Skip to main content

Full text of "A treatise on the law of property in intellectual productions in Great Britain and the United States. Embracing copyright in works of literature and art, and playright in dramatic and musical compositions"

See other formats 


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  .  . 
</.  Hotten  .    .    . 

Bramwell  v.  Halcomb    .    . 


Brandreth  v.  Lance 
Brook  V.  Wentworth 
Brooke  v.  Chitty   . 

V.  Clarke  . 

V.  Milliken 
Brooks  V.  Cock 


When 
Decided. 


Brown  v.  Cooke 


Burnett  v.  Chetwood .    . 
Butterworth  v.  Bobinson 


1851 
1849 
1848 
1876 

1863 
1862 

1875 
1867 

1869 
1859 
1872 

1836 

1839 
1798 
1831 

1818' 

1789 
1835 

1846 


1720 
1801 


Where  Reported. 


6  Exch.  Eep.  580   ...     . 

15  Jur.  540. 

20  L.  J.  N.  s.  Excli.  354. 

4  Exch.  Eep.  145 ;  13  Jur.  918 
18  L.  J.  N.  s.  Exch.  378. 

2  Monthly  Law  Eep.  681. 
5C.B.476 

5  Dow.  &  L.  549. 

17  L.  J.  N.  s.  C.  P.  137. 

5  Ch.  D.  267 

46  L.  J.  N.  s.  Ch.  305. 

35  L.  T.  N.  s.  541,  745. 

25  W.  E.  287. 

1  Hem.  &  M.  597    .    .     .     . 

9  Jur.  N.  s.  1282. 

33  L.  J.  N.  s.  Ch.  38. 

9  L.  T.  N.  s.  709. 

3  New  Rep.  32;  12  W.  E.  101. 
5Blatchf.  87 


Where  Cited  in  this 
Work. 


ISBlatchf.  47    .... 
4  Am.  Law  Bee.  726. 
8  Chic.  Leg.  News,  257. 
22  Int.  Eev.  Eec.  150. 

2  Biss.  34 

7  Am.  Law  Reg.  n.  s.  539. 


21  L.  T.  N.  s.  323   .     .     .    . 
39  L.  J.  N.  8.  Ch.  57. 

27  Beav.  53 

28  L.  J.  N.  s.  Ch.  667. 
Law  Rep.  8  Exch.  1   .     .    . 
6  Alb.  Law  Jour.  415. 

42  L.  J.  N.  8.  Exch.  28. 

27  L.  T.  N.  8.  460. 

21  W.  E.  126. 

3  My.  &  Cr.  737      .    .     .     . 

8  Paige  (N.  Y.),  24     .     .    . 
3  Anstr.  881 

2  Coop,  {temp,  Cottenham) 
216 

1  Barn.  &  Aid.  396      ... 

6  Fetersd.  Abr.  564. 

3T.  R.  509' 

3  Ad.  &  El.  138 

1  Har.  &  W.  129. 

4  L.  J.  N.  8.  K.  B.  144. 
4  Nev.  &  M.  652. 

11  Jur.  77 

16  L.  J.  N.  8.  Ch.  140. 

4  West.  Law  Jour.  402. 

2  Meriv.  441,442    .    .    .    . 

5  Ves.  709 


43,  222,  230. 
221,  222,  292,  293. 
470,  474. 


220,  286,  288,  292, 
295,  555,  675,  604. 


220,  229,  286,  292, 
295,  555,  575,  604. 


119, 199, 
257,  258, 
508,  511, 
547,  654, 
597,  612, 
617,  624, 
107,  124, 
284,  285, 
646,  647, 
616,  617, 
102,  121, 
234,  267, 
505,  508, 
577,  579, 
613,  615, 
536. 

380,  535. 


202,  253, 
285,  505, 

612,  545, 
555,  573, 

613,  615, 
626. 

126,  266, 
501,  545, 

614,  616, 
626. 

232,  233, 
285,  296, 
612,  555, 
585,  612, 
617,  634. 


144,  178,  281,  387, 
401,  405,  410,  412, 
414,  415,  445,  481, 
632. 

412,  415,  496,  497, 
517,  518,  524,  632. 
640. 
378. 

874,  541. 
261,  326. 

472,  484,  486. 
281. 


171,  246. 


189, 198,  446,  447. 
159,  436. 


XXXVIH 


TABLE   OP   CASES. 


Names  of  Cases. 


When 
Decided, 


Where  Reported. 


Where  Cited  in  this 
Work. 


Buxton  V.  James    . 
Byron  v.  Johnston 

Cadell  V.  Robertson 

V.  Stewart  . 


Calvin's  Case    .     . 
Campbell  o.  Scott . 


Carey  v.  Collier 
Carillo  v.  Shook 

Carnan  v.  Bo\yle8  . 
Carter  v.  Bailey     . 


Gary  v.  Fadeu  . 
V.  Kearsley 
V.  Longman 


Cassell  V.  StifC .     .     . 
Centennial    Catalogue 
V.  Porter   .... 


Co, 


Chappell  V.  Davidson,  in  eq. 


in  law 


V.  Purday    .     .     . 

1841 

K.  Purday    .     .     . 

1845 

V.  Sheard    .    .    . 

1855 

Chase  v.  Sanborn  .... 

1874 

Chatterton  v.  Cave    .    .    . 

1875 

Clark  V.  Bell 


1851 
1816 

1804 


1811 
1804 

1609 
1842 


1839 
1876 

1786 
1874 

1799 
1803 
1801 

1856 

1875 

1855 
1856 

1856 


1876 


1878 


1804 


5  De  G.  &  Sm.  80 

16  Jur.  15. 

2  Meriv.  29  .  . 


10  Mor.  Diet,  of  Dec.  Lit. 

Prop.  App.  p.  16   .  .  . 

House  of  Lords  Appeal. 
5  Pat.  App.  Cas.  493  .  .  . 

10  Mor.  Diet,  of  Deo.  Lit. 
Prop.  App.  p.  13  .  .  . 

7  Coke,  1 

11  Sim.  31 ;  6  Jur.  186    .     . 
11  L.  J.  N.  a.  Ch.  166. 

56  Niles  Reg.  262   ...    . 
22  Int.  Rev.  Reo.  152 .     .     . 

8  Chic.  Leg.  News,  258. 
2Bro.  C.  C.  80;  1  Cox,  283 
64  Me.  458 ;  18  Am.  Rep.  273 

5  Ves.  24 

4  Esp.  168 

1  East,  358 ;  3  Esp.  273  .     . 

6  Petersd.  Abr.  539,  552. 

2  Kay  &  J.  279 


2  Weekly  Notes  of  Cases,  601 

3  Cent.  Law  Jour.  460. 

2  Kay  &  J.  123 

On  Appeal. 

8  De  G.  M.  &  G.  1. 

18C.B.194 

2  Jur.  N.  s.  544. 

25  L.  J.  N.  s.  C.  P.  225. 

4  Y.  &  C.  Exch.  485  ..  . 
10  L.  J.  N.  s.  Exch.  Eq.  50. 
14  Mees.  &  W.  303      ... 

9  Jur.  496. 

14  L.  J.  N.  s.  Exch.  258. 

2  Kay  &  J.  117 

1  Jur.  N.  s.  996. 

8  W.  R.  646. 

6  U.  S.  Pat.  Off.  Gaz.  932   . 

Law  Rep.  10  C.  P.  572    .     . 
44  L.  J.  ST.  s.  C.  P.  386. 
33  L.  T.  N.  s.  255. 
28  W.  R.  657. 

Court  of  Appeal. 
2C.  P.  D.  42      .     .     .     ... 

46  L.  J.  N.  8.  C.  L.  97. 
35  L.  T.  N.  8.  587. 

25  W.  R.  102. 

House  of  Lords. 
8  App.  Cas.  483 

47  L.  J.  N.  a.  C.  L.  545. 
38  L.  T.  N.  8.  397. 

26  W.  R.  498. 

10  Mor.  Diet,  of  Deo.  Lit. 
Prop.  App.  p.  9  .    .    .    . 


221,  222,  293,  506. 
198,  376,  539. 

28,  43, 102. 

28, 102,  278,  474. 

128. 

106. 

887,  390,  401,  405, 

412,415,497,506, 

522,  523,  524,  625. 

232,  233. 

266,  284,  285,  616. 

327. 

101,  237,  324,  381, 

546. 

146,  148,  153. 

249,  402,  405. 

144,  146,  148,  149, 

153,  249,  417. 

216,  217,  280,  283. 

266. 

526,  535,  540. 

535. 


176,  221,  292,  304, 

600. 

101,  176,  221,  292, 

318. 

504,  505,  507,  508, 
536. 

159,  160,  162,  264, 
498,  613. 

412,  414,  596,  597, 
682,  633,  634. 


412,  414,  597,  632, 
633,  684. 


412,  414,  415,  522, 
597,  632,  633,  634. 


476. 


TABLE   OP   CASES. 


XXXIX 


Names  of  Oases. 

When 
Becided. 

Where  Reported. 

Where  Cited  in  this 
Work. 

Clark  V.  Bishop     .... 

1872 

26  L.  T.  N.  s.  908  .    .    .    . 

280,  286,  466,  476, 
555,  692,  603,  606, 
629. 

V.  Freeman  .... 

1848 

11  Bear.  112;  12  Jur.  149  . 
17  L.  J.  N.  s.  Ch.  142. 

540. 

Clarke  I).  Price 

1819 

2  Wils.  C.  C.  157    ...    . 

542. 

Clay  V.  Yates 

1866 

1  Hurt.  &  N.  73 

2  Jur.  N.  8.  908. 

25  L.  J.  N.  8.  Exch.  237. 

378,  379,  382. 

Clayton  v.  Stone    .... 

1828 

2  Paine,  382 

142,  143,  169,  210, 

263. 

401,  535. 

Clement  v.  Maddick  .    .     . 

1869 

IGiff.  98;  5Jur.  N.  s.  592  . 

dementi  v.  Gelding  .     .    . 

1809 

2  Camp.  25;  11  East,  244   . 

142,  176. 

«.  Walker   .     .     . 

1824 

2  Barn.  &  Cr.  861  ...     . 
4  Dow.  &  Ky.  598. 
2  L.  J.  K.  B.  176. 

292,  297, 304. 

Cobbett  V.  "Woodward    .     . 

1872 

Law  Rep.  14  Eq.  407  .     .    . 

144, 165,  178,  212, 

41  L.  J.  N.  8.  Ch.  656. 

281,  412,  414,  525, 

27  L.  T.  N.  s.  650. 

526,  527. 

20  W.  R.  963. 

Cocks  V.  Purday   .... 

1848 

5  C.  B.  860 ;  12  Jur.  677      . 

221,  238,  241, 292, 

17  L.  J.  N.  s.  C.  P.  273. 

293,  313,  316,  323, 
336. 

Coffeen  v.  Brunton    .     .     . 

1849 

4  McLean,  516 

7  West.  Law  Jour.  59. 

144,  178,  211. 

Colbum  V.  Duncombe    .     . 

1838 

9  Sim.  151 

239,  304,  322,  323, 
500. 

V.  Simms .... 

1843 

2  Hare,  543  ;  7  Jur.  1104     . 

101,  278,  284,  342, 

12  L.  J.  N.  8.  Ch.  388. 

374,  375,  403,  471, 
474,  522,  529,  531, 
532,  641,  647,  550, 
551. 

Coleman  v.  Wathen  .     .     . 

1793 

6T.  R.  245 

119,  286,  476,  655, 
556,  567. 

Collender  v.  Griffith  .     .     . 

1873 

11  Blatchf.  212 

3  U.  S.  Pat.  Off.  Gaz.  689. 

168, 178, 211. 

CoUette  V.  Goode       .    .    . 

1878 

7  Ch.  D.  842 

47  L.  J.  N,  8.  Ch.  370. 

279. 

Colnaghi  v.  Ward  .... 

1842 

6  Jur.  969 

12  L.  J.  N.  8.  Q.  B.  1. 

281. 

Commonwealth  v.  Desilver 

1858 

3  Phila.  (Pa.)  31    ...    . 

255. 

V.  Kneeland 

1838 

20  Pick,  (37  Mass.)  206  .    . 

194. 

Constable  v.  Brewster    .    . 

1824 

3  Sc.  Sess.  Cas.  214    ..     . 

380,  535. 

Cooper  V.  Gunn     .... 

1844 

4B.  Mon.  (Ky.)694   .    .    . 

326. 

Correspondent   Newspaper 

Co.  V.  Saunders  .... 

1866 

12  L.  T.  N.  8.  640    .    .    .    . 

145,  279,  280,  504, 

11  Jur.  N.  8.  540. 

537. 

13  W.  R.  804. 

Cowan  V.  Milbourn    .    .    . 

1867 

Law  Rep.  2  Exch.  230    .     . 
36  L.  J.  N.  8.  Exch.  124. 
16  L.  T.  N.  8.  290. 
15  W.  R.  750. 

192. 

Cowen  V.  Banks    .... 

1862 

24How.  Pr.  72 

169,  238,  331,  333. 

Cox  V.  Cox 

1863 

11  Hare,  118 ;  1  Eq.  Rep.  94 

376,  376,  378. 

V.  Land  &  Water  Jour- 

1 W.  R.  345. 

nal  Co 

1869 

Law  Rep.  9  Eq.  324    ..     . 

153,  169,  172,  205, 

89  L.  J.  N.  8.  Ch.  152. 

280,  404,  417,  419, 

, 

21  L.  T.  N.  8.  548. 

421,  429,  519,  520, 

18  W.  R.  206. 

534. 

Crookes  v.  Petter  .... 

1860 

3  L.  T.  N.  8.  225     .... 
6  Jur.  N.  8. 1131. 

380,  543. 

xl 


TABLE   OP   CASES. 


Names  of  Cases. 


Crowe  V.  Aiken     .    .    . 
Cumberland  v.  Copeland 


When 
Decided- 


V.  Planch^  . 


Curry,  In  re . 


Daboll's  Case    .     .    . 
D'Almaine  v.  Boosey 


Daly  V.  Palmer . 


1870 


1861 


1862 


1834 


1848 


Where  Reported. 


Where  Cited  in  this 
Work. 


2  Biss.  208     ...    . 
4  Am.  Law  Rer.  450. 
7  Hurl.  &  N.  118     .     . 
7  Jur.  N.  s.  686. 

9  W.  E.  752. 

On  Appeal. 
1  Hurl.  &  C.  194     .     . 

9  Jur.  N.  8.  253. 

81  L.  J.  N.  s.  Exch.  353. 

7  L.  T.  N.  s.  334. 

10  W.  E.  581. 

1  Ad.  &  El.  580  .     .     .    , 

3  L.  J.  N.  s.  K.  B.  194. 

8  Nev.  &  M.  537. 

12  Ir.  Eq.  382    ...     . 


1822     1  Op.  Atty.-Gen.  532  . 
1835     1  Y.  &  C.  Exch.  288 

4  L.  J.  N.  8.  Exch.  Eq.  21. 


V.  Smith 


Davidson  v.  Bohn  .  .  . 

De  Berenger  v.  Wheble . 

Delf  V.  Delamotte .  .  . 

Delondre  v.  Shaw .  .  . 

Denis  v.  Leclerc    .  .  . 

De  Pinna  v.  Polhill  .  . 

Dickens  v.  Lee  .    .  .  . 


Dilly  V.  Doig  .  .  . 
Dodsley  v.  Kinnersley 
Donaldson  v.  Becket . 


Don  Juan  Case . 
Drury  v.  Ewing 


Du  Bost  V.  Beresford .     .     . 

Duke  of  Queensbury  w.Sheb- 
beare.  See  Queensbury, 
Duke  of,  V.  Shebbeare. 

Dwight  V.  Appleton  .     .     . 


Emerson  v,  Davies 


Ewer  V.  Coxe 


1868 


1874 

1848 

1819 
1867 


1828 
1811 
1837 
1844 

1794 
1761 
1774 


1823 
1862 


1810 


1840 


1846 


1824 


6  Blatchf  256    ....     , 
8  Am.  Law  Reg.  n.  s.  286. 
3  Am.  Law  Eev.  453. 
36  How.  Pr.  206. 
6  Jones  &  Sp.  (38  N.  Y.  Su- 
perior Ct.)  158  .     .     .     . 
6  C.  B.  456  ;  12  Jur.  922      . 
18  L.  J.  N.  s.  C.  P.  14. 

2  Stark.  648 

3  Jur.  N.  8.  933 

3  Kay  &  J.  581. 

2  Sim.  237 

1  Martin  (Orleans  T.),  297  . 

8  Car.  &  P.  78 

8  Jur.  183 

2  Ves.  486 

Amb.  403 

4  Burr.  2408 ;  2  Bro.  P.  C.  129 
17  Cobb.  Pari.  Hist.  953. 

6  Petersd.  Abr.  536. 

Jac.  474,  note 

1  Bond,  540 

2  Camp.  511 


1  N.  Y.  Leg.  Obs.  196 


3  Story,  768  ...     . 
8  Law  Eeporter,  270. 

4  West.  Law  Jour.  261. 

4  Wash.  0.  C.  487  .    . 


106,  121,  296,  559, 
560,  565,  573,  577. 
304,  310,  618. 


304,  617,  618. 

239,  331,  620,  622. 
322,  350,  351,  365. 


269. 

141,  144,  176,  221, 
238,  286,  336,  410, 
411,  435,  627,  555, 
594,  606,  632. 
408,  411,  412,  464, 
528,  531,  593,  594, 
628,6.32,634,635- 
637. 


374,  542. 
303,  304, 
311,  334. 
178,  206, 
238,  244, 
471,  634, 
221. 

128,  131, 
304. 

435,  436, 
531. 
523. 

435,  438. 
1,20,22, 
72,  101, 
547,  551. 
186. 

142,  143, 
406,  408, 
649. 
183. 


309,  310, 

481. 

247,  363, 
647. 

134. 

497,  616, 


37^3,67, 
116,  120, 


178,  210, 
409,  410, 


269,  271,  274,  491. 


153,  154, 156, 158, 
199,  203,  386,  408, 
409,  423,  449,  451, 
530. 
263. 


TABLE   OP   CASES. 


Xli 


Names  of  Cases. 

When 
Decided. 

Where  Reported. 

Where  Cited  in  this 
Work. 

Eyre  v.  Carnan 

1781 

Bao.  Abr.  Prerog.  F.  5    .    . 
6  Petersd.  Abr.  543. 

65. 

1/.  Higbee 

1861 

22How.  Pr.  (N.  Y.)  198.    . 
35  Barb.  S.  C.  (N.  Y.)  503. 

128,  136. 

V.  Walker      .... 

1735 

Cited  4  Burr.  2325 .... 
2  Bro.  P.  C.  138. 

26,  71,  116. 

Farmer  v.  Calvert  Lithogr. 

1872 

5  Am.  L.  T.  R.  168     ..    . 

146,  158,  156,  205, 

Engr.  &  Map  Pub.  Co.     . 

7  Am.  Law  Eev.  365. 

264,  265,  269,  284, 

5  Chic.  Leg.  News,  1. 

410, 415,  417,  422, 
423,  445, 498,  517, 
524,  534. 

Fechter  v.  Montgomery  .    . 

1863 

38  Beav.  22 

374,  543. 

Ferrett  v.  Atwill    .... 

1846 

1  Blatchf,  151 

494. 

Flint  V.  Jones 

1875 

1  Weekly  Notes  of  Cases,  334 

517. 

Folsom  V.  Marsh    .... 

1841 

2  Story,  100 

125,  128,  129,  132, 
133,  137,  138,  158, 
164,  210,  236,  238, 
240,  387,  388,  391, 
402,  404,  412,  413, 
424,  434,  437,  488, 
51.3,  525,  527,  528, 
533,  545. 

Fores  v.  Johnes      .... 

1802 

4  Esp.  97 

186. 

Forrester  v.  Waller    .    .     . 

1741 

Cited  4  Burr.  2331  .    .     .    .  • 

101,  107. 

Foss,  Ex  parte 

1858 

aDeG.  &J.230     .... 

169. 

French  v.  ConoUy .... 

1875 

1  N.  Y.  Week.  Dig.  196  .    . 

562,  566,  572,  580, 
581,  597. 

V.  Maguire      .     .     . 

1878 

55How.  Pr.  (N.  Y.)471.    . 

581,  585,  624. 

FuUarlon  v.  M'Phun  .    .     . 

1850 

13  Sc.  Sess.  Cas.  2d  ser.  219  . 

325. 

Gahagan  v.  Cooper    .     .    . 

1811 

8  Camp.  Ill 

179. 

Gale  V.  Leckie 

1817 

2  Stark.  107 

183,  378,  379. 

Gambart  v.  Ball     .... 

1863 

14  C.  B.  N.  8.  306    .    .    .    . 

9  Jur.  N.  8.  10-59. 

32  L.  J.  N.  8.  C.  P.  166. 

8  L.  T.  N.  3  426. 

11  W.  K.  699. 

410,  445,  480. 

V.  Sumner    .     .     . 

1859 

5  Hurl.  &  N.  5 

5  Jur.  U.S.  1109. 

29  L.  J.  N.  8.  Exch.  98. 

IL.  T.N.  8.  12;  8W.R.27. 

403,  478,  480. 

Gee  V.  Pritchard    .... 

1818 

2  Swans.  402 

128,  129,  131,  133, 
137,  540. 

Goubaud  w.  Wallace  .    .     . 

1877 

86  L.  T.  N.  8.  704  .     .     .     . 
25  W.  R.  604. 

279. 

Gould  V.  Banks      .... 

1832 

8  Wend.  (N.  Y.)  562  .     .     . 

318,  322,  381,  546. 

Grace  v.  Newman  .... 

1875 

Law  Kep.  19  Eq.  623  .     .     . 

153,  167,  178,  202, 

44  L.  J.  N.  8.  Ch.  298. 

248,  249,  417,  425. 

23  W.R.517. 

Granard  v.  Dunkin    .     .     . 

1809 

1  Ball  &  B.  207 

128, 136. 

Graves  v.  Ashford .... 

1867 

LawRep.  2C.  P.410.     .     . 
86  L.  J.  K.  8.  C.  P.  139. 
16  L,  T.  N.  8.  98. 
16W.B.495. 

281,  410,  480,  481. 

V.  Beal.     See  Beal, 

Ex  parte. 

xlii 


TABLE   OP   CASES. 


Names  of  Cases. 

When 
Decided. 

Where  Reported. 

Where  Cited  in  this 
Work. 

Graves,  Ex  parte   .... 

1868 

Law  Rep.  3  Ch.  642    ..    . 
19  L.  T.  N.  s.  241. 
16  W.  R.  993. 

485. 

V.  Logan    .... 

1868 

7  Sc.  Sess.  Cas.  3a  ser.  204  . 

481,  487. 

V.  Mercer  .... 

1868 

16  W.  R.  790 

480. 

Graves's  Case 

1869 

Law  Rep.  4  Q.  B.  715     .     . 

179,  200,  278,  281, 

10  Best  &  S.  680. 

301,  317. 

39L.  J.  N.  s.  Q.  B.31. 

20  L.  T.  N.  s.  877. 

17  W.  R.  1018. 

Gray  v.  Russell     .... 

1839 

1  Story,  11 

146, 148,  153, 156, 

2  Law  Reporter,  294. 

158,  160.  203,  208, 
405,  412;  415,  418, 
423,  437,  524. 

Greene  v.  Bishop  .... 

1858 

1  Cliff.  186 

153,  156,  408,  412, 
423,  487,  505,  608, 
511,  513,  514,  515, 
523,  524,  528. 

Grierson  v.  Jackson   .    .    . 

1794 

Ridg.  L.  &  S.  304   .     .     .     . 

65. 

Grigsby  v.  Breckinridge     . 

1867 

2  Bush  (Ky.),  480  ...     . 

6,  128,   129,   131, 
134, 136. 
221,  292. 

Guichard  v.  Mori  .... 

1831 

9  L.  J.  Ch.  227 

Gurney  v.  Longman  .     .    . 

1807 

13  Ves.  493 

163. 

Gyles  V.  Wilcox    .... 

1740 

2  Atk.  141 

435,  438,  442,  445. 

Harrison  v.  Hogg  .... 

1794 

2  Ves.  323 

281. 

Harte  v.  De  Witt  .... 

1874 

1  Cent.  Law  Jour.  360     .    . 

198,  376,  635,  539. 

Hatton  V.  Kean      .... 

1859 

7  C.  B.  N.  s.  268     .... 

236,  249,  250,  262, 

6  Jur.  N.  8.  226. 

596,  600,  624. 

29  L.  J.  N.  s.  C.  P.  20. 

IL.  T.N.  s.  10;  8  W.  R.  7. 

Hazlitt  V.  Templeman     .     . 

1866 

13  L.  T.  N.  B.  593  .     .    .     . 

249,  261,  278,  315, 
838. 

Hedderwick  v.  GriflBn     .    . 

1841 

3  Sc.  Sess.  Cas.  2d  ser.  383 

146,  147, 156,  202, 
212. 

Heine  v.  Appleton      .    .    . 

1857 

4  Blatchf.  125 

256,  291,  501,  502. 

Henderson  tj.  Maxwell    .    ■ 

1876 
1877 

4  Ch.  D.  163 ;  25  W.  R.  66  . 

5  Ch.  D.  892 

46  L.  J.  N.  s.  Ch.  891. 

25  W.  B.  455. 

280. 
280. 

Hereford,  Bishop  of,  v.  Griffin 

1848 

16  Sim.  190;  12  Jur.  255    . 

172,  244,  257,  260, 

17  L.  J.  N.  8.  Ch.  210. 

379. 

Hime  v.  Dale 

1803 

2  Camp.  27,  note  b      .    .    . 
11  East,  244,  note. 
6  Petersd.  Abr.  638. 

141,  182,  640. 

Hinton  v.  Donaldson  .    .     . 

1773 

lOMor.  Diet,  of  Dec.  8307  . 

28, 102. 

Hodges  V.  Welsh   .... 

1840 

2  Ir.  Eq.  266 

159,  304,  500. 

Hogg  V.  Kirby 

1803 

8  Ves.  216 

171,  201,  380,  496, 
497,  526,  535,  539, 
640. 

V.  Maxwell.   See  Max- 

well V.  Hogg. 

V.  Scott 

1874 

Law  Rep.  18  Eq.  444 .     .     . 

153,  167,  202,  279, 

43  L.  J.  N.  8.  Ch.  705. 

894,  396,  412,  417, 

31  L.  T.  N.  s.  163. 

419,  421,  476,  477, 

22  W.  R.  640. 

603,  508,  509,  510 
528,  631. 

TABLE   OF   CASES. 


xliii 


Names  of  Cases. 

When 
Decided. 

Where  Reported. 

Where  Cited  in  this 
Work. 

Hotten  V.  Arthur    .... 

1863 

1  Hem.  &  M  603    .    .    .    . 

163,  167,  391,  392, 

31  L.  J.  N.  s.  Ch.  771. 

894,  395,  400,  431, 

9  L.  T.  N.  s.  199. 

515,  581. 

2  New  Rep.  485. 

11  W.  R.  934. 

Howard  v.  Gunn    .... 

1863 

32Beav.  462 

128,  132. 

Howitt  V.  HaU 

1862 

6  L.  T.  N.  s.  348      .... 

323,  327,  389,  368, 

10  W.  R.  381. 

878. 

Hoyt  V.  Mackenzie     .    .    . 

1848 

3Barb.  Ch.  (N.  Y.)  820.     . 
6  N.  Y.  Leg.  Obs.  345. 
3  West.  Law  Jour.  101. 

128,  183. 

Ingrain  v.  Stiff 

1859 

5  Jur.  N.  s.  947 

535. 

Isaacs  V.  Daly 

1874 

7  Jones  &  Sp.  (39  N.  Y.  Su- 

perior Ct.)  511  .     .    .    . 

145,  536,  545. 

6  Leg.  Gaz.  175. 

1  Cent.  Law  Jour.  141. 

Jarrold  v.  Heywood   .     .    . 

1870 

18  W.  R.  279 

394,  896,  412,  417, 
477,  523. 

V.  Houlston    .     .    . 

1857 

3  Kay  &  J.  708 

153,  156,  201,  202, 

8  Jur.  N.  s.  1051. 

394,  400,  408,  408, 
412,  417,  428,  481, 
497,  513,  515,  517, 
528,  531. 

Jefferys  v.  Baldwin  .    .    . 

1758 

Amb.  164 

249. 

V.  Boosey       {see 

Boosey  v.  Jef- 

ferys)   .     .     . 

1854 

4  H.  L.  C.  815 

5,  8,  85, 42,  43, 49, 

3  Com.  L.  R.  625. 

68,86,95,101,102, 

1  Jur.  N.  s.  615. 

108,  106,  176,  208, 

24  L.  J.  N.  s.  Exch.  81. 

223,  224,  225,  227, 
229,  230,  238,  239, 
241,  283,  292,  293, 
297,  303,  304,  308, 
307,  309,  310,  313, 
335,  336. 

Jeffreys  v.  Kyle  {see  Kyle 

V.  Jeffreys)     . 

1856 

9  Sc.  Sess.  Cas.  2d  ser.  906 

278,  .300,  311,  313, 
314,  315,  316,  823, 

Johnson,  In  re 

1866 

15  L.  T.  If.  8.  163   .     .    .     . 
15  W.  R.  160. 

485. 

i>.  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  </.  Toland,  6  West.  Law 


144       THE  LAW  OF  COPYRIGHT  AND  PLATRIGHT. 

• 

a  bottle,  and  a  scoring-sheet  or  "  tablet,"  ^  used  in  the  game  of 
cricket,  have  been  held  not  to  be  books  within  the  law. 

While,  then,  the  legislature  has  passed  laws  for  the  protection 
of  literary  property  in  "  books,"  without  specifying  more  defi- 
nitely the  kinds  of  compositions  intended  to  be  included,  the 
courts  have  construed  those  laws  so  as  to  embrace  within  their 
protection  the  entire  field  of  honest  literary  labor.  Hence,  the 
literary  productions  in  which  valid  copyright  will  subsist  are 
almost,  if  not  quite,'  as  unlimited  in  variety  as  are  the  produc- 
tions themselves.  Books  entitled  to  the  protection  of  copyright 
embrace  the  profoundest  work  on  the  universe  and  the  simplest 
rhyme  for  the  nursery ;  the  most  fascinating  production  of  the 
imagination  and  the  dryest  catalogue  of  names. 

All  Contents  of  Book  covered  by  Copyright.  —  The  Copyright 
protects  the  whole  and  all  the  parts  and  contents  of  a  book. 
When  the  book  comprises  a  number  of  independent  composi- 
tions, each  of  the  latter  is  as  fully  protected  as  the  whole.^ 
And  so  the  copyriglit  protects  not  only  the  text,  but  also  any 
engravings,  illustrations,  figures;  &c.,  contained  in  the  book.^ 
The  copyright  will  not  extend  to  any  part  which  is  not  a 
proper  subject  of  copyright.  But  the  fact  that  a  part  may  not  be 
entitled  to  protection  does  not  affect  the  copyright  in  the  rest. 
The  copyright  is  valid  to  the  extent  of  the  matter  which  will 
stand  all  the  tests  of  the  law.*  "  The  courts  of  justice,"  said 
Lord  Kenyon,  "  have  been  long  laboring  under  an  error,  if  an 
author  have  no  copyright  in  any  part  of  a  work  unless  he 
have  an  exclusive  right  to  the  whole  book."  * 

Jour.  84 ;   Coffeen  ■/.  Brunton,  4  Mc-  sign  or  engraving  which  forms  part  of 

Lean,  616.    The  act  of  June  18,  1874,  the   book,  as  well  as  the  letter-press 

provides  for  the  registration  of  labels  therein,  which  is  another  part  of  it." 

in  the  patent-ofilce.     See  post,  p.  178.  Parker,  V.  C,  Bogue  v.  Houlston,  5  De 

1  Page  V.  Wisden,  20  L.  T.  ir.   s.  G.  &  Sm.  275. 
435.  *  Barfield  v.   Nicholson,  2  Sim.   & 

'■*  "White  V.  Geroch,  2  Barn.  &  Aid.  St.  1 ;  Lawrence  v.  Dana,  2  Am.  L.  T. 

298 ;  D'Almaine  v.  Boosey,  1  Y.  &  C.  R.  n.  s.  402.     "  There  are  numerous 

Exch.  288.  cases  showing  that  where  the  parts  of 

3  Eoworth  V.  Wilkes,  1  Camp.  94 ;  a  work  can  be  separated,  there  may  be 

Wilkins  v.  Aikin,  17  Ves.  422  ;   Brad-  copyright  in  any  distinct  part  of  it.  .  .  . 

bury  V.  Hotten,  Law  Rep.  8  Exch.  1 ;  It  matters  not  whether  the  copyright  is 

Cobbett  V.   Woodward,  Law  Rep.   14  for  the  entire  work  or  for  a  part  only." 

Eq.  407.     "  It  appears  to  me   that  a  Giffard,  V.  C,  Low  v.  Ward,  Law  Rep. 

book  must  include  every  part  of  the  6  Eq.  418. 
book:  it  must  include  every  print,  de-         ^  Gary  u. Longman,  1  East, 360. 


WHAT   MAY   BE   COPYRIGHTED. 


145 


Titie  Alone  not  Subject  of  Copyright.  —  The  mere  title  of  a 
book,  magazine,  newspaper,  or  other  publication,  is  not  a  subject 
of  copyright.!  A  title  is  treated  as  a  trade-mark,  in  which  the 
owner's  rights  are  recognized  and  protected  on  general  princi- 
ples of  equity .2  In  the  United  States,  the  title  of  any  publica- 
tion may  doubtless  be  registered  under  the  statute  relating  to 
trade-marks.^  In  such  case,  the  owner  may  become  entitled  to 
the  statutory  remedies ;  provided,  of  course,  the  title  registered 
has  the  requisites  of  a  valid  trade-mark. 


New  Editions. 

Successive  editions  of  a  work  which  do  not  differ  from  the 
first   are   covered  by  the  original  copyright.     This   will   not 

not  in  the  name  or  title  given  to  it. 
The  title  does  not  necessarily  involve 
any  literary  composition ;  it  may  not 
be,  and  certainly  the  statute  does  not 
require,  that  it  should  be  the  product 
of  the  author's  mind.  It  is  not  neces- 
sary that  it  should  be  novel  or  original. 
It  is  a  mere  appendage  which  only 
identifies  and  frequently  does  not  in 
any  way  describe  the  literary  composi- 
tion itself  or  represent  its  character. 
By  publishing,  in  accordance  with  the 
requirements  of  the  copyright  law,  a 
book  under  the  title  of  the  life  of  any 
distinguished  statesman,  jurist,  or  au- 
thor, the  publisher  could  not  prevent 
any  other  author  from  publishing  an  en- 
tirely different  and  original  biography 
under  the  same  title.  When  the  title 
itself  is  original  and  the  product  of^the 
author's  own  mind,  and  is  appropriated 
by  the  infringement,  as  well  as  the 
whole  or  a  part  of  the  literary  compo- 
sition itself,  in  protecting  the  other  por- 
tions of  the  literary  composition  courts 
would  probably  also  protect  the  title. 
But  no  case  can  be  found  either  in 
England  or  this  country  in  which,  un- 
der the  law  of  copyright,  courts  have 
protected  the  title  alone  separate  from 
the  book  which  it  is  used  to  designate." 
Supra,  192. 

^  See  authorities  cited  in  considering 
titles  in  latter  part"  of  Chap.  XI. 

3  U.  S.  Rev.  St.  SB.  4937-4947. 


'  Am.  Osgood  V.  Allen,  1  Holmes, 
185 ;  JoUie  v.  Jaques,  1  Blatchf.  618, 
627;  Benn  v.  Leclerq,  18  Int.  Rev. 
Rec.  94 ;  Isaacs  w..Daly,  7  Jones  &  Sp. 
(39  N.  Y.  Superior  Ct.)  511.  Br.  Cor- 
respondent Newspaper  Co.  v,  Saunders, 
12  L.  T.  N.  s.  640 ;  Maxwell  v.  Hogg, 
Law  Rep.  2  Ch.  307 ;  Kelly  v.  Button, 
3  Id.  703.  In  Osgood  u.  Allen,  Mr. 
Justice  Shepley  said  :  — 

"  By  the  plain  terms  of  the  statute, 
the  copyright  protected  is  the  copy- 
right in  'the  book,'  the  word  book 
being  used  to  describe  any  literary 
composition.  Although  a  printed  copy 
of  the  title  of  such  book  is  required 
before  the  publication  to  be  sent  to 
the  librarian  of  Congress,  yet  this  is 
only  as  a  designation  of  the  book  to 
be  copyrighted,  and  the  right  is  not 
perfected  under  the  statute  until  the 
required  copies  of  such  copyright  book 
are,  after  publication,  also  sent.  It  is 
only  as  part  of  the  book  and  as  the 
title  to  that  particular  literary  compo- 
sition, that  the  title  is  embraced  within 
the  provision  of  the  act.  It  may  possi- 
bly be  necessary  in  some  cases,  in  order 
to  protect  tiie  copyrighted  literary  com- 
position, for  courts  to  secure  the  title 
from  piracy,  as  well  as  the  other  pro- 
ductions of  the  mind  of  the  author  in 
the  book.  Tlie  right  secured  by  the 
act,  however,  is  the  property  in  the 
literary  composition,  the  product  of 
the  mind  and  genius  of  the  author,  and 


10 


146  THE   LAW   OP   COPYRIGHT   AND   PLATRIGHT. 

protect  any  new  matter  in  a  subsequent  edition,  for  the  obvious 
reason  that  such  matter  was  not  in  existence  when  the  copy- 
right vested.^  Another  copyright,  however,  may  be  obtained 
for  any  edition  which  is  substantially  different  from  the  preced- 
ing ones.  Such  edition  is  regarded  by  the  law  as  a  new  and 
original  work. 

Whether  an  independent  copyright  will  vest  in  any  subse- 
quent edition  will  depend  on  the  amount  of  new  matter 
which  it  contains,  or  the  extent  and  character  of  the  revision 
which  has  been  made  in  the  preceding  edition.  A  simple 
reprint  of  the  original,  or  other  previous  edition,  will  be  entitled 
to  no  other  protection  than  is  given  to  the  preceding  edition. 
In  such  case,  there  is  nothing  new  on  which  to  found  a  valid 
claim  for  copyright.  On  the  other  hand,  a  subsequent  edition 
may  contain  much  new  matter,  or  a  thorough  recast  of  the  old. 
It  may  be  so  enlarged  or  condensed,  or  otherwise  revised,  as 
to  become  substantially  a  new  work.  As  such,  it  will  be  entitled 
to  copyright.  But  between  these  two  extremes  of  a  simple 
reprint  and  a  substantially  new  work  may  arise  cases  of  so- 
called  new  editions,  which  will  present  questions  of  extreme 
nicety  and  great  difficulty  in  determining  whether  there  is  a 
basis  for  a  new  copyright.  The  main  question  is  to  be  deter- 
mined by  the  facts  in  each  case.  The  general  rule  is  that  each 
successive  edition,  which  is  substantially  different  from  the 
preceding  ones,  or  which  contains  new  matter  of  substantial 
amount  or  value,  becomes  entitled  to  copyright  as  a  new  work.^ 
It  is  immaterial  whether  the  new  edition  is  produced  by  con- 
densing, expanding,  correcting,  rewriting,  or  otherwise  altering 
the   original ;    or   by  adding  notes,  citations,  &c.     Nor  is  it 

'  Farmer  v.  Calvert  Lithographing,  said :  "  A  new  edition  is  not  necessarily 

Engraving,  and  Map-Publishing  Co.,  5  a  subject  of  copyright,  but  it  may  be  so. 

Am.  L.  T.  R.  168,  173;  Lawrence  v.  There  must  be  some  originality  in  it ;  it 

Dana,  2  Am.  L.  T.  R.  n.  s.  402,  415.  may  be  in  new  thought,  or  in  new 

2  Br.  Tonson  o.  Walker,  3  Swans,  illustration,  or  in  new  explanatory  and 
672  ;  Cary  v.  Faden,  5  Ves.  24 ;  Gary  v.  illustrative  annotation,  or  even,  in 
Longman,  1  East,  858 ;  Hedderwick  v.  some  peculiar  instances,  in  simply  new 
Griffin,  3  Sc.  Sess.  Cas.  2d  ser.  383;  arrangement.  If,  in  any  of  these  re- 
Black  V.  Murray,  9  Id.  3d  ser.  341.  Am.  spects,  there  is  independent  mental 
Gray  v.  Russell,  1  Story,  11 ;  Lawrence  effort,  then,  in  the  result  of  that  mental 
V.  Dana,  2  Am.  L.  T.  R.  n.  s.  402;  effort,  there  may  be  copyright."  Supra, 
Banks   v.  McDivitt,  13  Blatchf.  163.  353. 

In  Black  v.  Murray,  Lord  Ardmillan 


WHAT   MAY   BE   COPYRIGHTED. 


147 


essential  that  the  new  edition  shall  be  an  improvement  on  the 
old.  The  question  is  simply  whether  it  is  substantially  differ- 
ent. 

The  requirements  of  the  law  with  respect  to  the  extent  and 
value  of  the  new  or  revised  matter  are  not  exacting.  But, 
while  the  changes  and  additions  may  be  very  limited  in  extent 
and  importance,  they  must  be  substantial  in  both  of  these 
respects.  A  few  merely  colorable  alterations  in  the  text,  or 
the  addition  of  a  few  unimportant  notes,  will  not  be  enough 
to  sustain  copyright.^  In  Hedderwick  v.  Grifl&n,  in  the  Scotch 
Court  of  Session,  the  plaintiff  claimed  copyright  in  a  revised 
edition  of  Dr.  Chalmers's  works.^  The  revision,  which  had 
been  made  by  the  author  himself,  consisted  chiefly  in  a  change 
of  titles  of  certain  articles,  a  few  corrections  in  language  and 
typography,  and  the  omission  of  sqme  passages  which  had 
appeared  in  former  editions.  'There  was  no  British  copyright 
in  the   original   works.     The  court  was  of  opinion  that  the 


1  In  Black  v.  Murray,  Lord  Kinlock 
said  :  "  I  think  it  clear  that  it  will  not 
create  copyright  in  a  new  edition  of  a 
work,  of  which  the  copyright  has  ex- 
pired, merely  to  make  a  few  emenda- 
tions of  the  text,  or  to  add  a  few  un- 
important notes.  To  create  a  copyright 
by  alterations  of  the  text,  these  must 
be  extensive  and  substantial,  practi- 
cally making  a  new  book.  With  re- 
gard to  notes,  in  like  manner,  they 
must  exhibit  an  addition  to  the  work 
which  is  not  superficial  or  colorable, 
but  imparts  to  the  book  a  true  and 
real  value,  over  and  above  that  belong- 
ing to  the  text.  This  value  may  per- 
haps be  rightly  expressed  by  saying 
that  the  book  will  procure  purchasers 
in  the  market  on  special  account  of 
these  notes.  When  notes  to  this  ex- 
tent and  of  this  value  are  added,  I  can- 
not doubt  that  they  attach  to  the  addi- 
tion the  privilege  of  copyright.  The 
principle  of  the  law  of  copyright  di- 
rectly applies.  There  is  involved  in 
such  annotation,  and  often  in  a  very 
eminent  degree,  an  exercise  of  intel- 
lect and  an  application  of  learning, 
which  place  the  annotator  in  the  posi- 


tion and  character  of  author,  in  the 
most  proper  sense  of  the  word.  The 
skill  and  labor  of  such  an  annotator 
have  often  been  procured  at  a  price 
which  cries  shame  on  the  miserable 
dole  which  formed  to  the  author  of 
the  text  his  only  remuneration.  In 
every  view,  the  addition  of  such  notes 
as  I  have  figured  puts  the  stamp  of 
copyright  on  the  edition  to  which  they 
are  attached.  It  will  still  of  course 
remain  open  to  publish  the  text,  which 
ex  hypothesi  is  the  same  as  in  the  origi- 
nal edition.  But  to  take  and  publish 
the  notes  will  be  a  clear  infringement 
of  copyright."  9  Sc.  Sess.  Cas.  3d  ser. 
355. 

2  3  Sc.  Sess.  Cas.  2d  ser.  383. 

"  The  extent  of  the  alterations  in 
which  the  copyright  was  claimed," 
says  the  report,  "  might  be  judged  of 
from  the  fact  that  the  whole  of  the 
alleged  piracies,  amounting  to  seventy- 
four  in  number,  and  scattered  over  five 
hundred  and  sixty gpight  closely  printed 
octavo  pages,  in  very  small  type,  when 
collected  together,  would  not  occupy 
half  a  page  out  of  the  five  hundred 
and  sixty-eight."    Ibid.  386. 


148       THE  LAW  OP  COPYRIGHT  AND  PLATEIGHT. 

alterations  were  insufficient  to  sustain  copyright,  and  further- 
held  that  the  plaintiff's  title  was  not  good. 

The  copyright  in  each  edition  will  extend  from  the  date  of 
that  edition,  and  will  be  wholly  independent  of  the  copyright 
in  any  preceding  one.^ 

There  is  no  limit  to  the  number  of  editions  of  the  same 
work  for  which  copyrights  may  thus  be  obtained.  It  is  imma- 
terial whether  the  copyright  in  the  original,  or  any  preceding, 
edition  has  or  has  not  expired.  In  the  latter  case,  no  one  but 
the  author,  or  some  one  with  his  authority,  has  a  right  to  publish 
a  new  edition.^  But  any  one  may  revise  or  annotate  and  repub- 
lish a  book  not  protected  by  copyright,  and  obtain  a  valid  copy- 
right for  the  new  edition.^ 

As  early  as  1801,  in  a  case  where  the  plaintiff  had  repub- 
lished Patterson's  Road  Book,  with  extensive  corrections  and 
alterations  made  by  himself,  Lord  Kenyon,  in  delivering  the 
opinion  of  the  King's  Bench,  said  that  "  certainly  the  plaintiff 
had  no  title  on  which  he  could  found  an  action  to  that  part  of  his 
book  which  he  had  taken  from  Mr.  Patterson's ;  but  it  is  as 
clear  that  he  had  a  right  to  his  own  additions  and  alterations, 
many  of  which  were  very  material  and  valuable;  and  the 
defendants  are  answerable  at  least  for  copying  those  parts  in 
their  book."* 

Questions  may  arise  as  to  whether  the  copyright  in  any  edi- 
tion covers  simply  the  revised  parts  and  the  new  matte^r,  or 
extends  equally  to  the  entire  work,  including  the  parts  reprinted 
from  a  former  edition.  This  also  must  be  determined  by  the 
character  of  the  revision.  If  the  entire  work  is  rewritten, 
copyright  will  attach  to  the  whole.  And  this  may  be  true  when 
the  text  has  been  generally  amended  and  revised.     But  if  the 

1  Lawrence  v.  Dana,  2  Am.  L.  T.  R.  the  plaintiff  had  no  authority  to  revise 
N.  s.  402,  416 ;  Murray  v.  Bogue,  1  and  publish  it.  Hence  the  remark  of 
Drew.  353.  the  Lord  Chancellor,  in  Gary  v.  Faden  : 

2  Sweet  17.  Cater,  11  Sim.  572.  "  What  right  had  the  plaintiff  to  the 
s  Tonson  •>.  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  </.  Dana,  2  Am.  L.  T.  legislature  of  April  11,  1848,  and  April 
K.  N.  8.  402.  See  also  Keene  v.  Wheat-  9,  1850,  the  efiect  of  which  was  to  vest 
ley,  9  Am.  Law  Keg.  38 ;  Common-  the  interest  in  the  State,  he  receiving 
wealth  V.  Desilver,  3  Phila.  (Pa.)  31;  a  compensation  for  his  labors  by  way 
Siebert's  Case,  7  Op.  Atty.-Gen.  656.  of  annual  salary."    2  Blatch.  365. 

4  Supra.  Mr.  Justice  Conkling  thought  that 

5  "  I  am  of  opinion,"  said  Nelson,  the  relations  between  the  reporter  and 
J.,  "  that  the  interest  of  the  reporter  the  State  might  be  regarded  as  creat- 
in  this  third  volume  of  his  Eeports,  as  ing  "  an  assignment  by  operation  of 
an  author,  passed  to  the  Secretary  of  law."    Ibid.  183. 

State,  in  trust  for  the  benefit  of  the 


256 


THE  LAW   OP   COPYRIGHT   AND   PLATRIGHT. 


plainant  had  gratuitously  prepared  notes  for  two  editions  of 
Wheaton's  Elements  of  International  Law,  with  the  under- 
standing that  the  property  therein,  as  far  as  those  two  editions 
were  concerned,  should  belong  to  Mrs.  Wheaton,  the  court  held 
that  such  property  vested  in  her,  as  the  work  was  done  and 
delivered,  witliout  the  necessity  of  a  formal  assignment, 
and  that  she  was  a  proper  person  to  take  out  the  statutory 
copyright.  Here  the  complainant,  though  receiving  nothing 
for  his  services,  was  in  the  position  of  an  author  employed, 
and  Mrs.  Wheaton  in  that  of  an  employer.  By  virtue  of  such 
relation,  she  became  the  owner  of  the  property  in  the  manu- 
script notes  to  the  extent  of  the  gift,  and  was  entitled  to  secure 
the  statutory  copyright  for  the  protection  of  such  property.^ 


1  2  Am.  L.  T.  K.  n.  s.  402.  Mr. 
Justice  CliflFord  said:  "Although  the 
services  were  gratuitous,  the  contribu- 
tions of  the  complainant  became  the 
property  of  the  proprietor  of  the  book, 
as  the  work  was  done,  just  as  effectu- 
ally as  they  would  if  the  complainant 
had  been  paid  daily  an  agreed  price 
for  his  labor.  He  gave  the  contribu- 
tions to  the  proprietor  for  those  two 
editions  of  the  work,  and  the  title  to 
the  same  vested  in  the  proprietor,  as 
the  work  was  done,  to  the  extent  of 
the  gift,  and  subject  to  the  trust  in 
favor  of  the  donor,  as  necessarily  ira-. 
plied  by  the  terms  of  the  arrangement. 
Delivery  was  made  as  the  work  was 
done,  and  the  proprietor  of  the  book 
needed  no  other  muniment  of  title  than 
what  was  acquired  when  the  agree- 
ment was  executed.  Vested  as  the 
title  and  property  of  the  contributions 
were  in  Mrs.  Wheaton,  she  would  not 
acquire  any  thing  by  an  assignment 
from  the  contributor,  as  he  had  neither 
the  immediate  title  to  the  contributions 
nor  any  inchoate  right  of  copyright  in 
those  editions.  He  could  not  assign 
any  thing,  because  he  owned  nothing 
inprcesenti,  as  the  title  to  his  contribu- 
tions, and  the  inchoate  right  of  copy- 
right for  those  editions,  had  become 
vested  in  Mrs.  Wheaton  as  proprietor 
of  the  book.  Guided  by  these  views, 
the  court  is  of  the  opinion  that  none  of 
the  authorities  cited  by  the  respondents 


to  show  that  a  written  assignment  from 
the  complainant  to  Mrs.  Wlieaton  was 
necessary  have  any  proper  applica- 
tion to  the  question  under  considera- 
tion, because  the  complainant  never 
acquired  any  right  to  demand  a  copy- 
right in  his  contributions  to  those  two 
editions,  but  the  contributions  as  they 
were  made  and  composed,  or  put  in 
form,  became  vested  in  the  proprietor." 
"...  Literary  property,  even  when 
secured  by  copyright,  differs  in  many 
aspects  from  property  in  personal  chat- 
tels, and  the  tenure  of  the  property  is 
governed  by  somewhat  different  rules  ; 
but  the  difference  in  the  nature  and 
tenure  of  the  property  is  much  greater 
before  copyright  is  taken  out,  and 
while  the  right  to  that  protection  for 
the  same  remains  entirely  inchoate. 
Title  to  the  notes  or  improvements 
prepared  for  a  new  edition  of  a  book 
previously  copyrighted  may,  in  certain 
cases,  be  acquired  by  the  proprietor  of 
a  book  from  an  employe,  by  virtue  of 
the  contract  of  employment,  without 
any  written  assignment;  and,  when 
so  acquired,  the  tenure  of  the  property 
depends  upon  the  terms  of  the  contract, 
but  it  cannot  be  held  to  be  a  mere 
license  where,  as  in  this  case,  the  con- 
tract was  that  the  proprietor  of  the 
book  should  take  the  exclusive  right 
to  the  contributions  for  two  successive 
editions,  together  with  the  right  to 
copyright  the  same  for  the  protection 


IN   WHOM    COPYRIGHT   WILL   VEST.  257 

The  decisions  which  have  been  cited  on  this  subject  were 
rendered  before  the  statute  now  in  force  was  passed.  As  has 
been  seen,  this  act  expressly  empowers  the  "  proprietor "  of 
a  work  to  secure  copyright ;  ^  and  there  can  be  no  reasonable 
doubt  that  an  employer  may  become  such  proprietor  by  virtue 
of  the  contract  of  employment. 

No  Copyright  in  Work  of  Foreign  Author  Employed.  —  No 
person  can  secure  copyright  for  what  he  has  employed  a  for- 
eigner to  write,  unless  the  latter  be  a  resident  within  the 
meaning  of  the  law.  For  the  statute  expressly  declares  that 
the  production  of  an  alien  author  shall  not  be  entitled  to  pro- 
tection. 

Employer  not  Entitled  to  Copyright  by  Mere  Fact  of  Employ- 
ment. —  The  mere  fact  of  employment  does  not  make  the 
employer  the  absolute  owner  of  the  literary  property  created 
by  the  person  employed.  Where  there  is  no  agreement  or 
implied  understanding  that  what  is  produced  shall  belong  to 
the  employer,  it  is  clear  that  the  latter  acquires  no  title  to  the 
copyright.  For  the  property  is  in  the  author,  unless  he  has 
consented  to  part  with  it.^  In  Boucicault  v.  Fox,  it  appeared 
that  the  plaintiff,  while  employed  as  an  actor  and  stage-mana- 
ger at  the  Winter  Garden  Theatre  in  New  York,  of  which 
William  Stuart  was  owner,  had  written  the  Octoroon  under  an 
agreement  with  Stuart  that  it  should  be  performed  as  long  aS  it 
would  run  at  that  theatre.  It  was  afterward  claimed  that  Stuart 
had  become  the  owner  of  the  play  by  virtue  of  such  employment. 

of  the  property,  as  the  inchoate  right  frequently  made  between  the  proprie- 
of  copyright  unquestionably  passed  to  tors  of  books  and  editors  employed  to 
the  proprietor  of  the  book  by  the  same  prepare  notes  or  other  improvements 
arrangement.  Such  inchoate  right  is  to  successive  editions ;  and  it  is  not 
incapable  of  any  other  limitation  than  perceived  that  there  is  any  legal  diffl- 
that  prescribed  by  the  copyright  act,  culty  in  upholding  such  a  contract 
80  that  the  proprietor  of  the  book  neces-  where,  as  in  this  case,  it  violates  the 
sarily  took  out  the  copyright  in  the  rights  of  no  one,  and  is  entirely  con- 
usual  form.  Beyond  controversy,  she  sistent  with  the  public  right."  2  Am. 
took  it  out  by  the  consent  of  the  com-  L.  T.  E.  n.  s.  414,  419. 
plainant ;  and  it  is  equally  clear,  in  ^  U.  S.  Rev.  St.  s.  4952. 
the  judgment  of  the  court,  that  she  "  Bishop  of  Hereford  v.  GrifBn,  16 
took  it  out  for  the  protection  of  her  Sim.  190 ;  Shepherd  v.  Conquest,  17 
own  property  in  the  notes,  and  in  trust  C.  B.  427 ;  Levi  v.  Rutley,  Law  Rep. 
for  the  complainant  when  her  property  6  C.  P.  523 ;  Roberts  v.  Myers,  13 
in  the  notes  should  cease.  Arrange-  Monthly  Law  Reporter,  396;  Bouci- 
ments  of  the  kind,  it  is  believed,  are  cault  v.  Fox,  6  Blatchf.  87. 

17 


258 


THE  LAW  OF  COPYRIGHT  AND  PLATRIGHT. 


But  the  court  properly  held  that  he  had  acquired  no  property 
in  the  piece,  for  the  reason  that  there  was  no  agreement,  and 
nothing  in  the  circumstances  of  the  case,  to  create  an  implied 
understanding  to  that  effect.^ 

Copyright  Vests  in  Employer  only  by  Agreement.  —  To  vest  the 
employer  with  the  literary  property  and  a  right  to  secure  the 
copyright,  there  must  be  an  agreement  that  he,  and  not 
the  person  employed,  is  to  be  the  owner  of  the  work  produced. 
But  such  agreement  need  not  be  express.  It  may  be  implied 
from  the  terms  and  conditions  of  the  employment.^  A  mutual 
understanding  to  that  effect  may  be  created  by  the  relations  of 


I  5BIatchf.  87.  "  Our  next  inquiry ," 
said  Mr.  Justice  Shipman, "  is  —  was  the 
literary  property  in  the  composition, 
and  the  exclusive  right  to  its  represen- 
tation, in  the  plaintiff?  The  questions, 
under  this  head,  relate  to  the  bearing, 
on  the  plaintiffs  title,  of  the  fact,  that 
he  wrote  the  drama  while  in  the  em- 
ploy of  Stuart  and  for  hire,  and  also 
to  the  proof  of  his  copyright.  It  is 
proper  here  to  revert  to  the  agreement 
under  whicli  this  play  was  produced 
by  the  author.  That  agreement  was, 
that  he  should  write  this  play,  and 
perhaps  some  other  plays,  and  that  he 
should  contribute  his  and  his  wife's 
services  at  the  Winter  Garden  Theatre 
as  long  as  the  plays  would  run  there, 
and  receive  half  the  profits,  as  a  com- 
pensation. This  cannot  be  construed 
into  a  contract  conferring  upon  Stuart, 
or  any  one  else,  the  legal  or  equitable 
title  to  this  drama.  The  title  to  liter- 
ary property  is  in  the  author  whose 
intellect  has  given  birth  to  the  thoughts 
and  wrought  them  into  the  composi- 
tion, unless  he  has  transferred  that 
title,  by  contract,  to  another.  In  the 
present  case,  no  such  contract  is  proved. 
The  most  tliat  could  possibly  be  said, 
in  regard  to  the  right  of  Stuart,  or  his 
trustee,  in  the  play,  is,  that  the  arrange- 
ment entitled  them  to  have  it  per- 
formed at  the  Winter  Garden  as  long 
as  it  would  run.  There  is  not  the 
slightest  foundation  upon  which  they, 
or  either  of  them,  can  rest  a  claim  to 
the  literary  property  in  the  manuscript. 
That  property  was  in  the  plaintiff,  sub- 


ject, at  most,  to  a  license  or  privilege, 
in  favor  of  Stuart  and  Fields,  to  have 
the  piece  performed  at  the  Winter 
Garden.  Whether  the  plaintiff  was 
guilty  of  a  breach  of  that  part  of  his 
agreement  which  bound  him  to  bestow 
his  own  and  his  wife's  services,  we 
need  not  inquire  here.  Such  a  breach, 
if  proved,  would  not  vest  the  proprie- 
tors of  the  theatre  with  the  title  to 
the  Octoroon. 

"  A  man's  intellectual  productions 
are  peculiarly  his  own,  and  although 
they  may  have  been  brought  forth  by  the 
author  while  in  the  general  employment 
of  another,  yet  he  will  not  be  deemed  to 
have  parted  with  his  right  and  trans- 
ferred it  to  his  employer,  unless  a  valid 
agreement  to  that  effect  is  adduced. 
Publishers,  when  they  employ  authors 
in  particular  literary  enterprises,  of 
course  settle,  in  the  terms  of  their  con- 
tracts, the  rights  of  each  party  and  the 
ownership  of  the  copyright.  This  was 
not  the  case  of  writing  a  book  for  pub- 
lication and  general  circulation.  The 
play  was  to  be  produced,  so  far  as 
Stuart  and  Fields  were  concerned,  for 
a  special  purpose,  which  was  that  the 
play  should  be  brought  out  by  the 
plaintiff  at  the  Winter  Garden,  an^  be 
performed  as  long  as  it  would  run. 
The  contract  cannot,  by  the  most  lib- 
eral construction,  be  expanded  beyond 
this.  Under  these  circumstances,  the 
plaintiff  was  entitled  to  the  copyright 
which  he  obtained."    Ibid.  95. 

2  Sweet  II.  Benning,  16  C.  B.  459. 


IN  WHOM    COPYRIGHT  WILL  VEST.  259 

the  parties,  and  the  circumstances  attending  the  agreement. 
But  the  employer  cannot  be  considered  as  the  owner  of  what  is 
written  by  an  author  independently  of  the  duties  for  which  the 
latter  is  employed  and  paid.  Thus,  as  in  Boucicault  v.  Pox,  a 
manager  has  no  property  in  a  play  written  by  a  person  whom 
he  has  employed  as  an  actor.  So  statutes,  judicial  decisions, 
public  documents,  official  reports,  and  productions  which  are 
the  direct  results  of  official  labors,  may  naturally  become  the 
property  of  the  government  which  pays  for  such  services.  But 
the  government  can  have  no  rightful  claim  to  the  literary 
property  in  a  work  produced  by  an  officer  independently  of  his 
official  duties. 

A  case  might  arise  wherein  a  writer  follows  so  closely  the 
directions  given  by  his  employer  that  the  creation  of  the 
work  may  be  due  to  the  mind  of  the  latter,  and  he  may  prop- 
erly be  regarded  as  the  author.  But  the  employer  cannot  be 
considered  the  author  when  he  "  merely  suggests  the  subject, 
and  has  no  share  in  the  design  or  execution  of  the  work,  the 
whole  of  which,  so  far  as  any  character  of  originality  belongs 
to  it,  flows  from  the  mind  of  the  person  employed."  ^ 

Cyclopaedias  and  Periodicals  in  United  States.  —  111  the  United 
States,  there  is  no  special  statutory  provision  concerning  the 
copyright  in  articles  first  published  in  cyclopaedias,  magazines, 
and  other  periodicals.  The  ownership  of  the  property  in 
these  cases  is  governed  by  the  same  principles  that  apply  in  the 
case  of  books  in  general.  An  author  may  be  employed  to 
prepare  an  article  for  a  publication  of  this  kind  on  condition, 
either  that  the  publisher  is  to  be  the  absolute  owner  of  the 
copyright,  or  that  he  is  simply  to  have  the  right  of  using  the 
article  in  the  special  work  for  which  it  was  prepared.  The  re- 
spective rights  of  the  parties  will  be  determined  by  their  agree- 
ment, which,  if  not  express,  may  be  implied  from  the  terms 
and  conditions  of  the  employment  and  the  attending  circum- 
stances. Where  an  author  is  expressly  employed  to  write  such 
articles,  and,  especially  if  he  be  regularly  employed  and  paid  a 
salary,  these  circumstances,  in  the  absence  of  an  express  agree- 
ment, will  go  far  toward  supporting,  and  in  some  cases  will  be 

1  Jervis,  C.  J.,  Shepherd  v.  Conquest,  17  C.  B,  445.  See  also  Levi  v. 
Kutley,  Law  Rep.  6  C.  P.  523. 


260  THE  LAW  OP  COPYRIGHT  AND  PLAYBIGHT. 

enough  to  establish,  an  implied  agreement  that  the  publisher  is 
to  be  the  absolute  owner  of  the  copyright.^  But  when  a  writer 
who  is  not  specially  employed  for  that  purpose  contributes  an 
article  to  a  cyclopaedia,  magazine,  or  other  periodical,  the  nat- 
ural presumption  would  be,  in  the  absence  of  an  express  agree- 
ment or  circumstances  to  the  contrary,  that  he  intended  to  give 
the  right  of  using  it  only  in  that  special  publication  ;  and,  to 
establish  a  title  to  the  copyright,  it  would  be  for  the  publisher 
to  show  that  the  author  had  consented  to  part  with  the  abso- 
lute copyright.2  If  the  publisher  has  acquired  merely  the  right 
of  publication  in  a  special  work,  the  right  of  publishing  in  any 
other  form  continues  in  the  author.  But  the  author  would 
doubtless  be  barred  from  publishing  at  such  a  time  as  would 
defeat  the  advantages  for  which  the  publisher  had  paid. 

Copyright  in  Person  in  ^irhose  Name  entered.  —  In  the  United 
States,  the  legal  copyright  will  vest  in  the  person  in  whose  name 
it  has  been  entered.  Whether  or  not  he  is  the  lawful  owner 
will  depend  on  his  title  to  the  work.  A  person  who  is  not  the 
author  or  owner  of  a  work  may  take  out  the  copyright  in  his  own 
name,  and  hold  it  in  trust  for  the  rightful  owner .^     Thus,  when 

1  Sweet  V.  Banning,  16  C.  B.  459.        on  the  intention  of  the  parties,  to  be 

2  Bishop  of  Hereford  «.  Griffin,  16  determined  by  the  nature  of  the  agree- 
Sim.  190.  ment  and  the  attending  circumstances. 

A  large  part  of  the  American  Cyclo-  *  Little  v.   Gould,  2   Blatchf.   165, 

paedia  was  prepared  by  writers  regularly  362 ;  Pulte  v.  Derby,  5  McLean,  328  ; 

employed,   and   paid    salaries.     They  Lawrence  v.  Dana,  2  Am.  L.   T.  R. 

worked  in  a  place  provided  by  the  pub-  n.  s.  402.    In  Little  u.  Gould,  Nelson, 

lishers,  who  also  supplied  books  of  refer-  J.,  said  :  "It  has  been  argued  by  the 

ence,  stationery,  and  all  other  things  ne-  counsel  for  the  defendants,  that  the 

cessary  to  the  prosecution  of  the  work,  copyright  in  this  case  is  void,  on  the 

Ho  words  passed  between  the  publishers  ground  that  no  authority  is  given  by 

and  the  writers  as  to  copyright  in  the  the  act  of  Congress  of  1831  for  taking 

articles;  but  there  was  a  mutual  un-  out  the  copyright  in  the  name  of  a 

derstanding  that  this  was  to  belong  to  trustee,  for    the    benefit  of    another, 

the  publishers.   There  can  be  no  reason-  But,  it  may  be  answered,  that  there  is 

able  doubt  that  they  became  the  abso-  nothing  in  the  act  forbidding  it.     The 

lute  owners  of  the  copyright  in  the  ar-  party    to    whom    the    assignment    is 

tides   written    under    these    circum-  made,  whether  for  the  benefit  of  an- 

stances.      On  the  other  hand,  many  other  or  not,  holds  the  legal  interest  in 

important    articles   were   written    by  the  work  as  assignee  of  the   author, 

persons  who  were  not  thus  regularly  and  comes   therefore  within  the  very 

employed,  but  had  been  specially  en-  words  of  the  law  entitling  him  to  the 

gaged  to  prepare   certain  articles  for  copyright.     Whether  a  third  person 

the  cyclopaedia.     Whether  the  abso-  has  an  equitable  interest  in  the  work, 

lute  property   in  such    contributions  derived  from   the  author  or  from  the 

vested  in  the  publishers  would  depend  legal   assignment,  is   a   question   be- 


IN   WHOM   COPYRIGHT  WILL  TEST.  261 

an  article  has  first  been  published  in  a  cyclopedia,  magazine, 
or  any  other  publication,  the  legal  title  to  the  copyright,  if 
taken  out  in  the  name  of  the  publisher,  will  vest  in  him.  But 
it  may  be  the  property  of  the  author,  and  held  in  trust  for  him. 
And  the  same  is  true  when  the  copyright  of  a  book  which 
belongs  to  the  author  is  entered  in  the  name  of  the  publisher. 
In  such  case,  a  court  of  equity,  if  called  upon,  may  decree  a 
transfer  of  the  copyright  to  be  made  to  the  owner.^ 

Extension  for  Author  and  FamUy.  —  Besides  granting  copyright 
to  the  author  or  owner  of  a  work,  and  the  assignee  of  such 
person,  for  twenty-eight  years,  the  existing  statute  of  the  United 
States  provides  that,  at  the  end  of  that  term,  the  author,  in- 
ventor, or  designer,  if  living,  or  his  widow  or  children  if  he  be 
dead,  may  secure  a  renewal  of  the  copyright  for  fourteen 
years.^  As  neither  the  owner  of  a  work  nor  an  assignee  is 
mentioned  in  this  section,  it  would  seem  that  the  copyright  for 
this  additional  term  will  not  vest  ab  initio  in  such  person.^  But 
elsewhere  the  ground  is  taken,  that  when  the  renewed  copyright 
has  been  secured  by  the  author,  or  his  widow  or  children,  it 
may  be  transferred  to  an  assignee.*  If  the  copyright  granted 
for  the  original  term  is  invalid,  it  will  not  become  valid  by 
being  renewed  for  the  additional  term  of  fourteen  years.^ 

tween    those    parties,   in    respect    to  would  hare  been  the  author,  and  that 
which  I  do  not  see  that  the  pubhc  in-  the  copyright  would  have  been  in  him, 
terest  or  policy   is  at  all  concerned,  although  a  court  of  equity  might  have 
The  courts  will  take  care  of  those  equi-  called  on  him  to  transfer  the  copyright 
table  interests.     The  legal  assignee  of  to  Templeraan."     13  L.  T.  n.  s.  595. 
the  author  is  competent  to  take  out  the         2  u.  S.  Rev.  St.  s.  4954. 
copyright,  and  the  Secretary  of  State         '  Pierpont  v.  Fowle,  2  Woodb.  & 
must  be  regarded  as  standing  in  this  M.  41-45.     See  also  Marzials  0.  Gib- 
position,  under  the  act  of  the  legisla-  bons.  Law  Rep.  9  Ch.  518. 
ture  of  April  9,  1850."    5  Blatchf.  366.         4  See  post,  p.  333. 

