''^'JOiillVJ-JO- ■ iiiiiVi^' ■ smMrm^^' '^ysmmH^'y' V- ■"c.lJillVj-iU ^^;.civa;iii-# ^% THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES LAW LIBRARY ..\M Uf^RARYQ^ <^IIIBRARYQ^ '^ 3- 1 icr UNIVERS//, 'jo -n t-i ^- O uL o LIBRARYft- '0JI1V3JO' (FCALIFO/?^ ^ ^W[-LiNIV[R,J/A ^OJIIVDJO"^ OFCALIF0% y: ^ 4 Burr. 2312. HISTORY OF LITERARY PROPERTY. 31 wise printing unlawl'ully, cannot now be found. But it is obvious that no man could print another man's copy, because he could not obtain a license so to do, for two reasons. In the first place, the literature of England was not then so extensive, that the officers of the crown, whose duty it was to license publica- tions, would not, generally, know to whom the copy- right of any work belonged, which any applicant might find it worth while to reprint. There was, therefore, little danger that licenses would be incau- tiously granted. In the second place, the decree of 28th Elizabeth prohibited all printing "contrary to any allowed ordinance set down for the good govern- ment of the stationers' company." Now, although we know of no ordinance or by-law of the company relative to copies, until after the year 1640, yet from 1558 to 1582 there are, it is said, entries in the re- cords of the company which show that copies were entered as property, and that pirating was punished.^ This shows the contemporary opinion as to this species of property, and renders it highly probable that no license could have been obtained for printing another man's copy, because it would have been ask- ing for an authority to do what was then held to be immoral, dishonest, and unjust. It is a just infer- ence, that what was so held by the stationers' com- ' 4 Burr. 2313. In 1583, two ers' Company. But commissioners, printers. Wolf, and Ward, insisted appointed by the crown, willed them upon a ri^ht of printing all books, to desist. See Wedderhurn's Ax- even where there were copyrights gument in Tonson v. Collins, 1 W. existing. Stowe, 223, tit. Station- Black. R. 301. 32 LAW OF COPYRIGHT. pany, in that age a recipient of royal favor and of extraordinary powers from the crown, would have been so held by the crown itself.^ In 1640, the star-chamber was abolished, and all regulations of the press and decrees against printing, as well as all the charter powers given to the sta- tioners' company, were abolished. But the licen- tiousness that ensued led the two houses of parlia- ment to pass a new ordinance, which prohibited printing unless the book had been first licensed and entered in the register of the stationers' company ; and it also prohibited printing without consent of the owner, or importing (if printed abroad,) upon pain of forfeiting the same to the owner or owners of the copies of the said books, &c.^ There could be no owners of copies in England at the time when this ordinance took effect, except those who held the right to print certain books by letters-patent, or those whose title was that of au- thors or proprietors at common law. It is not very probable that the parliament of that day passed this part of the ordinance for the purpose of protecting grants of the crown ; and as to all other books, the whole foundation of literary property, if it depended upon former decrees of the star-chamber or proceed- ings of the stationers' company, had been swept • It would seem, therefore, that much speedier and more effectual down to the year 1010, (as has been remedy than actions at law or bills well remarked by Wilies, J. in Mil- in equity." lar t;. Taylor,) " copies were pro- " Passed in 1643. 4 Burr. 2314. tected and secured from piracy by a 4 Black. Com. 152, note. HISTORY OF LITERARY PROPERTY. 33 away. But these decrees and proceedings were not the sources of the right of property ; they were merely protective in their character; and it can therefore admit of little doubt, that the understanding of the parliament was, that the property existed at common law, in the " owners " whom they chose to protect, otherwise this provision in their ordinance could only have contemplated " owners" by letters- patent.' There is, however, a contemporary testimony, which places this matter in a very clear light. In November, 1644, Milton published his great tract for the liberty of unlicensed printing, against this ordinance, addressed to the parliament by whom it had been passed. His vigorous and manly denun- ciation was directed solely against the system of licensing. He expressly excepts from his censure that part of the ordinance which was designed for the protection of the rights of property in authors, and distinctly afhrms that one of the " glossing co- lours" used, to make the ordinance pass, was " the just retaining of each man his several copy, which God forbid should be gainsaid." ~ ' Selden sat in tlic parliament cute honest and painful men, ivho which passed this ordinance. offend not in ctlhtr of these particn- * Milton's " Speech for the Liberty hrs. But that otlier clause of li- of Unlicensed Priiiliiifif, to the par- censing books, which we thouiiht liament of Eufrland." Lie had pre- had died \viih his brother quadra- viously said, " For that part which gesimal and matrimonial when the preserves justly cvenj man's cop 1/ to prelates expired. — I shall now at- himsclf, or provides for the poor, I tend with such a homily, as shall touch not : only wish tliey be not lay before ye," &c. . . . made pretences to abuse and perse- 34 LAW OF COPYRIGHT. The testimony of Milton must be allowed to have some weight upon this question. He knew the state of the literature of England, if any man knew it, and he cannot be supposed to have thus recorded the general recognition of the rights of authors, and to have thus expressly admitted what the ordinance was intended, by the provision in question, to pro- tect, without knowing of what he affirmed.^ Many of the arguments used by him against the licensing system also show, incidentally, that the ordinance, when it spoke of "owners," must have contemplated proprietors of books, of which the public might de- mand successive editions ; for his arguments show — as indeed, we know without resorting to them, — ' Milton spoke upon this occasion in the name and at the solicitation of the scholars of England. " I might say, if without envy, that he whom an honest quaestorship had endeared to the Sicilians, was not more by them importuned against Verres, than the favorable opinion I had among many who honor ye, and are known and respected by ye, loaded me with entreaties and persua- sionx, that I would not despair to lay together that which just reason should bring into my mind, toward the removal of an undeserved thral- dom upon learning. That this is not, therefore, the disburdening of a particular fancy, but the common grievance of all those who had pre- pared their minds and studies above the vulgar pitch to advance truth in others, and from others to entertain it, thus much may .satisfy. And in their name I shall, for neither friend nor foe, conceal what the general murmur is." Lord Mansfield has said, that " the single opinion of Milton, speaking after much consideration to what had been the general consent of the kingdom for ages, is stronger than any inferences that can be drawn from gathering acorns or seizing on a vacant piece of ground." 4 Burr. 2399. It is curious that, in nearly a century after Milton's opinion was thus recorded, his own Paradise Lost, in the hands of the assigns to whom the sum of £5 had passed it from him and his heirs forever, was to come before the chancellor of England, to claim successfully for its then owners their right in their "several copy." But his great authority does not seem to have been alluded to upon that occasion. Tonson v. Walker, before Lord Hardwicke, in 1739. Cited 4 Burr. 2325, and 3 Swanst. 673. HISTORY OF LITERARY PROPERTY. 35 that such books were then proportionally not more rare in the literature of England than they now are.^ In 1649, the long parliament made an ordinance, which forbids printing any book legally granted, or any book entered, without consent of the owner ^ upon pain of forfeiture, &c. In 1662, the licensing act of 13 and 14 Car. II. was passed, prohibiting the printing of any book unless first licensed and entered in the register of the stationers' company, and prohibiting also the printing without consent of the owiw^ upon pain of forfeiting the book and 65. Qd. for each copy, half to the king, half to the owner ; to be sued for by the owner in six months. It is remarkable that there had been thus far no legislation in England, which grants, creates, or es- tablishes the property of an author in his own works. The liberty of publishing, and sometimes the presses which he should employ, had been subjected to ' " And what if the author shall (and who knows whether it might be one so copious of fancy, as to not be the dictate of a divine spirit?) have many things well worth the yet not suiting with every low de- adding come into his mind after crepit humour of their own, though licensing, while the book is yet un- it were Knox himself, the reformer der the press, which not seldom of a kingdom, that spake it, they happens to the best and diligentest will not pardon him their dash ; the writers ; and that perhaps a dozen sense of that great man shall to all times in one book Nay, posterity be lost, for the fearfulness, which is more lamentable, if the or the presumptuous rashness of a workof any deceased author, though perfunctory licenser. And to what never so famous in his lifetime, and an author this violence hath been even to this day, comes to their lately done, and in what book of hands for licence to be printed, or greatest consequence to be faithfully reprinted, if there be found in his published, I could now instance, book one sentence of a venturous but shall forbear to a more convc- edge, uttered in the height of zeal, nient season." 36 LA.W OF COPYRIGHT. regulation and control ; but from the introduction of printing to the fourteenth year of the reign of Charles II. it had been assumed that the author of a book has a property in his copy, and successive parliaments had provided for his protection as an "owner," without undertaking to confer that char- acter upon him. The state of the literature of England in 1662 will show that when parliament provided for the protection of " owners," they could not have intended merely the royal patentees, pass- ing by the whole existing body of literature then known by every intelligent Englishman, at least by name. The legislators of that day may also be pre- sumed at least to have known that there were living authors then writing and publishing, not without fame and honor in the land. The licensing act of Charles II. was continued by several acts of parliament, but expired on the 9th of May, 1679.^ In 1681, all legislative protection hav- ing ceased, the stationers' company adopted an ordi- nance or by-law, which recites that several members of the company have great part of their estates in copies ; that by ancient usage of the company, when any book or copy is duly entered in their register to any member, such person hath always been reputed and taken to be proprietor of such book or copy, and ought to have the sole printing thereof. The • In this year, an action on the leged himself to be the true proprie- case was brougiit in the king's tor. Ponder v. Brady), Lilly's En- bench, for printing the Pilgrim's tries, 07. But it does not appear Progress, of which the plaintifF al- whether the action was proceeded in. HISTORY OF LITERARY PROPERTY. 37 ordinance then further recites that this privilege and interest had of late been often violated and abused ; and then it provides a penalty against such violation by any member or members of the company, where the copy had been duly entered in their register. The true view of this ordinance would seem to be, that the members of the stationers' company, finding their estates in copies, which belonged to them by the common law, no longer under the protection of the licensing act, the repeal of which had incidentally withdrawn the protection that had always been in- serted in it, though it had necessarily no connection with the system of licensing, undertook to provide for the failure of legislation, as far as they could, by an ordinance applicable of course to their own mem- bers only. The ordinance is not to be cited as any other proof of what the common law right was, than as it shows, in connection with other historical proofs, how it was then supposed to be. Now I do not understand this ordinance to rest the exclusive right upon entry in the register book, or upon their usage to respect each other's rights as derived merely from entry. It declares, as a separate and distinct inducement, that "several members of this com- pany have great part of their estates in copies.^' By " estates" must have been meant their capital ; and " copies " they must have intended to use in the an- cient technical sense of the sole right to print parti- cular books. This right existed, if at all, by the law of England, and not by the usage of the station- 38 LAW OF COPYRIGHT. ers' company, whose members could have individu- ally no different rights of property from all the rest of the king's subjects. If a member of the station- ers' company held a "copy," any other man in Eng- land, not a member of that corporation, could also hold a " copy." But as a further inducement to the provision of a penalty upon their own members against violating the rights of another member, they recited the ancient usage of the company to respect these rights when brought to the notice of the com- pany, by entry in their register. It was much the same as if an association of persons were to agree that any one of their number should pay a penalty for violating the acknowledged rights of property of any other person in the association, provided such rights were duly entered in their common records. It would not be an attempt to create the right ; but it would justly be regarded as an acknowledgment of the existence of such a right. The licensing act of Charles II. was revived in the 1st of James II. c. 7, and continued by 4 W. &, M. c. 24, and finally expired in 1694. In this last year, the stationers' company, apparently with the same view of supplying, as far as related to them- selves, the failure of legislative protection, passed a similar ordinance, or by-law, in a slightly different and stronger phraseology. The same observations apply to this ordinance as to that of 1681.^ ' The two ordinances are recited in Millar v. Taylor, 4 Burr. R. at large in the special verdict found 2303. HISTORY OF LITERARY PROPERTY. 39 Having now brought the history of private copy- right down to the Revolution of 1688, it is necessary here to turn back to survey a collateral and impor- tant branch of the subject, the prerogative copies. From the first introduction of printing, it was con- sidered to be a matter of state. The reasons upon which it was so regarded were various. It was held to be a matter of a public nature ; that it was a new art introduced by the king, and therefore he had a prerogative right to prescribe the persons who should exercise it ; and that the unrestrained liberty of printing was dangerous. These reasons were from time to time advanced as the foundation for that control exercised over the press from its first intro- duction to the year 1688.^ But there were also cer- tain other special reasons assigned for the exclusive right claimed by the crown in certain publications, and granted to individuals by letters-patent, w^hich have been justly supposed to proceed upon the notion of property. At the same time it must be admit- ted, that with the idea of property was also advanced the claim of naked prerogative, resting upon reasons of state ; and it is not very easy to distinguish, upon the earlier authorities, tvhat the precise grounds were, on which the courts intended to rest the title to the various prerogative copies. In the main, how- ever, this class of cases undoubtedly does show that the crown sometimes claimed a property in copies 1 Bacon's Abridgment, tit. Pre- 75. Skin. 231. Yern. 275. rogative, F. 5. Carter, 'JO. 3 ]Mod. 40 LAW OF COPYRIGHT. entirely analogous to that belonging to private indi- viduals. The works that have been at different times claim- ed as belonging to the crown, are all law books, in- cluding the Reports and the Statutes, Almanacs, the Latin Grammar, the Book of Common Prayer, and the English translation of the Bible. The earliest case, of which we have any distinct account, was between a Colonel Atkyns and certain members of the sta- tioners' company, in the 18th Charles II. Atkyns, as the law-patentee, claimed the right to print all law books ; the defendants had printed Rolle's Abridg- ment. A bill was brought for an injunction, which the lord chancellor granted against all the members of the stationers' company. An appeal was taken to the house of lords, and it was there argued upon the footing of the king's property in law books, because he pays the judges who pronounced the law ; and the decree of the lords, affirming the decree below, has always been cited as a recognition of the copy- right in the king, though of course the claim, in its full extent, has been since exploded.^ The next case was that of Roper v. Streater, in the 22d - 24th Charles II. Roper bought of the ex- ecutors of Mr. Justice Croke the third part of his Reports. Streater was law-patentee, and printed these Reports "over Roper," who brought an action of debt against him on the licensing act of 13th and 14th Charles II. Streater pleaded the king's grant, ' Carter, 89. Bacon's Abridg. Prerogative, F. 5. 4 Burr. 2315. HISTORY OF LITERARY PROPERTY. 41 and the demurrer therefore presented the question between the crown and a purchaser of the author. In short, the question was, whether the king or the plaintiff was the "owner" of these Reports, in the sense of the statute. In the king's bench, judgment was for the phiintiff and against the king's patent ; the court considering the plaintiff^ as owner of the copy at common law by purchase of the executors of the author.^ This judgment was reversed in the house of lords, upon the ground that the king was the owner of the copy, and therefore that the executors of the author could convey nothing." The case of the Stationers' Company v. Seymour, in the 29th Charles II. was a question between certain grantees of the crown and certain other persons who had printed Gadsbury's Almanac. The court put their decision, in part, upon the fact, that an almanac has no certain author, and that the property of such books is in the king. The defend- ants claimed to have added "prognostications" to the old almanac; but the court said "these additions did not alter the case, no more than if a man should claim a property in another man's copy, by reason of some inconsiderable additions of his ow^n." ^ The rea- son Avas also assigned that the defendant's almanac was the same as that printed before the book of ' Skinner, 234. 1 JMod. 257. Sec Bacon, ut sup. and the report Bac. Abr. Prerog. F. 5. 4 Burr, in Skinner, 234. 2316. 3 1 Mod. 25G. Bacon's Abridg. * Ibid. Il seems, however, thnt Prerog. F. 5. 4 Burr. 2317. reasons of state were also assigned. 4* 42 LAW OF COPYRIGHT. common prayer, which regulates the feasts of the church, and therefore it trenched upon that part of the prerogative which concerns the government of the church.^ There was also a case of the Stationers' Company V. Parker, in 1 Jac. 2. It does not appear what the book in controversy was, but the question was be- tween concurrent patentees, and whether the plain- tiffs patent excluded the defendant's.^ Holt, arguing for the defendant, agreed that the king had power to grant the printing of books concerning law or reli- gion, and admitted it to be an interest, but not a sole interest. The court inclined for the defendant, but reserved the question for advisement.^ There is no case in the books concerning the Latin Grammar, but the right of the king was grounded on the allegation, that he paid for compiling and pub- lishing it.^ Nor is there any reported case prior to the Revolution concerning the Bible, but that was vested in part upon the ground that the king paid the translators ; and with regard to the Year Books, it was said, that the crown was at the expense of taking the notes.^ The further history of the pre- ■ 1 Mod. 250. Bacon's Abridg. says, that the exclusive right of Prerog. F. 5. 4 Burr. 2317. printing the translation of the Bible '^ The work was undoubtedly a is founded upon these two prin- law book. ciplcs, combined, viz. 1. That the ' Stationers' Co. v. Parker, Skin- king is the supreme head of the ner, 233. church ; and 2. That it was trans- * 4 Burr. 2329. This notion is latcd at the expense of the crown, now of course abandoned. 2 Black. Com. 410. * 4 Burr. 2329,2401. Blackstone HISTORY OF LITERARY PROPERTY. 43 rogative copies will be pursued in their connection with the general course of the subject/ The cases which have now been cited, have been considered by very great authorities as proofs that the right of the crown, in certain copies, was regarded as a right of property of the same kind as that of au- thors.^ But if they do not show, that the right of the crown was a right of property merely, and if the high notions of prerogative entertained at the time entered into these decisions and affected them with reasons of religion or state, as is quite probable, then there is an argument to be drawn from them of great weight in favor of the existence of a common law right of property in authors, as a right understood at the times when these decisions were made. These cases were decided before the Revolution, at which it seems obviously proper to pause as at a stage in the inquiry. Notions of power and prerogative were then held and acted upon, such as could not be breathed at the present day in Westminster Hall, and the press had long been under the almost abso- lute control of the crown. Yet, in such a period, it was felt to be necessary to argue in support of the ' See post, ch. 2. lication. The kind of property in * Per Lord Mansfield Ch. J. and the crown, or a patentee Irom the Willes, J. in Millar v. Taylor, 4 crown, is just the same ; incorporeal, Burr. 2317,2401. Lord Mansfield's incapable of violation but by a civil remarks upon these cases are very injury, and only to be vindicated by cogent. He considered that ^^ crown the same remedy, as an action upon copies are, as in the case of an au- the case, or a bill in equity." Yates J. thor, civil property; which is de- in the same case, who dissented, held, duced, as in the case of an author, that the crown copies were founded from the king's right of original pub- on reasons of state or religion. 44 LAW OF COPYRIGHT. right of the crown by analogy to the right of the subject ; and the courts not only recognized the analogy, but wherever the particular publication afforded the least color for the claim as a claim of property, they always took care to rest the king's copy upon the same grounds that would have esta- blished the right in a private person. Fictions were resorted to, as in the case of the Latin Grammar, in order that the right of the king might stand upon property. All this shows that there existed at that time a right of property in copies, growing out of authorship, so well settled, so universally received and acted upon, and so thoroughly established in the notions of the profession and the public, that the crown was forced to borrow the aid of its analogies, and to claim upon the same title, as that which pro- tected a sermon or a poem. The proprietors of copies applied to parliament in 1709, for an act more effectually to secure their pro- perty forever, by what they thought a more adequate remedy than any that had then been used. It seems, that no one had then supposed that a bill would lie for an injunction and relief in equity.^ But the com- mon law remedy of an action was understood, though it was justly regarded as totally inadequate, both be- cause of the difficulty of proving all the actual dam- ages, and because " the defendant was always a pau- per."^ The petitioners therefore prayed, that con- ' Millar v. Taylor, 4 Burr. 2.'il7, ^ So assicned in the petition of 2405. Vern.220, 275. the booksellers. 4Burr. ii3l8. Al- HISTORY OF LITERARY PROPERTY. 45 FiscATiON of the counterfeit copies might be made one of the penalties. This led to the Statute 8 Anne, c. 19, passed in 1709.' The preamble of this act is worthy of attention. It is as follows : " Whereas printers, 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 ; for preventing therefore such practices for the future, and for the encourage- ment of learned men to compose and write useful books; be it enacted,"- Slc. The first section of the act then provides, that after the 10th of April, 1710, the authors of books already printed, who have not transferred their rights, and the booksellers, &c. who have purchased copies, shall have the sole right of printing them for the term of tw^enty-one years ; and the authors of books already composed and not printed, or thereafter to be composed, and their as- signs, shall have the sole right of printing the same for fourteen years ; with a penalty and forfeiture for printing without consent of the proprietor.^ The though there was no precedent of a Act for the encouragement of leam- common law action tried, yet that it ing, by vesting tlie copies of printed was universally held that an action books in the authors or purchasers at common law would lie is appa- of such copies, during the times rent from this petition. therein mentioned." ' See Appendix, p. 1. '8 Anne, c. 19. * The title of the act is, " An 46 LAW OF COPYRIGHT. second section declares that the books, the property of which is intended to be " secured" by this act are such as shall, before publication, have been en- tered at Stationers' Hall. It is now necessary to trace the history of the subject in the courts, after the passage of this act, until the year 1769 ; in order to see whether this statute was considered as the source of literary pro- perty, or whether in fact literary property was held to depend upon principles of the common law known and received before and independent of the statute. There are two classes of cases, within the period now under consideration, both of which have pro- ceeded upon the author's right of property indepen- dent of the statute. The first class is that of books or other writings after publication ; the second class embraces manuscripts before publication. 1. The question as to the common law right, with reference to old copies, after publication, could only arise after the full term of the act of Anne had passed, that is, at the end of twenty-one years from the tenth of April, 1710, or after the tenth of April, 1731. From this time until the case of Tonson v. Collins, in the king's bench in 1761, the court of chancery exercised a jurisdiction by injunction, in which the antecedent right of property must have been the right to which the court granted its protection. The first case was one before Sir Joseph Jekyll, as master of the rolls, in 1735, in which he granted an injunction against printing the Wlwle Duty of Man. HISTORY OF LITERARY PROPERTY. 47 This book first appeared in 1657, and tlie statutory term had passed. The right of the plaintiff there- fore could only have been the general right of pro- perty.^ In the same year also, (1735) Lord Talbot granted an injunction against printing Pope's and Swift's Miscellanies, many of which were originally published before the statute.^ In 1736, Sir Joseph Jekyll granted a third injunc- tion against printing Nelson's Festivals and Fasts, a book first published in 1703.^ In 1739, Lord Hardwicke granted a fourth injunc- tion against printing Milton's Paradise Lost, the title to which the plaintiffs derived under an assignment made by the poet in 1667."* In 1751, Milton's poem again came before Lord Hardwicke, in an application for an injunction to re- strain the defendant's printing an edition of the poem with the notes of Dr. Newton and other commenta- tors, all of which belonged to the plaintiffs. The bill derived a title to the poem by the author's assign- ment in 1667, to the life by Fenton, published in 1727, to Bentley's Notes, published in 1732, and to Dr. Newton's Notes, published in 1749. The de- fendants put in an answer immediately, and set up ' EjTe V. Walker, cited 4 Uurr. the objection that the statute term 2325 ; 3 Swanst. 073. Sir Joseph had expired. Jekyll sat in parliament when the ^ Walthoe v. Walker, cited ut act of Anne was pa.ssed. supra. * Mottc V. Falkncr, cited in Mil- " Tonson v. Walker, cited, ut lar V. Taylor, 1 IJurr. 2325, and in supra. At the date of this iiijunc- Tonson v. Walker, 3 Swanst. 673. tion, the term of twenty-one years LordAIansfield, (1 W. Blackst. 331) secured by the statute to old copies, said that this case was argued on had been exhausted for eight years. 43 LAW OF COPYRIGHT. notes of their own, of which it appeared there were twenty-eight ; while the notes of the other commen- tators belonging to the plaintiffs, and included in the defendant's edition, numbered fifteen hundred. Lord Hardwicke gave judgment in 1752, and held that the plaintiff's notes were within the protection of the statute ; and as to the poem, although he said that the general question had never been determined and there was a doubt, yet he granted an injunction until the hearing against printing the poem, the life, and all the notes that had been combined by Dr. New- ton.^ When the authority of this case came to be afterwards considered in the king's bench, in the time of Lord Mansfield, his lordship, and the rest of the judges who concurred with him, had no doubt as to the real opinion of Lord Hardwicke, and they attributed his suggestion of a doubt to his great de- cency and prudence in not acting decisively upon a question of law, on which a doubt had been raised, and which had not been settled in a court of com- mon law since the statute.^ ' Tonson i;. Walker, 3 Swanst. on to say that in the cases of crown 073. copies the general argument had ^ Millar V. Taylor, 4 Burr. 2327, been, that the books were made at 2403, 2404. There is very little rea- the expense of the crown, and there- son to doubt what Lord Ilardwicke's fore the property is in the crown ; opinion was, if the report of what fell and that these cases are used as from him, (in the case of Tonson?^. tending to prove a general right in Walker, in 3 Swanst.) be correct, and the author. (3 Swanst. 680.) Willes, there is good reason to believe it to J. in Millar v. Taylor, quoted Lord be so. He granted the injunction as Hardwicke as saying, " these argu- to the poem until the matter could be ments being allowed to support that considered at the hearing, because right [of the crown] infer such a there was a " probability of right in properly existing.'" (4 Burr. 2327.) the plaintiffs ; " and he then went Lord Mansfield added, "I heard HISTORY OF LITERARY PROPERTY. 49 All these injunctions were submitted to ; and Lord Mansfield said of them, that, although they were not granted upon a final hearing, yet he looked upon them as equal to any final decree, " for the judicial opinions of the great men who granted these injunc- tions, in cases clearly not w^ithin the statute, uncon- tradicted by any book, judgment, or saying, must weigh in any question of law ; much more, in a ques- tion of mere theory and speculation as to what is agreeable or repugnant to natural principles.'' ^ 2. The cases of injunctions against printing sur- reptitiously from unpublished manuscripts proceeded upon the admitted doctrine that every author has a property in his own writings before publication ; and it is diflicult to say, that the argument, which proves a property before publication, does not equally prove a property in the same writing after publica- tion.~ But without considering at present the ques- Lord Ilardwicke say what Mr. Jus- ment, &c. The court of king's tice Willes has quoted, as to these bench held that the ris^ht was con- arsjuments from property in support current in the plaintiff and the uni- of the kiniT^s riijht necessarily infer- \ersity, exclusive of all ot/ur persons, ling an aut/tor's.