Publication. be taken of the privilege thus granted ; * 4 Burr. 2408. and I am disposed to think, without ' 8 I'et. 591, 654. reference to the letters I have read, ' 10 Ir. Ch. 121, 510. that such an exhibition would not be j COMMON-LAW PROPERTY IN UNPUBLISHED WORKS. 121 regulating the right of representing manuscript plays. This right is governed solely by the common law, and hence is not lost or prejudiced by the public performance of the play. But, in several cases involving this question, the courts have elab- orately discussed every principle which could be brought to bear on the subject but the right one, and have gravely affirmed or recognized theories which are as absurd as they were irrelevant. Such, for instance, are the notions that a " restrictive notice " to the audience is necessary to save the property in a manuscript drama from being lost by public rep- resentation, and that the right of representing a play against the will of the owner may be acquired by means of the memory of any person who has witnessed its public performance.^ The owner's common-law rights are not lost by a publication which is made without his authority. In that case, the act is not his, and he cannot rightly be held responsible for what is done without his knowledge or consent.^ But long acquiescence may amount to abandonment.^ Private Circulation of Copies not a Publication. — It may some- times be difficult to determine whether the use which the owner makes of his production does or does not amount to a publica- tion within the meaning of the statute. There is no doubt that the general unrestricted circulation of printed copies is such a publication, and the principle would seem to be the same when manuscript copies are so circulated.* But it is clear that a private circulation for a restricted purpose is not a publication. Thus, in Prince Albert v. Strange,^ it appeared that Queen Vic- toria and her husband had given to their intimate friends lith- ographic copies of drawings and etchings, which they had made for their own amusement. This was held to be a private circulation of copies, and hence not a publication.^ In Bartlett v. Crittenden ' it appeared that the plaintiff, who was a teacher of book-keeping, had written his system of 1 See Chap. XIII. * See acquiescence considered in 2 Boucioault v. Wood, 2 Biss. 34, 39 ; Chaps. XI., XIII. Crowe V. Aiken, 2 Biss. 208; Palmer * See Chap. V., Publication. V. De Witt, 2 Sweeny (N. Y.), 580, 6 2 De G. & Sm. 652; on ap. 1 Mac. 551 ; on ap. 47 N. Y. 532 ; Shook v. & G. 25. Neuendorf, 11 Daily Reg. (N. Y.) « See also Keene v. Wheatley, 9 985. Am. Law Reg. 33. ' 4 McLean, 300, 5 Id. 32. 122 THE LAW OP COPYRIGHT AND PLAYRIGHT. instruction on separate cards, for the convenience of giving instruction to his pupils. He had permitted them to copy these cards for tlieir own convenience, and to enable them to instruct others. The defendant published copies of the cards which he had obtained while a pupil in tlie school ; and maintained that the complainant, by permitting his manuscripts to be so copied, had abandoned them to the public. The Circuit Court of the United States held this to be a private circulation of copies, which did not prejudice the owner's common-law rights. " The students of Bartlett who made these copies," said Mr. Justice McLean, " have a right to them and their use as originally intended. But they have no right to a use which was not in the contemplation of the complainant and of themselves when the consent was first given. . . . The lecturer designed to instruct his hearers, and not the public at large. Any use, therefore, of the lectures, which should operate injuriously to the lecturer, would be a fraud upon him for which the law would give him redress." ^ This action was brought under section 9 of the act of 1831 ; but it could not have been maintained if the use which the owner had permitted to be made of his manuscript had amounted to a publication within the meaning of the statute. A recent case in the Supreme Court of New York presents a question as difficult as it is novel.^ It appeared tliat the plaintiff, Kiernan, had bought from the Stock and Gold Tele- graph Company the exclusive right to use their foreign financial news in a certain part of the city of New York, for the period of fifteen minutes after its receipt. This news was collected in Europe, and transmitted by cable to this country by the Associated Press, from whom the Stock and Gold Company had acquired the exclusive right of use, in New York City, for the period of thirty minutes after its receipt. As soon as received, the news was telegraphed by Kiernan and the Stock and Gold Company to their respective customers, and in all parts of the city was exposed to public gaze by means of printed tapes connected with stock indicators. The Manhattan Quotation Telegraph Company, which was also engaged in 1 4 McLean, 803, 304. See also ^ Kiernan v. Manhattan Quotation Abernetliy v. Hutchinson, 1 Hall & Tw. Telegraph Co., 50 How. Pr. (N. Y.) 194. 28. COMMON;LAW PROPERTY IN UNPUBLISHED WORKS. 123 the business of supplying foreign financial news to its custom- ers, had copied telegrams from Kiernan's bulletins and tapes, as well as from those of the Stock and Gold Company. On the ground of an invasion of his common-law property, Kiernan applied for an injunction to restrain the Manhattan Company from supplying to their customers the information thus ob- tained. It is clear that, before it is forfeited by publication, there is a common-law property in valuable facts and information which have been collected and utilized by skill, diligence, and expense. The pivotal question here was, whether there had been a publi- cation in the. statutory meaning of that word. It is well settled in this country, as has been seen, that a literary composition is published, within the meaning of the statute, when printed copies are publicly circulated ; and that the owner's rights are thereby lost, unless protected by statute. On the other hand, it is equally clear that publicly to represent a drama, or to communicate any literary composition to the public by word of mouth, is not such a publication as will prejudice the owner's common-law rights. But which of these rules governs when the communication to the public is by means of bulletins and printed tapes exposed in public places ? If this is a publication analo- gous to the ordinary public circulation of printed copies, it is destructive of the owner's common-law rights. If it is not, those rights are not thereby prejudiced. The court was of opinion that this case was governed by the same principle as that which applies in the case of dramatic performances and the delivery of lectures, and held that giving news to the public in the manner described is not such a publication as will destroy the owner's common-law rights. Whether this decision can be successfully defended on estab- lished legal principles, is a question attended with much doubt. The difficulty is in satisfactorily determining a question of fact. If such news had been published in a newspaper, or if it had been given to subscribers on printed sheets, there is little doubt that this would have amounted to a publication within the meaning of the statute. And yet it may be pertinently asked. Wherein is the principle different, whether the informa- tion be communicated to the public in this way or by means 124 THE LAW OP COPYRIGHT AND PLATRIGHT. of telegraphic copies printed on bulletins ? In both cases the matter is printed, and copies are circulated. In neither is the communication private, or restricted as to persons. In both it may be and is read hy the general public as soon as it is printed. It is true that the news is intended primarily for the benefit of those who pay for its use ; but, nevertheless, it is communicated to the general public. The matter in a news- paper or book is primarily for the benefit of buyers ; but a general circulation of copies is none the less a publication. It would seem, therefore, that a communication of the kind under consideration is more nearly analogous to an ordinary publication in print than it is to a publication by word of mouth. But it is a doubtful and difficult question, whose solution will not be attempted here. The common-law property in dramatic and musical compo- sitions is more fully treated under the head of Playright.^ Statutoey Protection for Manuscripts. There can be no statutory copyright in an unpublished work. But in the United States a remedy for the unauthorized publi- cation of a manuscript is specially given by the statute. Sec- tion 4967 of the existing law ^ declares, that " every person who shall print or publish any manuscript whatever, without the consent of the author or proprietor first obtained, if such author or proprietor is a citizen of the United States, or resi- dent therein, shall be liable to the author or proprietor for all damages occasioned by such injury." Section 9 of the act of 1831 gave similar redress for damages, and also a i-emedy by injunction to prevent or restrain the unauthorized publication.^ The latter remedy is not expressly given by the subsisting statute ; but it has been held that the owner is entitled, under the statute, to an injunction restraining the unlicensed publica- tion of his manuscript.* To entitle a person to the benefit of this provision, it is not necessary that the whole of his manuscript shall be published 1 Chap. XIII. 3 4 U. S. St. at L. 438. 'i V. S. Kev. St. * Boucicault v. Hart, 13 Blatchf. 47. COMMON-LAW PROPERTY IN UNPUBLISHED WORKS. 125 witliout his consent. The question is whether a substantial part has been published.* There is no reason to doubt that the section under considera- tion embraces any manuscript for which a copyright may be obtained.^ But it has been questioned whether it applies to a manuscript which is not a proper subject of copyright.^ It is hardly j'easonable to suppose that Congress intended to legis- late for the protection of writings utterly worthless to the public, or wanting in the qualities of originality and innocence essential to sustain copyright. Ordinary private letters which have any value for publication are undoubtedly within the scope of this section ; * but this is hardly true of letters which have no such value.^ A more difficult question is, whether this section operates in favor of a resident assignee of a foreign author. There is nothing in its language to prevent this construction, and the opinion has been judicially expressed that such is its effect.® ' Bartlett v. Crittenden, 4 McLean, 300, 5 Id. 32. " Bartlett v. Crittenden, su/ira ; Lit- tle V. Hall, 18 How. 165, 170; Parton «. Prang, 3 Cliff. 537. 3 Palmer v. DeWitt, 47 N. Y. 535. "It may be doubtful," said Allen, J., " whether the act of Congress of 1831, e. 16, s. 9, 4 U. S. St. at L. 438, gives an action in respect to manu- scripts, other than such as may be the subject of a copyright, under the laws of the United States." In Bartlett v. Crittenden, 4 McLean, 304, McLean, J., said : " It is con- tended that the manuscripts are incom- plete, and if published in their present state, could not be protected by a copy- right; that an unfinished manuscript or book, which gives only a part of the thing intended to be written or pub- lished, can be of no value, and if printed no reUef could be given, as no damage would be done. . . . But such is not the character of complainant's manuscripts. They may not be com- plete for publication. . . . But the cards contain the framework of the system." * After maintaining that a person has property in the letters which he has written, Mr. Justice Story said : " It appears to me that the copy- right act of 1831, c. 16, s. 9, fully recog- nizes the doctrine for which I contend. It gives by implication to the author, or legal proprietor of any manuscript whatever, the sole right to print and publish the same, and expressly au- thorizes the courts of equity of the United States to grant injunctions to restrain the publication thereof, by any person or persons, without his consent." Folsom V. Marsh, 2 Story, 113. * In Woolsey o. Judd, 4 Duer (N. Y.), 379, it was held, that at com- mon law the writer was entitled to prevent the publication of a letter which had no literary value whatever. But, said Duer, J. : " We think it a doubtful question, whether the act of Congress of 1831, broad as its terms certainly are, was intended to apply, and ought, therefore, to be construed as applying to cases like the present ; but it is to the courts of the United States that the decision of the question properly belongs." Ibid. 382. ^ Keene v. Wheatley, 9 Am. Law Reg. 45. 126 THE LAW OP COPYRIGHT AND PLAYEIGHT. But copyright will not vest in a book written by a foreign author ; and, if section 4967 applies only to productions for which copyright may be obtained, it follows that it gives no redress for the unauthorized publication of a manuscript which a citizen or resident has bought from a foreigner. As Congress, in granting copyright, expressly legislated for the protection of the literary productions of native authors, it is reasonable to suppose that the protection extended to manuscripts was intended only for those of citizen or resident authors. But, as has been said, the statute is not express on this point; and its meaning remains for judicial determination. Section 4967 does not prohibit the public representation of an unpublished drama.^ A painting is not a manuscript within this provision of the statute.^ Section 9 of the statute of 1831 prohibited the publication of a manuscript " without the consent of the author or legal proprietor first obtained as aforesaid." The words " as afore- said " evidently referred to a preceding section,^ which declared it to be unlawful to publish a copyrighted book without the written consent of the owner, signed by two or more witnesses. Section 4967 of the Revised Statutes does not prescribe that the consent to publish a manuscript shall be in writing, and i Keene v. Wheatley, 9 Am. Law dent is a forcible one, that the con- Keg. 33 ; Boucicault v. Hart, 13 struotion of section 9 of the copyright Blatchf. 47. act must be controlled by the well- 2 Parton v. Prang, 3 Cliff. 637. established rule that the words of a Considering section 9 of the act of statute, if of common use, are to be 1831, Mr. Justice Clifford said : " Man- taken in their natural, plain, obvious uscripts of every kind are embraced and ordinary signification and import, in that section ; but pictures are not unless it clearly appears from the con- named in the provision, and cannot be text or other parts of the enactment regarded as entitled to that special pro- that the words were intended to be ap- tection, unless it be held that the word plied differently from their ordinary or manuscript includes pictures, which is their legal acceptation. aflSrmed by the complainant and denied " Nothing is shown in the context o^ by the respondent ; and that issue pre- the enactment to favor the theory of sents the principal question in the the complainant ; and, inasmuch as the case." Ibid. 644. After showing that usual and ordinary signification and an unpublished painting could not be import of the two words is opposed to considered a manuscript within the such a theory, it is difficult to see how meaning of the law, he continued : it can be adopted witliout doing vio- " Unsupported as the proposition of lence to the most approved canons of the complainant is by any legal adju- construction." Ibid. 546. ^ dication, the argument of the respon- ' s. 6 ; also, s. 7. COMMON-LAW PROPERTY IN UNPUBLISHED WORKS. 127 makes no reference to any part of the statute which requires a written consent. Nor does there appear to be any reason why a person may not be fully authorized to publish a manuscript by the oral consent of the owner. The English statutes contain no provision similar to the one under consideration, for the protection of manuscripts. Lettbes. Property in Writer after Transmission. — The Same general principles which underlie and govern the property of an author in his manuscript or other unpublished work apply also to let- ters written in the course of an ordinary correspondence. The law recognizes in these literary property which belongs to the writer, and continues in him after the letters have passed into the hands of the receiver. The theory of this is, that, in mak- ing a written communication to another, the writer does not consent to part with any right of property therein ; but simply gives to the receiver the privilege of reading the letter for his own benefit, without the right to make any public use of its contents. The principle in this case is the same as when the owner of a manuscript permits another to read it, or to take a copy. The former does not lose, and the latter does not ac- quire, any right of literary property therein.^ Even where the writer declined to accept the letters when the receiver offered to return them and said that the latter might keep them, it was held that he did not intend to abandon his literary property in them, or to give to the receiver the right to publish them.^ Whatever remedies the owner of a manuscript is entitled to, for the protection of his property, may be rightly claimed by the writer of a letter after its transmission. He may pre- vent the receiver from publishing it without authority, or mak- ing of it any other use not within his implied privileges as receiver. This doctrine was judicially recognized as early as 1741, when Curl, the London bookseller, was enjoined from selling a volume containing the private correspondence between Pope and Swift, which had been published in Ireland 1 Duke of Queensbury v. Shebbeare, 2 Eden, 329. 2 Thompson v. Stanhope, Amh. 737. 128 THE LAW OF COPYEIGHT AND PLATEIGHT. and reprinted in England without authority. When the case came before Lord Hardwickc on a motion to dissolve the injunction, it was contended on the part of the defendant, first, that ordinary private letters, written without any intention of publication, are not entitled to protection ; and, second, that a letter sent by one person to another i^ a gift to the receiver, who thereby becomes vested with the entire property in it. Lord Hardwicke pronounced these theories unsound, and held that it was immaterial whether the letters had or had not been written for publication ; that before transmission there was an absolute property in the writer ; that the receiver acquired only a special or qualified property, extending, perhaps, to the paper, but not to the contents of the letter, and that this gave him no right of publication. The injunction, therefore, was con- tinued as to the letters written by Pope, but dissolved as to those which he had received, and over which he clearly had no control.^ The general principles laid down in this case have become the recognized law in England ^ and in the United States.3 It is well settled that the right of the author to restrain the unlicensed publication of his letters is not based on considera- tions of policy or social ethics. Publication may cause broken friendship, wounded feelings, humiliation, or distress ; it may be for dishonorable purposes, and indicate on the part of the wrong-doer a baseness that should be held up to universal scorn. But these are matters of which no judicial cognizance has been taken in the adjudicated cases on this point. Where the right has been recognized, it has been on the principle of property ; where the existence of the right has been denied, it has been on the ground that the writer failed to show a pro- prietary title. " The question will be," said Lord Bldon, " whether the bill has stated facts of which the court can take ' Pope V. Curl, 2 Atk. 342. ' Denis v. Leelerc, 1 Martin (Orleans i' Thompson v. Stanhope, Amb. T.) 297; FolsomB. Marsh, 2 Story, 100; 737 ; Cadell v. Stewart, 10 Mor. Diet. Wetmore v. Scorell, 3 Edw. Ch. of Uec. Lit. Prop. App. p. 13 ; Granard (N. Y.) 515; Hoyt w. Mackenzie, 8 V. Dunkin, 1 Ball & B. 207 ; Perceval Barb. Ch. (N. Y.) 320; Unifed States V. Phipps, 2 Ves. & B. 19; Gee v. w. Tanner, 6 McLean, 128 ; Woolsey u. Pritchard, 2 Swans. 402; Palin v. Judd, 4 Duer (N. Y.), 379; Eyre v.' Gathercole, 1 Coll. 566; Oliver v. Higbee, 22 How. Pr. (N. Y.) 198; Oliver, 11 C. B. N. s. 139; Howard Grigsbyw. Breckinridge, 2 Bush (Ky.), V. Gunn, 82 Bear. 462. 480. COMMON-LAW PBOPERTT IN UNPUBLISHED WORKS. 129 notice as a case of civil property which it is bound to protect. The injunction cannot be maintained on any principle of this sort, that if a letter has been written in the way of friendship, either the continuance or the discontinuance of that friendship affords a reason for the interference of the court." ^ " We must be satisfied," said the court in Woolsey v. Judd, " that the publication of private letters without the consent of the writer, is an invasion of an exclusive right of property which remains in the writer, even when the letters have been sent to and are still in the possession of his correspondent." ^ Whether publication may be restrained as a breach of private confidence or contract, is a question which it is not important to discuss here ; for the doctrine is sound in principle, and is well settled by authority, that the writer may control his let- ters on the ground of property.^ 1 Gee V. Pritchard, 2 Swans. 413. ■■' 4 Duer (N. Y.), 384; see also Grigsby v. Breckinridge, 2 Bush (Ky.), 486. " An injunction restraining the pub- lication of private letters must stand upon this foundation, that letters, whether of a private nature or upon general subjects, may be considered as the subject of literary property." Plumer, V. C, Perceval v. Phipps, 2 Ves. & B. 24. 3 In Folsom v. Marsh, 2 Story, 111, Mr. Justice Story said, that, if the receiver " attempt to publish such letter or letters on other occasions not justifiable, a court of equity will pre- vent the publication by an injunction, as a breach of private confidence, or contract, or of the rights of the author." This, however, was not one of the grounds on which the decision in the case was based ; and, moreover. Judge Story recognized fully the principle of prop- erty in the writer. In Gee v. Pritch- ard, Lord Eldon held that an injunction could not be maintained on tlie prin- ciple of wounded feelings or broken friendship. In Wetmore v. Scovell and in Hoyt v. Mackenzie, the threat- ened publication was a clear breach of honor. But the court, while deprecat- ing the act of the defendant, held that 9 it was not a ground for judicial inter- ference. In Woolsey v. Judd, Judge Duer emphatically asserted that the jurisdiction of the court could not be placed on the ground of morals. His views of the law on this point were ex- pressed in the following language ; — " We believe that few, who reflect upon the mischievous consequences which would certainly result from the unrestrained and frequent publication of private and confidential letters, will dissent from the opinion that it is highly desirable, looking to the best interests of society, that courts of equity should possess and firmly exer- cise the jurisdiction which is ques- tioned. Our own views and feelings, we do not hesitate to declare, corre- spond entirely with those which Mr. Justice Story, in the most elaborate and useful of his works, has very forci- bly expressed. We agree with him, that the unauthorized publication of such letters, unless in cases where it is necessary to the vindication of the rights or conduct of the party against unjust claims or imputations, is, per- haps, one of the most odious breaches of private confidence, of social duty, and of honorable feelings which can well be imagined. It strikes at the root of that free interchange of advice, 130 THE LAW OF COPYRIGHT AND PLATRIGHT. The ownership of the property gives the writer not only the exclusive right of publishing the letter, but also entitles him to withhold it from publication. The very act of unlicensed publication, without regard to the purposes for which it is done or its consequences, is an invasion of the property of the wri- ter ; , since he has a right to say that what he has written shall not be published without his consent. Therefore, in seeking to prevent a threatened publication, or to restrain a publication which has been made against his will, it is immaterial whether the writer does or does not intend to publish the letter. Nor is it necessary for him to allege or show that the unlicensed opinions and sentiments, which seem essential to the well-being of society, and may involve whole families in great distress from the public display of facts and circumstances which were reposed in the bosom of others, in the fullest and most affecting confidence that they should remain for ev6r invio- lable secrets. 2 Eq. Jur. § 946. " But, although, with Mr. Justice Story, we cannot do otherwise than condemn a practice which springs from the motives, and leads to the con- sequences which he has depicted, and which, from the feelings of resentment it is calculated to provoke, is dangerous to the peace as well as the morals of the community, we must not be under- stood to assert, that these considera- tions are alone sufficient to justify the interposition of a court of equity. " It is not necessary to deny, that upon these grounds alone the jurisdic- tion of the court cannot safely be placed. A court of equity is not the general guardian of the morals of so- ciety. It has not an unhniited author- ity to enforce the performance, or pre- vent the violation, of every moral duty. It would be extravagant to say that it may restrain, by an injunction, the perpetration of every act which it may judge to be corrupt in its motives, or demoralizing, or dangerous in its ten- dency. We advance no such doctrine, and we fully admit that an injunction can never be granted, unless it appears that the personal legal rights of the party who seeks the aid of the court, are in danger of violation ; and as a general rule, that the injury to result to him from such violation, if not pre- vented, will be irreparable. It must be shown that a right is endangered which the law defines and is bound to protect, and that the mandate of the court is its only adequate protection ; but when, by proof of these facts, the jurisdiction is established, we cannot doubt that considerations of public good and public policy may furnish motives, and powerful motives, for its prompt and effectual exercise. They may invest the legal right with an im- portance and dignity that would not otherwise belong to it, and convert the protection of a single individual into an extensive public benefit. " It being conceded that reasons of expediency and public policy can never be made the sole basis of civil juris- diction, the question whether upon any ground the plaintiff can be entitled to the relief which he claims remains to be answered ; and it appears to us that there is only one ground upon which his title to claim and our jurisdiction to grant, the relief can be placed. We must be satisfied that the publication of private letters, without the consent of the writer, is an invasion of an exclusive right of property which re- mains in the writer, even when the letters have been sent to, and are still in the possession of his correspondent." 4 Duer (N. Y.), 383. COMMON-LAW PROPERTY IN UNPUBLISHED WORKS. 131 publication is for the purpose of gain, or that he will thereby sustain pecuniary damage, or suffer in his reputation or feel- ings. His right to withhold his expressed thoughts from pub- lication is as inviolable as his right to publish them.^ Nor is the right of the author limited to preventing or restraining a publication in print. At the common law, as has been shown, the unauthorized I'epresentation of a manu- script drama, the public reading of an unpublished literary composition, the exhibition of copies of a painting or statue, is a publication which Invades the owner's rights of property. To make any public use of the production is to publish it. Hence a letter may be published not only by printing it, but also by reading it in public, or by circulating copies of it, though such copies be in manuscript. Any such public use of the letter, without the consent of the writer, is a violation of his rights.^ In all the cases which have been reported, the writer has sought merely to restrain the publication of his letters, or to recover possession of them.^ In none has he claimed damages. Hence the question whether the writer is entitled to recover damages for the unlicensed publication of his letters by the 1 " It is immaterial wliether the publication is for tlie purpose of profit or not. If for profit the party is then selling, if not for profit, he is giving that, a portion of which belongs to the writer." Lord Eldon, Gee v. Pritchard, 2 Swans. 415. " Not only is the right of property in the author not subject to the limita- tion which some have supposed to exist, but it is absolute as well as unlim- ited. When he applies for an injunc- tion, it is not necessary that he should aver that he desires to take from the defendants, or to secure to himself the profits of publication. As owner, he has an absolute right to suppress as well as to publish ; and he is as fully entitled to the protection and aid of the court, when suppression is his sole and avowed object as when he intends to publish." Duer, J., Woolsey v. Judd, 4Duer (N. T.), 387. See also Denis t>. Leclerc, infra. 2 In Denis v. Leclerc, 1 Martin (Or- leans T.), 297, it appeared that the de- fendant, after he had been enjoined from publishing a letter, notified the public that a copy of the letter had been annexed to his answer in the suit, and might be seen at the clerk's office. It was also proved that he had permitted two persons to read the letter at his office. It was held that annexing a, copy to the answer would have been justifiable, had it been necessary or done with a good motive ; but the court found that the letter was irrele- vant to the pleadings, and had not been ai^nexed for any legitimate purpose of the suit. For publishing the letter by this means, and by showing it to two persons, the defendant was fined fifty dollars for contempt of the injunction which had been granted. ^ See Grigsby v. Breckinridge, 2 Bush (Ky.), 480. 132 THE LAW OF COPYRIGHT AND PLAYRIGHT. receiver, or by a third person, has not been adjudicated. But there can be no reasonable doubt that, when damages have been sustained, a remedy at common law exists, on the prin- ciple that every author is entitled to recover for the damages caused by the unauthorized publication of his work. When Property is not in Writer. — Cases may arise in which the writer will not be considered as the owner of the property in the letters which he has written, and hence will not be enti- tled to restrain their publication. Thus, letters written by one person employed by another, and relating to the business affairs of the latter, will rightly be considered as the property of the employer who pays the .writer for such services. In a recent English case, it was held that the letters which an officer of an insurance company had written in the discharge of his official duties became the property of the company.^ The same prin- ciple applies to letters written by officers of the government. Mr. Justice Story based the right of the government to publish, or to prevent the publication of, such official correspondence, on the ground of public policy.^ This principle is not here disputed ; but it is clear that the government is the rightful owner of the literary property in the letters which its servants have written in the discharge of their official duties. Letters without Literary Value. — The question has been much discussed, whether the principle that a writer has a prop- erty in .his letters after transmission, which the law will protect, 1 Howard v. Gunn, 32 Beav. 462. the duty of the government to give 2 "In respect to official letters them publicity, even against the will of addressed to the government or any the writers. But this is an exception of its departments by public officers, in favor of the government, and stands 80 far as the right of the government upon principles allied to, or nearly extends, from principles of public pol- similar to, the rights of private indi- icy, to withhold them from publica- viduals, to whom letters are addressed tion, or to give them publicity, there by their agents to use them and pub- may be a just ground of distinction, lish them upon fit and justifiable occa- It may be doubtful whether any public sions. But assuming the. right of the officer is at liberty to publish them, at government to publish such official least in the same age, when secrecy letters and papers under its own sane- may be required by the public exigen- tion and for public purposes, I am not cies, without the sanction of the gov- prepared to admit that any private ernment. On the other hand, from the persons have a right to publish the nature of the public service, or the same letters and papers, without the character of the documents, embracing sanction of the government, for their historical, military, or diplomatic infor- own profit and advantage." Folsom v. mation, it may be the right and even Marsh, 2 Story, 113. COMMON-LAW PROPERTY IN UNPUBLISHED WORKS. 133 is limited to those having literary merit, or is equally applicable to ordinary letters of business or friendship, and which have no value for purposes of publication. We have seen that, ia Pope V. Curl,i Lord Hardwicke overruled the objection that private letters, written without any view to publication, were not entitled to protection. But the literary value of the letters in this case appears not to have been questioned. The theory that a letter without any literary value is not entitled to pro- tection is traced to an obiter dictum of Sir Thomas Plumer, in Perceval v. Phipps.'* It has received no other support from any English judge. In the subsequent case of Gee v. Pritch- ard, Lord Eldon remarked, that it would be " extremely diffi- cult to say where the distinction is to be found between private letters of one nature and private letters of another nature."* In the United States Circuit Court in 1841, Mr. Justice Story declared, " that the author of any letter or letters (and his representatives), whether they are literary compositions or familiar letters, or letters of business, possess the sole and exclusive copyright therein ; and that no persons, neither those to whom they are addressed nor other persons, have any right or authority to publish the same, upon their own account or for their own benefit." * The theory announced by Sir Thomas Plumer was expressly affirmed by the New Ygrk Court of Chancery, in Wetmore v. Scovell,^ decided in 1842, and in Hoyt V. Mackenzie,^ decided in 1848 ; in each of which the court refused to grant an injunction in favor of the writer, restrain- ing an unlicensed publication of his letters for dishonorable purposes. The refusal was on the sole ground that the letters were without literary merit, and had no value for purposes of publication. These decisions were sharply criticised, and over- ruled by the full bench of the Superior Court, in 1855, in Woolsey v. Judd.'^ The complainant in this case sought to restrain the publication of a single letter. He did not claim 1 2 Atk. 342. tected upon the principle of copyright." 2 " Though the form of familiar 2 Ves. & B. 28. . letters might not prevent their ap- ' 2 Swans. 426. preaching the character of a literary * Folsom v. Marsh, 2 Story, 110. work, every private letter upon any ^ 3 Edw. Ch. (N. Y.) 516. subject, to any person, is not to be ^ S Barb. Ch. (N. Y.) 320. described as a literary work, to be pro- ' 4 Duer (N. Y.), 879. 134 THE LAW OP COPYRIGHT AND PLAYEIGHT. that it had any literary value, or that, by its threatened publi- cation, he would sustain pecuniary damage, or any injury to his reputation or feelings. The issue, therefore, was simply whether his property in what he had written gave him a right to say that no one should publish it without his consent. In a thorough discussion of the subject, the court maintained that there was no ground for any distinction in law between letters having and those not having literary merit, and afiBrming the doctrine so clearly expounded by Judge Story, held, that " every letter is, in the general and proper sense of the-term, a literary composition," which cannot lawfully be published by the receiver, or any third person, without the consent of the writer, except for purposes of vindication. This doctrine has been approved by the Kentucky Court of Appeals,^ and is sup- ported by the weight of authority. It is also based on sound principles. The theory that property exists only in letters of literary value has no foundation in reason or principle. Is a letter written by an author to have the benefit of protection, because it will command a price in the publisher's market, while that of the merchant is outlawed, although the information it con- tains may be of the highest pecuniary value in the marts of trade ? The correspondence of merchants, bankers, and other business men is frequently freighted with information of great value. Its untimely publication may be a serious loss to the owner, its possession a prized gain to the possessor. Is pro- tection to be denied to such letters because they lack liter- ary value ? It is not true that the contents of a letter, in order to possess the attributes of property, must have a value, either in literary or commercial markets, or that a letter is valuable to the writer only as far as it may be useful to others. The value of the composition for purposes of publication will enter into the question of damages, when the writer seeks to recover for a loss of profits which he has suffered by unli- censed publicaltion. But, when it is sought to prevent or to restrain publication, the court cannot rightly require the owner to prove that his property is valuable to the community. His 1 Grigsby v. Breckinridge, 2 Bush (Ky.), 480. See also Denis v. Leclerc, 1 Martin (Orleans T.), 297. COMMON-LAW PROPERTY IN UNPUBLISHED WORKS. 135 ownership entitles him to say that his composition shall not be published. What value it may have to society, or how far it may be useful to the public, is immaterial. A letter may be without literary value, and destitute of any quality to render it useful to the community, and yet it may be valuable to the writer. A brief business note may play an important part in commercial transactions. A communication relating to domes- tic matters, though void of general interest, may be valued by a circle of relatives and treasured by their descendants. Pub- lication may bring upon the writer financial embarrassment, humiliation, or substantial injury. Whatever may be the nature of the letter, its merit, or its value, the law gives to the writer the right to determine what use, not within the implied purposes for which it is sent, shall be made of its con- tents. It has never been doubted that this right exists before the letter has gone from the writer ; and it is equally clear that the right is not lost by the transmission of the letter. Rights of Receiver. — What rights the receiver has in a letter has not been clearly defined. It is conceded that the material on which it is written becomes his property. In Pope v. Curl, Lord Hardwicke expressed the opinion that " possibly the property in the paper may belong to him." * This doctrine was expressly affirmed in the recent English case of Oliver v. Oliver,^ where it was held that the receiver becomes the owner of the material property in the letter, and may maintain an action for detinue against any person into whose possession the letters have passed. In this case the action was brought against the writer, to whom the letters had been voluntarily returned by the receiver. The question of fact was submitted to the jury, whether the letters had been returned with the understanding that the writer might keep them as his own property, or whether they had been merely deposited with him as a bailee. The jury found the latter to be the fact, and the court held that the material property in the letters belonged to the receiver. In harmony with this doctrine, it has been held by the Kentucky ^ourt of Appeals that the writer has no legal remedy for recovering his letters after they have passed into the posses- 1 2 Atk. 342. 2 11 C. B. n. s. 139. 136 THE LAW OP COPYRIGHT AND PLATEIGHT. sion of the receiver.^ Hence the receiver is not bound "to preserve the letters for the benefit of the writer. He may destroy them as soon as received. There seems to be no prin- ciple of property to prevent him from giving them to another ; but such person would thereby acquire no rights of publication.^ It has never been claimed that the receiver, with an exception which will be considered further on, acquires any property in the contents of the letter, or any right to publish it without the consent of the writer.^ In Pope v. Curl it was expressly held that Pope had no right to interfere with the publication of the letters which had been written to him by Swift, for the good reason that they were the literary property of the latter.* The privileges of the receiver are restricted to a private use of the letter. He may have a right to read it to others, or to let others read it, when such reading does not amount to a publi- cation. But, without the express or implied consent of the writer, he is not entitled to make of the letter any use which may be properly considered as a publication. In Eyre v. Higbee, it was held by the New York Supreme Court, that letters written by Washington to his secretary, Colonel Tobias Lear, were not salable assets in the hands of the administrator of the latter, but that they belonged to the widow and next of kin.^ May Receiver Publish for Purposes of Vindication ? — The doc- trine has gained currency that the receiver of a letter acquires in its contents a special or qualified property or right, which entitles him to publish it for the purpose of vindicating his reputation from false charges or unjust imputations made by the writer. This theory was first announced in 1813, by Sir Thomas Plumer, who on this ground dissolved an injunction, 1 Grigsby v. Breckinridge, 2 Bush them to be delivered to the former. (Ky.), 480. See also Granard v. Dun- The decree for such delivery was kin, infra. proper, because the property in the 2 Grigsby v. Breckinridge, supra. paper had belonged to Lady Tyravf ley; 3 This statement must be qualified but she had acquired no title to the by a reference to Granard v. Dunkin, literary property in the letters which 1 Ball & B. 207, wherein the Irish had been received by her, and hence Chancery Court, in 1809, granted an there was no ground on which the injunction in favor of the executrix of injunction against publication could Lady Tyrawley, enjoining the threat- rest. ened publication of letters wliich had * 2 Atk. 342. been written to the latter, and ordering ^ 22 How. Pr. (N. Y.) 198. COMMON-LAW PROPERTY IN UNPUBLISHED WOEKS. 137 which had been granted by Lord Eldon, restraining the de- fendant in Perceval v. Phipps from publishing letters written by the plaintifiF.^ This question has not been a direct issue in any other reported case ; but the views of Sir Thomas Plumer are supported by dicta in two American cases.^ In one of these, Mr. Justice Story declared in emphatic, but extriajudi- cial, language that the receiver is entitled to publish a letter for purposes of vindication; but, in his treatise on Equity Jurisprudence, he has expounded the law to the con- trary.^ 1 2 Ves. & B. 19. - Folsom V. Marsh, 2 Story, 111 ; Woolsey v. Judd, 4 Duer (N. Y.), 407. Lord Eldon would not deny that there might be a case, such as that of Perceval v. Phipps, " where the acts of the parties supply reasons for not interfering ; " but in the case before him he found that publication was not necessary to vindicate the receiver, and held that whatever right to publish the latter might have had he renounced by returning the letters to the writer, although he retained copies. Gee o. Pritchard, 2 Swans. 402, 426. In Palin v. Gathercole, 1 Coll. 565, the defendant, on motion to dissolve the injunction which had been granted restraining him from publishing certain letters written by the plaintiff, pleaded that their publication was for the purpose of vindicating his reputa- tion. Vice-Chancellor Bruce, without passing on the merits of the question, held that the defendant was barred from making this defence, and refused to dissolve the injunction. 2 In Folsom v. Marsh, Mr. Justice Story, after declaring that the writer has a right to restrain the unauthor- ized publication of his letters, said : " But, consistently with this right, the persons to whom they are addressed, may have, nay, must by implication possess, the right to publish any letter or letters addressed to them, upon such occasions as require or justify the publication or public use of them ;, but this right is strictly limited to such occasions. Thus, a person may justifi- ably use and publish, in a suit at law or in equity, such letter or letters as are necessary and proper to establish his right to maintain the suit or defend the same. So »if he be aspersed or mis- represented by the writer, or accused of improper conduct, in a public man- ner, he may publish such parts of such letter or letters, but no more, as may be necessary to vindicate his character and reputation, or free him from unjust obloquy and reproach. If he attempt to publish such letter or letters on other occasions, not justifiable, a court of equity will prevent the publi- cation by an injunction, as a breach of private confidence or contract, or of the rights of the author ; and a fortiori if he attempt to publish them for profit ; for then it is not a mere breach of con- fidence or contract, but it is a violation of the exclusive copyright of the writer. In short, the person to whom letters are addressed has but a limited right or special property, if I may so call it, in such letters as a trustee or bailee, for particular purposes, either of infor- mation or of protection, or of support of his own rights and character. The general property and the general rights incident to property belong to the writer, whether the letters are literary compositions, or familiar letters, or details of facts or letters of business. The general property in the manu- scripts remains in the writer and his representatives, as well as the general copyright. A fortiori third persons standing in no privity with either party, are not entitled to publish them 138 THE LAW OP COPYRIGHT AND PLATRIGHT. It seems to be conceded that the privilege of publication for vindicatory purposes is personal to the receiver, and cannot be exercised by a third person, either with or without the consent of the receiver.^ The doctrine that the receiver acquires the right to publish a letter for the purpose of vindicating himself against charges or imputations made by the writer, although it has received strong extrajudicial approval, is in conflict with the funda- mental principles on which all the cases relating to property in letters have been decided. These cases have been, and all similar cases must be, determined on principles of property. Protection has been extended to the writer, because he has literary property in the letter which he has written, and be- cause his rights are not lost by the transmission of the letter. Unlicensed publication by the receiver of a letter has been declared unlawful, on the sole ground that it is a violation of the literary property therein. 'The receiver can acquire no right to make a public use of the literary property in a letter, unless he has the consent of the writer, or has become vested with a right of ownership. His right to publish is to be determined exclusively on principles of property. But the privilege of publication for purposes of vindication is not a right of property, and cannot be defended on any principles of to subserve their own private purposes crets, or personal concerns." Vol. ii. of interest or curiosity or possession." § 948. 2 Story, 110. This doctrine is manifestly contrary In his Equity Jurisprudence, the to the views above quoted from the same authority says : " For the pur- opinion in Folsom v. Marsh. The poses of public justice, publicly ad- decision in this case was rendered in ministered, according to the established 1841. The first edition of the Equity institutions of the country, in the Jurisprudence appeared in 1836. But ordinary modes of proceeding, private it cannot be said that the latest or the letters may be required to be pro- modified views of Judge Story on this duced and published. But it by no question were expressed in the judicial means follows, that private persons opinion cited ; for the exposition of the have a right to make such publications law given in the first edition of the on other occasions, upon their own Equity Jurisprudence was retained notion of taking the administration of unchanged in the following editions, of justice into their own hands, or for the which the third was published in 1843, purpose of vindicating their own con- —two years before the author's death' duct, or of gratifying their own enmity, and two years after Folsom v. Marsh or of indulging a gross and diseased had been decided, public curiosity, by the circulation i Folsom v. Marsh, 2 Story, 111 • of private anecdotes, or family se- Woolsey v. Judd, 4 Duer (N. Y.), 379 407. COMMON-LAW PROPERTY IN UNPUBLISHED WORKS. 139 property. To give to the receiver this privilege is to empower him to publish valuable literary compositions, for the purpose of redressing a real or supposed injury to himself, and thus to destroy a safeguard which the law has guaranteed to the prop- erty of the writer. It makes the receiver the sole judge of whether the wrong is real or fancied, and empowers him, in order- to redress an alleged injury to himself, to inflict a greater one upon tire writer. The law specially provides remedies for injuries done to the reputation. If the receiver of a letter has suffered in reputation or feelings by any thing said, written, or done by the writer, he is left to seek redress by the means usual and proper in such cases. He has no right to take the law into his own hands, as it were, and to appropriate the property of another, in order to remedy a wrong for which the law has specially provided. 140 THE LAW OP COPYRIGHT AND PLAYKIGHT. CHAPTER II. WHAT MAY BE CPPYEIGHTED. In theJUnited States, statutory copyright may be obtained for a book, map, chart, dramatic or musical composition, en- graving, cut, print, photograph, or negative thereof, painting, drawing, chromo, statue, statuary, and a model or design intended to be perfected as a work of the fine arts.^ The copy- right in all these productions is governed by the same statute, and is secured for the same term and on the same conditions. Substantially the same things may be copyrighted in England ; but protection is provided by different statutes, and the copy- right granted is not the same for all kinds of productions. Books. The word " book " has been used in the English and Ameri- can copyright statutes since the first one was passed, in the reign of Queen Anne. In England, its meaning was not de- fined by Parliament till 1842. In the United States it has been left entirely to judicial determination. Great Britain. — As used in this connection, the word has received a far more comprehensive signification than it has in ordinary use. In England, it is defined by statute " to mean and include every volume, part or division of a volume, pam- phlet, sheet of letter-press, sheet of music, map, chart, or plan separately published." ^ Long before the meaning of the word had been thus defined by the legislature, a construction, not less liberal, had been given to it by the' judiciary. As early as 1777, the Court of King's Bench held a sonata to be a book or writing, within the meaning of the statute of Anne,^ and all ' U/S. Uev. St. s. 4952. 3 Bach v. Longman, Cowp. 623. 2 5 & 6 Vict. i;. 45, o. 2. " The words of the act of Parliament," WHAT MAY BE COPYRIGHTED. 141 musical compositions were treated as books before they were mentioned in the statute of Victoria.^ In 1803, Lord Ellen- borough was inclined to think that the words of a song called Abraham Newland, published on a single sheet of paper, could not be considered a book. He therefore nonsuited the plain- tiff, but reserved the question for the opinion of the court. The Court of King's Bench afterward set aside the nonsuit, and ordered a new trial. The case does not appear to have been brought to trial again.^ In 1788, the copyright in " a certain said Lord Mansfield, " are very large : ' books and other writings.' It is not confined to language or letters. Music is a science ; it may be written and the mode of conveying the ideas is by signs and marks. A person may use the copy by playing it ; but he has no right to rob the author of the profit, by multiplying copies and disposing of them to his own use. If the narrow interpretation . contended for in the argument were to hold, it would apply to algebra, mathematics, arithmetic, hieroglyphics. All these are conreyed by signs and figures. There is no color for saying that music is not within the act." " Books and other writings " were mentioned in the preamble of the act; but in the enacting clause the word book alone was used. 1 See authorities cited post, p. 175, note 3, In D'Almaine v. Boosey, 1 Y. & C. Exch. 299, Lord Abinger said : " I spent three or four days at Stationers' Hall in order to ascertain wliat entries were made under the act of Parliament, and I found not only that short publica- tions on single sheets of paper were en- tered as books, but also a great deal of music. There is no doubt, therefore, that printed music, in whatever form It may be published, is to be considered in reference to proceedings of this nature, as u. book." 2 Hime v. Dale, 2 Camp. 27, note b. Mr. Erskine at the .bar maintained that a broad meaning should be given to the word book as used in the statute. He contended " that the leg- islature could never have meant to make the operation of the statute depend upon the type in which any composition is printed, or the form in which it is bound up. This song might easily have been extended over several sheets, and rendered a duo- decimo volume. In Bach v. Long- man, Cowp. 623, it was decided that music is within the act, and musical compositions most generally appear in this fugitive form. It never occurred to the Lord Chancellor who directed the issue, or to Lord Mansfield, or any of the judges who decided the case, that the form of the publication could make any diflference ; and therefore it is not stated. If a different construc- tion were put upon the act, many pro- ductions of the greatest genius, both in prose and verse, would be excluded from its benefits. But, might the papers of the Spectator, or Gray's Elegy in a Country Church-yard, have been pirated as soon as tliey were pub- lished, because they were first given to the world on single sheets t The voluminous extent of a production cannot in an enlightened country be the sole title to the guardianship the author receives from the law. Every man knows that the mathematical and astronomical calculations which will enclose the student during a long life in his cabinet, are frequently reduced to the compass of a few lines ; and is all this profundity of mental abstrac- tion, on which the security and happi- ness of the species in every part of the globe depend, to be excluded from the protection of British jurisprudence ? " But there is nothing in the word 142 THE LAW OP COPYRIGHT AND PLAYRIGHT. musical air, tune, and writing," on one sheet, was protected ;^ and, in 1809, a single sheet of music was held to be a book within the meaning of 8 Anne, c. 19. In the latter case, " the judges seemed unanimously of opinion that it could not depend upon the form of the publication whether it were entitled to the privileges of the statute or not ; that a composition on a single sheet might well be a book within the meaning of the legislature." ^ In a later case, wherein copyright was claimed under 54 Geo. III. c. 156, in a piece of instrumental music, Chief Justice Abbott, in delivering the judgment of the King's Bench, expressed the opinion that " any composition, whether large or small, is a book within the meaning of this act of Parliament." ^ United States. — The comprehensive meaning given to the word book, in England, has been adopted in this country.^ " A book within the statute need not be a book in the common and ordinary acceptation of the word ; viz., a volume made up of several sheets bound together ; it may be priated only on one sheet, as the words of a song or the music accompanying it. . . . The literary property intended to be protected by the act is not to be determined by the size, form, or shape in which it makes its appearance, but by the subject-matter of the work. Nor is this question to be determined by reference to lesicog- book to require that it shall consist whether it be long or short, is called of spveral sheets bound in leather, or the paper book or the demurrer book, stitched in a marble oorer. Book is In the Court of Exchequer, a roll was eridently the Saxon boc, and the latter anciently denominated a book, and so term is from the beech-tree, the rind of continues in some instances to this which supplied the place of paper to day. An oath as old as the time of our German ancestors. The Latin Edward I. runs in this form : ' And word liber is of a similar etymology, you shall deliver into the Court of meaning originally only the bark of a Exchequer a book fairly written,' &g. tree. Book may therefore be applied But the book delivered into court in to any writing ; and it has often been fulfilment of this oath, has always been BO used in the English language, a roll of parchment." Sometimes the most humble and i Storace v. Longman, 2 Camp. 27, familiar illustration is the most fortu- note a. nate. The Horn Book, so formidable ^ Clementi v. Golding, 2 Camp. 32. to infant years, consists of one small ^ White v. Geroch, 2 Barn. & Aid. page protected by an animal prepara- 298. tion, and in this state it has univer- * Clayton v. Stone, 2 Paine, 382 ; sally received the appellation of a Scoville v. Toland, 6 West. Law Jour, book. So, in legal proceedings, the 84 ; Drury v. Ewing, 1 Bond, 540. copy of the pleadings after issue joined. WHAT MAT BE COPYRIGHTED. 143 raphers to ascertain the origin and meaning of the word book. It will be more satisfactory to inquire into the general scope and object of the legislature, for the purpose of ascertaining»the sense in which the word book was intended to be used in the statute." 1 In a recent case, the Circuit Court of the United States held that a diagram with directions for cutting garments printed on a single sheet was a book within the meaning of the statute.^ A mere label ^ capable of no other use than to be pasted on 1 Thompson, J., Clayton v. Stone, 2 Paine, 383, 886. 2 Drury v. Ewing, 1 Bond, 540. The plaintiff claimed copyright in a chart entitled, " The ladies' chart for cutting dresses and hasques for ladies, and coats, jackets, &c., for boys." Mr. Justice Leavitt gave the following rea- sons why this should be entitled to protection as a book : — " As a first impression from an in- spection of the chart, the mind repu- diates the conclusion that it is a hook ; and when the point was first suggested it occurred to me it would require a forced construction of the statute to bring it fairly within the meaning of that term. The chart, as printed and published for use, is contained on one large sheet, representing a series of diagrams interspersed with printed in- structions as to the mode of using them in taking measurements for and cut- ting certain parts of ladies' dresses. As necessary to the practical use of the diagrams, they are pasted on thick paper or paste-board, corresponding with and showing precisely the forms of the diagrams. The exact dimension and form of every part of the garment intended to be cut is indicated by a series of numerals placed along the outer edges of the diagrams thus arranged and by means of dots or marks at the proper figures, the exact size and course of each section of the garment is ascertained with mathe- matical precision. Now it may well be conceded, that the chart as printed on the sheet, or as pasted in parts for practical use, is not a book, according to the more popular sense of the word. But in giving effect to the statute according to its obvious design and spirit I can see no necessity for re- stricting the word to a volume. . . . I am therefore inclined to adopt the liberal construction given by the Eng- lish courts to their statute, and to hold that Mrs. Drury's chart is within the protection of our statute. She could doubtless have given it to the world in a succession of sheets bound to- gether and constituting a volume, but it is obvious that the chart for practical purposes is more easily understood, and therefore more useful, printed on a single sheet large enough to exhibit all the diagrams at one view. I cannot perceive why her rights as an authoress or inventress should be prejudiced by this form of publication. If the chart, as the court is bound, for reasons be- fore intimated, to presume is original with her, — the product of thought and mental toil, — her claim is by no means destitute of merit and she is justly en- titled to all the benefits which the law confers. "... Adopting this view of the law it is not necessary to decide whether Mrs. Drury's copyright can be sus- tained as a chart or print. These words are used in the statute as legiti- mate subjects of a, copyright, and it would not imply a very forced con- struction to hold that the copyrighted work of Mrs. Drury's is included in one or both of these terms. The au- thorities, I think, would fully sustain such a conclusion." Ibid. 545-548. 8 Scoville . Walker, 3 Swans. 672 ; original work 7 If I was to do strict Gray v. Russell, 1 Story, 11. justice, I should order the defendants * Cary v. Longman, 1 East, 358. to strike out of their book all they See also Cary v. Faden, 6 Ves. 24, in have taken from the plaintiff, and which the same work was in contro- reciprocally the plaintiflE to take out of versy. It appeared that Patterson's his all he has taken from Patterson." Road Book was copyrighted, and that ■WHAT MAY BE COPYRIGHTED. 149 new edition is simply a reprint of the text of a preceding one, ■with additions in the form of new chapters, or paragraphs, or foot-notes ; in other words, if the new matter is wholly distinct and separable from the old, although being a continuation of or an addition to it, the new copyright, as a general rule, will cover only what is new.^ So, also, if only a separable part of a book has been revised, — as, for instance, one or two chap- ters, — the new copyright, in general, will not extend to the unchanged parts. No one without authority will be entitled to publish this new or revised matter, either separately or in con- nection with the original. But when the copyright in the orig- inal has expired, its unauthorized publication will not infringe any revised edition. Any person will be entitled to copyright in his annotated edition of the work of another, provided he has a right so to use the original. In such case, the copyright will protect the annotations as combined with the text.^ Is Change of one ■Word enough to create Title to Copyright in New Edition. — In the Scotcli Case of Black v. Murray,^ the interesting question was discussed, whether an edition of a poem of eleven stanzas, which differed from the original in but a single word, became thereby entitled to copyright. The poem was Sir Walter Scott's Glenallan's Earl. As originally pub- lished, it contained these lines : — " ■Were I Glenallan's Earl this tide, And ye were Roland Cheyne, The spear should be in my horse's side, And the bridle upon his mane." In preparing the ballad for a new edition of the Antiquary, Scott made a marked improvement by substituting " spur " for " spear " in the third line of the stanza here quoted. With this exception, the second edition of the ballad was a reprint of the original in which the copyright had expired. Lord Deas contended that the question o:^ copyright was to be determined in this case, not by the extent of the revision, but by the change 1 Cary v. Longman, 1 East, 358 ; Black v. Murray, supra ; Lawrence v. Black V. Murray, 9 So. Sess. Cas. 3d Dana, 4 Am. L. T.E. N. a. 402; Banks ser. 841. v. McDlvitt, 13 Blatchf. 163. 2 Tonson v. Walker, 3 Swans. 672 ; ' Supra. 150 THE LAW OP COPYRIGHT AND PLATEIGHT. wrought in the author's meaning. " I cannot think," he said, " that merely hecause the alteration consists in one word, that is necessarily conclusive against its being of sufficient impor- tance to create copyright in the new edition. A word may often be of very great importance. I suggested, in the course of the discussion, the supposition that, in a new edition of the Bible, the first verse in Genesis, instead of bearing, ' In the beginning God created the heaven and the earth,' were made to run, ' In the end God created the heaven and the earth,' this would not the less alter or affect the whole book, because the alteration consisted in a single word. . . . "We must look to what the poem is about. It is simply this : The knight says in substance to his squire Eoland Cheyne, 'Here is this hostile chieftain coming upon us with twenty thousand men, and we are only two hundred. It would be disgraceful to run, and yet to fight would be wondrous peril. What would you do if you were in my place ? ' The squire's answer is : — ' Were I Glenallan's Earl this tide, And ye were Koland Cheyne, The spur should be in my horse's side, And the bridle upon his mane.' That is to say, that if he were the earl he would slacken the bridle, put spurs to his horse, and ride straight at the foe. Can anybody read that verse with the context, and suppose the meaning to be that he would lay the bridle on the horse's mane, and thrust his spear into the horse's side ? It would not make such nonsense, if you were to hold him to have been made to say that the spear would be at his horse's side, or on his horse's side. Still it would be weak. The spear may be supposed to have been previously in its proper place like the rest of the ac- coutrements ; and what the squire is speaking about is the alter- ation he woiild make for rushing at the enemy full speed. He would lay the bridle on the horse's mane, and strike the spur into his side. The sense is destroyed if you make it any thing else. The whole edition was published with that blot. I would not keep a copy of that edition in my library if the other could be had, or without correcting it, if it could not. It would unques- tionably be a blot of a most disagreeable kind. The alteration WHAT MAY BE COPYRIUHTED, 151 was, in my opinion, a material alteration ; and I am, therefore, of opinion that the second edition of the poem was copy- right." i Lord Kinlock expressed a decided opinion that the change of a single word was not enough to create a title to copyright. The other two judges, the Lord President and Lord Ardmillan, considered it unnecessary to determine this question ; because the defendant, in republishing the poem, while copying the plaintiff's revised reading, had also changed a word in one of the stanzas, which introduced a reading different from that found in either the original or the revised edition of the ballad. The court regarded this as evidence that the defendant was not guiltj'^ of "a slavish adherence to the copyright edition," and 1 9 Sc. Sess. Cas. 3d ser. 351-352. Lord Deas further said : " The case be- fore us is the case of a poem of eleven verses only, which no one can read without seeing that it is a beautifully finished composition, the alteration of a single word of which may be suffi- cient to mar the whole. The alteration of a word in any one verse might be material. Suppose, for instance, that in the second verse, where it says, — ' The cronaclis cried on Bennachie, And down the Don and a','* it had been written, — ' The children cried on BennacUe, And down the Don and a'," that would have made the whole thing ludicrous. Or, suppose in the next verse, where it is said, — ' They saddled a hundred milk-white steeds, They hae bridled a hundred black, With a chafron of steel on each horse's head And a good knight upon his back,* it had been said in the last line, ' and a woman upon his back,' what kind of an effect would that have had 'i Again, take the last verse : — ' My horse shalljide through ranks sae rude, As through the moorland fern,' meaning that he would ride as easily through the hostile ranks as he would through the moorland fern. But sup- pose the word ' and ' had been substi- tuted for ' as,' so that he was made to say, — * My horse shall ride through ranks sae rude And through the moorland fern,' that would not have been ludicrous like the above examples, but it would have been so weak and meaningless as to have destroyed the vigor of the whole poem. It is impossible to say, therefore, that the alteration of a word may not be of great importance. Men- tion was made, a little ago, of the song we are all familiar with. The Flowers of the Forest. Now, suppose that the first line of that song, as published, had been, ' The fowls of the forest,' or perhaps, ' The fools of the Jorest.' The last, for any thing I know, might have been defended by those who defend ' spear ' in the present instance ; for, Shakespeare has made classical ' a fool i' the forest,- and Sir Walter was fond of introducing a sylvan char acter of that kind into his novels. But I think few people would doubt that the author who corrected the word 'fowls' or 'fools,' in the only edition he found in circulation of his song, into ' flowers,' would have had copy- right in the new edition, although he had none in the old. " The question, therefore, comes to be, not the extent of the alteration in the present instance, but whether it was material." Ibid. 351-353. 152 THE LAW OP COPYRIGHT AND PLATEIGHT. held, in the language of the Lord President, that " the proprie- tors of the copyright must just console themselves with the reflection that while the pirate has here stole a very little bit of their property, he has spoiled the poem otherwise by an emendation of his own." ^ While this decision does not determine the question whether in any case the change of a single word may be sufficient to create a title to copyright in a new edition, the discussion is important as showing that when a material change has been wrought in the substance of a composition by very slight alter- ations in its form, the court will consider the effect produced, — the improved meaning, rather than the extent of the verbal changes. Compilations. The doctrine is well settled in England and the United States, that existing materials selected from common sources, and arranged and combined in an original and useful form, become a proper subject of copyright. This is equally true whether the compilation consist wholly of selected matter, or of such matter combined with original composition ; and, in either case, it is immaterial whether the materials are obtained from published or unpublished sources, or whether the selec- tions are used bodily, or their substance is given in the lan- guage of the compiler. Such woriis are often the result of industry, learning, and good judgment, and are useful and valuable contributions to knowledge. They are entitled to, and will receive, the same protection extended to productions wholly original .2 1 9 Sc. Sess. Cas. 3d ser; 350. copyright act. Books ' made and com- 2 " Copyright may justly be claimed posed 'in that manner are the proper by an author of a book who has taken subjects of copyright ; and the author existing materials from sources com- of such a book has as much right in mon to all writers, and arranged and his plan, arrangement, and combination combined them in a new form, and of the materials collected and pre- glven them an application unknown sented, as he has in his thoughts, before, for the reason that in so doing sentiments, reflections, and opinions, he has exercised skill and discretion in or in the modes in which they are making the selections, arrangement, and therein expressed and illustrated ; but combination, and haying presented he cannot prevent others from using something that is new and useful, he the old material for a different purpose, is entitled to the exclusive enjoyment All he acquires by virtue of the oopy- of his improvement as provided in the right is ' the sole right and liberty of WHAT MAY BE COPYRIGHTED. 153 These principles have been judicially recognized in the case of the following productions : general miscellaneous compi- lations ; 1 annotations consisting of common materials ; ^ dic- tionaries ; ^ books of chronology ; ^ gazetteers ; ^ itineries, road and guide books ; ^ directories ; ' maps and charts ; ^ calen- dars ; 3 catalogues ; i" mathematical tables ; ^^ a list of hounds ; ^^ abstracts of titles to lands ; ^^ and collections of statistics,^* statutory forms,^^ recipes,!^ and designs." The compilation may consist of common facts and informa- tion which the compiler himself has reduced to writing, as in the case of a catalogue or a directory ; of materials ob- tained from manuscripts, as a collection of statistics taken from unpublished official records ; ^^ or of selections made from printing, reprinting, publishing, and vending such book ' for the period pre- scribed by law. Others may use the old materials for a different purpose, but thej' cannot copy and use his im- provement, which includes his plan, arrangement, and combination of the materials, as well as the materials themselves, of which the book is made and composed." Clifford, J., Lawrence V. Dana, 2 Am. L. T. R. n. s. 423. 1 Br. Jarrold n. Houlston, 3 Kay & J. 708 ; Pike v. Nicholas, 20 L. T. N. s. 906, on ap. Law Eep. 5 Ch. 251 ; Mack V. Fetter, Law Rep. 14 Eq. 431 ; Hogg V. Scott, 18 Id. 444. Am. Gray V. Russell, 1 Story, 11; Emerson v. Davies, 3 Id. 768 ; Webb v. Powers, 2 Woodb. & M. 497 ; Greene v. Bishop, 1 Cliff. 186; Lawrence v. Cupples, 9 U. S. Pat. Off. Gaz. 254. 2 Story's Executors o. Holcombe, 4 McLean, 306 ; Lawrence v. Dana, 2 Am. Law T. R. n. s. 402 ; Banks v. McDivitt, 13 Blatchf. 163 ; Black v. Murray, 9 Sc. Sess. Cas. 3d ser. 341. 3 Barfield v. Nicholson, 2 Sim. & St. 1 ; Spiers v. Brown, 6 W. R. 352. < Trusler v. Murray, 1 East, 362, note. 5 Lewis V. Fullarton, 2 Beav. 6. « Gary v. Faden, 5 Ves. 24 ; Gary V. Longman, 1 East, 358; Murray v. Bogue, 1 Drew. 353. 1 Kelly V. Hooper, 4 Jur. 21 ; Kelly V. Morris, Law Eep. 1 Eq. 697 ; Morris V. Ashbee, 7 Id. 34 ; Mathieson v. Har- rod. Ibid. 270 ; Morris v. Wright, Law Rep. 6 Ch. 279; Kelly v. Hodge, 29 L. T. N. s. 387. 8 Blunt V. Patten, 2 Paine, 393, 397 ; Stevens v. Cady, 14 How. 528 ; Stevens V. Gladding, 17 Id. 447 ; Farmer v. Calvert Lithographing, Engraving, & Map-Publishing Co., 5 Am. L. T. E. 168; Rees v. Peltzer, 75 111. 475; Stan- nard v. Lee, Law Rep. 6 Ch. 346. 5 Matthewson o. Stockdale, 12 Ves. 270; Longman a. Winchester, 16 Id. 269. i« Wilkins w. Aikin, 17 , Ves. 422; Hotten V. Arthur, 1 Hem. & M. 603 ; Hogg V. Scott, Law Rep. 18 Eq. 444. w M'Neill V. Williams, 11 Jur. 344 ; King V. Reed, 8 Ves. 223, note ; Baily V. Taylor, 3 L. J. (Ch.) 66, 1 Russ. & My. 73. ''■i Cox V. Land & Water Journal Co., Law Rep. 9 Eq. 324. 13 Banker v. Caldwell, 3 Minn. 94. " Scott V. Stanford, Law Eep. 3 Eq. 718 ; Maclean v. Moody, 20 Sc. Sess. Cas. 2d ser. 1154 ; Walford v. Johnston, Ibid. 1160, note. 15 Alexander v. Mackenzie, 9 Sess. Cas. 2d ser. 748. 16 Eundell v. Murray, Jac. 3U. 1' Grace v. Newman, Law Eep. 19 Eq. 623. " Scott V. Stanford, Law Eep. 8 Eq. 718 ; Maclean v. Moody, 20 Sc. Sess. Cas. 2d ser. 1154. 154 THE LAW OF COPYRIGHT AND PLATRIGHT. published works. But in all cases the compiler must have a right to use the materials constituting his compilation. They must be gathered from common sources ; or, if they are not, he must have authority to appropriate them, unless the use made of them be such as not to amount to piracy. He cannot make other than a " fair use " of a copyrighted publication, without the consent of the owner. Materials need not be new. — It is no objection to tKe copy- right in a compilation that the compiler is not the author of its component parts ; that all the materials used may be found in other publications. Selecting, arranging, and combining existing materials in a useful form is recognized by the law as an act of authorship, and as creating a title to exclusive ownership.^ In Lawrence v. Dana, where the plaintiff claimed ^ " It is a great mistake to suppose, because all the materials of a work or some parts of its plan and arrange- ments and modes of illustration, may be found separately, or in a different form, or in a different arrangement, in other distinct works, that therefore, if the plan or arrangement or combina- ,tion of these materials in another work is new, or for the first time made, the author, or compiler, or framer of it, (call him which you please,) is not en- titled to a copyright. The reverse is the truth in law, and, as I think, in common sense also. It is not, for ex- ample, in the present case, of any im- portance that the illustrating of lessons in Arithmetic by attaching unit marks representing the numbers embraced in the example, may be found by dots in Wallis's Opera Mathematica, (p. 28) ; or in Colburn's Arithmetic in the form of upright linear marks, in a pamphlet detached from the main work. That is not what the plaintiff purports to found his copyright upon. He does not claim the first use or invention of unit marks for the purpose above men- tioned. The use of these is a part of and included in his plan ; but it is not the whole of his plan. What he does claim is : 1, the plan of the lessons in his book ; 2, the execution of that plan in a certain arrangement of a set of tables in the form of lessons to illus- trate those lessons ; 3, the gradation of examples to precede each table in such manner as to form with the table a, peculiar and symmetrical appearance of each page ; 4, the illustration of his lessons by attaching to each example unit marks representing the numbers embraced in the example. It is, there- fore, this method of illustration in the aggregate that he claims as his inven- tion ; each page constituting of itself a complete lesson ; and he alleges that the defendants have adopted the same plan, arrangement, tables, gradation of examples and illustrations by unit marks, in the same page, in imitation of the plaintiff's book, and in infringe- ment of his copyright, and, in con- firmation of this statement, he refers to divers pages of his own book in com- parison with divers pages of the book of the defendants. " Now I say that it is wholly imma- terial whether each of these particu- lars, the arrangement of the tables and forms of the lessons, the gradation of the examples to precede the tables, the illustration of the examples by unit marks, had each existed in a separate form in different and separate works before the plaintiff's work, if they had never been before united in one com- bination or in one work, or on one page WHAT MAT BE COPYRIGHTED. 155 copyright in his annotations to Wheaton's International Law, the notes consisted chiefly of materials taken from common sources. But to gather this matter from other works on inter- national law, public documents, pamphlets, newspapers, maga- zines, &c., arrange, digest, and combine it with Wheaton's text, required research, expense, learning, and judgment. The result was a work of great value, due to the labors of the editor, and as such was entitled to copyright not less than is a production wholly original.^ So in Black v. Murray, protection was claimed for Lockhart's annotated edition of Scott's Min- strelsy of the Scottish Border. The copyright in the text had expired. Of the two hundred notes added by the editor, it appeared that only fifteen were original, while the rest were quotations. But the court placed a high value on the work of the editor, who with great literary research and judgment had made apt selections, and skilfully applied them to illustrate Scott's ballads.^ So, in Banks v. McDivitt,^ the compilation consisted of notes and citations of authorities appended to statutes. The statutes were public property, and the use of the authorities cited was open to all persons. But the com- in the manner in which the plaintiff thoughts of the same author in differ- has united and connected them. No ent places, or the thoughts of other person had a right to borrow the same authors, or of critics, bearing upon the plan and arrangement and illustrations point that is under consideration ; and and servilely to copy them into any nothing could better illustrate it than other work. The same materials T^ere a number of the notes which we see in certainly open to he used by any other these very volumes, and which are ex- author, and he would be at liberty to ceedingly interesting and valuable as use unit marks and gradations of ex- matter of literary and critical taste and amples and tables and illustrations of judgment. The quotations are in many the lessons and to place them in the places most apposite, and highly illus- same page. But he could not be at trative of the text, and exceedingly in- Uberty to transcribe the very lessons teresting to the reader; and certainly and pages and examples and illustra- the selection and application of such tions of the plaintiff, and thus to rob quotations from other books may exer- him of the fruits of his industry, his cise as high literary faculties as the skill, and his expenditures of time and composition of original matter. They money." Story, J., Emerson v. Davies, may be the result both of skill and of 3 Story, 782. labor and of great literary taste ; and ' 2 Am. L. T. R. n. s. 402. therefore I think the circumstance that 2 9 So. Sess. Cas. 3d ser. 341. the notes consist to a great extent of Lord President liiglis said : " It quotations is any thing but a dispar- seems to me that notes of this kind agement of their value." Ibid. 845. are almost chiefly valuable in bring- » 13 Blatchf. 163. ing together and in combination, the 156 THK LAW OP COPYRIGHT AND PLATRIGHT. bination • of the citations with the statutes was a valuable and useful work, in which copyright was held to vest. But a mere copy or reprint of common materials, without novelty or value in their arrangement or combination, is not entitled to copyright as a compilation ; for in such case there is nothing to represent authorship on the part of the com- piler.^ Copyright is in Arrangement and Combination of Materials. — No protection is given to the component parts of a compilation independently of their arrangement and combination. Of these, the compiler is not the author, and he can have no exclusive property in what is common and open to all. Nor is the arrangement and combination, independently of the materials themselves, a proper subject of copyright.''' It would be a monopoly harmful to learning, and therefore opposed to the purpose of copyright laws, to give to any one the right to say that his mode of using common materials, his arrangement or combination or plan of treatment, shall not be followed in any subsequent publication. The copyright vests in the materials as combined and arranged ; in the union of form and sub- stance. Any one may use the same materials in a different combination, or adopt a similar arrangement for different selec- tions. But no person can copy both the substance and the arrangement of a compilation, and use the same materials in the same form, without committing piracy.^ 1 Hedderwick v. Griffin, 3 So. Sess. 402; Banks v. McDivitt, 13 Blatchf. Cas. 2d ser. 883. See also Bundell v. 163. Murray, Jac. 311 ; Jollie v. Jaques, 1 In Lawrence v. Dana, supra, 429, Blatchf. 618. Mr. Justice CliflFord said : — 2 Pike V. Nicholas, Law Kep. 5 Ch. " Judge Story held, in the case 251 ; Mack v. Fetter, Law Rep. 14 Eq. of Emerson v. Davies, 3 Story, 780, 431 ; Webb v. Powers, 2 Woodb. & M. that every author had a copyright in 497 ; Farmer v. Calvert Lithographing, the plan, arrangement, and combina- Engraving, & Map-Publishing Co., 5 tion of his materials, and in his mode Am. L. T. R. 168 ; Lawrence v. Cupples, of illustrating his subject, if it be new 9 U. S. Pat. Off. Gaz. 254. and original ; and it was also held, in 3 Br. Barfield v. Nicholson, 2 Sim. Greene v. Bishop, 1 Cliff. 199, that & St. 1 ; Murray v. Bogue, 1 Drew, there may be a valid copyright in the 353 ; Jarrold v. Houlston, 8 Kay & plan of a book, as connected with the J. 708 ; Spiers u. Brown, 6 W. B. arrangement and combination of the 352. Am. Gray v. Russell, 1 Story, materials ; and no doubt is entertained 11 ; Emerson «. Davies, 3 Id. 768 ; that both those decisions were correct ; Greene v. Bishop, 1 Cliff. 186 ; Law- but it is a mistake to suppose that a rence «. Dana, 2 Am. L. T. B. n. s. subsequent writer can be held to have WHAT MAT BE COPYRIGHTED. 157 But when the compiler does not use the common matter in the exact form in which he finds it, but gives its substance in his own language, — translates, abridges, revises, or otherwise changes its form, — he performs an act of authorship which gives to the matter so used the character of an original composition. Thus, in Lawrence v. Dana,^ it appeared that some of the notes in which copyright was claimed consisted of verbatim quota- tions ; aijd in these the compiler had no exclusive property apart from their arrangement and combination with Wheaton's text. But, in preparing others, he had rewritten, digested, or abridged the original ; and, in some instances, he had made translations from foreign languages. Such notes were his own productions, within the meaning of the law ; and no one had a right to appropriate them, with or without their arrangement and combination. In the cases wherein copyright has been recognized in com- pilations of matter taken from published works, such matter has been more or less elaborated by the compiler, so as to cre- ate in him some title to authorship ; or it has been combined with some other composition in the form of annotations. But the principle which has governed in these cases must extend to a compilation of literary selections whose language is not changed by the compiler, and which are not used for purposes of annotation. Thus, valuable selections of poems, or prose compositions, are sometimes made and arranged with reference to their subject-matter ; proverbs, quotations, &c., may be com- piled so as to form useful collections ; hymns may be selected and classified with a view to their use on appropriate occa- sions.^ Compilations of this kind may have a material value, infringed a book where he lias not bor- fringement of the property protected rowed any of the materials of which by the copyright ; but the property in the book is composed. New materials the latter case consists chiefly, if not are certainly the proper objects of entirely, in the plan, arrangement, and copyright ; and old materials, when combination of the materials collected subsequently collected, arranged, and and presented in the book, as any combined in a new and original form, other person may collect from the are equally so ; and in either case the original sources the same materials, plan, arrangement, and combination of and arrange and combine them in any the materials are as fully protected by other manner not substantially the the copyright as the materials embodied same as that of the antecedent author." in the plan, arrangement, and combina- ^ 2 Am. L. T. R. n. s. 402. tion. Damages may be recovered in i Marzials v. Gibbons, Law Rep. 9 either of the supposed cases for the in- Ch. 618. 158 THE LAW OP COPYRIGHT AND PLAYRIGHT. due to the choice and arrangement of the selections ; and, in such case, there seems to be no reason why they may not be proper subjects of copyright.^ Abridgments, Digests, Translations, and Dramatizations. The law is well settled that productions of tliese kinds are proper subjects of copyright, and all are governed by the same principle. He who honestly abridges, translates, or dramatizes, reproduces a work in a new and useful form ; and for the re- sults of his labor, skill, and learning he will be entitled to the same protection extended to original compositions. But, to be entitled to copyright, the production must be something more than a mere copy of the whole or parts of the original. It must be the result of independent labor other than that of copying, and there must be substantial and valuable fruits of authorship on the part of the maker. A genuine abridgment is a reproduction of the matter or substance of a larger work in a condensed form, and in lan- guage which is not a mere transcript of that of the original. But to reduce the size of a work by copying some of its parts and omitting others creates no title to authorship ; and the result will not be an abridgment entitled to protection, within the meaning of the law.^ A digest is governed by the same prin- ciple.^ The title of a translator is founded on the simple fact that he has raadg'the translation. He is not required to make any other change in the original than to reproduce it in other language.* Whether the translation or abridgment has been made with learning and skill, or otherwise, is a matter of which the law 1 In Rundell v. Murray, where a col- som v. Marsh, 2 Id. 100 ; Story's Exec- lection of recipes for cookery and other utors v. Holcombe, 4 McLean, 306 ; domestic purposes was in controversy, Lawrence v. Dana, 2 Am. L. T. R. n. s. Lord Eldon said : " If the plaintiff had 402. Other cases relating to abridg- composed these receipts, or embodied ments are cited in Chap. IX. and arranged them in a book she would ' Sweet v. Benning, 16 C. B. 459. have a copyright in it ; but if she had « Wyatt v. Barnard, 3 Ves. & B. only collected them and handed them 77 ; Rooney v. Kelly, 14 Ir. Law Rep. over to Mr. Murray, I do not appre- n. s. 158 ; Emerson v. Davies, 3 Story, hend that they would be the subject of 768 ; Shook v. Rankin, 6 Biss. 477 ; copyright." Jac. 814. Shook v. Rankin, 3 Cent. Law Jour. !" Gray v. Russell, 1 Story, 11 ; I"ol- 210. WHAT MAT BE COPYRIGHTED. 159 takes no cognizance. The question is, whether there has been real abridging or translating, or mere copying. Nor is it material how closely two rival productions may resemble each other, provided each is the result of independent labor. Pro- tection may be secured for an abridgment or translation of any work not protected by copyright. Any number of persons may make a similar use of a common original, and each will be entitled to copyright in his own production. So any one may acquire copyright for an abridgment or translation of a copy- righted work, provided he has the consent of the owner so to use it. But it is maintained elsewhere that, to make such use of a copyrighted work, without due authority, is piracy.^ The above principles apply equally to dramatizations, which are considered in another part of this work.^ Law Eeports. The report of a law case generally consists of two parts : 1, the opinion delivered by the court ; 2, the matter prepared by the reporter. The latter usually comprises the head-notes, giving a digest of the decision, a statement of the facts of the case, a synopsis of the arguments of the counsel, and such otlier matters as are sometimes added to make the report complete. Matter Prepared by Reporter. — It is settled, both in England and in the United States, that valid copyright may be acquired by a reporter for those parts of a report of which he is the author or compiler.^ The head-notes, additional citations in ^ See Chap. IX. Referring to the decision in Wheaton 2 See dramatizations considered in u. Peters, Mr. Justice Story, who was Chap. XIV. ; also, Chap. IX. one of the judges who concurred in it, ' Br. Butterworth v. Kobinson, 5 said : " It was lield that the opinions Ves. 709 ; Saunders v. Smith, 3 My. & of the court, being published under the Cr. 711 ; Sweet v. Shaw, 3 Jur. 217 ; authority of Congress, were not the Sweet K. Maugham, 11 Sim. 51; Hodges proper subject of private copyright. V. Welsh, 2 Ir. Eq. 266 ; Sweet v. Ben- But it was as little doubted by the ning, 16 C. B. 459. Am. Wheaton v. court that Mr. Wheaton had a copy- Peters, 8 Pet. 591, 654 ; Backus v. Gould, right in his own marginal notes, and 7 How. 798 ; Little v. Gould, 2 Blatchf. in the arguments of counsel as pre- 165, 362 ; Little v. Hall, 18 How. 165 ; pared and arranged in his work. The Cowen V. Banks, 24 How. Pr. 72 ; cause went back to the Circuit Court Paige V. Banks, 7 Blatchf. 152, on ap. for the purpose of further inquiries as 13 Wall. 608; Chase i^. Sanborn, 6 to the fact, whether the requisites of U. S. Pat. Off. Gaz. 932 ; Banks v. Mc- the act of Congress had been com- Divitt, 13 Blatchf. 163. plied with or not by Mr. Wheaton. 160 THE LAW OP COPYEIGHT, AND PLAYRIGHT. the form of foot-notes, the statement of facts and abstract of arguments of counsel, represent the results of the labor and the authorship of the reporter ; but, in reporting the opinion delivered by the court, he gives a mere copy of what he is not the author. In this he can have no exclusive rights, although he may have written a verbatim report of it from the lips of the judges. So, when the head-notes are prepared by the judge, as they sometimes are, the reporter has no rightful claim to copy- right in them ; for, in such case, he is the mere copyist of what another is the author.^ Nor is the reporter entitled to any copyright when he is employed on the condition that the exclusive property in the results of his labor shall belong to the State ; for then he has voluntarily parted with his rights.^ But, in such case, he does not lose his title to reports prepared by him after the expiration of his term of office, and when he is no longer employed or paid by the State.^ Abridgments, Digests, and Selections of Cases. — Tliere is no principle to prevent a person from acquiring a valid copyright for a bona fide abridgment, digest, or synopsis of any judicial decision, whether it be obtained from oral delivery in court or from any published report ; provided, of course, that the de- cision is common property, or, if not, that the reporter has authority so to use it. Indeed the head-notes, in which the exclusive property of the reporter has been recognized, are but a digest of the decision. So, a selection and arrangement of cases relating to a particular branch or subject of the law may have a material value as a compilation due to the labor, judgment, and learning of the compiler. Exclusive property in such a work may be acquired on the principle that a compilation con- sisting wholly of old materials is recognized as a proper subject of copyright. Opinions of the Court. — I have seen no sound, clear exposition of the law governing copyright in judicial decisions. In the This would have been wholly useless entitled to redress.'' Gray v. Russell, and nugatory, unless Mr. Wheaton's 1 Story, 21. marginal notes and abstracts of argu- ^ Chase v. Sanborn, 6 U. S. Pat. ments could have been the subject of a Off. Grz. 932. copyright, for that was all the work, ^ Little v. Gould, 2 Blatchf. 165, 862. which could be the subject of copy- * Little v. Hall, 18 How. 165. See right ; so that if Mr. Peters had vio- this case considered in Chap. VII. lated that right, Mr. Wheaton was WHAT MAT BE COPYRIGHTED. 161 English cases, wherein protection has been given to legal reports, the courts have not expressly declared whether the copyright claimed by or through the reporter vested only in the matter prepared by him, or extended also to the Opinion itself.^ In tlie United States, it has been held that neither the reporter nor the judge can acquire copyright in the judgment pronounced by the court ; and the opinion seems to have been entertained that such production is not a prpper subject of copyright.2 In Wheaton v. Peters, the Supreme Court of the United States was " unanimously of opinion that no reporter has or can have any copyright in the written opinions delivered by this court ; and that the judges thereof cannot confer on any reporter any such right." ^ It has not been expressly declared in any modern case that copyright will vest in a judicial deci- sion ; but the law on this point may be easily determined. May be Copyrighted by Government. — Property in judicial decisions is governed by the same general principles that apply to all literary compositions. They are a proper subject of copyright ; and when the provisions of the law are complied with, as in the case of other productions, they will be entitled to the same protection accorded to any copyrighted work. Where such protection has been denied, the decision of the court could not rightly liave been otherwise ; for the reason that the copyright had not been properly secured, or the plaintiff's title was defective. It is obvious that the copyright in an opinion written or delivered by a judge cannot be acquired by a reporter or the first publisher on the ground of author- ship, for the reason that he is not the author. It is not less clear that the judge who pronounces the decision is not entitled to the copyright therein, because he is not the owner of the property. Hence, neither in the judge nor in the re- porter will a valid copyright vest, except by a derivative title. The copyright must be secured by the owner of the property ; and all difficulty disappears when it is determined who is the owner. Elsewhere it is shown that any person who employs another to prepare a work may, by virtue of the contract of 1 See the English cases cited, ante, other American cases cited, ante, p. 159, p. 159, note 3. note 3. 2 Wheaton v. Peters, 8 Pet. 591, 654 ; ' 8 Pet. 668. See remarks of Mr. Little V. Gould, 2 Blatchf. 165, 362. See Justice Story, ante, p. 159, note 3. 11 162 THE LAW OP COPYRIGHT AND PLAYKIGHT. employment, become the owner of the literary property therein.^ On this principle, the people who employ and pay judges are the rightful owners of the literary property in the opinions written by them. Hence, the United States government may secure to itself the copyright in the decisions pronounced in the federal courts, and each State may do the same with the opinions of its own judges. And the government may confer upon any person the right of securing, or the copyright after it has been secured. Of course the State, as in the case of an individual, may lose its exclusive right of property, and it usually does, by permitting the work to be published without being copyrighted ; or, it may declare by its constitution or by statute that such decisions shall be public property .^ But, if the government chooses to retain its property, and takes the steps required in the case of every literary composition for its protection, a valid copyright may be secured. The doctrine that the State may have an exclusive property in the decisions of its judges, although the courts appear to have lost sight of it in more recent times, was advanced in England more than two centuries ago. In 1666, the House of Lords, affirming the judgment of the Lord Chancellor who had granted an injunction against members of the Stationers' Com- pany, held that Atkins had acquired from the king the exclusive right of printing RoUe's Abridgment.^ So, in 1672, the same tribunal reversed the decision of the Common Pleas, that the property in the third part of Croke's reports was in Roper, who had derived his title from the executors of the reporter, ^ See Chap. IV. the parts of the reports of the Court of 2 The constitution of Nevf Yorlc Appeals consisting of the notes and adopted in 1846, art. vi. s. 22, declared references prepared by the State re- that " the legislature shall provide for porter who had been appointed pursu- the speedy publication of all statute ant to the statute of 1850, c. 245. Sec- laws, and of such judicial decisions as tion two of this act provided that " the it may deem expedient. And all laws copyright of any notes or references and judicial decisions shall be free for made by the State reporter to any of publication by any person." The Ian- said reports shall be vested in the guage of this section is somewhat Secretary of State for the benefit of varied in the constitution as amended the people of this State." See also in 1867. See art. vi. s. 23. In Little Chase v. Sanborn, 6 U. S. Pat. Off. V. Gould, 2 Blatchf. 165, 362, it was Gaz. 932. held that the provision in the constitu- ^ Atkin's Case, cited 4 Burr. 2315, tion of 1846 did not affect the exclu- reported Carter, 89 ; Bac. Abr. Prerog. sive property claimed by the State, in F. 5. WHAT MAT BE COPYRIGHTED. 163 and held that " the copy belonged to the king," by whom the defendant Streater had been licensed to print.^ Whether the king's rights were affirmed on the principle of property or pre- rogative does not appear from the reports of the cases. One of the grounds on which Atkin's case was argued was that of property in the king, who paid the judges. Lord Mansfield emphatically maintained that the judgment of the Lords rested solely on this ground, and that it could be defended on no other.2 1 Roper V. Streater, cited 4 Burr. 2316 ; s. c. Skin. 234 ; 1 Mod. 257 ; Bac. Abr. Prerog. F. 5. 2 Millar t. Taylor, 4 Burr. 2401 et seq. See ante, p. 63, note 5. The doc- trine of the king's exclusive right to publish the aets of Parliament was recognized in Baskett v. University of Cambridge, decided in 1758, by the King's Bench, of which Lord Mans- field was Chief Justice. 1 W. Bl. 105; 8. 0. 2 Burr. 661. Of this judgment. Lord Mansfield, in Millar v. Taylor, 4 Burr. 2404, said : " We had no idea of any prerogative in the crown over the press ; or of any power to restrain it by exclusive privileges, or of any power to control the subject-matter on which a man might write or the man- ner in which he might treat it. "We rested upon property from the king's right of original publication. Acta of Parliament are the works of the legis- lature ; and the publication of them has always belonged to the king as the executive part and as the head and sovereign." Others have contended that the right claimed by the king was founded on prerogative, and not property. See ante, p. 63. For a long time, it was considered unlawful to publish reports of judicial matters without a license. In the pref- ace to Douglas's Reports, vol. i. p. ix, the reporter says : " Soon after the Res- toration, an act of Parliament having prohibited the printing of law-books without the license of the Lord Chan- cellor, the two Chief Justices and the Chief Baron, it became the practice to prefix such a license to all reports published after that period in which it was usual for the rest of the judges to concur, and to add to the imprimatur a testimonial of the great judgment and learning of the author. The act was renewed from time to time, but finally expired in the reign of King William. But the same form of license and testi- monial continued in use till not many years ago ; when, as one had become unnecessary, and the other was only a general commendation of the writer, and no voucher for the merit of the work, the judges, I believe, came to a resolu- tion not to grant them any longer ; and accordingly the more recent reports have appeared without them." Sir James Burrow apologized for publishing his reports without license and the usual imprimatur, and said : " !■ know it is a contempt of this court to publish their proceedings; it is against a standing order of the House of Lords to publish proceedings there upon ap- peals or writs of error. They ought to be published under authoritative care and inspection; but since the Year Books, no judicial proceedings have been so published, either by the House of Lords, or by any court in Westmin- ster Hall, except State trials." 1 Burr, preface, p. vii. More recently, the courts have exer- cised the right of restraining the publi- cation of their proceedings, on the ground that it is an interference with the administration of justice. The King V. Clement, 4 Barn. & Aid. 218. See also Tichborne v. Mostyn, Law Rep. 7 Eq. 55, note. So, also, the House of Lords has claimed the exclu- sive right of publishing the proceed- ' ings of trials had before it. Gurney v. Longman, 13 Ves. 493. 164 the law of copyright and platright. Statutes and Public Documents. Statutes are within the same principle that governs judicial decisions.^ They are the property of the government, which employs and pays those who make them. The government, if it chooses, may have them copyrighted ; and only the govern- ment, or some person deriving title from it, has this right. But any person may acquire copyright in notes and citations appended to a statute.^ So, copyright was held to vest in certain forms which had been prepared by following the direc- tions given by the statute.^ The same general rule applies to public documents, official correspondence of the government, reports made by government officers, &c. Copyright may be secured for such productioiis, if the proper steps are taken by the rightful owner.* The property in public documents usually belongs to the government by virtue of the fact that it employs and pays the persons who write them. But, when the ownership is claimed by the writer, there may be considerations of public policy to prevent him from publishing without the consent of the government. Statutes and public documents are usually published by the government without being copyrighted. Hence they become common property ; and, as far as copyright is concerned, may be reprinted by any person. Publications Used for Advertising. Whether a composition of this kind is a proper subject of copyright will depend on its character, and not the purpose for which it is used. An advertisement which has no other use or value than to make known the place and kind of business of the advertiser is not within the scope of the copyright law. But information, and the results of learning, valuable to others than the advertiser, may be, and often are, contained in an advertising publication. That valid copyright will vest in such a publication does not admit of reasonable doubt. In adver- tising the works which he wishes to sell, a bookseller may 1 See Baskett v. University of Cam- ° Alexander v. Mackenzie, 9 So. bridge, referred to in note 2, p. 163 ; Sess. Cas. 2d ser. 748. See post, p. 204. also, Baskett v. Cunningham, 1 W. * See Folsom v. Marsh, 2 Story, Bl. 370; s. c. 2Eden, 137. 100. a Banks v. McDivitt, 13 Blatchf 163. WHAT MAY BE COPYRIGHTED. 165 communicate information which will be a substantial contribu- tion to bibliography ; another dealer may give interesting facts concerning bronzes, pottery, furniture, or other articles. This information may be designed and published by the author expressly to advertise his wares, and be circulated gratuitously in the form of a circular, catalogue, pamphlet, or otherwise, for the sole purpose of promoting his business interests. Such productions may have a value aside from that for which they are primarily intended, and which would give them a title to copyright if published as literary productions ; and there is no good reason why this title should be defeated by the fact that the author has designed and uses them to advertise his busi- ness. There is nothing in the letter or the spirit of the law of copyright to prevent him from making this use of his work, and at the same time enjoying the protection of the statute. The question depends not on the intention of the author, or the use made of the production, but on its inherent qualities. Publications used for advertising must be governed by the same pi-inciples that apply to other works. When they lack the inherent qualities essential to copyright, they are not entitled to protection ; when they have such qualities, they are within the scope of the law. Whether a particular publication belongs to one or the other of these classes, will, of course, depend on its character. The controlling inquiry will be, whether it has any value as a contribution to knowledge, or is a mere advertisement, useless for any other purpose than to make known the business of the advertiser. The question under consideration was in direct issue in the recent English case of Cobbett v. Woodward ; ^ but it is difficult to determine, from the reported opinion of Lord Romilly, on what principles the case was decided. The plaintiff, an exten- sive dealer in upholstery and house furniture, had published and copyrighted an illustrated guide for furnishing houses, and circulated it as an advertisement of his business. The defend- ant, who was engaged in the same business, copied fifty-five of the illustrations and a large part of the text. In defence, it was contended that the plaintiff's book was a mere adver- tisement ; and was, therefore, not within the copyright act. 1 Law Eep. 14 Eg,. 407. 166 THE LAW OF COPYRIGHT AND PLAYRIGHT. The court held that the drawings in the complainant's book were 'not entitled to protection, on the ground, as far as can be gathered from the language of the opinion, that they were mere advertisements. With regard to the text, a distinction was drawn between that part which " bears the trace of orig- inal composition," and that which " simply describes the con- tents of a warehouse, the exertions of the proprietor, or the common mode of using familiar articles." The court held that matter of the latter kind was not entitled to protection ; but that the plaintiff was entitled to an injunction restraining the defendant from publishing about sixty words of " original com- position," which had been copied. If this decision rests on the ground that the illustrations had no merit as productions of art, and no value except as a mere advertising medium, and that parts of the text were not entitled to protection because they lacked originality, it is in harmony with the doctrines above presented. But if the court held that the drawings were not proper subjects of copyright, simply because they were used as advertisements, or, in other words, that advertisements are not within the scope of the copy- right law, the decision is inconsistent with itself ; for the small part of the text protected by the court was designed and used by the complainant as an advertisement. As the same general principles must be applied to both text and illustrations, the only rational construction to be put on the decision is, that there may be copyright in matter, whether pictorial or literary, designed and used as an advertisement, provided it be original, and have a value aside from its function as a mere advertising medium.! 1 It is to be regretted that the tion. If the illustrations were useless principles discussed by the court are except as mere advertisements, the not given in the opinion with clearness grounds for the distinction are mani- and precision. The entire work in fest. There is much in the reported controversy, the text as well as the opinion that is confusing ; and parts of illustrations, was designed and used to it are destined to be often cited, as advertise the complainant's business, showing that there can be no copyright The court refused to protect the fifty- in any advertisement, whatever may he five illustrations that had been copied, its character. because they were advertisements ; but After referring to directories, con- held that about sixty words of text, cordances, dictionaries, &c.. Lord Rom- which was also designed and used as an illy said ; — advertisement, were entitled to protec- " But the distinction between those WHAT MAY BE COPYRIGHTED. 167 This doctrine was recognized in Hotten v. Arthur,^ where an advertising catalogue was protected, and in Grace v. New- man.2 The plaintiff in the latter case was a " cemetery stone works and the present is this : those works are compiled and published for the information and use of the public, and are bought by the public without any reference to individual benefit — nothing in the shape of advertisement of articles specified in the work form- ing a part of the work. But this is a mere advertisement for the sale of particular articles which any one might imitate, and any one might advertise for sale. "To draw the distinction more clearly : if a man not being a vendor of any of the articles in question were to publish a work for the purpose of informing the public of what was the most convenient species of articles of house furniture, or the most graceful species of decorations for articles of house furniture, what they ought to cost, and where they might be bought, and were to illustrate his work with designs and with drawings of each arti- cle he described — such a work as this could not be pirated with impunity, and the attempt to do so would be stopped by the injunction of the Court of Chancery ; yet, if it were done with no such object, but solely for the pur- pose of advertising particular articles for sale, and promoting the private trade of the publisher by the sale of articles which any other person might sell as well as the first advertiser, and if in fact it contained little more than an illustrated inventory of the contents of a warehouse, I know of no law which, while it would not prevent the second advertiser from selling the same articles, would prevent him from using the same advertisement, provided he did not in such advertisement by any device suggest that he was selling the works and designs of the first adver- tiser. At the same time, I am bound to say that where it is shown that the second advertiser has been making use literally of the drawings of the first ad- vertiser, and copying them precisely, I think that the court, though it could not stop him from taking that course, must feel that a use has been made of the works of the first advertiser which would not be considered fair amongst gentlemen, nor (for the rules are the same as regards the usual intercourse of life) amongst fair traders, and would not give costs to the man who deliber- ately endeavored to profit by the exer- tions of his fellow-tradesman. But at the last it always comes round to this, that in fact there is no copyright in an advertisement. If you copy the ad- vertisement of another, you do him no wrong, unless in so doing you lead the public to believe that you sell the arti- cles of the person whose advertisement you copy. " A different rule applies to the let- terpress which is said to be copied. Wherever this letterpress bears the trace of original composition it is en- titled to protection, but not where it simply describes the contents of a warehouse, the exertions of the pro- prietor, or the common mode of using familiar articles." Law Rep. 14 Eq. 413. According to this theory, a bibliog- raphy having the highest value as an addition to the store of knowledge would be entitled to copyright if the author be not a bookseller, but would have no claim to protection if prepared by a dealer in books, for the purpose of promoting his business interests. The absurdity of such a distinction is ap- parent. The question whether copy- right will vest depends on the char- acter, the inherent qualities, of the production, and not on the vocation of the author, or the purpose for which he has designed or uses it. ' 1 Hem. & M. 603. 2 Law Eep. 19 Eq. 623. See also Hogg V. Scott, 18 Id. 444 ; Lawrence v. Cupples, 9 U. S. Pat. Off. Gaz. 254. 168 THE LAW OP COPYRIGHT AND PLATBI6HT. and marble mason," and had published a book containing, with some letterpress, lithographic sketches of monumental designs taken from tombstones in cemeteries. The publication was intended to serve as an advertisement of the plaintiff's business, and to enable customers to whom it was given to select designs to be executed by the plaintifif. The court did not hesitate to declare it a proper subject of copyright.^ In CoUender v. Griffith, it appeared that the plaintiff, who was a maker of billiard tables, had copyrighted an engraving of a design for a billiard table, and used it to advertise his business. The court held that it was not entitled to copy- right, on the ground, chiefly, that it was " not a work of art, print, lithograph, or engraving having any value or use as such. It is a mere copy of what the complainant has patented as a design, and constitutes the mode in which complainant advertises his tables." ^ Newspapers, Magazines, and other Peeiodicals. In the United States, no express statutory provision has been made concerning copyright in publications of this kind. But the question whether they are proper subjects of copyright is easily determined by the application of well-known princi- ples. The purpose and effect of the copyright statutes, as con- strued by the courts both in England and the United States, are to protect all literary productions worthy of protection. It I Sir Charles Hall, V. C-. said : " It thur, that a catalogue may, under cer- was also contended that this work is tain circumstances, be protected by not entitled to any protection having injunction." Law Rep. 19 Eq[. 626. regard to its cliaracter — that it is, in ^ 11 Blatchf. 212. fact, a mere advertisement, and that The court added : " The defendant an advertisement is not, on the author- having the right to make his own tables ity of Cobbett v. Woodward, entitled as he does make tliem, has an equal to protection. The decision in that right to advertise them by showing the case turned entirely upon the circum- public their appearance by engraving, stances which existed in it — it was a lithograph, or photograph." ] This is catalogue of articles which were being true ; but he would have no right to offered for sale. But it does not ap- copy the complainant's engraving in pear that the case of Hotten v. Arthur case it possessed the qualities essential was mentioned to the Master of the to copyright. He might publish and Bolls, and wliether, if it had been, his use as an advertisement a similar en- lordsliip's decision would have been graving ; but it must have been pre- different, it is difficult to say, but cer- pared by liimself. tainly it was decided in Hotten v. Ar- WHAT MAY BE COPYRIGHTED. 169 may be material to inquire whether the composition is of suf- ficient importance to be entitled to protection, or has the in- herent qualities, as to originality, innocence, &c., essential to copyright ; but in the comprehensive meaning given to the word book is found no requirement as to the size, form, manner, or frequency of the publication containing the copyrighted mat- ter. The question, therefore, whether any composition is enti- tled to copyright is properly determined by its character, and not the form or manner in which it is published. The fitness of magazine articles as subjects of copyright is manifest ; and publications of this kind, as well as many week- lies, are usually copyrighted. But it may be said that the con- tents of a daily newspaper are too ephemeral and often too insignificant to be worthy of statutory protection. This is doubtless true of much that appears in a newspaper ; but, on the other hand, among the contents of such publications are frequently found productions of great value and permanent literary merit. There is, then, nothing in the law of copyright, as made by the legislature or as expounded by the courts, to prevent valid copyright from vesting in a magazine or a newspaper, as a whole, or in any of its contents that may be worthy of protec- tion. ^ The same principles apply to such publications as 1 Cox V. Land & "Water Journal Co., that copyright in a, newspaper " un- Law Eep. 9 Eq. 324. doubtedly exists." £a;;)orteFoss, 2De In Piatt V. Waiter, 17 L. T. n. s. 159, G. & J. 239. Lord Chelmsford expressed the opinion In Clayton v. Stone, 2 Paine, 392, obiter that the contents of a newspaper Mr. Justice Thompson expressed the when published become a proper sub- opinion that a newspaper was not with- ject of copyright. He said : "I do not in the scope of the copyright law. His exactly compreliend the meaning of judgment appears to rest on the grounds the word copyright in its application of the ephemeral character of the pub- to a newspaper. That protection given lication, and the impracticability of by common and statute law called copy- complying with the then statutory req- right is only in respect of some pub- uisites, one of which was that a copy lished or unpublished literary produc- of the record of entry should be pub- tion, and therefore there can be no lished for four weeks in one or more copyright in the prospective series of a newspapers. A more liberal doctrine, newspaper. The copyright may attach however, now prevails. The statutory upon each successive publication; but requirement just mentioned has been that which has no present existence longobsolete. Within the half century cannot be the subject of this species of that has elapsed since that judgment property." was rendered, the character of Ameri- Lord Justice Turner was of opinion can newspapers has been wholly 170 THE LAW OP COPYRIGHT AND PLAYEIGHT. govern in the case of books. Of course, there must be a com- pliance with the statutory requisites ; and, in the United States, it will be necessary to obtain a separate copyright for each issue of the publication. In the case of a daily newspaper, this will be found inconvenient and perhaps impracticable. In practice, it is not done. But, if it were done in any case, there is no valid reason why the contents of that issue should not be protected. In like manner, copyright may be obtained for any article published in a newspaper, by a compliance in the case of such article with the statutory provisions. If any uncopyrighted composition be published in an un- copyrighted newspaper or periodical, it becomes common prop- erty, and may be republished by any one.^ In England, Special Provision for Magazines and Periodicals. — In England, newspapers are not expressly mentioned in the statute ; but there is a provision relating to copyright in magazines, reviews, and other periodicals. Section 18 of 5 & 6 Vict. c. 45, enacts that when the owner of " any encyclo- paedia, review, magazine, periodical work, or work published in a series of books or parts, or any book whatsoever," shall have employed and paid any persons to write the same, or any part thereof, or any articles therein, on the condition that the copy- right shall belong to the owner, " the copyright in every such encyclopaedia, review, magazine, periodical work, and work published in a series of books or parts, and in every volume, part, essay, article, and portion so composed and paid for, shall be the property of such proprietor." But the author may publish his production in a separate form, and will be entitled to the copyright therein, provided he has reserved to himself that right, " by any contract, expi-ess or implied." In the case of " essays, articles, or portions forming part of and first published in reviews, magazines, or other periodical works changed. Much that now appears in and the question reserved till the final them has a permanent literary or sci- hearing. No further report of the ease entific value, and as such is entitled to appears ; but the theory that the publi- proteetion. cation of an uncopyrighted article in 1 This question was raised but not an uncopyrighted newspaper or maga- decided in the United States Court in zine is not an abandonment of the au- 1839, on an application for an injuno- thor's exclusive rights therein, is con- tion in Miller v. McElroy, 1 Am. Law trary to a fundamental principle of the Reg. 198. The injunction was refused, law of copyright. WHAT MAY BE COPYRIGHTED. 171 of a like nature," it is provided that the exclusive right of pub- lication in a separate form shall, after twenty-eight years, revert to the author, for the remainder of the term of forty-two years ; and that the owner shall not, during the twenty-eight years, publish the composition, " separately or singly," without the consent of the author. The purpose and effect of this provi- sion are clearly not to create copyright in the class of works mentioned. To maintain that doctrine is to assert that there was no copyright in cyclopaedias, magazines, and other peri- odicals, prior to the statute of Victoria ; whereas, before that statute was passed, copyright in such publications was repeat- edly recognized by the courts.^ The comprehensive mean- ing given to the word book, by both Parliament and the courts, clearly embraces all literary compositions, whether published as books or in cyclopaedias, magazines, or other periodicals. The samfe clause, therefore, which vests copy- right in books, vests it also in cyclopaedias, magazines, and periodicals. An additional provision for this purpose would be superfluous. But section 18 has a distinct and useful object. Bj' sec- tion 3, copyright is granted only to the author or his assigns. But a cyclopaedia or magazine is composed of many articles, which the owner or editor has employed others to write, and of which he is neither the author, nor usually the formal assignee. Moreover, magazine articles are often republished in separate form ; and it is important to remove all doubt as to who is the lawful owner of the copyright, and whether the author of the article, or the owner of the magazine in which it has appeared, is entitled to the Ijenefit of republica- tion. These objects are met by section 18. First, it enables any person to acquire, without formal assignment, copyright in a composition which he has employed another to write.^ Sec- ond, in the case of an article published in a magazine or like periodical, it defines the respective rights of the author and the publisher. In this case, the right of the latter is often ' Mawman v. Tegg, 2 Kuss. 385; ^ Brown v. Cooke, 11 Jur. 77; Hogg V. Kirby, 8 Ves. 215 ; Wyatt v. Richardson v. Gilbert, 1 Sim. n. s. 336; Barnard, 33 Vee. & B. 77 ; Bell v. Sweet v. Benning, 16 C. B. 459. Whitehead, 3 Jur. 68 ; Sweet v. Maugh- am, 11 Sim. 61. 172 THE LAW OP COPYRIGHT AND PLAYRIGHT. little more than a license to use the article for a specified purpose.! Section 19 of the statute provides that the owner of the copy- right in any cyclopaedia, review, magazine, or periodical shall be entitled to all the benefits of registration, by registering in the manner prescribed the first volume or number of the pub- lication. Newspapers in England. — The question whether copyright will vest in a newspaper was a direct issue in the recent Eng- lish case of Cox v. The Land and- Water Journal Company, in which it was held that the owner of such a publication has copyright therein, and the articles wliich it contains, and may maintain an action or suit for piracy, although neither the newspaper nor any of the articles have been registered.^ To the extent that a newspaper, as a whole, or any of its contents, may be the proper subject of copyright, the doctrine of this decision is sound ; but, as far as it holds that matter published in a newspaper is protected by copyright when there has been no compliance with the statute, the judgment is supported by no authority, and is contrary to established principles of the law ef copyright.^ Vice-Chancellor Malins held that a news- ' Bishop of Hereford v. Grii&n, 16 vest a copyright in the proprietors or Sim. 190 ; Mayhew v. Maxwell, 1 publishers of a periodical work, but Johns. & H. 312 ; Smith v. John- simply to give them a license to use son, 4 GifE. 632 ; Strahan v. Gra- the matter for a particular purpose, ham, 16 L. T. n. s. 87, on ap. 17 Id. That view was adopted by the Vice- 457. Chancellor of England ; that was the In Smith ». Johnson, Vice-Chancellor view subsequently adopted by Vice- Stuart said : " The proviso in the act Chancellor Wood [in Mayhew v. Max- of Parliament wliich prohibits a publi- well,] and that is the view which, upon cation ' separately or singly,' is a pro- the construction of the language of the viso intended for the benefit and pro- act, fortified by those authorities, I tection of authors. This court in pre- feel myself bound to take." vious cases has, and I think wisely, ^ Law Rep. 9 Eq. 324. construed the language of the" act so ' Vice-Chancellor Malins cited May- as to afford that protection which was hew v. Maxwell, 1 Johns. & H. 312, and clearly intended by the legislature, and Strahan v. Graham, 16 L. T. n. s. 87, that protection being intended, it is the on ap. 17 Id. 457, as sustaining the posi- duty of this court to give the relief now tion that a newspaper is protected asked. by copyright, though not registered. " In the case cited before the Vice- These authorities lend no support Chancellor of England (the Bishop of whatever to this theory. In each case, Hereford v. Griffin), it was said in ar- the issue was whether the owner of gument that the meaning of the proviso a magazine had a right, without the taken with the whole clause is not to consent of the author, to republish in WHAT MAT BE COPYRIGHTED. 173 paper is not entitled to copyriglit under section 3 of the statute, which vests copyright in " any book," because a newspaper is not expressly mentioned there, and cannot be brought within the definition of a book given in section 2. He held, however, that a newspaper is within tlie scope of section 18, though not mentioned there. He admitted that the registration of a book or periodical is essential to copyright, but maintained that section 19, which relates to the registration of magazines, does not apply to newspapers, because they are not specifically designated. The grounds on which this decision is based are palpably erroneous and inconsistent. To exclude newspapers from the third and nineteenth sections because they are not named there, may be plausible ; but, at the same time, to include them under the eighteenth section, when its language is not more favorable to that construction, is, to say the least, in- consistent. With one exception, the classes of publications named in sections 18 and 19 are the same.' If newspapers separate form an article which had been accepted for publication in the magazine. The question was gov- erned by section 18, which, as we have seen, expressly prohibits the owner of a magazine from republishing an arti- cle in separate form, witliout the express consent of the author. In such case, the author sues not for infringement of copyright, in the ordi- nary meaning of that expression, but for violation of a special contract, — for an unauthorized use of the article, and a use expressly forbidden by the stat- ute. Clearly the author's right of action under such circumstances is wholly independent of the ordinary statutory copyright, and is therefore in no wise affected by the question of registration. His remedy is special. His right to prevent republication under tlie circumstances named is analogous to the right of an author to prevent the unauthorized publication of his manuscript. This doctrine was clearly expressed in Mayhew v. Maxwell, 1 Johns. & H. 815, by Vice-Chancellor Wood, who said: "The plaintiff is not taking pro- ceedings to restrain an infringement of his copyright, but claims to be entitled under the proviso of the 18th section to a right distinct from copyright, viz., that of preventing during twenty-eight years the separate publication of his article by the proprietor to whom the copyright belongs. He may or may not be disposed at the end of twenty- eight years, when his own copyright is to commence, to enter the work at Stationers' Hall. In the mean time he retains tlie right to protect his future interests by preventing a separate pub- lication without his consent. I am of opinion therefore that this is not a proceeding in respect of any infringe- ment of copyright, and that the pro- visions of the 24th section do not apply." In Strahan v. Graham, 16 L. T. n. s. 87, on ap. 17 Id. 457, the decision rests on the same principle. The facts were similar, except that the controversy related to the republication of copies of photographs. 1 The language of section 18 is, " any encyclopaedia, review, magazine, peri- odical work, or work published in a 174 THE LAW OP COPYRIGHT AND PLAYEIGHT. are included in one, they are included in both ; if excluded from one, they cannot be brought within the provisions of the other. There can be no copyright in a newspaper, or any other printed matter, except under the statute ; and there can be no copyright under the statute without compliance with its conditions. The sound construction of the statute under consideration is that [a newspaper is clearly within the meaning of a book, as that word is defined in section 2, and as it has been con- strued by the English courts. There can be no reasonable doubt that it is a " periodical work " within the scope of sec- tion 18.^ But it is not less governed by sections 19 and 24, and must therefore be registered. As the requirements of the statute as to registration of mag- agines and other periodicals may be complied with by registra- tion of the first number alone, the same rule would doubtless be held to apply to newspapers. This would render the secur- ing of copyright in journals in England extremely convenient and practicable. But in the United States, where there is no special statutory provision in favor of newspapers or other periodicals, copyright for such publications can be secured only by observing the statutory requisites in the case of each issue. Maps, Charts, and Plans. In England, the copyright in these productions was formerly controlled by the statutes relating to engravings ; ^ but it is now governed by5 & 6 Vict. c. 45.^ In the American statute, series of books or parts, or any book view of the law in Stannard v. Harri- whatsoever." Excepting those italicized, son, 24 L. T. n. s. 570, which was the same words are used in section 19. decided after the Lords Justices had 1 Lord Chelmsford expressed a doubt given their judgment in Stannard <;. whether section 18 extends to news- Lee. In the latter case. Lord Justice papers. Piatt v. Walter, 17 L. T. n. s. James said : " In this case, if the 159. argument of Mr. Cotton were to pre- - See 7 Geo. III. c. 38, s. 1 ; 17 Geo. vail, it would lead at once to one of III. c. 67, s. 1. these two results : either there would 8 Stannard u. Lee, Law Rep. 6 Ch. be two kinds of maps, — maps published 346 ; overruling the decision of Vice- separately and maps forming part of a Chancellor Bacon, 23 L. T. n. s. 306, book, with respect to which there that maps were within the provisions of would be two distinct laws of copy- the statutes relating to engravings, riglit, — or else as to all maps there The Vice-Chancellor adhered to his would be two distinct laws of copy- WHAT MAY BE COPYRIGHTED. 176 maps and charts are included, with other enumerated subjects of copyright ; plans are not mentioned.^ Dramatic and Musical Compositions. These are capable of two distinct uses: 1, publication in print ; 2, public representation or performance. With respect to the right of publication, they are treated as books, and the copyright is governed by the same principles that apply to literary productions. Protection is extended not only to orig- inal productions, but also to dramatizations, translations, and adaptations. The right of publicly representing or performing a dramatic or musical composition is treated under the head of playright.^ Musical compositions were not mentioned in the early Eng- lish statutes ; but the word book in those statutes was judicially construed to embrace any piece of music.^ It is now expressly right, one giving a conditional riglit of property with an unconditional right of action or suit, the other giving an unconditional right of property with a conditional right of action or suit. Either of these states of the law would be strangely inconvenient. " The 6 & 6 Vict. c. 45, s. 2, says that a ' book ' shall ' mean and include every map, chart, or plan separately published ; ' and in the 24:th section it proceeds to say that no proprietor of copyright in any 'book,' that is, of a ' map, chart, or plan separately pub- lished,' according to the definition given of a book, shall maintain an action or suit in respect of any infringement of such copyright, unless he shall have previously registered such ' map, chart, or plan ' in thp way prescribed by the act. No very heavy onus on the pro- prietor — no very difficult step to take before he commences his suit. The words are plain and simple, and there is no reason for saying that the inten- tion of the legislature was different from that which is expressed by the words. The object of the enactment is very clear. Formerly maps liad been con- sidered artistic works ; now they were to be brought into their proper place as literary works. And rightly so, in my opinion, for maps are intended to give information in the same way as a book does. A chart, for instance, gives similar information to sailing rules; maps give instruction as to the statis- tics and history of the country por- trayed ; they point out the amount of population, the places where battles were fought, the dates when provinces were annexed, as in maps of India, and give other geographical and historical details. It was quite reasonable, there- fore, to take them out of the law of artistic works, and to give them greater protection by bringing them under the law of copyright of literary works. There is no inconvenience in giving the natural meaning to the words of the statute, and there would be great inconvenience in the contrary con- struction. I think, therefore, the plea was well pleaded, and that the plain- tiffs are not entitled to maintain their suit until they have registered their map." Law Rep. 6 Ch. 348. 1 U. S. Rev. St. s. 4952. 2 Chaps. XIII.— XVI. ■* Bach V. Longman, Cowp. 623 ; 176 THE LAW OP COPYRIGHT AND PLAYEIGHT. declared by 5 & 6 Vict. c. 45, s. 2, that the word book shall be construed to include every " sheet of music." Alusical com- positions are included in- the subjects of copyright enumerated in the existing American statute,^ as they were in that of 1831. Not only an original composition, but any substantially new arrangement or adaptation of an old piece of music, is a proper subject of copyright.2 jn ^ recent English case, it was unani- mously held by the judges of the Queen's Bench, that an arrangement for the piano of an opera is a work substantially new and distinct from the original; and as such is entitled to protection, provided the arranger had a right so to use the original.^ So also the arrangement for the piano of quadrilles, to be Clementi v. Golding, 2 Camp. 25; Storace v. Longman, 2 Camp., note a; Piatt V. Button, 19 Ves. 447 ; White v. Geroch, 2 Barn. & Aid. 298 ; D'Almaine V. Boosey, 1 Y. & C. Excli. 288 ; Chap- pell V. Purday, 4 Id. 485 ; Chappell v. Purday, 14 Mees. & W. 303 ; Jefferys V. Boosey, 4 H. L. C. 815. See ante, p. 140. 1 U. S. ReT. St. s. 4952. 2 Reed v. Carusi, Tan. Dec. 72. 3 Wood u. Boosey, Law Kep. 2 Q. B. 340, on ap. 3 Id. 223. See also Boosey t. Fairlie, 7 Ch. D. 301, 809. In the former case, Kelly, C. B., said : — " But what is the pianoforte ar- rangement? It is an arrangement of the whole of the music of this opera for the pianoforte, a part of which is the ordinary pianoforte accompani- ment, the bass and the treble played ■with both hands, and which is inde- pendent of the melody. There may be, as it appears, the line of music for one voice, or two or three voices, as the case may be ; and there are sepa- rate and distinct lines for the accom- paniment for the pianoforte ; and, no doubt, here and there throughout this accompaniment, and by going line by line through the score of the original opera, there may be found the same notes ; but there are other parts of the accompaniment which are merely the pianoforte accompaniment, the notes forming which are nowhere found in the score at all. " The accompaniment for the piano- forte is a work of greater or less skill. In some cases, perhaps in many cases — it may be in this for aught I know — the operation of adaptation is little more than mechanical, and what any one acquainted with the science of music, any composer of experience, might have been able to do without difficulty ; but it may be, and often is, as in the case of the six operas of Mozart by Mazzinghi, a ^work — I would hardly use the term of great genius, but a work — of great merit and skill of that eminent poet and pianist, Mazzinghi. If such a work be published as the adaptation to the pianoforte by a composer other than the composer of the original opera, no doubt it is a. piracy of the opera, and the composer may maintain an action against the adapter or the publisher of the adaptation ; but whenever the copy- right in the original opera has expired, if after that, and for the first time, another composer composes another adaptation of that opera to the piano- forte, it is a new substantive work, in respect of which he is just as much en- titled to the benefit of the copyright in this country as the original composer of the opera ; and if any one had, by an adaptation pirated that arrange- ment, he would be liable to an action WHAT MAT BE COPYRIGHTED. 177 waltzes, &c., selected from an opera, is entitled to protection.^ So copyright has been held to vest in a song consisting of new words and a new accompaniment written to an old air.^ Engravings, Prints, and Cuts. Great Britain. — The 8 Geo. II. c. 13, provides that "every person who shall invent and design, engrave, etch, or work in mezzotinto or chiaro-oscuro, or from his own works and inven- tions shall cause to be designed and engraved, etched, or worked in mezzotinto or chiaro-oscuro, any historical or other print or prints, shall have the sole riglit and liberty of printing and re- printing the same" for fourteen years from first publication. This statute gives copyright only when the subject or design of the engraving is original with the engraver. It does not pro- tect engravings made from paintings, sculpture, and other works of art of which the engraver is not the author. This defect was remedied by the 7 Geo. III. c. 38, which extends protec- tion to " any print taken from any picture, drawing, model, or sculpture, either ancient or modern ... in like manner' as if such print had been graved or drawn from the original design of sucli graver, etcher, or draftsman." It also enlarged the duration of copyright from fourteen to twenty-eight years.. Penalties and forfeitures for piracy are imposed by these acts. An action for damages is given by 17 Geo. III. c. 57.. The provisions of the acts above cited were extended to Ireland by the 6 & 7 Will. IV. c. 59 ; and by the 15 & 16 Vict. c. 12, s. 14, they are made to include " prints taken by lithography, or any other mechanical process by which prints or impres- sions of drawings or designs are capable of being multiplied indefinitely." for that piracy. I consider that an separate work, and is not one and the infallible test to show the difference same with the original opera." Law between the one work and the other; Rep. 3 Q. B. 229. between the original opera and the ar- i Atwill v. Ferrett, 2 Blatchf. 39 ; rangement of it for the pianoforte. It see also Jollie v. Jaques, 1 Id. 618, is perfectly clear, therefore, that in where the decision concerning an in- point of fact — for it is rather a matter junction was suspended on the ground of fact than any thing else — the adap- of doubt whether the arrangement was tation to the pianoforte, or the arrange- any thing more than a copy of the raent for the pianoforte, of an opera original. already published, is itself a new and 2 Leader v. Purday, 7 C. B. 4. 12 178 THE LAW OP COPYRIGHT AND PLAYRIGHT. Engravings, illustrations, &c., published in a book, are treated as part of the book, and are protected by the copyright in the book.^ United States. — In this country, engravings and prints have been protected by statute since 1802. By the existing law, copyright is extended to the inventor, designer, or owner of any engraving, cut, or print.^ No distinction is prescribed between works of this kind and books, except in relation to penalties and forfeitures in cases of piracy. By the act of June 18, 1874, it is provided that the words engraving, cut, and print " shall be applied only to pictorial illustrations, or works connected with the fine arts, and no prints or labels designed to be used for any other articles of manufacture shall be entei-ed under the copyright law, but may be registered in the Patent Office." » In a recent case, playing cards were protected as prints.* In another case, a diagram with directions for cutting garments was held to be a book ; but the court expressed the opinion that it might be a print or chart within the meaning of the law.* A mere label is not entitled to protection under the copyright law ; ^ nor is the engraved design of a billiard table, having no other value than that of a mere advertisement.^ Paintings, Photographs, Chromos, Sculpture, &c. Great Britain. — r Before 1862, there was no statutory copyright in paintings, drawings, and photographs ; and, though an en- graving of a painting was protected by statute, the copyright in the former was not violated by copying from the latter.* The exclusive right of copying paintings, or any other work of art, was, however, recognized by the common law.^ 1 Bogue V. Houlston, 5 De G. & Sra. * Richardson v. Miller, 3 L. & Eq. 267 ; Bradbury v. Hotten, Law Rep. Reporter, 614. 8 Exch. 1 ; Grace o. Newman, Law 5 Drury v. Ewing, 1 Bond, 540, 548. Rep. 19 Eq. 623. See also Wilkins v. « Scoville v. Toland, 6 West. Law Aikin, 17 Ves. 422 ; Barfleld v.. Nichol- Jour. 84 ; Coffeen v. Brunton, 4 Me- son, 2 Sim. & St. 1 ; Cobbett v. Wood- Lean, 516. ward. Law Rep. 14 Eq. 407. l CoUender o. Griffiths, 11 Blatchf. 2 U. S. Rev. St. B. 4952. 212. See ante, p. 168. 8 18 U. S. St. at L. 78. See Marsh 8 X)q Berenger v. Wheble, 2 Stark. V. Warren, 9 Chic. Leg. News, 395; 548. B. c. 4 Am. L. T. n. s. 126. ' Turner v. Robinson, 10 Ir. Ch. WHAT MAY BE COPYRIGHTED. 179 The 25 & 26 Vict. c. 68, passed in 1862, now gives to the author of every original painting, drawing, or photograph, and his assigns, " the sole and exclusive right of copying, engrav- ing, reproducing, and multiplying such painting or drawing, and the design thereof, or such photograph, and the negative thereof, by any means and of any size, for the term of the natural life of such author, and seven years after his death." i A photograph of an engraving is an original production within the meaning of this statute.^ The provisions of the International Copyriglit Act, 7 & 8 Vict. c. 12, are extended to paintings, drawings, and photo- graphs, by section 12 of 25 & 26 Vict. c. 68. The first statute for the protection of sculpture was 38 Geo. III. c. 71, passed in 1798 ; but this was so ineffective that, in the language of Lord EUenborough, it " seems to have been framed with a view to defeat its own object." ^ It was amended by 54 Geo. III. c. 56, passed in 1814, and was repealed by 24 & 25 Vict. c. 101. The 54 Geo. III. c. 56, secures the " sole right and prop- erty " therein to " every person or persons who shall make or cause to be made any new and original sculpture, or model, or copy, or cast of the human figure pr human figures, or of any bust or busts, or of any part or parts of the human figure, clothed in drapery or otherwise, or of any animal or animals, or of any part or parts of any animal combined with the human figure or otherwise, or of any subject being matter of inven- tion in sculpture, or of any alto or basso-relievo representing any of tlie matters or things hereinbefore mehtioned, or any cast from nature of the human figure, or of any part or parts of the human figure, or of any cast from nature of any animal, or of any partor parts of any animal, or of any such subject containing or representing any of the matters and. things here- inbefore mentioned, whether separated or combined." 121, 510 ; Prince Albert v. Strange, 2 s Gahagan v. Cooper, 3 Camp. 111. De G. & Sm. 652, on ap. 1 Mac. & G. " These artists," said Lord Ellen- 25. borough, " must again apply to Parlia- 1 6. 1. ment for protection ; and they had ^ Graves's Case, Law Eep. 4 Q. B. better not model the new act themselves 715. as they seem to have done the former." 180 THE LAW OF COPYRIGHT AND PLAYRIGHT. The term of protection is fourteen years,^ with provision for an additional term of the same length.^ United States. — A photograph was held not to be a print, cut, or engraving, under section 1 of the act of 1831;^ and there was no statutory protection for photographs until 1865, when a law was passed for that purpose.* Photographs and negatives thereof are now included with books and other arti- cles for which copyright is provided by section 4952 of the Eevis,ed Statutes. Copyright in paintings, drawings, chromos, statues, statuary, and models or designs intended to be perfected as works of the fine arts, is secured by the same statute which provides protec- tion for books and other works. The articles above enumer- ated were first brought within the provisions of the copyright law by the act of 1870. They are subject to the same gen- eral rules and principles which govern the copyright in other works.^ Designs. — In England, copyright is granted by statute for ornamental designs applied to articles of manufacture, &c., such as paper hangings, carpets, calicoes, silks, laces, pottery, glass, &c. ; " and also designs having reference to some pur- pose of utility for " the shape or configuration " of articles of manufacture.'^ The copyright in productions of this kind will not be treated in this work. 1 B. 1. 8 5 & 6 Vict. c. 100. 2 B. 2. As to registration and penal- ' 6 & 7 Viot. o. 65. The following ties, see 13 & 14 Vict, c. 104, ss. 6, 7. statutes also relate to copyright in 8 Wood 0. Abbott, 5 Blatchf. 325 ; designs : 13 & 14 Vict. c. 104 ; iil & 22 Bee also Rossiter v. Hall, Ibid. 362. Vict. c. 70 ; 24 & 25 Vict. c. 73 ; 38 & * 13 U. S. St. at L. 540. 39 Vict. c. 93. 6 But see post, p. 231, as to the rights of foreign artists. QUALITIKS ESSENTIAL TO COPYRIGHT. 181 CHAPTER III. QUALITIES ESSENTIAL TO COPYRIGHT. Neither tlie Englisli nor the American statutes have pre- scribed any conditions or requirements as to the character of a literary production entitled to copyright. The only statutory condition relating to the nature or quality of the composition is that implied in the avowed purpose of the legislature, which is tlifi encouragement of learning and the increase of useful knowledge. What qualities are essential to bring a literary work within the general scope and spirit of the law is a question which has been left to judicial determination. It is clearly immaterial in what language, native or foreign, a composition may be printed, or in what style or form of publication it appears. The chief inquiries which have fallen within the cognizance of the courts in determining the qualities essential to copyright are : 1, whether the production is innocent, or is injurious to the public peace or morals ; 2, whether it is origi- nal, or a mere copy ; 3, whether, in ainount and character, it is a material contribution to useful knowledge, or is too insig- nificant and valueless to be worthy of protection as a literary composition. Seditious and Libellous Publications. In determining whether a work is entitled to copyright, the courts take cognizance of the question whether it tends to disturb the public peace, corrupt morals, or libel individuals. A published work, to be entitled to protection, must in the eyes of the law be innocent. In refusing protection to publica- tions having an injurious moral or political tendency, the court does not act as the guardian of public morals, or as a censor of the press. On the contrary, in declining to interfere with the piratical publication and sale of an obnoxious book, it removes an obstacle to its wider circulation. For this evil 182 THE LAW OP COPYRIGHT AND PLAYRIGHT. there are other remedies. In cases relating to literary prop- erty, only the civil interests of the parties and their rights of property are considered. The publication of a seditious, blas- phemous, immoral, or libellous production is a violation of law, and therefore such a work is not entitled to protection as property. The court simply refuses to grant remedies to which the author is not entitled by reason of the objectionable nature of his property. On the same principle, there can be no copy- right in a publication whose effect'is to encourage the commis- sion of crime ; ^ or one' whose sale, by reason of fraudulent representations as to its character or authorship, is a case of crimen falsi, or an attempt to obtain money under false pre- tences.^ It is maintained elsewhere, that the rule that pro- ductions not innocent are entitled to no protection as property rightly applies only to published works.^ A published work whose seditious or libellous tendency is justly dangerous to the public peace, or exposes the gov- ernment to peril or serious embarrassment, is clearly not entitled to the protection of the copyright laws. This doc- trine was recognized by Lord EUenborough, in 1803, in an action for the piracy of a song called Abraham Newland. The defence claimed that, while the song professed to be a panegyric on money, it was " a gross and nefarious libel upon the solemn administration of British justice." Lord Ellen- borough said : " If the composition appeared, on the face of it, to be a libel so gross as to affect the public morals, I should advise the jury to give no damages. I know the Court of Chancery on such an occasion would grant no injunction. But I think the present case is not to be considered one of that kind."* In Wolcott v. Walker, wherein the plaintiff sought 1 Martinetti v. Maguire, 1 Deady, At tte sigbt of friend Abraliam Newland! 223. See post, p. 186, note 2. '^^' Abraham Newland ! Magical Abraham ^ Wright V Tallis, 1 C. B. 893. See ThougTlTulce. 'tis known, also Stannard i,. Harrison, 24 L. T. Can see througli a millstone, N. 8. 670. She can't see through Abraham Newland! " 3 See ante, pp. 112-114. * Hime V. Dale, 2 Camp. 27, note b. J^'>e 'irgument used by Mr. Garrow," The most "nefarious" part of the "^"^ Lawreni^e, J "on this fugitive song was the following stanza : - P'^f "'' ^%"S %,''^^' ^°"''' "^ f°'"b1y ,,..,., apply to The Beggar's Opera where " The world IS mchned, ^i,„ i„„„„., j u ■ „ TO think Justice blind; ".'^ language and allusions are suffi- Yet what of all that? ciently derogatory to the administra- She will blink like a bat tion of public justice." QUALITIES ESSENTIAL TO COPYRIGHT. 183 to restrain the defendant from publishing an edition of his works, in violation of an agreement which had been made by them, Lord Bldon refused to continue the temporary injunction which had been granted, until he should satisfy himself that the writings in controversy were not libellous. " It is not the business of this court," he said, " even upon the submission in the answer, to decree either an injunction, or an account of the profits of works of such a nature that the author can maintain no action at law for the invasion of that wliich he calls his property, but which the policy of the law will not permit him to consider his property." ^ See also Du Bost v. Beresford, 2 Camp. 511, where, in an action for the malicious destruction of a libellous picture on exhibition. Lord Ellen- borough said that the plaintiff was both civilly and criminally liable for having exhibited it ; and held that the jury in assessing the damages " must not consider this as a work of art, but must award the plaintiff merely the value of the canvas and paint which formed its component parts." In Clay V. Yates, 1 Hurl. & N. 73, it was held that a printer was not bound to con- tinue the printing of a book after he discovered that it contained libellous matter, and was entitled to recover for what had been printed before such dis- covery was made. See also Gale v. Leckie, 2 Stark. 107. 