1  Lawrence  v.  Dana,  2  Am.  L.  T.  R.  "  Wheaton  v.  Peters,  8  Pet.  591,  654, 
N.  s.  402.  In  the  English  case  of  Haz-  where  the  Supreme  Court  of  tlie 
litt  V.  Templeman,  where  it  was  a  United  States  ruled  that  a  valid  copy- 
question  whether  the  copyright  be-  right  for  the  second  term  provided  by 
longed  to  the  plaintiff  or  the  defend-  the  act  of  1790  could  not  be  secured 
ant,  Blackburn,  J.,  said :  "  I  do  not  wlien  the  copyright  for  the  first  terra 
wish  to  express  a  decided  opinion ;  was  void.  See  also  Brooke  v.  Clarke, 
but  my  impression  is  that  he  [Hazlitt]  1  Barn.  &  Aid.  396. 


262       THE  LAW  OP  COPYRIGHT  AND  PLAYBIGHT. 


CHAPTER  V. 
STATUTORY  REQUISITES  FOR  SECURING  COPYRIGHT. 

United  States. 

The  several  statutes  of  the  United  States  have  prescribed 
certain  things  to  be  done  by  a  person  seeking  to  obtain  copy- 
right; but  there  has  been  some  diversity  of  opinion  as  to 
wliether  a  compliance  with  all  the  conditions  so  imposed  is 
essential  to  a  complete  title. 

Requisites  Prescribed  by  Acts  of  1790  and  1802.  —  The  act  of 
1790  ^  provided  that  no  person  should  be  entitled  to  its  privileges 
unless  he  should  deposit,  before  publication,  a  printed  copy  of  the 
title  of  the  book  in  the  clerk's  office  of  the  district  court  of 
the  United  States  where  the  author  or  the  Owner  resided ;  ^  and 
declared  that  the  author  or  owner,  within  two  months  after 
making  such  deposit,  sliould  publish  a  copy  of  the  record 
thereof  in  one  or  more  newspapers,  for  four  weeks ;  ^  and, 
within  six  months  after  publishing  the  book,  should  deliver 
a  copy  of  it  to  the  Secretary  of  State  of  the  United  States.* 
By  the  supplementary  act  of  1802,^  it  was  declared  that  every 
person,  "  before  he  shall  be  entitled  to  the  benefit  of  the  act " 
of  1790  "  shall,  in  addition  to  the  requisites  enjoined  in  the 
third  and  fourth  sections  of  said  act,"  cause  a  notice  of  the 
entry  of  copyright  to  be  printed  on  the  title-page,  or  the  page 
immediately  following,  of  a  book,  or  on  the  face  of  a  map, 
chart,  print,  or  engraving.^ 

Difference  of  Judicial  Opinion  as  to  Meaning  of  Acts  of  1790 
and  1802.  —  Construing  these  two  statutes  together,  the  Su- 
preme Court  of  the  United  States  held,  in  Wheaton  v.  Peters, 
that  a  performance  of  all  the  conditions  prescribed  by  Congress 

1  1  U.  S.  St.  at  L.  124.  «  2  U.  S.  St.  at  L.  171. 

2  s.  3.  8  s.  3.  *  8.  4.  6  g.  1. 


STATUTORY  REQUISITES.  263 

was  essential  to  valid  copyright.^  Two  of  the  judges  ^  dis- 
sented from  this  judgment,  and  maintained  that  the  only 
requirements  essential  to  complete  the  copyright  were  deposit 
of  the  title,  pursuant  to  the  statute  of  1790,  and  imprint  of 
the  notice  in  the  book,  as  prescribed  by  the  act  of  1802  ;  that 
the  provisions  concerning  the  publication  of  the  record  in  a 
newspaper,  and  the  delivery  of  a  copy  of  the  book  to  the  Sec- 
retary of  State,  were  merely  directory ;  and  that  failure  to 
comply  with  them  did  not  affect  the  validity  of  the  copyright. 
This  opinion  was  based  on  the  ground  that  the  statute  of  1790 
expressly  enacted  that  no  person  should  be  entitled  to  copyright, 
unless  he  should  deposit  a  printed  copy  of  the  title  before  publi- 
cation, but  that  its  language  relating  to  the  other  two  require- 
ments was  merely  directory,  and  not  mandatory ;  and,  while 
the  act  of  1802  had  added  a  condition  whose  observance  was 
essential,  it  could  not  be  construed  as  changing  the  provisions 
in  the  earlier  statute,  to  which  it  was  merely  supplementary. 

This  view  of  the  act  of  1790  had  been  taken  by  the  Supreme 
Court  of  Errors  of  Connecticut,*  and  by  the  Circuit  Court  of 
the  United  States  in  Ewer  v.  Coxe.*  But  in  the  latter  case  the 
court  held  that  the  act  of  1802  had  not  only  prescribed  an 
additional  requisite,  but  had  also  made  delivery  of  a  copy  of 
the  book  to  the  Secretary  of  State,  and  publication  in  a  news- 
paper of  the  record  of  entry,  essential  to  copyright,  though 
they  were  not  so  under  the  statute  of  1790.  As  has  been  said, 
the  decision  of  the  Supreme  Court  of  the  United  States  was 
based  on  the  interpretation  of  the  two  statutes ;  and  it  does 
not  appear  what  constraction  would  have  been  given  to  the 
first  one  alone." 

While  there  has  been  this  diversity  of  opinion  as  to  whether 
delivery  of  copies  and  publication  of  the  record  in  a  news- 
paper were  necessary  to  a  complete  title,  it  has  never  been 
questioned  that  the  language  used  in  the  acts  of  1790  and 

1  8  Pet.  591,  654.  See  also  King  v.  ered  the  judgment  of  the  court,  said 
Force,  2  Cranch  C.  C.  208  ;  Clayton  v.  that  his  opinion  was  founded  chiefly  on 
Stone,  2  Paine,  382.  the  act  of  1790.     8  Pet.  665.    But  it 

2  Thompson  and  Baldwin.  does  not  appear  what  were  the  views 
"  Nichols  V.  Haggles,  3  Day,  145.  on  this  point  of  the  other  judges  in  the 
*  4  Wash.  C.  C.  487.  majority. 

"  Mr.  Justice  McLean,  who  deliv- 


264  THE  LAW  Op  copyright  and  playright. 

1802  made  the  deposit  of  the  title-page  before  publication, 
and  the  imprint  of  the  copyright  notice  in  the  book,  essential  to 
copyright. 

Requisites  Prescribed  by  Statute  of  1831. —  The  act  of  1831,^ 
which  repealed  the  statutes  then  existing,  expressly  declared 
that  no  copyright  should  be  secured  without  depositing,  before 
publication,  a  printed  copy  of  the  title  of  the  book  in  the  clerk's 

.  office  of  the  district  court,*^  and  printing  the  prescribed  notice 
on  the  title-page  or  that  next  following.^  The  language  in 
which  these  requirements  were  prescribed  leaves  no  room  for 
doubt  that  without  their  performance  no  copyright  could  be 
acquired.  The  provision,  however,  requiring  a  copy  of  the 
book  to  be  delivered  to  the  clerk  of  the  district  court,  within 
three  months  after  publication,*  followed  the  form  used  in  the 
act  of  1790.  But  it  has  been  seen  that,  while  Mr.  Justice 
Washington  in  Ewer  v.  Coxe,  and  the  minority  of  the  Supreme 
Court  in  Wheaton  v.  Peters,  maintained  that  the  provision  in 

■  the  statute  of  1790  was  merely  declaratory,  and  did  not  affect 
the  validity  of  the  copyright,  that  doctrine  is  not  supported  by 
authority. 

Judicial  Construction  of  Statute  of  1831.  —  The  meaning  of 
the  statute  of  1831  on  the  points  under  consideration  has  been 
fully  considered  by  the  courts.  And  it  is  now  well  established 
that  a  performance  of  the  three  requisites  prescribed  by  that 
act  were  essential  to  the  vesting  of  copyright.^  Even  where 
the  notice  in  the  book  was  to  the  effect  that  the  copyright  had 
been  entered  in  1847,  whereas  in  fact  it  had  been  entered 
in  1846,  the  error,  whether  it  arose  from  mistake  or  otherwise, 
was  held  to  defeat  the  copyright.®  So  also  the  copyright  was 
rendered  invalid  by  the  fact  that  the  title-page  had  been 
deposited  not  before,  but  after,  publication.^  Printing  the 
copyright  notice  on  the  margin  of  an  engraving,  where  it  would 
be  visible  when  the  picture  was  framed,  was  held  to  be  a  com- 

1  4  U.  S.  St.  at  L.  436.  &  Map-Publishing  Co.,  5  Am.  L.  T. 

"8.4.              3  s.  5.             ■•  8.4.  R.  168;  Osgood  v.  Allen,  1  Holmes, 

6  Baker  v.  Taylor,  2  Blatchf.  82 ;  185 ;  Chase  v.  Sanborn,  6  U.  S.  Pat. 

Jollie  V.  Jaques,   1  Id.  618;   Pulte  v.  Offi.  Gaz.  932. 

Derby,  6    McLean,    328 ;    Struve    v.  ^  Baker  v.  Taylor,  supra. 

Schwedler,  4  Blatchf.  23  ;  Lawrence  v.  '  Baker  v.  Taylor,  Strure  v.  Schwed- 

Dana,  4  Am.  L.  T.  K.  N.  s.  402  ;  Farmer  ler,  supra. 

V.   Calvert   Lithographing,  Engraving 


'  STATUTORY   REQUISITES.  •  265 

pliance  with  section  5  of  the  act  which  required  such  notice  "  to 
be  imprinted  on  the  face  "  of  the  work.^  The  name  of  the 
publishers  and  the  date  and  place  of  publication  were  held  not 
to  be  a  part  of  the  title  of  a  map  to  be  recorded.^ 

The  delivery  of  a  copy  of  the  book  to  the  Smithsonian  Insti- 
tution, and  one  to  the  library  of  Congress,  pursuant  to  section  10 
of  the  act  of  1846  ^  establishing  that  institution,  was  not  essen- 
tial to  copyright.* 

What  must  be  done  to  Secure  Copyright  under  Statute  now  in 
Force.  —  Whatever  grounds  there  may  have  been  for  doubt 
concerning  the  meaning  of  the  earlier  acts  on  the  points  under 
consideration  are  removed  by  the  language  used  in  the  statute 
now  in  force,^  which  grants  copyright  to  such  persons  only  as 
shall  comply  with  its  provisions,  and  expressly  declares  that  no 
person  shall  be  entitled  to  copyright  or  maintain  an  action  for 
infringement  unless  he  shall  first  do  three  things:  1,  before 
publication  mail  to  the  Librarian  of  Congress,  a  printed  copy 
of  the  title  of  the  book,  map,  chart,  drama;tic  or  musical  com- 
position, engraving,  cut,  print,  or  photograph,  or  a  description 
of  the  painting,  drawing,  chromo,  statue,  statuary,  or  model  or 
design  for  a  work  of  the  fine  arts ;  ^  2,  within  ten  days  after 
publication,  deliver  or  mail  to  the  same  ofiicer  two  copies  of 
such  book  or  other  article,  or  a  photograph  of  the  painting, 
drawing,  statue,  statuary,  model  or  design ;  ^  3,  print  on  the 
title-page,  or  the  page  next  following,  of  every  copy  of  a  book, 
or  in  the  case  of  a  map,  chart,  musical  composition,  print,  cut, 
engraving,  photograph,  painting,  drawing,  chromo,  statue, 
statuary,  model  or  design,  inscribe  on  some  visible  part  of  it, 
or  on  the  substance  on  which  it  is  mounted,  the  notice  of  entry 
of  copyright  in  the  prescribed  form.^ 

Compliance  with  Statutory  Requisites  Essential  to  Copyright.  — 
"  There  is,"  said  Mr.  Justice  Sawyer,  "  no  possible  room  for 

1  Rossiter  v.  Hall,  5  Blatchf.  362.  '  a.    4962.      Two    forms    are    pre- 

2  Farmer  v.  Calvert  Lithographing,  scribed,  either  of  which  may  be  used  : 
Engraving  &  Map- Publishing  Co.,  6  1.  "  Entered  according  to  act  of  Con- 
Am.  L.  T.  R.  168.  gress  in  the  year—,  by  A.  B.,  in  the 

3  9  U.  S.  St.  at  L.  106.  office  of  the  Librarian  of  Congress  at 

4  JoUie  V.  Jaques,  1  Blatchf.  618.  Washington."    U.  S.  Rev.  St.  b.  4962. 

5  U.  S.  Rev.  St.  88.  4948-4971.  2.  "  Copyright  18—,  by  A.  B."  Act  of 
e  s  4956  June  18,  1874,  s.  1 ;  18  U.  S.  St.  at  L. 
7  Id."     '  78. 


266 


THE   LAW   OP   COPYRTGHT   AND   PLATEIGHT. 


construction  here.  The  statute  says  no  right  shall  attach 
until  these  acts  have  been  performed ;  and  the  court  cannot 
say,  in  the  face  of  this  express  negative  provision,  that  a  right 
shall  attach  unless  they  are  performed.  Until  the  performance 
as  prescribed,  there  is  no  right  acquired  under  the  statute  that 
can  be  violated."  ^ 


1  Parkinson  v.  Laselle,  3  Sawyer, 
333.  To  the  same  effect  are  Boucl- 
cault  V.  Hart,  13  Blatchf.  47 ;  Carillo 
V.  Shook,  22  Int.  Rev.  Rec.  152 ;  Marsh 
V.  Warren,  4  Am.  L.  T.  n.  b.  126;  8.  c. 
9  Chic.  Leg.  News,  395;  Centennial 
Catalogue  Co.  v.  Porter,  2  Weekly- 
Notes  of  Cases,  601  ;  Benn  v.  LeClercq, 
18  Int.  Rev.  Rec.  94. 

In  Parkinson  v.  Laselle,  Sawyer,  J., 
said :  "  It  is  settled  by  the  Supreme 
Court  in  Wlieaton  v.  Peters,  that  every 
act  required  by  the  act  of  Congress  of 
May  3,  1790,  and  of  April  29,  1802, 
relative  to  copyright,  is  essential  to  the 
title  derived  under  those  acts.  Unless 
he  performs  every  act  required  by  these 
statutes,  the  author  acquires  no  exclu- 
sive right.     See  also  JoUie  v.  Jaques, 

1  Blatchf.  618,  and  Baker  v.  Taylor, 

2  Id.  82.  The  authority  of  these  deci- 
sions is  not  questioned  by  complainant, 
but  it  is  insisted  that  the  present  statute 
is  different  and  requires  a  different 
construction.  On  the  contrary,  it  ap- 
pears to  me  to  be  more  difScult  under 
the  present  statute  to  escape  the  con- 
struction adopted  by  the  Supreme 
Court  in  Wheaton  a.  Peters  than 
under  the  former  acts. 

"  Under  section  3  of  the  act  of  1790, 
there  was  some  ground  for  claiming 
that  it  was  only  necessary  to  deposit  a 
printed  copy  of  the  title  to  a  book  or 
map,  in  order  to  secure  a  copyright ; 
and  that  the  provisions  of  the  latter 
part  of  this  section,  and  in  section  4, 
for  publication  of  a  copy  of  the  record, 
and  the  delivery  of  the  copy  of  the 
work,  were  merely  directory,  or  at 
most  conditions  subsequent.  But  there 
is  no  ground  for  such  claim  under  the 
present  act.  Under  section  4952  of  the 
Revised  Statutes,  an  author  of  a  book 
or  map  is  to  have  '  the  sole  liberty  of 
printing  .  .  .  and  vending  the  same,' 


olily  'upon  complying  with  the  pro- 
visions of  this  chapter ; '  that  is  to  say, 
all  the  provisions,  for  no  exception  is 
made.    No  one  provision  is  referred  to 
rather  than  another.   As  the  statute  has 
not  limited  the  acts  to  be  performed  to 
any  one  provision  less  than  the  whole, 
the  courts  have  no  authority  to  say 
that  any  one  rather  than  another,  less 
than  the  whole  is  sufficient.    Section 
4956  in  express  terms  declares  that '  no 
person  shall  be  entitled  to  a  copyright 
unless  he  shall  before  publication  der 
liver  at  the  office  of  the  Librarian  of 
Congress,  or  deposit  in  the  mail  ad- 
dressed to  the  Librarian  of  Congress, 
at  Washington,  District  of  Columbia, 
a  printed  copy  of  the  title  of  the  book 
or  other  article,  &c. ;   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  book,  or 
other  article,'  &c.    There  is  no  possible 
room  for  construction  here.    The  stat- 
ute says  no  right  shall  attach  until 
these  acts  have  been  performed ;  and 
the  court  cannot  say,  in  the  face  of 
this  express  negative  provision,  that  a 
right  shall  attach  unless  they  are  per- 
formed.     Until  the    performance    as 
prescribed,  there  is  no  right  acquired 
under  the  statute  that  can  be  violated. 
"  It  is  claimed  by  the  complainant  that 
section  4962  prescribes  the  essentials 
necessary  to  authorize  the  maintenance 
of  the  action  ;  and  that  the  court  can- 
not add  others.    It  is  upon  this  section 
that  it  is  sought  to  distinguish  this  case 
from  those  arising  under  former  acts, 
which  did  not  contain  the  provision. 
The  provision  relied  on  is,  that  '  no 
person  shall  maintain  an  action  for  the 
infringement  of  his  copyright,  unless  he 


STATUTORY  REQUISITES. 


267 


Section  4953  of  the  existing  statute  grants  copyright  for 
twenty-eight  years  "  from  the  time  of  recording  the  title,"  and 
section  4964  gives  the  owner  of  the  copyright  a  riglit  of  action 
against  every  person  who,  "  after  the  recording  of  the  title 
of  any  book,"  shall  without  authority  publish  or  sell  copies. 
Similar  provisions  were  contained  in  the  earlier  statutes.  They 
do  not,  as  has  been  erroneously  held,^  enable  a  person  to  main- 
tain an  action  at  law  for  the  violation  of  copyright  before  that 
right  has  been  completely  secured  by  performance  of  all  the 
statutory  requisites.  The  right  which  accrues  to  the  author  on 
recording  the  title  has  been  described  as  an  incomplete  one 
which  becomes  perfect  when  the  other  acts  prescribed  by  the 
statute  are  performed.  "  The  right,"  said  Mr.  Justice  Mc- 
Lean, in  pronouncing  the  judgment  of  the  Supreme  Court  of 
the  United  States,  "  undoubtedly  accrues  on  the  record  being 
made  with  the  clerk,  and  the  printing  of  it  as  required ;  but 
what  is  the  nature  of  that  right  ?  Is  it  perfect  ?  If  so,  the 
other  two  requisites  are  wholly  useless."  ^ 


shall  give  notice  thereof  by  inserting 
in  his  several  copies  of  every  edition 
published  ...  if  it  be  ...  a  map  .  .  . 
by  inscribing  upon  some  portion  of  the 
face  or  front  thereof,  or  on  the  face  of 
the  substance  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  Washing- 
ton." '  But  the  difficulty  in  adopting 
the  complainant's  view  is,  that  a  cause 
of  action  must  exist  before  an  action 
can  be  maintained;  and  there  can  be 
no  cause  of  action  till  a  right  exists, 
and  that  right  has  been  violated. 

"  Under  sections  4952  and  4956  the 
plaintiff  can  have  no  copyright  till  he 
has  performed  the  prescribed  condi- 
tions ;  and  until  he  has  acquired  his 
copyright,  there  can  be  no  violation  of 
that  right  at  all  which  can  afford  a 
ground  of  action.  Instead  of  section 
4952  being  a  limitation  of  the  acts  to  be 
performed,  or  alleged  in  order  to  entitle 
a  party  to  maintain  an  action,  it  im- 
poses an  additional  duty  upon  him  as 
a  prerequisite  to  its  maintenance.  He 
must  first  acquire  a  copyright  under 


the  other  provisions  of  the  act,  and 
then,  in  order  to  enforce  his  right 
against  infringers,  he  must  also  give 
notice  of  his  right  by  the  means  pre- 
scribed by  section  4962,  so  that  other 
parties  may  not  copy  his  work  in 
ignorance  of  his  rights.  This  seems  to 
be  the  object  of  the  provision.  An 
analogous  provision,  and  for  a  similar 
purpose,  copied  from  previous  acts,  is 
found  in  section  4900,  relating  to  patent 
rights. 

"  The  complainant's  claim  can  de- 
rive no  argumentative  support  against 
the  express  negative  provisions  of  the 
statute  already  cited  and  discussed, 
from  section  4960,  providing  for  a  pen- 
alty to  be  recovered  from  the  author 
on  failure  to  perform  all  the  conditions 
prescribed.  This  seems  to  be  intended 
to  furnish  additional  guarantees  against 
attempts  of  parties  to  avail  themselves 
of  the  benefits  of  a  copyright  without 
first  performing  all  the  conditions  pre- 
scribed in  order  to  confer  the  right." 
3  Sawyer,  382. 

1  Boucicault  v.  Wood,  2  Biss.  84. 
See  this  case  criticised  in  Chap.  XV. 

'^  Wheaton  v.  Peters,  8  Pet.  664. 


268 


THE  LAW  OF  COPYRIGHT  AND  PLAYRIGHT. 


Not  until  all  the  acts  prescribed  by  the  statute  are  performed 
is  the  copyright  perfected,  and  not  until  then  can  an  action  at 
law  be  maintained  for  its  violation.^  But  the  copyright,  when 
completed,  dates  from  the  time  of  recording  the  title,  and  from 
that  time  the  work  is  under  the  protection  of  the  law.  Other- 
wise, there  might  be  a  period  between  the  first  and  the  last  acts 
necessary  to  perfect  the  copyright,  during  which  the  author's 
property  would  be  exposed  to  piracy  without  any  present  or' 
future  remedy.  Hence,  a  wrong-doer  is  made  liable  for  a  wrong- 
ful act  done  at  any  .time  after  the  recording  of  the  title.  But  the 
remedy  at  law  for  such  wrongful  act  does  not  exist  until  the 
copyright  is  perfected. ^    In  equity,  however,  the  author  may  be 


"  Although  a  printed  copy  of  the  title 
of  such  book  is  required  before  the 
publication  to  be  sent  to  the  Librarian 
of  Congress,  j'et  this  is  only  as  a  des- 
ignation of  the  book  to  be  copyrighted ; 
and  the  riglit  is  not  perfected  under  the 
statute  until  the  required  copies  of  such 
copyright  book  are  after  publication 
also  sent."  Shepley,  J.,  Osgood  e. 
Allen,  1  Holmes,  192. 

'  Concerning  one  of  the  prescribed 
requisites,  viz.,  printing  the  copyright 
notice  in  the  book,  the  statute  expressly 
declares  that,  unless  this  is.  done,  no 
person  shall  maintain  an  action  for  in- 
fringement,   s.  4962. 

2  "  The  acts  required  to  be  done  by 
an  author  to  secure  his  right,  are  in 
the  order  in  which  they  most  naturally 
transpire.  First,  the  title  of  the  book 
is  to  be  deposited  with  the  clerk,  and 
the  record  he  makes  must  be  inserted 
in  the  first  or  second  page ;  then  the 
public  notice  in  the  newspapers  is' to  be 
giren ;  and,  within  six  months  after  the 
publication  of  the  book,  a  copy  must  be 
deposited  in  the  Department  of  State. 

"  A  right  undoubtedly  accrues  on 
the  record  being  made  with  the  clerk, 
and  the  printing  of  it  as  required ;  but 
what  is  the  nature  of  that  right  %  Is  it 
perfect  ?  If  so,  the  other  two  requisites 
are  wholly  useless.  How  can  the  author 
be  compelled  either  to  give  notice  in 
the  newspaper,  or  deposit  a  copy  in  the 
State  Department?  The  statute  affixes 
no  penalty  for  a  failure  to  perform  either 


of  these  acts  ;  and  it  provides  no  means 
by  which  it  may  be  enforced.  But  we 
are  told  they  are  unimportant  acts.  If 
they  are  indeed  wholly  unimportant. 
Congress  acted  unwisely  in  requiring 
them  to  be  done.  But  whether  they 
are  important  or  not  is  not  for  the  court 
to  determine,  but  the  legislature  ;  and 
in  what  light  they  were  considered  by 
the  legislature,  we  can  learn  only  by 
their  official  acts.  Judging  then  of 
tliese  acts  by  this  rule,  we  are  not  at 
liberty  to  say  they  are  unimportant, 
and  may  be  dispensed  with.  They  are 
acts  which  the  law  requires  to  be  done, 
and  may  this  court  dispense  with  their 
performance?  But  the  inquiry  is  made, 
Shall  the  non-performance  of  these  sub- 
sequent conditions  operate  as  a  forfeit- 
ure of  the  right  ?  The  answer  is,  that 
this  is  not  a  technical  grant  of  precedent 
and  subsequent  conditions.  All  the 
conditions  are  important ;  the  law 
requires  them  to  be  performed,  and 
consequently  their  performance  is  es- 
sential to  a  perfect  title.  On  the  per- 
formance of  a  part  of  them  the  right 
vests,  and  this  was  essential  to  its  pro- 
tection under  the  statute ;  but  other 
acts  are  to  be  done,  unless  Congress 
have  legislated  in  vain,  to  render  the 
right  perfect.  The  notice  could  not  be 
published  until  after  the  entry  with  the 
clerk,  nor  could  the  book  be  deposited 
with  the  Secretary  of  State  until  it  was 
published.  But  these  are  acts  not  less 
important  than  those   which   are  re- 


STATUTORT   REQUISITES.  269 

entitled  to  protection  as  soon  as  the  title-page  is  recorded,  and 
before  the  copyright  is  completely  secured,  provided  he  has  not 
been  guilty  of  negligence  in  completing  his  title.^ 

It  was  held  under  the  act  of  1790,  that  the  copyright  was 
not  defeated  by  failure  to  deliver  a  copy  of  the  book  within  the 
time  prescribed,  provided  such  delivery  was  made  before  the 
beginning  of  the  action.^  This  doctrine  is  clearly  wrong. 
The  statutes  have  expressly  named  the  time  within  which 
copies  shall  be  delivered,  and  the  courts  have  repeatedly  held 
that  a  strict  compliance  with  the  statutory  requirements  is 
essential.  In  the  recent  case  of  Chase  v.  Sanborn,  the  Circuit 
Court  of  the  United  States  held  that  it  was  not  enough,  under 
the  act  of  1831,  to  show  that  a  copy  of  the  work  had  been 
delivered  to  the  clerk  of  the  District  Court,  but  that  it  must 
appear  that  such  delivery  had  been  made  within  the  prescribed 
time  of  three  months.^ 

Requisites  in  Case  of  New  Editions.  —  Successive  editions  of  a 
book  which  are  mere  reprints  of  the  first  edition  will  be  pro- 
tected by  the  copyright  obtained  for  the  first  edition  without 
the  title  being  recorded  anew  or  additional  copies  delivered. 
The  original  copyright  notice,  however,  must  appear  in  each 
copy  of  every  edition.*  But  if  a  subsequent  edition  contains 
new  matter,  or  substantial  changes  in  the  old,  it  will  be  neces- 
sary, in  order  to  protect  such  additions  or  alterations,  to  obtain 
a  new  copyright;  in  which  case  all  the  requirements  of  the 
statutes  must  be  observed,  including  a  notice  of  the  new  entry 
of  copyright  to  be  printed  in  such  edition.^ 

quired  to  be  done  previously.     They  protect  until  the  other  acts  may  he 

form  a  part  of  the  title,  and  until  they  done."    Ibid.  332. 
are  performed,  the  title  is  not  perfect.         "  Dwight  v.  Appleton,  1  N.  Y.  Leg. 

The  deposit  of  the  book  in  the  Depart-  Obs.  195.     The  work  was  in  five  vol- 

ment  of  State  may  be  important  to  umes ;  the  first  and  third,  but  not  the 

identify  it  at  any  future  period,  should  others,  had  been  delivered  to  the  Secre- 

the  copyright  be  contested,  or  an  uu-.  tary  of    State  within  the  prescribed 

founded   claim    of  authorship  be  as-  time.     See  also  opinion  of  Attorney- 

serted."      McLean,    J.,    Wheaton    v.  General  Wirt,  in  Daboll's  Case,  1  Op. 

Peters,  8  Pet.  664.  Atty.-Gen.  532. 

1  Pulte  V.  Derby,  5  McLean,  828.         a  e  U.  S.  Pat  Off.  Gaz.  932. 
"  Until  these  things  [required  by  the         *  U.   S.  Kev.   St.   s.  4962 ;   act  of 

statute]   are  done,"  said  Mr.  Justice  June  18,  1874,  18  U.  S.  St.  at  L.  78. 
McLean,  "  the  copyright  is  not  perfect ;         *  Lawrence  v.  Dana,  2  Am.  L.  T. 

although  by  taking  the  incipient  step,  R.  n.  a.  402,  417-418 ;  Farmer  v.  Cal- 

a  right  is  acquired  which  chancery  will  vert  Lithographing,  Engraving,  &  Map- 


270 


THE   LAW   OP   COPYRIGHT  AND   PLATRIGHT. 


Must  Original  Copyright  Notice  be  Printed  in  Revised  Edition  ? 
—  In  Lawrence  v.  Dana,  the  Circuit  Court  of  the  United  States 
held  that  it  is  not  necessary  to  print  in  a  revised  edition  the 
notice  of  the  original  entry  of  copyright,  in  addition  to  the 
notice  of  the  new  entry.^ 


Publishing  Co.,  5  Am.  L.  T.  R.  168; 
Banks  v.  McDivitt,  13Blatchf.  163, 169. 
1  2  Am.  L.  T.  R.  n.  s.  402,  417-418. 
The  same  question  was  raised,  but  not 
judicially  discussed  or  decided,  in 
Banks  v.  McDivitt,  13  Blatchf.  163, 
169.  In  Lawrence  v.  Dana,  Mr.  Justice 
Clifford  said :  "  Second  defect  in  the 
copyright,  as  alleged  in  argument  by 
the  respondent, '  consists  in  the  omis- 
sion to  give  notice  in  said  editions  of 
the  copyright  secured  in  the  original 
edition.'  Persons  desirous  of  securing 
a.  copyright  must  comply  with  the 
conditions  of  the  copyright  act,  and  if 
they  fail  to  do  so  they  are  not  entitled 
to  the  benefit  of  its  provisions.  Au- 
thorities to  support  that  proposition 
are  not  necessary,  as  those  conditions 
are  prescribed  by  an  act  of  Congress. 
Deposit  must  be  made  before  publica- 
tion, if  the  subject-matter  is  a  book,  of 
a  copy  of  such  book  in  the  clerk's 
office  of  the  district  court,  as  before 
explained;  and  the  applicant  must 
give  information  of  copyright  being 
secured,  by  causing  to  be  inserted,  in 
the  several  copies  of  each  and  every 
edition  published  during  the  term  se- 
cured, on  the  title-page  or  the  page 
succeeding,  the  following  words,  viz. , 
'  Entered  according  to  act  of  Congress 
in  the  year  ,   by  A.   B.,  in  the 

clerk's  ofSce  of  the  district  court  of 
,'  (as  the  case  may 
be).  Beyond  doubt,  the  omission  to 
comply  with  those  requirements  ren- 
ders the  copyright  invalid,  as  the  act 
provides  that  no  person  shall  be  enti- 
tled to  the  benefit  of  the  act  unless  he 
fulfils  those  conditions ;  but  the  im- 
portant inquiry  arises.  What  are  those 
conditions  1  Full  compliance  with 
the  conditions  prescribed  in  the  fourth 
section  of  the  act  is  conceded;  but 
the  theory  of  the  respondents  is  that 
the    fifth    section    of     the      act    re- 


quires that  the  same  notice  in  totidem 
verbis  must  be  inserted  in  the  several 
copies  of  each  and  every  edition  pub- 
lished during  the  terra  secured,  so  that 
the  second  and  every  subsequent  edi- 
tion shall  correctly  specify  the  date  of 
the  original  entry.  They  cite  ■  no 
authorities  which  support  the  propo- 
sition, and  they  assign  no  reasons  in 
support  of  it,  except  that  the  act 
makes  no  provision  for  a  change  of  the 
date  in  the  successive  notices  to  be 
given,  and  that  the  omission  to  give 
notice  of  the  original  copyright  in 
subsequent  editions  tends  to  mislead 
the  public.  Acts  of  Congress  are  to  be 
construed  by  the  rules  of  the  common 
law,  and  the  construction  should  be 
such  as  will  carry  into  effect  the  true 
intent  and  meaning  of  the  legislature  ; 
but  the  province  of  construction  can 
never  extend  beyond  the  language 
employed  as  applied  to  the  subject-mat- 
ter and  the  surrounding  circumstances. 
"  Change  of  date  in  the  notice  re- 
quired in  case  of  successive  editions  of 
the  same  book,  it  may  be  conceded,  is 
not  contemplated  by  the  fifth  section  of 
the  copyright  act ;  but  the  meaning  of 
the  provision  is  that  a  new  notice  in 
the  same  prescribed  form  shall  be 
given  in  every  improved  edition  pub- 
lished during  tlie  term.  Compliance 
with  that  requirement,  when  the  orig- 
inal edition  is  published,  is  a  full  pro- 
tection for  that  edition  throughout  the 
term ;  but  it  is  no  protection  to  a 
second  edition  with  notes,  nor  to  any 
succeeding  edition  with  improvements, 
because  the  requirement  is  that  the 
'  information  of  copyright  secured ' 
shall  be  '  inserted  in  the  several  copies 
of  each  and  every  edition.'  Neglect  to 
comply  with  that  condition  in  a  second 
edition  will  not  vitiate  the  copyright 
of  the  original  edition,  if  it  was  regu- 
larly secured,  nor  will  a  valid  copy- 


STATUTORY  REQUISITES. 


271 


In   my  judgment  this  ia  not  the   right  interpretation   of 
the  law.     The  decision  was  rendered  under  the  act  of  1831. 


right  of  a  second  edition  cure  material 
defects  in  the  copyright  of  the  original 
edition.  Copyrights  of  the  editions  of 
a  work  other  than  the  original  edition 
are  granted  for  additions  to,  emenda- 
tions of,  or  improvements  in  tlie  work, 
and  every  copyright  should  bear  date 
of  the  day  when  it  was  secured. 

"  Autliors  or  proprietors  of  a  book 
for  which  a  copyright  is  secured  are 
required  by  the  second  section  of  the 
act  of  the  3d  of  March,  1865,  '  within 
one  month  of  the  date  of  publication ' 
to  transmit,  free  of  postage  or  other 
expense,  a  printed  copy  of  the  book  to 
the  library  of  Congress  at  Washington, 
for  the  use  of  said  library ;  and  the 
fourth  section  provides  that,  in  the  con- 
struction of  that  act  the  word  book 
shall  be  construed  to  mean  every  vol- 
ume and  part  of  a  volume,  together 
with  all  maps,  prints,  or  other  engrav- 
ings belonging  thereto,  and  shall  in- 
clude a  copy  of  any  second  or""subse- 
quent  edition  wliich  shall  be  published 
with  any  additions ;  but  the  proviso 
enacts  that  the  author  or  proprietor 
shall  not  be  required  to  deliver  to  the 
said  library  any  copy  of  the  second  or 
any  subsequent  edition  of  any  book, 
unless  the  same  shall  contain  additions 
as  aforesaid,  nor  of  any  book  not  the 
subject  of  copyright.  Prior  to  the 
passage  of  that  act,  the  courts  had 
decided  that  the  '  information  of  copy- 
right being  secured,'  if  duly  entered  in 
the  first  volume  of  a  work  of  several 
volumes,  was  sufficient;  but  all  the 
residue  of  the  provision  is  merely  in 
affirmance  of  the  true  intent  and  mean- 
ing of  tlie  copyright  act.  Dwight  v. 
Appleton,  1  N.  Y.  Leg.  Obs.  195. 
Subsequent  editions  without  altera- 
tions or  additions  should  have  the 
same  entry,  because  they  find  their 
only  protection  in  the  original  copy- 
right ;  but  second  or  subsequent  edi- 
tions with  notes  or  other  improvements 
are  new  books  within  the  meaning  of 
the  copyright  acts,  and  the  authors  or 
proprietors  of  the  same  are  required  to 


'  deposit  a  printed  copy  of  such  book,' 
and  '  give    information  of    copyright 
being  secured,'  as  if  no  prior  edition  of 
the  work   had  ever  been  published; 
and  the  term  of  the  copyright  as  to 
the  notes  or  improvements    is    com- 
puted from  the  time  of  recording  the 
title  thereof,  and  not  from  the  time  of 
recording  the  title  of  the  original  work. 
"  Copyrights,     like     letters-patent, 
affijrd  no  protection  to  what  was  ifot 
in  existence  at  the  time  when  they 
were  granted.      Improvements   in  an 
invention  not  made  when  the  original 
letters-patent  were  issued  are  not  pro- 
tected by  the  letters-patent,  nor  are 
the  improvements  in  a  book  not  made 
or  composed  when  the  printed  copy  of 
the  book  was  deposited  and  the  title 
thereof  recorded  as  required  in    the 
fourth  section  of    the  copyright  act. 
Protection  is  afforded  by  virtue  of  a 
copyright  of  a  book,  if  duly  granted, 
to  all  the  matter  which  the  book  con- 
tained when  the  printed  copy  of  the 
same  was  deposited  in  the  office  of  the 
clerk  of  the  district  court,  as  required 
by  the  fourth  section  of  the  copyright 
act;    but  new   matter  made  or  com- 
posed afterward  requires  a  new  copy- 
right, and  if  none  is  taken  out,  the 
matter  becomes  public  property,  just 
as  the  original  book  would  have  be- 
corne  if  a  copyright  for  it  had  never 
been  secured.    Publishers  may  be  in 
the  habit  of  inserting  more  than  one 
notice  in  new  editions,  but  there  is  no 
act  of  Congress  prescribing  any  such 
condition.      Whenever    a   renewal   is 
obtained  under  the   second   section  of 
the  copyright  act,  the  requirement  is 
that  the  title  of  the  work  so  secured 
shall  be  a  second  time  recorded,  and 
that  the  applicant  must  comply  with 
all  the  other  regulations  in  regard  to 
original  copyrights  ;  but  there  is  noth- 
ing in  any  act  of  Congress  to  show  that 
each  successive  edition  must  specify 
the  date  of  the  original  cojiyright,  as 
contended  by  the  respondents.    Ten- 
dency to  mislead  the  public  cannot  be 


272       THE  LAW  OP  COPYRIGHT  AND  PLATRIGHT. 

But  the  provisions  of  tlie  existing  statute  are  substantially  the 
same  as  those  of  the  former  one.  I  shall  consider  the  statute 
now  in  force. 

Section  4962  of  the  Revised  Statutes  enacts  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  "  words  showing  in  what  year 
and  by  whom  the  copyright  was  entered.^  Taken  in  connec- 
tion with  the  entire  statute,  the  object  and  efifect  of  this  pro- 
vision are  reasonably  clear.  The  statute  makes  no  express 
provision  for  securing  new  copyrights  for  successive  editions 
of  a  book.  If  one  edition  does  not  differ  from  another,  they 
are,  as  far  as  copyright  is  concerned,  the  same  work.  If  any 
one  contains  new  or  revised  matter,  it  is,  as  far  as  it  differs 
■from  another,  a  new  work  within  the  meaning  of  the  law. 
Copyright  is  secured  in  the  same  manner  as  in  the  case  of  a 
new  work.  Hence,  there  is  no  necessity  for  express  statutory 
provision  for  editions  differing  from  the  original.  Congress, 
then,  in  requiring  the  notice  of  entry  to  appear  in  each  volume 
of  every  edition,  had  in  view  but  one  copyright  and  but  one 
notice  of  entry ;  and  these  were  the  original  ones.  The  statute 
had  already,  in  a  previous  section,  prescribed,  as  conditions  of 
securing  copyright,  that  the  title  of  the  book  should  be  recorded 
before  publication,  and  two  copies  delivered  after  publication.^ 
Nothing  would  be  gained  by  requiring  these  things  to  be  done 
again,  when  a  new  edition  of  the  work  is  published  under  cover 
of  the  original  copyright.  Hence,  their  repetition  is  not  re- 
quired. But  the  purpose  of  the  copyright  notice  is  to  inform 
the  public  when  and  by  whom  the  book  was  copyrighted ;  and 
it  is  evident  that  this  object  is  not  attained  unless  this  informa- 
tion is  given  in  every  copy,  not  only  of  the  first,  but  of  every 
edition  published.  To  make  this  requirement  clear,  and  to 
prevent  the  construction  that  the  copyright  once  secured  could 
not  afterward  be  forfeited  by  omission  to  print  the  copyright 

successfully  predicated  of  a  copyright  gestion  of  the  respondents  upon  that 

in  due  form  of  law,  where  it  appears  subject."  2  Am.  L.  T.  R.  n.  s.  418. 
that  the  party  who  secured  it  complied         i  Section  5  of  the  act  of  1831  was 

with  all  the  conditions  prescribed  in  substantially  the  same, 
the  copyright  act,   whicli  is  all  that         ^  g,  4956. 
need  be  remarlted  in  reply  to  the  sug- 


STATUTORY   EEQ0ISITES.  273 

notice  p  any  subsequent  edition,  Congress  expressly  declares 
that  such  notice  shall  appear  in  every  edition.  No  mention  is 
made  of  the  notice  of  any  new  copyright  obtained  for  a  subse- 
quent edition ;  and  the  statute  cannot  rightly  be  construed  to 
the  effect  that  Congress  in  making  the  provision  under  consid- 
eration had  this  notice  in  view.  Such  construction  defeats  the 
very  object  of  requiring  a  notice  to  be  given.  For  the  notice 
of  the  new  entry,  while  it  gives  the  required  information  con- 
.cerning  the  new  copyright,  does  not  show,  what  the  statute 
expressly  declares  shall  be  shown,  when  and  by  whom  was 
entered  that  copyright,  which  alone  protects  the  greater  part 
of  the  new  edition.  Moreover,  to  prescribe  that  the  notice  of 
entry  of  the  new  copyright  in  any  edition  shall  be  printed  in 
that  edition  would  be  as  unnecessary  as  it  would  be  to  re-enact 
the  other  statutory  requisites  essential  to  secure  copyright  in  a 
new  edition.  Hence,  as  applied  to  any  other  than  the  original 
notice  of  entry,  the  provision  of  the  statute  under  consideration 
is  wholly  superfluous.  Applied  to  that  notice,  it  is  intelligible 
and  useful. 

It  is  conceded  that  the  printing  of  the  original  notice,  or  the 
absence  of  it,  in  any  subsequent  edition  can  have  no  effect  on 
the  copyright  in  the  new  matter  of  that  edition.  Such  matter 
is  entirely  distinct  from  the  original  work,  and  is  protected  by 
a  copyright  wholly  independent  of  the  original  copyright.  In 
other  words,  as  has  been  said,  the  revised  edition,  to  the  extent 
that  it  differs  from  any  preceding  edition,  is  a  new  work  within 
the  meaning  of  the  law.  It  is  not  less  true  that  the  copyright 
secured  for  a  new  edition  extends  only  to  what  is  new  in  that 
edition,  and  does  not  protect  what  was  before  published.  The 
latter  is  protected  by  the  copyright  secured  for  it,  and  not  by 
any  copyright  afterward  obtained. 

Whether,  then,  the  original  work,  or  any  unchanged  matter 
which  appeared  in  it,  is  entitled  to  protection,  is  to  be  deter- 
mined solely  by  the  validity  of  the  original  copyright,  and  is  in 
no  wise  affected  by  the  fact  whether  another  copyright  for  an 
improved  edition  has  or  has  not  been  obtained.  It  is  conceded 
that  each  copy  of  every  edition  which  is  not  different  from  the 
original  must  contain  the  original  notice,  and  that  any  cop- 
ies published  without  such  notice  becoihe  common  property. 

18 


274  THE  LAW  OP  COPYRIGHT   AND  PLATBIGHT. 

The  principle  is  the  same  when  the  original  is  reprinted  with 
new  matter  in  a  new  edition.  The  new  copyright  covers  the 
new,  but  not  the  old,  matter ;  the  new  notice  of  entry  applies 
to  what  then  first  appears  in  print,  but  not  to  what  was  before 
published.  In  such  case,  the  original  work  is  reprinted  with- 
out the  notice  of  entry  of  that  copyright  by  which  alone  it  is 
protected.  It  must  therefore  become  common  property,  not 
less  than  when  it  appears  without  the  notice  of  a  new  entry  of 
copyright. 

I  have  given  what  in  my  judgment  is  the  right  construction 
of  the  statute.  But  it  should  be  remembered  that  the  contrary 
doctrine  has  been  expressly  affirmed  by  so  learned  a  jurist  as 
Mr.  Justice  Cliffbrd. 

Books  in  two  or  more  Volumes.  —  When  a  book  is  published 
in  more  volumes  than  one,  it  is  obvious  that  a  copy  of  each 
volume  must  be  delivered  to  the  Librarian  of  Congress.  If  the 
several  volumes  are  issued  at  the  same  time,  there  would  seem 
to  be  no  reason  why  the  process  of  recording  the  title  should 
be  repeated  in  the  case  of  each  volume.  But  a  different  rule 
might  be  held  to  apply  where  the  volumes  are  issued  at  consid- 
erable intervals  of  time.  In  a  case  decided  in  1840,  it  was 
held  that,  where  the  notice  of  entry  had  appeared  only  in  the 
first  volume  of  a  work  in  five  volumes,  the  validity  of  the  copy- 
right in  the  other  four  was  not  thereby  defeated.^  The  statute 
does  not  expressly  prescribe  that  the  copyright  notice  shall  be 
printed  in  every  volume.  But,  as  the  chief  object  of  requiring 
the  notice  to  be  given  is  to  inform  and  warn  the  public  that  the 
book  is  protected  by  a  copyright,  which  cannot  be  infringed 
with  impunity,  it  is  clear  that  the  intention  of  Congress  may 
be  often  defeated,  unless  the  prescribed  notice  appears  in  every 
volume  of  the  work. 

Newspapers  and  Magazines.  —  When  the  different  parts  or 
numbers  of  any  publication  can  be  regarded  as  independent 
and  distinct  productions,  a  separate  copyright  must  be  secured 
for  each  one,  and  all  the  requirements  of  the  statute  must  be 
performed  in  the  case  of  each  one.  Thus,  each  number  of  a 
newspaper,  magazine,  or  other  periodical,  is  a  distinct  publica- 
"tion,  wholly  independent  of  any  other  number.  Hence,  a  dis- 
1  Dwiglit  V.  Appleton,  1  N.  Y.  Leg.  Obs.  195. 


STATUTORY   REQUISITES.  275 

tinct  copyright  must  be  obtained  for  each  number.  To  secure 
copyright  for  an  article  published  in  a  newspaper,  or  other 
uncopyrighted  publication,  the  copyright  notice  printed  at 
the  head  of  the  article,  or  in  some  other  conspicuous  place, 
would  doubtless  be  a  sufficient  compliance  with  that  provision 
of  the  statute  which  requires  such  notice  to  be  printed  on  the 
title-page,  or  that  next  following,  of  a  book. 

Delivery  of  Copies  to  Librarian  of  Congress.  —  Section  4956 
of  the  Revised  Statutes  provides,  as  has  been  shown,  that  no 
person  shall  be  entitled  to  copyright  unless  he  shall  deliver  or 
mail  to  the  Librarian  of  Congress  two  copies  of  the  book  or 
article  for  which  protection  is  claimed.  Section  4959  declares 
that  the  owner  of  every  copyright  book  or  other  article  shall 
deliver  or  mail  to  the  librarian. "  within  ten  days  after  its 
publication,  two  complete  printed  copies  thereof,  of  the  best 
edition  issued,  or  description  or  photograph  of  such  article  as 
hereinbefore  required,  and  a  copy  of  every  subsequent  edition 
wherein  any  substantial  changes  shall  be  made."  ^  Failure  to 
comply  with  this  requirement  will  subject  the  owner  of  the 
copyright  to  a  penalty  of  twenty-five  dollars.^  But  there  can 
be  little  doubt  that  copyright  may  be  secured  by  delivering  two 
copies  of  the  work,  pursuant  to  section  4956,  although  such 
copies  may  not  be  of  "  the  best  edition  issued,"  as  required  by 
section  4959. 

Section  4960;provides  that  "the  proprietor  of  any  copyright" 
shall  be  liable  to  a  penalty  of  twenty-five  dollars  for  failure  to 
deliver  to  the  Librarian  of  Congress,  within  ten  days  after  pub- 
lication, two  copies  of  the  book  or  other  article.  This  provision, 
as  its  language  imports,  doubtless  applies  only  to  publications 
which  have  been  entered  for  copyright,  and  not  to  those  for 

1  This  section  is  an  illustration  of  together.  The  only  effect  of  section 
how  loosely  statutes  are  sometimes  4959  is  to  secure  for  the  library  of 
drawn.  What  purpose  it  was  designed  Congress,  under  a  penalty  of  twenty- 
to  serve  is  by  no  means  clear.  If  it  five  dollars  for  non-delivery  imposed  by 
was  intended  to  make  the  delivery  of  section  4960,  two  copies  of  the  best 
two  copies  of  "the  best  edition"  of  a  edition,  instead  of  two  copies  of  any 
book  a  condition  essential  to  copyright,  edition,  as  requned  by  section  4956. 
that  object  would  not  only  have  been  Moreover,  the  word  description  is  care- 
better  secured  by  inserting  the  words  lessly  and  erroneously  used  in  sec- 
best  edition  in  section  4956,  but  it  tion  4969,  as  will  be  seen  by  a  care- 
is  defeated  by  the  construction  which  ful  comparison  of  this  with  section 
must  be  given  to  the  two  sections  taken  4956.                               2  g.  496O. 


276  THE  LAW  OP  COPYRIGHT  AND  PLATRIGHT. 

which  the  protection  of  the  statute  is  not  claimed.  Surelj,  it 
is  optional  with  an  author  or  publisher  eitlier  to  accept  or 
decline  the  privileges  offered.  In  the  former  case,  he  is  subject 
to  the  provisions  of  the  statute.  But  when  he  chooses  to  pub- 
lish his  work  without  making  any  claim  of  copyright,  and  the 
statute  grants  him  no  privileges,  there  is  no  reason  for  believing 
that  Congress  intended  to  subject  him  to  any  statutory  penalties. 

Penalty  for  Falsely  Printing  Copyright  Notice.  —  Any  person 
who  causes  a  copyright  notice  to  be  printed  in  a  book,  or  on 
any  other  article,  for  which  he  has  not  obtained  a  copyright,  is 
made  "  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."  ^ 

Fees  for  Securing  Copyrigbt.  —  The  only  fee  charged  for 
granting  a  copyright  is  one  of  fifty  cents,  to  be  paid  to  the 
Librarian  of  Congress  for  recording  the  title  of  a  book  or  the 
description  of  a  work  of  art.^  A  copy  under  seal  of  such  record 
may  be  obtained  from  the  librarian  by  paying  fifty  cents. 
But  the  taking  of  such  copy  is  optional  with  the  owner  of  the 
copyright.  Its  chief  use  seems  to  be  as  evidence  in  a  court 
that  the  title  of  the  work  has  been  recorded  in  conformity  with 
the  law ;  and  for  this  purpose  a  copy  of  the  record  may  be 
obtained  any  time  before  it  is  needed. 

Written  assignments  of  copyright  are  required  to  be  depos- 
ited in  the  office  of  the  Librarian  of  Congress  within  sixty  days 
after  their  execution.^  One  dollar  must  be  paid  to  the  librarian 
for  recording  and  certifying  an  assignment.  A  copy  of  the 
assignment,  with  a  certificate  under  seal  of  the  record,  may  be 
obtained  by  the  payment  of  one  dollar.* 

How  to  Secure  Renewal  of  Copyright.  —  In  order  to  secure  a 
renewal  of  copyright  for  tlie  additional  term  of  fourteen  years, 
which  is  given  to  the  author  or  his  widow  or  children,  suqh 
person  is  required  to  record  "  the  title  of  the  work  or  descrip- 
tion of  the  article  so  secured  a  second  time,"  and  to  comply 
"  with  all  other  regulations  in  regard  to  original  copyrights, 
within  six  months  before  the  expiration  of  the  first  term.  And 
such  person  shall,  within  two  months  from  the  date  of  said 

1  s.  4963.  2  s.  4958.  »  s.  4956. 

*  Act  of  June  18, 1874,  s.  2  ;  18  U.  S.  St.  at  L.  79. 


STATUTORY   EEQUISITES.  277 

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."  ^ 

Great  Britain. 

In  England,  there  are  no  statuTiory  regulations  whose  observ- 
ance is  essential  to  the  vesting  of  copyright  in  works  of  litera- 
ture. Such  works  must  be  registered  at  Stationers'  Hall 
before  an  action  at  law  or  a  suit  in  equity  can  be, brought  for 
piracy ;  but  the  validity  of  the  copyright  is  not  affected  by 
non-registration.  Delivery  of  copies  to  certain  libraries  is 
required ;  but  neither  the  copyright,  nor  the  remedies  for  its 
invasion,  are  made  dependent  on  such  delivery. 

DeUvery  of  Copies  to  Libraries. — The  present  statute  requires  a 
copy  of  every  book  published  to  be  delivered  to  the  British  Museum 
within  a  prescribed  time  after  publication ;  ^  and,  conditionally, 
to  the  Stationers'  Company  for  each  of  the  following  libraries : 
the  Bodleian  at  Oxford,  the  Public  at  Cambridge,  the  Library  of 
the  Faculty  of  Advocates  in  Edinburgh,  and  that  of  Trinity  Col- 
lege in  Dublin.*  The  author  or  publisher  is  not  bound  to  deliver 
a  copy  for  any  of  the  four  libraries  last  mentioned,  unless  a  writ- 
ten demand  is  made  on  behalf  of  the  library  within  one  year 
after  the  publication  of  the  book ;  and  the  copy  delivered  need  not 
be  of  the  best  edition.  The  delivery  to  the  British  Museum  is 
necessary  without  demand,  and  the  copy  must  be  one  of  the  best 
printed.  The  penalty  for  failure  to  deliver  copies,  either  to  the 
British  Museum  or  the  other  libraries,  is  forfeiture  of  the 
value  of  the  copy  which  should  have  been  delivered,  and  a  sum 
not  exceeding  five  pounds  to  be  recovered  by  the  librarian  or 
other  oiScer  of  the  library.*  The  above  provisions  concerning 
the  delivery  of  copies  apply  to  all  productions  which  may  be 
regarded  as  books  under  the  5  &  6  Vict.  c.  45  ;  ^  including  dra- 
matic and  musical  compositions,  maps,  and  charts,  but  not  prints, 
engravings,  photographs,  works  of  art,  &c.,  unless  published  as 
part  of  a  book. 

1  U.  S.  Rev.  St.  s.  4984.  '  s.  8. 

2  5  &  6  Vict.  c.  45,  ».  6.    DifiEerent         »  s.  10. 

times  for  delivery  are  prescribed  for         '  See  definition  of  book  in  s.  2. 
different  places  of  publication. 


278       THE  LAW  OP  COPYRIGHT  AND  PLATRIGHT. 

Registration.  —  Books.  —  The  statute  of  Anne  provided  that 
no  person  should  be  liable  to  its  forfeitures  or  penalties  for 
printing  any  book,  unless  the  title  thereof  had  been  registered 
before  publication  at  Stationers'  Hall.^  But  this,  as  judicially 
construed,  did  not  make  registration  necessary  to  complete  the 
copyright,  and  did  not  bar* the  owner  from  bringing  an  action 
for  damages,  although  the  book  had  not  been  registered.^ 

The  statute  of  Victoria  now  in  force  provides  for  the  entry, 
by  the  owner  of  the  copyright,  in  the  registry  book  of  the 
Stationers'  Company,  of  the  title  of  the  book,  and  the  time  of 
first  publication,  and  the  name  and  the  place  of  abode  of  the 
publisher  and  the  owner.^  The  charge  for  registration  is  five 
shillings.  A  certified  copy  of  registration  may  be  obtained  for 
five  shillings,  and  is  prima  facie  proof  of  ownership,  but  subject 
to  be  rebutted  by  other  evidence.*  The  statute  declares  that 
no  person  shall  maintain  an  action  or  suit,  at  law  or  in  equity, 
for  the  infringement  of  copyright  in  a  book,  unless  before  the 
beginning  of  the  action  or  suit  the  book  has  been  registered ; 
but  "  the  omission  to  make  such  entry  shall  not  affect  the 
copyright  in  any  book,  but  only  the  right  to  sue  or  proceed  in 
respect  of  the  infringement  thereof."  ^ 

The  utility  of  the  provision  requiring  registration  is  not 
apparent.     The  validity  of  the  copyright  is  in  no  wise  affected" 

1  8  Anne,  c.  19,  s.  2.  the  words  here  Italicized  are  incorrectly 

2  "  It  was  always  held,"  said  Lord  reported.  According  to  the  report  of 
Mansfield,  "  that  the  entry  in  Sta-  the  same  ease  in  Barnardiston,  Ch.  213, 
tioners'  Hall  was  only  necessary  to  Lord  Hardwioke  said  that  registration 
enable  the  party  to  bring  his  action  for  "  is  only  a  proyision  that  is  necessary 
the  penalty.  But  the  property  is  given  to  be  complied  with  when  the  penalty 
absolutely  to  the  author,  at  least  during  of  that  act  is  taken  advantage  of." 

the  term."    Tonson  v.  Collins,  1  W.         »  5  &  6  Vict.  c.  45,    s.   13.      In 

Bl.  330.     See  also  Beckford  v.  Hood,  Stevens  v.  Wildy,  19  L.  J.  n.  s.  (Ch.) 

7  T.  R.  620 ;  Cadell  v.  Roberts,  5  Pat.  190,  the  court  expressed  the  opinion 

App.   Cas.  493 ;  University  of  Cam-  that  the  author,   without  making  an 

bridge  v.  Bryer,  16  East,  317  ;  Rundell  assignment,  may  associate  any  person 

V.  Murray,  Jac.  311 ;  Colburn  v.  Simms,  with  himself  as  the  registered  owner  of 

2  Hare,  543 ;  Murray  v.  Bogue,  1  Drew,  the  copyriglit. 

853.    The  report  of  Blackwell  v.  Har-         *  s.   11.     See  Boosey  v.  Davidson, 

per     in    2  Atk.  95,  represents   Lord  13  Q.  B.  257 ;  Jeffreys  v.  Kyle,  18  Sc. 

Hardwicke  as  saying,  "  Upon  the  act  Sess.  Cas.  2d  ser.  906  ;  Hazlitt  v.  Tem- 

of  8  Anne  the  clause  of  registering  pieman,  13  L.  T.  n.  s.  598 ;  Graves's 

with  tlie  Stationers'  Company  is  rela-  Case,  Law  Rep.  4  Q.  B.  715. 
tive  to  the  penalty  and  the  property  can-         '  s.  24. 
not  vest  without  such  entry."    Doubtless 


STATUTORY   REQUISITES.  279 

by  registration  or  its  omission.  Nor  does  registration  serve  as 
a  notice  to  the  public  that  the  book  is  protected,  and  therefore 
cannot  lawfully  be  reprinted  without  license.  The  owner  is 
not  required  to  show  that  the  book  was  registered  when  the 
offence  complained  of  was  committed.  Registration  is  merely 
a  formal  act  which  must  be  performed  before  the  action  or  suit 
is  brought,  and  may  be  done  at  any  moment  before  that  time. 
It  is  simply  the  first  step  in  the  legal  proceedings  against 
piracy.^  But,  to  entitle  a  person  to  sue,  a  strict  compliance 
with  the  requirements  of  the  statute  as  to  registration  must  be 
shown.  A  false  entry  of  any  fact  required  by  the  statute  will 
defeat  the  registration.^  It  is  not  enough  to  register  the  month 
of  publication ;  the  day  must  be  given.^  An  error  of  two  days 
in  the  date  of  publication,  as  entered  in  the  registry,  has  been 
held  to  defeat  the  owner's  right  to  sue.*  So  also  the  registration 
was  held  to  be  vitiated  by  a  slight  error  in  the  name  of  the  firm 
registered  as  owners.^  But,  while  such  defects  in  the  registra- 
tion will  defeat  a  suit  already  begun,  a  new  and  correct  entry 
in  the  registry  may  be  made,  and  another  action  brought.^  No 
literary  work  can  be  lawfully  registered  before  it  is  published ; 
hence,  an  action  at  law  or  a  suit  in  equity  for  the  infringement 
of  copyright  cannot  be  brought  until  after  the  publication  of 
the  work.  "  It  is  inconsistent  with  the  whole  scheme  of  the 
Copyright  Act,"  said  Vice-Chancellor  Wood,  "  that  you  should 
be  able  to  register  a  book  not  published  ;  as  the  act  gives  a 
right  merely  from  the  date  of  first  publication,  and  it  must, 
therefore,  be  idle  to  register  a  book,  as  it  were,  in  embryo."  ^ 

1  Murray  ».  Bogue,  1  Drew.  353;     (Ch.)  717.   See  also  Page  w.  Wisden,  20 
Stannard  v.  Lee,  Law  Eep.  6  Ch.  346;    L.  T.  n.  s.  435. 

Hogg  V.  Scott,  Law  Rep.  18  Eq.  444 ;         *  Low  c;.    Routledge,   supra.     But 

Goubaud  v.  Wallace,  36  L.  T.  n.  s.  704.  where  the  address  of  the  publishers 

A  different  law  has  been  made  concern-  was  given  as  the  abode  of  the  author, 

ing    paintings,    drawings,  and    photo-  who  did  not  reside  in  England,  the 

graphs,  in  which  case  the  provisions  of  registration    was    held   to    be     good, 

the  statute  relating  to  registration  must  Lover  v.  Davidson,  1  C.  B.  n.  s.  182. 
be  complied  with  before  the  ofEence  is         ^  Low  v.  Routledge,  Law.   Rep.  1 

committed.     See  posi,  p.  281.  Ch.  42;   Stannard  v.  Lee,  6   Id.  846; 

2  CoUette  V.  Goode,  7  Ch.  D.  842.  Hogg  v.  Scott,  Law  Rep.  18  Eq.  444. 

8  Mathleson  v.   Harrod,  Law  Rep.         '  Correspondent  Newspaper  Co.  v. 

7  Eq.  270.     See  also  remarks  of  Black-  Saunders,  11  Jur.  n.  s.  540.    See  also 

burn,  J.,  Wood  o.  Boosey,  Law  Rep.  Murray  v.   Bogue,   1  Drew.  353,  and 

2  Q.  B.  355.  authorities  cited  p.  280,  note  3. 

*  Low  V.  Routledge,  33  L.  J.  n.  s. 


280  THE  LAW  OP  COPYRIGHT  AND  PLATEIGHT. 

Cyclopaedias  and  Periodicals.  —  In  the  case  of  "  any  encyclo- 
paedia, review,  magazine,  periodical  work,  or  other  work  pub- 
lished in  a  series  of  books  or  parts,"  it  is  enough  to  register  the 
title  of  the  work,  the  date  of  the  publication  of  the  first  volume, 
number,  or  part,  and  the  name  and  place  of  abode  of  the  owner 
and  the  publisher.^  When  the  first  volume,  number,  or  part 
has  been  registered,  all  following  numbers  of  the  same  work  or 
series  will  be  protected,  without  the  necessity  of  any  additional 
registration.^  If  the  first  number  be  registered  before  it  is 
published,  the  registration  is  not  valid.*  As  registration  of  the 
first  number  of  a  periodical  applies  to  future  issues,  it  extends 
to  and  protects  matter  not  published  at  the  time  of  registration. 
This  principle,  as  just  shown,  has  been  declared  to  be  unsound 
in  the  case  of  a  book.  But  the  copyright  cannot  vest  in  any 
number  of  the  periodical  until  that  number  is  published.* 

Newspapers.  —  It  has  been  held  that  articles  published  in  a 
newspaper  are  entitled  to  the  protection  of  the  copyright  stat- 
utes, although  neither  the  newspaper  nor  the  articles  have 
been  registered.^  The  unsoundness  of  this  decision  has  been 
pointed  out  elsewhere." 

Dramatic  Compositions.  —  According  to  the  judicial  construc- 
tion of  the  statute,  registration  is  not  necessary  either  to  secure 
the  exclusive  right  of  representing  a  dramatic  piece,  or  to  main- 
tain an  action  for  the  infringement  of  that  right.'^ 

Engravings  and  Prints.  —  The  copyright  in  engravings,  prints, 
and  lithographs  is  not  governed  by  5  &  6  Vict.  c.  46,  but  by 
statutes  which  do  not  require  I'egistration.^  But  an  action  for 
piracy  cannot  be  maintained  unless  the  date  of  publication  and 
the  name  of  the  owner  appear  on  the  print,  engraving,  or  litho- 

i  5  &  6  Vict.  c.  45,  3. 19.  6  Cox  v.  Land  &  Water  Journal  Co., 

2  See  Sweet  v.  Benning,  16  C.  B.  Law  Kep.  9  Eq.  324. 

459.  6  See  ante,  p.  172. 

'  Correspondent  Newspaper  Co.  v.  '  Russell  v.  Smith,  12  Q.  B.  217 ; 

Saunders,  11  Jur.  n.  s.  540;  s.  o.  12  Clark  v.  Bishop,  25  L.  T.  n.   s.  908. 

L.  T.  N.  s.  540 ;  Maxwell  v.  Hogg,  Law  See  also  Lacy  v.  Rhys,  4  Best  &  S. 

Rep.  2  Ch.   307 ;  Henderson  v.  Max-  873 ;  Marsh  v.  Conquest,  17  C.  B.  n.  s. 

well,  4  Ch.  D.  163,  on  ap.  5  id.  892.  418. 

See  also  Cassell  v.  StifC,  2  Kay  &  J.  8  g  Geo.  II.  c.  13  ;  7  Geo.  Ill  u.  38 ; 

279.  17  Geo.  III.  c.  57  ;  6  &  7  W.  IV.  c.  59 ; 

4  See  remarks  of  Lord  Chelmsford  15  &  16  Viet.  c.  12,  o.  14. 
in  Piatt  V.  Walker,  17  L.  T.  n.  s.  159, 
quoted  ante,  p.  169,  note. 


STATUTORY   REQUISITES.  281 

graph  for  which  protection  is  claimed.^  But  engravings  or 
illustrations  published  in  a  copyrighted  book  will  be  protected, 
though  the  name  of  the  owner  and  date  of  publication  do  not 
appear  on  them.^ 

Maps.  —  Maps,  which  were  formerly  within  the  provisions  of 
the  statutes  relating  to  engravings,  are  now  governed  by  5  &  6 
Vict.  c.  45.3  Hence,  the  same  regulations  apply  to  them  as  to 
books. 

Paintings,  Drawings,  and  Photographs. — These  productions 
are  within  25  &  26  Vict.  c.  68,  which  prescribes  the  manner  of 
registration,  and  declares  that  "  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  any  thing  done  before  registration."  * 
Under  this  act,  an  assignment  must  be  registered  to  entitle  the 
assignee  to  sue.* 

Sculpture.  —  The  54  Geo.  III.  c.  56,  which  grants  copyright 
in  sculpture,  models,  and  busts,  and  gives  a  special  action  on 
the  case  for  damages  as  a  remedy  for  infringement,  requires 
the  name  of  the  owner  and  the  date  of  publication  to  be  put 
on  the  work  "  before  the  same  shall  be  put  forth  or  published."  ^ 
The  13  &  14  Vict,  c  104,  provides  ^  for  the  registration  of  such 
works,  and  imposes  penalties  for  the  invasion  of  the  property 
therein ;  but  the  owner  is  not  entitled  to  the  benefit  of  such 
penalties,  unless  he  has  complied  with  the  provisions  relating 
to  registration,  and  marked  his  work  "  registered,"  with  the 
date  of  registration.^ 

Registration  under  International  Copyright  Acts.  —  The  form 
of  registration  necessary  to  secure  protection  under  the  Inter- 
national Copyright  Acts  is  prescribed  by  7  &  8  Vict.  c.  12. 