^' (I Burr. "ilOS ) The case is a full authority for the He also pointed out, thai at the time position that the king's copy cun- when liOrd Hardwicke used this ar- tinues after publication, at common gument, the question was depending law ; and we have seen that the in the king's bench in a case sent great effort always was to make the there by him for determination, kmg's copy depend upon property This was the case of Maskett v. The like that of the subject. See Lord University of Cannbridge, (I lil.ick. Matisfield's remarks in 4 Burr. -J 101, R. 10.5,) sent from the court of 2404. See also Baskett r. C'un- chancery in 1743; but it lay dor- ingham, 1 Black. R. 370 ; 2 Eden, mant for many years, and the judges' 137. certificate was not granted until ' 4 Burr. 239i). 1758. it was a question between * Lord Mansfield rejected the idea rival patentees of the crown, with of any distinction. See 4 Burr. regard to printing acts of parlia- 2397. 5 50 LAW OF COPYRIGHT. tion, Avhetlier publication is a dedication or abandon- ment to the public of an author's property in his own work, it is important here to state historically the jurisdiction that was exercised in the period now un- der consideration, with regard to manuscripts. In 1732, Sir Joseph Jekyll, on a bill filed by the son of Mr. Webb, a conveyancer, granted an injunc- tion against a person who was intending, without authority, to print the draughts left by Mr. Webb in manuscript.^ The injunction was acquiesced in. In 1741, in Forrester ?;. Waller, there was another injunction granted against printing the plaintiff's notes, obtained surreptitiously, without his consent.^ In the same year, also, in the case of Pope v. Curll, known to literary history, Lord Hardwicke granted an injunction against printing Pope's Letters to Swift.^ The injunction was submitted to. ' Webb V. Rose, cited 4 Burr, stimulate the resentment of his 2330. 2 Bro. P. C. 138. friends. Curll appeared at the bar, ^ Forrester v. Waller, cited ut and, iinowing himself in no great supra. danger, spoke of Pope with very ^ 2 Atk. 342. Dr. Johnson be- little reverence : ' He has,' said lieved this case to have been got up Curll, 'a knack at versifying, but by I'ope himself, in order to create in prose 1 think myself a match for for himself an opporlunity to pub- him.' When the orders of the house lish his letters as if in self-defence, were examined, none of them ap- " One of the passages of Pope's peared to have been infringed ; life, wtiich seems to deserve some (Jurll went away tiiumphant, and inquiry, wns a publication of letters Pipe was left to seek some other between him and many of his remedy. friends, which falling into the hands " (Jurll's account was, that one of Curll, a rapacious bocdiscller, of evening a man in a clergyman's no good fame, were by him printed gown, but wiih a lawyer s band, and .sold. This volume, containing brought and offered for sale a num- some letters from noblemen, Pope bi r of i)rintcd volumes, which he incited a pro.soi-ution against liim in found to be Pope's Epistolary Cor- thc house of lords for a breach of rcspondetice ; that he asked no name privilege, and attended himself to and was told none, but gave the HISTORY OF LITERARY PROPERTY. 51 In 1755, in the case of Manleyy. Owen, a bill was filed by some printers, who had bought of the lord- mayor the copy of the Sessions paper of trials, to enjoin the defendants from printing it. The injunc- tion was granted, upon the ground that the property passed by the lord-mayor's grant to the plaintiffs.' This injunction was acquiesced in. In 1758, the Duke of Queensborough, as the re- presentative of Edward, Earl of Clarendon,- filed a bill to restrain the defendants from printing, publish- ing, or disposing of Lord Clarendon's History of the reign of Charles the Second. The bill stated, that Henry, late Earl of Clarendon,^ was at his death pos- sessed of a manuscript copy of this history, in the handwriting of Edward, Earl of Clarendon, to the price demanded, and thought him- self authorized to use his purchase to his own advantage. " That Curll gave a true account of the transaction, it is reasonable to believe, because no falsehood was ever detected ; and when, some years afterwards, I mentioned it to Lintot, the son of Bernard, he de- clared his opinion to be, that Pope knew better than anybody else how Curll obtained the copies, because another parcel was at the same time sent to himself, for whieli no price had ever been demanded, as he made known his resolution not to pay a porter, and consequently not to deal with a nameless agent. " Such care Ir.ul been taken to make them public, tliat they were sent at once to two booksellers ; to Curll, who was likely to seize them as a prey ; and to Lintot, who might be expected to give Pope informa- tion of the seeming injury. Lintot, I believe, did nothing ; and Curll did what was expected. That to make them public was the only reason, may be reasonably supposed, be- cause the numbers, ofiered to sale by the private messengers, showed that tbe hope of gain could not have been the motive of tlie impression. " It seems that Pope, being desi- rous of printing his letters, and not knowing how to do, without impu- tation of vanity, what has in this country been done very rarely, con- trived an appearance of compulsion, that, when lie could complain that his letters were surreptiiiously pub- lished, he might decently and de- fensively publish them himself." — Ju/inson's Life of Pope. ' Manley v. Owen, cited 4 Burr. 2329, 2101. * Edward, first Earl of Clarendon, the lord chancellor. ' Henry, second Earl of Claren- don, son of tbe lord chancellor. 52 LAW OF COPYRIGHT. sole property whereof the plaintiff, as administrator to the late earl, became entitled. The defendant, Shebbeare, by his answer, stated, that the defendant, Gwynne, from whom he received the manuscript copy, told him that Henry, Earl of Clarendon, thirty-three years before, delivered to his (Gwynne's) father the original manuscript of the history, that he might take a copy of it, and make use of the copy as he should think fit ; and that a copy was accordingly taken. The court was of opinion, that it was not to be presumed that when Lord Clarendon, the son, gave the elder Gwynne a copy of his father's manu- script, he intended that he should have the right to print it ; that Mr. Gwynne might make every use of it, except that.^ The injunction was granted, and was acquiesced under ; and Shebbeare afterwards re- covered against Gwynne, before Lord Mansfield, large damages, for representing that he had a right to print.^ Thus stood the law of England upon this subject until the year 1761, when the action of Tonson v. Collins, upon the copyright of the Spectator, was brought in the court of king's bench. The plaintiffs were the representatives and assigns of Jacob Ton- son, who purchased the work of Mr. Addison and Sir R. Steele, in 1712. Of course, this copy was not within the statute of Anne, the term of protection ' Duke of Qucensbury v. Sheb- ^ 4 Burr. 2330, 2397. beare, 2 Eden's Ch. R. 329, cited 4 Burr. U. 2330, 2397. HISTORY OF LITERARY PROPERTY. 53 given by that act having long passed before the com- mencement of the action. The case was twice so- lemnly argued in the king's bench, and was then, by direction of Lord Mansfield, adjourned into the ex- chequer chamber, to be argued before all the twelve judges.^ This reference was not made from any difference of opinion or difficulty among the judges of the king's bench ; but they suspected collusion, and thinking that there might be no writ of error brought, they chose to take the opinion of all the judges. The court were afterwards clearly informed that it was a case of collusion between the parties, though it had been argued bona jide by the counsel, and the case therefore fell to the ground.^ In this manner passed away the first opportunity for the establishment, in a court of law, of a doctrine of the highest interest and importance to letters and literary men. But few years, however, could elapse before the question must have been again present- ed, in a serious contest between parties litigating actual interests. The literature of Ensrland em- braced so many standard works in the latter part of the last century, out of which the question must ne- cessarily arise whether all the rights of the author or his assigns were lost at the expiration of the period of protection fixed by the statute of Anne, that it is remarkable that the decision was deferred to so late a period as the year 1769. It was reserved for the ' Tonson i'. Collins, I W. Black. * See 4 Burr. 2100, statement of R. 301, 321, 315. Lord Mansfield. 6* 54 LAW OF COPYRIGHT. most celebrated work of the poet Thomson, to pre- sent the case upon which the doctrine of perpetual property was to be adjudged in the court of king's bench, before it was finally overthrown in another cause, which went to the house of lords from the court of chancery. " The Seasons, by James Thomson," was first published by him, for his own use and benefit as pro- prietor, at several times between the beginning of the year 1727 and the end of the year 1729. In the latter year he sold the work to Andrew Millar, who entered it at stationers' hall, and continued to pub- lish it down to the time of the poet's death, which occurred in August, 1748, and from thence until the year 1763, when Robert Taylor put forth an edition of the poem, without the license or consent of Millar. The term of years secured by the statute of Anne had expired ; and the action brought by Millar in the king's bench, in 1766, proceeded upon the claim of a perpetual property at common law in the author and his assigns.' The special verdict in this case found that before the reign of 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 valua- ble considerations, and to make the same the subject of family settlements, &c. The verdict also found the by-laws of the stationers' company, passed in 1681 and in 1694, which have already been cited.^ ' MUIar V. Taylor, 4 Burr, 2303. * Ante, pp. 36, 37. HISTORY OF LITERARY PROPERTY. 55 The cause was twice argued before a full bench, Lord Mansfield presiding, and judgment was finally rendered for the plaintiff in 1769, Yates, J. dis- senting.^ The great men concerned in this cause, the ability with which it was argued, and the deliberation at- tending the decision, must forever give it a high value in the estimation of every lawyer. It was ar- gued and adjudged with consummate learning and ability ; Lord Mansfield's judgment was worthy of his great name, and he was assisted by two of his brethren in a manner that reflects upon them and him the highest honor. A writ of error was after- wards brought, but it was never prosecuted ; and the lords commissioners, after Trinity term, 1770, granted an injunction. In estimating this celebrated decision, it is neces- sary for the historical inquirer to notice by what ' The first argument was by Mr. dissolved an injunction that had been Dunning fur the plaintifT, and Mr. obtained, because the general quea- Thurlow for the defendant ; the se- tion had never been determined, and cond by Mr. lilackstone for the directed an action at law to try the plaintiff, and Mr. Murphy for the right. In consequence of this, the defendant. The judges concurring question was afterwards brought in the judgment were Lord Mans- forward in the shape of a special field, C. J., WillesJ. and Aston J. ; verdict, as it now appears in Millar Yates J. dissented. — The case first v. Taylor, 4 Burr. Lord Mansfield arose in the court of chancery, and in this case took notice of the cir- was sent to the king's bench for a cumstances under which the case decision of the general question of had been sent before him, and said properly, at the time when the case that " there never had been a doubt of Tonson v. Collins hung in that in the court of chancery, until a court under an appearance of doubt, doubt was raised there from dccen- In the court of chancery, in July, cy, upon a supposed doubt in this 1765, in the case of Millar v. Don- court in the case of Tonson v. Col- aldson, reported 2 Eden's Ch. R. hns." 4 Burr. 2400. 327, Lord Chancellor Northington 56 LA.W OF COPYRIGHT. Standard the right of the plaintiff, as a right at com- mon law, was tried. Printing was introduced into England within the time of legal memory, that is, since the reign of Richard II. It was therefore out of the question to found the right of perpetual litera- ry property upon immemorial usage or precedent. But a right may exist at the common law of England upon principles of natural justice, moral fitness, and public convenience ; which, when applied to a new subject, make common law without a precedent ; and if the alleged right has been received by usage, it is still stronger. The argument therefore divided itself into two great branches. Under the first head, the inquiry was directed to the legislative and the judi- cial, as well as the common opinion of the country, to ascertain whether this right had been generally received and treated as a right of property ; and, under the second head, the justice, fitness, and con- venience of the doctrine furnished the grounds on which the adjudication was in part rested.^ ' M. Rcnouard has put the qucs- that must be given to these ques- tion, with great pertinency, " What tions, aficr a survey of the historical were the provisions of the common part of the argument. An author law in England, before the statute in England either had some right to of Anne 1 Had the author any right enjoy the profits of his publicaiion, of copy? Has the statute of Anne before the statute, or he had none, given a right which the common If he had any right at all, it is difR- law did not confer, or has it on the cult to see what restrained it to a contrary restrained a right which right short of a perpetuity. I have the common law did confer 1" — never met with the argument which ( Traite d<:s Droits D^Auleurs, Par denies the existence of all right August in- Charles Rcnouard, Con- whaiever, except that which goes seiiler a La Cour de Cassation. Pa- the length of inferring an abandon- ris, 1838, tom. 1, p. 233.) It is mcnt or surrender to the public by difficult to escape from the answer the act of publication. HISTORY OF LITERARY TROrERTY. 57 One great struggle in this, and the preceding case of Tonson v. Collins was, to show that by the act of publication, the author abandoned or surrendered any right of property which he might have had in his ideas, or in the form in which they were expressed. But this was answered conclusively by the court. From the doctrine, that the author had by the com- mon law of England, as had always been admitted, a property before publication, the court declared that there could be no just distinction founded on the mere fact of publication. If the property exists, while the work is still in manuscript, before publica- tion, there is nothing in the mere act of publication which shows an intention to abandon or give away that property. If the author does not mean to aban- don or give it away, then the question resolves itself into this, whether it is agreeable to natural princi- ples, moral justice and fitness, to allow him the copy after publication, as well as before ? Of this ques- tion, said Lord Mansfield, " the general consent of the kingdom for ages is on the affirmative side;" and he, as well as the judges who concurred with him, deduced that consent from the whole judicial and legislative opinion that had preceded the statute. Having thus deduced the right of literary property, the question remained to be disposed of, whether the statute of Anne had abridged it, so that the owner could claim only the exclusive right for a term of years. Upon this question, the court held, that the statute had not taken away the property of authors 58 LA.W OF COPYRIGHT. at common law ; but was merely intended to give, for a term of years, a more efficient protection, where the entry and the other provisions of the act should have been complied with/ But this decision was not long acquiesced in. A cause had been for some time pending in the court of chancery, in which a Mr. Becket complained of a publication by the Messrs. Donaldson of a book belonging to him. After the decision in Millar v. Taylor, Lord Chancellor Apsley granted an injunc- tion, as of course, in favor of Mr. Becket, pursuant to the decision of the general question in the court of king's bench, and an appeal from this decree was taken to the house of lords.^ This appeal came on to be heard in 1 774, and was argued by Thurlow, attorney-general, and Sir John Dalrymple against the right at common law, and by Wedderburn, solicitor-general, and Dunning, in favor of it. The judges were ordered to deliver their opinions. Ten of the judges were of opinion that at common law an • Yates, J. dissented upon this Manafield, he would probably have question also. given a reason of great significance * Apsley is the proper title of this with him. Lord Cannpbell repre- chancellor to the year 1775, though sents him as a weak person, accus- he was afterwards Lord Bathurst, tomed to lean upon the chief justice, and is called by the latter title by But when he came to speak to this Lord Campbell, tiirough the whole question in the house of lords, he of his chancellorship. I have fol- seems to have emancipated himself lowed the reporters, but he is usually from the authority of Lord Mans- styled Lord Bathurst in modern field, and declaring himself impar- timcs. lie professed to have made tial, went the other way, (17 Pari, this decree as of course, because Hist. 1001.) See his Life, in Lord the point had been so decided in the Campl)ell's Chancellors, vol. v. pp. king's bench, (17 Pari. Hi.st. 1001.) 432-472. If he had said he had followed Lord HISTORY OF LITERARY PROPERTY. 59 author of any book or literary composition had the sole right of first printing and publishing the same for sale, and might bring an action against any per- son who printed, published and sold the same with- out his consent ; and one judge was of the contrary opinion. Three judges were of opinion that the law took away the right after publication, so that any person could, without leave of the author, print and publish a book which the author had once publish- ed ; and eight were of the contrary opinion. Six judges were of opinion that the statute of Anne took away the action at common law, and that an author had no remedy except upon the founda- tion of that statute ; and five were of the contrary opinion. Seven judges were of opinion that the author of any book or literary composition, and his assigns, had the sole right of printing and publishing the same, in perpetuity, by the common law ; and four were of the contrary opinion. Six judges were of opinion that this right in per- petuity is impeached, restrained and taken away by the statute of Anne ; and five were of opinion that it is not.^ Lord Mansfield, being a peer, did not deliver any opinion ; but it was notorious, that he adhered to the judgment which he had delivered on all these ques- tions ; ~ and thus, of the twelve judges, the great ' 17 Pari. Hist. 971 et seq. ; 4 ' Sir James Burrow says it was Burr. R. 2108, et seq. notorious that Lord Mansfield ad- 60 LAW OF COPYRIGHT. weight of authority and numbers was in favor of the perpetuity at common law ; and upon the question, whether such right was taken away by the statute, the judges were equally divided.^ In this posture of the case, Lord Camden came forward to move the judgment of their lordships, and delivered an elaborate argument against the common law right of property, which turned the scale. His speech was able and ingenious, but sarcastic, sophis- tical, and not altogether fair towards the other side of the question. It was chiefly devoted to answering the judgment of Lord Mansfield in Millar v. Taylor.^ hered to his opinion ; but it being very unusual (from reasons of delica- cy) for a peer to support his own judgment, he did not speak. 4 Burr. 2417. He was afterwards much blamed in the house of commons for not speaking. This w;is on the oc- casion of an application by tiie book- sellers for an extension of the term of copyright, they having, as it was shown, laid out great sums, on the authority of the decision in the king's bench. It was even said, that had Lord Mansfield defended his judgment, in the house of lords, the then pending bill would never have been brought in. 17 Pari. Hist. 1090. ' The leading argument, adverse to the right of perpetuity, among the judges, was that delivered by De Grey, Lord Ch. Justice of the common pleas. He tlius disposes of the question as to the effect of publication: "But it is said, that the sale of a printed copy is a quali- fied or conditional sale, and that the purchaser may make all the uses he pleases of his work, except that one of reprinting it ; but where is the evidence of this extraordinary bargain? or where the analogy of law to support the supposition. In all other cases of purchase, payment transfers the whole and absolute property to the buyer ; there is no instance where a legal right is other- wise transferred by sale, an exam- ple of such a speculative light re- maining in the seller. It is a new and metaphysical refinement upon the law ; and laws, like some man- ufactures, may be drawn so fine as at last to lose their strength with their solidity." 17 Pari. Hist. 990. ^ As an American, I am bound to hold the memory of Lord Camden, the statesman, in the highest honor. But to a lawyer, the cause of truth, in all that concerns the science of human rights, is cosmopolitan. It- is impossible to read this speech of Lord Camden's, with the book of history open before us, without per- ceiving that there were secret causes of bias operating upon his judg- ment. He spoke sincerely, without doubt. He was too great and too 1 HISTORY OF LITERARY PROPERTY. 61 The passage of declamation in which he argued that glory and not profit is or should be the reward of men of letters, has been often quoted, and is now the most familiar portion of the speech. He declared that there was no foundation for literary property in the common law, and none in the principles of sound policy, or good sense. He denounced the perpetuity contended for, as odious and selfish, deserving of reprobation, and likely to become intolerable.^ He good a man, not to say too great a lawyer, to have purposely mis- led the judicial action of the house of lords. But it cannot be doubt- ed, that he was predisposed to en- counters witli Lord Mansfield ; and, that his opinions were thus influ- enced by a rivalry in which he was prone lo indulge, is but too ap- parent in the speech itself. It is, without direct allusion, a running answer lo Lord Mansfield's judg- ment in Millar v. Taylor. He han- dles the same topics, follows in the same track, and turns or seeks to turn the positions of the illustrious chief of the king's bench and of his associates who agreed with him. The truth is, these great men for a long time time contended for the su- premacy as law lords in the upper house. It appears that when Lord Camden first entered that assembly, " Lord Mansfield instinctively dread- ed a contest for the supremacy which he had enjoyed there since the death of Lord liardwieke ; " ( Lord Camp- bell's Lives of the Chancellors, V. 252,) and although when he and Lord Camden sat together at the hearing of appeals, they conducted with great decorum, and rarely dif- fered in opinion, when settling to- gether the law in the last resort, there were other occasions when 6 they attacked each other in debate so sharply as almost to render it ne- cessary for the house to interfere. In one scene, which occurred about four years before the discussion of the question of literary property, they liad a personal controversy of a very disagreeable character, in which Lord Camden seems to have triumphed by the exhibition of more nerve than belonged to " the silver- tongued Murray." (Campbell, ut sup. p. 295.) Alas, that history should be obliged to chronicle the foibles of the great, who demand and receive the reverence of posterity. ' " If, then, there be no founda- tion of right for this perpetuity by the positive laws of the laud, it will I believe find as little claim to en- courarrement upon public principles of sound policy, or ffood sense. If there be anythinir in the world com- mon to all mankind, science and learning are in their nature jnib/ici jnrix, and they ought to be as free and jreneral as air or water. Tiiey forget their Creator, as well as their fellow creatures who wish to mo- nopolize his noblest gilts and great- est benefits. Why did we enter into society at all, but to enlighten one another's minds, and improve our faculties, for the common wel- fare of the species ? Those great 62 LAW OF COPYRIGHT. was answered, it is said, very ingeniously, by Lord Littleton, a lay peer, who spoke in favor of au- mcn, those favored mortals, those sublime spirits, who share that ray of divinity which we call genius, are intrusted by Providence with the delegated power of imparting to their fellow-creatures that instruc- tion which heaven meant for univer- sal benefit ; they must not be nig- gards to the world, or hoard up for themselves the common stocic. We know what was tiie punishment of him who hid his talent, and Pro- vidence has taken care that there shall not be wanting the noblest motives and incentives for men of genius to comnmnicatc to the world those truths and discoveries which are nothing if uncommunicated. Knowledge has no value or use for the solitary owner : to be enjoyed it must be communicated. ' Scire tu- um nihil est, nisi te scire hoc sciat alter.' Glory is the reward of sci- ence, and those who deserve it, scorn all meaner views : I speak not of the scribblers for bread, who tease the press with their wretched pro- ductions ; fourteen years is too long a privilege for their perishable trash. It was not for gain, tliat Bacon, New- ton, Milton, Locke, instructed and delighted the world; it would be unworthy such men to traffic with a dirty bookseller for so much a sheet of a letter press. When the book- seller ofiered Milton five pound for his Paradise Lost, he did not reject it, and commit liis poem to the flames, nor did he accept the miser- able pittance as the reward of his [abor ; he knew that the real price of his work was immortality, and that posterity would pay it. iSome authors arc 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 impression of a useful work to be put forth, or wait till a wife or children are to be provided for by the sale of an edition 1 All our learning will be locked up in the hands of the Tonsons and the Lin- tons 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." 17 ParL Hist. 999, 1000. As Lord Camden cites the exam- ple of Milton, to show that he placed no value upon the rig'ht of property in his great poem, it may be well to repeat the authentic facts concerning the sale of that copyright. Milton sold his copy to Samuel Simmons in 1067, for an immediate payment of five pounds. But the agreement entitled him to a conditional pay- ment of five pounds more when thir- teen hundred copies should be sold of the first edition ; of the like sum after the same number of the second edition ; and of another five pounds after the same sale of the third edi- tion. The number of each edition was not to exceed fifteen hundred copies. In two years, the sale gave the poet a right to his second pay- ment, for which he signed a receipt on the 26th of April, 1669. The second edition was not printed till 1074, and Milton did not live to re- ceive the payment stipulated for this impression. The third edition was published in 1078; and his widow, to whom the copy was then to de- volve, agreed with Simmons, the printer, to receive eight pounds for her right, according to her receipt, dated December 21, 1680 ; and she gave him a general release, dated April 29, 1G81. Simmons sold the HISTORY OF LITERARY PROPERTY. G3 thors.' Their lordships divided, twenty-two for re- versing the decree, and eleven for confirming it. Thus the right of authors in their publications, as a right at the common law of England, affirmed by a majority of the judges to have previously existed, was lost forever. Lord Camden's argument, on this occasion, went the length of maintaining that publication is an aban- donment to the public of all the author's previous right over his own productions. Admitting that every man has a right to his thoughts while they continue his, he contends that they become publici juris, as soon as he has published them ; that the common law had never recognized ideas as sub- jects of property, and had never declared whether riffht to Brabason Aylmer, a book- seller, for twenty-five pounds, and Aylmer sold it to Jacob Tonson, one moiety in August, 1GH3, and the other moiety in March, 1G90, at a price considerably advanced. (Todd's Life of Milton, 193-195, Lond. 182G.) It thus appears that the poet was very careful to assert his full rifjht of property, as he and others understood it at the time, and to make it available to his family. The amount which he chose to re- ceive, compared with the real value of the poem, or measured by a mod- ern standard, seems very triflintj. But as such rights were estimated then, and considering that the poem gained slowly upon the attention of his own age, it was not a grossly inadequate price. When it had been published fourteen years and up- wards, the copyright helwren one bookseller and another^ brought only twenty-five pounds. Yet its value could not have been affected by any apprehension, at the time of this sale, that it was not protected by the common law. Such a notion had not then arisen ; and long after, viz. in 1739, Lord Hardwicke protected bj' injunction the title of Tonson, derived under the assignment made by the poet in 16fi7. (Ante, p. 47,) Doubtless Milton did not write his great poem f Wheaton v. Peters, 8 Peters S. C. R. 691. HISTORY OF LITERARY PROPERTY. 81 habitants of, or residing in other states, until such states should have passed similar laws.' These provisions show that the rights of authors in their published Avorks existed by statute, in some of the states, before the constitution of the United States was formed ; and there cannot be much doubt that they also existed, in the older states, at com- mon law. What, then, were the rights of authors, to be " secured," under the power granted to the national legislature ? The object to be gained by this grant of power will aid in determining the mean- ing of the language employed. The object clearly was to enable the general government to make laws which should secure the proceeds of a book in all the states to an author residing and publishing in any one of the states. The old congress had this object in view, when they recommended to the states to pass laws for this purpose ;^ and it was distinctly urged, by the advocates for the adoption of the fed- eral constitution, as the main reason for the pro- vision.^ It would seem, therefore, that the rights of au- thors to be "secured" by congress, under this clause of the constitution, were exclusive rights to take the profits of their own publications throughout the United States. In this view, the constitution and the act of 1790 created a right which did not 1 1 Mass. Laws, 94, (edit. 1801.) * Ante, p. 78. Wheaion v. Peters, 8 Peters S. C. * The Federalist, No. 43. R. 681,662, 683. 82 LAW OF COPYRIGHT. exist before ; and this may account for the use of the word " secure." Whether this power is exclusive, so that the states cannot now legislate for the pro- tection of authors within their own limits, is one of the grave questions of our complex system of gov- ernment.' The act of 1790 was followed by a supplementary act, passed April 29th, 1802, which extended the benefits of the former statute to engravers.- By an act passed February 3d, 1831, the former laws were consolidated and revised, and this act constitutes the existing copyright law of the United States.