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 Duke University Libraries 
 
 Memorial to the 
 Conf Pam #661 
 

 3S/i:eiviori^.l 
 
 E^ HP Tu^ CONFEDERATE STATEIJ. 
 
 MOBII.I.. I h Onion \i, 186f5. 
 
 \» >.. .1. llvi.i.ij, •.. i.-v>...... ;,.^ author, nnd S, H. G(et7:kl, of 
 
 viTi.niu.., i!i(v publisher, of a work fsntiiled •* llardee'a Rifle ii^ud 
 Inirvntry tncfics,'" whi^h has boon revisoii and iuipiovetl by the author 
 ;tt the ^'^nimonr(»inpnt: >»f ihf. present Mar, humbly inemorinlize iho 
 < Mifrresp of ihe Conf^derar.e States of Amerioa, lo grant a special 
 I pv-rigut therefor. ;md ass^i^n an reasons the io{]n\> in<- • 
 
 \n ISOA, the \\ork Avas completed for publicai<! 
 .' tii?i,, II)iKd(;>e, nnd tlie comract ?>h- priiuiijg/ i;itlv.',:.,r;iii;.ui ,- asia pab- 
 .^-hing \va^ Tuade with LippincoM. (ivambo a: CJo., oi' i^biladelphia, 
 ibe Oorigre^P <>r the United S:atop; making- an Jiippr-opi-iatiou to assists 
 in its p'-.bhv-r. h on conditiou that ibc publishtT^ should faraishthc) 
 *' ■'^'' United Stater- eij^^hteen thou||ivi copies,, at. on • 
 
 M<iii '. ; : • 1' . . iiis condition was assented to arid complied witl. 
 Tiie auihor''* t'iiiti lit with the publishers was that they should p.' <' 
 
 him '■ (•< Mi'. ; per copy, for eacli copy sold over and above tb; 
 
 rJovern'iifmt psi li: .^. which v.'.<": :)rr.-rT:iri'>! in'rea^ed t'- ■■ 
 
 ived under it. his share ot 
 
 ; ed t(; bir. 
 
 'V>v. that the work wn^ a 
 ■ , 't.-i'i iiiii f III ili<- tiiiiiiM) 1 111 . 
 
 'II: !i il llLUli ,;lll . 
 
 ill 1 ..-nil' .1 -^ lar^fj 
 
has no lot or share. He has to look to his own Government ami 
 people for compensation for his mental labor, and protection from an 
 •nfrinsemen't of it. His remittances under his contract with the 
 I'hiladelphia p'ublishers, ceased with the formation of the Confederate 
 iJovernment, and he has no idea thej will ever again acknowledge the 
 contract which existed before the war, even if the <Jovernment of thr 
 I'nited States has oveilooked the author's interest in the contract with 
 them (the publishers) in their efforts to confiscate property of Con- 
 federate citi/.ens. 
 
 At the beginning of the war the author revised his original work, 
 as published in Philadelphia ; made many material iterations and im- 
 provements therein, thouth leaving it substantially tiie same, and then 
 made a contract with S. II. Ga't/el, of Mobile, ibr the publication of 
 the work for the use of the army and people of the Confederate States, 
 l)y which contract, the said Goetzel was to take out a copy-right for 
 the same, in his own name, incur all the expense of publication, and 
 pay to the said Ilardec twenty cents per copy, for each copy sold. 
 
 The copy-right of said work was duly entered and secured by said 
 Ga'tzel in the form and manner required by existing laws on that 
 subjec^, in the clerk's office of the district court of the Confederate 
 States, for the district of Alabama, and since tlien nine editions of 
 the same has been published ; and the said Goetzel, at all times, kept 
 on hand a sufficient number of copies to meet all reasonable needs and 
 demands, of the army and people of the Confederate States. Although 
 there had been no copy-right secured in the United States, as we had 
 formed a separate Government, and as the people of the United States 
 had become a foreign people, and their Government a foreign Govern- 
 ment, your memorialists considered that a copy-right, entered and 
 secured under the Confederate Government, was a valid right, and 
 •would be protected by the Confederate courts, especially as the 
 author had lost all his rights for compensation, under his contract 
 with a citizen of the United States. 
 