1  8  Geo.  II.  c.  13,  8.  1 ;  Harrison  v.  Rep.  8  Exch.  1.  See  also  Wilkins  v. 
Hogg,  2  Ves.  323 ;  Thompson  v.  Sym-  Aikin,  17  Ves.  422 ;  Barfield  u.  Nich- 
onds,  5  T.  R.  41;  Newton  c.  Cowie,  olson,  2  Sim.  &  St.  1;  Oobbett  w.  Wood- 
4  Bing.  234 ;  Brooks  v.  Cock,  3  Ad.  &  ward.  Law  Rep.  14  Eq.  407. 

El.  138 ;  Colnagiii  v.  Ward,  6  Jur.  969 ;         »  Stannard  v.  Lee,  Law  Rep.  6  Ch. 

Avanzo  v.  Mudie,  10  Exch.  Rep.  203  ;  346.     See  ante,  p.  174,  note  3. 

Graves  w.  Ashford,  Law  Rep.  2  C.  P.         *  s.  4.   See  £x /jorte  Beal,  Law  Rep. 

410 ;  Rock  </.   Lazarus,  Law  Rep.  15  3  Q.  B.  387. 

Eq.  104.  *  s.  4.     Graves's  Case,  Law  Rep. 

2  Bogue  V.  Houlston,    5  De  G.   &  4  Q.  B.  715. 

Sm.   267  ;   Bradbury  v.  Hotten,  Law  ^-  ss.  1,  3.  '  s.  6.  >  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,  <fec.,  from  the 
copyrighted  work  open  before  him,  he  must  write  his  own 
descriptions  from  actual  specimens  or  common  sources  of 
information.^ 

Work  on  Ethnology.  —  The  same  rule  was  followed  in  Pike  v. 
Nicholas,  where  two  rival  works  on  the  same  subject  were  in 
controversy.  The  same  arguments,  illustrations,  quotations, 
citations,  &c.,  were  found  in  both ;  and  it  was  evident  that,  for 
much  contained  in  his  own  publication,   the  defendant  was 

and  labor  which  he  has  employed,  that         i  Lawrence  v.  Dana,  2  Am.  L.  T. 

I  take  to  be  an  illegitimate  use.    That  R.  n.  s.  428. 

Mr.  Philp  has  made  this  use  of  the         '^  Kelly  v.  Morris,  Law  Rep.  1  Eq. 

plaintiffs'    book  to  a  certain   extent,  697 ;  Morris  v.  Ashbee,  7  Id.  34 ;  Mor- 

I   find   to   be   clear."     3    Kay  &  .1.  ris  v.  Wright,  Law  Rep.  6  Oh.  279. 
715.     See  also  Jarrold  v.  Heywood,  18         s  Hogg  v.  Scott,  Law  Rep.  18  Eq. 

W.  R.  279.  444. 


PIRACY. 


397 


indebted  to  that  of  the  plaintiff.  The  Court  of  Appeal  found 
that,  while  the  defendant  had  been  led  by  perusing  the  earlier 
work  to  cite  authorities,  make  quotations,  &c.,  which  otherwise 
would  have  escaped  his  notice,  he  had  not,  with  two  unimpor- 
tant exceptions,  copied  directly  from  the  plaintiff's  production ; 
but,  using  it  as  a  guide,  had  obtained  the  materials  from  the 
original  sources,  and  worked  them  up  by  his  own  labor.  This 
was  held  to  be  a  fair  use.^ 

Dictionary.  — In  Spiers  v.  Brown,  Vice-Chancellor  Wood  had 
great  difficulty  in  determining  whether,  in  the  preparation  of 
a  dictionary,  M.  Contanseau  had  made  an  unlawful  use  of  the 
French-English  Dictionary  of  Dr.  Spiers.  The  extent  of  the 
use  in  this  case  cannot  be  satisfactorily  determined  from 
the  report.    It  was  admitted  that  Dr.  Spiers's  work  had  been 


»  Law  Rep.  6  Ch.  251.  Lord  Chan- 
cellor Hatherley  said:  "The  result, 
therefore,  of  the  whole  case  was  this  ; 
The  defendant  was  led  to  look  into  the 
particular  portions  of  Prichard  by 
some  of  the  quotations  of  the  plaintiff. 
Being  directed  to  that  part  of  Prich- 
ard, he  did  go  to  Prichard's  book  ;  for 
there  is  in  his  book  a  passage  omitted 
by  the  plaintiff.  He  was  directed  by 
a  passage  in  the  plaintiff's  book,  which 
referred  to  Gildas,  to  inquire  into 
Gildas,  which  possibly  he  never  might 
have  done  if  the  plaintiff  had  not  led 
the  way  by  pointing  to  that  author 
and  to  the  work  of  Sir  T.  D.  Hardy. 
Upon  perusing  Sir  T.  D.  Hardy's  work, 
the  defendant  found  an  account  of 
Gildas,  and  a  reference  to  Nennius, 
and  certain  remarks  of  Gibbon ;  and 
then  he  followed  out  those  remarks 
by  such  remarks  as  he  himself  made 
upon  the  whole  subject.  ...  If  the 
defendant  had  been  disposed  to  do 
what  common  fairness  and  justice  re- 
quired him  to  do,  to  say  nothing  of  the 
oath  which  he  took  when  he  put  in  his 
answer,  and  had  fairly  said,  'I  ac- 
knowledge my  obligation  to  this  gen- 
tleman in  putting  me  on  a  course  of 
thorough  critical  investigation  of  Gil- 
das, to  begin  with ;  I  beg  to  express 
my  obligations  to  him  in  giving  me  the 
idea,  through  the  medium  of  the  tables 


to  which  I  have  had  resort,  of  investi- 
gating the  population  of  London,  and 
the  number  of  persons  brought  up 
from  the  country,  and  I  beg  also  to 
express  my  obligations  .to  him  for 
pointing  out  that  passage  in  Eetzius 
which  escaped  my  attention,'  nobody 
could  have  blamed  him  as  being  a 
pirate,  or  have  said  that  what  he  had 
done  amounted  to  piracy.  That  course, 
unfortunately,  was  not  taken."  Ibid, 
265. 

In  Morris  v.  "Wright,  Giffard,  L.  J., 
said :  "  In  the  late  case  of  Pike  v. 
Nicholas,  we  had  this ;  Two  rival  works 
were  published  with  reference  to  the 
same  subject-matter,  and  we  thought 
certainly  that  the  defendant  had  been 
guided  by  the  plaintiff's  book,  more  or 
less,, to  the  authorities  which  the  plain- 
tiff had  cited ;  but  it  was  a  perfectly 
legitimate  course  for  the  defendant  to 
refer  to  the  plaintiff's  book,  and  if, 
taking  that  book  as  his  guide,  he  went 
to  the  original  authorities  and  com- 
piled his  book  from  them,  he  made  no 
unfair  or  improper  use  of  the  plaintiff's 
book ;  and  so  here,  if  the  fact  be  that 
Mr.  Wright  used  the  plaintiff's  book  in 
order  to  guide  himself  to  the  persons 
on  whom  it  woilld  be  worth  his  while 
to  call,  and  for  no  other  purpose,  he 
made  a  perfectly  legitimate  use  of  the 
plaintiff's  book."    Law  Eep.  6  Ch.  287. 


398  THE  LAW  OF  COPYRIGHT  AND  PLATKIGHT. 

used  in  common  with  other  dictionaries,  but  to  a  greater 
extent ;  but  there  was  no  evidence  of  servile  copying,  "  no 
colorable  alteration  proved,  nor  any  thing  tending  to  show  a 
fraudulent  design  to  make  an  unfair  use  of  the  work  of  another." 
"  Though  a  good  deal  has  been  here  taken  from  the  plaintiff," 
said  the  court,  "  yet  a  good  deal  of  labor  has  been  bestowed 
upon  what  has  been  taken  ;"  and  "  the  result  is,  in  fact,  a  dif- 
ferent work  from  that  of  the  plaintiff."  Applying  the  test  laid 
down  by  Lord  Eldon,  whether  there  had  been  made  "  a  legiti- 
mate use  of  the  plaintiff's  publication  in  the  fair  exercise  of  a 
mental  operation  deserving  the  character  of  an  original  work,"  ^ 
the  court  was  of  opinion  that  M.  Contanseau  had  not  gone 
beyond  the  use  allowed  by  law ;  but  considering  the  extent  to 
which  he  had  availed  himself  of  the  results  of  Dr.  Spiers's 
labors,  the  bill  was  dismissed  without  costs.^ 

Statisttoa.  —  Where  the  question  related  to  statistical  tables, 
which  the  defendant  had  taken  from  the  plaintiff's  publication, 
Vice-Chancellor  Wood  remarked  that  "  the  defendant,  after 
collecting  the  information  for  himself,  might  have  checked  his 
results  by  the  plaintiff's  tables."  ^  This,  doubtless,  means  that 
the  defendant  was  free  to  compare  his  own  tables  with  those  of 
the  plaintiff  to  ascertain  whether  there  were  errors  in  his  own, 
and  to  correct  them,  if  any  were  found,  by  independent  means. 
The  authorities  are  clear  to  the  effect  that  he  would  have  no 
right  to  make  corrections  in  his  own  by  servilely  copying  the 
plaintiff's  figures. 

General  Test  of  Pair  Use.  —  The  general  test  for  determining 
whether  a  fair  or  a  piratical  use  has  been  made  of  one  work  in 
the  preparation  of  another  will  be,  whether  the  later  one  or  the 
part  in  question  is  the  result  of  independent  labor,  or  is  sub- 
stantially copied  from  the  earlier  one.  The  aim  of  the  law  is 
to  encourage  learning  by  allowing  a  fair  use  to  be  made  of  a 
copyrighted  work,  but  at  the  same  time  to  prevent  the  subse- 
quent author  from  saving  himself  labor  by  appropriating  with- 
out consideration  the  fruits  of  another's  skill  and  industry.  It 
is  true  that  a  subsequent  author,  keeping  within  the  letter  of 
the  law  defining  a  fair  use,  will  often  avail  himself  to  no  small 

1  Wilkins  v.  Aikin,  17  Ves.  426.  «  ggotf  „,  Stanford,  Law  Eep.  3  Eq. 

2  31  L.  T.  E.  16 ;  s.  c.  6  W.  R.  352..   724. 


PIRACY.  399 

extent  of  the  learning  and  industry  of  another,  and  give  to  his 
own  book  a  value  which  properly  belongs  elsewhere.  In  other 
words,  a  fair  use  in  law  may  in  ethics  amount  to  plagiarism. 
But  this  cannot  well  be  avoided. 

General  Principles  Relating  to  Piracy. 

Copying  from  Protected  Work  Essential  to  Piracy.  —  Without 
regard  to  its  size,  its  character,  or  the  form  in  which  it  is  pub- 
lished, every  production  which  is  a  subject  of  copyright  is  an 
object  of  piracy.  Copying  or  borrowing  from  a  protected  work 
is  an  essential  element  of  piracy.  It  is  a  fundamental  principle 
of  the  law  of  copyright  that  two  or  more  works  may  be  similar 
or  identical,  and  each  will  be  entitled  to  protection ;  provided 
it  is  the  result  of  independent  labor,  and  not  of  unlawful  copy- 
ing. Hence,  even  when  the  publication  complained  of  is  iden- 
tical with  that  for  which  protection  is  claimed,  the  charge  of 
piracy  may  be  met  by  showing  that  one  has  not  been  copied  or 
borrowed  from  the  other.i 

But  it  is  no  defence  of  piracy  that  a  piratical  copy  of  a  pro- 
tected work  has  been  copied.  Thus,  in  an  English  case,  where 
it  appeared  that  the  defendant  had  taken  from  a  foreign  publi- 
cation matter  which  had  been  copied  without  authority  from 
the  plaintiff 's  book,  the  court  rightly  held  that  such  copying, 

'  See  the  consideration  of  tiiis  point  -  epects  resemble  each  other,  and   yet 

and  the  authorities  cited  under  the  head  there  may  have  been  no  piracy."    2 

of  Originality,  ante,  pp.  205-208.  Coop.  (temp.  Cottenham)  217. 

"  It  is  obvious,"  said  the  Vice-Chan-  "  But  he  is  not  liable,  unless  the 
cellor,  in  Nichols  v.  Loder,  "  if  two  musical  composition  caused  to  be  en- 
persons  of  equal  skill  set  to  work  to  graved  or  printed  for  sale  by  him  is 
prepare  such  a  map  as  this,  the  scale  the  same  with  that  of  Russell  in  the 
being  the  same,  that  the  maps  will  be  main  design  and  in  its  material  and 
almost /ac  similes.  The  affidavits  must  important  parts,  altered  as  above  men- 
satisfactorily  show  that  the  defendant's  tioned  to  evade  the  law  ;  nor  is  he  lia- 
map  is  not  produced  by  his  own  labor  ble  to  this  action,  although  it  is  the 
employed  upon  materials,  and  aided  same  in  these  respects,  provided  it  was 
by  information,  common  to  him  as  well  not  taken  from  Russell's,  but  was  the 
as  to  the  plaintiff;  but  that  it  has  been  effort  of  his  own  mind,  or  taken  from 
actually  copied  from  the  plaintiff's  an  air  composed  by  another  person, 
map,  with  perhaps  some  colorable  or  who  was  not  a  plagiarist  from  that  of 
evasive  alterations.  Now,  in  order  to  Russell."  Taney,  C.  J.,  Reed  b.  Carusi, 
make  this  out,  something  more  is  requi-  Tan.  Dec.  74.  See  also  remarks  of 
site  than  the  fact  of  there  being  in  Vice-Chancellor  Leach,  in  Barfleld  v. 
appearance  no  difference  between  the  Nicholson,  2  L.  J.  (Ch.)  98. 
two  maps.    The  maps  may  in  all  re- 


400  THE  LAW  OP  COPYRIGHT  AND  PLATRIGHT. 

to  a  material  extent  by  the  defendant,  would  amount  to  piracy.^ 
In  this  case,  the  unauthorized  sale  in  England  of  the  foreign 
work  itself  would  have  been  piratical,  if  it  contained  a  mate- 
rial part  of  an  English  copyrighted  book. 

The  principle  that  copying  from  a  protected  publication  is 
an  essential  element  of  piracy  must  hold  good  when  an  author 
has  published  substantially  the  same  work  in  two  forms,  of 
which  but  one  is  copyrighted.  The  one  unprotected  is  common 
property ;  hence  its  use  cannot  be  a  violation  of  the  copyright 
in  the  other.  It  is  true  that  to  copy  one  may  be  but  an  indi- 
rect copying  of  the  other.  But  the  answer  to  this  objection  is 
that  copyright  does  not  prevent  any  person  from  using  a  work 
which  he  has  obtained  from  a  source  open  to  all.^  Thus,  if  an 
author  publish  and  copyright  a  novel,  and  then  publish  sub- 
stantially the  same  production  in  the  form  of  a  play,  without 
copyrighting  it,  the  latter  becomes  common  property ;  and  its 
unlicensed  publication  cannot  be  an  invasion  of  the  copyright 
in  the  novel.  This  principle  may  be  illustrated  by  supposing 
a  case  which  may  arise  under  the  statute  of  the  United  States. 
Section  4962  makes  the  printing  of  the  notice  of  entry  in  each 
copy  of  every  edition  of  a  book  published  essential  to  copy- 
right. Suppose  the  first  edition  is  printed  with  and  the  second 
without  a  notice,  the  latter  edition  is  not  entitled  to  protection ; 
and,  even  if  the  copyright  in  the  first  edition  continue  valid,  it 
cannot  prevent  any  person  from  reprinting  any  copy  of  the 
second  edition. 

Similarity  Creates  Presumption  of  Copying.  —  Substantial  iden- 
tity, or  a  striking  resemblance,  between  the  work  complained 
of  and  that  for  which  protection  is  claimed,  creates  a  presump- 
tion of  unlawful  copying,  which  must  be  overcome  by  the  de- 
fendant.3 

1  Murray  v.  Bogue,  1  Drew.  853.         v.  Arthur,  1  Hem.  &  M.  603 ;  Pike  v. 

2  This  principle  has  been  overlooked  Nicholas,  Law  Eep.  5  Ch.  251 ;  Blunt 
or  disregarded  in  two  or  three  irapor-    v.  Patten,  2  Faine,  893. 

tant  English  decisions.  See  the  criti-  "  If  the  similitude  can  be  supposed 
cism  of  the  judgments  in  Reade  v.  Con-  to  have  arisen  from  accident ;  or  neces- 
quest,  post,  p.  468 ;  Boosey  v.  Fairlie,  sarily  from  the  nature  of  the  subject ; 
Chap.  XV. ;  Ex  parte  Beal,  Chap.  X.  or  from  the  artist  having  sketched  de- 
s  Mawman  v.  Tegg,  2  Russ.  885;  signs  merely  from  reading  the  letter- 
Jarrold  v.  Houlston,  3  Kay  &  J.  708 ;  press  of  the  plaintiff's  work,  —  the  de- 
Spiers  V.  Brown,  6  W.  B.  352;  Hotten  fendant    is    not    answerable.     It    is 


PIRACY. 


401 


Intention  to  Pirate  not  Essential.  —  To  constitute  piracy,  it  is 
not  necessary  that  there  shall  have  been  on  the  part  of  the 
wrong-doer  an  intention  to  pirate.  His  motives  in  taking  the 
■whole  or  a  part  of  the  copyrighted  work  may  have  been  unob- 
jectionable, or  even  commendable ;  the  purpose  for  which  such 
matter  is  used  may,  in  his  view,  be  harmless.  In  applying  the 
law,  the  thing  done  and  its  effect,  and  not  the  intention  with 
which  it  is  done,  are  the  controlling  considerations.^ 

In  some  cases,  as  where  extracts  are  taken  from  a  copy- 
righted work  for  criticism  or  other  lawful  purpose,  it  will  be 
necessary  to  inquire  for  what  purpose  such  quotations  are  used. 
But  the  point  to  be  determined  here  is,  not  what  object  the 
subsequent  writer  had  in  view  in  using  the  matter,  nor  what 
his  belief  may  be  as  to  whether  that  object  is  a  harmless  one 
or  not,  but  what  purpose  the  publication  complained  of  actually 
serves.^  Thus,  a  person  may  publish  copious  extracts  from  a 
copyrighted  work  for  the  lona  fide  purpose  of  legitimate  criti- 


remarkable,  however,  that  he  has 
given  no  evidence  to  explain  the 
similitude,  or  to  repel  the  presumption 
which  that  necessarily  causes."  Lord 
Ellenborough,  Roworth  v.  Wilkes,  1 
Camp.  99. 

"  Copying  is  essential  to  constitute 
an  infringement  of  copyright,  but  iden- 
tity of  contents,  arrangement,  and  com- 
bination is  strong  evidence  that  the 
second  book  was  borrowed  from  the 
first,  as  it  is  highly  improbable  that  two 
authors  would  express  their  thoughts 
and  sentiments  iii  the  same  language 
throughout  a  book  or  treatise  of  any 
considerable  size,  or  adopt  the  same 
arrangement  or  combination  in  their 
publication."  Clifford,  J.,  Lawrence 
V.  Dana,  2  Am.  L.  T.  R.  n.  b.  427. 

1  Br.  Roworth  v.  Wilkes,  1  Camp. 
94;  Campbell  v.  Scott,  11  Sim.  31; 
Clement  v.  Maddick,  1  Giff.  98  ;  Reade 
V.  Lacy,  1  Johns.  &  H.  524 ;  Scott  v. 
Stanford,  Law  Rep.  3  Eq.  718.  Am. 
Millett  V.  Snowden,  1  West.  Law  Jour. 
240;  Story's  Executors  v.  Holcombe, 
4  McLean,  306 ;  Lawrence  v.  Dana,  2 
Am.  L.  T.  R.  N.  8.  427,  428. 

"  It  is  urged  that  this  is  a  case  in 
which  no  animus  furandi  can  bp  found 


on  the  part  of  Mr.  Hunt,  who  has  taken 
these  statistics  in  perfect  good  faith, 
and  with  the  fullest  acknowledgment 
in  his  book  of  the  source  from  which 
they  are  derived.  But  if,  in  effect, 
the  great  bulk  of  the  plaintiff's  pro- 
duction —  a  large  and  vital  portion  of 
his  work  and  labor  —  has  been  appro- 
priated and  published  in  a  form  which 
will  materially  injure  his  copyright, 
mere  honest  intention  on  the  part  of 
the  appropriator  will  not  suffice;  as 
the  court  can  only  look  at  the  result, 
and  not  at  the  intention  in  the  man's 
mind  at  the  time  of  doing  the  act 
complained  of,  and  he  must  be  pre- 
sumed to  intend  all  that  the  publica- 
tion of  his  work  effects."  Wood,  V.  C, 
Scott  V.  Stanford,  supra,  728. 

In  Campbell  v.  Scott,  Shadwell, 
V.  C,  said:  "Then,  it  is  said  that 
there  is  no  animus  furandi;  but,  if  A 
takes  the  property  of  B,  the  animus 
furandi  is  inferred  from  the  act."  11 
Sim.  38.  But  it  is  now  settled  that 
the  inference  or  presumption  of  a  dis- 
honest intention  is  not  essential. 

2  Campbell  v.  Scott,  11  Sim.  31; 
Bradbury  v.  Hotten,  Law  Rep.  8  Exch. 
1 ;  Smith  v.  Chatto,  31  L.  T.  N.  s.  775. 


26 


402 


THE  LAW  OP   COPYRIGHT   AND  PLATRIGHT. 


cism ;  yet  such  quotations  may  in  reality  serve  a  purpose  not 
intended  by  the  critic,  and  amount  to  piracy.^ 

Intention  may  Aid  in  Determining  whether  there  has  been 
Copying.  —  There  are  cases,  however,  in  which  the  animus 
furandi  will  be  taken  into  consideration  in  determining  whether 
one  publication  infringes  another.  Where  it  can  be  readily 
shown  that  there  has  been  material  copying,  it  matters  not  with 
what  intent  the  copying  was  done  ;  but  where  it  is  difficult  to 
ascertain  the  extent  of  the  copying,  in  order  to  determine 
whether  the  use  made  of  a  protected  work  by  a  subsequent 
author  is  "  fair  "  or  unlawful,  the  animus  furandi  may  aid  in 
the  solution  of  the  question.     Thus,  in  Spiers  v.  Brown,  where 


1  In  Gary  v.  Kearsley,  Lord  Ellen- 
borough  seems  to  have  laid  some 
stress  on  the  existence  of  the  animus 
furandi.  "  A  man,"  he  said,  "  may 
fairly  adopt  part  of  the  work  of  an- 
other ;  he  may  so  make  use  of  an- 
other's labors,  for  the  promotion  of 
science  and  the  benefit  of  the  public  ; 
but,  having  done  so,  the  question  will 
be.  Was  the  matter  so  taken  used  fairly 
with  that  view,  and  without  what  I 
may  term  the  animus  furandi  ?  "  4  Esp. 
170.  Doubtless  what  Lord  EUenbor- 
ough  meant  was,  not  tliat  a  dishonest 
intention  is  essential  to  piracy,  but 
that,  when  such  intention  is  shown  to 
have  existed,  the  question  whether 
there  has  been  an  unfair  use  may  be 
more  readily  determined.  The  same 
judge  held,  in  the  subsequent  case  of 
Eoworth  I).  Wilkes,  that  "  the  intention 
to  pirate  is  not  necessary  in  an  action 
of  this  sort :  it  is  enough  that  the  pub- 
lication complained  of  is  in  substance 
a  copy  whereby  a  work  vested  in  an- 
other is  prejudiced."    1  Camp.  98. 

In  Folsom  v.  Marsh,  Mr.  Justice 
Story  said :  "  No  one  can  doubt  that 
a  reviewer  may  fairly  cite  largely  from 
the  original  work,  if  his  design  be 
really  and  truly  to  use  the  passage  for 
the  purposes  of  fair  and  reasonable 
criticism.  On  the  other  hand,  it  is  as 
clear,  that  if  he  thus  cites  the  most 
important  parts  of  the  work,  with  a 
view  not  to  criticise,  but  to  supersede, 
the  use  of  the  original  work,  and  sub- 


stitute the  review  for  it,  such  a  use 
will  be  deemed  in  law  a  piracy."  2 
Story,  106. 

The  true  doctrine  is  not  accurately 
expressed  here,  because  the  question 
of  piracy  is  made  to  depend  on  the 
intention  of  the  reviewer,  whereas  the 
proper  test  is  the  purpose  which 
the  publication  complained  of  serves ; 
in  other  words,  how  far  it  may  take 
the  place  of  the  original  work.  The 
law  on  this  point  has  been  correctly 
expounded  by  Mr,  Justice  McLean, 
who,  after  quoting  the  above  language 
of  Judge  Story,  said  :  "  This  doctrine 
seems  to  consider  the  intenticm  with 
which  the  citations  are  made  as  neces- 
sary to  an  infringement.  In  Gary  v. 
Kearsley,  4  Esp.  170,  Lord  Ellen- 
borough  takes  the  same  view.  But 
I  cannot  perceive  how  the  intention 
with  which  extracts  were  made  can 
bear  upon  the  question.  The  inquiry 
is.  What  effect  must  the  extracts  have 
upon  the  original  work  ?  If  they  ren- 
der it  less  valuable,  by  superseding  its 
use  in  any  degree,  the  right  of  the 
author  is  infringed ;  and  it  can  be  of 
no  importance  to  know  with  what  in- 
tent this  was  done.  Extracts  made 
for  the  purpose  of  a  review  or  com- 
pilation are  governed  by  the  same 
rule.  In  neither  case  can  they  be 
extended  so  as  to  convey  the  same 
knowledge  as  the  original  work." 
Story's  Executors  v.  Holcombe,  4  Mc- 
Lean, 310. 


PIRACY.  403 

the  defendant  admitted  that  he  had  used  the  plaintiff 's  diction- 
ary in  preparing  his  own,  Vice-Ohancellor  Wood  was  perplexed 
in  finding  whether  there  had  been  piratical  copying,  and  said : 
"  If  the  defendant  had  absolutely  denied  having  received  any 
assistance  from  the  plaintiff's  work,  the  court  would  have  had 
a  plain  course,  the  animus  furandi  being  made  out."  ^  But 
not  even  in  these  cases  is  the  intention  to  pirate  essential  to 
constitute  infringement.  The  existence  of  such  intention  is 
material  only  as  far  as  it  may  aid  in  determining  to  what 
extent  the  earlier  work  has  been  adopted  in  the  later  one ;  for, 
when  the  animus  furandi  is  apparent,  the  presumption  is,  in 
the  absence  of  strong  evidence  to  the  contrary,  that  the  like- 
ness between  the  two  works  is  due  to  copying;  whereas, 
without  the  animus  furandi,  many  of  the  resemblances  may  be 
regarded  as  natural  and  the  result  of  honest  labor.^ 

Ignorance  no  Defence  of  Piracy.  —  Ignorance  will  not  avail  as 
a  defence  of  piracy.  Whether  he  who  appropriates  the  whole 
or  a  part  of  another's  work  was  aware  that  it  was  protected  by 
copyright,  or  whether  he  ^new  what  would  be  the  legal  conse- 
quences of  his  act,  is  wholly  immaterial.  The  theory  of  the  law 
in  this  respect  is,  that  whoever  avails  himself  of  the  labors  of 
another  must  do  so  at  his  own  risk,  and  must  be  held  respon- 
sible for  his  acts  without  regard  to  tiie  extent  of  his  knowledge 
or  ignorance.^  "  The  plaintiff's  rights,"  said  Chief  Justice 
Wilde,  "  do  not  depend  upon  the  innocence  or  guilt  of  the 
defendant.  .  .  .  The  statute  would  altogether  fail  to  effect  its 

1  31  L.  T.  R.  18  ;  s.  o.  6  W.  R.  352.  3  Br.  West  v.  Francis,  5  Barn.  & 
See  also  Jarrold  v.  Houlston,  3  Kay  &  Aid.  737  ;  Lewis  v.  Cliapman,  3  Beav. 
J.  712;  Eeade  v.  Lacy,  1  Johns.  &  H.  183;  Colburn  v.  Simms,  2  Hare,  543, 
524.  557 ;  Lee  v.  Simpson,  3  C.  B.  871,  883 ; 

2  "  Evidence  of  innocent  intention  Prince  Albert  a.  Strange,  2  De  G.  & 
may  have  a  bearing  upon  the  question  Sm.  652,  on  ap.  1  Mac.  &  G.  25 ; 
of  '  fair  use  ; '  and,  where  it  appeared  Leader  v.  Strange,  2  Car.  &  Kir.  1010 ; 
that  the  amount  taken  was  small,  it  Murray  v.  Bogue,  1  Drew.  353,  367 ; 
would  doubtless  have  some  probative  Novello  v.  Sudlow,  12  C.  B.  177 ;  Gam- 
force  in  a  court  of  equity  in  determin-  bart  v.  Sumner,  6  Hurl.  &  N.  5 ;  Reade 
ing  whether  an  application  for  an  in-  v.  Lacy,  1  Johns.  &  H.  524 ;  Eeade  v. 
junction  should  be  granted  or  refused  :  Conquest,  11  C.  B.  n.  s.  479;  Bock  v. 
but  it  cannot  be  admitted  that  it  is  a  Lazarus,  Law  Rep.  15  Eq.  104.  Am. 
legal  defence  where  it '  appears  that  Millett  v.  Snowden,  1  West.  Law  Jour, 
the  party  setting  it  up  has  invaded  a  240. 

copyright."     Clifford,  J.,  Lawrence  v. 
Dana,  2  Am.  L.  T.  R.  n.  s.  427. 


404       THE  LAW  OP  COPYRIGHT  AND  PLATRIGHT, 

object  if  it  were  necessary  to  show  that  the  defendant  had  a 
knowledge  of  the  plaintiff's  right  of  property."  ^ 

The  question  of  guilty  knowledge  on  the  part  of  the  seller  or 
importer  of  a  piratical  work  is  often  affected  by  statutory  pro- 
visions.^ 

The  principle  which  eliminates  from  consideration,  in  cases 
of  piracy,  the  intention  on  the  part  of  the  wrong-doer  and  the 
question  of  his  ignorance,  is  reasonable  and  proper.  If  innocent 
motives  or  ignorance  could  be  successfully  pleaded  as  a  defence 
to  a  charge  of  infringement,  the  protection  intended  for  literary 
property  would  be  wholly  inadequate.  The  injury  done  to  an 
author  by  an  unlicensed  use  of  his  work  is  none  the  less  when 
the  appropriation  has  been  made  without  a  bad  intention,  or 
through  ignorance.  Hence,  the  remedy  should  be  not  less 
complete.  Moreover,  if  such  defences  were  allowed  to  prevail, 
the  facilities  for  fraudulent  escape  from  the  penalty  of  piracy 
would  be  largely  multiplied. 

General  Forms  and  Tests  op  Piracy. 

Piracy  may  be  committed  by  publishing  a  literal  copy  of  the 
whole  or  of  a  part  of  a  copyrighted  work,  or  by  publishing  a  whole 
or  a  part  in  a  form  which  is  not  a  verbatim  copy  of  the  original, 
but  is  in  substance  identical  with  it. 

Reprint  of  Entire  Work.  —  The  simplest  and  the  least  common 
form  of  infringement  is  the  unauthorized  republication  of  an 
entire  work.  In  such  case,  it  is  immaterial  in  what  form,  with 
what  intention,  or  for  what  purpose  the  original  is  reproduced. 
Whether  a  book  be  republished  in  the  same  or  in  another  form, 
whether  a-  copyrighted  article  in  a  magazine  be  reprinted  in 
another  magazine  or  in  a  newspaper,^  or  in  a  book,  does  not 
affect  the  question  of  infringement.  The  unlicensed  republica- 
tion of  a  literary  composition  as  part  of  a  larger  work  is  piracy. 
Thus,  in  making  a  selection  of  pieces  or  preparing  a  compi- 
lation, the  compiler  is  not  at  liberty  to  use  a  copyrighted  pro- 
duction without  authority,  though  such  production  be  but  a 
small  part  of  the   compilation.*    Nor  is  it  lawful  to  reprint 

1  Lee  V.  Simpson,  3  C.  B.  883.  n.  b.  11 ;  Cox  v.  Land  &  Water  Journal 

2  See  Chap.  X.  Co.,  Law  Rep.  9  Eq.  324. 

3  Maxwell  v.   Somerton,  30  L.   T.         *  Folsom  v.   Marsh,  2   Story,  100; 


PIRACY. 


405 


without  license  a  copyrighted  article  in  a  cyclopedia,  though 
such  article  be  but  one  of  a  thousand  in  the  cyclopsedia.i 

Purpose  for  which  "Work  is  Taken  Immaterial.  —  In  several 
early  cases,  dicta  are  to  be  found  recognizing  the  right  of  any 
person  without  authoi'ity  to  republish  a  copyrighted  work,  pro- 
vided he  revise  or  improve  it,  or  use  it  as  a  basis  for  annota- 
tion.2     But  this  theory  is  contrary  to  a  fundamental  principle 


Campbell  v.  Scott,  11  Sim.  31;  Brad- 
bury V.  Hotten,  Law  Eep.  8  Exch.  1 ; 
Smith  V.  Chatto,  31  L.  T.  n.  s.  776. 

1  Roworth  V.  Wilkes,  1  Camp.  94 ; 
Mawman  v.  Tegg,  2  Russ.  385. 

"  Neither  is  it  of  any  consequence  in 
what  form  the  works  of  another  are 
used ;  whether  it  be  by  a  simple  reprint, 
or  by  incorporating  the  whole  or  a  large 
portion  thereof  in  some  larger  work. 
Thus,  for  example,  if  in  one  of  the 
large  encyclopaedias  of  the  present  day, 
the  whole  or  a  large  portion  of  a  scien- 
tific treatise  of  another  author  —  as,  for 
example,  one  of  Dr.  Lardner's,  or  Sir 
John  Herschell's,  or  Mrs.  Somerville's 
treatises  —  should  be  incorporated,  it 
would  be  just  as  much  a  piracy  upon 
the  copyright  as  if  it  were  published 
in  a  single  volume."  Story,  J.,  Gray 
V.  Russell,  1  Story,  19. 

2  In  Sayre  u.  Moore,  where  it  ap- 
peared that  the  defendant  had  repub- 
lished the  plaintiffs  chart,  but  with 
corrections  and  improvements  of  his 
own.  Lord  Mansfield  said  :  "  If  an 
erroneous  chart  be  made,  God  forbid 
it  should  not  be  corrected  even  in  a 
small  degree,  if  it  thereby  become 
more  serviceable  and  useful  for  the 
purposes  to  which  it  is  applied.  But 
here  you  are  told  that  there  are 
various  and  very  material  alterations. 
This  chart  of  the  plaintiff's  is  upon  a 
wrong  principle,  inapplicable  to  navi- 
gation. The  defendant  therefore  has 
been  correcting  errors,  and  not  servilely 
copying.  If  you  think  so,  you  will  find 
for  the  defendant ;  if  you  think  it  is  a 
mere  servile-  imitation,  and  pirated 
from  the  other,  you  will  find  for  the 
plaintiffs."  1  East,  361,  note.  In  Gary 
V.  Kearsley,  Mr.  Erskine  said  :  "  Sup- 
pose a  man  took  Paley's  Philosophy, 


and  copied  a  whole  essay,  with  observa- 
tions and  notes  or  additions  at  the  end 
of  it,  would  that  be  piracy?"  "That 
would  depend,"  replied  Lord  Ellen- 
borough,  "  on  the  facts  of,  whether  the 
publication  of  that  essay  was  to  con- 
vey to  the  public  the  notes  and  obser- 
vations fairly,  or  only  to  color  the 
publication  of  the  original  essay,  and 
make  that  a  pretext  for  pirating  it ;  if 
the  latter,  it  could  not  be  sustained." 
4  Esp.  170.  So  in  Matthewson  v. 
Stockdale,  Lord  Chancellor  Erskine 
said :  "  I  admit  no  man  can  monopo- 
lize such  subjects  as  the  English  Chan- 
nel, the  island  of  St.  Domingo,  or  the 
events  of  the  world;  and  every  man 
may  take  what  is  useful  from  the  orig- 
inal work,  improve,  add,  and  give  to 
the  public  the  whole,  comprising  the 
original  work,  with  the  additions  and 
improvements;  and  in  such  a  case 
there  is  no  invasion  of  any  right."  12 
Ves.  276.  But  the  most  extravagant 
language  on  this  subject  is  that  of 
Vice-Chancellor  Shadwell,  in  Martin  v. 
Wright,  where  the  point  under  coksid- 
eration  was  not  even  remotely  in  issue. 
He  said ;  "  Any  person  may  copy  and 
publish  the  whole  of  a  literary  compo- 
sition, provided  he  writes  notes  upon 
it,  so  as  to  present  it  to  the  public 
connected  with  matter  of  his  own." 
6  Sim.  298. 

The  question  under  consideration 
was  raised,  but  not  decided,  in  Saunders 
V.  Smith,  8  My.  &  Cr.  711.  It  appeared 
that  in  Smith's  Leading  Cases  the 
defendant  had  copied  many  cases  from 
the  plaintiff"s  copyrighted  reports,  but 
had  added  numerous  notes  prepared 
by  himself.  Lord  Cottcnham  thought 
that,  under  the  circumstances,  it  was 
not  necessary   to   determine  whether 


406       THE  LAW  OP  COPYRIGHT  AND  PLATRIGHT. 

of  the  law  of  copyright.  It  is  obvious  that  there  would  be 
little  protection  for  literary  property  if  this  plea  were  a  valid 
defence  of  piracy.  However  much  a  work  may  be  improved 
by  revision,  or  its  usefulness  and  value  be  increased  by  anno- 
tation, however  extensive  or  important  may  be  the  new  matter 
added,  no  one  without  the  consent  of  the  owner  of  the  copyright 
has  a  right  to  take  it  for  such  purpose.  "  No  man,"  said  Mr. 
Justice  Clifford,  repeating  the  language  of  Vice-Chan cellor 
Wood,^  "  is  entitled  to  avail  himself  of  the  previous  labors  of 
another,  for  the  purpose  of  conveying  to  the  public  the  same 
information,  even  though  he  may  append  additional  information 
to  that  already  published."  ^  And  so  Mr.  Justice  Leavitt  rightly 
said,  "  The  decision  of  this  question  is  in  no  way  affected  by  the 
fact  —  if  conceded  to  be  the  fact  —  that  the  guide  is  in  some 
respects  an  improvement  of  and  of  superior  utility  to  the  chart 
of  the  complainants.  This  would  confer  no  right  to  appropriate 
and  use  the  prior  invention  or  discovery  of  Mrs.  Drury."  * 

So  the  unlicensed  republication  of  an  entire  literary  com- 
position cannot  in  general  be  justified  on  the  ground  that  the 

this  was  an  infringement  of  the  plain-  books,  —  one  containing  the  styles,  the 

tiff's  copyright.    He  assumed  the  exist-  other  the  corrections  on  them.'     Now, 

ence  of  that  right,  but  refused  to  grant  I  do  not  see  any  weight  in  this  argu- 

the  injunction,  on  the  ground  that  the  ment.     The  law  of  patents  affords  a 

plaintiff  had  apparently  acquiesced  in  good  example  of  the  converse  of  the 

the  publication  made  by  the  defendant,  respondents'  plea.    Thus,  if  a  man  ob- 

'  Scott  V.  Stanford,  Law  Rep.  3  Eq.  tains  a  patent  for  a- particular  machine, 

724.  and  another  man  invents  an  additional 

^  Lawrence  v.  Dana,  2  Am.  L.  T.  E.  improvement  on  the  original  machine, 

N.  s.  431.  for  which  he  obtains  a  separate  patent, 

8  Drury  v.  Ewing,  1  Bond,  549.  the  second  inventor  can  only  make  use 

In  Alexander  v.  Mackenzie,  where  of  his  patent  by  procuring  a  license  for 
it  appeared  that  statutory  forms  or  the  use  of  the  original  machine;  and  if 
"  styles "  had  been  copied  from  the  a  third  party,  in  constructing  a  more 
complainant's  book,  one  of  the  defences  complex  machine,  copies  both  inven- 
was  that  useful  improvements  in  the  tions,  then  he  must  pay  both  the  in- 
fSrms  had  been  made  by  the  defendant,  ventors  for  the  use  of  both  their  pat- 
In  considering  this  point.  Lord  Jeffrey  ents.  In  short,  in  the  construction  of 
said  :  —  a  single  machine  we  often  find  a  great 

"But,  then,  what  is  the  argument  variety  of  patent  inventions  employed ; 
pressed  on  us  here  ?  Why,  it  is  this,  and  these  of  course  are  all  paid  for  to 
The  respondents  say,  '  These  styles,  the  respective  patentees.  To  say  that 
though  good  on  the  whole,  require  additions  liave  been  made  to  Mr.  Alex- 
some  correction,  and  we  have  there-  ander's  work  will  of  itself  never  serve 
fore  corrected  and  reprinted  them  ;  and  as  an  answer."  9  Sc.  Sess.  Cas.  2d 
we  were  entitled  to  do  so,  because  it  ser.  759. 
would  be  inconvenient  to  have  two 


PIRACY.  407 

object  of  reproducing  it  was  criticism.  If  it  could  be  satisfac- 
torily shown  that  the  whole  had  been  fairly  quoted  for  legiti- 
mate purposes  of  criticism,  the  critic  might  claim  immunity 
under  the  recognized  privilege  of  fair  quotation.  But  cases  of 
this  kind,  where  it  is  necessary  to  quote  the  entire  original  for 
purposes  of  comment  or  illustration,  are  exceptionally  rare. 
On  the  same  principle,  the  unlicensed  appropriation  of  music 
cannot  be  justified  on  the  ground  that  the  person  charged  with 
wrong  has  made  a  new  arrangement  of  it,  or  used  it  for  a 
different  purpose  from  that  of  the  original.^ 

Substantial  Copy  of  Protected  Work.  —  It  is  uniformly  con- 
ceded that  a  republication  need  not  be  a  literal  copy  of  the 
original,  in  order  to  amount  to  piracy.  As  early  as  1789,  Lord 
Kenyon,  Chief  Justice  of  the  King's  Bench,  declared,  "  The 
main  question  here  was  whether  in  substance  the  one  work 
is  a  copy  and  imitation  of  the  other."  ^  In  the  long  line  of 
subsequent  English  and  American  decisions,  this  general  doc- 
trine has  been  followed,  with  steady  progress,  especially  marked 
in  recent  cases,  toward  liberality  in  favor  of  the  author  en- 
titled to  protection. 

When  the  production  complained  of  is  a  servile  imitation,  in 
which  the  language  of  the  original  appears  with  merely  colorable 
variations,  the  legal  question  of  piracy  becomes  a  comparatively 
simple  one.  The  act  of  infringement  is  then  as  complete,  and 
the  law  is  as  easily  determined,  as  when  the  publication  in  fault 
is  a  verbatim  reprint.  But  the  question  becomes  more  difficult 
wlien  there  is  a  resemblance,  more  or  less  striking,  between  the 
substance  and  the  general  form  of  the  two  works  in  controversy, 
while  the  language  of  the  one  is  considerably  different  from  that 
of  the  other.  Then  is  presented  the  inquiry  as  to  what  degree 
of  resemblance  between  two  works  is  necessary  to  constitute  an 
infringement  of  copyright.  Every  book  which  is  like  another 
cannot  rightly  be  declared  piratical,  although  in  some  respects 
the  likeness  may  be  close,  and  may  be  due  to  the  fact  that  the 
author  of  the  later  has  followed  the  earlier  work.    The  law  of 

1  See  J30sf,  pp.  410,  411.  colorable    or  not.  .  .  .  The  jury  will 

2  Truslerw.  Murray,  1  East,  362,  note,  decide  whetlier  it  be  a  servile  imita- 
Four  years  before.  Lord  Mansfield  said :  tion  or  not."  Sayre  v.  Moore,  Ibid. 
"  The  question  of  fact  to  come  before  a  361,  note. 

jury   is,    whether    the    alteration    be 


408       THE  LAW  OF  COPYRIGHT  AND  PLATRI6HT. 

copyright  cannot  justly  prohibit  one  author  from  imitating  the 
production  of  another,  provided  the  subsequent  work  is  the 
result  of  independent  labor.  To  constitute  infringement,  there 
must  be  a  bodily  appropriation  of  the  contents  of  a  work,  —  a 
borrowing  of  the  substantial  results  contained  in  it. 

Substantial  Identity  Test  of  Piracy.  —  Where  complaint  is 
made  of  the  resemblance  between  two  publications,  one  of 
which  is  not  a  literal  transcript  of  the  other,  the  general  test 
applied  to  determine  piracy  is  that  of  substantial  identity.  Is 
the  similarity  between  the  substance  or  the  contents  of  the  two 
works  such  as  to  justify  the  conclusion  that  the  later  one  is 
in  substance  identical  with  the  other,  and  mainly  taken  from 
it  ?  Has  the  subsequent  author  produced  a  substantially  orig- 
inal work  by  his  own  independent  labor,  or  has  he  appropri- 
ated the  substantial  fruits  of  another's  industry  ?  What 
amounts  to  a  substantial  identity  is  a  question  of  fact,  to  be 
determined  in  each  case  by  a  comparison  of  the  two  works. 
This  is  a  task  of  great  difficulty,  and  one  whose  performance 
will  be  attended  with  results  varied  by  circumstances.  Different 
judges  —  for  the  determination  of  this  question  of  fact  frequently 
becomes  a  duty  of  the  courts  —  or  different  juries  may  reach 
different  conclusions  in  the  same  case ;  ^  and  the  tests  adopted 
in  one  case  may  not  be  satisfactory  in  another.  But  when  it 
is  found  that  a  substantial  identity  exists,  and  that  the  earlier 
work  is  substantially  embodied  in  the  later,  the  legal  requisites 
of  piracy  are  made  out.^ 

1    A  noteworthy  instance  of  this  is  251.    Am.  Emerson  ».  Davies,  3  Story, 

aflforded  by  the  case  of  Pike  v.  Nicholas,  768 ;  Webb  v.  Powers,  2  Woodb.  &  M. 

where  the  judgment  of  the  lower  court  497  ;    Greene  v.  Bishop,  1  Cliff.  186  ; 

was  reversed  on  appeal,  simply  because  Drury  v.  Bwing,  1  Bond,  540  ;  Law- 

the  judges  of  the  latter  tribunal  were  rence  v.  Dana,  2  Am.  L.  T.  R.  n.  s. 

led  to  a  different  conclusion  as  to  the  402.     To    the   same   effect    are    the 

facts  from  that  reached  by  the  Vice-  authorities  cited  post,  p.  -412,  note  2. 

Chancellor.     Law  Rep.  5  Ch.  251.  For  an  illustration   of  what    is    sub- 

"  Br.  Matthewson  v.  Stockdale,  12  stantial   identity    in    the    case    of    a 

Ves.  270;  Roworth  w.  Wilkes,  1  Camp,  dramatic    composition,    see    Daly    v. 

94;  Barfield  v.  Nicholson,  2  Sim.  &  St.  Palmer,  6  Blatclif.  256,  considered  in 

1 ;    Lewis    v.  FuUarton,   2    Beav.   6 ;  Chap.  XVI. 

Alexander  v.  Mackenzie,  9  Sc.  Sess.         "  It  is  enough  that  the  publication 

Cas.  2d  ser.  748 ;  Murray  v.  Bogue,  1  complained  of  is  in  substance  a  copy 

Drew.  353 ;  Jarrold  v.  Houlston,  3  Kay  whereby  a  work  vested  in  another  is 

&  J.  708;  Spiers  w.  Brown,  6  W.  R.  prejudiced."        Lord      EUenborough, 

352 ;  Scott  v.  Stanford,  Law  Rep.  3  Eq.  Roworth  v.  Wilkes,  1  Camp.  98. 
718 ;  Pike  v.  Nicholas,  Law  Rep.  5  Ch.         "  Absolute  verbatim  identity  is  not 


PIRACY. 


409 


Same  Rule  Applies  to  Maps,  Engravings,  Paintings,  Music, 
&c.  —  This  rule  is  equally  applicable  to  maps,  charts,  pictorial 
productions,  musical  compositions,  and  in  short  all  things 
which  are  the  subjects  of  copyright.  The  test  is  not  whether 
one  production  is  a  fac  simile  of  the  other,  but  whether  it 
is  substantially  a  copy.  "Where  it  appeared  that  the  defendant 
had  copied,  besides  a  part  of  the  text  of  an  article  on  Fencing, 
three  engravings  representing  persons  in  the  same  attitudes  as 
those  in  the  plaintiffs  work,  but  disguised  by  different  cos- 
tumes. Lord  Ellenborough,  in  holding  this  to  be  a  case  of 


required  to  constitute  piracy ;  nor  would 
occasional  quotation,  fairly  made  out, 
amount  to  that  offence.  Tlie  question 
is,  whether  the  new  work  be  substan- 
tially the  same  with  the  old,  haying 
merely  colorable  changes,  or  pretexts 
of  change,  or  be  a  new  and  different 
work  or  compilation."  The  Lord  Ordi- 
nary, Alexander  v.  Mackenzie,  9  Sc. 
Sees.  Cas.  2d  ser.  754,  note. 

"  The  case,  therefore,  comes  back 
at  last  to  the  naked  consideration, 
whether  the  book  of  Davies,  in  the 
parts  complained  of,  has  been  copied 
substantially  from  that  of  Emerson,  or 
not.  It  is  not  suflScient  to  show  that 
it  may  have  been  suggested  by  Emer- 
son's, or  that  some  parts  and  pages  of 
it  have  resemblances  in  method  and 
details  and  illustrations  to  Emerson's. 
It  must  be  further  shown  that  the  re- 
semblances in  those  parts  and  pages 
are  so  close,  so  full,  so  uniform,  so 
striking,  as  fairly  to  lead  to  the  conclu- 
sion that  the  one  is  a  substantial  copy 
of  the  other,  or  mainly  borrowed  from 
it.  In  short,  that  there  is  substantial 
identity  between  them.  A  copy  is  one 
thing,  an  imitation  or  resemblance  an- 
other. There  are  many  imitations  of 
Homer  in  the  ^neid ;  but  no  one  would 
say  that  the  one  was  a  copy  from  the 
other.  There  may  be  a  strong  likeness 
without  an  identity  ;  and,  as  was  aptly 
said  by  the  learned  counsel  for  the  plain- 
tiff in  the  close  of  his  argument.  Fades 
non  omnibus  una,  nee  diversa  tamen ;  qua- 
lem  decpt  esse  sororum.  The  question  is 
therefore  in  many  cases  a  very  nice 
one,  what  degree  of  imitation  consti- 


tutes an  infringement  of  the  copyright 
in  a  particular  work."  Story,  J., 
Emerson  v.  Davies,  3  Story,  787. 

"  The  leading  inquiry  then  arises, 
which  is  decisive  of  the  general  equi- 
ties between  these  parties,  whether  the 
book  of  the  defendants,  taken  as  a 
whole,  is  substantially  a  copy  of  the 
plaintiffs' ;  whether  it  has  virtually 
the  same  plan  and  character  through- 
out, and  is  intended  to  supersede  the 
other  in  the  market  with  the  same  class 
of  readers  and  purchasers,  by  intro- 
ducing no  considerable  new  matter, 
or  little  or  nothing  new,  except  color- 
able deviations."  Woodbury,  J., 
Webb  V.  Powers,  2  Woodb.  &  M.  514. 

"  Copying  is  not  confined  to  literal 
repetition,  but  includes  also  the  various 
modes  in  which  the  matter  of  any  pub- 
lication may  be  adopted,  imitated,  or 
transferred,  with  more  or  less  colorable 
alterations  to  disguise  the  source  from 
which,  the  material  was  derived ;  nor 
is  it  necessary  that  the  whole,  or  even 
the  larger  portion,  of  a  work  should  be 
taken  in  order  to  constitute  an  inva- 
sion of  copyright."  Clifford,  J.,  Law- 
rence V.  Dana,  2  Am.  L.  T.  K.  N.  s. 
426. 

"  And  here  the  true  inquiry  un- 
doubtedly is,  not  whether  the  one  is  a 
fac  simile  of  the  other,  but  whether 
there  is  such  a  substantial  identity  as 
fairly  to  justify  the  inference,  that,  in 
getting  up  the  guide,  Mrs.  Ewing  has 
availed  herself  of  Mrs.  Drury's  chart, 
and  has  borrowed  from  it  its  essential 
characteristics."  Leavitt,  J.,  Drury  v. 
Ewing,  1  Bond,  548,  549. 


410 


THE  LAW  OP  COPTRIGHT  AND  PLAYRIGHT. 


piracy,  said :  "  It  is  still  to  be  considered  whether  there  be  such 
a  similitude  and  conformity  between  the  prints  that  the  person 
who  executed  the.one  set  must  have  used  the  others  as  a  model. 
In  that  case,  he  is  a  copyist  ofthe  main  design."  ^  It  matters 
not  that  the  copy  of  a  painting  or  engraving  is  larger  or 
smaller  than  the  original ;  ^  nor  by  what  mechanical  process 
the  copy  may  be  made.^ 

In  the  case  of  music,  Lord  Abinger  held  that  the  question  of 
infringement "  must  depend  on  whether  the  air  taken  is  substan- 
tially the  same  with  the  original,"  and  that,  "  substantially,  the 
piracy  is  where  the  appropriated  music,  though  adapted  to  a 
different  purpose  from  that  of  the  original,  may  still  be  recog- 
nized by  the  ear.  The  adding  variations  makes  no  difference  in 
the  principle."  *     And  so  Chief  Justice  Taney  said  that  the 


1  Roworth  V.  Wilkes,  1  Camp.  99. 
In  West  V.  Francis,  Bailey,  J.,  speak- 
ing of  prints,  said :  "  A  copy  is  tiiat 
which  comes  so  near  to  the  original 
as  to  give  to  every  person  seeing  it 
the  idea  created  hy  the  original."  5 
Barn.  &  Aid.  743.  See  also:  Br. 
BarBeld  u.  Nicholson,  2  Sim.  &  St.  1 ; 
Moore  v.  Clarke,  9  Mees.  &  W.  692 ; 
Turner  v.  Robinson,  10  Ir.  Ch.  121, 
610;  Gambart  </.  Ball,' 14  C.  B.  n.  s. 
806;  Graves  v.  Ashford,  Law  Rep.  2 
C.  P.  410.  Am.  Blunt  u.  Patten,  2 
Paine,  393,  397;  Drury  v.  Ewing,  1 
Bond,  540;  Farmer  v.  Calvert  Litho- 
graphic, Engraving,  &  Map-Publishing 
Co.,  5  Am.  L.  T.  R.  168  ;  Richardson 
V.  Miller,  3  L.  &  Eq.  Reporter,  614. 

2  Gambart  v.  Ball,  Graves  v.  Ash- 
ford, supra;  Bradbury  v.  Hotten,  Law 
Rep.  8  Exch.  1. 

^  Gambart  v.  Ball,  Graves  v.  Ash- 
ford, Turner  v.  Robinson,  supra ;  Ros- 
siter  V.  Hall,  5  Blatchf.  862. 

1  D'Almaine  v.  Boosey,  1  Y.  &  C. 
Exch.  302.  "It  is  admitted,"  said 
Lord  Abinger,  "that  the  defendant 
has  published  portions  of  the  opera, 
containing  the  melodious  parts  of  it ; 
that  he  has  also  published  entire  airs ; 
and  that  in  one  of  his  waltzes  he  has 
introduced  seventeen  bars  in  succes- 
sion, containing  the  whole  of  the  orig- 
inal air,  although  he  adds  fifteen  other 


bars  which  are  not  to  be  found  in  it. 
Now,  it  is  said  that  this  is  not  a  piracy : 
first,  because  the  whole  of  each  air 
has  not  been  taken ;  and,  secondly, 
because  what  the  plaintifis  purchased 
was  the  entire  opera ;  and  the  opera 
consists,  not  merely  of  certain  airs  and 
melodies,  but  of  the  whole  score.  But, 
in  the  first  place,  piracy  may  be  of 
part  of  an  air  as  well  as  of  the  whole ; 
and,  in  the  second  place,  admitting 
that  the  opera  consists  of  the  whole 
score,  yet  if  the  plaintiffs  were  entitled 
to  the  whole,  a  fortiori  they  were  en- 
. titled  to  publish  the  melodies  which 
form  a  part.  ...  It  is  the  air  or  mel- 
ody which  is  the  invention  of  the 
author,  and  which  may  in  sucli  case 
be  the  subject  of  piracy;  and  you 
commit  a  piracy  if,  by  taking  not  a 
single  bar,  but  several,  you  incorporate 
in  the  new  work  that  in  which  the 
whole  meritorious  part  of  the  invention 
consists.  I  remember  in  a  case  of 
copyright,  at  nisi  prius,  a  question  aris- 
ing as  to  how  many  bars  were  neces- 
sary for  the  constitution  of  a  subject 
or  phrase.  Sir  George  Smart,  who 
was  a  witness  in  the  case,  said,  that 
a  mere  bar  did  not  constitute  a  phrase, 
though  three  or  four  bars  might  do  so. 
Now,  it  appears  to  me  that  if  you  take 
from  the  composition  of  an  author  all 
those  bars  consecutively  which  form 


PIRACY. 


411 


musical  composition  complained  of  is  piratical  when  it  is 
the  same  as  that  for  which  protection  is  claimed  "  in  the 
main  design  and  in  its  material  and  important  parts,  altered 
as  above  mentioned  to  evade  the  law."^  To  select  music 
from  an  opera,  and  arrange  it  for  dancing  purposes,  or  to 
make  a  piano-forte  arrangement  of  an  opera,  may  amount  to 
piracy.^ 

When  Material  Part  is  Taken. — It  is  not  necessary  that  the  whole 
or  the  greater  part  of  a  work,  either  in  form  or  substance,  shall 
be  taken,  in  order  to  constitute  an  invasion  of  copyright.  The 
copyright  protects  the  whole  and  all  the  parts  and  contents  of 


the  entire  air  or  melody,  witliout  any 
material  alteration,  it  is  a  piracy; 
though,  on  the  other  hand,  you  might 
take  them  in  a  different  order  or  broken 
by  the  intersection  of  others,  like 
words,  in  such  a  manner  as  should 
not  be  a  piracy.  It  must  depend  on 
whether  the  air  taken  is  substantially 
the  same  with  the  original.  Now,  the 
most  unlettered  in  music  can  distin- 
guish one  song  from  another ;  and  the 
mere  adaptation  of  the  air,  either  by 
changing  it  to  a  dance,  or  by  transfer- 
ring it  from  one  instrument  to  another, 
does  not,  even  to  common  apprehen- 
sions, alter  the  original  subject.  The 
ear  tells  you  that  it  is  the  same.  The 
original  air  requires  the  aid  of  genius 
for  its  construction;  but  a  mere  me- 
chanic in  music  can  make  the  adapta- 
tion or  accompaniment.  Substantially, 
the  piracy  is  where  the  appropriated 
music,  though  adapted  to  a  different 
purpose  from  that  of  the  original,  may 
still  be  recognized  by  the  ear.  The 
adding  variations  makes  no  difference 
in  the  principle."    Ibid.  301,  302. 

1  Reed  v.  Carusi,  Tan.  Dec.  74. 
See  also  Boosey  u.  Fairlie,  7  Ch.  D. 
301,  307;  Daly  i;.  Palmer,  6  Blatchf. 
269. 

2  D'Almaine  v.  Boosey,  1  Y.  &  C. 
Exch.  288.  "  The  composition  of  a, 
new  air  or  melody  is  entitled  to  pro- 
tection ;  and  the  appropriation  of  the 
whole,  or  of  any  substantial  part,  of  it, 
without  the  license  of  the  author,  is  a 
piracy.      How  far    the    appropriation 


might  be  carried  in  the  arrangement 
and  composition  of  a  new  piece  of 
music,  without  an  infringement,  is  a 
question  that  must  be  left  to  the  facts 
in  each  particular  case.  If  the  new 
air  be  substantially  the  same  as  1|he 
old,  it  is  no  doubt  a  piracy ;  and  the 
adaptation  of  it,  either  by  changing  it 
to  a  dance,  or  by  transferring  it  from 
one  instrument  to  another,  if  the  ear 
detects  the  same  air  in  the  new  arrange- 
ment, will  not  relieve  it  from  the  pen- 
alty ;  and  the  addition  of  variations 
makes  no  difference.  The  original  air 
requires  genius  for  its  construction; 
but  a  mere  mechanic  in  music,  it  is 
said,  can  make  the  adaptation  or  accom- 
paniment." Nelson,  J.,  Jollie  ».  Jaques, 
1  Blatchf  625. 

"Now,  in  reference  to  the  case  that 
was  decided  in  the  Court  of  Exchequer, 
D'Almaine  v.  Boosey,  1  Y.  &  C.  Exch. 
288,  I  have  no  hesitation  in  saying, 
that  if  Brissler  had  published  this 
arrangement  for  the  piano-forte  during 
Nicolai's  lifetime  without  his  authority, 
or  since  his  death  without  the  author- 
ity of  Bote  and  Bock,  his  representa- 
tives, he  would  have  pirated  the  work  ; 
or,  if  there  had  been  a  copyright  act  in 
force  in  Berlin,  such  as  there  is  in  this 
country,  no  doubt  Nicolai  or  his  repre- 
sentatives might  have  maintained  an 
action  for  the  infringement  of  the  copy- 
right against  Brisler "  Kelly,  C.  B., 
Wood  V.  Boosey,  Law  Eep.  3  Q.  B. 
228. 


412 


THE  LAW  OF  COPYRIGHT  AND  PLAYRIGHT. 


a  work ;  ^  and  whoever  appropriates  a  material  part,  to  the  injury 
of  the  owner,  commits  an  act  of  piracy.  The  offence  is  the 
same  whether  a  part  is  taken  by  copying  literally  the  language 
of  the  original,  or  by  paraphrasing  it.  In  the  latter  case,  it  is 
enough  to  show  substantial  identity  between  the  original  and 
the  part  complained  of,  and  that  one  has  been  taken  from  the 
other.2 

To  take  one  of  several  articles,  or  any  illustration  or  cut,  in  a 
copyrighted  publication,  may  amount  to  piracy  ;  since  the  copy- 
right protects  each  distinct  composition  in  a  book,  and  all  the  en- 
gravings, illustrations,  figures,  &c.  But,  when  any  part  of  a  book 
is  not  entitled  to  copyright,  it  is  not  unlawful  to  copy  that  part. 

Publication  Complained  of  Need  not  Serve  as  Substitute.  — 
In  Roworth  v.  Wilkes,  Lord  EUenborough  said :  "  The  question 
is  whether  the  defendants'  publication  would  serve  as  a  substi- 
tute for  "  the  plaintiff's  work.^    The  theory  suggested  by  this 


'  See  ante,  p.  144;  also  Rooney  v. 
Kelly,  14  Ir.  Law  Rep.  n.  s.  158. 

2  Br.  Wilkins  w.  Aikin,  17  Ves. 
422;  Maw  man  v.  Tegg,  2  Rues.  386; 
Bramwell  v.  Halcomb,  3  My.  &  Cr.  737 ; 
Lewis  u.  Fullarton,  2  Beav.  6 ;  Kelly 
!).■  Hooper,  4  Jur.  21  ;  Sweet  v. 
Maugham,  11  Sim.  51 ;  Sweet  v.  Cater, 
Ibid.  572 ;  Campbell  v.  Seott,  Ibid.  31 ; 
Bohn  V.  Bogue,  10  Jur.  420;  Stevens 
V.  Wildy,  19  L.  J.  n.  s.  (Ch.)  190; 
Murray  v.  Bogue,  1  Drew.  353 ;  Sweet 
V.  Benning,  16  C.  B.  459 ;  Jarrold  v. 
Houlston,  3  Kay  &  J.  708 ;  Rooney  v. 
Kelly,  supra ;  Tinsley  v.  Laey,  1  Hem. 
&  M.  747 ;  Kelly  v.  Morris,  Law  Rep.  1 
Eq.  697 ;  Scott  v.  Stanford,  3  Id.  718; 
Pike  V.  Nicholas,  Law  Rep.  5  Ch.  251 ; 
Jarroldt!.  Heywood,  18W.R.279;  Cob- 
bett  V.  Woodward,  Law  Rep.  14  Bq.  407 ; 
Bradburyw.  Hotten,  Law  Rep.  8  Exch. 
1 ;  Smith  v.  Chatto,  31  L.  T.  n.  s.  775; 
Hogg  i;.  Seott,  Law  Rep.  18  Eq.  444 ; 
Chatterton  v.  Cave,  Law  Rep.  10  C.  P. 
572,  1st  ap.  2  C.  P.  D.  42,  2d  ap.  3  App. 
Cas.  483.  Am.  Gray  v.  Russell,  1 
Story,  11 ;  Folsom  v.  Marsh,  2  Id.  100 ; 
Story's  Executors  v.  Holcombe,  4 
McLean,  306  ;  JoUie  v.  Jaques,  1 
Blatchf .  618 ;  Greene  v.  Bishop,  1  Cliff. 
186 ;  Daly  v.  Palmer,  6  Blatchf.  256 ; 


Lawrence  v.  Dana,  2  Am.  L.  T.  R.  n.  s. 
402;  Banks  v.  McDivitt,  13  Blatchf. 
163.  Other  cases  to  the  same  effect 
are  cited  in  considering  Lawful  Uses 
of  Copyrighted  Works,  ante,  p.  386  et 
seq.,  and  Piracy  in  the  case  of  Com- 
pilations, post,  p.  416  et  seq. 

"  It  is  certainly  not  necessary  to  con- 
stitute an  invasion  of  copyright  that  the 
whole  of  a  work  should  be  copied,  or 
even  a  large  portion  of  it,  in  form  or 
substance.  If  so  much  is  taken  that 
the  value  of  the  original  is  sensibly 
diminished,  or  the  labors  of  the  orig- 
inal author  are  substantially  to  an  inju- 
rious extent  appropriated  by  another, 
that  is  sufficient,  in  point  of  law,  to 
constitute  a  piracy  pro  tanto.  The  en- 
tirety of  the  copyright  is  the  property 
of  the  author ;  and  it  is  no  defence, 
that  another  person  has  appropriated  a 
part,  and  not  the  whole,  of  any  prop- 
erty. Neither  does  it  necessarily  de- 
pend upon  the  quantity  taken,  whether 
it  is  an  infringement  of  the  copyright 
or  not.  It  is  often  affected  by  other 
considerations,  —  the  value  of  the  mate- 
rials taken,  and  the  importance  of  it  to 
the  sale  of  the  original  work."  Story, 
J.,  Folsom  V.  Marsh,  2  Story,  115. 

8  1  Camp.  98. 


PIRACY.  413 

dictum,  that  a  work  to  be  piratical  must  be  a  substitute  for  the 
one  copied,  has  no  foundation  in  reason  or  principle,  and  is 
opposed  to  the  current  of  authorities,  which  establish  the  doc- 
trine that  a  case  of  piracy  is  made  out  when  it  is  shown  that 
a  material  part  of  a  work  has  been  taken  without  authority.^ 
When  the  defence  of  fair  use  is  set  up,  it  may  be  material 
to  inquire  whether  the  publication  complained  of  will  super- 
sede that  for  which  protection  is  claimed.  But,  when  this 
privilege  is  not  pleaded,  the  fact  that  one  work  will  not  serve 
as  a  substitute  for  the  other  is  no  defence  of  piracy. 

■What  Amount  is  Material.  —  When  part  of  a  copyrighted 
production  has  been  reproduced  in  another  publication,  and 
especially  when  literal  extracts  have  been  made,  one  of  the 
first  questions  to  be  determined  is,  whether  the  person  charged 
with  piracy  has  acted  within  the  privilege  of  fair  use.  Then 
arise  the  inquiries,  whether  the  part  taken  is  material,  and 
whether  the  author  entitled  to  protection  is  thereby  injured. 

No  fixed  rule  can  be  given  for  determining  what  amount  of 
copied  or  borrowed  matter  is  essential  to  constitute  infringe- 
ment ;  or,  in  other  words,  how  small  may  be  the  quantity  taken, 
and  still  amount  to  piracy.  The  authorities  agree  that  when 
the  quantity  taken  is  material,  and  enough  to  cause  substantial 
injury  to  the  author  entitled  to  protection,  a  case  of  infringe- 
ment may  be  made  out.  The  determination  of  this  question  of 
fact  is  often  one  of  extreme  difiiculty,  and  the  finding  will 
vary  with  the  circumstances  in  each  case,  arid  with  the  judg- 
ment of  the  person  or  persons  whose  duty  it  may  be  to  ascer- 
tain the  fact.  The  ratio  which  the  part  bears  to  the  whole 
from  which  it  is  taken  will  often  be  a  material  consideration  ; 
but  it  is  obvious  that  no  relative  or  fractional  part  of  either 
production  in  controversy  can  be  fixed  as  a  standard  measure 
of  materiality.  An  amount  material  in  one  case  will  be  unim- 
portant in  another.  "  If  so  much  is  taken,"  said  Mr.  Justice 
Story,  "  that  the  value  of  the  original  is  sensibly  diminished, 
or  the  labors  of  the  original  author  are  substantially  to  an 
injurious  extent  appropriated  by  another,  that  is  sufficient 
in  point  of  law  to  constitute  a  piracy  pro  tanto."  ^ 

'  See  Bohn  v.  Bogue,  10  Jur.  420 ;         ^  Folsom  v.  Marsh,  2  Story,  115. 
Sweet  V.  Shaw,  3  Jur.  217. 