1 7 Ves. 1. No question concerning the character of the publication in con- troversy appears to have been raised at the bar, and the Chancellor admitted that he was " in total ignorance of the nature of this work." Lord Eldon's course in this case has been severely criticised by Lord Campbell : — " But the decisions of Lord Eldon which I most object to, are those by which he erected iiimself into a censor of the press, and gave himself the power to protect or to extinguish all literary property at hie pleasure. From the time when copyright was vested in authors by the statute of Queen Anne, till Lord Eldon received the Great Seal, equity judges had guarded it from piracy by injunction; and without this remedy the right would be a mockery, as actions at law to recover damages from hawkers and pedlers, who may sell pirated editions of any work in city or country, would only add to the author's loss. The authorship and the piracy being estab- lished, the injunction had always gone as a matter of course, without any question being made respecting the nature of the publication ; for under Lord Cowper, Lord Macclesfield, Lord King, Lord Hardwicke, Lord Cam- den, Lord Thurlow, and Lord Lough- borough, it never had been imagined that the defendant could be permitted to allege, as a justification of his piracy, that he had been committing a crime by publishing sonietliing for which he was liable to be punished, as injurious to private character, or dangerous to religion, morality, or the good government of the State. Accord- ingly injunctions had been granted against the piracy of the Diinciad, of Swift's Miscellanies, of the Beg- gar's Opera, of the Life of George Anne Bellamy, and of other works con- taining passages which if strictly ex- amined might be considered very cen- surable — no one suggesting that these should be culled as a repast for the Lord Chancellor, or that he should be required to waste his valuable time in trying to find tliem out, — and all who thought upon the subject being con- vinced, that if the work pirated were 184 THE LAW OP COPYRIGHT AND PLAYRIGHT. To defeat copyright on the ground that the work is seditious or libellous on the public, it is not enough to show that the in any degree exceptionable, a benefit was conferred upon the community by restraining the circulation of it, instead of proclaiming to all the world that it might be published with impunity, in any form, and at any price. "But within a year after Lord Eldon's appointment as Chancellor, Dr. Wolcott, better known as Peter Pindar, having a dispute with his booksellers respecting the construction of an agreement for publishing two editions of his works, and these edi- tions being published, — as he con- tended, contrary to the agreement, — filed a bill, and prayed an injunction which was granted in the first instance, till answer. The defendants by their answer admitted that they had pub- lished in one of these editions some of the plaintiff's works contrary to the agreement, and as to that edition there- fore they submitted. With respect to the other edition they insisted that they were justified by the agreement. The pleading at the bar being finished, the conduct of the Lord Chancellor appears to me, I confess, to be most extraordinary and unaccountable. No charge is made by answer or affidavit, or viva voce statement, that the work in question contained any thing excep- tionable, and the judge had no judicial knowledge of its contents, nor was he (as far as I can discover) judicially called upon to form any opinion upon its merits, for it was at any rate to be pre- sumed to be innocent. But he, privately knowing that Timothy Wolcott was Peter Pindar, and that Peter Pindar had written some ribald verses respecting his ' royal master,' — upon the author- ity of a nisi prins dictum of Lord Chief Justice Eyre at the trial of Dr. Priest- ley against the hundred for the value of his furniture and books burnt in the Birmingham riots, — ' that if any of the books were seditious, tlie plaintifE was not entitled to recover for them,' — of his own mere motion refused to decree an injunction or an account of profits, even with respect to that edi- tion as to which there was a submis- sion in the answer, saying, — ' It is the duty of the court to know whether an action at law would lie ; for if not, the court ought not to give an account of unhallowed profits of libellous publica- tions. At present, I am in total igno- rance of the nature of this work, and whether the plaintiff' can have a prop- erty in it or not.' After showing how with respect to the disputed edition there must be an action, he continued : ' But even as to the other edition, be- fore I uphold any injunction, I will see these publications and determine upon the nature of them ; whether there is question enough to send to law as to the property in those copies ; for if not, I will not act upon the submission in the answer. If upon inspection the work appears innocent, I will act upon that submission ; if criminal, I will not act at all ; and if doubtful, I will send that question to law.' As to the dis- puted edition, the injunction was very properly dissolved ; but as to the other edition, contrary in my opinion to all propriety, an order was made to dis- solve the injunction, unless in a week the books should be brought into court for the perusal of the Lord Chan- cellor. " Such is the foundation of the Eldonian doctrine, that the judge be- fore granting an injunction against lit- erary piracy is himself ex mero motu to read through the whole of the work, that he may see whether it contains any thing which in his opinion may possibly be construed into a libel — a doctrine which must apply equally to an encyclopaedia of fifty, folios as to a collection of fugitive poems in one duodecimo. I know not whether there may be a reference to the master to report on the character of the work, but one master may be wholly insuffi- cient for the undertaking; and at any rate in analogy to the proceeding upon a question of title he must be allowed to avail himself of the opinions of divines, philosophers, and politicians, QUALITIES ESSENTIAL TO COPYRIGHT. 185 facts set forth or the opinions expressed are merely objection- able or obnoxious, that public measures or men in their public capacity are censured, satirized, or ridiculed. The publication must be such as justly to cause or to threaten a breach of the peace, or to interfere with the functions of the government, or in some way to work positive harm to the Commonwealth. Then is shown an injury to society which comes within the cognizance of the law. In the United States, the largest freedom of speech and of the press consistent with the public welfare is allowed and guaranteed. Until that privilege is justly forfeited by its abuse, no one is h^d amenable to the laws for the punishment of sedition and libel on the public. The same enlightened liberality should govern in determining rights of literary property. There is no reported case in which has been expressly con- sidered the question of copyright in a publication which is a libel on an individual, but not directly on the public. But, in law, a libellous attack on a citizen is looked upon as an offence against society, and one which, in the absence of legal remedies for redress, would lead to a breach of the peace. On this theory, and on the ground that, to publish a libel is a violation of the law, the courts may refuse protection to a publication in which an individual, though not the public expressly, is grossly libelled. Immoral Productions. The protection of the law will not be extended to a pub- lication which is obscene, or has a positive immoral ten- dency. In Stockdale v. Onwhyn,'the plaintiff claimed damages for the unauthorized publication of the Memoirs of Harriette and exceptions may be taken to his ney-General, so that if it were libellous report to be argued before the court, it would have been his duty to prose- More astounding it is that in this case cute it. For my own part I cannot the Lord Chancellor, professing ' total help suspecting that he was well ao- ignorance of the nature of the work/ quainted with its contents, — that not- should, without any impeachment of withstanding his propensity to prose- it, have imposed upon himself the cute libels, he had been afraid to bring necessity of reading the whole of it the author before a jury, and that he before granting the injunction. The now thought it a more convenieiit bill and answer showed it to have been course to unite in his own person the printed and published at least six years functions of prosecutor and of judge." — during the greater part of which he 10 Lives of the Chancellors (5th Eng- had himself filled the office of Attor- Ush ed.), 254. 186 THE LAW OP COPYRIGHT AND PLATRIGHT, Wilson, which professed to be a history of the amours of a courtesan, and contained " in some parts matter higlily indecent, and in others matter of a slanderous nature upon persons named in the work." It was held that the publication of such a book was an offence against the law, and therefore the plaintiff could have no property in it.^ The same doctrine was applied in a recent American case, wherein the court decided that the dramatic spectacle called the Black Crook was not entitled to protection, on the ground that it " only attracts attention as it panders to a prurient curiosity or an obscene imagination by very questionable exhibitions and attitudes of the female per- son." 2 Where it was contended that cards for playing were not entitled to protection, because they are often used for unlawful purposes, Mr. Justice Shepley said : " Courts of justice will not lend their aid to protect the authors of immoral 1 5 Barn. & Cr. 173. "I am cer- tain," said Chief Justice Abbott, " no lawyer can say that the sale of each copy of this work is not an offence against the law. How then can we hold that by the first publication of such n work, a right of action can be given against any person who afterwards publishes it ? It is said that there is no decision of a court of law against the plaintiff's claim. But upon the plainest principles of the common law, founded as it is, where there are no authorities, upon common sense and justice, this action cannot be main- tained. It would be a disgrace to the common law could a doubt be enter- tained upon the subject ; but I think that no doubt can be entertained, and I want no authority for pronouncing such a judicial opinion." In I'oplett V. Stockdale, Ryan & M. 337, it was held that the printer was not entitled to recover money due from tlie publisher for printing this book. In a case before Vice- Chancellor Leach, in 1823, an injunc- tion which had been obtained to restrain the publication of a pirated edition of a part of Don Juan was dis- solved ; but the defendant was ordered to keep an account. Jac. 474, note. In Fores v. Johnes, 4 Esp. 97, it was held that the defendant who had given an order to the plaintiff for " all the caricature prints that had ever been published " was not bound to receive those which were immoral or obscene. 2 Martinetti v. Magulre, 1 Deady, 216. " Congress," said Deady, J., " is not empowered by the Constitution to pass laws for the protection or benefit of authors and .inventors, except as a means of promoting the progress of 'science and useful arts.' For this reason an invention expressly designed to facilitate the commission of crime, as murder, burglary, forgery or coun- terfeiting, however novel or ingenious, could not be patented. So with a dramatic composition which is grossly indecent, and calculated to corrupt the morals of the people. The exhibition of such a drama neitlier promotes the progress of science or useful arts, but the contrary. The Constitution does not authorize the protection of such productions, and it is not to be pre- sumed that Congress intended to go beyond its power in this respect to secure their authors and inventors the exclusive right to the use of them." Ibid. 223. See also Keene v. Kimball, 16 Gray (82 Mass.), 548; Shook v. Daly, 49 How. Pr. 366. QUALITIES ESSENTIAL TO COPYRIGHT. 187 works. But, where there is nothing immoral or improper in the prints themselves, the fact that they may be used by per- sons to violate the laws against gambling does not of itself deprive them of the protection of the law. To do this, it must appear either that there is something immoral, pernicious, or indecent in the things per se, or that they are incapable of any use except in connection with some illegal or immoral act. It is not contended that the playing cards of the complainant are subject to either of these imputations." ^ Whether the work in controversy is positively indecent, or has an objectionable, immoral tendency, will be in some cases a question on which well-meaning persons may honestly differ. But, when the fact is found that the publication ,in this respect is obnoxious to society, it is not a proper subject of copyright. Blasphemous Publications. Great Britain. — Blasphemous writings cannot be the subject of copyright, because blasphemy is a crime against society, punishable by law. But what is blasphemy, and what liberty an author may exercise in treating religious subjects, without forfeiting the right to protection for his literary property, are questions not decisively or satisfactorily answered by the decisions. The doctrine that no work injurious to re- ligion is entitled to protection was advanced by Lord Eldon, and rests on two equity decisions pronounced by him in 1822. Wlien application was made to restrain the publication of a pirated edition of Byron's Cain, the Chancellor doubted whether the poem was not " intended to vilify and bring into discredit that portion of Scripture history to which it relates," and refused the injunction until it should be shown that an action at law could be maintained.^ On similar grounds, the 1 Richardson v. Miller, 3 L. & Eq. law, the party could not recover any Eeporter, 614. damages in respect of =-, piracy of it. 2 Murray v. Benbow, 6 Petersd. This court has no criminal jurisdic- Abr. 558. " Now this publication," tion ; it cannot look on any thing as an said Lord Eldon, " if it is one intended offence ; but in those cases it only ad- to vilify and bring into discredit that ministers justice for the protection of portion of Scripture history to which it the civil rights of those who possess relates, is a publication, with reference them, in consequence of being able to. to which, if the principles on which maintain an action. You have alluded that case at Warwick (Dr. Priestley's to Milton's immortal work ; it did hap- ' case) was decided, be just principles of pen in the course of last long vacation. 188 THE LAW OF COPYRIGHT AND PLATRIGHT. same judge refused to continue an injunction against the piratical publication of Sir William Lawrence's Lectures on Pliysiology, Zoology, and the Natural History of Man. These lectures had been delivered by that eminent surgeon at the College of Surgeons, in London, and by him they were after- ward published. On a motion to dissolve the ex parte injunc- tion which had been granted against the publication of a pirated edition, the defendant pleaded " that the nature and amongst the solicitm juctmda oUivia vitcB, I read that work from beginning to end ; it is therefore quite fresh in my memory, and it appears to me that the great object of its autlior was to promote the cause of Christianity ; there are, undoubtedly, a great many passages in it, of which, if that were not its object, it would be very im- proper by law to vindicate the publica- tion; but, taking it altogether, it is clear that the object and effect were not to bring into disrepute, but to pro- mote, the reverence of our religion. Now, the real question is, looking at the work before me, its preface, the poem, its manner of treating the sub- ject, particularly with reference to the fall and the atonement ; whether its intent be innocent as that of the other with which you have compared it ; or whether it be to traduce and bring into discredit that part of eacred history. This question I have no right to try, because it has been settled, after great difference of opinion among the learned, that it is for a jury to determine that point ; and where, therefore, a reasona- ble doubt is entertained as to the char- acter of the work, (and it is impossible for me to say I have not a doubt, I hope it is a reasonable one), another course must be taken for determining what is its true nature and character." In criticising Lord Eldon's decision in this case, Lord Campbell said : — "In this 'mystery,' which Lord Jeffrey says, 'abounds in beautiful passages, and shows more powei- than any of the author's dramatic composi- tions,' there are sentiments very much to be condemned ; but so there are in the speeches of Paradise Lost, and it must have been a strange occupation for a judge wlio for many years had meddled with nothing more imagina- tive than an act of Parliament, to de- termine in what sense the speculations of Adam, Eve, Cain, and Lucifer are to be understood, and whetlier the tendency of the whole poem be favor- able or injurious to religion." 10 Lives of the Chancellors (6th English ed.), 257. The scrupulous doubts of Lord El- don concerning the religious tendency of Byron's work seem not to have been shared by Sir Walter Scott, who, in accepting the dedication of Cain, wrote, in 1821, to the publisher, Mr. John Murray : " I accept with feelings of great obligation the flattering pro- posal of Lord Byron to prefix my name to the very grand and tremendous drama of Cain. I may be partial to it, and you will allow I have cause ; but I do not know that his muse has ever taken so lofty a flight amid her former soarings. He has certainly matched Milton on his own ground. Some part of the language is bold, and may shock one class of readers, whose tone will be adopted by others out of affecta- tion or envy. But then they must con- demn the Paradise Lost, if they have a mind to be consistent. The fiend-like reasoning and bold blasphemy of the fiend and of his pupil lead exactly to the point which was to be expected, the commission of the first murder and the ruin and despair of the per- petrator." 6 Lockhart's Life of Sir Walter Scott (10 vols., Edinburgh), 424. QUALITIES ESSENTIAL TO COPYRIGHT. 189 general tendency of the work in question were such that it could not be the subject of copyright," and referred to passages in it which were claimed to be " hostile to natural and revealed religion, and impugned the doctrines of the immateriality and immortality of the soul." For the plaintiff, it was claimed that the passages did not bear this construction. In passing judgment, Lord Eldon said: "Looking at the general tenor of the work, and at many particulars of it, recollecting that the immortality of tlie soul is one of the doctrines of the Scriptures, considering that the law does not give protection to those who contradict the Scriptures, and entertaining a doubt, I think a rational doubt, whether this book does not violate that law, I cannot continue the injunction." ^ If the doctrine propounded by Lord Eldon, more than half a century ago, shall be followed by the English courts of to- day, protection will be refused to all publications in which are denied the fundamental principles of the Bible : as the existence of the Deity, the Divinity of Christ, the inspiration of the Scriptures, the immortality of the soul, and even less impor- tant truths. The question, however, has not since been adjudi- cated in any reported copyright case. Whether the court, when again called upon to declare the law, will adopt the narrow theories of Lord Eldon, or will proclaim a better and more 1 Lawrence v. Smith, Jac. 471. grounds of that doubt ; it might per- "I take it for granted," said the haps prejudice the trial if I did." Lord Chancellor, " that when the mo- The doctrine here applied by Lord tion for the injunction was made, it Eldon was foreshadowed in 1720 by was opened as quite of course ; nothing Lord Chancellor Macclesfield, who in probably was said as to the general granting an injunction to restrain the nature of the work, or of any part of publication of a piratical English trans- it; for we must look not only at the lation of Burnett's Archceologia Phil- general tenor, but at the different osopliica, on the ground that while tlie parts; and the question is to be de- original "contained strange notions in- cided, not merely by seeing what is tended by the author to be concealed said of materialism, of the immortality from the vulgar in the Latin language, of the soul, and of the Scriptures, but in which language it could not do by looking at the different parts and much hurt," the dissemination of its inquiring whether there be any which doctrines in English would be harmful deny or which appear to deny the to religion, said that he " looked upon truth of Scripture, or which raise a it that this court had a superintendency fair question for a court of law to de- over all books, and might in a summary termine whether they do or do not way restrain the printing or publishing deny it. . . . But if I feel a rational any that contained reflections on relig- doubt whether an action would lie, it ion or morality." Burnett v. Chet- will not be necessary to go into the wood, 2 Meriv. 441. 190 THE LAW OF COPYKIGHT AND PLATEIGHT. liberal doctrine, and, if so, what adyance toward a wise toler- ance will be made, is a matter of conjecture. There is no good reason why even in England, where religion is still jeal- ously guarded by intolerant acts, which have too long remained in force, the protection of the law should be denied to publica- tions in which the accepted truths of Christianity are doubted, or denied, with moderation and sincerity, and without injury to public morals. But it is not probable that the English courts will yet go so far as to protect a work in which is expressly denied, however temperately or conscientiously, the fundamental principles of religion. The laws of England relating to blasphemy and other offences against religion are stringent. A statute of the seventeenth century still subjects to punishment "any person or persons having been educated in or at any time having made profession of the Christian religion within this realm " who " shal assert or maintain there are more gods than one or shal deny the Christian religion to be true or the Holy Scriptures of the Old and New Testament to be of divine autliority." ^ Although this statute, as far at least as the enforcement of its penalties is concerned, is practically obsolete, its spirit is to be found in the still prevalent common-law doctrines which have been affirmed by the courts. In the cases that have arisen, the wrong-doer has been held to have made wan- ton and impious attacks on religion or Christianity, and against these acts the law has been construed with vigor. Whether the same or a different rule is applicable in cases of temperate expression of honest religious disbelief has not been directly adjudicated or considered by the courts. Nor can it be deter- mined with certainty what freedom, consistent with the deci- sions heretofore rendered, a conscientious disbeliever may lawfully exercise in soberly promulgating views hostile to the accepted teachings of the Bible. In theory, malice and a wanton manner are essential to blasphemy. But there is little in the reported cases to show that impious motives and man- ner will not be presumed as a matter of course, where views 1 9 Will. III. (f. 35, passed in 1698, given as 9 & 10 Will. III. c. 32, in Eufl- 2 Bevised Statutes, 72. This act is head's Statutes at Large. QUALITIES ESSENTIAL TO COPYRIGHT. 191 antagonistic to religion are promulgated. In other words, if the stringent doctrines of the early decisions shall be still followed, it will probably be a rare case in which the rigor of the law against a disbeliever will be overcome by the sincerity with which his convictions are held, or the moderation with which they are expressed. But there is little doubt that in penal actions for blasphemy more liberal views will now govern the courts, and that the presence or the absence of express malice and a wanton manner will be a controlling inquiry in determining the law.^ ' The leading English decisions re- lating to blasphemy may be found in Starkie's Law of Slander and Libel (4th ed.,by Folkard; Wood's Am. ed.), and The Law relating to Works of Litera- ture and Art, by Shortt (London, 1871). Mr. Starkie's liberal statement of the law, however desirable and sound in theory it may be, is hardly sustained by the decisions. He says : — " There are no questions of more intense and awful interest than those which concern the relations between the Creator and the beings of his crea- tion ; and although, as a matter of discretion and prudence, it might be better to leave the discussion of such matters to those who, from their edu- cation and habits, are most likely to form correct conclusions, yet it cannot be doubted that any man has a right, not merely to judge for himself on such subjects, but also legally speak- ing to publish his opinions for the benefit of others. When learned and acute men enter upon these discus- sions with such laudable motives, their very controversies, even where one of the antagonists must necessarily be mistaken, so far from producing mis- chief, must in general tend to the advancement of truth, and the estab- lishment of religion on the firmest and most stable foundations. The very absurdity and folly of an ignorant man, who professes to teach and en. lighten the rest of mankind, are usually so gross as to render his errors harm- less ; but, be this as it may, the law interferes not with Ills blimders so long as they are honest ones, justly con- sidering, that society are more than compensated for the partial and lim- ited mischiefs which may arise from the mistaken endeavors of honest igno- rance, by the splendid advantages which result to religion and to truth from the exertions of free and unfet- tered minds. It is the mischievous abuse of this state of intellectual lib- erty which calls for penal censure. The law visits not the honest errors, but the malice of mankind. A wilful intention to pervert, insult, and mis- lead others, by means of licentious and contumelious abuse applied to sacred subjects, or by wilful misrepresenta- tions or artful sophistry, calculated to mislead the ignorant and unwary, is the criterion and test of guilt. A malicious and mischievous intention, or what is equivalent to such an inten- tion, in law, as well as morals, — a state of apathy and indifierence to the interests of society, — is the broad boundary between right and wrong. If it can be collected from the circum- stances of the publication, from a, dis- play of offensive levity, from contume- lious and abusive expressions applied to sacred persons or subjects, that the design of the author was to occasion that mischief to which the matter which he publishes immediately tends, to destroy or even to weaken men's sense of religious or moral obligations, to insult those who believe by casting contumelious abuse and ridicule upon their doctrines, or to bring the estab- lished religion and form of worship 192 THE LAW OF COPYRIGHT AND PLAYRIGHT. But the same liberality, however desirable, can hardly be expected in the judicial treatment of civil questions. As re- cently as 1867, it was held by a court of law in a civil case to be unlawful to deliver lectures on such subjects as " The Char- acter and Teachings of Christ ; the former defective, tlie latter misleading: " and "The Bible shown to be no more inspired than any other book ; with a refutation of modern theories thereon." The plaintiff had contracted for the use of a public hall in Liverpool in which to deliver lectures, and afterward advertised the subjects, when the defendant refused to permit his hall to be used for such purposes, and an action for breach of contract followed. For the plaintiff, it was contended that " the test of blasphemy lies rather in the manner than the matter of what is said ; and the current opinion of modern times has been, that, to support a prosecution for blasphemy, there must be a scurrilous and indecent attack upon commonly received opinions, or a maintenance of views flagrantly opposed to ordinary morality." It does not appear that the judges expressed any opinion on the vital question here raised, except that Sir George Bramwell remarked that, whatever might be the law in penal actions for blasphemy, a more stringent rule should be applied in civil cases. The court found that the contract was for an unlawful purpose, and held that it could not be enforced.^ into disgrace and contempt, the oflfence force, hardly warrants eyen this." Law against society is complete." Folkard's of Literature and Art, pp. 305, 307. Starkie, p. 699; Wood's ed. p. 771. The question under consideration was Mr. Sliortt justly notes that the law put directly to Lord Chief Justice Ab- is here stated " with a degree of liber- bott in The King «. Waddington, 1 Barn, ality which, however desirable it may & Cr. 26, but was not answered. The be in itself, the decided eases seem defendant was on trial for having said hardly to warrant." "It is a matter that" Jesus Clirist was an impostor, and of some doubt," he says, "whether a a murderer in principle." One of the criminal prosecution could, with the jurors asked whether a work which tolerant views now prevailing, be sue- denied the divinity of the Saviour was cessfuUy maintained for the bona fide libellous. But the Chief Justice eva- publication of opinions sincerely and sively replied : " A work speaking of conscientiously entertained, and tem- Jesus Christ in the language used perately expressed, though hostile to in the publication in question was a the doctrines of Christianity. The ac- libel." tual decisions on the subject do not ' Cowan v. Milhourn, Law Rep. 2 warrant a more confident statement ; Exch. 230. and the language of the statute 9 & "It would be a violation of duty," 10 Will. III. I.-. 32, which is still in said Kelly, C. B., " to allow the ques- QUALITIES ESSENTIAL TO COPYRIGHT. 193 To apply this illiberal doctrine in determining the validity of copyright in a book is to affirm the Eldonian theory. To adopt that unsound theory now, is to annihilate the literary property in not a few of the works which are to make the Victorian age of intellectual achievements as glorious as the Elizabethan.^ United States. — In this country there is no reported case in which the question of copyright in irreligious books has been considered. But the large freedom of inquiry and dis- cussion allowed in religious matters is shown by the construc- tion of the law relating to blasphemy. This law punishes scurrilous and impious attacks on the Christian religion, but does not prohibit the dissemination of any opinions or beliefs, however extreme, provided they are conscientiously entertained, and promulgated with propriety. The rule has been expressly declared, that impious purposes and a wanton manner are essential to complete the offence ; and that, in the absence of these, not even a denial of the existence of the Deity will amount to blasphemy .^ In the language of Chief Justice Shaw, tion raised to remain in any doubt. That question is, whether one who has contracted to let rooms for a purpose stated in general terms, and who after- wards discovers that they are to be used for the delivery of lectures in sup- port of a proposition which states, with respect to our Saviour and His teach- ing, that the first is defective and the second misleading, is nevertheless bound to permit his rooms to be used for that purpose in pursuance of that general contract. There is abundant authority for saying that Christianity is part and parcel of the law of the land; and that, therefore, to support and maintain publicly the proposition I have above mentioned is a violation of the first principles of the law, and cannot be done without blasphemy. I therefore do not hesitate to say that the defendant was not only entitled, but was called on and bound by the law, to refuse his sanction to this use of his rooms. It is contended that this was not the real motive which actuated the defendant, and that the evidence showed another and different motive, and that this reason was put forward only as an excuse. But I am of opin- ion tliat, whatever may have been the motive operating on his own mind, it was open to him by law, at the last moment before the rooms had been taken possession of, to refuse their use, and to justify that refusal on the ground that the plaintiff had in fact this purpose in view." 1 " When Dr. Johnson and I were left by ourselves," says Boswell, " I read to him my notes of the opinions of our judges upon the questions of literary property. He did not like them ; and said, ' They make me think of your judges not with that respect which I should wish to do.' To the argument of one of them, that there can be no property in blasphemy or nonsense, he answered, ' Then your rotten sheep are mine ! By that rule, when a man's house falls into decay, he must lose it.' " 4 Life of Johnson (Croker's ed., 10 vols., London), 45. ' People I). Ruggles, 8 Johns. Rep. 13 194 THE LAW OF COPYRIGHT AND PLAYEIGHT. the law " does not prohibit the fullest inquiry and the freest discussion, for all honest and fair purposes, one of which is the discovery of truth. It admits the freest inquiry when the real purpose is the discovery of truth, to whatever result such inquiries may lead. It does not prevent the simple and sin- cere avowal of a disbelief in the existence and attributes of a supreme intelligent Being, upon suitable and proper occa- sions." 1 " The free, equal, and undisturbed enjoyment of religious opinion," said Chief Justice Kent, " whatever it may be, and free and decent discussions on any religious subject, are granted and secured ; but to revile, with malicious and blasphemous contempt, the religion professed by almost the whole community, is an abuse of that right." ^ Mr. Justice Cooley has given expression to the following sound views on this subject : " But it does not follow because blasphemy is punishable as a crime, that therefore one is not at liberty to dispute and argue against the truth of the Christian religion, or of any accepted dogma. Its ' divine origin and truth ' are not so far admitted in the law as to preclude their being contro- verted. To forbid discussion on this subject, except by the various sects of believers, would be to abridge the liberty of speech and of the press in a point which, with many, would be regarded as most important of all. Blasphemy implies something more than a denial of any of the truths of religion, even of the highest and most vital. A bad motive must exist; there must be a wilful and malicious attempt to lessen men's reverence for the Deity, or for the accepted religion. But, out- side of such wilful and malicious attempt, there is a broad field for candid investigation and discussion, which is as much open to the Jew and the Mahometan as to the professors of the Christian faith." ^ The question now arises. Will or should the same liberal {TS. Y., 2d ed.) 225; Updegraph d. not only a denial of God, but it must Commonwealth, 11 Serg. & R. (Pa.) be done in a manner and in language 394 ; State v. Chandler, 2 Barring, justly offensive to others and attended (Del.) 563; Commonwealth v. Knee- by a corrupt and malicious intent; in land, 20 Pick. (37 Mass.) 206. other words it must be blasphemously 1 Commonwealth v. Kneeland.supra, done." Ibid. 239. 220. In the same case, Mr. Justice '■' People v. Buggies, 8 Johns. Rep. Morton said: "To complete this of- (N. Y. 2d ed.) 228. fence in my judgment, there must be ^ Const. Lim. 474. QUALITIES ESSENTIAL TO COPYRIGHT. 195 doctrines be applied in determining questions of literary prop- erty ? The law for the punishment of blasphemy is penal, and should therefore, it may be urged, be construed with less strin- gency than in civil cases. It may also be argued, that, because the law refuses to punish the authors of certain works injurious to religion, it does not follow that it will protect their property in such works ; that not to treat the publication of the objec- tionable writing as an offence is one thing, but to apply active remedies for its protection is another and a different matter. Whatever plausibility or force there may be in this argument, the distinction is not a valid one to defeat the copyright in a publication which is not blasphemous. Copyright confers prima facie title to property in a book. That property is entitled to protection, and the courts are bound to give the usual remedies, until a defect in the title, or a fault in the property, is shown. If the work appears on its face, or is proved to be blasphemous, libellous, or seditious, its publication is unlawful, because blas- phemy, libel, and sedition are offences against the law, and the author is thereby deprived of his remedies. If it be immoral, the right of protection is forfeited, because immorality is re- garded in every civilized community as an offence against society and harmful to the public welfare. But the temperate promulgation of sincere beliefs, hostile to the Christian religion, is not in this country a violation of any law, and cannot justly be regarded as injurious to morality or the public welfare. To defeat the right of property on the ground of the obnoxious character of the book, it must appear that some positive law is violated, or that the publication is danger- ous to the peace of the community, or harmful to public morals. There are those who believe that the dissemination of doctrines hostile to religion is an act of immorality, and dangerous to the welfare of society. So, also, not a few regard the exercise of a large freedom in political discussion as damaging to the gov- ernment and baneful to the commonwealth. But in this coun- try the expression of political opinions, however hostile to the government, comes within the cognizance of the law only when the public peace and order are thereby disturbed or threat- ened, or the government exposed to peril. A like rule is proper in the case of religious inquiry. Religion and morality, 196 THE LAW OP COPYRIGHT AND PLAYBIGHT. irreligion and immorality, are not synonymous words. Disbe- lief in the Bible or the religious doctrines which it teaches does not in itself amount to immorality ; and the proper ex- pression of that disbelief does not justly interfere with the public order or undermine public morals. Until this tendency can be shown in a literary composition, its religious character is not a proper subject of judicial inquiry. Unless the object be to ascertain whether the promulgation of views hostile to religion amounts to blasphemy, immorality, or a breach of the public peace, the law can rightly take no more cogni- zance of differences of opinion in religion than in politics or philosophy or political economy, or any other department of thought.^ In the absence, therefore, of any judicial or statutory restric- tions on this subject, there appears to be no good reason why valid copyright will not rest in a publication in which are denied any or all of the doctrines of the Bible ; provided the motives and the manner of the author be such as not to warrant the finding of a case of blasphemy, immorality, or breach of the peace. False Peetences as to Authorship. The principle that a work subversive of good order or morality is not a proper subject of copyright has been ex- 1 " If a court of equity," says Mr. physical truths. Thus, for example, Justice Story, " under color of its gen- a judge who should happen to believe, eral authority, is to enter upon all the that the immateriality of tlie soul, as moral, theological, ihetaphysical and well as its immortality, was a doctrine political inquiries, which in past times clearly revealed in the Scriptures (a have given rise to so many controver- point upon which very learned and sies, and in the future may well be pious minds have been greatly divided), supposed to provoke many heated dis- would deem any work ante-Cliristian, cussions, and if it is to decide dogmati- whicli should profess to deny that cally upon the character and bearing point, and would refuse an injunction of sucli discussions, and the rights of to protect it. So, a judge who should authors, growing out of tlieni ; it is be a Trinitarian might most conscien- obvious that an absolute power is con- tiously decide against granting an in- ferred over the subject of literary junction in favor of an author, enforc- property, which may sap the very ing Unitarian views; when another foundations on which it rests, and re- judge of opposite opinions miglit not tard, if not entirely suppress, the means hesitate to grant it." 2 Eq. Jur. of arriving at physical as well as meta- § 988. QUALITIES ESSENTIAL TO COPYRIGHT. 197 tended in England to protect the public against publicationa issued under false and fraudulent representations, intended injuriously to deceive the buyer. In an action for piracy of a book entitled Evening Devotions, from the German of C. 0. Sturm, it was shown that the work was not a translation from Sturm, but tliat it had been wilfully and falsely represented to be so, with a view of gaining profits by the unwarranted use of the name of that well-known writer. The falsehood expressed in the title was reiterated at length in the preface. The court characterized this proceeding on the part of the plaintiff as an attempt to obtain money under false pretences, and held that there could be no valid copyright in a work whose " sale produces such consequences." Chief Justice Tindal, who pronounced the decision, drew a distinction between this case and the common one of publications issued under an assumed name, with innocent intent by the author and without harm to the buyer. In the latter case, there is no serious design on the part of the author to deceive the buyer, or to acquire unlawful profits by false representation ; and it is a matter of indifference to the public whether the representation be real or fictitious. The copyright is not affected by such inno- cent representations. But, when the public is induced to buy a book in the false belief that it is the work of a well-known writer, who in fact has had no part in its pro- duction, the transaction is a fraud which will defeat the copyright.^ 1 Wright V. Tallis, 1 C. B. 893. fiction or romance, and even works of The Cliief Justice said : " The first science and instruction ; for, in all observation, therefore, that arises, is, these instances the misrepresentation that the present case is perfectly dis- is innocent and harmless. There is tinguiehable from those which have not found in any one of those cases, been referred to at the bar, of books any serious design on the part of the of amusement or instruction having author to deceive the purchaser, or to been published as translations, whilst make gain and profit from him by the they have been, in fact, original works ; false representation. The purchaser, for or having been published under an any thing that appears to the contrary, assumed, instead of a true name. Such would have purchased at the same was the instance given of The Castle price, if he had known that the name of Otranto [by Walpole], professing to of the author was an assumed, and not be translated from the Italian ; and a genuine name ; or had known that such the case of innumerable works the work was original, and not trans- published under assumed names — lated. And, indeed, in most of the voyages, travels, biography, works of cases that can be put, the statement is 198 THE LAW OF COPYRIGHT AND PLATEIGHT. Equity has restrained the publication of a book falsely repre- sented to be the production of a well-known author.^ Originality. The rule has been laid down and universally recognized, that originality is an essential attribute of copyright in a literary composition. Tlie words original and originality, as used in the law of copyright, have a most comprehensive meaning. Very few, if any, intellectual productions are original in the strict sense that the author is the creator of all that is ex- pressed in his composition. Knowingly or unknowingly, one writer borrows from another ; and in the most original works of modern genius are found thoughts and sentiments as old as language itself.^ The object of the law of copyright is to pro- not calculated in its nature to deceiTe any one, but is seen, upon the very first glance, to be plainly and mani- festly fictitious. In those cases, there- fore, it was perfectly indifferent' to the public, whether the representation was true or not ; and, in all probability, the book would hare obtained an equal sale, whether it was a translation or an original, whether the name of the author was assumed or genuine. " But, in the case before us, no one of these observations will apply. The facts stated in the plea import a serious design on the part of the plaintiff to impose on the credulity of each pur- chaser, by fixing upon the name of an author who once had a. real existence, and who possessed a large share of weight and estimation in the opinion of the public. The object of the plain- tiff is, not merely to conceal the name of the genuine author, and to publish opinions to the world under an inno- cent disguise ; but to deceive the pub- lic, by inducing them to believe, that the work is the original work .of the author whom he names, when he him- self knows it not to be so, to obtain from the purchaser a greater price than he would otherwise obtain. The transaction, therefore, ranges itself under the head of crimen falsi. The publisher seeks to obtain money under false pretences ; and as, not only the original act of publishing the work, but the sale of copies to each individual purchaser, falls within the reach of the same objection, we think the plaintiff cannot be considered as having a valid and subsisting copyright in the work, the sale of which produces such conse- quences, or that he is capable of main- taining an action in respect of its in- fringement. " The cases in which a copyright has been held not to subsist where the work is subversive of good order, mo- rality, or religion, do not, indeed, bear directly on the case before us; but they have this analogy with the pres- ent inquiry, that they prove that the rule which denies the existence of copyright in those cases is a rule es- tablished for the benefit and protection of the public. And we think the best protection that the law can afford to the public against such a fraud as that laid open by this plea, is, to make the practice of it unprofitable to its au- thor." Ibid. 906. 1 Byron v. Johnston, 2 Meriv. 29; Seeley v. Fisher, 11 Sim. 581; Harte V. DeWitt, 1 Cent. Law Jour. 360. See also Archbold v. Sweet, 5 Car. & P. 219, treated in Chap. VII. '^ " In truth, in literature, in science and in art," said Mr. Justice Story, QUALITIES ESSENTIAL TO COPYRIGHT. 199 mote learning and useful knowledge by protecting the fruits of intellectual activity. Almost every product of independent literary labor is a proper subject of copyright; and, to be entitled to protection, the author has simply to show something material and valuable produced by himself, and not copied from the protected matter of another.^ Work need not be wholly Original. — In many cases the author has created the substance as well as the form of the "there are, and can be, few, if any things, which in an abstract sense, are strictly new and original throughout. Every book in literature, science and art, borrows, and must necessarily borrow, and use much which was well known and used before. No man creates a new language for himself, at least if he be a wise man, in writing a book. He contents himself with the use of language already known and used and understood by others. No man writes exclusively from his own thoughts, unaided and uninstructed by the thoughts of others. The thoughts of every man are, more or less, a combination of what other men have thought and expressed, although they may be modified, exalted, or improved by his own genius or reflection. If no book could be the subject of copyright which was not new and original in the elements of which it is composed, there could be no ground for any copyright in modern times, and we should be ob- liged to ascend very high, even in an- tiquity, to find a work entitled to such eminence. " Virgil borrowed much from Ho- mer ; Bacon drew from earlier as well as contemporary minds ; Coke ex- hausted all the known learning of his profession ; and even Shakespeare and • Milton, ao justly and proudly our boast, as the brightest originals, would be found to have gathered much from the abundant stores of current knowledge and classical studies in their days. What is La Place's great work, but the combination of the processes and discoveries of tlie great mathemati- cians before his day, with his own ex- traordinary genius ? What are all mod- ern law-books, but new combinations and arrangements of old materials, in which the skill and judgment of the author in the selection and exposition and accurate use of those materials, con- stitute the basis of his reputation, as well as of his copyright ? Blaekstone's Commentaries and Kent's Commen- taries are but splendid examples of the merit and value of such achievements." Emerson v. Davios, 3 Story, 779. 1 " The defendant is not liable to this action, unless the jury find that Russell was the author of tlie musical composition. The Old Arm Chair, for which he obtained a copyright in 1810 ; and it is for the jury to decide, upon the whole evidence, whether he was or was not the author. If the said musi- cal composition was borrowed alto- gether from a former one, or was made up of different parts, copied from older musical compositions, with- out any material change, and put to- gether into one tune, with only slight and unimportant alterations or addi- tions, then Bussell was not the author within the meaning of the law ; but the circumstance of its corresponding with older musical compositions, and belonging to the same style of music, does not constitute it a plagiarism, provided the air in question was, in the main design, and in its material and important parts, the effort of his own mind." "Taney, C. J. Eeed v. Carusi, Tan. Dec. 72. So a play may be original, although its characters and incidents are similar to those of a previously published novel. Boucicault v. Fox, 5 Blatclif. 87. 200 THE LAW OP COPYRIGHT AND PLAYRIGHT. composition for which he claims copyright; and, though the sentiments and thoughts may not all be original, neither the whole nor a material integral part of the composition can be said to have previously existed. Popularly speaking, the work is wholly new and original. But the law does not require that a person, to be entitled to copyright, shall be the sole creator of the work for which protection is claimed. Labor bestowed by one person on the production of another, if no rights are thereby invaded, will often constitute a valid claim for copyright. The maker of an abridgment, translation, dramatization, digest, index, or concordance of a work of which he is not the author, may obtain a copyright for the product of his own labor and skill. So, also, any one, by making material changes, additions, corrections, improvements, notes, comments, &c., in the unprotected work of another, may create a valid claim for copyright in a new and revised edition. A person acquires a title to copyright by arranging music which he has not com- posed.^ A photograph, chromo, or engraving is often but a copy of a work of art in whose production the photographer or engraver had no part.^ In all such cases, the test of originality is applied to that which represents the labor or skill of the 1 Atwill V. Ferrett, 2 Blatchf. 39 ; within the meaning of 25 & 26 Vict. Wood u. Boosey, Law Rep. 2 Q. B. c. 68, a. 1, which secures copyright in 340, on ap. 3 Id. 223. See also Boosey " every original painting, drawing, V. jFairlie, 7 Ch. D. 301, 309. and photograph." In overruling this In Wood V. Boosey, Bramwell, B., objection, Mr. Justice Blackburn said : " It has been said that there is said : — nothing inventive on the part of the " The distinction between an origi- person who makes the arrangement, nal painting and its copy is well under- In one sense, there is not, that is to stood, but it is difficult to say what say, he neither invents the tune nor can be meant by an original photo- the harmony ; but there is invention graph. All photographs are copies of in another sense, or rather there is com- some object, such as a painting or a position in, the adaptation to the par- statue. And it seems to me that a ticular instrilment. Of that, the . photograph taken from a picture is an adapter is the author, and it is per- original photograph, in so far that to fectly certain that the man who wanted copy it is an infringement of this to arrange this opera for a piano-forte statute. As I have already pointed would find it a great deal easier to out, by section 2, although it is unlaw- copy what Brissler had done than to fill to copy a photograph or the nega- take the score and do it over again." tive, it is permitted to copy the subject- Law Rep. 3 Q. B. 232. matter of the photograph by taking 2 In a recent English case it was another photograph." Graves's Case contended that a photograph of an en- Law Kep. 4 Q. B. 723. graving was not an original production QUALITIES ESSENTIAL TO COPYRIGHT. 201 person claiming copyright. In the case of an abridgment, the question is whether the maker has fairly condensed the matter of the original, and reproducednt as a work of his own author- ship, or whether he has merely shortened it by omitting parts. So, a dramatization must have a value due to the work of the dramatist, and not found in the novel or poem dramatized. Collections of 'Well-known Facts. — A title to authorship is acquired by collecting well-known facts and information, or de- scribing common objects. " As to copyright," said Lord Eldon, " I do not see why, if a person collects an account of natural curiosities and such articles, and employs the labor of his mind by giving a description of them, that is not as much a literary work as many others that are protected by injunction and by action. It is equally competent to any other person, perceiving the success of such a work, to set about a similar work, bona fide his own. But it must be in substance a new and original work, and must be handed out to the world as such." ^ In Jarrold v. Houlston,^ the work in controversy was Dr. Brewer's Guide to Science, the purpose of which was to explain, on scientific principles, and by means of questions and answers, some of the ordinary phenomena of nature. In preparing the work, the author had collected inquiries which he had heard made by many persons, and had solicited questions from others. These inquiries, with answers furnished partly from his own information and partly obtained from published works, consti- tuted the matter of his book. For the defence it was contended that a work so composed did not meet the requirements of the law as to originality. But this argument was without force ; and the court, without hesitation, upheld the copyright in the book. " That an author," said Vice-Chancellor "Wood, " has a copyright in a work of this description is beyond all doubt. If any one by pains and labor collects and reduces into the form of a systematic course of instruction those questions which he may find ordinary persons asking in reference to the common phenomena of life, with answers to those questions, and ex- planations of those phenomena, whether such explanations and answers are furnished by his own recollection of his former 1 Hogg V. Kirby, 8 Ves. 221. 2 8 Kay & J. 708. 202 THE l^AW OP COPYRIGHT AND PLAYEIGHT. general reading, or out of works consulted by him for the ex- press purpose, the reduction of questions so collected, with such answers, under certain heads and in a scientific form, is amply sufficient to constitute an original work, of which the copyright will be protected." ^ So he who simply describes specimens of fruit before him,^ or reproduces and describes monumental designs from tomb- stones in a cemetery,' performs an act of authorship which brings him within the protection of the law. The maker of a map or chart merely represents boundaries, places, and dis- tances which he finds fixed by nature or man. A directorj'^ is but a list of the names and residences of citizens. A catalogue is often a mere arrangement of the titles of books or other things. In such case, the law does not inquire whether the facts and information given are new or old. The question is, whether there is any material product of authorship on the part of the person claiming copyright ; whether the publication is the result of independent labor, other than that of mere copying. Compilations. — A compilation of old materials gathered from published works and other common sources is an original pro- duction within the meaning of the law. Here the test of originality is applied, not to the materials, but to their ar- rangement and combination. A mere copy or reprint, not differing materially from the original matter, is not entitled to protection.* But labor, skill, or learning, exercised in se- lecting, arranging, and combining old. materials in a new and useful form, creates a title to authorship. " The question is not," said Mr. Justice Story, " whether the materials which are used are entirely new, and have never been used before ; or even that they have never been used before for the same pur- pose. The true question is, whether the same plan, arrange- ment and combination of materials have been used before for the same purpose or for any other purpose. If they have not, then the plaintiff is entitled to a copyright, although he may 1 3 Kay & J. 713. 4 Hedderwiek «. Griffin, 3 So. Sess. 2 Hogg V. Scott, Law Rep. 18 Eq. Cas. 2d ser. 883; Jollie v. Jaques, 1 414. Blatclif. 618; Boucicault v. Fox, 5 ' Grace v. Newman, Law Eep. 19 Id. 87, 101. Eq. 623. QUALITIES ESSENTIAL TO COPYRIGHT. 203 have gathered hints for his plan and arrangement, or parts of his plan and arrangement, from existing and known sources. He may haive borrowed much of his materials from others ; but if they are combined in a different manner from what was in use before, and a fortiori, if his plan and arrangement are real improvements upon the existing modes, he is entitled to a copy- right in the book embodying such improvement. It is true he does not thereby acquire the right to appropriate to himself the materials which were common to all persons before, so as to exclude those persons from a future use of such materials ; but then they have no right to use such materials with his im- provements supperadded, whether they consist in plan, arrange- ment or illustrations or combinations ; for these are strictly his own."^ 1 Emerson v. Davies, 3 Story, 778. See Compilations, ante, p. 152. In Gray v. Russell, 1 Story, 16, Mr. Justice Story said: "The argument proceeds mainly upon this ground, that there is nothing substantially new in Mr. Gould's notes to his edition of Adam's Latin Grammar ; and that all his notes in substance, and many of them in form, may be found in otiier works antecedently printed. That is not the true question before the court. The true question is, whether these notes are to be found collected and embodied in any former single work. It is ad- mitted, that they are not so to be found. The most that is contended for, is, that Mr. Gould lias selected his notes from very various authors, who have written at different periods ; and that any other person might, by a dili- gent examination of the same works, have made a similar selection. It is not pretended, that Mr. Cleveland un- dertook or accomplished such a task by such a selection from the original authors. Indeed, it is too plain for doubt, that he has borrowed the whole of his notes directly from Mr. Gould's work ; and so literal has been his transcription, that he has incorporated the very errors thereof. " Now, certainly, the preparation and collection of these notes from these various sources, must have been a work of no small labor, and intellec- tual exertion. The plan, the arrange- ment, and the combination of these notes in the form in which they are collectively exhibited in Gould's Gram- mar, belong exclusively to this gentle- man. He is, then, justly to be deemed the author of them in their actual form and combination, and entitled to a copyright accordingly. If no work could be considered by our law as en- titled to the privilege of copyright, which is composed of materials drawn from many different sources, but for the first time brought together in the same plan and arrangement and com- bination, simply because those mate- rials might be found scattered up and down in a great variety of volumes, perhaps in hundreds, or even thousands of volumes, and might, therefore, have been brought together in the same way and by the same researches of another mind, equally skilful and equally dili- gent, — then, indeed, it would be diflS- cult to say, that there could be any copyright in most of tlie scientific and professional treatises of the present day. What would become of the elaborate commentaries of modern scholars upon the classics, which, for the most part, consist of selections from the works and criticisms of vari- 204 :yHE law op copyright and playright. To what extent the functions of the compiler must go beyond those of a mere copyist is to be determined by the circum- stances of each case. But there must be substantial results due to the operation of his mind ; the compilation must have a material value not found in the parts taken separately. The principle is the same whether the common materials are taken by the compiler from published or unpublished sources. If he is not the owner of the manuscripts, if they are common prop- erty, his exclusive rights will be determined by the compilation which he has made. Where a collection of statistics had been made from unpublished official records, and it appeared that the compiler had exercised industry and judgment in selection and arrangement, it was held that the requirements of the law as to originality had been fulfilled.^ But the compiler could have acquired no title to authorship by merely copying the figures as he found them. In Alexander v. Mackenzie, the validity of the complainant's copyright in a collection of legal forms or " styles " was ques- tioned, on the ground that, in preparing them, he had simply fol- lowed the directions prescribed by the statute ; and that, under the circumstances, the forms prepared by two or more persons must be substantially the same. The court held that, if the statute had contained the forms themselves, and the complain- ous former authors, arranged in a new bined, and exquisitely wrought out, form, and combined together by new with a judgment, skill, and taste abso- illustrations, intermixed with them? lutely unrivalled. Take the case of What would become of the modern the work on insurance, written by one treatises upon astronomy, mathematics, of the learned counsel [Phillips] in this patural philosophy, and chemistry ? cause, and to which the whole profes- What would become of the treatises in sion are so much indebted ; it is but a our own profession, the materials of compilation with occasional comments which, if the works be of any real upon all the leading doctrines of that value, must essentially depend upon branch of the law, drawn from reported faithful abstracts from the reports, and cases, or from former authors, but com- from juridical treatises, with illustra- bined together in a new form, aind in tions of tlieir bearing. Blackstone's a new plan and arrangement ; yet I Commentaries is but a compilation of presume, none of us ever doubted, that the Laws of England, drawn from au- he was fully entitled to a copyright in thentic sources, open to the whole pro- the work, as being truly, in a just fession ; and yet it was never dreamed, sense, his own." that it was not a work, which, in the i Scott v. Stanford, Law Eep. 3 Eq. highest sense, might be deemed an 718; Maclean v. Moody, 20 Sc. Sess. original work ; since never before were Cas. 2d ser. 1154. the same materials so admirably com- QUALITIES ESSENTIAL TO COPYRIGHT. 205 ant had simply copied them, his copyright would have failed through want of originality. But, as the statute gave simply directions, it was an act of authorship to prepare the forms pursuant to such directions.^ So a good title to copyright is acquired by representing on a map boundaries of townships which are fixed by statute.^ ■Works alike may be Original. — It is not essential that any production, to be original or new within the meaning of the law of copyright, shall be different from another. Whether the composition for which copyright is claimed is the same as or different from, whether it is lilie or unlilie, an existing one, are matters of which the law taltes no cognizance, except to determine whether the production is the result of independent labor or of copying. There cannot be exclusive property in a general subject, or in the method of treating it ; ^ nor in the mere plan of a work ; * nor in common materials, or the man- ner or purpose for which they are used.^ The rights of any 1 9 So. Sess. Cas. 2d ser. 748. " It is said," remarked Lord FuUerton, " that owing to the particular nature of the styles they cannot be the subject of copyright, because they are drawn up precisely after the form prescribed in the statute, and because any styles relating to the same subjects as those given by the complainer must, if the directions of the statutes and phrase- ology of conveyances were used, be expressed in the same manner exactly as those compared by the complainer. Now it may be quite true, that if the statute had supplied certain forms, by which the operations intended to be thereby regulated were to be done, if the statute had contained, as such statutes sometimes do, an appendix exhibiting certain schedules of forms which it was only necessary for any one to copy in order to avail himself of the provisions of the act, then I hold that the reprinting of such forms in a separate publication would not give him a copyright in those forms. But the case here is different, for the statute only gives very general direc- tions and descriptions of the styles that are to be used. The schedules are very general in their terms, and it is no doubt of great practical impor- tance to suit these general directions to each case falling under the statute as it may arise. The preparing and adjust- ing of such writings require much care and exertion of mind. As to invention that is it different thing. It does not require the exercise of original or cre- ative genius, but it requires industry and knowledge." Ibid. 754. 2 Farmer c. Calvert Lithographing, Engraving, & Map-Publishing Co., 5 Am. L. T. R. 168. 8 Matthewson v. Stockdale, 12 Ves. 270 ; Longman v. Winchester, 16 Id. 269; Lewis v. FuUarton, 2 Beav. 6; Blunt V. Patten, 2 Paine, 393, 397; Banks v. McDivitt, 13 Blatchf 163. * Mack V. Better, Law Kep. 14 Eq. 431 ; Lawrence v. Cupples, 9 U. S. Pat. Off. Gaz. 254. 5 Barfleld v. Nicholson, 2 Sim. & St. 1; Murray v. Bogue, 1 Drew. 853 ; Spiers V. Brown, 6 W. R. 352 ; Pike v. Nich- olas, Law Rep. 5 Ch. 251 ; Cox v. Land 6 Water Journal Co., Law Rep. 9 Eq. 324 ; Farmer v. Calvert Litho- graphing, Engraving, & Map-Publish- ing Co., supra. Section 2 of 25 & 206 THE LAW OF COPYRIGHT AND PLAYRIGHT. person are restricted to his own individual production. There is nothing in the letter or the spirit of the law of copyright to prevent or to discourage any number of persons from honestly laboring in the same field. Two or more authors may write on the same subject, treat it similarly, and use the same com- mon materials in like manner and for one purpose. Their productions may contain the same thoughts, sentiments, ideas ; they may be identical. Such resemblance or identity is mate- rial only as showing whether there has been unlawful copying.^ In many cases, the natural or necessary resemblance between two productions, which are the result of independent labor, will amount to substantial identity. Thus, the differences will be often slight, and sometimes immaterial, between two de- scriptions of a common object ; two compilations of l^ke mate- rials ; two maps, charts, or road-books of a common region ; two directories of one city ; two photographs of the same scene ; two engravings of the same painting. But, notwith- standing their likeness to one another, any number of produc- tions of the same kind may be original within the meaning of the law ; aud no conditions as to originality are imposed on the makers, except that each shall be the producer of that for which he claims protection.^ 26 Vict. c. 68, which secures copyright rangement of it for the piano by in paintings, drawings, and photo- another author and composer. If the graphs, declares that " nothing hereia copyright in the original opera be contained shall prej udice the right of expired, a copyright might exist in the any person to copy or use any worlc in composers of both of those arrange- which there shall be no copyright, or ments; each would be a new substantive to represent any scene or object, not- work entitled to the benefit of any ex- withstanding there may be copyright isting law of copyright, and one might in some representation of such scene or might not be a piracy of the other." or object." ^ " A copyright cannot subsist in a 1 Br. Koworth «. Wilkes, 1 Camp, chart, as a general subject, although it 94 ; De Berenger v. Wheble, 2 Stark, may in the individual work, and others 548; Barfield v. Nicholson, 2 Sim. & may be restrained from copying such St. 1 ; Nichols v. Loder, 2 Coop. (temp. work. But the natural objects from Cottenham) 217. Am. Blunt v. Pat- which the charts are made are open to ten, 2 Paine, 893, 397 ; Reed v. Carusi, the examination of all, and any one has Tan. Dec. 72 ; Benn v. LeClercq, 18 a right to survey and make a chart. Int. Rev. Rec. 94. In Wood v. Boosey, And if such surveys and charts are all as reported 18 L. T. n. s. 108, Kelly, correct, all will be alike, but no one C. B., said : " After the original opera would- complain of his rights having there may be an arrangement of it for been infringed, and each one may be the piano-forte by one author or com- considered an original chart. A right poser, and there may be another ar- in such a subject is violated only when QUALITIES ESSENTIAL TO COPYRIGHT. 207 Tables of figures have been held to be a proper subject of copyright. Tbe copyright is not in the mode or rules of com- putation, but in the results. Of course, the same calculations, when correctly made, must produce the same results ; and the test of originality is simply whether the person claiming pro- tection has himself performed the operations, or has copied the results.^ Where it was shown that, of thirteen tables in which copyright was claimed, at least seven had been published in different works long before the plaintiff's publication appeared, Vice-Chancellor Leach said : " I am not of opinion that the plaintiff ceases to be entitled to protection, though the tables in respect of which his complaint is made, may have been pre- existing. He has a right to protection, if they were original calculations of his own ; and such he swears them to have been. . . . The plaintiff's title to the tables is that he calculated them ; the defendant, by calculating them on his part, acquires the same right." ^ There can be no monopoly in the plan of a directory, and the same sources of information are common to all persons. All that is required of each compiler is, that he shall prepare his own publication without copying from that of his rival.^ So in the case of compilations consisting of matter taken from other publications. Any number of persons may use the same common materials, in like manner and for a similar purpose.* Bach compilation must be original, in the sense that it is a work materially different from its component parts taken sepa- another copies from the chart of him ^ Baily v. Taylor, 3 L. .J. (Ch.) 66, who has secured the copyright and 1 Euss. & My. 73; M'Neill v. Wil- thereby availing himself of his labor liams, 11 Jur. 344. and skill. And in all such cases it is ^ Baily v. Taylor, -3 L. J. (Ch.) 66. a proper question for a jury, whether ' Kelly v. Morris, Law Eep. 1 Eq. the one is a copy of the other or not. 697 ; Morris v. Ashbee, 7 Id. 84 ; Morris If the two are in all respects alike, the v. Wright, Law Hep. 5 Ch. 279. prima facie presumption probably would * " No compiler of such a book has be, that one was a copy of the other, a monopoly of the subject of which the yet both might be originals ; and if book treats. Any other person is per- there was some small variance, it would mitted to enter that department of be a proper subject of inquiry whether literature and make a similar book, the alteration was not merely colorable But the subsequent investigator must and that the one was in substance a investigate for himself from the orig- mere transcript of the other." Thomp- inal sources which are open to all." son, J., Blunt v. Patten, 2 Paine, Shipman, J., Banks v. McDivitt, 13 400. Blatchf. 166. 208 THE LAW OP COPYRIGHT AND PLATRIGHT. lately ; that it is not a mere reprint of what the compiler is in no sense the author. It must also be original in the sense that the compiler has obtained the materials from the common sources, and has arranged and combined them by his own labor and skill. But the originality of a compilation is not affected by the fact that the same materials have been used before for the same purpose and in the same order ; in other words, that the work is not different from one previously published.^ The principle is the same in the case of original composi- tions. It is not probable that two authors, working indepen- dently of each other, will produce two poems, novels, essays, &c., which will be precisely alike. But, if such a case should arise, each author would be entitled to copyright in his own production.^ Test of OriginaUty. — In all cases, whatever may be the kind or the character of the work for which protection is claimed, the true test of originality is whether the production is the result of independent labor or of copying. A close resemblance between two publications may afford strong evidence of copy- ing ; and in some cases, especially when the similarity is not explained, it may amount to conclusive proof of piracy. But, when it is established that a work is the result of honest authorship, its likeness to another publication is immaterial. Literary Merit and Quality. Literary Merit. — When a production meets the requirements of the law as to innocence and originality, the only inquiry relating to its character is, whether it is a material contribution to useful knowledge. This raises the question, whether literary merit, in the common meaning of that expression, is essential 1 Br. Barfield t». Nicholson, 2 Sim. * " The order of each man's words," & St. 1 ; Murray u. Bogue, 1 Drew. 363 ; said Mr. Justice Erie, " Is as singular Spiers v. Brown, 6 W. R. 352; Pike as his countenance, and although if V. Nicholas, Law Rep. 6 Ch. 261. Am. two authors composed originally with Gray v. Russell, 1 Story, 11 ; Webb v. the same order of words each would Powers, 2 Woodb. & M. 497 ; Law- have a property therein, still the proba- rence v, Dana, 2 Am. L. T. R. N. a. bility of such an occurrence is less 402 ; Lawrence v. Cupples, 9 U. S. than that there should be two counte- Pat. Off. Gaz. 264 ; Banks v. McDivitt, nances that could not be discrimi- 13 Blatchf. 163. nated." JefEerys u. Boosey, 4 H. L. C. 869. QUALITIES ESSENTIAL TO COPYRIGHT. 209 to copyright in a composition. On this point the statute con- tains no express provision. The only guide from this source is that afforded by the avowed purpose of the legislature. The statute of Anne, entitled An Act for the Encouragement of Learning, was declared in the preamble to be " for the encouragement of learned men to compose and write useful books." The object of the 5 & 6 Vict. c. 45, as expressed in the preamble, is " to afford greater encouragement to the production of literary works of lasting benefit to mankind." The first American statute ^ was entitled An Act for the Encouragement of Learning, and was passed pursuant to that provision of the Constitution which empowers Congress " to promote the progress of science " by securing to authors the exclusive right to their writings.^ To the object of copyright legislation, as thus indicated, the courts have given a most liberal interpretation. They have declared that the law cannot be restricted to the protection of " literary works of lasting benefit to mankind," according to a strict interpretation of the preamble of 5 & 6 Vict. c. 45 ; but that its true scope and spirit are to encourage the production of " useful books," as avowed by the statute of Anne, which is the foundation of all English and American copyright legisla- tion. Many productions without literary or scientific merit are valuable additions to useful knowledge ; and such works, not less than those of learning, in the strict meaning of that expression, are within the scope of the copyright law as judicially construed. A directory, a calendar or catalogue of names, a compilation of statistics, a table of figures, a collec- tion of legal forms, an abstract of titles to lands, a list of hounds, are productions which may be regarded as void of literary or scientific qualities. Yet they are contributions to the general fund of knowledge, and are sources of information useful to the public. Hence, they have been judicially recog- nized as proper subjects of copyright.^ In an early case in the United States Circuit Court, Mr. 1 Actof 1790; 1 U.S. Stat L. 124. Cas. 2d ser. 1163, Lord Deas said: 2 4^rt. 1, o. 8, cl. 8. " The act does not confine the privilege 2 See ante, p. 183. In the Scotch to works of literary merit." case of Maclean v. Moody, 20 Sc. Sess. 11 210 THE LAW OP COPYRIGHT AND PLAYEIGHT. Justice Thompson held that a daily price current, or review of the market, was not within the purview of the copyright statute.^ But a more liberal doctrine now prevails. The importance and value of the information often contained in prices current, trade circulars, market reports, &c., are well recognized in the com- mercial world ; and such publications are clearly within the principle on which copyright has been declared to vest in directories, calendars, statistical reports, &c.2 In Drury v. Ewing, it was held that a chart or diagram, with directions for cutting garments, was entitled to protection as a book. " It is clearly no objection to the validity of her copyright," said Mr. Justice Leavitt, " that her production does not claim a standing as a work of great literary merit. The statute does not make this a necessary element of a legal copyright, and it is well known that there are works of great practical utility, having no pretension to literary merit, which are yet within, not only the words, but the scope and design of the statute." ^ The material inquiry, then, is not whether a production has literary or scientific merit, but whether it may be regarded as a material addition to useful knowledge, a source of general information. If it be of substantial importance, and have a material value in this respect, the law does not inquire into the degree of its usefulness or of its merits. Whether one pro- duction is more or less useful, meritorious, or popular than another, is of no concern to the court, which exercises no functions of criticism.^ 1 Claytoni). Stone, 2 Paine, 382, 392. use. . . . The title of the act of Con- " The act in question," said Mr. Jus- gress is for the encouragement of tice Thompson, " was passed in execu- learning, and was not intended for the tion of the power here given [by the encouragement of mere industry, un- Constitution], and the object therefore connected with learning and the sei- was the promotion of science ; and it ences." would certainly be a pretty extraordi- ^ See Kiernan v. Manhattan Quota- nary view of the sciences to consider tion Telegraph Co., 50 How. Pr. (N. Y.) a daily or weekly publication of the 194. state of the market as falling within ^ 1 Bond, 540, 548. See also Folsom v. any class of them. They are of a more Marsh, 2 Story, 109 ; Lawrence v. Cup- fixed, permanent, and durable char- pies, 9 U. S. Pat. Ofi. Gaz. 254; Bich- acter. The term science, cannot, with ardson u. Miller, 3 L. & Eq. Reporter, any propriety, be applied to a work of 614. BO fluctuating and fugitive a form as * For a consideration of the question that of a newspaper or price current of literary value in unpublished works, the subject-matter of which is daily see ante, p. 111. changing, and is of mere temporary QUALITIES ESSENTIAL TO COPYRIGHT. 211 While the requirements of the law as to the importance or value of a production are so slight that valid copyright will attach to almost any publication, and to many that appear to be of little or no consequence, not every collection of printed words or sentences is entitled to protection. To be worthy of copyright, a thing must have some value as a composition sufBciently material to lift it above utter insignificance and worthlessness. A title of a book,^ a mere label,^ an advertise- ment ^ which serves no higher purpose than to make known the place and kind of business of the advertiser, are not proper subjects of copyright. In a recent English case, copyright was claimed in a scoring- sheet or "tablet" used in the game of cricket. The tablet consisted of two lines ruled at the foot of the sheet, with spaces in which were marked the totals or number of the runs ob- tained in the game at the fall of each wicket. At the head of the tablet were the words " Runs at the fall of each wicket." It appeared that this was not original, having long been in common use. Vice-Chancellor Malins held that, even if origi- nal, it was not a proper object of copyright. He was of opinion that " to say that the particular mode of ruling a book consti- tuted an object for copyright is absurd. A solicitor's bill is made out in that way, by casting up the totals ; and what more is this ? It is below all protection, being a mere arithmetical ' See cases cited ante, p. 145, the almost numberless labels attached note 1. to bottles and vials containing medi- 2 ScovlUe V. Toland, 6 West. Law cines and directions how they shall be Jour. 84; Coffeen v. Brunton, 4 Mc- taken. Now these are only valuable Lean, 516. In the former case, Mr. when connected with the medicine. Justice McLean, said : " The label As labels they are useful, but as mere which the complainant claims to be a compositions, distinct from the medi- book refers to a certain medicinal prep- cine, they are never used or designed aration and was designed to be an to be used. This is not the case with accompaniment of it. Like other labels, other compositions which are intended it was intended for no other use than to instruct and amuse the reader, to be pasted on the vials or bottles though limited to a single sheet or which contained the medicine. As a page. Of this character would be composition distinct from the medicine lunar tables, sonatas, music, and other it can be of no value. It asserts a fact mental labors concentrated on a single that Dr. Eodgers' Compound Syrup page." of Liverwort and Tar is a certain ' CoUender u. GriflSth, 11 Blatchf. cure for many diseases ; but it does not 211. See the consideration of the inform us how the compound is made, question of copyright in advertise- In no respect does this label differ from ments, ante, p. 164. 212 THE LAW OF OOPTEIGHT AND PLATEIGHT. operation, which must have been done over and over again." ^ Quantity. — How short a composition may be, and still be a subject of copyright when published alone, has not been defi- nitely determined by the legislature or the courts. We have seen that productions written on a single page have been pro- tected as books. In a recent English case, a passage of about sixty words was held to be entitled to protection by injunction.* The question is to be determined rather by the worth and importance of the production than by its length. It would seem that, however small the piece may be, if it has merit and value enough to be published alone, and to be an object of piracy, it should also be of sufi&cient importance to be entitled to protection. A gem of literature may be contained in a couplet of poetry or in a sentence of prose. Mr. Lincoln's words at Gettysburg rank with the highest productions of ora- tory ; yet they may be read in less than two minutes. The same general test is to be applied in determining the validity of copyright in a compilation of old materials, or a new edition of a work previously published. The controlling ques- tion is whether the results due to the labor or skill of the compiler, or the author of the new edition, are of material con- sequence and value. Has the compilation a substantial worth not found in the materials uncombined ? Is the new edition materially different from the old ? In Black v. Murray,^ copy- right was claimed in a new edition of one of Scott's ballads which differed in but one word from the original edition in which the copyright had expired. Lord De'as earnestly contended that the change wrought in the author's meaning by this sub- stitution of a single word, and the force and beauty thereby given to the poem, were so great as to afford a basis for a new copyright in the revised edition. The other judges did not attach so much importance to the force of the revision, but regarded the new edition as a substantial reprint of the old. 1 Page V. Wisden, 20 L. T. N. B. 435. » 9 Sc. Sess. Cas. 8d ser. 841. For a 2 Cobbett V. Woodward, Law Rep. fuller consideration of this case, see 14 Eq. 407. See the question of quan- ante, p. 149. See also Hedderwick v. tity and value considered in Chaps. Griffin, 3 Sc. Sess. Cas. 2d ser, 883. VIII., XI. QUALITIES ESSENTIAL TO COPYRIGHT. 213 The judgment of the court, therefore, was that there was not sufficient basis for a renewed term of protection. But the principle was evidently recognized, that the claim for copyright in such cases is to be tested by the change wrouglit in the meaning of a composition, rather than by the extent of the verbal alterations. 214 THE LAW OF COPYRIGHT AND PLATRIGHT. CHAPTER IV. . m WHOM COPYRIGHT WILL VEST. One of the first questions which arise in connection with this subject is, whether the copyright legislation of Great Britain, or that of the United States, is for the benefit of native authors alone, or of all authors without distinction as to nationality. The general copyright statutes of England grant protection to " authors," without declaring whether native or foreign authors are meant. By the International Copyright Acts, special provision is made for extending copyright to foreigners ; but such protection is given only to those authors whose country extends reciprocal privileges to English authors. A noticeable feature of these acts is that they extend protec- tion to works first published abroad, while first publication in the United Kingdom is essential to secure ^copyright under the general statutes. International Copyright. — Great Britain. The first International Copyright Act was passed in 1838.^ This was repealed in 1844 by the 7 & 8 Vict. c. 12, which, with the 15 & 16 Vict. c. 12, and the 38 & 89 Vict. c. 12, now governs the law of international copyright. Foreign Works in Original Leinguage. — By these acts, the Queen is empowered to direct by an Order in Council that authors, inventors, designers, engravers, and makers of books, prints, articles of sculpture and other works of art, to be defined in such order, which shall be first published in any foreign country to be named in the order, shall have copyright therein during a specified period ; not exceeding, however, the duration of English copyright. In a similar manner, provision 1 1 & 2 Vict. c. 59. IN WHOM COPYRIGHT WILL VEST. 215 is made for conferring upon the authors and composers of dramatic and musical compositions, first publicly represented or performed in foreign countries, the sole liberty of represent- ing or performing them in any part of the British dominions, for a period not exceeding that during which protection is afforded to similar works first published in England. The provisions of the general copyright statutes are to apply to cases provided for by the International Copyright Acts ; sub- • ject, however, to such special exceptions as may be made in the Order in Council. To acquire copyright, the foreign author must comply with certain prescribed regulations as to registry, and the delivery of copies for deposit in the British Museum. Orders in Council may specify diffei'ent times for registration, and different periods during which protection will extend for different foi'eign countries, and for different classes of works. Translations. — The above provisions seem to have been intended for the protection of foreign works in their original language. There are special regulations concerning transla- tions. The 7 & 8 Vict. c. 12, expressly declares that its pro- visions shall not apply to translations.^ But the 15 & 16 Vict. c. 12,2 empowers her Majesty to direct, by Order in Council, that the author of a book or a dramatic composition first publislied or publicly represented in a foreign country may, by complying with the provisions of the act, prevent the publication or representation in the Britisla dominions of an unauthorized translation for a specified period, not exceeding five years from the date of publication or public representation of the authorized translation ; and in the case of a book pub- lished in parts, not extending as to each part beyond five years from the time when the authorized translation of such part is first published. Adaptations of Dramatic Compositions. — Section 6 of the same act declares that nothing therein " shall be so construed as to prevent fair imitations or adaptations to the English stage of any dramatic piece or musical composition published in any foreign country." But this provision was repealed in 1875 by the 38 & 39 Vict. c. 12, which provides that the Queen, by Order in Council, may " direct that the sixth section of the 1 s. 18. 2 s. 2. 216 THE LAW OP COPYRIGHT AND PLATBIGHT. said act shall not apply to the dramatic pieces to which pro- tection is so extended ; and thereupon the said recited act shall take effect with respect to such dramatic pieces and to the translations thereof as if the said sixth section of the said act were hereby repealed." Newspapers and Periodicals. — The provision of the statute relating to books publislied in parts has been judicially con- strued to refer to publications which- are to be completed in a definite number of parts, and not to those to be continued, indefinitely. Newspapers and periodicals do not therefore come within the scope of this clause ; ^ but for such publications special provision is made. Section 7 of 15 & 16 Vict. c. 12, provides that " any article of political discussion which has been published in any newspaper or periodical in a foreign country may, if the source from which the same is taken be acknowledged, be republished or translated in any newspaper or periodical in this country ; and any article relating to any other subject which has been so published as aforesaid may, if the source from which the same is taken be acknowledged, be republished or translated in like manner, unless the author has signified his intention of preserving the copyright therein, and the right of translating the same, in some conspicuous part of the newspaper or periodical in which the same was first pub- lished." In case of such reservation, articles other than those of " political discussion " will be entitled to the same protec- tion that is extended to books, but subject to the conditions and requirements relating to registration, &o., prescribed in the case of books.^ The formalities prescribed in the case of the translation of a book or dramatic composition do not apply to translations of articles originally published in news- papers and periodicals, unless such articles are published in separate form.^ The Order in Council dated Jan. 10, 1852, for extending protection to French authors, provides that works first pub- lished in Prance shall be registered at Stationers' Hall, London, and copies delivered " within three months after the first publica- tion thereof in any part of the French dominions, or, if such 1 Cassell V. Stiff, 2 Kay & J. 2 Cassell v. Stiff, supra. 279. 3 15 & 16 Vict. c. 12, s. 8, cl. 7. IN WHOM COPYRIGHT WILL VEST. 217 work be published in parts, then within three months after the publication of the last part thereof." It has been held that a newspaper or periodical is not such a work published in parts as is contemplated by this provision ; and that it must be regis- tered within three months after the beginning of its publication, or within three months after the date of the Order in Council, if its publication was begun before the issue of that order.^ Statutory Requirements in Case of Translations. — In order to entitle a foreign author or his assignee to protection for the translation of any book or dramatic composition, there must be a compliance with the following requirements prescribed by 15 & 16 Vict. c. 12, s. 8 : — 1. The original work from which the translation is to be made must be registered and a copy thereof deposited in the United Kingdom in the manner required for original works by the said International Copyright Act, within three calendar months of its first publication in the foreign country : 2. The author must notify on the title-page of the original work, or, if it is published in parts, on the title-page of the first part, or, if there is no title-page, on some conspicuous part of the work, that it is his intention to reserve the right of translating it : 3. The translation sanctioned by the author, or a part thereof, must be published either in the country mentioned in the order in council by virtue of which it is to be protected, or in the British dominions, not later than one year after the registration and deposit in the United Kingdom of the original work ; and the whole of such translation must be published within three years of such registration and deposit : 4. Irfuch translation must be registered and a copy thereof 1 Cassell V. Stiff, 2 Kay & J. 279. such a work might register it, and Eeferring to tlie language of the Order carry bacli his copyright to the earliest relating to works published in parts, period in 1852 when Prench authors Vice-Chaneellor Wood said : " The first had a copyright in this country, only interpretation of that clause is Tliat cannot be the intention ; it must that it refers to a publication which is mean to apply to a work to be com- t'o be completed In a specified number pleted in a definite number of parts, of parts, and not one which is to be and such a work, though not registered continued for an indefinite period, at its commencement, may be regis- There would be no sense in the other tered within three months after the construction. Tiie effect of it would publication of the last part." Ibid, be that at any period the publisher of 286. 218 THE LAW OP COPYRIGHT AND PLAYRIGHT. deposited in the United Kingdom within a time to be mentioned in that behalf in the order by which it is protected, and in the manner provided by the said International Copyright Act for the registration and deposit of original works : 5. In the case of books published in parts, each part of the original work must be registered and deposited in this country in the manner required by the said International Copyright [Act] within three months after the first publication thereof in the foreign country : 6. In the case of dramatic pieces the translation sanctioned by the author must be published within three calendar months of the registration of the original work : 7. The above requisitions shall apply to articles originally published in newspapers or periodicals, if the same be after- wards published in a separate form, but shall not apply to such articles as originally published. It has been held that the act contemplates and requires a translation of the whole work, and that a translation of a part is not enough to entitle the author to protection. Moreover, the version must be a bona fide translation. In the case of a drama, a mere imitation or adaptation to the English stage, although sanctioned by the author as a translation, is insuffi- cient for the completion of a valid title. Where it was sought to restrain the representation of an unauthorized adaptation to the English stage of a French comedy originally represented in Paris, the court held that the plaintiff 's title was defeated by the fact that the version approved by the authors of the comedy as a translation, and duly registered as such, was a mere adaptation, without the elements of such a translation as is required by the statute. What Parliament intended, said Vice-Chancellor James, was " that the English people should have the opportunity of knowing the French work as accu- rately as it is possible to know a French work by the medium of a version in English." ^ 1 Wood V. Chart, Law Rep. 10 Eq. registration of the original work. 193, 205. " It is provided," said the Now I do not think it is possible to Vice-Chanoellor, " that in the case of say that means that any thing which dramatic pieces the translation sane- the author shall sanction as a transla- tioned by the author must be published tion shall be published within three within three calendar months of the calendar months. It means that a real IN WHOM COPYRIGHT WILL VEST. 219 Importing Piratical Copies Prohibited. — In Order to secure more effectually the protection granted, the statute prohibits the unauthorized importation into any part of the British dominions of copies of any work of literature or art in which copyright exists by virtue of the International Copyright Acts, which have been printed, reprinted, or made in any foreign country other than that in which such work was originally published ; and the same prohibition applies to unauthorized translations of books or dramatic compositions protected by the acts.^ translation, being a translation which has been authorized or sanctioned by the author, must be published within three calendar months of the registra- tion of the original work. It appears to me that the plaintiff in this case has gone out of his course to dig h pitfall for himself, for what he says he has done is — the original thing being called Frou-Frou — he has published in England a comedy called Like to Like, a comedy in five acts, being an Eng- lish version of MM. Meilhac and Halevy's Frou-Frou, written by H. Sutherland Edwards. Then he has introduced English characters ; he has transferred the scene to England; he has made the alterations necessary for making it an English comedy, and he has left out a great number of speeches and passages — especially in the first act — whicli would seem to me to imply, that at first he was really making an imitation or adaptation, and afterwards was minded more com- pletely to make a translation. The first two acts seem to me particularly to be what is referred to in the act itself as an imitation or adaptation. Whether it is a fair imitation or adap- tation is another question ; but if one wanted to have an example of what is an imitation or adaptation to tlie English stage, one would have said that this is exactly the thing which is meant. It is an imitation and adapta- tion to the English stage ; that is, you have transferred the characters to England, you make them English char- acters, you introduce English manners, and you leave out things which you say would not be suitable for represen- tation on the English stage. Now that is not, in my view of the case, what the act requires, for some sufficient purpose as I have said before, when it requires that a translation should be made accessible to the English people. What is required is, that the English people should have the opportunity of knowing the French work as accurately as it is possible to know a Erench work by the medium of a version in Eng- lish." Ibid. 204. When this decision was rendered, the statute expressly provided that "fair imitations or adaptations to the English stage" of any foreign play might be made without the consent of the author of the original. 15 & 16 Vict. c. 12, s. 6. This clause has been repealed since Wpod v. Chart was de- cided. 38 & 39 Vict. c. 12. But it does not appear that the court in that case was influenced by the provision just referred to. Referring to the neces- sity of publishing such a translation as was contemplated by this statute, Vice- Chancellor James said : " If the author had complied^ with the condition re- quired by the act of Parliament, or any other person claiming under the author had complied witli that condi- tion, I should at once have restrained the acting of such a piece as this by any one else, as not being a fair imita- tion or adaptation, but as being a piratical translation of tlie original work." Law Rep. 10 Eq. 206. 1 15 & 16 Vict. 0. 12, s. 9. 220 THE LAW OF COPYRIGHT AND PLATRIGHT. Works first Published Abroad not entitled to Copyright, except under International Acts. — Section 19 of 7 & 8 Vict. C. 12, declares that the author of a book, dramatic composition, or other work mentioned in the act, which shall be first published out of the British dominions, shall have no copyright therein, nor the exclusive right of representation, " otherwise than such (if any) as he may become entitled to under this act." It has been held that this section applies to native as well as to for- eign authors, and to works first published in any foreig"n coun- try, whether the provisions of the International Copyright Acts have or have not been extended to that country ; and, accord- ingly, that no author, whether a British subject or an alien, is entitled to any other protection for a work first published abroad than that which he may claim under the International Copyright Acts.^ Rights of Foreign Authors in Great Britain. The International Copyright Acts do not affect the rights of an alien under the general copyright statutes, and leave untouched the question whether, under the latter, a foreigner is entitled to any protection for a work first published in Eng- land. This question has undergone the most elaborate dis- cussion in the courts, and is one on which the ablest judges have expressed opinions diametrically opposed. The conflict of opinion is the result of the different meanings given to the word author in the statute 8 Anne, c. 19,^ and 5 & 6 Vict, c. 45 ; ^ the question being whether Parliament legislated for all authors, native and foreign, or for British subjects alone. Of course, it has never been claimed that a foreigner is entitled to any privileges, except on the conditions which are to be observed by an Englishman. The doctrine that an alien is capable of acquiring British copyright was not opposed by any direct authority until 1849. Before that year, the protection of the law had been uniformly 1 Boucioault v. Delafield, 1 Hem. & Chap. V. For countries with which M. 697 ; Boucicault v. Chatterton, 5 Ch. international copyright conventions D. 267. See these authorities consid- have been made, see ante, p. 86. ered more fully under Publication in ^ b.1. s s. 3. IN WHOM COPYRIGHT WILL VEST. 221 extended to the works of foreign authors ; ^ and, in 1848, the Court of Common Pleas, after an elaborate discussion of the subject, unanimously held, in Cocks v. Purdy, that an alien friend, though resident abroad at the time of publication, was entitled to copyright in a work first published in England.^ The law was construed to the same effect by the Court of Queen's Bench, in Boosey v. Davidson, decided in 1849.^ The soundness of this doctrine was first judicially questioned in 1845, when Chief Baron Pollock, delivering the judgment of the Court of Exchequer in Chappell v. Purday, remarked that " upon the construction of the statutes alone a foreign author, or the assignee of a foreign author, whether a British subject or not, had no copyright in England, and no right of action on the ground of any piracy of his work in the British territories."* But the result of the decisions at that time was stated to be that a foreigner became entitled to the benefit of the statutes by first publishing in England ; and, in view of such authorities, the court went no farther than to express a doubt whether English copyright would vest in a foreigner resident abroad.^ But the determination of this question, if not the discussion, was unnecessary ; as the copyright in con- troversy was clearly defeated by a prior publication of the work abroad. In 1849, the same court, contrary to all the authorities on the subject, held, in Boosey v. Purday, that a foreigner, domiciled abroad, by sending his work to Great Britain for first publication, acquired no copyright, and could not confer a valid 1 Bach V. Longman, Cowp. 623 ; * U Mees. & W. 318. Guichard v. Mori, 9 L. J. (Ch.) 227; ^ Ibid. 321. In Delondre v. Sliaw, 2 D'Almaine ?;. Boosey, 1 Y. & C. Exoh. Sim. 237, decided in 1828, Vice-Cliancel- 288 ; Bentley v. Foster, 10 Sim. 320 ; lor Sliadwell said : " Tlie court does not Chappell V. Purday, 4 Y. & C. Exch. protect the copyright of a foreigner." 485. In the case last cited, the copy- But this case had no connection with right was defeated by a prior publica- the law of copyriglit, and the above tion of the work abroad; but Lord was a mere remark carelessly made. Abinger said, that " a foreigner who is Moreover, in Bentley v. Foster, 10 Sim. the author of a work unpublished in 329, decided in 1839, the same judge did France may coram unicate his right to not hesitate to declare that a foreign au- a British subject." Ibid. 495. thor who gave " the British public the 2 5 C. B. 860. advantage of his industry and knowl- 8 13 Q. B. 267. See also Ollendorff edge," by first publishing his work in V. Black, 4 De Q. & Sm. 209 ; Buxton England, was entitled to the protection V. James, 5 Id. 80. of the copyright statutes. 222 THE LAW OF COPYRIGHT AND PLATEIGHT. title upon a British subject.^ " Our opinion," said Baron Pollock, "is that the legislature must be considered prima facie to mean to legislate for its own subjects, or those who owe obedience to its laws ; and, consequently, that the acts apply prima facie to British subjects only in some sense of that term which would include subj'ects by birth or residence being authors ; and the context or subject-matter of the stat- utes does not call upon us to put a different Construction upon them. The object of the legislature clearly is not to encourage the importation of foreign books and their first publication in England as a benefit to this country ; but to promote the culti- vation of the intellect of its own subjects." ^ This judgment was followed, in Boosey v. Jefferys, by the Court of Exchequer, whose decision was overruled by the Ex- chequer Chamber in 1861, when it was again declared that all authors, native or foreign, resident in England or abroad, were entitled to the protection of the law, on condition of first pub- lishing their works in England.* " We see no sufficient reason," said Lord Chief Justice Campbell, " for thinking that it was the intention of the legislature to exclude foreigners from the benefit of the acts passed for the protection of literary property. The British Parliament has no power, and cannot by any general words be supposed to intend, to legislate for aliens beyond British territory; but, for any thing within British territory, it has the power to legislate for aliens as well as natural-born subjects ; and, as we conceive, by general words must be presumed to do so. The monopoly which the statutes confer is to be enjoyed here, and the conditions which they require for the enjoyment of it are to be performed here. What is there to rebut the presumption that aliens are included ? The act 8 Anne, c. 19, which the others follow, is entitled 'An act for the encouragement of learning, by vesting the copies of printed books in the authors or purchasers of such copies.' Assuming that the legislature looked only to the enlightenment of the kingdom of Great Britain, without any general regard for the republic of letters, may it not be highly for the encour- 1 4 Exch. Rep. 145. expounded in this case was followed 'i Ibid. 156. in Buxton v. James, 5 De G. & Sm. 8 6 Exch. Kep. 580. The law as 80. IN WHOM COPYRIGHT WILL VEST. 223 agement of learning in this country, that foreigners should be induced to send their works composed abroad, either in English or in a foreign language, to be first published in London ? If Rapin or De Lolme had written their valuable works to illus- trate our history and constitution, without even visiting our shores, could it be intended that they should be debarred from publishing on their own account in England, or selling their copyright to an English bookseller ? . . . Tor these reasons, we think that if an alien residing in his own country were to compose a literary work there, and, continuing to reside there, without having before published his work anywhere, should cause it to be first published in England in his own name and on his own account, he would be an author within the meaning of our statutes for the encouragement of learning ; and that he might maintain an action in our courts against any one who, in this country, should pirate his work." ^ Foreigner Resident Abroad not Entitled to Copyright. — An ap- peal from this decision was taken to the House of Lords, where, in 1854, the authorities and principles involved were discussed with a thoroughness that makes Jefferys v. Boosey ^ the leading copyright case of this century, as Millar v. Taylor and Donald- son V. Becket were of the last. The leading question sub- mitted to the judges in attendance was, whether valid copyright was vested in the opera. La Sbnnamhula, which had been com- posed by Bellini, a foreigner, resident in Italy, and first pub- lished in England by his assignee, Boosey. The discussion turned on the meaning of the word author in the statute of of Anne. Six ^ of the eleven judges maintained that this was 1 6 Exch. Kep. 593, 596. others; and there is nothing, as it ^ 4 H. L. C. 815. seems to me, in any part of the acts to ' Erie, Williams, Coleridge, Maule, show that they are to be restricted. Wightman, Crompton. Indeed, those who reject this construc- "The general rule," said Mr. Jus- tion do not rely on any thing to be tice Maule, " is that words in an act of found in the terms of the acts ; nor is Parliament, and indeed in every other it pretended that, by construing the instrument, must be construed in their words in their proper sense, any con- ordinary sense, unless there is some- tradiction, incongruity, or absurdity thing to show plainly that they cannot will arise. But it is said that the inten- have been used, and so, in fact, were tion of the acts is restricted to the en- not used in that sense. Here the couragement of British industry and words to be construed are ' author, as- talent, and that this construction of the signee and assigns.' These words words would give an effect to the act plainly comprehend aliens as well as beyond that restricted intention. I 224 THE LAW OP COPYRIGHT AND PLATRIGHT. used in a general sense, embracing all authors, native and for- eign; that there was nothing in the statute to restrict its meaning to British subjects, and that such restriction would be against established principles of statutory construction, and contrary to the spirit of the act ; that the purpose of the leg- islature was to promote learning and literature in Great Britain, cannot bring myself to think that any such restriction was intended ; it cer- tainly is not expressed. But, even taking the intention of the acts to be as assumed, it would not, I think, be sufficient to take from the general words of the legislature their natural and large construction ; for British in- dustry and talent will be encouraged by conferring a copyright on a for- eigner first publishing in England ; in- dustry, by giving it occupation; and talent, by furnishing it with valuable information and means for cultivation. " It is also said that the legislature was dealing with British interests and legis- lating for British people. This is true ; but to give a copyright to a foreign au- thor publishing in this country is deal- ing with British interests and legislat- ing for British people. Some parts of the acts, it is said, though expressed generally, must be construed with a restriction to this country. And this is true with respect to the extent of the sole liberty of printing conferred by the acts in general terms. But these words are, witli respect to their opera- tion, necessarily confined to the do- minions within which the legislature had the power of conferring such lib- erty ; and the words prohibiting im- portation show that the framers of tlie acts had this construction distinctly in view. But this consideration has no operation with respect to the persons on whom the sole liberty is conferred. The words ' author, assignee, and as- signs ' naturally comprehend aliens ; and the legislature is not denied to have had the right and power of con- ferring the sole liberty on tliem if it thought fit. In my opinion, therefore, the acts confer a copyright on a foreign author, or his assignee, first publishing in England. To hold otherwise, would, I think, be contrary to the plain mean- ing of the acts, and would be a most inconvenient restriction of the rule, which, in personal matters, places an alien in the same situation as a natural- born subject." 4 H. L. C. 895. " As to the intention of the legis- lature," said Mr. Justice Erie, " to ex- clude alien authors from the rights of authors in England, because it is in- tended to encourage learning, and to induce learned men to write useful books, the recited intention leads me to an opposite construction ; for learn- ing is encouraged by supplying the best information at the cheapest rate, and according to this view the learner should have free access to the advances in literature and science to be found in the useful books of learned men of for- eign nations, and I gather from the statute that this was its scope. It is not to be supposed that the legislature looked upon all foreign literature as bad, because of some pernicious writ- ings, or on all British productions as good, on account of some works of ex- cellence ; nor is it to be supposed that the legislature planned either to release British authors from a competition with aliens, or to restrict readers to a com- modity of British productions of infe- rior quality, at a higher price ; or that it intended to give to British authors of mediocrity a small premium, at the ex- pense of depriving British printers and booksellers of the profit of printing and selling works of excellence by aliens. If any such plan existed, the enactment contains no words for exe- cuting it. It provides for authors, which, in common acceptation, denotes authors of all countries ; author ex- pressing a relation to a work exclusive of country." Ibid. 878. IN WHOM COPYRIGHT WILL VEST. 225 and that this object was adyanced by encouraging foreign au- thors to send their works to England for first publication. Five judges 1 argued that, though foreigners were not expressly ex- cluded from the privileges of the statute, a British legislature, dealing witli British interests, must be presumed to have leg- islated for British subjects and for the encouragement of native authors alone. Lord St. Leonards and Lord Brougham, who advised their peers, followed the minority of the judges. The House of Lords adopted the same views ; and, in pronouncing the most important copyright decision since Lord Mansfield's ' time, held that English copyright would not vest in the work of a foreign author resident abroad.^ 1 Cranworth, Jervis, Pollock, Parke, Anderson. Lord Chancellor Cranwcffth said : — " The substantial question is, whether, under the term author, we are to understand the legislature as referring to British authors only, or to have contemplated all authors of every nation. My opinion is, that the statute must be construed as referring to Brit- ish authors only. Prima facie the legislature of this country must be taken to make laws for its own subjects exclusively, and where, as in the statute now under consideration, an exclusive privilege is given to a particular class at the expense of the rest of her Maj- esty's subjects, the object of giving that privilege must be taken to have been a national object, and the privileged class to be confined to a portion of that community, for the general advantage of which the enactment is made. When I say tliat the legislature must prima facie be taken to legislate only for its own subjects, I must be taken to include under the word subjects all persons who are within the Queen's dominions, and who thus owe to her a temporary allegiance. I do not doubt but that a foreigner resident here, and composing and publishing a book here, is an author within the meaning of the statute ; he is within its words and spirit. I go further ; I think that if a foreigner, having composed, but not having published, a work abroad, were to come to this country, and, the week or day after his arrival, were to print and publish it here, he would be with- in the protection of the statute. This would be so if he had composed the work after his arrival in this country, and I do not think any question can be raised as to when and where he composed it. So long as a literary work remains unpublished at all, it has no existence, except in the mind of its author, or in the papers in which he, for his own convenience, may have embodied it. Copyright, defined to mean the exclusive right of multiply- ing copies, commences at the instant of publication ; and if the author is at that time in England, and while here he first prints and publishes his work, he is, I apprehend, an author, within the meaning of the statute; even though he should have come here solely with a view to the publication. ... If publication, which is (so to say ) the overt act establishing author- ship, takes place here, the author is then a British author, wherever he may, in fact, have composed his work. But if at the time when copyright com- mences by publication, the foreign au- thor is not in this country, he is not, in my opinion, a person whose interests the statute meant to protect." 4 H. L. C. 954, 955. ■* Followed in Novello v. James, 5 De G. M. & G. 876. 15 226 THE LAW OF COPYRIGHT AND PLATRIGHT. The Law Criticiaed. — This, therefore, must be regarded as the law of England, until it shall be changed by a tribunal of equal authority to that by which it was declared. But the judgment is indefensible. It was in opposition to the opinions of a majority of the judges, and was against the current of authorities. It was not less contrary to sound principles and established rules of construction. The word author is used in the statute in a general sense, and there is nothing to show that the legislature intended that its meaning should be re- stricted to native authors. The primary object of the act was the advancement of learning in Great Britain, which Parlia- ment aimed to effect by encouraging the first publication there of literary works ; thus securing to the British public the ad- vantages arising therefrom. The protection extended to authors is but a means to this end, which is equally promoted whether the works published are those of native or foreign authors, and whether the author be at Calais or at Dover. " The act," said Lord Westbury, " is auxiliary to the advancement of learning in this country. The real condition of obtaining its advan- tages is the first publication by the author of his work in the United Kingdom. Nothing renders necessary his bodily pres- ence here at the time ; and I find it impossible to discover any reason why it should be required, or what it can add to the merit of the first publication. It was asked, in Jefferys V. Boosey, why should the act (meaning the statute of Anne) be supposed to have been passed for the benefit of foreign authors ? But if the like question be repeated with reference to the present act, the answer is, in the language of the preamble, that the act is intended ' to afford greater encouragement to the production of literary works of lasting benefit to the world,' a purpose which has no limitation of person or place. But the act secures a special benefit to British subjects by promoting the advancement of learning in this country, which the act contemplates as the result of encouraging all authors to resort to the United Kingdom for the first publication of their works. The benefit of the foreign author is incidental only to the benefit of the British public. Certainly the obli- gation lies on those who would give the term author a IN WHOM COPYRIGHT WILL TEST. 227 restricted signification to find in the statute the reasons for so doing." ^ The judges who maintained that an alien residing abroad was not within the purview of the statute conceded that valid copyright would vest in the work of a foreign author, provided he were in England at the time of publication. It was perti- nently asked, by those who rightly thought this to be a fanciful distinction, what the English people, or the cause of learning in Great Britain, would gain by its observance, and why the law gave copyright to a foreigner staying for a day at Dover, but denied it to him if he stopped at Calais and sent his manu- script to London. As long as the lower courts are governed by the authority of JefiFerys v. Boosey, a foreign author, resi- dent abroad, who publishes in Great Britain, has no protection there against piracy ; but, should the direct issue come again before the highest judicial tribunal of Great Britain, there is good reason for believing that the judgment of 1854 will be reversed, and the protection of English law extended to every author, wherever or in whatever language he may write, who gives the British nation the benefit of the first publication of his work. Indeed, in 1868, when Routledge v. Low was be- fore the House of Lords, although the direct issue did not arise, Lord Chancellor Cairns and Lord Westbury expressed the opinion that Jefferys v. Boosey, which was decided under the act of Anne, is not a binding authority in the construction of the present statute ; and that the latter extends protection to every author, native or foreign, who first publishes in the United Kingdom, wherever he may then be resident.^ ' Routledge v. Low, Law Kep. 3 world. And accepting the decision of H. L. 118. this House as to the construction of ^2 "It is impossible,'' said the Lord the statute of Anne, it is, I think, im- Chancellor, " not to see that the ratio possible not to see that the present decidendi in that case [Jefferys u. statute would be incompatible with a Boosey] proceeded mainly, if not ex- policy so narrow as that expressed in clusively, on the wording of the pre- the statute of Anne." Law Rep. 3 amble of the statute of Anne, and on a H. L. 111. consideration of the general character " The case of Jefferys v. Boosey,'' and scope of the legislation of Great said Lord Westbury, " is a decision Britain at that period. The present which is attached to and depends on statute has repealed that act and pro- the particular statute of wliich it was fesses to aim at affording greater en- the exponent ; and as that statute has couragement to the production of liter- been repealed, and is now replaced by ary works of lasting benefit to the another act, with different enactments 228 THE LAW OP COPYRIGHT AND PLAYRIGHT. " In my opinion," said the Lord Chancellor, " the protection is given to every author who publishes in the United Kingdom, wheresoever that author may be resident, or of whatever state he may be the subject. The intention of the act is to obtain a benefit for the people of this country, by the publication to them of works of learning, of utility, of amusement. This benefit is obtained, in the opinion of the legislature, by offering a certain amount of protection to the author, thereby inducing him to publish his work here. This is, or may be, a benefit to the author of the work ; but it is a benefit given, not for the sake of the author of the work, but for the sake of those to whom the work is communicated. The aim of the legislature is to increase the common stock of the literature of the coun- try ; and if that stock can be increased by the publication for the first time here of a new and valuable work composed by an alien, who never has been in the country, I see nothing in the wording of the act which prevents, nothing in the policy of the act which should prevent, and every thing in the professed object of the act, and in its wider and general provisions, which should entitle, such a person to the protection of the act, in return and compensation for the addition he has made to the literature of the country. My Lords, I am glad to be able to entertain no doubt that a construction of the act so consist- ent with a wise and liberal policy is the proper construction to be placed upon it." ^ expressed in different language, the grounds can he found for giving the case of Jefferys v. Boosey is not a bind- term a limited signification. It is pro- ing authority in the exposition of this posed to construe the act as if it had latter statute." Ibid. 117. declared in terms that the protection But Lord Cranworth did not " as at it affords sliall extend to such authors present advised, see any difference be- only as are natural-born subjects, or tween the two statutes, so far as relates foreigners who may be within the to the subject of the residence of for- allegiance of the Queen on the day of eign authors." Ibid. 114. And Lord publication. But there is no such en- Chelmsford was of the same opinion, actment in express terms, and no part Ibid. 116. of the act has been pointed out as re- 1 Law Kep. 3 H. L. 110. Lord quiring that such a construction should Westbury said : " The question then be adopted. The act appears to have arises, who are included in the term been dictated by a wise and liberal authors. The word is used in the spirit ; and in the same spirit it should statute without limitation or restric- be interpreted, adhering of course to tion. It must, therefore, include every the settled rules of legal construction, person who shall be an author, unless The preamble is, in my opinion, quite from the rest of the statute sufficient inconsistent with the conclusion that IN WHOM COPYRIGHT WILL VEST. 229 Foreigner within British Dominions may Secure Copyright. — It was conceded in Jefferys v. Boosey, and expressly held by the House of Lords in Routledge v. Low,^ that an alien author may acquire copyright by first publishing in the United Kingdom, provided he be within the British dominions at the time of pub- lication. It matters not where he has composed his work, nor whether he goes into the realm with the sole purpose of being there at the time of publication, and leaves when publication has taken place.^ No definite period has been named during which he shall remain on British soil. His presence does not seem to be required before or after publication, but merely " at the time of publication." As publication takes place on one day, it may be assunSed that the requirements of the law will be met if the author be within the realm during the same period.^ It is not necessary that he shall be at the place of publication or in England. Thousands of miles may separate him and his publishers. On the day his" book is published in the United Kingdom, he may be anywhere within the British dominions, at any point in Canada between the two oceans, in India, in the most distant English colony, at any spot over which waves the British flag. But the author must be there in person. He cannot appear by proxy, — cannot send his as- signee, his publisher, or his agent. Why the majesty of the law demands the bodily presence of the author, why copyright will vest if the author tarry for ten hours on one side of the St. Lawrence, or on one side of an imaginary line, but not if he the protection given by the statute Low, the fact was clearly before the was intended to be confined to the court that Miss Cummins, an American works of British authors. On the con- author, whose worl£ was published in trary, it seems to contain an invitation London, had gone to Montreal, Canada, to men of learning in every country in accordance with an arrangement to make the United Kingdom the place with her English publishers ; and was of first publication of their works ; and merely staying there temporarily for an extended term of copyright through- the express purpose of acquiring copy- out the whole of the British dominions right. is the reward of their so doing." Ibid. " " It seems, indeed, to be admitted, 118. that if a foreign author comes to Eng- 1 Law Rep. 8 H. L. 100. See also land for however short a time, and first Low V. Ward, Law Rep. 6 Eq. 415 ; publishes his work here, he is entitled Boucicault w. Delafield, 1 Hem. & M. to the benefit of the statute." Wight- 597. man, J., JeflTerys u. Boosey, 4 H. L. ^ See remarks of Lord Cranworth, C. 887. ante, p. 225, note 1. In Routledge o. 230 THE LAW OP COPYRIGHT AND PLATBIGHT. is on the other, is a mystery as unfathomable as the distinction is fanciful. British Subject Resident Abroad Entitled to Copyright. — It appears to be conceded, although the question has not been judicially determined, that a British subject, while resident abroad, may acquire copyright by first publishing in his own country. " It seems not to be denied," said Lord St. Leonards, " that an English author may reside abroad, and yet may have his rights as an English author, upon publication here. Why ? Because he owes a natural allegiance, which he cannot shake off." 1 Law Summarized. — The law concerning the nativity and residence of the author may now be given succinctly. English copyright will not vest in the work of an alien who is not within the British dominions at the time of publication. A foreign author may acquire copyright in England on three con- ditions : 1, Publicatien must be in the United Kingdom ; 2, there must have been no previous publication ; 3, the author must be at the time of publication within the British dominions.^ A native author must comply with the first two of these requisites ; but it is immaterial whether he is within or without the British dominions at the time of publication. Works of Art. — Sculpture, models, and casts are governed by a special statute ; ^ and so are prints and engravings.* But these statutes, like those relating to literary compositions, make no distinction between native and foreign authors.^ The act 1 JefEerys v. Boosey, 4 H. L. C. if Gibbon had " established himself at 985. " If Mr. Gibbon," said Lord Lausanne, without any animus revert- Chief Justice Campbell, " after writ- endi," he would not have lost his ing the later volumes of his Decline rights as a British subject. JefEerys v. and Fall, at Lausanne, had continued Boosey, 4 H. L. C. 822. to reside there, can it be doubted that, " For the extent of the United while domiciled there, he might have Kingdom and of the British domin- caused tliem to be published in London, ions, see post, p. 298. acquiring the same rights as an author » 54 Geo. III. c. 56. as if he had returned to this country; * 8 Geo. II. c. 13 ; 7 Geo. III. c. 38 ; or that he might have sold the copy- 17 Geo. III. c. 57. right to another residing in Lausanne, ^ In Page v.' Townsend, decided in who might have published as the pur- 1832, Shadwell, V. C, held, concern- chaser in London, or assigned the right ing prints and engravings, that " the to a London bookseller ■? " Boosey v. object of the legislature was to protect Jefferys, 6 Exch. Eep. 596. And Lord those works which were designed, en- Chancellor Cranworth intimated that graved, etched or worked in Great Brit- IN WHOM COPYRIGHT WILL VEST. 231 relating to paintings, drawings, and photographs, grants copy- right to an " author, being a British subject or resident within the dominions of the crown." ^ Tliis seems to exclude a for- eign author who resides abroad, but not one who may be resi- dent within the British dominions. Rights of Foreigners in the United States. No Copyright in Work of Foreign Author. — In this country, the question whether a foreigner is entitled to copyright is free from n^uch of the doubt and difficulty which have surrounded it in England. Prom the first statute, enacted in 1790, to that passed in 1870, Congress has granted copyright to such author only as may be " a citizen of the United States or resident therein," and has expressly declared that no protection shall be extended to the works of a foreigner. The statutes in force before 1870 completely excluded foreign authors from all priv- ileges. There is no reason for believing that Congress, in passing the act now in force, deliberately intended to make any change in the law in this respect. But this statute cannot be construed to prevent a resident owner from securing valid copyright for certain works of art produced by foreign authors. Statutory Prohibition not Extended to certain Works of Art. — Section 4952 of the Revised Statutes provides that " any citizen of the United States or resident therein, who shall be the author, inventor, designer, or proprietor of any book, map, chart, drama- tic or musical composition, engraving, cut, print, or photograph or negative thereof, or of a painting, drawing, chromo, statue, statuary, and of models or designs intended to be perfected as works of the fine arts, and the executors, administrators, or assigns of any such person," shall be entitled to secure copyright therein. There is nothing in this section to prevent a citizen or a resident of the United States from acquiring copyright in a work ain, and not those which were designed, is not an authority against the doctrine engraved, etched or worked abroad that tlie foreigner might have acquired and only published in Great Britain." copyright if his productions had been 5 Sim. 404. In this case the prints printed and published in England. had been struck off abroad, and only * 25 & 26 Vict, c. 68, s. 1. published in England. The decision 232 THE LAW OP COPYRIGHT AND PLAYEIGHT. which he has bought from a foreign author ; for a " proprietor " is empowered to secure copyright, and in such case no condition or requirement is prescribed as to the nativity or residence of the author. The part of the statute which excludes from protection the works of foreign authors is section 4971 ; which declares that " nothing in this chapter shall be construed to prohibit the printing, publishing, importation, or sale of any book, map, chart, dramatic or musical composition, print, cut, engraving, or photograph, written, composed, or made by any person not a citizen of the United States nor resident therein." It is clear that no protection can be secured for any work here named which is the production of a person wlio is not a citizen or a resident of the United States.^ But there is no mention in this section of paintings, drawings, chromos, statues, statu- ary, models, or designs ; and there is nothing in the statute to prevent a resident owner of any such production from securing a valid copyright therein, though it be the work of a foreigner. Translations, Abridgments, Dramatizations. — There is no rea- sonable doubt that valid copyright will vest in a translation, abridgment, or dramatization made by a citizen or resident from the work of a foreign author. The law recognizes such productions as proper subjects of copyright ; and, as the copy- ;:ight does not extend to the original, it matters not that this is the work of a foreign author. But, in such case, the law pro- tects each author only in his own production. The original, being common property, may be used by any person, without infringing the copyright in a protected abridgment, translation, or dramatization.^ Joint Native and Foreign Authors. — In the case of a work of which a citizen and a foreigner are joint authors, there is nothing to prevent a valid copyright from vesting in that part of which the former is the author, provided this can be sepa- rated from that written by the foreign author. If the parts cannot be separated, it would seem that copyright will not vest in any of it. 1 Carey v. Collier, 56 Niles Reg. ^ Shook v. Rankin, 6 Biss. 477; 262 ; Keene u. Wheatley, 9 Am. Law Shook v. Rankin, 3 Cent. Law Jour. Reg. 33 ; Boucicault v. Wood, 2 Biss. 210 ; Benn v. LeClercq, 18 Int. Rev 34. Rec. 94. IN WHOM COPYRIGHT WILL TEST. 233 Meaning of Resident. — The judicial Construction given to the word resident, as used in the copyright statute, is that it refers to a person who is residing in the United States with the intention of making this country his place of permanent abode. A formal declaration of such intention is not necessary, nor is any definite period of time indicated as requisite to constitute such residence. Nor is it essential that such person shall be a householder. He may be a lodger or boarder. The question is determined by the state of mind, the intention, of the person at the time he has his abode here ; and by his acts, as far as they show what that intention was. If while here he intends to stay and make this his home, he becomes during the continuance of that intention a resident within the meaning of the law, though afterward he may change his mind, and return to his native land. How long such intention shall continue, the courts have not said ; but, if it exist bona fide at the time of recording the title, valid copyright vests, and will not be defeated by any subsequent acts or change of mind on the part of the claimant. On the other hand, if a foreign author comes to this country in- tending to stay temporarily, although he actually remains many years, he is a mere sojourner, and does not acquire a residence within the meaning of the act.^ To determine thus the inten- tion in the mind of a person may be attended with difficulty, and even with fraud. It is a question of fact, on whose deter- mination 'the law will depend.^ In Boucicault v. Wood,^ it appeared that the plaintiff, who was a native of Great Britain, had been in the United States from 1853 to 1861, when he returned to the former coun- try. During this period, he had copyrighted certain plays which he had written. The defence was that the plaintiff, being a foreigner, was not entitled to copyright in this country. ' Boucicault v. Wood, 2 Bise 34. that he intended to return to that 2 In Carey v. Collier, 56 Niles Reg. country to reside. Mr. Justice Belts 262, decided by the United States Cir- said that " it was evident that a man cuit Court in 1839, it was held that who was a mere transient visitant, Capt. Marryatt, who had filed a dec- whose family, business intentions and laration of his intention to become a relations were all abroad, could not be citizen of the United States, did not considered a resident ; and the filing a thereby become a resident, for the declaration of his intention to become reason that the evidence showed that a citizen could not make him one." he was still a subject of Great Britain » Supra. in whose navy he was an officer, and 234 THE LAW OP COPYRIGHT AND PLAYRIGHT. The jury was directed to find whether Boucicault, when he entered his copyright, intended to make this country his home. It was found tliat such intention then existed in his mind, and accordingly the copyright was held to be valid. The law on this point was expounded by Mr. Justice Drummond as follows : " No person is entitled to the benefit of these acts unless he be, at the time of filing the title, a citizen of the United States, or a resident thereim Residence ordinarily means domicile, or the continuance of a man in a place, having his home there. It is not necessary that he should be the occupant of his own house ; he may be a boarder or a lodger in the house of another. The main question is the intention with which he is staying in a particular place. In order to constitute residence, it is necessary that a man should go to a place, and take up his abode there with the intention of re- maining, making it his home. If he does that, then he is a resident of that place. This question of residence is not to be determined by the length of time that the person may remain in a particular place. For example, a man may go into a place and take up his abode there with the intention of remain- ing, and if so, he becomes a resident there, although he may afterwards change his mind, and within a short time remove. So if a person goes to a place with the intention of remaining for a limited time, although iix point of fact he may remain for a year or more, still this does not cons'titute him a resident. So it is his intention accompanied with his acts, and not the lapse of time, which determines the question of residence. The plaintiff came to this country in 1853, and remained, pursuing his profession as an actor and author until 1861 ; and if at the time of filing the title he had his abode in this country with the intention of remaining permanently, he was a resident within the meaning of the law, 'even though he afterwards changed his mind and returned to England. If, however, he was a sojourner, a transient person, or at the time of this filing had the intention to return to England, he is not entitled to the protection of these laws." ^ Immaterial where Work is Produced or Citizen Author Resides. — No conditions are prescribed as to where the work shall be 1 2 Bis3. 38 ; s. 0. 7 Am. Law Eeg. n. s. 539, 545. IN WHOM COPYRIGHT WILL VEST. 235 produced. And it is obviously immaterial whether it has been written in or out of the country, provided the author comes within the requirements of the law as to citizenship or resi- dence. Nor, if the author be a citizen of the United States, can it be material whether he is or is not resident in the country when his book is published and the copyright entered. Whether the book must be printed in the United States is a question which is elsewhere considered.^ Foreign Assignee of Native Author. — The question may arise whether a foreign assignee of a native author is entitled to the privileges of the statute. On this point there is no judicial light. The act confers copyright upon an author or owner of a book who is a citizen of the United States or resident therein, and upon the assignee of such author or owner. It does not prescribe that the assignee shall be a citizen or a resident. Nor does its general spirit or object demand that such restric- tion shall be made. The pyrpose of the legislature is to foster native literature by encouraging native authors. This object is secured by protecting the works of such authors ; and is in no degree defeated by permitting them to transfer their pro- ductions, either before or after publication, to foreign buyers. Indeed, the value of the property to the author is increased by such enlarged facilities for disposing of it. It will hardly be contended that, when a native author has published his work and secured statutory copyright, such copyright will become void by being transferred to a foreigner. The principle is the same when the author assigns his work before publication, and the assignee seeks to secure the copyright in his own name. In neither case is the object of the statute promoted by exclud- ing a foreign assignee from its privileges. It is foreign author- ship, not ownership, which the law refuses to protect.^ 1 See post, p. 296. dent. But the act does not say that a 2 To this construction there is an proprietor who is not a citizen or resi- appatent, but not a real, objection. The dent shall not have copyright. On the statute, as has been seen, declares that contrary, its privileges are expressly the " proprietor " of a book who is a extended to an assignee without re- citizen of the United States, or resident striction as to citizenship or residence ; therein, shall be entitled to copyright, and this view, as shown in the text. Now, it is clear that an assignee is a is in entire harmony with the spirit proprietor, and, therefore, it might be and purpose of the law. It is true urged must also be a citizen or resi- that this construction practically annuls 236 the law op copyright and platright. Author and Assignee. The various statutes of England and the United States have declared that the author of a literary work, or his assignee, shall have copyright therein for a named term from the time of first publication. It is also provided by the existing statutes that the copyright in a book published after the death of its author may be secured in England by the owner of the manu- script,^ and in the United States by the executors and adminis- trators of the author.2 It now becomes necessary to consider who may be an author within the meaning of the law, and what persons may be assignees entitled to copyright. Who is Author. — A literary production is primarily the property of the author who has created it; and, until he has parted with it, he alone is entitled to the privileges given by the statute. When a person has conceived the design of a work, and has employed others to execute it, the creation of the work may be so far due to his mind as to make him the author.^ But he is not an author who " merely suggests the subject, and has no share in the design or execution of the work."* When the same work is the basis of two or more different copyrights, he is the author, within the meaning of the statute, who has produced that for which the copyright is granted. Thus, the author of a translation, dramatization, or abridgment, is the person who has translated, dramatized, or abridged a work of which he may or may not be the author.^ So, he who arranges music for any instrument is the author of such arrangement, though he may not be the composer of the music* In like manner, a person who has made and arranged selections from other works is the author of the compilation. the restrietiye force which the words, For what purpose it was inserted in " citizen of the United States or resi- this is not apparent. dent therein," might otherwise have ' 5 & 6 Vict. c. 45, s. 3. on a "proprietor." But there is no ^ U. S. Rev. St. s. 4952. SeeFolsom reason to believe that Congress in- v. Marsh, 2 Story, 100. tended to make such limitation ; and,. s Hatton v. Kean, 7 C. B. n. s. 268. whether it did or not, the section can- * Shepherd v. Conquest, 17 C. B. not rightly be construed to have that 427, 445. effect. ' See ante, p. 158. The word proprietor was not used •> Wood v. Boosey, Law Rep. 2 Q. B. in this connection in any statute be- 840, on ap. 3 Id. 223 ; Boosey v. Fairlie, fore the existing one passed in 1870. 7 Ch. D. 301, 309. IN WHOM COPYRIGHT WILL VEST. 237 But ill these cases authorship alone does not create a title to copyright. The maker of such productions must have a right so to use the originals. Joint Authors. — Copyright will vest in two or more joint authors of a work, who will thereby become owners in common of the undivided property.^ " There may be a difficulty in some cases," said Mr. Justice Smith, " in determining who are joint authors. But I take it that, if two persons agree to write a piece, there being an original joint design, and the co-opera- tion of the two in carrying out that joint design, there can be no difficulty in saying that they are joint authors of the work, though one may do a larger share of it than the other." ^^ A person who had merely made certain alterations in a play without the co-operation of the author was held not to be a joint author. " I fail to discover any evidence," said Keating, J., " that there was any co-operation of the two in the design of this piece, or in its execution, or in any improvements either in the plot or the general structure. All the plaintiff claims to have done is to vary some of the dialogue so as to make it more suitable for his company or for his audience. If the plaintiff and the author had agreed together to rearrange the plot, and so to produce a more attractive piece out of the qriginal materials, possibly that might have made them joint authors of the whole. So, if two persons undertake jointly to write a play, agreeing in the general outline and design, and sharing the labor of working it out, each would be contributing to the whole production, and they might be said to be joint authors of it. But, to constitute joint authorship, there must be a common design. Nothing of the sort appears here. The plaintiif made mere additions to a complete piece, which did not in themselves amount to a dramatic piece, but were in- tended only to make the play more attractive to the audience."^ 1 Maclean I). Moody, 20 Sc.Sess.Cas. here," said Smith, J., "that there 2dser. 1164 ; Leviw. liatley, infia; Mar- was any original joint design. Wilks zials V. Gibbons, Law Rep. 9 Ch. 518. was employed by the plaintiff to write As to owners in common of a copyright, the play. Wilks invented the plot see Carter v. Bailey, 64 Me. 458. and wrote the whole dialogue com- 2 Levi 17. Rutley, Law Kep. 6 C. P. plete. The plaintiff and some mem- 523 530. ^^^ "f his company thought the play 8 Ibid. 629. "It is not pretended -might be improved. Accordingly, the 238 THE. LAW OP COPYRIGHT AND PLATRIGHT. Who is Assignee. — An author who has not parted with the property in his production is empowered by the statute to secure copyright in his own name ; and at any time afterward to transfer it to an assignee, who thereby becomes vested with the same right. But the meaning of assignee, as used in the act, is not restricted to an assignee of the privilege created by the statute. It embraces also a person to whom an author has transferred his unpublished work, before statutory copyright has attached to it. In other words, statutory copyright will vest ah initio in an assignee, as well as in the author himself. Both the English ^ and the American statutes ^ expressly recog- nize the right of the " proprietor " of an unpublished work to enter the copyright in his own name ; and the law has been repeatedly construed to this effect by the courts.^ plaintiff either himself wrote or procured some one else to write for him n, new scene, and made several other altera- tions in the incidents and in the dia- logue ; and the question is whether that constituted the plaintiff a joint author of the play with Wilks. The plot re- mains. The additions do not disturb the drama composed by Wilks ; they were made for the mere purpose of im- proving or touching up some of its parts. It would be strange indeed, if not un- just, if the author's rights could be thus merged into a joint authorship with another. There are probably very few instances, — at least in modern times, — of a play being put upon the stage without some alteration by the mana- ger. It is, no doubt, difficult to draw the line; but it never could be sug- gested that, when an author submits his manuscript to a friend, and the friend makes alterations and improve- ments, the latter would thereby become a joint author of the work. If, when the piece was brought to the plaintiff, he had said to Wilks, ' This thing re- quires to be remodelled, and you and I will do it together,' and Wilks had assented, possibly a case of joint authorship miglit have been set up. But the evidence here falls very short of that." Levy v. Kutley, Law Rep. 6 C. P. 530. See also Shelley v. Ross, Ibid. 631, note; Delf <;. Delamotte, 3 Jur. N. 8. 933. I 5 & 6 Vict. c. 45, B. 3. 3 U. S. Rev. St. s. 4952 ; also, stat- ute of 1831, s. 4; 4 U. S. St. at L. 436. s Cocks V. Purday, 5 C. B. 860; Polsom V. Marsh, 2 Story, 100 ; Pulte i>. Derby, 6 McLean, 328; Little o. Gould, 2 Blatchf. 165, 362; Cowen v. Banks, 24 How. Pr. 72 ; Paige v. Banks, 7 Blatchf. 152, on ap. 13 Wall. 608; Lawrence v. Dana, 2 Am. L. T. R. N. s. 402. In Jefferys v. Boosey, Mr. Justice Crompton said : " The statute of Anne clearly contemplates a first publication by the assignee as suffi- cient to give him the monopoly — and, in point of fact, I believe that nothing is more common than that the book- sellers should take an assignment of the copyright, and publish themselves as proprietors, so as to vest tlie monop- oly in them during the term. The words of the statute, that the author or his assignee shall have the sole liberty, &c., from the day of tlie first publica- tion, seem to me to show that the assignee may himself publish, so as to acquire the copyright." 4 H. L. C. 853. In D'Almaine v. Boosey, where it appeared that the plaintiff had pub- lished and copyrighted a musical com- position which he had bought in manu- script from a foreign author, the court IN WHOM COPYRIGHT WILL VEST. 239 Owner of Manuscript may Secure Copyright. — An assignee, therefore, in the meaning of the statute, may be a person who has acquired his title either before or after the copyright has been secured ; that is, either before or after tlie work has been published. Here is presented a distinction of importance. The literary property which an author has in his manuscript exists by the common law. The common-law right is lost when the manuscript is published. Statutory copyright begins with publication. There can be no common-law property in a published, and no statutory copyright in an unpublished, book. When, therefore, the author secures to himself the copyright, and assigns it after publication, what is transferred is the statutory copyright. But, when he disposes of his prop- erty in an unpublished work, he does not assign the statutory copyright ; because that does not then exist, and hence cannot be assigned.^ Nor can it be said that in this case it is the inchoate copyright, or merely the right to secure the copyright, which is transferred. What is passed is the common-law said : " If he is the owner of the work, it makes no difierence whether he com- posed it himself or bought it from a foreigner.'^ 4 Y. & C. Exch. 800. This was true on the assumption that tlie status of a foreign author under the copyriglit law was the same as that of an Englishman. But the doctrine was afterward aflSrmed that copyright ■would not vest in the work of an alien, except on certain conditions. In Cumberland v. Planch^, 1 Ad. & El. 580, it was expressly held that an assignee is not necessarily an assignee of the privilege created by the statute. It appeared that the defendant had sold a farce, of which he was the author, to the plaintiff, who published it and secured the copyright. Afterward was passed the 3 & 4 Will. IV. c. 15, which gave for the first time, to the author or his assignee, the exclusive right to represent a dramatic composi- tion. This right had not been created when the transfer was made. But the court held that the plaintiff had become the absolute owner of the play, and was entitled, as such owner, to secure the right of representation conferred by the statute of William. "We cannot - therefore," remarked Littledale, J., " say that ' assignee ' means the as- signee of the privilege created by the act." Ibid. 587. ' Colburn v, Buncombe, 9 Sim. 151 ; Sweet V. Shaw, 3 Jur. 217; Pulte v. Derby, 5 McLean, 328; Lawrence v. Dana, 2 Am. L. T. K. N. s. 402. This view of the law was expressed by Mr. Justice Wightman in Jefferys v. Boosey. " The statute [8 Anne, c. 19] gives the author or his assignee copy- right, properly so called, from the time of the first publication in England. From the expressions used in it, there is a recognition of proprietors of lite- rary works, independently of the stat- ute, and it enables the author to give to an assignee the same power to obtain a copyright that "he possessed himself; but neither he nor his assignee would be entitled to copyright until publica- tion. Whatever right the author may have possessed before publication must have been at common law." 4 H. L. C. 886. 240 THE LAW OF COPYRIGHT AND PLATRIGHT. property in the manuscript. Of this the assignee, unless the assignment be of a qualified interest, becomes the absolute owner. He succeeds to all the rights which were vested in the author. He acquires the right not only to publish and to secure the statutory copyright, but also to withhold from publi- cation, or to publish without securing, the copyright ; arid thus, if he wishes, to abandon his property to the public.^ In short, he becomes vested with all the rights of property which the common law recognizes in an unpublished composition, and which are more extensive than the right to secure statutory copyriglit. A person, then, who is an assignee at common law of the author's rights is recognized by the statute as an assignee entitled to secure copyright. Whether a person who has derived a title at common law is or is not an assignee, and whether such title is or is not valid, is to be determined by the common law, and not by the statute. Now, at common law, neither a written nor a formal assignment is necessary to make a person an assignee. The owner of an unpublished work may sell it,^ exchange it, or give it away ; ^ or it may be transferred by operation of law.* The ownership of the property may be lawfully acquired in any of- these ways ; and there is no reason why a person who thus derives title from the author may not be an assignee in a broad and proper meaning of the word. The essential qualities of an assignee are found in an owner who has derived a lawful title from the autlior, and such owner is properly within the meaning of assignee as used in the statute. Indeed, this comprehensive meaning is expressly given to the word by the existing English statute, which declares that " the word ' assigns ' shall be construed to mean and include every person in whom the interest of an author in copyright shall be vested, whether derived from such author before or after the publication of any book, and whether acquired by sale, gift, bequest, or by operation of law, or other- 1 See language of Blatchford, J., s Lawrence ». Dana, 2 Am. L. T. Paige V. Banks, 7 Blatchf. 166, quoted E. n. s. 402. post 329, note 2. i Little v. Gould, 2 Blatchf. 165, 862 j 2 Parton v. Prang, 3 ClifE. 537. Folsom v. Marsh, 2 Story, 100. See ante, p. lOi, IN WHOM COPYRIGHT WILL VEST. 241 wise." 1 This language is clearly broad enough to make the meaning of " assign " as comprehensive as that of owner, and to enable any person who is the lawful owner of an unpublished work to secure statutory copyright therein.^ Congress has expressly given the same broad scope to the statute now in force, by enacting that the author or the proprietor of a book may obtain copyright.* Moreover, if it was necessary under the act of 1831 that a person who was not the author should show a title derived from the author, that requirement cannot be regarded as now existing. There is no reason why a person who is the owner of an unpublished manuscript or work of art which has been found, or otherwise brought to light, may not obtain a copyright therein, although the name of the author be unknown. Assuming the principles above explained to be correct, statutory copyright, either in England or in the United States, may be secured in the first instance not only by the author, but also by the owner of an unpublished work who has derived his title from the author ; and it is immaterial in what way, provided it be lawful by the common law, the owner has acquired the property in such unpublished work. In the United States, this doctrine in its full scope has neither been expressly affirmed nor denied by the courts ; but it is supported by the leading decisions in Little v. Gould,* and Lawrence v. Dana,^ both of which were rendered before all doubt concern- 1 5 & 6 Vict. c. 45, ». 