 Notwithstanding the copy-right of your memorialist, various persons 
 in the Confederate States have published pivate editions of said 
 ■work, and have been selling them in various parts of the country to 
 the detriment of the rights and interests of the author and publisher 
 thereof. 
 
 The republications have generally been of the old Lijipiupott edi- 
 tion, and not containing the alterations, changes and improvements 
 made by the genuine, <>r copy-right edition, which are important and 
 material, and which has created some confusion in army instruciion 
 because of different versions of the same work, being in use. 
 
 Your memorialist caused a bill to be filed in the district court of 
 Alabama against Francis Titcomb, a bookseller in ■Mobile, wlio kept 
 on sale a pivate edition of said work, published in liichmond, the 
 same being a copy of the original Lippincott edition, for an infringe- 
 went of the copy-right of your memorialist, on which a prpvisional 
 injunction issued. 
 
 The same proceedings were taken against one Randolph, of Ricli- 
 juond, and several booksellers in Memphis before the fall of that place. 
 
The cause in Mobile was tried in the Confederate States district 
 court in July, 1863, on hill, answer and testimony, and after elaborate 
 argument by counsel, the judge of said court delivered an opinion 
 adverse to your memorialists copy-right, on the ground that the suul 
 work was published in the United States in t8od, without a copy- 
 right, at a time the two countries were under one Government. Th • 
 complainants contended that was a foreign publication, and as it wa^ 
 shown that they had promptly taken out a copy-right in their own 
 country, imd undei'-their own laws, the original publication ought nof 
 to prejudice them in their present right, and especially, as the author 
 had provided witl#;he original publishers reasonable coraj)ensation for 
 himself, and as the work lind not been re-publisjied in the United 
 States before the war, and no probability existed of it ever being 
 re-published by any other person, such contract secured for the author 
 all the benelits of a copy- right. 
 
 By reason of the war, all the rights and benefits under that contract 
 have been lost, and your memorialist (Hardee) could not now, ami 
 he does not, believe he ever will be permitted to enforcfe'that contract 
 in the United States. 
 
 As soon as he found himself in this condition in relation to hi^ 
 work, he promptly set about securing his rights And interests in his 
 book in the Confederate States, by securing the copy-right in the 
 name of the publisher, and prosecuting, under the law, those who 
 infringed it. These and other arguments were urged at the bar in 
 support of the copy- right, but the learned judge thought that the 
 technical ground of former publication, which made the work puhlici 
 Juris to tlie people of the Confederate States as well as the people of 
 the United States was against us, and he would have to condemn the 
 copy-right. 
 
 Of course the other cases will have to be dismissed. 
 
 Your memorialist therefore respectfully apply to your honorable 
 bodies for the passage of an act granting them a special copy-right in 
 said work, yours being the only forum they can now apply to for pro- 
 tection of their rights and interest as author and publisher of tlie 
 same. 
 
 A copy of the opinion of the Hon. Wm. G. Jouesis hereto attached, 
 and made a part of this memorial. 
 
 IMPORTANT DECISION ON COPY-RIGHT. 
 