414       THE  LAW  OP  COPTBIGHT  AND  PLAYBIGHT, 

In  determining  whether  the  part  taken  is  material  in  extent 
and  importance,  a  variety  of  circumstances  must  be  considered  : 
the  absolute  amount  and  value  of  the  part;  its  ratio  to  the 
whole  from  which  it  is  taken,  and  to  the  whole  in  which  it  is 
afterward  incorporated ;  its  relative  value  to  each  of  the  works 
in  controversy ;  the  purpose  which  it  serves  in  each  ;  how  far 
the  later  work  may  tend  to  supersede  the  original,  or  interfere 
with  its  sale ;  to  what  extent  the  original  author  may  be  in- 
jured, actually  or  potentially,  by  the  unlicensed  use  made  of  his 
production ;  and  many  other  special  considerations,  which  need 
not  here  be  mentioned.^ 

It  should  be  remembered,  however,  that  when  the  fact  of 
copying  or  borrowing  has  been  established,  and  cannot  be  de- 
fended on  the  principle  of  fair  use,  the  original  author  is  usu- 
ally in  the  right,  and  the  other  in  the  wrong.  The  former  is 
entitled  to  the  full  enjoyment  of  the  fruits  of  his  labor ;  the 
latter  in  seeking  gain  is  bound  to  depend  on  his  own  honest 
resources.  Hence,  in  determining  what  amount  or  what  value 
is  sufficient  to  constitute  infringement  in  cases  of  this  kind, 
the  utmost  rigor  consistent  with  right  and  justice  should  find 
place  against  him  charged  with  wrong. 

Value  to  be  Considered.  —  The  value  of  the  part  taken  is  also 
to  be  considered,  in  connection  with  the  quantity;  and  often 
the  question  of  piracy  will  be  determined  by  the  value  of  the 
extract,  irrespective  of.  its  extent.  Lord  Chancellor  Cotten- 
ham  well  said  :  "  When  it  comes  to  a  question  of  quantity,  it 
must  be  very  vague.  One  writer  might  take  all  the  vital  part 
of  another's  book,  though  it  might  be  but  a  small  proportion 

1  In   Cobbett   v.   Woodward,   Law  see  ante,  p.  391.    In  Webb  v.  Powers, 

Rep.  14  Eq.  407,  the  court  was  willing  2  Wood.  &  M.  497,  620,  an  injunction 

to  grant  an  injunction  against  about  was  refused  wiiere  it  appeared  that 

eight  lines  copied  from  the  plaintiff's  only  about  twenty  or  thirty  lines  had 

publication.    In  Sweet  v.  Benning,  16  been  copied  from  nearly  seven  thou- 

C.  B.  469,  copied  matter  forming  about  sand  in    the    plaintiff's   work.     In    a 

one-twentieth  part  of  the  defendant's  recent    English  case,  two    scenes    or 

work,  was  held  to  amount  to  piracy,  situations  taken  from  a  drama  were 

A  case  of  infringement  was  made  out  held  not  to   be    material   enough    to 

where  it  appeared  that,  in  a  work  on  amount  to  piracy.    Chatterton  v.  Cave, 

caricatures,  nine  caricatures  had  been  Law    Rep.    10  C.  P.  572,   1st  ap.  2 

taken  from   nine  numbers  of  Punch,  C.  P.  D.  42,  2d  ap.  3  App.  Cas.  483. 

extending  from  1849  to  1867.    Brad-  For  other  illustrations  as  to  quantity, 

bury  V.  Hotten,  Law  Rep.  8  Exch.  1 ;  see  cases  given  in  Chap.  XI. 


PIRACY. 


415 


of  the  book  in  quantity.  It  is  not  only  quantity,  but  value, 
that  is  looked  to.  It  is  useless  to  refer  to  any  particular  cases 
as  to  quantity."  ^ 

And  so,  in  the  language  of  Mr.  Justice  Story :  "  In  many 
cases,  the  question  may  naturally  turn  upon  the  point,  not  so 
much  of  the  quantity  as  of  the  value  of  the  selected  materials. 
As  was  significantly  said  on  another  occasion,  Non  numerantur, 
ponderantur.  The  quintessence  of  a  work  may  be  piratically 
extracted,  so  as  to  leave  a  mere  caput  mortuum,  by  a  selection 
of  all  the  important  passages  in  a  comparatively  moderate 
space."  2 

"  I  shall  not  trouble  your  lordships 
by  discussing,  in  detail,  the  many  a'u- 


1  Bramwell  v.  Halcomb,  3  My.  & 
Cr.  738. 


2  Gray  v.  Russell,  1  Story,  20.     See    thorities  which  have  been  cited  as  to 


also    Bell  v.  Whitehead,   3  Jur. 


the  interpretation  to  be  put  upon  the 


Kelly  V.  Hooper,  4  Id.  21 ;  Campbell  acts  which  regulate  copyright  in  books. 

V.  Scott,   11    Sim.    31;    Bradbury   v.  They  seem  one  and  all  to  assume,  or 

Hotten,  Law  Eep.  8  Exch.  1 ;  Farmer  to  aflSrm  expressly,  that  to  render  a 

V.  Calvert  Lithographing,  Engraving,  writer  liable    for    literary  piracy,  he 

&  Map-Publishing  Co.,  6  Am.  L.  T.  R.  must  be  shown  to  have  taken  a  mate- 

168,  174.  rial  portion  of  the  publication  of  an- 

"  The  infringement  of  a  copyright  other  :  the  question  as  to  its  materiality 

does  not  depend  so  much  upon  the  being  left  to  be  decided  by  the  oonsid- 

length  of  the  extracts  as  upon  their  eration  of  its  quantity  and  value,  which 

value.    If  they  embody  the  spirit  and  must  vary  indefinitely  in  various  clr- 

the  force  of  the  work  in  a  few  pages,  cumstances.    As  Lord  Chancellor  Cot- 

they  take  from  it  that  in  which  its  tenham  said  in  Bramwell  v.  Halcomb, 

chief  value    consists.      This  may  be  3  My.  &  C.  738 :  '  It  is  useless  to  refer 

done  to  a  reasonable  extent  by  a  re-  to  any  particular  cases  as  to  quantity.' 

viewer,  whose  object  is  to  show  the  The  quantity  taken  may  be  great  or 

merit  or  demerit  of  the  work.     But  small;  but,  if  it  •comprise  a  material 

this  privilege  cannot  be  so  exercised  as  portion  of  the  book,  it  is  taken  illegally, 

to  supersede  the  original  book."    Mc-  The  question  is  a^  to  the  substance  of 

Lean,  J.,   Story's   Executors   u.    Hoi-  the  thing;  and,  ifthere  be  no  abstraction 

combe,  4  McLean,  309.  of  that  which  may  be  substantially  ap- 

"  The  question  of  the  extent  of  ap-  predated,  no  penalty  is  incurred.     In 

propriation  which  is  necessary  to  es-  all  the  cases,  the  matter  is  dealt  with  as 

tablish  an  infringement  of  copyright  is  one  of  degree.    In  all,  quantity  and 

often  one  of  extreme  difficulty ;  but  in  value  are  both  the  subjects  of  consid- 

cases  of  this  description  the  quality  of  eration ;  and  in  none  of  them  has  an 

the  piracy  is  more  important  than  the  infringement  been  established  without 

proportion  which    the  borrowed  pas-  satisfactory  evidence  of  an  appropria- 

sages  may  bear  to    the  whole  work,  tion,  possibly  involving  a  substantial 

Here  it  is  enough  to  say  that  the  de-  loss  to  one  person  and  a  substantial 

fendant  admits  that  one-fourth  of  the  gain    to    another."      Lord    O'Hagan, 

dramas   is  composed  of  matter  taken  Chatterton    o.    Cave,    3    App.     Cas. 

from  the  novels."    "Wood,  V.  C,  Tins-  497. 
ley  V.  Lacy,  1  Hem.  &  M.  762. 


416  THE  LAW  OP  COPYRIGHT  AND  PLATRIGHT. 


PlEACT   IN   THE    CaSE   OP   COMPILATIONS.  —  I.    COMPILATIONS  OP 

Common  Facts. 

It  is  necessary  to  consider  more  particularly  the  question 
of  piracy  in  the  case  of  that  class  of  productions  which  do  not 
consist  of  original  matter  in  the  ordinary  meaning  of  that  word, 
but  are  simply  compilations  of  materials,  plain  facts,  informa- 
tion, &c.,  gathered  from  common  sources.  Works  of  this  kind 
may  be  divided  into  two  general  classes :  1,  Statements  or  col- 
lections of  common  facts,  which  admit  of  little  variation  in 
their  description  ;  2,  compilations  of  materials  gathered  from 
other  publications. 

Of  the  former  class  are  directories,  road-books,  maps,  charts, 
mathematical  tables,  and  analogous  works.  Between  two  rival 
publications  of  this  kind,  there  will  necessarily  be  a  striking 
resemblance,  amounting  in  many  instances  to  substantial  iden- 
tity. In  different  directories  of  the  same  city,  the  names  and 
addresses  of  persons,  order  of  arrangement,  &c.,  will  be  sub- 
stantially alike.  In  rival  road-books,  the  location  and  direction 
of  highways  will  be  similarly  described.  In  maps  and  charts 
of  the  same  region,  the  boundaries  of  geographical  divisions, 
location  of  natural  objects,  distances,  latitude,  longitude,  &c., 
when  accurately  described,  will  be  represented  by  different 
persons  without  substantial  variation.  In  mathematical  tables, 
the  same  figures  will  result  from  the  same  calculations.  In  all 
such  cases,  the  materials  are  equally  open  to  all ;  and  the  results 
prepared  by  two  laborers  in  the  same  field  will  present  little 
variation.  May  a  subsequent  compiler  take  advantage  of  this 
circumstance,  and  say :  "  These  facts  are  common  property ; 
they  can  be  truthfully  given  in  but  one  form;  the  results 
worked  out  by  my  own  independent  labor  must  be  in  substance 
the  same  as  those  published  by  my  predecessor.  Therefore  I 
do  not  injure  him  or  invade  his  rights  by  copying  from  his 
publication  "  ? 

Test  of  Piracy.  —  Here  the  general  test  of  piracy  is  the  same 
as  in  the  case  of  compositions  wholly  original.  The  principle 
is  well  established,  that  the  later  compiler  can  escape  the  pen- 
alty of  piracy  only  by  going  to  the  common  sources  for  mate- 


PIRACT. 


417 


rials  and  information,  and  producing  a  work  by  his  own  labor. 
He  cannot  lawfully  save  himself  labor  and  expense  by  taking 
the  results  of  another's  industry  and  skill,  except  as  far  as 
he  may  be  able  to  do  so  under  the  privilege  of  fair  use.  He 
must  himself  examine  the  highways  and  places  to  be  described 
in  an  original  road-book  ;  must  himself  make  the  surveys  and 
other  calculations  necessary  for  constructing  a  map  or  chart ; 
must  himself  perform  the  operations  essential  to  produce 
mathematical  tables ;  must  himself  canvass  for  the  names  to 
make  a  directory.  Of  course,  he  is  entitled  to  use  any  infor- 
mation or  materials  which  may  be  obtained  from  common 
sources,  either  published  or  unpublished.  But  copying  to  a 
material  extent  from  a  protected  work,  or  appropriating  the 
materials  or  results  there  found,  is  piracy .^ 


^  Br.  Gary  o.  Longman,  1  East, 
358  ;  Matthewson  v.  Stockdale,  12  Ves. 
270;  Longman  v.  Winchester,  16  Id. 
269 ;  Baily  w.  Taylor,  3  L.  J.  (Ch.)  66, 

1  Russ.  &  My.  73 ;  Kelly  v.  Hooper,  4 
Jur.  21;  M'Neill  v.  "Williams,  11  Id. 
344 ;  Murray  v.  Bogue,  1  Drew.  358  ; 
Jarrold  o.  Houlston,  3  Kay  &  J.  708 ; 
Kelly  V.  Morris,  Law  Rep.  1  Eq.  697 ; 
Scott  V.  Stanford,  3  Id.  718;  Morris  v. 
Ashbee,  7  Id.  34;  Cox  v.  Land  & 
"Water  Journal  Co.,  9  Id.  324 ;  Pike  v. 
Nicholas,  Law  Rep.  5  Ch.  251 ;  Morris 
V.  Wright,  Ibid.  279;  Jarrold  v.  Hey- 
wood,  18  W.  K.  279;  Hogg  v.  Scott, 
Law  Rep.  18  Eq.  444 ;.  Grace  v.  New- 
man, 19  Id.  623.    Am.  Blunt  v.  Patten, 

2  Paine,  393,  397;  Farmer  v.  Calvert 
Lithographing,  Engraving,  &  Map- 
Publishing  Co.,  5  Am.  L.  T.  R.  168. 

"  Take  the  instance  of  a  map  de- 
scribing a  particular  county,  and  a 
map  of  the  same  county  afterwards 
published  by  another  person ;  if  the 
description  is  accurate  in  both,  they 
must  be  pretty  much  the  same.  But 
it  is  clear  the  latter  publisher  cannot 
on  that  account  be  justified  in  sparing 
himself  the  labor  and  expense  of  actual 
survey,  and  copying  the  map  pre- 
viously published  by  another.  So,  as 
to  Patterson's  Road  Book,  it  is  cer- 
tainly competent  to  any  other  man  to 
publish   a  book  of  roads;  and  if  the 


same  skill,  intelligence,  and  diligence 
are  applied  in  the  second  instance,  the 
public  would  receive  nearly  the  same 
information  from  both  works ;  but 
there  is  no  doubt  that  this  court  would 
interpose  to  prevent  a  mere  republica- 
tion of  a  work  which  the  labor  and 
skill  of  another  person  had  supplied  to 
the  world.  So,  in  the  instance  men- 
tioned by  Sir  Samuel  Romilly,  a  work 
consisting  of  a  selection  from  various 
authors,  two  men,  perhaps,  might 
make  the  same  selection ;  but  that 
must  be  by  resorting  to  the  original 
authors,  not  by  taking  advantage  of 
the  selection  already  made  by  another. 
In  the  ease  of  Hogg  v.  Kirby,  8  Ves. 
216,  there  was  no  doubt  that  any  per- 
son might  publish  a  work  of  the 
description  which  was  the  subject  of 
that  injunction.  Each  party  might 
publish  his  own  collection,  and  the 
articles  might  happen  to  be  the  same ; 
but  one  could  not  excite  the  public 
curiosity  by  copying  into  his  work  from 
that  of  the  other."  Lord  Eldon,  Long- 
man V.  Winchester,  16  "Ves.  271. 

"  There  is  no  foundation  in  law  for 
the  argument,  that,  because  the  same 
sources  of  information  are  open  to  all 
persons,  and  by  the  exercise  of  their 
own  industry  and  talents  and  skill, 
they  could,  from  all  these  sources, 
bare    produced  a  similar  work,    one 


27 


418  THE   LAW   OP   COPYRIGHT   AND   PLATRIGHT. 

Law  Construed  in  Case  of  Directories.  —  This  doctrine  was 
forcibly  expressed  in  the  first  of  the  recent  English  directorj'^ 
cases,  by  Vice- Chancellor  Wood,  afterward  Lord  Chancellor 
Hatherley :  "  The  defendant  has  been  most  completely  mis- 
taken in  what  he  assumes  t6  be  his  right  to  deal  with  the  labor 
and  property  of  others.  In  the  case  of  a  dictionary,  map, 
guide-book,  or  directory,  when  there  are  certain  common  ob- 
jects of  information  which  must,  if  described  correctly,  be 
described  in  the  same  words,  a  subsequent  compiler  is  bound 
to  set  about  doing  for  himself  that  which  the  first  compiler  has 
done.  In  case  of  a  road-book,  he  must  count  the  milestones 
for  himself.  In  the  case  of  a  map  of  a  newly-discovered 
island, —  the  illustration  put  by  Mr.  Daniel,  —  he  must  go 
through  the  tvhole  process  of  triangulation,  just  as  if  he  had 
never  seen  any  former  maps  ;  and,  generally,  he  is  not  entitled 
to  take  one  word  of  the  information  previously  published,  with- 
out independently  working  out  the  matter  for  himself,  so  as  to 
arrive  at  the  same  result  from  the  same  common  sources  of 
information  ;  and  the  only  use  he  can  legitimately  make  of  a 
previous  publication  is  to  verify  his  own  calculations  and  re- 
sults when  obtained.  So,  in  the  present  case,  the  defendant 
could  not  take  a  single  line  of  the  plaintiff's  directory,  for  the 
purpose  of  saving  himself  labor  and  trouble  in  getting  his 
information.  .  .  .  The  work  of  the  defendant  has  clearly  not 
been  compiled  by  the  legitimate  application  of  independent 
personal  labor."  ^ 

party    may  at  second  hand,   without  supersede  the  right  of  any  other  per- 

any  exercise  of  industry,  talents,  or  son  to  use  tlie  same  means  by  similar 

skill,    borrow    from    another   all    the  surveys  and  labors  to  accomplish  the 

materials   which  have  been   accumu-  same  end.     But  it  is  just  as  clear  that 

lated  and  combined  together  by  him.  he  has  no  right,  without  any  such  sur- 

Take  the  case  of  a  map  of  a  county,  or  veys  and  labors,  to  sit  down  and  copy 

of  a  State,  or  an  empire  ;  it  is  plain,  the  whole  of  the  map  already  produced 

that  in  proportion  to  the  accuracy  of  by  the  skill  and  labors  of  the   first 

every  such  map  must  be  its  similarity  party,  and  thus  to  rob  him  of  all  the 

to,   or   even   its   identity    with,   every  fruit  of  his  industry,  skill,  and  expen- 

other.    Now,  suppose  a  person  has  be-  ditures.      It    would   be    a    downright 

stowed  his  time  and  skill  and  attention,  piracy."     Story,  J.,  Gray  v.  Russell,  1 

and  made  a  large  series  of  topographi-  Story,  18. 

cal  surveys,  in  order  to  perfect  such  a         ^  Kelly  v.  Morris,  Law  Rep.  1  Eq. 

map,  and  has  thereby  produced  one  far  701,  703.     "  This  language,"  said  Lord 

excelling  every  existing  map  of  the  Justice  Giffard,  "  does  not  mean  that 

same  sort.    It  is  clear  that,  notwith-  he  may  not  look  into  the  book  for  the 

standing  this    production,    lie   cannot  purpose  of  ascertaining  where  a  par- 


PIRACY. 


419 


The  soundness  of  these  views  was  expressly  recognized  in 
the  following  directory  cases  of  Morris  v.  Ashbee  ^  and  Morris 
V.  Wright,^  as  well  as  in  other  decisions.^  In  the  two  cases 
named,  the  law  was  construed  with  marked  unanimity  against 
the  right  of  a  subsequent  compiler  to  make  of  a  copyrighted 
directory  any  other  use  than  that  of  a  guide  in  the  preparation 
of  a  rival  publication.  Copying  in  any  manner  from  the  ear- 
lier directory,  or  in  any  wise  appropriating  the  results  there 
found,  is  strictly  prohibited.  The  later  directory  must  be  the 
result  of  independent  labor.  All  names,  addresses,  &c.,  in 
it  must  be  got  by  actual  application  to  the  persons.  If  such 
persons  cannot  be  found,  their  names  may  not  be  copied  from 
a  protected  work.  The  location  and  description  of  streets, 
buildings,  parks,  squares,  and  other  objects  of  interest,  must 
be  obtained  from  personal  observation,  or  common  sources  of 
information.     It  was  expressly  held  to  be  piracy  for  the  subse- 


ticular  person  lired,  and  for  the  purpose 
of  ascertaining  whether  it  was  worth 
his  while  to  call  upon  that  person  or 
not;  but  it  means  that  he  may  not 
take  that  particular  slip  and  show  that 
to  the  person,  and  get  his  authority  as 
to  putting  that  particular  slip  in." 
Morris  V.  Wright,  Law  Rep,  5  Ch.  285. 
"  No  doubt,"  continued  Viee-Chan- 
cellor  Wood,  in  Kelly  v.  Morris,  "  the 
expense  of  procuring  information  in  a 
legitimate  way  is  very  great.  The 
defendant  himself  has  told  us  so,  and 
also  that  it  was  not  for  some  years 
that  he  was  able  to  make  it  pay.  But 
the  defendant  goes  on  in  his  affidavit 
to  propound  a  most  extraordinary  doc- 
trine as  to  the  right  of  pubUcity  in  the 
names  of  private  residents,  wlio  had, 
as  he  expressed  it,  '  given  their  names 
for  public  use.'  What  he  has  done  lias 
been  just  to  copy  the  plaintiflTs  book, 
and  then  to  send  out  canvassers  to  see 
if  the  information  so  copied  was  cor- 
rect. If  the  canvassers  did  not  find  the 
occupier  of  the  house  at  home,  or  could 
get  no  answer  from  him,  then  the  in- 
formation copied  from  the  plaintiff's 
book  was  reprinted  bodily,  as  if  it  was 
a  question  for  the  occupier  of  the  house 
merely,  and  not  for  the  compiler  of  the 


previous  directory.  Further  than  this, 
the  defendant  tells  us  that  he  had  a 
number  of  new  agents,  and  that  one  of 
them  had  performed  his  part  of  the 
work  carelessly  ;  thus  at  once  showing 
how  easy  it  would  be,  on  the  system 
adopted  by  the  defendant,  for  any  neg- 
ligent agent  to  send  back  his  list  ail 
ticked  as  if  correct,  without  having 
taken  the  trouble  to  make  a  single  in- 
quiry."   Law  Rep.  1  Eq.  702. 

1  Law  Rep.  7  Eq.  34.  Vice-Chan- 
cellor  Giffard,  citing  Kelly  v.  Morris, 
said :  "  In  a  case  such  as  this,  no 
one  has  a  right  to  take  the  results 
of  the  labor  and  expense  incurred  by 
another  for  the  purposes  of  a  rival 
publication,  and  thereby  save  himself 
the  expense  and  labor  of  working  out 
and  arriving  at  these  results  by  some 
independent  road.  If  this  was  not  so, 
there  would  be  practically  no  copyright 
in  such  a  work  as  a  directory."  Ibid. 
40. 

2  Law  Rep.  5  Ch.  279. 

5  Scott  V.  Stanford,  Law  Rep.  3  Eq. 
718;  Cox  V.  Land  &  Water  Journal 
Co.,  9  Id.  324 ;  Pike  v.  Nicholas,  Law 
Rep.  5  Ch.  281;  Hogg  u.  Scott,  Law 
Rep.  18  Eq.  444. 


420  THE  LAW   OP   COPYRIGHT   AND   PLATRIGHT. 

quent  compiler  to  print  from  slips  cut  from  a  protected  direc- 
tory ;  although  in  every  instance  he  had  verified  the  accuracy 
of  the  information  j  or  corrected  it,  if  erroneous,  by  personal 
application  to  the  persons  whose  names  were  given.^ 

In  Morris  v.  Ashbee,  it  appeared  that  many  of  the  names  in 
the  plaintiff's  directory  had  been  printed  in  capital  letters, 
while  after  others  "  extra  lines  "  were  inserted,  the  object  of 
which  was  to  advertise  the  business  of  those  persons  who  were 
willing  to  pay  for  this  advantage.  The  defendant  alleged  that 
he  had  used  slips  only  of  these  parts  of  the  plaintiff's  directory ; 
and  contended  that,  as  the  names  printed  in  capitals  and  the 
extra  lines  were  advertisements,  which  had  been  paid  for 
by  the  persons  for  whose  special  benefit  they  were  inserted, 
the  plaintiff  was  not  entitled  to  copyright  in  them.  It  was 
further  claimed  by  the  defendant  that  the  authority  given  by 
the  persons  themselves  vested  in  him  a  right  so  to  use  their 
names  in  his  directory.  The  court,  however,  held  that  such 
persons  could  not  authorize  the  defendant  to  copy  their  names 
from  a  copyrighted  work,  and  refused  to  recognize  any  legal 
distinction  between  the  matter  so  paid  for  and  other  parts  of 
the  directory .2 

1  In  Kelly  v.  Morris  and  Morris  v.  swer,  clearly  not.  The  simple  upshot 
Ashbee,  it  appeared  that  the  defendant  of  the  whole  case  is,  that  the  plaintiff's 
had  cut  slips  from  the  plaintiff's  direc-  directory  was  the  source  from  which 
tory,  and,  having  verified  them  by  appli-  they  compiled  very  material  parts  of 
cation  to  the  persons  whose  names  were  theirs,  and  they  had  no  right  so  to  re- 
given,  printed  them  in  his  own  book,  sort  to  that'source.  They  had  no  right 
In  the  former  suit,  it  was  admitted  that  to  make  the  results  arrived  at  by  the 
in  the  case  of  persons  not  found  by  the  plaintiff  the  foundation  of  their  work, 
canvassers  the  slips  containing  their  or  any  material  part  of  it ;  and  this  they 
names  had  been  copied  without  verifl-  have  done."  Law  Rep.  7  Eq.  41. 
cation.  "  It  is  plain,"  said  Giffard,  '^  Ibid.  34.  "  I  am  of  opinion,"  said 
V.  C,  in  Morris  v.  Ashbee,  "that  it  Giffard,  V.  C,  "  that  the  application  by 
could  not  be  lawful  for  the  defendants  the  plaintiff  for  payment,  and  the  pay- 
simply  to  cut  the  slips  which  they  have  ment  by  the  several  persons  whose 
cut  from  the  plaintifi's  directory  and  names  were  inserted  with  capital  letters 
insert  them  in  theirs.  Can  it,  then,  be  or  with  added  lines,  had  not  the  effect  of 
lawful  to  do  so  because,  in  addition  to  making  these  names,  when  so  inserted, 
doing  this,  they  sent  persons  with  the  common  property.  The  plaintiff  in- 
slips  to  ascertain  their  correctness  7  I  curred  the  labor  and  expense,  first  of  get- 
say,  clearly  not.  Then,  again,  would  ting  the  necessary  information  for  the 
their  acts  be  rendered  more  lawful  be-  arrangement  and  compilation  of  the 
cause  they  got  payment  and  authority  names  as  they  stood  in  his  directory,  and 
for  the  insertion  of  the  names  from  then  of  making  the  actual  compilation 
each  individual  whose  name  appeared  and  arrangement ;  and  though  each  in- 
in  the  slips  ?    And  to  this  I  again  an-  dividual  who  paid  might  no  doubt  have 


PIRACY.  421 

Descriptive  Catalogues.  —  The  same  principle  was  applied  in 
determining  the  question  of  piracy  in  the  case  of  a  descriptive 
catalogue  of  fruit  and  fruit-trees.  The  defendant  said  that,  in 
preparing  his  work,  he  had  taken  the  plaintiff's  descriptions, 
and,  after  verifying  them  by  comparison  with  specimens  of 
fruit,  had  published  them  in  his  own  book.  It  was  held  that 
this  use  of  an  existing  work  was  unlawful,  and-  that  the  subse- 
quent author  was  bound  to  write  his  own  descriptions.  "  The 
true  principle  in  all  these  cases,"  said  Vice-Chancellor  Hall, 
after  citing  the  directory  decisions,  "  is  that  the  defendant  is 
not  at  liberty  to  use  or  avail  himself  of  the  labor  which  the  plain- 
tiff has  been  at  for  the  purpose  of  producing  his  work  ;  that 
is,  in  fact,  merely  to  take  away  the  result  of  another  man's 
labor,  or,  in  other  words,  his  property."  ^ 

And  so,  where  the  defendant  was  charged  with  piracy,  for 
having  published  facts  and  information  concerning  the  hunting 
season,  taken  from  the  plaintiff's  publication,  Yice-Cliancellor 
Malins  said :  "  I  also  assume  the  law  to  be  perfectly  clear  and 
settled,  as  laid  down  by  the  present  Lord  Chancellor  ^  in  Kelly 
V.  Morris  ;  as  also  by  that  other  case  of  Morris  v.  Ashbee.  It 
is  clear  that  in  this  case  the  getting  the  names  of  masters  of 
hunts,  the  numbers  of  hounds,  the  huntsmen  and  whips,  and 
so  forth,  is  information  open  to  all  those  who  seek  to  obtain 
it ;  but  it  is  information  they  must  get  at  their  own  expense, 
as  the  result  of  their  own  labor,  and  they  are  not  to  be  entitled 
to  the  results  of  the  labors  undergone  by  others."^ 

Maps.  —  And  so,  where  the  defendant  contended  that  it  was 
not  piracy  to  copy  boundaries  of  townships  from  the  plaintiff's 
map,  because  such  boundaries  had  been  fixed  by  statute,  and 
hence  no  one  could  acquire  exclusive  property  in  them,  the 
court  said :  "  What  is  claimed  in  this  regard  is  true  in  regard 
to  all  original  materials  from  which  maps  are  made,  and  that 
is,  that  none  of  them  are  subjects  of  copyright :  they  are  open 

his  own  name  printed  in  capital  letters,  the  printing  of  a  rival  work."    Ibid. 

or  with   the   same    superadded    lines  40. 

wherever  he  chose,  neither  one  nor  all         ^  Hogg  v.  Scott,  Law  Rep.  18  Eq. 

of  them  could  authorize   the  cutting  468. 

of  a  series  of  slips,  or  the  taking  of         ''  Hatherley. 

the  names  as  arranged,  from  the  plain-         ^  Cox  v.  Land  &  Water  Journal  Co., 

tiff's  directory,  and  the  use  of  them  in  Law  Eep.  9  Eq.  332. 


422       THE  LAW  OP  COPTRIGHT  AND  PLAYEIGHT. 

to  all.  But  no  one  has  the  right  to  avail  himself  of  the  enter- 
prise, labor,  and  expense  in  the  ascertainment  of  those  mate- 
rials, and  the  combining  and  arrangement  of  them,  and  the 
representing  them  on  paper.  The  defendant,  no  doubt,  had 
the  right  to  go  to  the  common  source  of  information ;  and, 
having  ascertained  those  boundaries,  to  have  drawn  them  upon 
its  map,  notwithstanding  that,  in  this  respect,  it  would  have 
been  precisely  like  complainant's  map  (which,  of  course,  it 
would  have  been,  if  they  were  both  correct).  But  he  had  no 
right  to  avail  himself  of  this  very  labor  on  the  part  of  com- 
plainant, in  order  to  avoid  it  himself."  ^ 

II.   Compilations  of  Published  Materials. 

The  law  governing  piracy  in  the  case  of  compilations  con- 
sisting of  common  materials  selected  from  other  publications 
will  be  considered  under  thi-ee  heads:  1.  When  the  entire 
compilation,  the  matter  and  its  arrangement,  is  taken.  2. 
When  the  materials,  but  not  the  mode  of  their  combination, 
are  copied.  3.  When  the  arrangement,  but  not  the  materials, 
is  adopted. 

When  Materials  and  Arrangement  are  Taken.  —  It  has  been 
shown  elsewhere  that  the  copyright  in  a  compilation  vests  not 
in  the  component  parts  independently  of  their  combination, 
nor  in  the  arrangement  apart  from  the  matter ;  but  in  the 
materials  as  arranged  and  combined.^  The  law  governing 
cases  wherein  both  the  materials  and  their  arrangement  are 
taken  is  well  settled.  Whether  the  compilation  in  which  copy- 
right is  claimed  consists  of  original  and  selected  matter  com- 
bined, or  is  made  up  wholly  of  selections  from  common  sources, 
whether  or  not  the  materials  have  been  elaborated  by  the  com- 
piler, it  is  a  work  entitled  to  protection  ;  and,  when  both  the 
substance  and  the  form  are  copied  without  authority,  it  is  a 
clear  invasion  of  copyright.  It  is  true  that  the  component  parts 
of  the  compilation  may  be  found  in  sources  open  and  accessible 
to  all  persons ;  and  that  any  one  may  use  the  same  materials  for 

1  Farmer  v.  Calvert  Lithographing,  Am.  L.  T.  R.  174.  See  also  Blunt  v. 
Engraving,  &  Map-Publishing  Co.,   5    Patten,  2  Paine,  393,  397. 

2  Ante,  p.  156. 


PIBACY. 


423 


the  same  purpose.  But  every  compiler  is  bound  to  go  to  the 
common  sources  for  his  materials,  and  arrange  them  on  a  plan 
original  with  himself.  He  must  himself  do  the  work,  and  de- 
pend on  his  own  skill ;  and  not  save  himself  labor  and  expense 
by  appropriating  the  fruits  of  another's  industry  and  learning.^ 
To  constitute  piracy  in  cases  of  this  kind,  it  is  not  necessary 
that  the  whole  of  the  compilation  shall  be  taken,  or  that  ver- 
hatim  copying  shall  be  shown.  The  same  general  tests  apply 
here  as  in  the  case  of  an  original  work.  A  case  of  infringe- 
ment may  be  made  out  when  the  substance  of  the  whole  or  of 
a  material  part  of  the  compilation  has  been  appropriated.^ 


1  Br.  Mattliewson  o.  Stockdale,  12 
Ves.  270  ;  Longman  v.  Wincliester,  16 
Id.  269;  Lewis  u.  FuUarton,  2  Beav. 
6  ;  Kelly  v,  Hoop^,  4  Jur.  21 ;  Murray 
V.  Bogue,  1  Drew.  353 ;  Maclean  v. 
Moody,  20  Sc.  Sess.  Cas.  2d  ser.  1154; 
Spiers  v.  Brown,  6  W.  R.  352  ;  Jarrold 
V.  Houlston,  B  Kay  &  J.  708 ;  Scott  v. 
Stanford,  Law  Rep.  3  Eq.  718  ;  Pike  v. 
Nicholas,  Law  Rep.  5  Ch.  251 ;  Black 
V.  Murray,  9  Sc.  Sess.  Cas.  3d  ser.  .341. 
Am.  Gray  v.  Russell,  1  Story,  11 ;  Em- 
erson V.  Davies,  3  Id.  768 ;  Webb  v. 
Powers,  2  Woodb.  &  M.  497 ;  Story's 
Executors  v.  Holcombe,  4  McLean,  306 ; 
Greene  v.  Bishop,  1  Cliff.  186;  Law- 
rence «.  Dana,  2  Am.  L.  T.  R.  N.  s.  402  ; 
Parmer  v.  Calvert  Lithographing,  En- 
graving, and  Map-Publishing  Co.,  5 
Am.  L.  T.  R.  168 ;  Banks  i>.  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  </.  Wyatt, 
Maxwell  v.  Somerton,  30  L.  T.  n.  s.  11,    2  De  G.  J.  &  S.  18,  25. 


EKVIEDIES   IN   EQUITY.  507 

having  knowingly  suffered  them  to  be  invaded  for  an  unusually 
long  time  without  protest,  and  wherein  he  offers  no  explanation 
of  his  delay,  the  practice  of  the  courts  and  the  views  of  the  law 
expressed  by  them  are  by  no  means  uniform.  In  Kundell  v. 
Murray,  where  it  appeared  that  the  plaintiff  had  given  a  manu- 
script to  the  defendant,  and  permitted  him  to  publish  it  as  his 
own  for  fourteen  years,  at  tlie  end  of  which  period  she  claimed 
the  exclusive  property  in  it,  and  sought  to  restrain  the  defend- 
ant from  further  publishing  it,  Lord  Eldon,in  refusing  to  grant 
an  injunction,  said :  "  There  has  often  been  great  difficulty 
about  granting  injunctions,  where  the  plaintiff  has  previously, 
by  acquiescing,  permitted  many  others  to  publish  the  work ; 
where  ten  have  been  allowed  to  publish,  the  court  will  not 
restrain  the  eleventh.  A  court  of  equity  frequently  refuses  an 
injunction  where  it  acknowledges  a  right,  when  the  conduct  of 
the  party  complaining  has  led  to  the  state  of  things  that  occa- 
sions the  application ;  and,  therefore,  without  saying  with 
whom  the  right  is,  whether  it  is  in  this  lady,  or  whether  it  is 
concurrently  in  both,  I  think  it  is  a  case  in  which  strict  law 
ought  to  govern."  ^ 

In  Lewis  v.  Chapman,  the  injunction  was  refused,  because  it 
appeared  that  the  publication  complained  of  had  been  issued, 
and  the  attention  of  the  plaintiff  called  to  it,  six  years  before 
the  bill  was  filed  ;  and  that,  more  than  a  year  before  beginning 
proceedings,  the  plaintiff  had  obtained  a  copy  of  the  work  for 
the  express  purpose  of  ascertaining  whether  it  was  piratical.^ 
In  Chappell  v.  Sheard,  the  defence  was  set  up  that  the  plaintiffs 
had  been  aware  of  the  defendant's  publication  for  about  two 
months  before  applying  for  an  injunction,  and  that  they  had  suf- 
fered other  piracies  to  be  committed  without  proceeding  against 
the  offenders.  Vice-Chancellor  Wood  refused  to  interfere,  until 
the  plaintiffs  should  make  an  affidavit  as  to  whether  they  had 
had  knowledge  of  these  piracies  as  charged  by  the  defendants.^ 

1  Rundell  v.  Murray,  Jao.  316  been  out  so  long  ago  as  the  14th  April, 

2  3  Beav.  133.  and  the  managing  partner  of  the  plain- 
8  1  Jur.   N.  s.   996.    "  There  must    tiffs  not  to  be  aware  of  it  till  June ; 

be  a  further  affidavit,"  said  the  Vice-  and  if  it  turn  out  that  he  was  aware  of 

Chancellor,  "on  the  point  of  knowledge  it  all  that  time  such  laches  would  be 

by  any   of  the  partners.    It  appears  very  important." 
strange  that  this  imitation  should  have 


608       THE  LAW  OP  COPYRIGHT  AND  PLAYEIGHT, 

The  plaintiffs  having  satisfied  the  court  that  they  had  acted  with- 
out delay  when  they  learned  that  their  rights  had  been  invaded, 
the  injunction  was  granted.  "The  only  doubt,"  said  the  Vice- 
Chancellor,  "  I  have  felt  in  this  case  was  as  to  the  laches  ;  I 
have  no  doubt  as  to  the  infringement.  But  the  principle  is 
this ;  that,  if  the  owner  of  a  copyright  suffers  one  depredation 
to  go  unchallenged,  the  court  will  not  allow  him  to  call  an- 
other's infringement  in  question." 

In  Rundell  v.  Murray,  the  controlling  question  was,  not 
whether  the  plaintiff  had  forfeited  her  right  to  equitable  relief 
solely  by  delay,  but  whether  by  agreement  she  had  not  in 
equity-  conveyed  her  copyright  to  the  defendant.  In  Lewis  v. 
Chapman,  the  injunction  was  refused  on  the  sole  ground  of 
delay  on  the  part  of  the  plaintiff,  and  the  same  principle  was 
recognized  in  Chappell  v.  Sheard. 

Tendency  of  Recent  Decisions  toTward  Doctrine  that  Plaintiffs 
Rights  are  not  Lost  by  Mere  Delay.  —  But  the  tendency  of  more 
recent  decisions  has  been  toward  the  doctrine  that  the  plain- 
tiff's rights  in  equity  are  not  lost  by  mere  delay  in  asserting 
those  rights.  The  defendant  must  show  that  he  has  acted  with 
the  express  or  implied  consent  of  the  owner  of  the  copyright ; 
and  such  consent  is  not  proved  by  the  mere  fact  that  the  owner 
was  long  aware  of  the  piracy  without  protesting  against  it,  or 
that  he  has  not  chosen  sooner  to  assert  his  rights  in  a  court  of 
law  or  equity,  against  either  the  defendant  or  any  other  wrong- 
doer. In  other  words,  the  principle  seems  to  have  been  recog- 
nized, though  it  may  be  going  too  far  to  say  that  it  is  established, 
that  the  defendant  will  not  be  allowed  to  escape  the  legal  con- 
sequences of  his  wrongful  acts  by  pleading  mere  delay  or  lack 
of  protest  on  the  part  of  the  plaintiff.  No  person  has  a  right 
to  use  property  without  the  consent  of  the  owner ;  and,  when  he 
does  so,  he  must  suffer  the  consequences.^ 

As  early  as  1815,  Lord  Eldon  intimated  that  a  year's  delay 
would  not  deprive  the  plaintiff  of  his  remedies  in  equity.^    And, 

1  Br.  Hogg  V.  Scott,  Law  Rep.  18  Boucieault  v.  Fox,  5  Blatchf.  87 ;  Bou- 

Eq.  444  ;    Maxwell    v.   Somerton,  30  cioault  v.  Wood,  7  Am.  Law  Reg.  n.  s. 

L.  T.  N.  s.  11 ;  Morris  v.  Ashbee,  Law  539,  550;  s.  o.  2  Biss.  34. 
liep.  7  Eq.  34.     See  also  Strahan  ■/.         2  Piatt   v.    Button,    19    Ves.    447. 

Graham,   17   L.   T.  n.    s.  457.    Am.  "The  plaintiff  has  permitted  several 

Greene  v.  Bishop,   1   Cliff.   186,  202 ;  persons  to  publish  these  dances,"  said 


REMEDIES   IN    EQUITY.  509 

in  1818,  the  opinion  was  expressed  by  the  King's  Bench  in  an 
action  at  law,  wherein  it  appeared  that  the  defendant  had  been 
publishing  a  sonata  for  about  six  years  without  objection  on 
the  part  of  the  plaintiff,  that,  "  although  from  the  publication 
so  long  ago  as  the  year  1812,  without  any  complaint  having 
been  made,  it  might  be  inferred  that  the  defendant  had  author- 
ity from  the  plaintiff  to  publish  at  that  time ;  yet  that  it  was 
impossible  to  infer  for  what  time  that  authority  might  have 
been  given,  and  whether  it  subsisted  at  the  time  of  the  publica- 
tion of  which  the  plaintiff  complained  in  the  present  case."  ^ 

In  the  recent  case  of  Hogg  v.  Scott,  it  appeared  that. the 
plaintiff  had  published  in  1868  the  first,  and  in  tlie  latter  part 
of  1872  the  second,  edition  of  The  Orchardist,  which  contained 
matter  pirated  from  the  plaintiff's  works.  In  1869,  the  plain- 
tiff received  a  copy  of  the  book,  and  wrote  a  friendly  letter  to 
the  defendant  concerning  part  of  its  corttents,  without  inti- 
mating that  it  contained  any  thing  copied  from  his  own  publi- 
cations. In  June,  1873,  the  plaintiff,  being  about  to  publish  a 
new  edition  of  one  of  his  books,  and  having  discovered,  as  he 
alleged,  in  the  preceding  April,  the  piratical  nature  of  the 
defendant's  work,  moved  to  restrain  its  further  publication  or 
sale.  The  bill  was  dismissed  in  July,  on  the  ground  that  the 
plaintiff's  work  had  not  been  properly  registered,  and  a  new 
suit  was  begun  in  August.  The  defence  was  set  up  that  the 
plaintiff  had  knowledge  in  1869  of  the  piracy,  and  was,  there- 
fore, barred  by  delay  from  bringing  suit ;  that  the  defendant 
was  about  to  issue  a  third  edition  of  his  work,  and  that  he  was 
entitled  to  republish  any  thing  that  liad  appeared  in  the  earlier 
editions.  The  court  held  that,  even  if  the  plaintiff  had  been 
aware  of  the  piratical  nature  of  the  defendant's  book  for  four 
years  before  beginning  suit,  he  was  not  thereby  deprived  of  his 
remedies  in  equity.  "  The  omission  to  take  any  proceedings 
at  law  or  in  equity  for  a  time,"  said  Vice-Chancellor  Hall, 
"  does  not  in  itself  appear  to  me  an  encouragement  to  the  de- 

the  Lord  Chancellor,  "some  of  them  represented,  some  of  them  were  pub- 

for   fifteen    years ;    thus  encouraging  lished,    only  last  year,  and  one  two 

others  to  do  so.     That,  it  is  true,  is  not  montlis  ago,  the  bill  ought  to  have  been 

a  justification;  but  under  these  circum-  confined  to  those."     See  also  Baily  v, 

stances  a  court  of  equity  will  not  inter-  Taylor,  3  L.  J.  (Ch.)  66. 
fere  In  the  first  instance.     If,  as  is         ^  Latour  v.  Bland,  2  Stark.  888. 


510 


THE   LAW   OP   COPYRIGHT   AND   PLAYEIGHT. 


fendant  amounting  to  an  equitable  bar  in  this  court.  It  is  not 
enough  to  show  that  the  legal  right  is  not  to  be  protected 
here."  "  Knowledge  by  the  plaintiff  that  the  defendant  was 
advertising  his  work  which  contained  the  objectionable  matter 
and  that  he  was  going  on  selling  it  does  not  appear  to  me  to 
amount  to  that  description  of  acquiescence  in  the  defendant's 
dealing  with  the  subject-matter,  which  must  be  taken  to  de- 
prive the  plaintiff  of  the  interference  of  this  court  as  from  any 
given  time."  ^ 

tiff  of  knowledge  that  the  defendant 
was  going  on  publlslilng  The  Orchardlst 
for  two  years  afterwards,  and  that  the 
plaintiff  knew  in  October,  1872,  that 
the  defendant  was  about  to  publish  a 
new  edition  of  his  book,  which  was  to 
be  much  larger  and  more  expensive. 

"  Now  up  to  the  time  of  his  knowledge 
of  the  new  edition,  in  October,  1872,  the 
plaintiff  was  aware  only  that  the  defend- 
ant was  going  on  selling  copies  of  The 
Orchardlst.  When  he  became  aware 
of  the  defendant's  intended  new  edition, 
there  was  nothing  at  all  events  to  induce 
him  to  suppose  or  believe  that  there 
would  be  any  new  matter  introduced 
into  it,  taken  from  the  plaintiff's  work. 
The  matter  stood,  so  tar  as  tlie  plaintiff 
was  concerned,  exactly  as  it  did  before. 
I  have  first  of  all  to  consider  whether 
not  taking  any  proceeding  with  refer- 
ence to  the  old  matter  in  any  given 
time  would  deprive  the  plaintiff,  on  the 
ground  of  acquiescence,  of  the  right  to 
come  to  this  court.  The  omission  to 
take  any  proceedings  at  law  or  in  equity 
for  a  time  does  not  in  itself  appear  to 
me  to  be  an  encouragement  to  the  de- 
fendant amounting  to  an  equitable  bar 
in  this  court.  It  is  not  enough  to  show 
that  the  legal  right  is  not  to  be  pro- 
tected here.  It  must  not  be  assumed 
that  the  court  is  satisfied  that  the 
plaintiff  by  his  conduct  has  led  the  de- 
fendant to  incur  material  expenses  in 
reference  to  his  new  book.  .  .  . 

"  Now  in  this  case  knowledge  by  the 
plaintiff  that  the  defendant  was  adver- 
tising his  work,  which  contained  tlie 
objectionable  matter,  and  that  he  was 
going  on  selling  it,  does  not  appear  to 
me  to  amount  to  that  description  of  ac- 


1  Hogg  V.  Scott,  Law  Rep.  18  Eq. 
454,  456.  The  Vice-Chancellor  said  : 
"  It  3oes  not,  in  the  view  which  I  take 
of  this  case,  appear  to  me  to  be  neces- 
sary to  say  what  is  the  true  conclusion 
or  the  legal  inference  to  be  drawn  in 
reference  to  the  knowledge  of  the 
plaintiff  of  the  contents  of  the  book, 
more  or  less,  from  the  time  when  he 
received  a  copy  of  it.  Assuming  that 
he  must  be  taken  as,  from  the  time 
when  he  received  a  copy,  to  have  been 
fully  aware  of  the  contents,  I  still  think 
that  that  circumstance  is  not  sufficient 
to  deprive  him  of  the  relief  which  he 
seeks  in  this  suit.  I  have  expressed 
my  opinion  upon  the  construction  of 
the  Act  of  Parliament  in  reference  to 
the  question  —  a  new  question,  in  my 
view  —  of  the  period  within  which  tlie 
suit  ought  to  have  been  commenced. 
The  position  of  things,  assuming  that 
he  had  knowledge  at  that  time,  appears 
to  me  to  be  this  :  The  plaintiff  was  at 
the  time  he  received  the  copy  of  the 
book,  which  is  relied  upon  as  having 
given  him  knowledge  of  its  contents, 
the  undoubted  legal  owner  of  the  copy- 
right, the  piracy  of  which  is  complained 
of.  That  was  liis  property,  and  he  had 
a  right  to  say  to  tlie  defendant,  '  That 
is  my  property,  and  I  will  neither  allow 
you  to  make  nor  recognize  your  mak- 
ing use  of  it.'  The  plaintiff  did  not 
take  any  step  founded  on  his  right  to 
property  until  he  filed  his  bill.  He  did 
file  his  bill  soon  after  he  received  a 
copy  of  the  second  edition ;  but,  assum- 
ing the  most  in  the  defendant's  favor, 
all  that  had  taken  place  in  the  mean 
time,  beyond  the  letter  which  was  sent 
to  him.wasthe  acquisition  by  the  plain- 


REMEDIES   IN   EQUITY. 


511 


So,  in  Greene  v.  Bishop,  the  fact  that  the  first  edition  of  the 
book  alleged  to  be  piratical  had  been  published  in  1852,  and  a 
second  edition  in  1853,  and  that  no  legal  proceedings  had  been 
taken  against  the  publisher,  was  held  not  to  be  a  bar  to  the 
suit  brought  in  1854  against  the  defendant  as  a  vendor.  It 
further  appeared,  however,  that  the  unlicensed  publication  had 
taken  place  in  another  State  than  that  in  which  the  plaintiff 
resided,  and  in  which  the  suit  against  the  defendant  was 
brought. 1 

In  Boucicault  v.  Fox,  which  was  an  action  for  damages  for 
nine  representations  of  a  copyrighted  drama,  the  court  ruled 
that  the  fact  that  the  plaintifiF  was  aware  of  the  performances 
during  their  progress,  and  made  no  objection,  would  not  war- 
i^nt  the  jury  in  inferring  his  assent  to  them.     "  If  the  defend- 


quiescence  in  the  defendant's  dealing 
witli  the  subject-matter  which  must  be 
taken  to  deprive  the  plaintiff  of  the  in- 
terference of  this  court  as  from  any 
given  time.  I  am  satisfied  that  his 
legal  right  remained,  and  to  have  tried 
the  question  at  law  for  damages  would, 
under  all  the  circumstances,  have  been 
an  unsatisfactory  thing  to  do.  Then 
the  question  arises,  whether  the  case 
is  altered  by  the  fact  that  the  plaintiff 
knew  —  and  I  must  take  it  that  he 
knew  —  that  th^  defendant  was  about 
to  issue  a  new  edition  of  his  book.  Am 
I  to  assume  against  the  plaintiff  that 
he  knew  what  the  contents  of  the  new 
book  would  be,  whether  of  the  old 
matter,  as  in  the  first  edition,  or  not  1 
Or  am  I  to  consider  that  it  was  incum- 
bent upon  him  to  inquire  from  the  de- 
fendant all  the  circumstances  —  whether 
he  was  going  to  put  in  the  new  edition 
what  he  was  at  that  moment  illegally 
retaining  in  the  old  one  ?  Considering 
the  time  when  the  advertisement  came 
out,  and  the  character  of  that  adver- 
tisement, and  the  fact  that  the  plaintiff' 
was  one  of  the  editors  of  The  Horticul- 
tural Journal,  that  does  not  to  my  mind 
make  it  a  sufiiciently  strong  case  of  en- 
couragement or  acquiescence  on  the 
part  of  the  plaintiff  to  justify  me  in 
saying  that  this  court  will  withhold 
the  relief  wliich  he  would  otherwise  be 


entitled  to,  leaving  him  with  his  un- 
doubted legal  right  to  proceed  in  a 
court  of  law  in  respect  of  the  same 
matter ;  that  is  to  say,  that  the  court 
having  determined  the  legal  question 
in  his  favor,  should  send  him  to  a  court 
of  law  to  get  damages,  and  refuse  an 
injunction.  Under  such  circumstances, 
to  do  so  would  be  playing  with  justice 
and  the  forms  of  procedure.  I  have, 
therefore,  come  to  the  conclusion  that 
the  plaintiff's  right  in  this  court  has 
not  been  taken  away  by  what  has  oc- 
curred."   Ibid.  453,  456. 

1  1  Cliff:  186,  202.  "Both  the  bill 
and  the  answer,"  said  Mr.  Justice 
Clifford,  "disclose  the  fact  that  the 
first  edition  of  the  respondent's  book 
was  published  in  1852,  in  another  State  ; 
and  the  second  in  1853,  by  tlie  same 
publishers,  while  the  complainant  was 
residing  in  this  district,  and  this  bill 
was  filed  during  the  following  year. 
At  what  time  the  complainant  became 
possessed  of  the  knowledge  of  these 
publications  does  not  appear ;  and 
there  is  no  evidence  tending  to  show 
that  he  ever  in  any  manner  acquiesced 
in  the  claim  of  the  respo;ident,  or  rec- 
ognized the  validity  of  his  acts,  except 
what  may  be  inferred  from  the  omission 
to  prosecute.  No  other  laches  appears 
on  the  face  of  the  bill,  and  no  such  de- 
fence is  set  up  in  the  answer." 


612        THE  LAW  OF  COPYRIGHT  AND  PLAYRIGHT. 

ants,"  said  Mr.  Justice  Shipman,  "  liad  been  ignorant  of  the 
plaintifif's  right,  and  had  gone  on  under  a  misapprehension  of 
the  facts,  or  if  they  had  supposed  he  assented,  they  might  make 
this  claim  with  a  better  grace."  ^ 

In  Boucicault  v.  Wood,  tlie  court  expounded  the  law  to  the 
eflfect  tliat  the  owner  might  lose  his  common-law  rights  in  an 
unpublished  play,  by  allowing  it  "  to  be  represented  through- 
out the  community  for  a  long  space  of  time,  without  license 
and  without  objection,  knowing  the  fact  to  be  so.  .  .  .  But  it 
must  be  apparent  that  it  has  been  done  with  his  knowledge  and 
without  objection  on  his  part.  That  is  to  say,  the  facts  must 
exist  to  indicate  that  he  consented  or  acquiesced  in  their  per- 
formance. Otherwise,  he  is  not  prevented  from  claiming  his 
property  in  these  plays, —  I  mean,  of  course,  his  property  ^t 
common  law."  ^ 

How  Piratical  Copying  is  Ascertained. 

When  piracy  is  denied,  it  becomes  necessary  to  ascertain 
whether  the  defendant's  work  has  been  copied  from  that  of  the 
plaintiff ;  and,  if  so,  to  what  extent,  and  what  are  the  piratical 
parts.  The  determination  of  these  questions  will  not  only 
require  a  careful  comparison  of  the  two  books,  but  not  uiifre- 
quently,  especially  if  the  publications  in  controversy  are  com- 
pilations, a  laborious  examination  of  other  works.     The  plaintiff 

1  5  Blatchf.  87,  99.  book.     The  Circuit  Court,  7  Blatchf. 

2  7  Am.  Law  Eeg.  u.  s.  539,  550.  152,  dismissed  the  bill  on  the  ground 
See  also  dissenting  opinion  of  Monell,  J.,  that  the  plaintiflF  by  the  original  agree- 
in  Keene  v.  Clarke,  post,  p.  577,  note  1.  ment  had  parted  with  all  his  rights,  and 
Paige  V.  Banks  was  a  controrersy  this  judgment  was  affirmed  by  the  Su- 
as  to  the  effect  of  an  agreement  by  preme  Court  of  the  United  States.  It 
which  the  plaintiff  had  sold  a  manu-  does  not  appear  what  view  of  the  law 
script  to  the  defendant.  The  latter  the  court  would  have  taken  if  tlie  de- 
was  the  undisputed  owner  of  the  copy-  cision  had  turned  on  the  question  of 
right  during  the  period  of  twenty-eight  delay  or  acquiescence  on  the  part  of  the 
years ;  but,  at  the  expiration  of"  that  plaintiff.  But  there  is  some  signifi- 
term  in  1858,  each  party  claimed  to  be  cance  in  the  fact  that  this  question 
entitled  to  renew  the  copyright  for  was  not  considered  by  the  Circuit 
fourteen  years,  and  each  warned  the  Court,  and  that  the  Supreme  Court  re- 
other  against  the  infringement  of  his  ferred  to  the  defendant's  course  only 
alleged  rights.  The  defendant  con-  as  evidence  of  his  intention  in  making 
tinned  to  publish  the  book  without  in-  the  original  agreement.  13  Wall.  608, 
terference  by  the  plaintiff.  The  latter  616.  This  case  is  considered  in  con- 
died  in  March,  1868;  and  ten  months  nection  with  another  subject,  ante, 
later  his  executors  sought  to  restrain  p.  328. 

the    defendant    from    publishing    the 


EEMBDIES   IN   EQUITY.  613 

is  not  required  to  specify  the  parts  of  the  defendant's  publica- 
tion which   are   piratical.    A  general  allegation  of  infringe- 
ment is   enough.^    The  comparison  of  the  two  books  may 
be  made  by  the  court  or  by  a  master.     In  England,  laborious 
examinations  have  frequently  been  made  by  the  judges.^    In 
the  United  States,  the  usual  practice  in  cases  involving  much 
labor  has  been  to  make  a  reference  to  a  master .^     The  reference 
is  usually  ordered  and  the  master's  report  made  before  the 
final  hearing ;  but,  in  Lawrence  v.  Dana,  by  election  of  the 
parties,  the  decision  of  the  court  on  the  legal  questions  involved 
was  first  rendered,  and  afterward  the  case  was  referred  to  a 
master  to  report  on  the  extent  of  the  piracy.     The  injunction 
was  withheld  until  the  master's  report  should  be  made.  "  Equity 
suits  for  the  infringement  of  a  copyright,"  said  Mr.  Justice 
Clifford,  "  are  usually  referred  to  a  master  before  the  final 
hearing,  to  ascertain  whether  the  charge  is  proved,  and,  if  so,  for 
a  final  report  as  to  the  nature  and  extent  of  the  infringement ; 
and  in  such  cases  the  general   rule  is,  that  the  complainant, 
if  he  prevails  in  the  suit,  is  entitled,  if  at  all,  to  an  injunc- 
tion at  the  time  the  decretal  order  is  entered,  to  restrain  the 
respondent  from  any  further  violation  of  his  rights,  as  the  whole 
case  is  then  before  the  court.     Even  when  the  case  is  heard 
before  any  such  reference  and  report,  if  the  charges  of  infringe- 
ment are  few  and  of  a  character  that  the  extent  of  the  infringe- 
ment can  be  conveniently  determined  by  the  court  without 
sending  the  case  to  a  master,  the  court,  if  the  case  be  one 

1  "  As    long  as    I  remember    the  the  piracy."     Shadwell,  V.  C,  Sweet 

court,  it  has  never  been  thought  neces-  v.  Maugham,   11    Sim.   53.     See  also 

sary  for  a  party  who  complains  that  Rooney    v.   Kelly,,  14  Ir.  Law   Rep., 

his  copyright    has  been  infringed  to  N.  s.  158. 

specify,  either  in  his  bill  or  his  affidavit,  ^  Lewis  v.  FuUarton,  2  Beav.  6  ; 
the  parts  of  the  defendant's  work  Murray  v.  Bogue,  1  Drew.  353 ;  Jarrold 
which  he  thinks  have  been  pirated  v.  Houlston,  3  Kay  &  J.  708  ;  Spiers  v. 
from  his  work  ;  but  it  has  always  been  Brown,  6  W.  R.  352 ;  Pike  v.  Nicholas, 
considered  sufficient  to  allege  gener-  Law  Rep.  5  Ch.  251. 
ally,  that  the  defendant's  work  con-  '  Folsom  v.  Marsh,  2  Story,  100 ; 
tains  several  passages  which  have  been  Webb  o.  Powers,  2  Woodb.  &  M.  497  ; 
pirated  from  the  plaintiff's  work,  and  Story  v.  Derby,  4  McLean,  160 ;  Story's 
to  verify  the  rival  works  by  affidavit.  Executors  v.  Holcombe,  Ibid.  306 ; 
Then  when  the  injunction  has  been  Greene  v.  Bishop,  1  Cliff.  186;  Law- 
moved  for,  the  two  works  have  been  rence  v,  Dana,  2  Am.  L.  T.  R.  n.  s. 
brought  into  court,  and  the  counsel  402;  Chase  v.  Sanborn,  6  U.  S.  Pat. 
have  pointed  out  to  the  court  the  pas-  Off.  Gaz.  932. 
sages  which  they  rely  upon  as  showing 

33 


614  THE   LAW   OP   COPYRIGHT   AND   PLAYRIGHT. 

where  an  injunction  is  the  proper  remedy,  will  order  it  at  the 
same  time  that  the  decision  is  announced  upon  the  merits.  But 
where  the  cause  comes  to  a  final  hearing  without  any  such 
report,  the  court,  if  the  charges  of  infringement  are  numerous 
and  of  a  character  to  require  extended  examination  before  the 
extent  of  the  infringement  can  be  ascertained,  will  ordinarily 
send  the  case  to  a  master  for  further  examination  and  report  in 
respect  to  all  matters  not  previously  adjudged  by  the  court ;  and 
the  general  rule  in  such  cases  is,  that  the  injunction  will  not 
be  granted  until  the  nature  and  extent  of  the  infringement  are 
fully  ascertained  and  determined,  as  its  effects  and  operation 
might  work  great  injustice.  Obviously  the  present  case  falls 
within  the  latter  rule ;  and,  therefore,  an  injunction  will  not 
be  ordered  until  the  court  shall  have  acted  finally  upon  the 
report  of  the  master."  ^ 

Where  it  did  not  satisfactoril)'  appear  that  what  the  defendant 
had  done  or  intended  to  do  would  be  in  violation  of  the  plain- 
tiff's right,  the  court,  on  a  motion  for  a  preliminary  injunction 
which  was  denied,  refused  to  make  a  reference  to  a  master.^ 

The  master  may  be  required  not  only  to  report  the  facts,  but 
also  to  give  his  opinion  as  to  whether  the  plaintiff's  work  is 
original,  and  whether  it  has  been  infringed  by  the  defendant ;  ^ 
and  whether  the  sale  of  the  plaintiff's  publication  is  prejudiced, 
and  to  what  extent,  by  the  defendant's.*  The  master's  opinion 
is  subject  to  review  by  the  court.  In  Story's  Executors  v. 
Holcombe,  the  master  reported  that  the  defendant's  work  was  a 
bona  fide  abridgment  of  the  plaintiff's,  and  tlierefore  not  pirati- 
cal.    But  the  court  found  that  the  first  third  of  the  defendant's 

1  2  Am.  L.  T.  K.  n.  8.  432.  The  same  without  any  such  report.    Cases  arise, 

judge  furtlier  said  :  "  The  settled  prac-  where  the  court,  under  such  circum- 

tice  in  equity  is,  where  the  works  are  stances,    would    not    order    a    refer- 

volurainous  and  of  a  complex  charac-  ence,  but  would  proceed  to  compare 

ter,  containing,  as  in  this  case,  much  the  books  and  ascertain  the  details  of 

original  matter  mixed  with   common  the  infringement ;  but  the  case  before 

property,  the  cause  will,  at  some  stage  the  court  is  far  too  complex  to  admit 

of  the  case,  be  referred  to  a  master  to  of  that  course  of  action."    Ibid.  429. 
state  the  facts,  together  with  his  opin-         '  Smith  v.  Johnson,  4  Blatchf.  252. 
ion,  for  the  consideration  of  the  court.         °  Story  w.  Derby,  4  McLean,  160  ; 

Mucli  the  better  course  is  to  make  the  Lawrence  v.  Dana,  2  Am.  L.  T.  E. 

references  before    tlie    final  hearing ;  n.  s.  402. 

but  the  parties  in  this  case  waived  any         *  Greene  v.   Bishop,   1  Cliff.   186 ; 

reference  at  that  stage  of  the  cause,  Osgood  v.  Allen,  1  Holmes,  185. 
and  elected  to  proceed  to  final  hearing 


REMEDIES   IN   EQUITY.  515 

work  was  not  an  abridgment,  but  a  compilation  pirated  from 
the  plaintiff's  book,  and  accordingly  granted  an  injunction.^ 

Defendant  should  Point  out  Copied  Farts,  Produce  Manuscript, 
&c.  —  Lord  Eldon  thought  that  it  was  the  duty  of  the  defendant, 
when  piratical  and  original  matter  were  combined  in  his  work, 
to  point  out  the  parts  which  had  been  copied.^  In  a  very  doubt- 
ful case  of  piracy,  the  defendant  may  escape  an  adverse  judg- 
ment of  the  court  by  producing  his  manuscript.^  In  Jarrold  v. 
Houlston,  the  fact  that  copying  was  denied,  falsely  in  the  belief 
of  the  court,  was  an  important  circumstance_in  leading  the  Vice- 
Chancellor  to  grant  the  injunction.* 

Temporary  Injunction. 

When  the  validity  of  tlie  copyright  or  the  plaintiff's  title  is 
disputed,  or  the  piracy  is  denied,  the  determination  of  the 
questions  raised  will  often  require  much  time,  and  in  some 
cases  the  plaintiff  may  suffer  irreparable  damage,  unless  the 
piratical  publication  is  restrained  without  delay.  In  such  case, 
immediate  relief  may  be  given  by  a  temporary  or  provisional 
injunction,  which  may  be  granted  when  the  application  is  first 
made,  or  at  some  stage  during  the  proceedings.  It  will  be 
ordered  to  stand  until  the  coming  in  of  the  defendant's  answer 
or  the  master's  report,  or  the  final  hearing,  or  the  further  order 
of  the  court.^ 

1  4  McLean,  306.  For  discussion  as  the  conclusion  that  there  has  been 
to  exceptions  to  master's  report,  see  close  copying  or  colorable  alteration  of 
Greene  v.  Bishop,  1  Cliff.  190-196.  the  plaintitf 's  book ;  but  I  have  also 

2  Mawman  v.  Tegg,  2  Russ.  395.  this  strong  fact,  and  I  confess  I  rely 
'  Hotten  V.  Arthur,  1  Hem.  &  M.    upon  it  as  one  that  ought  to  have  a 

609.  "  It  is  of  great  importance,"  said  considerable  bearing  upon  my  deci- 
Wood,  V.  C,  "as  evidence  of  6ono./i(^cs,  sion,  that  Mr.  Philp  has  talsen  upon 
that  the  original  manuscript  should  be  himself  to  deny  by  his  affidavit  that 
produced.  That  decided  me  in  favor  lie  has  copied  or  taken  any  idea  or  lan- 
of  the  defendant  in  the  French  diction-  guage  from  the  plaintiff's  book.  I  find 
ary  case.  Spiers  v,  Brovifn,  6  W.  R.  it  impossible  to  come  to  a  conclusion 
352.  I  saw  that  he  had  bestovred  great  in  his  favor  on  the  issue  he  has  so  ten- 
pains  and  labor  on  his  subject;  and,  dered ;  and,  that  being  so,  the  very 
though  lie  had  certainly  copied  a  great  circumstance  of  that  denial  on  his  part 
deal  from  the  plaintiff,  I  was  convinced  is  «,  very  strong  indication  of  an  ani- 
that  he  had  honestly  exercised  his  mind  musfurandi ;  and  if  the  animus  furandi 
upon  his  work."  te  established,  I  ought  to  interfere  by 

4  3  Kay  &  J.   708.     "  In  the  case  injunction."    Ibid.  722. 

before  me,"  said  Wood,  V.  C,  "  not  5  2  Story's  Eq.  Jur.  §  873. 
only  have  I  the  fact  of  my  arriving  at 


516 


THE  LAW  OP  COPYRIGHT  AND  PLATRIGHT. 