2. to me to be implied in section 16 of the 2 Cocka u. Purday, 6 C. B. 860. statute [5 & 6 Vict. c. 46], whieli re- in Jefferys v. Boosey, Mr. Justice Erie quires the defendant, ' if the nature of expressed the opinion that the book- his defence be that the plaintiff in such seller who had obtained ancient raanu- action was not the author or first scripts " brought to light from unburied publisher of the book ' to give notice cities " would be entitled to secure of ' the name of the person whom he copyright therein. 4 H. L. C. 880. In alleges to have been the author or first Maclean v. Moody, Lord Deas said : publisher.' I think it is here assumed " A person may find a manuscript in that there may be cases in which, if his ancestor's repositories, or get a the plaintiff be 'the first publisher,' he gift of it, and publish it, and he may may be entitled to copyright, although be entitled to copyright, although he no author has been or can be named cannot tell who was the author, nor upon either side." 20 Sc. Sess. Cas. whether the author is living or dead. 2d ser. 1163. . . . That the first publisher may have ^ U. S. Rev. St. s. 4952. copyright in the work, although he * 2 Blatchf. 165, 362. cannot point out the author, appears * 2 Am. L. T. E. N. s. 402. 16 242 THE LAW OP COPYRIGHT AND PLATRIGHT. ing the law on this point was removed by the use of the word proprietor in the existing statute.^ Tlie English courts have conceded that copyright will vest ah initio in an assignee ; but they have held that statutory copyright can be assigned only by a writing, and have drawn no distinction between transfers made before and those made after publication.^ According to this doctrine, only an assignee who has derived his title by a written assignment would be entitled to secure copyright. The fallacy of this theory has already been shown to be the- false assumption, that the statute recognizes no other assignee than one to whom the statutory copyright has been transferred, and that this right can be assigned before it has any existence. The important fact has been overlooked, that, when an author disposes of an unpub- lished work, he does not convey any statutory copyright therein, because there is no statutory copyright to convey. The only rights which then exist, and which alone can be transferred, are common-law rights. When a person has acquired these rights from the author by any method recog- nized by the common law, whether by parol agreement or otherwise, he is the lawful owner of the unpublished work, and an assign within the meaning of the statute entitled to secure the copyright conferred by the statute. I have endeavored elsewhere to show more fully that tlie theory here criticised is contrary to sound principles and to the definition of assignee given by the statute of Victoria, and that in but one case ^ yet reported it has been applied to the construction of that statute.* The doctrine that copyright will vest, in the first instance, in the owner of a manuscript, is limited by the consideration that the author must be a person entitled to copyright. Thus, when the work of a foreigner is excluded from protection, neither the author nor his assignee can acquire valid copyright for it. A manuscript or a copyright may be owned by the govern- ment or a corporation as well as by an individual, and the I See post, p. 319, where it is main- 2 gge post, pp. 302-304. tained that the statute of the United ^ Leyland v. Stewart, 4 Ch. D. 419. States does not require an assignment * See post, pp. 304 et seq. to be in writing when the transfer is made before publication. IN WHOM COPYRIGHT WILL VEST. 243 rights of the government or corporation are governed by the same principles as those of an individual owner.i Eights op Employer and Author Employed. Assuming that the law is rightly expounded above, to the effect tliat copyright will vest ab initio in the owner of an unpublished production, it follows that any person may secure statutory copyright for a work which he has employed another to write. The produce of labor may become the property of him who has employed and paid the laborer. Literary labor is no exception to this universal rule. When an author is em- ployed on condition that what he produces shall belong to the employer, the absolute property in such production vests in the employer by virtue of such employment and by operation of law. This mode of acquiring property in an unpublished work is as lawful as any other, and such owner is as clearly entitled as any other owner of an unpublished work to secure the privi- leges granted by the statute. Indeed, if the law were other- wise, there would be no copyright in many works already published, and it would be often impracticable to secure copy- right for such works to be hereafter published. Thus, cyclo- pjedias, gazetteers, directories, maps, charts, photographs, &c., are in many instances produced by persons employed on the condition that the results of their labor shall belong to their employers ; and they are copyrighted and published as the property of such employers. Cyclopaedias and Periodicals in Great Britain. — In England, the owners of certain publications are expressly empowered to secure copyright in compositions which they have employed others to write. Section 18 of 5 & 6 Vict. c. 45, declares that when " the proprietor of any encyclopsedia, review, magazine, periodical work, or work published in a series of books or parts, or any book whatsoever," has employed and paid a person to prepare articles for any such publication on the terms that the copyright shall belong to the proprietor, the copyright shall vest in the proprietor, " who shall enjoy the same rights as if he 1 Little V. Gould, 2 Blatchf. 165, 362; Marzials v. Gibbons, Law Eep. 9 Ch. 518. See ante, pp. 161-164. 244 THE LAW OP COPYRIGHT AND PLAYBIGHT. were tlie actual author thereof, and shall have such term of copy- right therein as is given to the authors of books by this act." It is, however, provided that the author may, by " any contract, express or implied," reserve to himself the right to publish his production in separate form, and, in case of such reservation, he will be the owner of the copyright in the separate publication. The owner of any publication embraced within this section of the statute is thus expressly empowered to employ a person to write the whole or a part of it, and to acquire by virtue of the contract of employment either the absolute copyright in what is so written, or simply the right to use it in that special publication. Whether he acquires tlie one or the other of these rights will depend on the nature of the agreement, which need not be in writing nor in express words, but may be verbal and implied.* The copyright remains in the author, unless he has consented to part with it ; ^ but, in the absence of an express agreement, such consent may be implied from the attending circumstances.* If the absolute copyright vests in the owner. 1 Bishop of Hereford v. Griffin, 16 Sim. 190 ; Sweet v. Benning, 16 C. B. 459 ; Strahan v. Graham, 16 L. T. n. s. 87, on ap. 17 Id. 457. ^ Bishop of Hereford v. Griffin, supra; May hew v. Maxwell, 1 Johns. & H. 312; Smith v. Johnson, 4 Giff. 632; Strahan v. Graham, supra; Delf V. Delamotte, 3 Jur. n. s. 933. ' Sweet V. Benning, supra. The plaintiffs were publishers of The Jur- ist, and had employed various lawyers to prepare reports of cases for that periodical. Nothing was said as to the copyright. The Court of Common Fleas held that there must be pre- sumed an implied agreement that the copyright was to be the property of the employers. " It was urged," said Maule, J., " that these reports were not written 'on the terms that the copyright therein should belong to the proprietors ' of The Jurist, because there were no express words In the contract under which they were written, con- ferring upon them the right to the copy. But, tliough no express words to that effect are stated in this special case, I think, that, where a man em- ploys another to write an article, or to do any thing else for him, unless there is something in the surrounding cir- cumstances, or in the course of dealing between the parties, to require a differ- ent construction, in the absence of a special agreement to the contrary, it is to be understood that the writing or other thing is produced upon the terms that the copyright therein shall beloftg to the employer — subject, of course, to the limitation pointed out in the 18th section of the act." 16 C. B. 484. In the Bishop of Hereford v. Griffin, where it appeared that the plaintiff, at the request of the publishers, had writ- ten an article on Thomas Aquinas for the Encyclopaedia Metropolitana, and no special agreement had been made as to the copyright, Vice-Chancellor Shad- well held that the publishers had ac- quired merely the right to publish the article in the cyclopasdia. He said : " Then the defendants say that they believe that the ordinary terms of con- tract were adopted between the plain- tiff and the publishers of the enoyclo- psedia, and that no special agreement was entered into with respect to the IN WHOM COPYRIGHT WILL VEST. 245 he alone is entitled to publish the production in a separate form.i If he has acquired merely the right of publication in a specified work, the ownersliip of the copyright continues in the author, and the owner is a mere licensee, without authority to publish the production in a separate form.^ There is, however, a special proviso "in the case of essays, articles, or portions forming part of and first published in reviews, magazines, or other periodical works of a like nature," to the effect, 1, that at the end of twenty-eight years th6 right of publication in a separate form shall revert to the author, for the remainder of the term given by the statute ; 2, that the owner shall not at any time publish the composition "sep- arately or singly without the consent, previously obtained of the author thereof, or his assigns." The owner of a review, magazine, or like periodical, as well as the owner of any other publication embraced within the section, as a cyclopaedia or a " work published in a series of books or parts," may acquire, by virtue of the contract of employment, the copyright in an article. This copyright will embrace all rights of publication, and is not restricted to the right to use the article in the peri- odical for which it is written. But, pursuant to the proviso just cited, the copyright in the case of a magazine or like peri- odical will revert to the autlior at the end of twenty-eight years ; whereas, in the case of any work not included in the proviso, the copyright will continue in the owner during the entire statutory term. This appears to be the only respect in which the law in the case of " reviews, magazines, or other periodicals of a like nature," is different from that governing other publications within the purview of the section.^ reservation of any right of publication attending the agreement in Sweet v. by the plaintiff. But, it must be ob- Benning, but not in the Bishop of served tliat, according to the law, the Hereford v. Griffin. As these circum- copyright was in the plaintiff except so stances were not precisely the same in far as he parted with it; therefore no the two cases, the decisions may prop- reservation was necessary to constitute erly be different, and yet based on the a right in him." 16 Sim. 196. same principles. Tliese two authorities are not reces- i Sweet v. Benning, 16 0. B. 459. sarily conflicting. The sound doctrine ^ ^ee authorities cited ante, p. 244, is that the copyright is in the author, note 2. As to what is a separate unless he has consented to part with it. publication, see Smith v. Johnson, 4 The court was of opinion that an GifiF. 632; Mayhew v. Maxwell, 1 implied consent to part with the copy- Johns. & H. 812. right was created by the circumstances * That part of the proviso relating 246 THE LAW OF COPYRIGHT AND PLAYRIGHT. The question may arise, whether in all cases the copyright in articles published iu reviews, magazines, and like periodicals, is governed by section 18 of the statute. If so, the copyright, though it has vested in and become the property of the pub- lisher, will revert to the author at the end of twenty-eight years. Whereas, by the general provisions of the statute, no distinction is made between periodicals and books in general ; and, when the publisher acquires the copyright in an article first published in a periodical, he becomes the absolute owner of it for the full statutory term. The natural construction of the section under consideration would seem to be, that its pro- visions were intended to apply only to cases wherein authors have been expressly employed to prepare articles or other mat- ter, and not to ordinary agreements concerning compositions, which the author has not been specially employed to write. In some cases, this distinction may be vague and unsatisfactory. But it would seem that, when an author has lawfully transferred to the publisher of a periodical the copyright in an article which he has not been specially employed to write, the respec- tive rights of the parties are properly governed by the general provisions of the statute, and not by the special provisions of section 18. Indeed, the language of this section has been so strictly construed that actual payment for the article has been held essential to the vesting of the right of publication in the owner of tlie periodical.^ to reviews, magazines, and periodicals, of the autlior. If, on tVie otlier hand, which proliibits tlie owner from pub- the agreement is that the owner shall lishing separately without the consent have only the right to use the article of the author, is, in my judgment, su- in a named publication, he is not en- perfluous, unless it is to be construed as titled to publish it in any other form, requiring for a separate publication a for tlie reason that he has not acquired special consent apart from the original thatright, nor received the author's con- contract of employment. But it is not sent for a separate publication. Now, ex- reasonable to suppose that this is its cepting tlie division of the term of the object or effect. By virtue of sec- copyright between the owner and the tion 18 of the statute under consid- author, this, as shown in the text, is eration, if an author writes an article precisely the law in the case of a cyclo- for a magazine or otlier periodical, psedia, or other work to which the under an agreement that the copyright special proviso under consideration shall belong to the owner, the latter does not apply. thereby acquires all rights of publica- i Brown v. Cooke, 11 Jur. 77 ; tion during twenty-eight years, inelud- Richardson v. Gilbert, 1 Sim.-N. e. 336. ing the right of publishing separately ; In most of the cases which have been and he acquires such rights by consent decided under section 18 of the statute, IN WHOM COPTRIGHT WILL TEST. 247 It has not been judicially determined what classes of publi- cations are embraced within section 18 of the statute of Victo- ria. That section was manifestly intended to empower the owners of cyclopaedias, periodicals, and works published in parts, to acquire the- copyright in the matter which they have employed others to write. But the language used embraces not only such owners, but also the owner of " any book whatso- ever." This language would seem to be sufficiently compre- hensive to include any literary composition which one person has employed another to write, and there seems to be no good reason why it should have a more restricted meaning.^ Greueral Publications in Great Britain. — But without regard to section 18, the statute rightly construed must be taken to vest copyright in any person who has employed another to produce a literary work. As has been showu,^ an assignee is empow- ered by the statute to secure copyright, and by the comprehen- sive definition contained in the statute, such assignee may be a person who, " by operation of law, or otherwise," has acquired the interest of the author in an unpublished work. There can be little ground for'doubt that this provision is broad enough to embrace a person who has become the owner of a literary it appeared that the articles had heen called The Practice of Photography, written by authors in tlie employment Lord Campbell said: "I do not say of the owners. Such was not the case, that under the 5 & 6 Vict. c. 45, s. 18, however, in Strahan v. Graham ; yet it is impossible that the property of this case was decided under this sec- the copyright might be conveyed to tion. 16 L. T. n. s. 87, on ap. 17 Id. and invested in a person for whom an 457. author had undertaken to write. It 1 In Shepherd v. Conquest, Jervis, was argued that section 18 only ap- C. J., referring to Sweet v. Benning, plied to copyright in articles furnished said obiter : " The decision there turned for magazines, periodicals, &c. With- upon the construction of the peculiar out saying how that is, it is quite clear provisions of the 18tli section of the 5 that the property can only be so con- & 6 Vict. c. 45, relating to periodical veyed when, according to the act of works, and it has no bearing upon the Parliament, it is written on such terms, present case." 17 C. B. 445. But it was i. e., on the terms that the copyright immaterial whether this section of the in the article shall belong to the pro- statute did or did not apply in Shep- prietor, publisher or conductor, and herd v. Conquest. Nor did the Chief where it has been paid for by such Justice say what publications were proprietor, publisher or conductor, within that section, or refer to the ira- Now it is clear that this book was not portant words, " any book whatsoever," written with a view to the copyright there used. being vested in Mr. Cundall." 3 Jur. In Delf V. Delamotte, where it ap- n. s. 93.3. peared that the plaintiff had written, ^ j^„te^ p. 238.^ and the defendant published, a book 248 THE LAW OP COPYRIGHT AND PLAYRIGHT. work by virtue of having employed and paid another to pro- duce it.i But it may be going too far to say that the law to this effect is judicially settled. It is conceded that, when one person has employed and paid another to write a wbrk, with the mutual understanding that it shall be the property of the employer, the latter acquires an equitable title which will enable him in a court of chancery to assert his rights in the published produc- tion against either the person employed or others.^ Whether a complete legal title to the copyright will vest ah initio in such employer without the necessity of a written assignment, is a point on which the law has not been expressly declared by the courts of law; but the decisions in the chancery courts, though not in entire harmony, support the doctrine that an employer is capable of securing in his own name a valid copy- right at law. And this doctrine has not been contradicted in any case decided since the statute of Victoria was passed. Lord Eldon held that the owner of a periodical had a valid copyright in translations which he had employed another to make ; * and Vice-Chancellor Leach ruled that the publisher of a dictionary of architecture was the owner of the copyriglit in the articles written by persons employed by him.* In the recent case of Grace v. Newman, where it appeared that the plaintiff had hired a person to compile a collection of monu- mental designs taken from tombstones in cemeteries, and had published them in a book, and registered himself as the owner of the copyright, Vice-Chancellor Hall said : " Next, it was 1 The proviso in section 18 may, person, who forms the plan and who however, operate in the case of articles embarks in the speculation of a work, written under employment for reviews, and who employs various persons to magazines, and similar periodicals, to compose different parts of it, adapted limit the term of the copyright in the to their own peculiar acquirements — employer to twenty-eight years. that he the person who so forms the 2 Wyatt V. Barnard, 3 Ves. & B. 77 ; plan and scheme of the work, and pays Barfield «. Nicholson, 2 L.J. (Ch.) 90, different artists of his own selection, 102; B. 0.2 Sim. & St. 1; Sweet v. who, upon certain conditions, contribute Shaw, 3 Jur. 217 ; Grace v. Newman, to it, is the author and proprietor of Law Rep. 19 Eq. 623. the work, if not within the literal ex- ' Wyatt V. Barnard, supra. pression, at least within the equitable ^ Barfield v. Nicholson, supra. meaning of the statute of Anne, which Referring to the statute of Anne, being a remedial law is to be construed the Vice-Chancellor said: "I am of liberally." 2 L. J. (Ch.) 102. opinion, that, under that statute, the IN WHOM COPTBIGHT WILL TEST. 249 contended that the plaintifFis not entitled to a decree, because he has not brought himself within the section of the act which re- fers to authors and their assignees ; but I think the words of the section are wide enough to embrace the case of a person employing another person and remunerating that person for the work done. The person remunerated has no claim to the copy- right ; but it is the property of the person who remunerates him, and in this court the person who remunerates must be taken to be the equitable assignee and the publisher within the meaning of the act." ^ In harmony with this doctrine is the decision of the court of Common Pleas in Hatton v. Kean, where it appeared that the defendant had designed a dramatic representation, consisting of 1 Law Rep. 19 Eq. 626. To the same effect are Nicol v. Stockdale, 3 Swans. 687 ; Gary v. Longman, I'East, 358; Sweet v. Maugham, 11 Sim, 51; Hatton V. Kean, 7 C. B. n. 8. 268; Wallenstein v. Herbert, 16 L. T. n. s. 453 ; Marzials v. Gibbons, Law Rep. 9 Ch. 518 ; opinion of Lord Deas in Mac- lean V. Moody, 20 Sc. Sess. Cas. 2d ser. 1163. See also Leader v. Purday, 7 C. B. 4 ; Stevens v. Wildy, 19 L. J. N. 8. (Ch.) 190. Shepherd v. Conquest, 17 C. B. 427, and Levi v. Rutley, Law Kep. 6 C. P. 523, are not opposing autliorities, for the reason that in neither was there an agreement, express or implied, that the production should become the property of the employer. In the former case, Jervis, C. J., said : " We do not think it necessary in the present case to ex- press any opinion whether, under any circumstances, the copyright in a liter- ary work, or the right of representation, can become vested ab initio in any em- ployer, other than a person who has actually composed or adapted a literary work." Supra, 444. To the contrary, see Jefferys v. Bald- wfn, Amb. 164 ; Storace u. Longman, 2 Camp. 27, note ; Cary v. Kearsley, 4 Esp. 168 ; Sweet v. Shaw, 3 Jur. 217. In the last-named case, the plaintiffs claimed copyright in law reports which had been prepared for them by persona employed for that purpose. Vice- Chancellor Shadwell said : " I think that they have in equity, but I cannot understand how they have got the copyright at law ; because I cannot see how at law the agreement that persons shall prepare a work for the plaintiffs gives the plaintiffs a copy- right at law, for nothing can pass at law except that which actually exists." The fallacy of this reasoning is the assumption that what passed from the reporters to the plaintiffs was the statu- tory copyright. The reporters pre- pared and delivered the manuscript reports under an agreement that they should be the absolute property of the plaintiffs. The transfer was of com- mon-law rights, and hence embraced property in existence. Its validity was not affected by the fact that no statu- tory copyright was in existence, be- cause this was not the subject of the transfer. In Hazlitt v. Templeman, 13 L. T. N. 8. 593, the court expressed tlie opin- ion, but did not decide, that the copy- right would have vested in the author, and not in the employer. But as the defendant had registered the copyright in her own name, it was held that such registration was prima facie evidence of her title, which was not rebutted by the absence of proof of a written as- signment. 250 THE LAW OF COPYRIGHT AND PLAYRIGHT. a play of Shakespeare, with certain changes made by Kean, and with costumes, properties, scenery, dances, and music pre- pared by others under his direction. Tlie plaintiff had been employed to compose the music, and afterward claimed that the property in it belonged to him. The court found that the defendant was the author and designer of an entire dramatic representation, and that the plaintiff had been hired to compose the music with the distinct understanding, and on the terms, that it should become a part of the entertainment, and that the defendant should have the sole liberty of performing it. It was tlierefore held that the music became the property of the defendant.^ It could not have been successfully maintained that the defendant, though the designer of the entire represen- tation, was the author of the music. Nor does music become a mere accessory or inseparable part of a drama merely be- cause it is specially composed for such drama. It may have an independent existence and a value apart from the literary composition, as in the case of Locke's music to Macbeth, and Mendelssohn's music to the, Midsummer Night's Dream. The true ground on which the decision rests is that the composer had been employed with the understanding and on the con- 1 7 C. B. N. ». 268. fendant, and as part of the general plan " It appears to me," said Erie, C. J., of the spectacle, must, as between him "upon the facts thus admitted upon and the plaintiff, become the property the record, that the 'defendant was the of the defendant ; and that, conse- author and designer of an entire dra- quently, the defendant has violated no matic representation or entertainment, right of the plaintiff in causing it to be with respect to part of which, a small represented in the manner alleged, accessory, viz., the music, he employed One cannot but perceive, that, if the the plaintiff upon the terms set out in plaintiff were right in his contention, the plea, — that, in consideration of the labor and skill and capital bestowed certain reward paid by the defendant by the defendant upon the preparation to the plaintiff, the music should be- of the entertainment might all be come part of such dramatic piece as thrown away, and the entire object of designed and adapted for representa- it frustrated, and the speculation de- tion by tlie defendant, and that the de- feated, by any one contributor with- ' fendant should have the sole liberty of drawing his portion. As between these representing and performing, and caus- parties, and under the circumstances, jng and permitting to be represented it seems to me very clearly that the and performed, the said musical com- musical composition in question he- position with tlie said dramatic piece, came the property of the defendant, and as an accessory thereto, and as and that the plaintiff never was within part thereof. I am of opinion that the the language of the statute the owner music so composed by the direction and or proprietor thereof." Ibid. 279, 280. under the superintendence of the de- IN WHOM COPYRIGHT WILL VEST. 251 dition that the music should be the property of his em- ployer. ■Wallenstein v. Herbert Criticised. — The doctrine of Hatton V. Kean was misunderstood and misapplied by the Queen's Bench in the following case of Wallenstein v. Herbert.^ The govern- ing principle was the same in both cases ; but the controlling facts were so vitally different that the decisions could not rightly be alike. It appeared in evidence that Matthews, the manager of St. James's Theatre, in London, had employed Wallenstein to furnish music for that theatre. The latter engaged and paid the musicians, supplied the instruments and compositions, and conducted the orchestra. Besides playing general orchestral music for the theatre, it was his duty to provide incidental music for dramas, when necessary ; and such musiche might either select or compose. In performance of this duty, he composed incidental music for Lady Audley's Secret, a drama brought out by Matthews, but of which the latter was in no sense the author, and at that time was not even the owner. In composing the music, the plaintiff had received no assistance from the manager, and had himself found the paper on which the music was written and employed a person to copy the various orcliestral parts from the original score. These parts the composer kept in his own possession ; nor did the theatre have a library of music. When the engagement between Mattliews and Wallenstein had ended, the former obtained from the latter a duplicate copy of the mu^ic, with permission to use it " on a provincial tour." Afterward, when the defendant. Miss Herbert, had succeeded Matthews in the management of St. James's Theatre, and Wallenstein had ceased to be the musical director, she obtained permission from Mat- thews to represent Lady Audley's Secret, of which play he was now the owner, and received from him the duplicate copy of the music wliich Wallenstein had made for him. The original score was still in the possession of the composer, wlio had given no consent either to Matthews or to Miss Herbert to use the music in London. Tiie court, without deciding in whom the copyright vested, held that the controlling facts in this case were not different 1 15 L. T. N. s. 364, on ap. 16 Id. 453. 252 THE LAW OP COPYRIGHT AND PLAYRIGHT. from those in Hatton v. Kean ; that the music became an inseparable part of the drama, and was not an independent composition ; that Matthews, by virtue of the contract of employment, had acquired an unlimited right to use the music ; and that the defendant, as the licensee of Matthews, was also entitled to use it. This decision was avowedly based on the authority of Hatton V. Kean. But the difference between the governing facts in the two cases is vital. The only ground, as has been seen, on which the decision in Hatton v. Kean can be sustained, is that the music was composed under an agreement that it should be the property of the employer ; and this is the principle by which the judgment in Wallenstein v. Herbert is to be tested. It was not seriously claimed that Matthews was the author of the music ; and the judgment of the court cannot be defended on the ground that the music became an inseparable part of the play, and could have no independent existence. Music and literature cannot be so closely blended but that the former may exist and have a value independently of the latter. In Hatton V. Kean, the plaintiff was not in the regular and general em- ployment of the defendant, but had been expressly engaged to compose certain music ; and there was a special agreement, as the court found, that the property therein should belong to the defendant. In Wallenstein v. Herbert, the plaintiff had written the music in the discharge of his ordinary duties, and there was no distinct agreement as to whose property it should be. It is conceded that it might have become the absolute property of the employer by an implied agreement, or a mutual under- standing to that effect, created by the terms and conditions of the general employment, and without the necessity of an ex- press or a special agreement. But such implied agreement or mutual understanding is not necessarily created by the mere circumstance of employment ; and the facts established by the evidence in this case do not support the conclusion that there was any agreement or understanding between the parties that the music should become the property of the manager. Mr. Justice Shee said that it was " incumbent upon the plaintiff to show that he retained an independent right to the music." ^ 1 16 L. T. N. s. 454. IN WHOM COPYRIGHT WILL TEST. 253 But the property was in the person who created it, until he consented to part with it ; and it was for Matthews to show that such consent had been given. Wallenstein had agreed to play the usual orchestral music for the theatre, and also such music as might be specially required in the production of any drama. He was not bound to compose the latter, but was at liberty to make selections for that purpose. The theatre owned no musical compositions, and, it appears, paid no money for the purchase of any. Those which were not original were bought by Wallenstein, and it appears were kept by him as his own property ; and no interest in their ownership was claimed by the theatre. It was the playing of the music and the use of the compositions, not the property in them, for which the manager contracted and paid ; and, when Wallenstein had played the required music, he had performed his part of the contract. If Wallenstein had bought selections for, or paid another composer to write, the incidental music for Lady Audley's Secret, it would hardly have been contended that the manager had any rightful claim to the property in such music. Yet the principle is the same whether Wallenstein composed or selected the music. The manager acquired by the contract of employment no more property in the music composed by Wallenstein than in that bought by him ; and he had no better title to either than to the instru- ments with which the music was played. Wallenstein was bound to furnish music for the drama, and Matthews was enti- tled to the use of it while the former was in his employment. But the property remained in the composer. Nor did Matthews, as the court held, acquire the unlimited right to use the music. While the engagement lasted, the con- ductor was bound to supply the necessary music for the theatre, and the manager was entitled to the use of his compositions. But, when the former ceased to be employed, the latter had no more claim to the use of his music than to his services as conductor. The controlling principle in this case is the same as in Bou- cicault V. Fox,^ where it appeared that the plaintiff had been 1 5 Blatchf. 87. See post, p. 257. 254 THE LAW OF COPYRIGHT AND PLATBIGHT. employed to write a play under an agreement that it should be performed at a certain theatre as long as it would run. The Circuit Court of the United States soundly construed the law to the effect, that, while the manager of the theatre might be entitled to the use of the play for the time contemplated in the agreement, he had no claim to its use beyond that time, and no interest in the property in the play, for the reason that there was no agreement, express or implied, to that effect.^ ^ Works of Art in Great Britain. — By the 7 Geo. III. C. 38, copy- right is secured to any person " who shall invent or design, engrave, etch, or work, ... or from his own work, design, or invention shall cause or procure to be designed, engraved, etched, or worked," prints, engravings, &c.^ Where a person had designed a map, and furnished the materials for preparing it, but had employed another to make the drawing, the former was held to be the author within the meaning of the statute.^ 1 In harmony with this doctrine are Roberts v. Myers, 13 Monthly Law Reporter, 396 ; Shepherd v. Conquest, 17 C. B. 427 ; Levy v. Eutley, Law Eep. 6 C. P. 523. 2 The language of the American statute of 1802 was similar; 2 U. S. St. at L. 171. See Binns v. Woodruff, 4 Wash. C. C. 48. "i Stannard v. Harrison, 24 L. T. N. s. 570. "Then," said Vice-Chan- cellor Bacon, " as to whether the de- sign or invention is that of the plaintiff or not is a mere matter of character. Mr. Concanen has heen examined. He has proved that it is the design of the plaintiff; that the plaintiff brought to him' his rough sketch or draft, a draw- ing of the same size as the stone upon which it was to be engraved, pointing out, as Mr. Concanen had said, ' A rough sketch of the forts and town to give me an idea; he furnished me also with a large French map, and some maps published in the Times and Daily Telegraph ; he gave me notice also daily of the earthworks that were made, and produced, besides, a picture published in the Illustrated London News.' That the plaintiff can- not draw himself is a matter wholly unimportant if he has caused other persons to draw for him. He invents the subject of the design beyond all question. He prescribes the propor- tions and the contents of the design ; he furnishes a part of the materials from which the drawing has to be made in the first instance, and after- wards collects daily from the proper sources, and even if it be necessary to say so, from ofilcial sources, the de- crees, the reports, the bulletins, and accounts contained in the newspapers of the different phases of the war, and especially of the places in which earth- works are thrown up. These he com- municates to the man whom he has employed to make a drawing for him. Not having the skill to do it himself, he stands by, and, as Mr. Concanen says, comes to him daily with mate- rials from which the lithograph is to be compiled. Can there be any thing more plainly within the words of the act of Parliament ^han that Mr. Stan- nard did himself invent, that he did procure another person to design and draw for him, and do that which he himself could not do?" Ibid. 572. See also Stannard v. Lee, 23 L. T. n. s. 306, on ap. Law Rep. 6 Ch. 346. IN WHOM COPYRIGHT WILL VEST. 255 So copyright is given to any person " who shall make or cause to be made," a work of sculpture.^ The 25 & 26 Vict. c. 68, s. 1, provides that, when any painting, drawing, or the negative of any photograph, " shall be madd or executed for or on behalf of any other person " than the author, the copyright shall not be acquired by such person, nor shall it be kept by the author, except by an agree- ment in writing, signed by him who relinquishes the copyright. The effect of this provision must be that, when no such agree- ment is made, the copyright is not secured to any person. Employer may Secure Copyright in United States. — In this country, the doctrine that a person may secure copyright for a work which he has employed another to write, though opposed by two decisions,^ is supported by the weight of judicial authority.^ In Little v. Gould,* it appeared that a reporter had been employed and paid a salary by the State of New York to prepare reports of decisions under a law that the copyright therein should be the property of the State. The copyright was entered in the name of the Secretary of State, " in trust for the State of New York ; " and its validity was sustained, although no formal assignment had been made by the author. The State became the owner of the manuscript by virtue of having employed and paid the reporter, and, as such owner, was entitled to secure the statutory copyright.^ And so in Lawrence v. Dana, where it appeared that the com- 1 54 Geo. III. c. 56, s. 1. State, and that it was competent for 2 Pierpont o. Fowle, 2 Woodb. & that officer to take out the copyright M. 23, 46. Atwill v. Ferrett, 2 Blatchf. in pursuance of the provisions of the 39. Binns v. Woodruff, 4 Wash. C. C. act of Congress of 1831, securing to 48, was decided under a special statute, the State the exclusive right of pro- See ante, p. 254, note 2. prietorsliip in the work. The reporter 3 Little 0. Gould, 2 Blatchf. 165, must be .deemed to have accepted the 362; Heine v. Appleton, 4 Blatchf. terms and conditions of the acts of the 125; Lawrence a. 7. 282 THE LAW OP COPYRIGHT AND PLAYEIGHT. Special requirements in the case of translations are made by 15 & 16 Vict. c. 12> Section 6 of the former statute provides that in tlie case of a book, dramatic piece, or musical composi- tion, which has been published abroad in print, " the title to the copy thereof, the name and place of abode of the author or composer thereof, the name and place of abode of the pro- prietor of the copyright thereof, the time and place of the first publication, representation, or performance thereof, as the case may be, in the foreign country," shall be registered, and that a copy of the work shall be delivered to the officer of the Stationers' Company. In the case of dramatic and musical compositions in manuscript, the time and place of the first representation or performance are to be entered, instead of the time and place of publication. No copy is required to be deposited. In Wood v. Boosey, the registration of the piano- forte arrangement of an opera was held to be invalid, because the name of the composer of the opera had been entered in the registry, instead of the name of the person who had made the arrangement.^ In the opinion of the court, the latter, and not the former, was the author of what was registered. In Boosey v. Pairlie, the plaintiffs claimed the exclusive right of representing an opera composed by Offenbach, of which a piano-forte arrangement made by Soumis, but not the orchestral parts, had been published in print. There had been entered in the registry the title of the opera, the name and place of abode of Offenbach as composer and owner, the time and place of the first representation of the opera, and the time and place of the first publication of the piano-forte arrangement. A copy of the piano-forte arrangement, but not of the opera itself, had been delivered to the officer of the Stationers' Company. Vice-Chancellor Bacon ruled that the piano-forte arrangement, and not the opera itself, was the thing registered ; and that, as the, name and- place of abode of Soumis, the author of the arrangement, had not been entered, the registration, according to Wood v. Boosey, was not valid.^ The Court of Appeal, however, held that all the facts required 1 See ante, p. 217. 3 7 Ch. D. 301, 307. 2 Law Rep. 2 Q. B. 340, on ap. 3 Id. 223. STATUTORY REQUISITES. 283 for the registration of the opera itself had been duly entered, and that the additional entry of the time and place of the first publioation of the piano-forte arrangement and the delivery of a copy of it were superfluous acts, which did not affect the registration of the original opera. There was, therefore, a good registration of the unpublished opera, but not of the piano-forte arrangement.^ PUBLICATION. statutory Copyright begins with Publication ; does not exist in Unpublished Works. — The chief object of the legislation for the advancement of learning is to secure the publication of literary works for the benefit of the public, and this consideration is a condition on which protection is extended to authors. Publi- cation is the beginning of statutory copyright, and a condition precedent to its existence. The statute of Anne gave copyright in a book for a term " to commence from the day of the first publishing the same ; " and the statute of Victoria expressly makes " first publication " the beginning of the term of protection.^ " Copyright," said Lord Chancellor Cranworth, " defined to mean the exclusive right of multiplying copies, commences at the instant of pub- lication." ^ In the language of Mr. Justice Crompton, " The monopoly is vested in the author or his assigns, for the limited term after first publication. This first publication is the com- mencement and foundation of the right, the terminus a quo, the period of the existence of the right is to run, and a condi- tion precedent to the existence of the right." * Furthermore, 1 7 Ch. D. 311. See criticism on right tlie author may have possessed the judgment in this case in Chap. XV. before publication must have been at As to registration in the case of & common law." Ibid. 886. foreign newspaper, sfee Cassell v. Stiff, * Ibid, 847. " In Beckford v. Hood," 2 Kay & J. 279; in the case of a foreign continued the same judge, "which I print, Avanzo v. Mudie, 10 Exch. Rep. have before referred to, and which was 203. decided not very long after the great case 2 8 Anne, c. 19, s. 1 ; 5 & 6 Vict, in the House of Lords, the declaration c. 45, s. 3. averred the infringement as being within ' Jefferys u. Boosey, 4 H. L. C. the period after the first publication ; 955. In the same case, Mr. Justice and Lord Kenyon, in saying that it was Wightraan said that neither the author established that the right was confined " nor his assignee would be entitled to to the times limited by the statute, in copyright until publication. Whatever effect, treated the act of first publica- 284 THE LAW. OF COPYRIGHT AND PLATBIGHT. the statute gives a remedy for piracy only in the case of a " book in which there shall be subsisting copyright ; " and makes registration a condition precedent to bringing an action at law or a suit in equity for the infringement of copyright.^ As publication must precede registration, it is clear that there can be no statutory protection for an unpublished work.^ It has been shown that, notwithstanding some diversity of opinion, the law in the United States has always been well established that copyright could not under the earlier statutes, and cannot under the existing one, be secured without per- formance of the three prescribed requisites relating to the filing of the title before publication, printing the notice of copyright in the book, and delivering copies within a named time after publication.^ It is obvious that these acts cannot be done without publishing the work. Publication, therefore, is made an essential prerequisite to securing copyright ; and hence there can be no statutory copyright in an unpublished work.* Publication must be 'vrithin Reasonable Time after Filing Title. — No time is indicated by the statute within which a work whose title-page has been recorded shall be published ; nor has any more definite rule on this point been laid down by the courts than that publication must be made within a reasonable time after the filing of the title. In Boucicault v. Hart, where it appeared that the title had been recorded on October 24, and the work had not been published when the bill was filed in the following February, the court did not hesitate to hold that pub- lication had not been made within a reasonable time.® tion, from which such time was to run, construed the law to the effect that as a condition precedent to the exist- copyright as well as playright may ence of the right." See also Colburn exist in an unpublished work. But 0. Simms, 2 Hare, 543. this doctrine was rightly overruled 1 5 & 6 Vict. c. 45, ss. 15, 24. in Boucicault v. Hart, 13 Blatchf. 47, s See ante, p. 279. whose authority was followed In Car- ' See ante, p. 265. lUo v. Shook, 22 Int EeT. Eec. 152. ' In not fewer than five cases, the See Chap. XV. Circuit Court of the United States, by 5 13 Blatchf. 47. " There is no holding that a dramatist who' files a time prescribed," said Longyear, J. copy of the title of his play with the " within which actual publication shall Librarian of Congress is entitled to commence. That is left entirely to the the protection of the statute, although option of the proprietor." Farmer v. the play is not published in print, has Calvert Lithographing, Engraving, & BTATUTOET REQUISITES. 285 What is a Publication. — In one sense, a work of literature or art is published when it is communicated to the public, in whatever manner this may be done ; whether by the circula- tion of copies, oral delivery, representation, or exhibition. At common law, the word publication may have this comprehen- sive signification.^ But, to determine its meaning under the statute, it is necessary to ascertain in what sense the legislature used the word. In the case of books, maps, charts, drawings, engravings, photographs, lithographs, and chromos, the only kind of publication recognized by the statute is the circulation of copies.^ Hence, a literary composition is not published, within the meaning of the statute, when it is orally communicated to the public ; ^ nor a pictorial production, excepting perhaps a painting, when it is publicly exhibited.* Dramatic Compositions. — Under the statute of the United States, dramatic compositions are governed by the same rule as are general literary works. With reference to copyright, they differ in lio wise from books. The right of representation is secured by the statute only in case of a dramatic composition which has been published and copyrighted as a book. Whether copyright or playright be claimed, the question of publication, as far as the vesting of the right is concerned, is determined in the same manner as in the case of a book. Circulation of copies is essential to a publication. The public performance of a drama is not such a publication as will defeat a copyright afterward obtained for the composition ; ^ and it is not such a publication as the statute requires to be made before the copy- right can be secured.® In England, the law is somewhat different. The statute secures the right of representing or performing, not only Map-Publishing Co., 5 Am. L. T. R. 4 McLean, 300, 5 Id. 82 ; Keene v. 172. But there la little doubt that the Kimball, 16 Gray {82 Mass.), 545; work must be published within a Boucicault v. Fox, 5 Blatchf. 87. reasonable time after the filing of the * See Martin v. Wright, 6 Sim. 297. title. * Roberts v. Myers, 13 Monthly Law 1 See ante, p. 115. Reporter, 896 ; Boucicault v. Fox, 2 See Keene v. Wheatley, 9 Am. supra; Boucicault v. Wood, 2 Biss. Law Reg. 44; Palmer v. DeWitt, 2 84. Sweeny (N. Y.), 548. ° Boucicault v. Hart, 13 Blatchf. 47 ; 8 See Abernethy v. Hutchinson, 1 Carillo v. Shook, 22 Int. Rev. Reo. Hall&Tw. 28; Bartlett w. Crittenden, 152. 286 THE LAW OP COPYRIGHT AND PLATRIGHT. printed, but also manuscript^ dramatic and musical compo- sitions ; 1 and declares that the representation or performance of such compositions shall be deemed equivalent to the pub- lication of a book.2 But representation or performance is a publication only with reference to the vesting of playright, and not of copyright. Thus, in determining the statutory right of an author to represent a drama, its public performance is treated as a publication ; but, in determining any question relating to the copyright in the same composition, representation is not a publication.^ Paintings and Sculpture. — What is a publication within the meaning of the statute in the case of paintings and sculpture, is a question not easily determined. Not only copies of such works, but the originals themselves, are made subjects of copy- right ; and, if the principle that publication is essential to copyright is to be applied in all cases without exception, it follows that a painting or a statue must be published before copyright will vest in it. Of course, such works cannot be published in the same manner as a book. It is true that copies, such as photographs, engravings, chromos, casts, &c., may be given to the public. But, in that case, it is the copy, and not the original, that is published ; and there is here, between the thing itself and the copy, an essential difference, which does not exist in the case of a literary composition. Hence, in the Irish case of Turner v. Robinson, it was held that printing in a magazine an engraving of a painting was a publication of the engraving, but not of the painting.* The court said that the publication must be of the thing itself. United States. — Strictly speaking, a painting or statue can be published only by being exhibited. But there is a difficulty in holding exhibition to be a publication within the meaning of the American statute. The mode of publication must correspond to the nature of the right secured. The oral com- 1 3 & 4 Will. IV. c. 15. 5 T. R. 245 ; Murray v. ElUston, 5 2 5 & 6 Vict. c. 45, s. 20. Boucicault Barn. & Aid. 657. V. Delafield, 1 Hem. & M. 597 ; Bouci- * 10 Ir. Ch. 121, 510. As to the Cault V. Chatterton, 5 Ch. D. 267. diiferent meanings given to the word 3 Clark V. Bishop, 25 L. T. n. s. puhlication in this case and in Prince 908 ; D'Alraaine v. Boosey, 1 Y. & C. Albert v. Strange, see ante, p. 115, Exch. 288 ; Tinsley v. Lacy, 1 Hem. & note 2. M. 747. See also Coleman v. Wathen, STATUTORY REQUISITES, 287 muni cation of a literary composition is not a publication , because such use of the work is not within the right granted by the statute. So in England, where the statute secures the right of representing manuscript as well as printed dramatic compo- sitions, the performance of a play, as has been said, is a pub- lication with reference to the right of representation, but not with reference to the right of multiplying copies. In the United States, representation is not.a publication in either case, for the reason that the statute grants playright only in the case of a dramatic composition which has been published and copyrighted as a book. This necessarily requires a play to be published in the same manner as a book. The exhibition of a painting or a work of sculpture is not strictly a publication within the meaning of the statute of the United States, because the right secured is that of copying, and not that of exhibiting. This objection may not exist in England, where, as is shown further on, the right of exhibiting, as well as that of publish- ing, copies is secured by the statute. It may be maintained with reason that, to give the public the benefit of the production is as essential to copyright in the case of any work of art as in that of a literary com- position ; and, hence, that copyright will not vest in a painting or work of sculpture unless it has been published. But what shall be considered a publication within the meaning of the law is a question which remains for judicial determination. It is not improbable that the American courts will hold the publication of a photographic or other copy of the original to be equivalent, within the meaning of the statute, to the publication of the work itself.^ 1 In Oertel v. Wood, 40 How. Pr. righted, but the plaintiff claimed a 10, and Oertel u. Jacoby, 44 Id. 179, common-law property in the painting, decided by the special term of the The defendant had published photo- New York Supreme Court, in 1870 and graphs of the painting; but it docs not 1872, an important question concerning appear from either report whether he thepublicationofapaintingwas raised; had copied the original or the author- but the opinions throw no light on the ized photographs. It is clear that the subject. The plaintiff had painted a copies which had been published with picture named The Rock of Ages, the consent of the plaintiff were com- of which chromo-lithographs and pho- mon property. But their publication, tographs were pubhshed with the con- according to the decision in Turner v. sent of the plaintiff. Neither these Robinson, was not a publication of the copies nor the painting were copy- painting destructive of the owner's 288 THE LAW OP COPYRIGHT AND PLAYRIGHT. Great Britain. — What is a publication of a painting or of a work of sculpture is as doubtful in England as it is in this country. Tiie 25 & 26 Vict. c. 68, secures copyright in paintings, and prohibits not only the circulation, but also the exhibition, of any piratical " repetition, copy, or imitation of the said work, or of the design thereof." ^ What is a publica- tion within the meaning of this act is a question on which neither the statute nor the -decisions throw any light. In Tur- ner V. Robinson, it was held that neither the public exhibition of a painting, nor the printing of an engraving of it in a maga- zine, was such a publication as would work an abandonment of the owner's rights in the original.^ But tliis case was gov- erned by the common law, and was decided before statutory copyright in paintings was granted. It is not, therefore, an authority as to what is a publication of a painting within the meaning of the statute. By 54 Geo. III. c. 56, copyright is given in sculpture, models, and busts, for a term of years from " first putting forth or publishing the same." The property secured by this act seems to be comprehensive enough to embrace the right of public exhibition.^ The opinion has been judicially expressed that, within the meaning of the statute, a work may be pub- lished by being publicly exhibited.* common-law right. Hence, whether publication of the work, that is, from this right was invaded depended on the moment the eye of the public is the fact whether the defendant had allowed to rest upon it. Many large copied the painting or the authorized works in this branch of art, which photograph. This yital question does decorate public squares and other not appear to have been referred to in places, are of course so published, but either case. The controlling facts and there are others, not designed for such principles were the same in both cases, purposes, which could never be pub- The decision was in favor of the plain- lished in any other way than in exhi- tiff in Oertel v. Wood, and against him bitions ; therefore I apprehend that in Oertel v. Jacoby. these works of sculpture must be con- ' s. 6. sidered as published by exhibition at 2 10 Ir. Ch. 121, 510. such places as tlie Koyal Academy and ^ See Chap. X., where it is shown Manchester, so as to entitle them to the that a remedy is afforded by the protection of the statutes, from the common law to the extent of the date of such publication." 10 Ir. Ch. right secured by the statute. 516. In Boucioault v. Chatterton, as * In Turner u. Robinson, Lord reported 35 L. T. k s. 745, James, Chancellor Brady said : " In the stat- L. J., referring to the fact that s. 19 utes bestowing protection upon works of 7 & 8 Vict. c. 12, did not repeal any of sculpture, the terminus a quo from thing in 3 & 4 Will. c. 15, said : " It which the protection commences is the has a limited purpose only, which lim- STATUTORY REQUISITES. 289 Is Circulation of Manuscript Copies Publication ? — "When printed copies of any literary or other work are circulated, the question of publication is simple. Whether a composition may be published, within the meaning of the statute, by the circulation of copies in manuscript, is a question on which little light is thrown either by the statutes or the decisions. ^ It may be claimed, on the one hand, that the legislature used the words publish, publication, &c., in their ordinary meaning, winch is the circulation of printed copies. On the other hand, it may be urged that the purpose of making publication a pre- requisite of copyright is that the public may have the benefit of the production for which protection is granted, and that this ob- ject is secured by communicating the work to the general public, though the copies circulated be in manuscript and not in print. As selling manuscript copies of a composition may be practi- cally equivalent to the sale of printed ones, there appears to be ited purpose is expressed in words which must prima facie give us 'the meaning of the word ' publislied,' which is to be that sort of thing wliich you can predicate of a boolc, or of a dra- matic piece, or of a musical composi- tion, and which you may predicate of a print, or article of sculpture, or any other work of art ; that is to say, made public by those means which are appro- priate to the particular article or the particular thing. A book is publislied by being printed ; a dramatic piece or musical composition is published by being publicly represented ; a print or article of sculpture is published, for the purposes of this act, by being made the subject of copy in casts or prints ; and I should say with regard to sculp- ture and other works of art beifig mul- tiplied by casts or other copies, it would De Witt, 2 Sweeny (N. Y.), 548. But in each case tlie court was drawing a distinction between the ordinary mode of publishing a literary composition and the representation of a play. The question of publication by the general circulation of manuscript copies was not discussed, though in the former case the court considered the private circulation of such copies. In Bartlett v. Crittenden, where it appeared that a teacher had permitted his pupils to make copies of a manu- script for their private use, Mr. Justice McLean seems to have been of the opinion that a work might be published ' by circulating manuscript copies. "It is contended," he said, " that tliis is an abandonment to the public, and is as much a publication as printing the manuscripts. That printing is only depend in each case upon that which one mode of publication, which may be applies to the particular thing, if it be done as well by multiplying manuscript for sale or public use." copies. This is not denied ; but the 1 In Keene «■ Wheatley, 9 Am. Law inquiry is. Does such a publication Eeg. 44, Mr. Justice Cadwallader said : constitute an abandonment 1 " 4 Mc- " The intended meaning of the word Lean, 808. But in this case the deci- pnblication in this and other statutory sion, that there had been no publica- provisions concerning copyright is pub- tion, was based on the ground that the lication in print." Similar language circulation of copies was private and was used by Monell, J., in Palmer v. not pubUo. 19 290 THE LAW OF COPYRIGHT AND PLATRIGHT. no reason why this latter view of the law may not be adopted. Of course, to secure copyright for manuscript copies, it would be necessary to comply with the same statutory requisites that must be observed in the case of printed compositions.^ If the public circulation of manuscript copies is a publication within the meaning of the statute, it follows that the copyright in a printed composition may be defeated by a general sale of manuscript copies before the copyright was secured.^ Private Circulation of Copies not Publication. — The law rec- ognizes a vital distinction between the public and the private circulation of copies. The owner may circulate copies of a work among a limited number of persons, with the under- standing and on the condition that it is not to be made public. In such case no publication takes place, notwithstanding that the copies so distributed are printed.^ It may sometimes be difficult to determine whether a work is given without reserva- tion to the general public, or conditionally to a select few. But when the fact is found that the circulation of copies is public, or that it is private, the law will be determined accordingly. The deposit of a chart with the Secretary of the Navy, for the use of the government and for preservation, but with the ex- 1 In Rees v. Peltzer, 75 111. 475, the this manuscript map had been duly- Supreme Court of Illinois held that copyrighted, treating the sale of manu- giving a copy of a manuscript map, script copies as a publication, it is vfhich had not been copyrighted, to the reasonable to suppose that the copy- city of Chicago for public use, and sell- right would have been valid, ing without any restriction several ^ In White v. Geroch, 2 Barn. & copies to realrestate dealers, amounted Aid. 298, it was held that the copyright to a publication which destroyed the in a printed musical composition was •common-law property in the map. not defeated by the fact that several Tlie court did not expressly declare thousand manuscript copies had been tiiat this was a publication within the sold before it was published in print, meaning of the copyright statute ; but But it cannot be satisfactorily deter- such must be the effect of the decision, mined whether this decision was based It is reasonably clear that statutory on the ground that the circulation of copyright could not have been secured manuscript copies was a publication for tlie map after it had been made witliin the meaning of the statute, and public by the circulation of manuscript hence the beginning of copyright ; or copies. But such circulation would be that it was not a publication, and hence no bar to the vesting of copyright, did not aSect the copyright, unless it amounted to -a publication ' Prince Albert v. Strange, 2 De G. within the meaning of the statute. & Sm. 652, on ap. 1 Mac. & G. 25; Moreover, the aommon-law property in Bartlett v. Crittenden, 4 McLean, 300, a work is not lost until it is published 5 Id. 32 ; Eeene v. Wheatley, 9 Am. within the meaning of the statute. If Law Beg. 33. STATUTOUY REQUISITES. 291 press understanding that it was not to be published, was held not to be a publication.^ ■When a Book is Published. ^- A book is published when printed copies are sold unconditionally to the public. " A sale naturally imports publication." ^ But sale is not essential. A work may be published by the gratuitous circulation of copies.* The question of publication cannot depend on the number of copies sold ; because a sale of ten copies, or even of one, is as clearly a publication as is the sale of ten thousand. Nor can it be essential that a single copy shall be disposed of before the work can be said to be published. The requirements of the law are met when the book is publicly offered for sale. Then the opportunity is given to the public to avail themselves of its advantages ; and if they fail to do so, even to the extent of obtaining one copy, it is through no fault of the author or publisher. But, to constitute a publication, it is essential that the work shall be exposed for sale, or gratuitously offered to the general public ; so that the public, without discrimination as to persons, may have an opportunity to enjoy that for which protection is granted. Printing itself cannot amount to a pub- lication, for the obvious reason that a book, may be withheld from the public long after it has been printed. Hence, where the publislier makes consignments of copies to other booksellers, with instructions not to sell until a specified time, publication will not take place until the copies are exposed to public sale. But, if such consignments can be properly regarded as general and unconditional sales, they will amount to a publication.* 1 Blunt V. Patten, 2 Paine, 393, public would be a publication; but the 397. order to publish would not have that 2 Betts, J., Baker v. Taylor, infra. effect. 8 See Novello v. Sudlow, 12 C. B. * Baker v. Taylor, 2 Blatchf. 8'2, 85. 177 ; Alexander v. Mackenzie, 9 Se. " It is argued for the plaintiff," said, Sess. Cas. 2d ser. 748. Belts, J., " that these alleged sales In Heine a. Appleton, Ingersoll, J., were only consignments of the work said : " The sketclies and drawings in advance of the publication, or tliat were made for the government, to be publication, by putting the book in at tlieir disposal; and Congress, by circulation, was not made until after ordering the report which contained the date of the deposit of the title, those sketches and drawings to be There is no proof to support this version publislied for the benefit of the public of the facts. A sale naturally imports at large, has thereby given them to publication. The purchaser having tlje the public." 4 Blatchf. 128. The ac- right to know the contents of tlie book, tual circulation of copies among the and make them known to others, no 292 THE LAW OP COPYRIGHT AND PLATRIGHT. Where the owner left printed copies of a musical composition with a dealer, with instructions not to sell until a named day, the sale after that time was held to be a publication.^ The publication of a part of a book is not a publication of the whole.* Neither the publication of a piano-forte arrange- ment of an opera, nor that of a few of tlie orchestral parts', is a publication of the opera itself.* In such cases, there is a publi- cation only of the part of the book or the arrangement of the opera which is published. Place of first Publication. — Great Britain. — The 8 Anne, c. 19, was, and the 5 & 6 Vict. c. 45, is, silent as to where a work must be published in order to be entitled to copyright ; but the law has been settled by the courts that the first publi- cation must be in the United Kingdom.* This doctrine is based on the ground that the chief object of the copyright statutes is the advancement of learning in Great Britain, which is attained by securing there the first publication of books. " The intention of the act," said Lord Chancellor Cairns, " is to obtain a benefit for the people of this country by the publication to them of works of learning, of utility, of amusement. . . . Tlie aim of the legislature is to increase the common stock of the literature of the country." ^ presumption can be raised that the See also Wood ». Boosey, Law Rep. riglit was not exercised, or that an 2 Q. B. 840, on ap. 8 Id. 223. actual publication did not follow the * Clementi v. Walker, 2 Barn. & Bale. On tlie contrary, the presumption Cr. 861 ; Guichard v. Mori, 9 L. J. is the other way. And the inference (Ch.) 227; Chappell v. Purday, 4 Y. & is strong, that actual publication was C. Exch. 485 ; Chappell i^. Purday, 14 made, as sworn to by the defendant, Mees. & W. 303 ; Cocks v. Purday, § anterior to the 10th of November, from C. B, 860 ; Boosey v. Purday, 4 Exch. the fact that a printed copy of the Rep. 146 ; Boosey v. Davidson, 13 work, then complete, was on that day Q. B. 257 ; Jefferys v. Boosey, 4 H. L. deposited in the clerk's ofiSce ; the de- C. 816 ; Boncicault v. Delafield, 1 Hem. posit of the book complete for circula- & M. 597 ; Low v. Ward, Law Rep. 6 tion, and tlie deposit of the title, being Eq. 415; Routledge v. Low, Law Rep. simultaneous acts. The 4th section 3 H. L. 100 ; Boucicault v. Chatterton, of the act in express words denies all 6 Ch. D. 267. benefit to a person under the act, unless * Routledge v. Low, Law Rep. 3 he shall, before the publication of his H. L. 111. " If it should be said. Why work, deposit the title-page, &c." is the publication to be construed to 1 Wall V. Gordon, 12 Abb. Pr. u. s. mean a British publication, and the (N. Y.) 849. author not to be construed a British ' Low V. Ward, Law Rep. 6 Eq. author, and the composition a British 415- composition? the answer seems to me » Boosey v. Pairlie, 7 Ch. D. 801. to be, that the publication being made STATUTORY REQUISITES. 293 When, therefore, a book is published in a foreign country before it is published in Great Britain, it becomes in the latter country puhlici juris, and may be republished by any one, unless protection he secured under the International Copyright Acts. But contemporaneous publication abroad, by which is meant a publication on the same day that the work is published in England, is not a bar to English copyright.^ And, provided the two publications be on the same day, it is immaterial whether the foreign one precedes that in England.^ Nor does it matter in how many foreign countries the work may be pub- lished, provided it appears in Great Britain at the same time. If the first publication of part of a work takes place in Eng- land, and of another part in a foreign country, English copy- right will vest in the former, but not in the latter.^ The question whether the place of publication may be in any the commencement of the term from which the monopoly is lo run, and that publication giving rights confined to Britain, and the enactments as to the entry at Stationers' Hall before the rights as to the penalties were to attach, and the obligation imposed of delivering copies to British institutions, together with the authority of Clementi V. Walker, satisfactorily show that the publication must be intended to be in England ; whilst there seems nothing in the act to show that the legislature in using the words authors and assigns had any intention of making any restriction as to the place of composi- tion, or as to any personal capacity of the author or assignee." Crompton, J., Jefferys v. Boosey, 4 H. L. C. 850. See also language of Lord Chancellor Cairns, posl, p. 294, note 2. 1 Cocks V. Purday, 6 C. B. 860; Boosey v. Purday, 4 Exch. Kep. 145 ; Jefferys v. Boosey, 4 H. L. C. 815; Buxton V. James, 5 De G. & Sm. 80. " The second question argued at the bar is scarcely separated from the first ; viz., whether the copyright which the author, or his assignee, would otherwise have had in this country, was defeated by the contemporaneous publication abroad. If it be correct to gay that a foreigner, the author of a work composed abroad, and published by him in this country, is, by the municipal law of this country, entitled to a copyright in the work, how can such right be defeated by a contempo- raneous publication abroad f In the popular sense of the word, each would be the first publication. But, if neither could be so called, we think the result would be the same ; for, that, in order to defeat the claim of copyright, a prior publication in some other place, or by some other party, should be proved." Wilde, C. J., Cocks v. Pur- day, 5 C. B. 884. 2 " With respect to the circumstance that the publication abroad and in England was not in this case exactly contemporaneous, as a publication took place at Milan a few hours before it was made in England, we conceive that this would not defeat the plaintifi^s copyright here, if he had any, as the author certainly did not mean to give the work to the foreign before he gave it to the British public ; and in no case is it intimated, that, to be entitled to a British copyright, the foreign author must give his work to the United Kingdom exclusively." Pollock, (-. B., Boosey v. Purday, 4 Exch. Kep. 157. ' Low V. Ward, Law Rep. 6 Eq. 415. 294 THE LAW OP COPYRIGHT AND PLAYEIGHT. part of the British dominions, or is restricted to a less area, was considered by the House of Lords in 1868, when the law was expounded to the effect that, while the statute of Victoria extends protection throughout the British dominions, publica- tion must be in the United Kingdom.^ The reasons for this distinction were not found in the "express intention of Parlia- ment, but were based on "various provisions and conditions contained in the act, which could not possibly be complied with, if the first publication were to take place in distant parts of the British empire." ^ The International Copyright Act declares that the author of a book, dramatic composition, or other work mentioned in that statute, which shall be first published out of the British domin- ions, shall have no copyright therein, nor the exclusive right of representation, " otherwise than such (if any) as he may become entitled to under this act." ^ This provision has been judicially construed to bar every author, native or foreign, from acquiring copyright, except under the International Copyright ' Boutledge v. Low, Law Eep. 3 H. L. 100. 2 Lord Westbury, Ibid. 117. For the extent of the United Kingdom and of the British dominions, see post, p. 298. " By the 8th section " of 5 & 6 Vict. c. 45, said Lord Chancellor Cairns, " copies of every book are to be deliv- ered to various public libraries in the United Kingdom, within one month after demand in writing, — an enactment which in the case of a publication at the antipodes could not be complied with. By the 10th section, penalties for not delivering these copies are to be recovered before two justices of the county or place where the publisher making default shall reside, or by action of debt in any court of record in the United Kingdom. By the 11th section, the book of registry of copy- rights and of assignments is to be kept at Stationers' Hall, in London, and no registry is provided for the colonies. By the 14th section, «, motion to ex- punge or vary any entry in this regis- try is to be made in the Court of Queen's Bench, Common Pleas, or Exchequer. These clauses are intelli- gible If the publication is in the United Kingdom, but hardly so if it may be in India or Australia. Finally, by the 17th section, there is a provision against any person importing into any part of the United Kingdom, or any other part of the British dominions, for sale or hire, any copyright book first composed or written, or printed and published, in any part of the United Kingdom, and reprinted in any country or place out of the British dominions ; a provision showing clearly, as it appears to me, that publication in the United Kingdom is indispensable to copyright." Eoutledge v. Low, Law Rep. 3 H. L. 109. The determination of this question was not essential to the decision of the case before the House of Lords, as the first publication of the book in controversy had been in London. The discussion grew out of the extra-judicial opinion expressed by Vice-Chancellor Kindersley at the hearing of the case, to the effect that publication might be anywhere within the British dominions. 'See Low v. Routledge, 33 L. J. n. s. (Ch.) 724. 3 7 & 8 Vict. c. 12, 8. 19. STATDTORY REQUISITES. 295 Acts, for a work first published in any foreign country, wliether an arrangement for international copyright has or has not been made with that country. In Boucicault v. Delafield,^ and in Boucicault v. Chatterton,^ the plaintiif, while resident in Eng- land, claimed, under 3 & 4 Will. IV. c. 15, and 6 & 6 Vict. c. 45, the exclusive right of representing a manuscript play, which he had caused to be publicly performed in New York before its representation in Great Britain. He was not entitled to any privileges under the International Copyright Acts, for the reason that their provisions did not apply to the United States ; and the court held that, because the drama had been first publicly represented abroad, he was barred by section 19 of 7 & 8 Vict. c. 12, from obtaining the protection to which he would have been entitled under 3 & 4 Will. IV. c. 15, and 5 & 6 Vict. c. 45, if the first performance of his play had been in Great Britain.^ United States. — The statute of the United States does not expressly prescribe that the first publication of a work entitled to copyright shall be in this country. Nor has this point been directly adjudicated, although it is settled that no coyyright can be obtained for a book unless a printed copy of the title: page shall be deposited before publication, and two copies of the book delivered within ten days after publication. But there can be no doubt that the proper construction of the act 1 1 Hem. & M. 597. is contained in the general law of 5 & 2 5 Ch. D. 267. 6 Vict. c. 45 ; and it appears to have ' A similar provision was made by been the view taken by the courts in section 14 of 1 & 2 Vict. c. 59, wliich all of the cases, excepting Boucicault was the first statute providing for y. Delafield and Boucicault v. Chatter- international copyright, and which is ton, decided since the passing of the now repealed. As each of these acts first International Copyright Act, in was passed for the purpose of extend- which it has been held that English ing protection to foreign authors whose copyright is defeated by a prior publi- works were first published in their cation abroad. For those cases were, own country, and whose country gave and the two cases just cited might reciprocal privileges to English authors, have been, properly decided without the natural purpose of the provision reference to the International Copy- above cited would seem to be simply right Acts. But it is immaterial to declare negatively that such foreign whether section 19 of 7 & 8 Vict. c. VZ, authors should not be entitled to copy- does or does not apply to cases gov- right mider that statute, unless they erned by the general statutes; for it should comply with its prescribed makes no change whatever in the law requirements. This view is strength- in those cases, ened by the fact that no such provision 296 THE LAW OP COPYRIGHT AND PLATRIGHT. is the same as that given to the English statutes, and that an author forfeits his claim to copyright in this country hj a first, but not by a contemporaneous, ppblication of his work abroad.^ A publication, to defeat the author's claim to copyright, must be one which has been made by his authority or with his con- seiit,^ Place of Printing. — The question may arise whether it is essential to the securing of copyright that the book shall be printed in the United States^ On tliis point the statutes are silent, and there is no judicial light. Evei'y require- ment which the statute prescribes concerning the vesting of copyright may be complied with, though the work has been printed in a foreign country. Nor does the purpose or spirit of the law demand that the printing shall be done in the United States. The copyright laws were passed, not for the protection of mechanical industries, but for the encouragement of native authors, and the advancement of learning, in the country. These objects are secured by the first publication here of works of literature and art ; and hence such publication is made a condition precedent of obtaining the privileges granted. But printing is a thing distinct from publication, and whether it has been done in one place or in another is a question which does not affect the true purposes of the statute. If the protection of native industry were a legitimate object of the copyright law, it might with reason be claimed that all the material processes in the production of a book should be done in the country. Copyright would then be defeated, not only by printing the work abroad, but also by setting the types and casting the stereotype-plates in a foreign country, though the copies be struck off here. So, also, it would be essential that the binding should be done in this country ; and the same principle, logically carried out, would require that the paper should be of home manufacture. It is not reasonable to sup- pose that such requirements are within the scope of the statute passed for the advancement of learning. It is clearly imma- 1 See Wall v. Gordon, 12 Abb. Pr. De Witt, 2 Sweeny (N. Y.), 530, 551, K. 9. (N. Y.), 349. on ap. 47 N. Y. 5,32 ; Shook v. Neuen- 2 Boucicault v. Wood, 2 Biss. 84, 39 ; dorfE, 11 Daily Keg. (N. Y.), 985. Crowe V. Aiken, Ibid. 208 ; Palmer v. STATUTORY REQUISITES. 297 terial where the work has been written, and the same principle should govern the question of printing.^ In England, the question is in the same condition as in this country. The statutes are silent, and the point has not been judicially determined ; btjt there are dicta to the effect that the printing must be done in Great Britain.^ Summary of the Law. ■United States. — The conditions on which copyright will vest in a work may now be summarized. In the United States, the title of a book must be recorded before publication, the copy- right notice printed on the title-page, or the page next follow- ing, and two copies of the book delivered or mailed to the Librarian of Congress within ten days after publication.^ The first publication of the work must be in this country. If any work is published without compliance with these conditions, it becomes public property. Great Britain. — In England, there are some special regula- tions in the case of prints, engravings, works of sculpture, paintings, and photographs ; and special provision is made for protecting, on certain conditions, the works of foreign authors first published abroad. Copyright will vest in any literary work of which a British subject is the author, on the sole con- dition that it is first, published in the United Kingdom, or is published there on the day of its first publication elsewhere. Copyright will vest in the work of a foreign author on the same condition, provided he be anywhere within the British dominions on the day his work is published in the LTnited Kingdom. It is immaterial where an English author may be ' " It is difficult," says Mr. Curtis, views in Jefferys v. Boosey, 4 H. L. " to extract from the act any thing like C. 983, 986. In Page v. Townsend, a tariff protection to the mere arts of 5 Sim. 395, it was held that the object paper-making and printing. Literary of the legislature was not to protect labor and the advancement of the lit- prints " which were designed, en- erature of the country were the great graved, etched, or worked abroad, and objects of encouragement." Law of only published in Great Britain." But Copyright (Boston, 1847), p. 144. this decision was based on the special ^ In Clenientl v. Walker, decided in provisions of the statute relating to 1824, 2 Barn. & Cr. 861, the court copyright in prints, expressed the opinion that the printing ^ For the variation in these require- must be done in Great Britain. Lord ments in the case of works of art, see St. Leonards gave expression to like ante, p. 265. 298 THE LAW OF COPYRIGHT AND PLAYRIGHT. at the time of publication. When copyright has once vested, protection extends throughout the British dominions.^ While valid copyright may be secured on these conditions, an action at law or a suit in equity cannot be maintained for piracy until the work has been registered in the manner prescribed by stat- ute. But sucli registration may be made at any time before the action or suit is brought. United Kingdom and British Dominions Defined. — It is impor- tant here to note carefully the meaning of the terms used. The United Kingdom embraces England, Wales, Scotland, and Ireland ; whMe the British dominions include " all parts of the United Kingdom of Great Britain and Ireland, the islands of Jersey and Guernsey, all parts of the East and West Indies, and all the colonies, settlements, and possessions of the crown which now are or hereafter may be acquired." ^ It will be noticed that the area within which the presence of a foreign author at the time of publication is required, and that through- out which copyright extends, are the same, namely, the British dominions ; wliile the place of publication is restricted to a smaller territory, — the United Kingdom.^ ^ See Routledge v. Low, Law Rep. ities in any British possession shall be 3 H. L. 100. disposed to make due provision for 2 5 & 6 Vict. c. 45, s. 2. securing or protecting the riglits of * Colonial Copyright. — The provi- British authors in such possession, and sions of the general copyright law, 5 & shall pass an act or make an ordinance 6 Vict. c. 45, apply to all parts of the for that purpose, and shall transmit the British dominions. Section 17 of this same in the proper manner to the act proliibits, under heavy penalties, Secretary of State, in order that it any person without tlie consent of the may be submitted to her Majesty, and owner of the copyright from importing in case her Majesty shall be of opinion into any English colony a book copy- that such act or ordinance is sufficient righted in Great Britain, and reprinted for the purpose of securing to British in any country out of the British authors reasonable protection within dominions. A like prohibition was such possession, it shall be lawful for made in the Customs Act, 16 & 17 her Majesty, if she think fit so to do, to Vict. c. 107, ti. 160, and is continued in express her royal approval of such act tlie Consolidated Customs Act, 39 & 40 or ordinance, and thereupon to issue Vict. c. 36, ». 42, passed in 1876. By an order in council declaring that so 10 & 11 Vict. c. 95, passed in 1847, and long as the provisions of such act or known as tlie Foreign Reprints Act, ordinance continue in force within such the Queen was empowered, by order in colony the prohibitions contained in council, to suspend in certain cases the the aforesaid acts, and hereinbefore prohibition against importing English recited, and any prohibitions contained copyrighted books into the colonies, in the said acts, or in any other acts, This act provides, " that in case the against the importing, selling, letting legislatur%or proper legislative author- out to hii:e, exposing for sale or hire, STATUTORY KEQUI SITES. 299 Duration op Copyright. In the United States, the statute grants protection in the case of all works for twenty-eight years from the time of or possessing foreign reprints of books In 1875, the Dominion Parliament first composed, written, printed, or passed an act giving copyright for published in the United Kingdom, and twenty-eight years to any person dom- entitled to copyriglit therein, shall be iciled in Canada, or in any part of the suspended so far as regards such col- British dominions, or being the citizen ony ; and thereupon such act or ordi- of any country having an international nance shall come into operation, except copyright treaty with Great Britain, so far as may be otherwise provided To secure copyright, the book must therein, or as may be otherwise directed be published or republished in Canada, by such order in council, any thing in Section 15 of this act provides that the said last-recited act or in any other " works of which the copyright has act to the contrary notwithstanding." been granted and is subsisting in the The Canadian legislature having United Kingdom, and copyright of provided for the collection of a cus- which is not secured or subsisting in toms duty of 12J per cent on foreign Canada under any Canadian or Pro- reprints of English copyright works, vincial act, shall, upon being printed the amount thus collected to go to the and published or reprinted and repub- owner of the copyright, an order in lished in Canada, be entitled to copy- council was made July 7, 1868, by right under this act; but nothing in which were suspended all prohibitions this act shall be held to prohibit tlie in the imperial acts against importing importation from the United Kingdom such works into Canada. Like pro- of copies of such works legally printed vision for protecting the rights of there." British authors have been made by The Canadian act was sent in the other colonies. Referring to the opera- form of a bill reserved for the Queen's tion of the Foreign Reprints Act, the approval ; but as there were doubts Royal Copyright Commissioners, in whether it was not repugnant to im- their report submitted to Parliament in perial legislation, and to the order in June, lrt78, p. xxxi, § 193, say : " So far council made in 1868, the 38 & 39 Vict, as British authors and owners of copy- c. 53, was passed, authorizing the Queen right are concerned, the act has proved to assent to the Canadian bill. It was a complete failure. Foreign reprints further provided by section 4 of 38 & of copyright works have been largely 89 Vict. c. 53, that " where any book introduced into the colonies, and nota- bly American reprints into the Domin- ion of Canada ; but no returns, or returns of an absurdly small amount. in which, at the time when the said reserved bill comes into operation, there is copyright in the United King- dom, or any book in wliich thereafter have been made to the authors and there shall be such copyright, becomes owners. It appears from official re- entitled to copyright in Canada in ports that, during the ten years ending pursuance of the provisions of the said in 1876, the amount received from the reserved bill, it shall be unlawful for whole of the nineteen colonies wliich any person, not being the owner, in the have taken advantage of the act was United Kingdom, of tlie copyright in only £1,155 13s. 2^rf., of which £1,084 such book, or some person authorized 13s. 3^rf., was received from Canada; by him, to import into the United and that, of these colonies, seven paid Kingdom any copies of such book nothing whatever to the authors, while reprinted or republished in Canada." six now and then paid small sums By section 5 the order in council of amounting to a few shillings." 1868 is continued in force " so far aa 300 THE LAW OP COPYRIGHT AND PLATRIGHT. recording the title.^ An additional term of fourteen years may be secured by the author, if he be living at the end of the first term, or by his widow or children, if he be dead.^ In England, the copyright in a book is granted for forty-two years from the time of first publication. If the author is living at the end of that period, the copyright will continue until seven years after his death.^ The coJ)yright in prints, engrav- ings, and lithographs lasts for twenty-eight years from the time of publication ; * in paintings, drawings, and photographs, during the life of the author, and seven years after his death ; * and in sculpture, models, and busts, for fourteen years from first publication,^ and the artist, if living at the end of that period, may secure protection for an additional term of fourteen years.^ relates to books which are not entitled as to the construction of section 4, to copyright for the time being, in pur- which provides for the extension of Buanee of the said reserved bill," the copyright in works published when The Canadian copyright act is given the statute was passed, as a schedule to 88 & 39 Vict. c. 53. < 7 Geo. III. o. 38, s. 7. The pro- See also Reserved Act, 1875, Stat. Dom. visions of the acts relating to prints Canada, 1876, p. xvii. and engravings were extended to litho- 1 U. S. Bev. St. B. 4953. graphs by 15 & 16 Vict. c. 12, s. 14. 2 Id. s. 4954. » 25 & 26 Vict. c. 68, a, 1. 3 5 & 6 Vict. c. 45, 8. B. See Mar- 6 64 Geo. III. c. 56, s. 1. zials V. Gibbons, Law Eep. 9 Oh. 518, ' Id. s. 6. STATUTORY REQUISITES. 801 CHAPTER VI. TRANSFER OF COPYRIGHT. Great Britain. — Books. By Registration. — In England, the statute provides for the transfer of copyright in books by registration, but does not require it to be done in this way. Section 13 of 5 & 6 Vict. c. 45, after providing for the registration of books in the regis- try of the Stationers' Company by the owners of the copyright, enacts " that it shall be lawful for every such registered pro- prietor to assign his interest, or any portion of his interest therein, by making entry iil the said book of registry of such assignment, and of the name and place of abode of the assignee thereof, in the form given in that behalf in the said schedule, on payment of the like sum [five shillings] ; and such assign- ment so entered shall be effectual in law to all intents and purposes whatsoever, without being subject to any stamp or duty, and shall be of the same force and effect as if such assignment had been made by deed." The entry is made on the application of the assignor, and sets forth the date of entry, title of the book, name of the assignor, and name and place of abode of the assignee. The statute makes a certified copy of the entry prima facie proof of assignment, " but subject to be rebutted by other evidence." ^ This mode of transfer appears to be available only to a " registered proprietor " of the copyright. It does not, there- fore, apply to transfers made before the original entry of copyright. In case the assignment has been made before publication, the assignee as owner would properly make the original entry. 1 S. 11. See Low v. Routledge, 38 8 M. 223 ; Graves's Case, Law Kep. L. J. N. s. (Oil.) 717, 723; Low v. 4 Q. B. 715; Booaey v. Fairlie, 7 Ch. Ward, Law Rep. 6 Eq. 415; Wood v. D. 301. Boosey, Law Kep. 2 Q. B. 840, on ap. ?-02 THE LAW OP COPYRIGHT AND PLAYRIGHT. ^ By Bequest and in Case of Intestacy. — The act further pro- vides for the transmission of copyright in case of the death of the owner. Section 25 declares " that all copyright shall be deemed personal property, and shall be transmissible by bequest, or, in case of intestacy, shall be subject to the same law of distribution as other personal property, and in Scotland shall be deemed to be personal and moveable estate." Must Assignment op Copyeight be in Writing? As registration is a mode of transfer optional with the par- ties thereto, it becomes necessary to inquire in what other manner the ownership of copyright may be passed from one person to another. The law on this point cannot be properly determined without a critical examination of the leading de- cisions on the subject, nor without carefully considering each with strict reference to tlie governing statute. It is necessary to divide the authorities into two classes, and treat each class separately : 1, those in which the decision was governed by a statute in force prior to that of Victoria ; 2, those wherein the question was controlled by the 5 & 6 Vict. c. 45. Judicial Construction of Former Statutes. — Writing but not Attestation held to be Necessary. — Every statute before that passed in the reign of Victoria was silent as to tlie mode of transferring the copyright in a book. Hence, it was left to the courts to determine the requisites of an assignment; It appears that before 1814 the chancery courts assumed that copyright might be transferred by parol.' The question was first raised in Power v. Walker, decided in that year, under 8 Anne, c. 19, which imposed penalties on any person who should print or import a copyriglited book " without the con- sent of the proprietor or proprietors thereof first had and obtained in writing, signed in the presence of two or more credible witnesses." ^ The plaintiff, whose title had been derived by parol, brought an action fbr piracy against the defendant, who pleaded the absence of a written assignment 1 " It is settled now," said Lord suit of persons claiming under assign- Eldon, " that an assignment of copy- ments not in writing, until we were set right must be in writing, although it right by a decision of the Court of frequently happened that courts of King's Bench." Bundell v. Murray, equity had granted injunctions at the Jac. 314. 2 s. 1. TRANSFER OP COPYRIGHT. 303 from the author to the plaintiff. Lord EUenhorough ruled that " the statute iiaving required that the consent of the proprietor, in order to authorize the printing or reprinting of any book by any other person, shall be in writing, the conclusion from it seemed almost irresistible tliat the assignment must also be in writing ; for if the license, which is the lesser thing, must be in writing, a fortiori the assignment, which is the greater thing, must also be." ^ This reasoning was carried to its logical conclusion in David- son V. Bohn, decided in 1848, when the court declared that, as a consent in writing signed by two witnesses was necessary to a license, an assignment to be valid must likewise be in writing and attested by two witnesses.^ A written assignment with one witness was therefore held to be invalid. The question came before the House of Lords in Jefferys v. Boosey in 1854, when a majority of the judges were of opinion that a written assignment without witnesses was good.^ It was considered that the necessity for attestation, if any existed, under the statute of Anne, had been removed by the 54 Geo. IIL c. 156, passed in 1814, which made the owner's consent in writing necessary to a license to publish, but contained no mention of witnesses. Li the Scotch case of Jeffreys v. Kyle, which will be more fully considered further on, it was also held that after the 64 Geo. IIL c. 156, attestation was not necessary to a valid assignment.* In Shepherd v. Conquest, the Court of Common Pleas, apply- ing the reasoning of Lord Ellenborough to the 3 & 4 Will. IV. c. 15, held that an assignment conveying the exclusive right of performing a play must be in writing ; and the plaintiff failed because he claimed by a parol title.^ 1 3 Maule & S. 9. Leonards and Baron Alderson were 2 6 C. B. 45B. of opinion that tlie license clause in 5 4 H. L. C. 815. the statute of Anne had not been re- * 18 Sc, Sess. Cas. 2d ser. 906. pealed by the 64 Geo. III. c. 166, s. 4, Affirmed by House of Lords, Kyle u. since the provisions of both acts as to Jeffreys, 3 Maeq. 611. license might stand together; and they Davidson v. Bohn appears to have regarded the law as settled by Power been decided under 8 Anne, c. 19. v. Wallcer and Davidson v. Bohn, that Although the case was tried many a valid assignment must be in writing, years after the passing of 54 Geo. III. and attested by two witnesses. 4 H. L. c. 156, no reference was made to this C. 994-996, 915. statute. ^ 17 C. B. 427. See also Barnett v. In Jefferys v. Boosey, Lord St. Glossop, 3 Dow. Pr. Cas. 625. 304 THE LAW OF COPYRIGHT AND PLAYRIGHT. In the following case of Cumberland v. Copeland, the plain- tiff, to whom the author had assigned a play by a writing attested by one witness, brought an action under 3 & 4 Will. IV. c. 15, against the defendant, for representing the piece without authority. The Court of Exchequer, declaring that they were bound by Power v. Walker and Davidson v. Bohn, held the plaintifTs title to be bad for want of an assignment attested by two witnesses.! But this judgment was reversed by the Exchequer Chamber, which unanimously held that an assign- ment in writing, without witnesses, was good.^ In Cumberland v. Copeland as well as in JefiTerys v. Boosey, the assignment was shown to have been in writing, but without witnesses. The point decided was that a written assignment, though not attested, is valid. The question whether a writing is necessary was not before the court. The doctrine affirmed in Power v. Walker has been recog- nized in several other cases than those here reviewed. But in most, if not all, of tliem the question was so involved with other issues that the decisions did not turn directly on this point.* The leading authorities relating to the construction of the statutes in force before the 5 & 6 Vict. c. 45, have now been reviewed. Their result is, that, before the present statute was passed, copyright could not be assigned by parol, but only by an instrument in writing, to which no attestation was required after 54 Geo. III. c. 156, became a law. The Doctrine Maintained that Assignments need not be IN Writing under English Statutes. Former Statutes Considered. — I shall now try to show that, independently of the statute of Victoria, the doctrine affirmed by the English courts is not sound, and that the 1 7 Hurl. & N. 118. dell «. Murray, Jac. 811 ; Clementl v. 2 1 Hurl. & C. 194. See iilso Marsh Walker, 2 Barn & Cr. 861 ; Barnelt v. V. Conquest, 17 C. B. n. b. 418, where Glossop, 3 Dow. Pr. Cas. 625 ; De it was held that the assignment need Pinna v. Polhill, 8 Car. & P. 78 ; Col- not be by deed. burn v. Buncombe, 9 Sim. 161 ; Hodges a SeeLatoura. Bland, 2 Stark. 882; v. Welsh, 2 Ir. Eq. 266; Chappell v. Morris ». Kelly, 1 Jac. & W. 461 ; Bun- Purday, 4 Y. & C. Exch. 485. TRANSFER OP COPYRIGHT. 305 statutes on whose construction it was based were wrongly in- terpreted. The 8 Anne, c. 19, and the 54 Geo. III. c. 156, secured to the author and his assignee the sole right of publishing a book for a named period, and declared that any other person who should during that period republish such book without the con- sent in writing of the owner of the copyright should be liable to certain penalties. In like manner, the 3 & 4 Will. lY. c. 15, gave to the author and his assignee the sole liberty of representing a dramatic composition for the term therein men- tioned, and imposed penalties on any other person who should cause such composition to be performed without the written consent of the owner. The provisions of these three acts re- lating to the vesting of the right and its protection by penalties were the same as far as concerns the question of the necessity of a written assignment.^ All were silent as to the mode of transferring the rights which they secured. The distinction between an assignment and a license is that by the former the ownership of the copyright is vested in the assignee, while by the latter the licensee acquires the privilege of publishing, but no proprietary rights in the copyright. It is conceded that the provision relating to a consent in writing does not expressly govern the mode of assignment. The theory advanced by Lord Ellenborough is that this clause must by implication be construed to apply to a transfer of the copyright, as well as to a license to publish. This reasoning would be entitled to more consideration if the act prohibited every person except the author from publishing without authority in writing. But such is not the language or the intent of the statute. It expressly declares that the author and his assignee shall have the benefit of copyright, and that any person who is not the author or assignee must show a consent in writing to publish. Now, it is clear that when piracy is charged, two defences are open to the alleged wrong-doer. He may show either that he is the author or the assignee, that is 1 As already said, the 8 Anne, c. 19, of George III, But the question required the written consent to be at- whether an assignment must be in tested by two witnesses, while no men- writing is not affected by this differ- tion of witnesses was made in the act ence between the two statutes. 20 306 THE LAW OF COPYRIGHT AND PLATEIGHT.- the owner of the copyright ; or that he has a license in writing from the owner to publish. If he can establish the first fact, he need not prove the second. Only those who cannot prore ownership are required by the statute to produce a written license. The clause in question does not, therefore, apply to the owner of the copyright.^ Hence, we must look elsewhere to ascertain what is necessary to constitute a good title of ownership. The statute recognizes as owners the author and his assignee. No difficulty is presented when the author claims as owner, since authorship creates an undisputed title to ownership. But when the owner is not the author, but derives his title from him, the inquiry is raised as to what formality is required to make the transfer valid in law. The statute secures to the author and his assignee the exclusive right of publishing a book during a specified period. If the author, before parting with his property in a manuscript work, publish it as his own, the right conferred by the statute will vest in him. The copy- right thus acquired may at any time afterward be transferred to another, who thereby becomes clothed with all the rights which were conferred upon the author, and the latter becomes divested of those rights. But the statute not only protects the title of the assignee thus derived after publication, but it also grants copyright in the first instance to the assignee as well as to the author. In other words, statutory copyright will vest ab initio either in the author or in his assignee. When, there- fore, the author has parted with his property in a work not yet published, the owner of the manuscript may become the first publisher, and thereby secure to himself the copyright conferred by the statute. As the lawful owner of the manuscript, his standing under the statute is the same as if he were the author. Here, then, are two different classes of persons embraced within the meaning of assignee as used by Parliament: 1st, those to whom an assignment of statutory copyright in a pub- 1 " T)ie statute does require the should be so proved ; but it appears to defence of license to be so [in writing] leave the assignee, suing according to proved ; and that in case of a plain- the common law, to prove his case tiff claiming under a license, and suing under that law." Erie, J., JefEerys v. for a statutable penalty, the license Boosey, 4 H. L. C. 882. TRANSFER OP COPYRIGHT. 307 lished work has been made after the securing of such right by the author ; 2d, those to whom the author's rights were trans- ferred before publication, and, consequently, before the creation of statutory copyright, and who are entitled to secure for themselves the statutory copyright by virtue of being the owners of the manuscript.^ Now, in cases wherein the title has passed before the crea- tion of the statutory right, the statute cannot rightly be con- strued to' regulate the form of transfer.^ As there can be no statutory copyright in an unpublished work, the right thus transmitted before publication exists only by common law. Hence, the mode of transfer must be governed by the common law, which is the only law applicable ; and, if the title held by the assignee is good by the common law under which it was derived, it must, in the absence of express legislation to the contrary, be equally valid under the statute. Therefore, as a parol assignment is valid when made by the common law,^ it follows that such assignment will continue to be sufi&cient under the statute in cases wherein the transfer has taken place before the vesting of the statutory copyright ; that is, before publication. What, then, is the mode of assignment after publication, and after the statutory copyright has once vested in the author ? If any formalities or requirements were prescribed by Par- liament, they would doubtless have to be observed. But, as already said, the statute is silent on this point. Hence, ac- cording to a well-established rule of construction, the mode of transfer can be governed only by the common law ; and by the common law, as has been said, a good assignment may be made by word of mouth. Lord EUenborough's theory, that the mode of assignment is impliedly governed by the clause of the statute requiring a license to be in writing, has been applied indiscriminately to all cases of transfer, whether made before or after publication. 1 See ante, pp. 238-242. the plaintiff below stands ; for he took " Mr. Justice Erie rightly said ; by assignment, before publication, " Even if the statute should be held to when the statute had no operation." annul the property after publication, Jefferys v. Boosey, 4 H. L. C. 878. still it leaves the property before publi- » See ante, p. 104. cation as it was ; and then the right of 308 THE LAW OP COPYBIGHT AND PLATRIGHT. The important distinction between an assignment made prior and one subsequent to the vesting of the statutory copyright appears either not to have been observed, or to have been disregarded. I have tried to show that this construction of the statute is erroneous in either case. But, whatever grounds there may be for enlarging tlie meaning of the license clause so as to embrace an assignment of the copyright in a pub- lished work, they wholly disappear in the case of a transfer made before publication. The clause of the statute which im- poses penalties on any person publishing a book without the written consent of the owner of the copyright applies only to one who reprints what has already been published. Statutory copyright begins with publication, before which it has no exist- ence, and hence can neither be violated, nor protected by statutory penalties. It exists only for a given term, and it is only during this period that its invasion is guarded against by penalties. The right must exist before it can be violated, and it cannot exist before publication. The statute does not pro- hibit or impose penalties for the unauthorized publication of a manuscript, but only for the unlicensed republication of a work in which copyright has vested. Such is the plain reading of the 8 Anne, c. 19, and of the 54 Geo. III. c. 156 ; but this meaning is put beyond doubt by the language of 5 & 6 Vict, c. 45, s. 15, which prohibits any person, without the written consent of the owner, from printing " any book in which there shall be subsisting copyright." The clause imposing penalties in the absence of a written license applies, therefore, solely to published productions. The penalties cannot attach nor the written license be required for an act done before publication, and before the statutory right vests. The provision does not apply to what is done oufside of the statute. Now, we have seen that the section which se- cures copyright to the assignee recognizes assignments made before as well as those made after the vesting of the statutory right. It is, therefore, more extensive in its operation than the clause requiring a written license. Hence, if the reasoning were sound that an assignment made after publication must be in writing, because a license in writing is required to reprint a published work, the analogy fails when the transfer has been TRANSFER OP COPYRIGHT. 309 perfected before publication; since, before publication, the license clause of the statute has no force. The cases which have been reviewed present a marked in- stance of the force of the custom, too common in English and American courts, of following precedent without examining the suEBciency of the grounds on which such precedent is based, and without seeking to ascertain the true principles by which alone the law can be rightly determined. When the question as to the validity of a parol assignment of copyright came before Lord Ellenborough in Power v. Walker, there was neither judicial authority nor express statutory directions on the subject.^ The point appears not to have been thoroughly considered in that case, and the supposed meaning of the statute was reached by applying to one of its clauses reasoning as fallacious as it was novel. The judgment in Davidson v. Bohn, the next case in which the issue was directly tested in a court of law, was based solely on the precedent of Power v. Walker ; and in every subsequent case, in which the construc- tion under consideration has been affirmed or recognized, it has been affirmed or recognized simply on the authority of those two cases. Of course, to adopt Lord EUenborough's conclusion is to accept his reasoning. But his reasoning as well as his conclusion, when accepted, has been accepted on his authority, and without inquiry as to its soundness.^ Judicial Opinions Against the Soundness of the Prevailing Doc- trine. — While the doctrine founded on the authority of Lord Ellenborough, that copyright could not be transferred by parol under the statutes preceding that of Victoria, has not been over- ruled in any case yet reported, its soundness has been disputed or questioned by many British judges. Li expressing his opinion in the House of Lords, in JefFerys v. Boosev, Mr. Justice Cole- ridge said of Power v. Walker and Davidson v. Bohn : " It is remarkable that both these are cases merely of refusing a rule for a new trial, the latter mainly proceeding on the authority of the 1 The question had not been deter- conyinced that, if Lord Ellenborough mined by a court of law. See ante, had held a parol assignment to be p. 302, note 1, as to the course of the eufacient, this construction would have chancery courts. been followed and confirmed in subse- 2 In view of the potent influence of quent cases, precedents in the English courts, I am 310 THE LAW OP COPYRIGHT AND PLATRIGHT. former, and neither of them fully argued ; both, I must take leave to say with most sincere respect, founded on reasoning which is any thing but satisfactory." ^ In Cumberland v. Copeland, in the Court of Exchequer, one of the judges questioned the soundness of the judgments in Power v. Walker and Davidson V. Bohn, and another expressly declared that those cases had been wrongly decided ; but both thought they were bind- ing precedents. Baron Bramwell used the following strong language: " If I had for the first time to construe the statute of Anne, I should not put upon it the construction which the court did in Power v. Walker. It seems to me that the whole difficulty is attributable to the mistake which I cannot help thinking the court made in that case. They construed the statute as requiring an assignment of copyright to be in writ- ing, not as a consequence of the necessity of a license in xy^riting signed by two witnesses, in order to justify what would otherwise be a piracy ; but, as an inference or conclusion from such a license being required, they considered that an assign- ment of copyright must also be in writing. That decision was corroborated in Davidson v. Bohn, and recognized in the House of Lords, and it is now too late to question it." ^ In Jeffreys 1 4 H. L. C. 906. " The statute of such as claim under an assignment in Anne," said the same judge, " speaks, writing So attested." Ibid. 905. in respect of works already printed, ' of Mr. Justice Crompton thought that the author who hath not transferred to Power v. Walker was a binding au- any other, the bookseller, the printer, thority; but said that he would "not or other person or persons, who hath stop to inquire how far such a doctrine, purchased or acquired the copy of a if now propounded for the first time, book 'in order to print the same;' might or might not be satisfactory." and in respect of books not then Ibid. 854. printed and published, it speaks of See also the views of Erie, J., ante, 'the author and his assignee or as- p. 306, note 1, p. 307, note 2. signs : ' in both cases being entirely ^ 7 Hurl. & N. 133. " I am not silent as to any special form of trans- prepared to say," remarked Channel, fer or attestation, and using words B., "that if I had to construe those which embrace assignees in law, and statutes [8 Anne, 0. 19, and 54 Geo. by derolution, as well as assignees by III. c. 156] for the first time, I should act of the parties. This is the part of concur with the decisions in Power w. the section which either confers or Walker and Davidson v. Bohn ; but we regulates the limited copyright; and cannot overrule them. If I am right because, in the penal part of the clause in my view that the statute of Anne which follows, an exception is made in is in force for some purpose, I must favor of those who are licensed by a construe it according to the decisions, consent in writing, attested by two although not satisfactory to my mind." witnesses, it has been twice held that Ibid. 185, the assignees in the first part must be TRANSFER OF COPYRIGHT. 311 V. Kyle, three of the four judges of the Scotch Court of Session expressed their dissatisfaction with the doctrine propounded by Lord Ellenborough. " If the question," said Lord Deas, " were now to be decided as to the construction of the act of Queen Anne, I should agree with those who think that the statute did not regulate the form of assignments, but only the form of license to publish, and that the form of assignments was left to be regulated by the common law. Assuming copyright to be the creature of statute, and to cover only publications by British subjects within Britain, it appears to me that, when property has been so created, and the form of assignments not regulated, these are to be what the common law requires." ^ It is hardly necessary to add, that the views above quoted are in the nature of ohiter dicta, and therefore have no binding force as precedents ; but, as the opinions of able jurists speak- ing from the bench, they should at least show the necessity of a thorough judicial examination of the doctrine under consid- eration, in order to determine what is the sound law on this subject. Does Present Statute Require Assignment to be in 'Writing ? We have thus far considered the question of assignment solely in connection with the statutes passed before the reign of Vic- toria, with the view of showing that, not even under those acts on which it is based, can the construction announced by Lord Ellenborough be sustained. But suppose Lord BUenborough's reasoning to be sound, and that the acts to which it was applied were rightly construed, will the statute now in force admit of 1 18 Sc. Sess. Cas. 2d ser. 914. own judgment would not readily lend Lord Ivory, referring to Power v. its consent to the reasons upon which Walker and Davidson v. Bohn, said : it proceeds." Ibid. 915. See also the "I confess, with reference to these au- views of the same judges given post, thorities, although not satisfied with pp. 814, 315, as to the construction of the grounds on which they are rested, 5 & 6 Vict. c. '45. that I should be slow to disturb au- Mr. Justice Byles, in Lacy v. Toole, thorities which had been pronounced 15 L. T. n. 8. 512, after asking counsel and acted on so long." Ibid. 910. whether there was any provision in 3 Lord President M'Neill, citing Power & 4 Will. IV. c. 15, as to the attesta- V. Walker said : " That decision, tion of an assignment of the right to standing for a long time undisturbed, represent a drama, said : " Nor does it would certainly be one which I should seem that there is any provision even be unwilling to go against in the con- that an assignment must be in writing." struction of the statute, although my 312 THE LAW OP COPYRIGHT AND PLATEIGHT. the same construction ? The affirmative of this question is supported by a single chancery decision. In the recent case of Leyland v. Stewart, the Master of the Rolls ruled that the con- struction given to the earlier statutes is applicable to the 5 & 6 Vict. c. 45, and that, under this act, an assignment, unless made by entry in the registry at Stationers' Hall, must be in writing.-^ In my judgment, this decision is wrong ; and is the result of following the earlier authorities, in disregard of the plain provisions of the existing statute. This statute contains lan- guage which should remove all doubt concerning the mode of transfer since it was passed. Like the earlier statutes, it makes the printing of a book in which copyright has vested unlawful without the written consent of the owner ; and excepting the definition of assigns, and the provision relating to transfer by registration, bequest, and in case of intestacy, it contains no express enactment concerning the mode of assignment. It employs the word assignee in the same sense in which it was used in the antecedent acts ; but, unlike those acts, it ex- pressly defines the meaning which the word shall have. Section 2 declares that " the word ' assigns ' shall be construed to mean and include every person in whom the interest of an author in copyright shall be vested, whether derived from such author before or after the publication of any book, and whether ac- quired by sale, gift, bequest, or by operation of law, or other- wise." This language seems to be conclusive of the question under consideration. It is at once a definition of an assignee and of an assignment. It declares in effect that any transfer which vests the rights of the author in the assignee shall be valid, whether made before or after publication, whether under the statute or the common law, and whether by sale, gift, bequest, or by operation of law, or otherwise. The formality of a writing is not required. If the transfer be made under the common law before the vesting of copyright, and be valid by that law, its validity is recognized by the statute. If, either before or after statutory copyright has vested, the author by parol sells or gives his interest to another ; or if the right passes in case of bankruptcy, marriage, or intestacy, or other- wise by the operation of law, although there be no writing, — I 4 Ch. D. 419. TRANSFER OP COPYRIGHT. 313 the transmission will come within the above definition, and meet the requirements of the statute. In other words, a sound con- struction of the statute must lead to the conclusion, that a parol transfer of co^jyright, whether made before or after pub- lication, is good in law. Authorities in Favor of Doctrine that under Present Statute Copyright may be Transferred by Parol. — In harmony with this view are the judgment of the Common Bench in Cocks v. Vxxv- day,^ and the dicta of the Scotch judges in Jeffreys v. Kyle.^ In the former case, it appeared that the plaintiff had bought from Hoffmann, of Bohemia, the exclusive right of publishing in Great Britain a musical composition which at the time of pur- chase had not been published anywhere. Hoffmann had bought the composition from the author, Labitzky. No writing ap- pears to have passed between these two persons ; but by the Austrian law, which prevailed in Bohemia, a parol transfer of copyright was valid. The sale by Hoffmann to Cocks was made by letter, and no formal assignment was executed until nearly a year after the latter had published and copyrighted the work in England. The defendant argued that the plaintiff's title was not good, because it had not been derived by a writ- ten assignment. The court, after quoting the definition of assigns in section 2 of 5 & 6 Vict. c. 45, said: "There being then a sale in this case valid by the law of Austria, where it was made, the interest of the author became vested in the plaintiff before publication, so as to make him an assignee within the meaning of the third section ; and he, therefore, had a good derivative title." ^ If the statute of Victoria can be rightly construed as requir- ing every assignment, whether made before or after publica- tion, to be in writing, this decision is clearly wrong. In such case, it would be immaterial whether the transfer were good or bad under a foreign law. The question would be wholly gov- erned by the English statute.* But the judgment in Cocks v. 1 5 C. B. 860. as to the validity in England of an as- 2 See post, p. 314. signment valid in Milan. See also s Wilde, C. J., 5 C. B. 885. Chappell v. Purday, 14 Mees. & W. 4 The judges who advised the 303. The principle which governs the House of Lords in JefEerys v. Boosey, question is clear. An assignment of 4 H. L. C. 815, were divided in opinion English copyright made after publica- 314 THE LAW OF COPYBIGHT AND PLAYRIGHT. Purday is sound ; and is an express authority to the effect that, when a valid transfer, whether by writing or parol, is made before publication, it must be held to give the assignee a good title under the statute. It is true that what the court directly decided was that the transfer of the property in an unpublished work made in a foreign country, and valid by the law of that country, must be held as giving to the English buyer a good title in England. But the principle is the same when a sale of an unpublished work is made in England under the common law. The court in this case did not consider the question of an assignment made after publication. At the trial of Jeffreys v. Kyle before the Lord President, the title acquired by the plaintiff, who had bought a song from the author, and registered himself as owner of the copyright under 5 & 6 Vict. c. 45, but who had no other writing than the author's receipt for the purchase-money, was held to be valid. This decision was affirmed by the Court of Session,^ and by the House of Lords,^ which held that an assignment made after the 54 Geo. III. c. 156, need not be attested. But the question as carelessly brought on appeal before these two tribunals was as to the necessity of attestation ; and the court was precluded by the pleadings from directly passing on the validity of a parol assignment. Nevertheless, three of the four judges of the Court of Session questioned, as has already been shown,^ the soundness of the construction which had been given by the English courts to 8 Anne, c. 19, and 54 Geo. III. c. 156 ; and maintained that, whatever might be the true mean- ing of those statutes, a writing could, not be considered neces- sary under the 5 & 6 Vict. c. 45. " Even before that statute," said Lord Ivory, " there were other titles than the mere title of a deed of assignment, which effectually carried the property tion, is an assignment of a right granted the common law, or if made in a for- and regulated by an English statute, eign country and is valid by the law of If any form is prescribed or required that country, the buyer becomes the by the statute, the assignment, wher- owner of the property, and is an as- ever made, must be in that form. But signee entitled to secure the statutory a transfer of the property in an un- copyright, provided the work be a published work is not a transfer of a proper subject of copyright, statutory right, and hence is not gov- i 18 Sc. Sess. Cas. 2d ser. 906. erned by the statute. If the transfer ^ Kyjg ». Jeffreys, 8 Macq. 611. is made in England and is good by ' .dnte, pp. 310, 311. TRANSFER OP COPYRIGHT. 315 of copyright ; e. ^., in a case of bankruptcy. T^'ere it has been held that the transference is good. So also in intestacy, where a party takes up the rights of his ancestor, what car- ries the property of the deceased also effectually carries the copyright belonging to him. The legal effects of marriage have the same effect. In the event of her marriage, all right would be carried from Miss Cook to her husband. Therefore it would be difficult to hold that all right of transfer was to be denied under the statute. In short, there are a great many cases in which, it being essential that the party to whom the right is to be transferred should be vested in such right, and properly secured, still that such right is carried by common law without any formalities. The statute of Victoria does away with all that ; because it says, in its interpretation clause, that the word assigns shall be construed to mean and in- clude every person in whom the interest of an author in copy- right shall be vested, whether derived from such author before or after the publication of any book ; and whether acquired by sale, gift, bequest, or by operation of law, or otherwise. And in its operative clause, section 13, it goes on to deal with the question of succession of a legal assignment." He then ex- pressed the opinion, that " a party holding a good assignment at common law would have been supported in any question raised under the recent statute " of Victoria.^ The Lord President, M'Neill, thought that, under the defi- nition of assigns in the statute of Victoria, " any thing that would instruct a sale or gift, or any right in that way whatever, would make the party in whose favor such gift was made proprietor." ^ In Hazlitt v. Templeman, where it appeared that the copy- right in a work, of which the plaintiff was author, had been registered under the statute of Victoria, with the verbal con- sent of the plaintiff, in the name of the defendant as owner, it was held that such registration was prima faeie evidence of the defendant's title, which was not rebutted by the absence of proof of a written assignment.^ But the facts in this case and 1 18 Sc. Ses8. Cas. 2d ser. 911. 2 Ibid. 917. 8 13 L. T. N. s. 593. 316 THE LAW OP COPYEIGHT AND PLATRIGHT. the questions involved were such that the decision throws little light on the question of assignment. Leyland v. Stewart,^ then, is the only case yet reported in which it has been held that an assignment under 5 & 6 Vict. c. 45, must be in writing ; and this was a suit in chancery in which the Master of the Rolls, overlooking or disregarding the significant definition of assignee contained in it, applied to that statute the same construction whicli had been given to tlie earlier ones. Opposed to this decision is the authority of the Common Pleas in Cocks v. Purday,^ the judgment of the Lord Ordinary in Jeffreys v. Kyle, and the dicta of a majority of the Court of Session in the same case.^ Prom this review of the question, it will be seen that the law governing the form of assignment under the statute now in force cannot be regarded as judicially settled. But the weight of authority, taking those cases in which alone this statute has been considered, and which alone can be regarded as binding authorities on the question of its meaning, is in favor of tlie doc- trine that the copyright in a book may now be assigned by parol. I have tried to show that the accepted construction of the earlier statutes is wrong; that its soundness has been ques- tioned by many able jurists ; and that, whether sound or un- sound, the authorities by which it is supported cannot be regarded as settling the judicial construction of the statute now in force. I have thus treated the subject, in the belief that, when the question shall again be brought before a high judicial tribunal, the law will be carefully and thoroughly examined with special reference to the statute of Victoria, and determined, not by precedent, but by sound principles. Engravings, Paintings, Photographs, &c. Engravings and Prints. — The statutes relating to prints and engravings do not prescribe the mode of assigning the copy- right ; and the law in such case has not been judicially deter- mined. Parliament has prohibited the publication of such productions without the written consent of the owner, signed in the presence of two witnesses. If the mode of transfer is 1 i Ch. D. 419. 2 6 c. B. 860. ' 18 Sc. Sess. Cas. 2d ser. 906. TRANSFER OP COPYRIGHT. 317 governed by this provision, as in the case of books, it will fol- low that an assignment must be in writing, and signed by two witnesses.! But section 2 of 8 Geo. II. c. 13, has an important bearing on this question. It provides " that it shall and may be lawful for any person or persons who shall hereafter pur- chase any plate or plates for printing from the original proprie- tors thereof, to print and reprint from the said plates without incurring any of the penalties in this act mentioned." This seems to be a bar to applying to the license clause in the case of engravings the same reasoning that has been applied to the license clause in the case of books. The true construction of the provision above quoted would appear to be, that any person may acquire the copyriglit in an engraving by buying the plate ; and there is nothing in the statute and no principle which requires that such sale of the plate or transfer of the copy- right shall be accompanied by a writing. Maps. — As maps are within the provisions of tlie statute relating to books,^ the mode of transferring the copyright must be the same as in the case of books. Paintings, Drawings, and Photographs. — In the Cllse of these productions, the assignment of tlie copyright must be in writ- ing, but need not be attested. Section 3 of 25 & 26 Vict. c. 68 declares that " all copyright under this act shall be deemed personal or moveable estate, and shall be assignable at law ; and every assignment thereof, and every license to use or copy by any means or process the design or work which shall be the subject of such copyright, shall be made by some note or memorandum in writing, to be signed by the proprietor of the copyright, or by his agent appointed for that purpose in writing." * Registration of the assignment is made necessary to give the assignee the benefits of the act ; * but the statute does not pro- vide for transferring the copyright by means of registration. The statute further provides that, when any person makes for another, or sells to another any painting, drawing, or the 1 8 Geo. II. c. 13, 8. 1 ; 17 Geo. III. ° See Strahan v. Graham, 16 L. T. c, 57. y 8. 87, on ap. 17 Id. 467. 2 See ante, p. 174. * s- *■ Graves's Case, Law Eep. 4 Q. B. 715. 318 THE, LAW OP COPYRIGHT AND PLAYRIGHT. negative of any photograph, the former shall not retain the copyright, except by an agreement in writing signed by the latter; and the latter shall not acquire the copyright, except by a like agreement signed by the former.^ Mode op Transfer in the United States. It is to be regretted that, in copying from the statute of Anne the license clause, which in England has given rise to an unsatisfactory and questioned construction of the law governing the transmission of copyright, Congress has failed to prescribe in unmistakable language the requisites of a good assignment. Former Statutes. — The act of 1790 2 and that of 18313 prohibited any person from publishing a copyrighted book without the owner's consent in writing, signed by two wit- nesses. Both were silent respecting the mode of transfer. The first and only legislation on this point before 1870 was the supplemental act of 1834, which declared " that all deeds or instruments in writing for the transfer or assignment of copyrights, .... shall and may be recorded in the office where the original copyright is deposited and recorded." * What form of assignment was requisite or sufficient under these several acts is a question which has not received thorough judicial consideration. The Supreme Court of New York, in 1882, following the English decision in Power v. Walker, ruled that an assignment under the act of 1790 must be in writing, but that a verbal agreement to assign was valid." Besides this decision of a State court, there are dicta respecting the form of assignment by two justices of the Supreme Court of the United States. In Stevens v. Cady, Mr. Justice Nelson, applying the English theory to the license clause ^ of the statute of 1831, remarked that an assignment " must be in writing, and signed in the presence of two witnesses ; " but added that it was " unnecessary, however, to express an opinion upon this point." ^ In Little v. Hall, Mr. Justice McLean said obiter that " a formal transfer of a copyright by the supplementary act of 1 s. 1. 5 Gould V. Banks, 8 Wend. (N. Y.) 2 8.2; 1 U.S. St. at L. 124. 562. 8 s. 7; 4 Id. 438. ^ b.T. * Id. 728. ' 14 How. 532. TRANSFER OP COPYRIGHT. 319 the 30th of June, 1834, is required to be proved and recorded as deeds for the conveyance of land ; and such record operates as notice." ' But this question was not before the court. Mr. Curtis, more soundly interpreting the meaning of the act of 1834, says : " This statute seems to recognize the doctrine that transfers of copyright must be in writing; but it does not expressly declare that they shall be so." ^ Meaning of Statute in Force. — There is, then, no reported decision which can be regarded as an express authority, bind- ing on the federal courts, to the effect that, under the statute cited, an assignment of copyright was required to be in writing. It remains to consider the statute passed in 1870, and now in force. Its meaning respecting the question under consideration has not been judicially considered. Like the antecedent acts, it declares unlawful the publication of a copyrighted book " with- out the consent of the proprietor of the copyright first obtained in writing, signed in presence of two or more witnesses." ^ Unlike those statutes, it provides that " copyrights shall be assignable in law, by any instrument of writing, and such assignment shall be recorded in the office of the Librarian of Congress within sixty days after its execution ; in default of which it shall be void as against any subsequent purchaser or mortgagee for a valuable consideration, without notice." * Mode of Transfer before PubUcation. — Whatever effect these provisions may have respecting the requisites of an assignment of the copyright in a published book, the statute cannot, in my judgment, be rightly construed as governing a transfer made before publication, and hence before the statutory right attaches. In other words, if the statute can be considered as regulating the mode of transfer, it is only in the case of works in which the statutory copyright has vested that it "can have this effect ; and such copyright will not vest in an unpublished work.^ The important distinction between a transfer made before and one 1 18 How. 171. an inchoate or equitable statutory 2 Law of Copyright (Boston, 1847), right may exist in a worls between the p. 233. time of filing the title and the time of 3 U. S. Rev; St. s. 4964. publication. The question must be * s. 4956. treated with reference to the general 6 It is not necessary here to con- rule, that only published works are pro- sider the exceptional case in which tected by statutory copyright. 320 THE LAW OP COPYEIGHT AND PLATRIGHT. made after statutory copyright has vested, which is to be ob- served in determining whether the mode of assignment is governed by the statute, has been fully considered in the examination of the English statutes, which, in this respect, are like our own.^ It is enough here to add, that the act of Congress now in force expressly provides for granting copyright in the first instance to the owner of a manuscript ; ^ and hence copyright will vest ah initio in the owner, whether he is or is not the author. When, therefore, a person has become pos- sessed of the author's property in an unpublished work, he is the proper one, as owner, to secure the statutory copyright. As his title was acquired before publication, its validity is de- termined by the common law under which it was derived, and not by the statute.^ Must Assignment of Copyright in Published Book be in Writ- ing? — We come now to the inquiry, whether the statute pre- scribes the mode of assigning the copyright in a published work. The solution of this question depends on the meaning to be given to sections 4955 and 4964 above referred to. The latter makes no reference, direct or indirect, to the subject of assignment ; but the theory has gained currency in England, from whose statutes this clause has been copied, and, as we have seen, has been twice recognized in this country, that the provision under consideration, though intended to apply simply to licenses to publish, must be construed to prescribe the mode of assigning the copyright. I have already endeavored to show that this construction is unwarranted and indefensible.* As it is not supported by any authority binding on a court of the United States, it is to be hoped that, when the question is presented for judicial determination, the subject will be thor- oughly examined, and the decision grounded on sound prin- ciples. The only express provision in the Revised Statutes relating to assignments is section 4956, which declares that " copyrights 1 Ante, pp. 306-308. was no writing. It was " regarded as 2 U. S. Kev. St. 8. 4952. an assignment by operation of law." 8 In Little u. Gould, 2 Blatchf. 165, Conkllng, J., Ibid. 188.- To the same 362, the author's rights in manuscript effect is Lawrence v. Dana, 2 Am. reports were held to have passed to L. T. E. tt. s. 402. the Secretary of State, although there * Ante, p. 804 et seq. TRANSFER OP COPYRIGHT. 321 shall be assignable in law by any instrument of writing," and provides for the recording of such assignments. This language plainly shows that an assignment need not be attested. Any writing, clearly expressing the intention of the' parties to that efifect, will be sufficient to pass the ownership of copyright. It has also been decided that an assignment, though not recorded, will be valid as between the parties, and as to all other persons not claiming under the assignor.^ Does section 4955 require that an assignment of copyright to be valid under the statute must be in writing ? If Congress intended to make such a law, it failed to use the proper lan- guage for that purpose. The words, " copyrights shall be assignable in law by any instrument of writing," are declara- tory, and not mandatory. Their true meaning, as determined by established principles of construction, is, that copyright is transferable, and that a simple writing, without attestation, seal, or other formality, shall be sufficient as a valid assign- ment. The act does not expressly declare, and its language strictly interpreted does not imply, that a writing shall be necessary, and that an assignment not in writing shall be void. But it is reasonable to suppose that, in enacting this provision. Congress intended to regulate the mode of transferring copy- right, and to make a writing essential to a valid assignment. And the courts may construe the statute in accordance with this intent, rather than follow the strict meaning of the lan- guage used. The question, therefore, as to the form of assignment remains for judicial determination. But whatever the law may be de- clared to be in the case of assignments made after publication, the statute cannot rightly be held to apply to transfers of literary property made before publication. In such case, the form of assignment is governed by the common law, which, as has been shown, recognizes the validity of parol transfers.^ Transmission by Bequest and in Case of Intestacy. — By sec- tion 4952, copyright is secured to the executors or adminis- trators of' the owner. It may, therefore, be transmitted by 1 Webb V. Powers, 2 Woodb. & M. was the same in effect as that con- 497 610. This case was decided under tained in the statute now in force, the act of 1834, whose governing clause ^ See ante, p. 104. 21 322 THE LAW OF COPYRIGHT AND PLATRIGHT. bequest ; and there seems to be no good reason why, in case of intestacy, it will not pass to heirs without the necessity of a writing.^ In Case of Bankruptcy. — The question whether copyright will pass from a bankrupt to his assignee without a writing does not appear to have been directly adjudicated. In Mawman V. Tegg, where it appeared that the author, who was one of the original owners and publishers of a work, had gone into bank- ruptcy, and his copyright had passed to assignees, from whom it was bought by the plaintiffs, Lord Eldon said : " Whatever question there may be in some cases, whether an interest in copyright does or does not pass without writing, it would, I apprehend, be difficult to maintain that there must be an in- strument in writing between the bankrupt and his assignees." ^ It has been held that statutory copyright must be in exist- ence before it can be assigned in law.^ But an agreement may be made to assign at a future time ; * in which case an equitable title may vest in the assignee.^ So the owner's common-law rights may be assigned before publication ; in which case the statutory copyright may be secured by the assignee.^ 1 In Latour v. Bland, Abbott, J., " It is true,'' said Vice Chancellor said, that under the statute of Anne, Shadwell, in Sweet v. Shaw, " not which was silent concerning the trans- only with respect to an assignment, mission of copyright by bequest and but also with respect to a lease, as in case of intestacy, " if the author Littleton points out, that there cannot died without assigning his copyright, be a release of a future right, and in the interest would go to his heirs." 2 consequence, there cannot be an assign- Stark. 885. Lawrence v. Dana, 2 Am. ment of any thing that does not now L. T. R. N. s. 402, was a case in which exist." 3 Jur. 219. copyright had been transmitted to In Little v. Gould, 2 Blatchf., the heirs ; but whether by bequest or contract between the Secretary of otherwise does not appear from the State of New York and the plaintiffs report. had reference to matter not in exist- 2 2 Russ. 392. In re Curry, the ence, and it was declared to be an Irish Commissioner in Bankruptcy ex- assignment of copyright. The equita- pressed the opinion that copyright ble title clearly passed to the plaintiffs, would pass to the bankrupt's assignee The court seems not to have expressly without a writing. 12 Ir. Eq. 391, considered the question of the legal 392. See also the views of Lord Ivory, title. ante, pp. 314, 315, and Stevens v. Ben- « Gould v. Banks, 8 Wend. (N. Y.) ning, 1 Kay & J. 168, on ap. 6 De G., 662 ; Leader v. Purday, 7 C. B. 4. M. & G. 223. 5 Sims v. Marryat, 17 Q. B. 281 ; 8 Colburn v. Duncombe, 9 Sim. 151 ; Lawrence t>. Dana, 2 Am. L. T. E. Sweet .;. Shaw, 3 Jur. 217 ; Pulte v. n. a. 402. Derby, 5 McLean, 328 ; Lawrence v. ^ See ante, pp. 238-242. Dana, 2 Am. L. T. E. n. s. 402, 414. TRANSFER OF COPYRIGHT. 323 Form of "Written Assignment. — No particular form of writing has been prescribed as essential to make a good assignment. There appears to be no reason why any writing may not be sufficient which clearly expresses that an assignment of the copyright is made for a good consideration. It has been held in two English cases that a receipt for the purchase-money is not a valid assignment of the copyright. But in one it appeared that the receipt had been destroyed, and the plaintiff denied that he had made an assignment to the defendant.^ And in the other the receipt had reference to the sale of the American copyright alone ; ^ moreover, the decision was ren- dered before the doctrine of Davidson v. Bohn, that two wit- nesses are necessary to a valid assignment, had been overruled. In the Scotch case of Jeffreys v. Kyle, Lords Ivory ^ and Wens- leydale* expressed the opinion that a receipt is sufficient as an assignment. There seems to be no reason why the same writing may not serve as a receipt for the purchase-money and an assignment of the copyright.^ But, to operate as an assignment, it would doubtless be necessary that the writing should contain the agreement itself by which the copyright has been passed. "When the agreement is expressed in one paper, and the pay- ment of the money acknowledged in another, the former, and not the latter, is obviously the assignment. And not unfre- quently the money for the copyright is paid, and a receipt given, on an agreement that the assignment shall be made at some future time. In this case, no transfer is effected when the re- ceipt is passed ; and a writing which shows that such was the agreement cannot operate as a legal assignment.^ In Cocks V. Purday, a sale made by letter was held, under the circumstances, to be a valid transfer.^ 1 Latour v. Bland, 2 Stark. 382. * For the effect which a receipt 2 Lover v. Davidson, 1 C. B. n. s. may have on the agreement of the ]^32. parties, see Howitt v. Hall, 6 L. T. 3 " If there is not here," said Lord n. s. 348 ; Strahan v. Graham, 16 Ivory, " an express assignation, there L. T. n. s. 87, on ap. 17 Id. 457. is certainly an implied assignation, " Colburn v. Buncombe, 9 Sim. corroborated by the writing in tliis 151 ; Sims v. Marryat, 17 Q. B. 281 ; lady's book, in which she notes the Levi v. Rutley, Law Rep. 6 C. P. 523. disposal of her copyrights." 18 Sc. ' 5 C. B. 860. See this case con- Sess. Cas. 2d ser. 911. sidered ante, p. 313. i 3 Macq. 617. 324 THE LAW OP COPYRIGHT AND PLATBIGHT. In Lacy v. Toole, which was an action against the defendant, for representing a play written by the plaintiff, the defence was that the latter was not the owner of the playright in the piece. A letter was produced in which the plaintiff, in reply to a letter from a third person, had written to the latter, " I accept the offer you therein make me, and agree to the conditions you propose for cancelling my debt to you ; viz., to let you have my drama of Doing for the Best, in discharge of j£10 of the sum due." The court expressed the opinion that this letter was a valid assignment, but left it to the jury to find whether the agreement was to transfer the property in the play, or simply to license its use. The verdict was in favor of the defendant, and the letter was accordingly held to amount to an assignment.^ Sale of stereotype Plates. — As the copyright in a work is entirely distinct from the property in the stereotype plates from which it is printed, a sale on execution of such plates gives to the buyer no right to print and publish copies of the work.^ But when the owner of the copyright voluntarily sells 1 15 L: T. N. s. 512. 2 Stevens v. Cady, 14 How. 528; Stevens v. Gladding, 17 Id. 447; Carter v. Bailey, 64 Me. 458, " The sole question is," said Mr. Justice Curtis, "whether the mere faut that the plaintiflF owned the plate, attached to it the right to print and publish the map, so that this right passed with the plate by a, sale on execution. And upon this question of the annexation of the copyright to the plate it is to be observed, first, that there is no neces- sary connection between them. They are distinct subjects of property, each capable of existing, and being owned and transferred, independent of the other. It was lawful for any one to make, own, and sell this copperplate. The manufacture of stereotype plates is an establislied business, and the ownership of the plates of a book under copyright may be, and doubtless in practice is, separated from the ownership of the copyright. If an execution against a stereotype founder were levied on such plates, which he had made for an author and not deliv- ered, the title to those plates would be passed by the execution sale, and the purchaser might sell them, but clearly he could not print and publish the book for which they were made. The right to print and publish is therefore not necessarily annexed to the plate, nor parcel of it. "Neither is the plate the principal thing, and the right to print and pub- lish an incident or accessory thereof. It might be more plausibly said that the plate is an incident or accessory of the right; because the sole object of the existence of the plate is as a means to exercise and enjoy the right to print and publish. Nor does the rule that he who grants a thing, grants impliedly what is essential to the beneficial use of that thing, apply to this case. A press, and paper, and ink are essential to the beneficial use of a copperplate ; but it would hardly be contended that the sale of a copperplate passed a press, and paper, and ink, as incidents of the plate, because necessary to its enjoy- ment. " The sale of a copperplate passes the right to such lawful use thereof as the purchaser can make, by reason of the TRANSFER OF COPYRIGHT. 325 the plates, the rights acquired by the buyer are to be deter- mined by the intention of the parties. " What rights would pass by such a sale," said Mr. Justice Curtis, " would depend on the intentions of the parties, to be gathered from their contract and its attendant circumstances. In this case> the owner of the copyright made no contract of sale, and necessarily liad no intention respecting its subject-matter." ^ The opinion has been expressed ohiter by the Supreme Court of the United States that copyright is not subject to seizure and sale on execution,^ but that it may be reached by a. creditor's bill.^ ownership of the thing he has bought ; but not the right to a use thereof, by reason of the ownership of something else which lie has not bought, and which belongs to a third person. If he has not acquired a press, or paper, or ink, he cannot use his plate for print- ing, because each of these kinds of property is necessary to enable him to use it for that purpose. So, if he has not acquired the right to print the map, he cannot use his plate for that purpose, because he has not made himself the owner of something as necessary to printing as paper and ink, or as clearly a distinct species of prop- erty as either of those articles. He may make any other use of the plate of which it is susceptible. He may keep it till the limited time during which the exclusive right exists shall have expired, and then use it to print maps. He may sell it to another, who has the right to print and publish ; but he can no more use that right of prop- erty than he can use a press, or paper, which belongs to a third person. . . . " For these reasons, as well as those stated in 14 How. 528, our conclusion is, that the mere ownership of a copper- plate of a map, by the owner of the copyright, does not attach to the plate the exclusive right of printing and pub- lishing the map, held under the act of Congress, or any part thereof ; but the incorporeal right subsists wholly sepa- rate from and independent of the plate, and does not pass with it by a sale thereof on execution." Stevens v. Gladding, 17 How. 452. 1 Stevens v. Gladding, 17 How. 452. See also FuUarton v. M'Phun, 13 Sc. Sess. Cas. 2d ser, 219. 2 " There would certainly be great difficulty," said Mr. Justice Curtis, " in assenting to tlie proposition that patent and copy rights held under the laws of the United States are subject to seiz- ure and sale on execution. Not to repeat what is said on this subject in 14 How. 531, it may be added, that these incorporeal rights do not exist in any particular State or district : they are coextensive with the United States. There is nothing in any act of Congress, or in the nature of the rights themselves, to give them locality any- where, so as to subject them to the process of courts having jurisdiction limited by the lines of States and dis- tricts. That an execution out of the Court of Common Pleas for the county of Bristol, in the State of Massachusetts, can be levied on an incorporeal right subsisting in Khode Island or New York, will hardly be pretended. That by the levy of such an execution the entire right could be divided, and so much of it as might be exercised within the county of Bristol sold, would be a position subject to much difficulty. These are important questions, on which we do not find it necessary to express an opinion, because in this case neither the copyright, as such, nor any part of it, was attempted to be sold." Stevens v. Gladding, 17 How. 451. See also Stevens v. Cady, 14 Id. 531. 8 "No doubt," said Mr. Justice 326 THE LAW OF COPYRIGHT AND PLAYEIGHT. Renewal op Copyright Considered with Reference to Assignment. . The American statute now in force grants copyright abso- lutely for twenty-eight j'ears, and provides that the author if living, or his widow or children if he be dead, shall have the same exclusive right for the further term of fourteen years.^ The act of 1831 was to the same effect.^ The question arises, whether an assignment of copyright made under either of these statutes divests the author, or his widow and children, of the right to the second term of protection thus provided for, and whether the assignee becomes vested with that right. This question cannot arise in England, because the statute of that country does not provide for such extension.^ Author may Divest Himself and Family of Right to RenetvaL — It may be claimed that the provision of the American statute above referred to was intended for the personal benefit of the author or of his family. It is reasonably clear that the copy- right for the additional term will vest only in the author, if he be living. But there appears to be no reason why he may not divest himself of the right thus reserved for him, either by parting absolutely with his entire interest in a work, or by an agreement to convey the copyright for the additional term when it shall be secured. In the former case, he has no interest in the work, and cannot rightly claim the additional privilege guar- anteed to him by the statute. In the latter case, he is bound by his agreement to transfer to another the right when it shall be se'cured to him. The principle is the same in case the author be not living at the end of the first term. Then the Nelson, " the property may be reached Stevens v. Cady, 14 How. 531. See by a creditor's bill, and be applied to also Cooper v. Gunn, 4 B. Mon. (Ky.) the payment of the debts of the author, 594. the same as stock of the debtor is i U. S. Rev. St. ss. 4953, 4954. reached and applied, the court com- 2 gg. i^ 2 ; 4 U. S. St. at L. 436. pelling a transfer and sale of the stock ' See Marzials v. Gibbons, Law Rep. for the benefit of the creditors. But, 9 Ch. 518, as to the construction of in case of such remedy, we suppose it section 4 of 5 & 6 Vict. u. 45, which would be necessary for tl>e court to provides for an extension of the copy- compel a transfer to the purchaser, in right in books published before the conformity with the requirements o£ statute was passed. See also Brooke the copyright act, in order to vest him v. Clarke, 1 Barn. & Aid. 896. with a complete title to the property." TRANSFER OP COPYRIGHT. 327 copyright for the additional term will vest only in his widow or children. But their rights are dependent on his. Their title is derived from him, and stands or falls with his. There must be a good foundation on which to rest their claim. If the author has parted with his absolute property in the work, and could not, if living, himself secure the copyright, it seems to be clear that his representatives are equally incapable of securing it, for the reason that the work does not belong to them. So, when he has bound himself to assign his future term, there is no reason why such agreement should not be equally binding on them after his death, unless there is in it some condition or other circumstance to warrant a different construction. The provision under consideration was, doubtless, intended to secure to the author and his family a privilege which is not given directly to an assignee ; but it is not reasonable to suppose that the object of the statute was to reserve to the author or his family any rights with which he has voluntarily parted, and for which he has received and enjoyed the consideration.