 At the late term of the Confederate district court for Mobile, a 
 case involving "copy-right" was heard by Judge Jones. The plain- 
 tiff was S. H. Goetzel, and the defendant, F. Titcomb, botii booksellers 
 of this city. The former grounded his action on a copy-right 
 obtained by him to " Hardee's Tactics," of which he was the pub- 
 lisher. The defendant had, in the course of his business, sold copies 
 of the same work published by J. W. Randolph, in Richmond. For 
 this alleged invasiou of his copy-right, Mr. Goetzel filed hl'i bill in 
 
 pr'.1225 
 
tlie district court somu iuunth3 ago, and obtained an iuj auction 
 against Titcoub, rcstraiuiu^ Liiu IVoiu selling Uaudalph's oditiou. 
 The case was heard upon ill and au^^wfr of the pirtie<, aud proofs ol" 
 \¥itnesses, and was argiu-d for the pi HUitif by Messrs. Overall aud U. 
 H. Smith, and by Mr. W. C. Eastou i" r Titcomb. The decision ol 
 the court is against tli..' validity of tlio copy-right of GLftzel in the 
 work, aud his proceeding was dismissed. The decree of Judge Jones, 
 copied below, sets forth the grounds of his decision fully : 
 
 C. !:>. DisrkiLT Culkt at MouiLt, ) 
 July, 1803. S 
 
 S. 11. GOETZEL, ET. AL. j ^ 
 
 VS. in Chancery. 
 
 F. TiTCO.MB, ET AL. > 
 
 There is no doubt or dispute a*; to the material facts in this case, 
 audits decision depen<ls entirely on a (juestion of law. Whilst Ge^u. 
 Hardee was an olficer in the army of the United iStates, and before 
 the dissolution of the Union, he prepared, under the direction of the 
 then Secretary of War of the United States, a system of infantry tac- 
 tics, since generally known as Hardee's Tactics. The work being ap- 
 proved of by the President, it was published in Philadelphia, in 1855, 
 by Lippincott, Grarabo k Co The Congress of the United States 
 made an appropriation of ;ji;2(),()Uil for stereotyping the work and of 
 ii;i 8,000 for the purchase of 18,00(1 copies of it for the Government. 
 The publication was made with the knowledge and consent of General 
 (then Lieutenant Colonel,) Hardee, and was superintended by him. 
 No copyright of this publication was then claimed or taken out. 
 After the dissolution of the Union and the organization of the Gov- 
 ernment of the Confederate States and the coinmeneeiaent of this 
 present war, there sprang up a greatdemand for this work. In 18(il, 
 General Hardee made some slight alterations in the work, ai.d under 
 an arrangement between him and S. PI. Goetzel Si, Co., an edition of 
 the work, with the alterations, was published by Geetzel cNc Co , in 
 1801, in Mobile. Ga-tzel & Co. duly entered the title of the work in 
 the clerk's office of the Confederate States district court at Mobile, 
 and took out a copy Wright, In the same year (1801,) J. W. Ran- 
 dolph published in Richmond. Va., an edition of Hardee's tactics from 
 and corresponding with the Philadelphia edition of 1855. 
 
 The defendant, Titcomb, a bookseller in Mobile, sold here some copies 
 of Randolph's edition after Gcetzel & Co. had taken out their copy- 
 right, and the bill in this case is filed to prevent Titcomb from sell- 
 ing such copies. 
 
 I do not think it necessary to decide in this case several of the 
 fjnof'ions which were raised and somewhat discussed at the bar. The 
 ^ a.ri question ii^ the case is the right of Gen, Hardee or of Goetzel 
 4V Co, to take out a copyright for this work in 1801, It is admitted that 
 tiiO Philadelphia edition of 1855, and Randolph's edition of 1861, are 
 precisely alike, and substantially the same as Goctzel's edition of 
 • 361, the only difierence being some alterations made by the author 
 u 1861, and embraced in Goetzel's edition. They are all substan- 
 tially the same. 
 