When  Temporary  Injunction  Granted.  —  The  question  of 
granting  a  temporary  injunction  is  aflfected  by  many  consid- 
erations. It  depends  chiefly  on  the  extent  of  the  doubt  as  to 
the  validity  of  the  copyright,  and  whether  it  has  been  infringed ; 
the  damage  that  will  be  sustained  by  the  plaintiff  if  the  injunc- 
tion is  withheld,  and  the  injury  that  will  be  done  to  the  defend- 
ant if  it  is  granted.  The  court  will  exercise  its  discretion  in 
following  that  course  which  appears  to  be  most  conducive  to 
justice  to  both  parties.^  Although  the  matter  may  not  be 
wholly  free  from  doubt,  yet  if  the  plaintiff  makes  out  a  prima 
facie  case,  and  the  court  is  reasonably  satisfied  that  a  piracy 
has  been  committed,  a  temporary  injunction  will  usually  be 
granted ;  especially  if  the  consequences  are  likely  to  be  more 
serious  to  the  plaintiff  if  the  injunction  is  withheld  than  they 
will  be  to  the  defendant  if  it  is  granted.^     When  the  complain- 


1  Referring  to  cases  wherein  the 
plaintiff's  right  was  doubtful,  Lord 
Cottenham  said :  "  But  even  in  the 
cases  so  referred  to  I  liave  always  held 
that  it  was  for  the  discretion  of  the 
court  to  consider  whether  the  defend- 
ant might  not  suffer  greater  injury 
from  an  improper  injunction  than  the 
plaintiff  from  the  delay  in  granting  a 
proper  one.  In  the  present  case  where 
privacy  is  the  right  invaded,  postpon- 
ing the  injunction  would  be  equivalent 
to  denying  it  altogether.  The  inter- 
position of  the  court  in  these  cases 
[unpublished  works]  does  not  depend 
upon  any  legal  right,  and  to  be  effect- 
ual it  must  be  immediate."  Prince 
Albert  v.  Strange,  1  Mao.  &  G.  46. 

2  Scott  V.  Stanford,  Law  Eep.  3  Eq. 
718 ;  Smith  v.  Chatto,  31  L.  T.  n.  s. 
775;  Little  v.  Gould,  2  Blatchf.  165; 
Banks  v.  McDivitt,  IB  Id.  163  ;  Shook 
V.  Rankin,  3  Cent.  Law  Jour.  210. 
"  No  doubt,"  said  Hall,  V.  C,  in  Smith 
v.  Chatto,  "  this  question  might  be  left 
to  be  decided  at  the  hearing,  but  I 
think  it  better  to  decide  it  at  once; 
particularly  considering  how  difficult 
it  would  otherwise  be  to  assess  the 
plaintiff's  damages,  if  he  should  ulti- 
mately prove  to  be  in  the  right.  But, 
in  granting  the  injunction  for  which 
the  plaintiff  asks,  I  do  not  lose  sight  of 


the  fact  that  compensation  may  have 
to  be  made  to  the  defendants,  if  at  the 
hearing  I  decide  in  their  favor.  The 
amount  of  such  compensation  can, 
however,  be  more  easily  fixed  than  if 
it  had  to  be  made  to  the  plaintiff;  and 
if  given  will  have  to  be  substantial.  .  . . 
The  plaintiff  must  undertake  to  abide 
by  such  damages,  if  any,  as  the  court 
may,  at  the  hearing,  think  fit  to 
award." 

What  Vice-Chancellor  Bruce  said 
in  Dickens  v.  Lee,  8  Jur.  185,  concern- 
ing the  course  to  be  pursued  with 
reference  to  continuing  the  injunction 
until  the  plaintiff  should  establish  liis 
legal  title,  is  equally  applicable  in  a 
case  of  doubt  wliether  a  temporary 
injunction  should  be  granted.  "Now, 
as  far  as  the  plaintiff  is  concerned, 
there  is  at  least,  —  perhaps  I  should 
put  it  the  other  way,  —  there  is  at  least 
a  fair  question  whether  the  plaintiff  is 
not  entitled  ;  my  impression  at  present 
being  that  he  is  entitled,  and  that  the 
probability  of  right  is  in  his  favor.  .  .  . 
I  am  satisfied  the  proper  course  in  this 
case  is  to  continue  the  injunction,  and 
for  this  reason,  among  others  (a  reason 
upon  which  the  court  acts  very  much, 
chiefly,  indeed,  with  regard  to  patent 
cases) :  viz.,  that  if  all  persons  are  to 
be  allowed  to  infringe,  without  injunc- 


REMEDIES   IN   EQUITY. 


517 


ant  makes  out  a  prima  facie  case,  "  and  the  injury  which  results 
is  not  easily  remedied  if  the  injunction  is  refused,  a  court  of 
equity  will  grant  an  injunction,  unless  the  bill  or  the  case  made 
out  by  the  bill  is  absolutely  refuted."  ^  "  Where  an  infringe- 
ment is  palpable,"  said  Mr.  Justice  Shipman,  "and  a  provi- 
sional injunction  will  not  be  attended  with  serious  injury,  it  is 
not  ordinarily  refused,  as  to  so  much  of  the  work  as  is  a  plain 
infringement  of  the  prior  publication."  ^ 

When  it  appears  that  piracy  materially  injurious  to  the  plain- 
tiff has  been  committed,  an  injunction  may  be  granted  against 
the  piratical  part  without  waiting  to  determine  the  full  extent 
of  the  infringement.^ 

When  Temporary  Injunction  not  Granted.  —  If  the  court  is  not 
reasonably  satisfied  that  the  plaintiff  has  a  valid  copyright,  or 
that  piracy  has  been  committed,  an  injunction  will  not  be 
granted  before  these  questions  have  been  determined.*     So, 


tion,  until  the  plaintiff  can  succeed  in 
an  action,  he  may  be  ruined,  and  the 
value  of  his  property  may  be  entirely 
gone.  For  these  reasons,  therefore,  I 
think  it  fit  to  continue  this  injunction, 
the  plaintiff  undertaking,  if  the  defend- 
ant shall  require  it,  to  bring  an  action, 
and  the  plaintiff  undertaking  to  abide 
by  any  order  the  court  may  make  with 
regard  to  damages  that  may  be  sus- 
tained by  the  defendant  in  case  the 
injunction  should  be  dissolved." 

'  Shook  V.  Rankin,  3  Cent.  Law 
Jour.  210. 

2  Banks  v.  McDivitt,  13  Blatchf.  170. 

'  Lewis  V.  Fullarton,  2  Beav.  6 ; 
Stevens  v.  Wildy,  19  L.  J.  n.  s.  (Ch.) 
190 ;  Kelly  v.  Morris,  Law  Rep.  1  Eq. 
697 ;  Farmer  v.  Calvert  Lithographing, 
Engraving,  &  Map-Publishing  Co.,  5 
Am.  L.  T.  R.  168. 

♦  Br.  Bramwell  v.  Halcomb,  8  My. 
&  Cr.  737;  M'Neill  v.  Williams,  11  Jur. 
344 ;  Jarrold  v.  Houlston,  3  Kay  &  J. 
708;  Morris  v.  Wright,  Law  Rep.  5  Ch. 
279.  Am.  Blunt!;.  Patten, 2 Paine,  397; 
Miller  v.  McElroy,  1  Am.  Law  Reg. 
198;  Jollie  v.  Jaques,  1  Blatchf.  618; 
Smith  V.  Johnson,  4  Id.  252 ;  Flint  v. 
Jones,  1  Weekly  Notes  of  Cases,  334. 
In  M'Neill  v.  Williams,  Vice-Chancellor 


Bruce  said :  "  The  court  has,  of  late 
years  especially,  given  great  weight  to 
the  consideration  of  the  question,  which 
of  the  two  parties  to  the  dispute  is 
more  likely  to  suffer  by  an  erroneous 
or  hasty  judgment  of  an  interlocutory 
nature  against  them ;  and  to  the  con- 
sideration also  of  tlie  very  possible,  if 
not  probable,  effect  which  an  injunc- 
tion may  have  to  the  defendant's  preju- 
dice in  an  action.  I  agree  that  there 
ought  to  be  none.  I  have  in  this  case 
to  weigh,  on  the  one  hand,  the  suspi- 
cious nature  of  the  defendant's  case, 
for  suspicious,  I  confess,  upon  the  pres- 
ent materials,  it  appears  to  me  to  be, 
and  the  probable  mischief  from  not 
interfering  at  present  in  his  favor,  if 
he  should  ultimately  prove  to  be  right ; 
and,  on  tlie  other  hand,  the  possibility 
—  the  rational  possibility  —  for  I  am 
unable  to  bring  myself  to  deny  the 
rational  possibility  —  that  the  plaintiff 
may  be  right.  I  have  also  to  consider 
the  mischief  generally  that  may  be 
done  by  interfering  in  this  stage  of  the 
cause  if  the  defendants  shall  ultimately 
appear  to  be  right ;  including  particu- 
larly the  possible  prejudice  which  may 
be  created  against  them  in  an  action 
by   the    existence    of    an    injunction. 


518  THE   LAW   OP   COPYRIGHT   AND   PLATRIGHT. 

where  the  plaintiff  has  been  guiltj  of  negligence  or  delay  in 
applying  for  an  injunction,  or  has  apparently  acquiesced  in  what 
the  defendant  has  done,  the  court  may  refuse  to  interfere, 
although  it  may  appear  on  the  final  hearing  that  the  plaintiff 
is  entitled  to  an  injunction.^ 

Ephemeral  Publications.  —  Before  the  rights  of  the  parties  are 
finally  determined,  the  court  may  refuse  to  grant  an  injunction 
which  will  cause  a  greater  mischief  than  it  is  intended  to  pre- 
vent. In  refusing  to  restrain  in  December  the  sale  of  an 
almanac  for  the  ensuing  year  in  a  case  where  the  rights  of  the 
parties  were  doubtful,  Lord  Chancellor  Cottenham  said :  "  But 
the  greatest  of  all  objections  is  that  the  court  runs  the  risk  of 
doing  the  greatest  injustice  in  case  its  opinion  upon  the  legal 
right  should  turn  out  to  be  erroneous.  Here  is  a  publication 
which,  if  not  issued  this  month,  will  lose  a  great  part  of  its  sale 
for  the  ensuing  year.  If  you  restrain  the  party  from  selling 
immediately,  you  probably  make  it  impossible  for  him  to  sell  at 
all.  You  take  property  out  of  his  pocket  and  give  it  to  nobody. 
In  such  a  case,  if  the  plaintiff  is  right,  the  court  has  some 
means,  at  least,  of  indemnifying  him,  by  making  the  defendant 
keep  an  account ;  whereas,  if  the  defendant  be  right,  and  he  be 
restrained,  it  is  utterly  impossible  to  give  him  compensation 
for  the  loss  he  will  have  sustained.     And  the  effect  of  the  order 

Upon  tlie  whole,  I  think  the  ends  of  ant  has  offered,  of  keeping  an  accoant. 
justice  in  tliis  case  will  be  better  an-  It  is  obvious  that  it  is  the  interest  of 
swered  by  abstaining  from  granting  both  parties  that  the  injunction  should 
the  injunction  at  present ;  the  defend-  be  dissolved  ;  for  if,  in  consequence  of 
ants  continuing  to  keep-  the  account,  piracy,  the  defendant  is,  in  fact,  selling 
which  tliey  have  already  undertaken  to  the  plaintiff's  work,  the  plaintiff  will 
continue,  and  giving  that  undertaking  have  the  profits  of  the  publication  ;  but 
which  the  defendant's  counsel  have  if,  on  the  contrary,  no  piracy  has  been 
consented  to  give  with  respect  to  dam-  committed,  a  very  great  hardship  is 
ages,  in  case  the  infringement  is  proved  inflicted  upon  the  defendant ;  and,  on 
and  the  plaintiff's  title  is  established,  that  supposition,  he  has  already  expe- 
and  facilitating  proceedings  at  law  in  rienced  a  severe  hardship,  because  the 
any  reasonable  way  the  plaintiff  in  injunction  has  prevented  the  sale  of 
equity  may  require."  his  book  during  the  season.  If  Mr. 
Lord  Chancellor  Cottenham  said :  Stuart  thinks  it  proper  to  press  for  the 
"  Where  any  doubt  exists  as  to  the  continuance  of  the  injunction,  I  must 
legal  right,  it  is  very  proper  to  be  tried,  look  through  the  passages  in  the  re- 
The  only  question  is  whether.  In  the  spective  books."  Bramwell  v.  Hal- 
mean  time,  the  injunction  is  to  be  con-  comb,  3  My.  &  Cr.  739. 
tinned,  or  whether  it  is  to  be  dissolved,  '  Johnson  v.  Wyatt,  2  De  G.  J.  &  S. 
on  the  undertaking,  which  the  defend-  18.    See  ante,  p.  506. 


REMEDIES    IN    EQUITY.  519 

in  that  event  will  be  to  commit  a  great  and  irremediable  injury. 
Unless,  therefore,  the  court  is  quite  clear  as  to  what  are  the 
legal  rights  of  the  parties,  it  is  much  the  safest  course  to 
abstain  from  exercising  its  jurisdiction  till  the  legal  right  has 
been  determined."  ^ 

But,  in  some  cases,  the  ephemeral  character  of  the  works  in 
controversy  may  afford  an  additional  reason  for  the  prompt 
interference  of  the  court,  especially  when  the  piratical  publica- 
tion is  sold  at  a  lower  price  than  the  original.  In  this  case,  it 
is  obvious  that  the  remedies  to  which  the  plaintiff  may  be  enti- 
tled will  be  practically  annulled  by  delay.  This  principle  was 
recognized  by  Lord  Eldon,  in  a  case  relating  to  an  East  India 
Calendar  or  Directory.  "  There  is  a  great  difference,"  he  said, 
*'  between  works  of  a  permanent  and  of  a  transitory  nature. 
The  case  upon  the  former  may  be  brought  to  a  hearing.  But 
the  effect  is  very  different  upon  a  work  of  this  kind,  perishable, 
particularly  in  this  instance  ;  consisting  of  the  names  of  persons 
continually  fluctuating  ;  a  work  that  would  be  good  for  nothing 
in  another  year.  ...  I  am  bound  under  these  circumstances  to 
continue  this  injunction  to  the  hearing ;  for  the  defendant  would 
merely  have  to  account  at  the  rate  of  2s.  6d.  for  each  book ; 
and,  if  his  publication  proceeds  at  that  reduced  price,  it  will 
be  impossible  for  the  plaintiffs,  obliged  by  the  expense  they 
have  been  at  to  charge  a  much  higher  price,  to  sell  another 
copy."  2 

Should  Injunction  be  Refused  because  Piratical  may  Easily 
be  Replaced  by  Innocent  Matter  ?  —  In  Cox  v.  The  Land  and 
Water  Journal  Company,  it  appeared  that  the  defendants  had 
published  in  their  newspaper  an  article  called  The  Hunting  Field 
of  1870,  which  had  been  copied  from  the  List  of  Hounds 
contained  in  the  plaintiff's  newspaper.  Vice-Chancellor  Malins 
refused  to  grant  an  interlocutory  injunction,  on  the  ground  that 
the  matter  in  controversy  was  of  a  nature  so  ephemeral  that 
to  be  valuable  it  must  be  revised  at  short  intervals ;  that  within 
a  very  short  time  the  defendants  could  obtain  from  the  original 
sources,  and  lawfully  publish  the  same  information  as  that 

•  Spottiswoode  v.  Clarke,  2  Phillips,  ^  Mattliewson  v.  Stockdale,  12  Ves. 
157.  See  Cox  v.  Land  &  Water  Journal  276.  See  also  Wilson  v.  Luke,  1  Vic- 
Co.,  Law  Rep.  9  Eq.  324.  torian  Law  Rep.  127. 


520  THE   LAW   OP   COPYRIGHT   AND   PLAYEIGHT. 

complained  of;  and  hence,  that  an  injunction  could  protect 
the  plaintiif  but  for  a  brief  period.^  And  so  in  Baily  v.  Tay- 
lor, although  other  defences  were  set  up,  Vice-Chancellor 
Leach  gave  some  weight  to  the  consideration  that  the  defend- 
ant, by  calculating  the  mathematical  tables  which  he  was 
charged  with  having  copied  from  the  plaintiff's  book,  could 
immediately  issue  a  new  publication,  substantially  the  same  as 
that  of  the  plaintiff,  without  infringing  the  latter's  rights.^ 

Although  granting  an  injunction  in  doubtful  cases  is  discre- 
tionary with  the  court,  the  reasons  set  forth  in  the  two  cases 
last  cited  for  refusing  aid  are  by  no  means  satisfactory.  Where 
a  material  piracy  is  proved,  the  plaintiff  is  entitled  to  protec- 
tion ;  and  it  is  no  defence  that  the  defendant  may  in  a  short 
time  replace  the  pirated  matter  with  similar  matter  which  is 
not  piratical.  He  cannot  avail  himself  of  the  plaintiff's  labor, 
and,  when  called  to  account,  successfully  plead  that  he  might 
himself  have  produced  what  he  is  charged  with  copying.  If  he 
chooses  to  pirate  matter,  instead  of  obtaining  it  by  his  own 
labor,  he  must  suffer  the  consequences  of  piracy.    If  the  above 

1  Law  Eep.  9  Eq.  324.  "  But  in  At  present  I  do  not  see  that  I  can  in- 
this  case,"  said  Malins,  V.  C,  "  as  in  terfere.  Whether  the  plaintiff  is  en- 
many  others,  the  question  arises,  is  titled  to  any  remedy  I  do  not  at  present 
it  a  case  for  the  interference  of  the  decide,  but  I  do  not  think  it  a  case  for 
Court  of  Chancery  at  all,  and  if  it  an  injunction,  though  the  defendants 
is  a  case  for  interference,  is  it  a  case  are  not  entitled  to  avail  themselves  of 
for  interference  on  an  interlocutory  the  plaintiff's  labors."  Ibid.  832. 
application?  Now  I  do  not  think  "  3  l_  j,  (c^.)  66.  " The  plaintiff's 
it  is  a  case  to  be  decided  on  an  in-  title  to  the  tables,"  said  the  Vice- 
terlocutory  application ;  and  my  rea-  Chancellor,  "  is  that  he  calculated 
son  is  this :  tliis  list  must  be  corrected  them ;  the  defendant,  by  calculating 
from  week  to  week ;  it  could  not  be  a  them  on  his  part,  acquires  the  same 
correct  list  from  the  1st  of  November  right.  By  granting  an  injunction 
until  April,  or  to  the  end  of  the  hunt-  where  the  title  is  of  sucli  a  nature,  the 
ing  season.  Changes  must  take  place;  court  would  interfere  to  grant  protee- 
the  list  of  masters, huntsmen,  and  whips  tion  for  twenty-four  hours  only  ;  for  in 
can  hardly  continue  to  be  correct  even  that  time  the  defendant  might  acquire 
for  a  week.  Now,  suppose  I  were  to  as  good  a  right  as  the  plaintiff.  Under 
grant  an  injunction,  how  can  it  be  such  circumstances,  therefore,  I  should 
acted  upon  ?  The  defendants  have  doubt  very  much  whether  a  court  of 
only  to  issue  a  fresh  circular,  make  equity  ought  to  interfere  to  protect  a 
an  urgent  appeal  for  answers,  or  send  title  founded  merely  on  a  personal 
a  person  by  rail  and  get  the  informa-  calculation,  which  any  other  individual 
tion  from  the  masters  of  the  hunts,  and  would  be  equally  competent  to  make." 
next  week  bring  out  a  very  correct  See  also  Baily  v.  Taylor,  1  Euss.  & 
list;  and  how  ara  I  to  know  the  way  My.  76. 
in  which  tliey  got  their  information  I 


REMEDIES  IN   EQUITY.  521 

defence  were  a  good  one,  the  protection  guaranteed  to  literary 
property  would  be  defeated  in  numerous  cases. 

Account  of  Profits  may  be  Ordered  -when  Injunction  Refused. 
—  When  the  court  refuses  to  grant  a  temporary  injunction, 
it  may  order  the  defendant  to  keep  an  account  of  sales  and 
profits  until  the  final  disposition  of  the  case.^ 

Permanent  Injunction. 

Injunction  Granted  when  Material  Piracy  Clear.  —  The  facts 
necessary  to  determine  the  question  of  piracy,  and  its  extent, 
having  been  ascertained  by  the  master  or  otherwise,  the  case 
will  be  brought  to  a  final  hearing  when  the  court  will  decide 
whether  the  plaintiff  is  entitled  to  a  permanent  injunction  and 
other  relief.  Where  the  plaintiff's  title  has  been  established, 
and  it  appears  that  a  whole  or  a  material  and  valuable  part  of 
the  defendant's  publication  is  piratical,  a  permanent  injunction 
is  usually  granted. 

Injunction  may  be  Refused  in  Doubtful  Case.  —  But  in  a 
doubtful  case  the  court  may  refuse  to  interfere  unless  it  is 
reasonably  satisfied  that  piracy  has  been  committed.^  In 
Murray  v.  Bogue,  Vice-Chancellor  Kindersley  said :  "  On  the 
whole,  my  conclusion  is,  that  I  cannot  say  that  the  defendant, 
in  his  work,  makes  an  unfair  use  of  the  plaintiff's.  I  am  not 
absolutely  satisfied  that  the  use  made  of  it  might  not  by  another 
judge  be  looked  at  in  a  different  light ;  but  I  cannot  satisfy  my 
mind  that  there  is  that  unfair  use  which  would  justify  me 
in  restraining  the  publication  of  the  defendant's  work.  The 
injunction  must  therefore  be  refused."  ^ 

Actual  Damage  Need  not  be  Proved.  —  When  a  material 
piracy  is  shown,  the  plaintiff  will  not  be  required  to  prove  act- 
ual damages.  "  Then  the  only  question,"  said  Vice-Chancellor 
Shadwell,  "  is  whether  there  has  been  such  a  damnum  as  will 
justify  the  party  in, applying  to  the  court;  because  injuria 
there  clearly  has  been.  What  has  been  done  is  against  the 
right  of  the  plaintiff.    Now,  in  my  opinion,  he  is  the  person 

1  See  post,  p.  533.  Brown,  6  W.  R.  852 ;  JoUie  v.  Jaques, 

2  Murray  v.  Bogue,  infra;  Spiers  v.    1  Blatchf.  618,  626. 

3  1  Drew.  353,  370. 


522  THE   LAW   OF   COPYRIGHT   AND   PLAYRIGHT. 

best  able  to  judge  of  that  himself ;  and,  if  the  court  does  clearly 
see  that  there  has  been  any  thing  done  which  tends  to  an  injury, 
I  cannot  but  think  that  the  safest  rule  is  to  follow  the  legal 
right  and  grant  the  injunction."^ 

Injunction  Granted  'when  Action  for  Penalties  cannot  be 
Maintained.  —  An  injunction  may  be  granted  against  the  pirat- 
ical publication  of  a  copyright  work,  although  the  plaintiff  may 
not  be  entitled  to  maintain  an  action  for  the  penalties  and  for- 
feitures imposed  by  the  statute.  A  strict  compliance  with  the 
statutory  provisions  is  essential  to  the  maintenance  of  such 
action.  Thus  a  seller  or  importer  is  made  liable  to  the  statu- 
tory penalties  only  when  he  knowingly  commits  piracy.  But 
ignorance  of  wrong  is  no  defence  in  a  suit  to  prevent  the  repe- 
tition of  the  wrong  by  stopping  the  piratical  publication.  So 
in  a  court  of  law  the  plaintiff  must  show  a  good  legal  title ; 
but  in  a  court  of  equity,  as  has  been  shown,  an  equitable  title 
is  sufficient.  The  principle  on  which  injunctions  are  granted 
when  an  action  for  the  penalties  cannot  be  maintained  is  the 
same  as  that  on  which  an  action  for  damages  may  be  brought 
under  the  statute,  although  the  defendant  may  not  be  liable  to 
the  penalties  and  forfeitures  imposed.^  "  Though  a  party," 
said  Vice-Chancellor  Wigram,  "  is  liable  to  be  restrained  by 
injunction  from  printing  a  work,  the  copyright  of  which  is  in 
another  person,  that  does  not  make  him  an  offender  within  the 
act,  unless  the  case  brings  him  within  the  precise  situation 
contemplated.  The  act  is  remedial  to  some  extent,  but,  so  far 
as  the  forfeiture  is  imposed,  it  would  be  construed  strictly."  ^ 

1  Campbell  u.   Scott,  11    Sim.  39.  Kelly  v.  Hooper,  4  Jur.  21 ;  Sweet  v. 

"It  appears  to  me  that  an  infringe-  Maugham,  11  Sim.  51,  53;   Morris  o. 

ment  has  taken  place  ;  and  that,  as  to  Ashbee  Law  Rep.  7  Eq.  41.    See  Chap, 

damage,  the  view  taken  by  Shadwell,  XVI.,  under  What  Amounts  to  Piracy, 

V.  C,  in  Campbell  v.  Scott,  is  correct,  where  is  given  the  opinion  of  Tindal, 

that  when  once  the  court  has  found  C.  J.,  in  Planch^  v.  Braham,  4  Bing. 

that   there   is    'injuria,'    the    plaintiff  N.   C.  19,  with   the  approval   of  Lord 

ought  to  be  allowed  to  judge  of  the  O'Hagan  in  Chatterton  v.  Cave,  3  App. 

'  damnum ; '  who  can  tell  to  what  extent  Cas.  408,  that  the  penalties  for  repre- 

she  may  be  prejudiced  by  the  best  por-  senting  a  drama  may  be  recovered  un- 

tions  of  her  work  being  printed  and  der  3   &   4  Will.  IV.   c.  15,  without 

sold  without  her  consent "!     It  would  showing  any  damage.     See  also  ante, 

be  very  diflEicult  for  any  jury  to  arrive  p.  478,  note  2. 

at  an  exact  conclusion  upon  that  sub-  ^  gee  ante,  p.  473. 

ject."    Wood,  V.  C,  Tinsley  v.  Lacy,  '  Colburn  v.  Simms,  2  Hare,  558. 

38  L.  J.  N.  s.  (Ch.)  589.    See  also  See  also  Abernethy  v.  Hutchinson,  1 


REMEDIES   IN   EQUITY.  523 

Injunctlou  against  any  'Wrong-doer.  —  An  injunction  against 
the  seller  will  not  be  refused  on  the  ground  that  the  plaintiff 
has  not  proceeded  against  the  publisher.^ 

Where  there  are  two  or  more  distinct  acts  of  infringement, 
without  privity  between  the  wrong-doers,  the  latter  cannot  be 
joined  as  defendants  in  one  suit.^ 

Injunction  may  be  Refused  when  Piracy  Slight.  —  When  only 
a  small  part  of  the  defendant's  publication  has  been  copied 
from  that  of  the  plaintiff,  the  piracy  may  be  so  slight  as  to 
create  a  doubt  whether  it  is  a  proper  case  for  the  interference 
of  a  court  of  equity.  The  matter  copied  may  be  so  inconsid- 
erable in  quantity  or  value ;  it  may  form  so  small  a  part  of  the 
publication  complained  of,  and  be  so  scattered  through  it ;  the 
piracy  may  cause  so  little  injury  to  the  plaintiff,  and  enjoining 
the  defendant's  publication  may  lead  to  consequences  so  seri- 
ous to  him, —  that  an  injunction  will  produce  a  mischief  far 
greater  than  that  sought  to  be  prevented.  In  such  case,  the 
court  may  leave  the  plaintiff  to  seek  his  remedy  at  law.^ 
"  The  piracy  proved,"  said  Lord  Cottenham,  "  may  be  so  in- 
considerable, and  so  little  likely  to  injure  the  plaintiff,  that  the 
court  may  decline  to  interfere  at  all,  and  may  leave  the  plain- 
tiff to  his  remedy  at  law."  *  And  so,  in  Mawman  v.  Tegg, 
Lord  Eldon  said :  "  But,  after  the  quantity  of  matter  which  has 

Hall  &  Tw.  28,  40.  In  a  case  under  27  without  the  license  or  consent  of  the 
Geo.  III.  c.  38,  relating  to  copyright  in  patentee ;  and  no  reason  is  perceived 
designs.  Lord  Chancellor  Lyndhurst  for  withholding  from  the  complainant 
said :  "  It  does  not  appear  to  me  that  the  common  remedies  for  the  injuries 
the  provisions  by  which  a  remedy  is  he  has  suffered  by  the  acts  of  the  re- 
given  by  the  act,  for  infringement  of  spondent,  merely  because  he  has  elected 
the  right,  takes  away  the  jurisdiction  to  seek  redress  in  this  district;  instead 
of  this  court.  That  jurisdiction  is  in  my  of  going  into  another  district  to  pursue 
opinion  founded  on  the  first  part  of  the  it  against  the  publishers."  Clifford,  J., 
clause,  which  gives  tlie  right  of  prop-  Ibid.  203. 
erty,  and  which  I  consider  to  be  a  2  DHiy  v,  Doig,  2  Ves.  486. 
substantive  and  independent  part  of  the  *  Br.  Baily  v.  Taylor,  3  L.J.  (Ch.) 
act."  Sheriff  v.  Coates,  1  Euss.  &  My.  66  ;  Mawman  v.  Tegg,  2  Kuss.  385 ; 
167.  Lewis  v.  Fullarton,  2  Beav.  6 ;  Bell  v. 
1  Greene  v.  Bishop,  1  Cliff.  186.  Whitehead,  3  Jur.  68 ;  Sweet  c.  Cater, 
"Vendors  are  liable  for  the  sale  of  a  11  Sim.  672,  580;  Campbell  v.  Scott, 
book  which  invades  the  copyright  of  Ibid.  31;  Bohn  u.  Bogue,  10  Jur.  420; 
another,  on  the  same  principle  and  for  Jarrold  v.  Heywood,  18  W.  R.  279. 
the  same  reasons  that  the  vendor  of  a  Am.  Webb  v.  Powers,  2  Woodb.  &  M. 
raacliine  or  other  mechanical  structure,  497 ;  Greene  v.  Bishop,  1  Cliff.  186. 
in  the  case  of  patent  rights,  is  held  lia-  *  Lewis  v.  Tullarton,  2  Beav.  11. 
ble  for  selling  the  manufactured  article 


524       THE  LAW  OP  COPYRIGHT  AND  PLAYRIGHT. 

been  copied  has  been  thus  ascertained,  the  quantity  of  mat  fe 
not  piratical  with  which  the  piratical  matter  has  been  inter- 
mixed is  still  a  circumstance  of  great  importance.  For,  though 
this  court  has  long  entertained  the  jurisdiction  of  protecting 
literary  property  by  injunction,  there  may  be  much  doubt 
whether  it  would  exercise  the  jurisdiction  where  only  a  few 
pirated  passages  occurred,  and  would  not  rather  in  such  a  case 
leave  the  complaining  party  to  his  action  at  law."  ^ 

No  general  rule  can  be  laid  down  for  determining  what 
course  should  be  followed  under  such  circumstances.  It  will 
depend  on  the  facts  in  each  case.  "  It  must  appear,"  said  Vice- 
Chancellor  Shadwell, "  where  a  complaint  is  made  to  this  court 
that  the  piracy  has  either  been  of  what  is  called  '  a  large  part ' 
or  of '  a  material  part.'  "  ^ 

The  value  of  the  matter  taken  will  often  be  a  more  important 
consideration  than  the  quantity.^ 

When  Consequences  to  Defendant  Considered.  —  When  the 
piracy  is  important,  and  the  consequent  injury  to  the  plaintiff 
material,  an  injunction  is  usually  granted,  notwithstanding  the 
serious  consequences  to  the  defendant ;  *  unless  perhaps  there 
is  a  marked  inequitable  disproportion  between  the  wrong  com- 
plained of  and  the  remedy  asked.  But,  where  the  objectionable 
matter  forms  but  a  small  part  of  the  defendant's  publication,  the 
court  will  compare  the  damage  done  to  the  plaintiff  with  that 

1  2  Bubs.  894.  "  Decided  cases  the  second  finding  of  the  master,  and 
have  been  cited  by  the  counsel  for  the  also  to  an  account."  Clifford,  J., 
respondent,  which  show  that,  when  the  Greene  v.  Bishop,  1  Cliffi  203. 
invasion  of  a  copyright  is  slight,  and  ^  Bohn  v.  Bogue,  10  Jur.  420. 
the  copying  consists  of  indefinite  or  '  Br.  Bramwell  v.  Halcomb,  3  My. 
small  parts,  so  scattered  through  the  &  Cr.  737;  Bell  v.  Whitehead,  3  Jur. 
work  that  it  is  difficult  or  nearly  impossi-  68 ;  Kelly  v.  Hooper,  4  Id.  21 ;  Camp- 
ble  to  estimate  either  the  amount  of  the  bell  v.  Scott,  11  Sim.  31;  Tinsley  v. 
injury  to  the  complainant,  or  the  profit  Lacy,  1  Hem.  &  M.  747,  752.  Am. 
to  the  respondent,  relief  in  equity  has  Gray  o.  Russell,  1  Story,  11,  20 ; 
sometimes  been  refused,  and  the  party  Story's  Executors  v.  Holcombe,  4  Mc- 
turned  over  to  his  remedy  at  law.  Lean,  806,  809 ;  Farmer  u.  Calvert 
Those  decisions  were  doubtless  correct  Lithographing,  Engraving,  &  Map- 
as  applied  to  the  facts  and  circumstances  Publishing  Co.,  6  Am.  L.  T.  R.  168, 
under  which  they  were  made ;  but  it  is  174.  See  ante,  p.  414. 
clear,  both  from  the  finding  of  the  mas-  *  Mawman  v.  Tegg,  2  Russ.  385  ; 
ter  and  all  the  evidence  on  which  it  is  Lewis  v.  EuUarton,  2  Beav.  6 ;  Stevens 
based,  that  no  such  difficulty  can  arise  v.  Wildy,  19  L.  J.  n.  s.  (Ch.)  190 ;  Law- 
in  this  case ;  and  consequently  I  hold  rence  v.  Dana,  2  Am.  L.  T.  R.  n.  s. 
that  the  complainant  is  entitled  to  an  402,  see  post,  pp.  529,  530. 
injunction,  to  be  limited  according  to 


REMEDIES   IN   EQUITY.  ,'\  525 

'r- 

which  the  defendant  will  sustain  if  the  injunction  is  granted 
and  will  hesitate  to  destroy  the  entire  work  in  order  to 
redress  a  very  slight  injury.^  The  court  must  sometimes 
"  incur  the  hazard  of  occasioning  finally  some  injurious  con- 
sequence to  one  party  or  the  other ;  "  ^  and  the  aim  will  be 
to  take  that  course  which  is  most  equitable  in  view  of  all  the 
circumstances.  "  It  appears  to  me,"  said  Lord  Langdale, 
"  that  an  injunction  ought  to  be  granted  whenever  it  appears 
by  sufficient  evidence  that  a  copyright  exists,  and  that  piracy 
has  been  committed  to  an  extent  which  is  likely  to  be  seriously 
prejudicial  to  the  plaintiff;  and  that  the  extent  of  the  injunc- 
tion must  depend  on  the  amount  of  the  proof  and  the  nature 
of  the  work."  * 

Illustrations  of  Material  Quantity  and  Value.  —  The  court  did 
not  hesitate  to  grant  an  injunction,  where  the  defendant's  pub- 
lication consisted  of  two  volumes  containing  eight  hundred  and 
sixty-six  pages,  of  which  three  hundred  and  nineteen  pages  of 
letters  had  been  copied  from  the  plaintiff's  work,  which  was  in 
twelve  volumes,  and  contained  six  thousand  seven  hundred  and 
sixty-three  pages  ;  *  or  where,  in  a  compilation  of  seven  hundred 
and  ninety  pages,  consisting  chiefly  of  selections  of  poetry,  six 
entire  poems  and  extracts  from  others,  the  whole  amounting 
to  eighteen  pages,  had  been  copied  from  The  Poetical  Works 
of  Thomas  Campbell.^  In  Kelly  v.  Hooper,  it  appeared  that 
from  the  plaintiff's  directory  of  eight  hundred  and  seventy 
pages,  only  three  and  a  half  pages  had  been  taken ;  but  these 
formed  a  large  part  of  the  defendant's  almanac,  and  consti- 
tuted its  chief  value.  An  injunction  had  been  obtained  ex 
parte,  and  was  continued.^  Where  the  defendant  had  published 
in  two  numbers  of  a  periodical  detached  extracts  amounting  to 
six  or  seven  pages,  from  a  farce  of  forty-two  pages,  an  injunc- 
tion was  granted  ;  but,  on  motion  to  make  it  perpetual,  it  was 
dissolved,  on  the  ground  that  the  quotations  had  been  made  for 
purposes  of  criticism.'''    In  Cobbett  v.  Woodward,  the  court 

1  Spottiswoode  v.  Clarke,  2  Phillips,  *  Folsom  v.  Marsh,  2  Story,  100. 
154 ;  M'Neill  v.  Willlaras,  11  Jur.  344;  ^  Campbell  v.  Scott,  11  Sim.  81. 
Pike  V.  Nicholas,  Law  Rep.  5  Oh.  251 ;         "4  Jur.  21. 

Webb  V.  Powers,  2  Woodb.  &  M.  497.  '  Whittingham  v.  Wooler,  2  Swans. 

2  Lord  Eldon,  Hogg  v.  Kirby,  8  Ves.  428.  See  also  Bell  v.  Whitehead,  3 
226.  Jur.  68. 

3  Lewis  V.  FuUarton,  2  Beav.  12. 


526         ^^IhE   LiW   OP   COPYRIGHT   AND   PLATRIGHT. 

said  that  the  plaintifiF  was  entitled  to  an  injunction,  if  he 
thought  it  worth  taking,  against  eight  lines  which  were  found 
to  be  piratical  in  the  defendant's  publication,  the  Illustrated 
Furnishing  Guide,  and  which  had  been  taken  from  the  plain- 
tiff's New  Furnishing  Guide.^  In  Mawman  v.  Tegg,  an  affidavit 
was  made  by  the  defence  that,  from  the  plaintiff's  work,  the 
Encyclopaedia  Metropolitana,  published  in  nine  parts,  and  con- 
taining upward  of  two  hundred  and  twenty-seven  thousand 
lines,  two  thousand  one  hundred  and  sixty  lines  had  been  used 
in  various  articles  in  the  London  Encyclopaedia,  Lord  Eldon 
appears  to  have  thought  that  it  was  a  proper  case  for  an 
injunction ;  but  referred  the  matter  to  a  master  to  report  as 
to  the  precise  extent  of  the  piracy,  and  to  point  out  the  parts 
copied.'^ 

In  Chappell  v.  Davidson,  where  the  chief  complaint  was  of 
the  unlawful  use  of  the  title  of  the  plaintiff's  song,  Vice- 
Chancellor  Wood  said :  "  I  do  not  think  it  is  necessary  to  lay 
stress  on  the  imitation  of  two  bars  of  the  music.  That  is  only 
a  question  of  copyright ;  and  certainly,  if  the  plaintiffs  intend 
to  insist  upon  it  as  copyright,  I  should  have  to  hear  them  in 
reply  upon  that,  and  to  put  them  to  an  action  on  terms,  before 
I  could  continue  the  injunction."  ^  In  Pike  v.  Nicholas,  on 
appeal,  the  court  having  found  that  the  defendant  had  copied 
from  the  plaintiff's  publication  one  passage  which  had  been 
quoted  from  another  author  by  the  plaintiff,  held  that  this, 
though  under  the  circumstances  it  might  be  piratical,  was  not 
sufficient  ground  for  an  injunction.*  In  Webb  v.  Powers,  where 
it  appeared  that  there  were  scattered  through  the  defendant's 
work  only  about  twenty  or  thirty  lines  of  the  seven  thousand 
contained  in  the  plaintiff's,  and  that  they  had  been  taken  with- 
out any  animus  furandi,  the  court  thought  that  whatever  dam- 
age the  plaintiff  had  sustained  could  be  more  propei-ly  remedied 
at  law,  and  that  it  would  be  inequitable  to  destroy  the  defend- 
ant's publication  in  order  to  redress  so  slight  a  wrong.^ 

1  Law  Rep.  14  Eq.  407.  with    the  preface  acknowledging  aid 

2  2  Busa.  386.  from  the  plaintiff's  work,  but  haying 
°  2  Kay  &  J.  129.  some  different  and  material  purposes 
*  Law  Eep.  5  Ch.  251.  to  accomplish,  and  not  being  a  material 
6  2  Woodb.  &  M.  497.  "  So  small    substitute  with  no  essential  changes." 

a  quantity,"  said  Woodbury,  J.,  "  indi-    Ibid.  620. 
Gates  rather  illustration,  and  comports 


REMEDIES   IN   EQUITY. 

In  Bell  V.  Whitehead,  it  appeared  that  the  defendan^ad 
published  in  the  Railway  Times,  a  weekly  publication,  about 
four  and  a  half  pages  copied  from  an  article  of  nineteen  pages 
in  the  Monthly  Chronicle.  Lord  Chancellor  Cottenhanav^is- 
solved  the  injunction,  which  had  been  granted,  chiefly  of/  the 
ground  that  the  extracts  had  been  made  for  the  purpose  of 
criticism.  But  he  said  :  "  Here  the  value  of  the  extract  is  very 
minute  and  trifling ;  and,  if  there  were  nothing  else  in  the  case, 
the  extreme  minuteness  of  value  in  the  extract,  and  of  injury 
sustained  by  the  plaintiff,  would  be  sufficient  to  induce  the  court 
not  to  interfere."  ^ 

A  court  of  equity  will  not  lend  its  aid  to  the  protection  of 
what  is  utterly  insignificant.  But,  generally,  where  the  value 
or  importance  of  the  plaintiff's  publication  appears  to  be  small, 
the  law  will  be  construed  with  much  liberality  in  his  favor.  If 
his  production  is  a  proper  subject  of  copyright,  although  it  may 
be  of  little  worth  or  consequence,  he  is  vested  with  a  right 
which  the  law  promises  to  protect.  ^ 

Form:  op  the  Injunction. 

Injuiiction  Granted  only  against  Piratical  Fart.  —  The  rule  is 
settled  in  English  and  American  chancery  practice  that,  where 
only  a  part  of  a  book  is  piratical,  the  remedy  will  not  be  ex- 
tended beyond  the  injury.  Hence,  although  the  court  may  be 
satisfied  that  piracy  has  been  committed,  a  permarient  injunc- 
tion is  not  usually  granted  until  the  extent  of  the  infringement 
has  been  ascertained,  and  then  only  the  objectionable  part  will 

1  8  L.  J.  N.  s.  (Ch.)  142 ;  s.  c.  3  Jur.  value.    But,  considering  this  as  a  gen- 

68.  eral  question,  and  as  one  affecting  the 

^  SherifE  v.  Coates,  1  Russ.  &  My.  manufacture,  the    subject   is    one    of 

159,  167 ;  Cobbett  v.  Woodward,  Law  great  value." 

Rep.  14  Eq.  407 ;  Folsora  v.  Marsh,  2  "  It  has  been  said,"  remarked  Lord 

Story,  109-112;    Woolsey  v.  Judd,  4  Abinger,  "  that  the  case  is  too  unim- 

Duer,  (N.  Y.)  379.    In  the  case  first  portant  to  be  so  dealt  with;  but  the 

cited.  Lord  Chancellor  Lyndhurst  said  ;  same  principles  must  be  acted  upon 

"  It  was  said  that  the  court  ought  not  whether  the  piracy  consists  merely  in 

to  interfere   on  account  of  the  small  the  adaptation  of  opera  music  to  qua- 

value  of  the  property  in  litigation.    It  drilles,  or  in  extracting  original  aire 

is  true  that,  as  to  the  particular  pieces  from  the  finest  operas  of  Rossini  or 

of  calico,  or  possibly  as  to  the  indi-  Mozart."    D'Alraaine  v.  Boosey,  1  Y. 

vidual  pattern,  it  may  not  be  of  much  &  C.  Exch.  802. 


628 


THE  LAW  OP  COPYRIGHT  AND  PLAYRIGHT. 


be  restrained.^  But,  when  an  important  and  distinct  part  of 
tlie  defendant's  work  is  clearly  piratical,  the  publication  of  that 
part  may  be  restrained  before  the  nature  of  the  rest  is  ascer- 
tained.2 

Again,  so  much  of  the  book  complained  of  may  be  found  to 
have  been  unlawfully  copied  that  an  injunction  against  the 
piratical  part  will  have  the  practical  effect  of  destroying  the 
whole.  In  such  case,  it  may  be  unnecessary  to  ascertain 
the  full  and  precise  extent  of  the  piracy .^  Thus,  in  Lewis  v. 
FuUarton,  Lord  Langdale,  having  satisfied  himself  that  a  large 
part  of  the  defendant's  work  was  piratical,  that  the  parts  which 
had  been  examined  and  compared  afforded  "  fair  indications  " 
of  the  character  of  the  rest,  and  that  if  what  was  known  to  be 
unlawful  were  taken  away  "  there  would  be  left  an  imperfect 
work,  which  could  not  to  any  useful  extent  serve  the  purposes 
of  a  gazetteer,"  granted  an  injunction  against  the  piratical 
parts  without  examining  the   others.*    In  a  case   somewhat 


1  Br.  Mawman  v.  Tegg,  2  Euss. 
385;  Lewis  u.  FuUarton,  2  Bear.  6; 
Jarrold  v.  Houlston,  3  Kay  &  J.  708  ; 
Kelly  V.  Morris,  Law  Kep.  1  Eq.  697  ; 
Scott  V.  Stanford,  3  Id.  718 ;  Morris  v. 
Ashbee,  7  Id.  34  ;  Pike  v.  Nicholas,  Law 
Kep.  5  Ch.  251 ;  Hogg  v.  Scott,  Law 
Rep.  18  Eq.  444;  Smith  v.  Chatto,  31 
L.  T.  N.  s.  776.  Am.  Folsom  v.  Marsh, 
2  Story,  100 ;  Story's  Executors  v, 
Holcombe,  4  McLean,  306 ;  Greene  v. 
Bishop,  1  Cliff.  186 ;  Daly  v.  Palmer, 
6  Blatchf.  256;  Lawrence  v.  Dana,  2 
Am.  L.  T.  R.  N.  s.  402. 

^  Kelly  V.  Morris,  supra. 

'  "  I  do  not  think,"  said  the  Vice- 
Chancellor  in  Stevens  v.  Wildy,  "  I  am 
bound  to  go  through  the  wliole  book ; 
but  I  apprehend  that  the  law  at  pres- 
ent is  in  conformity  with  the  old  Roman 
law,  which  is,  that,  if  the  defendant  will 
take  the  plaintiff's  corn  and  mix  it  with 
his  own,  the  whole  should  be  taken  to 
be  the  plaintiff's  ;  and,  after  the  defend- 
ants in  this  case  have  taken  so  much 
as  I  see  has  been  .taken,  I  think  the 
injunction  ought  to  be  granted."  19  L. 
J.  N.  s.  (Ch.)  190. 

*  Lewis  V.  FuUarton,  2  Beav.  6,  14. 


"It  appears  to  me,"  said  Lord  Lang- 
dale,  "  that  an  injunction  ought  to  be 
granted,  whenever  it  appears,  by  sufil- 
cient  evidence,  that  a  copyright  exists, 
and  that  piracy  has  been  committed  to 
an  extent  which  is  likely  to  be  seri- 
ously prejudicial  to  the  plaintiff ;  and 
that  the  extent  of  the  injunction  must 
depend  on  the  amount  of  proof  and  the 
nature  of  the  work.  The  plaintiffs  in 
the  present  case  ask  for  an  injunction, 
to  restrain  the  defendant  from  publish- 
ing the  whole  or  any  part  of  the  defend- 
ant's gazetteer.  As  it  appears  from  the 
evidence  that  there  are  parts  of  the 
defendant's  gazetteer  which  are  not 
borrowed  from  the  plaintiff's  work,  I 
cannot  grant  an  injunction  in  those 
terms;  and  it  becomes  a  question, 
whether  an  injunction  should  be 
granted  in  general  terms  against  such 
parts  as  have  been  pirated,  or  whether 
means  should  be  taken  to  ascertain 
what  particular  parts  have  been  pi- 
rated, in  order  that  the  publication  of 
those  particular  parts  may  be  re- 
strained. Now  it  appears  to  me,  not, 
it  must  be  admitted,  by  absolute  proof 
and  demonstration,  for  the  two  works 


EEMEDI^  IN   EQUITY. 


529 


similar,  Lord  Eldon,  before  granting  an  injunction,  referred 
the  matter  to  a  master  to  report  the  extent  of  the  infringe- 
ment.^ 

Entire  Work  may  be  Restrained  when  Piratical  Part  cannot  be 
Separated.  —  When  the  part  which  has  been  copied  from  the 
plaintiff's  work  can  be  separated  from  that  which  has  not  been 
so  copied,  an  injunction  will  be  granted  only  against  the  ob- 
jectionable part  or  parts.  But  if  the  original  and  the  piratical 
matter  are  so  mixed  in  the  publication  coniplained  of  that  they 
cannot  be  distinguished,  then  the  entire  work  may  be  re- 
strained on  the  principle  that  whoever  wrongfully  mixes  the 
matter  of  another  with  his  own  must  suffer  the  consequences.^ 


have  not  been  examined  in  every  part, 
but  upon  proof  and  demonstration  as  to 
part,  and  as  to  the  rest  by  strong 
inference  and  presumption,  arising 
from  the  proof  given  as  to  those  parts 
to  which  the  proof  applies,  and  from 
the  nature  of  the  work  and  the  circum- 
stances under  which  it  is  proved  to 
have  been  composed,  that  if  the  parts 
pirated  were  taken  away,  though  some 
articles  would  remain  in  their  entirety, 
yet  the  greater  number  would  be  left 
in  a  state  so  imperfect  and  incomplete, 
that  the  defendant's  work  would  lose 
its  distinctive  and  useful  character  as  a 
gazetteer. 

"  If  the  defendant  were  desirous  to 
avail  himself,  as  he  has  an  undoubted 
right  to  do,  of  any  original  matter  of 
his  own,  or  of  any  matter  which  he  has 
fairlj'  taken  from  other  sources,  he 
would,  I  think,  be  under  the  necessity 
of  recomposing  his  work,  for  the  pur- 
pose of  separating  that  which  appears 
to  me  to  have  been  improperly  taken 
from  the  plaintiff's  work.  Lord  Eldon 
says,  '  In  the  cases  which  have  come 
before  me,  my  language  has  been,  that 
there  must  be  an  injunction  against 
such  part  as  has  been  pirated,  but  in 
those  cases  the  part  of  the  work  which 
was  affected  with  the  character  of  pi- 
racy was  so  very  considerable,  that,  if  it 
were  taken  away,  there  would  have 
been  nothing  left  to  publish  except  a 
few  broken  sentences'  [Mawman  o. 
Tegg,  2  Kuss.  399];   and   it  was  be- 


cause the  evidence  before  him  did  not 
enable  him  to  approach  sufficiently  to 
that  result,  that  he  made  the  particular 
order  which  he  did  in  that  case. 

"But  in  this  case,  having  availed 
myself  of  the  evidence  which  has  been 
so  industriously  collected  during  the 
long  time  that  this  motion  was  pend- 
ing, and  having  read  with  great  care 
all  the  affidavits  laid  before  me,  and 
more  particularly  the  affidavits  of  Mr. 
Holliday  and  Mr.  Cunningham,  I  think 
that  I  have  reasons,  on  which  I  ought 
judicially  to  act;  for  considering  that 
the  parts  of  the  work  which  have  been 
examined  and  compared  afford  fair 
indications  of  the  nature  and  character 
of  those  parts  of  the  works  which 
have  not  yet  been  examined  and  coi5g- 
pared;  and  it  appearing  to  me,  under 
these  circumstances,  that,  if  the  parts 
affected  with  the  character  of  piracy 
were  taken  away,  there  would  be  left, 
I  cannot  say  nothing  but  a  few  broken 
sentences,  but  there  would  be  left  an 
imperfect  work,  which  could  not,  to  any 
useful  extent,  serve  the  purposes  of  a 
gazetteer,  I  think  that  I  ought  to  grant 
an  injunction,  to  restrain  the  publica- 
tion of  the  parts  which  are  pirated, 
without  waiting  till  all  the  parts  which 
have  been  pirated  can  be  distinctly 
specified."    Ibid.  12. 

1  Mawman  v.  Tegg,  2  Russ.  .385. 

2  Br.  Mawman  v.  Tegg,  supra; 
Lewis  V.  Fullarton,  2  Beav.  11 ;  Col- 
burn  V.  Simms,  2  Hare,  554;  Stevens 


34 


530       THE  LAW  OF  COPYRIGHT  AND  PLAYRIGHT. 

"  Suggestion  is  made,"  said  Mr.  Justice  Clifford,  "that  it  will 
be  impossible  to  separate  that  which  is  original  from  that  which 
is  borrowed,  and  to  some  extent  the  suggestion  may  be  of 
weight ;  but  the  court  is  of  the  opinion  that  the  difficulties  in 
that  behalf,  when  the  matters  pass  under  the  searching  exami- 
nation of  a  master,  will  be  much  less  than  is  apprehended  by 
the  parties.  Should  the  difficulty  in  any  instance  or  class 
prove  to  be  insurmountable,  then  the  rule  in  equity  is,  that,  if 
the  parts  which  have  been  copied  cannot  be  separated  from 
tliose  which  are  original  without  destroying  the  use  of  the 
original  matter,  he  who  made  the  improper  use  of  that  which 
did  not  belong  to  him  must  suffer  the  consequences  of  so  doing. 
If  a  second  writer  mixes  the  literary  matter  of  another,  which 
is  under  the  protection  of  a  copyright,  with  his  own,  without 
the  license  or  consent  of  the  proprietor,  he  must  nevertheless 
be  restrained  from  publishing  what  does  not  belong  to  him ; 
and  if  the  parts  of  the  work  cannot  be  separated,  so  that  the 
injunction  prevents  also  the  publication  of  his  own  literary 
production  so  mixed  with  that  of  another,  he  has  only  himself 
to  blame."  ^ 

Form  of  Injunction.  —  The  parts  of  the  publication  to  be 
restrained  may  be  specified  in  the  injunction.^  Or,  the  defend- 
ant may  be  enjoined  from  printing,  publishing,  selling,  or 
otherwise  disposing  of  any  copies  of  the  book  "  containing  any 

V.  Wildy,  19L.  J.  N.  8.  (Ch.)190.    Am.  bear  all  the  mischief  and  loss  which 

pmerson    v.    Davies,    3    Story,  796 ;  the  separation  may  occasion.     If  an 

Webb  V.  Powers,  2  Woodb.  &  M.  521 ;  individual  chooses  in  any  work  to  mix 

Lawrence  v.  Dana,  infia.  my  literary  matter  with  his  own,  he 

"  As    to    the    hard    consequences  must    be  restrained  from  publishing 

which  would  follow  from  granting  an  the  literary  matter  which  belongs  to 

injunction,  when  a  very  large  propor-  me;    and,   if  the  parts  of   the  work 

tion    of   tlie   work  is  unquestionably  cannot  be  separated,  and  if  by  that 

original,  I  can  only   say  that,  if  the  means  the  injunction,  which  restrained 

parts  which  have  been  copied  cannot  the  publication  of  my  literary  matter, 

be   separated    from    those  which  are  prevents  also  the  publication  of   his 

original,  without  destroying  the  use  own  literary  matter,  he  has  only  him- 

and  value  of  the  original  matter,  he  self  to  blame."    Lord  Eldon,  Mawman 

who  has  made  an  improper  use  of  that  v.  Tegg,  2  Russ.  390. 

which   did  not  belong  to  hira   must  ^  Lawrence  v.  Dana,  2  Am.  L.  T.  R. 

BuflFer  the  consequences  of  so  doing,  n.  8.  430. 

If  a  man  mixes  what  belongs  to  hira  '^  Kelly  v.  Morris,  Law  Rep.  1  Eq. 

with    what  belongs  to    me,  and    the  703 ;  Pike  v.  Nicholas,  Law  Rep.  6  Ch. 

mixture  be  forbidden  by  the  law,  he  260. 
must  again  separate  them,  and  he  must 


REMEDIES   IN    EQUITY.  531 

articles  or  article,  passages  or  passage  copied,  talcen  or  color 
ably  altered  from"  the  plaintiff's  booli  ;  ^  or  "  from  doing  any 
other  act  or  thing  in  invasion  of  the  plaintiff's  copyright  in  the 
said "  book.2  Or,  the  injunction  may  be  directed  specially 
against  the  piratical  parts,  and  generally  against  any  unlawful 
copying  from  the  plaintiff's  work.* 

In  Dickens  v.  Lee,  where  an  Injunction  had  been  granted 
enjoining  the  defendant  from  "  copying  or  imitating  the  whole 
or  any  part  of  the  plaintiff's  book,"  Vice-Chancellor  Kniglit 
Bruce  struck  out  "  or  imitating,"  saying  there  was  no  precedent 
for  such  words,  but  without  expressing  an  opinion  whether  an 
injunction  would  properly  go  to  that  length.* 

In  Daly  v.  Palmer,  the  defendant  was  enjoined  "  from  the 
public  performance  and  representation,  and  from  the  sale  for 
public  performance  or  representation  of  the  '  railroad  scene  '  in 
the  [defendant's]  play  of  After  Dark,  or  of  any  scene  in  sub- 
stance the  same  as  the  '  railroad  scene '  in  either  of  the  two 
plays  as  such  scene  is  herein  defined."  ^ 

Account  op  Profits. 

Besides  granting  an  injunction,  a  court  of  equity  will  take 
from  the  defendant  the  profits  he  has  made  by  the  publication 
or  sale  of  the  piratical  work  and  give  them  to  the  plaintiff.^ 
This,  however,  is  but  an  approximate  measure  of  the  damages 
which  the  plaintiff  has  sustained.    The  profits  realized  from 

1  Lewis  V.  Fullarton,  2  Beav.  14;  word  apparently  new  in   such  cases, 

Jarrold  v.  Houlston,  3  Kay  &  J.  723  ;  and  which  may  be  susceptible  of  an  er- 

Hogg  V.  Scott,  Law  Rep.  18  Eq.  458.  roneous  interpretation.     I  thinls,  there- 

^  Scott  V.  Stanford,  36  L.  J.  n.  s.  fore,  but  I  may  say  it  without  prejudice 

(Ch.)  732.     See  also  Hotten  v.  Arthur,  to  any  question  whatever,  without  in- 

1  Hem.  &  M.  610.  timating  any  opinion  of  what  it  may  be 

8  Jarrold  v.  Houlston,  Scott  v.  Stan-  lawful  or  unlawful  for  the  defendant, 

ford,  supra.  in  the  way  of  imitation  or  supposed 

*  8  Jur.   185.    "  I  am   struck,''  he  imitation,  to  do,  that  the  words  '  or 

said,  "  with  the  absence  of  any  prece-  imitating '  should  be  struck  out." 
dent  for  the  use  of  those  words  in  any         ^  6  Blatchf.  271. 
injunction  upon  a  case  merely  literary  ;         *  Mawman  v.   Tegg,  2  Russ.  385, 

and  as  I  am  of  opinion,  if  I  rightly  400 ;  Lewis  v.  Fullarton,  2  Beav.  6,  12 

understand  it,  that  what  is  apprehended  Colburn  «.  Simms,  2  Hare,  543,  560 

by  the  counsel  for  the  plaintiff  this  Kelly  u.  Hodge,  29  L.  T.  n.  s.  387 

court  would  restrain,  I  think  it  more  Pierpont  v.  Fowle,  2  Woodb.  &  M.  23 

prudent  and  safe  to  narrow  the  present  Stevens  v.  Gladding,  17  How.  447,  455. 
injunction,  rather  than  to  leave  in  it  a 


532 


THE   LAW   OF   COPYRIGHT   AND   PLAYBIGHT. 


the  sale  of  the  defendant's  publication  may  be  materially  less 
tlian  those  whicli  the  plaintiff  would  have  made,  had  there  been 
no  unlawful  interference  with  the  sale  of  his  work.^  On  the 
other  hand,  the  court  by  this  remedy  may  give  to  the  plaintiff 
a  sum  greater  than  the  amount  of  damages  he  has  sustained  ; 
for  the  sale  of  his  work  may  not  have  been  materially  dimin- 
ished by  even  ah  extensive  circulation  of  the  publication  com- 
plained of.^ 

Right  to  Account  Dependent  on  Right  to  Injunction.  —  The 
right  to  an  account  of  profits  is  dependent  on  the  right  to  an 
injunction.  "  This  court,"  said  Sir  John  Leach,  M.  R.,  "  has 
no  jurisdiction  to  give  to  a  plaintiff  a  remedy  for  an  alleged 
piracy,  unless  he  can  make  out  that  he  is  entitled  to  the  equi- 
table interposition  of  this  court  by  injunction ;  and,  in  such 
case,  the  court  will  also  give  him  an  account,  that  his  remedy 
here  may  be  complete.  If  this  court  do  not  interfere  by  in- 
junction, then  his  remedy,  as  in  the  case  of  any  other  injury  to 
his  property,  must  be  at  law."^ 


1  "  Though  keeping  an  account  of 
the  profits  may  prerent  the  defendant 
from  deriving  any  profit,  as  he  may 
ultimately  be  obliged  to  account  to  the 
plaintiff  for  all  his  gains,  yet,  if  the 
work  which  the  defendant  is  publishing 
in  the  mean  time,  really  affects  the  sale 
of  the  work  which  the  plaintiff  seeks 
to  protect,  the  consequence  is,  that  the 
rendering  the  profits  of  the  former 
work  to  the  complaining  party  may 
not  be  a  satisfaction  to  him  for  what 
he  might  have  been  enabled  to  have 
made  of  his  own  work,  if  it  had  been 
the  only  one  published  ;  for  he  would 
argue  that  the  profits  of  tlie  defendant 
as  compared  with  tlie  profits  which  he, 
the  plaintiff,  has  been  improperly  pre- 
vented from  making,  could  only  be  in 
the  proportion  of  eight  shillings,  the 
price  of  a  copy  of  tlie  one  book,  to  one 
guinea,  the  price  of  a  copy  of  the 
other."  Lord  Eldon,  Mawman  v.  Tegg, 
2  Buss.  400. 

2  "  It  is  true  that  the  court  does  not, 
by  an  account,  accurately  measure  the 
damage  sustained  by  the  proprietor  of 
an  expensive  work  from  the  invasion 


of  his  copyright  by  the  publication  of 
a  cheaper  book.  It  is  impossible  to 
know  how  many  copies  of  the  dearer 
book  are  excluded  from  sale  by  the 
interposition  of  the  cheaper  one.  The 
court,  by  the  account,  as  the  nearest 
approximation  which  it  can  make  to 
justice,  takes  from  the  wrong-doer  all 
the  profits  he  has  made  by  his  piracy 
and  gives  them  to  the  party  who  has 
been  wronged.  In  doing  this,  the  court 
may  often  give  the  injured  party  more, 
in  fact,  than  he  is  entitled  to ;  for  non 
constat  that  a  single  additional  copy  of 
the  more  expensive  book  would  have 
been  sold,  if  the  injury  by  the  sale  of  the 
cheaper  book  had  not  been  committed. 
The  court  of  equity,  however,  does  not 
give  any  thing  beyond  the  account." 
Wigram,  V.  C,  Colburn  v.  Simms,  2 
Hare,  560. 

8  Baily  v.  Taylor,  1  Euss.  &  My.  75. 
Quoted  and  approved  in  Smith  v.  Lon- 
don &  South-Western  Railway  Co.,  1 
Kay,  415.  See  2  Story's  Eq.  Jur. 
§  988;  also  Monk  u.  Harper,  3  Edw. 
Ch.  {N.  Y.)  109. 


REMEDIES   IN   EQUITY. 


633 


Account  may  be  Ordered  before  Injunction  Granted.  —  But 
where  the  court  has  been  in  doubt  as  to  the  plaintiff's  right, 
and  has  refused  to  grant  an  injunction  until  the  establishment 
of  that  right,  the  defendant  has  been  ordered  to  keep  an  account 
in  the  mean  time.^  On  the  same  principle,  where  a  temporary 
injunction  is  refused  in  consequence  of  doubt,  an  account  may 
be  ordered  to  be  kept  until  the  final  hearing,  when  it  will  be 
decided  whether  or  not  the  profits  shall  be  paid  the  plaintiff. 

Account  Ordered  when  not  Asked  for.  —  Where  an  account 
is  not  specifically  asked  for,  it  may  be  ordered  under  the  prayer 
for  general  relief.^ 

Past  Sales.  —  Profits  of  past  sales  may  be  ascertained  from 
affidavits  made  by  or  on  behalf  of  the  defendant ;  ^  or  a  refer- 
ence to  the  master  may  be  ordered  for  that  purpose.* 

It  has  been  held  by  the  Circuit  Court  of  the  United  States, 
that  the  owner  of  the  copyright  is  entitled  to  the  profits  arising 
from  the  sales  on  commission  of  piratical  copies.^ 


1  Wilkins  v.  Aikin,  17  Ves.  422; 
Mawman  v.  Tegg,  2  Kuss.  385;  Spot- 
tiswoode  v.  Clarke,  2  Phillips,  154 ; 
M'Neill  V.  Williams,  11  Jur.  344 ;  JoUie 
V.  Jaques,  1  Blatchf.  618. 

2  Stevens  u.  Gladding,  17  How.  447, 
455,  and  cases  there  cited. 

3  Pike  «.  Nicholas,  20  L.  T.  n.  s. 
909 ;  Kelly  v.  Hodge,  29  L.  T.  n.  b.  387. 

■»  Folsom  V.  Marsh,  2  Story,  100 ; 
Stevens  v.  Gladding,  infra. 

5  Stevens  v.  Gladding,  2  Curtis,  608. 
"  I  am  not  aware,"  said  Mr.  .Justice 
Curtis,  "that  this  question  has  ever 
been  made  in  a  copyright  or  patent 
case."  After  referring  to  cases  of 
partnership  in  which  a  court  of  equity 
had  ordered  profits  arising  from  sales 
on  commission  to  be  accounted  for,  he 
continued  :  "  The  jurisdiction  in  cases 
of  copy  right  rests  upon  a  similar  prin- 
ciple. If  the  proprietor  will  waive  his 
action  for  damages,  he  may  have  an 
account  of  profits,  upon  the  ground 
that  the  defendant  has,  by  dealing  with 
his  property,  made  gains  which  equita- 
bly belong  to  the  complainant.  And  I 
perceive  no  sound  reason  for  restrict- 
ing those  gains  to  the  difference  be- 
tween the  cost  and  the  sale  price  of  the 


map  or  book,  or  limiting  the  right  to 
an  account  to  those  persons  who  have 
sold  the  work  solely  on  their  oiivn 
account.  He  who  sells  on  commission 
does  in  truth  sell  on  his  own  account, 
so  far  as  he  is  entitled  to  a  percentage 
on  the  amount  of  the  sales.  What  he 
so  receives  is  the  gross  profit  coming 
to  him  from  the  proceeds  of  the  sales. 
And  what  he  so  receives  diminishes 
the  net  profit  of  the  one  who  employs 
him  to  sell.  Wlien  the  latter  is  called 
on  to  account,  he  has  an  allowance  for 
the  commissions  he  has  paid  ;  because 
those  sums,  though  part  of  the  gross 
profits  of  the  sales,  he  has  not  received. 
That  part  of  the  profits  of  the  sales 
being  in  the  hands  of  the  commission 
merchant,  the  consignor  is  not  account- 
aV)Ie  for  them.  But  why  should  not 
the  commission  merchant,  who  has 
them,  account  for  them  ?  He  was 
liable  to  an  action  for  damages  for 
selling.  That  right  is  waived.  I  think 
he  should  pay  over  to  the  proprietor, 
in  lieu  of  the  damages,  the  gain  he  has 
made  from  the  sales.  It  does  not  seem 
to  me  that  the  term  '  profits  '  neces- 
sarily, or  wlien  construed  in  reference 
to  the  subject-matter,  properly  has  so 


534  THE   LAW   OF   COPYRIGHT   AND   PLAYRIGHT. 


Discovery. 

The  court  may  require  the  defendant  to  disclose  the  number 
of  piratical  copies  which  he  has  printed,  imported,  or  sold,  the 
number  on  hand,  the  proceeds  of  sales,  &c.  But  the  defend- 
ant cannot  be  compelled  to  make  such  discovery  when  it  will 
subject  him  to  forfeitures  and  penalties,  unless  these  are  waived 
by  the  plaintiff.' 

In  a  recent  English  case,  it  was  held  that  the  plaintiff  is 
entitled  to  a  discovery  of  the  sources  from  which  the  defend- 
ant's book  has  been  compiled.^  In  the  United  States,  courts  of 
equity  have  no  jurisdiction  of  the  penalties  arid  forfeitures  im- 
posed by  the  copyright  laws.  They  must  be  recovered  in  a 
court  of  law. 3 

By  the  21  &  22  Vict.  c.  27,  s.  2,  passed  in  1868,  English  courts 
of  chancery  were  empowered  to  assess  and  award  damages, 
either  in  lieu  of,  or  in  addition  to,  an  injunction  ;*  and  they 
have  this  jurisdiction  under  the  new  judicial  system.  Before 
the  statute  of  1858,  the  court  had,  in  one  case,  refused  to  give 
the  plaintiff  more  than  the  net  profits  of  the  defendant's  pub- 
lication.^   But  in  Mawman  v.  Tegg,  Lord  Eldon  could  not  see 

restricted  a  meaning   as    to    exclude  equity  might  compel  the  defendants  to 

commissions  received  from  the  proceeds  deliver  up  to  the  plaintiffs  the  forfeited 

of  sales  of  the  property  of  the  com-  copies.    But  the  bill  is  clearly  faulty  in 

plainant "  directly  requiring   the  defendants    to 

i  Atwill  u.  Ferrett,  2  Blatchf.  39,  convict  themselves  of  the  act  vphich 

44  ;  Farmer  v.  Calvert  Lithographing,  carries  with  it  the  forfeiture  sued  for." 