^ Effect of Transfer before Publication on Renewal. — ^^When the transfer is made before publication, the assignment is not of the statutory copyright, because that is not then secured, and does not exist.^ When an author has conveyed all his right, title, and interest in a manuscript, the assignee becomes the absolute owner, and may secure to himself the copyright for the term of twenty-eight years. The author, having parted with his entire property, can rightly claim no further interest in it, and has nothing on which to base a claim for copyright during the additional term of fourteen years provided for an author, his widow or children. But in transferring the exclu- 1 Tlie 8 Anne, c. 19, after granting copyright for the absolute term alone copyright for an absolute term of four- had passed, and that the contingent teen years, provided, section 11, " that term was intended by Parliament as a after the expiration of the said term of "personal bounty to the authors only." fourteen years the sole right of print- The court held that the author had ing or disposing of copies shall return conveyed all his interest in the copy- to the authors thereof, if they are then right, the contingent as well as the living, for another term of fourteen absolute term. To the same effect is years." In Carnan u. Bowles, 2 Bro. Rennet v. Thompson, cited in Carnan C. C. 80, where it appeared that a c. Bowles, Ibid. 81. general assignment of the author's ^ Pulte v. Derby, 5 McLean, 328; interest in a work had been made, it Paige v. Banks, 7 Blatchf. 152, on ap. was contended by counsel that the 18 Wall. 608. 328 THE LAW OP COPYRIGHT AND PLAYEIGHT. sive right to publish his manuscript, the author may limit the duration of that right in the assignee to twenty-eight years, and reserve to himself all further rights. In this case, also, the assignee may secure, and will be the owner of, the statutory copyright for twenty-eight years ; but at the end of that period the author, or his widow or children, becomes entitled to secure the copyright for the further term of fourteen years. Rights of Parties Determined by Agreement. — Whether the entire or a limited property in the work thus passes from the author to the assignee depends on the agreement made by them. If that is precise and clear, the respective rights of the parties to it are easily determined. But not unfrequently the agreement is expressed in such words that it is doubtful whether the entire or a limited interest was intended to be conveyed. Its meaning then becomes a question for judicial construction. An absolute sale of a manuscript, an assignment of all right, title, and interest in it, an agreement that the assignee shall have for ever the exclusive right of publication, would naturally, in the absence of any thing to the contrary, be construed as a transfer of the entire property. But when " the copyright " is assigned, it may admit of doubt whether the parties had in view the statutory term of twenty-eight years, which is the only term which the statute gives to an assignee, or whether by the word copyright was meant the author's entire interest in the work.^ Absolute Assignment before Publication gives Unlimited Right to Publish. — In Paige v. Banks, it had been agreed that Alonzo C. Paige, the reporter of the New York Court of Chan- cery, in consideration of $1,000 to be paid for each volume of manuscripts, " shall and will furnish the said Gould & Banks, 1 In Eundell w. Murray, it appeared as to purport to pass it; but I have that the plaintiff had given to the been at a loss throughout the argu- defendant the right to publish a manu- ment to understand what difference the script, without any limitation as to expiration of that term can make in time, and at the end of fourteen years this case." Jac. 316. Without decid- claimed the copyright for the contin- ing in whom the copyright was, but gent term provided for by the statute considering that tlie plaintiff had of Anne. Lord Eldon said, " I conceive given an unconditional right to publish, that an author will not be taken to and had acquiesced in the publication have assigned his contingent right in for fourteen years, the Chancellor dis- ease of his surviving fourteen years, solved the injunction which had been unless the assignment is so expressed granted. TRANSFER OF COPYRIGHT. 329 in manuscript, the reports of the said court for publication, and that the said Gould & Banks shall have the copyright of said reports to them, and their heirs and assigns for ever." The copyright -was entered in the name of the publishers. At the end of twenty-eight years the author took the necessary steps to secure to himself the copyright for the further term of fourteen years ; and after his death his executors sought to enforce that right against the defendants, who also had entered in their own names the copyright for the same term. The agreement was made when the act of 1790 was in force, under which copyright could not last longer than twentj^-eight years. The additional term of fourteen years was provided for by the statute of 1831, which was passed after the agreement had been made. For the plaintiffs, it was contended that the words in the contract, that the publishers " shall have the copyright of said reports," were to be construed as limiting the transfer to the copyright known to the law at the date of the contract; viz., for twenty- eight years. The Supreme Court of the United States, affirm- ing the judgment of the Circuit Court,i held that the agreement was for an unlimited, publication, and that the publishers had acquired, as against the author, the perpetual right to publish and sell the work. Hence, the latter had for ever barred him- self from interfering with the right of the former to publish.^ ^ 7 Blatchf. 152. one thousand dollars. No matter how 2 13 Wall. 608. The contract was many copies of the volume shall be, thus construed by Mr. Justice Blatch- after that, printed or sold by Gould ford in the Circuit Court : " It is to be & Banks, Mr. Paige is never to have noted, in respect to this agreement, any more from them, as compensation, that Gould & Banks are not limited in respect of such volume, than the by it to the publication of any specified one thousand dollars. These provi- number of copies of each volume. Mr. sions clearly give to Gould & Banks, Paige is to furnish the reports in man- as against Mr. Paige, the perpetual usoript, for publication. The publica- riglit to print, publish, and sell copies tion is to be made by Gould & Banks, of such first volume, without giving The number of copies to be published to Paige any further compensation, in of each volume is unrestricted. Mr. respect thereof, beyond the one thou- Paige is to be paid one thousand dollars sand dollars, unless some other clause for each volume published. The pub- in the agreement restricts such right lication spoken of everywhere in the on the part of Gould & Banks, agreement is the publication of a vol- " It is claimed that such right is ume. When such volume is once restricted by the provision that Gould published, Mr. Paige is to have, within & Banks shall have the copyright of six months after the publication thereof, the reports to them, and their heirs and that is, within six months after the assigns for ever. It is contended that, first printed copy is made public, the under that proviBion, the whole agree- 330 THE LAW OP COPYRIGHT AND PLAYKIGHT. The court did not express an opinion as to whether the copy- right entered by tlie author for the term of fourteen years was ment is to the efTeot that Gould & Banks are to have, as against Mr. Paige, the exclusive right to publish and sell the volumes of reports no longer, at most, than during the term known to the law, under the act of 1790, at the date of agreement, as the term for which a copyright could be obtained ; that is, twenty-eight years, or not beyond the 5th of January, 1858. But the provision in respect to copy- right was inserted in the agreement for the sole purpose, manifestly, of making it clear that Gould & Banks were to be understood to be such assignees of Mr. Paige, as the author of the books, as could, under the act of 1790, secure to themselves a copyright. There is no provision in the agreement for the taking out of a copyright by Mr. Paige, and for the transfer thereof to Gould & Banks. The provision in the agreement in respect to copyright can- not be held to cause the agreement to confer any less rights on Gould & Banks, if such provision be availed of by them, tlian if they do not avail themselves of it. If they had not chosen to take out any copyright, as proprietors, of any volume of the re- ports, they would have had, as against Mr. Paige, the perpetual right to print, publish, and sell the reports. If they had not chosen to avail themselves of the provision of the agreement in re- gard to copyright, in respect to the first volume, the construction of the agreement would have been in no man- ner dependent upon the existence or contents of such provision. Nor can it be dependent thereon when, as against others than Mr. Paige, Gould & Banks have availed themselves of the privilege of copyrighting such volume." 7 Blatchf 155. In delivering the opinion of the Supreme Court, Mr. Justice Davis said : " Independent of any statutory provision, the right of an author in and to his unpublished manuscripts is full and complete. It is his property, and, like any other property, is subject to his disposal. He may assign a qual- ified interest in it, or make an absolute conveyance of the whole interest. The question to be solved is, Do the terms of this agreement show the in- tent to part with the whole interest in the publication of this book, or with a partial and limited interest ■? ... It is insisted by the appellants that a just interpretation confines the agreement to a mere assignment of the interest in such copyright, as is provided for in the act of 31st May, 1790 ; that this was the law in force when the contract was entered into; that the fourteen years therein provided for, with the right to a prolongation of fourteen years more, is all that the publishers at most are entitled to ; and that they are excluded necessarily from the ben- efit of the provisions conferred by the act of the -Sd February, 1831, granting to authors an additional extension of fourteen years. In our view this is too narrow a construction. The fair and just interpretation of the terms of the agreement indicate unmistakably that the author of the manuscript, in agree- ing to deliver it for publication at a stipulated compensation, intended to vest in the publishers a full right of property thereto. The manuscript is delivered under the terms of the agree- ment 'for publication.' No length of time is assigned to the exercise of this right, nor is the right to publish limited to any number of copies. The consid- eration is a fixed sum of one thousand dollars. Wliether one or one liundred thousand copies were published, the au- thor was entitled to receive, and the pub- lishers bound to pay, this precise amount. " As between the parties to the agreement the absolute interest was conveyed by the stipulation of Paige, that he would furnish the manuscript for publication. Paige could no longer do any act after such delivery for pub- lication inconsistent with the absolute ownership of the publishers. But it TRANSFER OF COPYRIGHT. 331 valid as against others than the defendants. But there can be little doubt that it was void, and such is the effect of the decision. Nor was it necessary to inquire into the validity of the copyright, which had been taken out in the name of the defendants for the same term. But it has been shown else- where that an assignee is not entitled to secure copyright for this additional term.^ Absolute Assignment of Copyright held to Carry Future Play- light. — In an English case, it appeared that a dramatist had assigned his copyright in a farce to be the " absolute property " of the assignee, who published it and became the owner of the statutory copyright. There was then no statutory right of representation ; but afterward the 3 & 4 Will. IV. c. 15, was passed, giving to the author or his assignee the sole liberty of performing a dramatic composition. It was held that the author's entire interest had passed to the assignee by the assignment, and that the latter, therefore, was entitled to the exclusive right of representation conferred by the statute above mentioned.^ Effect of Assignment after Publication on Rene'wal. — After was proper, for the protection of the "if there were nothing else in the publishers, that they should be in posi- case," would be rightly construed as tion to assert the remedies given by limiting the interest assigned to the the law against intruders ; and it is to copyright for the first term of fourteen this end it is added in the agreement, years given by the act of 1790. But ' and the said Gould & Banks shall the author having testified in a previ- have the copyright of said reports to ous action that in making the agree- thera, their heirs and assigns for ever.' ment his intention was to convey his It is not covenanted that the publishers " whole interest in the copyright of should take out the copyright, nor is the work," this testimony was ad- there any express agreement for an mitted as evidence in the present case ; assignment to them by Paige, if he and the court held that the assignees should take it out. Undoubtedly, the had acquired the author's contingent provision that the publishers ' should interest in the second term of fourteen have the copyright' would authorize years given by the act of 1790, and them to apply for it; and, if Paige had that they were entitled to become the taken it out in his own name, it would absolute owners of this term, under have inured to their benefit. But, as section 16 of the act of 1831. It was between Paige and the publishers, the ordered that the contract be reformed rights of the latter could not be esti- so as to conform to the intention of the mated differently, whether they had parties, or had not availed themselves of the ' See ante, p. 261. provisions of the act." 13 Wall. 614. '^ Cumberland v. Planch^, 1 Ad. & See also Cowen v. Banks, 24 How. El. 580. Tor the statutory provisions Pr. 72, where the court expressed the now in force in England concerning the opinion that the written agreement, transfer of playright, see Chap. XV. 332 THE LAW OP COPYRIGHT AND PLAYRIGHT. a book has been published, and within twenty-eight years from the time of publication, the only copyright in existence, and hence the only one which can be assigned, is that secured' for twenty-eight years. The copyright for the second term of fourteen years cannot be assigned before it has been secured, and it cannot be secured until the first term has ended. I have already endeavored to show that the author may bind himself by an agreement to assign it when it shall have been secured, and that such agreement may be made binding on his personal representatives ; also, that he may make such assignment of his rights in a published work as will bar him and his family from claiming for themselves the copyright for the future term of fourteen years.^ What effect an assignment which has been made after publication will have on the future rights reserved for the author by the statute will depend, as in the case of a transfer made before publication, on tlie nature of the agreement. For the author may part with every right and interest which he has in the work, or he may transfer the existing statutory copy- right alone. And the question in each case is, whether the language of the agreement is comprehensive enough to embrace all rights in the work, or whether it properly applies only to the existing statutory copyright. An assignment of the " copyright " would naturally have the latter restricted mean- ing, unless there is something else to show that a greater interest was intended by tlie parties to be passed. Thus, where the author had assigned " tlue copyright " of one book, and, with reference to another, had agreed that " the copyright shall be considered the joint and equal property " of himself and the assignee, the Circuit Court of the United States held that the assignment did not extend beyond the first term of fourteen years which, at the time tlie agreement was made, had been secured under tiie act of 1790 then in force; and that no interest was passed in the second term of fourteen years given by that statute, nor in the term of fourteen years created for the benefit of the author b}-- the act of 1831, which was in force when the cause of action arose.^ 1 See anie, p. 326; also, Paige v. 2 Pierpont v. Fowle, 2 Woodb. & Banks, 7 Blatchf. 152, on ap. 13 Wall. M. 41-45. " In respect to both copy- 608. Tights, also," said Mr. Justice Wood- TRANSFER OF COPYRIGHT. 833 Assignee cannot make Renewal. — Section 4954 of the Revised Statutes, which provides for a renewed term of copyright, makes no mention of an assignee. The view has been elsewhere ex- pressed that the copyright for this term will not vest ah initio in an assignee, but only in the author, his widow or children.^ Hence, when an author has assigned his entire interest in a work, and has thereby or othei'wise barred himself and his family from securing the copyright for the second term, the assignee is powerless to make the renewal for his own benefit. Author may Assign Renewed Term. — But when the Copy- right has been acquired by the person entitled to secure it, can it be transferred to an assignee ? This question has not been judicially determined.^ The object of the legislature mani- festly was to create an additional right for the express benefit of the author and his family. This object would not be pro- moted, but rather defeated, by denying to him and them the power to transfer the right after it has been secured. The value of property is increased by the capacity of the owner to alienate it. Moreover, the provision of the statute, tliat " copy- rights shall be assignable," ^ doubtless applies to those gi'anted for fourteen years not less than to those for twenty-eiglit years. The sound construction, then, would seem to be that the copy- bury, " the complainant conveyed eo author might not secure the first term, nomine, not a term of twenty-eiglit or, if he did, might not be willing to years, nor one as long as he should be renew the copyright. The renewal of entitled, nor all his interest of every the copyright in either of these was kind in the book or its manuscript ; then uncertain, and not, to appearance, but simply, as to the first, ' the copy- contemplated by either side. When right of said book,' and, as to the last, the assignment was made, it doubtless 'the copyright' of it ' shall be consid- referred to what was in existence, and ered the joint and equal property of not to any future contingency, nor to said P. and F.' The only copyright what was personal for the author, if then existing or taken out for either spared to old age, nor for what any was for fourteen years only. One con- compensation was specially either tract was dated July 21, 1823, and asked or made." Ibid. 42. See Cowen one July 12, 1827. That copyright v. Banks, 24 How. Pr. 72. which had been then taken out was i See ante, p. 261. the subject-matter of the contracts. ^ In Paige v. Banks, as has been No words are used looking beyond shown, ante, p. 328, it appeared that that ; no consideration was paid or the copyright for the additional term of talked of beyond that. There was no fourteen years had been renewed by mutuality beyond that ; for the pay- the assignees. But the court was not ment of the last was made in another called upon to inquire into its validity, copyright, in another book, where the ' U. S. Rev. St. s. 4965. 334 THE LAW OP COPYRIGHT AND PLATRIGHT. right for the renewed term of fourteen years is capable of being assigned after it has been secured. Limited Assignment. The question has been raised whether copyright can be divided, and any part of it assigned. The English statute provides for the registration by the owner of a copyright " or of any portion of such copyright," and enacts that such regis- tered owner, by entry in the registry, may assign " his interest, or any portion of his interest " in the copyright.^ The American statute is silent on this point. One or IVIore of Several Rights in a Work may be Assigned. — It is clear that, without destroying the unity of the copyright, a qualified interest, or certain rights embraced in it, may be assigned. Thus, the owner may make to one or more persons an absolute conveyance of any part of his interest in the whole. In this case, the copyright becomes the undivided property of joint owners. The exclusive right of publication and sale vests, not in one independently of the others, but in all. So, also, statutory copyright embraces several rights which, though cre- ated and conferred by the same statute, may be regarded as independent and distinct rights, capable of being separately owned and used by different persons. Thus, the statute gives to the owner of a dramatic composition the exclusive right to print it, and the sole liberty of performing it. Either of these rights may be absolutely assigned independently of the other ; ^ and in England this fact is recognized by the statute. Whether one or both of these rights pass by the assignment will depend on the intention of the parties, as expressed in their agreement.^ Again, in the United States, an author, in securing copyright in a literary composition, may reserve to himself the exclusive right to translate or dramatize it; and, as has been elsewhere maintained,* he has the exclusive right, without special reservation, to abridge it. The owner may, 1 5 & 6 Vict. c. 45, s. 13. Referring 2 Roberts v. Myers, 13 Monthly to this provision, Mr. Justice Maule Law Reporter, 396. said, that tlie author or owner " may ' See Chap. XV., Transfer of Play- aasign the copyright to less than the right, full term." Davidson v. Bohn, 6 C. 13. * See Chap. IX. 468. TRANSFER OP COPTRIGHT. 335 doubtless, assign any of thesa rights without parting with the others, or the original copyright. In this case, also, the copyright in the original, that is, the right to publish and sell it, continues whole. The author parts with the right, which is embraced in the original copyright, to translate, dramatize, or abridge. Another may be thus clothed with authority to publish a translation, dramatization, or abridgment ; but such production, when published, is protected by a new copyright, independent of that which has vested in the original work. An absolute assignment of the copyright would doubtless carry the right to translate, dramatize, or abridge the work, unless such right is specially excepted in the assignment. If a trans- lation, dramatization, or abridgment has been published and copyrighted, no interest in the copyright of such publication could pass by a transfer of the copyright in the original work. Copyright Indivisible as to Locality. — There can be little doubt that copyright is indivisible as to locality. The prop- erty is of such a nature that it cannot be practically divided among independent owners, so that each may have the exclu- sive right of publication and sale for a distinct part of the same country. In the United States, for instance, it would be obvi- ously impracticable for one person to exercise the exclusive right of publishing and selling a book in New England, another in the Southern, and another in the Western, States. On this principle, the persons claiming to be exclusive publishers of the same book might be as numerous as the States. Any number of persons in the same or in different States may be authorized to publish contemporaneously. But in that case there is no assignment. The author remains the absolute owner of the copyright, and each publisher is a mere licensee, without power to prevent publication or sale by any other person. i Copyright may be Assigned for One or More of Several Countries. This difficulty does not arise, nor is the principle the same, when the right of publication for an entire country is trans- ferred. In Jefiferys v. Boosey, where it appeared that Eicordi, of Milan, who was the owner of all rights in Bellini's Opera, La Sonnambula, had assigned to Boosey the right of publication 1 See Keene v. Wheatley, 9 Am. Law Reg. 46. 336 THE LAW OP COPYRIGHT AND PLATRIGHT. in Great Britain, Lord St. Leonards, Lord Chief Baron Pollock, and Mr. Baron Parke expressed opinions that copyright is indivisible as to locality, and that there cannot be an assign- ment of a part of the right for a particular country or a part of a country.! But a majority of the judges who advised the House of Lords were of opinion, and the effect of the judgment is, that the owner might assign the exclusive right of publi- cation in Great Britain, and reserve to himself the Austrian copyright.^ So an American author, who on certain conditions can secure a copyright for his work both in the United States and in England, may make a valid assignment of the English copyright to one person, and either himself retain or assign to another the American copyright.* But in such case there is no division of copyright. The copyright granted by one govern- ment is wholly distinct from that conferred by another. When protection is secured for the same work in different countries, there is a separate and independent copyright for each country. Each copyright is a unit, and may be absolutely assigned inde- pendently of another; and no inconvenience will necessarily result therefrom.* 1 " Now, if there is one thing," said Lord St. Leonards, " which I should be inclined to represent to your Lord- ships as being more clear than any other in this case, it is, that copyright is one and indivisible. I am not speak- ing of the right to license ; but copy- right is one and indivisible, or is a right which may be transferred, but which cannot be divided. Nothing could be more absurd or inconvenient than that this abstract right should be divided, as if it were real property, into lots, and that one lot should be sold to one man, and another lot to a diflFerent man. It is impossible to tell what the inconvenience would be. You might have a separate transfer of the right of publication in every county in the kingdom." 4 H. L. C. 992. See Views of Pollock, C. B., Ibid. 940 ; of Parke, B., Ibid. 933. 2 The House of Lords decided that the English copyright was not valid, but on the ground that the author was a foreigner, and not in England at the time of publication. Numerous cases might be cited, such as D'Alinaine v, Boosey, 1 Y. & C. Exch. 288, and Cocks V. Purday, 5 C. B. 860, where a foreigner, retaining the copyright for his own country, had assigned the right of publication in Great Britain, and the validity of the English copyright was not questioned on the ground that the author's entire rights in the work had not been assigned. " See Low o. Ward, Law Rep. 6 Eq. 415 ; Routledge v. Low, Law Kep. 3 H. L. 100. * In JefFerys v. Boosey, where it appeared that the assignor, reserving to himself the Austrian copyright, had assigned the British copyright, Mr. Justice Crompton said : " It was sug- gested in argument that if the right was an entire right, it could not be divided, so, for instance, as to make an assignment of English copyright to one person for Yorkshire, and to an- other for Middlesex ; and I think that in such case there would be great diffi- TRANSFER OP COPYRIGHT. 387 la Copyright Divisible as to Time? — Whether copyright is divisible as to time, so that it may be assigned for any period less than the full term, is a question not easily determined. It is clear that the owner of the copyright may transfer the ex- clusive right of publication for any limited time. But is the person who has acquired this right a licensee or an assignee ? ^ If the former, he has but an equitable title in the copyright, while the legal title remains in the owner. But an assignment must vest the assignee with a legal title to the copyright, and with the rights of ownership, at least during the time for which the assignment has been made. Is, then, the copyright for the entire term capable of division into two or more terms, so that the legal title to one part will vest in the assignee, and the legal title to the remainder continue in the assignor ? Or must the legal title to the undivided whole pass from the assignor and vest in the assignee during the time for which the assign- ment is made ; and, if so, does it return per se to the assignor at the end of that time ? In other words, when an author has assigned his copyright for a limited time, is it necessary that it shall be assigned back in order to revest him with the legal title ? These questions, which have not been judicially con- sidered, are involved in so much doubt that no attempt will be here made to answer them.^ If, however, it should be held that the title as a whole passes to the assignee, he would be regarded as an owner for a limited culty. In such a case as the present, assignor having hecome divested of however, I regard the right of the the legal title, an assignment would, author to the English copyright as in my judgment, be necessary to revest an entire thing under our municipal him with it. In Lawrence u. Dana, statutes ; and as not heing parcel of 2 Am. L. T. R. n. s. 402, where it or derived out of any thing else." 4 appeared that the copyright had been H. L. C. 857. taken out for a limited purpose, by 1 Such a transfer had been made in a person who was not tlie absolute Howitt V. Hall, 6 L. T. n. s. 348; but owner, it was held that the legal title the court did not determine whether it had vested in such person, and that an amounted to a limited assignment, or assignment was necessary to vest the a mere license. absolute owner with it. But this is 2 It is my opinion that copyright is not strictly analogous to the case of a indivisible as to time, and that the en- Umited assignment such as is consid- tire legal title must either remain in ered in the text ; for the reason that, in the author or pass from him to the Lawrence v. Dana, the absolute owner assignee. In the former case, the agree- of the copyright had never been vested ment would create not an assignment, with the legal title. but a license. In the latter case, the 22 338 THE LAW OP COPYRIGHT AND PLAYRIGHT. time or purpose, and doubtless as holding the copyright in trust for the owner of the remainder of the term ; and, if the title would not return per se to the latter when he became entitled to it, a court of equity, if called upon, would decree a retransfer to be made.i May Limited Assignee Transfer Copyright? — The question may also arise, whether an assignee for a limited term may transfer the copyright to a third person. It would seem to be clear that he cannot make a valid assignment for a longer time than that during which the right is to continue in him. If the copyright is divisible, so that the legal title is in the assignee for a part of the term and in the author for the remainder, there seems to be no reason why the former may not transfer his title. But, if the title for the entire term vests in the as- signee, he would doubtless be considered as holding it in trust for the absolute owner ; and in that case it may be questioned whether he has the power to transfer it to a third person.* Eights op Assignor and Assignee as to Selling Copies. The Law as Construed in England. — In England, it has been held, 1, that, after the copyright has been assigned, the assignor has the right to sell copies printed before the assignment was made ; 2, that an assignee for a limited term is entitled, after the expiration of that term, to continue the sale of copies printed during the term. In Taylor v. Pillow, where it appeared that the defendant had continued to sell copies of a song after he had sold the copy- right to one of the plaintiffs, Vice-Ghancellor James said : " I was at first in favor of the plaintiff's view ; but, on looking at the copyright act, 5 & 6 Vict. c. 45, 1 find that the definition given of copyright is, ' the sole and exclusive liberty of print- 1 Lawrence v. Dana, 2 Am. L.'T. E. sent of the owner transfer it to a third N. s. 402, 417. See also Hazlitt v. Tem- person. 5 McLean, 335. But in this pieman, 13 L. T. n. s. 593 ; Stevens v. case the defendant was not an assignee, Cady, 14 How. 531. See ante, p. 261, but had taken out the copyright in his note 1. own name, merely for the purposes of 2 In Pulte V. Derby, where the de- a contract which he had made with the fendant was in possession of the legal author for the publication of two edi- title, the court expressed the opinion tions of a book. obiter that he could not without the con- TRANSFER OP COPYRIGHT. 339 ing or otherwise multiplying copies ; ' and, unless there is some stipulation to the contrary in the conditions of sale, the vendor of a copyright may print any number of copies up to the time of the sale, and retain and sell such copies after disposing of the copyright." i In Howitt V. Hall, it appeared that the defendants, having bought "the copyright" for four years in a book of which the plaintiff was the author, ■ were still continuing, several years after the end of that term, to sell copies which they had printed during the four years. The court, in refusing to enjoin such sales, held that the purchase of the copyright carried the right of printing ; and that, while this right reverted to the author at the end of four years, the publishers were entitled to sell, after the expiration of that term, all copies which had been printed in good faith during the term. " The copyright acts," said Vice-Chancellor Wood, " were directed against unlawful print- ing (8 Anne, c. 19, and 5 & 6 Vict. c. 45, s. 15) ; and when, as in this case, the defendant had acquired the right of lawfully printing the work, he was at liberty to sell at any time what he had so printed." ^ In United States, may Assignor Sell Copies after Assignment ? — The doctrine affirmed in the two cases just cited cannot, in my judgment, be rightly adopted in this country. Copyright is not defined by the statute ; but its meaning is expressed in the section which confers the right. This declares that the author or owner of a book shall " have the sole liberty of printing, reprinting, publishing, . . . and vending the same." ^ Copyright, as here secured, is the right, not only of exclusive printing, but also of exclusive sale. The legislature further declares the right of exclusive sale to be an essential part of copyright, by expressly prohibiting unlawful selling as well as unlawful printing.* So essential to the true meaning of the 1 Law Rep. 7 Bq. 420. and selling of copies reprinted abroad. 2 6 L. T. N. s. 348. See also Mur- The statute cannot prevent unlicensed ray v. Heath, 1 Barn. & Ad.. 804. printing in a foreign country. But 2 TJ. S. Rev. St. o. 4952. it protects the owner against piracy * Id. 8. 4964. If the statute secured from this source, by giving him the e.x- only the right of printing, and prohib- elusive right of sale, and by expressly ited only unlawful printing, it is obvi- prohibiting the importing of copies ous that copyright would not be vio- without his consent, and the sale of lated by the unauthorized importing such copies. 340 THE LAW OF COPYRIGHT AND PLAYRIGHT. word is the act of selling, that statutory copyright does not begin until the book is first offered for sale to the public.^ To limit the sense of the word to printing is to change its true meaning and abridge the right. When, therefore, the owner sells or assigns the copyright in a work, he conveys the exclu- sive right to print and the exclusive right to sell that work. Obviously, the right of sale is not exclusive in the assignee, and he has not become vested with the copyright, for which he has contracted, as long as the assignor is at liberty to sell copies. When the assignee acquires the copyright, he becomes vested with the exclusive right of printing and selling the work. The assignor is then wholly divested of any right to print or to sell ; and he cannot sell a single copy of the work without invading the copyright which he has transferred. It may be argued that the exclusive right of sale acquired by the assignee applies only to the copies printed by him after the assignment, and not to those printed before he came into possession of the copyright. But this view is contrary to the nature of copyright, which embraces the right to sell exclu- sively, not merely certain copies, but all copies of the work. When the copyright is assigned, the assignor grants the exclu- sive right to sell the work itself; and from that time the assignor and all other persons, without the consent of the assignee, are excluded from selling copies, no matter when or by whom printed. There is, however, this limitation to the assignee's exclusive right to sell : At the time of the assign- ment, various booksellers may have on hand copies of the work, which were bought before the copyright was transferred. Such copies are beyond the control of the assignor. The liberty to sell them is a right which vested before the assignment was made, and cannot be disturbed by any subsequent change in the ownership of the copyright. Hence, the assignee has no right to interfere with such sales, though made after the assignment. But a wholly different principle applies to the copies which the assignor has printed, but not sold. In part- ing with the copyright, he voluntarily parts with the right to sell such copies, and in effect covenants not to sell them. 1 Copyright begins with publication, which takes place when the book is publicly offered for sale, or is given to the public. TRANSFER OP COPYRIGHT. 341 May Assignee sell Copies after End of Limited Assignment ? — The same principle governs the rights of the parties to an assignment for a limited time. When the copyright is sold or assigned for a specified term, the assignee becomes vested with the exclusive right to print and to sell during that term, and the assignor parts vt^ith all rights both of printing and of sell- ing. At the end of the term, the assignor becomes revested with the exclusive right of printing and of selling, and no right to print or to sell remains in the assignee. What the assignee receives from the assignor for a limited time, he is bound to return to him at the end of that time. What he receives is the exclusive right to print and to sell the work ; what he must surrender is the exclusive right to print and to sell the work. And, as has been above shown in an analogous case, the right to sell, which reverts to the assignor, is exclu- sive, not merely with reference to {he copies that may be printed by him after such reversion, but with reference to all copies of the work, excepting those held by persons who bought from the assignee while he was in possession of the copyright. The assignee, but not such buyers, are excluded from selling after the term of the assignment has ended. It may be urged that the assignee may have a large stock of copies on hand at the end of the term ; and that, unless he is free to sell them, he may be subject to heavy losses. The answer to this is, that he has not agreed for, paid for, or acquired the right to sell, except for a limited time. He must exercise his own judgment as to the number of copies which he can sell during that time. He prints at his own risk. If he prints more copies than he can sell, the fault is with him, and not with the assignor ; and so he, and not the assignor, must bear the loss. Of course, as in the first case above con- sidered, there may be an express or an implied agreement that the assignee shall have the right to sell whatever copies he may have on hand at the expiration of the term of the assignment. I have thus endeavored to show what is the true interpreta- tion of the law, when the copyright is assigned without any- express or implied agreement as to the sale of copies. When such agreement has been made, the rights of the parties will be controlled by it. 342 THE LAW OF COPYEIGHT AND PLAYRIGHT. EngUsh Decisions Questioned. — The judgments in Taylor V. Pillow and Howitt v. Hall were based on the ground that copy- right, as defined by the statute, is the exclusive right of print- ing copies ; that the statute is directed only against unlawful printing ; and hence that the sale of copies, which have been lawfully printed, is not a violation of copyright. It is a ques- tion whether, on the point under consideration, the English statute in spirit, if not in letter, is not the same as the Ameri- can ; and whether, under the former as well as the latter, the true meaning of copyright is not the exclusive right of print- ing and selling. It is true that, by the statutory definition, English copyright is limited to printing ; but it is not true that the statute is directed against unlawful printing alone. It prohibits unlawful importing and selling,^ and thereby in ef- fect secures the exclusive right of sale. Author may not Reproduce 'Work after Assignment. — When an author has parted with his copyright in a work, he is not at liberty to reproduce substantially the same matter in another publication.^ Warranty of Title. — Where a person had sold in good faith the exclusive right of publishing a book for a term of years, and it afterward appeared that he had no title to the copyright, it was held that the representations which he had innocently made, that the copyright was in him, amounted to an express warranty of the title, and that he was liable to damages for a breach of that warranty.^ 1 5 & 6 Vict. 0. 45, 8S. 15, 17, 23. Sliebbeare, 2 Eden, 329) from publish- 2 Rooney v. Kelly, 14 Ir. Law Rep. ing Clarendon's History, which he had N. s. 158 ; Colburn w. Simms, 2 Hare, bought from Mr. Gwynne, he recov- 543. ered damages against the latter for 3 Sims V. Marryat, 17 Q. B. 281. It falsely representing that he had a right appears that after Dr. Shebbeare had to print that work. See Millar v. Tay- been enjoined (Duke of Queensbury v. lor, 4 Burr. 2330, 2397. AGREEMENTS BETWEEN AUTHORS AND PUBLISHERS. 343 CHAPTER VII. AGREEMENTS BETWEEN AUTHORS AND PUBLISHERS. As the owner of the literary property in a work which he has created, the author may make of it any disposition he pleases. He may make an absolute assignment of the copy- right, or an assignment for any limited term. He may convey a limited interest in the undivided copyright, and thereby make one or more persons joint owners with himself. Without part- ing with the ownership, or any part of it, he may confer upon another the right to use the work for a limited time, or for specified purposes ; may license another to publish exclusively, or more than one to publish contemporaneously ; may grant an irrevocable license to publish for a term, or a license revo- cable at will. In ascertaining what rights the author has conveyed, the first point to be established is, whether the agreement made by him is an assignment of the copyright, or whether it is merely for a restricted use of the work. Assignments have already been treated. Here will be considered those agree- ments by which an author, without parting with the copyright, gives to a publisher certain privileges of publication and sale. In order to ascertain the respective rights of the parties under an agreement of this kind, it will be necessary to determine the duration or extent of the right given to publish, whether or not it is exclusive, and how the contract may be ended and the rights created by it annulled. The law on this subject may be best understood by reviewing the leading cases which have been decided. Agreement for Publication of One Edition. — Number of Copies Specified. — In Sweet v. Cater, the plaintiff sought to restrain the defendants from publishing a work containing matter copied without authority from the tenth edition of Sir Edward Sug- 344 THE LAW OP COPYRIGHT AND PLATEI6HT. den's Treatise on the Law of Vendors and Purchasers, of which the plaintiff was the publisher. The rights of the plaintifif had been acquired under a written contract with the author, by which it was agreed that the former should print, at his own cost and in a certain style, twenty-five hundred copies of the tenth edition of this work, sell each copy at a named price, and pay to the author a specified sum for the privilege of pub- lication. The defendants contended that, under this agree- ment, the title, equitable as well as legal, to the copyright was in Sir Edward Sugden, and that the plaintiff was a licensee, not exclusive, but merely to sell twenty-five hundred copies ; and, therefore, that he had no right to prevent any other person from publishing the work. The court held that, while the legal title was in the author, the plaintiff had acquired an equitable title sufficient to give him a standing in a court of chancery. The injunction was granted on condition that the plaintiff would undertake to try his right at law ; and Sir Edward Sug- den, having refused to permit the action to be brought in his name, the defendants were ordered to admit at the trial that the plaintiff was the legal owner of the copyright in the tenth edition of the work.^ The direct decision in this case was that the contract with the author gave to the plaintiff the right, while any of the twenty- five hundred copies published by him remained unsold, to restrain any person not claiming under the author from pub- lishing the same work. But Vice-Chancellor Shadwell went further, and expressed the opinion that the plaintiff had ac- quired the exclusive right to sell twenty-five hundred copies ; • and that, until they should be sold, not even the author was at liberty to publish any copies of the work.''' 1 11 Sim. 572. a hypothetical case) should fancy that 2 " Now by this contract," said the he had a right to sell another edition Vice-Chancellor, "there is an oblige^ to another bookseller, with the imme- tion which is binding on both parties, diate right of publication ; I apprehend Sweet is to sell at a given price; and that this court would certainly restrain therefore Sir E. Sugden has bound liim from doing so, on this contract, himself to abstain from doing any It is not merely optional with Sweet thing which might at all interfere with whether he will sell or not ; but he is the act which Sweet was to do'. Sup- bound to sell, and to sell in a given pose that, before the two thousand five manner. It is most probable that, hundred copies, which form the tenth when Sir E. Sugden drew this agree- edition, are sold. Sir E. Sugden (to put ment, he was looking forward to the AGREEMENTS BETWEEN AUTHORS AND PUBLISHERS. 345 Agreement Indefinite as to Duration and Number of Copies. — Subsequent Editions, if oaUed for. — Transfer of Rights of Publisher in Bankruptcy to Third Persons. — In Stevens V. Benning,^ the contract between William Forsyth, the author, and Robert Saunders and William Benniug, the original publishers, of a Treatise on the Law relating to Composition with Creditors, came up for judicial construction. The agreement was that the book should be published at the expense and risk of the pub- lishers, and that the net profits should be divided equally between them and the author. Nothing was said about the copyright, the number of copies to be printed, or the absolute duration of the agreement. It was, however, agreed that, in case the first edition should be sold, " and a second or any sub- sequent edition of the said book be required by the public," Forsyth should make the necessary revision, and Saunders & Benning should publish " the said second and every subse- quent edition " on the same conditions agreed on for the original publication. It was further provided, that, in case any edition should not be entirely sold within five years after publication, the publishers might dispose of the unsold copies in such manner as they deemed most advisable, in order that time when he might think it right to no right to complain. Qn this point publish some subsequent edition ; and the Vice-Chancellor said : " But I do he was taking care to impose an obli- not think that that fact at all alters gation on Sweet to sell; and, while he the case; for the entire copyright in imposes that obligation, he ia himself all those prior editions was vested in bound at the same time to perform his Sir E. Sugden when he made the part of the contract, which is not to agreement with the plaintiff ; and my interfere with the sale of the book, opinion is that the effect of that agree- I think that, upon the plain construe- ment was to give to the plaintiff, as tion of this contract, Sweet has ob- against Sir E. Sugden and all persons tained a right in the copyright of the claiming under him, a right to insist work, to the extent that he is to be at that the matter contained in the tenth liberty to be the sole publisher of it edition should not be published whilst until the whole edition, consisting of he was performing his part of the con- two thousand five hundred copies, shall tract, by selling that edition to the be sold. He therefore is an assign of public. And, that being my view of the copyright, in a limited sense." the case, I think that, although the II Sim. 578. passages may be contained in some It appeared that some of the pas- prior edition, yet, if they are contained sages in the defendant's publication in the tenth edition as well, the court had been published in earlier editions ought to prevent their being copied." of Sir Edward Sugden's work, as well Ibid. 580. as in the tenth; and, as to these, it i 1 Kay & J. 168, on ap. 6 De G., was contended that tlie plaintiff had M. & G. 223. 846 THE LAW OP COPYRIGHT AND PLAYRIGHT. the account might be " finally settled and closed." The first edition was published by Saunders & Banning in 1841. Afterward, John Kirton Gilliat succeeded Saunders in the firm, which now assumed the title of William Benning & Co., and in 1844 published a second edition of the work revised by the author. In 1851, William Benning was adjudged a bank- rupt, and afterward his assignees and Gilliat assigned to Stevens & Norton the contract which had been made by Saunders & Benning with Forsyth. At the same time, about four hundred copies of the second edition of Forsyth's book were transferred to Stevens & Norton. In the mean time, William Granger Benning had published a third edition of the work revised by Forsyth, who was ignorant of the transactions by which Stevens & Norton claimed to have acquired their rights. The latter firm now sought to restrain the further publication of the book by W. G. Benning, and also applied for an account of profits. Both Vice-Chancellor Wood, before whom the suit was first brought, and the judges on appeal, found great difificulty in determining the precise nature of the contract between Forsyth and Saunders & Benning, and the rights of the original parties under it.' They agreed, however, that it was not an assignment of the copyright. The Vice-Chancellor expressed the opinion that the first publishers were entitled, and were bound, to publish on the terms of the agreement as many 1 Vice-Chancellor Wood regarded something more than one of simple the contract as " a special kind of agency." 4 Kay & J. 662. Lord Jus- agency, under which the agents were tice Knight Bruce thought that what- bound to sell, and to take the risk of ever rights vested in Saunders & there being no profits upon them- Benning, by virtue of the contract selves." 1 Kay & J. 175. But, in the with Forsyth, they acquired " by way following case of Reade v. Bentley, the of joint adventure with him or of part- same judge, in considering a like con- nership with liim." 6 De G., M. & 6. tract, remarked that the defendant was 229. Lord Justice Turner expressed more than a mere agent of the plain- the opinion, that, if there was a part- tiff. "A mere agent," he said, "may nership, it was "not in the copyright, be paid, as the defendant was to be but in the copies printed under the paid, by a share of the profits : but a license contained in the agreement, mere agent never embarks in the risk In that case, the court has nothing to of the undertaking ; and here the de- do with the question of partnership, fendant took upon himself the whole except as regards the unsold copies." expense and risk of bringing out the Ibid. 231. work. Clearly, therefore, the case is AGREEMENTS BETWEEN AUTHORS AND PUBLISHERS. 347 editions as might be required by the public, and that during the existence of the contract they had the exclusive right of publication and of sale ; ^ that the agreement was termina- ble by failure to comply with its material conditions ; and that after its termination the author would not be at liberty to pub- lish until the first publisher had sold the editions printed under the agreement.^ It was, however, not necessary to • " In the contract, however, no mention is made of copyright, which is a right so well known and defined that I should expect, if it was intended to part with it, the intention would hare heen clearly expressed. How- ever, such an intention may be in- ferred ; and it is argued that it must necessarily be inferred here, because Mr. Forsyth agreed that Messrs. Saun- ders & Benning should 'print, re- print, and publish ' his work upon cer- tain conditions, of which one was, that, if any further edition should be re- quired, as soon as the first and subse- quent editions were sold Mr. Forsyth would make all the necessary altera- tions and additions thereto, and the publishers would print and publish every subsequent edition, upon certain specified conditions ; and they were to have the power of selling, by auction or otherwise, all copies unsold five years after the date of publication. The conditions in favor of the pub- lishers are, that they were to have the sole control of the mode of printing and publishing, taking all the risk ; and, after deducting the charges and expenses incurred, they were to give Mr. Forsyth one-half of the profits, and to account with him in a certain manner. The most that I could infer upon this contract, as to its equitable effect in favor of Messrs. Saunders & Benning, if they were now before me, would be, that, during its subsistence, they performing all the conditions on their part, Mr. Forsyth would not be at liberty to transfer to any other per- son the right of printing and publishing this work, nor himself to conduct the publication of it through other hands. "Then, .it is argued that the sole power of printing, reprinting, and pub- lishing is, in fact, the copyright. And, no doubt, if an author, in con- sideration of a sum of money paid to him, agrees that. certain persons shall have the sole power of printing, re- printing, and publishing a certain work, for all time, that would be parting with the copyright ; but if the agreement is that the publishers, performing cer- tain conditions on their part, should, so long as they do perform such condi- tions, have the right of printing and publishing the book, that is a very different agreement. The legitimate inference from this contract is, that, so long as the publishers duly and prop- erly perform their duty with reference to all that they have engaged to do, Mr. Forsyth should not be at liberty to defeat the benefit of his own agree- ment, by publishing a new edition be- fore the former editions are sold ofE. As the Vice-Chancellor observed in Sweet V. Cater, 11 Sim. 572, by such an agreement, although not an assign- ment of the copyright, the author would incur obligations, and therefore could not interfere with the interest acquired by the publishers under it." 1 Kay & J. 173. 2 " The question which struck me, and on which I desired .to hear the defendant's counsel, was whether, com- bining the clause of the agreement which obliges the publishers to incur all the expenses of printing and pub- lishing, with the last clause, which pro- vides that, in case all the copies of any edition should not be sold off within five years after the time of publica- tion, they might sell them by auction or otherwise, the result *as not that when once an edition of the book had 348 THE LAW OP COPTRIGHT AND PLAYRIGHT. decide these questions, as the original parties to the agreement were not before the court. Nor was it necessary to determine what rights had passed to the assignees in bankruptcy. But the Vice-Chancellor, after pointing out the circumstances under which the original publishers might have been entitled to an injunction, incidentally remarked, that " it would be very* possible for the assignees, disposing of the remaining copies of this work as part of the bankrupt's effects, as they might properly do if they could prove clearly that no disadvantage would thereby be occasioned to Mr. Forsyth, and if they made such sale within a reasonable time, to sustain a suit for an in- junction under similar circumstances." ^ The judgment was that the contract in controversy was in the nature of a personal engagement; and hence that the rights and obligations created by it, whatever they were in the case of the original parties, were not transferable, and there- fore had not passed to the plaintiffs. Nor was the standing of the plaintiflFs the same as that of the assignees in bankruptcy through whom they claimed to have derived their interests. The injunction was accordingly refused.^ been printed, and all the expenses in- • 1 Kay & J. 177. curred, the publishers might have a ' " The principal question then is," right in that edition somewhat similar said Vice-Chanoellor Wood, " whether to that recognized in Sweet v. Cater, this agreement is a personal engage- 11 Sim. 572 ; so that they might con- ment or not. It would be difficult for tend, that, having incurred all the lia- me to say, that, in a contract of this bilities, and having performed their kind, the author is utterly indifferent duty by doing every thing necessary into whose hands his interests under on their part to bring the book into such an engagement are to be intrusted, the market, they had a right, until It is not merely a question of his lit- they had realized their profit, to pre- erary interests ; but certain publishers vent the author from interfering with undertaking to incur the expenses of them by bringing into the market any bringing out the work, and fixing the thing which might deteriorate the value price, the autlior is to have a share ot of what they had on hand ; and that, the profits ; and they are to decide in therefore, no new edition of the book what shape the book is to come out, should be published which would de- and at what price it is to be sold, and stroy the value of the former one. I are to account with him. I must say, still think that Messrs. Saunders & that, in my opinion, these are pecul- Benning, suing under this agreement, iarly personal considerations ; and that and showing that they had performed this contract bears the impress of their part and were ready to continue being a personal contract in all these to do so, would be entitled to prevent respects. It could not be a matter of Mr. Forsyth from disposing of a third indifEerence to Mr. Forsyth, that the edition of his work until they had sold assignees in bankruptcy of Mr. Ben- the preceding edition." 1 Kay & 3. ning should be at liberty to transfer 176. the future right of fixing the price of AGREEMENTS BETWEEN AUTHORS AND PUBLISHERS. 349 This decision was affirmed on appeal ; but it does not appear how far the judges agreed with the views expressed by the Vice-Chancellor as to the respective rights of the original parties to the agreeinent.^ this and subsequent editions, and the right to call upon him to fulfil his duty of preparing a new edition, and the risk which might be incurred in con- ducting it, and the otlier benefits and obligations of the agreement, to any one thej' might think proper ; possibly to some one not even carrying on the trade of a bookseller, as might happen in case of an absolute sale to the best bidder. Regarding the agreement as a contract for the purchase of a limited right, according to the view of the Vice-Chancellor of England in Sweet V. Cater, 11 Sim. 572, it is still impos- sible that it should be indifferent to Mr. Forsyth that it should pass from a respectable firm in London to book- sellers residing in a remote part of the country, or to other persons unable to fulfil the engagements entered into with him. The contract, therefore, is one which involves personal considera- tions; and, framed as it is, I must regard it as a special kind of agency, under which the agents were bound to sell, and to take the risk of there being no profits upon themselves." 1 Kay & J. 174. " I still think,'' continued the Vice- Chancellor, "that Messrs. Saunders and Benning, suing under this agree- ment, and showing that they had per- formed their part and were ready to continue to do so, would be entitled to prevent Mr. Forsyth from disposing of a third edition of his work until they had sold the preceding edition. But the case here is a very different one. It is not necessary for me even to say what would be the position of the as- signees in bankrupcy in this case. I think it would be very possible for the assignees, disposing of the remaining copies of this work as part of the bank- rupt's effects, as they might properly do if they could prove clearly that no disadvantage would thereby be occa- sioned to Mr. Forsyth, and if they made such sale within a reasonable time, to sustain a suit for an injunction under similar circumstances. The case here, however, is different. Mr. Benning's assignees and Mr. Gilliat have disposed of this property to the present plaintiffs ; and they now say that the rights under the agreement have been transferred to them, and that they are, therefore, entitled to prevent Mr. Forsyth from selling or disposing of a third edition of this book. If that be the correct view, I must hold that every right which Messrs. Saunders & Benning had un- der the agreement has passed to the present plaintiffs, and that they have a right to call upon Mr. Forsyth to publish a new edition, and have been put in all respects in the place of Messrs. Saunders & Benning; and that this personal agreement, as I must consider it, has been transferred to these plaintiffs, with whom Mr. For- syth has entered into no contract. In the particular case before me, if that were so, of course Mr. Forsyth would be in as good hands as he was before ; but that can make no difference in the law of the case. The assignees were not bound to take care to whom they sold the property, their only duty being to get the best price they could for it ; and if any other gentleman in a remote part of the country, or even residing abroad, had been the pur- chaser, they would have been at liberty to part with it to him ; in which last case the purchaser could not have interfered with Mr. Forsyth in bring- ing out a new edition." Ibid. 176. 1 6 De G., M. & G. 223. Lord Jus- tice Knight Bruce, one of the judges on appeal, while sustaining the refusal of the Vice-Chancellor to grant an in- junction, and believing that the duties imposed by the contract were personal 350 THE LAW OP COPYRIGHT AND PLAYBIGHT. Division of Profits on Copies Sold above Specified Number. — Publisher Bankrupt. — Author claims as Partner in Unsold Stock. — In a case in the Irish Bankruptcy Court in 1848, it ap- peared that Curry & Co. had'published three novels by Charles Lever, under an agreement that they should bear the expense of publication, and pay to the author a specified sum for a cer- tain number of copies, and should divide with him the net profits on the copies sold beyond that number. While a large to the contracting parties, and not capable of vicarious performance, seems to have been of the opinion, that certain rights under the contract might hare passed to the plaintiffs. He also had the impression that not even the original publishers, had they retained their rights and position under the contract, would have been entitled to the injunction prayed for in this case. He said : — " In acceding, as I do, to the pro- priety of ,the course taken by the Vice- Chancellor, I consider it as perfectly consistent with the notion, that the plaintiffs may have some ground of claim under the agreement of De- cember, 1840, on wliich their bill is founded ; may be entitled to have an account or to maintain an action or actions against one or both of the de- fendants. The only question, I re- peat, with which we are dealing, is one of granting or not granting an inter- locutory injunction ; and for that pur- pose it must be observed that such interest, if any, in the copyright of Mr. Forsyth's work on Composition with Creditors, as the other parties to the agreement acquired under it, they acquired, I apprehend, not exclusively of Mr. Forsyth, but by way of joint adventure with him, or of partnership with him, in respect and for the objects of which he undertook the fulfilment by himself personally of certain duties to them, and they undertook the fulfil- ment by themselves personally of cer- tain duties to him ; nor on either side, without the consent of the other, could there be a vicarious performance, a performance by deputy or by assignee, of the duties thus undertaken. At least, so I understand the instrument and the matter ; nor do I see that the duties were on either side of such a nature as that their performance specifically could have been enforced by a court of equity. My impression, therefore, is that had Messrs. Saunders & Benning, parties to the agreement of 1840, retained their original position and rights under it, they could not successfully have asked an injunction against Mr. Forsyth, such as that prayed by the bill before us. " If this opinion is correct, the plaintiffs clearly cannot do so ; but, if incorrect, it does not of necessity fol- low that such an injunction ought to be granted to them. For in them, however trustworthy, Mr. Forsyth has not agreed or intended to place confidence ; with them, however re- spectable, he has not consented to as- sociate himself. In the way of specific performance, there must be at least as much difliculty between him and them as between him and the other parties to the agreement of 1840. I do not assert that the plaintiffs have not, or that they have, been wronged. If wronged, they may proceed for dam- ages or compensation, or an account ; but any such injunction as that now sought seems to me plainly impossible. The appeal, not supported in my judg- ment by Morris v. Colman, 18 Ves. 437, or Lumley v. Wagner, 1 De G., M. & G. 604 (cases which I do not question), appears to me opposed by a great body of binding authority, as well as by principle, and one of course to be dismissed with costs." 6 De G., M. & G. 228. AGEBBMENTS BETWEEN AUTHORS AND PUBLISHERS. 351 number of printed copies remained unsold, Curry became bank- rupt, when Lever claimed to be entitled as partner to one-half of the unsold stock, and to have a special lien on the other half, entitling him as a preferred creditor to be paid in full for whatever balance might be due him. The commissioner held that, if Lever was a partner in the unsold stock, he was a mere dormant and secret partner ; and, as the whole of the stock had been in the possession and disposition of the bankrupt, it passed to the creditors under the Bankrupt Act ; ^ and that, for the same reason, Lever had no special lien on it. The commis- sioner said that the question as to whom the copyright belonged was not within the jurisdiction of the court ; but he expressed the opinion that, as Curry had been permitted to advertise himself as the owner, the copyright should be dealt with as his property in bankruptcy.^ Agreement Indefinite as to Duration and Number of Copies. — Division of Profits. — Publisher may fix Selling Price. — Author may End Agreement by Proper Notice. — The contracts made by Charles Reade and his publisher, Richard Bentley, which came up for judicial construction in the two suits brought by the former against the latter, were similar to that discussed in Stevens v. Benning ; except that in the agreements of Reade and Bentley there was no provision binding on either party for the publication of a second or any following edition of the books. In the first contract, made in 1862, it was agreed that Bentley should publish at his own expense and risk Reade's novel Peg Woffington ; and that, after certain expenses and allowances were deducted, the profits of every edition printed should be divided equally between author and publisher. In 1853, a similar agreement was made by the same parties for the pub- lication of Christie Johnstone. The price at which the books were to be sold was not specified. An edition of five hundred copies of Peg Wofiington having been published and sold at 10s. 6rf. a copy, Bentley, against the protest of Reade, pre- pared to issue an edition of the same novel at 38. 6c?. a copy. The latter notified the former not to publish, served a written 1 6 & 7 Will. IV. 0. 14, 8. 86. Repealed by 20 & 21 Vict. c. 60, b. 2 ; but Bee 35 & 36 Vict. c. 58, s. 5. 2 In re Curry, 12 Ir. Eq. 382, 390. 352 THE LAW OP COPYRIGHT AND PLATRIGHT. notice for a dissolution of the partnership, if any existed, be- tween them, and applied for an injunction to restrain the publication of the second edition. Vice-Chancellor Wood held that under the agreement the publisher was the proper person to fix the price ; that he was at liberty to continue publishing successive editions until he received notice to end the agree- ment ; and that such notice, to be operative, must be given before any expense on a future edition had been incurred. The court, therefore, refused to interfere with the sale of the second edition, for which the publisher had made disburse- ments before receiving from the author notice to end the agreement.^ 1 Reade v. Bentley, 3 Kay & J. 271. In the contract were these words: " The books sold to be accounted for at the trade sale price, reckoning twenty-fire copies as twenty-four, un- less it be thought advisable to dispose of any copies, or of the remainder, at a lower price, which is left to the judgment and discretion of the said Richard Bentley." The meaning of this provision was thus explained by the Vice-Chancellor : " There being this special clause, showing that in a particular case the diminution of price is to be left to the discretion of the publisher, it was argued that the in- ference is, that the publisher has no such discretion, except in the particu- lar case there mentioned. It is quite obvious that this clause was intro- duced with no such view, but because Mr. Bentley is to bring out the work, and, in bringing it out, he is to fix a certain price to the trade. He is aware that there are persons who are in the habit of purchasing all these works for resale. There is a certain quantity in the first instance offered to the trade, as it is called, who send in their orders, each buyer for a certain quantity of copies, and it is brought out to the trade at a price which is fixed upon each edition. Then it might happen that some copies would remain unsold. Mr. Bentley first agrees to account with the author for all copies at the trade price ; but then, as that might be rather too hard upon the publisher, who has had all the expense of bringing out the work, it is agreed, that, if any copies remain unsold, he is to have liberty, as regards that edition, to dispose of the unsold copies at a lower price. That is the obvious meaning of this clause ; and it has no reference to the general question of fixing or not fixing the price." Ibid. 277. " The question then arises," said the Vice-Chancellor, "if Mr. Bentley was to publish at his own risk, who was to fix the price of the work? The agreement is entirely silent upon this point, and it is left to be inferred from the nature of the contract between the parties. I am decidedly of opinion, that the plaintiff's view, that he was to have a voice in fixing the price, is not consistent with the terms of the agree- ment. I think, if he intended to retain such a power, it is scarcely possible to conceive that he should have allowed a term so important to be omitted from the agreement ; and, when I look to the words of the agreement, I see that Mr. Bentley is to be the publisher, that he is to bear the expense, and to make all payments; and considering also that it is the business of the publisher to make his expenses and profits bal- ance, that he is the person to whom the author has intrusted that depart- ment, the publisher taking the whole charge and risk, and the whole duty of bringing out the work as he thinks AGREEMENTS BETWEEN AUTHORS AND PUBLISHERS. 353 Soon after, when Bentley had published two editions of Peg Woffington and four of Christie Johnstone, and was intend- ing to issue a new edition of each novel, but had made no outlay for that purpose, Reade again served on him notice to end the agreements between them, and applied for an injunc- tion against such intended publication. The direct issue now raised was, whether Reade had the power to end the agreements, and prevent the publisher from printing an edition on wliich no expense had been incurred. Vice- Chancellor Wood was of opinion, that, if the author were powerless to end the agreement, the publisher would be at liberty to issue any number of suc- cessive editions, and at the same time prevent the author from publishing a single copy. Moreover, as it had been held in the first suit of Reade v. Bentley that the publisher was the proper person to fix the selling price of the book, he would have, by parity of reasoning, the power to determine the time of issuing a new edition. He might thus be enabled to postpone indefinitely the publication of an edition for which there might in reality be a demand. In this case, also, the author would be powerless to publish. On the other hand, the author could not, under the agreement, compel the publisher to issue more than the first edition. Such " a construction," said the Vice- Chancellor, " which would leave the author fast bound, and the publisher entirely free, after the publication of one edition, is not a reasonable construction to adopt in considering the effect of an agreement of this character." The court decided that no interest in the copyright had been transferred, and that the agreement created no " more than a joint adventure," terminable by the author, with a revocable license to publish. As the contract provided for an adjustment of accounts when the profits of each edition should be ascertained, the time of making such adjustment was held to be the proper time for ending the agreement. The injunction was, therefore, granted best for the interest of both parties, it fendant, the publisher, is to fix the seems to be necessarily incident to the price of the work ; that he is to choose duty which he has to perform, that he the embellishments and every thing should have the right also of deter- else connected with its publication ; mining the price at which the work and that he is to do this for all edi- should be brought out. I think the tions which should be brought out construction of the agreement is plain during the subsistence of the agree- fenough up to this point, that the de- ment." 3 Kay & J. 275. 23 354 THE LAW OP COPYEIGHT AND PLAYKIGHT, to restrain the publication of the editions on which no expense had been incurred by the publisher.^ ' Eeade v. Bentley, 4 Kay & J. 656. "Lord Justice Turner," said Vice- Chancellor Wood, "looked upon the agreement in Stevens o. Benning, in the double light of a license and a partnership ; speaking, howeyer, less decidedly as to its being a partnership. He says, 'Next, if there was a partner- ship, then, if the agreement does not affect the copyright, the partnership was not in the copyright, but in the copies printed under the license con- tained in the agreement ' (6 De G., M. & G. 231) ; viewing it, therefore, as a license for the publication of the work, and then a joint adventure between the author and publisher in the copies BO to be published. If that were the effect of the agreement in the present case, the question would still remain, whether the license be irrevocable. " In the former suit between these parties, 8 Kay & J. 271, the plaintiff claimed a right to prevent the publica- tion of an edition with respect to which the defendant had been allowed to incur various expenses before the plaintiff had taken any steps to deter- mine the joint adventure between them. In the present suit, his claim is wholly different. He does not at- tempt to interfere with the publication of an edition which the defendant had commenced, and incurred expense in preparing for publication, before he exercised the option of determining the agreement. His claim is limited to editions about which no such expense had been incurred by the defendant ; and his argument is, tliat, unless be has a right to determine the agree- ment as to all such editions, the conse- quence will be, that, during the whole of the defendant's life, he may be under an obligation to the defendant, while the defendant will be under no reciprocal obligation to him. It is true, that, according to Stevens v. Benning, a license like the present would, I apprehend, be restricted to the defendant personally, and would not extend to his executors, or to any future partner or assignee; but, if the defendant's construction be correct, it follows that so long as he lives and. is willing to continue publishing fresh editions of the work, so long, according to the doctrine in Sweet v. Cater, the plaintiff will be precluded from assert- ing a right to publish any competing edition. The defendant could compel the plaintiff to abstain from publishing a single copy of the work, so long as he expressed his readiness to continue publishing. But the plaintiff has no reciprocal power. He could never compel the defendant to publish more than a single edition of the work. His powers are limited to what the con- tract gives him ; and, according to the contract, when the defendant has pub- lished a single edition the contract on his part is fulfilled. That is a position of considerable hardship for an author, and one which ought to be clearly shown, upon the face of a contract, to have been contemplated by the parties who entered into it. Besides, the plaintiff might be placed in a position of still greater hardship, if the defend- ant's construction be correct. In the former suit between the parties, in reference to this agreement, I held, that, although the agreement is silent on the subject, yet inasmuch as the defendant was to bear the risk of the publication, he was the proper person to fix the price; and, by parity of reasoning, he would be the proper person to fix the time and mode of publication ; and, in the exercise of his discretion on that subject, it might well happen that the defendant, acting per- fectly bona fide and upon an honest conviction that circumstances were unfavorable for the publication of a further edition, would decline indefi- nitely to publish, but without resigning his contract. The author, at the same time, might be of a contrary opinion, and yet for months or even years he might be kept in suspense, and pre- AGREEMENTS BETWEEN AUTHORS AND PUBLISHERS. 355 Agreement for First Edition of Specified Number, and Unlimited Second Edition if called for. — Pulte v. Derby was a contro- ■vented from publishing on his own account until his publisher should be of opinion that the time had come for the revival of the public interest in the work. That is a position of diffi- culty and hardship to which an author ought not to be reduced, unless the contract is express and clear upon the subject. " On the other hand, it was very ably urged by the defendant's counsel, that, if the plaintiff has the right of determining the agreement, lie is bound to show from the contract at what precise time that right commences. If he can arrest the publication of a third, fourth, or fifth edition, the same argu- ment, it was said, must apply to the second ; and if the plaintifE cannot fix upon some particular time at which, according to the contract, his right is to commence, the inference must be, that the agreement is only determina- ble by a joint resolution of both par- ties. As regards a second edition, this argument is particularly forcible, al- though possibly it might apply to others. The publisher may urge that he has given the benefit of his talents and position as a publisher ; that he has invested his capital, sparing no expense, in bringing out the first edi- tion, in the expectation of being re- couped the cost of tlie first by the sale of the second and subsequent editions ; that as to one of the worlds in question he has even gone so far as to have it stereotyped with that view ; and that, to hold the author entitled at his own instance to determine an agreement like the present, when the first edition has been published, would be to enable him, by an arbitrary and unreasonable exercise of that power, to deprive the publisher of all his profits." 4 Kay & J. 663. The meaning of the word edition was thus construed by the Vice-Chan- cellor : " This consideration makes it necessary to inquire, whether, upon the face of the agreements, any definite time can be reasonably said to be pointed out for the determination of the joint adventures in question ; or whether the terms of the agreements are such as necessarily to hold the plaintiff bound for an indefinite series of editions, and thus to subject him to the disadvantages to which I have referred. Now, on carefully reading through each agreement, it appears to me, that, at all events, certain definite times are distinctly pointed out for the adjustment of the accounts, and that those times are the successive periods when the various receipts and pay- ments on account of the successive edi- tions have been ascertained. " It was said that the court must first ascertain the meaning of the term edition ; that when a work has once been stereotyped, the term edition is no longer applicable; that when a work is published in what are called ' thousands,' twenty thousand or thirty thousand being circulated, each thou- sand could not properly be called an edition. Now, I apprehend, that, not merely in point of etymology, but having regard to what actually takes place in the publication of any work, an edition of a work is the putting of it forth before the public, and, if this be done in batches at successive periods, each successive batch is a new edition ; and the question whether the individual copies have been printed by means of movable type or by stereo- type, does not seem to me to be mate- rial. If movable type is used, the type having been broken up, the new edition is prepared by setting up the type afresh, printing afresh, advertis- ing afresh, and repeating all the other necessary steps to obtain a new circu- lation of the work. In that case, the contemplated break between the two editions is more complete, because, until the type is again set up, nothing further can be done. But I apprehend it makes no substantial difference, as regards the meaning of the term edi- 356 THE LAW OP COPYRIGHT AND PLAYEIGHT. versy in the Circuit Court of the United States, growing out of a contract for the publication, by the defendants, of a book of which the plaintiff was the author. The agreement was that the defendants should have " the exclusive right to print and publish an edition of one thousand copies," at their own ex- pense, and that they should pay to the plaintiff fifteen cents for each copy sold. It was further agreed " that, if the said Derby & Co. find a second edition called for, the said Pulte is to revise and correct a copy of the first edition ready for the press, which the said Derby & Co. agree to have stereotyped at their own cost, having the exclusive use and control of the plates, printing as many copies as they can sell, paying to said Pulte the sum of twenty cents for each and every copy sold." The copyright was entered in the name of the publishers, and after the first edition of one thousand copies had been sold stereotype plates were prepared, and a second edition of fifteen hundred copies, revised by the author, was printed. Afterward the defendants published two thousand copies, which were ■represented on the title-page as the third edition. The plates were then transferred to A. S. Barnes & Co., under a contract to publish, and account to the defendants, on the same terms mentioned in the agreement between the plaintiff and the de- fendants. The complainant, alleging that the publication of tion, whether the new thousand have The agreement provides that, ' after been printed by a resetting of mov- deducting from the produce of the sale able type, or by stereotype, or whether the charges for printing, paper, adver- they have been printed at the same tising, embellishments (if any), and time with the former thousand, or sub- other incidental expenses, the profits sequently. A new edition is published remaining of every edition that shall whenever, having in his storehouse a be printed of the work' shall be di- certain number of copies, the publisher vided as specified. It uses the word issues a fresh batch of them to the edition to designate that periodical public. This, according to the prac- issue which is capable of being made tice of the trade, is done, as is well the subject of a separate account of known, periodically. Andlf, after print- profit and loss. Ing twenty thousand copies, a publisher " Such, then, being the meaning of should think it expedient, for the pur- the word edition, the agreement pro- pose of keeping up the price of the vides, that, so soon as all the charges work, to issue them in batches of a and expenses, and all the receipts in thousand at a time, keeping the rest respect of each edition, shall have under lock and key, each successive been ascertained, the accounts shall be issue would be a new edition in every taken, and the profits divided. That sense of the word. The persons who is the period distinctly pointed out by framed this agreement appear to have the agreement for the adjustment of understood the word in this sense, the accounts." 4 Kay & J. 666. AGREEMENTS BETWEEN AUTHORS AND PUBLISHERS. 357 the third edition was in violation of his rights, applied for an injunction against the sale of that edition. The defendants filed a cross-bill, alleging that the copyright was in them, and praying that the complainant be enjoined from publishing the book, as he was about to do. There was no controversy respecting that part of the agree- ment which gave to the defendants the exclusive right to pub- lish and sell the first edition of one thousand copies. The questions brought before the court related to the second clause of the contract, which provided for the publication of a second edition of the work. The difficulty in determining tlie true effect and meaning of this provision grew out of the fact that the number of copies of which the edition should consist was not specified ; the publishers being authorized to prepare stereotype plates, and to print " as many copies as they can sell." The court held that it had no jurisdiction, and on this ground refused to grant an injunction. But Mr. Justice Mc- Lean construed the contract to tiie effect, that the defendants had acquired the right to publish as many copies of the second edition as they could sell ; that the second edition could not be limited " to the number of copies that may be struck off at one impression ; " that " the defendants were not to be limited to the publication of the second edition, if they could sell more than happened to be published on that occasion ; " and that " the mere fact of inserting in the title-page in the third im- pression, the ' third edition,' cannot cut off the defendants from the right expressly given in the agreement." ^ 1 5 McLean, 328. After referring restriction does appear upon the face to the circumstance that the copy- of the agreement. And this is found, right, with the presumable sanction of it is said, in the provisions made for the author, had been entered in the the publication of the first and second names of the defendants, Mr. Justice editions. The first edition was lim- McLean said : " Now, this fact goes ited to one thousand copies. And, strongly to show that the contract was should a second edition he called for, intended to operate as long as the plates were to be provided by the de- defendants^ in the language of the fendants, and they were authorized to agreement, could ' sell the copies of the ' print as many copies as they can book.' If such were not the under- sell.' Does this limit the second edi- standing of the parties, it is reasonable tion to the number of copies that may to suppose that there would have been be struck off at one impression ? Such a restriction to the exercise of this a supposition is contrary to the words right, in the contract. The counsel of the agreement. The advantage of for the complainant contend that a stereotype plates to the publishers is 358 THE LAW OP COPYRIGHT AND PLAYRIGHT. If by this language it was meant that the publishers were entitled to print as many copies of the second edition as could be sold, and that the size of that edition was not necessarily determined by the number of copies that were struck off at the first printing, the ruling is doubtless correct. But if the mean- ing intended to be expressed by the court was that the defend- ants were empowered to publish what might properly be considered a third edition, the soundness of the construction may well be questioned. The contract cannot rightly be con- strued as an assignment of the copyright. It gave the publish- ers the right to publish a second edition of unlimited size ; but they had no authority to issue a third edition. The dividing line between two editions is often uncertain and of difficult to enable them to strike off additional copies witliout delay, and with little increase of expense, as they shall be called for. This is known to all pub- lishers and authors, and this was pro- Tided for in the agreement. The de- fendants were authorized to 'print as many copies as they can sell.' Now, how are they to ascertain the number of copies they can sell, until the stock on hand shall be exhausted, or nearly exhausted, and a demand is made for more ? They are no more able to as- certain this important fact on the pub- lication of the second edition than on the publication of the first one. The fact can only be known in the progress of the sale, and this shows that the defendants were not to be limited to the publication of the second edition, if they could sell more than happened to be published on that occasion. And it also shows the propriety of preparing the stereotype plates. " The contract seems to be suscepti- ble of no other interpretation. The words authorizing the defendants to print as many copies as they can sell must be stricken out of the contract, to give to it a different construction. Effect must be given to every part of the contract, if one part be not repug- nant to another. There is no repug- nancy in any part of the contract to the above provision. On the contrary. it harmonizes with every part of the agreement, and especially with the acts of the parties in having the copyright vested in the defendants, and with the preparation of the plates. Plates, it is believed, are rarely if ever used when only one edition or impression of a work is contemplated ; they are now uniformly used when a continued and an increasing demand is anticipated. "To this view it is objected that there is no provision in the agreement for the third edition. There is only a provision that the defendants may print as many copies as they can sell ; and the mere fact of inserting in the title- page in the third impression, the ' third edition,' cannot cut off the defendants from the right expressly given in the agreement. In a Court of Chancery, the substance of a thing is more re- garded than the form. Whether the defendant stated in the title-page the third impression, or tlie third edition, is immaterial. The only objection perceived to the title-page is, that the third edition purports to have been revised and corrected by the author. This applies to the second edition, and not to the third. But it is supposed to have been an inadvertence in copying the title-page of the second edition. It is clear this could not have been in- serted with a view to injure the com- plainant." 6 McLean, 332. AGREEMENTS BETWEEN AUTHORS AND PUBLISHERS. 359 determination. The word edition is indefinite and variable in its meaning. It may be used in different senses, by different persons, at different times and in different places. The mean- ing to be ascertained is that in which it was understood by the parties who used it. Whether the two thousand copies complained of in Pulte v. Derby were in reality a part of the second, or constituted a third, edition was a question of fact, to be determined by the attendant circumstances. Whether they were one or the other in the meaning of the parties to the agreement was a question depending on the sense in which the word edition had been understood and used by them. If, in the meaning of the parties when the agree- ment was made, such additional copies were properly a part of the second edition, the publishers were within the authority of the contract; but, if they could fairly be considered to be a new edition, their publication was in violation of the author's rights.^ 1 The chief difficulty in determining the rights of the parties under tlie sec- ond part of the contract lay in defining the limits of the second edition. It was clear that the author had given no au- thority to publish what could properly be understood to be a third edition. Having expressly limited the first edi- tion to one thousand copies, he agreed that, if a second edition should be called for, the publishers should publish that also ; and, as it was not foreseen how many copies of that edition it would be well to publish, the number was not specified, but was left to be determined by the public demand. The words that the publishers should print " as many copies as they can sell," on which so much stress was laid by the court, applied exclusively to the second edi- tion, and had no other force than to negative the inference that might have been drawn if express words had not been used, that the second edition was to be of the same size as the first ; viz., one thousand copies. As the number of copies of which the second edition should consist was not expressly limited, the publishers, except for the implied limitation just referred to, would have been fully entitled, even if the words above quoted had been omitted, to publish as many copies of the second edition as they could sell ; and the insertion of these words did not enlarge that right, or extend it be- yond the second edition. For the sec- ond edition, the publishers first printed fifteen hundred copies. They after- ward issued two thousand copies, with the imprint " third edition " on the title-page. The fact that the two thousand copies, thus printed sepa- rately and distinctly from the fifteen hundred, were represented by the pub- lishers to be the third edition, was a most significant circumstance in deter- mining whether, in the meaning of the agreement, they were a, third edition or a part of the second. Mr. Justice McLean attached much importance to the fact that stereotype plates had been prepared for the second edition. In Reade v. Bentley, Vice- Chancellor Wood expressed the opinion that it was immaterial, in determining the limits of an edition, whether the copies had been printed from stereo- type plates or ordinary types. See ante, p. 356, note. 360 THE LAW OF COPYEIGHT AND PLATEIGHT. The cross-bill raised the important question, whether the defendants had acquired the right, not only of publishing the work themselves, but also of preventing the author, or any person claiming under him, from issuing an edition while tliey were the authorized publishers. On this point the court ex- pressed the opinion, that, as the copyright had been entered in the name of the defendants, the legal title was in them, but only for the purposes of the agreement ; that they had the ex- clusive right to publish on the conditions of the contract, but were not empowered to transfer the copyright, nor to publish except on the terms agreed on ; and that the author was not entitled to publish the work in disregard of the con- tract.' As the agreement was for the publication of two editions, the defendant's rights were restricted to those two editions, and hence they would cease when the second edition should be sold. Agreement for Use of Matter in Specified Editions. — In Law- rence V. Dana,^ it appeared that the complainant, William Beach Lawrence, at the request of Mrs. Wheaton, widow of Henry Wheaton, had prepared two annotated editions of Wheat- on's Elements of International Law ; of which one was iesued in 1855, and the other in 1863. Both were published by Little, Brown, & Co., of Boston; and the copyright in each was entered in the name of Mrs. Wheaton. The complainant prepared the notes, without asking or receiving pay for his services. He al- leged that it had been understood and agreed between Mrs. Wheaton and himself that she should be entitled to the use, in those two editions, of the matter prepared by him ; but that, subject to this use, the property in such matter should be his, and that she should liold in trust for him tlie copyrights taken out in her name. The agreement for the publication of the first of the two editions was oral. Concerning the second edition, Mrs. Wheaton agreed in writing " to make no use of Mr. Lawrence's notes in a new edition, witliout his written con- sent," and to give to him " the right to make any use he wishes to of his own notes." On this agreement the complainant based his suit.^ After these two editions had been sold, Mrs. 1 6 McLean, 335. 2 2 Am. L. T. R. n. s. 402. » See Ibid. 405. AGREEMENTS BETWEEN AUTHORS AND PUBLISHERS. 361 Wheaton employed the defendant to prepare another annotated edition, which was also published by Little, Brown, & Co. The complainant alleged that this edition contained matter copied from his notes in the two preceding editions, and hence in- fringed his copyright therein. The court held that Mrs. "Wheaton had acquired the right to use Lawrence's notes in the two editions as agreed, but not otherwise ; that the legal title to the copyright was in her ; that the copyright was the property of Lawrence, in whom vested the equitable title which entitled him to maintain his suit in equity ; that neither Mrs. Wheaton nor any one claiming under her had a right to use Lawrence's notes, without his consent, in any publication other than the two editions agreed on.^ 1 " The legal title to the copyrights," said Mr. Justice Clifford, "is in Mrs. Wheaton or her legal representative ; and the complainant claims, in the first place, that the same is held in trust for him as the equitable owner of the notes by virtue of the original arrangement under which the same were prepared. Secondly, the complainant claims that the negative as well as the aflBrmative promise contained in the agreement in regard to the use of the notes was binding upon Mrs. Wheaton ; and that both are obligatory upon her legal representative, and all others having notice of the existence of those cove- nauts. " Two principal objections are taken by the respondents to the claim of the complainant that he is the equitable owner of the notes under the original arrangement. First, they deny that the proofs in the case warrant any such finding, especially as the theory is de- nied in the answer. Second, they con- tend that Mrs. Wheaton, if such was the agreement, could not legally copy- right the notes ; as it would show that she was but a mere licensee, and that the copyrights in that state of the case would be void on that account. '■ First, conclusive proof to show what was the original understanding between the parties is found in the correspond- ence upon the subject. Unaided by any one, the complainant prepared the notes, but with the express under- standing that he would do so without any charge, and that the property of the same, so far aa respected the new edition, should vest in the proprietor of the book, and that she should take out the copyright and remain, as she was, the sole and exclusive owner of the entire book. Liberal, however, as the agreement was toward the proprie- tor of the book, yet it did not include any thing except that edition ; and when the second annotated edition was prepared under a similar arrangement, as conceded by both parties, the agree- ment was not extended beyond that publication. Confirmation of those propositions is unnecessary, as they are not controverted by the respond- ents. They deny that it was agreed between the parties that the notes should ever afterward become the property of the complainant ; but they do not allege nor offer any proof tend- ing to show that his agreement with Mrs. Wheaton extended beyond the annotated editions. Tested by these indubitable facts, the rights of the par- ties are plain, and easy to be under- stood. As the proprietor of the book, Mrs. Wheaton, by virtue of that ar- rangement, became the absolute owner of the notes as they were prepared, so far as respficts the editions in question ; and she also acquired therewith the right to copyright the same for the 3j52 THE LAW OF COPTEIGHT AND PLATEIGHT. Agreement with State Reporter for Publioation of Law Re- ports. — In Little v. Hall, it appeared that the complainants by a contract with Christopher Morgan, the Secretary of State of New York, and George F. Comstock, the State Reporter, were to publish and have the copyright of reports of decisions to be prepared by Comstock. The last named received a salary from the State for acting as reporter, and the copyright in the reports was to be the property of the State. When three volumes of reports had been published under the agree- ment above referred to, Comstock ceased to be State Reporter ; but afterward, with the consent of the court, he prepared, from manuscripts, some of which had come into his hands while reporter, and others had been given to him by the judges after the expiration of his term of oflBce, a fourth volume of reports, which was bought and published by the defendants. The plaintiffs republished this volume, and sought to enjoin the sale of the edition published by the defendants. The Supreme Court of the United States held that the complainant's contract had been made with Comstock as State Reporter ; and that, whatever claim they might have against him for failure to supply the manuscripts to them, they could not be considered as the owners of the copyright in the volume of reports pre- pared by him after he had ceased to be State Reporter.^ protection of the property ; but she did ' 18 How. 165. " After the expira- not acquire thereby any right or title, tion of his official term, Comstock did legal or equitable, to use the notes in a not and could not act as reporter. His third edition of the annotated work successor, having been appointed and without the consent of the complain- qualified, discharged the duties of the ant. Proof to support any such right office and received the salary. . . . As or title is entirely wanting in the his term of office had expired, he was record, and no such right or title is set unwilling to publish the fourth volume up in the answer. Such omission con- without compensation for his labor, firms the view that no such right or This changed his relations with the title was intended to be conveyed ; and plaintiffs, as that contract was made the subsequent conduct of the parties as reporter, and on the supposition in executing the memorandum tends that he would be continued in that strongly to the same conclusion. office. . . . Comstock could not have " Second, suppose the facts to be so, published the work as reporter without then the respondents contend that the the consent of the court of appeals, copyrights are void, because, as they and also the Secretary of State, who insist, the applicant for the same was was required to secure the copyright a mere licensee of the author of the to the State ; and for his labor in pre- notes ; but the court is of a different paring the notes, references, &c., and opinion, for the reasons already given, superintending the printing, he could as well as for others yet to be men- have received no compensation, tioned." 2 Am. L. T. R. n. a. 418. " Without saying what effect might AGREEMENTS BETWEEN AUTHORS AND PUBLISHERS. 363 Principles Drawn from Foregoing Cases. — Certain general principles may now be drawn from the cases which have been examined. These cases present contracts which, with respect to the duration or extent of the right to publish, may be ar- ranged in three general classes : 1, those in which the number of copies to be published, or the time during which publication is to continue, is expressly limited ; 2, those in which the right of publication and its duration are made conditional on a cer- tain event ; 3, those in which the agreement is indefinite as to the number of copies to be published, or the period through which publication is to extend. A person who has acquired the right to publish only one edition of a work cannot publish another edition, without authority. 1 Where the agreement is for the exclusive publication of a specified number of copies, the publisher acquires the right to print and sell on the terms of the contract that number of copies ; and, while those terms are observed by the publisher, the author is powerless to revoke the authority given, or him- self to publish, until the number of copies agreed on has been sold. 2 An agreement which is made conditional on a certain event becomes binding on the occurrence of that event. Thus, where the contract provided that, if a second edition should be called for, the publishers should publish it, the latter acquired the have been given to the contract had parties, the plaintiffs cannot be con- the relation of the parties remained sidered as the legal owners of the unchanged, we are unable to say, as manuscript for the purposes of tlie the ease now stands before us, that the contract under the copyright law. plaintifEs were the legal owners of the Whatever obligation may arise from manuscript within the copyright law. the contract under the circumstances Tlie contract was made by Comstock as against Comstock must be founded as reporter, whose duties were regu- on his failure to furnish tlie manu- lated by law ; and the obligations of scripts to the plaintiffs, and of such a the complainants as publishers were case we can take no jurisdiction as embodied in the contract, and were in- between the parties on the record." compatible with any publication on McLean, J., Ibid. 171, 172. private account. The entire labor of i Lawrence w. Dana, 2 Am. L. T. E. the work was performed by Comstock, n. s. 402. See also Delf v. Delamotte, not as reporter, but on his own account. 3 Jur. n. s. 933. It is, we think, not a case for a speciiic ^ Sweet v. Cater, 11 Sim. 572; execution of the contract; and in effect Pulte v. Derby, 5 McLean, 328. See that is the object of the bill. . . . also Blackie v. Aikman, 5 Sc. Sess. Under the changed relation of the Cas. 719. S64 THE LAW OP COPYRIGHT AND PLAYRIGHT. right, and became bound, when a second edition was called for, to publish that edition on the terms of the contract.' Under such agreement, the question whether a new edition is de- manded by the public is not left solely to the discretion of the publisher ; but is one of fact, which may be determined by proof.^ But, where the agreement was for the publication of a single edition, and, without any special provision for that pur- pose, had in view the issue of following editions, the court was of opinion that it was left to the publisher to determine the proper time for bringing out a new edition.^ An agreement that the publishers shall publish a second edi- tion, if demanded by the public, and print as many copies as they can sell, — an exclusive publication being understood, — gives them the right, when such demand arises, to publish and sell as many copies as can properly be considered to belong to that edition, and to prevent the author, or any one claiming under him, from publishing until such copies shall be sold.* And so, where the publishers are authorized and agree to pub- lish as many editions as may be demanded, there can be little doubt that they have the right, and are bound, to continue the publication on the terms of the agreement as long as they can sell the book. In this case, the rights and obligations of the parties are ended only when the demand for the book ceases, or the conditions of the contract are violated.^ When neither the time during which the publication is to last, nor the number of editions or copies to be published, is specified, the publisher is not bound to publish more than the first edition ; and the author, by giving proper notice, may end 1 Pulte V. Derby, 5 McLean, 328. defendants was not an arbitrary one, ^ " If Derby & Co. find a second but a discretion to be governed by edition called for, they are bound to facts, and on the establishment of the prepare the plates, and publish a second facts the right of the complainant could edition. Now, if a second edition was be enforced." McLean, J., Ibid. 334. called for, which is a fact susceptible 3 Reade v. Bentley, 4 Kay & J. 665. of proof, could the defendants, in the * Pulte v. Derby, supra. exercise of their discretion, refuse to 5 Such was the agreement in con- publish? Such a ground would be in troversy in Stevens v. Benning. The opposition to the spirit of the contract; case was decided on other grounds, and it is supposed that a Court of But Vice-Chancellor Wood expressed Chancery, looking at the whole con- obiter the same view of the law that is tract, would have compelled them to given in the text. See ante, p. 847, publish. The discretion vested in the note 1. AGREEMENTS BETWEEN AUTHORS AND PUBLISHERS. 365 the contract, and prevent the publication of any following edi- tion.i But the publisher is at liberty to continue publishing successive editions on the terms of the contract until the receipt of such notice; and the author is not entitled to restrain the publication or sale of any edition on which the publisher has incurred expense before receiving notice to end the agreement.^ The publisher is bound to observe the terms of the contract as to manner and style of publication, selling price of copies, &c.^ If the price at which the book is to be sold is not named in the agreement, it is left to the judgment of the publisher ; * and, on the same principle, he would be the proper person to determine the style in which the book is to appear.^ But while the publisher, in the absence of a special agreement, may determine the style of publication and the selling price, it would seem that this liberty would not entitle him to publish in a style, and to sell at a price, which would be clearly and positively injurious to the literary reputation or pecuniary in- terests of the author, unless there arp circumstances to show that the consent of the latter is to be ptesumed. A contract which is not, as well as one which is, terminable at will, may be ended by the neglect or refusal of the publisher to comply with its material conditions.^ When the manner and style of publication, the selling price of copies, or other material particulars, are specified in the contract, it is reason- able to conclude that the publisher's rights are dependent on 1 Reade v. Bentley, 3 Kay & J. 271, See also Stevens v. Benning, supra. 4 Id. 656 ; Warne v. Routledge, Law Where it had been agreed that the Eep. 18 Eq. 497. book should be sold " to the public " 2 Beade v. Bentley, supra. As to at one shilling, the Irish Commissioner the time when the agreement may be in Bankruptcy, holding that a sale to ended, and the meaning of " edition," another publisher at a reduced price see opinion of Vice-Chancellor Wood, was no violation of the agreement, ante, p. 355, note. said ; " There is nothing in the words 2 Sweet V. Cater, 11 Sim. 572; or spirit of the agreement restricting Stevens v. Benning, 1 Kay & J. 168, the price to the trade ; and every per- on ap. 6 De G., M.- & G. 223. And so, son, however little acquainted with the in Pulte V. Derby, the court remarked business of a bookseller and publisher, that the publishers had no power " to knows how enormously those prices publish the work except upon the differ." In re Curry, 12 Ir. Eq. 387. terms of the contract." 5 McLean, ^ See In re Curry, Ibid. 388. 335. ^ Stevens v. Benning, supra. 4 Eeade v. Bentley, 3 Kay & J. 271. 866 THE LAW OP COPYRIGHT AND PLATBIGHT. his observance of these provisions. He has uo authority to publish except on such conditions ; and the author would seem to have the power, if not to compel him to publish on the terms agreed on, at least to prevent him from publishing in disregard of them. The author would thus be free to license another to publish, but not in violation of whatever rights the first publisher may have acquired with respect to any copies that he may have already printed in compliance with the terms of the contract.^ The contract in controversy in Stevens v. Benning was held to be in the nature of a personal engagement, and the duties imposed by it not capable of vicarious performance. Hence, the rights acquired by the publisher were not transferable.^ The same opinion was incidentally expressed by the court in Reade v. Bentley, of the agreement which had been made by the parties to that suit.* The consideration in these contracts was that the author should receive a share of the profits. And the opinion of the court on the point under consideration was evidently based on the ground, that the benefits to be received by the author were dependent to a material degree on the judgment, enterprise, reputation, and business facilities of the publisher, and that these were important considerations on which the author had relied in making the agreement. These reasons would also prevail where the author is to receive a royalty on the copies sold ; but they would lose their force 1 In considering the equitable force situation to perform their personal of an agreement between the author part of the contract, neither in my and his publishers, Lord Justice Turner view of the case could they in equity said: " It was, however, said that there enforce, as against Mr. Forsyth, any was a personal equity against Mr. For- contract which he had entered into syth operating in this mode ; that Mr. with them." Stevens v. Benning, 6 Forsyth could not, as between him and De G., M. & G. 231. Messrs. Saunders & Benning, have ^ 1 Kay & J. 168, on ap. 6 De G., M. permitted a third edition of the work & G. 223. As to what rights might to be issued whilst copies of the second pass to an assignee in bankruptcy, see remained unsold under the agreement, ante, p. 348. How the case would have stood if ^ "It is true,'' said Wood, V. C., Messrs. Saunders & Benning had re- "that, according to Stevens w. Benning, mained in a position to perform their a license like the present would, I part of the agreement, I need not give apprehend, be restricted to the de- any opinion ; but, if there was a per- fendant personally, and would not ex- sonal equity on one side, there must tend to his executors, or to any future also be on the other. If Messrs. partner or assignee." 4 Kay & J. 664. Saunders & Benning are not in a AGREEMENTS BETWEEN AUTHORS AND PUBLISHERS. 367 where a definite sum has been agreed on for the privilege of publication. In the latter case, the author would not sustain direct pecuniary loss in consequence of a change of publishers. His literary interests might be thereby affected ; but it may be doubted whether this circumstance would operate to annul the contract.! In ascertaining the respective rights of the parties under an agreement, it is necessary to determine whether an exclu- sive publication is agreed on, or whether there is reserved to the author the power to license others to publish contempo- raneously. Of course this question does not arise when the contract is express on this point. But, not unfrequently, nothing is said concerning the intentions of the parties in this respect. There is no doubt, however, that the publisher may acquire the right of exclusive publication and sale for a definite period, or during the existence of the contract, without express words in the agreement to that effect.^ Indeed, in the absence of ex- press words or controlling circumstances to the contrary, the natural presumption in some cases would seem to be that an exclusive publication was understood ; since a copyriglited book is usually brought out by but one publisher at the time, 1 In Pulte V. Derby, it appeared right. They cannot transfer it. They that the defendants, who had acquired hare no power to assign tlie copyriglit, the right of publication in considera- nor to publish the work, except upon tion of paying the author a royalty on the terms of the contract." 6 McLean, each copy sold, had, without the au- 335. The views of the court are here thor's consent, transferred to another clearly expressed to the effect, that the firm the stereotype plates, under an defendants could not assign the copy- agreement to publish, and account to right, or transfer their title to it ; and the defendants, on the terms of the the language might reasonably be agreement between the latter and the understood to mean that they were author. The question whether the not entitled to transfer the stereotype defendants had the power to make plates, and authorize another to pub- such transfer of their rights under the lish, as they had done. But whether contract was not decided. Nor did the court was or was not of this opin- the court express any opinion on this ion cannot be affirmed with certainty., point, unless the following language ^ Sweet v. Cater, 11 Sim. 572; had reference to it. After remarking Stevens v. Benning, 1 Kay & J. 168 ; that the legal title to the copyright was Wame v. Eoutledge, Law Eep. 18 Eq. in the defendants, but only for the 497. In Reade v. Bentley, 3 Kay & purposes of the contract, Mr. Justice J. 271, 4 Id. 656, though the question McLean said : " The right covers their was not discussed, it was not denied interest, and protects it, so long as they that the publisher's rights under an shall be engaged in the publication indefinite agreement were exclusive and sale of the work. Beyond this, during the existence of the agreement, they are not considered as having the 368 THE LAW OP COPYRIGHT AND PLAYRIGHT, who undertakes the publication, and expects to realize his profits, on the implied understanding that he is to be the sole publisher for the time agreed on, or as long as the agreement lasts.^ Unless an assignment of the copyright has been made, the legal title, the possession of which is necessary to sustain an action at law for piracy, remains in the author. But the publisher may acquire an equitable title sufficient for the assertion of his rights in a Court of Chancery .^ In the United States, when the copy- right is entered in the name of the publisher, the legal title will vest in him for the purposes of the agreement. It is then held in trust for the owner .^ Rights of Parties after Agreement is Ended. — When a contract for an exclusive publication is terminable at will, or by non- compliance with its provisions, the question is raised as to what are the rights of the parties after the agreement has been ended. It is conceded that the publisher may sell all the copies printed under the agreement.* But is this right exclu- sive, so that he may prevent the author, or any one claiming under him, from publishing until such copies shall have been sold ? In Stevens v. Benning, Vice-Chancellor Wood, in con- sidering a contract terminable by circumstances, expressed the opinion that the publisher would continue to have the exclusive right of selling the copies which had been printed before the termination of the agreement.^ Publisher's Right to Sell after Agreement is Ended held not to be Exclusive. — This issue was directly raised in the recent case of Warne v. Routledge. The plaintiffs had orally agreed with Mrs. Cook to publish, at their own expense, a book written by her, and entitled How to Dress on ^£16 a Year as a Lady, 1 In a recent case, the English Court - Sweet v. Cater, 11 Sim. 672 ; Eeade of Chancery held that a contract u. Bentley, infra. between a manager of a theatre and an ^ Lawrence v. Dana, 2 Am. L. T. R. actor must be understood to be for the n. s. 402 ; Pulte v. Derby, 5 McLean, exclusive services of the latter during 328, 335. the period for which he had been en- * Reade v. Bentley, 3 Kay & J. 271, gaged, though there was no express 4 Id. 666 ; Warne v. Routledge, Law agreement that he should not act else- Rep. 18 Eq. 497 ; Howitt u. Hall, 6 where. Montague v. Flockton, Law L. T. n. s. 348. Rep. 16 Eq. 189. 6 See ante, p. 847, note 2. AGREEMENTS BETWEEN AUTHORS AND PUBLISHERS. 369 by a Lady, to sell at a shilling a copy, and to pay her a penny for each copy sold. Nothing was said as to how many copies or how long the plaintiffs should publish, or whether they -should be the sole publishers. When forty-four thousand copies had been printed, and forty-two thousand sold, the author notified the plaintiffs of the termination of the agree- ment, and immediately authorized the defendants to issue a new edition. The plaintiffs now sought to restrain such publi- cation until the copies printed by them under the agreement should be sold. The Master of the Rolls, Sir George Jessel, held that the plaintiffs were entitled to be the exclusive pub- lishers while the agreement lasted ; but that after its termina- tion, though they were at liberty to sell the copies previously printed, they had no power to prevent the author or any person claiming under her from publishing.^ 1 Law Bep. 18 Eq. 497. " Looking at the nature of the book, and to the circumstance that it was a term of the agreement that the pub- lishers should publish at their own risk and pay the royalty, I think the contract, so long as it existed, must be taken to be an exclusive contract; that is to say, that so long as Messrs. Warne & Co. were allowed to publish, so long no one else could publish, — neither the lady herself, nor an assign from her. That being established, ■what is the next right it gives to either party ? On the determination of the partnership adventure, or whatever you choose to call it, what right had Messrs. Warne & Co. in the book 1 There is authority upon the subject; but I do not think it wants authority. I think it is plain that no termination of the agreement could deprive them of the right of selling the copies which they have themselves printed under this arrangement. Whether the ar- rangement was at will or for a term, the publishers must retain the right of selling for their own benefit (subject to the royalty) the copies which they have printed at their own expense, in reliance upon that agreement. So far I go with the plaintiffs ; but the plain- tiffs then want me to import something else, — not only that the publishers should have the right to sell any copies they might have printed before the disagreement, but that the owner of the copyright should not have the right to publish at all so long as any copies remain unsold. I cannot find that in the agreement, and it does not seem to be reasonable to import it ; because it would come to this, that, if the publishers printed a very large number of copies, it would deprive the authoress of the copyright altogether. I cannot import such an unreasonable term into the agreement. " Then it is said, that, if you give the publisher no protection, the result may be that the author may publish another edition a day or two after the publishing of the first edition, and so destroy the value of the remaining copies of the first edition remaining unsold. That may be. And it is said that that is so unreasonable that you must infer some stipulation to prevent it. Why ? No doubt, partnerships at will have their inconveniences as well as their conveniences. There is no reason why I should make persons take up a totally diflerent position from that which they have agreed to take up, because it might be convenient to one of the parties after the termination of 21 370 THE LAW, OF COPYRIGHT AND PLAYEIGHT. Above Decision Questioned.' — The correctness of the rule laid down in this decision, that the author may publish at any time after notice of the termination of the agreement, and before the publisher has had an opportunity to sell the copies lawfully printed, is open to reasonable doubt. It had not been expressly agreed in this case that the publishers should have the right of exclusive publication. But the court held that such must be taken to be the understood or implied meaning of the contract ; because otherwise the publishers, after incurring the cost and assuming the risk of publication, might be unjustly deprived of the profits to which they were entitled. The same reason applies with equal force in determining whether the publisher is to have the sole liberty of selling the copies which he was authorized to print. If the author is free, at any time after giving notice to end the agreement with the first publisher, to license another to publish and sell, the latter may issue a competing edition, and even sell at a lower price, immediately after the first publisher has brought out a large edition at great expense, and before he has had an opportunity to sell any considerable number of copies, or even before he has sold any copies. In this way, the first publisher may not only be pre- vented from realizing the profits to which he is entitled, but may also be subjected to heavy losses in consequence of the expenses of publication.^ The Master of the Rolls replied to this argument by saying, that, if the publishers " want that protec- tion," they " must contract for it." He might have said, with -equal reason, that they could not successfully claim the exclusive right of publication during the existence of the agreement, unless they had contracted for it. But he held that they had acquired that right ; and yet they had not agreed for it more clearly than they had for the right of exclusively selling the copies which they had been authorized to print. the arrangement. K you do want i If Mrs. Cook could lawfully au- that protection for a term of years, or thorize the defendants to bring into for a definite term, you must contract the market a new edition, while two for it. That is all. But I cannot im- thousand copies printed by the plain- port such a term into the contract. If tiffs remained unsold, she could grant I did, I should make partnerships at a similar license when forty-two thou- wiU involve consequences that the sand copies, or even the entire number partners never dreamt of." Jessel, M. printed, were still in the plaintiffs' R., Ibid. 501. stock. AGREEMENTS BETWEEN AUTHORS AND PUBLISHERS. 371 It was conceded in this case ttiat the right both of printing and of selling was exclusive in the defendants during the existence of the contract. It has been seen that the author cannot end the agreement, as far as the printing is concerned, without giving due notice to the publisher ; and that such notice, to be opera- tive, must be given before any expense has been incurred on a future edition.^ Does not the same principle govern in ending the agreement as far as the right of selling is concerned ? It is not consistent to hold that the author is powerless to inter- fere with the printing of an edition when the publisher will thereby incur loss, but that he is free to subject the publisher to a much greater loss by defeating the sale of the edition as soon as it is published. The publisher prints with the under- standing that his right to sell is to be exclusive ; and, as has been seen, this right is conceded to be exclusive, while the agreement lasts. Is not the author bound, as in the case of printing, to give due notice before he can annul that right ; and must not such notice, to be operative, be given before the copies are printed ? In other words, is not the author powerless to end the agreement, as far as the selling is concerned, until the copies printed shall have been sold ? It may be. objected that, if the author cannot publish while any copies printed under the agreement remain unsold, he may practically be deprived of his copyright, since there may be little or no demand for such copies ; or it may be said, the publisher may neglect or refuse to sell them. It is clear that the latter has no right to neglect or refuse to sell. If there is no demand for the copies printed, or if the demand be insig- nificant, the first publisher would not sustain any material loss by the author's permitting another publisher to publish a new edition ; and a court of equity might refuse to interfere with such publication. While there is a fair demand for the copies printed by the first publisher, the author is not deprived of his copyright nor the benefits for which he bargained ; since he is entitled to the royalty on the copies sold, or other consideration, for which the agreement was made. The question under consideration is not free from doubt and I Eeade v. Bentley, 3 Kay & J. 271, 4 Id. 656. 372 THE LAW OF COPYRIGHT AND PLATRIGHT. difficulty. The true doctrine would seem to be, that an agree- ment which is indefinite as to the time of its continuance, and as to the number of copies to, be published, and which, while it continues, gives to the publisher the exclusive right of printing and of selling, cannot be ended until a reasonable time for selling the copies printed under it has passed. The publisher may at any time be prevented from printing a future edition on which he has incurred no expense ; but it would seem that he is entitled to have a fair opportunity to sell exclusively the copies which he has printed on his faith in the agree- ment.^ Held in England that Buyer of Copyright for Limited Time may Sell all Copies Printed during that Time. — Where it had been agreed that the publisher should have " the copyright and sole right of sale for four years," Vice-Chancellor Wood held that the right of printing and selling reverted to the author at the end of the four years, but that the publisher was entitled to • Willis V. Tibbals, 1 Jones & Sp. (N. Y.) 220, was an action in the New Yorls; Superior Court, growing out of tlie alleged breach of a contract for the publication o£ a book written by the plaintiff. The agreement, which ap- pears to hare been oral, was that tlie defendant should publish the book, and pay to the plaintiff a, royalty on each copy sold. It was not specified how long the publication should continue, or how many copies should be pub- lished, nor whether the defendant was to be the exclusive publisher. When eight thousand copies had been printed, and before all of them had been sold, the author, without notifying the pub- lisher of his intention to end the agree- ment, and without the knowledge of the latter, authorized another firm to publish the book. The action was brought by the author for the recovery of money alleged to be due under the contract ; but the counter-claim, set up by the defendant for damages sus- tained in consequence of the publica- tion and sale of the book by another publisher, raised the question whether the defendant had acquired the right to be the exclusive publisher during the existence of the contract, or whether during that time the author was at lib- erty to license another to publish. The fact that the plaintiff had granted such a license, without taking any steps to end his agreement with the defend- ant, raised, or should have raised, the vital question, which had been so elabo- rately discussed and decided in the two suits of Eeade v. Bentley, whether an author is at liberty at any time, and without giving any notice, arbitrarily to end an indefinite contract which he has made with a publisher. This ques- tion, whose determination was essen- tial to a right decision of the case, is not referred to in the reported opinion. The court held that, in the absence of an express agreement to that efiect, the defendant had not acquired the right of exclusive publication ; and, in effect, that tlie plaintiff, without taking any steps to end his contract with the defendant, was entitled at any time to authorize another to publisli. This decision was rendered without any reference, as far as appears from the report of the case, to the leading au- thorities on the subject, and is entitled to little consideration. AGREEMENTS BETWEEN AUTHORS AND PUBLISHERS. 373 sell after the expiration of that term the copies which he had printed in good faith during the term.^ And that, after Sale of Copyright, Seller may Sell Copies Printed before Sale. — It has also been held that, after he has assigned his copyright, the assignor is free to sell any copies of the book which he had printed before the assignment was made.^ In this, as well as the case last referred to, there was no express agreement or mutual understanding as to the sale of the copies in dispute. Of course, if an express or an implied agreement had been proved, the rights of the parties would have been determined by it. Law Claimed to be Different in United States. — The two caseS under consideration were decided under the English statute. The soundness of the decisions has been questioned elsewhere in this work, and it is maintained that a different construction should be given to like agreements in this country : that the buyer of a copyright for a limited term is not entitled, without the consent of the owner, to sell copies after that term has ended ; and that an assignment of the copyright divests the assignor of the right of sale.^ Negative Covenant by Author. — It has been seen that an author, in agreeing with a publisher for the exclusive publica- ^ Howitt V. Hall, 6 L. T. s. s. 348. a publisher was not likely to incur tlie " The copyright acts," said the Vice- useless expense of printing copies Chancellor,"weredirectedagainstprint- enough to exhaust the demand for all ing (8 Anne, c. 19, and 5&6 Vict. c. 45, time, and have them lying on his s. 15) ; and when, as in this case, the hands unprofitably. But the answer defendant had acquired the right of was palpable, that, if the author wished lawfully printing the work, he was at to guard against such a contingency, liberty to sell at any time what he had he might easily secure himself by 80 printed. The words, ' sole right of stipulating what number of copies was sale,' might or might not have been to be printed. Should, however, a superfluous ; but after four years the case of fraud be established against a right to print the work reverted to the publisher under such a state of circum- author, who had taken care to secure stances, the court could deal with it. himself in that respect. It had been But no case of fraud was alleged in the suggested that the effect might be to present case. What the defendants destroy the copyright in the author had done appeared to him (the V. C.) altogether, as the publisher, who had to have been done perfectly bona fide; purchased the copyright for a limited and they were entitled under the con- period only, might during that period tract to do what they had done." Ibid, print off copies enough to last for all 350. time. Probably a nice question might ^ Taylor v. Pillow, Law Eep. 7 Eq. have arisen as to the number of copies 418. of which an edition might consist ; but ^ See ante, pp. 338-342. 374 THE LAW OP COPYRIGHT AND PLAYBIGHT. tion of a literary composition, binds himself not to publish, or permit a third person to publish, the same work while the first publisher's rights are exclusive. So also an author, in giving one person the right to publish a book, may covenant not to write another work on the same subject, or to take part in a rival publication, or to do any thing to defeat or prejudice the sale of the first composition. Lord Eldon held that a covenant made with his copartners by the dramatist Colman, not to write plays for any other theatre than the Haymarket, was not analogous to a contract in restraint of trade and against public policy.^ It may be regarded as settled that a Court of Chancery will restrain an author, or any person having notice, from violating an express negative covenant made by the author ; ^ and it has been held that a third person, without notice of the cove- nant, may be enjoined from publishing or selling a book in violation of it.^ The same principle would doubtless apply in the case of a negative covenant, not express, but clearly im- plied and understood by all the parties. It has been held that an actor may bind himself by an implied stipulation not to act in any other theatre than that for which he is regularly en- gaged ; and a court of equity will enjoin him from violating such covenant.* There is no reason why literary contracts should not come within the same rule.^ Author may not Reproduce Work after Sale of Copyright. — After an author has sold the copyright in a book, he is not free to reproduce substantially the same matter in another work. , Even in the absence of any special agreement, the 1 Morris v. Colman, 18 Ves. 437. Simms, 2 Hare, 543, 558; Wame i. "I cannot therefore," said the Lord Routledge, Law Rep. 18 Eq. 497; Chancellor, " see any thing unreason- Ward v. Beeton, Law Eep. 19 Eq. 207. able jn this. On the contrary, it is » ' Colburn v. Simms, supra; and see contract which all parties may con- Barfield v. Nicholson, supra. aider as affording the most eligible, if * Montague v. Flockton, Law Eep. not the only, means of making this 16 Eq. 189. See also Webster v. Dil- theatre profitable to them all as pro- Ion, 3 Jur. n. s. 432 ; Fechter v. Mont- prietors, authors, or in any other char- gomery, .38 Beav. 22 ; Daly v. Smith, acter which they are by the contract 6 Jones & Sp. (38 N. Y. Superior Ct.) to hold." 158. 2 Barfield v. Nicholson, 2 Sim. & ' For a further consideration of this St. 1 ; Brooke v. Chitty, 2 Coop, subject and the authorities bearing on {temp. Cottenham) 216; Colburn v. it, see latter part of Chap. XL AGREEMENTS BETWEEN AUTHORS AND PUBLISHERS. 375 second publication would be an infringement of the copyright in the first.^ May Publisher make Changes in Author's Manuscript ? — The question has been raised, whether a person who has ac- quired the right to publish a manuscript is at liberty to make alterations in it without the consent of the author. In Cox v. Cox,2 it appeared that the defendant, in preparing a book for the use of tenants and owners of property, had engaged the plaintiff, for a specified sum, to write the legal part, and also to revise or rewrite the part prepared by the defendant. In the agreement, nothing was said about the copyright, or in whose name the work should be published, or whethier the plaintiff's name should appear as the author of that which he was to write. On receiving the manuscript, the defendant objected to the length and technical treatment of the part con- tributed by the plaintiff, which led to a controversy as to whether alterations and omissions should be made in this part, or whether it should be printed without change. But no definite agreement on this point seems to have been reached. The defendant proceeded with the printing ; and, on reading the proof-sheets, the plaintiff learned that extensive omissions and changes in the legal part had been made without his knowledge or consent. The plaintiff now sought to enjoin the publication of the work, on the ground that such use of his manuscript would be injurious to his reputation, and also on the ground that he had not been paid for his services. The court finding that " the plaintiff was evidently in the subordi- nate position of assisting in the production of a work which was to come out in the name, and as the work of, the defend- ant," and that there had been proved no stipulation that the defendant should not make any alteration in the manusci-ipt, refused to grant the injunction. It was further held, that the plaintiff's remedy for money due was at law.* 1 Eooney v. Kelly, 14 Jr. Law Rep. * After the agreement had been N. s. 158 ; Colburn v. Sinims, 2 Hare, made, the plaintiff obtained permission 543. The 25 & 26 Vict. c. 68, s. 6, from tlie defendant to publish tlie legal expressly prohibits the artist from re- part in separate form ; but the Vice- producing a painting or photograph Chancellor held that this was a vplun- after he has sold the original. tary arrangement that did not affect 2 11 Hare, 118. the original contract. 376 THE LAW OP COPYRIGHT AND PLATRIGHT. The special facts on which this decision was based should be distinctly borne in mind. The court intimated that a different rule would apply to different facts.^ The case decides nothing as to the right of a person to make alterations in a manuscript which is to be published as the work and in the name of its author. Whatever liberties may be taken with a production with which the author's name is not connected, or whatever may be the rights of a publisher in making unimportant or harmless changes in a work for whose composition the author is to be held responsible, it cannot be successfully maintained that a publisher, whether he has bought the copyright or is merely licensed to publish, is at liberty, without the consent of the author, to make whatever changes he may please in a com- position to be published in the name of the' author. In the absence of an express understanding or special circumstances to that effect, such a privilege is^ not even impliedly given by a sale of the copyright, or a license to publish. The unau- thorized exercise of such freedom with a manuscript might seriously hurt the reputation of the author ; and there is no principle to defeat his right in equity to prevent such publica- tion by injunction, or in law to recover damages for the injury sustained in consequence of the publication. A Court of Chan- cery has enjoined the publication of a book falsely represented to be the work of a well-known author ; ^ and a court of law 1 " A serious question," said Wood, curtailment could be allowed under V. C, " was then adverted to, — but it that special contract. But here there is one which does not arise in this ease, is no such special contract. The con- — how far a party who had purchased tract is that the plaintiff shall supply a manuscript has a right to alter it, tlie defendant with the matter which is and produce it in a mutilated form ? — required, in such a form as to enable how far, in a case in which the prop- the defendant to publish it as his own. erty has completely passed, it is to be I can find no circumstances from which assimilated to a case of goods sold and any such special contract as I have delivered, and thenceforward in the mentioned can be inferred. The plain- complete dominion of the purchaser 1 tiff has indeed sought to make it a A qualified contract may be made: an stipulation that his contribution of the essay may be supplied to a magazine legal materials shall not be published or an encyclopaedia on the under- otherwise tlian entire ; but this stipula- standing that it is to be published en- tion has no foundation in the original tire ; and it may be accepted by the contract upon which his case rests." editor, and paid for as what it purports 11 Hare, 124. to be. In the instance of an essay ^ Byron v. Johnston, 2 Meriv. 29; which has been accepted in that shape, Harte v. De Witt, 1 Cent. Law Jour, the question might arise, whether any 860. AGREEMENTS BETWEEN AUTHORS AND PUBLISHERS. 877 has awarded damages for the injury done to the reputation of an author by the publication of an erroneous edition of a book, edited by anotlier, but with a title-page tending to mislead the public to believe that the edition had been revised by the author.i In the latter case, the publisher charged with wrong was the owner of the copyright by purchase from the author ; and in both cases the controlling principle was, that a person shall not be held up to the public as the author of that which he has not written. The general principle is the same when what is published is materially different from that written by the author. Publisher Liable for Injury to Author by False Representations as to Authorship of Revised Edition. — When a publisher is the absolute owner of the copyright, he is entitled, without the con- sent of the author, to publish successive editions of the work, with additions and corrections ; and, in bringing out new editions, may perhaps make such omissions and other changes in the original as will not injure the reputation of the author. But such revision, when done by another, cannot lawfully be repre- sented as having been made bj'^ the author of the original. In Archbold v. Sweet,^ the facts showed that the plaintiff, having prepared a second edition of his work on criminal law, had sold the copyright to the defendant, who published the book. After- ward, the defendant published a third edition, prepared by an editor wliose name did not appear in the book. The title-page represented the work to be " A Summary of the Law relative to Pleading and Evidence in Criminal Cases, ... by J. F. Archbold, Esq., Barrister at Law. Third edition, with very considerable additions." The plaintiff proved that there were numerous gross blunders in the third edition, and alleged that his reputation would thereby be injured, as' the public would be led to believe, that that edition had been prepared by him. Lord Tenterden instructed the jury, that if they found that buyers, using reasonable care, would be led to believe that the third edition had been revised by the plaintiff, the lat- ter was entitled to damages. The verdict was against the defendant. 1 Archbold v. Sweet, infia. Tallis, 1 C. B. 893, where it wag held '•i 5 Car. & P. 219. See Seeley v. that there can be no copyright in a book Fisher, 11 Sim. 581, treated in latter falsely represented to be the work of a part of Chap. XI. ; also, Wright v. well-known author. See ante, p. 196. 378 THE LAW OP COPYRIGHT AND PLATRlGHT. Publisher Entitled to Damages when Author Refuses to Supply Rest of Manuscript after Part is Printed. — Where it had been agreed that the publishers should publish a manuscript at their own expense, and divide the profits with the author, and, after part of the book had been printed, the author refused to supply the rest of the manuscript, it was held, in an action for breach of contract, that the publishers were entitled to recover the amount which they had expended in printing, and of the profits which they would probably have realized by publication. In answer to the objection that the action was brought by one partner against another for the recovery of partnership profits, and therefore could not be maintained, Lord Ellenborough said : " The action is not brought against the defendant to recover partnership profits, but for not contributing his labor towards the attainment of profits to be subsequently divided between the parties." ^ Copies Printed to Replace those Destroyed by Fire not a Nevr Edition. — It has been held by the Scotch Court of Session that an editor, under an agreement that he should prepare every new edition of a work, and should receive a certain sum for his services, is not entitled to superintend, or to claim pay for, the re- printing of a part of the work to replace copies destroyed by fire. The copies reprinted under such circumstances do not form a new edition, but go to replace the part of the edition destroyed.^ Unlawful Publications. — A contract for the publication of a book which it is unlawful to publish is not valid.* But where ^ Gale V. Leckie, 2 Stark. 108. In junction on such an agreement, as well Brook V. Wentworth, decided in 1798, as If he had absolutely purchased the 3 Anstr. 881, it appeared that the copyright." But a settlement was plaintiff had agreed to publish a work made by the parties, written by the defendant, and that the As this was simply a claim for former should have a part of the profits, money by the plaintiff, who did not and be reimbursed by the author for seek to enforce a right to publish the money advanced for publication. Hav- book, and did not allege any injury ing advanced a considerable sum, the arising from publication by another, publisher refused to go on with the it may be doubted whether this was printing until what was due hira should a case for an injunction. The plain- he paid. The defendant then agreed tiff's remedy was an action at law for with another bookseller for the publi- breach of contract as in Gale v. Leckie, cation of the book, when the plaintiff infra, and Cox v. Cox, 11 Hare, 118. applied for an injunction to restrain ^ Blackwood o. Brewster, 23 Sc. Buch publication until he should be Sess. Cas. 2d ser. 142. paid the amount of his claim. The ' Gale v. Leckie, 2 Stark. 107 ; court expressed the opinion that " the Poplett v. Stockdale, 1 Ryan & M. plaintiff was entitled to have an in- 337 ; Clay v. Yates, 1 Hurl. & N. 73. AGREEMENTS BETWEEN AUTHORS AND PUBLISHERS. 379 this defence was set up, and the work itself was not produced, and no evidence of its character was offered, the court instructed the jury that they were not to presume that the book was obnoxious.^ It has been held that a printer cannot maintain an action against a publisher for money due for printing an obscene book.2 But where a printer, after printing part of a book, received the manuscript of the other part, and found it to be libellous, it was held that he was not bound to print the libellous part, and was entitled to recover for what he had printed.* Cyclopaedias and Periodicals. — In England, there are statu- tory provisions concerning the respective rights of author and publisher in articles published in cyclopedias, magazines, re- views, and other periodicals.* In the absence of an express or implied agreement to the contrary, a license to use a compo- sition in a named publication gives the publisher no right to publish' it in a separate or other form not within the meaning of the contract.^ And the same is true independently of the statutory regulations.® ^ Gale V. Leckie, 2 Stark. 107. He tlien discovered that it was libellous, ^ Poplett V. Stockdale, 1 Ryan & and refused to permit the defendant M. 337. Best, C. J., said that " no per- to have it. I think that if a contract son who has contributed his assistance is bona fide entered into by a printer to the publication of such a work can to print a work consisting of two parts, recover in a court of justice any com- and at the time he enters into the con- pensation for labor so bestowed. The tract he has no means of knowing that person who lends himself to the viola- one part is unlawful, and he executes tion of the public morals and laws of both, but afterwards suppresses that the country shall not have the assist- which is unlawful, there is an implied ance of those laws to carry into execu- undertaking on the part of the person tion such a purpose."' employing him to pay for so much of 3 Clay «. Yates, 1 Hurl. & N. 73. the work as is lawful." Ibid. 78. " I told the jury," said Pollock, C. B., « 5 & 6 Vict. c. 45, s. 18. "that if the plaintiff agreed to print * Bishop of Hereford v. GriflBn, 16 the dedication and the treatise, and so Sim. 190 ; Mayhew v. Maxwell, 1 undertook to print that which he knew Johns. & H. 312; Smith v. Johnson, to be libellous, and afterwards said 4 Giff . 632 ; Strahan v. Graham, 16 L. that he would not print both, in such T. n. s. 87, on ap. 17 Id. 457. For a case he could not recover. I think his fuller consideration of the rights of the right to recover rests entirely on this parties to an agreement governed by ground, that he had been furnished section 18 of 5 & 6 Vict. c. 45, see with the treatise without the dedica- ante, p. 243. tion. The dedication was afterwards ^ Stewart v. Black, 9 Sc. Sess. Gas. sent; but he had no opportunity of 2d ser. 1026. The rights of the re- reading it until after it was printed, spective parties in the United States 380 THE LAW OF COPYRIGHT AND PLATRIGHT. Where an author had been engaged to write an article for a periodical, and before the article was done, and before the publication or deliveiy of any part of it, the periodical was discontinued, it was held that the publishers were not entitled to claim the completion of the article for publication in a separate form, but were bound to pay a fair sum for the part that had been written.^ Title of Magazine Partnership Property. — Where an editor and publishers have formed a partnership for the publication of a magazine of which they are joint owners, the editor, having taken steps to dissolve the partnership with the view of estab- lishing another periodical, is not at liberty to advertise the discontinuance of the first magazine. The title of the latter and the right to publish it are partnership property, and may be sold for the benefit of the partners. But the editor may advertise its discontinuance by him, or as far as he is con- cerned.^ Name of Editor not Part of Title. — In Crookes v. Petter,^ it appeared that an agreement had been made that the plaintiff, for a sum to be determined by the number of copies sold, should be the editor of a periodical owned by the defendants, and to be published by them under a title to be agreed on. After it had been published for about a year with the title or heading, " The Photographic News, a Weekly Record of the Progress of Photography, Edited by W. Crookes, F. C. S.," and with a printed notice that all editorial communications should be addressed to the editor, the plaintiff sought to have the defend- ants enjoined from interfering with his editorial management, and from publishing the periodical without his name as editor appearing in the title, or in some other place, or without a printed notice that editorial communications should be addressed to him. The court refused to grant an injunction on the grounds that the title of the periodical had not been changed by the omission of the editor's name, which was not a In the case of articles published in ^ Bradbury v, Dickens, 27 Beav. magazines and other periodicals are 53. See also Constable v. Brewster, 3 considered, ante, p. 259. Se. Sess. Cas. 214 ; Hogg v. Kirby, 8 1 Planch^ V. Colburn, 5 Car. & P. Ves. 215. 58, on ap. 8 Bing. 14. ' 3 L. T. n. s. 225. AGREEMENTS BETWEEN AUTHORS AND PUBLISHERS. 381 part of the title, and that there was no stipulation, express or implied, in the agreement that the defendants should not do what the plaintiff sought to enjoin them from doing. Joint Owners of Copyright. — Joint owners of the copyright may make any agreement between themselves with reference to the printing, publication, and sale of a book ; and such con- tract will be binding on them, although it may not be valid as far as other persons are concerned.^ In Carter v. Bailey, it was held by the Supreme Court of Maine that one owner in common of a copyright, who at his own expense has published and sold the book copyrighted, is not liable, in the absence of an agreement mter sese, to account to his co-owner.2 Literary Contracts Governed by Statute of Frauds. — There appears to be no reason why the general principles of the Statute of Frauds should not apply to literary as well as to other contracts.* In Sweet v. Lee,* it appeared that the agree- ment for the publication of a dictionary of legal practice was contained in a memorandum which was signed with the initials 1 Gould V. Banks, 8 Wend. (N. Y.) his own right alone, without using or 562. " There is no principle or au- receiving any aid or benefit whatever thority," said Nelson, J., " which will from the title or property of the others, inhibit such a contract between par- But if none be allowed to enjoy his ties, because they may be partners in legal interest without the consent of the subject-matter of it. They may all, then one, by withholding his con- bind themselves by a private agree- sent, might practically destroy the ment concerning the partnership busi- value of the whole use. And a use ness; but, so far as third persons may only upon condition of accounting for be interested, it would be inoperative profits would compel a disuse, or a as to them." Ibid. 568. risk of skill, capital, and time, with no 2 64 Me. 458. "In the absence of right to call for a sharing of possible any contract modifying their relations," losses. When one owner, by exercis- said Virgin, J., " they are simply own- ing a right expressly conferred upon ers in common, as the plaintiff has him, in no wise molests the right, title, alleged, each owning a distinct but possession, or estate of his co-owners, undivided part, which, or any part of or hinders them from a full enjoyment, which, alone he can sell, as in the case or sale and transfer, of their whole of personal chattels. The statute con- property, we fail to perceive any prin- fers upon all the owners full power, ciple of equity which would require without exacting any obhgation in him to account therefor. If owners return, to print, publish, and sell. It of such property would have the result gives no superior right to either, — otherwise, they must bring it about the only restriction being as to time, by contract." Ibid. 463. All others within that period, having ^ See Strahan v. Graliam, 16 L. T. no license from them or some one of n. s. 87, on ap. 17 Id. 457. them, are excluded. Each can exercise * 3 Man. & Gr. 462. 