• 
 
 It is quite immaterial, I think, in thi.s case, whether the Philidel- 
 pliia edi:ion of 1855 i:^ to ha i<*gar(Jed a Government work or the pri- 
 vate wopk of Gen, Ilardae Wh-ther the one or the other, it was 
 undoubtedly published t>> the world with General Hardee's knowledge 
 and consent, and viili')uc hi? then claiming or taking out a copyright 
 for it. This was, in 1113^ upinion, a dedication of the work to the public. 
 It became then what the law books term publici juris, and any person 
 in the Tlnited States then embracing .vhat is now the Confederate 
 States, had a right to publish and s-ell as many editions and co[>ies of 
 it as he pleased. I do not think the :?ece3sion of some of the States 
 and the formation of the Governviieut of the Confederate States, di- 
 minished or aftected the rights of the public or increased those of 
 Gen. Hardee iti this repect. Cur statute, which is the same as the old 
 Udited States statute, does not permit a copyright to be taken out for 
 a work that has been previously published. It can only be taken out 
 for works not previously published. It is insisted that a previous 
 publication in a foreign country does not preclude an author from 
 getting a copyright for the same work in his own country, if applied 
 for within a reasonable time. That is a question which seems never 
 to have been positively or definitely decided in the English or Ameri- 
 can courts ; nor do I think it necessary to decide it in this case. The 
 publication of the Philad dphia edition of 1855 was made when this 
 country was a part of the United States. It w as then a publication in 
 this country, and it was as much to the public in Virginia or Ala- 
 bama as the public of Pennsylvania. It is not like a publicatioif in a 
 foreign country. It was no doubt a meritorious act in the gallant 
 general and enteprising publisher to prepare and publish this edition ; 
 but I am fully satisfied they had no legal right to take out a copy- 
 right for it. The bill must, therefore, be dismissed at the cost of the 
 complainants. 
 
 Wm. G. Jones, Judge. 
 
 Memphis, Tenn., July 6, 1861. 
 
 S. H. Gcetzel: 
 
 I conipliame with your letter, I also confirm our verbal understand- 
 ing to *hat eflect, that you and your partner, under the style and firm 
 of S. H. Guetzel k Co., are, and shall be hereafter, the only author- 
 ized publishers cf my " Infantry and llifie Tactics," provided you 
 pay me twenty cents, say twenty cents of each copy you sell, and to 
 render account three times a year, say at the end of August, Decem- 
 ber and April, punctualh'. 
 
 (Signed,) W. J. HARDEE. 
 
 Wm. J. Hardee, for sufficient considerations moving him thereto, 
 by these presents authorizes and empowers S. p. Goetzel, of Mobile, 
 
Alabama, to institute :ind conduct, in auy of the courts of the Con- 
 federate States of Aineiioa, in his name, .such suits at law ahd in equi- 
 ty, and to do such other acts as may be neces«ar\'Mjr proper to vindi- 
 cate and ])rotect a^^ainst iufi ingeiuLiit the copyrij;ht of t>. H G<ctzcl, 
 in the book of siid Hardee, entitled " Ritie and Infantry Tactics," 
 granted by the Confederate States of America. The said Goetzel, 
 agreeing to bear expenses and liabilities of such suits and acts, and 
 to exonerate and protect him against the same. 
 
 Witness my liand, this tith day of -'uly, A. I.'., l.S(j|, Memphis. 
 Tennessee. 
 
 (Signed,) W. J. HARDEE. 
 
 NOTICE. 
 
 So many editions of n y " INFANTRY AN D RIFLE TACTICS " 
 having lately been published, I think it due to both the public and 
 publishers to state : 
 
 Thnt the COPYRI'UIT EDITION of my INFANTRY and RIFLE 
 TACTICS, published by S. II. G<ETZEL k CO., in MoniLE, is the 
 only COMPLETE, CORRECT and REVISED E DITTO Y, and 
 THIS EDITION o>LV coutaius the improvernents and changes which I have 
 recei^fly made, adapting the manual to the use of the arms generally 
 in the hands of the troops in the Confederate States. 
 
 W. J. HARDEE, 
 Colonel Confederate States Army. 
 
 Ft)rt Morgan, June 18, 1861. 
 
 The above notice is printed iu the front of each volume of the copy- 
 right edition. 
 
pH8.5