Engraving,  &   Map-Publishing   Co.,  5  Betts,  J.,  Atwill  v.  Ferrett,  supra. 
Am.  L.T.R.  165, 170;  2  Story's Eq.Jur.         ^  Kelly  v.  Wyman,  17  W.  R.  399. 

§§  1319,  1494,  1509.     "It  is  an  incon-  "If  I  charge  you,"  said  James,  V.  C, 

trovertihle  principle  of  equity  law,  that  "  with  having  taken  information  from 

a  defendant  cannot  be  compelled  to  my  book  and  you  derived  your  in- 

make  disclosures  in  answer  to  a  bill  formation    from    original    sources,   I 

wliich  seeks  to  enforce  penalties  and  have  a  right  to  know  what  those  origi- 

forfeitures  against  him  by  means  of  nal  sources  were."    See  also  Tipping  u. 

SUCH  discoveries.  In  this  case,  the  bill  Clarke,  2  Hare,  383. 
claims  a  forfeiture  under  section  7  '  See  post,  p.  548. 
of    tlie    act    of  Feb.   3,   1831,   of  the         *  Tinsley  v.  Lacy,  1   Hem.  &  M. 

plates  and  pieces  of  music  on  hand.  747 ;  Johnson  v.  Wyatt,  2  De  G.  J.  & 

Had  the  forfeiture  been  waived  by  the  S.  18 ;   Pike  v.  Nicholas,  Law  Rep.  5 

plaintiff,  the  defendants  might  be  com-  Oh.  260 ;  Cox  v.  Land  &  Water  Journal 

pelled  to  disclose  the  number  of  their  Co.,  Law  Rep.  9  Eq.  324 ;    Smith  u. 

publications,  the  quantity  on  liand,  and  Cliatto,  31  L.  T.  N.  s.  775. 
the  amount  realized  from  sales,  in  aid         ^  Delf  v.  Delaraotte,  3  Kay   &  J. 

of  the  recovery  of  damages  in  a  suit  at  581 ;  s.  c.  3  Jur.  n.  s.  933. 
law.     So  probably  on  such  discovery 


REMEDIES   IN   EQUITY.  535 

why  a  court  of  equity,  though  he  had  never  known  it  to  be 
done,  might  not  ascertain,  and  award  to  the  plaintiff,  the  full 
amount  of  damages  which  he  had  sustained.^ 

Rule  of  Damages.  —  In  Pike  v.  Nicholas,  Vice-Chancellor 
James  laid  down  the  following  rule  for  estimating  the  damages 
in  cases  of  piracy :  "  The  defendant  is  to  account  for  every 
copy  of  his  book  sold,  as  if  it  had  been  a  copy  of  the  plaintiff's, 
and  to  pay  the  plaintiff  the  profit  which  he  would  have  received 
from  the  sale  of  so  many  additional  copies."  ^ 

Injunctions  on  other  Grounds  than  Infringement  op 
Copyright. 

Courts  of  equity  have  frequently  interfered  to  protect  the 
owner's  rights  in  a  literary  work  on  other  grounds  than  that  of 
violation  of  the  copyright,  and  have  granted  injunctions  against 
publications  which  were  not  piratical. 

Injunctions  Protecting  Titles.  —  There  can  be  no  copyright  in 
a  mere  title ;  ^  but,  on  general  principles  of  equity,  an  injunc- 
tion will  be  granted  restraining  a  person  from  appropriating 
the  title  of  a  well-known  publication  for  a  rival  work.  Nor 
will  a  person  be  allowed  to  use  a  title  which  is  a  mere  color- 
able imitation  of  another,  for  the  purpose  of  misleading  the 
public  into  buying  one  publication  in  the  belief  that  it  is  the 
other.*     But,  when  the  exact  title  is  not  copied,  an  injunction 

1  Mawman  v.  Tegg,  2  Russ.  400.  '  Br.  Hogg  </.  Kirby,  8  Ves.  215 ; 
"  If  the  principle  upon  wliiuh  tlie  court  Constable  v.  Brewster,  3  Sc.  Sess.  Cas. 
acts,"  said  the  Lord  Chancellor,  "is  214;  Chappell  v.  Sheard,  2  Kay  &  J. 
that  satisfaction  is  to  be  made  to  the  117;  Chappell  v.  Davidson,  (in  eq.) 
plaintiff,  I  cannot  see,  though  I  never  Ibid.  123;  Chappell  v.  Davidson  (in 
knew  it  done,  why,  if  a  party  succeeds  law)  18  C.  B.  194 ;  Prowett  t/.  Morti- 
at  law  in  proving  the  piracy,  the  court  mer,  2  Jur.  N.  s.  414 ;  Ingram  v.  Stiff, 
should  not  give  him  leave  to  go  on  to  5  Id.  947;  Clement  v.  Maddick,  1  GitF. 
ascertain,  if  he  can,  his  damages  at  law;  98  ;  Bradbury  v.  Dickens,  27  Beav.  53 ; 
or  if,  after  applying  the  profits  which  Kelly  v.  Button,  Law  Rep.  3  Ch.  703; 
are  handed  over  to  him  by  the  defend-  Mack  v.  Fetter  Law  Rep.,  14  Eq.  431 ; 
ants,  he  can  show  that  they  were  not  a  Ward  v.  Beeton,  19  Id.  207 ;  Metzler  v. 
satisfaction  for  the  injury  done  to  him.  Wood,  8  Ch.  D.  606  ;  Am.  Jollie  v. 
I  cannot  see  why  the  court  might  not  Jaques,  1  Blatchf.  618,  627  ;  Miitsell  v. 
in  such  a  case  direct  an  issue  to  try  Flanigan,  2  Abb.  Pr.  N.  s.  (N.  Y.)  459; 
what  further  damnification  the  plaintiff  Osgood  w.  Allen,  1  Holmes,  185;  Benn 
had  sustained."  v.   LeClercq,   18    Int.   Rev.   Bee.  94 ; 

2  Law  Rep.  5  Ch.  260.  Harte  o.  DeWitt,  1  Cent.  Law  Jour. 
8  See  anU,  p.  145.  360. 


536 


THE   LAW  OP   COPYRIGHT   AND   PLAYRIGHT. 


will  not  be  granted,  unless  the  title  and  appearance  of  the 
defendant's  publication  are  designed  to  deceive  persons  who 
are  ordinarily  intelligent  and  careful.  Where  there  was  a  well- 
known  comic  paper  named  Punch,  and  another  called  Judy, 
and  the  defendant  issued  a  publication  with  the  title  Punch  and 
Judy,  the  court  held  that  the  defendant  would  not  be  at  liberty 
to  use  Punch  or  Judy  singly  as  a  title,  but  refused  to  restrain 
the  use  of  a  title  made  up  of  the  two  words,  for  the  reason 
that  it  was  not  such  as  to  deceive  persons  of  ordinary  intelli- 
gence.^ Where  the  plaintiff  had  simply  advertised  the  future 
publication  of  a  magazine,  to  be  called  Belgravia,  the  court 
refused  to  restrain  the  defendant  from  using  the  same  title.^ 


'  Bradbury  v.  Beeton,  18  W.  R.  33. 
"  Tlie  defendants,"  said  Vice-Chan- 
eellor  Malins,  "  clearly  have  no  right 
to  use  a  name  which  is  calculated  to 
mislead  or  deceive  the  public  in  pur- 
chasing ;  a,nd  if  I  thought,  on  the  whole, 
that  their  journal  was  calculated  to 
mislead  persons  of  ordinary  intelligence 
(for  these  are  the  persons  I  must  con- 
sider), I  should  grant  the  injunction. 
Now  Punch  is  well  known  both  in  name 
and  appearance,  and  its  price  is  three 
pence.  Could  any  one  be  misled  into 
buying  this  other  paper  instead,  which 
has  the  words  Punch  and  Judy  printed 
on  it  in  distinct  letters,  with  a  different 
frontispiece,  and  its  price  a  penny  1  I 
am  clearly  of  opinion  that  the  mass  of 
mankind  would  not  be  so  misled." 
See  also  Spottiswoode  v.  Clarke,  2 
Phillips,  154 ;  Snowden  v.  Noah,  Hop- 
kins Oh.  (N.  Y.)  396;  Bell  ■/.  Locke, 
8  Paige  (N.  Y.),  75 ;  Isaacs  u.  Daly,  7 
Jones  &  Sp.  (39  N.  Y.  Superior  Ct.)  511. 

2  Maxwell  v.  Hogg,  Law  Rep.  2  Ch. 
307.  "  That  expenditure  upon  a  work 
not  given  to  the  world,"  said  Lord 
Justice  Turner,  "  can  create,  as  against 
the  world,  an  exclusive  right  to  carry 
on  a  work  of  this  nature,  seems  to 
me  a  proposition  quite  incapable 
of  being  maintained.  It  never,  so 
far  as  I  am  aware,  has  been  thought 
that  any  such  equity  exis^ts.  Then,  if 
the  expenditure  alone  will  not  confer 
such  a  right,  will  the  advertisements 
do  so  1      Such    an    advertisement    is 


nothing  more  than  an  announcement 
of  an  intention  on  the  part  of  the  plain- 
tiff to  publish  in  the  month  of  October 
following  a  work  under  a  given  title. 
Can  that  be  considered  as  constituting 
in  him  an  equitable  title,  or  any  title, 
to  the  name  under  which  that  work  is 
to  be  published  f  If  it  is  to  be  consid- 
ered as  doing  so,  the  consequence  will 
be  that,  without  having  made  any  new 
publication  at  all,  he  might  come  to 
this  court  saying  :  '  I  have  advertised 
my  intention  to  publish  in  October  a 
given  work  under  a  given  title,  and 
nobody  else  shall  publish  a  work  under 
that  title  until  I  have  had  an  opportu- 
nity of  bringing  my  work  before  the 
public'  He  does  not  by  his  advertise- 
ments come  under  any  obligation  to 
the  public  to  publish  the  work,  and 
therefore  the  effect  of  holding  the  ad- 
tisements  to  give  him  a  title,  would  be 
that,  without  having  given  any  under- 
taking or  done  any  thing  in  favor  of 
the  public,  he  would  be  acquiring  a 
right  against  every  member  of  the 
public  to  prevent  their  doing  that 
which  he  himself  is  under  no  obligation 
to  do,  and  may  never  do. 

"...  It  has  been  argued  that  there 
is  no  distinction  between  the  case  of  a 
title  acquired,  as  the  plaintiff  asserts 
that  this  title  is  acquired,  by  advertise- 
ment, and  a  title  acquired  by  actual 
publication,  and  that  if  there  had  been 
a  publication  of  this  work  by  the  plain- 
tiff under  the  title  of  Belgravia,  there 


REMEDIES   IN   EQUITY.  537 

Breach  of  Trust.  — In  Abernethy  V.  Hutchinson,  wherein  the 
plaintiff  sought  to  prevent  the  publication  in  the  Lancet  of 
medical  lectures  which  he  had  delivered  to  students  in  St.  Bar- 
tholomew's Hospital  in  London,  Lord  Bldon,  without  deter- 
mining the  doubtful  question  of  the  plaintiff's  property  in 
lectures  which  had  not  been  reduced  to  writing,  granted  the 
injunction,  on  the  ground  of  breach  of  an  implied  contract  or 
trust  existing  between  the  lecturer  and  his  hearers.  "  If  there 
is  either  an  implied  contract  on  the  part  of  the  student,  or  a 
trust,"  he  said,  "  and  if  you  can  make  out  that  the  student  has 
published,  I  should  not  hesitate  to  grant  the  injunction.  With 
respect  to  the  stranger,  if  this  court  is  not  to  be  told  (and  cer- 
tainly it  has  no  right  to  compel  the  parties  to  tell)  whether  the 
power  of  giving  the  oral  lectures  to  the  public  was  derived 
from  a  student  or  not,  I  think  it  very  difficult  to  tell  me  that 
that  should  not  be  restrained  which  is  stolen,  if  you  would 
restrain  that  which  is  a  breach  of  contract  or  of  trust."  "  Al- 
though there  was  not  sufficient  to  establish  an  implied  contract 
as  between  the  plaintiff  and  the  defendants,  yet  it  must  be 
decided  that,  as  the  lectures  must  have  been  procured  in  an 
undue  manner  from  those  who  were  under  a  contract  not  to 
publish  for  profit,  there  was  sufficient  to  authorize  the  court  to 
say  the  defendants  shall  not  publish."  ^ 

would  have  been  an  undoubted  case  firm   which  had   existed  before,  and 

for  coming  to  this  court  to  restrain  which  name  might  be  of  the  greatest 

another  person  from  using  that  same  value,  and  then  come  into  this  court  to 

title.     It  seems  to  me,  however,  that  restrain  any  other  person  from  using 

there  is  a  great  distinction  between  the  that  name."    Ibid.  311,  812.     See  also 

case  of  advertisement  followed  by  pub-  Correspondent  Newspaper  Co.  v.  Saun- 

lication  and  a  case  resting  upon  adver-  ders,  12  L.  T.  n.  s.  540 ;  Benn  u.  Le 

tisement  only.    In  the  case  of  advei^  Clercq,  18  Int.  Kev.  Eec.  94. 
tisement  followed  by  publication,  the         l  1  Hall  &  Tw.  37,  40.    Lord  Eldon 

party  publishing  has  given  something  "  had  no  doubt  whatever  that  an  action 

to  the  world,  and  there  is  some  consid-  would  lie  against  a  pupil  who  published 

eration  for   the  world's  giving  him  a  these  lectures.     How   the   gentlemen 

right;  but  in  the  case  of  mere  adver-  who  had    published    them    came   by 

tisement  he    has  neither    given,  nor  them,  he  did  not  know ;  but  whether 

come  under  any  obligation  to    give,  an  action  could  be  maintained  against 

any  thing  to  the  world  ;  so  that  there  them  or  not,  on  the  footing  of  implied 

is  a  total  want  of  consideration  for  the  contract,    an    injunction    undoubtedly 

right   which  he   claims.     If  this  bill  might  be  granted ;   because  if  there 

were  to  be  maintained,  I  am  not  sure  had  been  a  breach  of  contract  on  the 

that  a  man  might  not  advertise  his  in-  part  of  the  pupil  who  heard  these  lec- 

tention  to  carry  on  business  after  a  tures,  and  if  the  pupil  could  not  publish 

particular  day  under  the  name  of  a  for  profit,  to  do  so  would  certainly  be 


538 


THE  LAW  OP  COPYRIGHT  AND  PLAYRIGHT. 


The  same  doctrine  was  recognized  in  Prince  Albert  v. 
Strange,^  where  the  complaint  was  of  an  unlawful  use  of  un- 
published etchings,  which  had  been  obtained  by  surreptitious 
means,  to  which  the  defendant,  Strange,  was  not  privy.  The 
court  had  no  doubt  that  the  plaintiff  was  entitled  to  an  in- 
junction, on  the  ground  of  a  violation  of  property ;  "  but," 
said  Lord  Cottenham,  "  this  case  by  no  means  depends  solely 
upon  the  question  of  property,  for  a  breach  of  trust,  con- 
fidence, or  contract  would  of  itself  entitle  the  plaintiff  to  an 
injunction."  ^  And  so,  in  Keene  v.  Wheatley,  the  Circuit  Court 
of  the  United  States  held  it  to  be  a  good  ground  for  an  injunc- 
tion, that  the  defendant  had  represented  the  plaintiff's  man- 
uscript play,  through  a  breach  of  trust  on  the  part  of  an  actor 


what  this  court  would  call  a  fraud  in 
a  third  party.  If  these  lectures  had 
not  been  taken  from  a  pupil,  at  least 
the  defendants  had  obtained  the  means 
of  publishing  them,  and  had  become 
acquainted  with  the  matter  of  the  lec- 
tures in  such  a  manner  that  this  court 
would  not  allow  of  a  publication.  It 
by  no  means  followed  because  an  ac- 
tion could  not  be  maintained  that  an 
injunction  ought  not  to  be  granted." 
See  al?o  Newton  v.  Cowie,  4  Bing.  245 ; 
Murray  v.  Heath,  1  Barn.  &  Ad.  804 ; 
Turner  v.  Robinson,  10  Jr.  Ch.  121, 
510 ;  Bartlett  v.  Crittenden,  4  McLean, 
300,  5  Id.  32. 

'  2  De  G.  &  Sm.  652,  on  ap.  1  Mac. 
&  G.  25. 

2  1  Mac.  &  G.  44.  "  Upon  the  evi- 
dence on  behalf  of  the  plaintiff,"  con- 
tinued the  Lord  Chancellor,  "  and  in 
the  absence  of  any  explanation  on  the 
part  of  the  defendant,  I  am  bound  to 
assume  that  the  possession  of  the  etch- 
ings by  the  defendant  or  Judge  has  its 
foundation  in  a  breach  of  trust,  confi- 
dence, or  contract,  as  Lord  Eldon  did 
in  the  case  of  Mr.  Abernethy's  lectures, 
and  upon  this  ground  also  I  think  the 
plaintiff's  title  to  the  injunction  sought 
to  be  discharged  fully  established. 
The  observations  of  Vice-Chancellor 
Wigram  in  Tipping  v.  Clarke,  2  Hare, 
393,  are  applicable  to  this  part  of  the 
case.  He  says  :  '  Every  clerk  employed 
in  a  merchant's  counting  house  is  un- 


der an  implied  contract  that  he  will 
not  make  public  that  which  he  learns 
in  the  execution  of  his  duty  as  clerk. 
If  the  defendant  has  obtained  copies  of 
books,  it  would  very  probably  be  by 
means  of  some  clerk  or  agent  of  the 
plaintiff;  and,  if  he  availed  himself 
surreptitiously  of  the  information 
which  he  could  not  have  had  except 
from  a  person  guilty  of  a  breach  of 
contract  in  communicating  it,  I  think 
he  could  not  be  permitted  to  avail 
himself  of  that  breach  of  contract.' 
In  this  opinion  I  fully  concur,  and 
think  that  the  case  supposed  by  Sir 
J.  Wigram  has  actually  arisen,  or 
must  from  the  evidence  be  assumed  to 
have  arisen  in  the  present,  and  that 
the  consequence  must  be  what  Sir  J. 
Wigram  thought  would  follow.  Could 
it  be  contended  that  the  clerk,  though 
not  justified  in  communicating  copies 
of  the  accounts,  might  yet  be  permitted 
to  publish  the  substance  and  effect  of 
them  t  In  that,  as  in  this  case,  the 
matter  or  thing  of  which  the  party  has 
obtained  knowledge,  being  the  exclu- 
sive property  of  the  owner,  he  has  a 
right  to  the  interposition  of  this  court 
to  prevent  any  use  being  made  of  it, 
that  is  to  say,  he  is  entitled  to  be  pro- 
tected in  the  exclusive  use  and  enjoy- 
ment of  that  which  is  exclusively  his. 
This  was  the  opinion  of  Lord  Eldon 
expressed  in  the  case  of  Wyatt  v.  Wil- 
son in  1820,  respecting  an  engraving  of 


EEMEDIES   IN   EQUITY.  539 

employed  by  the  plaintiff.^  So  equity  will  restrain  the  pub- 
lication of  manuscripts  obtained  surreptitiously.^ 

False  Representations  as  to  Authorship.  —  In  Seeley  V.  Fisher, 
the  plaintiff  was  the  publisher  of  the  fifth  edition  of  Scott's 
Commentary  on  the  Bible,  which  contained  the  latest  correc- 
tions and  additions  made  by  the  author  before  his  death,  and 
not  to  be  found  in  any  preceding  edition.  The  copyright  had 
expired  in  the  fourth  edition,  which  was  republished  by  the 
defendant,  and  announced  "  as  a  new  and  carefully  revised 
edition  of  the  work,  and  as  intended  to  contain  the  whole  un- 
adulterated labors  of  the  author,  not  as  re-edited  by  a  different 
hand  and  an  inferior  mind,  but  precisely  as  the  learned  com- 
mentator bequeathed  them  to  the  world ;  the  edition  being 
printed  from  the  last  which  the  author  published  in  the  vigor 
of  his  life."  The  Vice-Chancellor  granted  an  injunction  re- 
straining the  defendant  from  publishing  his  work  with  such 
notice,  or  from  otherwise  advertising  it  in  such  manner  as  to 
lead  the  public  to  believe  that  it  contained  the  revised  matter 
which  was  to  be  found  only  in  the  plaintiff's  edition.  Lord 
Chancellor  Cottenham  dissolved  the  injunction,  on  the  ground 
that  the  defendant's  statements  did  not  amount  to  a  represen- 
tation that  his  publication  contained  matter  which  was  the 
exclusive  property  of  the  plaintiff;  and,  although  the  defendant 
had  represented  "  that  any  additional  or  other  matter  which 
was  contained  in  any  edition  subsequent  to  the  fourth  was 
spurious,  and  of  no  value,  that  allegation,  if  untrue,  was  no 
subject  for  an  injunction,  although  it  might  be  the  subject  of 
an  action,  as  being  a  libel  on  or  disparagement  of  plaintiff's 
edition."  ^ 

In  Byron  v.  Johnston,  an  injunction  was  granted,  restraining 
the  publication  of  certain  poems  falsely  represented  to  be 
productions  of  Lord  Byron.*     In  Hogg  v.  Kirby,  Lord  Eldon 

George  the  Third  during  his  illness,  in  Eeene  v.  Kimball,  16  Gray  (82  Mass.), 

which,  according  to  a  note  with  which  551,    552 ;    Keene   v,  Clarke,   5   Rob. 

I  have  been  favored  by  Mr.  Cooper,  (N.  Y.)  38,  61. 

he  said  :   '  If  one  of  the  late  king's  ^  Tipping  v.  Clarke,  2  Hare,  883. 

physicians  had  kept  a  diary  of  what  '  11  Sim.  581.     See  also  Archbold  w. 

he  heard  and  saw,  this  court  would  not,  Sweet,  5  Car.  &  P.  219,  considered,  ante, 

in  the  king's  lifetime,  have  permitted  p.  377. 

liira  to  print  and  publish  it.'     The  case  *  2  Meriv.  29;    see  also  Wright  v. 

of  Sir  J.  Strange's  Manuscripts,  is  ap-  Tallis,  1   C.  B.   893,  considered  ante, 

plicable,  upon  this  point  also."    Ibid.  45.  p.  197 ;  Harte  v.  DeWitt,  1  Cent.  Law 

1  9  Am.  Law  Reg.  33,  101.    See  also  Jour.  860. 


540       THE  LAW  OP  COPYEIGHT  AND  PLATBIGHT. 

restrained  the  publication  of  a  periodical  falsely  represented 
to  be  a  continuation  of  that  of  the  plaintiff.^ 

External  Likeness  of  Publications. — An  injunction  may  be 
granted  to  restrain  the  publication  of  a  book  whose  external 
appearance  is  made  to  resemble  that  of  a  copyrighted  work, 
for  the  purpose  of  misleading  the  public  to  believe  that  the 
former  is  the  same  as  the  latter.^ 

Libellous,  Immoral,  and  Blasphemous  Publications.  —  In  the 
absence  of  fraud  or  misrepresentation,  a  court  of  equity  will 
not  restrain  the  publication  of  a  literary  composition  on  the 
ground  that  it  is  injurious  to  the  reputation,  or  hurtful  to  the 
feelings,  of  the  person  seeking  relief;^  nor,  as  a  general  rule, 
on  the  ground  that  it  is  libellous ;  *  nor  on  the  ground  that  it 
is  blasphemous,  immoral,  or  mischievous.^  In  refusing  to 
grant  an  injunction  against  the  unauthorized  publication  of 
Southey's  poem,  Wat  Tyler,  Lord  Eldon  said :  "  It  is  very  true 
that  in  some  cases  it  may  operate  so  as  to  multiply  copies  of 
mischievous  publications,  by  the  refusal  of  the  court  to  inter- 
fere by  restraining  them  ;  but  to  this  my  answer  is,  that,  sitting 
here  as  a  judge  upon  a  mere  question  of  property,  I  have  noth- 
ing to  do  with  the  nature  of  the  property  nor  the  conduct  of 
the  parties,  except  as  it  relates  to  their  civil  interests ;  and,  if 

1  8  Ves.  215.  This  judgment  was  affirmed  on  appeal. 

^  Spottiswoode  v.  Clarke,  2  Phillips,  Ibid.  610. 

154 ;  Chappell  v.  Davidson,  2  Kay  &  J.  s  Southey  v.  Sherwood,  2  Meriy.  435. 

123;  Mack  v.  Better,  Law  Rep.  14  Eq.  *  Hime  v.  Dale,  2  Camp.  27  note  b. 

431 ;  Metzler  v.  Wood,  8  Ch.  D.  606  ;  Southey  v.  Sherwood,  supra ;  Seeley  v. 

Talcott  w.  Moore,  1  N.  Y.  Weekly  Dig.  Fisher,  11  Sim.  581 ;  Clark  v.  Freeman, 

485.      "The  defendants,"  said    Lord  11  Beav.  112;  Brandreth  v.  Lance,  8 

Eomilly,  M.   R.,  in  Mack  v.  Fetter,  Paige,  (N.  Y.)  24.    In  Gee  b.  Pritchard. 

"  must  be  restrained  from  the  publica-  2  Swanst.  413,  Lord  Eldon  said :  "  The 

tion  of  this  work,  and  they  are  not  en-  publication  of  the  libel  is  a  crime,  and 

titled  to  publish  a  work  with  such  a  I  have  no  jurisdiction  to  prevent  the 

title,  or  in  such  a  form  as  to  binding  or  commission  of   crimes ;    excepting  of 

general  appearance  as  to  be  a  colorable  course  such  cases  as  belong    to  the 

imitation  of  that  of  the  plaintiff."    In  protection  of  infants." 

Metzler  u.  Wood,  Malins,  V.  C,  en-  *  Wolcott  v.   Walker,    7    Ves.    1 ; 

joined  "  the  defendant  from  publishing,  Southey  v.  Sherwood,  2  Meriv.  435 ; 

selling,  or  offering  for  sale  the  defend-  Murray  «.  Benbow,  6  Petersd.   Abr. 

ant's  work  in  or  with  its  present  form,  558  ;    Lawrence    v.   Smith,   Jac.  471 ; 

title-page,  and  cover ;  or  any  other  form,  Martinetti  a.  Maguire,  1  Deady ,  2 16  ; 

title-page,  or  cover,  calculated  to  de-  Shook  u.  Daly,  49  How.  Pr.  (N.  Y.)  368. 

ceive  persons  into  the  belief  that  it  is  See    Lord    Campbell's     criticism     on 

the  plaintiff's  work."    8  Ch.  D.  609.  Lord    Eldon's  course,  in   Wolcott  v. 

Walker,  ante,  p.  183,  note  1. 


REMEDIES   IN   EQUITY.  541 

the  publication  be  mischievous,  either  on  the  part  of  the  author 
or  of  the  bookseller,  it  is  not  my  business  to  interfere  with 
it."  1 

Specific  Performance  of  Agreements.  —  An  examination  of  the 
principles  which  govern  courts  of  equity  in  cases  relating  to 
the  specific  performance  of  contracts,  properly  belongs  to  a 
treatise  on  equity  jurisprudence.  No  further  consideration  of 
the  subject  will  be  here  attempted  than  a  reference  to  some 
adjudicated  cases  relating  to  literary  contracts. 

The  publication  of  a  work  which  is  not  piratical  may  be  re- 
strained on  the  ground  of  a  violation  of  a  covenant.  Where 
an  author  has  sold  his  copyright  to  a  publisher,  and  has  agreed 
not  to  prepare  another  work  on  the  same  subject,  or  not  to  do 
any  thing  prejudicial  to  the  sale  of  the  book  which  he  has 
parted  with,  a  court  of  equity  will  enjoin  him  or  any  other 
person  from  publishing  a  book  in  violation  of  the  covenant.^ 
And  in  Colburn  v.  Simms  the  law  was  laid  down  to  the  effect 
that  a  third  person  without  notice  may  be  restrained  from  pub- 
lishing in  violation  of  a  covenant  made  by  the  author.  "  There 
is  no  question,"  said  Vice-Chancellor  Wigram  in  that  case, 
"  but  that  a  court  of  equity  will  protect  a  publisher  from  a 
violation  of  his  contract,  and  will  interpose  to  restrain  a  party 
from  committing  any  act  amounting  to  such  violation,  even  if 
that  party  had  no  previous  notice."  ^ 

Where  an  author  had  sold  to  a  publisher  the  copyright  of  a 
treatise  on  criminal  law,  and  had  agreed  not  to  write  or  edit 
any  other  work  on  that  subject,  and  was  afterward  advertised 
as  about  to  edit  Burn's  Justice,  a  motion  was  made  to  restrain 
him  from  editing  the  articles  relating  to  criminal  law  in  that 
work.  Lord  Chancellor  Brougham,  in  refusing  to  grant  an 
injunction,  said  that  "  the  defendant  was  at  liberty  to  write  in 
his  closet  what  he  pleased ;  and  that  the  court  would  not  in- 
terfere until  there  was  a  violation  of  the  alleged  undertaking 
by  actual  printing  and  publication."  *    But  in  Ward  v.  Beeton 

1  Southey  U.Sherwood, 2 Meriv. 439.         ^  2  Hare,  543,  558.     See  also  Bar- 

2  Morris  v.  Colman,  18  Ves.  437  ;    field  v.  Nicholson,  supra. 

Barfleld  v.  Nicholson,  2  Sim.  &  St.  1 ;         *  Brooke  v.  Chitty,  2  Coop.  {temp. 
Brooke  v.   Chitty,  infra;    Colburn  o.     Cottenham)   216.      See    also    Stiff  v. 
Simms,  2  Hare,  543 ;  Ward  v.  Beeton,     Cassell,  2  Jur.  n.  b.  348. 
Law  Rep.  19  Eq.  207 ;  Warne  v.  Eout- 
ledge,  18  Id.  497. 


542  THE   LAW   OP   COPTHIGHT   AND   PLATEIGHT. 

the  defendant  was  restrained  from  advertisings  the  intended 
issue  of  a  rival  publication,  in  violation  of  his  agreement  with 
tlie  plain  tiff.i 

There  was  formerly  some  doubt  whether  a  court  of  equity 
would  interfere  to  prevent  the  violation  of  a  negative  covenant 
in  a  contract,  if  it  could  not  compel  a  specific  performance  of 
the  agreement  affirmatively.^  But  injunctions  are  now  granted 
to  prevent  a  person  from  doing  what  he  has  agreed  not  to  do, 
although  the  court  may  have  no  power  to  compel  him  to  do 
what  he  has  agreed  to  do.  Thus,  an  actor  will  be  restrained 
from  performing  at  a  theatre  in  violation  of  a  covenant  which 
he  has  made.^  And  the  same  principle  has  been  recognized 
in  the  case  of  agreements  between  authors  and  publishers.* 
Where  the  plaintiffs  had  bought  Beeton's  Christmas  Annual, 
with  the  exclusive  right  of  using  the  defendant's  name,  and 
the  latter  had  agreed  to  devote  himself  to  the  business  of  the 
plaiiftiffs,  and  not  to  engage  in  any  other  enterprise,  he  was 
enjoined  from  issuing  or  advertising  an  intended  rival  pub- 
lication.^ 

In  Clarke  v.  Price,  where  it  appeared  that  the  defendant 
Price,  while  under  an  agreement  to  prepare  reports  of  cases  for 
the  plaintiffs,  supplied  like  reports  to  other  publishers.  Lord 
Eldon  held  that  he  could  neither  compel  Price  specifically  to 
perform  his  agreement  with  the  plaintiffs,  nor  enjoin  him  or 
the  co-defendant  publishers  from  publishing  the  reports  com- 
plained of.®     But  this   decision  was  doubtless  based  on  the 

1  Law  Rep.  19  Eq.  207.  compel  Mr.  Price  to  write  reports  for 

^  Kerable  v.  Kean,  6  Sim.  3.S3 ;  Kim-  the  plaintiffs.    I  cannot,  as  in  the  other 

berley  w.  Jennings,  Ibid.  340;   Clarlse  case  [Morris  v.  Colman,  18  Ves.  487], 

V.  Price,  2  Wils.  C.  C.  157  ;  Baldwin  v.  say  that  I  will  induce  him  to  write  for 

Society  for  Diffusion  of  Useful  Knowl-  the  plaintiffs,  by  preventing  him  from 

edge,  9  Sim.  393;  Lumley  c  Wagner,  writing  for  any  other  person,  for  that 

infra.  is  not  the  nature  of  the  agreement. 

8  Lumley  v.  Wagner,  5  De  G.  M.  &  The  only  means  of  enforcing  the  exe- 

G.  604 ;  Montague  v.  Flockton,  Law  cution  of  this  agreement  would  be  to 

Eep.  16    Eq.  189 ;   Daly  v.  Smith,  6  make  an  order  compelling  Mr.  Price  to 

Jones  &  Sp.  (38  N.  Y.  Superior  Ct.),  write  reports  for  the  plaintiffs ;  which 

158.  1  have  not  the  means  of  doing.     If 

*  Ward  V,  Beeton,  Law  Rep.  19  Eq.  there   be    any  remedy  in  this    case, 

207  ;  Warne  v.  Routledge,  18  Id.  497.  it    is   at  law.     If   I    cannot   compel 

6  Ward  V.  Beeton,  supra.  Mr.  Price  to  remain  in  the  Court  of 

8  2  Wils.  C.  C.  157.     "  I  have  no  Exchequer  for  the  purpose  of  taking 

jurisdiction,"  said    Lord    Eldon,   "  to  notes,  I  can  do  nothing.    I  cannot  in- 


REMEDIES   IN   EQUITY. 


543 


ground  that  Price  had  not  covenanted  to  prepare  reports  ex- 
clusively for  the  plaintiffs.^  In  Montague  v.  Plockton,  the 
defendant  was  enjoined  from  acting  in  another  theatre  than 
that  of  the  plaintiff,  in  violation  of  an  implied  covenant  in 
his  agreement  with  the  plaintiff.^  There  appears  to  be  no 
reason  why  literary  contracts  should  not  be  governed  by  the 
same  principle,  or  why  a  court  of  equity  should  not  interfere 
to  prevent  the  violation  of  a  negative  covenant  which  is  not 
express,  but  is  clearly  implied  and  understood  by  the  parties.^ 


directly,  and  for  the  purpose  of  com- 
pelling him  to  perform  the  agreement, 
compel  him  to  do  something  which  is 
merely  incidental  to  the  agreement. 
It  is  also  quite  clear  that  there  is  no 
mutuality  in  this  contract."    Ibid.  164. 

It  was  not  specified  how  long  the 
agreement  should  last,  but  the  plaintiffs 
were  to  be  "  at  liberty  to  relinquish  the 
undertaking  should  they  think  it  ad- 
visable." 

^  Referring  to  this  decision  of  Lord 
Eldon,  Lord  St.  Leonards  said :  "  The 
whole  of  his  judgment  shows  that  he 
proceeded  (and  soit  has  been  considered 
In  later  cases )  on  the  ground  that  there 
was  no  negative  covenant  on  the  part 
of  the  defendant  that  he  would  not 


compose  reports  for  any  other  person." 
Lumley  v.  Wagner,  1  De  G.  M.  &  G. 
622. 

2  Law  Eep.  16  Eq.  189.  See  also 
Webster  v.  Dillon,  3  Jur.  n.  b.  432; 
Fechter  v.  Montgomery,  33  Beav.  22. 

'  See  also,  concerning  the  specific 
performance  of  contracts  relating  to 
copyrighted  works,  Pulte  v.  Derby,  5 
McLean,  828, 334 ;  Crookes  v.  Fetter,  3 
L.  T.  N.  8.  225 ;  Strahan  v.  Graham, 
17  Id.  467;  Warne  «.  Routledge,  Law 
Eep.  18  Eq.  499 ;  opinion  of  McLean, 
J.,  ante,  p.  362,  note  1 ;  also.  Sweet 
V.  Cater,  Stevens  v.  Benning  and  Keade 
V.  Bentley  considered,  ante,  pp.  343, 
345,  351. 


544  THE  LAW   OP   COPYRIGHT  AND   PLAYRIGHT. 


CHAPTER  Xn. 
JURISDICTION  OF  THE  UNITED  STATES  COURTS. 

Prior  to  1870,  the  several  copyright  statutes  of  the  United 
States  provided  simply  that  actions  for  piracy  should  be  brought 
in  any  court  having  competent  jurisdiction.  They  were  silent 
as  to  suits  in  equity,  except  that  section  9  of  the  act  of  1831 
authorized  courts  of  the  United  States  having  cognizance  of 
copyright  cases  to  grant  injunctions  restraining  the  unlawful 
publication  of  manuscripts.^  The  act  of  1856  provided  that 
an  action  for  damages  against  any  person  representing  a 
copyrighted  dramatic  composition  without  authority  should  be 
brought  "  in  any  court  of  the  United  States."  ^  Until  1870, 
the  circuit  courts  of  the  United  States  had  cognizance  of  copy- 
right cases,  irrespective  of  the  citizenship  of  the  parties  or  the 
amount  in  dispute,  by  authority  of  the  act  of  1819,  which  gave 
to  these  tribunals  original  jurisdiction,  as  well  in  equity  as  at 
law,  of  all  actions  and  suits  arising  under  the  copyright  laws, 
and  empowered  them  to  grant  injunctions  to  prevent  the  viola- 
tion of  copyright.^  The  act  of  1861  provided  for  an  appeal  in 
copyright  cases  to  the  Supi'eme  Court  of  the  United  States 
without  restriction  as  to  the  amount  in  controversy.* 

The  entire  subject  of  jurisdiction  is  now  governed  by  the 
Revised  Statutes.  Section  629  ^  gives  to  the  Circuit  Courts  of 
the  United  States  original  jurisdiction  of  all  suits  at  law  or  in 
equity  arising  under  the  copyright  law,  without  regard  to  the 
citizenship  of  the  parties  or  the  amount  in  dispute.  Section 
4970  provides  that  "  the  circuit  courts,  and  district  courts 
having  the  jurisdiction  of  circuit  courts,  shall  have  power,  upon 

1  4  U.  S.  St.  at  L.  438.  district  courts  liaving  the  jurisdiction 

-  11  Id.  138.  of  circuit  courts  by  section  106  of  the 

8  3  Id.  481.     Similar  jurisdiction  act  of  July  8, 1870 ;  16  Id.  215. 
was  given  to    the  circuit  courts  and         *  12  Id.  130.  ^  01.  9. 


JURISDICTION   OF   THE   UNITED   STATES   COURTS.  545 

bill  in  equity,  filed  by  any  party  aggrieved,  to  grant  injunctions 
to  prevent  the  violations  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." 

Three  distinct  rights  are  secured  and  protected  by  the  copy- 
right law.  1.  Copyright,  or  the  exclusive  right  of  publishing 
and  selling  a  printed  work.^  2.  Playright,  or  the  sole  liberty 
of  representing  a  published  dramatic  composition.^  3.  A  right 
of  action  against  any  person  who  publishes  a  manuscript  without 
authority.^  For  the  violation  of  copyright  or  playright,  or  for 
the  unlawful  publication  of  a  manuscript,  an  action  at  law  for 
damages,  or  for  the  penalties  or  forfeitures  in  the  cases  wherein 
they  are  prescribed,  or  a  suit  for  an  injunction  or  other  equitable 
relief,  may  be  brought  in  the  Circuit  Court  of  the  United  States, 
or  a  district  court  having  the  jurisdiction  of  a  circuit  court, 
although  the  parties  are  citizens  of  the  same  State,  and  although 
the  amount  in  controversy  is  less  than  foOO.  And  an  appeal 
may  be  made  to  the  Supreme  Court  of  tlie  United  States  with- 
out regard  to  the  sum  in  dispute.*  Any  action  or  suit  for  the 
violation  of  a  right  secured  by  the  statute  can  be  brought  only 
in  a  federal  court.  All  cases  founded  on  any  common-law 
riglit  must  be  sued  in  a  State  court ;  unless  the  matter  in  dis- 
pute, exclusive  of  costs,  exceeds  $500,  and  an  alien  is  a  party, 
of  the  suit  is  between  a  citizen  of  the  State  where  it  is  brought 
and  a  citizen  of  another  State,  in  which  case  the  circuit  courts 
have  jurisdiction.^ 

1  U.  S.  Rev.  St.  8S.  4962,  4964,  4965.  straining  the  unauthorized  publication! 

2  ss.  4952,  4966.  of  manuscripts.     See  Folsom  v.  Marsh, 

3  B.  4967.  2  Story,  113 ;  Bartlett  i;.  Crittenden,  4 
*  V.  S.  Rev.  St.  B.  699,  el.  1.  McLean,  300,  5  Id.  32 ;  Woolsey  i>. 
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  &  0  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.<hed,  any  engraving  or  print  of  any  description  what- 
ever, either  in  whole  or  in  part,  which  may  have  been  or  which 
shall  hereafter  be  published  in  any  part  of  Great  Britaiu  or 
Ireland,  without  the  express  consent  of  the  proprietor  or  pro- 
prietors 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  shall  and  may, 
by  and  in  a  separate  action  upon  the  case,  to  be  brought  against 
the  person  so  offending  in  any  court  of  law  in  Great  Britain 
or  Ireland,  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.^ 


5  &  6  Vict.  c.  45. 
An  Act  to  amend  the  Law  of  Copyright. 
[8  Rev.  Stat.  1152.]  [1st  July  1842.] 

Wheeeas  it  is  expedient  to  amend  the  law  relating  to  copy- 
right, and  to  afford  greater  encouragement  to  the  production 
of  literary  works  of  lasting  benefit  to  the  world  :  .  .  . 

II.  And  be  it  enacted,  that  in  the  construction  of  this  Act  interpretation  of 

Act. 

the  word  "  book "  shall  be  construed  to  mean  and  include  every  " Book." 
volume,  part  or  division  of  a  volume,  pamphlet,  sheet  of  letter- 
press, sheet  of  music,  map,  chart,  or  plan  separately  published  ; 

.         .         ..     ,     ,1  ,  1         1    ,  "Dramatic 

that  the  words  "  dramatic  piece     shall  be  construed  to  mean  piece." 
1  Double  costs  taken  away  by  5  &  6  Vict.  o.  97,  s.  2. 


662 


THE   LAW   OP   COPYRIGHT    AND    PLAYRI6HT. 


'  Copyright." 


"  Personal  rep- 
resentative." 


"  British  domin- 
ions." 


Endurance  of 
term  of  copy- 
right In  any 
book  hereafter 
to  be  published 
in  the  lifetime 
of  the  author ; 


or  after  the 
author's  death. 


In  cases  of  sub- 
sisting copy- 
right, the  term 


and  include  every  tragedy,  comedy,  play,  opera,  farce,  or  other 
scenic,  musical,  or  dramatic  entertainment ;  that  the  word 
"copyright"  shall  be  construed  to  mean  the  sole  and  exclu- 
sive liberty  of  printing  or  otherwise  multiplying  copies  of  any 
subject  to  which  the  said  word  is  herein  applied ;  that  the 
words  "  personal  representative  "  shall  be  construed  to  mean 
and  include  every  executor,  administrator,  and  next  of  kin 
entitled  to  administration  ;  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  otherwise ;  that  the  words  "  British  domin- 
ions" shall  be  construed  to  mean  and  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 ;  and  that  when- 
ever in  this  Act,  in  describing  any  person,  matter,  or  thing, 
the  word  importing  the  singular  number  or  the  masculine 
gender  only  is  used,  the  same  shall  be  understood  to  in- 
clude and  to  be  applied  to  several  persons  as  well  as  one 
person,  and  females  as  well  as  males,  and  several  matters  or 
things  as  well  as  one  matter  or  thing,  respectively,  unless  therei 
shall  be  something  in  the  subject  or  context  repugnant  to  such 
construction. 

III.  And  be  it  enacted,  that  the  copyright  in  every  book 
which  shall  after  the  passing  of  this  Act  be  published  in  the 
lifetime  of  its  author  shall  endure  for  the  natural  life  of  such 
author,  and  for  the  further  term  of  seven  yeai-s,  commencing 
at  the  time  of  his  death,  and  shall  be  the  property  of  such 
author  and  his  assigns :  Provided  always,  that  if  the  said  term 
of  seven  years  shall  expire  before  the  end  of  forty- two  years 
from  the  first  publication  of  such  book,  the  copyright  shall  in 
that  case  endure  for  such  period  of  forty-two  years ;  and  that 
the  copyright  in  every  book  which  shall  be  published  after  the 
death  of  its  author  shall  endure  for  the  term  of  forty-two  years 
from  the  first  publication  thereof,  and  shall  be  the  property  of 
the  proprietor  of  the  author's  manuscript  from  which  such  book 
shall  be  first  published,  and  his  assigns. 

IV.  And  whereas  it  is  just  to  extend  the  benefits  of  this  Act 
to  authors  of  books  published  before  the  passing  thereof,  and 


5  &  6  VICT.  C.  45.  663 

in  which  copyright  still  subsists  :  Be  it  enacted,  that  the  copy-   to  be  extended 
right  which  at  the  time  of  passing  this  Act  shall  subsist  in  any   sLtrbeTong  to 
book  theretofore  published  (except  as  herein-after  mentioned)    othe^conBideva- 
shall  be  extended  and  endure  for  the  full  term  provided  by    natliraUove  and 
this  Act  in  cases  of  books  thereafter  published,  and  shall  be   ^hiohTara  it 
the  property  of  the  person  who  at  the  time  of  passing  of  this   expiration  of  thi 
Act  shall  be   the   proprietor   of  such   copyright:   Provided   Sls'ts'Sen- 
always,  that  in  all  cases  in  which  such  copyright  shall  belong    to°bBtweln«?e 
in  whole  or  in  part  to  a  publisher  or  other  person  who  shall    f^^l^^i^^J^"^ 
have  acquired  it  for  other  consideration  than  that  of  natural 
love  and  affection,  such  copyright  shall  not  be  extended  bj' 
this  Act,  but  shall  endure  for  the  terra  which  shall  subsist 
therein  at  the  time  of  passing  of  this  Act,  and  no  longer, 
unless  the  author  of  such  book,  if  he  shall  be  living,  or  the 
personal  representative  of  such  author,  if  he  shall  be  dead,  and 
the  proprietor  of  such  copyriglit,  shall,  before  the  expiration 
of  such  term,  consent  and  agree  to  accept  the  benefits  of  this 
Act  in  respect  of  such  book,  and  shall  cause  a  minute  of  such 
consent  in  the  form  in  that  behalf  given  in  the  schedule  to  this 
Act  annexed  to  be  entei-ed  in  the  book  of  registry  herein-after 
directed  to  be  kept,  in  which  case  such  copyright  shall  endure 
for  the  full  term  by  this  Act  provided  in  cases  of  books  to  be 
published  after  the  passing  of  this  Act,  and  sliall  be  the  prop- 
erty of  such  person  or  persons  as  in  such  minute  shall  be 
expressed. 

V.  And  whereas  it  is  expedient  to  provide  against  the  sup-  judicial  com- 

.  mitteeofthe 

pression  of  books  of  importance  to  tiie  pubhc :  Be  it  enacted,   privy  council 

,„,.,..,  .  n   -I  TV*-         ™*y  licenpe  the 

that  it  shall  be  lawful  for  the  judicial  committee  oi  iier  Ma-   republication  of 
jesty's  privy  council,  on  complaint  made  to  them  that  the  pro-   proprietor  re- 
prietor  of  the  copyright  in  any  book  after  the  death  of  its  author   ugh  after  death 
has  refused  to  republish  or  to  allow  the  republication  of  the  "'  ""'  ''"'^°"'' 
same,  arid  that  by  reason  of  such  refusal  such  book  may  be 
withheld  from  the  public,  to  grant  a  licence  to  such  complain- 
ant to  publish  such  book,  in  such  manner  and  subject  to  such 
conditions  as  they  may  think  fit ;  and  that  it  shall  be  lawful 
for  such  complainant  to  publish  such  book  according  to  such 

licence. 

VI.  And  be  it  enacted,  that  a  printed  copy  of  the  whole  of  copies  of  books 
every  book  which  shall  be  published  after  the  passing  of  this  thepLlnlof 

,       ,.  .  ,,  •  T.    1       „.      this  Act,  and  of 

Act,  together  with  all  maps,  prints,  or  other  engravings  belong-  all  subsequent 
ing  thereto,  finished  and  coloured  in  the  same  manner  as  the  aeilrered 'Within 
best  copies  of  the  same  shall  be  published,  and  also  of  any  sec-  ™'^'»'°  "■"<"  "' 


664 


THE  LAW  OP  COPYRIGHT  AND  PLAYRIGHT. 


the  British 
Museum. 


Mode  of  deliv- 
ering  copies  at 
the  British  Mu- 


A  copy  of  every 
book  to  be  de- 
livered within  a 
moDth  after 
demand  to  the 
officer  of  the 
Stationers  Com- 
pany, for  the  fol- 
lowing libraries : 
the  Bodleian  at 
Oxford,  the  pub- 
lic library  at 
Cambridge,  the 
Faculty  of  Advo- 
cated at  Edin- 
burgh, and  that 
of  Trinity  Col- 
lege, Dublin. 


ond  or  subsequent  edition  which  shall  be  so  published  with  any 
additions  or  alterations,  whether  the  same  shall  be  in  letter 
press,  or  in  the  maps,  prints,  or  other  engravings  belonging 
thereto,  and  whether  the  first  edition  of  such  book  shall  have 
been  published  before  or  after  the  passing  of  this  Act,  and  also 
of  any  second  or  subsequent  edition  of  every  book  of  which 
the  first  or  some  preceding  edition  shall  not  have  been  deliv- 
ered for  the  use  of  the  British  Museum,  bound,  sewed,  or 
stitched  together,  and  upon  the  best  paper  on  which  the  same 
shall  be  printed,  shall  within  one  calendar  month  after  the  day 
on  which  any  such  book  shall  first  be  sold,  published,  or  offered 
for  sale  within  the  bills  of  mortality,  or  within  three  calendar 
months,  if  the  same  shall  first  be  sold,  published,  or  oflTered  for 
sale  in  any  other  part  of  the  United  Kingdom,  or  within  twelve 
calendar  months  after  the  same  shall  first  be  sold,  published, 
or  offered  for  sale  in  any  other  part  of  the  British  dominions, 
be  delivered  on  behalf  of  the  publisher  thereof,  at  the  British 
Museum. 

VII.  And  be  it  enacted,  that  every  copy  of  any  book  which 
under  the  provisions  of  this  Act  ought  to  be  delivered  as  afore- 
said shall  be  delivered  at  the  British  Museum  between  the 
hours  of  ten  in  the  forenoon  and  four  in  the  afternoon  on  any 
day  except  Sunday,  Ash  Wednesday,  Good  Friday,  and  Christ- 
mas Day,  to  one  of  the  officers  of  the  said  museum,  or  to  some 
person  authorized  by  the  trustees  of  the  said  museum  to  receive 
the  same ;  and  such  officer  or  other  person  receiving  such  copy 
is  hereby  required  to  give  a  receipt  in  writing  for  the  same ; 
and  such  delivery  shall  to  all  intents  and  purposes  be  deemed 
to  be  good  and  sufficient  delivery  under  the  provisions  of  this 
Act. 

VIII.  And  be  it  enacted,  that  a  copy  of  the  whole  of  every 
book,  and  of  any  second  or  subsequent  edition  of  every  book 
containing  additions  and  alterations,  together  with  all  maps  and 
prints  belonging  thereto,  which  after  the  passing  of  this  Act 
shall  be  published,  shall,  on  demand  thereof  in  writing,  left  at 
the  place  of  abode  of  the  publisher  thereof  at  any  time  within 
twelve  months  next  after  the  publication  thereof,  under  the 
hand  of  the  officer  of  the  Company  of  Stationers  who  shall 
from  time  to  time  be  appointed  by  the  said  company  for  the 
pui-poses  of  this  Act,  or  under  the  hand  of  any  other  person 
thereto  authorized  by  the  peisons  or  bodies  politic  and  cor- 
porate, proprietors  and  managers  of  the  libraries  following, 


5  &  6  VICT.  C.  45.  665 

(videlicet,)  the  Bodleiau  library  at  Oxford,  the  public  li- 
brary at  Cambridge,  the  library  of  the  Faculty  of  Advo- 
cates at  Edinburgh,  the  library  of  the  College  of  the  Holy 
and  Undivided  Trinity  of  Queen  Elizabeth  near  Dublin, 
be  delivered,  upon  the  paper  of  which  the  largest  number 
of  copies  of  such  book  or  edition  shall  be  printed  for 
sale,  in  the  like  condition  as  the  copies  prepared  for  sale  by 
the  publisher  thereof  respectively,  within  one  month  after 
demand  made  thereof  in  writing  as  aforesaid,  to  the  said  offi- 
cer of  the  said  Company  of  Stationers  for  the  time  being, 
which  copies  the  said  officer  shall  and  he  is  hereby  required 
to  receive  at  the  hall  of  the  said  company,  for  the  use  of  the 
library  for  which  such  demaud  shall  be  made  within  such 
twelve  months  as  aforesaid ;  and  the  said  officer  is  hereby 
required  to  give  a  receipt  in  writing  for  the  same,  and 
within  one  month  after  any  such  book  shall  be  so  delivered 
to  him  as  aforesaid  to  deliver  the  same  for  the  use  of  such 
library. 

IX.  Provided  also,  and  be  it  enacted,  that  if  any  publisher  Pubii8h»is  may 
shall  be  desirous  of  delivering  the  copy  of  such  book  as  shall  to  theTubrMiM"™ 
be  demanded  on  behalf  of  any  of  the  said  libraries  at  such  stationers  Com* 
library,  it  shall  be  lawful  for  him  to  deliver  the  same  at  such  ^''''^' 
library,  free  of  expense,  to  such  librarian  or  other  person  au- 
thorized to  receive  the  same  (who  is  hereby  required  in  such 

case  to  receive  and  give  a  receipt  in  writing  for  the  same)  ; 
and  such  delivery  shall  to  all  intents  and  purposes  of  this  Act 
be  held  as  equivalent  to  a  delivery  to  the  said  officer  of  the 
Stationers  Company. 

X.  And  be  it  enacted,  that  if  any  publisher  of  any  such   Penalty  for  de- 
book,  or  of  any  second  or  subsequent  edition  of  any  such  book,  ing  copies  for  the 
shall  neglect  to  deliver  the  same  pursuant  to  this  Act,  he  shall   braries. 

for  every  such  default  forfeit,  besides  the  value  of  such  copy 
of  such  book  or  edition  which  he  ought  to  have  delivered,  a 
sum  not  exceeding  five  pounds,  to  be  recovered  by  the  libra- 
rian or  other  officer  (properly  authorized)  of  the  library  for 
the  use  whereof  such  copy  should  have  been  delivered,  in  a 
summary  way,  on  conviction  before  two  justices  of  the  peace 
for  the  county  or  place  where  the  publisher  making  default 
shall  reside,  or  by  action  of  debt  or  other  proceeding  of  the 
like  nature,  at  the  suit  of  such  librarian  or  other  officer,  in 
any  court  of  record  in  the  United  Kingdom  ;  in  which  action, 
if  the  plaintiff  shall  obtain  a  verdict,  he  shall  recover  his  costs 


666  THE   LAW   OF   COPYRIGHT   AND   PLAYRIGHT. 

reasonably  incurred,  to  be  taxed  as  between  attorney  and 
client. 
Book  of  repistry        XI.  And  be  it  enacted,  that  a  book  of  registry,  wherein 
stationers  Hall,     may  be  registered,  as  herein-after  enacted,  the  proprietorship 
in  the  copyright  of  books,  and  assignments  thereof,  and  in  dra- 
matic and  musical  pieces,  whether  in  manuscript  or  otherwise, 
and  licences  aflfecting  such  copyright,  shall  be  kept  at  the  hall 
of  the  Stationers  Company  by  the  officer  appointed  by  the 
said  company  for  the  purposes  of  this  Act,  and  shall  at  all 
convenient  times  be  open  to  the  inspection  of  any  person,  on 
payment  of  one  shilling  for  every  entry  which  shall  be  searched 
Copies  of  entries    for  Or  inspected  in  the  said  book;  and  that  such  officer  shall, 
required,™nd  t™  whenever  thereunto  reasonably  required,  give  a  copy  of  any 
evidenc'e.^  '"        entry  in  such  book,  certified  under  his  hand,  and  impressed 
with   the    stamp   of  the   said  company,   to  be   provided  by 
them  for  that  purpose,  and  which  they  are  hereby  required 
to  provide,  to  any  person  requiring  the  same,  on  payment  to 
him  of  the  sum  of  five  shillings  ;   and  such  copies  so  certified 
and  impressed  shall  be  received  in  evidence  in  all  courts,  and 
in  all  summary  proceedings,  and  shall  be  prima  facie  proof  of 
the  proprietorship  or  assignment  of  copyright  or  licence  as 
therein  expressed, but  subject  to  be  rebutted  by  other  evidence, 
and  in  the  case  of  dramatic  or  musical  pieces  shall  be  prima 
facie  proof  of  the  right  of  representation  or  performance,  sub- 
ject to  be  rebutted  as  aforesaid. 
Making  a  false  XII.   Aiid  be  it  enacted,  that  if  any  person  shall  wilfully 

entry  in  the  book  ,  ,,  „,  .i-ii 

of  registry  a  mis-  make  or  cause  to  be  made  any  lalse  entry  m  the  registry  book 
of  the  Stationers  Company,  or  shall  wilfully  produce  or  cause 
to  be  tendered  in  evidence  any  paper  falsely  purporting  to  be 
a  copy  of  any  entry  in  the  said  book,  he  shall  be  guilty  of  an 
indictable  misdemeanor,  and  shall  be  punished  accordingly. 

Entries  of  copy-        XIII.  And  be  it  enacted,  that  after  the  passing  of  this  Act 

right  may  be  a  o 

made  in  the  book  it  shall  be  lawful  for  the  proprietor  of  copyright  in  any  book 


of  registry. 


heretofore  published,  or  in  any  book  hereafter  to  be  published, 
to  make  entry  in  the  registry  book  of  the  Stationers  Company 
of  the  title  of  such  book,  the  time  of  the  first  publication 
thereof,  the  name  and  place  of  abode  of  the  publisher  thereof, 
and  the  name  and  place  of  abode  of  the  proprietor  of  the 
copyright  of  the  said  book,  or  of  any  portion  of  such  copy- 
right, in  the  form  in  that  behalf  given  in  the  schedule  to  this 
Act  annexed,  upon  payment  of  the  sum  of  five  shillings  to 
the  officer  of  the  said  company ;  and  that  it  shall  be  lawful 


5&6  VICT.  C.  45.  667 

for  every  such  registered  proprietor  to  assign  his  interest,  or 
any  portion  of  his  interest  therein,  by  making  entry  in  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  ;  and  such  assignment  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. 

XIV.  And  be  it  enacted,  that  if  any  person  shall  deem   Persons  ag- 

,,,„.,,  grieved  by  any 

himself  aggrieved  by  any  entry  made  under  colour  of  this  Act   entry  in  the  book 
in  the  said  book  of  registry,  it  shall  be  lawful  for  such  person   apply  to  a  court 

11  •  ly^  o  /^  ,-r^i/-i  f    ^^  ''^^  '^  term, 

to  apply  by  motion  to  the  Oourt  oi  Queens  Bench,  (Jourt  of   or  judge  in  Taca- 
Comraon  Pleas,  or  Court  of  Exchequer,  in  term  time,  or  to  order  such  entry 
apply  by  summons  to  any  judge  of  either  of  such  courts  in  expunged, 
vacation,  for  an  order  that  such  entry  may  be  expunged  or 
varied ;  and  that  upon   any  such   application  by  motion   or 
summons  to  either  of  the  said  courts,  or  to  a  judge  as  afore- 
said, such  court  or  judge  shall  make  such  order  for  expunging, 
varying,  or  confirming  such  entry,  either  with  or  without  costs, 
as  to  such  court  or  judge  shall  seem  just ;  and  the  officer  ap- 
pointed by  the  Stationers  Company  for  the  purposes  of  this 
Act  shall,  on  the  production  to  him  of  any  such  order  for  ex- 
punging or  varying  any  such  entry,  expunge   or  vary  the 
same  according  to  the  requisitions  of  such  order. 

XV.  And  be  it  enacted,  that  if  any  person  shall,  in  any  Remedy  for  the 
part  of  the  British  dominions,  after  the  passing  of  this  Act,  by  action  on  the 
print  or  cause  to  be  printed,  either  for  sale  or  exportation, 

any  book  in  which  there  shall  be  subsisting  copyright,  with- 
out the  consent  in  writing  of  the  proprietor  thereof,  or  shall 
import  for  sale  or  hire  any  such  book  so  having  been  unlaw- 
fully printed  fi-om  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,  pub- 
lished, or  exposed  to  sale  or  hire,  or  shall  have  in  his  posses- 
sion, 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,  to  be  brought  in  any  court 
of  record  in  that  part  of  the  British  dominions  in  which  the 
offence  shall  be  committed  :  Provided  always,  that  in  Scotland 
such  offender  shall  be  liable  to  an  action  in  the  court  of  ses- 


668 


THE  LAW  OP  COPYRIGHT  AND  PLAYRIGHT. 


In  actions  for 
piracy  the  de- 
fendant to  give 
notice  of  the 
objections  to  the 
plaintiff's  title 
on  which  he 
means  to  rely. 


No  person  ex- 
cept the  propri- 
etor, &c,  shall 
import  into  the 
British  domin- 
ions for  sale  or 
hire  any  book 
first  composed, 
&c,  within  the 
United  Kingdom, 
and  reprinted 


sion  in  Scotland,  which  shall  and  may  be  brought  and  prose- 
cuted in  the  same  manner  in  which  any  other  action  of 
damages  to  the  like  amount  may  be  brought  and  prosecuted 
there. 

XVI.  And  be  it  enacted,  that  after  the  passing  of  this  Act, 
in  any  action  brought  within  the  British  dominions  against 
any  person  for  printing  any  such  book  for  sale,  hire,  or  ex- 
portation, or  for  importing,  selling,  publishing,  or  exposing  to 
sale  or  hire,  or  causing  to  be  imported,  sold,  published,  or  ex- 
posed to  sale  or  hire,  any  such  book,  the  defendant,  on  plead- 
ing thereto,  shall  give  to  the  plaintiff  a  notice  in  writing  of 
any  objections  on  which  he  means  to  rely  on  the  trial  of  such 
action  ;  and  if  the  nature  of  his  defence  be,  that  the  plaintiff 
in  such  action  was  not  the  author  or  first  publisher  of  the 
book  in  which  he  shall  by  such  action  claim  copyright,  or  is 
not  the  proprietor  of  the  copyright  therein,  or  that  some  other 
person  than  the  plaintiff  was  the  author  or  first  publisher  of 
such  book,  or  is  the  proprietor  of  the  copyright  therein,  then 
the  defendant  shall  specify  in  such  notice  the  name  of  the 
person  who  he  alleges  to  have  been  the  author  or  first  pub- 
lisher of  such  book,  or  the  proprietor  of  the  copyright  therein, 
together  with  the  title  of  such  book,  and  the  time  when  and 
the  place  where  such  book  was  first  published,  otherwise  the 
defendant  in  such  action  shall  not  at  the  trial  or  hearing  of 
such  action  be  allowed  to  give  any  evidence  that  the  plaintiff 
in  such  action  was  not  the  author  or  first  publisher  of  the 
book  in  which  he  claims  such  copyright  as  aforesaid,  or  that 
he  was  not  the  proprietor  of  the  copyright  therein ;  and  at 
such  trial  or  hearing  no  other  objection  shall  be  allowed  to  be 
made  on  behalf  of  such  defendant  than  the  objection  stated  in 
such  notice,  or  that  any  other  person  was  the  author  or  first 
publisher  of  such  book,  or  the  proprietor  of  the  copyright 
therein,  than  the  person  specified  in  such  notifce,  or  give  in 
evidence  in  support  of  his  defence  any  other  book  than  one 
substantially  corresponding  in  title,  time,  and  place  of  publi- 
cation, with  the  title,  time,  and  place  specified  in  such  notice. 

XVII.  And  be  it  enacted,  that  after  the  passing  of  this  Act 
it  shall  not  be  lawful  for  any  person,  not  being  the  proprietor 
of  the  copyright,  or  some  person  authorized  by  him,  to  import 
into  any  part  of  the  United  Kingdom,  or  into  any  other  part 
of  the  British  dominions,  for  sale  or  hire,  any  printed  book 
first  composed  or  written  or  printed  and  published  in  any  part 


5  &  6  VICT.  C.  45.  669 

of  the  said  United  Kingdom,  wherein  there  shall  be  copyright,  elsewhere,  under 

and  reprinted  in  any  country  or  place  whatsoever  out  of  the   Felture^hereo'f, 

British   dominions  ;  and  if  any  person,  not  being  such  pro-  "nd  double  the 

prietor  or  person  authorized  as  aforesaid,  shall  import  or  bring,  ™  """ 

or  cause  to  be  imported  or  brought,  for  sale  or  hire,  any  such 

printed  book,  into  any  part  of  the  British  dominions,  contrary 

to  the  true  intent  and  meaning  of  this  Act,  or  shall  knowingly 

sell,  publish,  or  expose  to  sale  or  let  to  hire,  or  have  in  his 

possession  for  sale  or  hire,  any  such  book,  then  every  such  book   Books'may  be 

shall  be  forfeited,  and  shall  be  seized  by  any  officer  of  customs  of  customs  or 

or  excise,  and  the  same  shall  be  destroyed  by  such  officer  ;  and 

every  person  so  offendingj  being  duly  convicted  thereof  before 

two  justices  of  the  peace  for  the  county  or  place  iu  which  such 

book  shall  be  found,  shall  also  for  every  such  offence  forfeit 

the  sum  of  ten  pounds,  and  double  the  value  of  every  copy 

of  such  book  which  he  shall  so  import  or  cause  to  be  imported 

into  any  part  of  the   British  dominions,  or  shall  knowingly 

sell,  publish,  or  expose  to  sale  or  let  to  hire,  or  shall  cause  to 

be  sold,  published,  or  exposed  to  sale  or  let  to  hire,  or  shall 

have  in  his  possession  for  sale  or  hire,  contrary  to  the  true 

intent  and  meaning  of  this  Act,  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  in  such  book. 

XVIII.  And  be  it  enacted,  that  when  any  publisher  or   Copyright  in  en- 

!■  f-L  •  £    \.'      cyclopaedias, 

other  person  shall,  before  or  at  the  time  oi  the  passnig  oi  this  periodicals,  and 
Act,  have  projected,  conducted,  and  carried  on,  or  shall  here-  in  a  series,  re- 
after  project,  conduct,  and  carry  on,  or  be  the  proprietor  of  azines. 
any  encyclopedia,  review,  magazine,  periodical  work,  or  work 
published  in  a  series  of  books  or  parts,  or  any  book  whatso- 
ever, and  shall  have  employed  or  shall  employ  any  persons  to 
compose  the  same,  or  any  volumes,  parts,  essays,  articles,  or 
portions  thereof,  for  publication  in  or  as  part  of  the  same,  and 
such  work,  volumes,  parts,  essays,  articles,  or  portions  shall 
have  been  or  shall  hereafter  be  composed  under  such  employ- 
ment, on  the  terms  that  the  copyright  therein  shall  belong  to 
such  proprietor,  pi-ojector,  publisher,  or  conductor,  and  paid 
for  by  such  proprietor,  projector,  publisher,  or  conductor,  the 
copyright  in  every  such  encyclopsedia,  review,  magazine,  peri- 
odical work,  and  work  published  in  a  series  of  books  or  parts, 
and  in  every  volume,  part,  essay,  article,  and  portion  so  com- 
posed and  paid  for,  shall  be  the  property  of  such  proprietor, 
projector,  publisher,  or  other  conductor,  who  shall  enjoy  the 


670 


THE   LAW   OP   COPYRIGHT   AND   PLATBIGHT. 


Proviso  for 
authors  who 
hare  reserved 
the  right  of  pub- 
lishing their  ar- 
ticles in  a  sep- 
arate form. 


Proprietors  of 
eocyclopsedias, 
periodicals,  and 
works  published 
in  a  series,  may 
enter  at  onre  at 
Stationers  Hall, 
and  thereon  have 
the  benefit  of  the 
registration  of 
the  whole. 