^ • See Story's Com. on the Con- ' See Appendix, 4 U. S. Statutes stitution, § 1149. at large, 436. " See Appendix, 2 U. S. Statutes at large, 171. CHAPTER II. OF THE SUBJECTS OF LITERARY PROPERTY, BEFORE AND AFTER PUBLICATION. In the following chapter, the various subjects of literary property, both before and after publica- tion, will be considered in detail. I. And first, with regard to that class of writings, to which rights and remedies have been applied, bearing a close analogy to those applicable to copy- rights, viz. writings existing in manuscript and un- published. We have already seen that in general, the author or owner of an unpublished manuscript possesses a property therein, which consists in the right to appropriate it to such uses as he shall please.' This is a right at common law, and is of course wholly independent of the statutes which create a property after publication, consisting in the exclusive right to the profits of publication. The existence of such a property has been repeatedly recognized with regard to many sorts of compo- sitions, and it is now perfectly well settled, that the author or proprietor of an unpublished man- ' Ante, p. 49-52. 84 LAV*'" OF COPYRIGHT. uscript may obtain the interference of a court of equity, to prevent its unauthorized publication.^ This right of property rests upon one of the ulti- mate foundations which sustain property in general ; namely, the right which every man has to the exclu- sive possession and control of the products of his own labor. In the great case of Millar v. Taylor, in which the principles on which this right depends were so fully examined, Lord Mansfield declared that the source from which the common law is drawn, in respect of a copy before publication, is this — " Because it is just, that an author should reap the pecuniary profits of his own ingenuity and labor. It is just that another should not use his name without his consent. It is Jit, that he should judge when to publish, or whether he ever will publish. It is Jit, he should not only choose the time, but the manner of publication ; how many — what vol- ume — what print. It is Jit, he should choose to whose care he will trust the accuracy and correct- ness of the impression ; to whose honesty he will confide, not to foist in additions."^ ' Webb V. Rose, cited 4 Burr. ' Millar v. Taylor, 4 Burr. 2398. 2330 ; 2 Bro. P. C. 138 ; Forrester Sir W. D. Evans has intimated V. Walker, cited ut supra. PopeiJ. strong doubts of the correctness of Curl, 2 Atk. 342; Manley u. Owen, Lord Mansfield's reasoning in this cited 4 Burr. 23iJ0, 2490. Duke of case on the subject of a property in Queensbury v. Shebbeare, 2 Eden's manuscripts, or what his lordship Ch. Ft. 32!J ; tioutbey v. Sherwood, accurately calls, in technical lan- 2 Mcriv. 434; Macklin v. Richard- guage, " copij, before publication." son, Amb. 094 ; Donaldson u. Beck- Lord Mansfield's argument was, et, 4 Burr. 2408 ; Wheaton v. Pe- that the same principles of justice ters, 8 Peters S. C. R. 591, 6G1 ; and fitness, which are the admitted 2 Story's Eq. Jurisp. § 943 ; Eden foundation of an author's sole right on Inj. ch. 13, p. 275, 27G. before publication, apply to his right MANUSCRIPTS. 85 The incorporeal right in an unpublished manu- script belongs exclusively to the author, and cannot be seized by creditors, to the effect of entitling them to publish it.^ after publication ; and that as the common law recojjnizes and protects the former, it follows that the latter is equally a right at common law, unless the act of publication is to be taken as an abandonment of the right, which he denies. Sir W. D. Evans seems to think that, as the house of lords in Donaldson v. IJcck- et, overthrew the decision in Millar V. Taylor, and declared that there is no perpetual right at common law in published works, the reason- ing of Lord Mansfield on the subject of a copy in manuscripts is also proba- bly overruled. He closes some ex- tended remarks with the following observation : " Lord Mansfield, to support the perpetual right to works published, argues that an unpub- lished manuscript cannot be distin- guished from them ; and may not that argument now be applied to the ultimate decision of the house of lords against a perpetual common law right of publications, and ex- tended to manuscripts! " 2 Evans's Statutes, 20, note [11]. See also his edition of Lord Mansfield's decisions, vol. i. p. 38G, note (h). The learned commentator seems not to have carefully considered the points actually decided in Do- naldson V. Becket. An analysis of the questions put to the judges, and of their answers, exhibits the force of that decision. Eleven judges attended, and gave their answers. Ten were of opinion that at common law, an author of any literary composition had the sole right of first printing and pub- lishing tlie same for sale, and might 8 bring an action against any person who printed, published and sold the same without his consent ; eight were of opinion that the law did not take away his right, upon his print- ing and publishing such book or literary composition, and four were of the contrary opinion. Six were of opinion that the author's right of action at common law, after he had published, is taken away by the statute 8 Anne, and that he has no remedy except on the foundation of that statute ; while five were of opinion that the statute did not take away the common law right of action. It is manifest, therefore, that this decision confirms, in the most solemn manner, the doctrine of a sole right before publication, as part of the common law ; that it negatives the position that publica- tion alone takes away the right, but that it decides, by a bare majority of the judges who spoke, that the sole right at common law to multi- ply copies, after publication, is taken away by the statute, and depends wholly upon the terms and condi- tions of the act. See ante, p. 58, 5'J. ' Mr. Bell says, " The right at common law can exist only while the composition remains uniuiblish- ed. But the property of unpui)lish- ed literary compositions is not within the reach of creditors, to the efiect of entitling them to ptiblish them. No man can be forced, by any op- eration of the law, to publish his thoughts, even for the benefit of his creditors. And his rigiit of with- holding the publication will con- tinue till the very moment his book 86 LAW OF COPYRIGHT. This property in copy descends to personal re- presentatives, though neither the author nor his representatives have any manuscript whatever of the work. Thus, the copy of Lord Clarendon's History, at the distance of near a hundred years, was adjudged to his representatives,^ and Lord Mansfield thought that although the manuscript in the defendant's hands might have been the only copy in existence, they could not print and pub- lish without the plaintiff's consent." In like man- ner, the son and devisee of Mr. Webb, a convey- is actually given out to the public. Even the printer of the book -will not be entitled to sell it for his pay- ment, although there is not the smallest doubt that he has a com- plete lien over it till delivery, to pre- vent the author, or his creditors, from taking advantage of the publi- cation till he shall be paid. When a book is published, the property of it forms a subject which creditors are entitled to attach and sell : and the price unpaid by the bookseller is as completely open to the diligence of creditors, as the price of any other commodity or piece of mer- chandise." 1 Bell's Com. p. 68. ' Duke of Queensbury v. Sheb- beare, 2 Eden's Ch. R. 3-29. " 4 Burr. 2397. The facts of the case were these. Henry, the sec- ond Earl of Clarendon, son of the lord chancellor and historian, gave to one G Wynne the original MSS. of his father's history, in order that he might take a copy of it, and make use of the copy as he should think fit ; and a copy was accordingly taken. The administrator of Lord Clarendon, the son, brought a bill to restrain the publication of this work by Dr. Shebbeare, to whom Gwynne's son had sold or delivered the MSS. The lord keeper, Hen- ley, was of opinion that it was not to be presumed that when Lord Clarendon, the son, gave the elder Gwynne a copy of his father's MSS. he intended he should have the right to print it ; that Mr. Gwynne might make every use of it except that. Duke of Queensbury v. Sheb- beare, 2 Eden's Ch. R. 329. Upon this case Lord INIansfield observes, "Mr. Gwynne was entitled, un- doubtedly, to the -pajKr 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 man- uscript of it in being, Mr. Gwynne might have thrown it into the fire, had he pleased. But, at the dis- tance of near a hundred years, the copy was adjudged the property of Lord Clarendon's representatives; and Mr. Gwynne's printing and pub- lishing it, without their consent, was adjudged an injury to that pro- perty ; for which, in different shapes, he paid very dear." 4 Burr. 2397. MANUSCRIPTS. 87 ancer, obtained an injunction against his father's clerk, to prevent him from printing his father's man- uscript draughts.^ So also, the assignees of the writings of President Washington, who derived their title through his devisee, obtained an injunction against certain persons who had pirated them from the edition published by them.- Under what circumstances the author or proprietor of a manuscript may be deemed to have authorized its publication, is a question of some nicety as well as importance. Merely parting with the possession of a manuscript, or intrusting the possession to a third person, are acts which do not carry with them proof of an intent to part with the ownership of the intellectual contents. Such acts must be limited, in point of effect, to the purposes, expressed or implied, for which the possession was given.^ Thus the giving of a manuscript copy of Lord Clarendon's history, to be used as the donee should think fit, was held not to have authorized its publication,'* and the pos- session of letters by the person to whom they were addressed, does not take away from the writer the right to object to their publication.^ So the allowing a manuscript play to be acted will not amount to a license to publish it.*^ And where copies of a piece ' Cited in Millar v. Taylor, 4 ' 2 Story's Eq. Jurisp. §943. Burr. 2330. See also Thompson i'. * Duke of Queensbury v. Sheb- Stanhope, Amb. 739. Earl of Gra- beare, 2 Eden's Ch. R. 329. nardu. Dunkin, 1 Ball & Beat. 207. ^ Pope v. Curll, 2 Atk. 312. Folsom V. Marsh, 2 Story's R. 100. Thompson v. Stanhope, Amb. 773. • Folsom V. Marsh, 2 Story's R. * Macklin v. Richardson, Ambl. 100, 168. 694. 88 LAW OF COPYRIGHT. of music had been distributed in manuscript for a year, by the author, before it was printed, it was held that the copyright was not lost.^ But Lord Eldon seems to have thought that the circum- stances in Mr. Southey's case, where he had left his manuscript a long time in the hands of a pub> lisher, without inquiry, authorized the inference that he had abandoned his own right as author.^ Perhaps the soundest rule would be, to hold that when express consent is not proved, the nega- tive is implied as a tacit condition.^ Most of the cases seem to proceed upon this principle,'^ and it was adopted and acted upon by Mr. Justice Story, in relation to the writings of Washington, consisting of his correspondence, addresses, messages and other papers, official and private.^ The ground was taken in this case that these writings were public in their nature and were intended by the author for public use. But the facts of the case did not show that General Washington intended them as a donation to the pub- lic, and the court laid down the principle, that un- less there be a most unequivocal dedication of private letters and papers by the author, either to the public or to some private person, the author has a property therein, and the copyright thereof exclusively be- 'Whiteu.Gcrooch,2B.&A.290. ■• Thompson v. Stanhope, Amb. * Southey v. Sherwood, 2 Meriv. 737. Duke of Queensbury v. Sheb- See some observations upon tliis beare, 2 Eden, case, anle. * Folsom v. Marsh, 2 Story's R. ^ Per Willes J. in Millar v. Tay- 100, 109. lor, 4 Burr. 2330. LETTERS. 89 longs to him/ In the United States, manuscripts are now under the protection of the statute of 1831, which gives a remedy, at law and in equity, against any person who shall print or publish, or be about to publish any manuscript whatever without the con- sent of the author or legal proprietor first obtained, if the author or proprietor be a citizen of or resident in the United States.^ II. Letters, addressed from one correspondent to another, have formed the subject of special dis- cussion in courts of equity, and the principles on which the respective rights of the parties depend are analogous to those which govern in the case of other ' The learned judge said, "In re- lation to this objection, it is most man- ifest, that President Washington deemed them his own private pro- perty, and bequeathed them to his nephew, the late Mr. Justice Wash- ington, through whom the late Mr. Ch. Justice Marshall and Mr. Sparks acquired an interest therein ; and, as appears from the contract between these gentlemen, annexed to the re- port, tiic puidication of these writ- ings was undertaken by Mr. Sparks, as editor, for their joint benefit ; and the work itself has been ac- complished at great expense and la- bor, and after great intellectual ef- forts, and very patient and compre- hensive researches, both at home and abroad. The publication of the defendants, therefore, to some ex- tent, must be injurious to the rights of prnpi>rty of the representatives and assignees of President Wash- ington. Indeed, as we shall pre- 8* sently see, congress have actually purchased these very letters and manuscripts, at a great price, for the benefit of the nation, from their owner and possessor under the will of Mr. Justice Washington, as pri- vate and most valuable property. That President Washington, there- fore, intended ihem exclusively for public use, as a donation to the pub- lic, or did not esteem them of value as his own private property, ap- pears to me to be a proposition, completely disproved by the evi- dence. Unless, indeed, there be a most unequivocal dedication of pri- vate letters and papers by the au- thor, either to the pul)lic. or to some private person, I hold, that the au- thor has a property therein, and that the copyright thereof exclusively belongs to him." * Act of Congress of 3d Feb. 1831, ^9. 90 LAW OF COPYRIGHT. manuscript writings. It may be well briefly to re- view the authorities on this subject, in their histori- cal order. The first case is that relating to the letters of Pope to Swift. Mr. Pope obtained an injunction against Curll the bookseller, to prevent the vending of a book containing his letters to Swift. The ground was taken, on a motion to dissolve the injunction, that a letter is in the nature of a gift to the receiver. Lord Hardwicke said he was of opinion that it is only a special property in the receiver, possibly the pro- perty of the paper may belong to him ; but this does not give a license to any person whatsoever to pub- lish it to the world, for at most the receiver has only a joint property with the writer.^ The objec- tion was also raised, that the letters were only on familiar subjects, and the book could not properly be called a learned work. But his lordship did not admit the distinction." An injunction was granted against the letters written by Pope, but not against the rest of the book. The next case related to Lord Chesterfield's letters to his son, containing characters of persons, besides disquisitions on politics, literature and education. The widow of the son, in whose possession the let- ters remained, restored to Lord Chesterfield some ' Pope V. Curll, 2 Atk. 342. Mr. print, when the injunction was ob- Popc had no copies of these letters, tained. Lord Hardwicke held that See Lord Mansfield's statement, 4 a book of letters was within the Burr. 2307. grounds and intention of the act of * It seems that the book was in Anne, as much as any other work. LETTERS. 91 of the characters, at his request, but kept copies of them ; and she also kept the rest of the original let- ters, which he did not ask for. After Lord Chester- field's death, she was about to publish the letters, not including the characters, when his executors ap- plied for an injunction. Lord Apsley, C. granted the injunction, upon the ground that the defendant had not obtained the consent of Lord Chesterfield or his executors.^ The case of Perceval v. Phipps, next in point of time, seems to admit the right of the holder of letters to publish them, where the publication is necessary to the defence of his character against an unjust im- putation.- The acts of the parties in this case sup- plied reasons for not restraining the publication. In Gee v. Pritchard, the doctrine of property in the writer, in letters of familiar friendly correspond- ence, was admitted by Lord Eldon, as well as the qualified property of the receiver ; but as the latter had returned the letters to the writer, with the de- claration that he did not consider himself entitled to retain them, keeping copies without apprizing her, it was held, under the circumstances, that he had renounced the right of publication, even if he pre- viously had it for purposes of self-vindication.^ In explaining the grounds upon which the court acts in these cases, his lordship observed, that the ' Thompson t" . Sianhope, Amb. ' Gee r. PiilcliarJ, 2 Swanst. 737. -10-2, [-27. * Lord and Lady Perceval v. Phipps, 2 Ves. & B. 19. 92 LAW OF COPYRIGHT. property is qualified in some respects ; that, by send- ing a letter, the writer has given, for the purpose of reading it, and in some cases of keeping it, a property to the person to whom the letter is addressed ; yet, that the gift is so restrained, that, beyond the pur- poses for which the letter is sent, the property is in the sender. Under such circumstances, it is immate- rial whether the intended publication is for the pur- pose of profit or not. If for profit, the party is then selling ; if not for profit, he is then giving that, a por- tion of which belongs to another. Property, there- fore, is the ground of the interference of the court. From these decisions it is not difficult to extract the general doctrines which govern the interference of courts of equity, in cases of this class. 1. The leading principle is, that the writer of letters has such a qualified property in them, as will intitle him to an injunction to restrain their publication by the party written to, or his assignees or representatives. 2. That this qualified property descends to represent- atives. 3. That it is a right of property independent of the right to take the profits of publication, and con- sequently does not depend upon or involve the pecu- niary value of the letters proposed to be published. 4. That for the purposes of justice publicly adminis- tered, in the ordinary modes of proceeding, or to vindicate his character from an accusation publicly made, the receiver of letters may publish them.^ • Percevalu. Phipps, 2Ves. & B. 2 Story's R. 100, 110, 111. 2 Sto- 19. Gee r. Pritcliard, 2 Swanst. ry's Eq. Jurisp. ^ 948. 418, 426, 427. Folsom v. Marsh, LETTERS. 93 But a doubt has been suggested, whether mere private letters, not intended as literary compositions, are entitled to the protection of an injunction in the same manner as compositions of a literary character.' This doubt has probably arisen from the habit of not discriminating between the different rights of pro- perty which belong to an unpublished manuscript, and those which belong to a published book. The latter, as I have intimated in another connection, is a right to take the profits of publication. The former ' By Sir Thomas Plumer, vice- chancellor, in Perceval v. Phipps, 2 V, & B., and Mr. Chancellor Wal- worth, in Brandreth v. Lance, 8 Paige's R. 21, 26. In the former case, the vice-chancellor thought that the letters of Pope and of Lord Chesterfield derived their risht to protection from their character as literary compositions. But there is no evidonoo in either case, as report- ed, to show that either of the wri- ters intended those letters for litera- ry compositions, or wrote them with a view to publication. In Pope v. Curll, Lord Ilardwicke dealt with the subject, on one point, as a book, because it was already printed by the defendant. Sec 2 Atk. 342. "With regard to Lord Chesterfield's Letters, however elegantly written, the case presents only a domestic correspondence between fothcr and son. They certainly were not writ- ten for publication, so far as we can judge from the report in Ambl. 737. In like manner, .Mr. Chancellor Wal- worth (8 Paige, 27,) supposes that Lord Eldon, in Gee v. Pritchard, went the length of allowing the rem- edy for a right of property, where the plaintiff's interest was no other than that of violated feelings. He says, "The complainant's bill was not to prevent the publication of her letters on account of any supposed interest she had in them as literary property, but to restrain the publi- cation of a private correspondence, as a matter of feeling only." 8 Paige, 28. The learned chancellor seems to understand Lord Eldon's use of the term " property " to refer to a subject of pecuniary value : whereas it is clear that his lordship uses it in reference to private correspondence, which has no pecuniary value for purposes of publication, when he speaks of a joint property in the writer and the receiver of a letter. See his observations, cited in the text, ante, from 2 Swanst. 415. This is equally manifest from his lord- ship's remark on the case of Perceval I'. Phipps, which he did not under- stand to have denied Lady Perceval's profcrty in the letters. See 2 Swanst. 415. So, too, he says that his predecessors did not inquire whether the intention of the writer was or was not directed to publica- tion, lb. p. 414. Such an inten- tion must be the only sensible test of the literary character of a letter. 94 LAW OF COPYRIGHT. is a right to control the act of publication, and to decide whether there shall be any publication at all. It has been called a right of property ; an expression perhaps not quite satisfactory, but on the other hand sufficiently descriptive of a right which, however in- corporeal, involves many of the essential elements of property, and is at least positive and definite. This expression can leave us in no doubt as to the meaning of the learned judges who have used it, when they have applied it to cases of unpublished manuscripts. They obviously intended to use it in no other sense, than in contradistinction to the mere interests of feeling, and to describe a substantial right or legal interest.^ If this be the correct view of the adjudged cases, it follows that there can be no sound distinction be- tween private letters or letters of friendship or busi- ness, and letters intended as literary compositions, so far as the remedy afforded to the writer by courts of equity is concerned. In either case, the writer proceeds, when seeking that remedy, upon a right which the courts have recognized as a right of pro- perty ; though in the case of letters which the wri- ter intended for publication and profit, his right has the other element of an anticipated loss of pecuniary profits. Indeed, there is a moral reason why the rights of property should not be deemed to ' Gee V. Pritchard, 2 Swanst. Leclerc, 1 Martin's Louis. R. 297. 403. Southey v. Sherwood, 2 2 Story's Eq. Jurisp. (^ 945, 948 a. Meriv, 435. Folsom v. Marsh, 2 Ante, note, p. 93. Story's R. 100, 108, 109. Denis v. LETTERS. 95 exist only when the letters are literary compositions, which has been pointed out by an eminent jurist. "If the mere sending of letters to third persons is not to be deemed, in cases of literary composition, a total abandonment of the right of property therein by the sender ; a fortiori, the act of sending them cannot be presumed to be an abandonment thereof in cases where the very nature of the letters imports, as matter of business, or friendship, or advice, or family or personal confidence, the implied or neces- sary intention and duty of privacy and secrecy.^ There is another, and, as it seems to me, decisive objection to the supposed distinction between pri- vate letters and letters of a literary character. It is impossible to make any such distinction, in point of fact.- Literary subjects, elegance and finish of style, ' 2 Story's Eq. Jurisp. ^ 947. learned author thinks, that the * Mr. Godson has divided episto- ground on which courts of equity lary writings into three classes : 1. have interfered to prevent publica- Letters originally intended for the tion, is " not upon copyright, but press, constituting a literary work, that the publication is a breach of to vyhich the form of epistolary com- contract, or confidence, or when they position is given as a matter of dress, are to be made a source of profit, at 2. Letters which have actually pass- the risk of wounding private feel- ed from one person to another, but ings." Godson on Patents, &e. 327, which, from the nature of the sub- 328. It will be seen that I have Ject, and the literary character of the taken a very different view both of writer, may be considered, ichen a the authorities, and of the supposed great number of them are collected, distinction between different classes as forming -a literary work. 3. of letters. As to the authorities, it Common letters on business, and on is clear that they proceed upon a every subject that can occur in the property in the writer, and upon intercourse of private life, but which nothing else, whether the letters are never could have' been intended to be of one class or another. As to the published, and therefore cannot be distinction, it may well be asked, considered as lUerarij compositions, what degree of scholarship, what and entitled to protection, on the number of letters, and what subject, ground of a copyright existing ni are to determine whether a man's them. As to the latter class, the letters are to be considered as tak- 96 LAW OF COPYRIGHT. elaborate and beautiful writing, eloquent description, may all be found in letters of friendship, as much as personal anecdote or topics of domestic interest. What is the friendly correspondence of the learned, but, in a critical sense, literary composition ; in which knowledge, taste and eloquence, on subjects of general and literary interest, are so copiously dis- played, that the treasures which lie hidden in private repositories doubtless exceed in value and impor- tance all that the world has yet possessed in pub- lished epistolary writing ? Yet it would be extremely inaccurate to apply to such writings the term literary compositions, in the sense in which alone that term can have any legal acceptation ; for in this sense it must mean compositions written with a view to their publication as literary works. If the style or the subject is to be the test of the literary character of a letter, in a court of justice, a vast mass of private correspondence would at once fall under that desig- nation ; but if this test is to decide the question of protection from unauthorized publication, a still greater mass of familiar writing, that can exhibit no atoning merits of style or subject to console the feel- ings wounded by publication, must be left out of the pale of human rights. Fortunately for the peace of mankind, the law establishes no such distinction.^ ing the character of a literary work, from which I have already quoted, when they were not written for pub- thus sums up the doctrine in rela- lication? No such test can be ap- tion to letters. "There is no small plied. confusion in the books, in reference ' Mr. Justice Story, in a case to the question of copyright in let- LETTERS. 97 The question is probably disposed of in this coun- try, by the statute which gives a remedy against ters. Some of the dicta seem to suppose, that no copyright can ex- ist, except in letters, wliich are pro- fessedly literary ; whilst others again recognize a much more enlarged and liberal doctrine. Without attempt- ing to reconcile, or even to comment upon the language of the authorities on this head, I wish to state what I conceive to he the true doctrine up- on the whole subject. In the first place I hold, that the author of any letter or letters, (and his represent- atives,) 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 arc addressed, nor other persons, have any riglit or authority to publish the same upon their own account, or for their own l)enefit. But, consistently with this right, the persons to whom they are address- ed may have, nay, must by implica- tion 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 tliis right is strictly limited to such occasions. Tints, a person may justifiably use and pub- lish, in a suit at law or in equity, such letter or letters as are necessa- ry and proper to establish his right to maintain the suit, or defend the same. So, if he be aspersed or misrepresented by the writer, or ac- cused of improper conduct, in a pub- lic manner, he may puldish such parts of such letter or letters, but no more, as may be necessary to vindi- cate his character and reputation, or free him from unjust oldoquy and reproach. If he attempt to publish such letter or letters on other occa- sions, not justifiable, a court of equity 9 will prevent the publication by an injunction, as a Ijreach 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 confidence or contract, but it is a violation of the exclusive co- pyright of the writer. In short, the person to whom letters are address- ed 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 in- formation or of" protection, or of sup- port of his own rights and character. The general property, and the gene- ral rights incident to property, be- long 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 manuscripts 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, to subserve their own private purposes of inte- rest, or curiosity, or passion. If the case of Perceval v. Phipps, {2 Ves. & Beam. 21, 28,) before the then vice-chancellor, (Sir Thomas Plu- mer,) contains a dificrcnt doctrine, all I can say is, that I do not ac- cede to its authority ; and I fall back upon the more intelligible and rea- sonable doctrine of Lord Ilardwicke, in Pope V. Curll, (2 Atk. R. 342.) and Lord Apsley, in the case of Thompson v. Stanhope, (Amb. R. 737,) and of Lord-Keeper Henley, in the case of the Duke of Queens- bury r. Shebbeare, (2 Kden H. 329; 4 Burr. R. 2330,) which Lord Fldon has not scrupled to hold to be bind- ing authorities upon the point in 98 LAW OF COPYRIGHT. the unauthorized publication of any manuscript what- ever. The question has been mooted in this country, whether official letters, addressed to the government by public officers, can be the subject of copyright. In these cases, there seems to be a right on the part of the government to publish or to withhold from publication, from principles of public policy, accord- ing to the exigencies of the public service. But this exception in favor of the government, which has been Gee V. Pritchard, (2 Svvanst. R. 403, 414, 415, 419, 426, 427.) But 1 do not understand, that Sir Tho- mas Plumer did, in Perceval v. Phipps, deny the right of property of tlie writer in liis own letters ; and so he was understood by Lord El- don in Gee v. Pritchard ; who, how- ever, said, that that case admitted of much remark. Indeed, if the doc- trine were otherwise, that no per- son, or his representatives, could have a copyright in his own private or familiar letters, written to friends upon interesting political and other occasions, or containing details of facts and occurrences passing before the writer, it would operate as a great discouragement upon the col- lection and preservation thereof; and the materials of history would become far more scanty than they otherwise would be. What de- scendant, or representative of the deceased author, would undertake to publish, at his own risk and ex- pense, any such papers ; and what editor would be willing to employ his own learning, and judgment, and researches, in illustrating such works, if, the moment they were successful and possessed the sub- stantial patronage of the public, a rival bookseller might republish them, either in the same or in a cheaper form, and thus either share with him, or take from him the whole profits ? It is the supposed exclusive copyright in such writings which now encourages the publi- cation thereof, from time to time, after the author has passed to the grave. To this we owe not merely the publication of the writings of W^ashington, but of Franklin, and Jay, and Jefferson and Madison, and other distinguished statesmen of our own country. It appears to me, that the copyright act of 1831, (ch. 16, ^ y,) fully recognizes the doc- trine for which I contend. It gives by implication to the author or legal proprietor of any manuscript what- ever, the sole right to print and pub- lish the same, and expressly author- izes the courts of equity of the United States to grant injunctions to restrain the publication thereof, by any person or persons, without his consent " See also 2 Story's P]q. Jurisp. (} U47, 948. The sunie doc- trine substantially is held in France. Renouard, torn. ii. p. 294, 295. » Act of Cong. Feb, 3, 1831, § 9. LETTERS. 