382 THE LAW OP COPYRIGHT AND PLATRIGHT. of the publisher and of the author ; and was to the effect that the latter should receive i£80 a year for five years, and ^60 a year for the rest of his life, if he should live longer than five years. This was held to be void under the Statute of Frauds ; ^ because, being a memorandum of an agreement not to be performed within a year, no consideration was expressed on the face of it, and it was without any signature other than the initials of the parties. The plaintiff, therefore, was not entitled to damages claimed to have been sustained by the failure of the defendant to perform his agreement to prepare a new edition. Nor, although the contract was void, could the plaintiff, having paid for several years the sums mentioned in the memorandum, recover the money so paid on the ground of failure of consider- ation. An agreement by a printer to find the paper and print a book has been held not to be a contract for the sale of goods within the Statute of Frauds.^ The printer is entitled under a verbal agreement of this kind to recover for work done and materials supplied.^ 1 29 Car. II. o. 3, s. 4. 2 29 Car. II. c. 3, s. 17, as extended by 9 Geo. IV. c. 14, s. 7. 3 Clay V. Yates, 1 Hurl. & N. 73. PIRACY. 883 CHAPTER YIII. PIRACY. Piracy Defined, and Distinguished from Plagiarism. — In the law of copyright, piracy is the use of literary property in viola- tion of the legal rights of the owner. The meaning of in- fringement is the same. Neither word is properly used where no legal rights are invaded. Hence, strictly speaking, it is not piracy to take without authority either a part or the whole of what another has written, if neither a statute nor the common law is thereby violated. Such act may be plagiarism, which is a moral but not necessarily a legal wrong ; but, to constitute piracy, there must be an act against the law. Plagiarism fur- ther differs from piracy in that the plagiarist falsely offers as his own what he has taken from the writings of another. The pirate may or may not do this. Hence, there may be an unau- thorized appropriation of literary property which is neither piracy nor plagiarism, as the republication in the United States of the work of a foreign author. This is not piracy, because no law is violated ; and, without misrepresentation as to authorship, it is not plagiarism. So, also, the same act may be at once plagiarism and piracy. The word piracy is applied to the unlawful taking of any kind of intellectual property, whether literary, dramatic, or art. Nor is its use restricted to productions published and protected by statute. The violation of common-law rights by publicly reading a literary composition, representing a manuscript drama, making or exhibiting copies of a work of art, may properly be called piracy. Fundamental Principles by which Piracy is Determined. — The legislature has not defined piracy, or indicated how far a per- son may lawfully go in appropriating the results of another's labors. The English statute prohibits any one without au- 384 THE LAW OP COPYRIGHT AND PLATRIGHT. thority from printing, publishing, importing, or selling " any book in which there shall be subsisting copyright." ^ The law of the United States prohibits the printing, publication, sale, or importing of " any copy " of a book entitled to protection. 2 The language of the earlier statutes in both countries was substantially the same. " Book " in the English, and " copy " in the American, law are here used for the same purpose, and with the same meaning ; but both acts are silent as to what that purpose and meaning are. A literal reprint of an entire work is obviously a copy. But is the republication of a part of a book within the statutory prohibition ? Is the meaning of the word copy, as here used, limited to verbatim transcripts, or does it extend to paraphrases and servile imita- tions ? Is the unlicensed translation, dramatization, or abridg- ment of a copyrighted work piratical ? Did the legislature intend to protect the substance of a literary composition, or merely its verbal form ? These and kindred questions have been left to the courts. They are to be determined by adjudi- cated principles. The declared object of the copyright laws is to encourage learning, and to secure authors in the enjoyment of the fruits of their labors. As a means to this end, the legislature has guaranteed protection to literary property, and has declared the unlicensed use of that property to be piracy. We must first understand what that is for which protection is given, before we can determine what is an unlawful use of it. It has been shown elsewhere that literary property is not limited to the precise form of words, the identical language, in which a composition is expressed, but that it is in the intellectual cre- ation of which language is but a means of expression and communication.^ The same production may be expressed and communicated in various languages, without affecting its iden- tity. The means of communication are changed ; but the thing communicated remains the same. So, in the same lan- guage, the words may be varied ; but the substantial identity of the composition is preserved. It is this intellectual produc- 1 5 & 6 Vict. c. 45, s. 15. 2 U. S. Rev. St. =. 4964. 8 See ante, p. 97. PIRACY. 385 tion, and not merely one form of language in which it may be expressed, which is the fruit of the author's genius or mental labor. It is this which is his property, and to which the law guarantees protection. It is this whose unlawful appropriation is piracy. Property cannot exist in simple ideas and thoughts ; but only in their arrangement and combination. It is this association that forms a literary composition ; and, unless this or a substantial part of it be taken, there is no appropriation of property. Hence ideas, thoughts, sentiments, &c., where- ever found, may be appropriated by any one. But, to take them in their association is to take the production itself. To reproduce the whole or a large part of the composition, even though the language of the original be paraphrased or translated, is to appropriate what another has produced, and what rightly belongs to him. True Test of Piracy. — As the owner of material possessions may assert his rights wherever or in whatever disguise his property is found, so the author of a literary composition may claim it as his own, in whatever language or form of words it can be identified as his production. The true test of piracy, then, is not vphether a composition is copied in the same lan- guage or the exact words of the original, but whether in sub- stance it is reproduced ; not whether the whole, but whether a material part, is taken. In this view of the subject, it is no defence of piracy that the work entitled to protection has not been copied literally ; that it has been translated into another language ; that it has been dramatized ; that the whole has not been taken ; that it has been abridged ; that it is reproduced in a new and more useful form. The controlling question always is, whether the substance of the work is taken without authority. If the provision of the English statute which declares that no one without license shall publish " any book " protected by copyright, or that of the American act which prohibits the un- authorized republication of " any copy " of a copyrighted work, were construed to mean, that the law is violated only when a literal copy of the work is reprinted, it is obvious that there would be practically little protection for literary property ; and the purpose of the legislature would be almost wholly defeated. 25 386 THE LAW OP COPYRIGHT AND PLATRIGHT. To escape the penalty of piracy, it would only be necessary to paraphrase or translate the language of the original, or repro- duce the work in another form. In this way, all that is val- uable in a literary production might be appropriated by any one with impunity. I have endeavored to explain the true fundamental principles which govern piracy, and to point out those by whose application alone effect can be given to the intent of the legislature, and the protection guaranteed to literary property by the copyright statutes be secured. On these prin- ciples rest the great body of the judgments relating to piracy. In some cases, they have been overlooked or disregarded, and judicial opinions and dicta marked with inconsistency and injustice have been expressed. But, in general, the courts have liberally and soundly expounded the law, and established principles broad enough to protect the substantial fruits of literary labor. Mr. Justice Story affirmed a funda- mental principle of the law of copyright when he held that a work, to be free from piracy, must be the result of the author's " own labor, skill, and use of common materials and common sources of knowledge open to all men." ^ And Vice-Chancellor Wood, afterward Lord Chancellor Hatherley, following a long line of English decisions, gave expression to the same princi- ple, when he said, " No man is entitled to avail himself of the previous labors of another, for the purpose of conveying to the public the same information, although he may append addi- tional information to that already published." ^ Lawful Uses op Copyrighted Works. — I. Fair Use by Quotation. It is a recognized principle that every author, compiler, or publisher may make certain uses of a copyrighted work, in the preparation of a rival or other publication. The recognition of this doctrine is essential to the growth of knowledge ; as it would obviously be a hindrance to learning if every work were a sealed book to all subsequent authors. The law, there- fore, wisely allows a " fair use " to be made of every copy- 1 Emerson v. Davies, 3 Story, 793. 'i Scott V. Stanford, Law Rep. 8 Eq. 724. PIRACY. 387 righted production ; and this liberty is consistent with the true purpose of the law to give to the earlier author adequate pro- tection for the results of his labor. But to determine the ex- tent of this license, and to draw the line between a fair and an unlawful use, is often one of the most difficult problems in the law of copyright. The question must generally be determined by the special facts in each case. What will be considered a fair use in one case may amount to piracy in another. The question of fair use will be considered under two heads : First, when verbatim extracts have been taken from the copyrighted work, either with or without acknowledgment ; second, when the copyrighted work has been otherwise used in the prepara- tion of another publication. Extracts for Criticism. — Of the former class, the most com- mon instances arise when extracts are taken for purposes of criticism or review. The critic or reviewer may make liberal quotations from the original work, with or without acknowl- edgment of the source, and either for favorable or unfavora- ble comment. The criticism and extracts may be published in a newspaper, magazine, book, or other form. But, in the exer- cise of this privilege, no person will be allowed to republish in the form of quotations a valuable part of a copyrighted work, and thus to an injurious extent to supersede the original.^ 1 Br. Roworth v. Wilkes, 1 Camp. euflScient to show the merits or de- 94 ; Wilkins v. Aikin, 17 Ves. 422 ; merits of the work ; but they cannot so Whittingham v. Wooler, 2 Swans. 428 ; exercise the privilege as to supersede Mawman v. Tegg, 2 Buss. 385; Bell the original book. Sufficient may be V. Whitehead, 3 Jur. 68 ; Campbell v. taken to give a correct view of the Scott, 11 Sim. 31 ; Bohn v. Bogue, 10 whole ; but the privilege of making Jur. 420 ; Black v. Murray, 9 So. Sess. extracts is limited to those objects, and Cas. 3d ser. 341 ; Bradbury v. Hotten, cannot be exercised to such an extent Law Rep. 8 Exch. 1 ; Smith v. Chatto, that the review shall become a substi- 31 L. T. N. s. 775. Am. Folsom v. tute for the book reviewed." Clifford, Marsh, 2 Story, 100 ; Story's Executors J., Lawrence v. Dana, 2 Am. L. T. R. c;. Holcombe, 4 McLean, 306 ; Lawrence n. s. 428. V. Dana, 2 Am. L. T. R. n. 8. 402. " Acknowledged quotations, even " A Review will not in general serve from copyright works, if they are as a substitute for the book reviewed ; quotations fairly made, either for the and even there, if so much is extracted purposes of criticism or of illustration, that it communicates the same knowl- are not infringements of copyright, edge with the original, it is an action- To hold any thing else would be to able violation of literary property." sentence to death all our reviews, and Lord EUenborough, Roworth v. Wilkes, the greater part of our works in phil- 1 Camp. 98. osophy. If indeed the quotation is " Reviewers may make extracts colorable, and made for the mere pur- 388 THE LAW OP COPYRIGHT AND PLAYBIGHT. Test of Fair Use in Case of Criticism. — Whether the limits of lawful quotation have been exceeded is a question governed by the circumstances of each case. It is to be determined not by the intention of the critic or reviewer, but by the character of his publication and the purpose which it serves. The con- trolling inquiries will be, whether the extracts are of such ex- tent, importance, or value that the publication complained of will supersede to an injurious extent the original work. Is a material and valuable part of the contents of the original com- municated by the compilation ? Will the latter tend to dimin- ish the sale of the former, by reason of being wholly or partly a substitute ? If so, the results of the original author's labors are appropriated to his injury, and his rights are invaded.^ Unfavorable Criticism. — An important consideration in these cases is the injury done to the author entitled to protection. But this injury must arise from the tendency of the publication containing the extracts to supersede the work from which they are taken. Damage done to a work by unfavorable criticism of its contents does not enter into the question of infringe- ment. Extracts for Other Purposes than Criticism. — The principle pose of inserting a large portion of the the selections made, the quantity and copyright work, the result would be value of the materials used, and the different. In the present case, I see degree in which the use may prqudice nothing in the quotations colorable or the sale, or diminish the profits, or improper. Though they are of some supersede the objects, of the original length, they are a very small portion work." Folsom v. Marsh, 2 Story, 116. of the entire work. They are fairly Referring to this language as cited by and legitimately applied to the illustra- Vice-Chancellor Wood in Seott ». Stan- tion of the ballads to which they are ford. Law Eep. 3 Eq. 722, Vice-Chan- appended. They may have fittingly cellor Hall said : " But I do not under- applied to them the test which is often stand the Vice-Chancellor to say that referred to in questions of copyright; we must find all these things coneur- ■namely, whether they are likely to ring, in order to entitle a plaintiff to injure the sale of the alleged copyright relief in this court." Smith v. Chatto, "Work. I am of opinion that they are 31 L. T. n. s. 776. likely to do the very reverse of this. " The inquiry is," said Mr. Justice J think no one can read these quota- McLean, " what effect must the extracts tions, and rest content till he has have upon the original work ? If they acquired and read the whole of that render it less valuable, by superseding exquisite novel, at whatever cost within its use in any degree, the right of the his means." Lord Kinloch, Black v. author is infringed ; and it can be of Murray, 9 Sc. Sess. Cas. 3d ser. 356. no importance to know with what 1 " We must often," said Mr. Justice intent this was done." Story's Execu- Story, " in deciding questions of this tors v. Holcombe, 4 McLean, 310. sort, look to the nature and object of PIRACY. 389 on which these privileges are accorded to reviewers will justly claim recognition in the case of other works whose purpose is not strictly that of criticism, but in which fair quotation may be used for the advancement of knowledge and without harm to the original author. Thus, in the case of two or more treatises on the same subject, it is not uncommon for the later author to quote the language of his predecessor, either to cor- roborate his own statements or to show the diversity of views held by other writers. Especially among writers of law books does this custom prevail ; and its lawfulness, when kept within reasonable bounds, should be judicially recognized. When quotations are thus made to serve a legitimate purpose, good rather than harm may be done to the earlier author. But when it appears that the purpose of the later author is to save himself labor by taking the fruits of another's industry and learning, and the extracts are of such extent and character as to give a material value to the subsequent treatise, to the sub- stantial injury of the earlier one, a case of infringement may be made out. For obvious reasons, the test of piracy will be applied with more stringency in the case of rival works than when the extracts are used simply for purposes of criticism or illustration. So the law may be somewhat liberally construed in the case bf an author who has taken copyrighted selections to a mode- rate extent, and fairly used them for illustration or other legi- timate purpose in a history of philosophy, literature, poetry, &c. ; in a treatise whose purpose is to give a biography of the author from whose publications the quotations are made, an explanation of his theories, an analysis of his character, works, &c. ; or in other productions whose object is different from that of the protected publication, and whose tendency is not to supersede the original. Here, also, the freedom of making quotations will generally be more restricted than in the case of works of criticism, for the reason that publications of the former kind have a greater tendency to supersede the original than have those of the latter. But when this ten- dency is not manifest, and the extracts are fairly used simply for purposes of illustration or corroboration, there seems to be no ground for a case of piracy. 390 THE LAW OF COPYEIGHT AND PLATRIGHT. Selections to Blustrate Work on Poetry. — In Campbell V. Scott, it appeared that the defendant had published a Book of the Poets, the alleged purpose of which was to illustrate the characteristics of various poets, and the progress of English poetry during the nineteenth century. It was claimed that the selections were made with this view alone, and that the ten- dency of the book was not to supersede the original works, or to injure their authors. But in the Book of the Poets four hundred and twenty-five selections and extracts, from forty- three poets, were used to illustrate an original essay, twenty- four pages long, on English poetry of the period covered, twenty-three biographical sketches of one page each, and twenty shorter notices of authors. Besides extracts, six poems entire were taken from Campbell's works. The chief value of the compilation was obviously in the selections, and not in the original matter ; and the court rightly held that the limits of lawful quotation had been exceeded.^ For Biography. — A recent English case brought into con- troversy a book entitled " Tliackerayana : Notes and Anecdotes, Illustrated by nearly Six Hundred Sketches, by William Make- peace Thackeray." It purported to be a kind of biography of that novelist, proceeding on the assumption that his own expe- riences were narrated in certain of his novels. Besides some previously unpublished sketches and caricatures by Thackeray, the publication contained extensive selections from his pub- lished works, the copyright of which belonged to the plaintiff. I 11 Sim. 31. Vice-Chanoellor Shad- fifty-eight pages of selections from the well said : " Then is the work com- works of other authors ; and therefore plained of any thing like an abridgment I cannot think that the work com- of the plaintiff's work, or a critique plained of can, in any way, he said to upon it 1 Some of the poems are given be a book of criticism. If there were entire ; and large extracts are given critical notes appended to each separate from other poems ; and I cannot think passage, or to several of the passages that it can be considered as a book of in succession, which might illustrate criticism, when you observe the way in them, and show from whence Mr. which it is composed. It contains seven Campbell had borrowed an idea, or hundred and ninety pages, thirty-four what idea he had communicated to of which are taken up by a general others, I could understand that to be a disquisition upon the nature of the fair criticism. But there is, first of all, poetry of the nineteenth century ; then, a general essay; then there follows a without any particular observation mass of pirated matter, which in fact being appended to the particular constitutes the value of the volume." poems and extracts from poems which Ibid. 38. follow there are seven hundred and PIRACY. 391 The extracts were prefaced by, and interspersed with, original comments by the compiler. It was maintained in defence that the object of the book was to show that Thackeray had given his own biography in his principal novels, and that the extracts were made to establish that proposition. But the court found that the effect of the book was to supersede, to a damaging extent, the works from which the selections liad been made, and held it to be a case of piracy.^ To Illustrate Career of Person. — In a recent English case, the publication complained of was The Man of his Time, the object of which was to illustrate the career of Napoleon III. by cari- catures taken from leading English and foreign illustrated papers. Nine caricatures, with their original headings and references, but much reduced in size, were copied from nine numbers of Punch, comprised within the period extending from 1849 to 1867. It was declared that the selections had been taken for the sole purpose of illustrating the career of Napoleon. While admitting that limited extracts might be taken from copyrighted works for a fair purpose of this kind, the court found that the defendant had republished the caricatures in Punch " for the same purpose as they were originally published, namely, to excite the amusement of his readers." It was 1 Smith V. Chatto, 31 L. T. H. s. lication, professing to be an account of 775. See also Folsom v. Marsh, 2 the improvement of maps of the county Story, 100. Lord Eldon suggested a of lUiddlesex, compiling the history of possible case of fair use as follows : all the maps of it ever published ; " There is no doubt that a man cannot, pointing out the peculiarities belonging under the pretence of quotation, pub- to them, and giving copies of them all ; lish either the whole or part of an- as well those the copyright of which other's work ; though he may use, has expired as those of which it was what it is in all cases very difficult to subsisting, — it is not easy to say with define, a fair quotation. Difficulties certainty what would be the decision have arisen in cases that have occurred, upon such a case. If it was a fair his- upon which I should have taken the tory of the maps of the county which same course by sending them to the had been published, and the publication consideration of a court of law. In the of the individual map was merely an case of maps, for instance : one man illustration of that history, that is one publishes the map of a county; an- way of stating it; but if the jury could other man with the same design, if he perceive the object to make a profit has equal skill and opportunity, will by by pubUshing the map of another man, his own labor produce almost a fac that would require a different consider- simile, and has a right to do so ; but, ation. The slightest circumstances, from his right through that medium, therefore, in these cases, makes the was it ever contended that he might most important distinction." Wilkins copy the other map ? Suppose a pub- v. Aikin, 17 Ves. 424. 392 THE LAW OP COPYRIGHT AND PLATRIGHT. held that the defendant had gone beyond the privilege of fair quotation, and therefore a case of piracy was made out.^ 1 Hotten V. Arthur, Law Rep. 8 Exch. 1. Kelly, C. B., said : " I am of opinion that the plaintiffs are entitled to retain their verdict. The questions raised are of interest and importance ; but it is difficult to lay down any fixed principle with regard to them. No doubt the matter is, to a great extent, one of degree. It may well be that an author might copy into his book a portion of some books previously pub- lished, and yet that a jury might be justified in finding there had been no infringement of copyright ; whilst, on the other hand, the copying might take place under such circumstances as clearly to amount to an infringe- ment. . . . Nine of these pictures the de- fendant has copied, — in some instances alone, in others with the addition of the printed words underneath them. If they have been so copied as to amount to a copy of a material part of the plaintiffs' publication, and the de- fendant has thus obtained a profit which would or might otherwise have been the plaintifis', then there has been a piracy, for which the defendant is responsible. " It is said that to copy a single pic- ture, at all events could not be an in- fringement of the plaintiffs' copyright ; but it is impossible to lay that down as a general rule. I can easily conceive a case where such an act would not be piracy. For example, where a picture is reproduced amongst a large collec- tion, published for an entirely diflferent object from that which the first pub- lisher had in view. We must consider in such a case the intent of the copyist, and the nature of his work. To turn for a moment from pictiires to printed matter, the illustration put during the argument by my Brother Bramwell will explain my meaning. A traveller publishes a book of travels about some distant country, like China. Amongst other things, he describes some mode of preparing food in use there. Then the compiler of a cookery-book repub- lishes the description. No one would .say that was piracy. So, again, an author publishes a history illustrated with woodcuts of the heads of kings, and another person, writing another history of some other country, finds occasion to copy one of these wood- cuts. That, again, would not be a piracy. Yet, on the other hand, the copying of a single picture may, under some circumstances.be an infringement. For example, take the ease of a work illustrated by one engraving of the likeness of some distinguished man, where no other likeness is extant, no one would have a right to copy that into a book upon any subject whatever, and a jury would in such a case rightly find that there had been an infringe- ment of the copyright. " To return to the facts of the present case, the defendant has introduced nine pictures of the plaintiff's' into what I may call his comic life of Napoleon III. : is he by so doing applying to his own use and for his own profit what other- wise the plaintiffs might have turned, and possibly still may turn, to a profit- able account ? The pictures are of great merit, and no doubt were largely paid for, and by inserting these copies the defendant has unquestionably added to the value of his publication. Why should this not be an infringe- ment? It was said by my Brother Parry, in his able argument, that the plaintiffs will never make such a use of these pictures as the defendant has made. But suppose, as my Brother Pigqtt suggested, that after the catas- trophe which ended in the fall of Na- poleon III., the proprietors of Punch had chosen to republish all their cari- catures of him, or that even now they should choose to do so, one cannot help seeing that the defendant's publi- cation might cause many, who would otherwise have bought, to refrain from buying such a work. I need not refer at length to the authorities cited. The principle of them is, that where one man, for his own profit, puts into his work an essential part of another man's PIRACY. 393 Objection not to Flan, but Manner of Execution. — In the three cases which have been reviewed, the legal objection was not to the professed plan of the work complained of, but to the manner in which the plan' had been executed. In a work pre- pared for the purposes above indicated, there is little doubt that a court would sanction the use of quotations to a much greater extent than in one having a common object with the original. But, in the cases cited, the selections had been made too extensively ; and, instead of being what it purported to be, the result was little more than a compilation of selections, serving in part at least as a substitute for the original. ■When Plan is Unlawful. — But suppose that the publication complained of serves two distinct purposes ; that, while the extracts are honestly used for criticism or illustration, and fairly serve that purpose, yet at the same time they are of such extent and character as to be capable of materially superseding the original work. On the principles above set forth, such a pub- lication must be regarded as piratical. When the extracts as republished produce this effect, the later author must change the plan of his work, or get permission to use the selections. work, from which that other may still history by extracts from the satirists derive profit, or from which, but for of the day,' and had then gone on to the act of the first, he might have de- quote to a reasonable extent the opin- rived profit, there is evidence of a ions, or even the very words, of satiri- piracy upon which a jury should act." cal writers, no one would call that " I am of the same opinion," said piracy. Suppose, for instance, he had Bramwell, B., "though not without said, ' At this period of his career, Na- some doubt, — doubt which it is natu- poleon was unpopular, and the sulgect ral to feel in a case like this, which is of ridicule in England. This may be on the border-land between piracy and seen by examining the sort of pictures no piracy. But I think the plaintiflTs of him which appeared in Punch, are entitled to succeed. "They are the Later on, he became more popular, proprietors of a sheet of letterpress and the pictures published represented within the meaning of the act of Par- him more favorably.' That could not liament. Now, it is quite true that, have been complained of. Then the when a man publishes any thing, he defendant would simply have been professes to add to the common stock using the knowledge acquired from of knowledge, and everybody may Punch for his benefit, ,a8 he would avail himself of what is published, have a right to do. But here he has done This may be illustrated by the case more. He has not availed himself of the put, of the compiler of a cookery-book knowledge acquired from Punch ; but taking from some traveller's account he has actually reproduced the very of his travels a receipt for a new dish, pictures published in Punch, and for But, applying that principle here, it the same purpose as they were origi- does not exonerate the defendant. If nally published, namely, to excite the he had said, ' I propose to illustrate my amusement of his readers." Ibid. 6. 394 THE LAW OP COPYRIGHT AND PLAYRIGHT. II. Fair Use Otherwise than by Quotation. General Principles. — The fair uses, other than those of legiti- mate quotation, which an author is privileged to make of a copyrighted work in the preparation of a rival or other publi- cation, are restricted by recent English decisions to very narrow limits. The later compiler of a rival publication may learn from a copyrighted work where to. find and how to use mate- rials of which he might otherwise be ignorant. He may derive from it information, hints, suggestions, &c., which otherwise would have escaped his notice. He may use it as a guide in the preparation of his own work, to verify the accuracy and completeness of his own, or to detect errors, omissions, and other faults in his own. But, while he may thus use the copy- righted work as a guide or instructor, he must go to the com- mon sources for materials, and his composition must be the product of his own labor. If, to a material extent, he copies from the protected work, or appropriates the results there found, it is piracy.^ Speaking of a bookseller's catalogue, Vice- Chancellor Wood said : " The only fair use you can make of the work of another of this kind is where you take a number of such works, — catalogues, dictionaries, digests, &c., — and look over them all, and then compile an original work of your own, founded on the information you have extracted from each and all of them ; but it is of vital importance that such new work should have no mere copying, no merely colorable alterations, no blind repetitions of obvious errors. I find all these things ' Br. Lewis v. Fullarton, 2 Beav. works by the compiler before he has 6 ; Murray v. Bogue, 1 Drew. 36S ; finished his own book, or the mere ob- Jarrold v. Houlston, 3 Kay & J. 708 ; taining of ideas from such previous Spiers v. Brown, 6 W. R. 352 ; Kelly works ; but it does prohibit a use of u. Morris, Law Eep. 1 Eq. 697 ; Scott any part of tlie previous book animo V. Stanford, 3 Id. 718 ; Morris v. Ash- furandi, with an intention to take for bee, 7 Id. 34 ; Pike v. Nicholas, Law the purpose of saving himself labor." Eep. 5 Ch. 251 ; Morris v. Wright, Ibid. Shipraan, J., Banks v. McDivitt, supra, 279 ; Jarrold v. Hey wood, 18 W. E. 279 ; 166. Hogg V. Scott, Law Eep. 18 Eq. 444 ; The two works in controversy in Am. Lawrence v. Dana, 2 Am. L. T. E. Jarrold ». Houlston were written on N. 8. 402 ; Banks u. McDivitt, 13 the same plan, and presented in tiie Blatchf. 163. form of question and answer popular " I do not understand that the rule information on a variety of scientific prohibits an examination of previous subjects. The earlier book, Dr. PIEACY. 395 here." ^ " Examined as a question of strict law, apart from exceptional cases," said Mr. Justice Clifford, " the privilege of Brewer's Guide to Science, had evi- dently been used to a considerable ex- tent in the preparation of the later one, although copying was denied. Yice-Chancellor Wood said : — " In publishing a work, in the form of question and answer, on a variety of scientific subjects, he [the later author] had a right to look to all those books which were unprotected by copyright, and to make such use of them as he thought fit, by turning them into ques- tions and answers. He had also a fur- ther right, if he found a work like Dr. Brewer's, and, perusing it, was struck by seeing — as I think has been the case in the present instance — that the author had been led up to particular questions and answers by the perusal of some other work, to have recourse himself to the same work, although possibly he would not have thought of doing so but for the perusal of the plaintifl's book. But these, I appre- hend, would be perfectly fair and legiti- mate modes of using the plaintiff's book ; and neither would be incon- sistent with Mr. Philp's affidavit, that lie has not copied or taken any idea or laoguii ge from Dr. Brewer's book. " There is another sort of legitimate use which might fairly be made by Mr. Philp, although it is scarcely so consistent with what he has deposed to in his affidavit. It would be a legitimate use of a work of this de- scription, if the author of a subsequent work, after getting his own work with great pains and labor into a shape ap- proximating to what he considered a perfect shape, should look through the earlier work to see whether it contained any heads which he had forgotten. For instance, it was said — whether accurately or not I have not thought it material to inquire — that, in refer- ence to the several modes by which heat diffuses itself, the books to which the defendant refers as common sources mention only 'radiation, conduction, and absorption,' and make no mention of convection,' — a term found only in the plaintiff's book until taken thence by Mr. Philp. He might say he had forgotten 'convection,' and therefore add it to his book. But surely no one would say, with regard to a subject of so general a description, that this would be an unfair use of the plaintifi"'3 book ; provided, upon adding the word to his own book, he used his own mind to explain what 'convection' is, and explained it in his own language. So far there could be no difficulty, if the case rested there. " The question I really have to try is, whether the use that in this case has been made of the plaintiffs' book, has gone beyond a fair use. Now, for trying that question, several tests have been laid down. One which was origi- nally expressed, I think, by a common law judge, and was adopted by Lord Langdale in Lewis u.FuUarton, 2Beav. 6, is whether you find on the part of the defendant an animus furandi, — an intention to take for the purpose of saving himself labor. I take the ille- gitimate use, as opposed to the legiti- mate use, of another man's work on subject-matters of this description to be this : If, knowing that a person whose work is protected by copyright has, with considerable labor, compiled from various sources a work in itself not original, but which he has digested and arranged, you, being minded to compile a work of a like description, instead of taking the pains of search- ing into all the common sources, and obtaining your subject-matter from them, avail yourself of the labor of your predecessor, adopt his arrange- ments, adopt moreover the very ques- tions he has asked, or adopt them with but a slight degree of colorable varia- tion, and thus save yourself pains and labor by availing yourself of the pains 1 Hotten V. Arthur, 1 Hem. & M. 609. 396 THE LAW OP COPYRIGHT AND PLAYRIGHT. fair use accorded to a subsequent writer must be such, and such only, as will not cause substantial injury to the proprietor of the first publication." ^ Directories. — In the recent English directory cases, the law was forcibly and clearly expounded to the effect that the com- piler of a directory may use a copyrighted rival work as a means of learning the names and places of residence of the persons to be canvassed, of avoiding omissions and errors in his own publication, and generally as a guide in the preparation of his own. But in no case may he save himself the labor and expense of canvassing, by copying or otherwise appropriating the results of his predecessor's labor. He cannot cut slips from a protected directory, and use them in printing his own, although he verifies the accuracy of the information, or corrects it if er- roneous, by personal application to the persons whose names are given. In all cases, he must obtain the information at his own expense and by his own labor, independently of the copyrighted work, which may be used only as a guide.^ Descriptive Catalogue. — And SO, in the case of a descriptive catalogue of fruit and trees, the court was of opinion that the later compiler might use the work of his predecessor as a guide or instructor; but might not copy the descriptions from it, although he should verify and correct them from specimens of fruit before him. Though he cannot be prevented from getting much aid in the way of information, suggestions, . McDivitt, 13 Blatchf. 163. " Any man is entitled to write and publish a topographical dictionary, and to avail himself of the labors of all former writers whose works are not subject to copyright, and of all public sources of information ; but, whilst all are entitled to resort to common sources of information, none are entitled to save themselves trouble and expense by availing themselves, for their own profit, of other men's works still subject to copyright and entitled to protection." Lord LaBgdale, M. R,, Lewis v. FuUar- ton, 2 Beav. 8. 2 Emerson v. Davies, Webb v. Pow- ers, Story's Executors v. Holcombe, Lawrence v. Dana, Pike u. Nicholas, supra. " I think it may be laid down as the clear result of the authorities in cases of this nature, that the true test of piracy or not is to ascertain whether the defendant has, in fact, used the plan, arrangements, and illustrations of the plaintiff as the model of his own book, with colorable alterations and variations only to disguise the use thereof ; or whether his work is the re- sult of his own labor, skill, and use of common materials and common sources of knowledge, open to all men, and the resemblances are either accidental, or arising from the nature of the subject. In other words, whether the defendant's book is, quoad hoc, a servile or evasive imitation of the plaintiff's work, or a bona fide original compilation from other common or independent sources." Story, J., Emerson v. Davies, 3 Story, 793. In Pike v. Nicholas, it was held in the lower court that "the plaintiff lias a right to say that no one is to be per- mitted, whether with or without ac- knowledgment, to take a material and substantial portion of his work, of his ar- gument, his illustrations, his authorities, for the purpose of making or improv- ing a rival publication," Law Rep. 5 Ch. 260. This principle was expressly ap- proved on appeal ; but the judgment was reversed on the ground that copying had not been satisfactorily 424 THE LAW OP COPYEIGHT AND PLATBIGHT. When Materials, ^thout Arraugenient, are Taken. — Will it amount to piracy in any case to appropriate the matter of a compilation witliout adopting the arrangement ; or to copy the plan without taking the materials ? There is no recognized principle which will prevent a sub- sequent compiler from copying common materials from an existing compilation, and arranging and combining them in a new form, or using them for a different purpose. It is true that, in this case, he avails himself to some extent of the labor and research of his predecessor, instead of obtaining the ma- terials from the original sources. But the first compiler has no exclusive property in that of which he is not the author, and which may be used by any one. His copyright protects only his own arrangement of the materials which he has selected.^ The principle is diiferent, however, when the first compiler has translated, abridged, or elaborated the common materials. In such case, his claim is founded not alone on arrangement, but he has acquired a title by authorship ; and to appropriate the results of that authorship, with or without the arrangement proved. Lord Chancellor Hatherley, had in fact been copied from The referring to common quotations found Architectural Dictionary, this would in both books, said that the defendant have been no piracy, because the "must not simply copy the passage author of The Architectural Diction- from the plaintiff's book," but must ary had no property in these figures. " really and bona fide look at that com- But the Nicholsons, both father and mon source," JOaw Rep. 5 Ch. 263. The son, positively swear that these figures court of appeal held that the taking of were not copied from The Architectural a single quotation from the plaintiff's Dictionary* nor from any materials compilation was not, under the special collected for The Architectural Dic- eircumstances of the case, a, sufficient tionary." 2 Sim. & St. 8. ground for an injunction. In Folsom o. Marsh, 2 Story, 100, 1 In Barfield v. Nicholson, where it where it appeared that three hundred appeared that common figures or and fifty-three pages of Washington's drawings in architecture were used in letters and writings in the defendant's the plaintiff''s book. The Architectural work had been copied from that of Dictionary, and in the defendant's the plaintiff, the injunction granted by work. The Practical Builder, though Judge Story extended only to the their arrangement in the former was three hundred and nineteen pages not new, and the arrangement adopted which were first published in the plain- by the defendant was different from tiff"6 work, and not to the thirty-four that in plaintiff's book. Sir John pages which had been i)reviously Leach, Vice-Chancellor, said : " If published, and which were common therefore the figures furnished by property. Nicholson for The Practical Builder PIRACY. 425 of the materials, is the same in principle as copying original matter.! When Arrangement, but not Materials, is Copied. — The ques- tion, whether a person is barred from copying the plan and arrangement of a compilation, though he takes no materials from it, involves two inquiries : 1. Whether, in adopting the mode of combination, he uses different materials from those in the earlier work ; 2. Whether he uses the same selections, but obtains them from the original authorities. In the former case, it is difficult to see how any piracy can be committed. In the mere plan or arrangement of a compilation, independently of the materials themselves, there can be no copyright to the extent that the compiler may rightfully prevent another from using tlie same arrangement for materials not found in the earlier publication, or for a different purpose. In such case, the later compilation will be substantially new, and different from the earlier one.^ But the case is different when the same materials are found in the same order in both books. Tliere is then a substantial identity between the two ; and, if the subsequent compiler has 1 " But the respondent contends illustration of new and original propo- that, even if it be true that matters aitions, or for any other purpose not of fact, citations, and authorities have substantially the same as that to which been borrowed to a considerable ex- they are applied in the annotated edi- tent, he had a right to take them, as tions edited by the complainant : but the use he made of them was substan- he could not borrow the materials as tially new, and different from that therein collected and furnished, nor made by the complainant in the two could lie rightfully use the plan and prior annotated editions of the work, arrangement, or the mode by which because they were used by him in they are combined with the text, be- illustrations of new and original propo- yond the extent falling within the defi- sitions, . . . The doctrine of new and nition of fair use ; which rule is only different use in the law of copyright applicable to the materials, and not to applies more particularly to the old the plan, arrangement, and mode of materials, and not to the materials of operation." Clifford, J., Lawrence v. a work like that of the last annotated Dana, 2 Am. L. T. R. n. s. 424. See edition of the complainant, where the also Grace v. Newman, Law Rep. 19 materials collected are much abridged, Eq. 623. and sometimes paraphrased and newly ^ Murray v. Bogue, 1 Drew. 353; arranged, and combined with the text Spiers v. Brown, 6 W. R. 852; Pike v. of the original work. Beyond all Nicholas, Law Rep. 5 Ch. 251 ; Mack doubt, he might take the old materials v. Petter, Law Rep. 14 Eq. 431 ; Law- as found in the sources from which rence v. Cupples, 9 U. S. Pat. Off. Gaz. the matters of fact, citations, and au- 254 ; Banks v. McDivitt, 13 Blatchf. thorities of the complainant were 163. drawn, and use them as he pleased in 426 THE LAW OP COPYRIGHT AND PLAYRIGHT. servilely copied the arrangement and combination from the earlier publication, the question arises, whether he can escape the penalty of piracy by showing that he has obtained the materials from the common sources. The chief value of a compilation is in the choice and arrangement of its contents. To make apt selections, and arrange eflPectively, to collect val- uable illustrations and citations for purposes of annotation, and combine them properly with another's text, often require great research, judgment, scholarship, and literary knowledge. When such a compilation is made, any one, with little labor and no literary knowledge or skill, may be able to duplicate it ; and the injury done to the original compiler is not less when the selections are copied from the original sources.^ The sub- sequent compiler may not be prevented from arranging different materials on the same plan, or from making a new arrangement of the same common selections. But, in adopting both the arrangement and the materials of an existing compilation, though the materials are obtained from the original sources, he avails himself of the labor, judgment, and learning of his predecessor, to publish a rival work identical with that of the latter. I am not aware that a case of this kind has been decided, or that the law on this point has been judicially ex- pounded. But the courts have frequently declared, and the principle is well grounded, that no one shall appropi'iate the substantial fruits of the industry and learning of another, to the injury of the latter ; and, when this is done by a subsequent 1 This is well illustrated by Lock- haps thought that to repeat quotations hart's annotated edition of Scott's Min- from well-known authors was not strelsy of the Scottish Border, which piracy. If so, I think a great mistake was brouglit into controversy in the was committed. In the adaptation of recent Scotch case of Black v. Murray, the quotation to the ballad which it Of the two hundred notes added by illustrates, the literary research which the editor, it appeared that all but discovered it, the critical skill which fifteen were quotations from common applied it, — there was, I think, an act sources. The ballads also were com- of authorship performed, of which no mon property. "To a considerable one was entitled to take the benefit extent," said Lord Kinloch, "the notes for his own publication, and thereby borrowed (to use a euphemism) from to save the labor, the learning, and Messrs. Black's edition, consist of the expenditure necessary even for quotations from various authors, em- this part of the annotation." 9 Sc. ployed by Mr. Lockhart to illustrate Sess. Cas. 3d ser. 355. ballads in the Minstrelsy. It was per- PIRACY. 427 compiler in the manner above described, he should, in my judg- ment, be held to have committed piracy. ^ But there is nothing in the law of copyright to prevent any person who has obtained common materials from the original sources from using them in substantially the same manner, and for the same purpose, as they have been previously used ; pro- vided the arrangement is his own, and is not servilely copied from the work of another. Two authors, writing on the same subject, citing the same authorities, and taking the same illus- trations and quotations from common sources, will naturally use such common materials for like purposes and in a similar manner. As far as citations of authorities, quotations, &c., are concerned, there maybe a striking resemblance, amounting in some instances to substantial identity. This, however, does not amount to piracy, unless it appears that there has been servile copying from the preceding work.'^ In Pike v. Nicholas, a substantial identity was shown between the two works in . controversy, both as to common materials used and their arrangement and mode of treatment. The Vice-Chancellor was satisfied that the later work was the result of piratical copying, and not of independent labor. But the court of appeal, finding that the subsequent writer had obtained his materials from the original sources, and that the resemblance in the use of the materials of the two works was natural under the circumstances, held that it was not a case of piracy.^ Hence, in determining the question of piracy iu cases of this kind, much allowance should be made for the natural resemblance between the two productions. In the case of two compilations on the same subject, the author of the later one should not be 1 In Story's Executors u. Holcombe, right in a plan, distinct from the work Mr. Justice McLean said: "So far as itself, any more than there can be a citations are made in tlie Commenta- copyright in an idea. This is admitted ; ries, Mr. Holcombe had a right to go but the words in which an idea is ex- to the original works and copy from pressed is a subject of property, and them; but he could not avail himself so is the classification." 4 McLean, of the labor of Judge Story, by copy- 316. ing the extracts as compiled by him. ^ Murray v. Bogue, 1 Drew. 353 ; This is a well-established principle. Spiers v. Brown, 6 W. R. 352 ; Webb Nor could he copy the plan or arrange- v. Powers, 2 Woodb. & M. 497 ; Banks ment of the subjects in the Commen- v. McDivitt, 13 Blatchf. 163. taries. It is said there can be no copy- » Law Rep. 5 Ch. 251. 428 THE LAW OP COPYRIGHT AND PLAYEIGHT. held too strictly accountable for similarity in arrangement and combination between his and the earlier work. So a person should not be held too rigidly to the penalty of piracy for having followed a preceding plan and arrangement, which have little or no material originality or merit. But, in general, a subsequent compiler should not be allowed servilely to copy, to a material extent and to the injury of his predecessor, the arrangement and combination which give value to a pre- existing work. Ascertaining the Pact op Copying. Before the question of piracy can be determined, it will be necessary to ascertain what use the defendant has made of the plaintiff's work. In the case of literal copying, this can usually be done with little difficulty and with certainty. But, when the matter alleged to have been taken is more or less disguised in the later publication by change of language, form, arrangement, &c., the determination of the question of copying will often be attended with great difficulties. When the de- fendant frankly admits the extent to which the plaintiff's work has been used, and his evidence is accepted as conclusive, the fact will thereby be established, and the law determined accord- ingly. More frequently, however, copying is denied, or only a fair use of the protected work is admitted to have been made ; but this evidence is often inconsistent with the likeness between the two publications, and will be insufficient to rebut the charge of copying. A comparison of the two works will then be made with the aid of such direct or circumstantial evidence as may be available ; and not unfrequently the ques- tion will have to be determined solely or chiefly by the internal evidence afforded by such comparison. Common Errors Test of Copying. — The occurrence of the same errors in the two publications in controversy affords one of the surest tests of copying, especially in the case of compilations where a close resemblance is a natural consequence of the use of common materials. In some instances, it may be made apparent that both writers have naturally made the same mis- takes ; but, in general, this result is so improbable that the PIRACY. 429 presence in both works of common inaccuracies creates a pre- sumption of copying so well grounded that it can be overcome only by the strongest evidence. Hence, in the absence of conclusive proof to the contrary, the courts have uniformly accepted the evidence afforded by such errors, when sufficiently numerous or peculiar, as adequate to sustain the charge of copying.! ^^j Lord Eldon laid down the rule, that, when parts of a book have been proved by this test to have been pirated, other identical passages in which common blunders do not appear must be presumed to have been copied.^ Things against Presumption of Copying. — Due weight should be given to those circumstances which indicate that certain common peculiarities may be fairly .attributed to other agencies than copying. Thus, punctuation, spelling, the use of capitals, and kindred matters, are often regulated, not by the author, but by the proof-reader. Hence, peculiarities of this kind may appear in a publication without the author's agency. Especially are the probabilities in favor of copying affi)rded by such resem- blances greatly lessened when it appears, as in Lawrence v. Dana,^ that both works were printed in the same office, where 1 Longman «. Winchester, 16 Ves. work or not, to show the same errors 269 ; Mawman v. Tegg, 2 Russ. 385 ; in tlie subsequent work that are con- Murray V. Bogue, 1 Drew. 353 ; Spiers tained in the original is a strong ar- V. Brown, 31 L. T. R. 16 ; s. c. 6 W. R. gument to show copying." Kinder- 352 ; Kelly v. Morris, Law Rep. 1 Eq. sley, V. C, Murray v. Bogue, 1 Drew. 697, 702 ; Pike v. Nicholas, Law Rep. 366. 5 Ch. 251 ; Cox v. Land & Water Jour- 2 <« it ja necessary to ascertain how nal Co., Law Rep. 9 Eq. 324; Lawrence much of the one book has been copied V. Dana, 2 Am. L. T. R. n. s. 402. from the other; and many cases have " From the identity of the inaccura- established, that you cannot have bet- cies, it is impossible to deny that the ter evidence of such copying than the one was copied from the other verbatim circumstance which occurs in several et literatim." Lord Eldon, Longman v. of the passages here complained of, — Winchester, supra, 272. namely, the fact of blunders in the " Some instances are stated in the original book being transferred into the bill, and others were stated at the bar, book which is accused of piracy. And to show that Mr. Bogue has the plain- I may add, that, when a considerable tiff's errors, which is the ordinary and number of passages are proved to have familiar mode of trying the fact whether been copied, by the copying of the the defendant has used the plaintiff's blunders in them, rfther passages which book. Now, the use of showing the are the same with passages in the orig- same errors in both is, that where the inal book must be presumed, prima defendant says he has got his informa- facie, to.be likewise copied, though no tion not from the plaintiff, but from blunders occur in them." Mawman other sources, if the evidence is un- v. Tegg, 2 Russ. 393-394. satisfactory on the question whether ' 2 Am. L. T. R. s. s. 402. the defendant did use the plaintiff's 430 THE LAW OP COPYRIGHT AND PLATRIGHT. the proof-reading is governed by uniform rules, or that both were corrected by the same proof-reader. So, in Pike v. Nicholas, it appeared that l)oth plaintiff and defendant had made the same quotation from Prichard, in which that author had cited a passage from Livy, relating to the color of the hair of the Gauls, and that both had pointed out that the correct reading of the Latin text was rutilatce comce, " reddened heir," and not, as given by Prichard, rutilce coma, " red hair." Tliis was cited as evidence of copying. But the Lord Justices of appeal gave much weight to the con- sideration that the defendant was a fair Latin scholar, and might naturally have made the same criticism as did the plain- tiff on Prichard's reading. And this view was strengthened by the fact that the form rutilatce was to be found in a German and in a French translation of the passage in question.^ So, also, it will be in the defendant's favor if the erroneous passage alleged to have been copied in his book is free from some of the inaccuracies which are found in the same passage in the plaintiff's publication.^ Still, it is to be remembered that the errors may have been corrected in copying. Circumstances such as the above are not necessarily conclu- sive ; but they will be entitled to due consideration in weighing the probabilities. Presumption of Copying Created by Likeness must be Over- come by Defendant. — When the publication complained of contains resemblances striking enough to warrant the infer- ence of piracy, it is for the defendant to show that the likeness is not the result of copying from the complainant's work.^ He may establish the fact that his own work was prepared without any recourse whatever to that of the plaintiff; or, admitting that he had seen or used the latter, he may show that the parts complained of in his own work were taken by him from a source other than the publication alleged to have been pirdted. It 1 Law Eep. 5 Ch. 251. contained seventy errors not to be '^ In M'Neill v. Williams, 11 Jur. found in liis own. It does not appear 344, it appeared that seven errors in wliat importance the court attached to the plaintiff's mathematical tables were this circumstance; but tlie injunction also found in those of the defendant, was refused. The latter declared that this was acei- ' See ante, p. 400. dental, and that the plalntifi's book PIRACY. 431 will not be enough for the defendant simply to show that the passages in question are to be found in other books than the plaintiff s, and that such books were accessible to him, or even were used by him in the preparation of his own. This evidence may lessen the probabilities that there was unlawful copying. But it must be proved that the defendant actually got the mat- ter in dispute from the common source without copying from the protected work. It is obvious that there would be little protection for compilations and other works containing se- lections, quotations, citations, &c., gathered from common sources, if the charge of piracy could be successfully met by showing that the defendant might have obtained the matter complained of from the original authorities. The pivotal ques- tion is not what he might have done, but what he has done. So, when coincidence of errors is brought forward as evidence of copying, it will doubtless be in the defendant's favor to show that the same inaccuracies are found in the work of another author. But it by no means follows from this that tlie erroneous passages in the defendant's work were not copied from that of the plaintiff. When the defendant is charged with having copied quota- tions from the plaintiff's work, instead of going to the original authorities, it will be a circumstance of much weight if the quoted matter in the later compilation is more extensive than in the earlier one.^ Intention to pirate on the part of the person charged with wrong will have much weight in determining the question of copying.^ And so it will often be important for the defendant to produce his manuscript, or satisfactorily account for its non- production.^ He may also be called upon to explain such matters relating to the preparation of his work as may throw light on the question of unlawful copying. In a recent English 1 " On the otlier hand, the defendant that he got those quotations from had quoted an author taken from Prichard which the plaintiff got from Prichard, Calpurnius Flaccus, who was Prichard." Lord Hatherley, Pike v. not quoted by the plaintiff, and had Nicholas, Law Rep. 5 Ch. 262. added to his quotation a passage from ^ See ante, p. 402. Tertullian, which was not inapt to the ' Hotten w. Arthur, 1 Hem. &M. 609; subject. These circumstances showed Jarrold o. Houlston, 3 Kay & J. 708; clearly that the defendant went to the Spiers v. Brown, 6 W. B. 362. See this original source, namely, Prichard, and point considered in Chap. XI. 432 THE LAW OF COPYRIGHT AND PLATRIGHT. case, where the defendant denied that he had copied from the plaintiff's book quotations from Retzius and from Pouch^t, his evidence was not credited, because he could not say where he had seen the original works of those authors, which were so rare that copies were not in the British Museum. The defendant was further charged with having copied an argu- ment based on the physical characteristics of ten thousand persons which he claimed to have observed at public meetings ; but it was a significant fact against him that he could not give the time or place of such meetings.^ 1 Pike V. Nicholas, Law Eep. 5 Ch. 251. See also Kelly v. Wyman, 17 W. R. 399 : 8. c. 20 L. T. u.'s. 300. ABRIDGMENTS, TRANSLATIONS, AND DRAMATIZATIONS. 433 CHAPTER IX. ABRIDGMENTS, TRANSLATIONS, AND DRAMATIZATIONS, CONSIDERED WITH REFERENCE TO PIRACY. General Principles. — In considering the question of piracy in the case of these productions, certain fundamental principles, which apply equally to all of them, should be borne in mind. Any person, or any number of persons, may abridge, translate, or dramatize any publication not protected by copyright. The original being common property, no legal rights are secured to its author ; therefore, none are violated by the uses above mentioned. Hence, there may be numerous abridgments, trans- lations, or dramatizations of the same original, and copyright will vest in each.^ This copyright will prevent any person without license from copying the abridgment, translation, or dramatization, but not from using the original for the same purpose. Whether one abridgment, translation, or dramatiza- tion infringes another is determined by the fact, whether the alleged wrong-doer has produced his own from the original by independent labor, or has copied that of another. So also a peueon with the consent of the author may secure a copyright for an abridgment, translation, or dramatization of a work protected by copyright. Alterations, additions, improvements, &c., made without authority, however extensive or valuable they may be, confer no right to use a copyrighted work.^ A person may acquire copyright in new matter added to a work of which he is not the author, or in changes, improvements, &c., made in such work ; but he must show that the original is common property, or, if protected by copyright, that he has authority so to use it. Hence, it is no defence of piracy that the I See ante, p. 158. ^ See ante, pp. 405-107. 28 434 THE LAW OP COPYRIGHT AND PLAYRIGHT. unauthorized abridgment, translation, or dramatization of a copyrighted worlt presents the original in a new and im- proved, a more useful, or a less expensive form. It is a funda- mental principle of the law of copyright that to take a material part, verbatim or in substance, of a protected work, except under the recognized privilege of fair use, is piracy. This principle is universally recognized. It was affirmed by Lord Langdale, when he said, " Whilst all are entitled to resort to common sources of information, none are entitled to save themselves trouble and expense by availing themselves, for their own .profit, of other men's works still subject to copyright and entitled to protection ; " ^ and by Mr. Justice Story, when he said that if " the labors of the original author are substan- tially to an injurious extent appropriated by another, that is sufficient in point of law to constitute a piracy pro tanto.^' ^ This principle is not less applicable to the productions now under consideration than it is to any other kind. The question of piracy, then, in the case of an abridgment, translation, or dramatization of a work protected by copyright, is to be determined by two inquiries : 1. Whether the whole or a material part of the original lias been substantially repro- duced ; 2. Whether the original has been used with the consent of the owner.^ Abridgments. The judicial history of copyright is fertile in examples showing how false doctrines become firmly rooted in jurispru- dence by the practice of blindly following precedents with- ' out examining the grounds on which they are based. No subject presents a more striking illustration of the evils of this custom than that of abridgments. In 1847, Mr. Justice McLean, after emphatically declaring that the doctrine held by the courts in relation to abridgments was contrary to right and established principles, said that he was " bound by prece- dent ; " * and as lately as 1869 Mr. Justice Clifford declared that the prevailing doctrine on this subject " has been too long 1 Lewis V. FuUarton, 2 Beav. 8. whether the work dramatized is a ^ Folsom w. Marsh, 2 Story, 115. dramatic composition. " Dramatizations for performance * Story's Executors v. Holoombe, 4 are further governed by tlie question McLean, 308, 309. ABRIDGMENTS, TRANSLATIONS, AND DEAMATIZATIONS. 435 established to be considered at the present time as open to controversy." ^ Let us consider what authorities there are in favor of this latter conclusion, and to what weight they are entitled. For the true spirit of inquiry is, that a doctrine in jurisprudence is never beyond pertinent question until it rests firmly on reason and sound principles. English Authorities. — The theory that an abridgment of a copyrighted work is not an invasion of literary property is traced to a dictum expressed by Lord Hardwicke in 1740, when Sir Matthew Hale's Pleas of the Crown was alleged to have been infringed. The book complained of was found to be not an abridgment, but a reprint, of the original, " colorably short- ened." Lord Hardwicke said : " Where books are colorably shortened only, they are undoubtedly within the meaning of the act of Parliament, and are a mere evasion of the statute, and cannot be called an abridgment. But this must not be carried so far as to restrain persons from making a real and fair abridgment, for abridgments may with great propriety be called a new book ; because not only the paper and print, but the invention, learning, and judgment, of the author is shown in them, and in many cases are extremely useful, though in some instances prejudicial, by mistaking and curtailing the sense of the author. If I should extend the rule so far as to restrain all abridgments, it would be of mischievous conse- quence." ^ Brief dicta, or admissions of like import, are to be found in the opinions in Tonson v. Walker,^ decided in 1752 ;. Dodsley v. Kinnersley,* in 1761; Millar v. Taylor ,5 in 1769;, Bell V. Walker,^ in 1785 ; D'Almaine v. Boosey,^ in 1835 ; and. Prince Albert v. Strange,^ in 1849. In none of these cases was 1 Lawrence v. Dana, 2 Am. L. T. R. has a right to abridge the works of N. 8. 425. another. On the other hand, I do not 2 Gyles V. Wilcox, 2 Atk. 141. mean to say that there may not be an ' 8 Swans. 678. abridgment which may be lawful, * Amb. 403. which may be protected ; but, to say s i Burr. 2310. that one man has the right to abridge, ^ 1 Bro. C. C. 451. and so publish in an abridged form, the ' 1 Y. & C. Exch. 301. work of another without more, is going 8 2 De G. & Sm. 693. Vice-Chan- much beyond my notion of what the cellor Knight Bruce also seems to have law of this country is." The language thought that an abridgment was not following in the opinion indicates that necessarily piratical. But his views the question of piracy is to be deter- are not expressed with precision. " I mined by the character of the abridg- am not aware," he said, " that one man ment. The work complained of was 436 THE LAW OP COPYRIGHT AND PLATRIGHT. the publication complained of an abridgment, and in none was the law governing piracy in the case of abridgments fully con- sidered or discussed. Hence, these decisions afford no direct test of the question now under consideration, and have no binding force as precedents. The only English case wherein the decision turned directly on this point was one against Newbery, in 1774. It was there found that the defendant had made a bona fide abridgment of Dr. Hawkesworth's Voyages ; and Lord Chancellor Apsley, after consultation with Sir William Blackstone, held that " an abridgment, where the understanding is employed in retrench- ing unnecessary and uninteresting circumstances, which rather deaden the narration, is not an act of plagiarism upon the original work, nor against any property of the author in it, but an allowable and meritorious work." The injunction was, therefore, refused.^ All the English decisions in favor of the doctrine that a bona fide abridgment of a protected work is no infringement of the copyright in the original have now been cited. It will be seen that, with two unimportant exceptions, they all belong to the last century. Age does not necessarily weaken the force of an authority. Fundamental principles remain unchanged by time, though new conditions may be imposed by the legislature, and precedents may be overruled by the courts. But when, in the growth of jurisprudence, are developed sound principles wholly antagonistic to those on which earlier decisions rest, such decisions properly lose the weight of authority. Tried by this test, the cases just cited must be considered obsolete as far as they bear on the question now under consideration. While they have not been formally overruled, the doctrine which they found to be a republication of Dickens's that, except by colorably leaving out Christmas Carol, with merely color- some parts of the cases, such as the able alterations, and therefore not a arguments of counsel, it was a mere bona fide abridgment. Dickens v. Lee, copy verbatim, of several of the reports 8 Jur. 1,84. of cases in the courts of law, and among In Butterworth o. Robinson, 6 Ves. them the Term Reports, of which plain- 709, it was held that the plaintiff was ti££ is proprietor." Lord Chancellor entitled to an injunction to restrain the Loughborough said, "It appears to me publication of An Abridgment of Cases, an extremely illiberal publication." But it was alleged that " this work ^ LofEt, 775. was by no means a fair abridgment ; ABRIDGMENTS, TRANSLATIONS, AND DRAMATIZATIONS. 437 sanction cannot be reconciled with those principles which have repeatedly governed the courts in determining questions of piracy in more recent cases.^ American Authorities. — It is not surprising that a doctrine unquestioned for a century in England should have found a place in American jurisprudence. It has been apparently recognized, in part at least, by Mr. Justice Story, in Gray v. Russell,^ and Folsom v. Marsh ;2 by Mr. Justice Woodbury, in Webb V. Powers ;* and by Mr. Justice Clifford, in Lawrence v. Dana.^ It has been applied by Mr. Justice McLean, in Story's Executors v. Holcombe.^ In the four cases first cited, tlie works complained of were not abridgments. Hence, tliese decisions are not binding as precedents on this question. Nev- ertheless the opinions of the distinguished jurists who pro- nounced them, when they are the result of their own reasoning, are entitled to careful consideration. But in the cases referred to they seem simply to have repeated the views found in the English reports. Moreover, the English docti-ine was accepted with a qualification which amounts to its practical rejection. Mr. Justice Story was of opinion that, if the abridgment will " prejudice or supersede the original work," it is piratical ; ^ and Mr. Justice Clifford declared that an abridgment " which is of ' " Kecent decisions aflFord more under the pretence of a review, by ample protection to copyright than giving its substance in a fugitive form, those of an earlier date, and they also The same difficulty may arise in rela- restrict the privilege of the subsequent tion to an abridgment of an original writer or compiler in respect to the use work. The question in such a case of the matter protected by the copy- must be compounded of various con- right within narrower limits." Clifford, siderations, whether it be a bona fide J., Lawrence v. Dana, 2 Am. L. T. R. abridgment, or only an invasion by the N. 8. 428. omission of some unimportant parts ; 2 1 Story, 19. whether it will, in its present form, ' 2 Id. 106. prejudice or supersede the original * 2 Woodb. & M. 520. work ; whether it will be adapted to 5 2 Am. L. T. K. N. B. 425, 426. the same class of readers ; and many " 4 McLean, 306. other considerations of the same sort, ' "In some cases, indeed," said Mr. which may enter as elements in ascer- Justice Story, " it may be a very nice taining whether there has been a piracy question what amounts to a piracy of or not. AUliough the doctrine is often a work, or not. Thus, if large extracts laid down in the books, that an abridg- are. made therefrom in a review, it ment is not a piracy of the original might be a question whether those copyright, yet this proposition must be extracts were designed bona fide for the received with many qualifications." mere purpose of criticism, or were de- Gray v. Russell, 1 Story, 19. See also signed to supersede the original work, 2 Eq. Jur. § 939. 438 THE LAW OF COPYRIGHT AND PLATRIGHT. the character to supersede the original " is " an infringement of the franchise secured by the copyright." ^ This proviso nearly, if not quite, annuls the doctrine to which it is applied. For, excepting perhaps in rare cases, the effect of the abridgment must be to prejudice or to supersede the original, to a material extent. The complaint in Story's Executors v. Holcombe was that the copyright in Story's Commentaries on Equity Jurisprudence had been infringed by the publication of an Introduction to Equity Jurisprudence, prepared by the defendant. The defence was set up that the latter was a bona fide abridgment of the former. The Master reported that Story's work had been fairly 1 " Courts have sometimes sup- posed," said Mr. Justice Clifford, " that the same rule of decision should be a{)plied to a copyright as to a patent for a machine, and consequently that an abridgment of an original work, made and condensed by another per- son without the consent of the author of the original work, ought to be re- garded as an infringement ; but the language of the respective acts of Con- gress, making provision for the protec- tion of such rights, is different ; and the opposite doctrine has been too long established to be considered at the present time as open to controversy. Story V. Holcombe, 4 McLean, 309. Whatever might be thought if the question was an open one, it is too late to agitate it at the present time, as the rule is settled that the publication of an unauthorized but bona fide abridg- ment or digest of a published literary copyright, in a certain class of cases at least, is no infringement on the origi- nal. Phillips on Copyright, 171 ; New- bery's Case, Lofft, 775; Dodsley v. Kinnersley, Amb. 403; Whittinghara V. Wooler, 2 Swans. 428 ; Gyles v. Wil- cox, 2 Atk. 141. " Strong doubts are expressed by Mr. Curtis, whether the definition of an allowable abridgment, as given in the earlier cases, can be sustained, except as applied to such works as histories, or works composed of translations, and others of like kind ; but it was decided in this court, in the case of Folsom v. Marsh, 2 Story, 105, that an abridg- ment in which there is a substantial condensation of the materials of the original work, and which required in- tellectual labor and judgment to make the same, does not constitute an in- fi-ingement of the copyright of the orig- inal author; and the court, as now constituted, is inclined to adopt that rule in cases where it also appears that the abridgment was made bona fide as such, and that it is not of a character to supersede the copyrighted publica- tion. Unless it be denied that a le^al copyright secures to the author ' the sole right and liberty of printing, re- printing, publishing, and vending the book ' copyrighted, it cannot be held that an abridgment or digest of any kind of the contents of the copyrighted publication, which is of a character to supersede the original work, is not an infringement of the franchise secured by the copyright. What constitutes a fair and bona fide abridgment in the sense of the law is, or may be under particular circumstances, one of the most difficult questions which can well arise for judicial consideration ; but it is well settled that a mere selection or different arrangement of parts of the original work into a smaller compass will not be held to be such an abridg- ment." Lawrence v. Dana, 2 Am. L. T. R. N. 8. 425. ABRIDGMENTS, TRANSLATIONS, AND DRAMATIZATIONS. 439 abridged, and hence that there was no infringement. Against this conclusion, the court found that the first third of the de- fendant's book, including one hundred pages, was not a fair abridgment, and granted an injunction against that part. The rest was regarded as an abridgment, and its publication was not enjoined.^ In considering the principles which govern piracy in the case of abridgments, Mr. Justice McLean said : " This controversy has caused me great anxiety and embarrass- ment. On the subject of copyright, there is a painful uncertainty in the authorities; and, indeed, there is an inconsistency in some of them. That the complainants are entitled to the copy- right which they assert in their bill is not controverted by the defendants. The decision must turn on the question of abridg- ment. If this were an open question, I should feel little diifi- culty in determining it. An abridgment should contain an epitome of the work abridged, — the principles, in a condensed form, of the original book. Now, it would be difficult to main- tain that such a work did not affect the sale of the book abridged. The argument that the abridgment is suited to a different class of readers, by its cheapness, and will be pur- chased on that account by persons unable and unwilling to purchase the work at large, is not satisfactory. This, to some extent, may be true ; but are there not many who are able to buy the original work, that will be satisfied with the abridg- ment ? What law library does not contain abridgments and digests, from Viners and Comyns down to the latest publica- tions ? The multiplication of law reports and elementary trea- tises creates a demand for abridgments and digests ; and these being obtained, if they do not generally, they do frequently, prevent the purchase of the works at large. The reasoning on which the right to abridge is founded, therefore, seems to me to be false in fact. It does, to some extent in all cases, and not unfrequently to a great extent, impair the rights of the author, — a right secured by law. " The same rule of decision should be applied to a copyright as to a patent for a machine. The construction of any other machine which acts upon the same principle, however its 1 4 McLean, 306. 440 THE LAW OF COPYRIGHT AND PLAYRIGHT. structure may be varied, is an infringement on the patent. The second machine may. be recommended by its simplicity and cheapness ; still, if it act upon the same principle of the one first patented, the patent is violated. Now, an abridgment, if fairly made, contains the principle of the original work ; and this constitutes its value. Why, then, in reason and justice, should not the same principle be applied in a case of copyright as in that of a patented machine ? With the assent of the patentee, a machine acting upon the same principle, but of less expensive structure than the one patented, may be built ; and so a book may be abridged by the author, or with his consent, should a cheaper work be wanted by the public. This, in my judgment, is the ground on which the rights of the author should be considered. " But a contrary doctrine has long been established in Eng- land, under the statute of Anne, which, in this respect, is simi- lar to our own statute ; and in this country the same doctrine has prevailed. I am therefore bound by precedent ; and I yield to it in this instance more as a principle of law than a rule of reason or justice." ^ The only American case, then, which directly supports the doctrine that a hona fide abridgment of a copyright book is not piratical is Story's Executors v. Holcombe. The authority of this will readily be set aside, when it is remembered that the decision was rendered under protest, so to speak, was contrary to the opinion of the judge who pronounced it, and was based on no other ground than that of supposed precedents, which have been shown to have had no force. The Doctrine Maintained that an Unauthorized Abridg- ment IS Piratical. The above review of all the decisions that can be cited in support of the prevailing doctrine concerning abridgments, and the absence of express authorities on the other side, show that the question whether the copyright in a work is violated by an unauthorized abridgment of the original must be deter- 1 4 McLean, 308. ABRIDGMENTS, TRANSLATIONS, AND DRAMATIZATIONS. 441 mined by the application of those general principles which are uniformly recognized as governing the subject of piracy. The word abridgment has been loosely applied to publi- cations widely different in character. We may here dismiss from consideration those so-called abridgments which are made by merely colorably shortening the originals, or by simply selecting some parts and omitting others. ' Such productions are compilations or servile imitations, and, when copyrighted originals are used without authority, are conceded to be pirati- cal, even by those who maintain that a bona fide abridgment is not an invasion of copyright. So, also, a biographical sketch of a page or so, written from an elaborate biography in one or more volumes, will doubtless not be considered an abridgment of the larger work. What will be here regarded as a genuine abridgment is a production in which the substance of the whole, or of a mate- rial part, of a work is condensed into a much smaller compass, and is given in language substantially different from that of the original.^ That labor, skill, and judgment may be required 1 " What constitutes a fair and bona " It must be in good faith an abridg- fide abridgment, in the sense of the ment, and not a treatise interlarded law, is one of the most diflScult points, with citations. To copy certain pas- under particular circumstances, which sages from a book, omitting others, is can well arise for judicial discussion, in no just sense an abridgment of it. It is clear that a mere selection, or It makes the work shorter, but it does different arrangement, of parts of the not abridge it. The judgment is not original work, so as to bring the work exercised in condensing the views of into a smaller compass, will not be held the author. His language is copied, to be such an abridgment. There not condensed ; and the views of the must be real, substantial condensation of writer, in this mode, can be but par- the materials, and intellectual labor be- tially given. To abridge is to preserve stowed thereon ; and not merely the the substance, the essence, of the work, facile use of the scissors ; or extracts in language suited to such a purpose, of the essential parts, constituting the Gould's Abridgment of Alison's His- chief value of the original work." tory of Europe gives all the material Story, J., Folsom v. Marsh, 2 Story, facts of the original work, covering 107. the whole line of the narrative; and " A fair abridgment of any book is this, in a legal sense, may be called an considered a new work, as to write it abridgment. . . . requires labor and exercise of judg- " AH the authorities agree that to ment. It is only new in the sense that abridge requires the exercise of the the view of the author is given in a mind, and that it is not copying. To condensed form. Such a work must compile is to copy from various authors not only contain the arrangement of into one work. In this, the judgment the book abridged, but the ideas must may be said to be exercised to some be taken from its pages. extent in selecting and combining the 442 THE LAW OF COPYRIGHT AND PLAYRIGHT. to produce this result ; that such an abridgment may be a new- work in outward form, of great merit, and highly useful by presenting the essence of the original in a less expensive, more convenient, and perhaps better shape, is wholly true. On these grounds was founded the doctrine that the lights of an author are not invaded by an unlicensed abridgment of his literary production ; and they are the only ones to be found in the reported opinions to support that theory.^ The qualities above mentioned are ample to sustain copyright in the abridgment of an unprotected work, or of a copyrighted work abridged with the consent of the author. But they confer no right on any extracts. Such a work entitles the compiler, under the statute, to a right of property. This right may be com- pared to that of a patentee, who, by a combination of known mechanical structures, has produced a new re- sult. " Between a compilation and an abridgment there is a clear distinc- tion; and yet it does not seem to have been drawn in any opinion cited. A compilation consists of selected ex- tracts from different authors ; an abridgment is a condensation of the views of the author. The former can- not be extended so as to convey the same knowledge as the original work ; the latter contains an epitome of the work abridged, and consequently con- veys substantially the same knowledge. The former cannot adopt the arrange- ment of the works cited; the latter must adopt the arrangement of the work abridged. The former infringes the copyright, if matter transcribed when published shall impair the value of the original book ; a fair abridg- ment, though it may injure the orig- inal, is lawful. [Bell v. Walker] 1 Bro. C. C. 451; Gyles i>. Wilcox, 2 Atk. 141." McLean, J., Story's Executors V. Holcombe, 4 McLean, 311-314. ' These grounds are most fully given in the case against Newbery, re- ported by Lofft, 775. Lord Chancellor Apsley " was of opinion that this abridgment of the work was not any violation of the authors property whereon to ground an injunction. That, to constitute a true and proper abridgment of a work, the whole must be preserved in its sense ; and then the act of abridgment is an act of un- derstanding, employed in carrying a large work into a smaller compass, and rendering it less expensive and more convenient both to the time and use of the reader, which made an abridg- ment in the nature of a new and meri- torious work. " That this had been done by Mr. Newbery, whose edition might be read in the fourth part of the time, and all the substance preserved, and conveyed in language as good or better than in the original, and in a more agreeable and useful manner. That he had con- sulted Mr. Justice Blackstone, whose knowledge and skill in his profession was universally known, and who as an author himself had done honor to his country. That they had spent some hours together, and were agreed that an abridgment, where the understand- ing is employed in retrenching un- necessary and uninteresting circum- stances, which rather deaden the narra- tion, is not an act of plagiarism upon the original work, nor against any property of the author in it, but an allowable and meritorious work. And that this abridgment of Mr. Newbery falls within these reasons and descrip- tions." ABRIDGMENTS, TRANSLATIONS, AND DRAMATIZATIONS. 443 one to abridge without authority a work protected by copyright. If a person is entitled to republish any literary production which does not belong to him, simply because he may change it by labor and skill into a better, more useful, or less expen- sive form, there is obviously little protection for literary prop- erty. To defend piracy by such reasoning is the same in principle as to justify the unlicensed taking of material posses- sions on the sole ground of their conversion into useful prod- ucts. The rights of property cannot justly be undermined by such fictions. A dramatization of a novel, or an arrangement for the piano of an opera, is a reproduction of an existing work in a new and useful form ; but it has been properly held that no one without authority may dramatize for publication a copyrighted novel,^ or arrange for the piano an opera pro- tected by copyright.^ The principle is the same in the case of an abridgment. The maker must show a clear title to that which he has taken, — a title derived from the owner of the original. The failure to recognize the vital distinction between the abridgment of a work which is and of one which is not protected by copyright doubtless led to the adoption of the erroneous doctrine which has been criticised. The question whether a protected work is infringed by the publication of an unauthorized abridgment is one easily deter- mined. We have but to ascertain whether the person charged with wrong has availed himself of the labor and learning of another to a material extent, and to the injury of the author entitled to protection. That the maker of an abridgment does this must be evident to most minds. The very plan of an abridgment and the purpose of its author require that it shall embody what is most valuable in the work abridged. Between the abridged and the unabridged, the difference is alone in form and size ; the substance remains the same. A produc- tion which is the creation of rare genius, the fruit of great learning, or of years of toil, may be condensed, in a compara- tively sliort time and with comparatively little labor, by a liter- ary woi'kman of ordinary skill. But that which is the essence 1 Tinsley v. Lacy, 1 Hem. & M. 747. See also Eeade v. Lacy, I Johns. & H. 524. ^ See ante, pp. 410, 411. 444 THE LAW OP COPYRIGHT AND PLAYRIGHT. of the abridgment, and constitutes its chief value, is due to the genius, learning, or industry of the original author. What would be an abridgment of Bancroft's History of the United States, but a reproduction of the substantial fruits of forty years' patient toil, and of the great learning of that historian ? What would be an abridgment of the American Cyclopsedia, but an appropriation of the wealth of information there gar- nered at a cost of half a million dollars for literary labor alone? It would seem to be needless, even thus briefly, to indicate that he who abridges a work takes the substantial results contained in the original. It must be not less apparent that the publication of the abi'idgment will tend to supersede the unabridged, to lessen its sale, and thereby to injure its owner. Doubtless many buyers of the abridged would not have bought the unabridged ; but, on the other hand, not a few will abstain from buying the larger work, simply because the smaller one is to be had. But it is not necessary to show that the sale of the original is prejudiced by the publication of the condensed edition. The rights of the author extend to the whole and all the parts of a literary composition, and to all the forms in which the whole or a material part may be published. It is for him to say whether an abridgment shall be published ; to him belongs whatever profit or credit may attend such publication. Whether he has or has not issued an abridgment, he may be injured by the publication of an unauthorized one. In one case, the in- jury is actual ; in the other, potential. Moreover, the reputa- tion of the original author may be hurt by the publication of an unauthorized abridgment which fails to reproduce the origi- nal with accuracy and fidelity ; and, in some cases, by any condensation of the original, however faithfully and skilfully done. The conclusion of fact, then, to which we are brought is, that a genuine abridgment embodies tlie substantial results contained in the work abridged ; and, if unauthorized, is dam- aging to the author of the original. The question of piracy is determined by the application of the established principle that no one without authority shall take a material part of another's work, to the injury of the person entitled to protection. It is ABRIDGMENTS, TRANSLATIONS, AND DRAMATIZATIONS. 445 settled that piracy may be committed by taking a few pages from a copyrighted book ; to hold that the substance of the whole may be lawfully appropriated, if published in the form of an abridgment, is as absurd as it is inconsistent and unjust. An unauthorized abridgment of a work entitled to protection must, therefore, be regarded as piratical. ^ Translations. statutory Provision for Reserving Right of Translation and Dramatization. — Section 4952 of the Revised Statutes of the United States provides that " authors may reserve the right to dramatize or translate their own works." The manner of do- ing this is not prescribed or indicated. A notice to that effect, printed on the title-page or that following, would doubtless be enough. When the right of translation has thus been reserved by the author, it will be a clear violation of the statute for any person without authority to translate the book ; and, wlien the right of dramatization is reserved, it is equally clear /that all 1 It has been shown that Justices Story and Clifford regarded an unau- thorized abridgment as piratical, when its effect is to damage the author of the original ; and that the views expressed by Mr. Justice McLean in Story's Ex- ecutors V. Holcombe are in entire accord with the conclusion reached in the text. Mr. Chancellor Kent, criticising the doctrine recognized obiter in Dods- ley V. Kinnersley, said : " This latitu- dinary right of abridgment is liable to abuse and to trench upon the copyright of the author." 2 Com. 382, note e. After questioning the soundness of the views expressed by Lord Hardwicke in Gyles v. Wilcox, Lord Campbell says : " I confess I do not understand why an abridgment tending to injure the reputation and to lessen the profits of the author should not be an inva- sion of his property." 6 Lives of the Chancellors (10 vols, London, 5th ed.), 202, 203, note e. In Tinsley v. Lacy, Vice-Chancel- lor Wood, afterward Lord Hatherley, said : " The authorities by which fair abridgments have been sanctioned have no application. The court has gone far enough in that direction ; and it is difficult to acquiesce in the reason sometimes given, that the compiler of an abridgment is a benefactor to man- kind by assisting in the diffusion of knowledge." 1 Hem. & M. 754. " In the United States and in Eng- land, any man may make an abridg- ment of the work of another; that is, any man has a right to cut the ears of my corn, provided he leaves the stalks uncut ; to drink my wine, provided he leaves me the casks." Lieber, 2 Polit- ical Ethics (Woolsey's ed., Phila., 1875), 122. Unsuccessful attempts have been made to extend the current fallacious theory concerning abridgments to a di- minutive photograph of a painting, and to reprints reduced in size of maps and illustrations. Gambart v. Ball, 14 C. B. N. s. 306 ; Bradbury v. Hotten, Law Rep. 8 Exch. 1 ; Farmer v. Cal- vert Lithographing, Engraving, & Map- Publishing Co., 5 Am. L. T. K. 168. 446 THE LAW OP COPYRIGHT AND PLAYEIGHT. unauthorized persons are barred from dramatizing the work, either for publication in print or for representation on the stage. But because the statute gives to every author the privi- lege of reserving the right to dramatize and to translate his work, it does not follow that such right does not exist in the absence of express reservation. If the right is in harmony with the general purpose of the statute, and is properly within the grant made by Congress, it cannot be destroyed with- out language which is express or whose meaning is clearly implied to that effect. The provision in question simply directs how the right of translation and dramatization may be put beyond doubt and dispute. It neither creates nor destroys that right. The existence and limitations of the right are to be determined by a judicial construction of the entire statute in accordance with estabhshed principles. Nor are the author's rights in his work, in the absence of an express reservation, affected by the question whether he has or has not himself dramatized or translated it. If he has made a dramatization or translation, and secured a copyright for it, this copyright will protect the production for which it was granted ; but it cannot prevent any person from making a like use of the original. Whether the unlicensed translation or dramatization of the original is piratical must be determined by the nature and extent of the property in the original. Unlicensed Translation in Absence of Reservation. — The inquiry now arises, whether, in the absence of any special res- ervation, the unauthorized translation of a book is a violation of the copyright in it. This question has been adjudicated in but the one case of Stowe v. Thomas. It was raised, but not decided, more than a century and a half ago, in Burnett v. Chetwood. In several other cases may be found dicta on the general subject of piracy' in the case of translations. Let us see what light is thrown on the subject by the decisions. English Authorities. — The first case relating to translations arose in 1720, when Lord-Chancellor Macclesfield granted an injunction against an English translation of Thomas Burnett's Archceologia PhilosopMca, — a work which had been published in Latin, and copyrighted by the author. The unauthorized pub- lication of the book in English was enjoined, on the ground that ABRIDGMENTS, TRANSLATIONS, AND DRAMATIZATIONS. 447 it " contained strange notions, intended by tlie author to be concealed from the vulgar, in the Latin Language ; in which language it could not do much harm." The decision, therefore, did not turn on the question of the general rights of the trans- lator ; but the Lord Chancellor remarked ohiter, that " a transla- tion might not be the same with the reprinting the original, on account that the translator has bestowed his care and pains upon it, and so not within the prohibition of the act." ^ In Wyatt v. Barnard, decided in 1814, it appeared that the complainant had copyrighted a periodical containing, besides selections and original articles, translations made expressly for him from foreign works not protected by copyright in England. Such selections and translations had been copied by the de- fendant, without authority, in a rival periodical. This was a clear case of piracy. In granting the injunction, Lord Eldon properly held that, " with respect to the translations, if orig- inal, whether made by the plaintiff or given to him, they could not be distinguished from other works." ^ This language clearly refers to the kind of translations before the court, and has no reference to those of copyrighted works which are not men- tioned in the report of the case. This decision, therefore, though often cited, has no bearing on the question under con- sideration. One aspect of the subject of piracy by translation was considered in Murray v. Bogue. The plaintiff complained that liis Handbook for Travellers in Switzerland had been infringed by a guidebook issued by the defendant, under the title of Switzerland and Savoy. The latter publication had been made up from various sources, and in part was an abridged translation of Baedeker's German work, which appears not to have been copyrighted in England. It was claimed, however, on this point, that Baedeker's book was a translation of Mur- ray's, and that its retranslation into English by Bogue was a violation of Murray's copyright. The law applicable in such a case was correctly laid down by Vice-Chancellor Kindersley, who said : " If Baedeker's were a translation of Murray's irito^ German, and then the defendant had retranslated Baedeker's 1 Burnett v. Chetwood, 2 Merir. 441. ^ 3 Ves. & B. 77. 448 THE LAW OP COPTRIGHT AND PLATEIGHT. into English, even if he did not know that Baedeker's was taken from Murray, I could not allow the plaintiff's book to be thus indirectly pirated." ^ But it was found that Baedeker's was sub- stantially an original work, and not a reproduction in German of Murray's ; and tlierefore its translation into English could not infringe the copyright in Murray's book. Excepting Wood v. Chart,^ which was governed by the pro- visions of the International Copyright Statute, the above are the only reported English cases in which the question relating to piracy in the case of translations has been raised. Two of these had sole reference to the translations of productions which were not protected by copyright in England ; while the first was decided on grounds of public morals. They have therefore no direct bearing on the question whether a protected work is infringed by the publication of an unlicensed trans- lation. In Millar v. Taylor, decided in 1769, and Prince Albert v. Strange, in 1849, are found dicta relating to translations. But the issue was in no wise before the court ; and the remarks were made by the judges merely for purposes of illustration.^ 1 1 Drew. 367. purchaser can reap from the doctrine 2 Law Rep. 10 Eq. 193. and sentiments which the work con- 3 In Millar v, Taylor, Lord Mans- tains. He may improve upon it, imi- field maintained that the King's claim tate it, translate it, oppose its senti- to the translation of the Bible was ments ; but he buys no right to publish based not on prerogative, but on prin- the identical work." Ibid. 2348. ciples of property, and said : " If any To the same effect is the dictum man should turn the Psalms, or the of Vice- Chancellor Bruce in Prince writings of Solomon or Job into verse, Albert v. Strange. He was of opinion the King could not stop the printing that the author's common-law rights or sale of such a work : it is the au- in a manuscript work might be in- thor's work." 4 Burr. 2405. That is vaded by the publication of a transla- good law; for such works are common tion, abridgment, or summary of the property, and may be translated by any original ; and remarked that a published person. In the same case, Mr. Jus- work " may be liable to be translated, tice Willes said : " Certainly bona fide abridged, analyzed, exhibited in mor- imitatlons, translations, and abridg- sels, complemented, and otherwise ments are different ; and, in respect of treated in a manner that " a manu- the property, may be considered as new script production is not. 2 De G. & works." Ibid. 2310. And Mr. Justice Sm. 693. Aston remarked that after publication The language of the three judges last " the right of the copy still remains in quoted is too sweeping, and cannot be the author; and that no more passes reconciled with the restrictions that to the public, from the free-will and have been drawn around piracy in more consent of the author, than an unlim- recent cases, ited use of every advantage that the ABRIDGMENTS, TRANSLATIONS, AND DRAMATIZATIONS. 449 American Authorities. — There are but two American deci- sions relating expressly to the subject under consideration. In deciding Emerson v. Davies, in 1834, Mr. Justice Story said : " A man has a right to a copyright in a translation upon which he has bestowed his time and labor. To be sure, another man lias an equal right to translate the original work, and to pub- lish his translation ; but then it must be his own translation by his own skill and labor, and not the mere use and publica- tion of the translation already made by another." i This is a mere ohiter dictum; for the subject of translations was entirely foreign to the issue before the court. As applied to originals not protected by copyright, the doctrine is sound. There is nothing to indicate that Judge Story intended the language to have a more extensive meaning. There is ground for be- lieving that he referred to the translations of works that were common property .^ TTnlicensed Translation Held to be Lawful. — In Stowe V. Thomas, decided in 1853, the Circuit Court of the United States held directly and unequivocally that an unauthorized translation of a copyrighted work is no infringement of the original, nor of a prior translation made and copyrighted by the author of tlie original in the same language as the trans- lation complained of.^ The book in controversy was Uncle Tom's Cabin. Besides copyrighting the English original, Mrs. Stowe had caused it to be translated into German, and had secured a copyright for the translation. Afterward, the defendant made a translation into German, when Mrs. Stowe promptly complained of piracy. Mr. Justice Grier decided that she was not entitled to the protection sought, and used this language : " By the publication of her book, the creations of the genius and imagination of the author have become as much public property as those of Homer or Cervantes. Uncle Tom and Topsy are as much puhlici juris as Don Quixote and Sancho Panza. All her conceptions and inventions may be used and abused by imitators, playwrights, and poetasters. 1 3 Story, 780. copyright in translations of works not '' In support of his statement, Judge protected by statute. Story cited Wyatt v. Barnard, which ' 2 WaU. Jr. 547; s. c. 2 Am. Law goes only to the extent of recognizing Reg. 210. 29 450 ■ THE LAW OF COPYRIGHT AND PLATRIGHT. They are no longer her own : those who have purchased her book may clothe them in English doggerel, in German or Chinese prose. Her absolute dominion and property in the creations of her genius and imagination have been voluntarily relinquished ; and all that now remains is the copyright of her book, — the exclusive right to print, reprint, and vend it ; and those only can be called infringers of her rights, or pirates of her property, who are guilty of printing, publishing, importing, or vending without her license ' copies of her book.' In tropical, but not very precise, phraseology, a translation may be called a transcript or copy of her thoughts or conceptions ; but in no correct sense can it be called a copy of her book." ^ The Doctrine Maintained that an Unauthorized Trans- lation IS Piratical. It has now been shown that the question, whether the publi- cation of an unauthorized translation of a protected work is a violation of the copyright therein, has been decided in but one case. All the other English and American decisions lend only dicta to the solution of this problem. Is the law laid down in Stowe V. Thomas right or wrong ? To determine this question, we must first consider the nature of a translation, and its rela- tion to the original work. The object of copyright legislation is to encourage learning by securing to authors protection for the substantial fruits of their labor. The statute gives to every author the exclusive riglit to print and sell a book which he has produced, and pro- hibits any person without authority from publishing a " copy " of such book. If the language of the statute were prop- erly construed to mean that only the publication of a verbatim copy of the whole of the book is unlawful, the protection intended for literary property would be swept away, and the act of the legislature practically annulled. The courts, there- fore, have declared that the word book applies even to a few lines printed on a single sheet, and that it embraces not only the whole, but every part, of a literary production. An equally 1 2 Am. Law Reg. 231. The language of this passage is somewhat different in 2 Wall. Jr. 568 ; but the meaning is the same in both reports. ABRIDGMENTS, TRANSLATIONS, AND DRAMATIZATIONS. 451 comprehensive meaning has been given to the word copy. The definition that a copy is a literal transcript of the language of tlie original finds no place in the jurisprudence with which we are concerned. Literary property, as has been shown, is not in the language alone ; but in the matter of which language is merely a means of communication.^ It is in the substance, and not in the form alone. That which constitutes the essence and value of a literary composition, which represents the results of the author's labor and learning, may be capable of expression in more than one form of language different from that of the original. A book may be copied by reproducing the substance of the whole or of a part, as well as by transcrib- ing its language. In an abridgment the substance, but not the language, of the original is reproduced ; yet this is an appro- priation of literary property. The author's rights, then, can be secured only by protecting, not merely the form of his production, but also its substance. Hence, the principle has been judicially recognized, and may be regarded as established, that the unauthorized appropriation of the substance, in whole or in part, of a copyrighted literary composition, to the injury of its owner, is piracy. For the purposes of this discussion, a translation may be defined as the reproduction of a literary composition in a lan- guage foreign to that of the original. It is not a mere tran- script of language ; but so clearly is it a copy of a literary production in its essential attributes that the best translation is that which, without creating or destroying, most perfectly reproduces, the original in a foreign language. The translator may be regarded as the author of the new language or form of expression into which the original is rendered. In this sense, an authorized translation, or a translation of an original which is common property, is treated by the law as a new and dis- tinct production, entitled to copyright.^ But otherwise the translator creates nothing. He takes the entire creation of another, and simply clothes it in a new dress. Whether 1 See ante, p. 97. 780 ; Shook v. Rankin, 6 Biss. 477 ; '^ Wyatt V. Barnard, 3 Ves. & B. Shook v. Rankin, 3 Cent. Law Jour. 77 ; Rooney v. Kelly, 14 Ir. Law Rep. 210. N. 8. 158 ; Emerson v. Davies, 3 Story, 452 THE LAW OF COPYRIGHT AND PLATEIGHT. it be reproduced in German, French, or Chinese language, in the characters of stenography, in the raised letters of the blind, or in whatever hieroglyphics, the original creation preserves its identity. The means of communication alone is changed. Was Mrs. Stowe's remarkable creation in any wise different when expressed in German language ? This was simply a means of communication to the German reader ; but the production was in no other essential respect different. The plot, the characters, the dialogue, the lessons, were the same to the German as to the American mind. Both saw the same Uncle Tom, the same Eva, the same Topsy. The scenes of slave-life were identical to both. To both, the moral of the fiction appealed with equal force. Are the productions of Homer, Dante, Goethe, Cervantes, Molidre, Shakespeare, any less tlie creations of those great minds in translation than in the original ? Such works are the fruits of rare genius ; they may be translated by a linguist. The name of the author is for ever identified with his production ; that of the translator is often unknown to fame. The translator, then, simply transfers a literary production from one language to another. The translation is not in sub- stance a new work. It is a reproduction in a new form of an existing one. The functions of a translator are here not disparaged, but defined. To translate from one language to another often requires learning, judgment, and industry. Some of the most valuable contributions to literature are translations. On the roll of translators are many immortal names. By this means, the wealth of ancient learning and of foreign tongues has been opened to millions of readers who would otherwise have been without this source of in- struction and enjoyment. Rightly, therefore, does the law encourage this kind of intellectual labor, by protecting trans- lations when no rights of property are thereby invaded. But a translation, whatever be its merit or the fame of the trans- lator, cannot be produced independently of the work translated, any more than an engraving or photograph of a painting can be made independently of the original. The body and sub- stance of the translation are the body and substance of another work. ABRIDGMENTS, TEANSLATIONS, AND DKAMATIZATIONS. 453 It is a settled principle, that to take a material part of a work without the consent of the owner, except for a " fair use," is a violation of the right secured by the statute. It has been shown that a translation cannot be made without appropriating the entire substance of a literary composition. This brings us to the test by which the question of piracy in the case of a trans- lation is determined. Has the translator any authority to take the production which he renders into another language ? Can he show a good title to the original ? On this simple point turns the whole question of infringement. If the original is not protected by copyright, the law makes it common property, and gives to every one the right to translate it. But the trans- lator of a copyrighted work' must sliow a title derived from the author of the original. If the translation has been made with authority, it will be free from the wrong of piracy. But an un- authorized translation of a work entitled to protection is an invasion of the copyright in the original, as clearly as is the unlicensed publication of a literal copy of the original. A translation bears to the work translated a relation strikingly analogous to that which exists between a musical composition originally composed for voices or the orchestra, and an arrange- ment of it for the* piano. In each case, the translator or ar- ranger, by his own labor and skill, reproduces in a new and useful form a work of which he is not the author. The differ- ence between the translation and its original is not greater than that between the arrangement and its original. The law governing arrangements of music has been clearly and soundly expounded. Any number of persons may arrange, for the piano-forte or any other instrument, an unprotected musical composition, and each will be entitled to copyright in his own arrangement ; but no person, without the consent of the owner, can make such use of a copyrighted work without committing piracy.! Translations are governed by the same principle. If an unauthorized arrangement of a copyrighted musical com- position is piratical, an unlicensed translation of a copyrighted literary composition must be. If the latter is not piratical, the former cannot be. The law has been construed rightly by 1 See ante, pp. 410-iU. 454 THE LAW OP COPYRIGHT AND PLAYEIGHT. the courts in the case of arrangements, and wrongly in the case of translations. stowe V. Thomas Criticised. — The doctrine that an unlicensed translation of a protected work is no invasion of the copyright in the original, as was held in Stowe v. Thomas, is contrary to justice, recognized principles, and the copyright statutes of the United States as judicially construed. It proceeds on the ground that literary property is solely in the comhination or arrangement of words ; that languaige alone is protected by the statute ; and that the word copy, as used in the act, means a literal transcript of the words, and not a reproduction of the substance or the contents of a work. All of these assumptions are wrong. " A copy of a book," said the court, in Stowe v. Thomas, " must, therefore, be a transcript of the language in which the conceptions of the author are clothed ; of something printed and embodied in a tangible shape. The same concep- tions clothed in another language cannot constitute the same composition ; nor can it be called a transcript or copy of the same book." ^ This interpretation of the word copy, as used in the law of copyright, is opposed by the entire current of decisions in which the meaning of the word has been considered with reference to piracy. It is settled that a publication need not be a literal copy or " transcript of the language " of another, in order to be piratical. A substantial reproduction of the whole or of a material part of a work is a copy within the meaning of the law. In some cases, the difference between the language of the two works in controversy has been so great as to make it exceedingly doubtful whether one had been taken from the other ; but, when this fact has been ascertained, the legal question of piracy has been determined accordingly. An arrangement for the piano of an opera is by no means a tran- script or literal copy of the original score. But, as has been said, the unauthorized arrangement of a copyrighted musical composition has been judicially declared to be a piratical copy of the original. So there may be a wide difference in form between a dramatization and the novel dramatized. But the courts have not hesitated to declare that the unlicensed publi- 1 2 Am, Law Reg. 229 ; 2 Wall. Jr. 565. ABRIDGMENTS, TRANSLATIONS, AND DRAMATIZATIONS. 455 cation of the dramatization is an infringement of tlie copyriglit in the novel. ^ If it were lawful for any one without authority to translate a copyrighted work, a translation would be, in the language of Lord Ellenborough, " a recipe for completely breaking down literary property." ^ For not only does a pubhshed translation tend to supersede the original, and thereby lessen its sale ; not only does it serve as a substitute for the translation which the rightful author has made, as in Mrs. Stowe's case, or is entitled to make, — but if the unauthorized translation does not in- fringe the copyright in the original, nor in the author's trans- lation, as was held in Stowe v. Thomas, a retranslation of either the authorized or the unauthorized translation into the original language would be no infringement of any copy- right in the work. So that in Mrs. Stowe's case any person might have retranslated into English either of the German trans- lations of Uncle Tom's Cabin, without infringing the copyright in such translations or in the original work. In this way, any number of editions and copies of that great work of fiction might have been issued against the protest of the author entitled to protection, and one of the most valuable of American copy- rights made worthless. If this is law, there is no protection for literary property ; for any copyrighted work may be repub- lished without authority through the medium of a translation. Such a theory is wrong in principle, and was rightly condemned in Murray v. Bogue.^ It is contrary to the statute, which has been wisely construed to extend protection, not merely to the words, but the substance, of a literary production.* 1 Tinsley u. Lacy, 1 Hem. & M. honest labor, and that he is guilty of 747. See also Keade v. Lacy, 1 Johns, piracy wlio without authority takes to & H. 524. a material extent the substance of a 2 Roworth V. Wilkes, 1 Camp. 98. work entitled to protection. In this 3 1 Drew. 367. case, the question of piracy turned * Of the reported copyright deci- wholly on two simple issues : 1, whether sions of England and America, there is there had been a material appropria- none which is more clearly wrong, tion of tlie results of Mrs. Stowe's unjust, and absurd than that in Stowe labors; 2, whether such appropriation V. Thomas. The law has been ex- had been with her consent. On the pounded repeatedly and emphatically second point, there was no dispute, to the effect, that the object of copy- On the first, the counsel for the de- right legislation is to protect the sub- fendant boastingly asserted : " We stantial fruits of genius, learning, and have confessedly taken not a part, but 456 THE LAW OP COPYRIGHT AND PLAYRIGHT. Dramatizations. It lias already been shown that the statute of the United States provides that authors may reserve the right to dramatize their works ; but that this provision does not affect the question whether, in the absence of such reservation, a work protected by the statute may be dramatized by any person without the consent of the author.^ The 5 & 6 Vict. c. 45, is silent on this point. Publication of Unlicensed Dramatization not La-vrful. — Whether the author has or has not expressly reserved the right to dram- atize it, the publication in print of an unauthorized dramatiza- tion of a copyriglited work is a clear case of piracy.^ For then a material part of a work entitled to protection is taken without license, and printed in violation of the statute and against principles judicially established. That extensive changes are- made by the skill of the dramatist, that the original work may thus be brought into a changed and improved form, is imma- terial. The test is, whether a material part, verbatim or in sub- stance, of a work entitled to protection, is published without the consent of the owner of the copyright. Unauthorized Dramatization for Performance. — Lainr as Ex- pounded in England. — The question now arises, whether it is the whole. We concede and we boast have protection, when there is no protec- that we have taken every syllable, tion. But, fortunately, such is not the comma, and i dot of the original. The intention ofthe legislature, nor theeffect question cannot be how mucli we have of the statute. As wisely construed by taken, for we liave taken all ; nor how the courts, the meaning of the word much we have added, for we have copy in the section of the act relating added nothing ; but only how we have to infringement cannot be restricted to taken, and what we have done with a literal transcript of language, but it ■? " 2 Wall. Jr. 660. The court applies equally to n reproduction of seems to have taken the same view of the substance of a work, the law, and solemnly declared that the If the above language is strong, there publication of an unlicensed literal is justification for it For a wrong deci- translation of one of the most remark- sion followed as a precedent, without able works of the imagination pro- examination into its soundness, may duced in this century is no invasion of remain firmly established in our juris- the author's property, because it is not prudence for a century, a " copy." If this is the proper con- i See ante, pp. 446-446. struction of the statute, the copyright 2 Tinsley v. Lacy, 1 Hera. & M. law of the United States is worse than 747. See also Eeade v. Lacy, 1 Johns. useless, worse than a mockery. It is & H. 524. a fraud, by declaring that authors shall ABRIDGMENTS, TRANSLATIONS, AND DRAMATIZATIONS. 457 piratical to dramatize, for public representation, without au- tliority, a copyrighted work in which the author has not expressly reserved to himself the right of dramatization. This subject has been judicially considered in England, but not in the United States. The essential facts in Reade v. Conquest were these : Charles Reade had written the drama Gold, and registered it as a dra- matic piece, thereby securing the exclusive right of represent- ing it on the stage. He had also registered it as a book, and published it in print. Afterward, he put the drama into the form of a novel, which contained substantially the same plot, incidents, characters, and dialogue as were in the play. The novel was copyrighted as a book, and published with the title, It is Never too Late to Mend. While both novel and drama wei'e thus under the protection of the statute, the defendant publicly represented a play named It is Never too Late to Mend, which was a dramatization of Reade's novel. The per- son who dramatized the novel had not at the time of doing so seen the drama Gold, and was unaware of its existence ; biit there was naturally and necessarily a substantial identity be- tween the plays Never too Late to Mend, and Gold. The court held that the unlicensed performance of the dramatization was not a violation of any right in the novel ; ^ but that, in drama- tizing the novel, the defendant had indirectly copied Gold, and thereby'infringed the playright in that drama.^ Substantially the same questions were raised in Toole v. Young.' It appeared that John HoUingshead had published in 1863, in the magazine called Good Words, a story entitled Not Above his Business, which he had written in dramatic form, that it might, with slight alterations, be performed on the stage. Soon after, the author adapted the piece for representa- tion, and called the play Shop, which was substantially the same as the published story. In 1865, the play was bought from the author by the comedian Toole ; and, when the action was brought, it had 'not been published or acted. In 1870, Grattan dramatized the story, which had appeared in Good Words, and afterward sold the play to the defendant, by whom 1 9 C. B. N. B. 755. 2 XI Id. 479. 8 Law Rep. 9 Q. B. 523. 458 THE LAW OP COPYRIGHT AND PLATRIGHT. it was repeatedly performed on the stage, under the name of Glory. It was admitted that the plays were substantially the same, and that the defendant's had been obtained from the story, and not from the plaintiff's Shop. The judgment of the court was that no rights, either in the woi-k dramatized or in the plaintiff's play, had been invaded by the defendant's dramatization ; that, by first publishing his composition as a book, an author forfeits the exclusive right to dramatize and to represent it on the stage ; and, though he should afterward dramatize his own published composition, he cannot thereby bar others from exercising the same privilege.^ If.the law was correctly interpreted in these cases, the unau- thorized dramatization of a work for public performance is not an infringement of the author's rights in that work, nor in a dramatization of it made by the author after the publication of the original. But, when the author's dramatization has preceded the publication of the novel, the latter cannot be dramatized, except by authority, without violating the author's rights in his play.^ If this is a sound exposition of the Eng- lish law, it must be adopted also in the United States. The statutes of the two countries are substantially the same on this point, and hence should be construed alike. The IiSLvr as Construed in England Criticised. — The law as it has been judicially declared has now been given. It remains to consider whether it has been soundly interpreted. The American courts are yet untrammelled by precedents on this point; they are not bound to follow the English decisions, unless those decisions are grounded on sound principles. The two doctrines affirmed in Reade v. Conquest, and recog- nized in Toole v. Young, that an unauthorized dramatization 1 See also Tinsley v. Lacy, 1 Hem. persons from reciting, or representing &-M. 747. as a dramatic performance, the whole 2 In Reade v. Conquest, 9 C. B. n. s. or any portion of a work of his com- 759, Erie, C. J., said : " Perhaps the position, is himself to publish his work only way in which the author of a in the form of a drama, and bring him- novel can protect himself from this self within the scope of dramatic copy - sort of infringement is by dramatizing right." But, according to the authority it himself." In Tinsley «. Lacy, 1 of Toole v. Young, an author cannot Hem. & M. 751, Vice-ChanceUor Wood protect his novel from unlicensed remarked obiter, that " the only way in dramatization by dramatizing it after which an author can prevent other its publication. ABRIDGMENTS, TEANSLATIONS, AND DBAMATIZATIONS. 459 of a novel for public performance is not a violation of any right in the novel, but that it is an infringement of the play- right in a dramatization made by the author before the publi- cation of the novel, are wholly inconsistent with each other ; and, if the former is sound, the latter is antagonistic to a fundamental principle of the law of copyright. Copyright protects only the thing copyrighted against unli- censed copying. Any number of persons may publish pre- cisely the same thing, provided no one copies the protected work of another. Whatever may be the likeness between two works, each author is entitled to protection for his own pro- duction, and is barred only from copying that of the other. The owner of a protected drama cannot prevent another from printing or performing a play essentially or identically the same, provided the latter has not been copied from the former. Two or more persons may translate, adapt, or dra- matize any work which is common property ; and, notwith- standing the likeness between any two versions, neither will infringe the other, provided each is the result of independent labor. Hence the playright in a drama bars every person without authority from copying that play : but it prevents no one from producing a play substantially the «ame from any common materials.^ Now, it is clear that, if the law does not protect a novel from unauthorized dramatization, the novel to this extent becomes common property. As far as dramatiza- tion for public performance is concerned, it is in precisely the same position as a novel which is not protected by copyright. This principle is in no wise affected by the question whether the author has or has not dramatized the novel, or whether his own dramatization has preceded or followed the publication of the novel. If an unauthorized dramatization does not violate any right of property in the work itself, it cannot infringe the author's rights in a drama which is formed from, or one which is the basis of, the published work. For the charge of pirating the authorized dramatization is fully met when it appears that the play complained of was obtained from a source open to all ; and the novel is common property for this purpose, if the law does not protect it from unlicensed dramatization. In this 1 See ante, pp. 205-208, 399-400. 460 THE LAW OP COPYRIGHT AND PLAYRIGHT. case, the author can have no better title to dramatize it than has any other person ; and he has no more right to monopolize his own work for this purpose than the work of another author. In other words, the author stands in this respect in the same relation to his own as to any other published novel, and his relation to his own is the same as that of all other persons to it. The distinction drawn by the judges in Toole v. Young between the facts in that case and those in Reade v. Conquest, to the effect that in the latter case Reade's play had been written and copyrighted before the novel was published, while in Toole v. Young the publication of the plaintiff's story had preceded its conversion into a play, has no foundation in rea- son or principle. Its plausibility only tends to mislead. The doctrine affirmed in Reade v. Conquest was based on the ground that dramatizing the novel, though no violation of the property in that work, was an indirect copying of Reade's drama, and there- fore an invasion of his rights therein. If this view of the law is sound, then the defendant in Toole v. Young was not less guilty of piracy, since in appropriating the plaintiff's story he had indi- rectly copied his drama ; and it was not less a case of indirect and piratical copying because the plaintifiF had published his story before adapting it for representation. The fallacy of this theory becomes apparent when it is considered, that in every case when two similar works are produced from common mate- rials, as two adaptations of a common novel, the later one might thus be considered to be an indirect copy of the earlier one. Such a doctrine is antagonistic to a fundamental principle of the law of copyright. The dramatization complained of in Reade v. Conquest was produced by independent labor, from what the court had declared to be a common source. It could not, therefore, be piratical on the ground that it was an indirect copy.i i See ante, p. 399. The court acted until the plaintiff's right should be on the same erroneous theory in Reade established at law ; but restrained the V. Lacy, 1 Johns. & H. 524, where the publication of the dramatization, as plaintiff complained of the publication being an invasion of the copyriglit in of a dramatization of his novel Never the plaintiffs drama. Gold. The de- too Late to Mend. Vice-Chancellor fendant's dramatization was clearly an Wood refused to grant an injunction infringement of the copyright in the on the ground of piracy of the novel, plaintiff's novel ; and this doctrine was ABRIDGMENTS, TRANSLATIONS, AND DRAMATIZATIONS. 461 In Reade v. Conquest, the court laid great stress on the fact that the person who dramatized the novel was not the author of the resulting play, and therefore had no right to represent it while playright existed in the drama of which Reade was the author.i This argument would apply with equal force if Reade had published only the novel, and not the play; for in that case the dramatist could not be considered the author of the play, which he had simply adapted from the novel. Moreover, the same theory would have reversed the judgment in Toole v. Young. Here the person who had prepared the play complained of had no better title to authorship than had the defendant in Reade v. Conquest. A dramatist is manifestly not the author of what he takes from the work of another. He is the author of the changes which he makes. But the con- trolling question of piracy in this, as in all cases, is not whether one person has by his own labor and skill made changes and improvements in the work of another, not whether he has reproduced it in a new and useful form, but whether he had the right so to use the original. On the question whether an unauthorized dramatization of a novel is an infringement of the playright in a dramatization made by the author, the authority of Toole v. Young is in direct conflict with that of Reade v. Conquest. The controlling facts were alike in both cases. Both were governed by the same principles. The two judgments could not be different without one being wrong. When an Unlicensed Dramatization for Performance is Piratical. It remains to consider the true principles which govern the question whether any right secured by the statute in a pub- lished work is violated by an unauthorized dramatization of that work for public performance. The determination of this afterward declared in Tinsley v. Lacy, had been violated. Por, if the drama- 1 Hem, & M. 747. When the court in tization of the novel was not a viola- Eeade u. Lacy refused an injunction tion of the copyright in the novel, it on this ground, it could not consist- could not infringe the copyright in the ently or properly grant one on the drama, ground that the copyright in the drama i 11 C. B. n. b. 492. 462 THE LAW OF COPYRIGHT AND PLAYRIGHT. question depends entirely on the fact whether the work drama- tized is a dramatic composition within the meaning of the law. All productions protected by the statute may be divided into those which are and those which are not dramatic compositions. In the latter, copyright alone vests. It gives to the owner the exclusive right to print and to sell copies ; but it does not pre- vent any person from making any public oral use of the work. But, in a dramatic composition, two distinct rights are secured ; viz., copyright and playright. The statute expressly confers the exclusive right of publishing, and the sole liberty of repre- senting it in public ; and expressly prohibits any person without license from either printing or performing it. In the case of a published work, these two rights vest simultaneously, and on the same conditions ; and whether one or both attach to any production depends solely on the fact whether the production is, within the meaning of the law, a dramatic composition. When any copyrighted work is found to be a dramatic compo- sition, it is protected not only by copyright, but also by play- right. The copyright, as in the case of any composition, is not infringed by any public oral use of the work ; but substan- tially the same production, or a material part of it, cannot be copied and represented on tlie stage, except by authority, without violating the playright. In this case, piracy is deter- mined by the same principles that govern when a material part of a copyrighted book is printed without authority. If, then, any work of fiction can be considered a dramatic composition within the meaning of the law, it is clear that the public performance of an unlicensed dramatization of it will amount to piracy ; if it is not a dramatic composition, any person is at liberty to dramatize it for public performance. Tlie only difficulty surrounding the question under consider- ation proceeds from the doubt as to what judicial construction will or should be given to the words dramatic piece in the English and dramatic composition in the American statute. I have endeavored elsewhere to show that dramatic composi- tions must be taken in law to embrace a wider range of pro- ductions than what are nominally dramas, or what are written expressly for stage representation ; that a work of fiction, if it has the essential qualities of a drama, is entitled to protection ABRIDGMENTS, TRANSLATIONS, AND DRAMATIZATIONS. 463 as a dramatic composition, although not expressly designed for the stage, and although changes in its form may be necessary to adapt it for that purpose.^ That this view is in accordance with right and justice will scarcely admit of two opinions. An author is entitled to all the fruits of his genius or his industry, to his share of all the profits arising from any public use what- ever of his production. Protection adequate to secure these results should be expressly provided by the legislature, and not left to the conflicting opinions of the courts. But we have to consider the law as it has been made, and not as it should have been made. While the statute must be interpreted, not arbitrarily, but in accordance with recognized principles of construction, it should be construed in case of doubt as to its meaning with that liberality which tends to realize the primary object of the legislature. In granting the right of publicly performing dramatic compositions, the intention of the legislature may fairly and properly be taken to have been to secure, in the full enjoyment of the fruits of his literary labor, every author whose production is useful and valuable for dramatic purposes. As- suming this to be the true object of the statute, that object will in many cases clearly be defeated if works of fiction are exposed to unlicensed dramatization. Of course, every work of fiction is not a dramatic composition. Some are wholly descriptive, and incapable of dramatic representation. But a novel which can be dramatized and adapted for acting must be dramatic in character, and have all the essential qualities of a drama. Such works are often of the highest value for dramatic purposes ; and by changes, in many cases slight, they may be transformed into acting plays. No argument would seem to be necessary to show that the law intended to secure the advantages arising from this use of any production to him who is entitled to them, and to whose genius the creation of the work is due. Without underrating the skill of the dramatist, it is manifest that the life and essence of a dramatized work are due to the author of the original, and not to him who adapts it for the stage. The interesting plot, the dramatic situations, the well-drawn characters, the brilliant dialogue, are 1 See Chap. XIV. 464 THE LAW OF COPYRIGHT AND PLAYRIGHT. simply transferred, often with little variation, from the original production to the play. The dramatist invents nothing, creates nothing. He simply arranges the parts, or changes the form, of that which already exists. A work of fiction is often the fruit of genius. A stage-manager can dramatize it. Uncle Tom's Cabin was the most successful American novel of this century. Its success as a drama was scarcely less remarkable. In both forms it was substantially the same, and was the crea- tion of one mind. It is clear, then, that in a large sense the dramatist has no claim to the authorship of what he has simply adapted for representation ; and that, in making this use of a work of which he is not the author, he avails himself of the fruits of genius and industry which are not his own, and takes to himself profits which belong to another. It is true that, in adapting a literary composition for the stage, the dramatist contributes his own labor and skill, which are often of much value, and for the results of which he may justly claim protection when he has not thereby invaded the lawful rights of another. Any one is free to dramatize a work not protected by copyright, or a copyrighted publication with the consent of the owner. In such case, the dramatist takes property which he has a right to use, and becomes entitled to protection for the changes and improvements which he makes. He may thus acquire the exclusive right of publishing his own version in print, and the sole liberty of performing it in public. But it is conceded that he cannot publish an unli- censed dramatization of a copyrighted work without infringing the copyright in tlie original.^ On the same principle, he cannot publicly represent the dramatization without violating the author's right to this use of his production. No changes made in what is conceded to be a dramatic com- position will give to any person the right to perform it without the author's consent.^ It may be so faulty in construction that radical and extensive changes are necessary to prepare it for the stage. A drama in name and structure, it must be drama- tized, so to speak, before it can be successfully performed. It is clear that, however extensive may be the required altera- 1 See ante, ■p.i5Q. 523; Shelley v. Ross, Ibid. 531, note ; a Levy v. Rutley, Law Rep. 6 C. P. Daly v. Palmer, 6 Blatchf. 256. ABRIDGMENTS, TRANSLATIONS, AND DRAMATIZATIONS. 465 tions, no one can lawfully take this liberty with a copyrighted dcama without the author's consent. The principle is not different in the case of a work of fiction which may not be in name, but is in substance, a dramatic composition. In other words, the changes necessary to prepare an undisputed drama for performance are sometimes not less extensive or less radi- cal than are required to adapt a novel for the stage. To make this unlicensed use of a copyrighted drama is' piracy. Is it less so when the original is a work of fiction ? So, a drama, besides the main plot and characters, may contain a subordi- nate, or " side," series of incidents, which are entirely indepen- dent of the principal action, and may in themselves constitute a complete farce or play. In other words, the work may con- tain a drama within a drama. To separate one from the other, and represent it on the stage as an independent play without license, would be a clear case of piracy. In what respect is it different in principle to evolve a .play from a novel ? If the latter contains a drama, or the essence of a drama, it is a dramatic composition ; and the author is entitled to the sole liberty of taking out such drama and representing it on the stage. The judgment both in Reade v. Conquest and in Toole v. Young turned solely on the point whether the story in question was a dramatic piece within the meaning of the law. This principle was the key to the decision in each case ; and in each it was entirely overlooked or disregarded by the court. If the novel was a dramatic composition, there vested in it both copy- right and playright. The former right was violated by the printing, and the latter by the representation, of an unlicensed dramatization. It was immaterial whether or not substantially the same production had been published also as a drama by the author, or whether or not the original had been dramatized by him. Was, then, Reade's novel. Never too L£|,te to Mend, or Hollingshead's story, Not Above his Business, a dramatic piece ? When it is considered that the former was simply a drama reproduced as a novel, and that the latter had been written in dramatic form with a view to its representation on the stage, there would seem to be little doubt that both were dramatic pieces within the meaning of the law, which had been 30 466 THE LAW OP COPYRIGHT AND PLAYRIGHT. construed to embrace even a simple song, and, in the language of Chief Justice Denman, " any piece which could be called dramatic in its widest sense ; any piece which, on being pre- sented by any performer to an audience, would produce the emotions which are the purpose of a regular drama, and which constitute the entertainment of the audience." ^ If the performance of an unauthorized dramatization is an infringement of the right secured in a novel, it is a violation of the playright in an authorized dramatization of the novel. This fact has little practical importance, when the same person, as in Reade's case, is the owner of both the novel and the dramatization ; but it removes an apparent difficulty in a case like that of Toole v. Young, when the owner of the dramati- zation and the owner of the work dramatized are different persons. In such case, it might be contended that the owner of the play is not the proper person to maintain an action for the unlawful dramatization of the novel. This may be an apparent, but is not a real, objection. To dramatize a novel for public performance is no infringement of the copyright in the novel. Such a dramatization can be unlawful only on the ground that it is a violation of the owner's exclusive right to the public representation of the work. I have maintained that the author has this right before he has dramatized his novel, and that he has it afterward. But the right, whether lodged in the novel or in the dramatization, is one and the same ; and it is equally violated whether ihe novel or the dramatization is made the means of its invasion. When the author has himself dramatized the novel, and made an absolute assignment of the play, he has parted with, and the buyer has acquired, the exclusive right of representing that work ; and this, as said above, embraces the entire right of representation, whether lodged in the novel or in the dramatization. Having thus di- vested himself of this right, the author is barred from making, or authorizing another to make, a second dramatization of his novel. And any unauthorized adaptation of the novel for pub- lic performance is a violation of the right to represent what is contained in the novel. This right is vested in the buyer of 1 Russell V. Smith, 12 Q. B. 236. See also Clark v. Bishop, 25 L. T. n. s. 908. 467 the authorized dramatization ; and hence he is the proper per- son to maintain an action for its violation, whether the novel or the dramatization is made the means of such violation. The same is true when the author has made an absolute assignment of the right to dramatize his work and the dramatizing is done by the buyer. But of course the case is different when the author has not absolutely parted with the right of representa- tion, but has merely licensed another to use the dramatization. In such case, the ownership of the right of representation con- tinues in the author. 468 THE LAW OP COPYRIGHT AND PLAYRIGHT. CHAPTER X. REMEDIES m LAW FOR THE INFRINGEMENT OF COPY- RIGHT. Great Britain. — Books. The 8 Anne, c. 19, provided that the printer, publisher, im- porter, or seller of a pirated book should forfeit every copy or sheet to the owner of the copyright, by whom it was to be destroyed, and should further be liable to a penalty of one penny for every copy or sheet found in his possession, — one half to go to the queen, and the other half to any person who should sue for it.^ But there was a proviso which allowed any person to import or sell " any books in Greek, Latin, or any other for- eign language, printed beyond the seas." ^ This provision, as far as it permitted the importation of books first printed in Great Britain and reprinted abroad, was annulled in 1739, by the 12 Geo. II. c. 36, which, in the case of the importing of such works, provided for a forfeiture of the copies which were -to be destroyed, and imposed a heavy penalty, to be sued for by any person, and to be divided between the king and the per- son suing. This act, which was to remain in force for a lim- ited time, was continued by several succeeding statutes.^ Until 1801, there was no statute giving to the owner of tl^e copyright an action for damages sustained by the piracy of his book. But such action would lie on the principle that, when a statute secures a right and makes no specific provision for its protec- tion, the common-law remedy is available. In 1801, however, the 41 Geo. III. c. 107, gave to the owner of the copyright a special action on the case for damages, increased the, penalties to threepence for each pirated copy, and provided for the for- i s. 1. 2 s. 7. » 20 Geo. II. c. 47 ; 27 Geo. II. c. 18; S3 Geo. H. c. 16. REMEDIES IN LAW. 469 feiture of copies.^ It also re-enacted penalties and forfeitures in the case of the importation of books first published in Great Britain and reprinted abroad.^ Remedies Provided by Existing Statute. — From 1801 to 1842, the law continued substantially the same with respect to the penalties and forfeitures imposed on the offender, and the reme- dies given to the owner of the copyright. But by the 5 & 6 Vict. c. 45, passed in the latter year, an important change was made. From the reign of Anne till that of Victoria, the for- feitures and penalties were intended as a punishment of the offender, rather than a direct benefit to the owner of the copy- riglit ; since any person might sue for the penalties, and the forfeited copies were required to be destroyed. By the statute of Victoria, the penalties, except in the case of the importation of books originally published in England and reprinted abroad, are abolished. The action for damages is continued ; ^ and piratical copies of a book are declared to be the property of the author, who is empowered to recover them, or damages for their detention.* The provisions of this statute apply to all literary productions, musical compositions, maps, charts, and plans.^ Action for Damages against Unla'vrful Printing, Importing, or Selling. — By section 15, it is enacted, "that if any person shall, in any part of the British dominions, after the passing of this act, print or cause to be printed, either for sale or exportation, any book in which there shall be subsisting copy- right, without the consent in writing of the proprietor thereof, or shall import for sale or hire any such book so having been unlawfully printed from parts beyond the sea, or, knowing such book to have been so unlawfully printed or imported, shall sell, publish, or expose to sale or hire, or cause to be sold, published, or exposed to sale or hire, or shall have in his pos- session, for sale or hire, any such book so unlawfully printed or imported, without such consent as aforesaid, such offender shall be liable to a special action on the case at the suit of the proprietor of such copyright." This section prohibits the unauthorized printing of a copy- 1 s. 1. 2 s. 7. ' See definition of book in b. 2. As 8 8. 15. * s. 28. to maps, charts, and plans being witiiin this statute, see ante, p. 174. 470 THE LAW OP COPYRIGHT AND PLATRIGHT. righted book, " in any part of the British dominions," and the importation or sale of " any such book so having been un- lawfully printed." The words, " so having been unlawfully printed," in the connection in which they are here used, natu- rally and correctly refer to copies printed in the British dominions without the written consent of the author ; since the printing in a foreign country of an English copyrighted book is not unlawful.^ Hence, a strict construction of the section would limit its application to books unlawfully printed in the British dominions, and the prohibition would not extend to the import- ing or selling of piratical copies printed in a foreign country. But, by books " unlawfully printed," Parliament doubtless meant those printed " without the consent in writing of the proprietor " of the copyright ; which, of course, would apply to books printed in a foreign country, as well as those printed in Great Britain.^ Every preceding act properly prohibited print- ing or importing without the written consent of the author, and the sale of copies which had been so printed or imported.^ Thus, provision was expressly and clearly made against the importation and sale of piratical copies printed abroad. There is little doubt that Parliament intended to continue this pro- vision in the statute of Victoria, and that what is above pointed out is a defect which resulted from a careless change in the language copied from the preceding acts. The statute will probably be judicially construed according to this intent, rather than its literal reading. The statutory remedy is given, not only against the person who actually sells piratical copies, but against any person who exposes such copies to sale or hire, or has them in his posses- sion for sale or hire. Knowledge of Piracy. — Neither the printer nor the importer 1 " How can it be unlawful," asked lows, except that, instead of repeating Chief Justice Wilde, " to print a work the words, ' without the consent in abroad?" Boozey w. Tolkien, 6 C. B. writing,' to each condition of in- 480. fringement, it uses the words, ' so un- 2 In Norello v. Sudlow, 12 C. B. lawfully printed,' &c., which perhaps 189, Talfourd, J., said : " The Ian- were incorrectly adopted to avoid guage, however, of the clause [s. 15, repetition." 5 & 6 Vict. c. 46] is not new ; it is 3 8 Anne c. 19, s. 1 ; 41 Geo. HI. c. adopted from the corresponding section 107, s. 1 ; 54 Geo. III. c. 156, s. 4. of 54 Geo. III. 0. 156, s. 4, which it fol- RBMEDIBa IN LAW. 471 can successfully plead that he did not intentionally or know- ingly violate the copyright of another ; but the publisher or the seller is not liable, unless he knows that the book was unlaw- fully printed or imported.^ If the publisher is also the printer or the importer, as is not unfrequently the case, ignorance of wrong will be no excuse for his unlawful printing or importing. Forfeiture of Copies. — A further remedy against piracy is given by section 23, which provides that all copies of a book which shall have been printed or imported without the written consent of the owner of the copyright shall be deemed to be the property of such owner, who, after demand in writing, shall " be entitled to sue for and recover the same, or damages for the detention thereof, in any action of detinue, from any party who shall detain the same, or to sue for and recover damages for the conversion thereof in an action of trover." The owner of the copyright is here entitled to claim as his property piratical copies from any person who either has them in his possession, or who has unlawfully converted them to his own use. He may sue for the recovery of the copies found in tlie possession of tlie wrong-doer, and for the value of those which have been unlawfully disposed of. In Delf v. Delamotte, the Court of Chancery ordered the defendant to deliver to the plaintiff all unsold copies, and to pay the net profits on those which had been sold. The plaintiff claimed the full value of the latter ; but the court said that, if he wanted more than the net profits, he must seek his remedy in a court of law.^ 1 Colburnw. Simms, 2 Hare, 543, 557; property in the copies which hare not Leader v. Strange, 2 Car. & Kir. 1010. been sold, and which by the present See ante, pp. 401-404. law are declared to be the property of 2 3 Jur. N. 8. 933; 8. c. 3 Kay & J. the true proprietor of the copyright, 581. " This point," said Wood, V. C, and are handed over to him according- " is new, and, I think, is now taken ly ; whereas under the former law they for the first time. On all tlie occa- were always destroyed, so that the in- sions hitherto in which a dispute of jured author could never utilize them, this sort has arisen, the proprietor of Onthe whole, however, I do not see why the copyright has never in any one re- a court of equity should give the plain- ported case obtained more than the tiff more than it has always given him profits which the defendant has made by leaving him to get what further damages the sale ofthe piratical copies of the book, he may at law, by an action of trover It may be that it has been intended for the conversion." 