3  &  4  Will.  4. 
0.16. 


same  rights  as  if  he  were  the  actual  author  thereof,  and  shall 
have  such  term  of  copyright  therein  as  is  given  to  the  authors 
of  books  by  this  Act ;  except  only  that  in  the  case  of  essays, 
articles,  or  portions  forming  part  of  and  first  published  in  re- 
views, magazines,  or  other  periodical  works  of  a  like  nature, 
after  the  term  of  twenty-eight  years  from  the  first  publication 
thereof  respectively  the  right  of  publishing  the  same  in  a 
separate  form  shall  revert  to  the  author  for  the  remainder  of 
the  term  given  by  this  Act:  Provided  always,  that  during  the 
term  of  twenty-eight  years  the  said  proprietor,  projector,  pub- 
lisher, or  conductor  shall  not  publish  any  such  essay,  article, 
or  portion  separately  or  singly  without  the  consent  previously 
obtained  of  the  author  thereof,  or  his  assigns  :  Provided  also, 
that  nothing  herein  contained  shall  alter  or  affect  the  right  of 
any  person  who  shall  have  been  or  who  shall  be  so  employed 
as  aforesaid  to  publish  any  such  his  composition  in  a  separate 
form,  who  by  any  contract,  express  or  implied,  may  have  re- 
served or  may  hereafter  reserve  to  himself  such  right ;  but 
every  author  reserving,  retaining,  or  having  such  riglit  shall 
be  entitled  to  the  copyright  in  such  composition  when  pub- 
lished in  a  separate  form,  according  to  this  Act,  without  preju- 
dice to  the  right  of  such  proprietor,  projector,  publisher,  or 
conductor  as  aforesaid. 

XIX.  And  be  it  enacted,  that  the  proprietor  of  the  copy- 
right in  any  encyclopaedia,  review,  magazine,  periodical  work, 
or  other  work  published  in  a  series  of  books  or  parts,  shall  be 
entitled  to  all  the  benefits  of  the  registration  at  Stationers 
Hall  under  this  Act,  on  entering  in  the  said  book  of  registry 
the  title  of  such  encyclopaedia,  review,  periodical  work,  or 
other  work  published  in  a  series  of  books  or  parts,  the  time  of 
the  first  publication  of  the  first  volume,  number,  or  part  there- 
of, or  of  the  first  number  or  volume  first  published  after  the 
passing  of  this  Act  in  any  such  work  which  shall  have  heen 
published  heretofore,  and  the  name  and  place  of  abode  of  the 
proprietor  thereof,  and  of  the  publisher  thereof,  when  such 
publisher  shall  not  also  be  the  proprietor  thereof. 

XX.  And  whereas  an  Act  was  passed  in  the  third  year  of 
the  reign  of  his  late  Majesty,  to  amend  the  law  relating  to 
dramatic  literary  property,  and  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  con- 
tinuance of  copyright :  And  wlu-reas  it  is  expedient  to  extend 


5  &  6  VICT.  C.  45.  671 

to  musical  compositions  the  benefits  of  that  Act,  and  also  of 
this  Act :  Be  it  therefore  enacted,  that  the  provisions  of  the  ProTidons  of  re- 
said  Act  of  his  late  Majesty,  and  of  this  Act,  shall  apply  to   thTa'Act  sCn 
musical  compositions ;  and  that  the  sole  liberty  of  represent-  comporitiM"/!"*' 
ing  or  performing,  or  causing  or  permitting  to  be  represented  Sy  rf'repres" nt- 
or  performed,  any  dramatic  piece  or  musical  composition,  shall  pifce/and  mu- 
endure  and  be  the  property  of  the  author  thereof,  and  his   BitionTsZure. 
assigns,  for  the  terra  of  this  Act  provided  for  the  duration  "u'/holVurlng 
of  copyright  in  books ;  and  the  provisions  herein-before  en-  Jj" Vt^wovmy 
acted   in  respect  of  the  property  of  such  copyright,  and  of  by  this  Act. 
registering  the  same,  shall  apply  to  the  liberty  of  representing 
or  performing  any  dramatic  piece  or  musical  composition,  as 
if  the  same  were  herein  expressly  re-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  publication  of  any  book :  Provided  always,  that  in 
case  of  any  dramatic  piece  or  musical  composition  in  manu- 
script, it  shall  be  sufficient  for  the  person  having  the  sole 
liberty  of  representing  or  performing  or  causing  to  be  rep- 
resented or  performed  the  same,  to  register   only  the  title 
thereof,  the  name  and  place  of  abode  of  the  author  or  com- 
poser thereof,  the  name  and  place  of  abode  of  the  proprietor 
thereof,  and  the  time  and  place  of  its  first  representation  or 
performance. 

XXI.  And  be  it  enacted,  that  the  person  who  shall  at  any  proprietors  of 
time  have  the  sole  liberty  of  representing  such  dramatic  piece  matic  represen- 

-,  ...  1     ti  \  1        •        ,f  -I*  •  tations  shall  have 

or  musical  composition  shall  have  and  enjoy  the  remedies  given   all  the  remedies 
and  provided  in  the  said  Act  of  the  third  and  fourth  years  of  wm?  4.^c.  15. 
the  reign  of  his  late  Majesty  King  William  the  Fourth,  passed 
to  amend  the  laws  relating  to  dramatic  literary  property,  dur- 
ing the  whole  of  his  interest  therein,  as  fully  as  if  the  same 
were  re-enacted  in  this  Act. 

XXII.  And  be  it  enacted,  that  no  assignment  of  the  copy-  Assignment  of 

.    7  ,  .        .  copyright  of  a 

right  of  any  book  consisting  of  or  containing  a  dramatic  piece   dramatic  piece 

.      ,  .  .  ,?,,,,-,  ,  no""  convey  the 

or  musical  composition  shall  be  holden  to  convey  to  the  as-  right  of  repre- 

.  .    ,         n  .  p         •  IT  •       sentation. 

signee  the  right  of  representing  or  pertorming  such  dramatic 
piece  or  musical  composition,  unless  an  entry  in  the  said  reg- 
istry book  shall  be  made  of  such  assignment,  wherein  shall  be 
expressed  the  intention  of  the  parties  that  such  right  should 
pass  by  such  assignment.  „  ^    ,  ,  ^ 

t^  J  o  ^  Bool5H  pirated 

XXIII.  And  be  it  enacted,  that  all  copies  '  of  any  book  shall  become  the 


672 


THE  LAW  OF  COPYRIGHT  AND  PLAYEIGHT. 


property  of  the 
proprietor  of  the 
copyright,  and 
may  be  recoyered 
by  action. 


No  proprietor  of 
copyright  com- 
menciDg  after 
this  Act  shall 
sue  or  proceed 
for  any  infringe- 
ment before 
making  entry  in 
the  book  of 
registry. 


Proviso  for  drar 
matic  pieces. 


Copyright  shall 
be  personal  prop- 
erty. 


General  Issue. 


wherein  there  shall  be  copyright,  and  of  which  entry  shall 
have  been  made  in  the  said  registry  book,  and  which  shall  have 
been  unlawfully  printed  or  imported  without  the  consent  of 
the  registered  proprietor  of  such  copyright  in  wi'iting  under 
his  hand  first  obtained,  shall  be  deemed  to  be  the  property  of 
the  proprietor  of  such  copyright,  and  who  shall  be  registered 
as  such ;  and  such  registered  proprietor  shall,  after  demand 
thereof  in  writing,  be  entitled  to  sue  for  and  recover  the  same, 
or  damages  for  the  detention  thereof,  in  an  action  of  detinue, 
from  any  party  who  shall  detain  the  same,  or  to  sue  for  and  re- 
cover damages  for  the  conversion  thereof  in  an  action  of  trover. 

XXIV.  And  be  it  enacted,  that  no  proprietor  of  copyright 
in  any  book  whiclj  shall  be  first  published  after  the  passing  of 
this  Act  shall  maintain  any  action  or  suit,  at  law  or  in  equity, 
or  any  summary  proceeding,  in  respect  of  any  infringement  of 
such  copyright,  unless  he  shall,  before  commencing  such 
action,  suit,  or  proceeding,  have  caused  an  entry  to  be  made, 
in  the  book  of  registiy  of  the  Stationers  Company,  of  such 
book,  pursuant  to  this  Act :  Provided  always,  that  the  omis- 
sion to  make  such  entry  shall  not  affect  the  copyright  in  any 
book,  but  only  the  right  to  sue  or  proceed  in  respect  of  the 
infringement  thereof  as  aforesaid  :  Provided  also,  that  nothing 
herein  contained  shall  prejudice  the  remedies  which  the  pro- 
prietor of  the  sole  liberty  of  representing  any  dramatic  piece 
shall  have  by  virtue  of  the  Act  passed  in  the  third  year  of  the 
reign  of  his  late  Majesty  King  William  the  Fourth,  to  amend 
the  laws  relating  to  drarnatic  literary  property,  or  of  this  Act, 
although  no  entry  shall  be  made  in  the  book  of  registry 
aforesaid. 

XXV.  And  be  it  enacted,  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  dis- 
tribution as  other  personal  property,  and  in  Scotland  shall  be 
deemed  to  be  personal  and  moveable  estate. 

XXVI.  And  be  it  enacted,  that  if  any  action  or  suit  shall 
be  commenced  or  brought  against  any  person  or  persons 
whomsoever  for  doing  or  causing  to  be  done  anything  in  pur- 
suance of  this  Act,  the  defendant  or  defendants  in  such  action 
may  plead  the  general  issue,  and  give  the  special  matter  in 
evidence ;  and  if  upon  such  action  a  verdict  shall  be  given  for 
the  defendant,  or  the  plaintiff  shall  become  nonsuited,  or  dis- 
continue his  action,  then  the  defendant  shall  have  and  recover 


5  &  6  VICT.  C.  45.  673 

his  full  costs,  for  which  he  shall  have  the  same  remedy  as  a  costs. 
defendant  in  any  case  by  law  hath  ;  and  that  all  actions,  suits.   Limitation  of 
bills,  indictments,  or  informations  for  any  offence  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  none  effect ; 
provided  that  such  limitation  of  time  shall  not  extend  or  be  except  actions, 

&c.  in  respect  of 

construed  to  extend  to  any  actions,  suits,  or  other  proceed-   the  delivery  of 
ings,  which  under  the  authority  of  this  Act  shall  or  may  be 
brought,  sued,  or  commenced  for  or  in  respect  of  any  copies 
of  books  to  be  delivered  for  the  use  of  the  British  Museum,  or 
of  any  one  of  the  four  libraries  herein-before  mentioned. 

XXVII.  Provided  always,  and  be  it  enacted,  that  nothing  Saving  the  rights 
in  this  Act  contained  shall  affect  or  alter  the  rights  of  the  two   sities,  and  the 
universities  of  Oxford  and  Cambridge,  the  colleges  or  houses   wesTminster,  "' 
of  learning  within  the  same,  the  four  universities  in  Scotland, 

tlie  college  of  the  Holy  and  Undivided  Trinity  of  Queen 
Elizabeth  near  Dublin,  and  the  several  colleges  of  Eton, 
Westminster,  and  "Winchester,  in  any  copyrights  heretofore 
and  now  vested  or  hereafter  to  be  vested  in  such  universities 
and  colleges  respectively,  anything  to  the  contrary  herein 
contained  notwithstanding. 

XXVIII.  Provided  also,  and  be  it  enacted,  that  nothing  in   Saving  as  to  sub- 

~,  ,  *    1  1       sisting  rights, 

this  Act  contamed  shall  affect,  alter,  or  vary  any  right  sub-  contracts,  and 

.     .  .  .  o  •  />     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^aiaiatims.         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.     <See  Musical  Compositions. 

ART,  WORKS  OF.     See  Chromos  ;  Designs  ;  Drawings  ;  Engrav- 
ings ;  Models  ;  Paintings;  Photographs;  Sculpture;  Statuary. 

ARTICLES, 

copyright   in.      See  Cyclopaedias;    Employer    and    Employ^:; 
Newspapers;  Periodicals. 

ARTISTS.     See  Author. 

ASSIGNEE, 

of  foreign  author,  whether  entitled  to  benefit  of  U.  S.  Statute  pro- 
hibiting publication  of  manuscript,  125. 

of  foreign  author,  rights  of.     See  Foreign  Authors. 

whether  foreign,  of  native  author  entitled  to  copyright  in  United 
States,  235. 

who  is,  238. 

copyright  vests  ah  initio'ia,  238,  306,  320. 

owner  of  manuscript  may  secure  copyright,  239-243,  247. 

acquires  statutory  copyright  when  assignment  made  after  publication, 
239,  242,  306,  307. 
common-law  rights  when  before,  239,  242,  306,  307. 

of  common-law  rights  is  recognized  by  statute  as  entitled  to  secure 
copyright,  240.  ^ 

owner  of  unpublished  work  has  essential  qualities  of,  240. 

definition  of,  in  English  Statute,  240,  312. 

not  entitled  to  copyright  unless  author  is,  242. 


714  INDEX. 

ASSIGNEE,  —  continued. 

■whether  limited,  may  transfer  copyright,  338. 

of  painting,  drawing,  or  photograph  must  register  assignment  before 

action,  817. 
rights  of,  as  to  selling  copies,  338-342,  372,  373. 
rights  of,  who  has  bought  foreign  play  for  United  States,  582-584. 
of  foreign  dramatist  protected  by  common  law,  581. 
rights  of,  as  to  renewal.     See  Renewal  of  Copyright. 
in  bankruptcy.     See  Bakkkhptcy. 
See  Employer  and  Employ^;;  Transfer  of  Copyright; 
Playright,   Transfer  of. 
ASSIGNMENT.     See  Transfer  of  Copyright  ;  Playright,  Trans- 
fer of. 
AUTHOR, 

discussion  as  to  meaning  of,  in  English  Statute,  whether  restricted  to 

native,  223-228. 
British,  entitled  to  copyright  in  England  when  resident  abroad,  230. 
oint  native  and  foreign,  in  United  States,  232. 
immaterial  where  American  resides,  234. 
who  is,  236. 
joint,  237,  624. 

rights  of,  who  has  designed  dramatic  representation,  249. 
of  map  designed  by  one  person  and  drawn  by  another,  254. 
he  is  not,  who  merely  suggests  subject,  259. 
See  Agrekments  between  Authors  and  Publishers;  Employer 
AND  Employe;  False  Representations  as  to  Author- 
ship; Foreign  Authors;  Originality. 


B. 
BALDWIN,   JOHN  D., 

report  to  Congress  in  favor  of  international  copyright,  93. 

BANKRUPTCY, 

whether  copyright  will  pass  in,  without  writing,  315,  322. 

rights  of  assignee  under  contract  of  bankrupt  publisher,  348. 

rights  of  author  under  agreement  after  publisher  bankrupt,  850. 
BEQUEST, 

provision  in  English  statute  for  transmission  of  copyright  by,  302, 
312. 

in  United  States,  321. 
BIBLE, 

prerogative  right  to  English  translation  claimed  by  crown,  62-65. 
BLASPHEMOUS   PUBLICATIONS, 

whether  author  may  prevent  unlicensed  publication  of  manuscript, 
112-114. 
'  or  recover  damages,  114. 

not  entitled  to  copyright,  182,  187. 

injunctions  not  granted  against,  540. 


INDEX.  715 

BLASPPIEMY, 

law  in  England  relating  to,  187-193. 
in  United  States,  193-196. 
BOOK, 

comprehensive  meaning  of,  140-144. 

definition  of,  in  5  &  6  Vict.  c.  45,  140. 

diagram  a,  143. 

label  not  a,  143. 

all  contents  of,  covered  by  copyright,  144,  411. 

copyright  in  part  of,  144. 

title  of,  not  subject  of  copyright,  145.    See  Title  of  Publication. 

includes  maps  in  England,  174. 

how  copyright  in,  secured,  265,  297.     See  Statutory  Requisites. 

when  in  two  or  more  volumes,  274. 
duration  of  copyright  in,  299,  300. 
regulations  concerning  importing,  298,  note  3. 
new  editions  of.     See  Editions. 

delivery  to  public  libraries.     See  Librarian  op   Congress;  Li- 
braries; Statutory  Requisites. 
statutes  governing  copyright  in,  American,  698. 
English,  661. 

BOOKSELLER.     See  Publisher;  Seller. 

BREACH, 

of  confidence,  contract,  trust,  &c.  —  injunctions  granted  against,  537. 

BRITISH  DOMINIOKS, 

defined,  298. 

BRITISH  MUSEUM, 

delivery  of  books  to,  277. 

under  international  copyright  acts,  215,  217. 

BUSTS, 

copyright  in,  secured  by  English  statute,  179. 
See  Sculpture;  Statuary. 

BUYER.      See  Agreements  between  Authors  and  Publishers; 
Assignee;  Proprietor;  Seller. 


C. 

CALENDARS, 

subject  of  copyright,  153. 

CAMDEN,  LORD, 

speech  against  author's  rights,  39. 

CAMPBELL,  LORD, 

criticism  on  Lord  Eldon's  refusal  to  grant  injunctions  in  the  case  of 
nhnn^cious  books.  183,  note  1. 


716  INDEX. 

CANADIAN  COPYRIGHT  LAW,  298,  note  3. 

CARDS, 

playing,  protected  as  prints,  178. 

CASTS, 

copyright  in,  secured  by  English  statute,  179. 
See  Sculpture;  Statuary. 

CATALOGUES, 

may  be  copyrighted,  153,  167. 

not  when  mere  advertisements,  165,  166. 
•what  use  may  be  made  of  copyrighted,  394,  396.     See  Fair  Uses 

OF  Copyrighted  Works. 
piracy  in  case  of,  416-420. 

See  Compilations. 

CENSORSHIP  OF  THE  PRESS.     See  Literary  Property,  History 

of,  in  England. 
CHANCERY.     See  Injunction  ;  Jurisdiction  ;  Remedies  in  Equity. 

CHARACTER   OF  PUBLICATION.    See  Qualities  essential  to 
Copyright;  Unpublished  Works. 

CHARTS.     See  Maps. 

CHRISTIANITY,  WORKS  AGAINST.     See  Blasphemous  Publica- 
tions; Blasphemy;  Religion,  Works  against. 

CHROMOS, 

may  be  copyrighted  in  United  States,  180. 
foreign,  by  resident  owner,  231,  232. 
how  copyright  secured,  265,  297.     See  Statutory  Requisites. 
duration  of  copyright  in,  299,  300. 
statutory  remedies  for  infringement,  491-494.     See  Remedies  in 

Law. 
statute  relating  to,  698. 

CIRCUIT  COURTS, 

jurisdiction  of.     <See  Jurisdiction. 

CITIZEN, 

copyright  in  United  States  limited  to,  and  resident,  231. 
See  Foreign  Authors. 

CLAY,   HENRY, 

report  to  Congress  in  favor  of  international  copyright,  92. 

COLLEGES, 

perpetual  copyright  given  to,  by  15  Geo.  III.  c.  53,  73,  647. 

COLONIAL   COPYRIGHT, 

law  concerning,  298,  note  3. 

See  International  Copyright. 

COLONIES,   AMERICAN, 

copyright  laws  passed  by,  87,  88. 


INDEX.  717 

COMEDY, 

playiight  in,  given  by  3  &  4  Will.  IV.,  c.  15,  and  5  &6  Vict.  c.  45,  586. 
See  Dramatic  Compositions. 
COMMISSIONERS.    See  Royal  Copyright  Commissioners. 
COMMON  LAW, 

difference  between,  and  statutory  right,  100. 
remedies  available  under  statute,  473,  493. 

when  not,  474. 
discussion  of  principles  of,  relating  to  literary  property.    See  Liter- 
ary Property. 
property  in  unpublished  works.     See  Unpublished  Works. 
in  letters.     See  Letters. 
in  dramas.     See  Playright. 

COMMON  MATERIALS, 
no  copyright  in,  156,  424. 

See  Compilations. 

COMMON  PRAYER  BOOK, 

prerogative  right  to,  claimed  by  crown,  62-65. 

COMPILATIONS, 

may  be  copyrighted,  152-168. 

various  kinds  of,  153. 

materials  need  not  be  new,  154-156. 

copyright  is  in  arrangement  and  combination  of  materials,  156,  424. 

when  materials  are  elaborated  by  compiler,  157,  424. 

when  selections  are  arranged  without  change  in  original  language, 

157. 
selections  of  law  cases,  160. 
are  original  works,  201,  202. 
test  of  originality,  202,  207,  212. 
what  use  may  be  made  of  copyrighted,  394-399. 
piracy  in  case  of,  416-428.      See  Piracy. 
distinguished  from  abridgments,  441,  note  1. 

CONGRESS, 

empowered  by  the  constitution  to  pass  copyright  and  patent  laws,  88. 
question  of  international  copyright  in,  92-95. 
library  of.     See  Librarian  of  Congress. 

international  literary,  in  Paris,  affirms  perpetuity  of  literary  prop- 
erty, 52. 
acts  of.     -See  Statutes  in  Force. 

CONSENT   OF   OWNER, 

to  publish  manuscript  need  not  be  in  writing  under  section  4967  of 

revised  statutes,  126. 
distinction  between  license  and  assignment,  305,  837. 
clause  of  statute  requiring  written,  to  publish  books,  applies  to 
licensee,  and  not  owner  of  copyright,  305,  306. 
to  published  and  not  to  unpublished  works,  307,  308. 


718  INDEX. 

CONSENT   OF   OWSER,  — continued. 

to  use  paintings,  drawings,  and  photographs  must  be  written  under 

25  &  26  Vict.  c.  68,  317. 
under  5  &  6  Vict.  c.  45,  wrongdoer  without  written,  liable,  303,  471, 
478. 
under  engravings  acts,  without  written  and  attested,  316,  478. 
in  case  of  copyright,  wrong-doer  without  written  and  attested,  liable 

under  U.  S.  revised  statutes,  486,  491. 
in  equity  enough  for  defendant  to  show  oral,  501.     See  Equitable 

TiTLB. 

when  may  not  be  implied,  502. 

what  in  plaintiff's  conduct  may  amount  to.     See  Acquiescence. 
under  3  &  4  Will.  IV.  c.  15,  defendant  liable  for  representing  play 
without  written,  626,  638. 
may  be  given  by  agent,  638. 
under  U.  S.  revised  statute  defendant  not  required  to  show  writ- 
ten, for  representing  play,  626,  638. 

CONSOLIDATED   CUSTOMS  ACT, 

provisions  of,  relating  to  books,  298,  note  3,  472,  note  1. 
CONSTITUTION  OF  "THE  UNITED   STATES, 

empowers  Congress  to  pass  copyright  and  patent  laws,  88. 

CONTRACTS.      See    Agreements    between   Authors  and  Pub- 
lishers;  Specific  Performance  op  Agreements. 

CONTRIBUTORS, 

rights  of.     See  Periodicals. 

CONVENTIONS,   INTERNATIONAL  COPYRIGHT, 

made  between  Great  Britain  and  other  countries,  86. 
COPIES, 

delivery  of,  to  public  libraries.      See  Librarian  of   Congress; 

Libraries;  Statutory  Requisites. 
forfeiture  of.     See  Forfeitures;   Remedies  in  Law. 
See  Prerogative  Copies. 
COPY, 

early  use  of,  to  signify  copyright,  61. 

substantial,  may  be  piratical,  385,  407,  408,  409.     See  Piracy. 

need  not  be  literal  transcript  in  determining  piracy,  450,  451,  454. 

whether  in  case  of  forfeiture  of  books,  488. 
literal,  and  not  substantial,  meant  in  case  of  delivery  to  librarian  of 
Congress,  490. 
COPYING, 

how  far  allowed  from  copyrighted  books,  386.     See  Fair  Uses. 
from  protected  work  essential  to  piracy,  399. 
how  piratical  ascertained,  428-432,  512-515. 

See  Originality;  Similarity;  Piracy. 
COPYRIGHT, 

theories  concerning  nature  of,  2. 
defined,  97,  100. 


INDEX.  719 

COPYRIGHT,  —  continued. 

statutory,  distinguished  from  common-law,  100. 

distinguished  from  playright,  553,  601. 

does  not  embrace  right  of  representation,  553. 

•when  lost  by  publication  in  print,  100,  101.     See  Publication. 

not  defeated  by  performance  of  play  before  secured,  285,  554,  566, 
606,  617. 

not  affected  by  performance  of  play  after  secured,  606. 

begins  with  publication,  does  not  exist  in  unpublished  works,  283. 

protects  all  contents  of  book,  144,  178,  411. 

may  exist  in  part  of  book,  144. 

territorial  extent  of  protection,  298. 

not  violated  by  oral  use  of  work,  100,  475,  625. 

indivisible  as  to  locality,  but  may  be  assigned  for  any  country,  337. 

whether  divisible  as  to  time,  337. 

joint  owners  of,  381. 

prima  facie  evidence,  498,  499. 

may  be  lost  after  once  secured,  400,  607. 

perpetual.     See  Perpetual  Copyright. 

history  of.     See  Literary  Property. 

in  what,  140-180. 

abridgments.  158;  books,  140;  part  of  book,  144;  busts,  179; 
cards,  178;  casts,  179;  catalogues,  153,  167;  chromos,  178,  180; 
compilations,  152 ;  cuts,  177 ;  designs,  180 ;  diagrams,  143,  178, 
210;  digests,  158,  160;  directories,  153;  dramatic  compositions, 
175;  dramatizations,  158,  175;  drawings,  178-180;  engravings, 
177;  figures,  tables  of,  153,  207;  law  reports,  159;  letters,  424, 
note  1;  lithographs,  177;  magazines,  168;  maps,  174;  models, 
180;  musical  compositions,  175:  new  editions,  145;  news- 
papers, 168;  paintings,  178;  periodicals,  168;  photographs 
and  negatives,  178;  plans,  174;  prints,  177;  publications  used 
for  advertising,  164;  public  documents,  164;  sculpture,  178; 
statuary,  180;  statues,  180;  statutes,  164;  translations,  158, 
175. 

not  in, 

advertisements  without  other  value,  164,  178,  211;  arrangement 
alone,  156,  205,425  (5ee  Compilations);  blasphemous  pub- 
lications, 182,  187;  common  materials,  156,  424  {See  Compila- 
tions) ;  ideas,  sentiments,  thoughts,  without  association,  98, 
385;  immoral  productions,  181,  185;  labels,  143,  211;  libellous 
publications,  181;  plan  of  work,  205,  425;  scoring  sheet,  144, 
211 ;  seditious  publications,  181 ;  subject  or  mode  of  treatment, 
205;  title  of  publication,  145;  when  false  representations  as 
to  authorship  are  made,  196 ;  works  not  innocent,  181 ;  worth- 
less things,  211. 

qualities  essential  to,  181-213. 

innocence,  181-198.  See  Blasphemous  Publications;  False 
Represkntations  as  to  Authorship;  Immoral  Produc- 
tions; Libellous  Publications;  Seditious  Publications, 


720  INDEX. 

COPYRIGHT,  —  continued. 

originality,  198-208.     See  Originality. 

production  must  be  material  contribution  to  useful  knowledge, 
208-213.     See  Literary  Merit;  Quantity;  Value. 
in  whom,   214-261.      See  Assignee;  Author;    Employer  and 
EMPLOYfe;    Foreign    Authors;    International    Copyright; 
Resident. 
how  secured,  262-300. 

summary  of  the  law,  297. 
jSee  Publication;  Registration;  Statutory  Requisites. 
duration  of,  299.     See  Extension;  Renewal. 
how  assigned,  301-342.     See  Transfer  of  Copyright. 
agreements  concerning,  343-382.     See  Agreements  between  Au- 
thors AND  Publishers. 
lawful  uses  of,  386-399.     See  Fair  Uses. 
violation  of,  383-432.     See  Piracy. 

in  case  of  abridgments,  translations,  and  dramatizations,  433- 
467.    See  Abridgments;  Dramatizations;  Translations. 
remedies  in  law  for  violation  of,  468-495.    See  Damages  ;  Forfeit- 
ures; Penalties;  Remedies  in  Law. 
remedies  in   equity  for  violation   of,  496-543.     See  Accocnt  op 

Profits;  Discovery;  Injunction;  Remedies  in  Equity. 
in  what  court  redress  sought,  544-552.     See  Jurisdiction. 
Canadian,  298,  note  3. 
colonial,  298,  note  3. 

international,  214-220.     See  International  Copyright. 
statutes  relating  to.     See  Statutes  in  Force. 

See  Literary  Property;  Playkight. 

COPYRIGHT  NOTICE.     See  Notice  of  Entry  op  Copyright. 

COPYRIGHT  STATUTES.     See  Statutes  in  Force. 

COSTUMES, 

not  essential  to  dramatic  performance,  627. 

COVEN.^NT, 

violation  of,  may  be  restrained  by  injunction,  541-543. 
See  Specific  Performance  of  Agreements;    Agreements 
between  Authors  and  Publishers. 

CORRESPONDENCE.     See  Letters. 

COURTS, 

opinions  of.     See  Law  Reports. 
jurisdiction  of.     See  Jurisdiction. 

CRIME, 

no  copyright  in  publications  encouraging,  182. 

CRITICISM, 

how  far  extracts  from  copyrighted  works  may  be  made  for,  386. 
See  Fair  Uses. 


INDEX.  721 

CROWN  COPIES.     See  Pkerogative  Copisa. 

CUSTOM, 

remedies  in  equity  not  prejudiced  by,  506. 

CUSTOMS   ACTS, 

provisions  of,  relating  to  books,  298,  note  3,  472,  note  1. 

CUTS.     See  Engravings. 

CYCLOPEDIAS, 

special  provisions  of  5  &  6  Vict.  c.  45,  concerning  copyright  in,  170. 

owners  empowered  to  secure  copyright  in  articles  written  by  em- 
ployes, 243-247.     See  Pkriodicals. 

registration,  172,  280. 
agreements  between  author  and  publisher,  as  to  articles  in,  259,  379. 


D. 

DAMAGES, 

question  of,  at  common  law,  affected  by  character  of  production,  114. 
proof  of,  not  essential  to  relief  in  equity,  521. 
account  of  profits  only  approximate  measure  of,  531. 
assessed  and  awarded  by  English  chancery  courts,  534. 
rule  of,  585. 

measure  of,  for  unlawful  performance  of  unpublished  play,  585. 
what  prescribed  for  violation  of  statutory  playright,  626. 
when  plaintiff  not  bound  to  show  actual,  633. 

DAMAGES,   ACTION  FOR, 

for  violation  of  common-law  rights,  107. 

unlicensed  publication  of  letters,  131. 
brought  under  statute  of  Anne  without  registration,  278. 

but  not  under  5  &  6  Vict.  c.  45,  278. 
in  case  of  books  first  given  by  41  Geo.  III.  c.  107,  468. 
against  unlawful  printing  of  books,  importing,  selling,  or  letting  to 

hire,  given  by  5  &  6  Vict.  c.  45,  468. 
lies  by  common  law  when  not  provided  by  statute,  473,  493. 
for  gratuitous  circulation,  474,  487,  493. 
for  piracy  of  engravings  and  prints  in  England,  478. 

sculpture,  given  by  54  Geo.  III.  c.  56,  485. 
in  case  of  books,  first  given  in  United  States  by  statute  of  1870,  486. 
under  revised  statutes,  for  piracy  of  books,  486. 

maps,  musical  compositions,  and  works  of  art,  493. 

unlicensed  publication  of  manuscripts,  124,  494. 

must  be  brought  in  federal  court,  545. 

common-law,  in  state  court  unless  federal  court  has  general  juris- 
diction, 545. 
for  unlawful  performance  of  unpublished  play,  585. 

46 


722  INDEX. 

DAMAGES,   ACTION  FOB,,— continued. 
for  violation  of  statutory  playright,  625. 

may  be  maintained  when  material  part  of  play  taken,  633,  634. 
See  JoKisDiCTiON ;  Remedies  in  Law;  Limitation  of  Actions. 

DECISIONS.     See  Law  Reports. 

DEDICATION.     See  Performance;  Publication. 

DEFINITIONS, 

abridgment,  158,  441;  acting  right,  553;  assignee,  240,  312;  assign- 
ment distinguished  from  license,  305 ;  book,  45,  140 ;  British  do- 
minions, 298;  copy,  early  use  to  signify  copyright,  61;  in  deter- 
mining piracy,  385,  407,  450,  454;  with  reference  to  forfeitures, 
488;  with  reference  to  delivery  of  books,  490;  copyright,  100;  dis- 
tinguished from  playright,  553,  601,  625;  dramatic  composition, 
587;  dramatic  copyright,  553;  dramatic  piece,  586;  infringement, 
383;  license  distinguished  from  assignment,  305;  literary  property, 
97;  originality,  198;  performance,  unlawful,  627;  piracy,  383;  place 
of  dramatic  entertainment,  628;  plagiarism,  383;  playright,  553, 
601,  625;  publication,  common  law,  115;  publication,  statutory, 
285;  resident,  233;  stageright,  553;  translation,  451;  United 
Kingdom,  298. 

DELAY.     See  Acquiescence. 

DELIVERY  OF  COPIES.     See  Librarian  op  Congress;  Libraries; 
Statutory  Requisites. 

DELIVERY  OF  LECTURES.    See  Lectures  ;  Reading,  Public. 

DESIGNS, 

to  be  perfected  as  works  of  fine  art  may  be  copyrighted  in  United 
States,  180. 
foreign  by  resident  owner,  231,  232. 
may  be  copyrighted  in  England,  180. 
statutory  remedies  in  United  States  for  infringement,  491-494.     See 

Remedies  in  Law. 
U.  S.  statute  relating  to,  698. 

DIAGRAMS, 

subject  of  copyright,  143,  178,  210. 

DICTIONARIES, 

subject  of  copyright,  153. 

what  use  may  be  made  of  copyrighted,  397.     See  Fair  Uses. 

DIGESTS, 

may  be  copyrighted,  158,  160.     See  Abridgments. 

DIRECTORIES, 

subject  of  copyright,  153. 

test  of  originality,  207. 

what  use  may  be  made  of  copyrighted,  394,  396.     See  Fair  Uses. 


INDEX.  723 

DIRECTORIES,  —  continued. 
piracy  in  case  of,  416-420. 

See  Compilations. 

DISCOVERY, 

remedy  ia  equity,  497. 

plaintiff  not  entitled  to,  unless  forfeitures    and  penalties  waived, 

534. 
plaintiff  entitled  te  discovery  of  sources  from  which  defendant's  book 

compiled,  534. 
in  case  of  common-law  playright,  585. 
in  case  of  statutory  playright,  625. 

DISRAELI,   BENJAMIN, 

speech  in  favor  of  copyright  extension,  82. 

DISTRICT   COURTS.     See  Jurisdiction. 

DOCUMENTS.     See  Public  Documents. 

DRAMATIC   COMPOSITIONS, 

may  be  copyrighted  as  books,  175. 

joint  authors  of,  237,  624. 

written  by  one  person  employed  by  another,  249,  251,  257,  624.     See 

Employer  and  Employe. 
piracy  to  dramatize,  462.     See  Dramatizations. 

what  is  a  dramatic  composition  in  such  case,  462-465. 
improvements  or  changes  made  in,  give  no  right  to  use,  464. 
performance  of,  not  violation  of  copyright,  475,  601. 
common-law  playright  in  linpublished,  553-585.     See  Playright. 
statutory  playright  in  published,  in  United  States,  and  printed  and 

manuscript,  iu  England.     See  Playright. 
what  are,  within  meaning  of  statute,  586-600. 

defined  by  5  &  6  Vict.  c.  45,  586. 
not  by  U.  S.  Statute,  586. 

ordinary  meaning,  586. 

comprehensive  meaning,  587-590. 

what  meaning  should  be  given  to,  as  used  in  statute,  590. 

broad  meaning  given  by  English  courts,  591-593. 

songs  held  to  be,  592. 

pantomime  is,  588,  593. 

whether   U.    S.    courts    should  adopt   English  interpretation, 
593. 
how  far  as  to  songs,  593. 

scene  chiefly  pantomime  held  to  be,  594,  635-637. 

whether  spectacular  pieces  are,  595. 

scenic  effects,  596. 

must  be  original  and  innocent,  596. 

dramatizations,  adaptations,  and  translations  are,  596. 

test  of  originality  in  dramatizations,  597. 


724  INDEX. 

DRAMATIC   C  OMPO SITIONS,  —  continued. 

musical  compositions  consisting  of  words  and  music  may  be,  598. 
instrumental  music  not,  599. 
in  England  no  statutory  remedy  for  unlicensed  printing  of,  626. 
how  rights  in,  affected  by  public  performance.     See  Performance. 
how  assigned.     See  Playright. 
remedies  for  violation  of.     See  Playright. 
of  foreign  dramatists.     See  Foreign  Authors. 
See  Dramatizations;  Musical  Compositions;  Publication; 

Translations. 
statutes  relating  to,  American,  698. 

English.     See  Statutes  in  Force. 

DRAMATIC  COPYRIGHT, 
meaning  of,  553. 

See  Playright. 

DRAMATIC   ENTERTAINMENT, 

playright  in,  given  by  3  &  4  Will.  IV.  c.  15,  and  5  &  6  Vict.  c.  45,  586. 
See  Dramatic  Compositions. 
DRAMATIC  PIECE, 

defined  by  5  &  6  Vict.  c.  45,  486. 

See  Dramatic  Compositions. 

DRAMATIC   REPRESENTATION.     See  Performance. 

DRAMATIZATIONS, 

prohibition  of  unauthorized,   recommended  by  royal  commission- 
ers, 52. 
may  be  copyrighted  as  books,  158,  175. 

right  of  publishing  and  representing  in  England  extended  to  foreign 
dramatists  by  International  Copyright  Acts,  215. 
how  secured,  215,  217,  218,  282. 
of  foreign  works  may  be  copyrighted  in  United  States,  231. 
right  in,  maybe  assigned  independently  of  copyright  in  original,  334. 
considered  with  reference  to  piracy,  433,  434,  456-467. 
right  of,  may  be  reserved  in  United  States,  445,  456. 
publication  of  unlicensed,  unlawful,  456. 
for  performance,  law  as  expounded  in  England,  456-458. 
of  novel  for  performance,  held,  not  piracy  of  novel,  but  of  earlier 

play,  457,  458. 
held  that  when  author  publishes  story  and  afterward  dramatizes 
it,  any  person  may  dramatize  story  for  performance,  457,  458. 
law  expounded  in  England  summarized,  4o8,  465. 

if  sound,  must  be  adopted  in  United  States,  458. 
law  as  construed  in  England  criticised,  458-461. 

if  unlicensed  dramatization  does  not  infringe  novel,  it  can- 
not infringe  author's  play,  459. 
immaterial  whether  author's  play  precedes  or  follows  novel, 

459,  460. 
English  decisions  inconsistent,  461. 
when  unlicensed,  for  performance,  piratical,  461-467, 


INDEX.  725 

DRAMATIZATIONS,  —  continued. 

depends  on  whether  original  is  a  dramatic  composition 

■within  meaning  of  statute,  462,  465. 
what  should  be  considered  a  dramatic  composition,  462- 

465. 
changes  and  improvements  in  dramatic  composition  give  no 

right  to  use,  464. 
when  playright  in  dramatization  is  infringed  by  dramatizing 
novel,  466. 
common-law  playright  in  unpublished,  580. 
of  foreign  play,  rights  of  assignee  for  United  States,  582-584. 
entitled  to  statutory  playright,  596. 
test  of  originality,  200,  597. 

one,  not  piracy  of  another,  unless  unlawful  copying,  638. 
See  Dramatic  Compositions;  Playright. 

DRAWINGS, 

common-law  property  in  unpublished,  102. 

violated   by  exhibiting    copies    and    selling    descriptive   cata- 
logues, 109. 
not  lost  by  private  circulation  of  copies,  121. 
Great  Britain. 

copyright  secured  by  25  &  26  Vict.  c.  68,  178,  179. 
provisions  of  international  copyright  acts  extended  to  179. 
foreign  author  not  entitled  to  copyright  unless  resident  within 

British  dominions,  230. 
made  by  one  person  for  another,  255. 
registration,  281. 

assignments  must  be  registered,  281,  817. 
no  provision  for  transfer  by  registration,  317. 
duration  of  copyright,  300. 
mode  of  assignment,  317. 
when  made  for  another,  or  sold,  agreement  as  to  copyright  to  be 

in  writing,  317. 
unlicensed  exhibition  prohibited,  475,  482,  483. 

also  letting  to  hire,  483. 
statutory  remedies  for  infringement,  482-485.     See  Remedies 

IN  Law. 
statute  governing  copyright  in,  691. 
United  States. 

copyright  secured  by  statute,  180. 

foreign,  may  be  copyrighted  by  resident  owner,  231,  232. 
duration  of  copyright,  300. 

remedies  for  infringement,  491-494.    See  Remedies  in  Law. 
statute  governing  copyright  in,  698. 
See  Engravings. 
DURATION   OF  COPYRIGHT, 
in  Great  Britain,  300. 

under  international  acts,  215. 


726  INDEX. 

DURATION   OF   COFYmGRT,  — continued. 

evidence  taken  before  royal  commissioners  as  to,  79,  note. 
in  United  States,  299. 

dates  from  recording  title,  268. 
See  Extension  of  Copyright;  Renewal  op  Copyright. 

DURATION   OF  PLAYRIGHT, 
in  Great  Britain,  601,  603. 

under  international  acts,  215. 
in  United  States,  617. 

E. 

EDITIONS,  NEW,  REVISED,  &o. 

when  protected  by  original  copyright,  145. 

when  subject  of  new  copyright,  146,  147. 

when  copyright  in,  dates  from,  148. 

no  limit  to  number  of,  148. 

of  copyrighted  book,  imlawful  without  authority,   148. 

what  in,  is  protected,  148,  149. 

is  change  of  one  word  enough  to  create  title  to  copyright  in,  149. 

title  to  copyright  acquired  by  annotations,  &c.,  200. 

extent  of  revision  essential  to  copyright,  212. 

employer  entitled  to  copyright  in,  255. 

statutory  requisites  in  case  of,  269. 

whether  original  copyright  notice  must  be  printed  in  revised,  270-274. 

two  copies  of  best,  must  be  delivered  to  librarian  of  Congress  under 
penalty  for  failure,  275. 

delivery  of  copies  of  best,  not  essential  to  copyright,  275. 

what  is  a,  355  note,  357  note  1,  358,  359,  378. 

copies  printed  to  replace  those  destroyed  by  fire  not  a,  378. 

printing,  without  copyright  notice  may  defeat  copyright  in  orig- 
inal, 400. 

rights  of  authors  and  publishers  as  to.  See  Agkebmbnts  between 
Authors  and  Publishers. 

EDITOR, 

name  of,  not  part  of  title,  380. 

EMINENT   DOMAIN, 

principles  of,  govern  literary  property,  17-20. 

EMPLOYER   AND   EMPLOYE, 

when  letters  written  by  latter  are  property  of  former,  132. 
judicial  decisions  property  of  government,  161-163. 

also  statutes  and  public  documents,  164. 
former  may  secure  copyright  for  what  is  written  by  latter,  243. 
owners  of  cyclopaedias  and  periodicals  empowered  by  English  statute 

to  secure  copyright  in  articles  written  by  employes,  243-247.     See 

Periodicals. 


INDEX.  727 

EMBLOYER   AND   EMFLOY^,  — continued. 

what  publications  are  within  statute,  247. 
general  publications  in  England,  247. 
authorities  concerning,  248-256. 
music  composed  for  drama,  249,  251. 
works  of  art  in  England.  254,  255. 
former  may  secure  copyright  in  United  States,  255. 
when  government  owner  of  property  in  law  reports  made  by  reporter 

employed,  255. 
"proprietor"  expressly  empowered   to   secure  copyright  by  U.   S. 

statute,  257. 
in  United  States  no  copyright  in  work  of  foreign  author  employed, 

257. 
employer  not  entitled  to  copyright  by  mere  fact  of  employment,  257. 

but  only  by  agreement,  258. 
cyclopaedias,  periodicals,  &c.,  in  United  States,  259. 
dramatic  compositions,  624. 

ENCYCLOP.a;DIAS.     See  Cyclopaedias. 

ENGRAVINGS,   PRINTS,   AND   CUTS, 
common-law  property  in  unpublished,  102. 

violated  by  unlicensed  exhibition  of  copies,  109. 

not  lost  by  private  circulation  of  copies,  121. 
what  eifect  publication  of,  has  on  common-law  rights  in  painting, 

115  note  1,  119,  120,  286-288. 
Great  Britain. 

copyright  secured  by  statute,  177. 

maps  governed  by  different  statute,  174. 

lithographs  within  statute,  177. 

foreign,  protected  by  international  copyright  acts,  214. 

rights  of  foreign  artists,  230. 

employer  and  employe,  254. 

how  copyright  secured,  280.     See  Registration. 

duration  of  copyright,  300. 

mode  of  assignment,  316. 

unlicensed  exhibition  held  not  violation  of  17  Geo.  III.  c.  57,  475 

whether  unlicensed  copying  of  engraving  is  piracy  of  painting, 
483,  484. 

remedies  for  infringement,  478-482.     See  Remedies  in  Law. 
United  States. 

copyright  secured  by  statute,  178. 

playing  cards  and  diagram  protected,  178. 
but  not  label  or  mere  advertisement,  178. 

how  copyright  secured,  265.     See  Statutouy  Requisites. 

duration  of  copyright,  300. 

remedies  for  infringement,  491-494.     See  Remedies  in  Law. 

whether  unlicensed  copying  of  engraving  is  piracy  of  painting, 
493. 

exhibition  of  copies  not  prohibited,  495. 


728  INDEX. 

ENGRAVINGS,   PRINTS,   AND    GUIS,  —  continued. 

without  art  value  not  protected  by  statute,  166,  168,  178. 

published  in  book  are  part  of  book,  144,  178. 

test  of  originality,  206. 

■whether  publication  of,  is  publication  of  painting  or  statue  within 

meaning  of  statute,  286-288. 
substantial  identity  test  of  piracy,  409. 

may  not  be  copied  without  authority  from  protected  book,  412. 
statutes  relating  to,  American,  698,  704. 

EngUsh.     See  Statutes  in  Force. 

ENTERTAINMENT.     5ee  Performance  ;  Reading,  Public. 

ENTRY  OF  COPYRIGHT.    See  Notice  of  Entry. 

EPHEMERAL  PUBLICATIONS, 

when  entitled  to  protection  by  injunction,  518-520. 
See  Injunction. 
EQUITABLE  TITLE, 

certified  copy  of  registration  prima  facie  proof  of,  278. 

and  so  is  copyright,  498,  499. 
acquired  by  agreement  to  assign,  322. 
may  vest  in  licensee,  337. 
not  sufiicient  to  maintain  action  at  law,  487. 
sufficient  in  court  of  equity,  500. 
what  is,  500. 

may  be  acquired  before  copyright  perfected,  268,  501. 
how  affected  by  plaintiff's  consent  to  publication,  501,  512. 
how  affected  by  plaintiff's   delay,  laches,   and  acquiescence,   504- 
512.     See  Acquiescence. 

See  Title  to  Copyright. 

EQUITY.     See  Injunction  ;  Remedies  in  Equity. 

ERRORS, 

common,  test  of  copying,  428. 

See  Piracy. 
ETCHINGS.    See  Drawings. 

EVIDENCE, 

certified  copy  of  registration  prima  facie  proof  of  ownership,  subject 
to  rebuttal,  278. 
and  so  of  assignment,  301. 
when  question  whether  new  edition  called  for  determined  by,  364. 
similarity  creates  presumption  of  copying,  400. 

which  must  be  overcome  by  defendant,  430. 
common  errors  test  of  piracy,  428. 

how  piratical  copying  ascertained,  428-432,  512-515.      See  Piracy. 
defences  of  piracy,  499. 

copyright  prima /acie  proof  of  plaintiff's  title,  498,  499. 
plaintiff  may  plead  general  issue  and  give  special  matter  in,  499. 
when  defendant  in  equity  pleads  plaintiff's  acquiescence   he  must 
show  knowledge  of  piracy,  505. 


INDEX.  729 

EVIDENCE,  —  continued. 

plaintiff  need  not  specify  piratical  parts;  general  allegation  sufficient, 

512,  513. 
defendant  should  produce  manuscript,  515. 
defendant's  case  prejudiced  by  false  denial,  515. 
how  profits  of  past  sales  ascertained,  533. 
•when  defendant  must  prove  authorized  publication,  579. 

EXECUTION. 

copyright  not  subject  to  seizure  on,  325. 

EXHIBITION, 

unlicensed,  violation  of  common-law  rights,  109. 

of  works  of  art,  what  effect  on  common-law  rights,  119,  120. 

whether  a  publication  within  meaning  of  statute,  286-288. 

of  engraving  held  not  violation  of  17  Geo.  III.  c.  57,  475. 

of  paintings,  drawings,  and  photographs,  prohibited  by  25  «&  26  Vict. 

c.  68,  475,  482,  483. 
unlicensed,  of  sculpture,  whether  unlawful  under  English  statute,  475. 
not  prohibited  by  U.  S.  statute,  495. 

See  Publication. 

EXTENSION  OF  COPYRIGHT, 

further,  recommended  by  royal  commissioners,  52. 

from  fourteen  to  twenty-eight  years  in  books  in  England,  73. 

twenty-eight  to  forty-two,  74. 
efforts  for,  early  in  reign  of  Victoria,  74-83. 
from  fourteen  to  twenty-eight  years  in  United  States,  90. 
aiter  author's  death  in  England,  300. 

See  Duration  of  CopyBiGHx;  Renewal  of  Copyright. 

EXTRACTS, 

how  far  may  be  made  from  copyrighted  works,  388-393. 
See  Fair  Uses. 


F. 

FAIR  USES  OF  COPYRIGHTED  WORKS, 
by  quotation,  386-393. 

extracts  for  criticism,  387. 

test  of  fair  use,  388. 
question  of  fair  use  not  affected  by  unfavorable  criticism,  388. 
whether  entire  work  may  be  taken,  406,  407. 
extracts  for  other  purposes  than  criticism,  388. 

when  text-writer  may  quote  from  copyrighted  work,  389. 
for  works  whose  object  is  different  from  that  of  protected 

one,  389, 
may  not  be  taken  too   extensively  to  illustrate  work  on 
poetry,  390. 


730  INDEX. 

PAIR   USES   OF    COPYRIGHTED  WORKS,  — continued. 
nor  for  biography,  390. 
nor  to  illustrate  career  of  person,  391. 
■when  no  objection  to  plan  of  work,  393. 
when  plan  unlawful,  393. 
otherwise  than  by  q^uotation,  394-399. 
general  principles,  394. 
rule  in  case  of  directories,  396. 
descriptive  catalogue,  396. 
work  on  ethnology,  396. 
dictionary,  397. 
statistics,  398. 
general  test  of,  398. 

FALSE  REPRESENTATIONS  AS  TO  AUTHORSHIP, 
defeat  copyright,  182, 196. 

distinction  between,  and  names  innocently  assumed,  197. 
publisher  liable  for  injury  to  author,  377. 
injunction  may  be  granted  in  case  of,  198,  539. 

FARCE, 

playright  in,  given  by  3  &  4  Will.  IV.  c.  15,  and   5  &  6  Vict.  c.  45, 
586.     See  Dramatic  Compositions. 

FEDERAL  COURTS.     See  Jurisdiction. 

FEES, 

for  securing  copyright  in  United  States,  276. 
recording  and  certifying  assignments,  276. 
registration,  278. 
assignment  of  copyright  by  registration,  301. 

FIGURES, 

tables  of,  may  be  copyrighted,  153,  207. 
what  is  fair  use  of  copyrighted,  398. 

FINE  ARTS.    See  Art,  Works  of. 

FOREIGN  AUTHORS, 

refusal  of  Congress  to  protect  works  of,  92-95. 

royal  commissioners  recommend  that  protection  be  extended  to,  95. 

rights  at  common  law  same  as  those  of  citizen,  106. 

whether  publication  of  manuscript  of,  is  prohibited  by  U.  S.  statute, 

125. 
rights  of,  in  England,  85,  220-231.     See  International  Copyright. 

resident  abroad  not  entitled  to  copyright,  223. 

judicial  construction  of  statute  criticised,  226. 

resident  within  British  dominions  at  time  of  publication  may 
secure  copyright,  229. 

law  summarized,  230. 

works  of  art,  230. 


INDEX.  731 

FOREIGN   AUTHORS,— conimued. 
rights  of,  in  United  States,  231-235. 

not  entitled  to  copyright  unless  residents,  231. 

statutory  prohibition  not  extended  to  certain  works  of  art,  231. 

translations,  abridgments  and  dramatizations  made  by  citizens 

from  foreign  works  entitled  to  protection,  232. 
joint  native  and,  232. 
meaning  of  resident,  233. 
whether  foreign  assignee  of  native  author  is  entitled  to  copyright, 

235. 
no  copyright  in  works  of,  employed,  257. 
common-law  rights  in  unpublished  play  same  as  those  of  native, 

581. 
rights  of  assignee  of  play  for  United  States,  482-484. 
plays  of,  not  entitled  to  statutory  playright  in  United  States,  598. 
on  what  conditions  statutory  playright  acquired  by  in  England,  604. 

FOREIGN  REPRINTS  ACT, 
provisions  of,  298,  note  3. 

FORFEITURES, 
Great  Britain. 

not  recoverable  under  statute  of  Anne  without  registration,  278. 
what  prescribed  by  former  statutes  in  case  of  books,  468. 
under  5  &  6  Vict  c.  45  owner  may  sue  for  piratical  copies,  469, 
471. 
copies  unlawfully  imported,  to  be  seized  and  destroyed,  472. 
incongruities  of  statute,  472,  note  1. 
maps  same  as  books,  482. 
piratical  copies  of  engravings  and  plates  to  owner,  to  be  de- 
stroyed, 478. 
of  paintings,  drawings,  and  photographs,  and  negatives  to 
owner,  483. 
United  States. 

what  prescribed  in  case  of  books  by  acts  of  1790  and  1831,  486. 
owner  may  recover  piratical  copies  of  books  under  revised  stat- 
ute, 486. 
also  when  gratuitously  circulated,  487. 
whether  copies  subject  to,  when  only  part  of  book  piratical,  488- 

490. 
of  copies  and  plates  of  maps,  charts,  musical  compositions,  and 

works  of  art,  491. 
action  for,  must  be  brought  in  federal  court,  545. 
may  be  enforced  against  defendant  who  has  not  written  consent  of 

owner,  501. 
must  be  waived  when  discovery  in  equity  sought,  534. 
statutory,  must  be  sued  for  in  court  of  law,  517,  518,  550. 
in  two  instances  delivery  of  ordered  by  equity,  471,   547,  note  3, 
549,  note  1. 


732  INDEX. 

FORFEITURES,  —canJinuet?. 

■whether  at  common  law  plaintiff  entitled  to,  and  whether  delivery 

ordered  by  equity,  549-552. 
See  JuKiSDicTioN ;  Limitation  op  Actions;  Remedies  in  Law. 

FRAUD, 

injunctions  in  case  of.    See  Injunction. 

FRAUDS,  STATUTE  OF, 

governs  literary  contracts,  381. 

FRAUDULENT  REPRESENTATIONS.     See  False  Representations 
AS  TO  Authorship. 

G. 

GOVERNMENT, 

may  prevent  publication  of  official  correspondence,  132. 
may  copyright  judicial  decisions,  161,  255. 
may  copyright  statutes  and  public  documents,  164. 
rights  of,  governed  by  same  principles  as  those  of  individuals,  242. 
is  owner  of  property  in  law  reports  prepared  by  reporter  employed, 
255. 
and  other  official  productions,  132,  259. 
See  Employee  and  Employe  ;    Law  Reports  ;    Prerogative  Copies. 

GRAMMAR,  LATIN, 

prerogative  right  to,  claimed  by  crown,  62-65. 

GRATUITOUS  CIRCULATION, 

when  a  publication,  291. 

action  for  damages  will  lie  under  5  &  6  Vict.  c.  45,  474. 

wrong-doer  liable  for  under  U.  S.  statute,  487,  488,  493. 

GREAT  BRITAIN,  STATUTES  OF.    See  Statutes  in  Force. 

GUILTY  KNOWLEDGE.    See  Knowledge  op  Piracy. 


H. . 
HALLAM,  HENRY, 

on  early  censorship  of  the  press,  55,  note  1. 
HIRE, 

letting  copyright  boots  to,  prohibited  by  5  &  6  Vict.  c.  45,  471. 
letting  paintings,  drawings,  and  photographs  to,  prohibited  by  25  & 
26  Vict.  c.  68,  482,  483. 

HISTORY   OF  LITERARY  PROPERTY.     See  Literary  Property, 

History  of. 

HOOD,  THOMAS, 

on  literary  property,  49,  note  3. 
petition  concerning  copyright,  77,  note. 


INDEX.  733 


I. 

IDEAS, 

no  copyright  in,  -without  association,  98,  385. 
IDENTIFICATION, 

literary  property  capable  of,  7,  98. 
IDENTITY, 

not  inconsistent  with  originality,  205-208. 

presumptive  evidence  of  piracy,  400. 

substantial  test  of  piracy,  408. 

See  Originality  ;   Piracy  ;   Similarity. 

IGNORANCE.     See  Knowledge  of  Piracy. 

ILLUSTRATIONS.    See  Engravings;  Photographs. 

IMITATIONS, 

of  foreign  plays,  provisions  of  international  copyright  acts  concern- 
ing, 215,  218. 

See  Originality  ;   Similarity. 

IMMORAL  PRODUCTIONS, 

whether  author  may  prevent  publication  of  manuscripts,  112-114. 

or  recover  damages,  114. 
not  entitled  to  copyright,  181,  185. 
contracts  concerning,  not  enforceable,  378,  379. 
injunctions  not  granted  against,  540. 
unpublished  plays  not  protected  at  common  law,  581. 
no  statutory  playright  in,  596. 

IMPORTER, 

when  liable.     (See  Consent  of  Owner;  Knowledge  of  Piracy. 
to  what  liable.     See  Damages;    Forfeitures;    Penalties;    Reme- 
dies IN  Law. 
IMPORTING,  UNLAWFUL, 

prohibited  by  international  copyright  acts,  219. 

of  copyrighted  books  into  the  colonies,  regulations  concerning,  298, 

note  3. 
of  books  prohibited  by  early  English  statutes,  468. 
action  for  damages  against,  given  by  5  &  6  Vict.  o.  45,  469. 
ignorance  no  defence,  470. 
forfeiture  of  copies  to  owner,  471. 
copies  to  be  seized  and  destroyed,  472. 
incongruities  of  statute,  472,  note  1. 
provisions  of  customs  laws  concerning,  472,  note  1. 
for  gratuitous  circulation,  unlawful,  474. 
penalties,  forfeitures,  and  damages,  prescribed  by  English  statute 

in  case  of  engravings  and  prints,  478. 
of  paintings,  drawings,  and  photographs,  prohibited  by  25  &  26  Vict. 

c.  68,  485. 
provisions  of  U.  S.  statute  against,  486,  491. 

See  Forfeitures;  Penalties;  Remedies  in  Law. 


734  INDEX. 

INDECENT  PUBLICATIONS.    See  Immoral  Productions. 

INFRINGEMENT, 

of  copyright.     See    Injunction;    Piracy;  Remedies    in   Equity; 

Remediks  in  Law. 
of  playright.     See  Playright,  Remedies  for  Violation  of. 

INJUNCTION, 

in  case  of  violation  of  common-law  rights  in  unpublished  works,  107. 
productions  without  literary  value,  111. 
works  not  innocent,  112-114.   , 

restraining  unauthorized  publication  of  letters,  127-139. 
on  ground  of  property,  128, 129. 
against  publication  of  manuscripts  in  violation  of  statute,  124. 
judicial  opiuion  that  limitation  clause  of  5  &  6  Vict.  c.  45  does  not 

apply  to,  476. 
principle  on  which  granted,  496. 
not  granted  before  registration,  278,  501. 

may  be  granted  in  United  States  before  legal  title  perfected,  268,  501. 
temporary,  515-521. 

on  what  principle  and  for  how  long  granted,  515. 

when  granted,  516. 

when  not  granted,  517. 

in  case  of  ephemeral  publications,  when  not  granted,  518. 

when  granted,  519. 
whether  refused  because  piratical  may  easily  be  replaced  by  inno- 
cent matter,  519. 
account  of  profits  may  be  ordered  when  refused,  521. 
permanent,  521-531. 

granted  when  material  piracy  clear,  521. 

may  be  refused  in  doubtful  case,  521. 

proof  of  actual  damage  not  essential,  521. 

granted  when  action  for  penalties  cannot  be  maintained,  522. 

may  be  granted  against  any  wrong-doer,  523. 

but  two  without  privity  cannot  be  joined,  523. 
may  be  refused  when  piracy  slight,  523. 
when  consequences  to  defendant  considered,  524. 
illustrations  of  material  amount  of  piratical  matter,  525-527. 
not  granted  to  protect  what  is  utterly  insignificant,  527. 
where  value  small  court  may  favor  plaintiff,  527. 
granted  only  against  piratical  part,  527. 
entire  work  may  be  restrained  when  piratical  part  cannot  be 

ascertained,  529. 
form  of,  530. 
on  other  grounds  than  infringement  of  copyright,  585-543. 
protecting  titles  of  publications,  535. 

refused  where  plaintiff  has  simply  advertised  future  pub- 
lication, 536. 
breach  of  trust,  537,  538. 


INDEX.  735 

INJUNCTION,  —conimiierf. 

false  representations  as  to  authorship,  539. 
external  likeness  of  publications,  540. 

not  granted  against  libellous,  immoral,  or  blasphemous  publica- 
tions, 540. 
restraining  author  and  third  persons  from  publishing  in  violation 

of  covenant,  541. 
violation  of  negative  covenant  restrained  though  agreement  can- 
not be  enforced  affirmatively,  542. 
circuit  and  certain  district  courts  empowered  to  grant,  544. 
against  violation  of  common-law  playright,  585. 
against  violation  of  statutory  playright,  625. 

See  Acquiescence  ;  Remedies  in  Equity. 

INNOCENT, 

whether  unpublished  writings  must  be,  to  entitle  owner  to  protection 

at  common  law,  112-114. 
work  must  be,  to  be  entitled  to  copyright,  181-198. 
See   Intention;    Knowledge    op   Piracy;    Qualities  Essential   to 

Copyright. 

INTENTION, 

not  a  test  whether  limit  of  fair  quotation  exceeded,  388,  401. 

to  pirate  not  essential  to  piracy,  401,  638. 

may  aid  in  determining  whether  there  has  been  copying,  402. 

need  not  be  shown  in  printer  or  importer  under  5  &  6  Vict.  c.  45, 

470. 
when  must  be  shown  in  actions  under  U.  S.  statute  in  case  of  maps, 

musical  compositions,  and  works  of  art,  492. 
to  pirate  not  essential  in  case  of  playright,  638. 

INTERNATIONAL  COPYRIGHT, 

conventions  between  England  and  other  countries,  86. 
reports  by  Henry  Clay  and  Mr.  Baldwin  in  favor  of,  92,  93. 

by  Mr.  Morrill  against,  94. 
refusal  of  Congress  to  provide  for,  92-95. 

extension  to  all  countries  recommended  by  royal  commissioners,  95. 
extended  to  paintings,  drawings,  and  photographs,  179. 
provisions  of  English  statutes,  214r-220. 

protection  for  foreign  works  in  original  language,  214. 
translations,  215. 

foreign  dramatists  may  acquire  exclusive  right  of  publishing  and 
representing  translations  and  adaptations  of  their  works,  215. 

newspapers  and  periodicals,  216. 

statutory  requirements  in  case  of  translations,  217. 

translation  must  be  of  whole  work  and  honajide,  218. 

importing  piratical  copies  prohibited,  219. 

works  first  published  or  represented  abroad  not  entitled  to  copy- 
right except  under  international  acts,  220,  294,  605. 


736  INDEX. 

INTERNATIONAL   COPYRIGHT,  —  conlinued. 
registration,  281. 
whether  playright  in  unpublished  opera  secured  by  registration 

of  opera,  but  not  of  published  arrangements,  608-612. 
statutes  relating  to.     See  Statutes  in  Force. 
See  Colonial  Copyright. 

INTERNATIONAL  LITERARY  CONGRESS, 
affirm  perpetuity  of  literary  property,  52. 

INTESTACY, 

provision  in  English  statute  for  transfer  of  copyright  in  case  of,  302. 
opinion  that  copyright  may  pass  in,  315. 
law  in  United  States,  321,  322. 

INVENTIONS, 

argument  as  to  analogy  between,  and  literary  property,  15. 
Congress  empowered  by  the  constitution  to  pass  laws  for  the  protec- 
tion of,  88. 

IRELAND, 

provisions  of  English  acts  relating  to  copyright  in  books  extended 

to,  73. 
provisions  of  engravings  acts  extended  to,  177,  660. 

IRRELIGIOUS  WORKS.     See  Religion,  Works  against. 


J. 

JOHNSON,   SAMUEL, 

criticism  oa  the  law  relating  to  blasphemous  publications,  193,  note  1. 

JOINT   AUTHORS.     See  Author. 

JOINT  OWNERS   OF   COPYRIGHT, 

agreements  between,  concerning  publication,  381. 

JUDICATURE  ACTS  IN  ENGLAND, 

give  law  and  equity  courts  equal  powers,  498. 

JUDICIAL   OPINIONS.     See  Law  Reports. 

JURISDICTION, 

general  principles  of  equity  in  copyright  cases,  496. 
Great  Britain. 

chancery  courts  formerly  had  no  power   to   adjudicate  legal 

questions,  497. 
chancery  have  equal  powers  with  law  courts,  498. 
equity  courts  empowered  to  assess  and  award  damages,  498,  534. 
United  States. 

federal  equity  courts  determine  right  and  infringement,  498. 
former  statutes  governing  jurisdiction,  544. 
circuit  courts  have  original  jurisdiction  of  copyright  cases  with- 
out regard  to  citizenship  or  amount,  544. 


INDEX.  737 

JURISDICTION,  —con^inuerf. 

circuit  and  certain  district  courts  empowered  to  grant  injunc- 
tions, 544. 
actions  and  suits  for  violation  of  copyright  statute  must  be 

brought  in  federal  court,  545,  639. 
appeal  to  Supreme  Court  irrespective  of  amount,  545. 
common-law  cases  must  be  brought  in  State  court  unless  federal 

has  jurisdiction  on  general  grounds,  545. 
in  what  court  redress  for  unlicensed  publication  of  manuscript, 
545,  546. 
for  violation  of  common-law  playright,  545,  585. 
statutory  penalties  and  forfeitures  must  be  sued  for  in  court  of 
law,  547,  548,  550. 
in  two  instances  delivery  of  statutory  forfeitures  ordered  by  equity, 

471,  547  note  3,  549  note  1. 
whether  at  common  law  delivery  of  forfeitures  ordered  by  equity, 

549-552. 
U.  S.  statutes  relating  to,  705. 

See  Remedies  in  Equity. 


K. 

KNOWLEDGE   OF  PIRACY, 

ignorance  no  defence  in  absence  of  statutory  provision,  403. 
printer   or  importer  of  books  without,  liable   under  5   &  6  Viot. 
c.  45,  470. 
must  be  shown  in  seller,  471. 
seller  of  engravings  and  prints  not  liable  to  penalties  and  forfeitures 
under  8  Geo.  II.  c.  13  when  ignorant  of  piracy,  478. 
but  is  liable  to  damages  under  17  Geo.  III.  c.  57,  478. 
must  be  shown  to  subject  importer,  seller,  or  publisher  to  penalties 
and  forfeitures  under  25  &  26  Vict.  c.  68,  483. 
but  not  copyist  or  printer,  483. 
must  be  shown  in  printer,  publisher  or  importer,  but  not  seller  of 
book,  under  U.  S.  statute,  487. 
same  in  case  of  maps,  musical  compositions,  and  works  of  art, 
492. 
plaintiff    in    equity  not    responsible    for   delay  when  ignorant   of 

piracy,  505. 
does  not  amount  to  plaintiff's  consent,  508-512. 
ignorance  of  piracy  not  ground  for  refusing  injunction,  522. 
io-norance  no  defence  to  action  for  violation  of  playright,  638. 


L. 

LABELS, 

not  subject  of  copyright,  143,  211. 

47 


738  INDEX. 

LACHES.     See  Acquiescence. 

LATIN  GRAMMAR, 

prerogative  right  to,  claimed  by  crown,  62-65. 

LAW,   REMEDIES  IN.     See  Remedies  in  Law. 

LAWFUL  USES   OF   COPYRIGHTED  WORKS.     See  Fair  Uses. 

LAW  REPORTS, 

prerogative  right  to,  claimed  by  crown,  62-65,  162,  163. 
may  be  copyrighted,  159-163. 

matter  prepared  by  reporter,  159. 

abridgments,  digests,  and  selections  of  cases,  160. 

opinions  of  the  court,  160. 

may  be  copyrighted  by  government,  161. 
when    property  in   belongs  to  government  by  virtue  of  employ- 
ment, 255. 
agreement  with  State  reporter  concerning  publication  of,  862. 

LECTURES, 

right  of  publishing,  secured  by  statute  in  England,  83. 

unlicensed     delivery    of    manuscript,     violation    of    common-law 

rights,  107. 
common-law  rights  in  unpublished,  not  lost  by  public  delivery,  119. 

nor  by  private  circulation  of  copies,  121. 
statute  relating  to,  658. 

LEGAL    REPORTS.     See  Law  Reports. 

LEGAL   TITLE.     See  Title  to  Copyright. 