99 thought to stand upon principles analogous to those which give a right to private individuals to publish the letters of their agents upon fit and justifiable occasions, is not supposed to make such letters com- mon property, to be published by any person who may see fit, without the sanction of the government, nor to take away the property of the writers or their representatives.^ But the occasion, on which this doctrine was al- luded to, did not require a direct adjudication of the question whether the despatches of a public officer, addressed to his government, can be the subject of ' Folsom V. Marsh, 2 Story's R. 100, 113. In this caso ]\Ir. Justice Story said, "In respect to official letters addressed to the government, or any of its departments, by pul)lic officers, so far as the right of the government extends, from principles of public policy, to withhold tliem from publication, or to give them publicity, there may be a just ground of distinction. It may bo doubtful, whether any public officer is at lib- erty to publish them, at least in the same age, when secrecy may be re- quired by the public exigencies, without the sanction of the govern- ment. On the other hand, from the nature of the public service, or the character of the documents, cm- bracing historical, military, or diplo- matic information, it may be the right, and even the duty, of the government, to give them puldicity, even against the will of the writers. But this is an exception in favor of the government, and stands upon principles allied to, or nearly sim- ilar to, the rights of private individ- uals, to whom letters are addressed by their agents, to use them and publish them, upon fit and justifiable occasions. But assuming the light of the government to publish such official letters and papers, under its own sanction, and for public pur- poses, I am not prepared to admit, that any private persons have a right to publish the same letters and pa- pers, without the sanction of the government, for their own private ])rofit and advantage. Recently the Duke of Wellington's despatches have (I believe) been published, by an able editor, with the consent of the noble duke, and under the sanc- tion of the government. It would be a strange thing to say, that a compilation involving so much ex- pense, and so much labor to the ed- itor, in collecting and arranging the materials, might be pirated and re- published by another bookseller, per- haps to the ruin of the original pub- lisher and editor. Before mv mind arrives at such a conclusion, I must have clear and positive lights lo guide my judgment, or to bind me in point of authority." ^ 100 LAW OF COPYRIGHT. private copyright.^ In France, it seems to be con- sidered that official documents are not subjects of the privilege of authors.^ III. Lectures. The right of property in lec- tures, oral and written, has been recognized in England by statute. The 5 and 6 Wm. IV. chap. 65, sec. 1, enacts, that from and after the first day of September, 1835, the author, or his assignee, of lec- tures to be delivered in any school, seminary, insti- tution, or other place, shall have the sole right to publish them ; and the 3d section declares that no person allowed for a certain fee and reward or other- wise to attend and be present at any lecture de- livered at any place, shall be deemed and taken to be licensed, or to have leave to print, copy and pub- lish such lectures, only because of having leave to attend them. But the 5th section provides that the operation of the act is to be restricted to lectures, of the delivery of which notice in writing shall have been given to two justices living within five miles of the place of delivery, two days before the delivery thereof. And it is further provided, that the act shall 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 • The letters and documents of an Ihe question concerning them. See official character, published by the de- 2 Story's R. 114. fendants in this case, were not more ^ See a very able discussion of than one-fifth part of the whole, and the question in Renouard, torn. 2, the court did not expressly decide p. 132, et seq. LECTURES. 101 of or according to any gift, endowment, or founda- tion. This last provision is not a liberal one. A professor on a foundation has discharged his duty when he has delivered his lecture to his class. The salary has bought of him no service beyond this, whether it is paid by the state, or is the gift of an individual. It certainly has not bought for the pub- lic the substance of lectures which may have cost their proprietor the labor of a life. This illiberal exception is unknown on the continent of Europe. In most countries, this kind of public discourse is under the full protection of the law.^ In the United States, the right of property in lec- tures depends upon the general principles of the common lavr, and the statute which protects the owner of manuscripts.^ In relation to a lecture purely oral, of which the speaker has no manuscript, or any other writing which is such in its nature, as that, coupled with what is delivered orally, it may be taken that he has substantially a written composition, the common law has not gone the length of saying that he can, on the footing of property, have a remedy for an unauthor- ized publication. A written composition has been hitherto held to be the subject of literary property ; concerning which the court must be satisfied that the publication complained of is an invasion of a written work, and this can only be done by comparing the composition with the piracy. * Renouard, torn. ii. pp. 144-149. * Act of Cong. 3d Feb. 1831, ^9. 9* 102 LAW OF COPYRIGHT. But it does not follow that because the informa- tion communicated by a lecturer is not committed to writing, but orally delivered, it is therefore within the power of any person who hears it to publish it. When persons are admitted, as pupils or otherwise, to hear public lectures, it is upon the implied confi- dence and contract that they will not use any means to injure or to take away the exclusive right of the lecturer in his own lectures. The hearer may take notes for purposes of his own information, but he may not publish them for profit.^ Accordingly, if a person attending such lectures undertakes to publish them, or furnishes another per- son with the means of publishing them, a court of equity will restrain such a publication, as a violation of trust and confidence, founded in contract, or im- plied from circumstances.^ Where a lecture has been reduced to writing, either wholly or substantially, the author has a right of property in it as a literary composition, in the same manner as in the case of other manuscripts. The admission of persons to hear such a lecture affords no presumption that the speaker intends to give them a right to publish the information which they may acquire. But when a court of equity is called upon to restrain a publication, on the ground ' Abernethy v. Hutchinson, 3 ^2 Story's Eq. Jurisp. 6 949. Law Journ. 5^09, 219. 2 Story's Eq. Jurisp. ^949. DRAMATIC COMPOSITIONS. 103 that it is a piracy of a composition in writing, the writing must be produced.^ The act of congress, 3d February, 1831, § 9, gives an action on the case against any person who shull print or publish any manuscript whatever without the consent of the author or proprietor, and em- powers the courts of the United States to grant in- junctions according to the principles of equity, to restrain such publication. The remedy thus afforded would, without doubt, extend to the case of any lecture, of which the author could produce notes, showing that he had substantially reduced the same to writins:.^ o IV. Dramatic Compositions, when in manuscript, are protected, like other literary compositions, nor does the author lose the exclusive right of printing and publishing a play, by allowing it to be repre- sented on the stage.^ * Ibid. " Love a la Mode,^^ consisting of * In France, the cour royale of two acts, which was performed, by Paris had before it, in 1828, the in- his permission, several times, at the teresling question, wlicther, when a different theatres, in successive course of oral lectures is merely the years, but was never printed or pub- reproduction of a work previously lished by him. When the farce published by the professor, a person was over, he used to take the copy who publishes the lectures from away from the prompter ; and when notes taken by a stenographer, can it was played at the benefits of par- be made responsible for a piracy to ticular actors, he made them pay a the publisher of the work thus re- certain sum for the performance, produced. The decision of the The defendants, who were proprie- question was given in the athrma- tors of a magazine, employed a tive. See Renouard, torn. 2, p. MG. short-hand writer to take down the ^ Macklin v. Richardson, Amb. words of the play at the theatre, 695. The plaintiff, in this case, and thus published the first act, piv- was the author of a farce called ing notice that they would publish 104 LAW OF COPYRIGHT. Whether the property of an author in a published play includes, at common law, the sole right of re- presentation upon the stage, is a point admitting of some doubt. In an action brought for the penalty under the statute 8 Anne, c. 19, in which the only evidence of publication was by representation, of the play in question, Lord Kenyon held that the statute only extends to prohibit the publication of the book itself by any other than the author or his assigns, and that the acting of a play is not a publication/ In a subsequent case, where Lord Byron's tragedy of Marino Faliero, altered and abridged for the stage, was performed without the consent of the owner of the copyright, who applied for an injunction, the court of K. B., on a case sent by the Lord Chancel- lor, certified it as their opinion that an action could not be maintained "for publicly acting and repre- senting the said tragedy, abridged in manner afore- said." - The consequence of these decisions, in England, was, that while the authors of dramatic and musical compositions, after printing and publishing their works, enjoyed their copyrights, they had no exclu- sive privilege to the more valuable form of repre- sentation or performance. This defect in the law led to the enactment of statutes giving this exclusive the second act in their next number. ' Coleman u. Wathen, 5 T. R. Lord Commissioner Smythc, in 215. granting an injunction, negatived * Murray v. EUiston, 5 B. & Aid. the idea that acting a play is a pub- 657. lication of it. BOOKS. 105 right. The 3 Wm. IV. c. 15, sec. 1, gave to the au- thor or his assignee, of any printed and unpublished tragedy, comedy, play, opera, farce, or other dra- matic piece or entertainment, the sole right of hav- ing it represented in any part of the British domin- ions ; and to the author or his assignee of any such dramatic production which was printed or published after the passing of the act, or ten years before, the sole right of representation, from the time of publi- cation, or of the passing of the act, for a period of twenty-eight years, or, if the author were living at the end of that time, for the remainder of the au- thor's life.^ By the 5 and 6 Vict. c. 45, sec. 20, it is enacted that the sole liberty of representing or performing or permitting to be represented or performed, any dramatic piece or musical composition, shall endure, and be the property of the author or his assignee for the same term as is provided in the act for the dura- tion of copyright in books. The same section ex- tends the provisions in the act respecting literary copyright and the registration thereof, to the liberty of representing or performing any dramatic piece or musical composition, except that the first public re- presentation or performance shall be deemed equiv- alent to the first publication of a book." V. Books. The term "Book" is made use of ' 3 Wm. IV. c. 15, sec. 1. See * 5 and G Vict. c. 45, s. 20. See Appendix. Appendix. 106 LAW OF COPYRIGHT. in both the English and American statutes, and the question has arisen, whether its construction is to be confined to those forms of publication only which are popularly called books. The question first arose in England at Nisi Prius upon a song printed on a single sheet of paper, which it was contended could not be within the pro- tection of the act 8 Anne, c. 19, which, in the enact- ing clause, mentions only " books." Lord Ellen- borough was inclined to think that such a publica- tion was not protected by the statute, as the word book only means in common acceptation a plurality of sheets, and is decidedly used in this sense in the clause of the statute which speaks of " every sheet or sheets being part of such book or books." He therefore nonsuited the plaintiff, but reserved the point for the opinion of the court. Erskine, at the next term, moved and obtained a rule to show cause why the nonsuit should not be set aside ; ^ but when ' Mr. Erskine, on this occasion, never occurred to the lord chancel- argued "that the legislature could lor who directed the issue, or to never have meant to make the oper- Lord Mansfield, or any of the judges ation of the statute depend upon who decided the case, that the form the type in which any composition of the publication could make any is printed, or the form in which it difference, and therefore it is not is bound up. This song might stated. If a different construction easily have been extended over sev- were put upon tlie act, many pro- eral sheets, and rendered a duodcci- ductions of tlie greatest genius, both mo volume. In Bach v. Longman, in prose and verse, would be ex- Cowp. G23, it was decided that eluded from its benefits. But, might music is within the act, and musical the papers of the Spectator, or compositions most generally appear Gray's Elegy in a Country Church in this fugitive form. [Lord Ellen- Yard, have been pirated as soon as borough. In the case cited, the they were published, because they musical composition was a sonata, were first given to the world on and a sonata maybe a book.] It single sheets ? The voluminous ex- HOOKS. 107 the counsel for the defendant proceeded to show cause, the court directed the matter to be recon- sidered by a special verdict, that it might be ascer- tained whether the piece was a book within the meaning of the legislature. But the cause was not again carried down for trial. ^ In a subsequent case, upon the same point. Lord Ellenborough reconsidered his former opinion, and it was settled unanimously by the court 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.^ tent of a production cannot, in an enliglitened country, be the sole title to the guardianship the author re- ceives 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 re- duced to the compass of a few lines : and is all this profundity of mental abstraction, on wliich the security and happiness of the species in every part of the globe depend, to be ex- cluded from the protection of Brit- ish jurisprudence? But there is nothina in the word hook to require that it shall consist of several sheets bound in leather, or stitched in a marble cover. Book is evidently the Saxon hoc, and the latter term is from the beech-tree, the rind of which supplied the place of paper to our German ancestors. The Latin word liher is of a similar ety- mology, meaning originally only the bark of a tree. Book may therefore be applied to any wriiing ; and it has often been so vised in the Eng- lish language. Sometimes the most humble and familiar illustration is the most fortunate. The horn hook, so formidable to iiiiant years, con- sists of one small page protected by an animal preparation, and in this state it has universally received the appellation of a book. So in legal proceedings, the copy of the plead- ings after issue joined, whether it be long or short, is called the paper book or the demurrer book. In the court of exchequer, a roll was an- ciently denominated a book, and so continues in some instances to this day. An oath as old as the time of Edward I. runs in this form : " And you shall deliver into the Court of Exchequer a book fairly written," &c. But the book delivered into court in fulfilment of this oath, has always been a roll of parchment." 2 Campb. 28, 29, note. ' Himc V. Dale, 2 Campb. 27, note. * Clementiv. Goulding, 2 Campb. 25,32; 11 East, 244. 108 LAAV OF COPYRIGHT. By the 5 and 6 Vict. c. 45, s. 2, the word " book," as used in that act, is to be construed to mean and include every volume, part, or division of a volume, pamphlet, sheet of letter press, sheet of music, map, chart, or plan separately published. It is said, how- ever, to have been held in this country, that a price- current, published in a semi-weekly newspaper, is not a hook within the act of congress, because not a work of science or learning, but of mere industry.^ This is inconsistent with the previous decisions, and the rea- son given for it is at variance with all the analogous principles on the subject. Works of industry are as much the subjects of protection as works of genius. Indeed, there can be no line drawn between a pro- duction, the fruit of learning, and one the fruit of mere industry. All learning is the accumulation of knowledge gathered by the exercise of industry .- VI. Music was formerly held in England to be within the protection of the act of Anne, it being a writing ; ^ and now by the statute of 5 and 6 Vict. ' Clayton V. Stone, cited 2 Kent's writings. It is not confined to Com. 380, note, as decided in the language or letters. Music is a circuit court of the United States, at science : it may be written ; and the New York, Dec. 1828. The case mode of conveying ideas is by signs is not reported. and marks. If the narrow interpre- * 1 carmot but think that the true tation contended for in the argu- reason was that the publication, be- ment were to hold, it would equally ing in a newspaper, had not been apply to algebra, mathematics, arith- duly entered according to the act of metic, hieroglyphics. All these are congress. conveyed by signs and figures. * Bach V. Longman, Cowp. 623. There is no color for saying that In this case Lord Mansfield said, music is not within the act." See "The words of the act of parlia- also Piatt v. Button, 19 Ves. 447. mentare very large — boohs and other Clementi v. Walker,2 B. & C. 86L PERIODICAL PUBLICATIONS. 109 c. 45, s. 2, the word "book," in the construction of that act, is to mean and include " every volume, part or division of a volume, pamphlet, sheet of letter- press, sheet of music, map, chart, or plan, sepa- rately published." ^ Musical compositions, intended for the stage, fall under the head of dramatic com- positions. In the United States, published music is included in the " Act for the encouragement of learning," under the term " musical composition."^ But we have no statute in this country to secure to the authors of musical compositions the sole right of performance in public. VII. Periodical Publications. Periodical pub- lications, when the requisites of the statutes have been complied with, of course fall under their pro- tection as books. ^ There is also a particular reme- dy, through the jurisdiction of courts of equity, by which the property in the good will of a periodical can be protected from invasion. Thus an injunction will be granted against publishing as a continuation or new series of an established periodical, new num- * See Appendix. the book of registry, 1. The title of * Actof congress of 3d Feb, 1831, such encyclopedia or periodical. 2. sec. I. The time of the first publication of ' In the United States, in order to its first volume, numltcr or part, or claim tlie benefit of the statute, it of the first number or volume puh- would be necessary to enter each lished after the passing of the act. volume or number of the work. In 3. The name and place of abode of B^iHgland, special provision is now the proprietor, or of the publisher made for " encyclopedias, reviews, when the publisher is not the provric- magazines, periodical works, or tor. 5 & 6 Vict. chap. 45, ect to the prerogative of the crown, 120 LAW OF COPYRIGHT. The effect of these decisions is, that so long as there are separate subsisting patents for England should be on that particular case, than on the case of Manners and Miller ; but your lordships' decision in the one case, will be of course governed by the decision in the other. " In conducting the argument, with respect to the prerogative of the crown, reference was made, and very properly made, to the cases of prerogative in England. For two hundred years and more, the kings have, in England, granted patents to their printers here, as extensive as the patent we are now consider- ing, and perhaps more extensive, but extensive enough to raise the question we are now considering. In England, the power of the king to grant patents of this description, or to appoint to such an office, has never been seriously questioned. Those patents have from time to time come under the review of our courts, and the judges have been called upon to decide upon them. One case occurred before Sir Joseph Jekyll, so far back as the year 1720, and others at different periods, both in the courts of equity, and also be- fore this house during the last cen- tury ; and I would stale it as a point not admitting now of doubt or con- troversy, that as far as relates to the office of king's printer in England, the crown has tlie prerogative to grant a patent as extensive as that we are now considerintr, — assum- ing, for the purpose of argument, that the patent is as extensive as it is contended on the part of the re- spondents to be. " But although the power of the king and his prerogative in Kngland has never t)cen questioned, it has been rested by judges on different principles. Some judges have been of opinion, that it is to be founded on the circumstance of the transla- tion of the Bible having been actu- ally paid for by King James, and its having become the property of the crown, and therefore it has been re- ferred to a species of copyright. Other judges have referred it to the circumstance of the king of England being the supreme head of the church of England, and that he is vested with the prerogative with reference to that character. Other judges have been of opinion, and I confess, for my own part, I am dis- posed to accede to that opinion, that it is to be referred to another con- sideration, namely, to the character of the duty imposed upon the chief executive officer of the government, to superintend the publication of the acts of the legislature, and acts of stale of that description, and also of those works, upon which the estab- lished doctrines of our religion are founded, — that it is a duty imposed upon the first executive magistrate, carrying with it a corresponding prerogative. That was the opinion of Lord Camden, as expressed in the case of Donaldson v. Becket, (4 Burr. 2108.) in most direct and eloquent terms in this house : that was the opinion also expressed by Chief Baron Skinner, in the case of Eyre and Strahan v. Carnan ; (Court of Excheq. 1781.) and I think that may be collected or in- ferred to be the opinion of a learned and noble earl, now a member of your lordships' house, from what fell from that noble and learned lord, in the case of the Universities of Oxford and Cambridge v. Richard- son. (6 Ves. 704, 5.) " If that be so, if that is the true principle upon which this preroga- PREROGATIVE COPIES. 121 and Scotland, for the printing of Bibles, no other copies can be sold in either country except those live is to be rested, it appears to me that all diiliculty ceases with respect to the preroi^fative in .Scotland. In Sc<)tlan Maugham, p. 106. 2 Evans's Mod. 256. Bacon's Ab. Preroga- Statutes 19, note 11. live, F. 5. 4 Burr. 2317. ^ Burke on Copyright, p. .0. Lond. •* Stationers' Co. v. Carnan, 2 W. 1812. Manners v. Blair, 3 Bligh"s Black. R. 1004. R. (N. S.) * 4 Burr. 2329, 2101. ' Stationers' Co. v. Seymour, 1 • lb. 2315. 3 P. Williams, 255. KEPORTS OF JUDICIAL PROCEEDINGS. 129 X. Reports of Judicial Proceedings. The house of lords, in England, has for a long time claim- ed and exercised the right to appoint the publisher of any trial that takes place before it, as an exclusive privilege, and the practice has been to order that the lord chancellor do cause the trial to be published, and that no other person do presume to print or pub- lish the same.^ The lord chancellor appoints a pub- lisher of the trial, upon this order, and it seems that any one who infringes upon the exclusive privileges thus conferred, may be enjoined by a court of equity.- But it does not appear to be held that the order of the house confers anything like literary property ; but that it proceeds upon the ground that the house, as a court of justice, exercises of right a superintend- ence over the publication of its own proceedings, on the principle that such superintendence is necessary for the due and impartial administration of the laws.^ It is likened to the publication of the statutes by the king's patentee, and the person who is appointed publisher of a trial is said to stand in the same situa- tion as the king's printer.^ The courts of law have, in modern times, claimed and exercised the right to restrain the publication of their proceedings, when such publication would be likely to defeat the ends of justice.^ Formerly it was held to be a contempt of court to publish any ' Gurney v. Longman, 13 Ves. * Ibid. 193, 506, 507. ' The king v. Clement, 4 13. & ^ Ibid. Aid. 218. ^ Ibid. Godson, p. 310. 130 LAW OF COPYRIGHT. reports whatever,^ but the practical application of this doctrine has been much relaxed. The ancient doctrine was, that the property of all law books is in the king, because he pays the judges who pronounce the law ; and in the reign of Charles II. this doc- trine was twice affirmed by the house of lords, in re- lation to Rolle's Abridgment,- and Croke's Reports.^ Soon after the restoration, an act of parliament, founded apparently upon the doctrine of the king's prerogative copy, prohibited the printing of law books without the license of the lord chancellor, the two chief justices and the chief baron ; and in con- sequence of this act, it became the practice to prefix such a license to all reports published after that pe- riod, in which it was usual for the rest of the judges to concur, and to add to the imprimatur a testimonial of the learning and judgment 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 continued in use until the judges, as it is said, came to a resolution not to grant them any longer, and from Douglass down to the present day, the Reports have appeared without them.^ Sir James Burrow offers an apology for publishing his Reports without an imprimatur, and says he is aware that it is a con- tempt of court to publish their proceedings.^ It ■ Preface to Sir J. Burrow's Re- " Preface to Douglass's and Bur- ports, row's Reports. * Carter 89. Bacon's Abridg. ^ Ibid. Prerog. F. 5. 4 Burr. 2315. ^ Preface, 1 Burrow's R. p. vii. » Skinner, 234, 1 Mod. 217. Ba- con ut supra. 4 Burr. 2316. REPORTS OF JUDICIAL rROCEEDINGS. 131 seems, however, that since the Year Books, no judi- cial proceedings have been published under authori- tative care and inspection, either by the house of lords, or by any court in Westminster Hall, except state trials.' The idea of property in the king, as the chief foundation of the prerogative copies, has been long abandoned, with reference to most of them, and such as still exist are upheld by reasons of convenience and of the relation of the king, as head of the state and the church, to his subjects. The practice of treating the publication of judicial proceedings as a contempt, except in cases where a special order has been made, has fallen into desuetude ; and on the other hand, the courts take no official measures for the publication of their judgments. There is there- fore no other right of property acquired by the re- porters in the judgments of the courts, than such as is founded on the diligence and skill that may be used in taking notes in court of what may fall from the judges. If the judgments are in some cases furnished to them in manuscript by the court, there seems to be no ground upon which it can be said that the court thereby confers anything like a right of property upon the reporters. The statements of the cases and the arguments of counsel may be the sub- ject of property in the reporter, by reason of his per- sonal skill and diligence in reporting them, which Ibid. 132 LAW OF COPYRIGHT. make them to a certain extent his own compositions. It was apparently upon this ground that the copy- rights of the Term Reports and the Reports of Vesey Jr. have both, at different times, been protected by injunction.^ In America, the subject of copyright in the reports of the decisions of the Supreme Court of the United States, has undergone very elaborate discussion in that tribunal. By an act of congress, the Supreme Court of the United States is attended by an official reporter, who receives a stated salary from the gov- ernment, and is required to furnish a certain number of copies of his reports to the department of state for the use of the government. But the court, in the case here alluded to, were unanimously of opinion that the reporter can have no copyright in the writ- ten opinions delivered by the court, and that the judges cannot confer upon any reporter any such right.^ The ground of this decision was, that the opinions of the court, being published under the authority of congress, were not the proper subject of private copyright. But it was not doubted by the ' Bulterworlh v. Robinson, 5 injunction upon evidence of a pre- Ves. 70!). Vesey f. Sweet, cited sumed consent by the plaintiffs. 5 Ves. 709, note 3 (Sumner's Edi- The case is reported as presenting tion.) In Saunders v. Smith, 3 the quare, whether it is not piracy Mylne & Cr. 711, it appears that to print, at full length, cases con- copyrights of the Term Reports and tained in the Law Reports, although the Reports of P]ast, Taunton, Rarne- with the addition of notes, however well & Cressvvell, and Bingham, voluminous. The book complained were claimed by the plaintiffs as their of was Smith's Leading Cases, property, but the Lord Chancellor * Wheaton v. Peters, 8 Peters assuming but not deciding the legal R. 591, 068. right, decided the application for an REPORTS OF JUDICIAL PROCEEDINGS. 133 court that the reporter had a copyright in his own marginal notes, and in the arguments of counsel, as prepared and arranged in his work.^ ' Per Story J. in Gray v. Russell, 1 Story's R. 4. 13 CHAPTER III. OF THE PERSONS ENTITLED TO THE PROTECTION OF THE STATUTES. The author, or his assignee, of any publication entitled to the protection of copyright, may secure the benefits of the law ; but an important question arises, whether the citizenship of the author affects in any way the exercise of this right. In England, the statute of Anne, while it secured a copyright to authors generally, contained a proviso that nothing therein should be construed to extend to prohibit the importation, or selling of any books in Greek, Latin or any other foreign language, print- ed beyond the seas. Under this act, it was possible that a Latin book might be written and first publish- ed in England, and afterwards republished abroad, and then imported into England. To remedy this defect, the 12 George II. c. 36, prevented the im- portation into England of books printed in England and reprinted in any other country. These are the only statutes which bear upon the subject of foreign books, prior to the 1 and 2 Vict. c. 59 ; and they COPYRIGHT BY ALIEN FRIEND. 