3 Jur. n. s. 933. to introduce as great an alteration See also Colburn v. Simms, 2 Hare, in respect of the proceeds of the copies 543, which was decided under the which have been sold as in the right of statutes in force before 5 & 6 Vict. o. 45. 472 THE LAW OP COPYRIGHT AND PLAYRIGHT, Penalties against Unlawful Importing. — Section 17 prohibits the unauthorized importation, into any part of the British do- minions, of any copyrighted book first published in the United Kingdom and reprinted in a foreign country ; and declares that every such book which shall be so imported for sale or hire, or shall be sold, published, or exposed to sale, or let to hire, by any person knowing it to have been so imported, " shall be forfeited, and shall be seized by any officer of customs or ex- cise, and the same shall be destroyed by such officer." It further provides that the offender, being duly convicted, shall forfeit ten pounds for every offence, and double the value of every copy which he has unlawfully imported, published, sold, or exposed to sale ; " five pounds to the use of such officer of customs or excise, and the remainder of the penalty to the use of the proprietor of the copyright." Under a similar provision in 12 Geo. ll. c. 36, it was held that two penalties might be incurred on the same day, for two distinct sales.^ I Brooke v. Milliken, 3 T. R. 509. I shall not attempt to explain the pro- visions of a statute which in one part (s. 23) provides that copies of a hook piratically imported shall become the property of the owner of the copyright, and in another (s. 17) declares that such copies shall be seized and de- stroyed by any officer of customs or excise ; which in one part (s. 23) enacts that the wrong-doer shall be liable to the owner of the copyright for the value of every unlawfully im- ported copy which he has sold, and in another (s. 17) says that he shall for- feit double the value of every such copy sold. The highly penal provi- sions of s. 17 not only cause confusion and uncertainty as to the meaning of the law, but they are unnecessary and out of place in a statute which otherwise amply provides for the protection of literary property against the importa- tion of pirated copies. I cannot regard the copying of this provision in the 5 & 6 Vict. c. 45, other- wise than as an instance of the loose- ness with which statutes are too often drawn. The provision was originally enacted in 1739, and was designed not for the prevention or redress of piracy, but simply to increase the revenues and protect the industrial interests of the kingdom. This is manifest from the preamble of the statute, 1'2 Geo. II. u. 36, which recites that " the duties payable upon paper imported into this kingdom, to be made use of in print- ing, greatly exceed the duties payable upon the importation of printed books, whereby foreigners and others are en- couraged to bring in great numbers of books originally printed and published in this kingdom and reprinted abroad, to the diminution of his Majesty's rev- enue, and the discouragement of the trade and manufacture of this king- dom." " The prevention tliereof for the future," was the avowed object of the act. It was to continue in force only for seven years, and was renewed for short periods by several other acts, which had no reference to literary property. 20 Geo. II. c. 47 ; 27 Geo. II. c. 18 ; 33 Geo. II. c. 16. The pro- vision was inserted, for what reason is not apparent, in the copyright act 41 Geo. III. c. 107, s. 7, passed in 1801 ; REMEDIES IN LAW. 473 Common-Law Remedies Available under Statute. — It is a recognized principle of statutory construction that where a right, previously existing by the common law, is secured by a statute which provides no remedy for its protection, the common-law remedies are available ; and where the statute pre- scribes penalties and forfeitures, but does not provide a remedy for damages, the common-law action for damages will lie.* This rule has been applied in the interpretation of the copyright statutes. The statute of Anne imposed penalties and forfeit- ures for the violation of copyright, but did not give an action for damages. Such action, it was held, was afforded by the from which, doubtless because it was found in that act, it was copied in the ex- isting statute of Victoria. While books piratically imported were by this pro- vision made subject to forfeiture and to be destroyed by the customs officer, they were also by the copyright stat- utes in force before the 6 & 6 Vict. o. 45, — viz., 8 Anne, c. 19, s. 1; 41 Geo. III. c. 107, s. 1 ; and 66 Geo. III. c. 156, s. 4, — required to be forfeited to the owner of the copyright, to be by him destroyed. In eittier case, therefore, they were subject to destruction. But 5 & 6 Vict. u. 45, as has been seen, en- acts in one section that they shall be- come the property of the owner of the copyright, and in another that they shall be destroyed by any officer of customs or excise. The matter has been still further complicated by the Customs Laws. The latest Consolidation Act, 39 & 40 Vict. 0. 36, passed in 1876, prohibits the im- porting of certain enumerated articles, and declares that they " shall be for- feited, and may be destroyed or other- wise disposed of as tlie commissioners of customs may direct." s. 42. Among the things thus enumerated are " Books wherein the copyright shall be first subsisting, first composed, or written or printed, in the United Kingdom, and printed or reprinted in any other country, as to which the proprietor of such copyright or his agent shall have given to the commissioners of customs a notice in writing, duly declared, that such copyright subsists, such notice also stating when such copyright will expire." Section 44 enacts that " The com- missioners of customs shall cause to be made, and to be publicly exposed at the custom-houses in the several ports in the United Kingdom, lists of all books wherein the copyright shall be subsisting, and as to which the pro- prietor of such copyright, or his agent, shall have given notice in writing to the said commissioners that such copy- right exists, stating in such notice when such copyright expires, accompanied by a declaration made and subscribed before a collector of customs or a jus- tice of the peace, that the contents of such notice are true." Section 45 provides that persons complaining of the prohibition of books in the copyright lists may appeal to a judge in chambers. Section 152 prohibits the importa- tion into the British possessions abroad of foreign reprints of English copy- right books ; but provides that " noth- ing herein contained shall be taken to prevent her Majesty from exercising the powers vested in her by the 10 & 11 Vict. c. 95, intituled ' An Act to amend the law relating to the protection in the colonies of works entitled to copy- right in the United Kingdom,' to sus- pend in certain cases such prohibition." ' See Sedgwick, Construction of Stat. & Const. Law (2d ed., by Pom- eroy), 75, 341, 342 ; Potter's Dwarris on Statutes, 185, 219; Maxwell, Inter- pretation of Statutes, 368. 414 THE LAW OP COPYRIGHT AND PLAYRI6HT. common law.^ When the statutory are coextensive with the common-law remedies the question may arise, whether the for- mer are exclusive or cumulative. But when the statutory remedies are not complete, nor adequate for the protection of the right conferred, the common-law remedies have been held to be in force. Thus, by section 15 of 5 & 6 Yict. c. 45, the printer is made liable to an action for damages, only when the printing is " for sale or exportation ; " and the importer, only when copies are imported " for sale or hire." No remedy is given against any person who prints or imports for gratuitous distribution, or who gratuitously distributes copies printed or imported without authority. But, in Novello v. Sudlow, it was held that an action for damages would lie under the statute for the gratuitous distribution, among the members of a singing society, of lithographic copies of a musical composition.^ So in Rooney v. Kelly, where the plaintiff declared that parts of his book had been pirated, it was contended for the defendant that section 15 of 5 & 6 Vict. c. 46, prohibited the publication only of a book, and that the plaintiff should have alleged that his entire work had been taken. But the Irish Queen's Bench, without approving this view of that section, expressed the opinion, that, "independently of the 15th section, the proprietor of the copyright in a book may maintain an action for the infringement of such cop^'right ; " that, the right being secured by the statute, " it is clear that a common-law right of action would attach upon any invasion of such statutable right, even though it be invaded by the jjrinting, publishing, &c., of only a part, but not the entire, of the proprietor's work, and though the remedy given by the 15th section did not extend to the case of such partial printing or publication," &c.^ When Common-Law Kemedies not Available. — But the prin- ciple that the common law affords a remedy when one is not provided by the statute does not apply in the case of any right 1 Beekford v. Hood, 7 T. E. 620; ' 12 C. B. 177. See also Alexan- Cadell V. Robertson, 5 Pat. App. Cas. der v. Mackenzie, 9 Se. Sess. Cas. 2d 493 ; Roworth v. Wilkes, 1 Camp. 94, ser. 748 ; Boozey v. Tolkien, 5 C. B. 98; Colburn v. Simms, 2 Hare, 543, 476. 659. See also Thompson v. Symonds, ' 14 Ir. Law Eep. N. s. 158, 171, 172. 5 T. R. 41 ; Sheriff v. Coates, 1 Euss. 6 My. 159, 167. REMEDIES IN LAW, 4T5 not secured by the statute. The copyright in a book secured by the 5 & 6 Vict. c. 45, is the exclusive right of printing or oJ;herwise multiplying copies ; and the penalties, forfeitures, and remedies provided by that statute are directed against the printing, importing, and selling of piratical copies. Hence, the unauthorized public reading, representation, or perform- ance of any composition is not a violation of the copyright therein ; and, in such case, the person injured is not entitled to the remedies provided for the infringement of copyright.^ In the case of a dramatic or musical composition, such wrong is an invasion of playright which is expressly secured by statute, and for which specific remedies are provided. The law on this subject is considered under the head of playright.^ So the unauthorized public exhibition of a copy of an engrav- ing was held not to be a violation of 17 Geo. III. c. 57.^ But in the case of paintings, drawings, and photographs, the statute expressly prohibits the exhibition of piratical copies.* In the case of sculpture, models, and casts, the statute gives to the owner of any such article " the sole right and property " therein for fourteen years " from first putting forth or publish- ing the same." ° The right thus secured is not restricted to printing or the circulation of copies ; but is coextensive with the common-law property, which embraces the exclusive right of publicly exhibiting the work. Hence, although the statute does not expressly provide a remedy against unlawful exhi- bition, the common-law remedy may be held to be available, on the principle that when a right is secured the legislature is presumed to have intended complete remedies for its protection. Limitation of Actions. — Section 26 of 5 & 6 Vict. c. 45, pre- scribes that " all actions, suits, bills, indictments, or informa- tions for any oifence that shall be committed against this act, shall be brought, sued, and commenced within twelve calendar months next after such offence committed, or else the same 1 Coleman u. Wathen, 5 T. R. 245 ; ' See Chap. XVI. Eeade v. Conquest, 9 C. B. n. s. 775 ; ' Martin v. Wright, 6 Sim. 297. Tinsley o. Lacy, 1 Hem. & M. 747 ; « 25 & 26 Vict. c. 68, ss. 6, 7. Clark t. Bishop, 25 L. T. N. a. 908. ^ 54 Geo. III. c. 56, s. 1. See also Murray v. EUiston, 5 Barn. & Aid. 657 ; Martin v. Wright, infra. 476 THE LAW OF COPYRIGHT AND PLAYRIGHT. shall be void and of none effect ; " but pi-ovides that this limi- tation shall not apply to actions respecting copies of books required to be delivered to the British Museum and the four other libraries. The question has been raised, whether the limi- tation here prescribed applies only in the case of penalties and forfeitures, or extends also to actions for damages. The doubt relates to the sense in which the word offence is used. The language of section 26, above quoted, is copied verbatim from section 10 of 8 Anne, c. 19, except that the limitation is changed from three to twelve months. But the statute of Anne imposed penalties and forfeitures, without providing an action for damages ; hence, in an early Scotch case, it was held that the limitation clause of the act applied only to the penalties and forfeitures, and not to actions for damages or injunctions. ^ The same view of the statute of Victoria was taken in a more recent case by the Court of Session in Scotland.^ In Hogg V. Scott, it appeared that the defendant had pub- lished, in 1868, the first, and in the latter part of 1862, the second, edition of a book containing matter pirated from the plaintiff's works. He also intended to publish a third edition. In August, 1873, the plaintiff applied for an injunction to restrain the defendant from further publishing or selling any copies of such piratical work. One of the defences set up was that the statutory limitation applied to all actions and suits, whether for the penalties or damages or injunctions, and hence that the plaintiff's suit was barred by lapse of time. Vice-Chancellor Hall expressed the opinion, that the word offence was not used in section 26 in the same sense as in sec- tion 15, which gives an action on the case for damages ; that the limitation prescribed was intended to apply only in cases of penalties and forfeitures ; that it could not operate to destroy the property secured ; and that an action for damages, or a suit for an injunction, might be maintained, although more than a year had passed since the wrong was done. But, however this might be, he had no doubt that the defendant could not go on committing new wrongs or offences by continually publishing and selling the piratical work, in violation of the 1 Clark V. Bell, 10 Mor. Diet, of " Stewart v. Black, 9 So. Sess. Caa. Deo. Lit. Prop. App. p. 9. 2d ser. 1026. EEMEDIBS IN LAW. 477 plaintiff's right of property, granted.^ ' Law Rep. 18 Eq. 444. The Vice- Chancellor said : — " I cannot allow the objection taken to the plaintiff's right to sue, because more than twelve months elapsed be- fore he filed a bill in this court. By the 3d section of the statute, a property is created in an author's work which jnima facie is to endure for a term cer- tain, and that property will remain in the author or his representatives, as owners of it, till it be taken away from him or them. The argument that, if a case arises for a suit in respect of the au- thor's right to his property, and the author does not commence his suit within twelve montVis, that therefore his property is gone, I do not agree with. I do not find that clearly ex- pressed in the statute, and I cannot put such a construction upon the 26th section. The 15th section gives to an owner of copyright a special action on the case in respect of any piracy. The remedy so provided is apparently a cumulative one ; but whether it be so or not is not very important. The rem- edy is given against the person who is called the ' offender,' and the act spoken of as the ' offence ' is the print- ing for sale or exportation of any book in which there shall be subsisting copy- right. Mr. Morgan, in his argument, contended that the court ought to put upon the word offence in the 26th sec- tion the same construction as it bears in the 15th section of the statute. If that were a reasonable construction, it might be adopted ; but, looking at the other sections in the statute which re- fer to penalties, I do not think it would be reasonable. There is nothing to be found in them about any ' offence ' in the sense contended for on the part of the defendant. If the book which has been improperly published by the de- fendant contains property belonging to the plaintiff, the owner of copyright, I do not see how it can be successfully contended that he is suing in respect of an offence in the sense urged on the part of the defendant. The plaintifi'is The injunction was therefore suing in respect of his copyright ; that is his property. The 26th section is no doubt not very happily framed ; but I am of opinion that, on the true construc- tion of that and the other sections of the statute, the ' offence ' contemplated by it must be the doing, in contravention of its provisions, of something expressly prohibited by them. " The real question is, What is the ' offence ' intended by the statute ■? It is the printing for sale or exportation of any work or part of a work, by a person wlio is not the owner of the copyright of that work, and without the consent of the owner. The non- suing by the owner of the copyright in respect of a particular edition, or part of an edition, of the defendant's work, is one thing ; and even if it could be said that so far the owner's remedy was barred by his own neglect, still I find nothing in the statute which states that the person who has already pub- lished the edition, or part of the edition, complained of, may go on doing so, and that, if he does, the owner has then no remedy for such further ' offence.' In reference to this ques- tion, I may add that the Scotch cases referred to by Mr. Fischer are not to be disregarded. They were, no doubt, decisions in reference to books pub- lished before the passing of the statute ; still they seem to me to be quite con- sistent with good sense and the reason- able interpretation of the statute. The right of the owner of the copyright to his property in it is not to cease be- cause one copy of the work, which without his sanction contains the pira- cies, has been sold and disposed of without any complaint on his part. He is not on that account to lose all his property in his copyright; therefore I hold, in accordance with the decisions referred to, and on the construction of the statute, that the plaintiff has not lost his right to sue." Ibid. 450. " The offence is committed every time a copy is sold." James, V. C, Jarrold v. Heywood, 18 "W. R. 281. 478 THE LAW OF COPYEIGHT AND PLATRIGHT. Engravings and Prints. Penalties and Forfeitures. — For piracy of engravings and prints, penalties and forfeitures are prescribed by 8 Geo. 11. c. 13, and an action for damages is given by 17 Geo. III. c. 57. The former act declares, that if any person shall engrave, etch, or work, or in any other manner copy and sell, " in the whole or in part, by varying, adding to, or diminishing from the main design," or shall print or import for sale a print, without the written consent of the owner of the copyright signed in pres- ence of two witnesses, or shall sell or expose to sale a print knowing it to have been so unlawfully printed or imported, such offender shall forfeit the plates and the prints to the owner, to be by him destroyed, and shall farther pay five shil- lings for every print found in his custody ; the penalty recovered to be equally divided between the king and the informer.^ Action for Damages. — The 17 Geo. III. c. 57, provides that every person shall be liable to an action for damages who shall engrave, etch, or work, or in any other manner copy, in the whole or in part, by varying, adding to, or diminishing from the main design, or shall print or import for sale, or shall publish, sell, or otherwise dispose of any copy or copies of a print or prints " which hath or have been or shall be engraved, etched, or drawn or designed in any part of Great Britain, without the express consent of the proprietor or proprietors thereof first had and obtained in writing " signed in presence of two witnesses.^ TATlien Seller is Liable. — The former statute imposes penalties and forfeitures on such seller only who sells or exposes to sale copies which he knows to have been unlawfully printed or im- ported. The meaning of 17 Geo. III. c. 57, is not satisfacto- rily clear on this point. There is little doubt that the seller is made liable to an action for damages although he is ignorant of the piracy ; and the statute has been so construed.* But 1 g, 1. established," said Baron Parke, " the 2 In Moore v. Clarke, the question law would imply damage." 9 Mees. & was raised, but not decided, whether an W. 694. action can be maintained under this ' West w. Francis, 5 Barn. & Aid. statute without proof of actual dam- 737; Gambart «. Sumner, 6 Hurl. & age. " Perhaps if the piracy were N. 5. See ante, p. 470. REMEDIES IN LAW. 479 the question has been raised, whether a seller is liable for the unauthorized sale of copies which have not been unlawfully printed or imported. In Murray v. Heath, it appeared that the plaintiff had employed the defendant to engrave plates from certain drawings. The drawings were the property of the plaintiff, and the plates had been prepared for his exclusive use ; but he permitted the defendant to retain one hundred copies of the prints, on the express condition that he was not to sell them. Afterward, the defendant became bankrupt, and the copies passed to his assignees, who advertised them for sale. In the action for damages, wherein the assignees were codefend- ants, the defence was set up, that the copies had not been un- lawfully printed or imported, and therefore their sale was not piracy. The court thought that " reading the statute 17 Geo. III. c. 57, alone, it would be very difficult to answer the argu- ment urged on behalf of the plaintiff;" but construing tlmt act in connection with the two statutes, 8 Geo. II. c. 13, and 7 Geo. III. c. 38, which it recited, it was held that the sale com- plained of, though a breach of contract, was not a violation of copyright.^ ' 1 Barn. & Ad. 804. It is not satis- a certain number of impressions from factorily clear, from the opinions of a plate engraved by himself, but which the judges, on what ground this decl- he had contracted to engrave for the sion was based. Lord Tenterden, C. J., use of another." Ibid. 810. interrupting counsel, who had referred " Taking the statute 17 Geo. III. to the clause of 17 Geo. III. c. 57, c. 67," said Littledale, J., " in con- directed against piracy, said : " Can junction with the other statutes which the clause be understood to apply to it recites, and whereby a print-seller, or prints taken from the original plate ? other person selling pirated prints, is The prints were not engraved without made liable to forfeit the plates on the consent of the proprietor." Ibid, which they are copied, to the proprie- 808. In delivering his opinion, the tor of the originals, I think it is mani- same judge, after referring to 8 Geo. II. fest that the last statute does not applj' c. 13, and 7 Geo. III. c. 38, continued : to the case of taking a print unlawfully " The question therefore is, whether the from a lawful plate." Ibid. 811. act imputed to the defendant be one for The 17 Geo. III. c. 57, taken in which he would have been liable to the connection with the prior acts, may forfeiture imposed by either of the re- admit of the construction that a seller cited statutes. If it be not, he is not is not liable to an action for damages, liable to the action on the case given unless the copies sold were unlawfully by 17 Geo. III. c. 57. Now, both the printed or imported. This is the only recited statutes are manifestly confined ground on which the- above decision to prints struck off from engravings can be sustained. If the court intended pirated from other engravings. The to hold that the defendants were net present case, therefore, is not within guilty of piracy, because the copies either ; for here the first engraver took had been printed from the original 480 THE LAW OF COPYRIGHT AND PLAYRIGHT. Copying by Litho^aphy, Photography, or other Processes Un- lawful.— The 15 & 16 Vict. c. 12, s. 14, declares that the provisions of the several acts relating to copyright in prints, shall " include prints taken by lithography, or any other me- chanical process by which prints or impressions of drawings are capable of being multiplied indefinitely." Although photography had not been discovered when the statutes for the protection of copyright in engravings were passed, these statutes have been construed to prohibit unlawful copying by that or any other process by which copies may be indefinitely multiplied.^ The same construction has been given to the American statute.^ Copies Made by Hand. — The question was raised, but not de- cided, in Gambart v. Ball, whether the unauthorized copy of an engraving made by hand is a violation of the copyright secured by the statutes. Mr. Justice Willes expressed the opinion that plates the principle is not sound. Tlie governing question is.whether the print- ing is done with or without due author- ity. If the latter, it is clearly imma- terial whether the copies are printed from the original or pirated plates. Stevens v. Gladding, 17 How. 447; Prince Albert o. Strange, 2 De G. & Sm. 652, on ap. 1 Mac. & G. 25. Moreover, the court, as will be seen from the language of the Chief Justice above quoted, seems to have held that a person is not liable to an action under 17 Geo. III. c. 57, unless he is also liable to the penalties under the two preceding statutes. But this posi- tion is indefensible, and is opposed by West i). Francis, 5 Barn. & Aid. 737, and Gambart o. Sumner, 5 Hurl. & N. 5, wherein it was held that a seller ignorant of piracy is liable to an action under 17 Geo. III. c. 57, although he is not subject to the penalties under the earlier statutes, unless he sells prints knowing them to be piratical. And in Graves v. Mercer,. 16 W. R. 790, it was held that an action for damages might be brought under 17 Geo. III. c. 57, without regard to the limitation of time prescribed by 8 Geo. II. c. 13. 1 Gambart ii. Ball, 14 C. B. N. s. 306 ; Graves v. Ashford, Law Eep- 2 C. P. 410. In the latter case, Kelly, C. B., said: "It is obvious that the legislature could not, in providing for the /protection of works of art, describe a piracy by means of a process not then within the knowledge of mankind. But it by no means follows that, when words large enough to embrace it are used, the prohibition should not, as well as the protection, be extended to a subsequently discovered mode of reproducing and multiplying copies. It appears . to us, therefore, that the argument derived from 16 & 16 Vict, c. 12 and 25 & 26 Vict. o. 68, alto- gether fails; and that the effect of all the acts, taken together, is, that any process, whether known at the time, or the result of subsequent invention or discovery, by which pictures or en- gravings may be imitated or copied, is within the mischief as well as within the express words which the legislature has used. And we cannot help think- ing that a more limited construction would be contrary to the whole spirit of the legislation on the subject, and productive of great injustice." Ibid. 420. 2 See post, p. 492. REMEDIES IN LAW. 481 such copying is not within the statutory prohibition.^ But this construction is not in harmony with the words or the spirit of the statute. Their object is to give full protection to the owner of the copyright, and they expressly prohibit unlicensed copying in any manner. When the property in an engraving is injured by the unauthorized sale of copies made by hand, there is no reason why such copies should not be held to be piratical, especially when it is considered that they are within tiie strict letter of the law. The principle is the same as in the case of a literary work, where it might be very easy to make and circulate many manuscript copies of a short com- position. But except by authority this could not be done with- out violating the statute, which secures to the author the exclusive right of "printing or otherwise multiplying copies" of his production. Substaatial Identity Test of Piracy. — It is no defence of piracy that the unlicensed copy is larger or smaller than the original.^ Nor need it be an exact copy. The question is whether the print complained of is substantially a copy of that entitled to protection.^ In an action under 8 Geo. II. c. 13, and 17 Geo. III. c. 57, it was held not to be piracy of an engraving of a painting to make a copy from the painting itself.* But now copyright in paintings is secured by 25 & 26 Vict. c. 68. It has been held that an assignee may maintain an action for the piracy of an engraving, although the statute does not expressly give him that right ; ^ also, that it is necessary to allege where the piracy has been committed.® 1 14 C. B. N. s. 318. which they are drawn in the original 2 Graves v. Ashford, Law Rep. 2 C. picture, or in the reduced size of tlie P. 410 ; Bradbury v. Hotten, Law Rep. 8 engraving, or in the still more dimin- Exch. 1. " Whether the photographic ished form in which they appear in the copy is of the same size as the original, photograph." Erie, C. J., Gambart v. or is enlarged or very much diminished. Ball, 14 G. B. n. s. 317. the statute has in terms provided for " Roworth v. Wilkes, 1 Camp. 94 ; that. It is not the extent of the paper West v. Francis, 5 Barn. & Aid. 737 ; covered by the picture which conveys Moore v. Clarke, 9 Mees. & W. 692. the pleasure to the mind. Thus, in the * De Berenger v. Wheble, 2 Stark, representation of The Horse Fair, we 548. feel the same degree of pleasure in ^ Thompson v. Syraonds, 6 T. R. 41. looking at tlie forms and attitudes of ^ Graves v. Logan, 7 Sc. Sess. Gas. the beautiful animals there portrayed 3d ser. 204. whether we see them in the size in 31 482 THE LAW OF COPYRIGHT AND PLAYBIGHT. Limitation of Actions. — It is provided by 8 Geo. II. c. 13, that actions and suits shall be brought within three months after the offence has been committed.^ By 7 Geo. III. c. 38, the time is limited to six months.^ No limitation is prescribed by 17 Geo. III. c. 67. In the recent case of Graves v. Mercer, the Irish Queen's Bench held that " the limitation of three months given by the 8 Geo. II. c. 13, applies only to actions and proceedings given by that act. The action given by 17 Geo. III. c. 67, is an action on the case, and comes under the 20th section of the Common Law Procedure Act (Ireland), 1853, which gives a limitation of six years to such action."^ Maps and Charts. — The copyright in maps, charts, and plans is now governed, not as formerly by the statutes relating to engravings, but by the 5 & 6 Vict. c. 4.'').* Paintings, Drawings, and Photographs. Penalties and Forfeitures. — The 26 & 26 Vict. c. 68, secures to the author or the owner of a painting, drawing, or photo- graph the " exclusive right of copying, engraving, reproducing, and multiplying such painting or drawing, and the design thereof, or such photograph, and the negative thereof, by any means and of any size, for the term of the natural life of such author, and seven years after his death." * It then provides that if the author, after having sold or disposed of the copyright, or if any other person, not being the owner of the copy- right, *' shall, without the consent of such proprietor, repeat, copy, colourably imitate, or otherwise multiply for sale, hire, exhibition, or distribution, . . . any such work or the design thereof, or, knowing that any such repetition, copy, or other imitation has been unlawfully made, shall import into any part of the United Kingdom, or sell, publish, let to hire, exhibit, or distribute, or offer for sale, hire, exhibition, or distribution, . . . any repetition, copy, or imitation of the said work, or of the design thereof, made without such consent as aforesaid, such person for every such offence shall forfeit to the propri- etor of the copyright for the time being a sum not exceeding ' ». 8. * Stannard v. Lee, Law Rep. 6 Ch. 2 S8. 6, 8. 846. See ante, p. 174. 8 16 W. K. 793. 6 B. 1. REMEDIES IN LAW. 483 ten pounds ; and all such repetitions, copies, and imitations made without such consent as aforesaid, and all negatives of photographs made for the purpose of obtaining such copies, shall be forfeited to the proprietor of the copyright." ^ The author himself is here expressly prohibited from repeat- ing or making duplicate copies of his production " or the design thereof," after he has sold the copyright, although he might be able to produce a duplicate without the original or a copy before him. It will also be noticed that unauthorized copying, not only for sale, but also for hire, exhibition, or distribution, is made unlawful ; and either to import, sell, publish, let to hire, exhibit, or distribute copies, knowing them to have been unlawfully made, is declared to be piracy. In the case of the person who copies or prints, or who procures the copying or the printing to be done, the statute does not require that guilty knowledge shall be shown.^ Is Unlicensed Copying of Engraving Piracy of Painting ? — Where the copyright in a painting and in an engraving of it were vested in the same person, it was held to be an invasion of the copyright in the painting to make without authority copies of the engraving. The court was of opinion " that the copy from an intervening copy is a copy from the painting, and within the prohibition of the statute." ^ 1 s. 6. through intervening copies ; if in the 2 Ex parte Beal, Law Rep. 3 Q. B. result that which is copied be an iml- 387, 392. tatlou of the picture, then it Is Imma- 8 Ex parte Beal, Ibid. 393, 394. terial whether that be arrived at " The next question," said Black- directly or by intermediate steps. It burn, J., "is this: The copyright in must be borne in mind that Mr. Graves the picture belongs to Mr. Graves ; he is the owner of the copyright in the made an engraving of it, of which he painting and the engraving ; had they sold copies ; he had not given any been in different persons, another ques- right to others to multiply them, and tion might have arisen, which it is the photographs for which tlie penal- unnecessary to consider. I think that ties were recovered were made by the copy from an intervening copy is photographing the engraving, and not a copy from the painting, and within the original picture, and it has been the prohibition of the statute. A doubt argued that the photograph of the en- was suggested by the court whether graving, being the reproduction of a there miglit not be a diflBculty arising copy of the design of the painting, is upon the wording of section 6 ; and it not a copy of tlie painting itself. It was thrown out that, reddendo singula seems to me that cannot be so. When singulis, the enactment might merely the subject of' a picture is copied, it is mean the imitation of a painting by a of no consequence whether that is painting,ofadrawing by a drawing, and done directly from the picture itself or of a photograph by a photograph, and 484 THE LAW OP COPYRIGHT AND PLATBIGHT. 'This judgment is open to criticism. It is true that a copy of an engraving of a painting is an indirect copy of the paint- ing. But is it such a copy within the meaning of the law as will violate the copyright in the original ? The statute secures copyright in a painting, and also in an engraving, a photograph, or other copy of it. The copyright in the original is one thing. It affords a remedy against the unlawful copying of the original by any process. The copyright in any copy is another thing. It is this copyright which makes unlawful the unlicensed copying of the copy. There appears to be no reason why the general principle, that copyright is violated only when the thing copyrighted is copied, should not govern in the case under consideration. If an engraving of a paint- ing should become common property, and the copyright in the painting itself be valid, there, is no reasonable doubt that the latter right would not be violated by any publication of the engraving. So, if the owner has sold the copyright in the engraving, and retained that in the painting, it does not appear that he would have any remedy against the unlicensed copying of the engraving, although such copying might be injurious to the property in the painting. The court admitted that such a case might be governed by a different rule from that which applies when the same person owns both original and copy. But the principle is the same in both cases. Penalty for Every Copy Unlawfully Sold. — Where it appeared that twenty-six piratical copies had been sold in two lots, and it was contended that only two offences had been committed, as there had been but two sales, it was held that the penalty might be recovered for each copy sold.^ that a photograph of a drawing would that a photograph of a painting, of a jiot be within the meaning of the legis- drawing, or of another photograph, lature. But when we look at the first made without the consent of the owner, section, which is the key to the whole though of a different size, provided it act, it gives to the author of every be a reproduction of the design, is such original painting, drawing, or photo- an infringement as would subject the graph, the sole and exclusive right of maker to the penalty." copying, engraving, reproducing, and ^ Ex parte Beal, Law Rep. 3 Q. B. multiplying such painting or drawing, 387, 394. See also Brooke v. Milliken, and the design thereof, or such photo- 3 T. R. 509. In the former case. Black- graph and the negative thereof, by any burn, J., said ; " The only other ques- means and of any size ; and the terms tion Is, whether the offender is liable used are so extensive that it is plain to a penalty for every copy sold, or REMEDIES IN LAW. 485 Unlawful Importing Prohibited. — Action for Damages Given. — By section 10, the importing of piratical copies is expressly prohibited. Besides prescribing penalties and forfeitures, the statute gives to the injured owner a remedy by action for dam- ages.i The statute also prescribes penalties for the sale of a painting, drawing, or photograph fraudulently represented to be the work of a person who is not the author.^ Limitation of Actions. — No limitation of time within which actions under it shall be brought is prescribed by 25 & 26 Vict. c. 68. Sculpture. The 54 Geo. III. c. 56, which secures to the owner the copy- right in sculpture, models, copies, and casts, gives an action for damages against any person who shall " make or import, or cause to be made or imported, or exposed to sale, or other- wise disposed of, any pirated copy or pirated cast," whether it " be produced by moulding or copying from, or imitating in any way " the original.^ It is provided that no person shall be subject to such action who has bought the original work by only on each contract to sell. In point posed also for importation, and it would of fact twenty-six copies were sold, be monstrous that if a man had con- but they were sold in two parcels, signed from abroad a cargo of imita- thirteen copies in each ; and it has tions, the utmost penalty tliat could be been contended that there were but imposed on him would be the sum of two offences. In the case of Brooke ilO. It would be well worth his while V. Milliken, 3 T. R. 509, the penalty to run the risk of paj'ing that small was imposed by 12 Geo. II. c. 36, for sum, and to import and to distribute importing for sale any book first pub- for sale elsewhere a quantity worth lished in this kingdom and reprinted in many thousands of pounds. The leg- any other place, and it enacted that islature were dealing with an offence the offender should forfeit £b and which was likely to be committed double the value of every book sold, wholesale, and they have used words In that case, there could be no doubt meaning that the sale of every copy that the meaning of the statute was, shall be an offence ; and, if ten copies the penalty should be cumulative, viz., be sold at one time, ten offences are double the value of each book. In the committed, and the offender may be present case, the words are, such per- punished for each separately." son for every such offence shall forfeit ^ o. 11. to the proprietor of the copyright for ^ s. 7. See also as to piracy of the time being a sum not exceeding paintings. In re Johnson, 15 L. T. n. s. £10. It is quite clear that this imposes 163 ; Ex parte Graves, Law Rep. 3 Ch. a penalty for every copy sold : a differ- 642 ; of photographs, Strahan v. Gra- ent construction would result in an ham, IB L. T. n. s. 87, on ap. 17 Id. absurdity, and defeat the intention of 457. the legislature. The penalty is im- ^ s. 3. 486 THE LAW OP COPYRIGHT AND PLAYBIGHT. a deed in writing, signed by the owner in the presence of two witnesses.^ Actions for piracy are to be begun " within six calendar months next after the discovery of every such offence, and not afterwards." 2 Section 7 of 13 & 14 Vict. c. 104, imposes on the offender a penalty of not less than five nor more than thirty pounds for every offence, to be recovered by the owner of the copyright. United States. — Books. The act of 1831 provided that any person who should print, publish, or import a book, without the written consent of the owner of the copyright, or should sell a book knowing it to have been so printed or imported, should forfeit every copy to such owner, and should be liable to pay fifty cents for every sheet found in his possession ; one-half of the penalty to go to the United States, and the other half to the owner of the copy- right.^ Like provisions were contained in the statute of 1790, except that the owner of the copyright was required to destroy the forfeited copies.* The act passed in 1870 abolished penal- ties for piracy in the case of books, and was the first American statute to give an action for damages for the infringement of copyright.^ Action for Damages and Recovery of Piratical Copies. — Section 4964 of the Revised Statutes enacts that " every person who, after the recording of the title of any book as provided by this chapter, shall within the term limited, and without the consent of the proprietor of the copyright first obtained in writing, signed in presence of two or more witnesses, print, publish, or import, or knowing the same to be so printed, published, or imported, shall sell or expose to sale any copy of such book, shall forfeit every copy thereof to such proprietor, and shall also forfeit and pay such damages as may be recovered in a civil action by such proprietor in any court of competent jurisdiction." A wrong-doer is here made liable for a wrongful act done at any time " after the recording of the title of any book," and 1 s. 4. ^ s. 5. 5 The statute of 1856, 11 Id. 138, 8 s. 6 ; 4 U. S. St. at L. 437. gave an action for damages for the in- * s. 2; 1 Id. 124. • vasion of play right. REMEDIES IN LAW. 487 witliin the term of protection ; but, before an action for dam- ages or forfeitures can be brought, the copyright must be completely secured by the performance of all the statutory requisites.! The person entitled to bring such action is the owner of the copyright, who must either be the author of the book or hold a good legal title of ownership derived from the author. An equitable title, or interest in the work, wliich might entitle the holder to an injunction for the protection of his rights, is not enough in a court of law.^ Two distinct remedies are given by the statute to the owner for the invasion of his property. He may sue for the damages which he has sustained, and for the recovery of the printed copies. He is not restricted to either one of these, but may avail himself of both at the same time. Persons Liable. — Knowledge of Piracy. — These remedies lie against four classes of persons, — the printer, the publisher, the importer, and the seller of piratical copies. The first three are made liable though ignorant of the piracy ; but, in the case of the seller, it must be shown that the book was unlawfully printed, published, or imported, and that in selling or exposing to sale he was aware of that fact.^ All of the wrong-doers are made liable ; and there appears to be no reason why the injured person may not proceed against any one of them whom he may select,* or moi'e than one, if necessary to the vindication of his rights. Of course the printing, publishing, or selling, to amount to piracy, must be done in the United States.^ When piratical copies are imported, it is immaterial where they were printed. Gratuitous Circulation of Copies. — In subjecting the printer, publisher, and importer to the penalty of forfeiture and an action for damages, the statute does not, as does the English law, prescribe that the copies shall be printed, published, or • See ante, p. 265. legal title of the plaintiff in an action ' Numerous authorities cited in con- at law to determine the latter's rights. sidering transfer of copyright, Chap. See also Sweet v. Shaw, 3 Jur. 217. VI., are to the effect that the plaintifif « See Millett v. Snowden, 1 West. in an action at law must show a good Law Jour. 240. See ante, pp. 470, 478, legal title. In the English equity 401-404. cases, Mawman v. Tegg, 2 Russ. 385, * Greene v. Bishop, 1 Cliff. 186, 203. Sweet 0. Maugham, 11 Sim. 51, and 5 gee Graves v. Logan, 7 Sc. Sess. Sweet V. Cater, Ibid. 572, the court Cas. 3d ser. 204, cited ante, p. 481, ordered the defendant to admit the note 6. 488 THE LAW OP COPYRIGHT AND PLATKIGHT. imported /or sale. Hence, the wrong-doer is made liable when he publishes or imports for gratuitous circulation, or other purposes harmful to the owner of the copyright. So the gratu- itous distribution of piratical copies would be an infringement of the copyright.^ Are Copies Subject to Forfeiture when only Part of Book is Piratical ? — It is settled that when one book contains a sub- stantial part of another, the former is, within the meaning of the law governing the infringement of copyright, a copy of the latter, and its unlawful publication will amount to piracy. Hence, under section 4964 of the Revised Statutes, which pro- vides that any person who shall unlawfully print, publish, or import any copy of a book shall forfeit such copy, and be liable to an action for damages, there is no doubt that such action will lie when the book complained of is a substantial copy, or contains a material part, of the one entitled to protection. But is tlie word copy used in the same sense in relation to forfeit- ures ? This question cannot arise concerning any other subject of copyright than a book ; because in the case of maps, charts, musical compositions, prints, engravings, &c., the statute im- poses penalties and forfeitures when the work is pirated " either in whole or in part." ^ In Rogers v. Jewett, the Circuit Court of the United States expressly held that the word copy of a book in section 6 of the statute of 1831 must be taken to mean a transcript or reprint of the entire work, and hence that the penalties imposed by that section were not incurred by the wrongful publication of any part of a book.* The contrary doctrine had previously been affirmed by the Circuit Court of the United States in another circuit by a pro forma ruling in Backus v. Gould, 1 See this point under the English appears to me great difficulty in hold- statute considered, ante, p. 474. ing that the word book wherever it is 2 s. 4965. Rogers v. Jewett, infra. used in the statute, comprises and in- ' 12 Monthly Law Reporter, 339. eludes 'part of a book.' It would, for In Rooney c. Kelly, wherein the Court instance, be difficult to maintain that of Queen's Bench in Ireland held that, under the 23d section [imposing for- in an action for damages under section feitures] the proprietor of the copyright 15 of 5 & 6 Vict. u. 45, it was sufficient in a book would acquire the property to declare that parts of the book com- of all copies of another book which plained of were piratical, O'Brien, J., contained printed therein a few pages said obiter: "I may observe that, from or passages of his book." 14 Ir. Law other provisions of tlie statute, there Rep. n. s. 158, 171. REMEDIES IN LAW. 489 which was an action for the penalties under the act of 1831 for the publication of parts of certain books. The case was taken for review to the Supreme Court of the United States ; but the question which we are now considering was not passed upon by that tribunal, which simply decided that the penalty was limited to the sheets found in the possession of the defendant.^ The doctrine that a wrong-doer is not liable to the penalties or forfeitures unless the whole of the book entitled to protection has been copied, especially in considering the meaning of the present statute with reference to forfeitures, is open to question. The early rule that penal laws are to be strictly construed has been materially modified in later times. In interpreting such stat- utes, the strict meaning of the language used is still kept in view ; but it is not allowed to defeat the plain intent of the legislature. The courts seek to ascertain that intent and to give effect to it. In section 4964 of the existing statute the word copy is used without distinction with reference to a forfeiture of the piratical work and an action for damages. In the latter case, as has been seen, a book which contains a substantial part of another is clearly a copy ; and there is nothing in the section to show that a different rule is to be applied in the case of for- feitures. The question, therefore, is. What was the intention of the legislature ? In declaring that every copy of a piratical book should be forfeited to the owner of the copyright, Congress had these objects in view : 1, to deter persons from committing piracy ; 2, after its commission, to punish the offender, and to remedy the injury done. The end sought was the protection of copyrighted books. It is true that the action for damages is a means to the same end. But Congress manifestly considered this to be an insufficient remedy, and therefore gave an addi- tional one by prescribing forfeitures. If the provision concern- ing forfeitures is to apply only when the whole of a book is pirated, it is clear that the purposes of such provision may easily, and often will, be defeated. It will be in the power of any wronc-doer to annul the law as far as a forfeiture of copies is concerned, by leaving out a small part — a chapter, or even a few pages in reprinting the book which he pirates. He may thus take all that is valuable in a copyrighted work, and escape the 1 7 How. 798. 490 THE LAW OF COPYRIGHT AND PLAYRIGHT. penalty of forfeiture by omitting an insignificant part. The stat- ute would thus fail to reach the very persons who are the most guilty ; viz., those who knowingly and wilfully commit piracy. As this construction would operate to annul the law in many, doubtless a majority, of cases, and especially in the case of those against whom its penal provisions were particularly aimed, it is reasonable to suppose that it does not give effect to the inten- tion of the legislature. On the other hand, it is clear that the law will often be harsh, and perhaps unjust, in its operation, if every book which contains a material quantity of piratical matter may be seized by the injured person. If one or the other of these extreme constructions must be adopted, there are reasons for choosing the latter. It would doubtless give greater effect to the intention of the legislature ; and would be supported by the principle, recognized in cases of piracy, that whoever Wrongfully mixes the matter of another with his own must suffer the consequences. But the courts are not bound to go to either extreme in construing the statute. They may hold that the appropriation of an entire work is not necessary to subject the wrong-doer to the penalty of forfeiture ; and, on the other hand, that such penalty is not necessarily incurred by taking a part, though such part may be enough to amount to piracy, for which an action of damages will lie. In this view of the law, the forfeiture would attach when a work consists chiefly or largely of pirated matter, or when it con- tains a large or valuable part of a book entitled to protection. But, when the pirated matter forms a small part in quantity and value of the book complained of, the injury may be redressed by an action for damages. In the examination of this question, the fact has not been overlooked that, in that part of the statute ^ which requires two copies of every copyrighted book to be deposited in the library of Congress, the word copy must be taken to mean a transcript of the entire work. But the intention of Congress in making this provision is obvious ; and that intention would clearly be defeated by holding that a substantial, and not a verbatim, copy was meant. 1 s. 4956. remedies in law. 491 Maps, Charts, Musical Compositions, and Works op Art. Penalties and Forfeitures. — Section 4965 of the Revised Stat- utes provides that any person who, without the written consent of the owner of the copyright, signed in presence of two wit- nesses, shall engrave, etch, work, copy, print, publish, or im- port, either in whole or in part, or by vai'ying the main design with intent to evade the law, or knowing it to be so printed, published, or imported, shall sell or expose to sale any copy of a copyrighted map, chart, musical composition, print, cut, en- graving, photograph, chromo, painting, drawing, statue, statu- ary, or model or design intended to be perfected as a work of the fine arts, shall forfeit to the owner of the copyright all the plates on which the same shall be copied, and every sheet thereof either copied or printed. The offender is further made liable to pay a penalty of one dollar for every sheet found in his possession, either printing, printed, copied, published, im- ported, or exposed for sale. In the case of a painting, statue, or statuary, the penalty, besides forfeiture of plates and copies, is ten dollars for every copy found in the possession of the offender, " or by him sold or exposed for sale." The owner of the copyright is entitled to one-half of the prescribed penalties, and the United States to the other half. In the case of all the articles above named, excepting paint- ings, statues, and statuary, the wrong-doer is not liable to pay the penalty for any copies not found in his possession.^ 1 Backus V. Gould, 7 How. 798. fendants were liable to the penalties In Dwight V. Appleton, which was an for all the copies which were in their action in the United States Circuit possession when the action was brought, Court for unlawfully importing and including all of such copies which may publishing a book, the report says that have been afterward sold, the ruling " the jury were authorized [by Mr. was doubtless correct. But if the Justice Thompson] to give fifty cents court intended to construe the law to for every sheet contained in the vol- the effect that the defendants were umes found at any time, within the liable to pay the penalties for the period stated in the declaration, to have copies which had been imported and been in the possession of the defend- sold before the action was brought, ants. The law applies to all the copies and which therefore were not found in which the defendants had imported or their possession, the decision was sold, or held for sale, contrary to the against the plain reading of the statute, rights of the plaintiffs." 1 N. Y. Leg. and is in opposition to the law as since Obs. 198. expounded by the Supreme Court of If by this was meant that the de- the United States in Backus v. Gould. 492 THE LAW OP COPYRIGHT AND PLATRIGHT. Persons Liable. — Knowledge of Piracy. — Besides the printer, publisher, importer, seller, and the person exposing to sale, any person who shall unlawfully " engrave, etch, work," or " copy " any article mentioned in section 4965 is made liable to the forfeitures and penalties. Guilty knowledge must be shown on the part of the wrong-doer who sells or exposes to sale, but not in the case of the others. * Substantial Copy subject to Penalties and Forfeitures. — The penalties and forfeitures are incurred not only when the whole of the copyrighted article has been unlawfully taken, but when it has been pirated, " either in whole or in part, or by varying the main design with intent to evade the law." When the thing complained of is not an exact reprint, the question is, whether it is a substantial copy of that entitled to protection.^ When the piratical copy appears to be an imitation or a col- orable copy, it would seem to be necessary to show that the main design of the original had been varied " with intent to evade the law." But I do not understand that the words just quoted apply, or were intended to apply, to a copy which is an exact reproduction of the whole or a part of the original. Although the statute does not expressly prohibit copying on a larger or a smaller scale than that of the original, there can be little doubt that an enlarged or a diminished copy made with- out authority would subject the offender to the penalties and forfeitures.* Copying by Photography and other Processes. IT nla-wful. — The statute prohibits unlawful copying, and the word copy is com- prehensive enough in its meaning to embrace all modes and processes of multiplying copies. Thus, when the statute of 1831 was passed, photography had not been discovered ; but although a photograph was not, within the meaning of sec- tion 1 of that act, a " print, cut, or engraving " entitled to pro- tection,* an unlicensed photographic copy of a print, cut, or 1 Millett V. Snowden, 1 West. Law 1 Camp. 94; West o. Francis, 5 Barn. & Jour. 240. See ante, pp. 478, 470, 401- Aid. 737 ; Moore v. Clarke, 9 Mees. & 404. W. 692. 2 Reed v. Carusi, Tan. Dee. 72; ^ gee English cases on this point, Rogers v. Jewett, 12 Monthly Law ante, p. 481, notes 2, 3. Reporter, 339. Br. Roworth v. Wilkes, * Wood ti. Abbott, 5 Blatehf. 325. REMEDIES IN LAW. 493 engraving was within the prohibition of section 7.^ The same construction has been given to the English statutes.^ Is Copying of Engraving or Photograph Piracy of Fainting ? — In England, piracy of an engraving of a painting has been held to be an infringement of the copyright in the painting. The soundness of this doctrine has been questioned in this work.^ There can be little doubt that this rule will not apply in con- struing the clause of section 4966 of the American statute which prescribes a penalty of ten dollars for every unlawful copy of a painting, statue, or statuary. The proper construc- tion of this provision would seem to be, that a person is not made liable to the penalty, unless he copies directly from the painting or statue, or from a piratical copy. When he un- lawfully reproduces a copyrighted engraving, photograph, or chromo of a painting, he is subject to the penalties and forfeit- ures expressly prescribed for such cases. Gratuitous Circulation of Copies. — Under the statute of 1831, in an action for the penalties or forfeitures against the printer or importer, it was necessary to show, in the case of prints, cuts, engravings, maps, charts, and musical compositions, that the copies had been printed or imported " for sale." * But, in the existing statute, the words for sale are omitted.^ Action for Damages. — Section 4965 does not give an action ^ Rossiter v. Hall, 5 Blatchf. 302. one and seven should be read together ; Benedict, J., said : " The argument of and, so taken, the words used disclose the defendant is, that the exclusive a clear intent to protect a copyrighted privilege given by the first section of work from such a mode of duplication the act does not include the photo- as is practised by the defendant. Sec- graphing the copyrighted engraving tion seven provides that any person because that is not a ' printing ' or a who shall engrave, etch, or work, sell ' reprinting,' and that the general or copy, the engraving, shall be an words of the seventh section cannot be offender. The word copy is a general held to forbid in others what has not term added to the mqre specific terms been exclusively reserved to the author before used, for the very purpose of by the words of the first section ; and, covering methods of reproduction not further, that photographing could not included in the words engrave, etch, or have been within the intent of the law- work, and, if it covers any thing, should makers, as the art of photography cover the photographic method, which, had not been discovered when the act more nearly than any other, produces was passed. In support of such a con- a perfect copy." struction, the decision of Judge Ship- ^ gge ante, p. 480. man, in the case of Wood v. Abbott, ^ Ex parte Beal, Law Rep. 3 Q. B. 5 Blatchf. 325, is cited. I cannot agree 387. See ante, pp. 483, 484. to the construction of .the act which is ■• Eeed v. Carusi, Tan. Dec. 72. contended for. In my opinion, sections ^ See ante, pp. 487, 488. 494 THE LAW OF COPYRIGHT AND PLAYRIGHT. for damages for the piracy of any article therein mentioned ; and section 4964 provides such remedy only in the case of books. Any article, however, named in section 4965, which may be considered as a book within the general meaning of the law, is within the scope of section 4964. Thus, maps, charts, and musical compositions have been expressly held to be books. Moreover, the common-law remedy by action for damages is available in any case where such remedy is not expressly provided by the statute.^ General Provisions. Penalty for False Printing of Copyright Notice. — Section 4963 provides that every person who ,shall insert or impress the notice of copyright, " or words of the same import, in or upon any book, map, chart, musical composition, print, cut, engrav- ing, or photograph, or other article, for which he has not ob- tained a copyright, shall be liable to a penalty of one hundred dollars, recoverable one-half for the person who shall sue for such penalty, and one-half to the use of the United States." Under the corresponding provision of the act of 1831,2 it was held that the penalty could not be recovered in the name of more than one person ; but that the statute might admit of a more liberal construction if the penalty had been given to the person aggrieved, instead of a common informer.* Unlicensed Publication of Manuscripts. — Section 4967 gives to the owner an action for damages against " every person who shall print or publish any manuscript whatever, without the consent of the author or proprietor first obtained, if such au- thor or proprietor is a citizen of the United States, or resident therein." This provision has been fully considered in another chapter.* Limitation of Actions. — Section 4968 provides that "no ac- tion shall be maintained in any case of forfeiture or penalty under the copyright laws, unless the same is commenced within two years after the cause of action has arisen." It is no defence, in an action for unlawful printing, that more than two years have passed since the plates were engraved or stereo- 1 See ante, p. 473. " Ferrett v. Atwill, 1 Blatchf. 151. 2 s. 11 ; 4 U. S. St. at L. 488. * See ante, p. 124. REMEDIES IN LAW. 495 typed, or since copies were first printed. Every act of printing is a violation of the right secured ; and, if done within two years, will subject the offender to the forfeitures and penalties.^ On the same principle, an action against the seller is not barred by the fact that the copies sold, or offered for sale, were printed or imported more than two years before. The controlling ques- tion is, whether the sale complained of is within the two years, The limitation clause of the statute applies only to cases wherein it is sought to recover forfeitures or penalties. The time within which an action for damages may be brought, or redress in equity sought, is not limited by the statute.^ In Atwill V. Ferrett, it was held that an action on the case, and not trespass, is the proper form in law for infringement of copyright.^ Penalties and forfeitures must be sued for in a court of law, and not in equity.* Neither Oral Use of Production, except Dramatic Composition, nor Exhibition Prohibited. — The statute is directed against the multiplication and circulation of piratical copies, and the un- lawful performance of dramatic compositions. It does not secure to the author the exclusive right of reading his produc- tion in public, except in the case of a dramatic composition ; nor of publicly exhibiting any work of art, nor of performing a piece of music, unless it be also a dramatic composition. Nor is such public use of a work prohibited. Hence, statutory copyright is not violated by the unauthorized public reading of a literary or the playing of a musical composition, or the exhi- bition of a copy of a painting, statue, engraving, or other work of art. The unlicensed public performance or reading of a dra- matic composition is a violation, not of the copyright, but of the playright therein ; which is expressly secured by the statute, and for whose protection remedies are specially provided.^ The statutory remedies for the violation of playright are treated in Chapter XVI. 1 Reed v. Carusi, Tan. Dec. 72. As to limitation under English stat- ' Reed o. Carusi, in which it was utes, see ante, pp. 475, 482. held that the defendant was liable ' 2 Blatchf. 39, 47. only for a wrong done within two * Stevens u. Gladding, 17 How. years before the action was brought, 447. See Chap. XII. was a gui tarn action for the penalties * See ante, pp. 474, 475. under section 7 of the statute of 1831. See 8 Law Reporter, 410. 496 THE LAW OP COPTEIGHT AND PLATRIGHT. CHAPTER XI. REMEDIES IN EQUITY FOE THE INFRINGEMENT OF COPYRIGHT. Nature and Extent of Equity Jurisdiction in Copyright Cases. — Equity jurisdiction in cases of copyright is dependent on the legal right, and is exercised for the purpose of making that right more effective, on the ground that relief in law is inade- quate.^ " The jurisdiction upon subjects of this nature," said Lord Eldon, " is assumed merely for the purpose of making effectual the legal right, which cannot be made effectual by any action for damages ; as, if the work is pirated, it is impossible to lay before a jury the whole evidence as to all the publications, which go out to the world, to the plaintiff's prejudice. A court of equity, therefore, acts with a view to make the legal right effectual by preventing the publication altogether."^ The remedies afforded by law are available only when the wrong has been done. They do not directly prevent a threatened mischief, nor the continuation or repetition of an injury already done. Moreover, the cost of seeking redress, the difiBculty and uncertainty in ascertaining the damages sustained, and the delay in obtaining relief, are usually greater in law than in equity. Hence, in a great majority of the copyright cases which have arisen in England and the United States, protection has been sought in a court of equity. " It is quite plain," said Mr. ' Hogg V. Kirby, 8 Ves. 215 ; Wil- tion in those cases is, tliat damages do kins V. Aikin, 17 Id. 422; Lawrence v. not give adequate relief; and that the Smith, Jac. 471 ; Bramwell ti. Halcomb, sale of copies by the defendant is, in 3 My. & Cr. 737 ; Saunders u. Smith, each instance, not only taking away the Ibid. 711, 728 ; Spottiswoode v. Clarke, profit upon the individual book, which 2 Phillips, 154; Pierpont u. Fowle, 2 the plaintiff probably would have sold, Woodb. & M. 23. but may injure him to an Incalculable ^ Wilkins v. Aikin, 17 Ves. 424. extent which no inquiry for the purpose In Hogg w. Kirby, the same judge said : of damages can ascertain." 8 Ves. ' ' The principle of granting the injuno- 225. REMEDIES IN EQUITY. 497 Justice Story, "that, if no otlier remedy could be given in cases of patents and copyrights tlian an action at law for dam- ages, tlie inventor or author might be ruined by the ne/;essity of perpetual litigation, without ever being able to have a final establishment of his rights." ^ The chief remedies afforded by equity are the injunction and the account of profits. By the former, the publication, sale, or other unlawful use of a piratical work may be stopped, or its intended publication prevented. By the latter, the wrong-doer may be made to pay to the owner of the copyright the profits arising from such publication and sale. To these remedies may be added that by discovery, whereby the person guilty of piracy may be ordered to disclose the number of piratical copies published, sold, or on hand, and the amount received from sales. English chancery courts formerly had no power to adjudicate the legal questions on whose determination depended the right to maintain a suit; and in cases of doubt the plaintiff wag often required to establish his right in a court of law before; re- lief would be given by a court of equity.^ Sometimes an in- junction was granted, and, at the same time, the plaintiff directed to establish his title at law ; the continuance of the injunction depending, of course, on the result of the legal trial.^ " The court," said Lord Chancellor Cottenham, in 1838, " always exercises its discretion as to whether it shall interfere by injunction before the establishment of the legal title." * But unless, said the same judge, " the court is quite clear as to 1 2 Eq. Jur. § 931. " Our jurisdic- Cr. 737 ; Saunders v. Smith, Ibid. 711 tion, unless I mistake, is founded on Spottiswoode v. Clarke, 2 Pliillips, 154 this : that the law does not give a com- M'Neill v. Williams, 11 Jur. 344. plete remedy to those whose literary 3 Hogg v. Kirby, 8 Ves. 215; Wil- property is invaded ; for, if publication kins ii. Aikin, 17 Id. 422 ; Mawman after publication is to be made a dis- Tegg, 2 Russ. 385; Bacon v. Jones, tinct cause of action, the remedy would My. & Cr. 433 ; Sweet u. Shaw, 3 Jur. soon become worse than the disease." 217 ; Sweet v. Maugham, II Sim. 51 ; Lord Eldon, Lawrence u. Smith, Jac. Sweet «. Cater, Ibid. 572; Campbell 472. V. Scott, Ibid. 31 ; Dickens v. Lee, 8 2 Wolcott V. Walker, 7 Ves. 1 ; Jur. 183 ; Bogue v. Houlston, 5 De G. Soutliey V. Sherwood, 2 Meriv. 435 ; & Sm. 267 ; Jarrold v. Houlston, 3 Kay Rundell v. Murray, Jac. 311; Law- & J. 708. rence u. Smith, Ibid. 471; Lowndes v. * Saunders v. Smithy 3 My. & Cr. Duncombe, 2 Coop. {temp. Cottenham) 735. 216; Bramwell o. Halcomb, 3 My. & 32 498 THE LAW OP COPYRIGHT AND PLAYKIGHT. what are the legal rights of the parties, it is much the safest course to abstain from exercising its jurisdiction till the legal right Jias been determined." ^ In recent years, a different practice has prevailed. In 1862, courts of equity were em- powered to adjudicate all questions of law or fact on which the title to relief depended,^ and now, under the recent judicature acts,^ the chancery and the law divisions of the High Court of Justice have equal jurisdictiou in determining rights and re- dressing wrongs. Hence, the courts of equity now determine all questions relating to the validity of the copyright and the alleged piracy. This is also the practice in the United States, where courts of equity in cases of copyright have usually adju- dicated both the right and the infringement.* Complainant's Title. His Consent, Delay, and Acquies- cence Considered as Defences op Piracy. What must Appear before Equity vrill Interfere. — Before a court of equity will interfere in a case of alleged violation of copyright it must appear: 1. That a valid copyright exists. 2. That the plaintiff has a good title. 3. That piracy has been committed by the defendant. It is for the complainant to show that a copyright has been secured in due form, and that he is the legal or equitable owner. " Persons claiming that they own the copyright of a book," said Mr. Justice Clifford, " in a suit for infringement must prove their ownership by competent evidence, else their suit cannot be maintained, as the burden is upon the complainant to prove his title to copyright, as well as to prove infringe- ment." ^ But when it appears that the copyright has been 1 Spottiswoode v. Clarke, 2 Phillips,- 402 ; Farmer v. Calvert Lithographing, 157. Engraving, & Map-Publishing Co., 5 2 25 & 26 Vict. c. 42, ». 1. Am. L. T. R. 168. " It is now well 8 36 & 37 Vict. c. 66 ; 38 & 39 Vict, settled," said the court, in the case c. 77 ; 39 & 40 Vict. o. 59 ; 40 & 41 last cited, " that both the right and the Vict. c. 9 ; Id. i;. 57. infringement may be set up and adju- * Pierpont v. Fowle, 2 Woodb. & dicated in a court of equity without M. 23 ; Atwill v. Ferrett, 2 Blatchf . 39 ; having been first determined at law." Baker v. Taylor, Ibid. 82; Little v. Ibid. 170. See also Little v. Gould, Gouldi Ibid. 165, 362 ; Paige v. Banks, 2 Blatchf. 184. 7 Blatchf. 152, on ap. 13 Wall. 608 ; ^ chase v. Sanborn, 6 U. S. Pat. Lawrence v. Dana, 2 Am. L. T. K. n. s. Off. Gaz. 933. In Parkinson v. Laselle, REMEDIES IN EQUITY. 499 secured in the manner prescribed by the statute, and that it is the property of the plaintiff, a prima facie case is made out, and the burden is on the defendant to show that the copyright is invalid or the plaintiffs title defective.^ Defences against Charge of Piracy. — In the United States, any one of the following defences may be pleaded in a suit for alleged infringement of copyright : I. That the work for which protection is claimed is not a proper subject of copyright for the reason : 1. That it is a thing not within the scope of the copyright law. 2. That it is not original. 3. That it is not innocent. 4. That it is the produc- tion of a foreign author. II. That the copyright is not valid, for the reason : 1. That the three requisites relating to the filing of the title, the print- ing of the copyright notice, and the delivery of copies to the library of Congress, have not been performed in accordance with the statute. 2. That.the work has not been published within a reasonable time after recording the title. 3. Tliatits publica- tion in a foreign country preceded its publication in the United States. 4. That the copyright has expired. III. That the plaintiff has not a good title. IV. That piracy has not been committed, for the reason : 1. That there has been no copying from the plaintiff's book. 2. That the copying or other use made of it is within the allowed privilege of " fair use." 3. That the defendant has acted with the consent of the plaintiff. Any one of the above defences, when established, will defeat the complainant's right to relief in equity. The defendant may plead the general issue and give the special matter in evidence.^ The qualities essential to copyright, and the statutory re- quisites for securing it, what amounts to piracy and what is a fair use, are fully treated elsewhere under their proper 3 Sawyer, S30, the bill was dismissed to show the contrary.'' Taney, C. J., on demurrer that it did not allege a Reedt;. Carusi, Tan. Deo. 74. "Prima compliance with the statutory requi- facie," said Mr. Justice Story, " the sites essential to securing copyright, copyright confers title ; and the onus See also Marsh v. Warren, 9 Chic. Leg. is on the other side to show clearly News, 395; s. c. 4 Am. L. T. n. s. 12f5. that, notwithstanding the copyright, 1 " The copyright is prima facie evi- there is an intrinsic defect in the title." dence that he was the author, and the 2 Eq. Jur. § 936, note 6. burden of proof is upon the defendant, ^ u. S. Kev. St. o. 4969. 500 THE LAW OF COPYRIGHT AND PLATRIGHT. heads. Here will be considered the complainant's title, and what consent, laches, or acquiescence on his part will defeat his right to sue in equity. Equitable Title Sufficient in Court of Equity. — It is not es- sential to relief in equity that the legal title shall be in the plaintiff. Where a valid copyright exists, a court of equity will protect the rights of a complainant who has a good equi- table title. ^ In Chappell v. Purday, Lord Chief Baron Abinger, referring to Lord Mansfield's remark, in Millar v. Taylor, that a court of equity would not interfere unless the author had a legal right, said : " Now, if by this it was meant to be said, that a court of equity would only interfere when the legal right was in the party applying for its interference, I will not go so far ; because I think that a court of equity will assist any party having aii equitable right, where the legal right intervenes to prevent his obtaining justice ; otherwise, great fraud would ensue." ^ And so, in Bohn v. Bogue, Vice-Chancellor Shad- well said : " This court always takes notice of the equitable interest ; and, if the equitable right to the copyright is com- plete, this court will take care that the real question shall be tried, notwithstanding there may be a defect in respect of the legal property." ^ No general rule can be laid down as to what will amount to an equitable title or interest in the complainant sufficient for maintaining a suit. As has'been seen, he may assert his rights in a court of equity without a perfect legal title. On the other hand, it is obvious that a person who has no material 1 Br. Mawman v. Tegg, 2 Russ. A. and B. that A. and B. shall report 385; Colburn v. Buncombe, 9 Sim. cases for them, and accordingly A. and 151 ; Sweet v. Shaw, 3 Jur. 217 ; B. do take notes of cases which are Hodges V. Welsli, 2 Ir. Eq. 266 ; Sweet printed by Sweet and others, the plain- V. Cater, 11 Sim. 672 ; Chappell ti. tifEs, and they publish them, and then Purday, 4 Y. & C. Exch. 485, 493 ; the plaintiffs aver that they have a Bohn V. Bogue, 10 Jur. 420; Sims v. copyright in the cases published. Now Marryat, 17 Q. B. 281 ; Turner v. Rob- I think that they have in equity, but I inson, 10 Ir. Ch. 121, 510. Am. Little cannot understand how they have got V. Gould, 2 Blatchf. 362, 369 ; Pulte a. the copyright at law." The plaintiffs Derby, 5 McLean, 328 ; Lawrence v. " have made out only an equitable Dana, 2 Am. L. T. R. w. s. 402. In right, though still they have stated Sweet V. Shaw, Shadwell, V. C, said : quite a sufficient case to support the " The plaintiffs do not set up that they bill." 3 Jur. 219. have the legal copyright ; what they " 4 y. & c Exch. 493. state is this, that they have agreed with ^ 4 Jur. 421. REMEDIES IN EQUITY. 501 interest in the work for which protection is claimed has no right to complain of a violation of the copyright in such work. But, between tliese two extremes, what interest in the copyright will entitle a person to restrain a piratical publication must be determined by the circumstances in each case. In England, an injunction will not be granted until the work has been registered.^ In the United States, the copyright is not perfected, and an action at law cannot be maintained, until all the statutory requisites have been performed. But an im- perfect right accrues on the recording of the title ;^ and the opinion has been judicially expressed, that such right is entitled to protection in a court of equity for a reasonable time before the other acts essential to complete the copyright have been done.^ Suit Barred by Plaintiff's Consent to Publication. — The stat- utory penalties and remedies may be enforced against any person wlio makes a prohibited use of a work without the written, and, in the United States, attested, consent of the owner of the copyright. But courts of equity are not governed by this rule. They have recognized the principle that a person who has consented to the doing of a thing has no right, in equity, to complain when it is done. Hence, the court will not interfere with the publication or sale of an alleged piratical work, when the defendant can show that lie has acted with the express or implied consent of the owner of the copyright, though such consent is not in writing.* Thus, in Heine v. Appleton, the plaintiff sought to restrain the defendants from publishing and selling certain books containing drawings which the former had made, and which the defendants had published, in the belief that they were public property. The court held that, even if the copyright claimed 'by the plaintiff were valid, the fact that he had been employed by the defendants to aid in the publication of the drawings, and that he had done so without claiming any exclusive rights in them, would be a bar to his suit. " The plaintiff," said Ingersoll, J., " thus aided in the publication of some of the works of the defendants. When 1 See ante, p. 278. ^ Latour v. Bland, 2 Stark. 382 ; 2 Wheaton v. Peters, 8 Pet. 664; Rundell y. Murray, Jao. 811 ; Saunders Boucieault v. Hart, 13 BIatchf.54. i: Smith, 8 My. & Cr. 711 ; Slrahau v. 3 I'ulte V. Derby, 5 McLean, 382. Graham, 17 L. T. n. S- 457 ; Heine u. See ante, p. 268. Appleton, 4 Blatchf. 125. 502 THE LAW OP COPYRIGHT AND PLATEIGHT. he thus aided in their publication, he made no claim of copy- right. It would be inequitable now to permit him, wlien he has been paid to aid in their publication and sale, and lias thus aided in their publication, with a view to their sale, to stop their sale, even if he had a valid copyright in them. By aiding in their publication, he agreed to their publication ; and, by agree- ing that they might be published, he agreed that they might be sold ; and he cannot now with success ask that the defend- ants may be restrained from doing that which he has agreed they may do." ^ When Plaintiff's Consent may not be Implied. — In Saunders V. Smith, Lord Cottenham refused to restrain the publication of the second volume of Smith's Leading Cases before trial at law, for the reason that he found " in the dealings of the plain- tiff in this case what amounts to that species of conduct which prevents, in this stage of the cause, at least, the interposition of this court." After quoting from the opinion in Jiundell v. Murray,'* the Lord Chancellor continued : " Lord Eldon there lays it down that not only conduct with the party with whom the contest exists, but conduct with others, may influence the court in the exercise of its equitable jurisdiction by injunction. Now, here I find permission, whether express or implied, given to others." ^ The strongest inference against the plaintiffs, warranted by the facts in this case, was that they must be presumed to have known that the defendant, in preparing his Leading Cases, would take cases from their copyrighted reports. They had given the defendant no permission to do this, and had no knowledge that he was doing it, or intended to do it. They liad even told him, before the publication of the first volume of the Leading Cases, that he might not reprint any reports from their works. They did not complain of that volume, for the reason that it contained only one case, and parts of two others, copied from their publications. They had no knowledge of the contents of the second volume until its publication, when they immediately applied for an injunction. It is not denied that llie dealings between two persons may amount to an im- 1 4 Blatclif. 129. '' See post, p. 507. 3 3 My. & Cr. 729, 730. REMEDIES IN EQUITY. 503 plied consent that one shall make use of copyrighted matter belonging to the other, and that such consent may be suc- cessfully pleaded as a bar to a suit in equity. But to hold that, in order to save his rights, even in a court of equity, the owner of a copyright is bound to warn a person not to violate that right, when he has given no consent to the contrary ; and, when he has no information, nothing more than a presumptive knowledge or suspicion, that such person is doing or intends to do so, is an exposition of the law as wild as it is erroneous. Even if the owner is aware that another person is preparing a work which will infringe his copyright, he is not bound to assert his rights until the piratical book has been published ; unless thei-e has been in his conduct something more than absence of protest to encourage the defendant. A person who commits piracy cannot justify the wrong by the plea that he had no warning not to do it. In law and in equity, he is sufficiently warned by the fact that what he ap- propriates does not belong to hini.^ In Morris v. Ashbee,^ one of the defendants testified that the plaintiff had said to him that it would not be unlawful for any one to copy certain parts from the plaintiff's or any other directory. The plaintiff denied having said this Vice-Ciiancellor Giffard found the facts to bo in favor of the plaintiff; but he said thq.t even the conversation alleged by the defendant to have taken place would not be enough to authorize the latter to copy the parts referred to. " A copyright," said the Vice-Chancellor, " is not lost by the mere expression of an opinion." " In order that the defence should prevail, it must be made out that there is proof of at least one of three propositions : viz., either that the plaintiff authorized what was done by the defendants ; or that his conduct conduced to what was done by them ; or that there is enough to displace the prima facie proof of the plaintiff's copyright." The plaintiff in Maxwell v. Somerton ^ was tJie publisher of the Belgravia Magazine and the Belgravia Annual, which had 1 See Morris v. Ashbee, Maxwell v. 2 Law Rep. 7 Eq. 34. Somerton, infra; Hogg v. Scott, post, ^ 30 L. T. N. s. 11. p. 609 ; Straiian v. Graham, 17 L. T. N. s. 457. 504 THE LAW OP COPYRIGHT AND PLAYEIGHT. been sent fpr about eiglit years to the defendants, who had been in the habit of selecting from them extracts, and occasionally entire stories, and reprinting them in the Bristol Mercury. The last named was a weekly paper, of which copies containing tlie selections referred to were sent to the plaintiff. In November, vl873, the defendants received the Belgravia Annual, with a request to notice it in their paper. They published a short review of it, and reprinted one entire story. In December, another story was taken from the magazine. In each case, due acknowledgment was made of the source whence the tale was taken,, and a copy of the Mercury was sent to the Belgravia office. Without previous notice to the defendants, the plaintiff" moved to restrain the further publication or sale of any copies of the paper containing either of the stories. Vice-Chancellor Bacon held, that the alleged custom of the trade was no defence, and that the defendants were not justified in reprint- ing, as they had done, entire stoines. The injunction was accordingly granted. Delay or Acquiescence on Part of Plaintiff. ^ The American statute prescribes the time within which actions for the penal- ties or forfeitures, but not suits in equity, shall be brought.' In England, the statutory limitation has been held not to apply when remedies in equity are sought.^ But the doctrine has been recognized that the plaintiff may forfeit his rights in equity by laches in applying for relief. Hence, when the plain- tiff" has for an unusual time delayed to assert his rights, the court has sometimes denied him relief, on the ground that he is guilty of laches, or that by acquiescing in what has been done he impliedlj' consented to it. And the same principle has been held to apply when the plaintiff has suffered other piracies t'lan that by the defendant to be committed without protest.^ " It is, tlierefore," said Vice-Chancellor Wood, " of the utmost importance to authors to come at the earliest possible stage to obtain the protection of the court against the violation of tiieir rights of property." * 1 See ante, p. 494. s. c. 2 Kay & J. 117 ; Keene u. Clarke, 2 See ante, p. 476. 6 Rob. (N. Y.) 66, 67. 3 Kundell f. Murray, Jac. 311 ; * Tinsley v. Lacy, 1 Hem. & M. 752. Saunders v. Smitli, 3 My. & Cr. 711 ; See also Correspondent Newspaper Co. Cliappell V. Slieard, 1 Jur. n. ». 996 ; o. Saunders, 12 L. T. n. s. 540. REMEDIES IN EQUITY. 505 Plaintiff not Responsible for Delay when Ignorant of Piracy. — The plaintiff will not be considered guilty of culpable delay during the time that he had no knowledge of the infringement.^ Where it appeared that the printing of the defendant's work had been begun in 1832, and completed in 1834, that the plaintiffs learned at the end of 1837 that the sale of their work was interfered with by a Scotch publication, which in February, 1838, they ascertained to be the defendant's Gazetteer, and that they discovered the piracy by an examination of the work in June, and applied for an injunction in the following month. Lord Langdale held that there had not been any im- proper or unnecessary delay .^ The burden of showing that the plaintiff was aware of the piratical publication is on the defendant. " The plaintiffs have to purge themselves from the imputation of laches ; but the onus of proving the laches is on the defendants. They must show a clear knowledge in the plaintiffs of the former infringe- ments, and of their having put up with them for a length of time, if they wish to fix the plaintiffs with the consequences of that laches so as to prevent them from having protection against any other depredations." ^ Delay may be Explained. — When the delay is explained to the satisfaction of the court, it will not be allowed to defeat the complainant's suit. Where it appeared that the first part of the work complained of, the London Bncyclopsedia, had been published in January, 1826, and that the plaintiffs first learned in March that many articles in it had been copied from the Encyclopedia Metropolitana, but did not file their bill till August, Lord Eldon thought that the delay was " in a great degree accounted for by the necessity of comparing the whole of the two works, for the purpose of seeing how much of the Encyclopasdia Metropolitana had been in a substantial sense taken from it and infused into the London Encyclopaedia, before any application could be made to this court." * So in ^ Lewis V. Fullarton, Cliappell v. 2 Lewis v. FuUarton, 2 Beav. 6. Slieard, infra. See also Greene v. " Wood, V. C, Chappell v. Slieard, Bishop, 1 Cliff. 186, 202; Bouoicault IJur. k. s. 997. V. Fox, 5 Blatohf. 87 ; Boucicault < Mawman v. Tegg,' 2 Russ. 393. . V. Wood, 7 Am. Law Reg. K. B. 539, 550 ; s. c. 2 Biss. 34. 506 THE LAW OF COPYRIGHT AND PLAYRIGHT. Buxton V. James, it was shown that the piratical woric had appeared in November, 1849, when the plaintiffs promptly protested against its publication ; but they did not then begin legal proceedings owing to the doubtful state of the law as to the validity of the copyright in the work of a foreign author. This doubt was apparently removed by the decision in Boosey V. Jefferys, rendered May 20, 1851. On August 20, the plain- tiff again notified the defendant of the violation of his rights, and soon after filed his bill for an injunction. The delay was held to be justifiable.^ Plaintiff's Rights not Prejudiced by Custom. — The plaintiff's case is not prejudiced by the fact that he chooses to assert a right which other authors have not sought to enforce. Thus where the plaintiff moved to restrain the publication of a dramatization of his novel, and it was objected that other authors had not complained of the dramatization of their works, the court said : " It is no answer to say that similar infringe- ments have often been committed. Although Sir Walter Scott and others did not choose to assert any claim of this kind, this does not affect the rights of the plaintiff; and it is to be observed, moreover, that there has been a considerable altera- tion of the law since the time referred to by the extension of copyright to dramatic performances." ^ Nor can the custom of the trade be successfully pleaded against the plaintiff's right to sue.^ Stronger Case of Acquiescence on Final Hearing than Prelim- inary Application. — A stronger case of acquiescence on the part of the plaintiff is required to justify the refusal of an in- junction at the final hearing than on a preliminary application ; " for at the hearing of a cause it is the duty of a court to decide upon the rights of the parties, and the dismissal of the bill upon the ground of acquiescence amounts to a decision that a right which has once existed is absolutely and for ever lost." * Are Plaintiff's Rights Lost by Apparent Acquiescence ? — In cases wherein the plaintiff seeks to enforce his riglits after 1 5 De G. & Sra. 80. considered ante, pp. 503, 504. See re- 2 Wood, V. C, Tinsley v. Lacy, 1 marks of Lord Cottenham in Saunders Hem. & M, 752. v. Smitii, 3 My. & Cr. 729. 8 Campbell v. Scott, 11 Sim. 31 ; * Turner, L. J., Johnson . s U. S. Rev. St. s. 629, cl. 1 ; JoUie Judd, 4 Duer (N. Y.), 379, 382 ; Keene V. Jaques, 1 Blatchf. 618, 627 ; Pulte v. v. Wheatley, 9 Am. Law Reg. 33, 45 ; Derby, 6 McLean, 328, 336 ; Little v. Boucicault v. Fox, 5 Blatchf. 97 ; Par- Hall, 18 How. 165, 171 ; Keene v. ton v. Prang, 3 Cliff. 537. The act of Wheatley, 9 Am. Law Reg. 33; Bouci- 1856 provided that actions for the vio- cault V. Hart, 13 Blatchf. 47 ; Talcott lation of playright should be brought V. Moore, 1 N. Y. Weekly Dig. 485 ; in any court of the United States. Isaacs V. Daly, 7 Jones & Sp. (39 N. Y. The corresponding sections 4966 and Superior Ct.) 511. 4967 of the Revised Statutes are silent Section 9 of the act of 1831 ex- as to the jurisdiction of actions and pressly empowered the courts of the suits brought for the invasion of play- United States to grant injunctions re- right and the publication of manu- 36 546 THE LAW OF COPYRIGHT AND PLAYRIGHT. "Where a case arises under that act," said the Supreme Court of the United States, " we have jurisdiction, though both the parties, as in this case, are citizens of the same State. But if the act do not give the remedy sought, we can only take jurisdiction on the ground that the controversy is between citizens of different States." ' Where complaint was made in the United States Court of the fraudulent use of the title of a musical composition, and both parties were citizens of the same State, the court said : " The question, therefore, whether the court will interfere to -prevent the use of the title in fraud of the plaintiff upon principles relating to the good will of trades is not before us, as it cannot be entertained in this suit." ^ So when it is sought to enforce not the copyright itself, but a contract relating to the copyright, a federal court has no juris- diction by virtue of the copyright statute, but only on the general ground of the citizenship of the parties.^ Manuscripts are protected by the common law as well as by the statute. Hence, for the unlawful publication of a manuscript, the owner may claim his common-law remedies in a State court ; or, if a citizen or resident of the United States, he may seek redress under the statute in a federal court. The representation of a manuscript drama, is not a publication prohibited by section Bcripta. But, as is shown in the text, view above taken, the controversy jurisdiction of all cases arising under arises out of the contract. The author- the copyright law is expressly vested ship of the complainant is not contro- in the federal courts which are further verted, nor is it doubted that the empowered to grant injunctions to copyright is vested in the defendants, prevent the violation of any right se- There is no question, then, which can cured by the statute. Hence there can be said to arise under the act of Con- be no doubt that the jurisdiction of gress. On the construction of the the United States courts in the case of contract alone, the rights of the parties dramatic compositions and manuscripts depend. And in such a case I am is now the same as it was under the inclined to think that the circuit court previous statutes and as it is under the cannot exercise jurisdiction." existing statute in the case of copy- As to the nature of the contract in right. See Boucicault v. Hart, 13 the two cases last cited, in which it Blatchf. 47. was held that a State court was the 1 McLean, J., Little v. Hall, 18 proper tribunal in which to bring the How. 171. action, see ante, ppf366, 362. See also 2 JoUie V. Jaques, 1 Blatchf. 627. Gould v. Banks, 8 Wend. (N. Y.) 562; 3 Pulte V. Derby, 5 McLean, 328, Willis w.Tibbals, 1 Jones & Sp. (N.Y.) 836; Little ./.Hall, 18 How. 165. In 220 ; Carter w. Bailey, 64 Me. 458 ; which the former case, Mr. Justice McLean were actions growing out of contracts said: "Does the question in this case relating to copyrights, and were brought arise under the copyright law ? In the in a State court. JURISDICTION OP THE UNITED STATES COURTS. 547 4967. Hence, redress for such wrong must be sought in a State court, unless a federal court has jurisdiction by reason of the citizenship of the parties.^ Statutory Penalties and Forfeitures must be Sued for in Court of Law. — It remains to consider whether matters relating to penalties and forfeitures are within the jurisdiction of a court of equity, or whether they belong exclusively to courts of law. This question is practicallj'' obsolete in England, where the dis- tinction between law and equity tribunals is in effect abolished. But in the United States the subject has not lost any of its practical importance. Hence, it is necessary to examine the English as well as the American decisions on this point. In Colburn v. Simms, decided in 1843, Vice-Chancellor Wigram said that he had never known of an instance in which a court of equity had ordered the forfeited copies to be deliv- ered up, except one case before Lord Eldon, where the order had been made by consent. He held that since the House of Lords, in Donaldson v. Becket,^ had declared that there could be no copyright in a published work, except by statute, a court of equity had no power in the case of a printed book to decree a delivery of copies on the principles of the common law ; that such jurisdiction, if it existed, must be derived from an act of Parliament ; and whether the statutes relied on in the case before the court had that effect, it was not necessary to decide, for the reason that the plaintiff was barred on other grounds from recovering the forfeitures.^ 1 Keene v. Wheatley, 9 Am. Law For a fuller consideration of the Reg. 33 ; Boucicault v. Hart, 13 provision of the statute for the protec- Blatchf. 47. In considering the cor- tion of manuscripts, see ante, p. 12i. responding provision in the act of - 4 Burr. 2408. 1831, Shipman, J., said ; " The juris- ' 2 Hare, 543, 553. The statutes diction of the courts of the United referred to provided that the forfeited States is indeed confined by the 9th copies should be delivered to the owner section of the act of February 3, 1831, of the copyright " upon order of any to cases of threatened or actual print- court of record." 54 Geo.. III. c. 156, ing and publication, and would proba- s. 4 ; 41 Geo. III. c. 107, s. 1. The stat- bly not include the public performance ute now in force declares that the pirat- of a manuscript play, unless indeed ical copies of a book shall be the prop- •the parties should be citizens of differ- erty of the owner of the copyright, ent States. But the jurisdiction of the who shall "sue for and recover the State courts, in suits to protect the same, or damages for the detention owners of manuscripts, is complete in thereof, in an action of detinue." 5 all other emergencies." Boucicault v. & 6 Vict. c. 45, s. 23. In Delf v. Dela- Fox, 6 Blatchf, 97. motte, decided in 1857, the Court of 548 THE LAW OP COPYRIGHT AND PLAYRIGHT. In the United States, the law may be regarded as settled that the penalties and forfeitures imposed by the statute must be sued for in a court of law. The statute of 1831 provided that in the case of a book the penalties and forfeited copies should " be recovered by action of debt in any court having competent jurisdiction thereof;"^ and that in the case of "any print, cut, or engraving, map, chart, or musical composition," the penalties and forfeitures should " be recovered in any court having competent jurisdiction thereof." ^ In Stevens v. Glad- ding, wherein it was sought to recover the penalties and for- feitures prescribed by section 7 of the statute of 1831, for the piracy of a map, the Supreme Court of the United States held that it was not within the usual and ordinary jurisdiction of a court of equity to decree a payment of the penalties, or a de- livery of the forfeited copies or plates. Such jurisdiction could be derived only from express statutory provision ; and the only equitable jurisdiction in cases of copyright vested in the courts of the United States was that conferred by the act of 1819, which gave to such courts original cognizance, as well in equity as at law, of all cases arising under the copyright laws, and empowered them to grant injunctions according to the course and principles of courts of equity. " There is nothing in this act of 1819," said Mr. Justice Curtis, " which extends the equity powers of the courts to the adjudication of forfeitures ; it being manifestly intended that the jurisdiction therein conferred should be the usual and known jurisdiction exercised by courts of equity for the protection of analogous rights."^ The law, as thus expounded by the Supreme Court in 1854, has not been changed by any statute since passed. The sec- tions of the copyright law,* which impose forfeitures and pen- alties, do not specify in what court they shall be recovered. Section 629 ^ of the Revised Statutes gives to the Circuit Courts of the United States original jurisdiction of all suits at law or in equity arising under the copyright laws ; and section 4970 simply empowers circuit courts, and district courts having the jurisdiction of circuit courts, to grant injunctions to prevent Chancery ordered the defendant to ' s. 7. deliver to the plaintiff the forfeited ' 17 How. 447, 455, copies. 8 Kay & J. 584. * 4964, 4965. Is. 6; 4U. S.St, at L. 437. « cl. 9. JURISDICTION OP THE UNITED STATES COURTS. 549 the violation of copyright. No one of the statutory provisions above referred to, nor any other provision, gives to a court of equity jurisdiction over forfeitures and penalties.^ Forfeiture of Copies at Common Law. — The question has been raised whether a person, whose common-law rights in an unpublished work have been violated, is entitled to the piratical copies in the possession of the wrong-doer, and whether it is within the jurisdiction of a court of equity to order such cop- ies to be delivered up. In Prince Albert v. Strange, it appeared that the defendant had in his possession copies of etchings, taken from plates which had been surreptitiously obtained from the plaintiff. The original etchings, which had not been published, and the plates, were the property of the Queen and Prince Albert. The defendant had also prepared a descriptive catalogue of the etchings, and was intending to sell the catalogue and publicly to exhibit the etchings. Besides an injunction against such sale and exhibition, the bill prayed that the defendant be ordered to deliver to the plaintiff all copies of the etchings in his possession, and that the copies of the catalogue be deliv- ered up to be destroyed. The relief asked was given by Vice- Chancellor Bruce,^ and his judgment was affirmed on appeal.^ In reply to the objection that the plaintiff was not entitled to a forfeiture of copies, the ViGe-Chancellor said : " It is then said that neither the copies of the catalogue nor the impres- sions that have been taken can be delivered up, or be directed to be delivered up, inasmuch as the dei'endant contends that he is entitled to the property in the materials on which they are printed. With regard to catalogues, no such question, I think, arises. They must be either cancelled or destroyed ; and with- out destruction they can hardly be cancelled. With regard to the impressions, it might possibly be right to attend to the defendant's claim had the impressions been upon a material of intrinsic value, upon a material not substantially worthless, except for the impressions, which, by the wrongful act of the 1 In Drury v. Ewing, the Circuit as well as the plates on which they Court of the United States, after the had been printed. 1 Bond, 554. defendants had violated an injunction, ^ 2 De G. & Sm. 652. ordered them to deliver to the court all ^ 1 Mac. & G. 25. the piratical copies In their possession 55ft THE LAW OF COPYRIGHT AND PLATRIGHT. defendant, have been placed there. That case, however, does not arise. The material here is substantially worthless, except for that in which the defendant has no property. There con- sequently can be no reason why the effectual destruction of the subject should not be directed by the court; in doing which, I repeat, I abstain from giving any opinion as to tlie particular mode d' proceeding which the court ought to adopt in a similar case in all points except as to the intrinsic value of the material." ^ It was here decided that the plaintiff was by the common law entitled to the piratical copies of his unpublished produc- tion, and that a court of equity had the jurisdiction to order them to be delivered to him. But the important principles involved in the case are either not mentioned or are merely referred to in the extended opinions of the judges. Admitting that the owner of an unpublished work is entitled to piratical copies wherever found, it is by no means clear on what principle the subject of their delivery is within tlie jurisdiction of a court of equity. " It is a universal rule in equity," says Story, " never to enforce either a penalty or a forfeiture." ^ It has been seen that both in Colburn v. Simms, and in Stevens v. Gladding, the latter decided by the Supreme Court of the United States, it was held that a court of equity has no jurisdiction in the case of forfeitures and penalties, unless such jurisdiction is expressly conferred by statute.* . " The general rule undoubtedly is," said the court in the former case, " that, where a party seeking equitable relief is incidentally entitled to the benefit of a penalty or forfeiture, the court requires him, as a condition of its assistance, to waive the penalty or forfeiture. If, therefore, this court is bound to order the delivery of the copies, the right to that relief must be found in some common-law right of the proprietor of the copy, independently of the penal provisions of the statutes, or it must be found in those words of the statute which relate to suits in equity. " Now, I am not aware that the title of the plaintiff to the exercise of the jurisdiction of this court, to compel the delivery 1 2 De G. & Sm. 716. » See also Monk v. Harper, 3 Edw. 2 2 Eq. Jur. § 1319. See also fol- Ch. (N. Y.) 109. lowing sections. JURISDICTION OP THE UNITED STATES COURTS. 551 up of the copies of the work in question to the proprietors of the copyright, has been, or can be, founded upon any common- law right anterior to or independent of the statute of Queen Anne. There would be great difficulty in applying to this subject the principles of the common law, which, in certain cases, give to the owner of an original material the right of seizing it, in whatever shape it may be found, if he can prove it to be his own, or which relate to what is termed confusion of goods, by which if one man voluntarily mixes his property with that of another, so that the two become inseparable, the entirety is held to belong to him whose property has been invaded. It may be true, that, if one writes or prints upon the paper of another, the writing or printing becomes his to whom the paper belongs ; but it does not necessarily follow that the converse of that proposition would be true, — that one who writes or prints upon his own paper the composition of another, has thereby so mixed his property with the property of the author whose work he has copied, that he has lost his original title to the material which he has so employed. ... I think, therefore, the case for the plaintiff on this point must be placed on another ground, and that his right to a decree of this court for the delivery up of the copies, if that right exists, must be found witliin -the provisions of the statute, and not upon any common-law right independent of them." ^ It is true that, both in Colburn v. Simms and in Stevens v. Gladding, the question related to the statutory penalties, and that, in the former suit, the Vice-Chancellor intimated that a different principle might perhaps be held to apply in a case governed not by the statute, but by the common law.^ The statute, which imposes penalties and forfeitures, settles the question that the wronged person is entitled to the penalties and forfeitures. But unless the legislature has expressly declared in what tribunal they shall or shall not be recovered, 1 "Wigram, V. C, 2 Hare, 554, 555. authors within the limits prescribed by 2 Continuing the remarlis quoted in the statute, and thereby negatived the the text, he said: "There might in- existence of that absolute common-law deed have been some countenance for right in their works which had been such a principle before the judgment previously supposed to exist, and which of the House of Lords, in the case of the decision in the Court of King's Donaldson o. Becket, 4 Burr. 2408, Bench, in the case of Millar v. Taylor, had confined the exclusive right of 4 Burr. 2303, had tended to affirm." 552 THE tAW OP COPTEIGHT AND PLAYRIGHT. this question is left to be determined by the general principles which distinguish equity jurisdiction from that of courts of law. And, in the absence of such statutory direction, the jurisdiction of courts of equity, in the matter of penalties and forfeitures, is the same whether the right to them exists by the common law or is conferred by statute. Hence, if a court of equity, as was held in Colburn v. Simms, and Stevens v. Gladding, has no jurisdiction of statutory penalties and forfeitures, except by express authority of the legislature, it can have no cognizance of the same matter under the common law. COMMON-LAW PLAYEIGHT. 553 CHAPTER XIII. COMMON-LAW PLAYRIGHT IN UNPUBLISHED DRAMAS. Playright Defined. — A dramatic composition is capable of two distinct public uses. It may be printed as a book and repre- sented as a drama. With respect to the former use, there is no distinction in law between a dramatic and any other literary composition. The exclusive right of multiplying copies is called copyright. But this does not embrace the right of representa- tion. As these two rights are wholly distinct in nature, it is not only important but necessary that they should be distin- guished in name. The property in a dramatic composition is often called dramatic copyright. But this expression is faulty and inaccurate. If it refers to the exclusive right of printing a drama, it would be equivalent to the name poetic copyright, prose copyright, or historical copyright, as applied to works in poetry, prose, or history. If its use is restricted to the right of representing a drama, it is not accurate ; because this is not a right to multiply copies in the proper meaning of that expres- sion, and cannot therefore strictly be called copyright. If it is intended as a name for both rights together, it can serve only to increase the confusion which should be wholly removed. The sole liberty of publicly performing a dramatic composition might more properly be called dramatic right or acting right. The expression, stageright, coined by Charles Reade, is not uncommon. But there ai'e objections to this word with respect both to its formation and' the purpose which it is required to serve. I have adopted playright as being, in my judgment, the best name for the purpose. It is a convenient euphonious word, and its formation is analogous to that of copyright. As the latter word literally means the right to copy a work, or the right to the copy, so playright means the right to play a drama, or the right to the play. And it may properly be used to mea n 554 THE LAW OP COPTEIGHT AND PLAYEIGHT. not only the right of representing a play, but also the right of performing a musical composition. In the United States, playright is secured by the statute in pub- lished, and exists by the common law in unpublished, dramatic compositions. The English statute secures the right of per- forming both printed and manuscript dramas, and will probably be construed to have taken away common-law playright in unpublished as well as in published plays. In this chapter, the common-law rights of dramatists will be considered. Are the Owner's Common-Law Rights Lost by the Public Performance op a Manuscript Drama ? It has been shown that the author of any intellectual produc- tion, whether it be a literary, dramatic, or musical composition, or a woi'k of art, has in it by the common law a property which is absolute and complete until lost by some act of the owner or by the operation of some statute.^ This property secures the owner in the exclusive enjoyment of any and every use of his production which does not in law amount to a forfeiture of his exclusive rights. The law has been settled to the effect that, by publication in print, the owner's common-law property is lost, and that in a work so published he has no other rights than those secured by statute. Hence, a dramatist may have a statutory but no common-law right to the exclusive represen- tation of a drama which he has published in print. But the exclusive right of the owner publicly to represent a manuscript play exists by the common law, unless such public representa- tion, by operation of the common law or by force of some statute, works an abandonment of the right. The question, then, is raised whether the common-law prop- erty in a manuscript play is lost or prejudiced by the public performance of the play. Public Performance not a Publication which Defeats Copyright. — It may be regarded as settled that the authorized public performance of a manuscript drama is not such a publication as will defeat a copyright afterward obtained.^ Where it 1 See Chap. 1. Roberts o. Myers, 13 Monthly Law 2 Boucicault v. Fox, 5 Blatchf. 87 ; Reporter, 396 ; Keene v. Kimball, 16 COMMON-LAW PLAYEIGHT. 655 appeared that Boucicault's Octoroon had been publicly rep- resented in New York by the author from Dec. 6 to Dec. 12, 1859, before a copyright was applied for, it was held that such representation did not defeat the copyright, and could not " be regarded as any evidence of his abandonment of the manuscript to the public or to the profession of players." ^ So the repre- sentation of a manuscript opera in Paris was held to be no prejudice to the copyright, which was afterward secured by a first publication of the work in London.^ Is the authoi'ized public performance of a manuscript drama an abandonment of the owner's common-law rights to the extent that any one without license may publish it in print or repre- sent it on the stage ? I shall first review the authorities, and then consider the true principles by which the question is to be determined. Review of English Authorities. — The English cases which are frequently cited on this subject, but rarely with intelligence, lend but little aid to the solution of the problem. Since the 3 & 4 Will. IV. c. 15, was passed, in 1833, the right of repre- senting manuscript as well as printed plays has been secured by statute in England ; and since 1842 there has been a stat- utory provision declaring that the first public representation of a dramatic composition shall be equivalent to the first publica- tion of a book.^ The decisions in Boucicault v. Delafield* and Boucicault v. Chatterton,^ in which it was held that an author forfeits his title to English playright in a manuscript drama by first representing it in a foreign country, were governed by the above and other statutory provisions. Hence, these authorities have no bearing on the question relating to the common-law rights of dramatists in the United States, Pour cases, decided before the 3 & 4 Will. IV. c. 15 was passed, are often cited on the question under consideration, but two of them have no bearing on the subject. Coleman v. Wathen, decided in 1793, was an action to recover the penalties, under the statute, of Anne, for the unlicensed performance of Gray (82 Mass.), 549; Boucicault u. Exch. 288, 299. See also Clark ». Wood, 2 Biss. 34 ; Boucicault v. Hart, Bishop, 25 L. T. n. s. 908. 13 Blatchf. 47. 3 5 & 6 Vict. c. 45, o. 20. 1 Boucicault v. Fox, 5 Blatchf. 97. * 1 Hem. &, M. 597. 2 D'Almaine v. Boosey, 1 Y. & C. '5 Ch. D. 267. 556 THE LAW OF COPYRIGHT AND PLAYRIGHT. O'Keefe's Agreeable Surprise. This act secured copyright, but not playright ; it prohibited unlawful printing, but not public representation. Hence, whatever may have been the common-law rights or remedies of the plaintiff, it is clear that he was not entitled to the statutory penalties, since the unli- censed performance of his play was not a violation of the right secured by the statute, and was not a thing prohibited by the statute. And this was the judgment of the court, which de- cided simply that representation was not publication within the meaning of the statute.^ In Murray v. EUiston, decided in 1822, the defendant was charged with representing on the stage an abridged version of Lord Byron's published tragedy, Marino Faliero, the copyright in which belonged to the plaintifiF. The question was referred by Lord Eldon to the King's Bench, whose decision was that " an action cannot be maintained by the plaintiff against the defendant, for publicly acting and representing the said tragedy, abridged in manner aforesaid." ^ What weight the court gave to the consideration that it was an abridged version which had been represented cannot be determined. But this fact liad no true bearing on the question involved. As the tragedy had been published in print, the plaintiff could have in it no exclu- sive rights, except under the statute securing copyright ; and the representation complained of was not such a publication as was prohibited by the statute. Hence, there was no ground on which the defendant could be held guilty of piracy. Macklin v. Richardson, decided in 1770, related to Macklin's farce, Love &. la Mode, which had been publicly performed by the author, but had not been published in print by him. The defendant having employed a short-hand writer to make a report of the farce during the performance, published a part of the copy so obtained in a monthly magazine, with the an- nouncement that the rest would appear in the next number. Such publication was rightly held to be piratical ; but the court 1 5 T. E. 245. " The statute for the f ul assignees. It was so held in the protection of copyright," said Lord great copyright case by the House of Kenyon, " only extends to prohibit Lords. But here was no publication." the publication of the book Itself by 25 Barn. & Aid. 657, 66L any other than the author or his law- COMMON-LAW PLAYRIGHT. 657 expressed no opinion on the question whether an unlicensed performance of the piece would have been unlawful.^ The latter question was directly raised in 1820, in Morris v. Kelly, on an ex parte application for an injunction to restrain the defendant from representing O'Keefe's Young Quaker. This comedy had been publicly represented by the author, but had not been printed by him.^ It does not appear in what manner the defendant had obtained a copy. The injunction was granted by Lord Eldon ; but his views of the legal princi- ples involved do not appear in the report of the case.^ From this review, it will be seen that the only English authorities which bear on the question as to what effect the authorized public representation of a play has on the owner's common-law rights are Macklin v. Richardson, in which it was held that such representation does not entitle any one without authority to print a copy of the play got by ste- nography ; and Kelly v. Morris, which is an authority in support of the doctrine that the owner's exclusive right at common law to represent a manuscript play is not lost by its public, per- formance. Review of American Authorities. — The question whether any person without license is at liberty to publish in print or to reproduce on the stage a manuscript play after its public per- formance by the owner has been judicially discussed in several recent American cases, and in none at greater length than in Keene v. Wheatley, where it was first raised in the United States Court in I860.* This suit was brought by Miss Laura Keene, for the alleged invasion of her rights in Our American Cousin, She had bought the manuscript of this comedy from its author, Tom Taylor ; and, after making in it material alter- ations, including additions suggested by Joseph Jefferson, an actor employed by her, she entered the title for copyright under the statute of the United States, but did not publish the play in print. It was first publicly performed at her theatre in New York in 1858. Soon after, it was brought out in Phila- delphia by the defendants, William Wheatley and John S. Clarke, who were in possession of a copy of the original manu- 1 Amb. 694. ' 1 Jac. & W, 461. 2 See post, p. 667, note 5. * 9 Am. Law Reg. 33. 558 THE LAW OP COPYRIGHT AND PLATEIGHT. script, which had been surreptitiously obtained in London, where the comedy had not then been performed. The changes and additions made by Miss Keene had been got by the defendants from Jefferson. It appeared, therefore, that the defendants, in representing the play, had derived no aid from any person who had witnessed its authorized performance. On these facts there were but two essential questions of law before the court : 1. Whether Miss Keene's statutory copyright was valid. 2. Whether the performance by her was an abandonment of her common-law rights, so as to entitle the defendants to represent the play through the means by which they were enabled to do so. The court held that the copyright was invalid, on the ground that the comedy was the production of a foreign au- thor ; that the question whether the use by the defendants of the manuscript surreptitiously obtained was not properly before the court, because this fact, though proved by the evidence, had not been alleged in the complainant's bill ; but that, on the general principles of equity, independently of her property in the manuscript, the complainant was entitled to maintain the suit on the ground that the communication by Jefferson to the defendants of a material part of the play was a breach of the Implied confidence between him and his employer. Iia'w Judicially Construed that any Person may Represent or Print Play obtained by Memory, but not by Writing, from Public Performance. — The Consideration of the question whether any person without authority is entitled to print or to act a manu- script play which has been obtained from its authorized public performance was wholly extra-judicial in this case, since the defendant's representation had not been effected by this means. Nevertheless, the court entered into a long discussion of the subject, in which was advanced the novel theory that the exer- cise of memory is a lawful means of depriving the owner of his rights in a manuscript drama which he has caused to be publicly performed. The rule was laid down that the perform- ance of a manuscript play before a public audience is a publi- cation to the extent of conferring upon any spectator who has obtained it by " fair means " the right either to repre- sent or to print it without the consent of the owner. The dis- tinction was drawn between the exercise of memory and the COMMON-LAW PLATBIGHT. 659 use of writing as a means of subsequent representation or publication ; and the opinion was expressed that " the literary proprietor of an unprinted play cannot, after making or sanc- tioning its representation before an indiscriminate audience, maintain an objection to any such literary or dramatic republi- cation by others as they may be enabled, either directly or secondarily, to make from its having been retained in the memory of any of the audience ; " ^ but that no one, in order to get the play for representation, might lawfully make use of stenography, writing, notes, or any other except " fair means." And " the only fair means by which others could have obtained the words were, through their impression upon the memory of some person whose constant attendance at her performances of the play might at length enable him elsewhere to repeat or to write out its language." ^ The language above quoted goes to the extent that it is not piratical either to represent on the stage or to publish in print a manuscript play obtained through the memory of any person who has witnessed its public performance.^ This doctrine was afterward approved by the New York Superior Court in Keene v. Clarke, and appears to have been recognized by the Circuit Court of the United States in Crowe v. Aiken. But in neither of these cases did the decision turn on the question of memory. In Keene v. Clarke, the defendant was charged with unlawfully representing Our American Cousin, which he had got in the manner above described in considering Keene v. Wheatley. The case was brought before the General Term of the New York Superior Court on certain exceptions in law which made the views expressed by Chief Justice 1 Cadwalader, J., 9 Am. Law Keg. composition so circulated. If it is a 85. dramatic composition, it may be repub- 2 Ibid. 51. lisiied either by reprinting it, or by ' That the court approved the the- theatrical representation. If we now cry that the unlicensed printing of a recur to the case of a dramatic compo- manuscript play obtained by memory sition, which, though unprinted, has from its public performance is not been publicly represented on the stage, violation of the owner's rights is also we will see that the principle applica- shown by the following language of the ble must be the same, so far as this opinion : " In cases not legislatively representation of it may have been provided for, the public circulation of a the means of enabling ulterior publica- literary composition thus authorizes tion to be made." Ibid. 92. any person to republish it from any 560 THE LAW OF COPYRIGHT AND PLATRIGHT. Robertson on the question here under consideration wholly extrajudicial.! Crowe V. Aiken was brought in 1869 by the husband of the actress well known as Miss Kate Bateman, to restrain the unlicensed playing of the drama, Mary Warner, the manu- script of which Mrs. Crowe had bought from Tom Taylor. It was first brought out by her in London, in June, 1869, and in the following autumn in New York. There was no author- ized publication of it in print. The defendant having, as he alleged, got a printed copy from Robert M. De Witt, a New York publisher of dramas, announced the play for performance at his theatre in Chicago. This was held to be a threatened invasion of the plaintiff's rights ; and an injunction was ac- cordingly granted. It did not appear by what means the play had been obtained for publication ; but it was without the knowl- edge or consent of Mrs. Crowe or Mr. Taylor. The court had no doubt that " De Witt obtained the copy of the play of Mary Warner, which he furnished to the defendant in this case, either in whole or in part, through a short-hand reporter, or in some other unauthorized or wrongful way, and not by mem- ory alone." ^ The question of memory, therefore, did not enter directly into the decision ; but the court seems to have recog- nized the soundness of the distinction between memory and stenography, which had been advanced in Keene v. Wheatley, and approved in Keene v. Clarke. TJnlicenBed Performance of Play Got by Memory Held Lawful. — In Keene v. Kimball, the Supreme Court of Massachusetts, in 1860, following the authority of Keene v. Wheatley, affirmed the doctrine that it is not unlawful to represent on the stage a manuscript play obtained through the memory of any one who has witnessed its public performance ; but expressed the opinion that the unlicensed publication in print of a drama so obtained is piratical.^ The play in controversy was Our American Cousin. The bill alleged that " the comedy, as produced at the Boston Museum, was produced in palpable imitation of the manner in which it was produced at the 1 5 Rob. (N. Y.) 38, See remarks 2 2 Biss. 208, 215. of Monell, J., Palmer v. De Witt, 2 3 ig Gray (82 Mass.), 545. Sweeny, 548-545. COMMON-LAW PLAYRIGHT. 561 plaintiff's theatre; and that the defendant had sent his ar- tists, or some one or more of them, or some person whom he engaged to instruct them in the proper manner of performing the comedy, to witness its representation at the plaintiff's theatre, in order that that representation might be copied by the artists in said representation at the Boston Museum." In the opinion of the court, this was no violation of the complain- ant's rights ; and, as there was no allegation that the defendant had made use of stenography, or other " surreptitious means," in obtaining the play, it was held on demurrer that this omis- sion was fatal to her suit, on the ground that " the representa- tion by the defendant of a dramatic work, of which the proprietor has no copyright, and which she had previously caused to be publicly represented and exhibited for money, is no violation of any right of property, although done without license from such proprietor ; and, as it does not appear to have been done in violation of any contract or trust, cannot be restrained by injunction." ^ In Shook V. Rankin, decided in 1875 by the United States Circuit Court in the district of Minnesota, the defence of mem- orization was set up by the defendants, when charged with the unlawful representation of the Two Orphans. The court found that the play had not been obtained by this means, and granted an injunction ; but District Judge Nelson, without expressly approving or disapproving the theory of memorization, seems to have given it some countenance.'^ ' Ibid. 552. I am informed that allegation that the defendant has the defendant in this ease was in availed himself of a surreptitious copy possession of a written copy of the of the manuscript play. But there is play, which had heen obtained with- no such allegation in the bill, and no out the consent of Miss Keene ; and such fact is admitted by the demurrer." that members of his company had Ibid. 551. attended her theatre merely for the ^ 3 Cent. Law Jour. 210. The purpose of learning the "stage busi- right to reproduce on the stage an ness," &c., in order to imitate her per- unpublished opera, when obtained by formanee of the comedy. But there memory from its public representation, was nothing in the bill to show that was recognized obiter by Vice-Chancel- the defendant had not got the play lor Bacon, in the recent case of Boosey through the memory of those who u. Pairlie. " If there were no statute," witnessed its authorized performances, he said, " he [defendant] would have On this point, the court said : " The been at liberty by the exercise of his counsel for the plaintiff in their argu- memory — and some people have been ment have laid much stress upon the so gifted — to recollect the notes of the 36 562 THE LAW OP COPYRIGHT AND PLATRIGHT. Unlicensed Performance of Play Obtained by Memory Held Piratical. — The same question was raised in the case of French V. Conolly, decided by the New York Superior Court in 1875. The defendants were charged with representing the unpublished play, Around the World in Eighty Days, which the plaintiffs had bought from the French authors, Verne and D'Ennery. The defendants pleaded that they had got the play by drama- tizing Jules Verne's published story, Le Tour du Monde en Quatre-vingU Jours. The court found that this defence was not sustained by the facts.' It was shown by the plaintiff that one of the defendants had deposed in another case that he had produced the play from memory, after witnessing its authorized representation in Paris. The defendants now contended that this was no violation of the plaintiff's rights. The court held that this was not a good defence, and granted an injunction. After referring to the conflict of judicial opinion on this point, Judge Curtis said : " It would seem better to accord with justice and good morals, that the carrying away in the mem- ory, or in the stenographic notes, of a spectator, of the contents of a play, unauthorized by the owner, is an infringement of his proprietary rights. It is a surreptitious mode of procuring the literary property of another ; and, when done from motives of pecuniary gain, at the expense of the owner, is not defen- sible." 2 This case is a direct authority in support of the doctrine that the unlicensed performance of a play, obtained by memory from its authorized performance, is piratical. Unlicensed Printing of Play Got from Public Performance Held Piratical. — The question involved in Crowe v. Aiken, as to airs, and perhaps more than the airs, Figaro, and went out at the end of the choruses and otlier tilings, and to each scene or act and transcribed it, so have written them in music, and have tliat witliin a short period after the had tliem sung and performed at his public representation of that play in own instance. Indeed there is a very Paris, the Marriage of Figaro was remarkable instance in the history of brought out on the English stage, no the theatre, when Beaumarchais' plays line of it having been printed, and no were exciting so much popularity in manuscript ever having been furnished France. An English dramatist who to them. I say, if there was no statute, happened to be in France, with the that might be done by anybody with help of his friend, took down — not in Offenbach's music." 7 Ch. D. 309. short hand, for they could not write ^ See post, p. 580. that, but took down — in their memo- - N. Y. Weekly Dig. 197. ries, the scenes in the Manage de COMMON-LAW PLAYEIGHT. 563 the right of any person to print a manuscript play got witliout license from its authorized public performance, was a direct issue in Palmer v. De Witt. The defendant had published without authority Robertson's Play, the manuscript of which, with the exclusive right of representation in the United States, had been bought from the author by tiie plaintiff. There had been no authorized publication of the comedy in print, either in the United States or in England ; but it had been publicly represented by the author in London, and by the plaintiff in New York. The defendant alleged that he had obtained a copy through persons who had witnessed the performances in London, and maintained that these, as well as the representations in New York, were an abandonment of the work to the public. At the trial, the Special Term of the Superior Court of New York city, following the doctrine advanced in Keene v. Wheatley and Keene v. Clarke, decided in favor of the defendant.^ This judgment was reversed by the General Term of the court.^ In the opinion delivered by Judge Monell, who had dissented from the other two judges in Keene v. Clarke, it was maintained that the owner's rights in a manuscript play are not lost or prejudiced by its public performance ; and that, no matter by what means a copy may be obtained, either unlicensed publi- cation in print or representation on tlie stage is piratical. The decision of the General Term, that the unlicensed print- ing of the play was an invasion of the plaintiff's riglits, was affirmed by the Court of Appeals, which declared that " lectures and plays are not, by their public delivery or performance in the presence of all who choose to attend, so dedicated to the public that they can be printed and published without the author's permission. It does not give to the hearer any title to the manuscript or a copy of it, or the right to the use of a copy."* This language clearly expresses the true principle that the unlicensed publication in print of a play obtained from its public performance, by any means, whether writing or memory, is piratical. But the court seems to have given some weight to the consideration that there was no allegation or 1 7 Rob. (N. Y,) 530. 2 2 Sweeny (N. Y.), 530. 8 47 N. Y. 632, 543. 564 THE LAW OP COPYRIGHT AND PLAYRI6HT. proof tliat the play in controversy had been secured through memory. "The fact is found," said Judge Allen, "that the defendant received the words of this comedy, and a description of the arrangement, general stage directions, division of acts and scenes, as printed by him, from one or more persons who had seen or heard the same publicly performed in England. It is not found that it was reported by the witnesses of the perform- ance from memory ; and it would be entirely consistent with the findings that copies of the play as performed, with the stage directions, &c., were surreptitiously obtained and put in the possession of the defendant." ^ Theory of Restrictive Notice. — In Keene V. Clarke, the theory was judicially advanced, that the owner might reserve his rights in a manuscript play after public representation, by a restrictive notice to the spectators, which would prevent them from law- fully making any use of it to his injury. It was said that the effect of such notice was to create an understanding between the spectators and the owner of the play that they should not make any use of their remembrance of it to his prejudice, and that the violation of such understanding might, in the language of Chief Justice Robertson, who pronounced the opinion, "be restrained upon the same principle as any other betrayal of confidence ; such as the disclosure of the secrets of a business, art, trade, or mystery agreed not to be divulged." Such un- derstanding, it was further held, could not be implied as one of the ordinary terms of admission to the performance, but " might be created by indorsements on a ticket of admission, or notices publicly posted in the place of performance, or other modes. Such precautions are necessary to protect the exclusive right to an uncopyrighted production ; otherwise, they would stand on the same footing as if they were copyrighted." ^ In this country, the doctrine that restrictive notice is nec- essary to protect the rights of an owner in his manuscript play has met with no recognition outside the Superior Court of New York, where it was first announced in 1867. And, even there, its unsoundness was soon forcibly pointed out by Judge Monell in the following language : " Whatever means a prudent man may adopt to prevent his property from being feloniously taken 1 47 N. Y. 642. ■' 5 Rob. (N. T.) 61. COMMON-LAW PLAYRIGHT. 665 from him, it cannot, I think, be successfully contended that, if he chooses to take the risk, he may not leave it exposed without mark or other sign to designate it as his property ; or that, by thus exposing it, he would lose his title, and could not after- wards recover it, or its value, from one who tortiously took it. A wrong-doer cannot get title to property, or escape the re- sponsibility of his tortious or felonious act, merely because the owner has failed to give public notice or warning that it was not to be stolen. If carrying away in tlie memory of a spec- tator, or otherwise surreptitiously obtaining the contents of a play, is without the consent of, or unauthorized by, the owner, and therefore an infringement of his property in the play, the act is not excused by the omission of the owner to notify the audience that they will not be allowed or are forbidden to carry it away in that manner." ^ It has also been declared unsound in the United States Cir- cuit Court by Mr. Justice Drummond, who said that " it is not easy to see, however, how a notice can have any effect upon the rights of the owner or of tlie auditor. If the latter had the right to carry away tlie play in his memory, or take it down phonographically, and in either case to use or publish it, the notice prohibiting it could not affect or change that right." ^ Result of Authorities. — It has now been shown that, although the novel theory relating to memory has been approved or rec- ognized in several recent American cases, yet in every one, excepting Keene v. Kimball, the approval was wholly extra- judicial. In Keene v. Wheatley, and Keene v. Clarke, it was expressly shown that the authorized performance was not the means of the alleged piratical representation. Neither in Crowe V. Aiken, nor in Palmer v. De Witt, did it appear that the defendant had been aided by the memory of any person in getting possession of the play ; and, in both cases, the court • Palmer y. De Witt, 2 Sweeny, 558. that the exhibition had been for the ^ Crowe V. Aiken, 2 Biss. 212. In qualified purpose of obtaining sub- determining the effect of the public scribers for an engraving of the picture exhibition of an uncopyrighted paint- was based the decision that exhibition ing on the owner's rights, the Irish was not such a publication as would Chancery Court gave much considera- destroy the owner's common-law rights, tion to the inquiry whether there had Turner v. Robinson, 10 Ir. Ch. 121, been a restrictive notice ; and on the 610. existence of such notice and the fact 566 THE LAW OF COPYRIGHT AND PLAYEIGHT. assumed that it had been obtained by other means. There is, then, no direct authority in support of the theory that any person may publish in print a dramatic composition obtained by memory from its authorized public performance ; and none that unlicensed representation on the stage under such circum- stances is not piracy, except the single case of Keene v. Kim- ball, decided by the Supreme Court of Massachusetts in 1860. Against this authority is the judgment of the New York Superior Court, in French v. Conolly. What is settled by the American authorities is: 1. The public performance of a manuscript dramatic composition by the author is not such a publication as will defeat a copyright afterward secured.^ 2. No person without leave may publish in print or publicly represent the play, if obtained by fraud or through a breach of contract or confidence,^ or if got from its lawful performance by any other means than memory .^ Refutation of the Theory that the Right to Use a Plat MAT BE Acquired by Means op Memory. Of all the vagaries and erroneous notions that have gained judicial currency in construing the law of literary property, the most absurd is the theory that the unlicensed publication or representation of a manuscript play is lawful when effected by means of the memory of any witness of its authorized performance. Proclaiming it for the first time in this country, the Court said, in Keene v. Wheatley, that " the doctrine of the dictum of BuUer, J., as to repetition from the memory of the audience, may be regarded as established," and that " Macklin v. Richardson, if to be followed as an authority, is decisive of the present case. A like remark might be made as to Morris v. Kelly." * At that time, there was no decision in the Englisli or American reports to give the shadow of support to this theory. On the contrary, Vice-Chancellor McCoun, of New York, had declared as early as 1843, " that to 1 See ante, p. 554. 8 Conceded by all the authorities on ^ Keene v. Wlieatley, 9 Am. Law this point. Keg. 33, 101 ; Keene v. Kimball, 16 « 9 Am. Law Eeg. 90, 95. Gray (82 Mass.), 551, 552 ; Keene u. Clarke, 5 Bob. (N. Y.) 38, 61. COMMON-LAW PLATRI6HT. 567 carry off a manuscript drama, with intent to perform the piece on the stage against the author's will, was an invasion of his common-law rights." ^ So far from being settled in England, the question had neither arisen nor been discussed. No refer- ence to it was to be found in any reported English opinion, ex- cept the ambiguous dictum of Judge BuUer in the obscurely reported case of Coleman v. Wathen, decided, under the statute of Anne, in the last century .^ In Macklin v. Richardson, it was expressly found that the farce had been obtained by ste- nography ; ^ and there is nothing in the report of Morris v. Kelly * to show that the performance complained of was due to the memory of any person, while there are sufficient reasons for believing that it had been effected solely by means of an unauthorized printed copy.^ Mr. Justice Hoar rightly said in 1860, after the decision in Keene v. Wheatley had been made, " the precise question which the case at bar presents has never been determined, so far as we are aware, in any reported case."® The theory is as unsupported by principle or reason as it is by authority. No reasonable grounds have been given in its support, and it is difficult to conceive any. In Keene v. Wheatley, it was said that " the manager of a theatre may pre- vent a reporter from noting the words of such a play phono- graphically or stenographically or otherwise. As one of the audience, he would, in doing so, transgress the privileges con- ceded in his admission. But the privileges of listening and of retention in the memory cannot be restrained. Where the audience is not a select one, these privileges cannot be limited in either their immediate or ulterior consequences." ^ In Keene v. Kimball, the court said that Miss Keene had " em- 1 Jones V. Thorne, 1 N. Y. Leg. ' O'Keefe says: "My five Hay- Obs. 409. market pieces, locked up in manu- 2 " Reporting any thing from mem- script, have been repeatedly printed ory can never be a publication within and published surreptitiously ; " also, the statute. Some instances of strength that the Agreeable Surprise and Young of memory are very surprising ; but Quaker were not printed by authority, the mere act of repeating such a. per- Kecollections of the Life of John formance cannot be left as evidence to O'Keefe, written by himself. (2 vols. a jury that the defendant had pirated in one, Phila. 1827), Vol. II., pp. 167 the work itself." 6 T. R. 245. 200. 3 Amb. 694. " 16 Gray (82 Mass.), 550. * 1 Jac. & W. 461. ' 9 Am. Law Reg. 85. 568 THE LAW OP COPYRIGHT AND PLATRIGHT. ployed actors to commit the various parts to memory ; and, unless they are restrained by some contract, express or implied, we can perceive no legal reason why they might not repeat what they have learned before different audiences and in various places. If persons, by frequent attendance at her theatre, have committed to memory any part or the whole of the play, they have a right to repeat what they heard to others. We know of no right of property in gestures, tones, or scenery, which would forbid such reproduction of tliem by the spectators as their powers of imitation might enable them to accomplish."^ The Chief Justice argued, in Keene v. Clarke, that " where the audience is not limited, as in the case of a public theatrical performance, the public are held entitled to make use of tliat faculty, which is necessarily addressed by such representation, to wit, the memory, for the purpose of repeating the contents of the play, even in performing it elsewhere, when the owner has laid no restraint upon such use of the knowledge so ob- tained and retained by memory only. . . . Remembering to a certain extent is the natural consequence of hearing, and using such recollection naturally flows from possessing it. The right of taking notes is not one of the privileges necessarily conceded by a public performance, and the use of any such artificial.aids to, or substitutes for, memory may be restrained by a court as a violation of the terms of admission, or may be made part of the police of the place of performance, so as to justify not only its prevention, but even the expulsion of the offender." 2 The effect of this reasoning is that, memory being given to man to be used, any use which can be made of it is legitimate, and that, if a spectator at a public performance is able to carry away in his memory the contents of a play unrestrained by " police " arrangements, he has acquired a lawful right to make any use of such play he chooses, however harmful it may be to the owner. This fallacy is too apparent to need serious con- sideration. It would be as wise to argue that because a man has hands for legitimate uses he is justified in putting them into his neighbor's pockets. Memory may be employed as a means of improvement, enjoyment, and profit, but not to i 16 Gray (82 Mass.), 551. ^ 5 Rob. (N. Y.) 59, 60. COMMON-LAW PLAYRIGHT. 669 invade the rights of another, or to acquire, without considera- tion, title to the property of anotlier. In paying for admis- sion to a public performance, a spectator is entitled to such instruction and enjoyment as he may derive from witnessing and hearing the performance and from recollecting it. In other words, he is entitled to just what he pays for. This is the consideration for the price of admission. But there is no agreement express or implied, no consideration, no understand- ing, that the spectator shall acquire any title to the property in the play, or make of it any use against the rights of the owner. To argue that a lawful title to a play may be acquired through the exercise of memory, but not by the use of writing, on the ground that any one of the audience, by taking notes during the performance, " would transgress the privileges con- ceded in his admission," but that " the privileges of listening and of retention in the memory cannot be restrained," is the shallowest sophistry. In admitting the public to a dramatic performance, the owner no more transfers or concedes to any one of the audience the right to exercise his memory in getting possession of the play for subsequent use, than he does the privilege of using stenography. Nor is it easy to understand why writing notes in a theatre, even to the extent of reporting by short-hand the language of the play, is any more unlawful than exercising the memory ; or why the manager has any more authority to prevent a person from taking notes during the performance, or to put him out of tlie theatre for so doing, than he has to exercise the same powers in the case of any one found writing a criticism of the acting or an original poem. The unlawful act is to be found in the actual or attempted use of the play ; and, until unlawful use is shown to have been made or threatened, no rights have been violated. But even conceding that taking notes in a theatre may be pro- hibited, the fact that a spectator cannot be prevented, by police arrangements or otherwise, from retaining in his memory a knowledge of the contents of a play, does not invest him with a right of property in it, and is no reason why a court should not restrain him from taking such property of another to which he has acquired no title, or should not require him to make good the damage caused by such unlawful appropriation. 670 THE LAW OP COPYRIGHT AND PLAYEIGHT. The absurdity of this distinction between the exercise of memory and the use of the pencil becomes still plainer when we consider that it is within the range of practicability to get a copy of a play from its public performance as promptly, and as effectually, by the former as by the latter method. Instances of memories remarkable by nature are not rare ; and the mem- ory, not less than the hand, can be trained to do wonders. Older than the system of stenography, and as old as Simonides, who lived about 500 B. c, is the art of mnemonics, whose teachers have shown it capable of wonderful results.^ With entire success can the memory be so trained as to become the means of securing a copy of a play from its public performance with the promptness and ease of a stenographer. Wherein then is the principle different, whether in getting the play one person uses this means or another his skilful hand ? The mnemonic faculties of actors are in constant practice ; and it is practicable for a rival manager to enlist in his service men and women whose trained memories would enable them to repro- duce a play after witnessing its performance but two or three times. But does this give them the right to do so ? Can the ownership of valuable property be thus acquired ? The prop- osition should need no refutation.^ 1 About 1609, Lambert Schenkel powerful was his retention, that, in astonished all classes in Prance, Ger- making quotations, he had only to many, and the Netherlands, by his read his passages, put the books ia mnemonic performances, which were their place, and then to write out from so wonderful that they were pro- memory the words. Ben Jonson tells nounced by some the devil's doings. us that he could repeat all he had ever 2 The following instances of remark- written, and whole books that he had able memories are cited by Sir William read. Themistocles could call by their Harnilton : " For intellectual power of names the twenty thousand citizens of the highest order, none were distin- Athens; Cyrus is reported to have guished above Grotius and Pascal; known the name of every soldier in and Grotius and Pascal forgot nothing his army. Hortensius, after Cicero they had ever read or thought. Leib- the greatest orator of Rome, after nitz and Euler were not less celebrated sitting a whole day at a public sale, for their intelligence than for their correctly enunciated from memory all memory, and both could repeat the the things sold, their prices, and the whole of the JEneid. Donellus knew names of the purchasers. Niebuhr the Corpus Juris by heart, and yet he the historian of Rome, was not less dis- was one of the profoundest and most tinguished for his memory than for his original speculators in jurisprudence, acuteness. In his youth he was em- Muratori, though not a genius of the ployed in one of the public offices of very highest order, was still h, man of Denmark ; part of a book of accounts great ability and judgment ; and so having been destroyed, he restored it COMMON-LAW PLAYRI6HT. 571 The distinction making the acquisition of a drama by stenog- raphy unlawful, but proclaiming it the legitimate spoil of from his recollection." Lectures on Metaphysics and Logic (ed. by Mansel and Veitch, 4 vols Edinburgh, 1870- 74), Vol. II., p. 223. The story narrated by Muretus in his Vance Lifctiones of the wonderful memory of a young Corsican who had gone to Padua to study civil law is thus told by Hamilton: "He was a frequent visitor at the house and gar- dens of Muretus, who, having heard that he possessed a remarkable art, or faculty of memory, took occasion, though incredulous in regard to re- ports, of requesting from him a speci- men of his power. He at -once agreed ; and, having adjourned with a consid- erable party of distinguished auditors into a saloon, Muretus began to dictate words, Latin, Greek, barbarous, sig- nificant and non-significant, disjoined and connected, until he wearied him- self, the young man who w^rote them down, and the audience who were present ; ' we were all,' he says, ' mar- vellously tired.' Tlie Corsican alone was the one of the whole company alert and fresh, and continually desired Muretus for more words, who declared he would be more than satisfied if he could repeat the half of what had been taken down, and at length he ceased. The young man, with his gaze fixed upon the ground, stood silent for a brief season ; and then, says Muretus, ' Vidi facinus mirificissimum. Having begun to speak, he absolutely repeated tlie whole words in the same order in which they had been delivered, without the slightest hesitation; then, com- mencing from the last, he repeated them backwards till he came to the first. Then, again, so that he spoke the first, the third, the fifth, and so on ; did this in any order that was asked, and all without the smallest error. Having subsequently become familiarly acquainted with him, I have had other and frequent experience of his power. He assured me (and he had nothing of the boaster in him) that he could re- cite in the manner I have mentioned to the amount of thirty-six thousand words. And what is more wonderful, they all so adhered to the minH, that after a year's interval he could repeat them without trouble. I know, from having tried liira, he could do so after a considerable time {post multos dies). Nor was this all, Franciscus Molinus, a patrician of Venice, was resident with me, a young man ardently devoted to literature, who, as he had but a wretched memory, he sought the Corsi- can to instruct him in the art. The hint of his desire was enough, and a daily course of instruction commenced, and with such success that the pupil could, in about a week or ten days, easily repeat to the extent of five hun- dred words or more in any order that was prescribed.' " Ibid. 219. Fauvel-Gouraud tells the story that when Voltaire was at the Court of Frederick the Great, he spoke en- thusiastically to the king one even- ing of a new poem of considerable length on which he was at work. On its completion, the brilliant literary society of Berlin was assembled at the Prussian court to hear the new poem read by its author. When the reading was finished, the king was as lavish with his praises as were his learned guests, but laughingly remarked to the philosopher that the same composition had been submitted to his criticism a few months before by one of his ofii- cers. Here the king summoned a young officer, and asked for the manu- script. He replied that it had been lost, but that he could recite the poem from memory, which he did with strict accuracy, to the great astonishment of the company and the confusion of Vol- taire. Frederick now explained to the French wit that the officer, stationed behind a curtain, had heard the poem read by the author, and was thus en- abled to repeat it. Phreno-Mnemo- teehny (N. Y. 1845), 35. In the same book, other instances of remarkable memories are given. 572 THE LAW OP COPYRIGHT AND PLAYRIGHT. tenacious memories, is one merely between the modes or means of getting a play ; and it is not easy to see why one method should give a better title than the other, since both are without consideration, and without the authority or consent of the owner. The simple manner of getting the play, as long as it is without consideration or authority, cannot affect the funda- mental principle at issue. There is a principle of justice, older than the written law, that property can rightly be acquired only by a good consideration. Either the public representation of a play is a publication, so as to work an abandonment of the owner's rights of property therein, or it is not ; and in either case the mode of obtaining it is immaterial, as affecting the owner's rights or the invader's wrong, as long as there is no consideration and no agreement. There is, then, no foundation for the distinction which has been judicially recognized between the different means employed in obtaining a plaj' from its public performance, — making one mode lawful and the other unlawful. The real question is, whether the public performance of a play not published or copyrighted is per se an abandonment of the owner's rights ; and whatever may be the true solution, the principle is not affected by the means of reproduction, or by the presence or absence of a restrictive notice. This question may be regarded as virtually settled. It is conceded that the public perform- ance of a manuscript play is not a publication prejudicial to the rights of the owner, except as far as others may become pos- sessed of a copy through the agency of memory. As there is no sound distinction in principle between memory and any other unauthorized means of getting a copy, the doctrine of the courts, carried to its natural and logical extent, must be that, whether the play be obtained by the use of writing or the ex- ercise of memory, or any other means without the consent of the owner, representation is not a publication destructive of the owner's common-law rights. This is the true doctrine. It was affirmed, as has been seen, by the New York Superior Court, in French v. Conolly,i and it will doubtless be adopted by the courts hereafter.