LETTERS, 

unpublished  protected  by  common  law,  127-139. 
property  in  writer  after  transmission,  127-132. 
right  to  prevent  publication,  one  of  property,  128,  129. 
writer  may  withhold  from  publication,  130. 
writer  may  prevent  any  public  use  of,  131. 
damages  in  case  of  publication,  131. 
when  property  not  in  writer,  132. 
government  owner  of  property  in  official,  132. 

and  may  prevent  publication,  132. 
without  literary  value,  132-135. 
literary  value  not  essential,  134,  135. 
rights  of  receiver,  13.5-139. 

whether   receiver    may   publish    for  purposes    of   vindication, 
136-139. 
copyright  in  published,  424,  note  1. 

LIBELLOUS  PUBLICATIONS, 

whether  author  may  prevent  unlicensed  publication  of  manuscript, 
112-114. 
or  recover  damages,  114. 


INDEX.  739 

LIBELLOUS   PUBLICATIONS,  —  continued. 
not  entitled  to  copyright,  181-185. 
contracts  concerning,  378,  379. 
injunctions  not  granted  against,  540. 

LIBRARIAN   OF  CONGRESS, 

sending  title  of  book,  &c.,  to,  and  delivery  of  two  copies,  essential  to 

copyright,  265.     See  Statutory  Rkqdisitbs. 
copies  of  every  volume  must  be  delivered,  274. 

copies  of  best  edition  must  be  delivered  under  penalty  for  failure,  275. 
penalty  not  applicable  to  work  not  entered  for  copyright,  275. 
delivery  of  copies  of  best  edition  not  essential  to  copyright,  275. 
fees  to  be  paid  to,  for  securing  copyright,  276. 
written  assignments  to  be  recorded  by,  276,  319. 
fees  to  be  paid  to,  for  recording  assignments,  276. 
copies  to  be  delivered  must  be  literal  and  not  merely  substantial,  490. 

LIBRARIES, 

delivery  of  books  to,  required  by  former  English  statutes,  88. 
by  5  &  6  Vict.  c.  45,  277. 
for  deposit  in  British  Museum,  by  international  copyright  acts, 

215,  217. 
by  former  U.  S.  statutes,  90,  91. 

by  U.  S.  revised  statute.     See  Lihrarian  of  Congress. 
to  Smithsonian  Institution  and  library  of  Congress  pursuant  to 
act  of  1846  not  essential  to  copyright,  265. 

LICENSE, 

distinction  between  and  assignment,  305,  337. 

to  publish  does  not  amount  to  assignment  of  copyright,  171,  172 
note  1,  305,  346,  358,  361,  303. 
See  Agreements  between  Authors  and  Publishers  ;  Consent 
OF  Owner. 

LICENSING    ACT    OF    CHARLES    II.      See    Literary   Property, 
History  of,  in  England. 

LIEBER,   FRANCIS, 

views  concerning  literary  property,  53,  note  3. 
abridgments,  445,  note  1. 
LIKENESS.     See  Identity;  Originality;  Similarity. 
LIMITATION   OF  ACTIONS, 
Great  Britain, 

one  year  for  any  offence  against  5  &  6  Vict.  o.  45,  475. 

whether  limitation  applies  only  in  case  of  forfeitures  and 

penalties,  476. 
judicial  opinion  that  it  does  not  extend  to  actions  for  damages 
or  injunctions,  476. 
under  engravings  statutes,  482. 

not  prescribed  in  case  of  paintings,  drawings,  and  photographs 
by  25  &  26  Vict.  c.  68,  485. 


740  INDEX. 

LIMITATION   OF   ACTIONS,  — coniinued. 
six  months  under  sculpture  act,  486. 
twelve  months  under  3  &  4  Will.  IV.  c.  15,  in  case  of  playright, 

638. 
United  States. 

two  years  under  revised  statute,  in  case  of  copyright,  494. 

no  defence  for  seller  that  copies  sold  were  not  printed  or  imported 

within  two  years,  495. 
prescribed  in  case  of  forfeitures  and  penalties,  but  not  actions  for 

damage  or  suits  in  equity,  495. 
what,  in  case  of  playright,  638. 

LIMITED  ASSIGNMENT.     5ee  Transfer  of  CdfcrRiGHT ;  Playright, 
Transfer  of. 

LITERARY  CONGRESS, 

international,  in  Paris,  affirms  perpetuity  of  literary  property,  52. 

LITERARY   MERIT, 

not  essential  in  unpublished  works.  111. 
nor  iu  letters,  134,  135. 
nor  in  published  works,  208-211. 
See  Value. 

LITERARY  PROPERTY, 

defined,  97. 

common-law,  in  unpublished  works.     See  Unpublished  Works. 

discussion  as  to  origin  and  nature  of,  1-53. 

ownership  perpetual  by  common  law,  2-20. 

theories  concerning,  2. 

has  all  qualities  of  property,  5,  97-100. 

governed  by  same  principles  as  other  property,  5. 

incorporeal,  6,  97-100. 

material  substance  not  essential  attribute,  6. 

capable  of  identification,  7. 

not  lost  by  publication,  8-16. 

rights  acquired  by  buyer  of  book,  11,  12. 

views  of  Aston,  J.,  14. 

argument  as  to  analogy  of  inventions,  15. 

how  far  government  may  interfere  with,  16-20. 

governed  by  principles  of  eminent  domain,  18-20. 

have  common-law  rights  in  published  works  been  taken  away  by 

legislature?  20-26. 
meaning  of  8  Anne,  c.  19,  20-25. 

not  intended  to  take  away  common-law  rights,  22-25. 
Parliament  asked  to  provide  additional  protection,  22. 

reasons  given  in  petitions,  22,  note  4. 
clause  in  statute  of  Anne  saving  common-law  rights,  25. 
Lord  Mansfield's  interpretation  of,  25,  note  1. 
conclusions  concerning  origin  and  nature  of,  26. 


INDEX.  741 

LITERARY   PROJ-ERTY,  —  conhn«ed. 

judicial  history  relating  to  origin  and  nature  of,  26-48. 
common-law  rights  in  published  works  protected  by  chancery 

courts,  26,  70,  71. 
plea  first  raised,  that  statute  of  Anne  was  intended  to  take  away 

common-law  rights,  27. 
perpetuity  of  literary  property  affirmed  by  King's  Bench,  in 

Millar  v.  Taylor,  28-37. 
Lord  Mansfield's  opinion  in  favor  of,  29. 
opposing  arguments  of  Yates,  J.,  examined,  32-36. 
judgment  of  King's  Bench  in  Millar  v.  Taylor,  37. 
House  of  Lords  in  Donaldson  v.  Becket   declare  common-law 
rights  taken  away  by  statute,  37-42. 
opinions  of  judges  on  questions  submitted,  37,  38. 
Lord  Camden's  speech  against  authors'  rights,  39. 
Lord  Mansfield's  knowledge  of  the  law,  40,  41,  note  2. 
what  decided  by  House  of  Lords  in  Donaldson  v.  Becket,  42. 
common-law  property  in  published  works  recognized,  but 
held  taken  away  by  statute,  42. 
judicial   opinions   against  judgment  in  Donaldson   v.  Becket, 

42,  43. 
U.  S.  Supreme  Court  holds,  in  Wheaton  v.  Peters,  no  common- 
law  property  in  published  work,  43-47. 
opinions  of  dissenting  judges,  44-46. 
Wheaton  v.  Peters  criticised,  47,  48. 
injustice  of  limited  copyright,  49-53 
Hood's  views  of,  49,  note  3. 

recommendations  of  royal  copyright  commissioners,  52. 
perpetuity  of,  affirmed  by  international  literary  Congress,  52. 
Lieber's  views,  53,  note  3. 
History  of,  in  England. 

introduction  of  printing  into  England,  54,  note  1. 

Star  Chamber  decrees  against  unlicensed  printing,  54-57,  54, 

note  3. 
Hallam  on  censorship  of  press,  55,  note  1. 
stationers'  company  chartered  by  Philip  and  Mary,  56. 
abolition  of  Star  Chamber,  57. 
parliamentary  ordinances  against  unlicensed  printing,  57,  and 

note  1. 
licensing  act  of  Charles  11.,  57,  58. 
early  decrees   and   ordinances   primarily  designed  to   regulate 

press,  but  contained  property  clauses,  58,  59. 
early  recognition  of  literary  property,  59-68. 
property  clause  in  licensing  act  of  Charles  II.,  59. 
Carte's  opinion  that  property  clauses  were  for  benefit  of  all 

authors,  59,  60,  note  1. 
traffic  in  copyrights  by  members  of  stationers'  company,  61,  and 

notes  1,  5. 
prerogative  copies,  62,  63. 


742  INDEX. 

LITERARY    PROPERTY,  —  continued. 

conflicting  opinions  as  to  nature  of  prerogative  right,  63-65,  63, 
nole  5. 

common-law  existence  of  literary  property  before  statute   of 
Anne,  65-68.  * 

expiration  of  licensing  act,  68. 

provisions  of  8  Anne,  c.  19,  69,  70. 

common-law  property  in  published  books  protected  by  chancery 
courts,  70,  71. 

perpetuity  of  literary  property  affirmed  by  King's  Bench,  in 
Millar  v.  Taylor,  28-37,  72. 

House  of  Lords  hold,  in  Donaldson  v.  Becket,  no  rights  in  pub- 
lished book  except  under  statute,  37-42,  72. 

Commons'  bill  for  perpetual  copyright  rejected  by  Lords,  73. 

universities  empowered  to  hold  copyrights  in  perpetuity,  73. 

provisions  of  English  statutes  extended  to  Ireland,  73. 

extension   of  copyright  from  fourteen  to  twenty-eight  years, 
73. 

eiforts  for  extension  early  in  reign  of  Victoria,  74-83. 

copyright  extended  to  forty-two  years  by  5  &  6  Vict.  c.  45,  74. 

speech  of  Sergeant  Talfourd,  74,  note  2. 

Parliament  petitioned  by  leading  authors,  75. 

Alison's  and  Hood's  petitions,  76,  and  note  1. 

Macaulay's  speech  against  copyright,  80-82. 

Disraeli's  views,  82. 

delivery  o£  books  to  public  libraries,  83. 

statute  securing  right  to  publish  lectures,  83. 

copyright  given  in  prints,  engravings,  sculpture,  paintings,  draw- 
ings, and  photographs,  84. 

playright  secured  by  statute,  84. 

rights  of  foreign  authors  in  England,  85-87. 

international  copyright  statutes  passed,  85,  86. 

countries  with  which  international  copyright  conventions  have 
been  made,  86. 

rights  of  foreign  authors  independently  of  international  acts,  86. 
History  of,  in  United  States. 

colonial  copyright  statutes,  87,  88. 

Congress  empowered  to  pass  copyright  laws,  88. 

first  copyright  law  of  United  States,  88,  89 

subsequent  legislation,  89-92. 

delivery  of  copies  to  Smithsonian  institution  and  library  of  Con- 
gress, 90,  91. 

playright  granted,  91. 

question  of  international  copyright  in  Congress,  92-94. 
See  Copyright. 

LITHOGRAPHS, 

copyright  extended  to,  by  English  statute,  177. 
See  Engravings;  Photographs. 


INDEX.  743 


LOCKE,  JOHN, 

theory  of  origin  of  property,  3,  note  3. 


M. 

MACAULAY,  LORD, 

speech  against  copyright,  80-82. 

MAGAZINES.     See  Periodicals. 

MANSFIELD,  LORD, 

opinion  in  favor  of  perpetuity  of  Hterary  property,  29. 

character  as  a  jurist,  40,  41. 

study  of  literary  property,  41,  note  2. 

blamed  for  not  giving  his  opinion  on  the  question  of  literary  property 

in  the  House  of  Lords,  42. 
opinion  as  to  nature  of  prerogative  right,  63,  and  note  5;  163,  note  2. 

MANUSCRIPTS, 

parting  with,  not  loss  of  common-law  rights,  105. 
statutory  protection  for,  in  United  States,  124-127. 

action  for  damages  and  injunction  against  unlicensed  publica- 
tion, 124,  491,  545. 
unlicensed  publication  of  substantial  part,  unlawful,  124. 
worthless,  not  within  statute,  124. 
whether  foreign,  are  within  statute,  125,  126. 
representation  of  play  not  a  publication,  126,  626. 
painting  not  a,  126. 

consent  to  publish,  need  not  be  in  writing,  126. 
in  what  court  redress  sought,  546. 
publication  of,  not  prohibited  by  Elnglish  statute,  127. 
owner  may  secure  copyright,  239. 

whether  circulation  of  copies  is  publication  within  meaning  of  stat- 
ute, 289. 
whether  publisher  may  make  changes  in  author's,  375-377. 
manuscript  dramatic  compositions.     See  Playright. 
See  Unpdblished  Works. 

MAPS,  CHARTS,  AND  PLANS, 

common-law  property  in  unpublished,  102. 
Great  Britain. 

may  be  copyrighted,  174. 

governed  by  5  &  6  Vict.  c.  45,  and  not  by  engravings  acts,  174. 

when  designed  by  one  person,  and  drawn  by  another,  former 
held  to  be  author,  254. 

copyright  secured  in  same  manner  as  books,  281. 

remedies  for  infringement  same  as  in  case  of  books,  482. 

duration  of  copyright,  300. 

mode  of  assignment,  317. 


744  INDEX. 

MAPS,    CHARTS,    AND   TLA'SS,  —  continued. 
United  States. 

provision  for  copyrighting  maps  and  charts,  174. 
plans  not  mentioned,  175. 

how  copyright  secured,  265,  297.     See  Statutory  Requisites. 
duration  of  copyright,  299. 

statutory  remedies  for  infringement,  491-494.    See  Remedies  in 
Law. 
test  of  originaUty,  206. 
piracy  in  case  of,  409,  421.     See  Piracy. 
statutes  governing  copyright  in,  American,  698. 

English,  661. 

MASTER, 

when  reference  to,  will  be  made  to  ascertain  piracy,  513,  514. 
what  he  may  be  required  to  report,  514. 
profits  on  past  sales  ascertained  by,  533. 

MATERIALS,   COMMON, 
no  copyright  in,  156,  424. 

See  Compilations. 

MATHEMATICAL   TABLES, 
subject  of  copyright,  153,  207. 

See  Figures. 

MEANING  OF  WORDS.     See  Definitions. 

MEMORY, 

whether  right  to  perform  unpublished  play  may  be  acquired  by.     See 

Performance. 
instances  of  remarkable,  570,  note  1. 

MERIT.     See  Literary  Merit;  Value. 
MNEMONICS, 

art  of,  570.     See  Memory. 

MODELS, 

to  be  perfected  as  works  of  fine  art  may  be  copyrighted  in  United 
States,  180. 
foreign  by  resident  owner,  231,  232. 

how  copyright  secured,  265.     See  Statutory  Requisites. 
statutory  remedies  for  infringement,  491-494.     See  Remedies  in 
Law. 
may  be  copyrighted  in  England,  179.     See  Sculpture. 
statutes  governing  copyright  in,  American,  698. 

English,  653,  684. 
MORRILL,   LOT  M. 

report  to  Congress  against  international  copyright,  94. 
MUSICAL   COMPOSITIONS, 

common-law  property  in  unpublished,  102. 

when  statutory  protection  first  provided  in  United  States,  90. 

are  books  within  meaning  of  statute,  140-142. 


INDEX.  745 

MUSICAL   COMPOSITIONS,  —con(m«e(Z. 
may  be  copyrighted,  175,  176. 
arrangements  of,  treated  as  original  productions,  176,  200, 206  note  1. 

test  of  originality,  200. 
right  of  printing  and  performing,  in  England,  secured  to  foreigners 

by  international  copyright  acts,  214,  215. 
rights  in,  when  composed  by  employd,  249,  251. 
may  be  independent  of  dramatic  composition,  250. 
publication  of  arrangement  not  publication  of  original,  292. 
substantial  identity  test  of  piracy,  409,  410. 
unauthorized  arrangement  of  copyrighted  opera  piratical,  411. 
statutory  remedies  in  England  for  infringement  of  copyright  same 
as  in  case  of  books,  469. 
in  United  States,  491-494.     See  Remedies  in  Law. 
public  performance  not  a  violation  of  copyright,  but  may  be  of  play- 
right,  475,  495. 
songs  held  to  be  dramatic  compositions  entitled  to  playright  under 

English  statute,  592. 
what  songs  are  entitled  to  playright  in  United  States,  593. 
dramatic  songs  consisting  of  words  and  music  entitled  to  playright, 
598. 
instrumental  not  in  United  States,  599. 
whether  in  England,  599. 
playright  in  published  and  unpublished  musical  compositions  given  by 

English  statute,  602. 
whether  publication  of  arrangement  defeats  playright  in  unpublished 

opera,  608-612. 
whether  any  statutory  remedy  for  unlicensed  playing  of,  when  no 

piracy  of  words,  639. 
statutes  relating  to,  American,  698. 

English.     See  Statutes  in  Force. 
See  Dramatic  Compositions;  Performance;  Playright. 

MUSICAL   ENTERTAINMENT, 

included  in  definition  of  dramatic  piece  in  5  &  6  Vict.  c.  45,  586. 
See  Dramatic  Compositions;  Musical  Compositions. 


N. 

NATIVE  AUTHORS.     See  Author;  Foreign  Authors;  Resident. 

NEGATIVES  OF  PHOTOGRAPHS, 
protected  by  U.  S.  Statute,  140,  180. 
by  English,  179. 

See  Photographs. 

NEW  EDITIONS.     See  Editions. 


NEWSPAPERS, 
Great  Britain. 

may  be  copyrighted,  168-170,  174. 


746  INDEX. 

NEWSPAPERS,  —  continued. 

held  entitled  to  copyright  without  registration,  172. 

judicial  construction  of  statute  criticised,  173,  174. 
registration,  174,  280. 

provisions  of  international  copyright  acts  concerning  foreign,  216. 
United  States. 

may  be  copyrighted,  168-170. 

how  copyright  secured,  274. 
when  article  published  in,  becomes  common  property,  170. 
See  Periodicals. 
NOTES.     See  Annotation. 

NOTICE  OF  ENTRY  OF  COPYRIGHT, 

printing  in  book,  &c.,  essential  to  copyright,  265.     See  Statutory 
Rb:quisites. 

form  of,  265,  note  8. 

must  appear  in  every  edition,  269,  400. 

whether  original,  must  be  printed  in  revised  edition,  270. 

must  appear  in  every  volume,  274. 

where  printed  in  newspaper,  275. 

penalty  for  false  printing,  494. 
NOTICE,  RESTRICTIVE.     See  Restrictive  Notice. 
NOVELTY.    See  Originality. 


O. 

OBNOXIOUS  WRITINGS.     See  Blasphemous  Publications;  Immoral 
Productio.ns;  Seditious  Publications. 

OBSCENE  PUBLICATIONS.     See  Immoral  Productions. 

OFFENCE, 

judicial  opinion  that  word  not  used  in  section  26  of  5  &  6  Vict.  c.  45 
in  same  sense  as  in  section  15,  476. 

OFFICIAL    CORRESPONDENCE,    DOCUMENTS,    REPORTS,    &c. 
See  Public  Documents;  Government. 

OPERA, 

playright  in,  given  by  English  statute,  586.     See  Dramatic  Com- 
positions; Musical  Compositions. 
OPINIONS,  JUDICIAL.     See  Law  Reports. 

ORIGINALITY, 

in  case  of  unpublished  works,  110. 

abridgments  and  translations  are  original  productions,  158,  200. 

and  dramatizations,  adaptations,  arrangements  of  music,  175, 

176,  200,  206  note  1. 
and  collections  of  well-known  facts,  201. 
and  compilations,  202. 


INDEX.  747 

ORIGINALITY,  —  continued. 

essential  attribute  of  copyright,  198. 
work  need  not  be  wholly  original,  199. 
works  alike  may  be  original,  205-208,  399. 
test  of,  in  case  of  abridgments,  translations,  158,  200. 
arrangements  of  music,  176,  200. 
compilations,  202,  207,  212. 
new  editions,  212. 
general,  208. 
dramatizations,  597. 
dramatic  composition  must  be  original,  596. 
See  Similarity. 
OWNER.     See  Assignee;  Consent  op  Owker ;  Propkietok. 


P. 

PAINTINGS, 

common-law  property  in  unpublished,  102,  178. 

■violation  of,  108. 

whether  lost  by  exhibition,  119,  120,  286-288. 

effect  of  publication  of  engraving,  119,  120,  115  note  1. 
are  not  manuscripts,  126. 
Great  Britain. 

when  first  protected  by  statute,  84. 

copyright  secured  by  25  &  26  Yict.  c.  68,  178,  179. 

provisions  of  international  copyright  acts  extended  to,  179. 

duration  of  copyright,  179,  300. 

foreigner  not  entitled  to  copyright  unless  resident  within  British 
dominions,  230. 

when  made  by  one  person  for  another,  255. 

registration,  281. 

what  is  publication  within  meaning  of  statute,  286,  288. 

assignments  must  be  registered,  281,  317. 

no  provision  for  transfer  by  registration,  317. 

mode  of  assignment,  317. 

when  made  for  another,  or  sold,  agreement  concerning  copyright 
to  be  in  writing,  317. 

artist  prohibited  from  reproducing  after  sale  of,  483. 

unlicensed  exhibition  of  copies  prohibited,  475,  482,  483. 
also  letting  to  hire,  482,  483. 

penalties  and  forfeitures  prescribed  for  infringement,  482-485. 
See  Remedies  in  Law. 

whether  unlicensed  copying  of  engraving  is  piracy  of,  483,  484. 

statute  governing  copyright  in,  691. 
United  States. 

when  first  protected  by  statute,  91,  92. 

copyright  secured  by  revised  slatute,  180. 

foreign,  may  be  copyrighted  by  resident  owner,  231,  232. 


748  INDEX. 

PAINTINGS,  —  continued. 

how  copyright  secured,  265.     See  Statutory  Requisites. 
what  is  publication  within  meaning  o£  statute,  288,  287. 
duration  of  copyright,  299. 

whether  unlicensed  copying  of  engraving  piracy  of,  493. 
statutory  remedies  for  infringement,  491-494.    See  Remedies  in 

Law. 
exhibition  of  copies  not  prohibited,  495. 
statute  governing  copyright  in,  698. 
substantial  identity  test  of  piracy,  409. 

PANTOMIME, 

a  dramatic  composition,  588,  593,  594. 

PARLIAMENT,    ACTS   OF, 

prerogative  right  to,  claimed  by  crown,  62-65,  163. 
See  Statutes  in  Force. 
PATENTS, 

cum  privilegio  granted  in  England,  25,  54. 

Congress  empowered  to  pass  laws  for  the  protection  of,  88. 

PENALTIES, 

Great  Britain, 
books. 

for  failure  to  deliver  copies  to  public  libraries,  277. 
penalties  not  recoverable  under  statute  of  Anne  without  reg- 
istration, 278. 
not  directed  against  unlicensed  publication  of  unpublished 

work,  305-308. 
what  prescribed  by  8  Anne,  c.  19,  468. 
increased  from  one  to  three  pence  by  41  Geo.  III.  c.  107, 

468. 
abolished  except  in  certain  case  by  5  &  6  Vict.  c.  45,  469. 
printer  and  importer  liable,  though  ignorant  of  piracy,  470. 
guilty  knowledge  must  be  shown  in  seller,  471. 
penalties  against  unlawful  importing,  472. 
two  incurred  on  same  day  for  distinct  sales,  472. 
not  incurred  by  public  reading  or  performance,  475. 
engravings  and  prints,  478. 
paintings,  drawings,  and  photographs,  482,  483. 

penalty  for  every  piratical  copy  sold,  484. 
sculpture,  486. 
playright. 

what  penalties  prescribed  by  3  &  4  Will.  IV.,  c.  15,  626. 
incurred  when  material  part  of  play  pirated,  633. 
United  States. 

for  failure  to  deliver  copies  of  book  to  librarian  of  Congress,  275. 
what  prescribed  for  piracy  of  books  by  acts  of  1790  and  1831, 

486. 
abolished  in  case  of  books  by  act  of  1870,  486. 


INDEX.  749 

PENALTIES,  —  continued. 

■what   prescribed  by  revised  statute  in  case  of  maps,  charts, 
musical  compositions,  and  works  of  art,  491.     See  Remedies 
IN  Law. 
for  falsely  printing  copyright  notice,  276,  494. 

held  not  recoverable  in  name  of  more  than  one  person,  494. 
must  be  sued  for  in  federal  court,  545. 
what  prescribed  for  violation  of  playright,  626. 

whether  incurred  when  part  of  play  pirated,  634. 
must  be  sued  for  in  court  of  law,  547,  548,  550. 
may  be  enforced  against  defendant  who  has  not  written  consent  of 

owner  of  copyright,  501. 
injunction  may  be  granted  when  action  for,  cannot  be  maintained, 

522. 
must  be  waived  when  discovery  in  equity  sought,  534. 
See  FoRFEiTDRES ;  Limitation  op  Actions  ;  Remedies  in  Law. 

PERFORMANCE, 

not  a  publication  of  manuscript  prohibited  by  U.  S.  statute,  126, 

626. 
not  such  a  publication  as  is  essential  to  secure  copyright  in  book,  285. 
publication  as  to  vesting  of  playright,  but  not  copyright,  285,  286. 
not  a  violation  of  copyright,  but  may  be  of  playright,  475,  495,  625, 

626. 
whether  owner's  common-law  rights  in  manuscript  drama  are  lost 
by,  554-566. 
will  not  defeat  copyright  afterward  secured,  285,  554,  566,  617. 
review  of  English  authorities,  555-557. 

cases  decided  under  statutes  now  in  force  do  not  apply, 

555. 
not  a  publication  prohibited  by  former  copyright  statutes, 

555,  556. 
does  not  give  right  to  print  play,  556. 

nor  to  act,  557. 
what  decided  by,  557.  • 

review  of  American  authorities,  557-566. 

judicial  opinion  that  any  person  may  represent  or  print  play 

obtained  by  memory,  but  not  by  writing,  558. 
unlicensed  performance  of  play  got  by  memory  held  lawful, 
560. 
held  piratical,  562. 
unlicensed  printing  of  play  got  from  public   performance 

held  piratical,  562. 
theory  that  restrictive  notice  essential  to  protect  owner's 
rights,  564. 
exploded,  564,  565. 
result  of  authorities,  565. 

but  one  direct  in  favor  of  memory  theory,  566. 
one  against,  566. 


750  INDEX. 

PERFORMANCE,  —conimuerf. 

refutation  of  theory  that  right  to  use  play  may  be  acquired  by 
memory,  566-572. 
no  English  authorities  in  support,  567. 
reasons  given  in  support,  567,  568. 
reasons  examined,  568,  569. 
no  ground  for  distinction  between  memory  and  writing, 

570-572. 
instances  of  remarkable  memories,  570,  note  1. 
common-law  rights  in  United  States  not  prejudiced  by,  573. 
acquiescence  in  unlicensed,  576. 

made  equivalent  to  publication  by  5  &  6  Vict.  c.  45,  574,  604. 
beginning  of  statutory  playright  in  unpublished  play,  604. 

essential  to,  605. 
must  be  in  United  Kingdom,  604. 

what  effect  on  rights  in  play,  605-612.    -See  Playright. 
statutory  penalties  and  damages  prescribed  for  unlawful,  626. 
what  is  unlawful,  within  meaning  of  statute,  627-629. 
public  and  private  distinguished,  627. 
charge  for  admission  not  essential,  627. 
scenery,  costumes,  &o.  not  essential,  627. 
place  of,  628. 

plurality  of  actors  not  essential,  628. 
public  reading  may  amount  to,  629. 

See  Playright;  Publication. 

PERFORMANCE  OF  AGREEMENTS.  See  Specific  Performance 
OF  Agkeements;  Agreements  between  Authors  and  Pub- 
lishers. 

PERIODICALS, 
Great  Britain. 

special  provisions  of  5  &  6  Vict.  c.  45,  concerning,  170-172. 
provisions  of  international  acts  concerning  foreign,  216. 
owners  empowered  by  5  &  6  Vict.  c.  45,  s.  18,  to  secure  copy- 
right in  articles  written  by  employes,  243-247. 
rights  of  owner  and  author,  244. 

as  to  separate  publication,  245. 
whether  in  all  cases  articles  for,  are  governed  by  s.  18,  246. 
payment  for  articles  essential  to  right  of  publication,  246. 
what  publications  are  within  s.  18,  247. 
registration,  172,  280. 

rights  of  author  and  publisher  independently  of  special  statutory 
provisions,  379. 
United  States. 

may  be  copyrighted,  168-170. 
rights  of  author  and  publisher,  259,  379. 
how  copyright  secured,  274. 
title  of,  may  be  partnership  property,  380. 


INDEX.  751 

PERIODICALS,  —  continued. 

name  of  editor  not  part  of  title,  380. 

See  Cyclopedias  ;  Newspapers  :  Title  op  Publication. 

PERPETUAL  COPYRIGHT. 

given  to  universities  and  colleges  by  15  Geo.  III.  c.  53,  73,  647. 
discussion  concerning.     See  Literary  Property. 

PETITIONS, 

to  Parliament  of  Anne  for  copyright  lavr,  22  and  note  4. 
to  Parliament  of  Victoria  for  extension  of  copyright,  75,  76. 
to  Congress  for  international  copyright,  92. 

PHOTOGRAPHS, 

common-law  property  in  unpublished,  102. 
Great  Britain. 

vfhen  statutory  protection  first  provided,  84. 

copyright  secured  by  25  &  26  Vict.  c.  68,  178,  179. 

duration  of  copyright,  179,  300. 

provisions  of  international  copyright  acts  extended  to,  179. 

of  paintings,  original  productions,  200,  note  2. 

foreign  author  not  entitled  to  copyright  unless  resident  within 
British  dominions,  230. 

made  by  one  person  for  another,  255.  y 

registration,  281.s 

assignments  must  be  registered,  281,  317. 

whether  publication   of,    is  publication   of  painting   or  statue 
within  meaning  of  statute,  286,  288.- 

mode  of  transfer,  317. 

when  made  for  another,  or  sold,  agreement  as  to  copyright  to  be 
in  writing,  317. 

unlicensed  exhibition  prohibited,  475,  482,  483. « 
also  letting  to  hire,  482-488. 

unlicensed,  of  engravings,  unlawful,  480. 

remedies  for  infringement,  482-485.     See  Remedies  in  Law. 

statute  governing  copyright  in,  691. 
United  States. 

when  statutory  protection  first  provided,  91. 

copyright  given  by  revised  statute,  180. 

how  secured,  265.    See  Statutory  Requisites. 

duration,  300. 

remedies  for  infringement,  491-494.    See  Remedies  in  Law. 

unlicensed  copying  by  photography  unlawful,  292. 

statute  governing  copyright  in,  698. 

PIANO-FORTE  ARRANGEMENTS.     See  Musical  Compositions. 
PICTURES.     See  Engravings;  Photographs;  Paintings. 

PIRACY, 

defined  and  distinguished  from  plagiarism,  883. 


752  INDEX. 

PIRACY,  —  continued. 

fundamental  principles  by  -which  determined,  383. 

true  test  of,  385. 

■what  does  not  amount  to,  386-399.     Hee  Fair  Uses  of  Copyrighted 

Works. 
copying  from  protected  work  essential  to,  205-208,  399,  459,  484,  610. 
no  defence  that  piratical  copy  has  been  copied,  399. 
copying  from  any  unprotected  work  not  unlawful,  400. 
similarity  creates  presumption  of  copying,  400. 
intention  to  pirate  not  essential,  401. 

may  aid  in  determining  whether  there  has  been  copying,  402. 
ignorance  no  defence,  403. 

when  question  of  ignorance  affected  by  statute,  404. 
by  reprint  of  entire  work,  404. 
purpose  for  which  work  taken  immaterial,  405-407. 
no  defence  that  work  taken  has  been  improved,  or  used  for  annota- 
tion, &c,,  405,  433,  442,  443. 
substantial  copy  of  protected  work  amounts  to,  407. 
substantial  identity  test  of,  408,  481. 

same  rule  applies  to  maps,  engravings,  paintings,  music,  &c., 

409-411,  481,  492. 
immaterial  by  what  mechanical  process  copy  made,  410,  480,  492. 
when  material  part  is  taken,  411. 
illustrations  may  not  be  copied  from  book,  412. 
publication  complained  of  need  not  be  substitute,  412. 
what  amount  is  material,  413.     See  Quantity. 
value  to  be  considered,  414,  524.     See  Value. 
compilations  of  common  facts,  416-422,  394-399. 
test  of  piracy,  416. 

law  construed  in  case  of  directories,  418. 
descriptive  catalogues,  421. 
maps,  421. 
compilations  of  published  materials,  422-428. 

when  materials  and  arrangement  are  taken,  422. 
when  materials  without  arrangement  are  taken,  424. 
when  arrangement  but  not  materials  is  copied,  425. 
not  piracy  to  adopt  arrangement  for  other  materials  or  for  dif- 
ferent purpose,  425. 
whether  arrangement  may  be  adopted  for  same  materials  when 

obtained  from  original  sources,  425. 
same  materials  may  be  used  on  same  plan  when  no  copying, 
427. 
how  piratical  copying  ascertained,  428-432,  512-515. 
common  errors  test,  428. 
things  against  presumption  of  copying,  429. 
presumption  created  by  likeness  must  be  overcome  by  defendant, 

400,  430. 
how  defendant  may  rebut  charge,  431. 
when  ascertained  by  court,  512,  513. 


INDEX.  753 

PIRACY,  —  continued. 

■when  reference  to  master  will  be  made,  513,  514. 

defendant  should  point  out  copied  parts,  produce  manuscript, 

&c.,  515. 
defendant's  case  prejudiced  by  his  false  denial,  515. 
general  principles  governing,  in  case  of  abridgments,  translations,  and 
dramatizations,   433,    434.       See   ABWDGMEjiTS ;    Tuanslations; 

Dk  AM  ATIZ  ATIONS. 

"  copy  "  as  used  in  statute  does  not  mean  literal  transcript,  but  sub- 
stantial copy,  450,  454. 
■whether  in  case  of  forfeitures,  488. 
gratuitous  circulation  of  copies  may  amount  to,  474,  487,  493. 
whether   unlicensed  sale   of    copies   lawfully  printed  or  imported 

amounts  to,  479. 
whether  copies  made  by  hand  amount  to,  480. 
whether  unlicensed  copying  of  engraving  is  piracy  of  painting,  483, 

484,  493. 
place  of,  must  be  in  country  granting  copyright,  481,  487. 
defences  against  charge  of,  499. 
■«'hat  amounts  to,  in  case  of  playright,  632. 
substantial  identity  test  of,  631-637. 

one  dramatization  not,  of  another,  unless  unlawful  copying,  638. 

See    CoNSEXT     of    Owner:     Forfeiturks;    Injunction;    Intention; 

Knowledge  of  Piracy;  Originality;  Penalties;  Playright; 

Remedies  in  Equity;    Remkdiks  in  Law;    Similarity; 

Unpublished  Works. 

PLACE, 

immaterial  where  book  written,  225  note  1,  230  note  1,  234. 

of  printing,  296. 

first  publication  must  be  in  United  Kingdom,  292. 

and  so  in  United  States,  295. 
native  author  may  be  abroad,' 230,  235. 
foreign  author  must  be  within  British  dominions,  229. 
foreign  author  must  be  resident  in  United^  States,  231,  233. 
of  piracy,  487. 
first  performance  of  manuscript  play  must  be  in  United  Kingdom, 

604. 
foreign  dramatist  must  be  within  British  dominions,  605. 
of  performance  with  reference  to  piracy,  628. 

PLAGIARISM, 

distinguished  from  piracy,  383. 

PLAN  OF  WORK, 

not  subject  of  copyright,  205,  425.     See  Compilations. 
considered  with  reference  to  fair  use  of  copyrighted  work,  393. 

PLANS, 

statutory  provision  for,  in  England,  174. 

48 


754  INDEX. 

PLANS,  —  continued. 

not  mentioned  in  U.  S.  statute,  175. 
See  Maps. 

PLATES.     iSce .  Stereotype  Plates. 

PLAY, 

playright  in,  given  by  3  &  4  Will.  IV.  c.  15;  and  5  &  6  Vict.  c.  45, 
586. 

See  Dramatic  Compositions. 

PLAYING  CARDS, 

protected  as  prints,  178. 

protection  not  denied  because  they  are  sometimes  used  for  unlawful 
purposes,  186. 

PLAYRIGHT, 

defined,  553. 

distinguished  from  copyright,  601. 

common-law,  in  unpublished  dramas. 

absolute  till  lost  or  taken  away  by  statute,  554. 
how  affected  by  public  performance,  554-572.     See  Perform- 
ance. 
in  United  States  not  prejudiced  by  public  performance,  573. 
whether  taken  away  by  English  statute,  575. 
how  aifected  by  acquiescence  in  unlicensed  performances,  576. 
lost  by  authorized  publication  in  print,  554,  577. 

hut  not  unauthorized,  577. 
defendant  must  show  authorized  publication,  579. 
in  dramatizations,  adaptations,  and  translations,  580. 
not  in  immoral  plays,  581. 

no  distinction  between  native  and  foreign  dramatists,  581. 
statutory,  in  Great  Britain, 
when  first  given,  84. 

in  printed  and  manuscript  dramatic  and  musical  compositions 
extended  to  foreigners  by  international  acts,  215. 
how  secured,  215,  217,  218,  281,  282. 

whether  secured  in  unpublished  opera  by  registration  of 

opera,  but  not  of  published  arrangements,  608-612. 

secured  by  3  &  4  Will.  IV.  c.  15,  and  5  &  6  Vict.  c.  45,  in  printed 

and  manuscript  dramatic  and  musical  compositions,  601,  602. 

in  what  productions.     See  Dijamatic  Compositions. 

in  music  composed  for  dramatic  representation  by  employe,  249, 

251. 
whether  in  instrumental  music,  599,  639. 

duration  in  printed  compositions  same  as  in  books,  602, 605,  609. 
whether  perpetual  iii  manuscript,  602,  603. 
registration  held  not  essential,  603. 
conditions  of  securing,  in  manuscript  plays,  604,  605. 

in  printed,  605. 
not  in  manuscript  play  before  performance,  604,  605. 


INDEX.  755 

PLATRIGHT,  —  amiinued. 

performance  of  manuscript  play  a  publication  as  to  Testing  of 
playright,  but  not  of  copyright,  285,  286. 
made  equivalent  to  publication  by  statute,  574,  604. 
lost   by  first  publication  in  foreign  country  unless  secured  by 

international  acts,  220,  60.5. 
lost  by  first  representation  of  manuscript  play  abroad  unless 

secured  by  international  acts,  294,  295,  604. 
once  secured  in  printed  play,  not  affected  by  subsequent  rep- 
resentation, 605. 
in  plays  published  in  print  after  representation,  606-612. 
■whether  publication  or  representation  beginning  of,  606. 
whether  secured  by  first  representation  in  England  after 
lost  by  first  performance  of  manuscript  play  abroad,  606, 
607. 
■whether  lost  by  first  publication  abroad  after  secured  by 
first  performance  of  manuscript  play  in  England,  606,  607, 
611. 
statutes  relating  to,  3  &  4  Will.  IV.  c.  15,  656. 
ss.  2,  20,  21,  of  5  &  6  Vict.  c.  45,  661,  670. 
statutory,  in  United  States, 
■when  first  given,  91. 

in  ■what.     See  Dramatic  Compositions. 
only  in  copyrighted  dramatic  compositions,  612. 
not  in  unpublished  dramas,  612. 
erroneous  decisions,  612-614. 
law  rightly  interpreted,  615,  616. 
not  in  plays  of  foreign  dramatists,  598. 
in  dramatic  musical  compositions,  598,  640. 
not  in  instrumental  music,  599,  640. 
secured  on  same  conditions  and  lasts  for  same  time  as  copyright, 

616,  6,7. 
performance  not  such  a  publication  as  is  essential  to  secure,  285. 
not  defeated  by  performance  before  secured,  285,  617. 
statute  relating  to,  698. 
Transfer  of. 

at  common  law. 

may  be  by  parol,  581. 
when  title  claimed  by  two  persons,  581. 
rights   of  assignee   of  foreign   author  for   United  States, 
582-584. 
under  English  statutes,  617-620. 

absolute  assignment  of  copyright  held  to  carry  future  play- 
right,  3.31. 
may  be  independent  of  copyright,  334. 

writing  butnot  attestation  or  seal  held  essential,  303, 304,  617. 
letter  held  to  amount  to,  324. 
whether  law  settled  that  writing  essential,  618. 
whether  before  playright  secured,  may  be  by  parol,  619. 


756  INDEX. 

PLAYRIGHT,  —  continued. 

•whether  by  registration,  619. 

when  playright  not  passed  by  assignment  of  copyright,  620. 
under  U.  S.  statute,  621-624. 

may  be  independent  of  copyright,  334,  621. 
■whether  by  parol,  621  „ 
may  be  by  parol  before  publication,  622. 
whether  assignment  of  copyright  carries  playright,  622. 
may  be  for  specified  place,  622. 
whether  for  limited  time,  624. 
joint-authorship,  authors  employed,  624. 
Remedies  for  Violation  of. 
common-law,  585. 

in  what  court  redress  sought,  545,  585. 
measure  of  damages,  585. 
statutory. 

for  invasion  of  copyright  not  available,  475,  555,  556. 

distinguished  from  those  for  violation  of  copyright,  625. 

prescribed  by  3  &  4  Will.  IV.  o.  15,  626. 

prescribed  by  U.  S.  revised  statute,  626. 

in  England  no  statutory  remedy  for  unlicensed  printing  of 

manuscript  play,  626. 
what  is  unlawful  performance,  627-629.     See  Performance. 
who  are  liable,  629-632. 
performance  of  material  part  of  play  may  amount  to  piracy, 

632. 
penalties  incurred  under  3  &  4  Will.  IV.  c.  15  when  material 
part  taken,  633. 
actual  damage  need  not  be  proved,  633. 
how  far  offender  liable  under   U.    S.   statute   when  part 

taken,  634. 
substantial  identity  test  of  piracy,  634-637. 
one   dramatization  not  piracy  of  another  unless  unlawful 

copying,  638. 
good  intention  or  ignorance  no  defence,  638. 
suit  maintained  without  registration,  638. 
in  England  consent  to  representation  must  be  in  writing,  638. 
may  be  given  by  agent,  638. 
writing  not  required  by  U.  S.  statute,  638. 
limitation  of  action,  638. 
in  what  court  redress  sought,  545,  639. 
unlicensed  playing  of  music,  639. 

PLEADING, 

form  of  action,  495. 

what  must  appear  before  equity  will  interfere,  498. 
defences  of  piracy,  499. 

defendant  may  plead  general  issue  and  give  special  matter  in  evi- 
dence, 499. 


INDEX.  757 

PLEADING,  —  continued. 

account  of  profits  not  asked  for  may  be  ordered  under  prayer  for 
general  relief,  533. 

appeal  to  U.  S.  Supreme  Court  irrespective  of  amount  in  contro- 
versy, 533. 

See  EviDisNCK ;  Jurisdiction  ;  Limitation  of  Actions. 

PRAYER-BOOK, 

prerogative  right  to,  claimed  by  crown,  62-65. 

PREROGATIVE  COPIES, 

right  claimed  by  crown  in  certain  books,  62. 
conflicting  opinions  as  to  nature  of,  63-65,  63  note  5. 
right  to  law  reports,  162,  163. 

PRESS, 

early  regulation  of.  See  Liteuary  Property,  History  of,  in 
England. 

PRINTER, 

when  liable.     See  Consent  of  Owner  ;  Knowledge  op  Piracy. 
to  what  liable.     5ee  Damages;  Fokfeitdres;  Penalties;  Remedies 
IN  Law. 

PRINTING, 

when  introduced  into  England,  5i,  note  1. 

government  regulations  concerning.     See  Literary  Property,  His- 
tory of,  in  England. 
not  in  itself  a  publication,  291. 
place  of,  with  reference  to  vesting  of  copyright,  296. 
in  a  foreign  country  not  piratical,  470. 
place  of,  with  reference  to  piracy,  487. 
unlawful.     See  Remedies  in  Law. 

PRINTS.     See  Engravings. 

PRIVATE   LETTERS.     See  Letters. 

PRIVILEGED   USES.     See  Fair  Uses  of  Copyrighted  Works 

PROFANE  PUBLICATIONS.     See  Blasphemous  Publications. 

PROFITS, 

on  piratical  copies  sold  may  be  sued  for  under  5  &  6  Vict.  c.  45,  471. 
agreement  between  author  and  publisher  for  division  of,  350,  351,  366. 
See  Account  of  Profits. 

PROPERTY, 

origin  of,  2-4._ 

Locke's  theory  concerning  origin  of,  3,  note  3. 
abandonment  of,  9,  10. 
eminent  domain,  17. 

may  be  acquired  by  virtue  of  employment,  243. 
See  Literary  Property. 


758  INDEX. 

PROPRIETOR, 

of  unpublished  work  may  secure  copyright,  238-242,  247. 
expressly  empowered  by  U.  S.  statute  to  secure  copyright,  257. 
when  consent  of,  to  publish  must  be  in  writing.     See  Consent  of 

OWNBK. 

See  Assignee. 

PSEUDONYMS, 

copyright  not  prejudiced  by,  196. 

PUBLIC  DELIVERY  OF  LECTURES.    See  Lectures. 

PUBLIC  DOCUMENTS, 

publication  of,  may  be  prevented  by  government,  132. 
property  in,  belongs  to  government,  132,  164,  259. 
may  be  copyrighted  by  government,  164. 
See  Goveunment. 

PUBLIC  LIBRARIES.     5ee  Librarian  or  Congress;  Libraries. 

PUBLIC  PERFORMANCE.     See  Performance. 

PUBLIC  READING.     See  Reading,  Public. 

PUBLICATION, 

discussion  as  to  effect  of,  on  author's  rights,  8-16. 

common-law  rights  lost  by,  in  print,  101. 

what  is,  at  common  law,  115. 

by  printing  catalogue  of  drawings,  115,  note  2. 

author's  rights  after,  not  lost  by  common  law,  but  taken  away  by 

statute,  116,  117. 
when  common-law  rights  lost  by,  118-121. 

not  unless  there  be  a  statute  to  take  them  away,  and  the  work  be 
published  within  meaning  of  statute,  120,  573,  574. 
of  engraving,  what  effect   on  common-law  rights  in  painting,  119, 

120,  286-288. 
private  circulation  of  copies  not,  at  common  law,  121. 
exposing  news  to  public  by  printed  bulletins,  122. 
of  manuscripts  prohibited  by  U.  S.  statute,  124.    See  Manuscripts. 

performance  of  play  not  thus  prohibited,  126,  626. 
unlicensed,  of  letters.     See  Letters. 
rights  in  England  lost  by  first,  abroad,  unless  secured  by  international 

acts,  220,  294,  605. 
separate  rights  of  author  and  publisher  of  cyclopaedias,  periodicals, 

&c.     See  Periodicals. 
must  precede  registration,  279,  280. 
beginning   of  statutory  copyright  and  essential  to,  283,  284,  615, 

616. 
must  be  within  reasonable  time  after  filing  title,  284,  616. 
what  is,  within  meaning  of  statute,  285-292. 

performance  not,  with  reference  to  vesting  of  copyright,  285,  286. 


INDEX.  759 

PUBLICATION.  —  continued.  -^ 

of   engraving  or  photograph,  whether  of  painting   or  statue, 
286-288. 

whether  circulation  of  manuscript  copies  is,  289. 

private  circulation  of  copies  not,  290. 

when  a  book  is  published,  291. 

of  part,  not  of  whole,  292. 

of  piano-forte  arrangement,  not  of  opera,  292. 
first,  in  United  Kingdom  essential  to  copyright,  229,  230,  292-295. 
copyright  not  defeated  by  contemporaneous,  abroad,  293. 
first,  in  United  States  essential  to  copyright,  295. 
must  be  authorized,  to  defeat  author's  rights,  296,  577. 
representation  made  equivalent  to,  by  5  &  6  Vict.  c.  45,  574,  604. 
common-law  rights  in  unpublished  play  lost  by  authorized,  554,  577. 

but  not  unauthorized,  577. 

defendant  must  show  authorized,  579. 
considered  with   reference  to  playright  in  England,  605-612.      See 

Playright. 
no  statutory  playright  in  United  States  without,  612,  616. 
See  Pekformanck. 

PUBLISHER, 

when  liable.     See  Consent  of  Owner  ;  Knowledge  of  Piracy. 
to  what  liable.     See  Damages;  Foefeiturks;  Penalties;  Kem- 

EDiES  IN  Law. 
contracts  with  author.     See  Agreements  between  Authors  and 

Publishers. 


Q. 


QUALITIES   ESSENTIAL   TO   COPYRIGHT, 

work  must  be  innocent,  181-198.  See  Blasphemous  Publica- 
tions; False  Representations  as  to  Authorship;  Immoral 
Productions;  Seditious  Publications. 

must  be  original,  198-208.     See  Originality. 

need  not  have  literary  merit,  208.     See  Literary  Merit. 

must  be  material  addition  to  useful  knowledge,  210. 

must  be  material  in  amount,  212.     See  Quantity. 

what  value,  208-211.     See  Value. 

See  Religion,  Works  against;  Unpublished  Works. 

QUANTITY, 

what,  essential  to  copyright,  212. 

what,  material  in  determining  piracy,  413. 

illustrations  of  material,  411  nole  1,  525-527. 
injunction  may  be  refused  when  slight,  523. 


760  INDEX. 

QUOTATION, 

how  far,  from  copyrighted  works  permitted,  386-393. 
See  Fair  Uses. 


R. 

READING,   PUBLIC, 

unlicensed,  of  unpublished  composition,  violation   of  common-law 
'     rights,  107. 

common-law  rights  in  manuscript  not  lost  by,  119,  572  note  2. 
not  a  violation  of  the  statute  except  in  case  of  dramatic  composition, 

475,  495. 
may  amount  to  dramatic  performance,  629. 
See  Lectukes. 

REGISTRATION, 
books. 

under  statute  of  Anne,  essential  to  recovery  of  penalties,  but  not 
to  vesting  of  copyright,  278. 

requisites  prescribed  by  5  &  6  Vict.  c.  45,  278. 

fees  for,  278. 

in  case  of  assignments,  301. 

certified  copy  of,  prima  facie  proof,  278. 
and  so  in  case  of  assignments,  301. 

must  precede  bringing  of  action  or  suit,  278. 

omission  does  not  affect  validity  of  copyright,  278,  279. 

strict  compliance  with  statutory  requisites  necessary,  279. 

book  cannot  be  registered  before  publication,  279. 
cyclopsedias  and  periodicals,  172,  280. 

foreign,  under  international  copyright  acts,  216. 
newspapers,  172-174,  280. 

foreign,  under  international  copyright  acts,  216. 
dramatic  compositions,  280. 
engravings  and  prints,  280. 
maps,  281. 

paintings,  drawings,  and  photographs,  281. 
sculpture,  281. 

requirements  of  international  copyright  acts,  217,  218,  281,  608-612. 
copyright  may  be  assigned  by,  301. 

but  no  provision  for  paintings,  drawings,  and  photographs,  317. 
,  held  not  essential  in  case  of  playright,  603,  638. 
whether  under  international  acts  playright  secured  by  registration  of 

unpublished  opera,  but  not  of  published  arrangements,  608-612. 
whether  playright  may  be  assigned  by,  619. 
assignment  of  copyright  not  to  carry  playright  unless  registered,  620. 

RELIGION,   WORKS  AGAINST, 

common  law  as  to  unpublished,  112-115. 


INDEX.  761 

RELIGION,   WORKS   AGAINST, —  coniwuec?. 
■whether  entitled  to  copyright,  187-196. 

See  Blasphemous  Publications;  Blasphemy. 

REMEDIES  IN  EQUITY, 

for  violation  of  common-law  rights  in  tinpuhlished  works,  107. 

in  productions  without  hterary  merit,  111. 

in  productions  not  innocent,  112-114. 

in  letters,  127-139. 
for  publication  of  manuscripts  in  violation  of  statute,  124. 
transfer  of  copyright  may  be  decreed,  261. 

defendant  ordered  to  pay  net  profits  on  piratical  copies  sold,  471. 
judicial  opinion  that  limitation  clause  in  5  &  6  Vict.  c.  45,  does  not 

apply  to,  476. 
nature  and  extent  of  equity  jurisdiction  in  copyright  cases,  496. 
■what  afforded,  497. 

English  chancery  courts  formerly  had  no  power  to  adjudicate  legal 
questions,  497. 

now  determine  all  questions,  498. 
U.  S.  equity  courts  determine  questions  of  law,  498. 
what  must  appear  before  equity  will  interfere,  498.     , 
copyright  prima  facie  evidence,  498,  499. 
defences  against  charge  of  piracy,  499. 
equitable  title  sufficient,  500. 
what  is  a  good  equitable  title,  500. 
not  available  in  England  before  registration,  278,  501. 
may  exist  in  United  States  on  recording  title,  501. 
defeated  by  plaintiff's  consent  to  publication,  which  need  not  be 

written,  501. 
when  complainant's  consent  may  not  be  implied,  502. 
how  affected  by  plaintiff 's  laches,  delay,  or  acquiescence,  504-512. 

See  Acquiescence. 
when  piratical  parts  will  be  ascertained  by  court,  512,  513. 

when  reference  to  master  will  be  made,  513. 
what  master  may  be  required  to  report,  513. 
defendant  should  point  out  copied  parts,  produce  manuscript,  &c., 

515. 
actual  damage  need  not  be  proved,  521. 
plaintiff  may  proceed  against  any  wrong-doer,  523. 

but  two  without  privity  cannot  be  joined  in  one  suit,  523. 
relief  may  be  refused  when  piracy  slight,  523. 
illustrations  of  material  quantity  and  value  of  piratical  matter,  525- 

527. 
English  equity  courts  may  assess  and  award  damages,  498,  534. 
rule  of  damages,  534. 
U.  S.  equity  courts  have  no  jurisdiction  of  statutory  penalties  and 

forfeitures,  547,  548,  550. 
in  two  instances,  delivery  of  statutory  forfeitures  ordered  by  equity, 
471,  54:7  nole  3,  549  nole  1. 


762  INDEX. 

REMEDIES  IN   ^QJUTY,  — continued. 

•whether  at  common  law  plaintiff  entitled  to  forfeitures,  and  whether 

delivery  ordered  by  equity,  549-552. 
for  violation  of  common-law  playright,  585. 

for  violation  of  statutory  playright,  625.    See  Pj-ayright,  Remedies 
for  Violation  of. 
See  Account  of  Profits;  Discovery;  Injunction;  Jurisdiction; 
Limitation  of  Actions. 

REMEDIES  IN  LAW, 

for  violation  of  common-law  rights,  107. 

unlicensed  publication  of  manuscripts  not  innocent,  114. 

of  letters,  114. 
unlicensed  performance  of  unpublished  dramas,  585.    See  Play- 
right. 
common-law,  available  under  statute,  473. 

when  not,  474. 
inadequate  without  remedies  in  equity,  496. 
statutory,  for  infringement  of  copyright  do  not  lie  against  oral  use, 

475,  625. 
Great  Britain,  468-486. 
books,  468-477. 

penalties  and  forfeitures  imposed  by  statute  of  Anne,  468. 
penalties    increased  and  action  for  damages    given  by  41 

Geo.  HI.  c.  107,  468. 
remedies  provided  by  5  &  6  Vict.  c.  45,  469. 
penalties,  except  in  certain  case,  abolished,  469. 
action  for  damages  against  unlawful  printing,  importing, 

selling  or  letting  to  hire,  469,  470. 
what  productions  are  embraced  within  5  &  6  Vict.  c.  45, 469. 
knowledge  of  piracy  must  be  shown  in  seller,  but  not  in 

printer  or  importer,  470. 
owner  may  sue  for  recovery  of  piratical  copies,  471. 

and  for  profits  on  copies  sold,  471. 
penalties  against  unlawful  importing,  472. 

two  incurred  on  same  day  for  distinct  sales,  472. 
incongruities  of  the  statute  as  to  forfeiture  of  copies,  472, 

note  1. 
remedies  against  gratuitous  circulation,  474. 
remedies  for  infringement  of  copyright  not  available  against 

reading  or  dramatic  performance,  475. 
within  what  time  actions  must  be  brought,  475-477.     See 
Limitation  of  Actions. 
dramatic  and  musical  compositions.     See  Playright. 
engravings  and  prints,  478-482. 

penalties  and  forfeitures  prescribed,  478. 
action  for  damages,  478. 

seller  ignorant  of  piracy  not  liable  to  penalties  and  forfeit- 
ures, 478. 


INDEX.  763 

REMEDIES  IN   l.KW,  —  conHnved. 

but  may  be  liable  for  damages,  478. 
■whether  seller  is  liable  for  unauthorized  sale  of  copies  which 

have  been  lawfully  printed,  479. 
copying  by  lithography,  photography,  or  other  processes 

prohibited,  480. 
whether  copies  made  by  hand  unlawful,  480. 
substantial  identity  test  of  piracy,  481. 
assignee  may  maintain  action,  though  statute  does  not  give 

him  that  right,  481. 
place  of  piracy  must  be  alleged,  481. 
within  what  time  action  must  be  brought,  482. 
maps  and  charts,  governed  by  5  &  6  Vict.  c.  4.5,  174,  482. 
paintings,  drawings,  and  photographs,  482-486. 

penalties  and  forfeitures  prescribed  by  25  &  26  Vict.  o.  68, 

482. 
importer,  seller,  publisher,  and  person  who  exhibits  or  lets 

to  hire  not  liable  when  ignorant  of  piracy,  488. 
copyist  or  printer  liable  when  ignorant,  483. 
whether  unlicensed  copying  of  engraving  is  piracy  of  paint- 
ing, 483,  484. 
penalty  for  every  copy  unlawfully  sold,  484. 
no  limitation  of  time  for  bringing  action,  485. 
sculpture,  485,  486. 

whether  any  i-emedy  against  unlicensed  exhibition,  475. 
action  for  damages  given  by  54  Geo.  III.  c.  56,  485. 
penalty  imposed  on  offender,  486. 
actions  to  be  brought  within  six  months,  486. 
United  States,  486-495. 
books,  486-490. 

provisions  of  former  statutes,  486. 
penalties  abolished  by  act  of  1870,  486. 
action  for  damages  and  recovery  of  piratical  copies  provided 
by  revised  statute,  486. 
but  not  until  copyright  secured,  487. 
must  be  brought  by  owner  of  copyright,  487. 
both  recovery  of  copies  and  damages  may  be  sought,  487. 
what  persons  liable,  487. 
printer,  publisher,  and  importer  liable,  though  ignorant  of 

piracy,  487. 
guilty  knowledge  must  be  shown  in  seller,  487. 
plaintiff  may  proceed  against  any  offender,  487. 
piratical  printing,  publishing,  or  selling  mu.st  be  in  United 

States,  487. 
in  case  of  importing  place  of  printing  immaterial,  487. 
wrong-doer  liable  when  copies  gratuitously  circulated,  487. 
whether  copies  are  subject  to  forfeiture  when  only  part  of 
book  piratical,  488-490. 
dramatic   compositions.     See  Pl.4yhigiit,   Remedies  for  Viola- 
tion of. 


764  INDEX. 

REMEDIES  IN  J. AM,  — continued. 
manuscripts. 

action  for  damages  given  by  statute  against  unlicensed  pub- 
lication, 124,  494. 
lies  at  common  law,  546.     See  Unpubltshf.d  Works. 
maps,  charts,  musical  compositions  and  works  of  art,  491-494. 
penalties  and  forfeitures  prescribed,  491. 
in  case  of  painting,  statue,  or  statuary,  offender  made  liable 

for  copies  sold,  as  well  as  those  in  his  possession,  491. 
in  case  of  other  articles  enumerated  offender  liable  only  for 

copies  found  in  his  possession,  491. 
persons  liable,  492. 

in  whom  guilty  knowledge  must  be  shown,  492. 
substantial  copy  subject  to  penalties  and  forfeitures,  488, 

492. 

intention  to  pirate  must  be  shown  in  case  of  imitation  or 

colorable  copy,  but  not  in  case  of  exact  reproduction,  492. 

copying  by  photography  and  other  processes  unlawful,  492. 

whether  copying  of  engraving  or  photograph  is  piracy  of 

painting,  493. 
gratuitous  circulation  of  copies,  493. 
action  for  damages  lies,  493. 
penalty  for  false  printing  of  copyright  notice,  494. 

held  not  recoverable  in  name  of  more  than  one  person,  494. 
time  within  which  action  must  be  brought,  494.     See  Limita- 
tion OF  Actions. 
form  of  action,  495. 
statutory  penalties  and  forfeitures  must  be  sued  for  in  court  of 

law,  547,  548,  550. 
neither  oral  use  of  production,  except  dramatic  composition,  nor 

exhibition  prohibited,  495. 
See  Consent  op  Ownbe  ;   Damages  ;  Jurisdiction. 

EENEWAL  OF  COPYRIGHT, 

for  fourteen  years  provided  by  U.  S.  statute  for  author  and  family, 

261,  326. 
will  not  vest  ab  initio  in  assignee,  261. 
when  secured  by  author  may  be  assigned,  261. 
not  granted  when  copyright  for  original  term  invalid,  261. 
how  secured,  276. 

author  may  divest  himself  and  family  of  right  to,  326. 
effect  of  assignment  before  publication  on,  327. 
rights  of  parties  determined  by  agreement,  328. 
absolute  assignment  before  publication  gives  unlimited  right  to  pub- 
lish, 328. 
effect  of  assignment  after  publication  on,  831. 
assignee  cannot  make,  333. 
author  may  assign,  333. 

REPORTS.     See  Law  Reports. 


INDEX.  765 

REPRESENTATION.     See  Performance. 

REQUISITES     FOR    SECURING    COPYRIGHT.       See    Statutory 
Requisites. 

RESEMBLANCE.     See  Originaijty;    Similarity. 
RESIDENT, 

alien,  abroad  not  entitled  to  English  copyright,  223,  230. 

alien,  in  British  dominions  entitled  to  copyright,  220,  230. 

British  subject  abroad  entitled  to  English  copyright,  230. 

foreign,  in  United  States  entitled  to  copyright,  231,  233. 

owner  may  copyright  certain  foreign  works  of  art  in  United  States, 
231,  232. 

meaning  of,  in  U.  S.  statute,  233. 

immaterial  where  citizen  of  United  States  may  be,  234. 

RESTRICTIVE   NOTICE, 

held  essential  to  protect  owner's  rights  in  performing  unpublished 
play,  564. 
in  case  of  exhibition  of  painting,  120,  565  note  2. 
theory  exploded,  120,  121,  564,  565. 

REVIEWS.     See  Periodicals. 

REVISED   EDITION.     See  Editions. 

ROYAL   COPYRIGHT   COMMISSIONERS, 

changes  recommended  by,  in  English  laws,  52. 
evidence  taken  by,  as  to  duration  of  copyright,  79,  note. 
recommendations  in  favor  of  international  copyright,  95. 
opinion  of  foreign  reprints  act,  293,  note  3. 

s. 

SALE, 

when  a  publication,  291. 

not  essential  to  publication,  291. 

not  essential  to  piracy.     See  Gratuitous  Circulation. 

of  stereotype  plates,  what  rights  pass,  324. 

on  execution,  copyright  not  subject  to,  325. 

of  copies  after  assignment,  338-342,  372,  373. 

two  penalties  incurred  for  two,  on  same  day,  472. 

of  each  piratical  copy  an  offence,  477,  note  1. 

■when  within  two  years  action  not  barred  by  fact  that  printing  or  im- 
porting not  within  two  years,  495. 

of  copies   under  agreement.     See  Agreements  between  Authors 
AND  Publishers. 

of  copyright.     See  Assignee  ;  Transfer  op  CoPYBiaHx. 

of  playright.     See  Playiuget,   Transfer  of. 

of  piratical  copies.     iSee  Account  of  Phofits;  Damages;  Forfeit- 
ures;  Penalties;  Profits;  Remedies  in  Law;  Seller. 
SCENERY, 

not  essential  to  dramatic  performance,  627. 


766  INDEX. 

SCENIC   ENTERTAINMENT, 

included  in  definition  of  dramatic  piece  in  5  &  6  Vict.  o.  45,  586. 
See  Dramatic  Compositions  ;   Spectacular  Pieces. 
SCIENTIFIC  VALUE.     See  Literary  Merit;  Value. 

SCORING   SHEET, 

not  subject  of  copyright,  144,  211. 

SCULPTURE, 

common-law  property  in  unpublished,  102. 

whether  lost  by  exhibition  or  circulation  of  copies,  119,  120, 
286-288. 
statutory  copyright  in  Great  Britain. 

secured  by  54  Geo.  III.  c.  56,  170. 

extended  to  foreign  works  by  international  copyright  acts,  214. 

rights  of  foreign  artists,  230. 

employer  entitled  to  copyright,  255. 

•what  is  publication  within  meaning  of  statute,  286,  288. 

duration  of  copyright,  300. 

remedies  for  piracy,  485.     See  Remedies  in  Law. 

statutes  relating  to,  653,  684. 
statutory  copyright  in  United  States.     See  Statuary. 

SEDITIOUS   PUBLICATIONS, 

whether  author  may  prevent  unlicensed  publication  of  manuscripts, 
112-114. 
or  recover  damages,  114. 
not  entitled  to  copyright,  181-185. 
injunction  not  granted  against,  540. 
SELLER, 

rights  of,  as  to  selling  copies  after  assignment  of  copyright,  338-342, 

372,  373. 
injunction  against,  will  not  be  refused  because  plaintiff  has  not  pro- 
ceeded against  publisher,  523. 
when  liable.     See  Consent  of  Owner;  Knowledge  op  Piracy. 
to  what  liable.     See  Damages;   FoRifEiTURES ;    Penalties;   Reme- 
dies IN  Law. 

See  Assignee. 

SELLING  PRICE   OF  BOOK, 

may  be  fixed  by  publisher  when  not  specified  in  agreement,  352, 
353,  365. 

SENTIMENTS, 

no  copyright  in,  without  association,  98,  385. 

SIMILARITY, 

not  inconsistent  with  originality,  205-208. 
creates  presumption  of  copying,  400. 

which  must  be  overcome  by  defendant,  430. 
substantial  identity  test  of  piracy,  408. 
external,  of  books  ground  for  injunction,  540. 
See  Originality;  Piracy. 


INDEX.  767 

SMITHSONIAN  INSTITUTION, 

delivery  to,  of  copy  of  book,  &g.,  formerly  required,  90. 

repeal  of  statute,  91. 

delivery  not  essential  to  copyright,  265. 

SONGS.     See  Dramatic  Compositions;  Musical  Compositions. 

SPECIFIC  PERFORMANCE  OF  AGREEMENTS, 

author  and  third  persons  may  be  restrained  from  publishing  in  vio- 
lation of  covenant,  541. 

violation  of  negative  covenant  may  be  restrained,  though  agreement 
cannot  be  enforced  affirmatively,  542. 

SPECTACULAR  PIECES, 

whether  entitled  to  protection  as  dramatic  compositions,  595. 
See  Dramatic  Compositions. 

STAGERIGHT, 

meaning  of,  553. 

STAR  CHAMBER.     See  Literary  Pkopbrty,  History  of,  in  England. 

STATE.     See  Government. 

STATE   COURTS.     See  Jurisdiction. 

STATIONERS'  COMPANY, 

chartered  by  Philip  and  Mary,  56. 

traffic  of  members  in  copyrights,  61,  and  notes  1,  5. 

delivery  of  books  to,  for  public  libraries,  277. 

books,  &c.,  to  be  entered  in  registry  of,  278.     See  Registration. 

STATISTICS.     See  Figures. 

STATUARY, 

common-law  property  in  unpublished,  102. 

■whether  lost  by  exhibition  or  circulation  of  copies,   119,  120, 
286-288. 
statutory  copyright  in  United  States, 
secured  by  revised  statute,  ISO. 
how  secured,  265.     See  Statutory  Requisites. 
foreign,  may  be  copyrighted  by  resident  owner,  231,  232. 
what  is  a  publication  within  meaning  of  statute,  286,  287. 
duration  of  copyright,  299. 

remedies  for  infringement,  491-494.     See  Remedies  in  Law. 
exhibition  of  copies  not  prohibited,  495. 
statute  relating  to,  698. 

See  Sculpture. 

STATUTE  OF  FRAUDS, 

governs  literary  contracts,  381. 

STATUTE  OF  LIMITATIONS.    See  Limitation  oi-  Actions. 


768  INDEX. 

STATUTES, 

prerogative  right  to,  claimed  by  crown,  62-65,  163. 
annotation  of,  entitled  to  copyright,  155.     See  Compilations. 

and  so  forms  prepared  from,  204. 
may  be  copyrighted  by  government,  164. 

See  Govekxmbnt;  Law  Rupokts;  Public  Documents. 

STATUTES  I>^  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^