135 left open the questions, whether a foreigner could take a copyright in England of a work which he first publishes there ; whether a British subject could take a copyright of a work which he had bought in manuscript from a foreign author ; and whether a foreign author could take a copyright in England after he had published his work abroad. Upon the first of these questions, whether an alien friend, by first publishing his work in England, can take a copyright there, a strong opinion in the affirm- ative has been expressed and acted upon, in equity. Sir L. Shadwell, V. C, in a recent case, said, that if an alien friend wrote a book, whether abroad or in England, and gave the British public the advantage of his industry and knowledge by first publishing the work there, he was, in his opinion, entitled to the protection of the statutes. But as the question was a legal one, he directed an action, which was brought, and the defendant consented to a verdict.^ The International Copyright Act, 1 and 2 Vict, c. 59, is silent upon this question, although it de- clares that foreign authors, who first publish out of her Majesty's dominions, can have no copyright ex- ' Bentley V. Foster, 10 Sim. .'529. semhle, that a foreigner who resides In a more recent case. Lord Lynd- and publishes in England, is entitled hurst, C. B., intimated the opinion, to copyright like a British subject, that an alien friend, first puldishiiig D'Almaine v. Boosey, 1 Y. & Col. in England, is entitled to the protec- 288, 2!i8. The statutes are consist- tion of the statutes. Chappel r. ent with a foreigner bringing a work Purday, 4 Y. & Coll. 485, 488. It with him, and publishing or selling seems also that the case of Bach v. it in England. Ptr Ld. Lyndhurst, Longman, Cowp. 623, was an ac- C. B. in Chappel u. Purday, 4 Y. & tion brought by a foreigner ; and Col. 485, 490. 136 LAW OF COPYRIGHT. cept under its provisions.^ This omission furnishes a strong presumption that alien friends, who may first publish in England, are understood to be entitled to the protection of the statute. The second question, whether a British subject, who buys an unpublished work of a foreign author, can make it the subject of copyright in England, has likewise been answered in favor of the right. The English assignee of a foreign musical composer ob- tained an injunction to protect the work in England. It was held that the plaintiff, being a British subject, could acquire the copyright as well from a foreigner as from an Englishman. The title thus acquired, depends upon the common law right of the assignee of a manuscript.^ * See Appendix, p. 57. " D'Almaine v. Boosey, 1 Y. & Col. 288. Before Lord Lyndhurst, in the Exchequer, in Equity, in 1835. In Chappel v. Purday,"4 Y. & Col. 485, 495, his lordship said, " Many points have been introduced into the argument which were not absolutely necessary in the view which I take of this case, but as I have been much pressed for my opinion upon them I cannot let them fall to the ground without ob- servation. A question was made whether the statute of Anne raises any protection for foreigners, and that case of D'Almaine v. Boo- sey was cited to show that I had formed that opinion. Therefore I shall address a few words to that question. The statute of Anne was pa.ssed for the protection of British subjects. It does not in terms ex- tend its protection to the publica- tion of foreigners. But take the whole question together, and see whether the same principles do not apply to both cases. I may be al- lowed, perhaps, to state in the pres- ence of gentlemen who, no doubt attend to matters of literature, that when I came to the profession I took a great interest in the case of Millar v. Taylor, and other cases of that sort. In that case Lord Mans- field and two of the judges differed from Mr. Justice Yates, and I own 1 think that to the material parts of Mr. Justice Yates's argument Lord Mansfield made a successful reply, though unquestionably the argu- ments of Mr. Justice Yates were very ingenious. Lord Mansfield said, — ' That the reasons for sup- porting the author's right before publication were equally applicable after publication ; ' and I think that was a successful reply. That case COPYRIGHT BY ALIEN FRIEND. 137 But the question, whether a foreigner, who had first published abroad, could, before the act 1 and 2 Vict. c. 59, afterwards obtain a copyright in Eng- land, was one of greater difficulty. Whether the act of printing and publishing abroad, made the work at once publici juris, or whether there was an inter- val, in which, by due diligence, the alien author could secure a copyright in England, was a question which had been left undecided, before the passing of the International Copyright Act. It had, however, been held, that where an author first published abroad, and instead of using due diligence, forbore until some other person had published in England, fairly and without blame, but afterwards published in England himself, he could not insist upon his pri- was disposed of at common law. But the case of Donaldson v. Beckett, (4 Burr. 2408,) in which the same question was raised, went to the house of lords. In that case eight of the judg-es were of opinion, first, that the author had a right at com- mon law to the exclusive puhlica- tion of his work in the first instance. Lord Mansfield, the ninth judge, gave no opinion. The other judges were of a contrary opinion. Then the second question was, whether, admitting the author had originally a right at common law, he retained the right after puhlication . Mr. Jus- tice Yates thought he had given it to the public, but eight of the judges were of opinion that he did retainit. That being the case, the law was then settled as regarded the com- mon law right. But then the ques- tion was, whether the right of pro- tection given by the common law 12* was not limited by the statute of Anne, and upon that the majority of the judges were of oi)inion that the statute had put an end to the right which had existed at common law, because it gave the protection for fourteen years, and no longer. Now the statute was made for the protection of British subjects ; but the same reasons apply to protect a foreigner. We must presume that the foreign law would do the same for him, and, it does. A foreigner, therefore, having a copyright in his own country, might give the same right to a British subject. There- fore, it appears to me that a for- eigner who is the author of a work unpublished in France, may com- mmiicatc his right to a British sub- ject, at least for the period pre- scribed by the statute of Anne, that is to say, fourteen years." 138 LAW OF COPYRIGHT. vilege, and, at a distance of time, stop a publication which had taken place in the interim, and treat the continuation of that publication as a piracy.^ So too, where the plaintiff had acquired an equitable title to a copyright, so far as related to Great Britain, of a work composed and published in France, and after- wards obtained a legal conveyance, but had in the interim sold several copies to the defendant, who republished it, other copies having been imported by other tradesmen, an injunction was refused.^ But it is now, by the 1 and 2 Vict. c. 59, § 14, declared, that the author of any book to be after the passing of the act first published out of her Majesty's domin- ions, or his assigns, shall have no copyright within her Majesty's dominions, otherwise than such (if any) as he may become entitled to under this act, namely, by treaty.^ The object of the acts which protect engravings, (8 George II. c. 13 ; 7 George III. c. 38, and 17 George III. c. 57,) was to protect those works which were designed, engraved, etched, or worked in Great Britain, and not those which were designed, engrav- ed, etched or worked abroad, and only published in ' Clemenli v. Walker, 2 B. & C. at that time there was no convey- 861. See also D'Almaine v. JJoo- aiice,) had permitted the books to sey, 1 Y. & Col. 298. Guichardi;. be iinported here, arid sold without Mori, 9 Law J. 227. interference, is afterwards to be at * Chappel V. Purday, 4 Y. & Col. liberty to come forward, and say, 485,41)5. Lord Lyndhurst, C. B. that no party shall do the like again? said, " This ca.se is not exactly the It is ati important question, and I same as (Jlementi v. Walker. The think it is suflicienily doubtful, to question is, whether a party, who, prevent my interfeience by injunc- before the copyright had been ac- tion until it is decidi-d." tually parted with to him, (because * See Appendix, p. 57. DRAMATIC COPYRIGHT. 139 Great Britain ; and therefore prints engraved and struck off abroad and only published in England, are not entitled to protection.^ In theatrical and musical compositions the English law secures to the author a double copyright, and each of the rights may be assigned. A published play, or musical composition, when duly entered, is protected like other books ; and whether published or unpublished, the author may enjoy the sole right of representation or performance, under the acts 3 Wm. IV. c. 15, and 5 and 6 Vict. c. 45, § 20." The first of these acts was passed 10th June, 1833, and it provided, among other things, that the author of any tragedy, comedy, play, opera, farce, or any other dramatic piece or entertainment, printed and published within ten years before the passing of the act by the author thereof or his assignee, or which should thereafter be so printed and published, or the assignee of such author, should have as his own pro- perty the sole liberty of representing, or causing to be represented such production, for a certain term of years.^ Upon this provision, the question arose, whether the assignee of all the author's right, title, and interest in the copyright of a play, printed within ten years before the passing of the act, where the assignment was also made before the passing of the act, was to be deemed, in the sense of the statute, the assignee of the author, so as to be entitled, as ' Page V. Towiisencl, 5 Simons, * See Appendix, pp.51, 75. 395. ' Ibid. p. 51. 140 LAW OF COPYRIGHT. against the author, to the sole right of representa- tion, as well as to the copyright of publication. The court of king's bench held that such a party was the assignee of the author, in the sense of the statute, and by virtue of the act became entitled to the sole right of representation.^ To prevent this consequence, the 5 and 6 Vict, c. 45, § 22, enacts, that no assignment of the copy- right of a book consisting of or containing a dramatic piece or musical composition, shall convey to the as- signee the right of representation or performance, unless an entry of the assignment be made in the registry book, expressing the intention of the parties that such right should pass by the assignment.^ By the 8 George II. c. 13, § 1, the property in historical and other prints was vested in engravers, who took from their own designs.^ By the 7 George III. c. 38, § 1, the benefit of the former act was ex- tended to the prints of any portrait, conversation, landscape or architecture, map, chart or plan, or any other prints whatsoever, whether taken from the artist's own original designs, or from any picture, drawing, model, or sculpture, either ancient or mo- dern.^ In prints, therefore, the designs of which are original, (with the exception of maps, charts, or plans,) the property can only be vested in the person who has made the design himself, whether he en- ' Cumberland V. Planch6, 1 Ad. '^ See Appendix, p. 76. & Ellis, 580. » Ibid. p. 8. * Ibid. p. 15. MAPS MUSICAL COMPOSITIONS. 141 graves or causes it to be engraved. A person pro- curing a drawing to be made, is not entitled to the protection of the statutes.^ The manner in which the assignee of a print or engraving, in England, becomes entitled to protec- tion, has been pointed out in a former chapter. ~ Maps, charts and plans, and musical compositions, are, by the 5 and 6 Vict. c. 45, § 2, placed upon the same footing as " books," and therefore the title de- rived from authorship in such productions is to be regulated by the same rules as in the case of books. ^ The protection of sculpture, in England, depends upon the provisions of the 54 George III. c. 56, which vests a copyright in the person who has made or caused to be made the new and original sculpture, model, copy or cast, of the subjects therein recited.* In the United States, there can be no copyright of a book, map, chart, or musical composition, print, cut or engraving, unless the author be a citizen of the United States, or resident therein, at least at the time of publication. Whether it is necessary that the work should have been made or composed in the United States, or while the author was a citizen of, or resident in the country, does not present a ques- tion of much doubt. The provisions of the statute are these : " Any person or persons, being a citizen or citizens * Jeffreys v. Baldwin, Ambl. IG4. ' Ante, page 112. Godson on Patents and Copyright, ' See Appendix, p. 64. 403-404. ♦ Ibid. p. 3d. 142 LAW OF COPYRIGHT. of the United States, or resident therein, who shall be the author or authors of any book or books, map, chart, or musical composition, which may be now made or composed, and not printed and published, or shall be hereafter made or composed, or who shall invent, design, etch, engrave, work, or cause to be engraved, etched, or worked from his own de- sign, any print or engraving, and the executors, ad- ministrators, or legal assigns of such person or persons shall have the sole right and liberty of printing, re- printing, publishing and vending such book or books, &c., in whole or in part, for the term of twenty-eight years from the time of recording the title thereof, in the manner hereinafter directed." ' It would seem, upon this statute, that at the time of recording the title, whether by the author or by his assignee, the author must be a citizen of the United States, or resident therein. What constitutes such residence as is here contemplated, may present a question of some difficulty. Does the statute mean that the party shall have come to reside animo rcman- endi, and that if he has so come, he may take a copy- right before he can become a citizen of the United States ? Or does it mean, that he shall have come, not only with the intention of remaining, but also with the intention of becoming a citizen ? Or, again, does it mean that he shall be temporarily resident only, so that he may take a copyright when he has ' Act of Congress, Feb. 3, 1831, ^ 1. CITIZENSHIP OR RESIDENCE OF AUTHOR. 143 come solely for the purpose of taking it ? And in either case, does it mean that he must have resided, while he made or composed his work, or can a resi- dent foreigner publish and take a copyright of a work which he has composed abroad ? The intention of the act seems to have been, that the author should be a citizen of or resident in the United States, when the title is entered, because it is to such citizens or residents alone, or their as- signees, that the law grants the exclusive right, which is secured by the entry. If the entry were made by an assignee, before the author had come to reside, such assignee w^ould have the common law title of an unpublished manuscript ; and the common law does not inquire whether the title to an unpub- lished work was derived from a citizen or a foreigner. But the statute has apparently taken away the com- mon law right derivable from anon-resident alien, as soon as the work is published, because it declares, in effect, that the persons entitled to copyright, shall be only such authors as are citizens or residents, and their assignees ; and if the assignee takes his title be- fore the author has come to reside, he takes from a person who is not within the privilege of the statute, and has nothing to confer. The kind of residence contemplated by the act can only be gathered from its general scope and policy. The same provision has existed in all the acts of congress for the protection of authors, and the gene- ral policy of all these statutes has been the encour- 144 LAW OF COPYRIGHT. agement of native literature. On one side, it may be said that the statute intended to encourage all literature that should be first published in the United States, and that the industry and arts connected with the manufacture of books may also be supposed to be objects of the same policy, so that if a foreigner is actually resident at the time he prints and pub- lishes here a work that has never been printed and published elsewhere, it is immaterial whether he came animo remanendi aut revertendi. But suppose he brings the work already printed, but not published ; is there anything in the act which declares that the paper and print shall be products of American indus- try ? It is difficult to extract from the act anything like a tariff protection to the mere arts of paper- making and printing. Literary labor and the ad- vancement of the literature of the country, were the great objects of encouragement ; and it is by no means clear that all literature, first published in the country, is not included in the scope of this policy. But the question is not free from difficulty, and re- mains for judicial determination.^ With regard to the place where the work may have been composed, the act is wholly silent, and it is obviously immaterial, whether it was written in or 1 The 8th section of the act de- tion, print, or engraving, written, clares that nothing in this act con- composed, or made by any person tained shall be construed to extend not being a citizen of the United to prohibit the importation or vend- States, nor resident within the juris- ing, printing or publishing of any diction thereof, map, chart, book, musical composi- AUTHORSHIP IN ENGRAVINGS. 145 out of the country, provided the author comes within the description of persons intended by the statute to be benefited. Any other construction would equally deprive citizens of the United States of the benefit of copyright in works written abroad, though first pub- lished at home ; which clearly could not have been intended. The person who is to be regarded as the author of a print or engraving, so as to be entitled to copyright, is he who has invented and designed and personally etched, engraved or worked it, or who has caused it to be engraved, etched or worked from his own design. In either case, the design must be the production of the party claiming the copyright ; and an important question arises, what constitutes the design of a print, in the sense of the statute ? If the party personally engraves the subject of his conception, then he is both the inventor and designer ; since he has not only conceived the subject of the picture, but has represented it in a visible form. But if the engraving is made by another under his direction, it must be made from his " design ;" and the question is, whether this term means only the intellectual conception, or work of the imagination, before it is reduced to some visible form, or whether it implies a drawing or other visible representation of the invention, by the hand of its author. Under the act of 29th April, 1802, ch. 36, which contained a similar provision, it was held by Mr. Justice Wash- 13 146 LA.W OF COPYRIGHT. ington, that the party must not only have invented, but he must have designed or represented the sub- ject in some visible form, from which the engraver who executes it must have taken the picture.^ The term " design," therefore, means the visible form given to the conception of the mind, and this must be done by the inventor himself^ We have no statute in this country for the pro- tection of prints or engravings of portraits, or other pictures, models, or sculpture, unless the painter or sculptor causes or authorizes the print or engraving to be made. If the painter of a picture procures and authorizes it to be engraved, he is, as to the design, within the statute of 1831, since he is the author of the design thus engraved, and may transfer his copyright in the engraving to an assignee. But the copyright must be founded on the title of the painter as the author of the design. * Binns v. Woodruff, 4 Wash- ington's Rep. 48. The act of 1802 was in these words : " Any person .being a citizen of the United States, or a resident within the same, who shall invent and design, engrave, etch or work, or from his own works and inventions shall cause to be designed and engraved, etched or worked any historical or other print, shall have the sole right," &c. ^ Ibid. The American statutes on the subject of engravings, are similar to the 8 George II. c. 13. CHAPTER IV. CHARACTER OF THE WORK CLAIMING PROTECTION. One of the first questions that present themselves, in considering what may be the subject of a valid copyright, is, whether the law undertakes, when asked to extend its protection, to notice the tendency or usefulness of the publication. No discrimination is made by statute, either in England or America, between publications of a good and those of a bad tendency. In both countries, the statutes deal in general terms, with a property in "books." For the protection of this property, various remedies exist, to be administered by the public tribunals ; and it is only when the tribunals of justice are ap- pealed to, that the question arises, how far they may, in the exercise of their respective jurisdictions, consider the moral or political tendency of the pub- lication, as an element in determining whether there exists a valid right of property in such publication. There is doubtless a general right in every politi- cal society, to declare upon grounds of public policy in what things it will permit its members to claim and 148 LAW OF COPYRIGHT. exercise the rights of property, and in what things it will not permit the exercise of those rights to their full extent, even where they seem to spring from the rules of natural right. Thus, a man may be engaged in a manufacture, all the materials of which are justly and truly his own, but if, in the midst of society, the process of such manufacture or the product itself be injurious to the public health or safety, society may and will not only interfere to prevent or regulate the production, but will even destroy the materials, if necessary to the abatement of the nui- sance. It will thus greatly abridge and even wholly deny the otherwise perfect rights of property. So that although the protection of property is one of the ends for which political society is instituted, and although the law regards every innocent right of property as eminently sacred, yet there may be cases, in which the title becomes inherently de- fective, by reason of a necessary principle of public policy, which makes the asserted right inconsistent with the public good. The true ground, therefore, upon which the re- fusal to protect a particular publication rests, would seem to be, not that the author or his assignee has not prima facie a naked right of property, but that the law will not extend its active protection to that naked right, when it can be enjoyed only for mis- chievous purposes or with injury to public morals. The rule has sometimes been laid down in terms which deny that there is any property at all in a WORKS INJURIOUS TO PUBLIC MORALS. 149 publication of an immoral or mischievous tendency ; ^ and so far as the rule of public policy tends to de- feat or impair the beneficial character of the right of property, this mode of enunciating it may be cor- rect. But Strictly the prima facie right of property is the same in all publications ; and the rule of public policy merely withholds that protection to which the publication, but for its character and tendency, would be entitled. This distinction is not unim- portant, for it places the burthen of proof upon the party defending the piracy or denying his liability to the author, to show clearly, that notwithstanding the copyright confers ^ prima facie title, yet that the title is, as to remedies, inherently defective, by reason of requirements of public polic3^ This is where the burthen ought always to be, in cases of a denial of any right of property established or recognized by the law. In America, there has been no decision involving this question ; but the English authorities have established certain general principles, some of which are sound, while others are open to objection. 1. Works injurious to public morals. By the law of England, (and the same is of course true in the United States,) when the character of a book is such that the sale of each copy of it is an offence against the law, the first publisher can maintain no action for damages against any person who afterwards pub- ' 2 Story's Eq. Jurispr. ^ 936. Lawrence v. Smith, Jacob's R. 472. 13» 150 LAW OF COPYRIGHT. lishes it, upon the clear principle that as the first publisher had and could have no right to sell, he cannot sustain any loss by an injury to the sale. This was conclusively settled, in an action brought by the first publisher of a book of a libellous and obscene character, purporting to be a history of the amours of a courtesan, against a subsequent pub- lisher ; in which Abbott, Lord Chief Justice, said, " It would be a disgrace to the common law could a doubt be entertained upon the subject."^ 2. Works injurious to religion. With regard to publications supposed to be of this character, the adjudged cases have not proceeded upon very satis- factory doctrines. The general principle upon which they proceed is the same as that which denies protection to a work injurious to public morals. In 1822, an application was made to Lord Eldon, for an injunction to restrain a piratical edition of Lord Byron's Cain. The injunction was refused, upon the ground of a doubt, whether the poem was not intended to vilify and bring into discredit that portion of scripture history to which it relates. His lordship read the poem, and refused the injunction until the counsel for the plaintiff should show him that an action could be maintained at law.^ With ' Stockdalev. Onwhyn, 5 B. & C. tion will lie for pirating a work, 173. 7 D. & Pt. 025. 2 C. & P. then the court, attending to the im- 163. See also Fores v. Jones, 4 perfection of that remedy, grants Esp. N. P. C. 97. its injunction, because there may be * " The jurisdiction of this court, publication after publication which in protecting literary property, is you may never be able to hunt down founded on this, that where an ac- by proceeding in the other courts. WORKS INJURIOUS TO RELIGION. 151 great submission, I am obliged to diflfer from the reasoning employed by his lordship in this case. But where such an action does not lie, I do not apprehend that it is ac- cordinfT to the course of the court to grant an injunction to protect tlie copyright. Now this publication, if it is one intended to vilify and bring into discredit that portion of scrip- ture history to which it relates, is a publication, with reference to which, if the principles on which that case at Warwick (Dr. Priestley's case) was decided, be just principles of law, the party could not recover any damages in respect of a piracy of it. This court has no criminal jurisdic- tion ; it cannot look on anything as an offence ; but in those cases it only administers justice for the pro- tection of the civil rights of those who possess them, in consequence of being able to maintain an action. You have alluded to Milton's im- mortal work ; it did happen in the course of last long vacation, 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 author 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 improper by law to vindicate the publication ; but, taking it altogether, it is clear that the object and effect were not to bring into disrepute, but to promote, the reverence of our re- ligion. Now the real question is, looking at the work before me, its preface, the poem, its manner of treating the subject, particularly with reference to the fall and the atonement — whether its intent be as innocent as that of the other with which you have compared it ; whether it be to traduce and bring into dis- credit that portion of sacred 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 reasonable doubt is en- tertained as to the character of the work, (and it is impossible fur me to say I have not a doubt — I hope it is a reasonable one,) another course must be taken for determin- ing what is its true nature and character. " There is a great difficulty in these cases, because it appears a strange thing to permit the multi- plication of copies, by way of pre- venting the circulation of a mis- chievous work, (which I do not presume to determine that this is,) but that I cannot help ; and the sin- gularity of the case, in this instance, is more obvious, because here is a defendant who has multiplied his work by piracy, and does not think proper to appear. If the work be of that character which a court of cominon law would consider crimi- nal, it is pretty clear why he does not appear, because he would come con fit ens reus, and for the same reason the question may, perhaps, not be tried by an action at law ; and if it turns out to be the case, I shall be bound to give my own opinion. That opinion 1 express no further now than to say, that after having read the work, I cannot grant the injunction until you show me that you can maintain an action for it. If you cannot maintain an action, there is no pretence for granting an injunction ; if you should not be able to try the question at law with the defendant, I cannot be charged with impropriety if I then give my opinion upon it. " It is true that this 152 LAW OF COPYRIGHT. Without entering into the question of criticism raised by comparing the poem with Paradise Lost, — upon which a great critic and poet held a very different opinion from that expressed by Lord Eldon ^ — and admitting that an injunction before a trial at law should not be granted in a palpable case of malicious attack upon the scriptures or the doctrines of re- vealed religion, it is yet quite too strict to say, that because a poem admits of a suspicion of improper intentions, the author's copyright is not to be pro- tected until he has purged himself of that suspicion. The boldness aixl license of poetry admit of a lati- tude which would not be allowed in didactic prose ; and where the line is to be drawn closely, the court may not only mistake the tendency and intention of the work, but may, as Lord Eldon did on this occa- sion, apply its own views of doctrinal subjects to de- termine the innocence of the author's intention, in- stead of judging it by that broad, liberal and catholic spirit in which the intent of all poetry is to be judged.^ If canons of criticism are to be applied in this manner, and a publication, which falls under the mode of dealing with the work, if it proceeded against directly as an be calculated to produce mischievous offence ; but whether this or any effects, opens a door fur its wide dis- other work should be so dealt with, semination ; but the duty of stopping it would be very improper for me to the work does not belong to a court of former intimate an opinion." (6 equity, which has no criminal juris- PetersdorfT Abr. 558-9.) diction, and cannot punish or clicf-k ' Sir Walter Scott; LettertoJohn the offence. If the character of the Murray, Esq. accepting the dedica- work is such, that the publication tion of Cain. Lockhart's Life of of it amounts to a temporal offence, Scott, VI. 424, 2d edition. there is another way of proceeding, * See the Letter above cited. and the publication of it should be WORKS INJURIOUS TO RELIGION. 153 doubts engendered by such criticism, is to be refused protection in the first instance, there can be no safe literary property in the higher works of imagination, which deal with such subjects as man's future destiny or the events of scripture history ; for the refusal of a court of equity to grant an injunction in such cases, would be only a signal to invite more piracies than the courts of law could check. It would be a far more sound rule, to hold that unless a malicious in- tent or mischievous tendency be apparent on its face, every work \s prima facie entitled to protection, until the bad intent and tendency are established by those who rely upon them.^ In another case, Lord Eldon refused to continue an injunction to restrain a pirated edition of certain lectures delivered by Mr. Lawrence at the college of surgeons, on " Physiology, Zoology and the Natu- ral History of Man." He doubted whether many particular parts of the w^ork did not lead to a dis- belief in the immortality of the soul — one of the doctrines of the scriptures.- He therefore dissolved the injunction, and left the plaintiff to bring an action at law.