^ 1 See ante, p. 562. following sound views on this subject, 2 Monell, J., gave expression to the in delivering the opinion of the General COMMON-LAW PLAYRIGHT. 573 Common-La-w Rights in United States not Prejudiced by Public Performance of Play. — The true principle which governs the question relating to the effect of public representation on the owner's exclusive rights in a manuscript dramatic composition has been wholly overlooked in the recent judicial discussions Term of the New York Superior Court in Palmer v. De Witt : — " It seems to me that any surrepti- tious procuring of the literary property of another, no matter how obtained, if it was unauthorized and without the knowledge or consent of the owner, and obtained before publication by him, is an invasion of his proprietary rights, if the property so obtained is made use of to his injury. Each of the learned justices admits that a play cannot be lawfully taken down by a short-hand writer from the lips of the actors during a public performance. If taken thus by a stenographer, is it different, in its legal effect and result- ing consequences, from committing to memory and afterwards writing it ouf? In principle it is not. They are only different modes of doing the same thing, and, if without the author's consent, are alike injurious to his interests. I'he objection is not to the committing a play to memory, for over that no /court can exercise any control, but in /using the memory afterwards as the ' means of depriving the owner of his property. Such use, it seems to me, ia as much an infringement of the au- thor's common-law right of property, as if his manuscript has been feloni- ously taken from his possession. I can see no difference. . . . Upon a careful consideration, therefore, of the subject, I have not been able to appreciate the distinction which the learned judges, in Keene v. Wheatley and Keene v. Clarke and Crowe v. Aiken, have attempted to draw between different modes of obtaining the contents of a manuscript play from its public performance. They are equally objectionable, and are merely different modes of depriv- ing an author of his literary property ; and therefore any mode which effectu- ates that purpose is unlawful." 2 Sweeny, 557, 559. And so in Boucicault v. Fox, al- though the question as to the distinc- tion between memory and writing was not raised, Mr. Justice Shipman took the strong ground that "there can be no evidence of abandonment to the public of any rights growing out of the authorship of a manuscript drawn from the mere fact that the manuscript has, by the consent and procurement of the author, been read in public by him or another, or recited or represented by the elaborate performances and showy decorations of the stage. If the reading, recitation, or performance is conducted by his direction, by his agents, for his benefit and profit, with the sanction of the law, how can it be said to be evi- dence of his intention to abandon his production to the public ? Suppose Mrs. Kemble were to read in her un- rivalled manner a drama of her own production, would the reading be a dedication to the public, and authorize any elocutionist to read it, who could obtain a copy, against the consent of the author? How would it change the matter, if she should, instead of read- ing the play, have it brought out by a company at Wallack's or the Winter Garden, with all the embellishments which the stage can lend ■? The true doc- trine is, that the literary property in the manuscript continues in the author so long as he exercises control over it, or has the right to control it ; and, until its publication, no one has a right to its use, or that of its contents, without his consent. Therefore any special use of it by him in public, for his own bene- fit, is a use perfectly consistent with his exclusive right to its control, and is no evidence of abandonment." 5 Blatchf. 98. 574 THE LAW OP COPYRIGHT AND PLATRIGHT. of the subject. If such rights are lost, restricted, or prejudiced by public representation, it must be either by force of the com- mon law or by operation of some statute. It has been shown elsewhere in this work that by the common law no rights in an intellectual production are forfeited by a publication of any kind. The property in a literary work is not, by the common law, prejudiced even by its publication in print. As far as the common law is concerned, the owner's rights are the same after publication in print as they were before. The now settled doctrine that there can be no copyright after publication except under the statute is based on the ground, not that publication is by the common law an abandonment of the author's rights, but that the common-law property in a published work is taken away by operation of the statute.^ It is then clear, both on principle and authority, that the property in a manuscript play is not injuriously affected by authorized public representation, unless by the operation of some statute. Now, in the United States, there is no statute which can have this effect, because tliere has been no legislation relating to manuscript dramatic compositions. Statutory play- right is secured in published compositions alone, and represen- tation is not publication within the meaning of the statute. When a dramatic composition is published in print, the owner's common-law rights are destroyed by operation of the statute, to which he must look for protection. But property in a manu- script play is governed exclusively by the common law, and is in no wise affected by any statute. Hence, in the United States, the owner's rights in a manuscript play are not prejudiced by its authorized public representation. Representation made Equivalent to Publication by Snglish Statute. — In England, the question is affected by other con- siderations. Parliament has granted the exclusive right of representing not only printed, but also manuscript, dramatic pieces.^ The latter, equally with the former, are brought within the operation of the statute. Moreover, it is expressly declared that the public representation of a dramatic composi- tion shall be equivalent to the publication of a book.^ There 1 See ante, p. 116. 2 8 & 4 Will. IV. c. 15. » 5 & 6 Vict. c. 45, s. 20. COMMON-LAW PLATRIQHT. 675 can be little doubt that statutory playright in a manuscript play can be secured only on the conditions imposed or implied by the statute, one of which is that the first public performance of the piece shall be in the United Kingdom.* Hence, where it appeared that a manuscript drama had been first publicly represented in a foreign country, it was held that the title to English playright was thereby forfeited.^ Has Common-La'w Playright been taken a'way by English Stat- ute? — It is an important question whether the exclusive right of representing a manuscript play has existed by the 'common law in England since it was secured by the 3 & 4 Will. IV. c. 15, passed in 1833. There is no doubt that the common-law right was in full force uiitil the act of William was passed, and it still remains unless it has been taken away by the operation of that statute or the 5 & 6 Vict. c. 45. This question has not been judicially considered, and I have found no discussion of it. It should have been, but was not, raised in Boucicault v. Delafield and in Boucicault v. Chatterton.^ In each of these cases, the plaintiff' claimed the exclusive right of representing a manuscript drama which he had caused to be performed in the United States before its public representation in England. There was little doubt that by the first performance of the play in a foreign country he had forfeited his claim to protec- tion under the English statute ; and it was so held by the court. But the question whether the common-law prop- erty in the play had been lost was not referred to in either case. The settled doctrine that there is no copyrigiit by the common law in a book after its publication is based on the reasoning that in securing the right by statute the legislature intended to take away the right recognized by the common law. In other words, the statutory was given as a substitute for the 1 See post, p. 604. u. 3. There is little doubt that, inde- 2 Boucicault v. Delafield, 1 Hem. & pendently of this proyislon, public rep- M. 597 ; Boucicault v. Chatterton, 5 resentation of a manuscript play in Ch. X). 267. These two cases were a foreign country would be held to decided under section 19 of the Inter- defeat tlie exclusive rights conferred national Copyright Statute 7 & 8 Vict, by 3 & 4 Will. IV. >;. 15, and 5 & 6 c. 12, but they might have been prop- Vict. c. 45. See post, p. 604. erly decided without any reference to s Supra. this act. See ante, p. 294, and p. 295, 576 THE LAW OP COPYRIGHT AND PLAYRIGHT. common-law right. When a manuscript is published within the meaning of the statute, the common-law right ceases, and the statutory copyright vests, provided there has been a com- pliance with the conditions of vestment. The soundness of this reasoning is open to criticism,' and it has been criticised in that part of this work where it is maintained that the statute cannot rightly be construed to have destroyed the common-law property in a literary production.^ But whether sound or un- sound, the reasoning which has been applied to the copyright statute ts equally applicable to the statute which secures play- right. Applying to the latter act the same principles of construction which have been held to govern the former, it will follow that in granting the exclusive right to represent a manuscript play the legislature intended to supersede the com- mon-law right ; and that when a play is published within the meaning of the statute the common-law right ceases, and the statutory right attaches on certain conditions. Now, within the meaning of the statute which secures playright, a manu- script dramatic composition is published when it is publicly represented ; because not only is the relation wliich represen- tation bears to playright analogous to that which publication bears to copyright, but the statute expressly declares that the public performance of a dramatic composition shall be equiva- lent to the publication of a book.^ Hence, the conclusion to which we are brought is that, in England, the common-law right to the exclusive representation of a manuscript play is lost by the public performance of the piece, and that thereafter the only protection to which the owner is entitled is that given by the statute. This construction is in harmony with that which has been given to the copyright statute, and it is proba- ble that it is the view which will be adopted when the question shall be presented for judicial determination. General Principles Governing Property in Unpublished Plays. Acquiescence in Unlicensed Performances. — The principle has been recognized that the owner's common-law property in a 1 See ante, p. 20, et seg. 2 6 & 6 Vict. o. 45, s. 20. COMMON-LAW PLAYRIGHT. 577 play may be forfeited by acquiescence in its unlicensed use. No general rule can be given as to how long or by bow many persons or in how many places the unlicensed representations of a play, without objection on the part of the owner, must be shown in order to prejudice his rights. But it would seem that a general and long-continued unlicensed use should be made to appear, and there is no doubt that the owner must be shown to have had knowledge of this fact.^ Common-La'w Rights Lost by Authorized, but not Unauthorized Publication. — When a dramatic composition is published in print, by authority, all common-law rights in it are lost.^ The composition becomes public property unless a valid copyright is secured under the statute. And this is equally true whether the publication be made in one country or in another ; whether in the United States or in Europe. But only an authorized publication works an abandonment of common-law rights. These are not prejudiced when a play is published without the consent of the author or owner. ^ In Crowe V. Aiken, tlie defendant pleaded that it was by printed ' See consideration of this subject in tlie case of published works, ante, p. 504 et seq. See also Boucicault v. Wood, 7 Am. Law Reg. n. s. 550 ; B. c. 2 Biss. 40; Keene o. Clarke, 6 Rob. (N. Y.) 66, 67. In his dissenting opinion in Keene v. Clarke, Monell, J., said ; " I cannot concur in the opinion that the plaintiff lost her literary property in the play, merely because it was acted from a manuscript, made up from memory, at various times and places, without the sanction or knowledge of the plaintiff, -nor even if it was thus acted with her knowledge, but without her consent. I do not think the title to literary property is divested, or the right to its exclusive possession lost, by merely suffering infringements of such riglits to pass unnoticed. An owner is not obliged to involve him- self in expensive litigation with every wrong-doer, for the purpose of preserv- ing or protecting liis right ultimately to assert his title ; and certainly, with- out proof of some actual dedication, nothing that falls short of a long-con- tinued acquiescence in surreptitious performances of a play would be suflS- eient to imply a dedication. The in- fringements in this case, as disclosed by the evidence, were, as far as it appears, without the plaintiff's knowl- edge, and certainly without her con- sent. I cannot, therefore, yield to the conclusion that, under such circum- stances, the presumption could be jus- tified that the plaintiff intended to dedicate her property in the play to the public. At most, to authorize such presumption, the surreptitious per- formances must have been so long continued, In so many different places, and under such circumstances, as to reasonably imply knowledge in the owner and therefore assent ; otherwise knowledge, coupled with such contin- ued performance, must be affirmatively shown." 5 Rob. (N. Y.) 70. 2 Boucicault v. Wood, 2 Biss. 34. See authorities in the case of books cited, ante, p. 101, note 4. ' Boucicault v. Wood, 2 Biss. 34, 39; Crowe ^. Aiken, Ibid. 208, 211; Palmer v. De Witt, 2 Sweeny (N. Y.), 580, 551, on ap. 47 N. Y. 532 ; Shook 37 578 THE LAW OP COPYRIGHT AND PLAYRIGHT. copies that he was enabled to represent the drama in contro- versy ; but this defence was overruled when it appeared that these copies liad been published without license, and that there had been no authorized publication of the play.^ In the recent case of Shook v. Neuendorff, in the New York Supreme Court, the plaintiffs claiming by purchase from the authors, Alexandre Dumas and Pierre de Newsky, the exclu- sive right of performing Les Danicheff» in the United States, sought to prevent the defendant from bringing out a German version. In defence, it was alleged that a German trans- lation of the play had been published in Austria by authority of the person to whom the authors had sold the right of repre- sentation in that country, and that it was this translation that the defendant was intending to represent. The court held, at the special term, that it was not enough to prove that the play had been published abroad in print ; but that such publication must be shown to have been authorized by the authors of the drama. The injunction, therefore, was granted.^ V. Neuendorff, 11 Daily Reg. (N. Y.) 985. See also views of Monell, J., ante, p. 577, note 1. In Boucicault v. Wood, Drummond, J., said : " The fact that the two un- published plays, after having been entered here, were pul)lislied in Eng- land, would make no difference fin the plaintiff's rights], unless that publica- tion was with the consent of the plain- tiff. No one would have the right to import and use them. Such consent, however, would be an abandonment of his rights, under our laws, and place him simply in the position of an ordi- nary English dramatist, who had pub- lished his plays in his own country ; but this consent must be affirmatively proved." 2 Biss. 39. See ante p. 612. 1 2Blss. 208, 211. 2 In the opinion as reported in the N. Y. Tribune, Feb. 7, 1877, Mr. Justice Donohue said : " Where, as in this case, a, defendant sets up no title other than the abandonment by its author of the play to the public, sets up no equitable title to it, lie must be prepared to show an authorized use beyond any doubt of the play which he claims the right to perform. This, it seems to me, the defendant has not done in this case. The principal ground he puts his case on is that what he proves as an abandonment could not have existed without such being the fact. Unfortunately, too many instances of unauthorized use of other people's property exist to make the presence of such use proof of its being rightful, and on the ground of such abandonment or permission I find against him. The claim that the plaintiffs themselves do not pretend that they will lose money by the defendant's performance, and so are not entitled to an injunction, is without weight, because, should plaintiffe not enjoin this defendant from acting, it will be an evidence to others that plaintiffs have permitted the public use of the play and will so destroy their right. Some other party will come forward, and, as a defence to the use of the play in English, will show the defendant's performance, and argue, as defendant now does, that it must have been authorized, or it would not have occurred." COMMON-LAW PLAYKIGHT. 679 This judgment was affirmed on appeal by the General Term of the Supreme Court.^ In this case, and in Boucicault v. Wood,^ it was held that the burden of showing an authorized publication was on the defendant. In Palmer t). McDonough, application was made in the United States Circuit Court to restrain the defendant from performing After Dark, the right of representing which in the United States the plaintiff had bought from the author, Boucicault. The bill alleged that the play had not been printed. It appeared, from affidavits made on the part of the defendant, that, before its representation in New York, printed copies of the play had been on sale in London ; that the defendant had obtained one of these copies ; and tliat printed copies had been offered for sale in New York. In denying the motion for a preliminary injunction. Nelson, J., said : " Now, although there is no dii'ect evidence that the printed publications in London were prior to the assignment to the complainant, or that they were made with the assent of the author, yet taking into ac- count the fact of the printed copy being on public sale in the city of New York, where the complainant resides, we are of opinion that, as it respects the complainant himself, who is the party exclusively interested in this country, a case has not been made that would justify us in granting a preliminary injunction. Some explanation in a more authentic form than can be made by affidavits should be made of the several printed copies on sale, as is shown both in London and the city of New York. And for this reason the injunction should be with- drawn till tlie hearing on the pleadings and proofs." ^ 1 11 Daily Reg. (N. Y.) 985. In publication in German was with au- deliyering the opinion, Davis, P. J., thority, in which event the case may said; " The defendants did not estab- assume a different aspect; but, as it lish on the trial to the satisfaction of now appears before us, we think tlie the court below, that the German trans- decision of the court below was correct lationofthe play had been published for the reasons assigned in the opin- or used by the authority of the authors, ion of Judge Donohue." and it was held that, in the absence of ^2 Biss. 34, 39-40. such authority, the defendant acquired ' This opinion is published in the no right to use the play in the United N. Y. Times and the Tribune, Aug. 12, States by reason of its unauthorized 1869. I have not found it reported in publication in German. ... It may be any authoritative report, or in a more made to appear on the trial that the accessible publication than the above. 580 THE LAW OP COPYRIGHT AND PLATBIGHT. Dramatizations, Adaptations, and Translations. — The same principle which governs original plays is equally applicable to dramatizations, adaptations, and translations. When unpub- lished, these are protected by the common law, although the original from which the translation or adaptation has been made is a published work. But when the stage version itself is published in print, the common-law rights therein are lost, as in the case of an original drama. In the United States, a dramatist is entitled under the common law to protection for his own unpublished translation of a published foreign play, or his own unpublished dramatization or adaptation of a novel published in a foreign country. In such case, the published drama or story is common property in this country, and may be translated, dramatized, or adapted for the American stage by any person. Each dramatist will have exclusive rights in his own production. But no one will be entitled to represent the version made by another. In the case of Tompkins v. Duff, which came before the New York Supreme Court in 1878, the plaintiffs claimed the exclu- sive right of representing The Exiles, of which Victorien Sar- dou and Eugene Nus were the authors. . The play, however, was not original with these dramatists, but had been founded on or produced from the novel Fonctionnairea et Boyards, written by Prince Joseph Lubomirski. And-when it appeared that the defendants had not taken the plaintiff's adaptation, but were in possession of a dramatization made by George Pawcett Rowe, from the published novel, the injunction which had been granted was dissolved.^ Tlie law in this case was clear. No person without authority had the right to use the version owned by the plaintiffs. But any person was free to represent an independent dramatization of the published ro- mance. In French v. Connolly, decided by the New York Superior Court in 1875, it appeared that Jules Verne had published in Prance a story called Le Tour du Monde en Quatre-vingts Jours. With the aid of the French dramatist D'Ennery, he afterward wrote a play bearing the same name as the story. The two 1 See N. Y. Tribune, March 1, 8, 14, 1878; also 13 Daily Reg (N Y) 421, 493. ■' COMMON-LAW PLAYBIGHT. 581 productions were in many respects alike ; but the drama con- tained some characters, incidents, and scenes not found in the story. The play was not published in print. An English translation was made with the title Around the World in Eighty Days ; and the exclusive right of representation in the United States was sold to the plaintiffs. When the defendant was charged with invading the plaintiffs' common-law rights, he pleaded that he had obtained the play by dramatizing the pub- lished story. If this defence had been true in fact, it would have been good in law. The published story was common property in this country, and its bona fide dramatization would not have infringed any rights in the unpublished play. But the fact was found by the court that the defendant's version contained " what is not found in the original story, but is found in the plaintiff's play ; and, unless adapted from the latter, it could not be very satisfactorily accounted for." An injunction was therefore granted.^ Immoral Plays. — The courts will not protect any person in the exclusive right of representing an immoral play.^ Foreign Dramatists. — The common law makes no distinction between a native and a foreigner.^ In nearly all of the cases wherein the American courts have protected the common-law property in unpublished plays, the plaintiffs have been the assignees of foreign dramatists. Transfer of Playright. — The owner's rights, either in whole or in part, in an unpublished play, may be transferred by parol.* When two persons claim by purchase from the author the exclusive right of representing a manuscript play, he will be 1 1 N. Y. Weekly Dig. 196. See also wise. The rights of the author are French v. Maguire, 55 How. Pr, (N. Y.) secondary to the right of the public to 471, and Shook v. Rankin, post, p. be protected from what is subversive 583 ; also pos/, p. 596. of good morals. But the examination 2 In Shook V. Daly, 49 How. Pr. of tlie original manuscripts fails to show (N. Y.) 368, the defence was set up that either version is amenable to this that the unpublished play in contro- charge." See also Martinetti v. Ma- versy, Rose Michel, was immoral, guire, 1 Deady, 216 ; Keene v. Kimball, " If this play," said Curtis, J., " or any 16 Gray (82 Mass.), 548-549. literary production, is of that character, ' See ante, p. 106. it is no part of the office of this court * See ante, p. 104. to protect it by injunction or other- 582 THE LAW OF COPYRIGHT AND PLAYEIGHT. protected who shows the better title, provided, of course, his title is good.^ Important questions may arise as to the rights of a person who has acquired not the absolute property in a play, but a limited right or interest. The law on this point has not been fully and clearly expounded by the courts ; but the principles governing the subject are tolerably clear. When a person, native or foreigner, owns the absolute property in an unpublished drama, he is entitled to the exclusive right of representing it in the United States. He may license one or more persons to perform it anywhere, without giving to any one the exclusive right of representation. In this case no licensee, but only the owner, may complain of unauthorized performances. The owner may grant the exclusive right of representation for>any named part of the country, as any State or city. Within such terri- tory, no one without the consent of the grantee has the right to use the play.^ What are the rights of a person who is not the owner of the entire property in an unpublished drama, but has acquired the exclusive right of representation in the United States? Let us suppose a case. A French dramatist writes an original play, which is performed in Paris, but is not published in print. He sells to one person the exclusive right of representation in Great Britain, and to another the exclusive right of representa- tion in the United States. To each buyer is given a copy of the French original ; and each, independently of the other, prepares a translation or version, for use in his own country. While the American owner is thus vested with the sole right of representation throughout the United States, the play is produced on the stage by another person, who pleads that he is representing, not the American, but the English version, which he has obtained from the English assignee. Is this a good defence ? This question is not settled by direct authority. It must be treated on principles. It is clear that the original author, though a foreigner, has in the United States a perfect right to 1 See Wallack v. Daly, 1 N. Y. Weekly Dig. 198 ; Shook v. Daly, 49 How. Pr. (N. Y ) 366; also Widmer v. Greene, 14 Daily Reg. (N. Y.) 529. 2 See Roberts v. Myers, 13 Monthly Law Reporter, 396. COMMON-LAW PLAYEIGHT. 583 the exclusive representation of the play as long as it remains unpublished, and until he parts with that right. When he transfers the exclusive right of performance in the United States to any person, such person becomes vested with all the author's common-law rights in this country, and the author becomes divested of them. The author then has no right him- self, and hence cannot confer upon any third person the right, to represent the play in this country. In like manner, the Eng- lish assignee has and can confer no rights in this country. Tlie play being nowhere published in print, the American own- er's common-law right of representation in the United States is as complete as it would be if he were the original author and absolute owner of the play. And that right is invaded when any person without the consent of the American owner represents the same play, or any translation, adaptation, or version, which is a substantial copy of the original. For the American owner bought not merely a particular translation or adaptation of the original for use in the United States, but the play itself. His rights extend, as far as the United States is concerned, to all copies and versions which are in substance the same as the original. In the case above supposed, the English version could not, in my judgment, be lawfully represented in the United States, without the consent of the American owner. Of course, when the original play is anywhere published in print by authority of the author, it becomes common property in this country at least, and may be translated or adapted by any person. Facts somewhat similar to those above supposed were presented in Shook v. Rankin, decided in 1875 by the United States Court in the Northern District of Illinois. The plain- tiffs alleged that D'Ennery and Cormon, the French drama- tists, had sold to N. Hart Jackson the exclusive right of representing The Two Orphans in the United States ; that this play had been performed in Paris, but had not been published in print ; that Jackson had prepared and copyrighted in the United States an English version, and had tlien transferred all his rights to the plaintiffs. The defendants claimed to be in possession of an adaptation of the play, which they alleged had been made by John Oxenford, for use in England, with the 584 THE LAW OP COPYRIGHT AND PLAYRIGHT. consent of the authors. The court restrained the defendants from representing the Jackson translation ; but refused to en- join them from using the Oxenford version, and afterward decided that they were free to use it.^ Neither the essential facts nor the precise questions decided can be satisfactorily ascertained from the report of the case. The suit was decided under the copyright statute, and not the common law. But the report throws little light on the vital question whether tiie Jackson translation had been published in print. If it had, there was no common-law property in it ; if it had not, the statutory copyright was not valid. Assuming that it had been published in print, and that there was a valid copyright in it, there is no doubt that the plain- tiffs had the exclusive right under the statute to represent tliat translation. It is equally clear that they could not pre- vent the defendant from performing the Oxenford version. For the original play being the production of foreign authors, the statutory copyright secured to the plaintiffs the sole right of performing only their own translation ; and this having been published in print, whatever common-law rights they had in the play were clearly gone. The case was further compli- cated by the fact that a story founded on the drama, and enti- tled The Two Orphans, had been published in print by authority of the complainants. What eifect this publication had on the statutory rights of the complainants in their play, it is not material here to consider. But, as far as the story was sub- stantially the same as the play, the publication of the former was destructive of the common-law property in the latter. As neither of the parties was a citizen of the State in which the suit was brought, the court had no jurisdiction of any common- law question. The decision, then, determines notliing concerning the ques- tion whether the use of the Oxenford adaptation would have been an invasion of the common-law property in the Jackson translation. But, if the play, was unpublished, and the story founded on it had not appeared in print, the plaintiffs' common- law rights would have been complete, and would have been 1 6 Biss. 477, 482, note. COMMON-LAW PLATRIGHT. 585 violated, according to the above reasoning, by the unlicensed performance of the Oxenford version.^ Remedies for Violation of Playright. — The COmmon-law reme- dies for the violation of playright are, in equity, the injunction, account of profits and discovery,^ and, in law, the action for damages. Redress must be sought in a State court, unless a federal court has jurisdiction by virtue of the citizenship of the parties.^ At common law, there is no prescribed limit, as under the statute, to the amount of damages which may be recovered for the piratical use of a play. The extent of the damage sus- tained by the plaintiff is a question of fact to be determined on the evidence by the jury.* 1 Shook & Palmer of the Union Square Theatre, New York, obtained in sereral western courts, state and federal, injunctions restraining McKee Rankin from performing The Two Orphans. See 3 Cent. Law Jour. 201. But most of these cases are not reported in any accessible publication. The report of Shook v. Kankin, Ibid. 210, in which an injunction was granted in St. Paul, Minn., by United States District Judge Nelson, 'throws little light on the questions considered in the text. An injunction was refused on technical grounds by the United States Circuit Court in Boston, in Tompkins v. Eankin, Ibid. 443. ■i See Chap. XI. a See Cliap. XII. In French v. Maguire, decided by the special terra of the New York Supreme Court in August, 1878, Daniels, J., held that the court had jurisdiction to grant an injunction in favor of a resident plain- tiff, restraining the defendant, who was a citizen of California, but who had been served with the summons and in- junction order while temporarily in New York, from representing a play in San Francisco in violation of the plaintiff's rights. 55 How. Pr. (N. Y.) 471. * In Boucieault v. Wood, Drura- mond, J., said to the jury : " But you will see that under this branch [common law] of the case there is no limit as in the statute to the amount of damages ; but it simply then comes, if you believe that the defendant is responsible in damages for the representation of these plays, to the question as to the damages which the plaintiff has actu- ally sustained by the use of the plays by the defendant. That is a question of proof, to be determined by the evi- dence in the case and in relation to which you are to form your own con- clusions." 7 Am. Law Reg. u. s. 550. 586 THE LAW OP COPYRIGHT AND PLAYRIGHT. CHAPTER XIV. WHAT IS A DRAMATIC COMPOSITION WITHIN THE MEANING OF THE STATUTE. The 3 & 4 Will. IV. c. 15, gives to the author of "any tragedy, comedy, play, opera, farce, or other dramatic piece or entertainment," the sole liberty of representing it. This right is affirmed by 5 & 6 Vict. c. 45,^ which further declares that " the words ' dramatic piece ' shall be construed to mean and include every tragedy, comedy, play, opera, farce, or other scenic, musical, or dramatic entertainment." ^ This definition is little more than an enumeration of certain things which are commonly recognized as dramatic productions. It does not afford a satisfactory test by which may be determined, in all cases, what is a dramatic piece within the meaning of the law. The statute of the United States ^ grants to the owner of a copyrighted " dramatic composition " the exclusive right of publicly representing it, but does not indicate more specifically what kinds of productions are entitled to this protection. The important question is presented, therefore, what is a dramatic composition within the meaning of the law ? This question has not been solved by the legislature or the courts, although some light is thrown on it by several decisions. On the one hand, it may be contended that the legislature used the words " dramatic composition " in their ordinary and popular meaning ; which is that of a production, such as a tragedy, comedy, farce, opera, which has been expressly written and adapted for public performance. But even here a difficulty arises. A work not intended for the stage may be in substance a drama, and may be easily adapted for representation. Is it excluded from the operation of the statute because it is not, in ^ s. 20. 2 5. 2. 8 U. S. Eev. St. B. 4952. WHAT IS A DRAMATIC COMPOSITION. 587 form and name, a drama ? Again, if fitness for public per- formance is the test of a dramatic composition, are songs within the purview of the statute ? These are hardly dramatic compositions in the ordinary meaning of the expression ; yet they are often more valuable for public singing than for print- ing. On the other hand, it may be maintained that any pro- duction which has the essential elements of a drama, and which is a dramatic composition in any true meaning of the word, however comprehensive, must be taken to be embraced within the operation of the statute. Let us first try to ascertain what are the essential character- istics of a dramatic composition in a broad sense, and what are the general boundaries separating dramatic from other productions. Comprehensive Meaning op Dramatic Composition. Drama, from the Greek Bpafia, action, Spav, to do or act, is usually defined as a literary composition in which the action is not narrated or described, but represented.^ This definition is faulty, at least for the purposes under consideration, and it is hardly possible to give one which will be concise, intelligible, and accurate. The depiction of action is an essential and dis- tinguishing feature of a dramatic composition. A production without this quality, as a description of scenery or a treatise on mataphysics, is without the essence of a drama. The manner in which the subject is treated is also a prominent characteris- tic of the dramatic form. In the drama, events real or imagi- nary are represented as actually occurring. Characters are introduced as living, speaking, and acting. By their words, expression, and action, the story is told, the plot unfolded, emotions and passions expressed, character portrayed. Thus, 1 " Poem accommodated to action ; with the excesses before remembered ; poem in which the action is not re- choosing for subjects commonly, wars lated, but represented." Johnson. "A and love, rarely state, and sometimes poem or prose composition in which pleasure or mirth. Representative is the action or narrative is not related, as a visible history ; and is an image but represented." Worcester. of actions as if they were present, as Bacon divides poetry into narrative, history is of actions in nature as tliey representative and allusive. "The are (that is) past." Advancement of narrative is a mere imitation of history, Learning, Book II., Poesy. 588 THE LAW OP COPYRTGHT AND PLAYRIGHT. what is real or supposed to be real in life, what has been said or done, or supposed to have been said or done, is directly imi- tated by persons representing the original actors. The reader of the drama or the spectator of its performance is supposed to see and to hear the real characters, and to be a witness of events actually occurring. When the subject-matter is not thus represented, but is given in the form of narrative or description, the composition is usually regarded as not a drama. But all productions in which actions are described or narrated cannot be excluded from the class of dramatic compositions, at least according to the meaning which must be given to that expression in law. In many dramas, important scenes are represented on the stage by action without words, and hence can only be described in written language. A pantomime or a ballet may be a drama.^ The acting of either is a dramatic representation ; the written description or directions for the actors is a dramatic compo- sition in which the action or story is narrated. Indeed, many scenes or occurrences constituting, in themselves, dramas or material parts of dramas can be represented on the stage by action alone ; in language they can only be described. Yet they are dramatic productions. A drama should also have dramatic unity and interest enough to make its representation on tlie stage practicable, and to some degree effective. A prosy history of events, filling a long series of years, or occurring in times and places widely distant from one another, would be wholly unsuited for public per- formance, and could not be regarded as a dramatic composition. But a record of important deeds, showing unity of time, place, and action, may be at once a history and a drama. A play is usually in the form of dialogue spoken by two or more persons ; but there may be a dramatic composition in which but one character is represented. In the earliest form of the Greek drama but one actor appeared. It was not till the time of JEschylus that a second actor and dialogue were ' In his Des Ballets Anciens et Mo- vided into acts and scenes, like other dernes, the Jesuit, Le Pfere Menestrier theatrical pieces. Kecitations divide (Claude Fran9ois), says : " Ballets are them into acts, and the entries of danc- dumb comedies, which should be di- ers are equal in number to the scenes." WHAT IS A DRAMATIC COMPOSITION, 589 introduced. Whether a production is called a poem or a tragedy, a novel or a comedy, a history or a drama, or whether its author did or did not intend it for public representation, is immaterial in ascertaining whether it is a dramatic composition. This question is determined by the character of the work, and not by what it is called, or the purpose for which the author has intended it. So also it is immaterial whether the words of a drama are spoken or sung ; whether they are or are not accompanied with instrumental music. An opera, not less than a play without music, is a drama. Nor is it essential that a literary creation, in order to be considered a dramatic compositio,n, shall be in the precise form best adapted for stage representation. A work of fiction, or even a history, may have all the requisites of a play, and be capable of dramatic representation substantially as written. It is true, alterations and omissions may be necessary to adapt it for the most effective and successful performance. But, while the drama is improved, it is not created, by such changes. It exists in the original work of which it constitutes an essential part. The change affects the form, and not the essence ; and is made, not because the work is incapable of representation in its original form, but because its fitness for this purpose admits of improvement. The greater part of a novel may be, and often is, in dramatic form. Does the original lack the requisites of a dramatic composition, because a part is omitted in the representation, or because slight alterations are made in the rest ? So one or more chapters of a work of fiction may make a complete play. Is the character of a dramatic com- position to be denied to the whole, which thus contains within itself a complete drama ? In such cases, the essence of the play, and, to a great extent, its form, are found in and taken from the original work, which must, therefore, be regarded as a dramatic composition. If adaptation to successful and effective performance were an essential attribute of a dramatic composition in the meaning of the law, not a few undisputed dramas would lack this requisite. The changes necessary to adapt a play for effective performance are sometimes greater than are required to dram- atize a novel. After Tennyson's drama, Queen Mary, had 590 THE LAW OP COPYRIGHT AND PLAYRIGHT. been published, radical and extensive changes were made to prepare it for public performance. Composed as a drama, it was necessary to dramatize it for the stage. The test, then, is not whether changes are necessary to fit a work for suc- cessful and effective performance ; but whether it is capable of representation, either with or without alteration in form. If it can be made capable of performance by changes which do not destroy its character, or create another work, it is a dra- matic composition. What Meaning should be Given to Dramatic Composition as Used in Statute ? — I have tried to point out as clearly and as definitely as the nature of the subject will admit the essential and distinguishing characteristics of a drama in its true and comprehensive meaning. It is not denied that the boundaries here marked out embrace a larger class of productions than what are ordinarily and popularly known as dramatic composi- tions. The question now arises whether the legislature used the words "dramatic piece" and "dramatic composition" in their broad or their restricted meaning. It is a general rule that words in a statute should be taken in their plain and ordinary sense. But governing tliis is the principle that the true construction of a statute is that which will most truly give effect to the intention of the legislature, and will most effectively secure the objects for which the law was passed. Hence, in interpreting " book " in the copyright statutes, the courts have riglitly given to tlie word a meaning far more comprehensive than that in which it is ordinarily used. The legislature was supposed to have legislated for the protection of all literary productions, and not merely for those popularly known as books ; hence, it was necessary to construe the language of the statute liberally, in order to give effect to the intent of the legislature. So, in tlie case under considera- tion, the objects intended by the legislature will be best secured by adopting the liberal rather than the restricted meaning of dramatic composition. Before playright was secured by statute, there was a marked and unjust defect in the laws for the protection of literary property. Authors had only the exclusive right of printing their works. In many cases, intellectual productions were val- WHAT IS A DRAMATIC COMPOSITION. 591 uable for other purposes than printing, but there was no statute to secure the owner in the enjoyment of such uses. The ineffi- ciency and the injustice of the law were specially apparent in the case of works useful and valuable for dramatic purposes. It is a narrow and illiberal construction of the statute passed to meet this want to hold that it was intended to embrace dramatic compositions only in a restricted sense. What was needed was protection for all works capable of dramatic uses, and not merely for those popularly known as dramas. It was just and expedient that the benefits of the law should be ex- tended to the former, and there is no reason to suppose that the legislature intended to protect only the latter.^ The inten- tion of the legislature may fairly and properly be taken to have been to secure in the full enjoyment of the fruits of his literary labor every author whose production is useful and valuable for dramatic purposes. The construction that only what are popularly known as compositions of this kind are within the law will exclude many productions which are essen- tially dramatic, which are not less entitled to protection than what are strictly dramas in name and form, and which it is reasonable to suppose the legislature intended to protect. Judicial Interpbetation op Dramatic Composition. Broad Meaning given by English Courts. — In the cases which have arisen the courts have plainly indicated that the bounda- ries of dramatic literature within the meaning of the law are to be drawn with great liberality. The judicial construc- tion given to " dramatic piece," as used and defined in the English statute, is broad enough to embrace every composition 1 " After the decision of Murray v. there appears no reason for favoring Elliston, 5 Barn. & Aid. 657," said one kind of literary property more Lord Denraan, " it seems to have been than another, it is probable that this considered that publication to an audi- protection was intended for all produc- ence was not within the provision of tions adapted to this mode of publica- the acts relating to copyright ; conse- tion. Now the use of the production quently statute 3 & 4 Will. IV. c. 15, in question, both by the plaintiff and was passed, and, in respect to dramatic the defendant, shows that it is so literary property, gave to authors the adapted and is supposed to be profita- profits arising from publication by rep- ble to those who publish it." Kussell resenting the piece on the stage. As v. Smith, 12 Q. B. 236. 592 THE LAW OP COPYRIOHT AND PLATBIGHT. which is dramatic in character and is suitable to be per- formed, recited, read, or sung for the entertainment of an audience. A single song, a poem of a few stanzas, a short descriptive composition, may be a dramatic piece ; and sing- ing, reciting, or reading it in public may be a dramatic representation. A song founded on the loss of the Kent by fire in the Bay of Biscay, and representing a storm at sea, the burning of the ship, and the rescue of the passengers by another vessel, was held to be a dramatic composition, although almost entirely descriptive, and sung by one person. Citing the statutory definition of a dramatic piece. Lord Chief Justice Denman said : " These words comprehend any piece which could be called dra- matic in its widest sense ; any piece which, on being presented by any performer to any audience, would produce the emotions which are the purpose of the regular drama, and which con- stitute the entertainment of the audience. They comprehend, therefore, the production in question, the nature of which in this respect was above pointed out. In holding this production to be a dramatic piece, we give effect to the intention of the legislature, as we collect it from the series of statutes relating to literary property ; namely, to give to authors the profits from the publication of their works." ^ In a more recent case, the court held the song Come to Peck- ham Rye, which has little, if any, of the dramatic character to be a dramatic piece.^ It should be noted, however, that, by the English statute, playright is expressly extended to musical 1 Russell 0. Smith, 12 Q. B. 236. descriptive song; and there was no " The song in question," said the Chief evidence that any one considered it not Justice, " is stated in the bill to be dramatic. Thus the nature of the pro- founded on the loss of the Kent by ductlon places it rather in the repre- fire in the Bay of Biscay. It repre- sentatlve than the narrative class of sents a storm at sea, the burning of poetry, according to Lord Bacon's the ship and an escape by boat to an- division of dramatic from epic (Ad- other ship, and so a safe return to land, vancement of Learning, Book IL It moves terror and pity and sympathy, Poesy) ; and the evidence states it to by presenting danger and despair and be known as dramatic among those joy, and maternal and conjugal affec- who are conversant with such things." tion. A witness of great experience in Ibid. 235. See also Russell y. Bryant, publishing music deposed that this was 8 C. B, 836; Planche' m. Braham, 8 considered a dramatic song, and pub- Car. & P. 68, on ap. 4 Bing. N. 0. 17. lished with the title of a dramatic and 2 Clark v. Bishop, 26 L. T. n. s. 908. WHAT IS A DRAMATIC COMPOSITION. 593 compositions generally,^ and that dramatic piece is defined to include every " musical or dramatic entertainment." ^ It is not improbable that the statute will be judicially construed to embrace any song, whatever may be its character. But, in Russell V. Smith, Lord Denman said that it was not necessary in that case to determine whether all songs were entitled to protection. The judgment of the court was based on the sole ground that the song in question was a dramatic piece. A pantomime is a dramatic composition, within the meaning of the law.3 United States. — There is no reason why the liberal construc- tion given to the English statute should not be accepted in this country to the extent that the words dramatic composition rightly include any production which is dramatic in character, ahd which, in the language of Lord Denman, " on being pre- sented by any performer to an audience would produce the emotions which are the purpose of the i-egular drama."* It is not easy to determine how far the American courts will, or should, go in the diraction of holding that songs nearly or quite destitute of dramatic qualities are entitled to protection as dramatic compositions. Does a song not dramatic in itself become a dramatic composition within the meaning of the law by being sung in public for the entertainment of an audience ? If so, all songs may be regarded as dramatic compositions. If, on the other hand, only those dramatic in character, such as the Ship on Fire, are within the meaning of the law, it will be difficult, if not impracticable, to draw the line between those which are and those which are not entitled to protection. It would avoid confusion, and would be in accordance with justice, if the courts should declare that all songs are within the meaning of the law ; but it remains to be seen whether they will go to this extent in the case of songs lacking in dramatic attributes. But they will be clearly justified in holding all dramatic songs to be within the purview of the statute. In a recent American case, it was held that the written 1 5 & 6 Vict. c. 46, s. 20. ^ Lee v. Simpson, 3 C. B. 871, 881 ; 2 Id. s. 2. Daly v. Palmer, post, p. 694. * See ante, p. 592. 38 594 THE LAW OP COPYRIGHT AND PLATRI6HT. description or directions for acting a scene designed to be represented on the stage wholly by action is a dramatic com- position. It appeared that the "railroad scene" in Daly's play Under the Gaslight had been substantially reproduced, without authority, in Boucicault's After Dark. This scene was represented on the stage chiefly by action, but partly by dia- logue. The law was correctly laid down by Mr. Justice Blatch- ford as follows : " A composition, in the sense in which that word is used in the act of 1856, is a written or literary work invented and set in. order. A dramatic composition is such a work in which the narrative is not related, but is represented by dialogue and action. ... A pantomime is a species of theatrical entertainment in which the whole action is repre- sented by gesticulation without the use of words. A written work consisting wholly of directions, set in order for conveying the ideas of the author on a stage or public place, by means of characters who represent the narrative wholly by action, is as much a dramatic composition designed or suited for public representation, as if language or dialogue were used in it to convey some of the ideas. The railroad scene, in the plain- tiffs play, is undoubtedly a dramatic composition. Those parts of it represented by motion or gesture, without language, are quite as much a dramatic composition, as those parts of it which are represented by voice. This is true, also, of the railroad scene in After Dark. Indeed, on an analysis of the two scenes in the two plays, it is manifest that the most inter- esting and attractive dramatic effect in each is produced by what is done by movement and gesture, entirely irrespective of any thing that is spoken. The important dramatic effect, in both plays, is produced by the movements and gestures which are prescribed, and set in order, so as to be read, and which are contained within parentheses. The spoken words in each are of but trifling consequence to the progress of the series of events represented and communicated to the intelligence of the spectator, by those parts of the scene which are directed to be represented by movement and gesture." ^ 1 Daly V. Palmer, 6 Blatchf. 264. p. 410, note 4), and citing their ap- After quoting the views of Lord Abin- proval by Mr. Justice Nelson in JoUie ger in D'AImaine v. Boosey (see ante, v. Jaquea (see ante, p. 411, note 2), Mr. WHAT IS A DRAMATIC COMPOSITION. 595 Spectacular Pieces. — In Martinetti v. Maguire, the Black Crook was held to be " a mere spectacle," and, therefore, not entitled to protection as a dramatic composition.^ That some spectacular representations lack the essential attributes of a dramatic composition, and are not worthy of protection, is not denied. But all spectacular productions cannot rightly be ex- cluded from the benefits of the statute. Not a few legitimate dramas are largely spectacular in character. Others contain important scenes of this kind. The spectacular may be an im- portant and essential feature of the drama, and, as such, en- titled to protection. A satisfactory general rule cannot be given for determining where the line shall be drawn in the cases under consideration between what is, and what is not, a proper subject of playright. But when the dramatic element, the dialogue, action, &c., is sufficient to sustain copyright, — and the requirements of the law in this respect are by no means exacting, — the playright does not fail because the literary ele- Justice Blatchford said : " They are eminently sound and just and are ap- plicable to the case of a dramatic com- position designed for public represen- tation. Such a composition when rep- resented excites emotions and imparts impressions not merely through the medium of the ear, as music does, but through the medium of the eye as well as the ear. Movement, gesture, and facial expression, which address the eye only, are as much a part of the dramatic composition as is the spoken language which addresses the ear only ; and that part of the written composi- tion which gives direction for the movement and gesture, is as much a part of the composition, and protected by the copyright, as is the language prescribed to be uttered by the charac- ters. And this is entirely irrespective of the set of tlie stage or of the ma- chinery or mechanical appliances, or of what is called, in the language of the stage, scenery or the work of the scene painter." Ibid. 268. 1 1 Deady, 216. "The Black Crook." said -Judge Deady, " is a mere spectacle, — in the language of the craft a spectacular piece. The dialogue Is very scant and meaningless, and ap- pears to be a mere accessory to the action of the piece, — a sort of verbal machinery tacked on to a succession of ballet and tableaux. The principal part and attraction of the spectacle seems to be the exhibition of women in novel dress or no dress, and in at- tractive attitudes or action. The clos- ing scene is called Paradise, and, as witness Hamilton expresses it, consists mainly ' of women lying about loose,' a sort of Mohammedan paradise, I suppose, with imitation grottos and unmaidenly houris. To call such a spectacle a ' dramatic composition ' is an abuse of language, and an insult to the genius of the English drama. A menagerie of wild beasts, or an ex- hibition of model artistes might as justly be called a dramatic composition. Like those, this is a spectacle; and, although it may be an attractive or gorgeous one, it is nothing more. In my judg- ment, an exhibition of women 'lying about loose,' or otherwise, is not a dramatic composition, and therefore not entitled to the protection of the copyright act." Ibid. 221. 596 THE LAW OP COPYRIGHT AND PLATRIGHT. ment is subordinate or accessory to the spectacular, or because the representation is largely of the latter character. The judgment in Martinetti v. Maguire cannot be sustained on the ground that the Black Crook was " a mere spectacle." This piece was more than a spectacle. While ballets, marches, tableaux, dazzling scenes, &c., may have constituted its chief attractions, an important feature was the dramatic dialogue, plot, and characters, which clearly made the production a dra- matic composition within the meaning of the law. Scenic Effects. — The definition of dramatic piece, in the English statute, includes " scenic " entertainments.^ Where it appeared that the defendant had taken from the plaintiff's play two scenes or situations, consisting more of scenic effects than of dialogue, it was held that the quantity copied was not enough to amount to piracy ; but Mr. Justice Brett said : " Now, it was first said that the subject-matter of the action was not the subject-matter of copyright ; that the act gives a property in words, and not in situations and scenic effects ; but I think that these latter are more peculiarly the subject of copyright than the words themselves." '■^ Dramatic Composition must be Original and Innocent — The same tests as to innocence, originality, &c., are to be applied to dramatic as to literary compositions. An immoral play is not entitled to protection.^ In Hatton v. Kean, where it appeared that the defendant had designed a dramatic representation, consisting of one of Shakespeare's plays with certain alterations in the text, origi- nal music, scenic effects, and other accessories, the court did not doubt that the production, as a whole, was a proper subject of playright, although tlie play itself was, in its original form,- common property.* Dramatizations, Adaptations, and Translations. — A dramatiza- tion or an adaptation of a novel or other work, which the dram- atist has a right to use, will receive the same protection accorded to an original drama. The same is true of a transla- 1 5 & 6 Vict. c. 46, 8. 2. 216 ; Shook ^. Daly, 49 How. Pr. 2 Chatterton v. Cave, as reported (N. Y.) 366; Keene u. Kimball, 16 83 L. T. N. s. 256. See also Hatton ». Gray (82 Mass.), 548. Kean, 7 C. B. n. s. 268. ♦ 7 C. B. n. s. 268. 3 Martinetti v. Maguire, 1 Deady, WHAT IS A DRAMATIC COMPOSITION. 597 tion of a foreign play. Any number of persons may dramatize or translate a work which is common property, or, with the consent of the owner, a copyrighted work. Whatever may be the similarity between two dramatizations, adaptations, or trans- lations, each dramatist will have playright in his own version.^ Whether any person without authority may dramatize for the stage a work protected by copyright is a question which is con- sidered elsewhere.2 Teat of Originality in Dramatization. — The validity of tlie coyyright or playright in a dramatization is not affected by the fact that the dramatist has extensively, or even chiefly, retained the dialogue and monologue in the language of the work dram- atized. In many cases this must be done to a large extent, and to do otherwise would be to lessen the merits of the play. The function of the dramatist is to select from the novel those parts which are best fitted for acting, to arrange them effec- tively with reference to swift action, dramatic situations, cli- maxes, &c., and generally to meet the requirements of dramatic composition and representation. A work of fiction not adapted to acting, as originally written, is thus reproduced in a new form, and is brought into a new and valuable use. Such a dramatization is regarded by the law as a new production, and as such is a proper subject of copyright. But a play which is not materially different from the novel, and which owes noth- ing substantial to the labors of the dramatist, is only a copy of the work claimed to have been dramatized. In such case, the adapter is a mere copyist, and shows nothing on which to base a claim for protection. As the dramatization of a work of fiction is a proper subject of playright, it is clearly no objection in law to the originality of a drama that its characters and incidents are like tliose found in a previously published novel ; provided, of course, there is no piracy of the novel.^ 1 Br. Blanche v. Braham, 8 Car. & Biss. 477 ; Shook u. Kankin, 3 Cent. P. 68, on ap. 4 Bing. N. C. 17 ; Shep- Law Jour. 210 ; Benn v. Le Clercq, 18 herd v. Conquest, 17 C. B. 427 ; Keade Int. Kev. Rec. 94. See also Tompkins V. Conquest, 11 C. B. n. s. 459; Levi v. Duff, and French v. ConoUy, consid- y. Rutley, Law Rep. 6 C. P. 52.3 ; Toole ered ante, p. 580. V. Young, Law Rep. 9 Q. B. 523 ; 2 See ante, pp. 456, 461. Chatterton v. Cave, Law Rep. 10 C. P. » Boucicault v. Fox, 5 Blatchf. 87, 572, Ist ap. 2 C. P. D. 42, 2d ap. 3 App. 100-101. Cas. 483. Am. Shook ii. Rankin, 6 698 THE LAW OP COPYRIGHT AND PLATEIGHT. Foreign Dramatists. — As the exclusive right of representing a dramatic composition is given by the statute only in case copyright has been secured for it, and as copyright is limited to the works of native authors, it follows that there is no statu- tory protection for the productions of foreign dramatists. But, as copyright will vest in the translation or adaptation of a for- eign play, or the dramatization of a foreign novel, made by a resident or a citizen,^ so the statute secures the exclusive right of representing such translation, adaptation, or dramatization.^ Musical Compositions. Compositions Consisting of Words and Music. — It has been seen that some musical productions are dramatic compositions within the meaning of the law. In such case, there can be no reasonable doubt that the literary part, independently of the music, as the libretto of an opera, may be a complete dramatic composition.^ But the playright cannot rightly be considered as vesting alone in the words of a musical composition ; it must extend also to the music, which is a constituent part of the whole. Music is but a form of language by which expres- sion is given to thoughts, emotions, passions, feelings, &c., whose communication is the province of all language. In a musical drama, poetry and music are co-ordinate means work- ing toward the same results. Both are in harmony, and used to give expression to the same thoughts and feelings. The 1 See ante, p. 232. do not see that there was. He was the 2 Shook u. Rankin, 6 Biss. 479 ; translator of the play. He adapted it Shook V. Rankin, 3 Cent. Law Jour, to representation on the stage, and was 210 ; Benn v. Le Clercq, 18 Int. Rer. in the sense of the law the author of Eec. 94. In the first-named case, that for which he obtained a copyright. Drummond, J., said : " D'Ennery and No one could complain of this except Cormon were the [foreign] authors of the authors of the play in French, and a drama in the French language, called it affirmatively appears that they as- Les Deux Orphelines ; Jackson trans- sented to this action on the part of Mr. lated it into English and adapted it to Jackson. Then I do not see why he representation on the stage. This was was not protected under the law for with the consent of the authors. After his translation and adaptation of the this was done, he applied under the law work to the stage, and of which he was for a copyright ; and the question is, in one sense the author." whetlier tliere was any valid objection ' Planche v. Braliam, 8 Car. & P. to his obtaining a copyright for the 68, on ap. 4 Bing. N. C. 17. play thus translated into English. I WHAT IS A DRAMATIC COMPOSITION. 599 music is not a meaningless accompaniment, intended simply to please the ear. Its true function is to emphasize, to intensify, the meaning of the poet. Hence, in a musical dramatic composition, whether it be a grand opera or a simple song, both words and music must be considered as constituting the dramatic essence. And, as tlie playright attaches to the whole and the constituent parts, it must extend to the music as well as to the words. ^ Instrumental Music. — In a broad sense, music, as well as literature, is susceptible of classification into that which is and that which is not dramatic. But what is communicated defi- nitely and with clearness by written or spoken language can be expressed only vaguely by music without the aid of words. Music designed to be interpreted by instruments alone, as a symphony, can hardly be considered a dramatic work within the meaning of the law. As the American statute does not secure the exclusive right of performing any piece of music which is not a dramatic composition, it follows that in this country there is no statutory property in other instrumental music excepting the right of publication in pi'int. Section 20 of 5 & 6 Vict. c. 45, secures the sole liberty of performing musical compositions on the same conditions and for the same term as are prescribed in the case of dramatic compositions. The meaning of this provision has not yet been judicially interpreted. But dramatic musical compositions were already protected by the 3 & 4 Will. IV. c. 15,^ and they are expressly included in the definition of dramatic piece contained in the statute of Victoria. Hence, the provision expressly extending protection to musical compositions has neither object nor meaning, unless it be taken to refer to the right of playing instrumental music. It is reasonable to as- sume, then, that it embraces all kinds of music, whether dramatic compositions or not, and whether vocal or instru- mental.^ If this construction is right, the owner of a purely 1 The music of an opera, indepen- tended that only dramatic musical dently of tlie words, was protected in compositions were within the purview the recent English case of Boosey i^. of the statute. To which Erie, J., Fairlie, 7 Ch. D. 301. replied : " "Why should the legislature ■i Planch^B.Braham,4Bing.N.p.l7. have intended to protect these rather ■> In Kussell v. Smith, it was con- than oratorios and other strictly musi- 600 THE LAW OF COPYRIGHT AND PLAYEIGHT. instrumental piece, whether written for the orchestra, organ, piano, or other instrument, may have in it not only copyright, but playright ; not only the exclusive right of printing it, but the sole liberty of playing it in public.^ And, as in the case of dramatic compositions, statutory playright is secured not only in printed, but also in manuscript musical compositions. cal works ? " 12 Q. B. 231. In Rus- the music of a dramatic composition sell V. Smith, in chancery, 15 Sim. 181, was not protected by 3 & 4 Will. IV. 182, Vice- Chancellor Shadwell said c. 15. But this does not appear to be that " the words of the songs were the natural construction of that statute, protected by the former copyright acts ' See Hatton v. Kean, 7 C. B. ir. s. and the music of them by the act of 268; Wallenstein v. Herbert, 15 L. T. Victoria." This language implies that n. s. 364, on ap. 16 Id. 453. STATUTORY PLAYEIGHT. 601 CHAPTER XV. STATUTORY PLAYRICxHT IN DRAMATIC AND MUSICAL COMPOSITIONS. Playright and Copyright Distinguished. — Under the statute, playright and copyright are treated as two independent and distinct rights. The former is secured only in dramatic or musical compositions. In a printed production of this kind, both rights may exist together ; and, in general, the principles governing the vesting and the ownership of each are the same. But an invasion of one right is not a violation of the other, and the penalties of piracy prescribed in one case are different from those in the other. Copyright may be infringed by publication in print, but not by public performance ; playright, by represent- ing but not by printing the play. The copyright in a dramatic composition is in no respect different from the copyright in any other literary production. In England, the statute grants the exclusive right of publicly performing both printed and manuscript plays. In the United States, the right is secured only in published compositions ; the statute affords no redress for the unlicensed representation of manuscript plays. Great Britain. Duration of Playright in Printed and Manuscript Compositions. — The first statute giving to dramatists the exclusive right of performing their plays was the 3 & 4 Will. IV. c. 15, passed in 1833. By this act and the 5 & 6 Vict. c. 45, passed in 1842, British playright is now governed. The first section of the statute of William declares that the author of any unpublished tragedy, comedy, play, opera, farce, or other dramatic piece or entertainment shall have the sole liberty of representing it at any place of dramatic entertainment in Great Britain ; and 602 THE LAW OP COPYRIGHT AND PLAYEIGHT. that the author of a published production of this kiud shall have the same right for twenty-eight years from the time of publication. Protection is here provided for two classes of compositions, — 1. Manuscript. 2. Those published in print. The statute plainly declares that playright in printed plays shall begin at the time of publication and continue for twenty years. But there is nothing in the act showing when the right in an unpublished play shall begin or when it shall end. The term of protection is in no wise limited. The only sound construction of which the statute is capable is that the owner of a manuscript play, provided he does not publish it in print, and complies with the conditions on which protection is granted, has for ever the exclusive right to perform it in public, and is entitled to the statutory remedies provided for the invasion of that right. It is now necessary to inquire what changes have been made in the provisions of this statute by the 6 & 6 Vict. c. 45. Sec- tion 20 of the latter act, after citing the 3 & 4 Will. IV. c. 15, and declaring that " it is expedient to extend the term of the sole liberty of representing dramatic pieces given by that act to the full time by this act provided for the continuance of copyright," and also to provide protection for musical com- positions, enacts, " that the sole liberty of representing or performing, or causing or permitting to be represented or performed, any dramatic piece or musical "composition, shall endure and be the property of the author thereof, and his assigns, for the term in this act provided for the duration of copyright in books ; and the provisions hereinbefore enacted in respect to the property of such copyright, and of registering the same, shall apply to the liberty of representing or perform- ing any dramatic piece or musical composition, as if the same were herein expressly enacted and applied thereto, save and except that the first public representation or performance of any dramatic piece or musical composition shall be deemed equivalent, in the construction of this act, to the first publi* cation of any book." This language taken in connection with the statute of 1833 is confusing, and its effect on playright as governed by that statute is doubtful. The declared object of section 20, just STATUTORY PLAYRIGHT. 603 cited, is to extend the term of protection granted by the act of William. But we have seen that the latter statute makes a distinction between manuscript and published plays, and that in the case of the former the term of protection is unlimited, and hence incapable of extension. The preamble, therefore, of section 20 of 5 & Vict. c. 45, is intelligible only when applied to printed plays. It may be contended with much reason that, in the absence of language expressly or by clear implica- tion repealing or restricting the unlimited duration of playright in unpublished productions granted by the statute of William, that right must remain unchanged. But the important dis- tinction drawn by the statute of William between published and unpublished plays has been wholly overlooked or disre- gai-ded in the enacting part of section 20 of 5 & 6 Vict. c. 45 ; and it may be urged that the provisions of that section are such that they cannot reasonably be construed as applying exclusively to printed plays. Whether this section must be interpreted as making the duration of playright in both published and unpublished com- positions the same as that of copyright in a book, or as leaving it unlimited in manuscript dramas, as it was under the statute of William, is a question which has been carelessly left in much doubt for judicial determination. Conditions on which Playright may be Secured. — The correct reading of 5 & 6 Vict. c. 45, appears to be that the same con- ditions and requirements prescribed concerning the registration of copyright were intended to be applied to playright. But the courts have held that registration is essential neither to the vesting of playright nor to the right of the owner to maintain an action for infringement.^ 1 Russell V. Smith, 12 Q. B. 217 ; liberty of representing or performing Clark V. Bishop, 25 L. T. N. s. 908. any dramatic piece or musical compo- See also Lacy v. Rhys, 4 Best & S. sition," except that the first perform- 873; Marsh v. Conquest, 17 C. B. n. s. ance of a play shall be equivalent to 418. This construction of the statute the publication of a book. Then foi- ls open to criticism. There is nothing lows a proviso prescribing how dra- concerning registration in 8 & 4 Will, matie and musical compositions in IV. c. 15. Section 20 of 6 & 6 Vict, manuscript may be registered. Sec- c. 45, enacts that " the provisions tion 24 then enacts that no action for hereinbefore enacted in respect of the the infringement of copyright in a property of such copyright, and of book shall be maintained unless the registering the same, shall apply to the book has been registered before the 604 THE LAW OP COPYRIGHT AND PLAYBIGHT. The statute of William mentions no requirement to be per- formed by the author or owner of a dramatic composition in order to secure playright ; and none are prescribed by the act of Victoria, except that relating to registration. Tlie latter statute declares that " the first public representation or per- formance of any dramatic piece or musical composition shall be deemed equivalent, in the construction of this act, to the first publication of any book." ^ It cannot be determined with certainty precisely what effect this provision was designed to have, or what judicial construction will or should be given to it. It was doubtless intended to apply to compositions not published in print. The relation which the public performance of a manuscript drama has to the playright therein is analogous to that which the publication of a book bears to the copyright in it. Printing and acting are but different modes of publica- tion. It would seem that Parliament intended simply to afSrm this principle. Applying to publication by representation the same general principles which are recognized as governing publication by printing, and giving effect to the statutory provision above cited, it will follow that, as copyright in a book dates from the time of first publication, so playright in a manuscript play begins with its first public performance. As first publication of a book in the United Kingdom is a condition precedent of copyright, so the first representation of a manuscript drama must be in the United Kingdom in order to secure playright.^ As an alien author may acquire copyright by being on Englisli soil when his work is published in Great Britain, so playright may be secured by a foreign dramatist who is anywhere within the beginning of the suit, and contains a concerning registration in tlie case of proviso " tliat nothing herein contained playright is worse than bewildering, shall prejudice the remedies which the unless the language last quoted be proprietor of the sole liberty of repre- taken to refer exclusively to composi- senting any dramatic piece shall have tions in which rights had already by virtue of the act passed in the third vested under the statute of William, year of the reign of his late Majesty and to mean that such rights only were King William the Fourth, to amend the not to be defeated by want of registra- laws relating to dramatic literary prop- tion. erty, or of this act, although no entry ' s. 20. shall be made in the book of registry 2 Boucicault v. Delafield, 1 Hem. & aforesaid." M. 597 ; Boucicault o. Chatterton, 5 The meaning of these provisions Ch. D. 267. STATUTORY PLATRIGHT. 605 British realm when his manuscript drama is first acted in the United Kingdom. As protection in the case of a book in which copyright has vested extends throughout the British enipire, so protection in the case of playright in a production not printed is guaranteed in a coextensive territory. In other words, the general conditions which govern the vesting of copyright, and the beginning and territorial extent of protection, apply in the case of playright in manuscript compositions. Playright, then, may be secured in a manuscript drama, on the sole condition that its first public representation be in the United Kingdom, and that the author, if a foreigner, be on English soil at the time of such representation. The right, if not perpetual, will last for forty-two years, or for the life of the author, and seven years after his death, whichever may be the longer period. If the above views are correct, there can be no statutory playright in a manuscript dramatic composition which has not been publicly represented. Publication and Representation Considered with Refer- ence TO Playright in Great Britain. While the validity and the beginning of the playright in a manuscript play are thus governed by the time and place of its first public representation, there can be little doubt that the same questions in the case of a dramatic composition, which is published in print before it is publicly performed, are governed by the publication in print, and not by the representation. In such case, copyright and playright vest together and on the same conditions, and last for a like period, or they fail together. Assuming this to be the true principle, it follows : I. That, when playright has been thus secured, it cannot be affected by any subsequent representation of the drama. Thus, if first publication be in Great Britain, both copyright and playright vest at the same time, and the latter right cannot be lost by a first representation of the play made afterward in a foreign country. II. Failure of the title to copyright involves a failure of the title to playright. Thus, a prior publication of the play in print in a foreign country would defeat the claim, not only to copyright, but also to playright, so that the latter right could 606 THE LAW OP COPYRIGHT AND PLAYRIGHT. not be secured, though the first representation of the play should afterward he given in England. But difficult questions arise in the case of a published drama, whose public representation has preceded its publication in print. In such case, it is clear that the validity and duration of the copyright are governed, not by the representation, but by the publication. The copyright dates from publication, and it cannot be defeated or affected by any public performance of the play, no matter when or where made.^ But does the play- right begin with and depend on the first public representation, or the publication in print ? Suppose that, after a dramatist has enjoyed for years the exclusive right of representing a manuscript play, he publishes it in print, and secures the copy- right in it. Such copyright will date from the publication in print, and will last for forty-two years. But is the duration of the playright forty-two years from first publication in print, or from first representation ? If the latter, copyright may con- tinue after playright has expired in a printed composition in which both have vested ; and cases may arise in which copy- right, but not playright, will vest in a published production. The most natural construction of the statute in this case would seem to be that the playright, when it vests in a printed composition, will begin to run from the publication in print. Does the failure of the title to playright in a manuscript com- position involve the failure of the title to playright in the same composition when published ? Thus, by first representing an unpublished drama abroad, the owner forfeits his claim to the exclusive right of representing that unpublished drama in Eng- land. As prior representation in a foreign country is no bar to the vesting of copyright, he may afterward obtain copyright by first printing the composition in England. But is the right of representation also thereby secured ? Again: when playright has once vested in a manuscript play, is it affected by a subsequent publication of the composi- tion in print, so that, if the title to copyright is forfeited by such publication, the playright already secured is defeated? 1 See D'Alraaine u. Boosey, 1 Y. & C. Exchi 288, 299 ; Clark v. Bishop, 25 L. T. N. s. 908. STATUTORY PLATEIGHT. 607 In other words, to preserve the right of representation, is it necessary either to keep the composition in manuscript, or to protect it by copyright, if it is published as a book ? The above are important questions, which are likely to arise at any time, and on which little light is thrown, either by the statutes or by the decisions. Without attempting to determine the principles which govern the law in all of the cases which have been suggested, I shall simply offer my opinion on some of the questions which I have raised without going fully into the reasons. When the title to playright in an unpublished production has been forfeited, as by first representation in a foreign coun- try, it would seem that it cannot be recovered by afterward publishing the composition, and thereby securing a copyright for it ; for the playright has become common property. After playright has once vested in a manuscript composition, it may be lost by such a publication in print as will amount to an abandonment of the copyright. The right of representing a manuscript play rests on the condition that the composition is not published in print. After it has been so published, it passes from the class of manuscript to that of printed plays, and becomes subject to the conditions on which playright will vest in published plays. The playright then becomes sub- ordinate to the copyright, and the validity of the former is dependent on that of the latter right. An abandonment of the copyright, which is the greater right, involves an abandonment of the lesser playright. When the title to copyright is forfeited, the work becomes public property as far as printing copies is concerned ; and this would seem to make it public property as far as representing it is concerned. If this be true, the copy- right covers the playright, and the former must be secured in order to preserve and protect the latter. The principle that copyright may be lost after it has been secured is recognized by the law of the United States. Sec- tion 4962 of the Revised Statutes makes it essential to copy- right that the notice of entry shall appear in every copy of a book published. Hence, after the copyright has been enjoyed for years, it may be lost by publishing copies without the re- quired notice. 608 THE LAW OF COPYRIGHT AND PLATBIGHT. In the recent case of Boosey v. Fairlie,^ the plaintiifs claimed under the International Copyright Act, the exclusive right of representing in Great Britain Vert-vert, a comic opera composed by Offenbach. The opera was first represented March 10, 1869, in Paris. On the 28th of that month, an arrangement for the piano-forte made by Soumis, with the consent of Offen- bach, was published in Paris. Soon after, another authorized arrangement for piano and voices was made by Soumis, and published in Paris. At various places in this arrangement were inserted the names of certain orchestral instruments " which," as the court said, " if the piano-forte arrangement were to be converted into a full operatic score, would afford some indication of the instruments to be used." In June of the same year, Offenbach sold the exclusive right of printing and representing the opera in Great Britain to the plaintiffs, to whom he delivered a manuscript copy of the score. On June 9, the plaintiffs registered the opera under the 7 & 8 Vict. c. 12, s. 6, in the name of Offenbach, as composer and owner. The time and place of the first publication of one of the piano- forte arrangements were also entered in the registry, and a copy of this publication was deposited with the officer of the Stationers' Company. Afterward, on the same day, the assign- ment to the plaintiffs was registered. At this time tliere had been no publication of the opera in print, other than that of the two piano-forte arrangements. On August 9, 1869, four of the orchestral parts of the opera ; viz., those for first and second violins, violincello and contra basso, were printed for sale in Paris, by authority of Offenbach. This publication was not registered in London. In May, 1874, the defendant brought out at the St. James's Theatre in London, an op^ra bouffe called Vert-vert. A material part of the music was substantially the same as that composed by Offenbach. It had not, however, been copied from the latter's orchestral score, but it had been taken from one of the piano-forte arrangements made by Soumis, and had been arranged for the orchestra by a musician em- ployed by the defendant. The plaintiffs now sought to restrain this representation as an infringement of their rights. » 7 Ch. D. 301. STATUTORY PLAYRIGHT. 609 Vice-Chancellor Bacon ruled that there had not been a valid registration either of the opera itself or of the piano-forte arrangement, and dismissed the bill.^ The Court of Appeal held that the registration of the unpublished score of the opera was good, and hence secured to the plaintiffs the exclusive right of representation ; that there had been no lawful registra- tion of the piano-forte arrangement, which consequently was not protected ; but that the performance of the music obtained from either of the arrangements was a violation of the right of representing the opera secured to the plaintiffs.^ Assuming that the Court of Appeal was right in holding that the registration of the opera, but not of the piano-forte arrangement, was valid, it becomes necessary to inquire what right was secured by such registration, and whether it was complete or sufficient to prevent an unauthorized representa- tion of the music obtained from the unregistered piano-forte arrangement. The plaintiffs' rights in this case were governed by section 6 of 7 & 8 Vict. c. 12, which makes registration of works first published in a foreign country a condition of securing protection in England. This act and the order in council made in pursuance of it give a foreign author of a dramatic or musical composition two privileges ; viz., the ex- clusive right of printing and the sole liberty of representing it. The latter right may be secured either for a printed or for a manuscript composition, and section 6 of 7 & 8 Vict. c. 12, prescribes the mode of registration for each case. If the work has been published in print, the time and place of such publi- cation, as was conceded in Boosey v. Fairlie, must be registered, and in default thereof no right is secured. If it has not been published in print, but has been publicly represented, then it is enough to give the time and place of such representation. When an opera or a play is registered as an unpublished work, the registration is valid only on condition that it is true that the work has not been published. If a part of it has been published, the registration can be good only to the extent of the unpublished matter. Thus, if one of the three acts of an opera has been printed, the registration of the whole as 1 7 Ch. D. 307. » Ibid. 311. 89 610 THE LAW OP COPYRIGHT AND PLATRIGHT. a manuscript would protect only the two acts which have not been published.^ So, the registration of the unpublished or- chestral parts covers those parts, but not any other arrange- ment which may be published in print without being regis- tered. Hence, to secure and preserve his rights in an opera wliich is registered as an unpublished work, the owner must either not publish any part or any arrangement of it, or he must secure protection for that part or arrangement by com- plying with the requisites prescribed in the case of printed compositions. In the case under consideration, the opera itself, which had not been published in print, was registered as an unpublished work ; the time and place of its first representation being given. The registration was valid only as to what was then unpub- lished, viz., the original score ; and it secured the right of i-epresenting this alone. No one without authority might use this score or a copy of it without violating the right secured. But, at the time this was registered, two arrangements for the piano-forte had been published in print, and afterward four orchestral parts were so published, and none of these publica- tions was registered. The court admitted that no right in these had been secured, and that they had become common property. It was not claimed that any person was barred from publishing them in print. Tliey were not less common property with respect to the right of representation. If any person might print them, any person miglit represent them. But the Court of Appeal, following the reasoning used in Reade v. Conquest,^ held that, while the piano-forte arrangement was entitled to no protection, its use was an indirect appropriation of the original opera, and hence a violation of the right therein secured. In considering the judgment in Reade v. Conquest, I tried to show that this doctrine is in conflict with a fundamental principle of the theory of copyright, wliich prevents unlawful copying only from tlie work protected, and not from any source which is open to all.3 In Boosey v. Fairlie, the plaintiff was bound to 1 The same principle was recog- not in that part which had been pre- nized in Low v. Ward, Law Rep. 6 viously published in tlie United States. Eq. 416, where copyright was held to ^ n c. B. n. s. 479. vest in that part of a book which had » See ante, p 458. been first published in England, but STATUTORY PLAYRIGHT. 611 show that the work protected had been copied. He was not entitled to prevent any person from using substantially the same production if got from a common source. The piano- forte arrangement of which the defendant made use was com- mon property, and hence there was nothing to bar him from using it in any manner. It was judicially conceded, in Boosey v. Fairlie, that if, at the time of registration, there had been a complete publication in print of the original opera, that is, of all the orchestral parts, tlie right of representation could have been secured only by registering the work as a printed composition. Both copy- right and playright would then have vested in it. But suppose that the right of representation had been secured by registering the unpublished opera, could this right have been defeated by a subsequent publication in print, of which no registration was made ? This question was raised in Boosey v. Fairlie. It was contended for the defendant that whatever rights had been secured by the registration of the manuscript score were lost by the subsequent publication and non-registration of the four orchestral parts. The court, without deciding what effect a complete publication of the entire work would have on the right secured, held that this was not such a publication.^ The opinion has already been expressed in this work that playright, once secured in a manuscript composition, may be lost by a subsequent complete publication in print, which works an abandonment of the copyright ; and that, when the publi- cation is not complete, the right secured may be defeated to the extent of the publication. If this principle is sound, the 1 " Assuming the original registra- give protection to the right of repre- tion of proprietorship to be valid, it senting it, or performing it, the sub- has been urged on behalf of tlie defend- sequent printing and publication of ant : first, that, under the convention of such piece or composition, if not fol- 1851, the protection given by the regis- lowed by a deposit of a copy at Sta- tration became subsequently inopera- tioners' Hall, can be held to take away tive in consequence of the plaintiffs' not that right ; for in the present case it having delivered to the officer of the appears to us that the publication of Stationers' Company a. copy of the the four instrumental parts does not four instrumental parts published on constitute a publication of Offenbach's the 9th of August, 186y. . . . Upon opera within the meaning either of the the first point, it is unnecessary to convention or of the statute under decide whether, supposing a dramatic which that convention was made." piece or musical composition in manu- Thesiger, L. J., Boosey v. Fairlie, 7 Ch. script to have been registered so as to D. 316. 612 THE LAW OP COPYRIGHT AND PLATRIGHT. publication without registration of the four orchestral parts of Offenbach's opera made those parts common property, and to that extent defeated the right of representation. United States. Playright Given only in Case of Copyrighted Composition. — The first American statute on the subject under consideration was that of 1856, which gave to dramatists the exclusive right of publicly performing their plays. But the provisions of this act were limited to those compositions in which copyright had vested, or should thereafter be acquired, under the statute of 1831.' Playright is now governed by the Revised Statutes, which enact that the author or owner of any book, dramatic or musical composition, &c., shall have the sole liberty of publishing it in print; "and, in the case of a dramatic composition, of publicly performing or representing it, or causing it to be performed or represented by others." ^ The statute further prohibits the unlicensed representation of any dramatic composition " for which copyright has been ob- tained." ^ Playright is thus expressly limited to dramatic compositions for which a copyright has been secured. The former right is embraced within, and cannot exist independently of, the latter. A dramatist has no claim, under the statute, to the exclusive right of representing any play which is not protected by copy- right. No Statutory Playright in Unpublished Dramas. — It is settled that copyright cannot exist in a work until it is published, and that the public performance of a play is not a publication within the meaning of the statute.* Hence, it follows that there can be no statutory playright in a manuscript drama. This vital principle has been strangely overlooked or disregarded in not fewer than five cases decided by the Circuit Court of the United States. In Boucicault v. Wood, the plaintiff claimed, under the 1 Boberta v. Myers, 18 Monthly Law Reporter, 396 ; Eeene v. Wheatley, 9 Am. Law Reg. 33, 45; Boucicault o. Fox, 6 Blatchf. 96-98; Boucicault ». Wood, 2 Biss. 36-38. 2 8. 4952. » 3. 4966. * See ante, pp. 284, 285. STATUTOEY PLAYRIGHT. 613 statute of 1856, the exclusive right of representing the Oc- toroon and the Colleen Bawn, two manuscript dramas of which he was the author. The title-page of the former had been deposited in conformity with the law on Dec. 12, 1859, and of the latter on March 23, 1860. Both plays had been repeatedly represented in public, with the consent of the au- thor ; but neither had been published in print, and there had been no compliance with the provisions of the statute requir- ing the delivery of copies, and the printing of the copyright notice. The performances complained of had taken place in 1864, 1865, and 1866 ; from four to six years after the record- ing of the title-pages. The principle is well established, and was affirmed in this case, that the exclusive right of repre- senting a dramatic composition was given by the statute of 1856 only in cases wherein copyright had been secured under the act of 1831. The vital question, therefore, was whether valid copyright had vested in the compositions in question. The court held that, under the act of 1881, " not only a suit in equity, but at law, could be maintained before the publication of the work, for the benefit of any party aggrieved ; " and that, under this act, and that of 1856, the plaintiff was entitled to maintain an action for the unlicensed performance of his plays, notwithstanding there had been no publication, and no com- pliance with two of the three statutory requisites relating to copyright.^ The law had been construed to the same effect in Roberts V. Myers,^ decided in 1860, and in Boucicault v. Fox,^ in 1862, in each of which the validity of the copyright in the Octoroon, one of the dramas above mentioned, was upheld. The same principle appears to have been applied in two cases brought by Shook against Rankin in 1875, in which the statu- tory copyright in the play of the Two Orphans was held to be valid.* The plaintiffs had bought a copy of the unpublished 1 2 Bi«s. 34. *i^ t''** "° copy had been deposited as 2 13 Monthly Law Keporter, 396. required by law. These vital ques- ' 5 Blatchf. 87. In Keene v. Wheat- tions are not referred to in the opinion ley, 9 Am. Law Eeg. 44, the court in Boucicault v. Fox, though the con- appears to have taken the same view trolling facts and principles were the of the law. In Roberts u. Myers, the same in both cases, objections were raised and overruled * 3 Cent. Law Jour. 210; 6 Biss. that the play had not been published, 477. 614 THE LAW OF COPYRIGHT AND PLATRIGHT. French drama, Les Deux Orphelines, with the exclusive right of representation in the United States, and had caused a translation to be made. They alleged that they had copy- righted this translation, but it does not appear that they had complied with any other requirement of the statute than filing a copy of the title. The vital question whether the play, that is the translation, had been published in print as a step to secure the copyright, or whether it was then unpublished, can- not positively be determined from the report of either case, or both reports together. But it may fairly be assumed that,the play had not been published.^ In both cases protection was claimed under the copyright statute, and, as neither party was a citizen of the State in wliich the suit was brought, the court had no jurisdiction except under that statute. Hence, in granting the injunctions, the court upheld the validity of the statutory copyright, and if the play had not been published, as has been here assumed, affirmed the principle that a manuscript drama is within the protection of the statute. Nor was either of the decisions based on the ground that an unreasonable time for publication had not passed after the filing of the title. The fact that the play had not been published appears not to have been referred to in either case. Moreover, it appeared from the pleadings that the title had been filed more than seven months before one and more than eight months before the other suit was brought ; ^ whereas, in Boucicault v. Hart, about four months was held to be an unreasonable time to pass without publication after the recording of the title.^ The law, as applied by the court in the five cases above reviewed, is wholly indefensible, and is against the entire cur- ' The remark made by Drummond, September, and the other in October J., in his opinion, " has the defendant following. infringed his [plaintiff's] rights by » 13 Blatchf. 47. In July, 1876, performing this unpublished drama ? " Lowell, J., held in the United States implies that there had been no publi- court in Boston, that the copyright in cation in print. 6 Biss. 480. The The Two Orphans was not valid, on the entire opinion of Judge Nelson appears ground that the copyright notice in the to proceed on the assumption that the printed copy of the play was not in play was an unpublished one. 3 Cent, the precise form prescribed by the Law Jour. 210. • statute. Tompkins v. Rankin, 3 Cent. 2 The plaintiff alleged that tlie Law Jour. 443. No satisfactory report title had been filed Feb. 1, 1875. 6 of this case has been published. Biss. 478. One suit was brought in STATUTORY PLAYRIGHT. 615 rent of authorities, which affirm the principle that there can be no copyright without a compliance with the requisites prescribed by the statute.^ The true doctrine was affirmed by the Circuit Court of the United States in the recent case of Boucicault v. Hart, though it is noticeable that the court in its opinion, though citing and in effect overruling Roberts v. Myers, Bou- cicault V. Fox, and Boucicault v. Wood, did not comment on these authorities.^ Boucicault v. Hart, as well as the two cases of Shook V. Eankin, was governed by the statute now in force ; but its provisions on the point under consideration are sub- stantially the same as those of the acts of 1856 and 1831, under which the three other cases were decided. The controlling facts and principles were essentially the same in all of the cases. In Boucicault v. Hart, the plaintiff claimed to be entitled under the statute to the exclusive right of representing the Shaugh- raun, of'which he was the author. The title-page of this play had been duly recorded on Oct. 26, 1874, after which the piece was publicly represented by the author. It was, how- ' The opinion of the court, in Bouci- cault V. Wood, seems to liave been based chiefly on the construction of section 6 of tlie act of 1831, wliich imposes penalties on any person who " from and after the recording the title of any book " shall publish such book without due authority. But this sec- tion did not enable a person to main- tain an action at law for the violation of copyright until that right had been completely secured. See anle, p. 267. In Roberts v. Myers, Sprague, J., said : " The third objection is that no copy of this book was ever deposited in the clerk's office. The statute re- quires that such copy shall be deposited within three months after publication. That time has not arrived. There has been no publication." 13 Monthly Law Reporter, 396. In answer to the ob- jection that the drama had not been printed, the court, having quoted the language of the first section of the act of 1831, which provides that a copy- right may be secured for any book " which may now be made or com- posed, and not printed or published, or shall hereafter be made or composed," said : " Here it is clearly expressed that a book may exist without printing ; and such book, when made or com- posed, is to be entitled to copyright. The objection, therefore, cannot pre- vail." Ibid. 399. It is plain that the court failed to comprehend the true meaning of the language quoted from the statute. It was not that a book might be protected by copyright while in manuscript; but that copyright might be obtained only for such books as had not been pub- lished, excluding all those which were published before being copyrighted. The object of the statute was to provide protection for unpublished works, but it contemplated their publication as a condition precedent to copyright. The language above quoted is not used in the act now in force. 2 Boucicault v. Hart appears not to have been reported when the two later cases of Shook v. Rankin were de- cided. 616 THE LAW OP COPYRIGHT AND PLAYRIGHT. ever, kept in manuscript, and the bill, verified in February, 1875, did not allege any publication of the composition, or any delivery of copies as required by the statute. The law was rightly interpreted by Mr. Justice Hunt of the United States Supreme Court, to the effect that there could be no exclusive right under the statute of representing a dramatic composition, unless it was protected by copyright ; and that valid copyright could not be secured without publication of the piece in print, and a compliance with the requisites prescribed by the statute. " I hold," he said, " that to secure copyright of a book, or a dramatic composition, the work must be published within a reasonable time after the filing of the title-page, and two copies be delivered to the librarian. These two acts are by the stat- ute made necessary to be performed, and we can no more take it upon ourselves to say that the latter is not an indispensable requisite to a copyright, than we can say it of the former." ^ As the plaintiff had not complied with these conditions, his title was held to be invalid. How Playright is Secured. — To acquire under the statute the exclusive right to perform a play in public, the owner ' 13 Blatchf. 47, 54. " Any person," copyright fully and absolutely, and said Mr. Justice Hunt, " shall be enti- that this may be defeated by a publi- tled to a copyright, who, before publi- cation and failure to deliver two copies, cation, first, shall deliver to the but, as long as there is no publication, librarian a printed copy of the title of although it continue indefinitely, there the book, and second, shall, within ten is no lapse of the right. This construc- days after the publication thereof, de- tion is not permitted either by the idea liver to the librarian two copies of the which secures benefits to the author or same. The book may not be printed inventor, upon tlie theory that the or published when the title-page is public is to be benefited, as well as filed, and some right (inchoate per- himself, by his works, or by the prin- haps) seems intended to be secured as ciple pervading all this branch of the of that date, altnough an actual print- laws of patents, trade-marks, and copy- ing or publication is not then made, rights, that an author or inventor must But the expression ' before publica- put his claim into the form of a well- tion ' is based upon the idea that a defined specification, work or composi- printing or publishing will soon occur, tion, and so place it upon record that Tills is put into clear meaning by the he cannot alter it to suit circumstances, next clause of the section, that the and so that other authors may know author shall not be entitled to copy- precisely what it is that has been right, unless, ' within ten days from written or invented." Ibid. 54. the publication ' he shall deliver two This authority was followed in Ca- copies to the librarian. It is not a fair rillo v. Shook, 22 Int. Kev. Rec. 152. interpretation of this section to hold. See also Benn v. Le Cleruq, 18 Id. 94. that the filing of the title entitles to a STATUTORY PLATRI6HT. 617 must first publish and copyright it as a literary composition. Playright can be secured in no other way. Copyright in a dramatic composition carries with it playright. No spe- cial conditions or requirements are prescribed for securing playright. If the production be a " dramatic composition," copyright and playright attach simultaneously in the same manner and on the same conditions. Both rights begin with publication in print, and continue for the same term. Neither is affected by public performances of the play before its publi- cation in print.i If the copyright be valid, the playright is valid. The owner of the copyright has the sole liberty both of publishing the composition and of representing it in public. If the copyright fails, the playright fails with it. Transfer op Playright. — Great Britain. Held, that Assignment must be in 'Writing. — The mode of transmitting the right to print a dramatic or musical compo- sition, that is the copyright, is not different from that to be observed in the case of a book. But a conveyance of the right to publish a dramatic or musical composition does not neces- sarily carry the right to represent or perform it. The mode of transferring playright is, however, regulated by the same gen- eral principles that govern in the case of copyright. Hence, in England, the construction given to the 8 Anne, c. 19, and the 54 Geo. III. c. 156, has been applied to the 3 & 4 Will. IV. c. 15 ; and accordingly it has been held that an assignment of the right to represent or perform a dramatic or musical composi- tion must, under the last-named statute, be in writiug,^ though it need not be attested^ nor sealed.* This is the law as it has been judicially interpreted. But it is open to the same criticisms that have been made on the law relating to the assignment of copyright.^ ' Roberts v. Myers, 13 Monthly Law ' Cumberland v. Copeland, 1 Hurl. Reporter, 396 ; Boucicault v. Fox, 5 & C. 194. Blatchf. 87 ; Boucicault v. Wood, 2 * Marsh v. Conquest, 17 C. B. ir. s. Biss. 34; Boucicault v. Hart, 13 418. Blatchf 47. ' See ante, p. 304, et seq. >■ Shepherd u. Conquest, 17 C. B. 427. 618 THE LAW OP COPYRIGHT AND PLATRIGHT. Is Law Settled that Assignment must be in 'Writing ? — The law regulating the transfer of playright cannot rightly be de- termined without considering what effect, if any, the 5 & 6 Vict. c. 45, has on this question. Can this statute be construed to govern the mode of transferring the right of representing a dramatic composition, so that, if copyright may be passed by parol, playright may be assigned in the same manner ? This important question does not appear to have been judicially con- sidered. It has been shown in another part of this work that the question whether copyright may be assigned by parol, under the statute of Victoria, cannot be regarded as judicially settled ; but the opinion has been expressed that the weight of authority is in favor of the construction that an assignment is not required to be in writing.^ Ill Cumberland v. Copeland, the Exchequer Ciiamber, over- ruling the judgment of the Court of Exchequer,^ held that an unattested writing was sufficient, under the statute of William ; ^ but the question whether a writing was necessary was not be- fore the court. Moreover, the assignment in controversy had been made before the statute of Victoria was passed. And so, in Marsh v. Conquest, the court simply decided that the assign- ment need not be by deed.* Sliepherd v. Conquest is the only case yet reported in which it has been directly held that an assignment of playright must be in writing.^ This judgment was based on the construction of 3 & 4 Will. IV. c. 15, and it does not appear that the court considered the bearing of 5 & 6 Vict. c. 45, on the question. The doctrine aflSrmed in this case was questioned in Lacy v. Toole, where a letter was held to be a valid assignment of the property in a play.® These decisions cannot rightly be regarded as settling what form of transfer is admissible under the statute of Victoria. Section 20 of this act, after securing to the author and his assigns the sole liberty of representing or performing a dra- matic or musical composition, for the same term as that provided for copyright in books, declares that " the provisions herein- 1 See ante, pp. 311-316. ,s 17 C. B. 427. 2 7 Hurl. & N. 118. 6 15 l. T. n. s. 512. See language 8 1 Hurl. & C. 194. of Byles, J., anU, p. 811, note 1. 4 17 C. B. s. s. 418. STATUTORY PLAYRIGHT. 619 before enacted in respect of the property of such copyright, and of registering the same, shall apply to tlie liberty of repre- senting or performing any dramatic piece or musical composi- tion," except as otherwise provided. The object and effect of this section, considered in connection with the general scope of the entire statute, appear to be to put playright on the same foot- ing as copyright, as far as the vesting and the ownership of the rights are concerned. Moreover, the definition of assigns con- tained in section 2 doubtless gives the meaning of that word wherever used in the statute, and hence is as applicable to an assignee of playright as to one of copyright. It would seem, therefoi'e, that any mode of transferring copyright recognized by the statute would be equally available in the case of play- riglit ; that, if the former may be assigned by parol, so may the latter ; and that a writing, if required in one case, is essen- tial in the other. Transfer before Playright Secured. — It has been maintained elsewhere that, whatever may be the proper form of assignment after the copyright has been secured, the statute cannot rightly be construed to regulate transfers made before the statutory right has vested.^ The statutory right of representation in the case of a manuscript dramatic composition attaches when the play is first publicly performed. Assuming the principle just expressed to be sound, the rights in a manuscript drama which has not been publicly performed may be passed by a verbal agreement ; for in such case the form of transfer is governed by the common law. But it should be borne in mind that the questions here raised have not been determined by the courts ; hence the law remains for judicial interpretation. Registration. — Nor has it been decided whether section 13 of 5 & 6 Vict. c. 45, which provides for the transfer of copy- right by registration, but does not mention playright, and sec- tion 2.5, relating to the transmission of copyright by bequest and in case of intestacy, are applicable to the right of repre- sentation. But, for the reasons given above, it would seem that they are. This view in the case of transfer by registra- tion appears to be confirmed by section 22 of the statute of Victoria. I See ante, pp. 306, 307. 620 THE LAW OP COPYRIGHT AND PLATRIGHT. By this section, it is enacted " that no assignment of the copyright of any book, consisting of or containing a dramatic piece or musical composition shall be holden to convey to the assignee the right of representing or performing such dramatic piece or musical composition, unless an entry in the said regis- try book shall be made of such assignment, wherein shall be expressed the intention of the partjes that such right should pass by such assignment." It has been said ^ that this section was enacted to correct the law as expounded in Cumberland v. Planchd,^ where it was held that an assignment of the copy- right in a farce carried the rjght of representation ; and that Parliament intended to declare that a general assignment of copyright should not be construed to have that effect, unless the assignment should be registered, and the intention to trans- fer the right of representation clearly expressed. The pro- vision applies, however, only to cases where the copyright in a dramatic or musical composition is assigned without any men- tion of the playright, and where, consequently, it may be doubt- ful whether the latter right was intended to be passed. When the playright alone is assigned, or when in the instrument that conveys the copyright it is expressly declared that the right of representation is also passed, registration is not required.^ Thus, it was not necessary to register an assignment of "the whole copyright and acting right without reservation," since the intention to pass both rights was here plain.* There is no reason why the same rule should not apply to cases wherein the assignment of the copyright shows unmis- takably the intent of the assignor to convey also the playright, although the latter right is not expressly named in the instru- ment. Thus, an absolute conveyance in general terms of all the author's " right, title, and interest " in a dramatic compo- sition can only mean, in the absence of words or circumstances to the contrary, that the parties agreed that the entire property, playright as well as copyright, should pass.^ 1 See Lacy v. Rhys, 4 Best & S. "It is not clear whether the above 888. provision of the statute was intended ^ 1 Ad. & El. 580. to apply to all assignments of the copy- " Lacy V. Rhys, infra; Marsh v. right in dramatical and musical com- Conquest, 17 C. B. u. s. 418. positions, by whatever mode effected, * Lacy V. Rhys, 4 Best & S. 873. or only to those made by registration. STATUTORY PLATEIGHT, 621 Transfer op Platright. — United States. In the United States, the statutory right of exclusive repre- sentation can exist only in a dramatic composition which has been copyrighted as a book. To this extent, playright is de- pendent on copyright. But there appears to be no reason why the two rights in the same composition may not be held sepa- rately by different persons, or why one right may not be trans- mitted with or without the other. Mode of Transfer. — In considering the question whether copy- right may be assigned by parol, or whether a writing is neces- sary, it has been shown ^ that the only provisions in the Re- vised Statutes which can be cited in favor of the latter view are sections 4955, which enacts that " copyrights shall be assign- able in law, by any instrument of writing ; " and section 4964, which imposes a penalty on any person who shall republish a book without the written consent of the owner of the copy- right, signed by two witnesses. The latter section clearly does not apply to the performance of a play. Unlicensed repre- sentation is prohibited by section 4966, which declares that any person who publicly performs a dramatic -composition without the consent of the owner shall be liable to damages ; but it does not require such consent to be in writing. There is noth- ing in the statute which can rightly be construed as regulating the mode of assigning playright, excepting section 4955. This mentions assignments of " copyright " alone.. As the statute does not expressly prescribe any form of transferring the right of representing a dramatic composition, it might be claimed that the question is governed by the common law, and hence that a parol transfer is good. But it is more probable that the courts will hold that, as playright is embraced within the grant of copyright, any regulations prescribed concerning the trans- fer of the latter right are by implication equally applicable to the former. If this view shall be adopted, and section 4955 This question has not been judicially the only mode of assigning copyright considered. It may be urged with expressly prescribed by the statute; much reason that, in making the provi- and that the effect of a transfer other- sion, Parliament had in view only those wise made should be left to judicial assignments made by entry in the reg- construction, ister at Stationers' Hall, since this is i See ante, pp. 319-321. 622 THE LAW OF COPYRIGHT AND PLAYRIGHT. be construed to require an assignment of copyright to be in writing, it will follow tliat the same form must be observed in assigning playright. Transfer before Playright Secured. — "When a play is sold in manuscript, and the buyer afterward secures the statutory copy- right and playright in his own name, there is nothing in the statute requiring the assignment, thus made before the statu- tory right attaches, to be in writing.-'^ Does Assignment of Copyright Carry Playright ? — The ques- tion may arise, whether a general assignment of the author's rights in a copyrighted dramatic composition will carry both the right of publication and that of representation ; and whether an assignment of the " copyright " without mention of the playright will impliedly embrace the latter. This would doubt- less depend on the agreement, and the intention of the parties to be determined by the words of the contract, and such facts and circumstances as would be admissible to show its meaning. An absolute conveyance of all the author's " right, title, and interest " in a play would, in the absence of controlling cir- cumstances to the contrary, be naturally understood to pass the entire property, including the rights both of publication and of representation.^ And so an assignment in which the copy- right, but not the playright, is mentioned may be shown to have the same effect ; or its meaning may be properly restricted to the former right. It is a question of construction depending on the agreement and the circumstances in each case. But a clear intention to transfer both rights should be shown in order to give the agreement that effect. Limited Assignment of Playright. — It has been shown that copyright cannot be regarded as divisible with respect to locality on account of the impracticability of such division.'' But this difficulty does not exist in the case of playright. The imprac- ticability of there being several exclusive publishers of a book in the same country, and of each restricting the circulation and sale of his publication to a prescribed area, is obvious. It is equally plain that no serious inconvenience will necessarily 1 See ante, p. 319. 2 As in Cumberland v. Planch^, 1 Ad. & El. 580. » See ante, p. 386. STATUTORY PLATRIGHT. 623 result from one person exercising the exclusive right to repre- sent a play in one State or city and another person in another State or city. There is, then, no reason why the owner of a drama, whether it be in manuscript, or printed and copy- righted, may not make an absolute assignment of the right to represent it in any named part of the country, in any State or States, or in any city or cities. The ownership of the play- right may thus be divided among many owners, each having the exclusive right of representation within certain boundaries. In Keene v. Wheatley, the court seems to have entertained the contrary opinion.^ But in the following case of Eoberts v. Myers, the law was more correctly expounded to the effect that playright may be transferred independently of the copy- right in the same composition, and that the former may be assigned for any part of the country.^ 1 " The author's proprietary rights for England and Scotland," said Mr. Justice Cadwalader, " had nerer been transferred to her [the complainantl. The statutes of the United States for the protection of authors do not, like those tor the benefit of inventors, ex- pressly sanction transfers of limited local proprietorships of exclusiye privi- leges. A writing, which is in form a transfer by an author of his exclusive right for a designated portion of the United States, would therefore, at law, even under the statutes of copyright, operate as a mere license, and would be ineffectual as an assignment." 9 Am. Law Reg. 46. This is true of copyright, but not of playright. Miss Keene had bought from an English dramatist the exclu- sive right of representing the play in the United States. It was held that as the play had not been published, she was entitled to maintain a suit in equity for the protection of her common- law rights ; but that the transfer to her " cannot be regarded otherwise than as only a partial assignment upon which a suit could not be maintained at law in her own name." Ibid. The doc- trine expressed in the language quoted is clearly erroneous. The very essence even of a limited assignment is that the ownership and the legal title for the time or territory embraced within the assignment must pass to the assignee ; otherwise the agreement is but a li- cense. A good assignment for the United States had been made to Miss Keene. She thereby became vested with the legal title and the absolute ownership in this country, and hence was fully entitled to maintain an action at law as well as a suit in equity. '' 13 Monthly Law Reporter, 396. In this case it appeared that an assign- ment had been made to the plaintiff of the exclusive right of representing a play for one year, in all parts of the United States excepting certain cities. The defendant contended that such agreement was not an assignment, but a license, and therefore that the suit could not be maintained in the name of the plaintiff. Mr. Justice Sprague said : " Whatever force tliis objection might have at law, it cannot prevail in equity. The statute of 1834 sanctions assignments of copyright, by prescrib- ing the instrument by which they are to be made and a mode of recording them. It does not say what interest may be assigned. But there is no sufficient reason for preventing the au- thor from conveying a distinct portion of his right. Divisibility as well as 624 THE LAW OP COPYRIGHT AND PLAYRIGHT. In this case, the court also expressed the opinion that play- right might be assigned for any time less than the full term. But the question whether a transfer of the exclusive right of representation for a limited time will amount in law to an assignment which will vest the assignee with the legal title during that term is attended with the same doubt and diffi- culties which were pointed out in treating of the limited assignment of copyright.^ Joint Authorship — Authors Employed. — The questions as to who is the owner of a play claimed to have been written by two persons jointly, and of a dramatic or musical composition which has been produced by one person in the employment of another, have already been considered.^ assignability enhances the value of his time." Ibid. 401. See also Martinetti property, for he may find a purchaser v. Maguire, 1 Deady, 216. able and willing to pay for a part, but ^ See ante, p. 337. not for the whole, of his copyright. ^ See as to joint-authorship, Levi ». The exclusive right of acting and rep- Rutley, ante, p. 237 ; French v. Maguire, resenting is distinct from that of print- 55 How. Pr. (N. Y.) 471. As to rights ing and publishing, created indeed by of employer and person employed, see a new statute, which superadds it to Hatton v. Kean, ante, p. 249 ; Wallen- those pre-existing rights ; and there is stein v. Herbert, ante, p. 251 ; Bouci- no good reason why it should not be cault v. Fox, ante, p. 257 ; Shepherd v. assignable, and that too for a limited Conquest, 17 C. B. 427. INFRINGEMENT OP PLAYRIGHT. 625 CHAPTER XVI. INFRINGEMENT OF PLAYRIGHT. The remedies for the unlawful performance of a dramatic composition are of two kinds : those in equity and those at law. The unlicensed representation of a play may be prevented or restrained by injunction ; and an action at law lies for the damages sustained by such performance. The remedies in equity, including the injunction, account of profits and discovery, are governed by the same general principles which have been considered in the case of copyright.^ statutory Remedies for Violation of Playright different from those for Invasion of Copyright. — The remedies in law pre- scribed by the statute for the violation of playright are different from those provided for the infringement of copyright. The modes of violating the two rights are entirely distinct. Statu- tory copyright is infringed by publication, but not by any oral use of the composition. Playright is invaded by performing the play, but not by printing it or selling printed copies. Tlie 3 & 4 Will. IV. c. 15, secures no other right and prohibits no other act than that of representation. The right secured by this statute is reaffirmed, its duration enlarged, and its appli- cation extended to musical compositions, by section 20 of 5 & 6 Vict. c. 45. But the remedies prescribed by the latter statute for the unlawful publication of a book do not apply, and are not extended, to the unlicensed representation of a play. For the latter wrong, the penalties given by the statute of William are re-enacted by section 21 of 5 & 6 Vict. c. 45. The only remedies then provided by any English statute for the protec- tion of playright are those prescribed by 3 & 4 Will. IV. c. 15, and these do not apply to the unlawful printing of a play. Of course, a dramatic composition may be copyrighted as a book 1 See Chap. XI. 40 626 THE LAW OP COPYRIGHT AND PLATRIGHT. under the statute of Victoria ; and, in that case, unlawful print- ing is a violation of the copyright. But copyright vests only in printed books, while playright is secured in both published and manuscript productions. Hence, in England, a dramatist has no statutory remedy for the unlicensed printing of an un- published play. In the United States, playright, as well as copyright, is secured by the statute only in published works. When a dra- matic composition is printed without authority, the wrong must be treated as an infringement of copyright. When the complaint is of unlicensed performance, the only remedies are those prescribed for the invasion of playright. Section 4967 of the statute, which prohibits the unauthorized publication of a manuscript, applies to the printing, but not the public perform- ance, of an unpublished play.-' Remedies Prescribed by English Statute. — In England, the statutory remedies for the violation of playright are provided by section 2 of 3 & 4 Will. IV. c. 15, which declares that if any person shall " represent, or cause to be represented, with- out the consent in writing of the author or other proprietor first had and obtained, at any place of dramatic entertainment," any dramatic piece entitled to protection, or any part thereof, " every such offender shall be liable for each and every such representation to the payment of an amount not less than forty shillings, or to the full amount of the benefit or advan- tage arising from such representation, or the injury or loss sustained by the plaintiff therefrom, whichever shall be the greater damages." Remedies Prescribed by American Statute The statute of the United States provides that " any person publicly perform- ing or representing any dramatic composition for which a copyright has been obtained, without the consent of the pro- prietor thereof, or his heirs or assigns, shall be liable to dam- ages therefor, such damages in all cases to be assessed at such sum, not less than one hundred dollars for the first, and fifty dollars for every subsequent performance, as to the court shall appear to be just."^ 1 Boucicault v. Hart, 13 Blatuhf. 47 ; Keene o. Wheatley, 9 Am. Law Keg. 33; Boucicault v. Fox, 5 Blatchf. 97. " U. S. Eev. St. s. 4966. INFRINGEMENT OP PLAYRIGHT. 627 What is an Unlawful Performance. Public and Private Performances Distdngnished. — The statute of the United States prohibits only unlicensed public perform- ances. The word public or its equivalent is not used in the English act. But there can be no reasonable doubt that a strictly private performance is not within the prohibition of either statute. Cases may arise in which it will not be easy to determine whether the representation is a public or a private one. That it is called private does not make it so. Without regard to what it is called, or where it may be given, that may generally be regarded as a public performance which is open to the public without discrimination. But it would seem that a representation may also be regarded as a public one, although the privilege of admission is denied to the general public, and is extended only to certain persons. " Private theatricals" are sometimes given by amateur performers in a place of public amusement, to which a charge is made for admission. Only invited persons, or members of a certain society or class, are privileged to buy tickets of admission. There appears to be no reason why such entertainments should not be treated as public performances within the meaning of the law, notwith- standing the public indiscriminately are not admitted. In a case of doubt as to whether an entertainment is a public or a private one, the fact that no charge is made for admission may aid in removing the doubt. But when it is found that a performance is public, the penalty of piracy cannot be escaped by the fact that the audience were admitted without charge. The purpose of the law is to protect the lawful owner of a dramatic composition from injury. Ordinarily, no injury will arise from the strictly private representation of a play. But a performance, nominally private, but in reality public, with a charge imposed on those admitted, or public performances to which persons are admitted free of charge, may be hai'mful to the owner of the drama represented, who thereby becomes entitled to the 'protection of the law. Scenery, Costumes, Ac, not Essential. — Neither scenery, ap- propriate costumes, nor any of the usual resources of a theatre, 628 THE LAW OP COPTEIGHT AND PLATRIGHT. are essential to a dramatic performance within the meaning of the statute. " We should take away a part of the protection conferred on authors," said Chief Justice Denman, " if we held that there could be no public representation without these accompaniments." ^ Place of Performance. — Nor is it necessary that the repre- sentation shall be given in a theatre. The English statute prohibits unlicensed performances " at any place of dramatic entertainment." According to the judicial interpretation given to this language, any place where a public dramatic represen- tation is given is a " place of dramatic entertainment " within the meaning of the law. " As a regular theatre may be a lecture-room, dining-hall, ball-room, and concert-room, on suc- cessive days, so a room, used ordinarily for either of those purposes, would become, for the time being, a theatre, if used for the representation of a regular stage play." ^ Plurality of Actors not Essential. — A plurality of actors is not essential to a dramatic representation. In the meaning of the law, the performance is complete when the dialogue or monologue of the drama is repeated with appropriate expression and action before a public audience.^ It cannot be material whether the various characters in the play are assumed by as many different actors, or are represented by one person appear- ing in ordinary dress in any plaCe of public entertainment. The whole or a material part of a drama is frequently given as a " dramatic reading" by one person, on a lecture platform, and without special costume or other stage resource. The dialogue is thus recited with appropriate expression and action by a 1 Eussell V. Smith, 12 Q. B. 236. various parts or characters assigned to 2 Denman, C. J., Ibid. 237. In the them generally, the composition is same case, Patteson, J., remarlted that acted, performed, or represented, and, " the street wliere Punch is performed if the representation is in public, it is is for the time being a place of dra- a public representation. To act, in the matic entertainment." Ibid. 232. In sense of the statute, is to represent as Eussell V. Briant, 8 C. B. 836, the court real, by countenance, voice, or gesture, did not doubt that a room in the Horns that which is not real. A character in Tavern was a place of dramatic enter- a play who goes through witli a series tainment. See also Russell u. Smith of events on the stage without speak- (in equity), 15 Sim. 181. ing, if such be his part in the play, is s " When a dramatic composition is none the less an actor in it than one represented, in dialogue and action, by who, in addition to motions and gest- persons who represent it as real, by ures, uses his voice." Blatchford, J., performing or going through with the Daly ». Palmer, 6 Blatchf. 264. INFRINGEMENT OP PLATRIGHT. 629 single person, who represents the various characters as speak- ing and acting. Such a reading must be regarded as a di-a- matic performance within the meaning of the statute. In England, it has been held that the singing in public of a dramatic song, by one person sitting at a piano, is a dramatic representation. 1 Public Reading may Amount to Performance. — There is no reason why the public reading or recital of any dramatic com- position may not amount to a performance within the meaning of the law. Tlie object of the statute may rightly be taken to be to secure to the owner the profits arising from all public uses of a dramatic composition. It is manifest that the prop- erty in the play may be injured, and the owner be deprived of profits to which he is entitled, if he is powerless to prevent the unlicensed use of his production for public readings. But this right does not vest in a literary production which is not a dramatic composition. For in this case only the ex- clusive right of printing and selling is given by the statute, and only the unlawful printing or circulation of copies is pro- hibited. Hence, the author has no remedy against any person who publicly reads or recites such production. Of course, this rule applies only to published works. The unauthorized public reading of any unpublished production, whether a dramatic composition or not, is a violation of the owner's common-law rights therein. Who are Liable. Under the English statute, any person is made liable to the penalties who shall unlawfully represent, or " cause to be rep- resented," a dramatic piece.^ Tlie words above quoted are not used ill the American act, which prohibits " any person publicly performing or representing any dramatic composition," ^ in violation of the provisions of the statute. This variation in language does not affect the uniformity of the intent and object of the two statutes. In this respect, they are to be construed alike. 1 Euseell v. Smith, 12 Q. B. 217. " 3 & 4 Will. IV. c. 15, s. 2. See also Russell v. Briant, 8 C. B. 836; 3 u. S. Kev. St. s. 4966. Clark V. Bishop, 25 L. T. n. s. 908. 630 THE LAW OP COPYRIGHT AND PLATEIGHT. Whether the part taken by a person in the representation of a play is such as will render him liable to an action for the penalties or damages, is a question sometimes attended with difiSculties. Where the defendant had let a room or hall in his tavern, and had furnished the platform, benches, and lights for a public performance, and had allowed bills to be put up in the tavern, and tickets to be sold at the bar, it was' held that these facts " afforded no evidence that the defendant represented, or caused to be represented, the musical composition in question within the meaning of the statute ; " and that a person is not liable, " unless, by himself or his agent, he actually takes part in a representation which is a violation of copyright. And if it were to be held that all those who supply some of the means of representation to him who actually represents are to be regarded as thereby constituting him their agent, and thus causing the representation, within the meaning of the act, such a doctrine would, we think, embrace a class of persons not at all intended by the legislature." ^ In Lyon v. Kuowles, it appeared that the defendant had let his theatre to Dillon for certain dramatic performances, paid for the printing and advertising, and furnished the lights, door- keepers, scene-shifters, supernumeraries, and musicians. Dillon engaged and paid the company, selected the plays, and had the entire management of the performance, and exclusive control of all persons employed in the theatre. The money paid for admission was taken at the doors by servants of the de- fendant, who retained one half of the gross receipts as his remuneration for the use of the theatre, &c., and gave the other half to Dillon. On these facts, it was held that the defendant had transferred to Dillon, for the time, the entire control and management of the theatre ; that the arrangement between them did not amount to a partnership ; and hence that the latter, and not the former, was the person who had caused the representation.^ This judgment was affirmed on appeal.^ 1 Russell V. Briant, 8 C. B. 836, 848. defendant, he might be considered as 2 3 Best & S. 556. representing, or causing to be repre- ' 5 Id. 751. " If Dillon," said Chief sented, the piece in question. But the Justice Cockburn in the lower court, facts are quite otherwise. As I under- " and his company could be in any stand the evidence, the defendant made sense regarded as the company of the over to Dillon the use of this theatre, INFRINGEMENT OF PLAYRIGHT. 631 The facts in Marsh v. Conquest showed that the defendant was the owner and manager of the Grecian Theatre in London ; and that, for £30, he had let for one night to his son, who was stage-manager, the use of the theatre, company, and all persons employed. The son selected and brought out a play, for whose representation the court held the defendant liable.^ This judgment was based on the fact, whether assumed or proved does not appear from the report, that the defendant had the control and management of the theatre and the company during that performance. If such was the fact, the law was doubtless interpreted correctly. But it may be doubted whether the cir- cumstances and the relations of the parties warranted that assumption. The natural inference would be that, by the letting of the theatre and the company for one night, the entire con- trol and management for that time passed to the lessee ; and. to perform therein with his company such pieces as he should be minded to represent there. All that the defend- ant did was to stipulate that his ser- vants should receive the proceeds, in order that the remuneration which he contracted for should be secured to him. But the theatre with its acces- sories, lights, band, &c., was under the direction and control of Dillon, and the defendant had divested himself both of the right to interfere in the choice of the piece to be represented, and of any veto to be exercised by him as to pro- viding, acting, or representing any par- ticular piece. The defendant is noth- ing more than the proprietor of the theatre, who has transferred for the time the exercise of all his rights in it as such to Dillon. " It therefore appears to me that Dillon is the person who represented any pieces represented there while he had the sole possession. If it had been made out that there was a joint action or control over the performances by the defendant and Dillon, so that they could be considered partners, that might have been a very different matter. But here there was nothing in common ' between them except that the gross proceeds were shared. Does that make them partners'? In order to constitute a partnership between two persons, there must be a participation of profits between them as such, where- as here the stipulation was that the de- fendant should have half of the gross profits of the theatre in lieu of being paid any sum as rent for the use of it." 3 Best & S. 562. 1 17 C. B. N. s. 418. "I think," said Erie, C. J., " the defendant is responsible for that representation. He was the proprietor of the theatre, and had entire control over the estab- lishment and all belonging to it ; and what was done by his son was done by his permission. The case of Lyon v. Knowles seems to me to recognize that distinction. There the defendant merely let his theatre with the scenery, scene-shifters, band, lights, &c., to Dillon, who brought his own company to represent pieces of his own selec- tion, the plaintiff having no control whatever over any person employed in the representation. Here, however, tlie piece is performed by the defend- ant's own corps dramatique, his son being one of them ; and the performance takes place for the defendant's profit to the extent of 30i. I think, therefore, it is impossible to say that the defend- ant did not cause tlie piece to be repre- sented." Ibid. 481. 632 THE LAW OP COPYRIGHT AND PLAYRIGHT, in that case, the defendant was no more liable for the repre- sentation than was the defendant in Russell v. Briant, or in Lyon V. Knowles.^ In Daly v. Palmer, the court ruled that the unlicensed sale of the infringing drama, " with a view to its public represen- tation, makes the seller a participant in causing the play to be publicly represented ; " and the defendants were enjoined, not only from performing the play, but also from selling it for public representation.^ What Amounts to Piracy. In the case of playright, piracy is determined by the same general principles that govern in the case of copyright. The unauthorized performance, not only of the whole, but of a material part of a dramatic composition, will amount to piracy.^ that in two points or situations there had been an imitation of the pIainti£F's drama by the defendant. These points so copied were not parts of the dia- logue or composition of the plaintiff's drama, but were in the nature of dra- matic situations or scenic effects. It appeared to me that, looking to the general character of the two dramas respectively, the extent to which the one was taken from the other was so slight, and the effect upon the total composition was so small, that there was no substantial and material taking of any one portion of the defendant's drama from any portion of the plain- tifE's. Therefore, though I felt bound to find that there was a taking of these two small points, I decided to enter the verdict for the defendant, and the question now is whether I was entitled to do so in point of law." After considering Planch^ v. Bra- ham, Bramwell v. Halcomb, Bradbury V. Hotten, and D'Almaine v. Boosey, he continued : " All these authorities satisfy me that the answer to the ques- tion whether there has been an in- fringement of copyright, does not follow as a necessary logical consequence from ' In Lyon v. Knowles, Blackburn, J., said : " I do not think that, by furnish- ing servants to another, a man can be said to do all that is done by those ser- vants while under the command of that other. A familiar example may be found in the case of a man letting a ready-furnished house, leaving an old servant in it. Suppose the tenant gave a dinner, which was cooked by that servant, who also attended on him at it, and for which the plates and furni- ture of the landlord were used, no one could say that in any sense of the words the landlord gave that dinner." 3 Best & S. 564. 2 6 Blatchf. 256, 271. ' Br. Planche' v. Braham, 8 Car. & P. 68, on ap. 4 Bing. N. C. 17 ; Reade V. Conquest, 11 C. B. n. s. 479, 492; Boosey K. Fairlie, 7 Ch. D. 301 ; Chat- terton o. Cave, Law Rep. 10 C. P. 572, 1st ap. 2 C. P. D. 42, 2d ap. 3 App. Cas, 483. Am. Daly v. Palmer, 6 Blatchf. 256 ; Shook v. Rankin, 6 Biss. 477. In Chatterton v. Cave, Lord Cole- ridge, C. J., said: "I concur in the opinion of the rest of the court. What I meant to convey by my finding was INFRINGEMENT OP PLAYBIGHT. 633 Offender Liable to Penalties under EngUsh Statute when Material Part Taken. — The 3 & 4 Will. IV, c. 15, s. 2, by express words, subjects to the penalties prescribed any person who shall unlawfully represent the whole or " any part " of a dra- matic piece. But a person is not liable to the penalties, unless a material part has been taken. " The question in every case," said Lord O'Hagan, " must be a question of fact ; and a jury cannot be constrained to find every infinitesimal taking to be the taking of a ' part ' of a dramatic production within the purview of the statute. ' Part,* as was observed, is not nec- essarily the same as ' particle ; ' and there may be a taking so minute in its extent, and so trifling in its nature, as not to incur the statutable liability." ^ When the part taken is ma- terial, the plaintiff, according to the opinion expressed by Chief Justice Tindal, in Planch^ v. Braham, is not bound to prove actual damage. " The positive enactment," said that Judge, " that every offender shall be liable to an amount not less than 40s., or to the full amount of the benefit derived or loss sus- tained, shows that damage to the plaintiff is not the test of the the mere fact of there having been a tak- the prologue and epilogue respectively, ing from a previous worlc, but that it is and have not much reference to the a question of fact and of common sense, action of the drama. They are intro- whether the part taken is of such a dueed into the English dramas more as substance and value, or used in such a part of the machinery or story of the way, as to amount to an infringement play than in the French original. The of the plaintiff's right. Here the plain- end of the French play is quite dif- tiff's play was taken from a, French ferent from that of the English, and the original, and the plaintiff' would have appearance of the Jew in the latter at a literary copyright in the translation theendof the play is connected with the and the right of representing it ; but alteration of the plot. I think that the this could not prevent another person idea of these appearances was not from going to the original and making taken by the defendant from the French another version in which he also would original, but from the plaintiff's play, have a copyright. The defendant had But notwithstanding this I think the made what in all but two points was effect of them is so very small on the an entirely distinct and independent total result of the play, and they form version of the original drama. The such an utterly unimportant part of the two points in question related to two scenic representation as a whole, that appearances of the Wandering Jew. the defendant's dramacannot be said to I must confess that there is a difficulty be taken in any material or substantial to my mind in referring the substance part from the plaintiff's." Law Rep. of the two points taken to the original 10 C. P. 580-582. French drama as my learned brethren ' Chatterton v. Cave, 3 App. Cas. 483, have done. In the French drama these 498. See also same case in lower courts, appearances of the Jew form part of 2 C. P. D. 42, Law Eep. 10 C. P. 572. 634 THE LAW OF COPYRIGHT AND PLATRIGHT. defendant's liability, but that 40s. is to be paid, even if there be no actual damage." ^ How Far Offender Liable under American Statute when only Part Taken. — The Statute of the United States prohibits the unlicensed performance of " any dramatic composition," and fixes a minimum limit to the assessment of damages.^ Above this limit, the amount is left to the discretion of the court.^ The question may be raised vrhether the minimum of damages specified by the statute is not in the nature of a penalty ; * and, if so, whether such penalty may be recovered for the unlawful performance of a part of a play.^ But there can be no doubt that the unlawful performance of a material part of a dramatic composition will amount to piracy, against which an injunction will be granted, and for which an action for the damages sus- tained may be maintained.® Substantial Identity Test of Piracy. — It is not essential that the representation complained of shall be an exact copy of the whole or part of a protected play. Substantial identity is enough to constitute piracy.'' 1 4 Bing. N. C. 19. This opinion was cited with approval by Lord O'Ha- gan in Chatterton a. Cave, 3 App. Cas. 498. But in tlie same case Lord Hathedey seems to have thought that some damage must be shown in order to subject the defendant to the penal- ties. He said : " The minimum of damages, to be awarded when the fact of damage and the right to damages have been once established, was no doubt fixed because of the diflScuIty of proving with definiteness what amount of actual damage had been sustained, by perhaps a single performance at a provincial theatre of a work belonging to a plaintiff, whilst at the same time his work might be seriously depre- ciated if he did not establish his right as against all those who infringed upon it." Ibid. 492. See ante, p. 478, note 2. 2 U. S. Kev. St. s. 4966. ' In considering the statute of 1856, Mr. Justice Drummond said : " That law prescribes a particular penalty for the unauthorized performance of a play : in the first instance, not less than $100, and for every subsequent performance, $50 ; leaving a certain discretion with the court upon that subject, 'as to the court having cog- nizance thereof shall appear to be just.' In other words, it does not necessarily follow that in all cases the precise penalty fixed to the violation of the law shall be given, but the court is to exercise a certain discretion in relation to the matter." Boucicault v. Wood, 7 Am. Law Reg. n. s. 549. * See post, p. 639. 5 This question in the case of copy- right is considered ante, p. 488. 6 Daly V. Palmer, 6 Blatchf. 256 ; Shook ». Rankin, 6 Biss. 477. ' Br. Reade v. Conquest, 11 C. B. N. s. 479 ; Chatterton v. Cave, Law Rep. 10 C. P. 572, 1st ap. 2 C. P. D. 42, 2d ap. 3 App. Cas. 483; Boosey v. Fairlie, 7 Ch. D. 301. Am. Daly v. Palmer, 6 Blatchf. 256; Boucicault V. Wood, 2 Biss. 34 ; Martinetti v. Ma- guire, 1 Deady, 216. INFRINGEMENT OF PLAYRIGHT. 635 The decision in Daly v. Palmer affords an instructive illus- tration of what has been held to be a substantial identity sufficient to constitute piracy in the case of a dramatic repre- sentation. The matter alleged to have been pirated was the " railroad scene " in Daly's play Under the Gaslight. In this scene is represented a surface railroad and a signal-station shed, in which a woman, at her own request, is locked by the signal man, who then disappears. Next are seen two men, one of whom binds the other with a rope, fastens him to the railroad track, and leaves him to be killed by an expected train. Prom a window in the shed the woman sees what is done, hears the noise of the approaching train, breaks open the door with an axe, and frees the intended victim an instant before the train rushes by. This scene was reproduced, but with noticeable variations, in Boucicault's drama After Dark. One of the characters, from a wine vault where he had been thrown, sees, through a door into an adjoining vault, two persons pass through a hole in the wall the body of a man who had been made uncon- scious by drugs. With an iron bar, he enlarges an orifice in tiie wall of the vault which opens on an underground railway, and sees lying insensible on the track the person whose body had just been put there by the two men in the adjoining vault. Hearing the noise of a coming locomotive, he quickly makes his way through the opening in the wall and moves the bodj' from the track just in time to prevent it from being run over by the passing train. In Under the Gaslight this incident occupies the third scene of the fourth act, and, during its progress, there is considerable conversation between the several characters on the stage. In After Dark, it is represented in three scenes of the third act, chiefly by action, but partly by monologue spoken by one of the characters after he has seen the body on the track. In laying down the law applicable to these facts, Mr. Justice Blatchford said : — "The series of events so represented, and communicated by movement and gesture alone to the intelligence of the spec- tator, according to the directions contained in parentheses, in the two plays in question here, embraces the confinement of 636 THE LAW OP COPYRIGHT AND PLAYRIGHT. A. in a receptacle from which there seems to be no feasible means of egress ; a railroad track, with the body of B. placed across it in such manner as to involve the apparently certain destruction of his life by a passing train ; the appearance of A. at an opening in the receptacle, from which A. can see the body of B. ; audible indications that the train is approaching ; successful efforts by A., from within the receptacle, by means of an implement found within it, to obtain egress from it upon the track ; and the moving of the body of B., by A., from the impending danger, a moment before the train rushes by. In both of the plays, the idea is conveyed that B. is placed inten- tionally on the track, with the purpose of having him killed. Such idea is, in the plaintiff's play, conveyed by the joint medium of language uttered, and of movements which are the result of prescribed directions, while, in Boucicault's play, it is conveyed solely by language uttered. The action, the narra- tive, the dramatic effect and impression, and the series of events in the two scenes, are identical. Both are dramatic compositions, designed or suited for public representation. It is true that, in one, A. is a woman, and, in the other, A. is a man ; that in one, A. is confined in a surface railroad-station shed, and, in the other, A. is confined in a cellar abutting on the track ; that, in one, A. uses an axe, and, in the other, A. uses an iron bar ; that, in one, A. breaks down a door, and, in the other, A. enlarges a circular hole ; that, in one, B. is con- scious, and is fastened to the rails by a rope, and, in tlie other, B. is insensible, and is not fastened ; and that, in one, there is a good deal of dialogue during the scene, and, in the other, only a soliloquy by A., and no dialogue. But the two scenes are identical in substance, as written dramatic compositions, in the particulars in which the plaintiff alleges that what he has invented, and set in order, in the scene, has been appro- priated by Boucicault. . . . " All that is substantial and material in the plaintiff's railroad scene has been used by Boucicault, in the same order and sequence of events, and in a manner to convey the same sensa- tions and impressions to those who see it represented, as in the plaintiff's play. Boucicault has, indeed, adapted the plaintiff's series of events to the story of his play, and, in doing so, has INFRINGEMENT OP PLAYRIGHT. 