^ In this case, his lordship said that ' See Ilime v. Dale, 2 Campb. unequal position with a piratical 29, note. II East, 244, note. piiblishor in a court of law, if it * Lawrence v. Smith, Jacob's R. should he wortli his wliile to po 471. there ; for both court and jury would ' It seems not to have occurred know tliat the phiintifT came before to Lord Eldon — or if it did, he them after he had been turned away gave no heed to the consideraiion — from the court of chancery, upon that tlie mere rumor of the dissolu- the belief or doubt raised in the tion of an injunction upon such mind of the first magistrate in the doubts as he expressed in tliis case, realm that his boolt was not entitled would place the author in a most to the protection of the law. 154 LAW OF COPYRIGHT. " he was bound to look, not only to the tenor, but also to particular passages unconnected with the general tenor; for if there were any parts of it which denied the truth of scripture, or which furnished a doubt as to whether a court of law would not decide that they had denied the truth of scripture, he was bound to look at them and decide accordingly." ^ If this is to be regarded as the statement of a rule by which to determine the validity of a copyright, it is quite unsound. It seems, however, to be only a statement of the rule that should govern a court of equity, in determining whether an injunction shall be granted before the right of property has been established at law. But even in this view, the doc- trine is not satisfactory ; and in announcing it, Lord Eldon is inconsistent with himself. In the previous case, in refusing an injunction to protect Lord By- ron's Cain, he had said of Paradise Lost, that there are undoubtedly a great many passages in it, of which, if the promotion of Christianity were not its object, it would be very improper by law to vindi- cate the publication ; but that, taking it altogether, it is clear that the object and effect were not to bring into discredit, but to promote the reverence of our religion.^ Here, his lordship assumed as the crite- rion the general tenor of the work ; and it is not very apparent why the same rule should not have been applied to Dr. Lawrence's Lectures. In the ' Lawrence v. Smith, Jacob's R.471. ^ Murray v. Benbovv. WORKS INJURIOUS TO THE PUBLIC PEACE. 155 one case, the good general object of the work ex- cuses from censure the passages which would be otherwise inexcusable. In the other case, the al- leged bad character of certain detached portions, it is said, renders the general tenor of the work wholly immaterial.^ 3. Works injurious to the public peace. The general principle of the law of England on this subject is, that there can be no right of property in publica- tions which tend to disturb the public peace, to be injurious to the good government of the state, or to bring into contempt the administration of justice. This principle has, however, sometimes been applied without due discrimination. There is a dictum of Lord Chief Justice Eyre, re- ported traditionally, upon which a great deal more has been built than is consistent with principle. Dr. Priestley brought an action against the hundred for damages sustained by him in consequence of the riotous proceedings of a mob at Birmingham ; and, among other property alleged to have been destroyed, claimed compensation for the loss of certain unpub- lished manuscripts, offering to produce booksellers to prove that they would have given considerable sums for them. On behalf of the hundred, it was alleged that the plaintiff was in the habit of publish- ' We may ask, also, what his part of scripture, is his copyright lordship means by "parts which thereby vitiated ? Or is it the gen- deny the truth of scripture " ? If eral truth of scripture, that must an author introduce into his book a not be denied ? passage denying the truth of aiii/ 156 LAW OF COPYRIGHT. ing works injurious to the government of the state; but no evidence was produced to that effect ; upon which Lord Chief Justice Eyre is reported to have said, that if any such evidence had been produced, he should have held it fit to be received as against the claim made by the plaintiff.^ In this case, it is obvious, that Dr. Priestley was seeking damages for the destruction of what might have been the source of pecuniary profit. The dictum of the Lord Chief Justice, therefore, goes only to this, that a work ex- isting in manuscript may be of such a character that the author cannot make lawful profits by its publi- cation, and in this sense it may be said that there can be no property in such a work. But this posi- tion was afterwards assumed to justify a very different doctrine, namely, that the author of an unpublished manuscript, of a character not innocent, or doubtful, cannot have the interposition of a court of equity to restrain its publication by a person who is about to publish it against his will ; as if the Lord Chief Jus- tice had said, that any one of the mob who might have stolen one of Dr. Priestley's MSS. could have published it, as against the author, and the court of chancery would not have interfered, on account of the character of the work. This doctrine, it will presently be submitted, is untenable, notwithstand- ing the high authority by which it has been counte- nanced. • So cited in Walcott v. Walker, 7 Ves. 1, and in Southey tJ. Sher- wood, 2 Meriv. 437. WORKS OF SEDITIOUS TENDENCY. 1-37 In the year 1817, Mr. Southey, the poet, made ap- plication to Lord Eldon for an injunction to restrain the publication of a poem called " Wat Tyler," which he had left for a long time in the hands of a bookseller, unpublished. The motion was resisted upon the ground that the work, from its seditious tendency, was of such a nature that there could be no copyright therein. The work had never been printed by Mr. Southey, or by his permission, and his application to the court proceeded upon the right of an author to restrain the publication of his own manuscript. Lord Eldon 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 publica- tion, he has a right to an injunction to prevent any other person from publishing it. If, on the other hand, this is not an innocent publication, in such 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." ^ It may admit of great doubt, whether the law of England recognizes any such distinction as Lord El- don here seems to suppose. It does undoubtedly say, that in order to obtain an injunction, or to re- cover damages, to protect a work that has been pub- lished by the proprietor, the work itself must be • Southey v. Sherwood, 2 Merivale, 435, 437. 14 158 LAW OF COPYRIGHT. innocent ; but it may be doubted whether the law carries this distinction into the case of an unpub- lished work, where the author proceeds merely upon his right to possess and control, to publish or not to publish his own manuscript. Lord Eldon says justly, that "it is to prevent the use of that which is the exclusive property of another, that an injunction is granted;" but he seems to overlook the fact that the law recognizes two kinds or degrees of pro- perty in a literary work. There is a right of pro- perty, which consists in the right to take the profits of a book, when published ; and there is also a right to the exclusive possession and control of a manu- script, or the right to publish or to withhold from publication altogether.^ The first of these rights depends now, in England and in America, upon statute. The other is a right at common law, inde- pendent of the property created or recognized by statute. The law of England has never said that an author has no property in his manuscript qua manu- script, or in the ideas and sentiments written upon it before publication. If it had, it would only be necessary to steal a manuscript, in order to be able to print it with impunity ; and the author could only take the profits, or obtain an injunction, by showing that he himself intended to publish and to take the profits. It has long been settled, however, that the author and proprietor of a manuscript has the sole ' See Wheaton v. Peters, 8 Peters S. C. R. 591. WORKS or SEDITIOUS TENDENCY. 159 dominion over it, and may obtain an injunction to prevent its publication by another; and in no case has it been considered, that his right depends on his intention to publish and to make a profit.^ But the cases proceed upon the ground of a right of property; and what seems to be intended by this is a right to the possession and control of the manuscript, and to publish or to withhold from publication." In the great case of Donaldson v. Becket, in the house of lords, in which the perpetual right of authors after publication was held to have been taken away by the act of Anne, eleven of the judges (including those who decided against some of the claims of authors) affirmed the sole right and dominion of an author over his own manuscript, as a right at common law.^ ' Webb V. Rose, cited 4 Burr. 2330 ; 2 13ro. P. C. 138 ; Forrester V. Waller, cited ut supra; Pope v. Curll, 2 Atk. 3 12 ; Manley i'. Owen, cited 1 Burr. 2329, 2404 ; Duke of Queensbury i'. Shebbeare, 2 Eden's Ch. R. 329, cited 4 Uurr. 2330, 2397 ; Macklin t- . Richardson, Amb. 09 1 . * The cases of injunctions to re- strain the pul)lication of letters pro- ceed upon this jn^round. None of them proceed upon an intention to publish and to make a profit. Pope V. Curll, ut supra. Tliompson v. Stanhope, Amb. 737. K;irlof Gra- nard v. Dunkin, 1 Ball & Beat. 207. Perceval r. Phipps, 2 Yes. & Bea. 19. Gee v. Pritchard, 2 Swanst. 402. Lord Eldon admits the right to control, independLMit of any intention to publish and lake the profits, where the work is innocent. But if it be not innocent, and the author does not intend to publish, his lordsliip thinks there is no ground for an injunction. But why not, as much as in the case of an innocent work which the author does not intend to publish ! In neither case docs he rest upon his riciit to the profits, but upon his right to control his own writings. The ques- tion is, does the law, where the work is not innocent, invalidate the author's right over his manuscript, or does it merely say that the profiis of such a publication are unlawful gains'? ^ Donaldson v. Becket, 4 Burr. 2408. 2 Bro. Pari. Cas. 129. The fi)llowing extracts, purporting to be made in the language of the judges, are given by Mr. Maugiiam. in his work on The Laws of Literary 160 LAW OF COPYRIGHT. When, therefore, an author has not published, or does not intend to publish a work existing in manu- script, but on the contrary desires and intends to withhold it from publication, the question as to its innocence cannot arise, because that question, ac- cording to principle and the decisions, affects only so much of his right of property as consists in the right to take the profits of the publication. It is in this sense, that the law declares there can be no pro- perty in an immoral, irreligious, or seditious publica- tion ; and not that there can be no right to the ex- Property, without citinfT the source from which they are taken : — " Narcs, J. It is admitted on all hands that an author has a bene- ficial interest in his own manu- script. " Ashurst, J. If a man lends his manuscript to a friend, and his friend prints it, or if he loses it, and the finder prints it, an action would lie. "Yates, J. Admitted this doc- trine. " Blackstone, J. When a man, by the exertion of his rational pow- ers, has produced an original work, he has clearly a right to dispose of it as he pleases. " Willes, J. I declare it as my opinion, that an author hath an indis- putable power and dominion over his manuscript. "Aston, J. An author hath a natural right to the produce of his mental labor. "Perrot, B. An author certainly hath a right to his manuscript ; he may line his trunk with it, or he may print it. " Gould, J. I agree that an au- thor hath a right at common law to his manuscript. " Smyth, L. C. B. The cases prove, and it is allowed, that literary property is property previous to pub- lication. " De Grey, L. C. J. There can be no doubt that an author has the sole right to dispose of his manu- script as he thinks proper. " Lord ^Mansfield. It is just that an author should reap the pecuniary profits of his own ingenuity and labor." Sir W. D. Evans, in the notes to his edition of the Statutes, vol. ii. p. 20, n. 14, commenting upon the decisions granting injunctions in fa- vor of the representatives of the au- thors of manuscripts, has intimated a doubt whether a mere manuscript presents such a case of property, that an injunction can be founded on it at the suit of an executor. But it is apparent, from the question put to the judges in Donaldson v. Becket, 4 Burr.~2408, that they intended to affirm the right of an author over his own manuscript to be a right at common law, without making it ne- cessary for him to rest upon its value as a marketable commodity. See also White v. Gerooch, 2 Barn. & Adol. 298. Wheaton v. Peters, 8 Peters S. C. R. 591. WORKS OF SEDITIOUS TENDENCY. IGl elusive possession and control of whatever a man writes, before publication, unless it be innocent.' ' It would seem, that Lord El- don's remarks in the case of Soiitli- ey V. Slicrwood, must be very im- perfectly reported. He is reported to have made the followiuir observa- tions at tlic time of the hearinor : " If this publication is an innocent one, 1 apprehend that I am author- ized, by decided cases, to say that, whether the author did or did not intend to make a profit by its publi- cation, he has a right to an injunc- tion to prevent any other person from publishing it. If, on the other hand, this is not an innocent publi- cation, in such a sense as that an action wuvdd not lie in case of its having been published by the author and subsequently pirated, I appre- hend that this court will not grant an injunction. Tiie court does not interfere in the way of injunction to punish or to prevent injuries done to the character of individuals ; but it leaves tlie party to his remedy at law. It is to prevent the use of that which is the exclusive property of another, that an injunction is grant- ed. There is, however, a difference between the case of an actual publi- cation by the author, which all the world may pirate, and that of a man who, having comjiosed a work, of which he afterwards repents, wishes to witlihold it from the public. I will not say that a principle might not be found which would apply to such a case as that ; but then it is necessary to take all the circum- stances of the case into considera- tion. The circumstances of the present case are very extraordinary. I will assume that the work is of such a nature that the sending it forth into the world might iiave been treated as a criminal act. In that view of the circumstances, I 14* have no jurisdiction to consider its criminality. The work was com- posed so long ago as the vear 1791. The plaintilf's alHdavii ;idmils that, in that year, there was a serious intention of publishing it. It was sent by the plaintiff to Mr. Ridge- wav, and is supposed to have been delivered by him to Symonds. The affidavit goes on to state that it was afterwards determined nut to publish it. I will suppose that it was not thought worth while to publish it, in a pecuniary view. Mr. Ridgeway gives no account how it passed out of his hands ; and all that is alleged concerning the subsequent disposal of it is, that Mr. Southcy, living in the country, forgot it. if the work be such a one as it has been described to be, it is extraordinary that, with the change alleged to have taken place in Mr. Southey's opinions, there should be nothing stated to account for its having been left by him in Mr. Kidgeway's hands to the pre- sent time, but that Mr. Southey forgot it. It is impossible that Mr. Southey could have forgotten it. There must have been some other reason. If a man loaves a book of this description in the hands of a publisher, without assigning any satisfactory reason for doing so, and has not inquired about it during twenty-three years, he surely can have no right to complain of its be- ing published at the end of that period." It is obvious, that the case for which his lordship would not say, that " a i)rinciple might not be A)und," was the very case before him. Mr. Southey had sworn in his affidavit, that lie had forgotten having left the IMS. in the hands of 162 LAW OF COPYRIGHT. Lord Ellenborough, in the case of Hime v. Dale, said, " If the composition appeared, upon the face of Ridgeway, with whom in fact he had originally deposited it ; that he was very desirous it should not be pub- lished ; and his counsel rested his application upon the right of an au- thor to control his own MSS. Yet his lordship, if correctly reported, not only felt authorized to say, " it is impossible that Mr. Southey could have forgotten it," (there was no counter affidavit) ; but proceeded afterwards to decide the cause with- out finding the principle which he intimates might have been found for the case actually made by the appli- cation. With regard to his lord- ship's dictum, contained in the last sentence of the passage above cited, it seems scarcely necessary to say, that nothing short of a license, or an assignment of copyrioht, can de- prive an author of the right to com- plain of the publication of his own MS. Whether the fact of his hav- ing left it without inquiry for three- atul-twenty years, explained by his affidavit that he had forgotten it, would be presumptive evidence of a license or an assignment, may ad- mit of much doubt. On a subse- quent day, his lordship delivered judgment as follows : " I have look- ed into all the affidavits, and have read the book itself. The bill goes the lengtii of stating, that the work wiis composed by Mr. Southey in the year 1791 ; that it is his own production, and that it has been pub- lished by the defendants without his sanction or authority ; tiierefore seeking an account of the profits which have arisen from, and an in- junction to restrain, the publication. I have examined the cases that I have been able to meet with, con- taining precedents for injunctions of this nature, and I find that they all proceed upon the ground of a title to the property in the plaintilf. On this head a distinction has been ta- ken, to which a considerable weight of authority attaches, supported, as it is, by the opinion of Lord Chief Justice Eyre, who has expressly laid it down, that a person cannot recover in damages for a work which is in its nature calculated to do in- jury to the public. Upon the same principle, this court refused an in- junction, in the case of Walcot v. Walker, inasmuch as he could not have recovered damages in an action. After the fullest consideration, I re- main of the same opinion as that which I entertained in deciding the case referred to. It is very true that, in some cases, it may operate so as to multiply copies of mischiev- ous publications by the refusal of the court to interfere by restraining them ; but to this my answer is, that sitting here as a judge upon a mere question of property, I have nothing to do with the nature of the proper- ty, nor with the conduct of the par- ties except as it relates to their civil interests ; and if the publication be mischievous, either on the part of the author, or of the bookseller, it is not my business to interfere with it. In the case now before the court, the application made by the plaintiff is on the ground only of his civil in- terest ; and this is the proper place for such an application. I shall say nothing as to the nature of the book itself, because the grounds upon which I am about to declare my opinion render it unnecessary that I should do so. [His lordship here recapitulated the circumstances already detailed, of the original in- tention to publish, the subsequent abandonment of that intention, the LIBELLOUS PUBLICATIONS. 163 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." ^ 4. Works injurious to private reputation. The same length of time during which the plaintiff had suffered the work to re- main out ot" his possession without inquiry, and its recent publication by the defendants.] Taking all these circumstances into my consid- eration, and after having consulted all the cases which I could find at all regarding the question, — enter- taining also the same opinion with Lord Chief Justice Eyre as to the point above noticed, — it appears to me that I cannot grant this injunc- tion until after Mr. Southey shall have establishpd his right to the property by an action." From this it would seem that his lordship really refused the injunc- tion, partly upon the ground that he was not satisfied that Mr. Southey had not parted with his right, and partly upon the ground that the work was one with which the court could not interfere. Upon both grounds, the decision is very unsat- isfactory. ' Hime v. Dale, 2 Campb. 27, n. This was an action for pirating the words of a song called " Abraham Newland," published on a single sheet of paper. Garroiv, for the defendant, contended, that the song was of such a description that it could not receive the protection of the law in whatever sliape it ap- peared. It professed to be a pane- gyric upon money ; but was in real- ity a gross and nefarious libel upon the solemn administration of British justice. The object of this compo- sition was, not to satirize fully, or to raise the smile of innocent mirth, but, being sung in the streets of the capital, to excite the indignation of the people against the sacred minis- ters of the law, and the awful du- ties they were appointed to perform. The mischievous tendency of the production would sufficiently appear from the following stanza ; after hearing which, the court would say whether the nonsuit ought to be disturbed. "The world is inclined. To think Justice blind ; Wt wliivt of all that.' She will blink like a bat At the sicht of friend Mmham J^eirland ! Oh, Abraham .yeirlmid ! Mairical Abraham J\'i'irlanil ! Though .lustice, 't is known, Can see throui:)) a inilUione, She can't see thro' Abraham JVcwland ."' Lord Ellenborough. " 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 injunc- tion. But I think the present case is not to be considered one of that kind " Lawrence, J. " The argument used by Mr. Garrow on this fugitive piece as being a libel, would as forcibly apply to The Beggar's Opera, where the language and al- lusions are sufficiently derogatory to the administration of public jus- tice." — It is certainly not easy to see the seditious tendency of the stanza quoted by the learned coun- sel. 164 LAW OF COPYRIGHT. general motives of public policy, which defeat a copyright in a seditious, irreligious, or obscene pub- lication, exclude from protection libels upon private character. Such works are wholly excluded from the protec- tion of the law. An action cannot be maintained at « law for the invasion of that which a man calls his property, but which the policy of the law will not permit him to consider and enjoy as property ; and a court of equity will not grant an injunction where an action could not be maintained at law, even upon a submission in the answer.^ The principle of public policy, which thus defeats a copyright through the bad character of the work, has been met with the objection that it only en- courages and multiplies the circulation of mischiev- ous works. But to this objection the answer has been made, that so far as the action of courts of equity is concerned, those courts have no crimi- nal jurisdiction ; and as they have only to look at the civil rights of parties, if such rights do not exist by the law of the land, they cannot restrain a publication which one man has as much right to make as another, where neither have any right at • Walcott V. Walker, 7 Ves. 1. in pieces; Lord Elleuhoroiifrh in- So upon analdjjous grounds, where structed the jury, in assessinfj the an artist exhibited for money a pic- damages, not to consider the picture ture called " lieauty and the Beast," as a work of art, but to award the which was a scandalous libel upon plaintiff' merely the value of the a gentleman and his wife, who was canvas and paint which formed its the sister of the defendant, and component parts. Du Best v. Be- great crowds went daily to see it, resford, 2 Campb. 511. till the defendant one morning cut it > DOUBTFUL POLICY OF THE LAW. 165 all.^ To this it might be added, that so far as the action of courts of law is concerned, when adjudica- ting between party and party, the sole inquiry is, does the law permit a copyright in an immoral, irre- ligious, or seditious publication ? If not, then there can be no damages awarded to the proprietor of such a book. The public consequences of the operation of this principle can be remedied by legislation alone.- At the same time, it cannot be denied, that this salutary general principle is subject to great difficul- ties in the application. Great care should be exer- cised, not to pronounce any copyright invalid by reason of illegality in the work itself, unless it is a clear case. In equity, the sounder rule w^ould be to refuse no injunction, where the book is not illegal " upon the face of it ;" and both in equity and at law, the defendant should not be relieved of the bur- then of proof, by any disposition on the part of the court to apply its private opinions, doctrines, or standards, to the publication in question.^ Prima ' Lawrences. Smith, Jacobs R. Story, "can hardly admit of ques- 471. 2 Story's Eq. Jurisp. ^937. tion. The chief embarrassment and * For an iuterestinfr discussion on difficulty lie in the application of it the effects of refusing protection to to particular cases. If a court of illegal works, see (5 Pctcrsdorff's equity, under color of its general Abridg. 560, 501, and an article in authority, is to enter upon all the the Quarterly Review for April, moral, theological, metaphysical and 1822. This doctrine does not enter political inquiries, which in the past into the law of copyright in France, times have given rise to so many All works are equal before the law, controversies, and in the future may without reference to their character, well be supposed to provoke many Renouard, torn. 2, p. 94. heated discussions, and if it is to de- ' " The soundness of this gene- cide dogmatically upon the charac- ral principle," says ^Ir. Justice ter and bearing of such discussions, 166 LAW OF COPYRIGHT. facie the copyright confers title ; and the burthen is upon the other side to show clearly, that notwith- standing the copy, there is an intrinsic defect in the title.^ 5. Works innocent in their contents, but put forth under a false and fraudulent representation as to their authorship. It has been recently held in England that there can be no valid and subsisting copyright, in a book which falsely purports to have been written by an author of reputation, and which, under color of such a representation, seeks to impose upon the public. The plaintiff published a book, professing upon its title-page to be a translation from a de- ceased German author, whose works had been trans- lated and much sought for in England. The preface of this book falsely represented it to be the work of the German author, when in reality it was written and composed wholly by a person employed and paid by the plaintiff for the purpose. The court distinguished this entirely from the cases of works and the rights of authors, growing learned and pious minds have been out of them; it is obvious that an greatly divided,) would deem any absolute power is conferred over work anti-ehristian, which should the subject of literary property, profess to deny that point, and would which may sap the very foundations refuse an injunction to protect it. on which it rests, and retard, if not So, a judge who should be a Trini- entirely suppress, the means of ar- tarian, might most conscientiously riving at physical as well as at me- decide against granting an injunc- taphysical truths. Thus, for exam- tion in favor of an author, enforcing pie, a judge, who should happen to Unitarian views ; when another believe, that the immateriality of the judge, of opposite opinions, might soul, as well as its immortality, was not hesitate to grant it." 2 Story's a doctrine clearly revealed in the Eq. Jurisp. ^ 9.38. Scriptures (a point upon which very i 2 Story Eq. Jurisp. § 936, n. 2. FALSE PRETENCES AS TO AUTHORSHIP. 167 published under a fictitious authorship, in which there is no intent to deceive or defraud the public ; and held, that where a publisher seeks to obtain the money of the public by a pretence that his book was written by a known author, the transaction ranges itself under the head of crimen falsi, and that he cannot have a valid and subsisting copyright in his publication, or maintain an action in respect of its infringement.^ ' Wright V. Tallis, 1 Manning, Granger & Scott, Com. Bench Rep. 893. In this case, Lord C. J. Tin- dal said, " The first observation, therefore, that arises, is, that the present case is perfectly distinguish- able from those which have been referred to at the bar, of books of amusement or instruction having been published as translations, whilst they have been, in fact, original works ; or having been published under an assumed, instead of a irue name. Such was the instance given of ' The Castle of Otranto,' professing to be translated from the Italian ; and such the case of innumerable works published under assumed names — voyages, travels, biography, works of fiction or ro- mance, and even works of science and instruction ; for, in all these in- stances, the misrcprcsentauon is in- nocent and harmless. There is not found, in any one of those cases, any serious design on the part of the author to deceive the purchaser, or to make gain and profit from him by the false ■ representation : the purchaser, from anything that ap- pears to the contrary, would have purchased at the same price, if he had known that the name of the author was an assumed, and not a genuine name ; or had known that the work was original and not trans- lated. And, indeed, in most of the cases that can be put, the statement is not calculated in its nature to de- ceive any one, but is seen, upon the very first glance, to be plainly and manifestly fictitious. In those cases therefore, it was perfectly indilfer- ent to the public, whether the re- presentation was true or not ; and in all probability, the book would have 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 imi>ort a serious design on the part of the plaintiff to impose on the creilulity of each purchaser by fixing upon the name of an author who (once) had a real existence, and who pos- sessed a large share of weight and estimation in the opinion of the pub- lic. The object of the plaintilf is, not merely to conceal the name of the genuine author, and to publish opinions to the world under an in- nocent disguise ; but to deceive the public, in inducing them to believe that the work is the original work of the author whom he names, when he himself knows it not to be so, to obtain from the purchaser a greater 168 LAW OF COPYRIGHT. price than he would otherwise ob- tain. The transaction, therefore, ranges itself under the head of cri- men 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 can- not be considered as having a valid and subsisting copyright in the work, the sale of which produces such consequences, or that he is capable of maintaining an action in respect of its infringement. " The cases in which a copyright has been held not to subsist where the work is subversive of good or- der, morality, or religion, do not, indeed, bear directly on the case before us ; but they have this anal- ogy with the present inquiry — that they prove that the rule which de- nies the existence of copyright in those cases, is a rule established for the benefit and protection of the public. And we think the best pro- tection 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 author." CHAPTER V. OF THE ORIGINALITY NECESSARY TO A VALID COPY- RIGHT. The party wiio comes into a court of law or equity, seeking protection to a copyright, must be the author of the work, or must derive title from the author. If any part of the book is copied or adopted by the writer from a preexisting work, of course the title fails quo ad hoc : as the writer cannot have been the author of what he has borrowed from an- other.' Hence it may become a grave question, to ' Tlie statutes both in England and America make use of tiie word Author, which ex vi termini imports orioinality, to some extent. In France, the law of copyright is founded on the decree of July 19th, 1793, which embraces in its provis- ions " Ics auleurs d'ecrits en (out genre." Upon this expression, M. Merlin has made the following com- mentary, which would lose in a translation the fine and clear dis- tinction between the terms " esprit" and "genie." " Mais il nc faut pas s^'parer, dans cet article, les mots icrils en lout genre, de I'expfession aulnirs ; et la propriety dont cet article declare que les errits en tout <,nnre sont susceptiblcs, ne pent 6vidcmmcnt etre reclamde que par ceux qui en sont auleurs, dans la veritable ac- ception de ce terme. 15 " Or, le mot auteurs, quel sens a-t-il en general? Quel sens a-t-il relativenicnt aux ecrits? Quel sens a-t-il dans la loi du 19 juillel 1793? " En general, le mot auleur de- signe, suivant la definition qu'en donne le Dictionnaire de I'Acade- mie fran§aise, cehii (jui est la pre- miere cause de la qvelijue cho^c; et il est aussi, suivant la meme definition, synonyme A'invcnteur. " Applique aux ecrits, le mot au- tevr se dil (loujours suivant le nienie Dictionnaire) de celut qui a ou/ijiose un livrc, qui a fait quvlquts uuvrnges d^xprit en vers ou en prose ; et il est bien clair qu'en ce sens, le mot au- ttur est opp()s6 a copiste. " Enfin, la loi du 19 juillct 1793 ne permit pas de douter qu'clle n'exclue 6calemcnt les copisies de la denomination d'auteurs. Les hinlicrs de I'autcur d'un outrage de 170 LAW OF COPYRIGHT. determine in a particular case what is or is not original on the part of the writer ; or in other words, whether any part of his work is copied or adopted from that of another. It is very diflicult to lay down any legal definition of originality in a literary composition, that may be resorted to as a universal test. Many intellectual productions present no more difficulty, upon the question of their originality, than some inventions or discoveries. The poems of the great masters in every language, and a vast body of other writings, however freely their authors may have used the thoughts of others, are at once seen to be just as ori- ginal in a legal as they are in a critical sense. But \ in every species of composition, in all literatures, I there is of necessity a constant reproduction of what is old, mixed with more or less that is new, pecu- j liar and original. There are also large classes of f liltirature ou de gravvre, dit-elle, " Done, les expressions d^eo'its art. 7, ou de toute autre produc- en tout genre, ne sunt employees TioN DE l'esprit OU Du GENIE, (jui dans I'art. l'"'' de la meme loi, que appartienl aux beaux-arts, en auront pour designer tous les genres de la propriete exclusive pendant dix compositions litt^raires. annees. Ces termes, ou de toute " Done, elles n'y d6signent pas autre production de fesprit ou du les Merits qui ne seraient pas des genie, qui apparfient aux bconx-arls, compositions, mais de simples cop- ne sont ni obscurs ni equivoques, ies. lis significnt clairemcnt que les pro- " Done, celui qui no fait que cop- duclions de l'esprit ou du gtnie sont ier une composition litl6raire ne pent de deux sortes; que les unes con- jamais etre r6put6 auteiirde la copie sistent en ouvrages de lituSrature ; de cette composition, ni par consfe- que les autres apparticnncnt aux quent en avoir la proprie/e, dans le beaux-arts; mais que nul ne pent sens attach^' a ce mot par la loi du etre repute auteur soitd'un ouvrage 19 juillet 1793 et par le Code p6nal de litterature, soit d'un ouvrage 1810." Meilin, K<5pert()ire de d'arts, si ce n'est pas a. son esprit Jurisprudence, Tilre Contrefa5on, ou k son ginie qu'en est due la (} xi. production. ORIGINALITY. 171 works, the materials of which are common to all writers, existing in nature, art, science, philology, history, statistics, &c., where there must be consid- erable resemblances, however independently of each other the different authors may have written. Over this vast field, it is impossible to erect an unvarying general rule, which can be fitted to all cases and capable of determining whether a particular work exhibits the degree of originality necessary to a valid copyright. The laws which- protect literary pro- perty are designed for every species of composition, from the great productions of genius, that are to de- light and instruct mankind for ages, to the most humble compilation that is to teach children the art of numbers for a few years, and then to disap- pear forever. Hence these laws must be so ad- ministered, that every literary laborer shall find in them an adequate protection to whatever he can show to be the product of his own labor. So nething he must show to have been produced by himself; whether it be a purely original thought or principle, unpublished before, or a new combination of old thoughts and ideas and sentiments, or a new appli- cation or use of known and common materials, or a collection, the result of his industry and skill. In whatever way he claims the exclusive privilege accorded by these laws, he must show something which the law can fix upon as the product of his and not another's labors. But in order that the law should do this ample justice to the great variety of 172 LAW OF COPYRIGHT. claimants, it is necessary that its rules should be capable of adaptation to the objects of their labor. ^ They must include in their range everything that can be justly claimed as the peculiar product of indi- vidual efforts ; otherwise they would exclude from the benefits of literary property objects which are as clearly the products of individual labor, as the most original thoughts ever written, namely, new and im- portant combinations and arrangements, or collec- tions of materials known and common to all man- kind. It is therefore of some importance to ascertain, in the first place, what the law does not look to, in ap- plying a test of originality to a literary composition. 1. The mere utility of a book, or its adaptation to the end which it professes to answer — its value in a critical point of view — cannot determine its legal originality. The law takes upon itself none of the functions of the critic, in this sense. It looks only for some substantial product of individual thought or labor, and leaves to public taste or judgment to de- termine its value, and to bestow its due reward. So that whether a book be more or less useful, more or ' " The rule of decision," said merits, and the reward of their in- Lord Mansfield, in Sayre v. Moore, genuity and labor ; the other, that 1 East, 361,362, note, "is a matter the world may not be deprived of of great consequence to the country, improvements, nor the progress of In deciding it we must take care to the arts be retarded. The act that guard against two extremes equally secures copyright to authors guards prejudicial; the one, that men of against the piracy of the words and ability, who have employed their sentiments ; but it does not prohibit time for the service of the communi- writing on the same subject." ty, may not be deprived of their just ORICINALITY. 173 less successful, or brilliant, or important, if in a just sense the claimant is the author of that in which he claims an exclusive property, he is entitled to his copyright valcre, quantum valere potest.^ It is true, there may be cases, in which the question will arise, whether a subsequent author has made any improve- ments upon his predecessors ; and in such cases it may become necessary to apply collaterally, as a test of originality, an inquiry into the practical and rela- tive value of his publication. But this will be done, in order to determine whether he has borrowed any, and how great a part of his matter from sources com- mon to all writers — whether he has actually pro- duced anything of his own, and not whether his pro- duction is better or worse than the productions of others. If it appears that he has produced anything of his own, not borrowed or adopted from a previous writer, its effect in advancing or retarding the pro- gress of knowledge, or its value in a critical point of view, can have no influence upon his title to a copy- right. 2. The law does not require that the subject of a book should be new, or that the materials of which it is composed should be original ; but there may be a valid copyright in the book itself, though the sub- ject and the materials are common to all wi'iters. In all such cases, the true inquiry is, whether the claimant's book contains any substantive product ' Emerson r. Davics, 3 Story's R. 768. 15* 174 LAW OF COPYRIGHT. of his own labor ? If so, the law declares it enti- tled to the protection of a copyright. Thus, if a person collects an account of natural curiosities, or of works of art, or of mere matters of statistical or geographical information, and employs the labor of his mind in giving a description of them, his own description may be the subject of copyright. It is equally competent to any other person to compile and publish a similar work. But it must be made substantially new and original, like the first work, by resort to the original sources, and must not copy or adopt from the other, upon the notion that the subject is common.^ There have been several cases, upon works of different kinds, which have recognized and estab- lished this principle. One of the earliest of this class of cases is that concerning Road Books or Itineraries. There was formerly an old work, called Patteis- son's Road Book, published in England, from 1771 to 1796. In 1797, one Gary was employed by the postmaster-general to make an actual survey of the roads, and the book published by him contained many material corrections of and additions to the last edition of the original work by Patterson. Sub- sequently, a book was published purporting to be founded on Patterson's, but in reality, as was alleged, copied from the improved work of Gary, with some • Hogg V. Kirby, 8 Ves. 215, 221 . ORIGINALITY. 175 colorable alterations. Gary applied to Lord Chan- cellor Loughborough for an injunction against the latter publication, in 1799 ; but his lordship refused to make an order, thinking that the two books were very unlike.^ Two years afterwards, Gary brought an action in the court of king's bench, for piracy, against the publishers of the same or a similar book, which purported to be the twelfth edition of Patter- son's, but containing also nine-tenths of Gary's im- provements. The defendant's counsel contended that Gary could not be considered as the author of the bookj within the meaning of the statute, the greater part of it having been published before by another person. Lord Kenyon, G. J., said, " Cer- tainly 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 abbre- viations, many of which were material and valuable ; and the defendants are answerable at least for copy- ing those parts in their book. The courts of justice have been long laboring under an error, if an author has no copyright in any part of a work, unless he have an exclusive right to the whole book." - So, in the case of a work called The Gourt Galen- ' Cary v. Fadcn, 5 Ves. 21. being different, it is probable that * Cary v. Longman, 1 East, 358, the works were different. But the 360. It is not apparent whether the principle involved was the same, book complained of in this case was and ii is surprising tliat Lord Louijli- or was not the same as in ihe case borough should have summarily dis- of Cary i'. Faden {ante) before Lord posed of it in the few words re- Loughborough. The defendants ported in 5 Ves. 26. 176 LAW OF COPYRIGHT. dar, Lord Eldon held that although the subject was open, no man could on that account be justified in sparing himself the labor and expense of collecting the original information and copying the work pre- viously published by another.^ So also Lord Erskine C. held, although the East India Calendar could not be a subject of copyright, yet, that if a man from his situation having access to the repositories in the India house, has by considerable expense and labor procured with correctness all the names and appoint- ments on the India establishment, he has a copy- right in that individual work.^ The same principle was also applied to a work on the Antiquities of Greece, containing prints taken from drawings made by the plaintiff;^ and in like ' Longman v. Winchester, 16 Ves. 269. In this case, Lord Eldon said, "I cannot go the length of staling the proposition, that oopy- risht cannot suhsist in a work of this descii|)tion : nor would I dis- turb the injunction upon that ground wiUiout putting them to a trial. Assuming, that there may be a copyright, there is not much diffi- culty in the rest of the case. Take the instance of a map, describing a particular county ; and a map of the same county, afterwards published by another person : if the descrip- tion is accurate in both, they must be pretiy much the snme : 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 tliemap, previously published by another. So as to Patterson's Road Piook, it is certainly competent to any other man to publish a hook 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 re-publication 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 Eomilly, 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 ad- vantage of the selection already made by another." '■^ Matihewson v. Stockdale, 12 Ves. 270. => Wilkins v. Aikin, 17 Ves. 422. See also Sayre v. Moore, 1 East, 361, note, with reference to charts. ORIGINALITY. 1' manner, a person may have copyright in mathemat- ical tables actually calculated by himself, although, on a fresh calculation the same tables would result from the same data and the same principles, and although they may have previously been published before his appeared.^ 3. A book may also be original, in the sense of the law, although the materials of which it is com- posed, the hints and sources from which its matter M^as derived, can all be traced out in former works, provided the author has exercised selection, arrange- ment and combination, and has thereby produced anything new." In a scientific treatise, to be used Wyntt r. Barnard, 3 Yes. & B. 77, with reference to spocificntions of patents copied from the public office. ' Bailey v. Taylor, 3 Law Journ. 6fi. " The following rloqiifnt descrip- tion of nriflfinal authorship is from an prg-nment by AL Merlin before the Court of Cassation. "Sans donte, il est des compilations d'ouv- rages litt6raires qui, jiar rimmen- sit6 des rechevches qu'elles suppn- sent, par le discernement et Ic gout qu'elles exigent, penvent ct doivent passer pour de Y6rif,il)lcs produc- tions de I'esprit, ct qu'il n'est pas plus permis de contrcfaire que si elles etaient reellemcut des compo- sitions originalcs. " Par exemple, les Pandcdcs de Pothier ne sont, a pcu de chose pres, qu'une compilation des Institutes, du Pigcste, du Code et des Novclles de Justinien ; c'cst-a-dire, de re- cueils qui, depuis j)liisieurs sieclcs, sont incontestablement dans Ic do- maine du public. " Cependant, si Pothier vivait en- core, el qu'iin imprimeur s"avisat de publier une Edition de ses Pan- dectes, sans sa permission, qui cst-ce qui oserait contester k Potliicr le droit de le poursuivre ctmimr con- trefactei.r'? Qui est-ce qui (.serait dire que Pothier, en compilant a sa manier ; les Institutes, le Diiji-.-te, le Code ct les Novellcsde Justinien, n'a pas fait un ouvrage qu"il n'ap- partenait qu'a un jurisconsulte du premier ordre d'entreprendre et d'achcver? Qui est-cc qui oserait dire qu'un simple copiste eut pu, comme lui, tirer tous les textes du droit remain de Tespece de chaos dans le(iuel ils sont disperses ; les ranker dans un vaste cadre oti. en- chaines les uns aux autres, ils s'ex- pliquent mutuellemeiit ; rappiocher de chaque regie gent rale toutes les exceptions qui la limitent ; placer k cote de la loi ancienne, la loi mod- erne qui la modific ; ct la loi plus modcrne encore qui rabrope ; en un mot, substituer Tordre k la confu- 178 LAW OF COPYRIGHT. for example for purposes of instruction, the author who takes existing materials from sources common to all writers, an*d arranges and combines them in a form and gives them an application unknown before, is protected in the exclusive enjoyment of what he has thus collected and produced, in that particular form. In like manner, an author who takes, from the hints and suggestions of objects in nature or art, or from the ideas and methods to be found in other books, the materials of a method of illustra- tion, and gives to them a new application, or a new use, or uses them in a new form, produces something which the law recognizes and protects as original. This doctrine has been elaborately expounded, in two modern cases. Thus, where an editor of a modern edition of Adam's Latin Grammar had made many improve- ments and additions, and had compiled many ne v notes to the old work, although the elemental mate- rials of his improvements and additions and the sub- stance of his notes could more or less be traced to other and various sources in other works, yet Mr. sion, la Inmi^re i I'obscurit^, la fa- riaux pour Clever un siipcrbe palais, cilil6 d'6tudier et d'apprendre aux un temple majestueux. dugouts et aux Opines qui arretent, "Mais il est aussi des compila- dt'-s leurs premiers pas, tous les as- tions qui se font, comme on le dit pirants k I'exacte connaissance des vuliraircmcnt, avec des ciseaux, qui lois romaines? n'exigent qu'un travail de manoeu- " Compiler de cette maniere, ce vre, et qui, pour cettc raison, ne n'est pas copier, c'est crter ; c'est peuvent pas mtriter k leurs artisans faire ce que ferait un architecte qui, le litre d'auteurs." Merlin, Rep. apr^s avoir d6moli un Edifice goth- de Jurisp. title Contrefagon, 6xi. ique, en emploierait tous les mat6- ORIGTNAT.TTY. 179 Justice Story held the editor entitled to copyright in the matter of his own edition, because it had never been before collected and embodied in a former sin- gle work.' ' Gray v. Russell, 1 Story's R. 11. In this casG llie court said, "The arsTuinent proceeds mainly upon this ff roil ml, that there is nothincr subsiantiaily new in Mr. Gould's notes to iiis edition of Ad- am's Latin Grammar ; and that all his notes in suhstincc. and many of them in form, may bo found in other works antecedently printed. That is not the true question before the court. The true cpiestion is, whether these notes are to be found collected and embodied in any firmer siii?le work. It is admitted, tint thov are notso to be found. The most, that is contended for, is, thai Mr. (ionld has selected his notes from very various authors, who have written at dilVer- ent periods, and that any other jier- son mi^ht, by a diligent cxatuina- tion of the same works, liave made a similar selection. It is not pre- tended, that Mr. Cleveland under- took 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 'Sir. 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 intellectual exertion. The plan, the arranjjenient, and the combina- tion of these notes in the form in which they are collectively exhibit- ed in (lould's Grammar, belonu ex- clusivtdy to this ircntloman. lie is, then, justly to be deemed the author of them in their actual form and combination, and entitled to a copy- right accordin I'J. by the 8 Anne, c. 19, could not be ' Forinerly, an action for damages recovered. Beckford v. Hood, 7 could be mainiained, although the T. R. 6"J0. work had not been entered at sta- 200 LAW OF COPYRIGHT. that 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; provided also, that nothing in the act shall prejudice the remedies which the proprietor of the sole liberty of representing any dramatic piece shall have by vir- tue of the act 3 Wm. IV. or of this act, although no entry shall be made in the book of registry/ By the 20th section of this act, dramatic and mu- sical compositions are to be registered, by entering the title of the production, the name and abode of the author or composer, the name and abode of the proprietor, and the time and place of the first re- presentation or performance.^ But the omission to register is not to affect the remedies which the pro- prietor of the sole liberty of representation has by virtue of this act, or of the 3 Wm. IV. c. 15.^ University and Collegiate Copyright. The acts 15 George III. c. 53, § 1, and 41 George III. c. 107, § 3, secure to the two universities of Oxford and Cambridge and the colleges within them, the four universities in Scotland, Trinity College, Dublin, and the Colleges of Eton, Westminster, and ' Act 5 and G A^ict. c. 45, ^ 2i. to be a copy of any entry in the The 12ih section of this act makes it registry book, an indictable misdemeanor, punish- ^ Act 5 and 6 Vict. c. 45, ^ 20. able accordingly, for any person vvil- •'Ibid, i^* 21. The term " dra- fully to make, or cause to be made, matic piece," in this act, includes any false entry, or wilfully to pro- every tragedy, comedy, play, opera, duce, or cause to be tendered in evi- farce, or other scenic, musical, or dence, any paper falsely purporting dramatic entertainment. Sect. 2. UNIVERSITY A^D COLLEGIATE COPYRIGHT. Winchester, a copyright in books given or bequeath- ed to them for the advancement of useful learning or other purposes of education ; and this copyright they hold in perpetuity, unless the bequest is expressly stated to be for a limited term, and if they continue to print at their own presses. But the penalties given by these acts against piracy, cannot be recov- ered, unless the title to the copy of the book be en- tered at stationers' hall, within the space of two months after the bequest or gift thereof shall have come to the knowledge of the vice-chancellors, or heads of colleges, or principals, of the said institu- tions, respectively.^ If the clerk of the stationers' company neglect or refuse to make the entry and grant a certificate thereof, when required, then the proprietors (notice being first given of such neglect or refusal in the London Gazette,) are to have the like benefit as if the entry and certificate had been made and given, and the clerk is subjected to a pen- alty.^ Prints and engravings are regulated by the acts 8 Geo. II. c. 13, 7 Geo. III. c. 38, and 17 Geo. III. 0. 57, the latter being extended to Ireland by the 6 and 7 Wm. IV. c. 59. Registration does not seem to be required ; but the statute 8 Geo. II. c. 13, § 1, ' Sawyer v. Dicey, 3 Wills. fiO. tained these rights by special enact- * Acts 15 Geo. III. c. 53, ^5; ment, after the decision of the house and 41 Geo. III. c. 107, ^ 5. The of lords, in Donaldson v. Bocket, rightsof the several universities and had unexpectedly overthrown the colleges mentioned in these acts are doctrine of perpetual copyright at saved to them by the 5 and 6 Vict, common law. c. 45, ^ 27. The universities ob- 202 LAW OF COPYRIGHT. requires that the day of the first publication shall be truly engraved with the name of the proprietor on each plate, and printed on every copy. The fulfil- ment of this requisition has been held to be neces- sary, to enable a party to recover, in case of piracy, the penalties imposed by the statutes. But it was formerly doubted whether an action at law for dam- ages, or a bill in equity for an account and injunc- tion, could not be sustained, without a compliance with these requisitions.^ But it has since been settled, that no action for the piracy of a print can be maintained, unless the date and name of the proprietor were engraved upon it, according to the act.^ Sculpture, which is protected by the act 54 Geo. III. c. 56, (which amended the 33 Geo, III. c. 71,) must have the name of the proprietor, with the date, put upon each original copy or cast.^ Delivery of Copies to certain Public Libraries^ The * Blackwellu. Harper, 2 Atk. 95. be delivered, one for each of the two Roworth U.Wilkes, 1 Camp. 95. English universities, and one for the Harrison v. Ihigg, 2 Ves. Jr. 323. king's library. This was followed Thiimpson v. Symonds, 5 T. R. 41. by the 8 Anne, c. 19, which extend- * Brooks I'. Cock, 3 Ad. & Ellis, ed the number of copies to nine ; one 138. for the King's Library, two for the ' Act 54 George III. c. 56, § 1. libraries of Oxford and Cambridge, See Appendix. four for the libraries of the four * It has long been a part of the Scotch universities, one for Sion policy ot English legislation on the College in London, and one for the subject of literature, to support cer- library of the Faculty of Advocates tain institutions by compelling a de- in Edinburgh. The 41 George III. livery of a certain number of copies c. 107, gave two more copies, one of all published works. The first to Trinity College, and one to the statute containing this requirement. King's Inn, Dublin. The 54 George was the 13 and 14 Car. 11. c. 33, by 111. c. 156, substituted the British which three copies were ordered to Museum, in place of the King's Li- COPIES TO PUBLIC LIBRARIES. 203 5 and 6 Vict. c. 45, § 6, requires the delivery to the British Museum, of a printed copy of every book published after the passing of the act, together with all maps, prints, or other engravings belonging to it, finished and colored as are the best copies of the work ; also of a printed copy of any second or sub- sequent edition published with additions or altera- tions, whether in the letter-press or in the maps, prints, or other engravings, and whether the first edition was published before or after the passing of the act ; and also of a printed copy of any second or subsequent, of which the first or some preceding edition has not been delivered to the Museum. Each of these copies is required to be bound, sewed or stitched together, and to be upon the best paper on which the work is printed ; and the delivery must be made within one calendar month after the book is first published within the bills of mortality, or within three calendar months after it is first published in any other part of the united kingdom, or within brary. Under these statutes, all tax upon literature should have been books published, whether entered at introduced into this country. If statiiiners' hall or not, were de- confined to a single institution, it will mandable, under a penalty. The never be very seriously felt. But, University of Cambridge c. Bryer, should the instances be multiplied, 16 East, 317. Tliis legislation has the justice and expediency of the recently been followed in the United measure will require grave conside- States, in the law establishing the ration. In ISIB, evidence was Smithsonian Insiitute, (Act of ("on- taken before a committee of the gress, Aug. 184G, c. 178.) which house of commons, upon the propri- directs, without any penalty, a copy ety of this tax. F'or this evi.lence of every book, of wiiicli tiie copy- and other discussions on the subject right shall be secured, to be sent to see Maugham on ('opyright, Ap- the library of that institution. It is pendix, p. 2:29, et seq. to be regretted that this species of 204 LAW OF COPYRIGHT. twelve calendar months after it is first published in any other part of the British dominions.^ The sev- enth section of the act prescribes the days on which the delivery is to be made, and directs the person receiving the book to give a receipt for the same in writing." The eighth section of the same statute requires that a copy of every book, or of any second or sub- sequent edition containing additions or alterations, together with all maps, and prints belonging to it, published after the passing of the act, on the paper of which the largest number of copies is printed for sale, and in like condition with them, shall, on de- mand in writing, left at the publisher's abode within twelve months after publication, under the hand of the officer of the stationers' company, or of any per- son with authority from the Bodleian Library at Ox- ford, the Public Library at Cambridge, the Library of the Faculty of Advocates at Edinburgh, and the Library of Trinity College, Dublin, be delivered within one month after such demand, to the officer of the stationers' company ; which copies the officer is required to receive for the use of the library for which such demand shall have been made, and to give a written receipt therefor.^ But it is optional with the publisher to deliver the copies at the libra- ries, instead of at the stationers' company.^ The penalty for default in delivering copies as required ' Act 5 and 6 Vict. c. 45, ^ 6. ^ Ibid, is 8. » Ibid ^ 7. ■• Ibid. ^ 9. COPIES TO PUBLIC LIBRARIES. 205 by the act, is, besides the value of the book, a sum not exceeding five pounds, to be recovered to the use of the library, by summary conviction before two justices of the peace, or by an action of debt. ^ ' Act 5 and 6 Vict. c. 45, ^ 10. 18 CHAPTER VII. DURATION OF COPYRIGHT. 1. Duration of Copyright in England. 1. Books} The act 8 Anne, c. 29, (passed April 18th, 1710,) gave the author or proprietor of a book, then already printed, the sole and exclusive right of printing it for twenty years. It also gave to the au- thor and his assignee of a book then already com- posed, but not published, or of a work that should thereafter be composed and published, the sole lib- erty to print and reprint it for the term of fourteen years and no longer, to commence from the day of its first publication ; with the further provision, that in case the author should be living at the end of the first term of fourteen years, then the . ole right of disposing of copies of the work should return to him for another term of fourteen years.^ In the 54 Geo. III. c. 156, (passed July 20th, 1814,) all the provisions of the former acts were consolidated ; con- ' For the definition of the statute 41 Geo. III. c. 167, the law of copy- term "book," see post, p. 207, n. 2. right in Ireland was assimilated to ^ See Appendix, p. 2. By the that in Great Britain. TERM OF COPYRIGHT. 207 siderable alteration was at the same time made in the law ; the term of copyright in the author and his assignee was extended to twenty-eight years ab- solutely, and for the life of the author ; and to bene- fit the families of those authors who were alive at the time the act was passed, but who might die be- fore the first fourteen years from the day of publica- tion had expired, a further term of fourteen years was given to the personal representatives of such authors, without prejudice to all or any part of the former term.* The 5 and 6 Vict. c. 45, (passed July 1st, 1842,) revised the whole subject. The 3d section of that act provides, " That the copyright in every book,- which shall, after the passing of this act, be publish- ed in the lifetime of its author, shall endure for the natural life of such author, and for the further term of seven years, commencing at the time of his death, and shall be the property of such author and his assigns ; provided always, that if the 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 a period of forty-two years ; and that the copyright in every book which shall be published after the death of its author, shall ' See Appendix, p. 38. Fortius ' By the 2d section, the word short annlysis of the two acts re- "book," in the construction of this cited in the text. I am indebted to a act, is declared to include "every little work on Copyrin;ht. liy Peter volume, part or division of a vol- Burke, Esq. of the Inner 'remple, ume, pamphlet, sheet of letter-press, Barrister at Law, published at Lon- sheet of music, map, chart, or plan, don in 18-12, 12mo. pp. (5-1. separately published." 208 LAW OF COPYRIGHT. endure for the term of forty-two 3^ears 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."^ According, therefore, to the present law of Eng- land, the copyright of every book published during the author's lifetime is to last certainly for forty-two years from the date of its first publication ; and if the author's life and the seven years after his decease cover a longer period than forty -two years, the copy- right may last longer. The copyright of a book pub- lished after the author's death will endure for forty- two years from the date of the first publication. The fourth section of the statute enacts, " That the copyright which at the time of the passing of this act, shall subsist in any book theretofore pub- lished (except as hereinafter mentioned,) shall be ex- tended and endure for the full term provided by this act in cases of books thereafter published, and shall be the property of the person who at the time of the passing of this act shall be the proprietor of such copyright ; provided always, that in all cases in which such copyright shall belong, in whole or in part, to a publisher, or other person who shall have acquired it for other consideration than that of natu- ral love and affection, such copyright shall not be extended by this act, but shall endure for the term which shall subsist therein at the time of the passing ' See Appendix, p. 66. TERM OF COPYRIGHT. 