637 evinced skill and art ; but the same use is made, in both plays, of the same series of events, to excite, by representation, the same emotions, in the satoe sequence. There is no new use, in the sense of the law, in Boucicault's play, of what is found in the plaintiflfs railroad scene. The railroad scene in Bouci- cault's play contains every thing which makes the railroad scene in the plaintiff's play attractive as a representation on the stage. As, in the case of the musical composition, the air is the inventio'n of the autlior, and a piracy is committed if that in which the whole meritorious part of the invention consists is incorporated in another work, without any material alteration in sequence of bars ; so, in the case of the dramatic composi- tion, designed or suited for representation, the series of events directed in writing by the author, in any particular scene, is his invention, and a piracy is committed if that in which the whole merit of the scene consists is incorporated in another work, without any material alteration in the constituent parts of the series of events, or in the sequence of the events in the series. " The adaptation of such series of events to different characters who use different language from the characters and language in the first play is like the adaptation of the musical air to a different instrument, or the addition to it of variations or of an accompaniment. The original subject of invention, that which required genius to construct it and set it in order, remains the same in the adaptation. A mere mechanic in dramatic composition can make such adaptation, and it is a piracy, if the appropriated series of events, when represented on the stage, although performed by new and different charac- ters, using different language, is recognized by the spectator, through any of the senses to which the representation is addressed, as convejdng substantially the same impressions to, and exciting the same emotions in, the mind, in the same sequence or order. Tested by these principles, the railroad scene in Boucicault's play is, undoubtedly, when acted, per- formed, or represented on a stage or public place, an invasion and infringement of the copyright of the plaintiff in the railroad scene in his play." ^ 1 6 Blatchf . 265-270. 638 THE LAW OF COPYRIGHT AND PLAYRIGHT. Dramatizations. — As each of two or more independent dra- matizations of a common original is entitled to protection, one is not a piracy of another, unless there has been unlawful copying.i Intention and Ignorance. — It is no defence to an action for the violation of playright that the defendant has not know- ingly or intentionally committed piracy.^ Registration. — In England, it has been held that an action for the penalties or a suit for an injunction may be maintained, although the dramatic piece alleged to have been infringed has not been registered.^ Consent in Writing. — The English statute imposes penalties on any person who shall represent a dramatic piece " without the consent in writing of the author or other proprietor first had and obtained." * Such consent need not be in the hand- writing of the author or proprietor. It may be given by an agent.^ The American statute does not require the consent to be in writing.^ Limitation of Actions. — The 3 & 4 Will. IV. c. 15, re- quires that actions and suits for infringement of playright shall be brought within twelve months after the cause of action arose." The American statute provides that " no action shall be maintained in case of forfeiture or penalty under the copyright laws, unless the same is commenced within two years after the cause of action has arisen." ^ This limitation seems to apply only to proceedings for forfeitures and penalties, and not to actions for damages or suits in equity.® Assuming this to be the sound construction, the question arises whether section 4966, which gives an action for damages and fixes a minimum limit to the assessment of the damages, is remedial or penal. If what is there prescribed is a penalty, it would seem that actions brought under that section must be begun within two years. But if a mere remedy in damages is provided by that 1 See ante, pp. 433, 696. < 3 & 4 Will. IV. c. 15, s. 2. 2 Reade v. Lacy, 1 Johns. & H. 524; 5 Morton v. Copeland, 16 C. B. 517. Keade v. Conquest, 11 C. B. n. a. 479. ' U. S. Rev. St. s. See this subject considered ante, pp. ' o. 3. 401-404. 8 s. 4968. 8 See ante, p. 603. « See ante, p. 494. INFRINGEMENT OP PLATRIGHT. 639 section, the statutory limitation, according to the view above taken, does not apply to actions for the recovery of such dam- ages. The sound view would seem to be that the provision under consideration is at once remedial and penal. It is reme- dial inasmuch as it gives an action for damages. It is penal with respect to the minimum of damages prescribed. If this is true, the amount of damages named is in the nature of a penalty, and actions for the recovery of that amount, without regard to the damages actually sustained, are governed by the statutory limitation of time. But such limitation would not apply to actions for purely remedial damages to be assessed irrespective of the minimum amount fixed by the statute. But if it shall be held that section 4966 is wholly penal, and that the statutory limitation of time applies equally to all actions for damages brought under it, then an action for damages or a suit in equity will lie independently of that section. For the principle is settled that where a right is secured by a statute, and penalties, but not the remedial action for damages, are prescribed, the common-law remedies both in law and in equity are available.^ And such remedies are not lost by not being sought within the time prescribed by the statute for the recovery of penalties. The proper construction of the statute, then, would seem to be that when playright is invaded, an ac- tion for the damages actually sustained, or a suit in equity, is not barred by the fact that the relief is not sought within two years after the wrong has been done. Jurisdiction. — In the United States, actions and suits for the piracy of statutory playright must be brought in a federal court.^ Music. The view has been taken in this work that the English statute secures to the composer the exclusive right of perform- ing every kind of music, whether it is or is not a dramatic composition, and whether it is vocal or instrumental.^ Assum- ing this to be the true object of the statute, the owner of any musical composition has a right of action against any person 1 See ante, p. 473. ' See Chap. XI. ^ gee ante, p. 599. 640 THE LAW OP COPYRIGHT AND PLAYRIGHT. who causes it to be played in public without due authority. Piracy is governed by the same principles ; and the remedies are the same in this case as in that of dramatic compo- sitions.^ In the United States, the statute does not give to the com- poser the exclusive right of playing a piece of music, unless it be a dramatic composition. A work composed for instru- ments alone, as a symphony, concerto, &c., cannot be considered as a dramatic composition. Hence, there is no statutory rem- edy against any person who causes a work of this kind to be played in public without the consent of the owner. The question may arise, whether the statute protects the music, as well as the words, of a musical dramatic composition. An opera, and sometimes a single song, is such a composition, consisting, as has been shown, of words and music allied. The unauthorized representation of the whole is a clear case of piracy. So, also, would be the performance of the libretto, or the recitation of the words, either alone, without music, or when set to music other than the original.^ But has the owner of an opera any remedy against one who gives an opei'atic performance in which is used the music, but not the libretto, of the protected composition ? Has the author of a dramatic song any lawful means of preventing another from singing in public the melody with other words ? The true doctrine may be reached by applying two established principles : 1. The statute protects the whole and every substantial part of a dra- matic composition. 2. The unlicensed performance of the whole or of a material part is piracy. The music forms an important and essential part of every musical dramatic com- position. Hence, playing in public the music, though other words than the original be used, is the public performance of a material part of a dramatic composition, and must therefore fall within the statutory prohibition, and be piratical. 1 In Boosey v. Fairlie, 7 Ch. D. 301, yiolation of the playright in the opera it appeared that the defendant had secured to the plaintiff by the In- taken for public performance with his ternational Copyright Act. See ante, own libretto a material part of the p. 608. music but not the words of the plain- " Planch^ v. Braham, 8 Car. & P. tiff's opera. This was held to he a 68, on ap. 4 Bing. N. C. 17. STATUTES. 41 8 Geo. II. c. 13. Engravings 643 7 Geo. III. c. 38. „ 645 15 Geo. III. c. 53. Universities and Colleges 647 17 Geo. III. c. 57. Engravings 651 54 Geo. III. c. 56. Sculpture 653 3 & 4 Will. IV. c. 15. Dramatic Compositions 656 5 & 6 Will. IV. c. 65. Lectures 658 6 & 7 Will. IV. c. 59. Engravings 660 5 & 6 Vict. c. 45. Books, Dramatic and Musical Compositions, 661 7 & 8 Vict. c. 12. International Copyright 675 13 & 14 Vict. c. 104. Sculpture 684 15 & 16 Vict. c. 12. International Copyright 685 25 & 26 Vict. c. 68. Paintings, Drawings, and Photographs . 691 38 & 39 Vict. c. 12. International Copyright 697 U. S. Revised Statute. Books and other Articles .... 698 Act op 1874. Engravings, Copyright Notice, Fees, &c. . . . 704 U. S. Statutes relating to Jurisdiction 705 The English Statutes, except the 38 & 39 Vict. c. 12, are reprinted from the Revised Statutes of Great Britain, and the American, except the Act of 1874, from the second edition (1878) of the Revised Statutes of the United States. In every case the text copied has heen strictly followed in the matter of punctuation, spelling, use of capitals, &c., with the view of making the Statutes as here given exact copies of the originals. STATUTES. 8 Geo. II. c. 13. An Act for the Encouragement of the Arts of designing, en- graving, and etching historical and other Prints, by vesting the Properties thereof in the Inventors and Engravers during \ the Time therein mentioned. [2 Rev. Stat. 399.] [1735.] Whereas divers persons have by their own genius, industry, Preamble, pains, and expence, invented and engraved, or vyorked in mezzotiuto or cbiaro oscuro, sets of historical and other prints, in hopes to have reaped the sole benefit of their labours : And whereas print-sellers and other persons have of late, without the consent of the inventors, designers, and proprietors of such prints, frequently taken the liberty of copying, engrav- ing, and publishing, or causing to be copied, engraved, and published, base copies of such works, designs, and prints, to the very great prejudice and detriment of the inventors, de- signers, and proprietors thereof : For remedy thereof, and for preventing such practices for the future, may it please your Majesty that it may be enacted, and be it enacted by the King's most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present Parliament assembled, and by the authority of the same, that from and after the twenty fourth day of June, After 24 June, 1735, the prop- which shall be in the year of our Lord one thousand seven erty of historical , , ,, . ^ and other prints hundred and thirty five, every person who shall mvent and Tested in the in- . . , . Tenter for four- design, engrave, etch, or work m mezzotinto or chiaro oscuro, teen years. or from his own works and invention shall cause to be de- signed and engraved, etched, or worked in mezzotinto or chiaro oscuro, any historical or other print or prints, shall have the sole right and liberty of printing and reprinting the same for 644 THE LAW OP COPYRIGHT AND PLAYRIGHT. Proprietor's name to be affixed to each print. Penalty on print' sellers or others pirating the Not to extend to purchasers of plates ftom the original propri- etors. the term of fourteen years, to commence from the day of the first publishing thereof, which shall be truly engraved with the name of the proprietor on each plate, and printed on every such print or prints ; and that if any print-seller or other person whatsoever, from and after the said twenty fourth day of June one thousand seven hundred and thirty five, within the time limited by this Act, shall engrave, etch, or work as aforesaid, or in any other manner copy and sell, or cause to be en- graved, etched, or copied and sold, in the whole or in part, by varying, adding to, or diminishing from the main design, or shall print, reprint, or import for sale, or cause to be printed, reprinted, or imported for sale, any such print or prints, or any parts thereof, without the consent of the pro- prietor or proprietors thereof first had and obtained in writ- ing, signed by him or them respectively in the presence of two or more credible witnesses, or, knowing the same to be so printed or reprinted without the consent of the proprietor or proprietors, shall publish, sell, or expose to sale or other- wise, or in any other manner dispose of, or cause to be pub- lished, sold, or exposed to sale or otherwise, or in any other manner disposed' of, any such print or prints without such consent first had and obtained as aforesaid, then such offender or offenders shall forfeit the plate or plates on which such print or prints are or shall be copied, and all and every sheet or sheets (being, part of or whereon such print or prints are or shall be so copied or printed) to the proprietor or proprietors of such original print or prints, who shall forthwith destroy and dam- ask the same ; and further, that every such offender or offenders shall forfeit five shillings for every print which shall be found in his, her, or their custody, either printed or pub- lished and exposed to sale, or otherwise disposed of contrary to the true intent and meaning of this Act, the one moiety thereof to the King's most excellent Majesty, his heirs and successors, and the other moiety thereof to any person or persons that shall sue for the same, to be recovered in any of his lUajesty's courts of record at Westminster, by action of debt, bill, plaint, or information, in which no wager of law, essoign, privilege, or protection, or more than one imparlance shall be allowed. II. Provided nevertheless, that it shall and may be lawful for any person or persons who shall hereafter purchase any plate or plates for printing from the original proprietors 7 GEO. III. C. 38. 645 thereof, to print and reprint from the said plates without incurring any of the penalties in this Act mentioned. III. And be it further enacted by the authority aforesaid, Limitation of that if any action or suit shall be commenced or brought against any person or persons whatsoever, for doingor caus- ing to be done anything in pursuance of this Act, the same shall be brought within the space of three months after so doing ; and the defendant and defendants in such action or General issue, suit shall or may plead the general issue, and give the special matter in evidence ; and if upon such action or suit a verdict shall be given for the defendant or defendants, or if the plain- tiff or plaintiffs become nonsuited or discontinue his, her, or their action or actions, then the defendant or defendants shall have and recover full costs, for the recovery whereof he shall have the same remedy as any other defendant or defendants in any other case hath or have by law. IV. Provided always, and be it further enacted by the authority aforesaid, that if any action or suit shall be com- menced or brought against any person or persons for any offence committed against this Act, the same shall be brought within the space of three months after the discovery of every such offence, and not afterwards, anything in this Act con- tained to the contrary notwithstanding. VI. And be it further enacted by the authority aforesaid, PubUckAct. that this Act shall be deemed, adjudged, and taken to be a publick Act, and be judicially taken notice of as such by all judges, justices, and other persons whatsoever without spe- cially pleading the same. 7 Geo. III. c. 38. An Act to amend and render more effectual an Act made in the Eighth Tear of the Reign of King George the Second, for Encouragement of the Arts of designing, engraving, and etching Historical and other Prints ; and for vesting in and securing to Jane Hogarth, Widow, the Property in certain Prints. [2 Rev. Stat. 707.] [1766.] Whereas an Act of Parliament passed in the eighth year of preamble, reoit- the reign of his late Majesty King George the Second, intit- {"flso 646 THE LAW OF COPYRIGHT AND PLATRIGHT. The original inventors, de- signers, or en- Riavers, &c, of historical and other prints, and such who shall cause prints to he done from works, &c. of their own invention, and also such as shall engrave, &c. any print taken from any picture, drawing, model, or sculp- ture ; are entitled to the benefit and protection of the recited and pres- ent Act ; and those who shall engrave, or import for sale, copies of such prints, are liable to penal- ties. uled " An Act for the encouragement of the arts of designing, engraving, and etching historical and other prints, by vesting the properties thereof in the inventors and engravers during the time therein mentioned," has been found ineffectual for the purposes thereby intended : Be it enacted by the King's most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present Parliament assembled, and by the authority of the same, that from and after the first day of January one thousand seven hundred and sixty seven, all and every person and persons who shall invent or design, engrave, etch, or work in mezzo- tinto or chiaro oscuro, or from his own work, design, or inven- tion shall cause or procure to be designed, engraved, etched, or worked in mezzotinto or chiaro oscuro, any historical print or prints, or any print or prints of any portrait, conversation, landscape, or architecture, map, chart, or plan, or any other print or prints whatsoever, shall have and are hereby declared to have the benefit and protection of the said Act and this Act under the restrictions and limitations herein after-men- tioned. II. And be it further enacted by the authority aforesaid, that from and after the said first day of January one thousand seven hundred and sixty seven, all and every pei-son and per- sons who shall engrave, etch, or work in mezzotinto or chiaro oscuro, or cause to be engraved, etched, or worked, any print taken from any picture, drawing, model, or sculpture, either ancient or modern, shall have and are hereby declared to have the benefit and protection of the said Act and this Act for the term herein after-mentioned, in like manner as if such print had been graved or drawn from the original design of such graver, etcher, or draughtsman ; and if any person shall en- grave, print, and publish, or import for sale any copy of any such print contrary to the true intent and meaning of this and the said former Act, every such person shall be liable to the penalties contained in the said Act, to be recovered as therein and herein after is mentioned. Penalties may be sued for as by the recited Act is directed ; V. And be it further enacted by the authority aforesaid, that all and every the penaliies and penalty inflicted by the said Act, and extended and meant to be extended to the sev- eral cases comprised in this Act, shall and may be sued for and recovered in like manner and under the like restrictions and 15 GEO. III. C. 53. 647 limitations as in and by the said Act is declared and appointed ; and the plaintiff or common informer in every such action (in and be recoTered case such plaintiff or common informer shall recover any of the penalties incurred by this or the said former Act) shall recover the same, together with his full costs of suit. VI. Provided also, that the party prosecuting shall com- Prosecution to be mence his prosecution within the space of six calendar months w^SSTe'months. after the offence committed. VII. And be it further enacted by the authority aforesaid, The right in- ., . 1 . , f iM /. . . T , . . tended to be se- tnat tne sole nglit and liberty oi printing and reprinting in- cured by this tended to be secured and protected by the said former Act and Act, vested in this Act, shall be extended, continued, and be vested in the for the term of respective proprietors for the space of twenty eight years to th6'''flrst pabiica- commence from the day of the first publishing of any of the works respectively hereinbefore and in the said former Act mentioned. VIII. And be it further enacted by the authority aforesaid. Limitation of that if any action or suit shall be commenced or brought against any person or persons whatsoever, for doing or caus- ing to be done anything in pursuance of this Act, the same shall be brought within the space, of six calendar months after the fact committed ; and the defendant or defendants in any such General isBue. action or suit shall or may plead the general issue and give the special matter in evidence ; and if upon such action or suit a verdict shall be given for the defendant or defendants, or if the plaintiff or plaintiffs become nonsuited, or discontinue his, her, or their action or actions, then the defendant or defend- FuUcosta. ants shall have and recover full costs, for the recovery whereof he shall have the same remedy as any other defendant or de- fendants in any other case hath or have by law. 15 Geo. III. c. 53. An Act for enabling the Two Universities in England, the Four Universities in Scotland and the several Colleges of Eton, Westminster and Winchester, to hold in perpetmty their copy right in Books, given or bequeathed to the said Univer- sities and Colleges for the Advancement of useful Learning and other purposes of Education; and for amending so much of an Act of the eighth year of the reign of Queen 648 THE LAW OP COPYRIGHT AND PLAYRIGHT, Preamble. Unirersitiefl, &c. in GDgland and Scotland to have for ever the sole right of printing, &c. such books as liave been or shall be he- * queathed to them, unless the same have been or shall be elTen for a limited time. Anne as relates to the Delivery of Books to the Warehouse keeper of the Stationers Company, for the use of the severed lAbraries therein mentioned. [3 Rev. Stat. 81.] [1775.] Whereas authors have heretofore bequeathed or given, and may hereafter bequeath or give, the copies of books composed by them, to or in trust for one of the two universities in that part of Great Britain called England, or to or in trast for some of the colleges or houses of learning within the same, or to or in trust for the four universities in Scotland, or to or in trust for the several colleges of Eaton, Westminster and Winches- ter, and in and by their several wills or other instruments of donation have directed or may direct that the profits arising from the printing and reprinting such books shall be applied or appropriated as a fund for the advancement of learning and other beneficial purposes of education within the said univer- sities and colleges aforesaid : And whereas such useful pur- poses will frequently be frustrated unless the sole printing and reprinting of such books, the copies of which have been or shall be so bequeathed or given as aforesaid, be preserved and secured to the said universities, colleges and houses of learning respectively in perpetuity : May it therefore please your jyiajesty that it may be enacted, and be it enacted by the King's most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present Parliament assembled, and by the authority of the same, that the said universities and colleges respectively shall, at their respective presses, have for ever the sole liberty of printing and reprinting all such books as shall at any time heretofore have been or (having not been heretofore published or assigned) shall at any time hereafter be bequeathed or otherwise given by the author or authors of the same respec- tively, or the representatives of such author or authors, to or in trust for the said universities, or to or in trust for any col- lege or house of learning within the same, or to or in trust for the said four universities in Scotland, or to or in trust for the said coHeges of Eaton, Westminster and Winchester, or any of them, for the purposes aforesaid, unless the same shall have been bequeathed or given or shall hereafter be bequeathed or given for any term of years or other limited term, any law or usage to the contrary hereof in any-wise notwithstanding. 15 GEO. III. C. 63. 649 II. And it is hereby further enacted, that if any bookseller, After June 24, printer or other person whatsoever, from and after the twenty- printing^or'seii- fourth day of June one thousand seven hundred and seventy- 8h»u"rorreit°thl five, shall print, reprint or import, or cause to be printed, re- i™f(;r''e¥ery°° printed or imported, any such book or books, or, knowing the * '" ' same to be so printed or reprinted, shall sell, publish or expose to sale, or cause to be sold, published or exposed to sale, any such book or books, then such offender or offenders shall for- feit such book or books, and all and every sheet or sheets being part of such book or books, to the university, college or house of learning respectively to whom the copy of such book or books shall have been bequeathed or given as aforesaid, who shall forthwith damask and make waste paper of them ; and further, that every such offender or offenders shall forfeit one penny for every sheet which shall be found in his, her or their custody either printed or printing, published or exposed to sale, contrary to the true intent and meaning of this Act, the one moiety thereof to the King's most excellent Majesty, ^^^"^^^l ^°„^ his heirs and successors, and the other moiety thereof to any *'■<' """^ '" '•!= ' •^ •' prosecutor. person or persons who shall sue for the same ; to be recovered in any of his Majesty's courts of record at Westminster, or in the Court of Session in Scotland, by action of debt, bill, plaint or information, in which no wager of law, essoin, privilege or protection, or more than one imparlance shall be allowed. III. Provided nevertheless, that nothing in this Act shall Nothing in this ,..,,., I Act to extend to extend to grant any exclusive right otherwise than so long as grant any ex- the books or copies belonging to the said universities or col- longe^r than leges are printed only at their own printing presses within the printed at the said universities or colleges respectively, and for their sole SSTersiUes. " benefit and advantage ; and that if any university or college shall delegate, grant, lease or sell their copy rights, or exclu- sive rights of printing the books hereby granted, or any part thereof, or shall allow, permit or authorise any person or per- sons, or bodies corporate, to print or reprint the same, that then the privileges hereby granted are to become void and of no effect, in the same manner as if this Act had not been made ; but the said universities and colleges as aforesaid shall universities may II sell copyrights nevertheless have a right to sell such copies so bequeathed or in iiiie manner given as aforesaid, in like manner as any author or authors now may do under the provisions of the statute of the eighth year of her Majesty Queen Anne.'^ 1 8 Anne, c. 19, repealed by 5 & 6 Vict. o. 45, a. 1. as any author. 650 THE LAW OP COPYRIGHT AND PLAYRIGHT, No person sub- ject to peaaltieS for priDting, &c. books already bequeathed, un- less they be en- tered before June 24, 1775. All books that may hereafter be bequeathed must be regL-itered Yvithin two months after such bequest shall be known. 6(/. to be paid for each entry in the register book, which may be in- spected without Clerk to give a certificate, being paid 6d. If clerk refuse or neglect to make entry, &c., proprietor of such copy right to have like ben- efit as if such entry had been IV. And whereas many persons may through ignorance offend against this Act unless some provision be made where- by the property of every such book as is intended by this Act to be secured to the said universities, colleges and houses of learning within the same, and to the said universities in Scot- land, and to the respective colleges of Eaton, Westminster and Winchester, may be ascertained and known : Be it there- fore enacted by the authority aforesaid, that nothing in this Act contained shall be construed to extend to subject any bookseller, printer or other person whatsoever to the forfeit- ures or penalties herein mentioned for. or by reason of the printing or reprinting, importing or exposing to sale, any book or books, unless the title to the copy of such book or books which has or have been already bequeathed or given to any of the said universities or colleges aforesaid be entered in the register book of the Company of Stationers kept for that pur- pose, in such manner as hath been usual, on or before the twenty-fourth day of June one thousand seven hundred and seventy-five, and of all and every such book or books as may or shall hereafter be bequeathed or given as aforesaid be entered in such register within the space of two months after any such bequest or gift shall have come to the knowledge of the vice chancellors of the said universities, or heads of houses and colleges of learning, or of the principal of any of the said four universities respectively ; for every of which entries so to be made as aforesaid the sum of sixpence shall be paid, and no more ; which said register book shall and may, at all season- able and convenient times, be referred to and inspected by any bookseller, printer or other person, without any fee or reward ; and the clerk of the said Company of Stationers shall, when and as often as thereunto required, give a certificate under his hand of such entry or entries, and for every such certifi- cate may take a fee not exceeding sixpence. V. And be it further enacted, that if the clerk of the said Company of Stationers for the time being shall refuse or neglect to register or make such entry or entries or to give such certificate, being thereunto required by the agent of either of the said universities or colleges aforesaid, lawfully authorised for that purpose, then either of the said universi- ties or colleges aforesaid, being the proprietor of such copy right or copy rights as aforesaid (notice being firat given of such refusal by an advertisement in the Gazette), shall have 17 GEO. III. C. 57. 651 the like benefit as if such entry or entries, certificate or cer- made, and the tificates had been duly made and given; and the clerk so ^^^'^ ='"»■" '■°"«" refusing shall for every such offence forfeit twenty pounds to the proprietor or proprietors of every such copy right, to be recovered in any of his Majesty's courts of record at West- miuster, or in the Court of Session in Scotland, by action of debt, bill, plaint or information, in which no wager of law, essoin, privilege, protection, or more than one imparlance shall be allowed. VII. And be it further enacted by the authority aforesaid, EvideDce and that if any action or suit shall be commenced or brought against any person or persons whatsoever for doing or caus- ing to be done anything in pursuance of this Act, the defend- ants in such action may plead the general issue and give the special matter in evidence [a] ; and if upon such action a ver- dict or, if the same shall be brought in the Court of Session in Scotland, a judgment be given for the defendant, or the plaintiff become nonsuited and discontinue his action, then the defendant shall have and recover his full costs, for which he shall have the same remedy as a defendant in any case by law hath. VIII. And be it further enacted by the authority afore- pabUck Act. said, that this Act shall be adjudged, deemed and taken to be a Publick Act, and shall be judicially taken notice of as such by all judges, justices and other persons whatsoever, without specially pleading the same. 17 Geo. III. c. 57. An Act for more effectually securing the Property of Prints to Inventors and Engravers, hy enabling them to sue for and recover Penalties in certain Cases. [3 Rev. Stat. 130.] [1777.] Whereas an Act of Parliament passed in the eighth year of Preamble. T^. /-. , r< , . . Recital of Acts the reign of his late Majesty King George the Second, mtit- 8 Geo. 2. [o. 13.] uled " An Act for the encouragement of the arts of designing, engraving and etching historical and other prints, by vesting [a So much as relates to plea of general issue, rep., Stat..LawRe7. Act, 1861.] 652 THE LAW OF COPYRIGHT AND PLAYRIGHT. and 7 Geo. 8. c. 38. After JuDe 24, 1777, if any en- graver, &c. aball, within the time limited by the aforesaid Acta, engrave or etch, &c. any print without the con- sent of the pro- prietor, he shall be liable to dam- ages and double costs. the properties thereof in the inventors and engravers during the time therein mentioned : " And whereas by an Act of Pai'liament passed in the seventh year of the reign of his present Majesty, for amending and rendering more effectual the aforesaid Act, and for other purposes therein mentioned, it was (among other tilings) enacted, that from and after the first day of January one thousand seven hundred and sixty rseven all and every person or persons who should engrave, etch or work in mezzotinto or chiaro oscuro, or cause to be engraved, etched or worked any print taken from any picture, drawing, model or sculpture, either ancient or modern, should have and were thereby declared to have the benefit and protection of the said former Act and that Act, for the term therein-after mentioned, in like manner as if such print had been graved or drawn from the original design of such graver, etcher or draughts- man : And whereas the said Acts have not effectually an- swered the purposes for which they were intended, and it is necessary for the encouragement of artists, and for securing to them the property of and in their works, and for the ad- vancement and improvement of the aforesaid arts, that such further provisions should be made as are herein-after men- tioned and contained : May it therefore please your Majesty that it may be enacted, and be it enacted by the King's most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present Parliament assembled, and by the authority of the same, that from and after the twenty-fourth day of June one thousand seven hundred and seventy-seven, if any engraver, etcher, printseller or other person shall, within the time limited by the aforesaid Acts or either of them, engrave, etch or work or cause or procure to be engraved, etched or worked, in mezzotinto or chiaro oscuro or otherwise, or in any other manner copy in the whole or in part, by varying, adding to or diminishing from the main design, or shall print, reprint or import for sale, or cause or procure to be printed, reprinted or imported for sale, or shall publish, sell or otherwise dispose of, or cause or procure to be published, sold or otherwise dis- posed of, any copy or copies of any historical print or prints, or any print or prints of any portrait, conversation, landscape or architecture, map, chart or plan, or any other print or prints whatsoever, which hath or have been or shall be en- graved, etched, drawn or designed in any part of Greai 54 GEO. III. C. 56. 653 Britain, without the express consent of the proprietor or proprietors thereof first had and obtained in writing signed by him, her or them respectively, with his, her or their own hand or hands, in the presence of and attested by two or more credible witnesses, then every such proprietor or proprietors shall and may, by and in a special action upon the case to be brought against the person or persons so offending, recover such damages as a jury on the trial of such action, or on the execution of a writ of inquiry thereon, shall give or assess, together with double costs of suit. [Rep., Stat. Law Kev. Act, 1861.]! 54 Geo. III. c. 56. An Act to amend and render more effectual an Act of His present Majesty for encouraging the Art of making new Models and Casts of Busts, and other Things therein men- tioned, and for giving further Encouragement to such Arts. [5 Rev. Stat. 291.J [18th May 1814] "Whereas by an Act passed in the thirty-eighth j'ear of the Redtaiof38Gco. reign of his present Majesty, intituled " An Act for encour- aging the art of making new models and casts of busts and other things therein mentioned," the sole right and property thereof were vested in the original proprietors for a time therein specified : ^ And whereas the provisions of the said Act having been found inefiectual for the purposes thereby intended, it is expedient to amend the same, and to make other provisions and regulations for the encouragement of artists, and to secure to them the profits of and in their works, and for the advancement of the said arts : May it therefore please your Majesty that it may be enacted, and be it enacted by the King's most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present Parliament assembled, and by the authority of the same, that from and after the passing of this Act every From passing of , , ,, , . , , this Act the sole person or persons who shall make or cause to be made any right and prop- new and original sculpture, or model, or copy, or cast of the and original > So much as relates to double costs repealed. Tlie provisions of the engraving Acts are extended to lithographs by 15 & 16 Vict. c. 12, s. 14. See post, p. 690. 2 38 Geo. III. c. 71, repealed by 24 & 25 Vict. c. 101. 654 THE LAW OF COPYRIGHT AND PLATEIGHT. sculpture, mod- el9, copies, and caata. Tested in the original pro- priet-ors for 14; years. Works already published under the recited Act, Tented in the proprietors fop U jears. Persons putting forth pirated copies or pirated human figure or human figures, or of any bust or busts, or of any part or parts of the Human figure, clothed in drapery or otherwise, or of any animal or animals, or of any part or parts of any animal combined with the human figure or otherwise, or of any subject being matter of invention in sculpture, or of any alto or basso-relievo representing any of the matters or things herein-before mentioned, or any cast from nature of the human figure, or of any part or parts of the human figure, or of any cast from nature of any animal, or of any part or parts of any animal, or of any such subject containing or represent- ing any of the matters and things herein-before mentioned, whether separate or combined, shall have the sole right and property of all and in every such new and original sculpture, model, copy, and cast of the human figure or human figures, and of all and in every such bust or busts, and of all and in every such part or parts of the human figure, clothed in dra- pery or otherwise, and of all and in every such new and original sculpture, model, copy, and cast representing any animal and animals, and of all and in every such work rep- resenting any part or parts of any animal combined with the human figure or otherwise, and of all and in every such new and original sculpture, model, copy, and cast of any subject, being matter of invention in sculpture, and of all and in every such new and original sculpture, model, copy, and cast in alto or basso-relievo representing any of the matters or things herein-before mentioned, and of every such cast from nature, for the term of fourteen years from first putting forth or pub- lishing the same ; provided in all and in every case the pro- prietor or proprietors do cause his, her, or their name or- names, with the date, to be put on all and every such new and original sculpture, model, copy, or cast, and on every such cast from nature, before the same shall be put forth or pub- lished. II. And be it further enacted, that the sole right and property of all works, which have been put forth or pub- lished under the protection of the said recited Act shall be extended, continued to, and vested in the respective proprie- tors thereof for the term of fourteen years, to commence from the date when such last mentioned works respectively were put forth or published. III. And be it further enacted, that if any person or per- sons shall, within such term of fourteen years, make or import, 54 GEO. III. C. 56. 655 or cause to be made or imported, or exposed to sale, or other- casts, wUWn the wise disposed of, any pirated copy or pirated cast of any such uabirto'd^mages new and original sculpture, or model or copy, or cast of the !j^°''°" '"' ** human figure or human figures, or of any such bust or busts, or of any such part or parts of the human figure, clothed in drapery or otherwise, or of any such work of any animal or animals, or of any such part or parts of any animal or animals, combined with the human figure or otherwise, or of any such subject being matter of invention in sculpture, or of any such alto or basso-relievo representing any of the matters or things herein- before mentioned, or of any .'^uch ca*t from nature as afore- said, whether such pirated copy or pirated cast be produced by moulding or copying from or imitating in any way any of the matters or things put forth or published under the protec- tion of this Act, or of any works which have been put forth or published under tlie protection of the said recited Act, the right and property whereof is and are secured, extended, and protected by this Act, in any of the cases as aforesaid, to the detriment, damage, or loss of the original or respective pro- prietor or proprietors of any such works so pirated, then and in all such cases the said proprietor or proprietors or their assignee or assignees shall and may, by and in a special ac- tion upon the case to be brought against the person or persons 80 offending, receive such damages as a jury on a trial of such action shall give or assess, together with double costs of suit. [Rep., 5 & 6 Vict. c. 97 s. 2.] " IV. Provided nevertheless, that no person or persons who Proviso for per- shall or may hereafter purchase the right or property of any the copyright , . . 1 , ^ T , i r fro™ the propri- new and ongmal scul()ture or model, or copy or cast,or 01 any etors. cast from nature, or of any of the matters and things published under or protected by virtue of this Act, of the proprietor or proprietors, expressed in a deed in writing signed by him, her, or them respectively, with his, her, or their own hand or hands, in the presence of and attested by two or more credible witnesses, shall be subject to any action for copying or casting or vending the same, anything contained in this Act to the contrary notwithstanding. V. Provided always, and be it further enacted, that all Limitation of „ , , . actions. actions to be brought as aforesaid agamst any person or per- sons for any offence committed against this Act shall be 1 So much as relates to double costs repealed. 656 THE LAW OP COPYRIGHT AND PLATEIGHT. commenced within six calendar months next after the dis- covery of every such offence, and not afterwards. After the 14 VI. Provided always, and be it further enacted, that from yeara, the cop7- -. ti/\i .. right shall return and immediately after the expiration of the said term of four- to the original - i ' t n t • -i-*- proprietor, if teen years, the sole right oi making and disposing of such a further term Dew and Original sculpture, or model, or copy, or cast of any years. ^j. j^j^^ matters or things herein-before mentioned, shall return to the person or persons who originally made or caused to be made the same, if he or they shall be then living, for the further term of fourteen years, . . . £4 Geo. 3. c. 166. t.i. The author of any dramatic piece or bis assignee shall have as his prop. erty the sole liberty of repre- senting it when not published; 3 & 4 Will. IV. c. 15. An Act to amend the Laws relating to Dramatic Literary Property. [7 Ret. Stat. 355.] [10th June 1833.] Whereas by an Act passed in the fifty-fourth year of the reign of his late Majesty King George the Third, intituled " An Act to amend the several Acts for the encouragement of learning by securing the copies and copyright of printed books to the authors of such books, or their assigns," it was amongst other things provided and enacted, that from and after the passing of the said Act the author of any book or books composed, and not printed or published, or which should thereafter be composed and printed and published, and his assignee or assigns, should have the sole liberty of printing and reprinting such book or books for the full term of twenty- eight years, to commence from the day of first publishing the same, and also, if the author should be living at the end of that period, for the residue of his natural life : And whereas it is expedient to extend the provisions of the said Act : Be it therefore enacted by the King's most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present Parliament assem- bled, and by the authority of the same, that from and after the passing of this Act the author of any tragedy, comedy, play, opera, farce, or any other dramatic piece or entertainment, composed and not printed and published by the author thereof or his assignee, or which hereafter shall be composed and not printed or published by the author thereof or his assignee, or 3 & 4 WILL. IV. C. 15. 657 the assignee of such author, shall have as his own property the sole liberty of representing, or causing to be represented, at any place or places of dramatic entertainment whatsoever, in any part of the United Kingdom of Great Britain and Ireland, in the Isles of Man, Jersey, and Guernsey, or in any part of the British dominions, any such production as aforesaid, not printed and published by the author thereof or his assignee, and shall be deemed and taken to be the proprietor thereof; and that the author of any such production, printed and pub- anil after publi- lished within ten years before the passing of this Act by the jears or during •' r o J author s life. author thereof or his assignee, or which shall hereafter be so printed and published, or the assignee of such author, shall, from the time of passing this Act, or from the time of such publication respectively, until the end of twentj'-eight years from the day of such first publication of the same, and also, if the author or authors, or the survivor of the authors, shall be living at the end of that period, during the residue of his natural life, have as his own property the sole liberty of representing, or causing to be represented, the same at any such place of dramatic entertainment as aforesaid, and shall be deemed and taken to be the proprietor thereof : Provided f "ea'^hCTe'°pre- nevertheless, that nothing in this Act contained shall prejudice, ^'°^^^ JJ '^^g alter, or affect the right or authority of any person to represent ^"'' consent baa ' o J %i r r been given to or cause to be represented, at any place or places of dramatic ™'='i represcnta- entertainment whatsoever, any such production as aforesaid, in all cases in which the author thereof or his assignee shall, previously to the passing of this Act, have given his consent to or authorized such representation ; but that such sole liberty of the author or his assignee shall be subject to such right or authority. II. And be it further enacted, that if any person shall, Penalty on per- "^ ^ aons representing during the continuance of such sole liberty as aforesaid, con- pieces contrary ■ , n , 11.'" "^'= *"'■ trary to the intent of this Act or right of the author or his assignee, represent, or cause to be represented, without the consent in writing of the author or other proprietor first had and obtained, at any place of dramatic entertainment within the limits aforesaid, any such production as aforesaid, or any part thereof, every such offender shall be liable for each and every such representation to the payment of an amount not less than forty shillings, or to the full amount of the benefit or advantage arising from such representation, or the injury or loss sustained by the plaintiff therefrom, whichever shall be 42 658 THE LAW OF COPTBTGHT AND PLAYRIGHT. Limitation of actions. Explanation of words. the greater damages, to the author or other proprietor of such production so represented contrary to the true intent and meaning of this Act, to be recovered, together with double costs of suit,^ by such author or other proprietors, in any court having jurisdiction in such cases in that part of the said United Kingdom or of the British dominions in which the offence shall be committed ; and in every such proceeding where the sole liberty of such author or his assignee as afore- said shall be subject to such right or authority as aforesaid, it shall be sufficient for the plaintiff to state that he has such sole liberty, without stating the same to be subject to such right or authority, or otherwise mentioning the same. III. Provided nevertheless, and be it further enacted, that all actions or proceedings for any offence or injury that shall be committed against this Act shall be brought, sued, and com- menced within twelve calendar months next after such offence committed, or else the same shall be void and of no effect. IV. And be it further enacted, that whenever authors, persons, offenders, or others are spoken of in this Act in the singular number or in the masculine gender, the same shall extend to any number of persons and to either sex. Autliors of lec- tures, or their assigns, to have ttie sole right of publishing them. 5 & 6 Will. IV. c. 65. ■An Act for preventing the Publication of Lectures without Consent. [7 Eet. Stat. 899.] [9th September 1835.] Whereas printers, publishers, and other persons have fre" quently taken the liberty of printing and publishing lectures delivered upon divers subjects without the consent of the authors of such lectures or the persons delivering the same in public, to the great detriment of such authors and lecturers : Be it enacted by the King's most excellent Majesty, by and with the advice and consent of the lords spiritual and tem- poral, and commons, in this present Parliament assembled, and by the authority of the same, that from and after the first day of September one thousand eight hundred and thirty-five the author of any lecture or lectures, or the person to whom he hath sold or otherwise conveyed the copy thereof in order ' Double costs taken away by 5 & 6 Vict. c. 97, s. 2. 5 & 6 WILL. IV. C. 65. 659 to deliver the same in any school, seminary, institution, or other place, or for any other purpose, shall have the sole right and liberty of printing and publishing such lecture or lectures ; and that if any pei'son shall, by taking down the same in short penalty on other 1 -, , 1 • > • • • 1 1 , • persons publish- hand or otherwise in writing, or in any other way, obtain or ing, &c. lectures make a copy of such lecture or lectures, and shall print or lithograph or otherwise copy and publish the same, or cause the same to be printed, lithographed, or otherwise copied and published, without leave of tiie author thereof, or of the person to whom the author thereof hath sold or otherwise conveyed the same, and every person who, knowing the same to have been printed or copied and published without such consent, shall sell, publish, or expose to sale, or cause to be sold, pub- lished, or exposed to sale, any such lecture or lectures, shall forfeit such printed or otherwise copied lecture or lectures, or parts thereof, together with one penny for every sheet thereof which shall be found in his custody, either printed, lithographed, or copied, or printing, lithographing, or copying, published or exposed to sale, contrary to the true intent and meaning of this Act, the one moiety thereof to his Majesty, his heirs or successors, and the other moiety thereof to any person who shall sue for the same, to be recovered in any of his Majesty's courts of record in Westminster, by action of debt, bill, plaint, or information, in which no wager of law, essoign, privilege, or protection, or more than one imparlance, shall be allowed. II. And be it further enacted, that any printer or publisher Penalty on of any newspaper who shall, without such leave as aforesaid, ushers of news- -,,,.,. 1 1. ii papers publish- pnnt and publish in such newspaper any lecture or lectures, ing lectures shall be deemed and taken to be a person printing and pub- ^' °" "'™' li>hin'' without leave within the provisions of this Act, and liable to the aforesaid forfeitures and penalties in respect of such printing and publishing. Ill And be it further enacted, that no person allowed for Persons haTing ^ ^ - leave to attend certain fee and reward, or otherwise, to attend and be present lectures not on 1 I n 1 1 J J that account at any lecture delivered in any place, shall be deemea and licensed to pub- taken to be licensed or to have leave to print, copy, and pub- lish such lectures only because of having leave to attend such lecture or lectures. IV. Provided always, that nothing in this Act shall extend ^{'^'irttepubS'sh- to prohibit any person from printing, copying, and publishing X°'eipi'ratfcn any lecture or lectures which have or shall have been printed of the copyright 660 THE LAW OP COPYRIGHT AND PLATEIGHT. and published with leave of the authors thereof or their .assignees, and whereof the time hath or shall have expired within which the sole right to print and publish the same is given by an Act passed in the eighth year of the reign of 8 Ann. c. 21. [19.] Queen Anne, intituled "An Act for the encouragement of learning, by vesting the copies of printed books in the authors or purchasers of such copies during the times therein men- tioned," and by another Act passed in the fifty-fourth year of 64 Geo. 3. c. 156. the reign of King George the Third, intituled "An Act to amend the several Acts for the encouragement of learning, by securing the copies and copyright of printed books to the authors of such books, or their assigns," or to any lectures which have been printed or published before the passing of this Act.^ Act not to extend V. Provided further, that nothing in this Act shall extend to lectures de- , , ... . it, liyerad without to any lecture or lectures, or the printmg, copying, or publish- tioes, &0. ing any lecture or lectures, or parts thereof, of the delivering of which notice in writing shall not have been given to two justices living within five miles from the place where such lecture or lectures shall be delivered two days at the least before delivering the same, or to any lecture or lectures deliv- ered in any university or public school or college, or on any public foundation, or by any individual in virtue of or accord- ing to any gift, endowment, or foundation ; and that the law relating thereto shall remain the same as if this Act had not been passed. 6 & 7 Will. IV. c. 59. An Act to extend the Protection of Copyright in Prints and Engravings to Ireland. [7 Rev. Stat. 1055.] [13th August 1836.] Whereas an Act was passed in the seventeenth year of the 17 Geo. 8. c. 67. reign of his late Majesty King George the Third, intituled " An Act for more effectually securing the property of prints to inventors and engravers, by enabling them to sue for and recover penalties in certain cases:" And whereas it is desir- able to extend the provisions of the said Act to Ireland : Be 1 8 Anne, c. 19, and 54 Geo. III. c. 156, repealed by 5 & 6 Vict. c. 45, s. 1. 5 & 6 VICT. C. 45. 661 it therefore enacted by the King's most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present parliament assembled, and by the authority of the same, that from and after tlie pass- Provisions of . ,. . „ , . . . , . , ., . , recited Act, ing ot this Act all the provisions contained in the said recited extended to Act of the seventeenth year of the reign of his late Majesty King George the Third, and of all the other Acts therein recited, shall be and the same are hereby extended to the United Kingdom of Great Britain and Ireland. II. And be it further enacted, that from and after the pass- Penalty on en- graving or pub- ing of this Act, if any engraver, etcher, printseller, or other iishing any print ° ... . . . without consent person shall, within the time limited by the aforesaid recited of proprietor in Acts, engrave, etch, or publish, or cause to be engraved, etched, United Kingdom, or publi. 1 • A 1 • engagements. sisting at the time oi passing oi this Act, except as herein expressly enacted ; and all contracts, agreements, and obliga- tions made and entered into before the passing of this Act, and all remedies relating thereto, shall remain in full force, anything herein contained to the contrary notwithstanding. XXIX. And be it enacted, that this Act shall extend to Extent of Act. the United Kingdom of Great Britain and Ireland, and to every part of the British dominions. Schedule to which the preceding Act refers. No. 1. Form of Minute of Consent to be entered at Stationers Hall. We, the undersigned, A. B. of the author of a certain book, intituled Y. Z. [or the personal representative of the author, as the case may be], and C. D., of ' do hereby certify, that we have 43 674 THE LAW OP COPYRIGHT AND PLATBIGHT. consented and agreed to accept the benefits of the Act passed in the fifth year of the reign of Her Majesty Queen Victoria, cap. , for the extension of the term of copyright therein provided by the said Act, and hereby declare that such extended term of copyright therein is the property of the said A. B. or C. D. Dated this day of 18 . Witness . (Signed) A. B., C. D. To the Eegistering Officer appointed by the Stationers Company. No. 2. FOKM of KEQUIKING EnTKT OF PeOPEIETOESHIP. I, A. B. of do hereby certify, that I am the proprietor of the copyright of a book, intituled Y. Z., and I here- by require you to malie entry in the register book of the Stationers Company of my proprietorsliip of such Copyright, according to the particulars underwritten. Title of Book. YZ Name of Publisher, and Place of Publication. Name and Place of Abode of the Proprietor of the Uopfiight. A.B. Date of First Publication, Dated this day of 18 . Witness, C. D. (Signed) A.B. No. 3. Okiginal Entkt of Pbopeietorship of CopTEiGHT of a Book. Time of making the Entry. Title of Boo%. Y.Z. Name of the Publisher, and Place of Publication. A.B, Name and Place of Abode of the Proprietor of the Copyright, CD. Date of First Publication. 7 & 8 VICT. C. 12. 675 No. 4. FoHM of CoNCDRKENCE of the Pakty assigning in any Book previously registered. I, A. B. of being the assigner of the copyright of the hook hereunder described, do liereby require you to make entry of the assignment of the copyright therein. Title of Book. Assigner of the Copyright. AsBignefl of Copyright. Y.Z. A.B. CD. Dated this day of 18 . (Signed) A.B. No. 5. Form of Entry of Assigkment of Copyright in any Book pre- viously registered. Date of Entry. Title of Bools. [Set out the title of the book, and refer to the page of the registry book in which the original en- try of the copy- right thereof is ma'de.l Assigner of the Copyright. A.B. Assignee of Copyright. CD. 7 & 8 Vict. c. 12. An Act to amend the Law relating to International Copyright. [9 Rev. Stat. 224.] [10th Mat 1844.] [Section 1 recites 1 & 2 Vict. c. 59, which is designated as the International Copyright Act ; 5 & 6 Vict. c. 45, designated as the Copyright Amendment Act ; 3 & 4 Will. IV, c. 15,des- 676 THE LAW OP COPYRIGHT AND PLAYEIGHT. Bepeal of inter- national Copy- right Act, 1 & 2 Tiot. 0. 59. Her Majesty, by order in council, may direct that authors, &c. of works first pub- lished in foreign countries shall have copyright therein within her Majesty's domioioQS for any term not exceeding that for which au- thors, &c. of like works first published in the United Kingdom would be entitled to copyright. ignated as the Dramatic Literary Property Act ; 8 Geo. IF. c. 13, 7 Geo. III. c. 38, 17 Geo. III. c. 57, and 6 & 7 Will. IV. c. 59, designated as the Engraving Copyright Acts ; and 38 Geo. III. c. 71 (repealed by 24 & 25 Vict. c. 101), and 54 Geo. III. c. 56, designated as the Sculpture Copyright Acts. It then declares :] And whereas the powers vested iu her Majesty by the said International Copyright Act are insufficient to enable her Majesty to confer upon authors of books first published in foreign countries copyright of the like duration, and with the like remedies for the infringement thereof, which are conferred and provided by the said Copy- right Amendment Act with respect to authors of books first published in the British dominions ; and the said International Copyright Act does not empower her Majesty to confer any exclusive right of representing or performing dramatic pieces or musical compositions first published in foreign countries upon the authors thereof, nor to extend the privilege of copy- right to prints and sculpture first published abroad ; and it is expedient to vest increased powers in her Majesty in this respect, and for that purpose to repeal the said International Copyright Act, and to give such other powers to her Majesty, and to make such further provisions, as are herein-after contained : Be it therefore enacted by the Queen's most ex- cellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present Parliament assembled, and by the authority of the same, that the said recited Act herein designated as the International Copyright Act shall be and the same is hereby repealed. [Rep., Stat. Law Rev. Act, 1874 (No. 2).] II. And be it enacted, tliat it shall be lawful for her Majesty, by any order of her Majesty in council, to direct that, as respects all or any particular class or classes of the following works, (namely,) books, prints, articles of sculpture, and other works of art, to be defined in such order, which shall after a future time, to be specified in such order, be first published in any foreign country to be named in such order, the authors, inventors, designers, engravers, and makers thereof respec- tively, their respective executors, administrators, and assigns, shall have tlie privilege of copyright therein during such period or respective periods as shall be defined in such order, not exceeding, howevei', as to any of the above-mentioned works, the term of copyi'ight which authors, inventors, designers, 7 & 8 VICT. C. 12, 677 engravers, and makers of the like works respectively first published in the United Kingdom may be then entitled to under the herein-before recited Acts respectively, or under any Acts which may hereafter be passed in that behalf.^ III. And be it enacted, that in case any such order shall if the order 1,111,1.1, ni .1 applies to bookfl, apply to books, all and smgular the enactments of the said the copyright Copyright Amendment Act, and of any other Act for the first published in time being in force with relation to the copyright in books shall apply to first published in this country, shall, from and after the time which the order so to be specified in that behalf in such order, and subject to tered*'with m^ such limitation as to the duration of the copyright as shall be '°^''' »='™i'*''""' therein contained, apply to and be in force in respect of the books to which such order shall extend, and which shall have been registered as herein-after is provided, in such and the same manner as if such books were first published in the United Kingdom, save and except such of the said enactments, or such parts thereof, as shall be excepted in such order, and save and except such of the said enactments as relate to the delivery of copies of books at the British Museum, and to or for the use of the other libraries mentioned in the said Copyright Amendment Act. IV. And be it enacted, that in case any such order shall if the order ap- . . 1 « 1 11 plies to prints, apply to prints, articles or sculpture, or to any such other sculptures, &c. works of art as aforesaid, all and singular the enactments of law as to prints the said Engraving Copyright Acts, and the said Sculpture flret published in Copyright Acts, or of any other Act for the time being in shau'appiy to force with relation to the copyright in prints or articles of sculptures, &c. sculpture first published in this country, and of any Act for ordMreiates, if the time being in force with relation to the copyright in any ^sistered. similar works of art first published in this country, shall, from and after the time so to be specified in that behalf in such order, and subject to such limitation as to the duration of the copyright as shall be therein contained respectively, apply to and be in force in respect of the prints, articles of sculpture, and other works of art to which such order shall extend, and which shall have been registered as herein-after is provided, in such and the same manner as if such articles and other works of art were first published in the United Kingdom, save and except such of the said enactments or such parts thereof as shall be excepted in such order. 1 By section 12 of 25 & 26 Vict. c. 68, post, p. 697, the provisions of this statute are extended to paintings, drawings, and photographs. 678 THE LAW OP COPTRIGHT AND PLAYRIGHT. Her M^esty may, by order in coun- cil, direct that authors and com- posers of dra- matic pieces and musical compo- sitions first pub- licly represented and performed in foreign coun- tries slmll have exclusive rights of representation in the British dominionB, Enactments re- lating to similar pieces first rep- resented in this country shall ap- ply to such pieces, if regis- tered. Particulars to be observed as to registry and to delivery of copies; as to books and printed dramatic' pieces or musical compositions ; V. And be it enacted, that it shall be lawful for her Majesty, by any order of her Majesty in council, to direct that the authors of dramatic pieces and musical compositions which shall after a future time, to be specified in such order, be first publicly represented or performed in any foreign country to be named in such order, shall have the sole liberty of representing or performing in any part of the British dominions such dramatic pieces or musical compositions during such period as shall be defined in such order, not exceeding the period during which authors of dramatic pieces and musical compositions first pub- licly represented or performed in the United Kingdom may for the time be entitled by law to the sole liberty of representing and performing the same ; and from and after the time so specified in any such last-mentioned order the enactments of the said Dramatic Literary Property Act and of the said Copyright Amendment Act, and of any other Act for the time being in force with relation to the liberty of publicly representing and performing dramatic pieces or musical com- positions, shrill, subject to such limitation as to the duration of the right conferred by any such order as shall be therein contained, apply to and be in force in respect of the dramatic pieces and musical compositions to which such order shall extend, and which shall have been registered as herein-after is provided, in such and the same manner as if such dramatic pieces and musical compositions had been first publicly repre- sented and performed in the British dominions, save and except such of the said enactments or such parts thereof as shall be excepted in such order. VI. Provided always, and be it enacted, that no author of any book, dramatic piece, or musical composition, or his ex- ecutors, administrators, or assigns, and no inventor, designer, or engraver of any print, or maker of any article of sculpture, or other work of art, his executors, administrators, or assigns, shall be entitled to the benefit of this Act, or of any order in council to be issued in pursuance thereof, unless, within a time or times to be in that behalf prescribed in each such order in council, such book, dramatic piece, musical composi- tion, print, article of sculpture, or other work of art, shall have been so registered and such copy thereof shall have been so delivered as herein-after is mentioned ; (that is to say,) as regards such book, and also such dramatic piece or musical composition, (in the event of the same having been printed,) 7 & 8 VICT. C. 12. 679 the title to the copy thereof, the name and place of abode of the author or composer thereof, the name and place of abode of the proprietor of the copyright thereof, the time and place of the first publication, representation, or performance thereof, as the case may be, in the foreign country named in the order in council under which the benefits of this Act shall be claimed, shall be entered in the register book of the Company of Sta- tioners in London, and one printed copy of the whole of such book, and of such dramatic piece or musical composition, in the event of the same having been printed, and of every volume thereof, upon the best paper upon which the largest number or impression of the book, dramatic piece, or musical composition shall have been printed for sale, together with all maps and prints relating thereto, shall bfe delivered to the officer of the Company of Stationers at the hall of the said company ; and as regards dramatic pieces and musical as to dramatic compositions in manuscript, the title to the same, the name sScompo""' and place of abode of the author or composer thereof, the 80%°";"'""'"' name and place of abode of the proprietor of the right of representing or performing the same, and the time and place of the first representation or performance thereof in the country named in the order in council under which the benefit of the Act shall be claimed, shall be entered in the said register book of the said Company of Stationers in London ; and as regards ^ t,, prints; prints, the title thereof, the name and place of abode of the inventor, designer, or engraver thereof, the name of the pro- prietor of the copyright therein, and the time and place of the first publication thereof in the foreign country named in the order in council under which the benefits of the Act shall be claimed, shall be entered in the said register book of the said Company of Stationers in London, and a copy of such print, upon the best paper upon which the largest number or impres- sions of the print shall have been printed for sale, shall be delivered to the officer of the Company of Stationers at the hall of the said company ; and as regards any such article as to sculpture, of sculpture, or any such other work of art as aforesaid, a descriptive title thereof, the name and place of abode of the maker thereof, the name of the proprietor of the copyriglit therein, and the time and place of its first publication in the foreio^n country named in the order in council under which the benefit of this Act shall be claimed, shall be entered in the said register book of the said Conipany of Stationers in 680 THE LAW OF COPYRIGHT AND PLAYEIGHT. Id case of books published anon- ymonsly, it shall be sufficient to register the name, &c. of the publisher. The provisions of the Copyright Amendment Act 6 & 6 Vict. c. 45. as regards en- tries in the reg- ister book of the Company of Stationers, &c. to apply to books, &c. registered under this Act. As to expunging or Tarying entry grounded in l?rongful first publication. London ; and the oiRcer of the said Company of Stationers receiving such copies so to be delivered as aforesaid shall give a receipt in writing for the same, and such delivery shall to all intents and purposes be a suflBcient delivery under the provisions of this Act. VII. Provided always, and be it enacted, that if a book be published anonymously it shall be sufficient to insert in the entry thereof in such register book the name and place of abode of the first publisher thereof, instead of the name and place of abode of the author thereof, together with a declara- tion that such entry is made either on behalf of the author or on behalf of such first publisher, as the case may require. VIII. And be it eoacted, that the several enactments in the said Copyright Amendment Act contained with relation to keeping the said register book, and the inspection thereof, the searches therein, and the delivery of certified and stamped copies thereof, the reception of such copies in evidence, the making of false entries in the said book, and the production in evidence of papers falsely purporting to be copies of entries in the said book, the applications to the courts and judges by persons aggrieved by entries in the said book, and the expung- ing and varying such entries, shall apply to the books, dra- matic pieces, and musical compositions, prints, articles of sculpture, and other works of art, to which any order in council issued in pursuance of this Act shall extend, and to the entries and assignments of copyright and proprietorship therein, in such and the same manner as if such enactments were here expressly enacted in relation thereto, save and except that the forms of entry prescribed by the said Copy- right Amendment Act may be varied to meet the circum- stances of the case, and that the sum to be demanded by the officer of the said Company of Stationers for making any entry required by this Act shall be one shilling only. IX. And be it enacted, that every entry made in pursuance of this Act of a first publication shall be prima facie proof of a rightful first publication ; but if there be a wrongful first publication, and any party have availed himself thereof to obtain an entry of a spurious work, no order for expunging or varying such enti-y shall be made unless it be pioved to the satisfaction of the court or of the judge taking cognizance of the application for expunging or varying such entry, first, with respect to a wrongful publication in a country to which the 7 & 8 VICT. C. 12. 681 author or first publisher does not belong, and in regard to which there does not subsist with this country any treaty of international copyright, that the party making the application was the author or first publisher, as the case requires ; second, with respect to a wrongful first publication either in the coun- try where a rightful first publication has taken place, or in regard to which there subsists with this country a treaty of international copyright, that a court of competent jurisdiction in any such country where such wrongful first publication has taken place has given judgment in favour of tlie right of the 'party claiming to be the author or first publisher. X. And be it enacted, that all copies of books wherein there Copies of books ... wherein copy- shall be any subsisting copyright under or by virtue of this right is subsist. , •' ,.° •' ing under this Act, or or any order m council made in pursuance thereof. Act printed in J ... /. . , • foreign countries printed or reprinted in any foreign country except that in other than those which such books were first published, shall be and the same was first pub- are hereby absolutely prohibited to be imported into any part be imported, ex- of the British dominions, except by or with the consent of the "St of registered registered proprietor of the copyright thereof, or his agent shaK subject authorized in writing, and if imported contrary to this prohi- tomsTs^opro- bition the same and the importers thereof shall be subject to '"'""* soods. the enactments in force relating to goods prohibited to be im- ported by any Act relating to the customs ; and as respects any such copies so prohibited to be imported, and also as respects any copies unlawfully printed in any place whatso- ever of any books wherein there shall be any such subsisting copyright as aforesaid, any person who shall in any part of the British dominions import such prohibited or unlawfully printed copies, or who, knowing such copies to be so unlaw- fully imported or unlawfully printed, shall sell, publish, or expose to sale or hire, or shall cause to be sold, published, or exposed to sale or hire, or have in his possession for sale or hire, any such copies so unlawfully imported or unlawfully printed, such offender shall be liable to a special action on the Liability of per- „ , . . , • 1. i i 1 sons selling such case at the suit of the proprietor of such copyright, to be copies or any brought and prosecuted in the same courts and in the same fuuy printed, manner, and with the like restrictions upon the proceedings of the defendant, as are respectively prescribed in the said Copyright Amendment Act with relation to actions thereby autiiorized to be brought by proprietors of copyright against persons importing or selling books unlawfully printed in the British dominions. 682 THE LAW OP COPYRIGHT AND PLAYRIGHT. Officer of Sta, tioners Com- pany to deposit books, &c. de- livered in the British Museum. As to depositing copies of second or subsequent editions. Different periods may be specified for continuance of privilege for different foreign coun tries and cla.sses of worlcs, and times for entries, &c. may be di&tent. No order to take effect unless it states that re- ciprocal protec- tion is secured for parties in- terested in works first published in British do- minions. Orders to be published in Gazette, and to have effect afl if included in this Act. Orders to be laid arlia- XI. And be it enacted, that the said officer of the said Company of Stationers shall receive at the hall of the said company every book, volume, or print so to be delivered as aforesaid, and within one calendar month after receiving such book, volume, or print shall deposit the same in the library of the British Museum. XII. Provided always, and be it enacted, that it shall not be requisite to deliver to the said officer of the said Stationers Company any printed copy of the second or of any subsequent edition of any book or books so delivered as aforesaid, unless the same shall contain additions or alterations. XIII. And be it enacted, that the respective terms to be specifled by such orders in council respectively for the con- tinuance of the privilege to be granted in respect of works to be first published in foreign countries may be different for works first published in different foreign countries and for different classes of such works ; and that the times to be prescribed for the entries to be made in the register book of the Stationers Company, and for the deliveries of the books and other articles to the said officer of the Stationers Com- pany,- as herein-before is mentioned, may be different for dif- ferent foreign countries and for different classes of books or other articles. XIV. Provided always, and be it enacted, that no such order in Council shall have any effect unless it shall be therein stated, as the ground for issuing the same, that due protection has been secured by the foreign power so named in such order in council for the benefit of parties interested in works first published in the dominions of her Majesty similar to those comprised in such order. XV. And be it enacted, that every order in council to be made under the authority of this Act shall as soon as may be after the making thereof by her Majesty in council be pub- lished in the London Gazette, and from the time of such publication shall have the same effect as if every part thereof were included in this Act. XVI. And be it enacted, that a copy of every order of her Majesty in council made under this Act shall be laid before both Houses of Parliament within six weeks after issuing the same, if Parliament be then sitting, and if not, then within six weeks after the commencement of the then next session of Parliament. 7 & 8 VICT. C. 12, 683 XVII. And be it enacted, that it shall be lawful for her orders may be Majesty by an order in council from time to time to revoke ""*"*• or alter any order in council previously made under the au- thority of this Act, but nevertheless without prejudice to any rights acquired previously to such revocation or alteration. [XVIII. a] Provided always, and be it enacted, that noth- Transiaiiom. ing in this Act contained shall be construed to prevent the printing, publication, or sale of any translation of any book the author whereof and his assigns may be entitled to the benefit of this Act. XIX. And be it enacted, that neither the author of any Authors, &c. of book, nor the author or composer of any dramatic piece or Hshed inVorelgn musical composition, nor the inventor, designer, or engraver llmieoto'^fy. of any print, nor the maker of any article of sculpture, or of under'thf9''Aot. such other work of art as aforesaid, which shall after the passing of this Act be first published out of her Majesty's dominions, shall have any copyriglit therein respectively, or any exclusive right to the public representation or perform- ance thereof, otherwise than such (if any) as he may become entitled to under this Act. XX. And be it enacted, that in the construction of this Act interpretation cl&11&6 the word "book" shall be construed to include "volume," "pamphlet," " sheet of letter-press," " sheet of music," " map," " chHrt," or " plan ; " and the expression "articles of sculp- ture" shall mean all such sculptures, models, copies, and casts as are described in the said Sculpture Copyright Acts, and in respect of which the privileges of copyi'ight are thereby con- ferred ; and the words " printing " and " re-printing " shall in- clude engraving and any other method of multiplying copies ; and the expression " her Majesty " shall include the heirs and successors of her Majesty ; and the expressions " order of her Majesty in council," " order in council," and " order," shall respectively mean order of her Majesty acting by and with the advice of her Majesty's most honourable privy council ; and the expression " officer of the Company of Stationers," shall mean the officer appointed by the said Company of Stationers for the purposes of the said Copyright Amendment Act; and in describing any persons or things any word im- porting the plural number shall mean also one person or thing, and any word importing the singular number shall [a Section 18 is rep., 15 & 16 Vict. c. 12. s. 1, so far as the same is inconsistent with tlie provisions thereinafter contained.] 684 THE LAW OP COPYRIGHT AND PLAYRIGHT. include several persons or things, and any word importing the masculine shall include also the feminine gender; unless in any of such cases there shall be something in the subject or context repugnant to such construction. Registration of sculpture, mod- els, &c. within protection of Sculpture Copy- right Acts. 13 & 14 Vict. c. 104. An Act to extend and amend the Acts relating to the Copyright of Designs. [10 Rev. Stat. 1162.] [14th August 1850.] This statute contains the following provisions relating to sculpture : — VI. That the registrar of designs, upon application by or on behalf of the proprietor of any sculpture, model, copy, or cast within the protection of the Sculpture Copyright Acts, and upon being furnished with such copy, drawing, print, or description, in writing or in print, as in the judgment of the said registrar shall be suflScient to identify the particular sculp- ture, model, copy, or cast in respect of which registration is desired, and the name of the person claiming to be proprietor, together with his place of abode or business or other place of address, or the name, style, or title of the firm under which he may be trading, shall register such sculpture, model, copy, or cast, in such manner and form as shall from time to time be prescribed or approved by tlie Board of Trade, for the whole or any part of the term during which copyright in such sculp- ture, model, copy, or cast may or shall exist under the Sculp- ture Copyright Acts ; and whenever any such registration shall be made, the said registrar shall certify under his hand and seal of office, in such form as the said board shall direct or approve, the fact of such registration, and the date of the same, and the name of the registered proprietor, or the style or title of the firm under which such proprietor may be trading, together with his place of abode or business or other place of address.' 1 By the 38 & 39 Vict. o. 93, ss. 2-4 (Law Eep. 10 Stat. 1042), passed in 1875, the duties vested in the Board of Trade by the De- signs Acts were transferred to the Commissioners of Patents, who were also empowered to make arrangements for the performance of the duties of Registrar of Designs, whose office was abolished. 15 & 16 VICT. C. 12. 685 VII. That if any person shall, during the continuance of penalty for mak- the copyright in any sculpture, model, copy, or cast which copies'otTegL"' shall have been so registered as aforesaid, make, import, or %l'^ sculptures, cause to be made, imported, exposed for sale, or otherwise disposed of, any pirated copy or pirated cast of any such sculpture, model, copy, or cast, in such manner and under such circumstances as would entitle the proprietor to a special action on the case under the Sculpture Copyright Acts, the person so offending shall forfeit for every such oflFence a sum not less than five pounds, and not exceeding thirty pounds, to the proprietor of the sculpture, model, copy, or cast whereof the copyright shall have been infringed; and for the recovery 6&6Vict o. of any such penalty the proprietor of the sculpture, model, ■''"'■ copy, or cast which shall have been so pirated shall have and be entitled to tlie same remedies as are provided for the re- covery of penalties incurred under the Designs Act, 1842 : Provided always, that the proprietor of any sculpture, model, copies published copy, or cast which shall be registered under this Act shall of registered' not be entitled to the benefit of this Act, unless every copy or be"maS £°" '° cast of such sculpture, model, copy, or cast which shall be " ^^eisixiei." published by him after such registration shall be marked with the word " registered," and with the date of registration. 15 & 16 Vict. c. 12. An Act to enable Her Majesty to carry into effect a Convention with France on the Subject of Copyright ; to extend and explain the International Copyright Acts ; and to explain the Acts relating to Copyright in Engravings. [11 Ret. Stat. 283.] [28th Mat 1852.] Whereas an Act was passed in the seventh year of the reiga 7 & 8 Vict. c. 12. of her present Majesty, intituled " An Act to' amend the law relating to international copyright," herein-after called " The International Copyright Act : " And whereas a convention has lately been concluded between her Majesty and the French Republic, for extending in each country the enjoyment of copyright in works of literature and the fine arts first pub- lished in the other, and for certain reductions of duties now levied on books, prints, and musical works published in France : And whereas certain of the stipulations on the part of her 686 THE LAW OP COPYRIGHT AND PLAYEIGHT. Majesty contained in the said treaty require the authority of Parliament: And whereas it is expedient that such authority should be given ; and that her Majesty should be enabled to make similar stipulations in any treaty on the subject of copy- right which may hereafter be concluded with any foreign power : Be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present Parliament assembled, and by the authority of the same, as follows : T^ aiaiatim s. J, The eighteenth section of the said Act of the seventh Repeal of 7 & 8 year of her present Majesty, chapter twelve, shall be repealed, in part. SO far as the same is inconsistent with the provisions herein- after contained. Her M^esty may U. Her Majesty may, by order in council, direct that the by order mcoun- •> j j ' j ) cii direct that authors of books which are, after a future time to be specified the authors of * books published in such Order, published in any foreign country to be named m foreign coun- . "^ . ^ o j ■ tries may for a in such order, their executors, administrators, and assigns, Umited time pre- , „ , . , . . , . „ . , Tent unauthor- shall, Subject to the provisions herein-after contained or re- ized translations, r -t t i » i i • • ■ i lerred to, be empowered to prevent the publication m the British dominions of any translations of such books not au- thorized by them, for such time as may be specified in such order, not extending beyond the expiration of five years from the time at which the authorized translations of such books herein-after mentioned are respectively first published, and in the case of books published in parts, not extending as to each part beyond the expiration of five years from the time at which the authorized translation of such part is first published. Thereupon the III. Subject to any provisions or qualifications contained BhanextoniTto in such Order, and to the provisions herein contained or re- transUitioM. ferred to, the laws and enactments for the time being in force for the purpose of preventing the infringement of copj right in books published in the British dominions shall be applied for the purpose of preventing the publication of translations of the books to which such order extends which are not sanc- tioned by the authors of such books, except only such parts of the s^id enactments as relate to the delivery of copies of books for the use of the British Museum, and for the use of the other libraries therein referred to. Hei»Majesty may IV. Her Majesty may, by order in council, direct that au- cUdirecVthatthe thors of dramatic pieces which are, after a future time to be ma'uowksJ^ Specified in such order, first publicly represented in any for- ergn°countriM'" eign Country to be named in such order, their executors, ad- 15 & 16 VICT. C. 12. 687 ministrators, and assigns, shall, subject to the provisions may for a lim- herein-after mentioned or referred to, be empowered to pre- the representa- vent the representation in the British dominions of any trans- ized translations. lation of such dramatic pieces not authorized by them, for such time as may be specified in such order, not extending beyond the expiration of five years from the time at which the authorized translations of such dramatic pieces herein-after mentioned are first published or publicly represented. V. Subject to any provisions or qualifications contained in Thereupon the such last-mentioned order, and to the provisions herein -after the reptesenta- contained or referred to, the laws and enactments for the time pieces shall ox- being in force for ensuring to the author of any dramatic piece t™ reprtsenta- first publicly represented in the British dominions the sole au"hori™a trans- liberty of representing the same shall be applied for the pur- '''"''°*- pose of preventing the representation of any translations of the dramatic pieces to which such last-mentioned order extends, whioh are not sanctioned by the authors thereof. VI. Nothing herein contained shall be so construed as to Saving as to im- . i_ T-« T T- ff itations of dra- prevent fair imitations or adaptations to the English stage oi matio pieces, &o. any dramatic piece or musical composition published in any foreign country.^ VII. Notwithstanding anything in the said International Articles in for- Copyright Act or in this Act contained, any article of politi- &c. relating to IT . 1.11 1 1TI1" politics may be cal discussion which has been published in any newspaper or republished or periodical in a foreign country, may, if the source from which g„m.ce be ao- the same is taken be acknowledged, be republished or trans- auo'^rtldes on" lated in any newspaper or periodical in this country ; and any „nieM tiielutior article relating to any other subject which has been so pub- IXntbifof "e- lished as aforesaid may, if the source from which the same is serWng the copy- taken be acknowledged, be republished or translated in like manner, unless the author has signified his intention of pre- serving the copyright therein, and the right of translating the same, in some conspicuous part of the newspaper or periodical in which the same was first published, in which case the same shall, without the formalities required by the next following section, receive the same protection as is by virtue of the International Copyright Act or this Act extended to books. VIII. No author, or his executors, administrators, or assigns, No author to ■* .be entitlea to shall be entitled to the benefit of this Act, or of any order in benefit of this 1 See 38 & 39 Vict. c. 12, post, p. 697. THE LAW OP COPYRIGHT AND PLATRIGHT. Act, or any order Council issued in pursuance thereof, in respect of the transia- in council pur- ,. « , , ^ . . ./.inn- • • ■ Buant thereto, tion 01 any book or dramatic piece, it the following requisitions ing wUhThe' ^' are not complied with : (that is to say,) requisitions herein specified. 1. The original work from which the translation is to be made must be registered and a copy thereof deposited in the United Kingdom in the manner required for original works by the said International Copyright Act, within three calendar months of its first publica- tion ill the foreign country : 2. The author must notify on the title page of the original work, or, if it is published in parts, on the title page of the first part, or, if there is no title page, on some con- spicuous part of the work, that it is his intention to reserve the right of translating it : 3. The translation sanctioned by the author, or a part thereof, must be published either in the country men- tioned in the order in council by virtue of which it is to be protected, or in the British dominions, not later than one year after the registration and deposit in the United Kingdom of the original work ; and the whole of such translation must be published within three years of such registration and deposit : 4. Such translation must be registered and a copy thereof deposited in the United Kingdom within a time to be mentioned in that behalf in the order by which it is protected, and in the manner provided by the said International Copyright Act for the registration and deposit of oi-iginal works : 5. In the case of books published in parts, each part of the original work must be registered and deposited in this country in the manner required by the said Interna- national Copyright within three months after the first publication thereof in the foreign country : 6. In the case of dramatic pieces the translation sanctioned by the author must be published within three calendar mouths of the registration of the original work : 7. The above requisitions shall apply to articles originally published in newspapers or periodicals, if the same be afterwards published in a separate form, but shall not apply to such articles as originally published. 15 & 16 VICT. C. 12. 689 IX. All copies of any works of literature or art wherein pirated copies there is any subsisting copyright by virtue of the International fmported, except Copyright Act and this Act, or of any order in council made p'opSrT'"^ in pursuance of such Acts or either of them, and which are printed, reprinted, or made in any foreign country except that in which such work shall be first published, and all unauthor- ized translations of any book or dramatic piece the publication or public representation in the British dominions of transla- tions whereof, not authorized as in this Act mentioned, shall for the time being be prevented under any order in council made in pursuance of this Act, are hereby absolutely prohib- ited to be imported into any part of the British doinmions, except by or with the consent of the registered proprietor of the copyright of such work or of such book or piece, or his agent authorized in writing; and the provision of the Act of prcviBionsofo the sixth year of her Majesty " to amend the law of copy- as to forfeiture! riglit," for the forfeiture, seizure, and destruction of any works, &™ printed book first published in the United Kingdom wherein works^prohibited there shall be copyright, and reprinted in any country out of ui'ttus Act. the British dominions, and imported into any part of the British dominions by any person not being the proprietor of the copyright, or a person authorized by such proprietor, shall extend and be applicable to all copies of any works of literature and art, and to all translations, the importation whereof into any part of the British dominions is prohibited under this Act. X. The provisions herein-before contained shall be incor- foregoing pro- ^ TisioDS to be in- porated with the International Copyright Act, and shall be corporatea witii read and construed therewith as one Act. XI. And whereas her Maiesty has already, by order in Translations of , „ * 1 A • French books, council under the said International Copyright Act, given &c. to be pro- . tected as lierein- effect to certain stipulations contained in the said convention before men- with the French Republic ; and it is expedient that the re- the continuance mainder of the stipulations on the part of her Majesty in the convention and said convention contained should take effect from the passing council already of this Act without any further order in council : During the ^"ther orde" in continuance of the said convention, and so long as the order in "o"""''- council already made under the said International Copyright Act remains in force, the provisions herein-before contained shall apply to the said convention, and to translations of books and dramatic pieces which are, after the passing of this Act, U 690 THE LAW OF COPYRIGHT AND PLAYEIGHT. published or represented in France, in the same manner as if her Majesty had issued her order in council in pursuance of this Act for giving effect to such convention, and had therein directed that such translations should be protected as herein- before mentioned for a period of five years from the date of the first publication or public representation thereof respec- tively, and as if a period of three months from the publication of such translation were the time mentioned in such order as the time within which the same must be registered and a copy thereof deposited in the United Kingdom. Lithographs J l[c. Recital of 8 Geo. 2. c. 13. 7 Geo. 8. 0. 38. 17 Geo. 3. c. 57. 6 & 7 Will. 4. Provisions of recited Acts eball inclucie litho- graphs, &o. XIV. And whereas by the four several Acts of Parliament following ; (that is to say,) an Act of the eighth year of the reign of King George the Second, chapter thirteen : an Act of the seventh year of the reign of King George the Third, chapter thirty-eight : An act of the seventeenth year of the reign of King George the Third, chapter fifty-seven ; and an Act of the seventh year of King William the Fourth, chapter fifty-nine, provision is made for securing to every person who invents, or designs, engraves, etches, or works in mezzotinto or chiaro-oscuro, or, from his own work, design, or invention, causes or procures to be designed, engraved, etched, or worked in mezzotinto or chiaro-oscuro, any historical print or prints, or any print or prints of any portrait, conversation, landscape, or architecture, map, chart, or plan, or any other print or prints whatsoever, and to every person who engraves, etches, or works in mezzotinto or chiaro-oscuro, or causes to be en- graved, etched, or worked any print taken from any picture, drawing, model, or sculpture, notwithstanding such print has not been graven or drawn from his own original design, certain copyrights therein defined : And whereas doubts are enter- tained whether the provisions of the said Acts extend to litho- graphs and certain other impressions ; and it is expedient to remove such doubts : It is hereby declared, that the provisions of the said Acts are intended to include prints taken by lithography, or any other mechanical process by which prints or impi'es- sions of drawings or designs are capable of being multiplied indefinitely ; and the said Acts shall be construed accord- ingly. 25 & 26 VICT. C. 68. 691 25 & 26 Vict. c. 68. An Act for amending the Law relating to Copyright in Worhs of the Fine Arts, and for repressing the Commission of Fraud in the Production and Sale of such Works. [14 Rev. Stat. 162.] [29th July 1862.] Whereas by law, as now established, the authors of paintings, drawings, and photographs have no copyright in such their works ; and it is expedient that the law should in that respect be amended : Be it therefore enacted by the Queen's most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present Parliament assembled, and by the authority of the same, as follows : — I. The author, being a British subject or resident within copyright in the dominions of the Crown, of every original painting, draw- hereaftlr'made ing, and photograph which shall be or shall have been made the author for™ either in the British dominions or elsewhere, and which shall ^eveifyea*s^after not have been sold or disposed of before the commencement '''^*^''"'' of this Act, and his assigns, shall have the sole and exclusive right of copying, engraving, reproducing, and multiplying such painting or drawing, and the design thereof, or such photo- graph, and tlie negative thereof, by any means and of any size, for the term of the natural life of such author, and seven years after his death ; provided, that when any painting or drawing, or the negative of any photograph, shall for the first time after the passing of this Act be sold or disposed of, or shall be made or executed for or on behalf of any other person for a good or a valuable consideration, the person so selling or disposing of or making or executing the same shall not retain the copy- right thereof, unless it be expressly reserved to him by agree- ment in writing, signed, at or before the time of sucli sale or disposition, by the vendee or assignee of such painting or drawing, or of such negative of a photograph, or by the person for or on whose behalf the same shall be so made or executed, but the copyright shall belong to the vendee or assignee of such painting or drawing, or of such negative of a photograph, or to the person for or on whose behalf the same shall have been made or executed ; nor shall the vendee or assignee thereof be entitled to any such copyright, unless, at or before the time of such sale or disposition, an agreement in 692 THE LAW OP COPYRIGHT AND PLAYRIGHT. Copyright not to prevent the rep- resentation of the same sub- jects in other worlts. Copyright to he persona.! estate. Assignments, licences, &c. to he in writing. Begister of pro- prietors of copy- right in paint- ings, dra'wings, and photographs to be liept at Stationers Hall by the officer appointed for the purposes of 5 & 6 riet. 0. 45. Certain enact- ments of 5 & 6 Tict. c. 45. to apply to the register to he kept under this Act. writing, signed by the person so selling or disposing of the same, or by his agent duly authorized, shall have been made to that effect. II. Nothing herein contained shall prejudice the right of any person to copy or use any work in which there shall be no copyright, or to represent any scene or object, notwithstanding that there may be copyright in some representation of such scene or object. III. All copyright under this Act shall be deemed peisonal or moveable estate, and shall be assignable at law ; and every assignment thereof, and every licence to use or copy by any means or process the design or work which shall be the sub- ject of such copyright, shall be made by some note or memo- randum in writing, to be signed by the proprietor of the copyright, or by his agent appointed for that purpose in writing. IV. There shall be kept at the hall of the Stationers Com- pany, by the ofiBcer appointed by the said Company for the purposes of the Act passed in the sixth year of Her present Majesty, intituled " An Act to amend the law of copyright," a book or books, entitled "The Register of Proprietors of Copyright in Paintings, Drawings, and Photographs," wherein shall be entered a memorandum of every copyright to which any person shall be entitled under this Act, and also of every subsequent assignment of any such copyright ; and such mem- orandum shall contain a statement of the date of such agreement or assignment, and of the names of the parties thereto, and of the name and place of abode of the person in whom such copyright shall be vested by virtue thereof, and of the name and place of abode of the author of the work in which there shall be such copyright, together with a short description of the nature and subject of such work, and in addition thereto, if the person registering shall so desire, a sketch, outline, or photograph of the said work ; and no proprietor of any such copyright shall be entitled to the benefit of this Act until such registration ; and no action shall be sustainable nor any penalty be recoverable in respect of anything done before registration. V. The several enactments in the said Act of the sixth year of Her present Majesty contained, with relation to keeping the register book thereby required, and the inspection thereof, the searches therein, and the delivery of certified and stamped copies thereof, the reception of such copies in evidence, the 25 & 26 YICT. C. 68. 693 making of false entries in the said book, and the production in evidence of papers falsely purporting to be copies of entries in the said book, tlie application to the courts and judges by persons aggrieved by entries in the said book, and the expung- ing and varying such entries, shall apply to the book or books to be kept by virtue of this Act, and to the entries and assign- ments of copyright and proprietorship therein under this Act, in such and the same manner as if such enactments were here expressly enacted in relation thereto ; save and except that the forms of entry prescribed by the said Act of the sixth year of Her present Majesty may be varied to meet the circum- ■ stances of the case, and that the sum to be demanded by the officer of the said Company of Stationers for making any entry required by this Act shall be one shilling only. VI. If the author of any painting, drawing, or photograph Penalties on ta- in which there shall be subsisting copyright, after having sold copyright. or disposed of such copyright, or if any other person, not being the proprietor for the t;ime being of copyright in any painting, drawing, or photograph, shall, without the consent of such pro- prietor, repeat, copy, colourably imitate, or otherwise multiply for sale, hire, exhibition, or distribution, or cause or procure to be repeated, copied, colourably imitated, or otherwise multi- plied for sale, hire, exhibition, or distribution, any such work or the design thereof, or, knowing that any such repetition, copy, or other imitation has beeu unlawfully made, shall import into any part of the United Kingdom, or sell, publish, let to hire, ex- hibit, or distribute, or offer for sale, hire, exhibition, or distri- bution, or cause or procure to be imported, sold, published, let to hire, distributed, or offered for sale, hire, exhiliition, or distri- bution, any repetition, copy, or imitation of the said work, or of the design thereof, made without such consent as aforesaid, such person for every such offence shall forfeit to the proprie- tor of the copyright for the time being a sum not exceeding ten pounds ; and all such repetitions, copies, and imitations made without such consent as aforesaid, and all negatives of photographs made for the purpose of obtaining such copies, shall be forfeited to the proprietor of the copyright. VII. No person shall do or cause to be done any or either Penalties on ^ , fraudulent pro- of the following acts ; that is to say, ductioos and sales. First, no person shall fraudulently sign or otherwise affix, or fraudulently cause to be signed or otherwise affixed, 694 THE LAW OP COPYRIGHT AND PLAYRIGHT. to or upon any painting, drawing, or photograph, or the negative thereof, any name, initials, or monogram : Secondly, no person shall fraudulently sell, puhlish, exhibit, or dispose of, or offer for sale, exhibition, or distribution, any painting, drawing, or photograph, or negative of a photograph, having thereon the name, initials, or mono- gram of a person who did not execute or make such work : Thirdly, no person shall fraudulently utter, dispose of, or put off, or cause to be uttered or disposed of, any copy or colourable imitation of any painting, drawing, or pho- tograph, or negative of a photograph, whether there shall be subsisting copyright therein or not, as having been made or executed by the author or maker of the original work from which such copy or imitation shall have been taken : Fourthly, where the author or maker of any painting, drawing, or photograph, or negative of a photograph, made either before or after the passing of this Act, shall have sold or otherwise parted with the possession of such work, if any alteration shall afterwards be made therein by any other person, by addition or otherwise, no person shall be at liberty, during the life of the author or maker of such work, without his consent, to make or knowingly to sell or publish, or offer for sale, such work or any copies of such work so altered as aforesaid, or of any part thereof, as or for the unaltered work of such author or maker : Every offender under this section shall, upon conviction, forfeit to the person aggrieved a sum not exceeding ten pounds, or not exceeding double the full price, if any, at which all such copies, engravings, imitations, or altered works shall have been sold or offered for sale ; and all such copies, engravings, imitations, or altered works shall be forfeited to the person, or the assigns or legal representatives of the person, whose name, initials, or monogram shall be so fraudu- lently signed or affixed thereto, or to whom such spurious or altered work shall be so fraudulently or falsely ascribed as aforesaid : Provided always, that the penalties imposed by this section shall not be incurred unless the person whose name, initials, or monogram shall be so fraudulently signed or affixed, or to whom such spurious or altered work shall be 25 & 26 VICT. C. 68. 695 SO fraudulently or falsely ascribed as aforesaid, shall have been living at or within twenty years next before the time when the offence may have been committed. VIII. All pecuniary penalties which shall be incurred, and Recovery of all such unlawful copies, imitations, and all other efifects and ^8""""^ ^™' things as shall have been forfeited by offenders, pursuant to this Act, and pursuant to any Act for the protection of copy- right engravings, may be recovered by the person herein-before and in any such Act as aforesaid empowered to recover the same respectively, and herein-after called the complainant or the complainer, as follows : In England and Ireland, either by action against the party in England offending, or by summary proceeding before any two jus- *"* ''^*''"'*- tices having jurisdiction where the party offending resides : In Scotland by action before the Court of Session in ordi- in Scotland, nary form, or by summary action before the sheriff of the county where the offence may be committed or the of- fender resides, who, upon proof of the offence or offences, either by confession of the party offending, or by the oath or aflBrmation of one or more credible witnesses, shall convict the offender, and find him liable to the penalty or penalties aforesaid, as also in expenses ; and it shall be lawful for the sheriff, in pronouncing such judgment for the penalty or penalties and costs, to insert in such judgment a warrant, in the event of such penalty or penalties and costs not being paid; to levy and recover the amount of the same by poinding: Provided always, that it shall be lawful to the sheriff, in the event of his dismissing the action and assoilzieing the defender, to find the complainer liable in expenses ; and any judg- ment so to be pronounced by the sheriff in such sum- mary application shall be final and conclusive, and not subject to review by advocation, suspension, reduction, or otherwise. IX. In any action in any of Her Majesty's Superior Courts Superior Courts -rm-r - T'T^Tl- P 1 '/>■ ^f RCCOrd ID of Record at Westminster and in Dublin, tor the infringe- which any ment of any such copyright as aforesaid, it shall be lawful for may make an the Court in which such action is pending, if the Court be junction, inspeo- then sitting, or if the Court be not sitting, then for a judge of "™' " "'°°'"' ' such Court, on the application of the plaintiff or defendant 696 THE LAW OP COPYBIGHT AND PLATRIGHT. Importation of pirated works piobibited. Bight to bring action for dam- ages, Sec. respectively, to make such order for an injunction, inspection, or account, and to give such direction respecting such action, injunction, inspection, and account, and the proceedings therein respectively, as to such Court or judge may seem fit. X. All repetitions, copies, or imitations of paintings, draw- ings, or photographs, wherein or in the design whereof there shall be subsisting copyright under this Act, and all repetitions, copies, and imitations of the design of any such painting or drawing, or of the negative of any such photograph, which, contrary to the provisions of this Act, shall have been made in any foreign state, or in any part of the British dominions, are hei-eby absolutely prohibited to be imported into any part of the United Kingdom, except by or with the consent of the proprietor of the copyright thereof, or his agent authorized in writing ; and if the proprietor of any such copyright, or his agent, shall declai'e that any goods imported are repetitions, copies, or imitations of any such painting, drawing, or photo- graph, or of the negative of any such photograph, and so pro- hibited as aforesaid, then such goods may be detained by the ofiScers of Her Majesty's Customs. XI. If the author of any painting, drawing, or photograph, in which there shall be subsisting copyright, after having sold or otherwise disposed of such copyright, or if any other person, not being the proprietor for the time being of such copyright, shall, without the consent of such proprietor, repeat, copy, colourably imitate, or otherwise multiply, or cause or procure to be repeated, copied, colourably imitated, or otherwise mul- tiplied, for sale, hire, exhibition, or distribution, any such work or the design thereof, or the negative of any such pho- tograph, or shall import or cause to be imported into any part of the United Kingdom, or sell, publish, let to hire, exhibit, or distribute, or offer for sale, hire, exhibition, or distribution, or cause or procure to be sold, published, let to hire, exhib- ited, or distributed, or offered for sale, hire, exhibition, or distribution, any repetition, copy, or imitation of such work, or tlie design thereof, or the negative of any such photograph, made without such consent as aforesaid, then every such pro- prietor, in addition to the remedies hereby given for the re- covery of any such penalties, and forfeitui-e of any such things as aforesaid, may recover damages by and in a special action on the case, to be brought against the person so offending, and may in such action recover and enforce the delivery to 38 & 39 -VICT. C. 12. 697 him of all unlawful repetitions, copies, and imitations, and negatives of photographs, or may recover damages for the retention or conversion thereof: Provided, that nothing herein contained, nor any proceeding, conviction, or judgment, for any act hereby forbidden, shall affect any remedy which any person aggrieved by such act may be entitled to either at law or in equity. XII. This Act shall be considered as including the pro- F''PTl?°!°' ,„ .. o'T&S Viot. c. 12. visions or the Act passed in the session of Parliament held in to be considered , , . as iDcluded in the seventh and eighth years of Her present Majesty, intituled tws Act. " An Act to amend the law relating to international copy- right,'' in the same manner as if such provisions were part of this Act. 38 & 39 Vict. c. 12. An Act to aviend the Law relating to International Copyright. [Law Rep. 10 Stat. 133.] [13th Mat 1875.] Whereas by an Act passed in the fifteenth year of the reign of Her present Majesty, chapter twelve, intituled " An Act to enable Her Majesty to carry into effect a convention with France on the subject of copyright ; to extend and explain the International Copyright Acts; and to explain the Acts relating to copyright in engravings," it is enacted, tliat " Her Majesty may, by Order in Council, direct that authors of dramatic pieces which are, after a future time, to be specified in such order, first publicly represented in any foreign conn- try, to be named in such order, their executors, administrators, and assigns, shall, subject to the provisions therein-after men- tioned or referred to, be empowered to prevent the repre- sentation in the British dominions of any translation of such dramatic pieces not authorized by them, for such time as may be specified in such order, not extending beyond the expira- tion of five years from the time at which the authorized trans- lations of such dramatic pieces are first published and publicly represented : " And whereas by the same Act it is further enacted, " that, subject to any provisions or qualifications contained in such order, and to the provisions in the said Act contained or re- ferred to, the laws and enactments for the time being in force for ensuring to the author of any dramatic piece first publicly 698 THE LAW OP COPYRIGST AND PLAYEIGHT. represented in the British dominions the sole liberty of rep- resenting the same shall be applied for the purpose of pre- venting the representation of any translations of the dramatic pieces to which such order extends, which are not sanctioned by the authors thereof:" And whereas by the sixth section of the said Act it is pro- vided, that " nothing in the said Act contained shall be so construed as to prevent fair imitations or adaptations to the English stage of any dramatic piece or musical composition published in any foreign country : " And whereas it is expedient to alter or amend the last- mentioned provision under certain circumstances : Be it therefore enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Par- liament assembled, and by the authority of the same, as follows ; viz., I. In any case in which, by virtue of the enactments herein-before recited, any Order in Council has been or may hereafter be made for the purpose of extending protection to the translations of dramatic pieces first publicly represented in any foreign country, it shall be lawful for Her Majesty by Order in Council to direct that the sixth section of the said Act shall not apply to the dramatic pieces to which protection is so extended ; and thereupon the said recited Act shall take effect with respect to such dramatic pieces and to the transla- tions thereof as if the said sixth section of the said Act were hereby repealed. Revised Statute of the United States, being the Act of July 8, 1870, as contained in the Revised Statutes, Second Edition, 1878, page 957. 4948. Copyrights to be under charge of Librarian of Con- gress. 4949. Seal of office. 4950. Bond of Librarian. 4951. Annual report. 4952. What publications may be entered for copyright. 4953. Term of Copyrights. 4954. Continuance of term. 4955. Assignment of copyrights and recording. REVISED STATUTE OP THE UNITED STATES. 699 4956. Deposit of title and published copies. 4957. Book of entry and attested copy. 4958. Fees. 4959. Copies of copyright works to be furnished to Libra- rian of Congress. 4960. Penalty for omission. 4961. Postmaster to give receipts. 4962. Publication of notice of entry for copyright pre- scribed. 4963. Penalty for false publication of notice of entry. 4964. Damages for violation of copyright of books. 4965. For violating copyright of maps, charts, prints, &c. 4966. For violating copyright of dramatic compositions. 4967. Damages for printing or publishing any manuscript without consent of author, &c. 4968. Limitation of action in copyright cases. 4969. Defenses to action in copyright cases. 4970. Injunctions in copyright cases. 4971. Aliens and non-residents not privileged. Sec. 4948. All records and other things relating to copy- Copyrights to bo rights and required by law to be preserved, shall be under Librarian of Coa- the control of the Librarian of Congress, and kept and preserved in the Library of Congress ; and the Librarian of Congress shall have the immediate care and supervision thereof, and, ujider the supervision of the joint committee of Congress on the Library, shall perform all acts and duties required by law touching copyrights. Sec. 4949. The seal provided for the office of the Librarian Seal of office. of Congress shall be the seal thereof, and by it all records and papers issued from the office and to be used in evidence shall be authenticated. Sec. 4950. The Librarian of Congress shall give a bond. Bond of Libra- with sureties, to the Treasurer of the United States, in the sum of five thousand dollars, with the condition that he will render to the proper officers of the Treasury a true account of all moneys received by virtue of his office. Sec. 4951. The Librarian of Congress shall make an annual An^^s-' '«?<"■'• report to Congress of the number and description of copyright publications for which entries have been made during the year. Sec. 4952. Any citizen of the United States or resident Whatpubiica- 700 THE LAW OF COPYRIGHT AND PLATRIGHT. tions may be entered for copy- right. Term of copy- rights. Continuance of term. ABBif^ment of copyrights and recording. Deposit of title and published copies. therein, who shall be the author, inventor, designer, or pro- prietor of any book, map, chart, dramatic or musical composi- tion, engraving, cut, print,^ or photograph or negative thereof, or of a painting, drawing, chromo, statue, statuary, and of models or designs intended to be perfected as works of the fine arts, and the executors, administrators, or assigns of any such person shall, upon complying with the provisions of this chapter, have the sole liberty of printing, reprinting, publishing, completing, copying, executing, finishing, and vending the same ; and, in the case of a dramatic composi- tion, of publicly performing or representing it, or causing it to be performed or represented by others. And authors may reserve the right to dramatize or to translate their own works. Sec. 4953. Copyrights shall be granted for the term of twenty-eight years from the time of recording the title thereof, in the manner hereinafter directed. Sec. 4954. The author, inventor, or designer, if he be still living and a citizen of the United States or resident therein, or his widow or children, if he be dead, shall have the same exclusive right continued for the further term of fourteen years, upon recording the title of the work or description of the article so secured a second time, and complying with all other regulations in regard to original copyrights, within six months before the expiration of the first terra. And such person shall, within two months from the date of said renewal, cause a copy of the record thereof to be published in one or more newspapers, printed in the United States, for the space of four weeks. Sec. 4955. Copyrights shall be assignable in law, by any instrument of writing, and such assignment shall be recorded in the office of the Librarian of Congress within sixty days after its execution ; in default of which it shall be void as against any subsequent purchaser or mortgagee for a valuable consideration, without notice. Sec. 4956. No person shall be entitled to a copyright unless he shall, before publication, deliver at the oflSce of the Librarian of Congress or deposit in the mail addressed to the Librarian of Congress, at Washington, District of Columbia, a printed copy of the title of the book or other article, or a description of the painting, drawing, chromo, statue, statuary, or a model or design for a work of the fine arts, for which he 1 See Act of 1874, s. 3, post, p. 705. REVISED STATUTE OP THE UNITED STATES. TOl desires a copyright, nor unless he shall also, within ten days from the publication thereof, deliver at the office of the Librarian of Congress or deposit in the mail addressed to the Librarian of Congress, at Washington, District of Columbia, two copies of such copyright book or other article, or in case of a painting, drawing, statue, statuary, model, or design for a work of the fine arts, a photograph of the same. Sec. 4957. The Librarian of Congress shall record the Book of entry name of such copyright book or other article, forthwith, in a copy! book to be kept for that purpose, in the words following: " Library of Congress, to wit : Be it remembered that on the day of , A. B., of , hath deposited in this office the title of a book, (map, chart, or otherwise, as the case may be, or description of the article,) the title or description of which is in the following words, to wit ; (here insert the title or description,) the right whereof he claims as author, (origi- nator, or proprietor, as the case may be,) in conformity with the laws of the United States respecting copyrights. C. D., Librarian of Congress." And he shall give a copy of the title or description, under the seal of the Librarian of Congress, to the proprietor whenever he shall require it. Sec. 4958. The Librarian of Congress shall receive, from Fees. the persons to whom the services designated are rendered, the following fees : — First. For recording the title or description 6i any copy- right book or other article, fifty cents. Second. For every copy under seal of such record actually given to the person claiming the copyright, or his assigns, fifty cents. Third. For recording any instrument of writing for the assignment of a copyright, fifteen cents for every one hundred words. ^ Fourth. For every copy of an assignment, ten cents for every one hundred words. ^ All fees so received shall be paid into the Treasury of the United States. Sec. 4959. The proprietor of every copyright book or other Copies of copy- «. «.-r., . ^ r^ right works to be article shall deliver at the office of the Librarian of Congress, furnished to or deposit in the mail addressed to the Librarian of Congress congress, at Washington, District of Columbia, within ten days after its publication, two complete printed copies thereof, of the best edition issued, or description or photograph of such article as 1 See Act of 1874, s. 2, post, p. 705. 702 THE LAW OF COPYRIGHT AND PLAYRIGHT. Penalty for omission. Postmaster to give receipts. Publication of notice of entry for copyright prescribed. Penalty for false publication of ' notice of entry. Damages for Tiolation of copy- right of books. hereinbefore required, and a copy of every subsequent edition wherein any substantial changes shall be made. Sec. 4960. For every failure on the part of the proprietor of any copyright to deliver or deposit in the mail either of the published copies, or description or photograph, required by sections four thousand nine hundred and fifty-six, and four thousand nine hundred and fifty-nine, the proprietor of the copyright shall be liable to a penalty of twenty-five dollars, to be recovered by the Librarian of Congress, in the name of the United States, in an action in the nature of an action of debt, in any district court of the United States within the jurisdiction of which the delinquent may reside or be found. Sec. 4961. The postmaster to whom such copyright book, title, or other article is delivered, shall, if requested, give a receipt therefor ; and when so delivered he shall mail it to its destination. Sec. 4962. No person shall maintain an action for the in- fringement of his copyright unless he shall give notice thereof by inserting in the several copies of every edition published, on the title-page or the page immediately following, if it be a book; or if a map, chart, musical composition, print, cut, engraving, photograph, painting, drawing, chromo, statue, statuary, or model or design intended to be perfected and completed as a work of the fine arts, by inscribing upon some portion of the face or front thereof, or on the face of the sub- stance on which the same shall be mounted, the following words : " Entered according to Act of Congress, in the year , by A. B., in the office of the Librarian of Congress, at Washington." ■^ Sec. 4963. Every person who shall insert or impress such notice, or words of the same purport, in or upon any book, map, chart, musical composition, print, cut, engraving, or photograph, or other article, for which he has not obtained a copyright, shall be liable to a penalty of one hundred dollars, recover?ible one-half for the person who shall sue for such penalty, and one-half to the use of the United States. Sec. 4964. Every person who, after the recording of the title of any book as provided by this chapter, shall wiihin the term limited, and without the consent of the proprietor of the copyright first obtained in writing, signed in presence of two or more witnesses, print, publish, or import, or knowing 1 See Act of 1874, =. 1, post, p. 704. REVISED STATUTE OP THE UNITED STATES. 703 the same to be so printed, published, or imported, shall sell or expose to sale any copy of such book, shall forfeit every copy thereof to such proprietor, and shall also forfeit and pay such damages as may be recovered in a civil action by such proprietor in any court of competent jurisdiction. Sec. 4965. If any person, after the recording of the title of Tor violating . . copyright of any map, chart, musical composition, print, cut, engraving, or ■n'JPs^ char's, photograph, or chromo, or of the description of any painting, drawing, statue, statuary, or model or design intended to be perfected and executed as a vpork of the fine arts, as provided by this chapter, shall, within the term limited, and without the consent of the proprietor of the copyright first obtained in writing, signed in presence of two or more witnesses, engrave, etch, work, copy, print, publish, or import, either in whole or in part, or by varying the main design with intent to evade the law, or, knowing the same to be so printed, published, or imported, shall sell or expose to sale any copy of such map or other article, as aforesaid, he shall forfeit to the proprietor all the plates on which the same shall be copied, and every sheet thereof, either copied or printed, and. shall further forfeit one dollar for every sheet of the same found in his possession, either printing, printed, copied, published, imported, or exposed for sale ; and in case of a painting, statue, or statuary, he shall forfeit ten dollars for every copy of the same in his possession, or by him sold or exposed for sale ; one-half thereof to the proprietor and the other half to the use of the United States. Sec. 4966. Any person publicly performing or representing For violating any dramatic composition for which a copyright has been dramatic com- obtained, without the consent of the proprietor thereof, or his heirs or assigns, shall be liable for damages therefor, such damages in all cases to be assessed at such sum, not less than one hundred dollars for the first, and fifty dollars for every subsequent performance, as to the court shall appear to be just. Sec. 4967. Every person who shall print or publish any Damages for manuscript whatever, without the consent of the author or Sshilgmyraiu- proprietor first obtained, if such author or proprietor is a consmt"f''™' citizen of the United States, or resident therein, shall be *""'°''' *'°' liable to the author or proprietor for all damages occasioned by such injury. Sec. 4968. No action shall be maintained in any case of Limitation of action in copy- forfeiture or penalty under the copyright laws, unless the right cases. 704 THE LAW OP COPYRIGHT AND PLATRIGHT. Defenses to ac- tion in copyright Injunctions in copyright casea. Aliens and non- residents not privileged. same is commenced within two years after the cause of action has arisen. Sec. 4969. In all actions arising under the laws respecting copyrights, the defendant may plead the general issue, and give the special matter in evidence. Sec. 4970. The circuit courts, and district courts having the jurisdiction of circuit courts, shall have power, upon bill in equity, filed by any party aggrieved, to grant injunctions to prevent the violation of any right secured by the laws respecting copyrights, according to the course and principles of courts of equity, on such terms as the court may deem reasonable. Sec. 4971. Nothing in this chapter shall be construed to prohibit the printing, publishing, importation, or sale of any book, map, chart, dramatic or musical composition, print, cut, engraving, or photograph, written, composed, or made by any person not a citizen of the United States nor resident therein. No right of action for in- fringement of copyright un- less, &c. Modes of entry. Act of June 18, 1874. (18 U. S. St. at L. 78.) An act to amend the law relating to patents, trade marks, and copyrights. Be it enacted hj the Senate and House of Eepresentatives of the United States of America in Congress assembled, That no person shall maintain an action for the infringement of his copyright unless he shall give notice thereof by inserting in the several copies of every edition published, on the title-page or the page immediately following, if it be a book ; or if a map, chart, musical composition, print, cut, engraving, photo- graph, painting, drawing, chromo, statue, statuary, or model, or design intended to be perfected and completed as a work of the fine arts, by inscribing upon some visible portion thereof, or of the substance on which the same shall be mounted, the following words, viz. : " Entered according to act of Congress, in the year , by A. B., in the office of the Librarian of Congress, at Washington ; " or, at his option the word " Copy- right," together with the year the copyright was entered, and STATUTES RELATING TO JURISDICTION. 705 the name of the party by whom it was taken out; thus — " Copyright, 18—, by A. B." Sec. 2. That for recording and certifying any instrument of Fee for recording writing for the assignment of a copyright, the Librarian of ^t^mento of Congress shall receive from the persons to whom the service ""^'^'s'''- is rendered, one dollar ; and for every copy of an assignment, one dollar ; said fee to cover, in either case, a certificate of the record, under seal of the Librarian of Congress ; and all fees so received shall be paid into the Treasury of the United States. Sec. 3. That in the construction of this act, the words " En- Restriction on application of graving," " cut," and " print " shall be applied only to pictorial y°'?,M' BjgfiT- illustrations or works connected with the fine arts, and no and "print!" prints or labels designed to be used for any other articles of manufacture shall be entered under the copyright law, but may be registered in the Patent Office. And the Commis- P?" P"^'"*? *"* ^ - labels may be sioner of Patents is hereby charged with the supervision and registered in control of the entry or registry of such prints or labels, in Commissioner of . . , •' ' ' Patents charged conformity with the regulations provided by law as to copy- -with superrision. right of prints, except that there shall be paid for recording ^^es. the title of any print or label not a trade mark, six dollars, which shall cover the expense of furnishing a copy of the record under the seal of the Commissioner of Patents, to the party entering the same. Sec. 4. That all laws and parts of laws inconsistent with Repeal of incon. .« . ... ,, ,, ,- siatent laws. the foregoing provisions be and the same are hereby repealed. Sec. 5. That this act shall take effect on and after the first Takes effect Aug. day of August, eighteen hundred and seventy-four. Approved, June 18, 1874. Provisions of the Revised Statutes of the United States which, with section 4970 (ante, p. 704), govern Jurisdiction in Copyright Gases. Sec. 629. The circuit courts shall have original jurisdiction Jurisdiction, as follows : First. Of all suits of a civil nature at common law or in Aliens, citizens of dififerent equity, where the matter in dispute, exclusive of costs, ex- states. ceeds the sum or value of five hundred dollars, and an alien 45 706 THE LAW OF COPYRIGHT AND PLATEIGHT. is a party, or the suit is between a citizen of the State where it is brought and a citizen of another State. . Ninth. Of all suits at law or in equity arising under the patent or copyrighti laws of the United States.^ Writs of error '^^*^- ^^^" "^ "'''''' °^ error [to the Supreme Court of the w^uiout reference United States] may be allowed to review any final judgment to amount. at law, and an appeal shall be allowed from any final decree in equity hereinafter mentioned, without regard to the sum or value in dispute : Patent and copy. First. Any final judgment at law or final decree in equity ng ca^es. ^j ^^^ circuit court, or of any district court acting as a circuit court, or of the supreme court of the District of Columbia, or of any Territory, in any case touching patent-rights or copyrights.^ 1 U S. Rev. St. 110, 111. The Act of March 3, 1875, 18 U. S. St. at L. 470, provides that " the circuit courts of the United States shall have original cognizance, concurrent with the courts of the several States, of all suits of a civil nature at common law or in equity, where the matter in dis- pute exceeds, exclusive of costs, the sum or value of five hundred dollars, and arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority, or in which the United States are plaintiffs or petitioners, or in which there shall be a controversy between citizens of different States or a, con- troversy between citizens of the same State claiming land under grants of different States, or a controversy between citizens of a State and foreign states, citizens, or subjects." 2- U. S. Eev. St. 130. INDEX. INDEX. ABAITDONMENT. See Acquiescence; Performance; Publica- tion. ABBREVIATIONS, explanation of, see table preceding Table or Cases. ABRIDGMENTS, prohibition of unauthorized, recommended by royal commissioners, 52. may be copjoighted, 158. test of originality, 158, 159, 200. what may be abridged, 159^ 433. law reports, 160. of foreign works may be copyrighted in United States, 232. right in, may be assigned independently of copyright in original, 334. considered with reference to piracy, 433-445. general principles, 433, 434. may be numerous of unprotected original, 433. of copyrighted work cannot be justified on ground of improve- ment of original, 433. tests by which question of piracy determined, 434. review of English authorities, 435-437. judicial dicta that honafide, not piratical, 435, 437. direct authorities that hona fide, not piratical, 436, 438-440. English authorities treated as obsolete, 436. views of McLean, J., against current doctrine, 439. what authority in support of prevalent doctrine, 436, 440. doctrine maintained that unlicensed, are piratical, 440-445. question to be determined by general principles governing piracy, 440. abridgment defined, 441. grounds on which unlicensed, held lawful, not tenable, 442. abridger takes material part of copyrighted work without authority, which must amount to piracy, 443-445. views of Kent, Lord Campbell, Wood, V. C, and Lieber, 445, note 1. 710 INDEX. ABRIDGMENTS, — continued. unsuccessful attempts to apply prevalent doctrine to photographs, maps, and illustrations, 445, note 1. ACCOUNT OP PROFITS, remedy in equity, 497. may be ordered when temporary injunction refused, 521. only approximate measure of damage, 531. right to, dependent on right to injunction, 532. may be ordered before injunction granted, 533. not asked for, may be ordered under prayer for general relief, 533. how profits of past sales ascertained, 533. plaintiff entitled to profits from sales on commission of piratical copies, 533. defendant ordered by equity to pay net profits, and sent to law for gross, 471, 534. in case of violation of common-law playright, 585. statutory playright, 625. ACQUIESCENCE, remedies in equity defeated by plaintiff's consent to publication, which need not be written, 501. when plaintiff's consent may not be implied, 502. plaintiff may forfeit rights by delay or laches, 504. and so, where he has permitted other piracies than defendant's, 504. plaintiff not responsible for delay when ignorant of piracy, 505. defendant must show knowledge in plaintiff, 505. delay may be explained, .505. plaintiff's rights not prejudiced by custom, 506. stronger case of, must be shown on final hearing than preliminary application, 506. whether plaintiff's rights lost by apparent, 506-508. tendency of recent decisions toward doctrine that plaintiff's rights are not lost by mere delay, 508-512. defendant must show plaintiff's consent, 508. plaintiff's knowledge of piracy does not amount to consent, 510- 512. in unlicensed performances of unpublished play, 576. ACTING. See Performance. ACTING RIGHT, meaning of, 553. See Playright. ACTION, form of, for infringement of copyright, 495. See Damages, Action for; Jhrisdiction; Limitation OF Actions; Remedies in Law. ACTS OF CONGRESS. See Statutes in Force. INDEX. ^ 711 ACTS OF PARLIAMENT, prerogative right to, claimed by crown, 62-65, 163. (See Statutes; Statutes in Force; Public Documents. ADAPTATIONS, of dramatic compositions. See Dramatizations. provisions of international copyright acts relating to foreign, 215, 218. of mvisic. See Musical Compositions. ADVERTISING PUBLICATIONS, may be copyrighted, 164-168. but not when mere advertisements, 164, 178, 211. AGREEMENTS BETWEEN AUTHORS AND PUBLISHERS, as to articles in cyclopaedias, periodicals, &c., in England, 243-247, 379. iu United States, 259, 379. See Periodicals. as to renewal of copyright, 326-334. See Renewal op Copyright. absolute assignment before publication gives unlimited right to pub- lish, 328. for publication of specified number of copies gives exclusive right to print and sell that number, 343, 344, 363. for publication of one edition only gives no right to publish a second, 360, 363. that publisher shall publish second edition, if called for, and print as many copies as he can sell, — entitled, and bound to publish, when demand for, 357-363. question of demand determined by proof, 364. may publish as many copies of second edition as he can sell, 357, 364. but not third edition, 358, 359. right to publish exclusive, 360. for publication pf subsequent editions, if called for, publisher entitled and bound to publish as many as there is demand for, 347, 364. when ended, 364. indefinite as to duration and number of copies, — not assignment of copyright, 346, 353. exclusive right of publication during existence of, 347, 369. terminable by failure to comply with conditions, 347, 365. rights of assignee in bankruptcy under, 348. nature of, 346. personal and not transferable, 348, 366. author may end, by notice given before expense incurred on future edition, 352, 353, 364. publisher may issue successive editions until receipt of notice, 352, 365. not bound to publish more than one edition, 352, 365. time of ending, 353, 355, note. 712 . INDEX. AGREEMENTS BETWEEN AUTHORS AND PUBLISHERS,— continued. publisher may sell all copies printed under, 347, 352, 365, 368, 369. judicial opinion that publisher's right of selling copies printed continues exclusive after end of agreement, 347, 368. publisher's right to sell after agreement ended held not exclu- sive, 368. decision questioned, 370. for division of profits on copies sold above specified number; rights of author after bankruptcy of publisher, 350. with State reporter for publication of law reports, 362. publisher bound to observe terms of, 347, 360, 365. selling price, when not specified, may be fixed by publisher, 352, 853, 365. and on same principle the style, 365. meaning of edition, 355 note, 357 note 1, 358, 359, 378. division of profits, 350, 351, 366. when question whether new edition is called for determined by proof, 364. when left to publisher, 353, 364. when agreement not transferable, 366. publisher may acquire exclusive rights by implied agreement, 367. legal title remains in author, unless assignment made, 368. publisher may acquire equitable title, 368. rights of publisher who has bought copyright for limited time, 372, 373, 339, 341, 342. rights of assignor and assignee after assignment, 338-342, 372, 373. negative covenant by author, 373. author may not reproduce work after sale of copyright, 374.. whether publisher may make changes in author's manuscript, 375-377. publisher liable for injury to author by false representations as to authorship of revised edition, 377. publisher entitled to damages when author refuses to supply rest of manuscript after part is printed, 378. copies printed to replace those destroyed by fire not a new edition, 378. unlawful publications, 378. title of magazine partnership property, 380. name of editor not part of title, 380. joint-owners of copyright may make agreement inter sese for publi- cation, 381. governed by Statute of Frauds, 381. remedies in equity concerning the specific performance of, 541-543. See Specific Pekfoumance of Agreements. in what court actions and suits brought, 546. See Jurisdiction. Employer and Employ^. INDEX. 713 ALIENS. See Foreign Authors; International Copyright. ALISON, ARCHIBALD, petition in favor of copyright extension, 76 and note 1. ALMANAC, prerogative right to claimed by crown, 62-65. AMOUNT, of matter essential to copyright, piracy, &c. See Quantity; Value. in controversy. See Jurisdiction. ANIMUS FURANDI. See Intention; Knowledge of Piracy. ANNOTATION, creates title to copyright, 153, 156, 200. copyrighted work may not be used for, without authority, 405, 406. See Compilations; Editions. APPEAL, may be made to U. S. Supreme Court, irrespective of amount in con- troversy, 545. ARRANGEMENT, of materials. See Compilations. of music. ^ FORCE, Great Britain. books, 5 & 6 Vict. c. 45, 661. dramatic and musical compositions, copyright, 5 & 6 Vict. c. 45, 661. playright, 3 & 4 Will. IV. c. 15, 656. ss. 2, 20, 21 of 5 & 6 Vict. c. 45, 661, 670, 671. engravings, prints, cuts, and lithographs, 8 Geo. II. c. 13, 643. 7 Geo. III. c. 38, 645. 17 Geo. III. c. 57, 651. 6 & 7 Will. IV. c. 59, 660. 15 & 16 Vict. c. 12, s. 14, 685. lectures, 5 & 6 Will. IV. c. 65, 658. maps, charts, and plans, 5 & 6 Vict. c. 45, 661. paintings, drawings, and photographs, 25 & 26 Vict. c. 68, 69 . sculpture, 54 Geo. III. c. 56, 653. 13 & 14 Vict. c. 104, 684. universities and colleges, 15 Geo. HI. c. 53, 647. international copyright, 7 & 8 Vict. c. 12, 675. 15 & 16 Vict. c. 12, 685. 25 & 26 Vict. c. 68, s. 12, 697. 38 & 39 Vict. c. 12, 697. United States. revised statute, 698. act of June 18, 1874, 704. statutes relating to jurisdiction, 705. STATUTORY REQUISITES FOR SECURING COPYRIGHT, Great Britain. international copyright, 214-220. See International Copy- right. delivery of copies to libraries, 277. registration, 278-283. See Registration. United States, 262-277. prescribed by acts of 1790 and 1802, 262. difference of judicial opinion as to meaning of acts of 1790 and 1802, 262. prescribed by statute of 1831, 264. judicial construction of statute of 1831, 264. prescribed by existing statute, 265. compliance with, essential to copyright, 265, 616. INDEX. 769 STATUTORY REQUISITES FOR SECURING COPYRIGHT,— coniimied. imperfect right accrues on recording title, 267, 268. copyriglit -wiien completed dates from recording title, 268. in case of new editions, 269. vphether original copyriglit notice must be printed in revised edition, 270-274. books in two or more volumes, 274. newspapers and magazines, 275. copies of best edition must be delivered to librarian of Congress under penalty, 275. penalty not applicable to book not entered for copyright, 275. delivery of copies of best edition not essential to copyright, 275. copies to be delivered must be complete, 490. penalty for falsely printing copyright notice, 276, 494. fees for securing copyright, 276. certifying and recording assignments, 276. how to secure renewal, 276. publication, 283-289. See Publication. place of printing, 296. summary of the law, 297. See Fees; Librarian of Congeess; Libkakies; Notice op Entry. STEREOTYPE PLATES, what rights pass by sale of, 324. what importance given to, in determining meaning of edition, 357 note 1, 859 note 1. See Forfeitures. SUBJECT, no copyright in, 205. SUBSTITUTE, publication complained of need not be, to amount to piracy, 412. SUIT. See Damages; Injunction; Re.medies in Equity; Remedies IN Law. SUPREME COURT, of judicature, jurisdiction of, 498. acts relating to, 498, note 3. of the United States. See Jurisdiction. T. TALFOURD, SERJEANT, efforts for extension of copyright, 74. TERM OF COPYRIGHT. See Duration; Extension; Renewal. TERM OF PLAYRIGHT. See Duration of Playright. 49 7T0 INDEX. THEATRICAL REPRESENTATION. See Pbrfokmancb. THOUGHTS, no copyright in, without association, 98, 385. TITLE OF PUBLICATION, not subject of copyright, 145. may be registered as a trade-mark or protected on general principles of equity, 145, 535. printed copy of, must be sent before publication to librarian of Con- gress in order to secure copyright, 265. See Statutory Re- quisites. may be partnership property, 380. name of editor not part of, 380. injunction refused where plaintifE had simply advertised future pub- lication, 536. TITLE-PAGE, copyright notice must be printed on, or following page, 265. See Notice oe Entry of Copyright. TITLE TO COPYRIGHT, in United States will vest in person in whose name entered, 260, 861, 368. may be held in trust for author, 260, 368. transfer of, may be decreed by equity, 261. incomplete, acquired when title of book recorded, 267, 268, 501. warranty of, 342. under agreement for publication, legal, remains in author unless as- signment made, 368. legal, essential to maintain action at law, 487. copyright /irima/acie proof of, 498, 499. and so certified copy of registration, 278. and so of assignment, 301. how secured. See Statutory Requisites. how transferred. See TsANst'ER of Copyright. See Equitable Title. TRADE-MARK. See Title or Publication. TRAGEDY, playright in, given by 3 & 4 Will. IV. c. 15, and 5 & 6 Vict. c. 45, 586. See Dramatic Compositions. TRANSFER OF COPYRIGHT, at common law, may be by parol, 104, 240. parting with manuscript not a, 105. limited, 106. after publication is of statutory copyright, 239, 242. before publication is of common-law rights, 239, 242. may be decreed by equity, 261. INDEX. 771 TRANSFER OF COFYKIGHT, — continued. distinction between, and license, 305. license to publish does not amount to, 171, 172, note 1, 338, 361, 363. See Agreements between Authors and Publishers. Great Britain — books, by registration, 301. certified copy prima facie proof, 301. by bequest and in case of intestacy, 302. writing, but not attestation, held necessary under former statutes, 302-304. doctrine maintained that writing not essential, 304-316. former statutes considered, 304-309. difference between assignments made before and those after publication, 306-308. judicial opinions against soundness of prevailing doctrine, 309-311. whether 5 & 6 Vict. c. 45, requires writing, 311. definition of assigns in 5 & 6 Vict. c. 45, 240, 312. authorities in favor of doctrine that writing not essential, 313. assignment made in foreign country, 313. law not settled, 316. dramatic compositions. See Platright. engravings and prints, 316. maps, 317. paintings, drawings, and photographs, 317. must be registered, 281. United States. written, to be deposited with librarian of Congress, 276, 319. fees for recording and certifying, 276. provisions of former statutes, 318. what mode under existing statute, 319. when made before publication, 319. whether writing necessary after publication, 320, 321. by bequest and in case of intestacy, 321. of rights in renewed term, 326-334. See Renewal of Copt- bight. of right to represent dramatic composition. See Playright. in case of bankruptcy, 322. copyright must be in existence to be assigned, 322. agreement for future, 322. form of written, 323. sale of stereotype plates, 324. absolute, before publication gives unlimited right to publish, 328. Umited, 334-338. one or more of several rights in a work may be assigned, 334. copyright not assignable for part of country, 335. but is for whole of any country, 335. whether copyright is divisible as to time, 337. whether limited assignee may transfer copyright, 338. 772 INDEX. TRANSFER OF COPYRIGHT, — core(in«erf. rights of assignor and assignee as to selling copies, 338-342. author may not reproduce work after, 342. warranty of title, 842. See AssiGKEE. TRANSLATIONS, prohibition of unauthorized, recommended by royal commissioners, 52. may be copyrighted, 158, 175, 447, 449, 451. test of originality, 158, 159. 200. what may be translated, 159, 433. protected in England by International Copyright acts, 215-218. See IXTERXATIONAL COPYRIGHT. of foreign works may be copyrighted in United States, 232. right in, may be assigned independently of copyright in original, 334. considered with reference to piracy, 433, 434, 445-455. general principles, 433, 434. may be numerous, of unprotected original, 433. tests by which question of piracy determined, 434. right of, may be reserved in the United States, 445. whether unlicensed, in absence of reservation is piratical', 466. English authorities, 446-448. not in point, 448. American authorities, 449. unlicensed, held lawful, 449. doctrine maintained that unlicensed, is piratical, 450-455. '" copy " as used in statute does not mean literal transcript,' 450, 454. erroneous judicial interpretation of " copy," 454. author's rights secured only by protecting substance, 451. translation defined, 451. is substantial copy of original, 451, 452. true test of piiacy is whether translator had authority to use original, 453. Stowe V. Thomas criticised, 454, 455. common-law playright in unpublished, 580. statutory playright in published, 597. TRUST, copyright may be held in, 260, 3G8. breach of, ground for injunction, 537. U. UNITED KINGDOM, defined, 298. UNITED STATES COURTS. See Jurisdiction. INDKX. 773 UNITED STATES STATUTES. See Statutes in Force. UNIVERSITIES, empowered to hold copyrights in perpetuity, 73. statute giving perpetual copyright to, 647. UNLAWFUL PUBLICATIONS, • agreements concerning, 378. ■See Blasphemous Publications ; Immoral Productions ; Seditious Publications. UNLICENSED PRINTING. See Literary Property, History of, in England. UNPUBLISHED WORKS, common-law property in, 97-139. difference between and statutory, 100. nature and extent of, 101-106. in what productions, 101, 102. lost by publication in print, 101. absolute before publication, 102. personal and transferable by parol, 104. not lost by parting with manuscript, 105. limited assignment, 106. of foreigners, 106. violation of, 107-110. remedies for, 107. by publication, representation, exhibition, 107. public reading or delivery of lecture, 107. copying works of art, 108. exhibiting copies, 109. in what court redress sought, 110, 545. how affected by character of work, 110-115. originality, 110. literary merit. 111. works not innocent, 112-114. question of damages affected by character, 114. publication of. .See Exhibition; Performance; Publication; Reading, Public. owner of, may secure copyright, 238-242. but not unless author is entitled to copyright, 242. no statutory copyright in, 283, 612, 615. mode of transfer under statute, 319. effect of as.signment on author's right to renewal of copyright, 326- 331. See Renewal of Copykight. absolute assignment gives unlimited right to publish, 328. whether plaintiff entitled to forfeitures for unlicensed publication, and whether delivery ordered by equity, 549-552. property in unpublished dramas. See Playright. See Letters ; Manuscripts. 774 INDEX. USE OF COPYRIGHTED WORKS, ■what permitted. See Faik Uses. V. VALUE, engraving must have art, 168. how far, essential to copyright, 208-211. to be considered in determining piracy, 414. illustrations of material, 414 note 1, 525-527. injunction may be refused when slight, 523, 527. See LiTEBAKT Merit; Quantity. VENDOR. See Seller. VIOLATION, of agreement. See Specific Performance of Agreements. of copyright. See Piracy; Remedies in Equity; Remedies in Law. of playright. See Playright, Remedies for Violation of. VOLUMES, books in two or more, how copyright secured, 274. W. WARRANTY, of title to copyright, 342. WORKS OF ART. See Chromos; Designs; Drawings; Engrav- ings ; Models ; Paintings ; Photographs ; Sculpture ; Statuary. Y. YATES, J. arguments against literary property examined, 32-36. advocates at the bar the theory that copyright is a monopoly, 48. Cambridge : Press of John Wilson Ss Son. KF 299^ D78 Author Vol. Drone, Eaton Sylvester treatise on the law of property in intellectual etc. Title Copy Date Borrower's Name <«MIM||||i^