209 of this act, and no longer ; unless the author of such book, if he shall be living, or the personal represent- ative of such author, if he shall be dead, and the proprietor of such copyright shall, before the ex- piration of such term, consent and agree to accept the benefits of this act in respect to 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 entered in the book of registry hereinafter directed to be kept, in which case such copyrights shall endure for the full term by this act provided, in cases of books to be published after the passing of this act, and shall be the property of such person or persons as in such minute shall be expressed." Copyrights, therefore, which existed before the passing of this act, and which had not expired, are extended through the natural life of the author, and for seven years after his decease, or for forty-two years certain from the date of first publication. This extended term, however, will not belong to the pro- prietor who has obtained the assignment for other consideration than that of natural love and afiection, unless the extension be agreed on between such proprietor and the author, or his personal repre- sentative. In order to provide against the suppression of books of importance to the public, the filth section of the statute makes it lawful for the judicial com- mittee of the privy council, on complaint made to them, that the proprietor of the copyright in any 18* 210 LAAV OF COPYRIGHT. book, after the death of its author, has refused to republish, or to allow the republication of the same, and that by reason of such refusal such book may be withheld from the public, to grant a license to such complainant to publish such book, in such man- ner, 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 license.^ 2. Dramatic and Musical Compositions. By the law of England, a double copyright may exist in a dramatic or musical composition, viz. the sole right of printing, and the sole right of representation or performance. The sole right of printing and publishing plays and musical compositions is vested in the authors for the same period of time as is provided in the case of books.^ By the 3 Wm. IV. c. 15, § 1, the sole right of representation or performance of plays, composed or to be composed and not printed and published by the author or his assignee, was secured to the author and his assignee, indefinitely ; and in the case of plays, printed or published after the passing of the act, (10th June, 1833,) or within ten years before, the sole right of representation or performance was given to the author or his assignee, for a period of twenty- eight years from the time of publication, or of the passing of the act, or, if the author were living at the > Act 5 & 6 Vict. c. 45, ^ 5. ^ Ibid. § 2. DRAMATIC AND MUSICAL COMPOSITIONS. 211 end of that period, for the remainder of the author's life. By the 5 and 6 Vict. c. 45, § 20, the sole liberty of representing or performing, or causing or permit- ting to be represented or performed, any dramatic piece or musical composition, was made to endure and be the property of the author and his assigns, for the term provided in the same act for the duration of copyright in books, viz. for the author's life, and seven years after his death, or for forty-two years. The question may arise, under these statutes, whether the author of an unpublished play or musi- cal composition, has the exclusive right of represent- ation or performance forever. The act 3 Wm. IV. c. 15, gave to the author, or his assignee, of an un- published play, the sole liberty of performing it, without any limitation of time, and when it is consid- ered that by the common law it had previously been settled that representation is not publication, and that consequently, so long as the author keeps his play in manuscript, no one can acquire the right to perform it by printing it surreptitiously from the mouths of the actors, it would seem that this act is merely declaratory of the common law, and intended to confirm a perpetual exclusive right in the case of an unpublished play. But the act 5 and 6 Vict, c. 45, § 20, without noticing the distinction between published and unpublished plays, contained in the former act, recites as follows : " And whereas an act was passed in the third year of the reign of his 212 LAW OF COPYRIGHT. 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 continuance of copyright ;" and it then enacts, that " the sole liberty of representing or performing, or causing or permitting to be represented or perform- ed, 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, viz. during the author's life and for seven years after his decease, if the life and the term of seven years together make forty-two years, and if not, then for forty-two years from the first publication. The construction of the two acts together, will be aided by inquiring what term, in the act 3 Wm. IV. is referred to by the words in the preamble of the last act, " the term of the sole liberty," &c. which is to be extended. No other term is provided in the former act, than that for the performance of published plays. The sole right to perform unpublished plays is confirmed to the author without limitation of time. If, therefore, the preamble refers to the term before provided for pub- lished plays, and confines the general words of the enacting clause to the same reference, the sole right to perform unpublished plays is not reduced from a perpetuity to a term of forty-two years, but remains untouched. Assuming this to be so, the law now stands thus : ENGRAVINGS. 213 1. The author or assignee of a dramatic or musical composition, unprinted and unpublished, has a sole and perpetual right to its performance. 2. The author or assignee of a dramatic or musical composition printed and published within ten years before the passing of the 3 and 4 Wm. IV. c. 15, (10th June, 1833,) or printed and published after the passing of that act, has the sole right of performance for the author's life, and seven years after his death, and if that time expire before fort)^-two years from the time of first performance, then for such forty- two years. ^ 3. Engravings. The 8 Geo. II. c. 13, vested a copyright in historical and other prints for the term of fourteen years, to commence from the day of the first publication. By the 7 Geo. III. c. 38, § 1, the benefits of the former act were extended to the prints of any portrait, conversation, landscape, or architecture, map, chart or plan, or any other prints whatsoever, whether taken from the artist's own original designs, or from any picture, drawing, mo- del, or sculpture, either ancient or modern ; and the term of enjoying the right was in all cases enlarged from fourteen to twenty-eight years. Maps, charts and plans are now, by the 5 and b Vict. c. 45, § 2, regarded as "books," and are con- sequently entitled to the same period of copyright. 4. Sculpture. In the subjects of sculpture, by the * Burke on Copyright, p. 42. 214 LAW OF COPYRIGHT. 64 Geo. III. c. 56, § 1, a term of fourteen years copyright is vested in the person who made or caus- ed to be made the original sculpture, model, copy or cast ; and, by the fifth section, an additional term of fourteen years is also given, if such person be living at the end of the first term, and have not divested himself of the copyright by sale or otherwise.^ 2. Duration of Copyright in the United States. By the act of congress of 3d February, 1831, § 1, books, maps, charts, musical compositions, prints, cuts and engravings, have a term of copyright of twenty-eight years from the time of recording the title thereof.^ If, at the expiration of the first term of twenty- eight years, the author, inventor, designer, engraver, or any of them, where the work had been originally composed and made by more than one person, be still living, and a citizen or citizens of the United States, or resident therein, or being dead, shall have left a widow, or child, or children, either or all then living, the same exclusive right shall be continued to such author, designer, or engraver, or if dead then to such widow and child, or children, for the further term of fourteen years : Provided, that the title of the work so secured shall be a second time recorded, and all the other regulations of the act in relation to ' See Appendix, p. 38. '■' See Appendix, p. 93. RENEWED TERM, IN THE UNITED STATES. 215 original copyrights be complied with in respect to such renewed copyright, and that within six months before the expiration of the first term.^ The act further requires that a copy of the record of renewal be published in one or more newspapers printed in the United States, within two months from the date of such renewal, for the space of four weeks.- ' See Appendix, p. 93. * ^ 3^ CHAPTER VIII. TRANSMISSION OF COPYRIGHT, AND OTHER INCIDENTS OF LITERARY PROPERTY. The law of England and that of America recognize, as we have seen, the exclusive right of an author over his own productions existing in manuscript.^ This right is independent of the property in the paper itself, and consists in the exclusive authority to print and publish the literary contents. No question has ever been successfully made of the existence of this species of property, whatever disputes have arisen, from time to time, as to the effect upon it of publi- cation and sale. Literary property, in unpublished writings, has always been a well-settled right at common law.^ The nature of this property has been defined as " an incorporeal right in the nature of a faculty, and having reference to a future time for reaping the pro- fits."^ Lord Mansfield described it as " a nincor- • Ante, Chap. II. Richardson, Amb. 694. Southey v. 2 Millar v. Taylor, 4 Burr. 2398. Sherwood, 2 Meriv. 434. Whea- Donaldson v. Becket, Ibid. 2408. ton t;. Peters, 8 Peters S. C. R. 591, Duke of Queensbury v. Shebbcare, 661. 2 Story's Eq. Jurisp. ^ 943. 2 Eden's Ch. R. 329. Macklin v. ' 1 Bell's Com. 68. INHERITANCE OF COPYRIGHT. 217 poreal 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 equal- ly detached from the manuscript, or any other phys- ical existence whatsoever."^ This species of property has long been, and is at the present day treated as an inheritable right. The copy in Lord Clarendon's History,^ the manuscripts of a Conveyancer,^ the Letters of Lord Chester- field,"* and the Writings of AVashington,^ were sever- ally held to have passed to personal representatives, » 4 Burr. 2396. His Lordship there said, " It has all alonjr been expressly admitted, ' that, by tlie coiHinon law, an author is entitled to the copy of his own work until it has been once printed and publish- ed 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 incoporeal right to print a set of intellectual ideas or modes of thinking, commu- nicated in a set of words and sen- tences and modes of expression. It is equally detached from the manu- script, or any other physical exist- ence whatsoever. " Tiie property thus abridged is equally incapable of being violated by a crime indictable. In like man- ner, it can only be violated by an- other's printing without the autbor's consent; which is a civil injury. " The only remedy is the same ; by an action upon the case, for dam- ages, or a bill in equity for a speci- fic relief. 19 " No action of detinue, trover, or trespass qnare vi et armis, can lie ; because the copy thus abridged is equally a properly in notion, and has no corporeal tantjible substance. " No disposition, no transfer of paper upon which the composition is written, marked, or impressed, (tiiough it gives the power to print and publisli,) can be construed a conveyance of the copy, without the author'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 forever ; though neither the author nor his repre- sentatives should have any manu- script whatsoever of the work, ori- ginal, duplicate, or transcript." * Duke of Qucensbury v. Sheb- beare, 2 Kden's C. R. 3-"J. * Webb V. Rose, cited 4 Burr. 2330. * Thompson v. Stanhope, Amb. 737. ' Folsom V. ]Marsh, 2 Story's K. 100. 218 LAW OF COPYRIGHT. with the sole right of publication. Indeed, there seems to be no reason why the remark of Lord Mans- field is not strictly true, that the property in manu- script, being the incorporeal right to print a set of intellectual ideas, communicated in words and sen- tences, may go down from generation to generation, and possibly continue forever; though neither the author nor his representatives should have any man- uscript copy whatever of the work, original, dupli- cate or transcript.^ It is also a right that adheres solely to the person entitled to exercise it, so long as he does not see fit to alienate it ; and it cannot be seized by creditors, and does not pass to assignees under a bankruptcy.^ Being detached from the manuscript, or any other physical existence, and being a mere incorporeal right to print, or to withhold from printing — a fa- culty, or right to exercise a choice — it would seem to be beyond the reach of execution, or the opera- ' See Millar v. Taylor, 4 Burr, against such a rule of law, because 2397. The .5 and 6 Vict. c. 45, until the act of publication is ac- ^ -25, makes all copyriglit personal complishcd, an author has an un- property, transmissible by bequest, doubted right to have full control or, incase of intestacy, subject to over it," [his manuscript.] God- tlie same law of distribution as other son on Patents and Copyright, 2d personal property, and in Scotland edition, p. 430. I'his seems to be it is to be deemed to be personal merely stating the same proposition and movable estate. in a different form. But Lord Mans- ' 1 Bell's Com G8. See also 4 field's exposition of the real basis Burr. 2.'i!)0, 2397. Mr. Godson of exclusive property before publica- says, " it is doubtful whether an un- tion, shows that Mr. Godson touches published manuscript can be taken the true grounds of the opinion, that in execution by creditors;" and such property does not pass under cites 4 Burr. 2311, where the ques- a commission of bankruptcy. See tion is suggested by Lord Mansfield ante, p. 85, for the view taken by arguendo. Mr. Godson adds : "but Mr. Bell, upon this point, the better opinion seems to incline PAROL LICENSE TO PUBLISH. 219 tioii of the bankrii[)t laws. The manuscript itself may possibly be taken in execution ; but the trans- fer of the manuscript does not alone carry with it a conveyance of the copy, that is, the authority to print and publish.^ W the mere paper can be seized under execution, it must be taken subject to the sole right of the author over the intellectual ideas that are written upon it. The author or pi'oprietor of a manuscript may, by parol, at common law, license another to print and publish it ; and such an authority may possibly be inferred from the acts of the parties." But there must be a consent proved, and such consent cannot be Inferred from possession of the manuscript alone, even if there be but a single copy of it in existence.'' There are so many other purposes, which may ac- count for the possession of a manuscript, without involving an authority to publish it, that mere pos- session would have a very slight tendency to prove that authority. The right to print and publish be- ing a right detached from the manuscript, does not necessarily go along with it, and therefore its trans- fer must be proved by farther independent evidence. Whether the sole right to print forever the contents of an unpublished manuscript can, at common law, be conveyed by parol, so that the copyright will ' 4 Burr. 239G. beare, 2 I'^dcivs Ch. R. 329. Pope ' Southey c. Sherwood, 2 Meriv. v. Curll, 2 Atk. 342. 2 Story's E-i- 434. llunilell v. Murray, Jacobs R. Jurisp. «^S 342. 4 Burr. 23'J6. Auto, 311. p. 217, note 1. ^ Duke of Queensbury v. Sheb- 220 LAW OF COPYRIGHT. vest in the person who may be thus authorized to publish, is a point admitting of great doubt. But it seems that under the statutes, in England, an assign- ment in writing has been held necessary to pass the copyright in an unpublished work. The 8 Anne, c. 19, § 1, declared that "the author and his as- signee or assigns shall have the sole liberty of print- ing," and that " if any other bookseller, printer, or other person, &lc. shall print, reprint, &c. without the consent of the proprietor first had and obtained in writing, signed in the presence of two or more credible witnesses, he shall forfeit,"' &c. Upon this statute, Lord Macclesfield, C. is said to have held, that the author might grant the right of the copy to a subse- quent publisher, after it had been once published by the person to whom he had originally delivered the manuscript, the bare delivery amounting only to a license to print the first edition.^ In a more modern case, Lord Ellenborough said, that "the statute having required that the consent of the proprietor, in order to authorize the printing or reprinting of a book by any other person, shall be in writing, the conclusion from it seemed irresistible that the assignment must also be in writing ; for if the license, which is the lesser thing, must be in writing, a fortiori the assign- ment, which is the greater thing, must also be." The plaintiff, who claimed as an assignee, was there- fore nonsuited." This decision, whether correct or ' Viner's Abr. 278. 7. It must be owned that this rea- 2 Power V. Walker, 3 M. & S. soning is not satisfactory. Thestat- PAROL LICENSE TO PUBLISH. 221 not, has been since followed, and the settled con- struction of this and the subsequent act 54 Geo. III. c. 156, is, that a parol assignment is not suflicient to give to the assignee the privileges conferred by the legislature upon the author.^ The act 5 and 6 Vict. c. 45, § 15, declares, that " if ani/ person shall, in any part of the British domin- ions, print or cause to be printed, either for sale or exportation, any book in which there shall be sub- sisting copyright, ivithout the consent in writing of the proprietors, &c. he shall be liable," &.c. This evinces a clearer intention, that all transfers of copyright shall be in writing, than appeared from the former acts ; and the provisions of the 13th section, which provide a mode of transfer by a memorandum to be made in the books of the stationers' company, to be of the same force and effect as if made by deed, show the understanding of parliament as to the previously existing law. The question recurs, then, what does the party acquire, as against the author and the public, at ute does not require that the license Bland, 2 Starkie's N. P. C. 382, it to any other person than the aullior was held, that a jmblicatiou for six shall be in writing, but it declares years, by a person (not the eom- thai no other person than tlie author poser) of music, was not sulFicient and Ins assignee shall print without in itself to prove that the copyrijTht a license in writing. Tiic question had been transferred; and liiai the turns upon tiie -force of the word receipt of tlic proprietor for the price assignee, and the general intention of the copyright would not bar tlie oftheact. Seealso S. C. 4Campb. action. Kut where a copyright in 8. music was not asserted against vio- • Clcmenti v. Walker, 2 B. &C. lation for fifteen years, tlie court of 861. Power i\ Walker, .S Maule & chancery refused an injunction until Selw. i>. 13arnctt v. Glassop, 1 the riglit should be established at Bing. N. C. 1)33. In Latour v. law. Piatt v. Button, 19 Ves. U?. 19* 222 LAW OF COPYRIGHT., common law, who receives a manuscript from the author, under a parol license to publish it, no assign- ment in writing being made of the copyright ? In the first place, it seems to be admitted that an au- thor may dedicate his work to the public, and that such a dedication may be inferred from long silence, from the absence of any conveyance of the property, from long acquiescence in its publication by various persons, and other circumstances.^ In the second place, an author may, by unequivocal acts of a like nature, dedicate his work to an individual. Thus, where the plaintiff gave her manuscript to a pub- lisher, with a parol license to publish it at his own risk and expense, and disclaimed any intention to re- ceive any emolument from it, and the defendant pub- lished it for fourteen years (the first term under the statute then in force) and continued to publish and sell it afterwards, and the plaintiff then tipplied for an injunction to restrain its farther publication by the defendant ; Lord Eldon refused the injunction, upon the ground that the defendant had been licensed to publish without any limitation of time." In this case, the question was left undecided, whether the right to publish did not remain in the plaintiff concurrently with the defendant, or whether the defendant had acquired any right as against the public. The defendant declined an offer made by > 4 Burr. 2245, 2346. Piatt v. v. Murray, Jacobs R. 311, 316. Button, 19 Ves. 447. Folstim v. " Rundell v. Murray, Jacobs R. Marsh, 2 Story's R. 109. Rundell 311. PAROL LICENSE TO PUBLLSII. 223 the court to try his title to the copyright, and his counsel expressly disclaimed any such title, admit- ting that there was no legal assignment of it.' The case therefore proceeds upon the effect of a parol license to publish, and admits that such a license conveys no copyright to the exclusion of the author. Under such circumstances, the rights acquired by a publisher under a parol license depend upon the fact of there being or not being a limitation in point of time, in the license itself. If there is no limita- tion as to time, the inference is admissible that the author gave a concurrent authority to publish indefi- nitely. But the inference does not go beyond a concurrent authority. There can be no presumption that the 'author intended to convey the copyright, for the law requires that to be in writing ; and there have been cases where such a presumption has been rejected." These cases show that the author retains the copyright, where there has been no assignment in writing, and may defend it by action or injunction against his licensee, where the license was not indefinite in point of time.^ But it seems that a con- veyance of the copyright may be proved by the de- fendant's admissions that he has conveyed it, although he does not refer to the mode of the conveyance. "^ ' Rundell v. Murray, Jacobs R. ^ Ibid. 312, 31G. ■• Power v. Walker, 4 Campb. 9, * Slorace v. Loii^inaii, '2 Campb. note. 27, n. Latour v. Bbmd, 2 Starkic's N. P. C. 382. Power v. Walker, 4 Campb. 8. 224 LAW OF COPYRIGHT. As a mere licensee, therefore, a publisher under a parol license can maintain no action at law against a third person, because he has no legal title. ^ But according to the modern doctrine, he may, if he have a clear equitable title, maintain a bill for an injunc- tion against any other person than the author, or his assignee.^ And where the party claims as assignee of an assignee, he will not, in equity, be put to pro- ' Power V. Walker, 4 Campb. 9, n. There is a dictum of Lord El- lenborouffh, to the effect that the first i)ublisher of a book, however he procured the copy, has such a property that he may bring an ac- tion at law against any person pirat- ing it. Gary v. Kearslev, 4 Esp. N. P. C. 168, 169. Mr. Godson cites this case as authority for the same position. Godson on Patents and Copyright, 2d ed. p. 427. The book in question was Gary's Road Book. The defendant's counsel ex- amined a witness, an officer of the post-office, to prove that the survey stated to have been made by the plaintiff was at the expense of the post-office, in order to show that the copyright belonged to the post-office and not to the plaintiff, l^ord El- lenborough said, " I do not know that that will protect the defendant ; at law, the first publisher, even though he has abused his trust, by frocuring the copy, has a right to it, and to an action against a person ■who publishes it without authority from him. It may be a ground in equity, as between the person enti- tled and the person who first pub- lished it ; but it does not destroy the right of the latter to sue a person pirating that right." I do not un- derstand this to be law, as broadly stated. All copyright depends on title derived from the author; and unless there has been a transmission of title from liim, the publisher can maintain no action for piracy, though, under some circumstances, he may obtain an injunction. " Mawman v. Tegg, 2Iluss. 385. Sweet V. Shaw, 3 Jurist, 217. 2 Story's Eq. Jurisp. (^ 935. The im|)olicy of suffering literary works to be published under parol agree- ments, and the fatality of the sup- position, that a copyright can be con- veyed without writing, were strong- ly illustrated in the case of some of Mr. Moore's Irish I\Ielodies. Mr. Moore sold his work to W. Power, of Dublin, who agreed verbally with J. Power, of 'London, his brother, that he (J. Power) should have the sole ptiblication and sale of it in England ; J. Power brought an ac- tion on the 8 Anne, c. 19, against one Walker for pirating the words of two of the songs, and was non- suited for want of a legal title, be- ing a mere licensee. Mr. Moore, the author, then brought an action in his own name against the same defendant, for the same piracy, and was nonsuited, because he had been heard by some of the witnesses to say, that lie had parted with all his interest in the copyright to W. Pow- er. See 4 Gampb. 8, 9, n. But see Nicol V. Stocdale, 3 Svvanst. 687. EQUITABLE TITLE. 225 duce the original assignment to his assignor, but the proof of want of title will be thrown on the defend- ants.' An equitable title, which will support a bill for an injunction, occurs, where the legal right has not been vested, but from the dealings between the ac- tual owner and the party bringing the bill, such par- ty has acquired a limited etjuitable right in the copy- right, to the extent of being entitled to be one of the publishers, or the sole publisher of the work, for a given or an indefinite time. But it is necessary that the party should have a real interest in the work, and not be a mere agent to sell it. Thus, where a publisher was employed by the board of admiralty, under direction of the crown, to publish a work, consisting of a narrative of a voyage undertaken by persons employed for that purpose by the crown, but the profits were to be at the disposal of the lords of the admiralty, it was held, that the publisher had not such an interest in the work as would enable him to sustain an injunction against another person for republishing it.~ But where it was agreed, in writing, between an author and a publisher, (after reciting that the author had prepared a tenth edition of his work, and the publisher was desirous o( pur- chasing the same,) that a certain printer should print a given number of copies, and the publisher should pay to the author for the said tenth edition a certain ' I\Iorris r. Kcllcy, 1 Jac. &W. * Nicol v. Stockdale, 3 Swausl. 481. 687. 226 LAW OF COPYRIGHT. sum, and that the work should be sold to the public for a given price, it was held that the publisher was not a mere licensee to sell a given number of copies, but that being bound by the agreement to sell, and the author being bound to abstain from doing any- thing which would interfere with the sale, the pub- lisher had a limited equitable interest in the copy- right, to the extent of being entitled to be the sole publisher, until the number of copies fixed by the terms of the agreement should be exhausted.^ It is not settled in England, whether a convey- ance of copyright must be by deed, as well as in writing. The cases which have held that a transfer in writing is necessary, did not decide whether a writing, not being a deed, would be sufficient.^ In a more recent case. Lord Ch. J. Tindal expressed an opinion that nothing short of a deed would an- swer ; but the pleadings did not admit of the ques- tion being raised.^ The act 5 and 6 Vict. c. 45, s. 13, which makes an assignment by entry in the register as valid as if it had been made by deed, has been supposed to show the understanding of parlia- ment, that the usual and necessary mode of transfer of copyright is by deed.^ The preceding observations may aid us in deter- mining the effect of the contracts which ordinarily ' Sweet V. Cater et al. 5 Jur. 08, " Power v. Walker, 4 Campb. 8. cited Drewry on Injunctions, p. 211. Clementi v. Walker, 2 H. & C. 861. See also Mawman v. Tegg, 2 Russ. ^ De Pinna v. Polhill, 8 Car. & 392. Sweet v. Shaw, 17 Law J. P. p. 78. 216. ■* See Appendix, p. 70. ESSAYS OR ARTICLES IN REVIEWS. 227 take place between the writers of articles for mai^a- zines, and other periodical works, and the proprie- tors of such works. Does the mere transmission of a manuscript essay or article to the conductor of a magazine, for publication, coupled with the receipt of such compensation as may be paid for it, carry with it the whole title of the copyright, so as to ex- clude the author from reprinting it in any other form thereafter ? There is, doubtless, an implied con- tract on the part of the writer, not to reprint his essay at such a time, or in such a manner, as to de- prive the party who has purchased the liberty of printing it, of the benefit of being the sole pub- lisher thereof, for a reasonable length of time, which must depend on the circumstances of the case. Hence, the writer could not, without a breach of his implied contract, print his essay in another period- ical, published simultaneously with the work for which he had originally written it. But where the law requires a written assignment of copyright, and no such assignment has been made, and there is no stipulation on the part of the writer never to re-print his essay, it would seem that the right to republish it, after a reasonable time, must remain with him at common law. But whether the projector and pi-o- prietor of a work, in which different persons have written parts, at his request, and have been paid for the same as contributors, without having made a legal assignment of their copyrights, is to be deemed the author and proprietor of the work, so as to en- 228 LAW OF COPYRIGHT. title him to protection as against the public, is a different question. This point came before Sir John Leach, V. C, and he was of opinion that such a pro- jector and proprietor was to be deemed the author and proprietor within the intendment of. the statute of Anne, for the purposes of protection in a court of equity.^ Perhaps the provisions of the recent English stat- ute on this subject may be regarded as, in part, de- claratory of the previously existing la^v. Those pro- visions are made retrospective ; manifesting thereby an intention to apply, by statute, to previously ex- isting rights, principles understood to be already in existence, upon which the contracts might be pre- sumed to have been made. The statute declares, in substance, that where essays, articles, &c. have been or shall be written for publication in, or as part of any encyclopedia, review, magazine, periodical work, or work published in a series of books in parts, or any book w^hatsoever, on the terms that the copy- right therein shall belong to the proprietor, pro- * Barfield v. Nicholson, 2 Law it, is the author and proprietor of the Jonrn. 00, 102. In this case, the work, if not within the literal ex- vice cliaiicellor said, "lamofopin- pression, at least, within the equi- ion, that, under that statute [8 Anne, tahle meaning of the statute of c. 19] the person who forms the plan, Anne, which, being a remedial law, and who embarks in the specula- is to be construed liberally." S. C. tion of a work, and who employs 2 Sim. & Stvi. 1. As to the pro- various persons to compose different perty in a review, and the right to parts of it, adapted to their own pe- prevent the publication of works culiar acquirements — that he, the handed out to the public under false person who so forms the plan and colors, as continuations of a former scheme of the work, and pays differ- established work, sec Hogg v. Kir- ent artists of his own selection, who, by, 8 Ves. 215. upon certain conditions, contribute to CONTRA.CTS BETWEEN AUTHORS AND PUBLISIIEKS. 229 jector, publisher or conductor of the work, and paid for by such proprietor, &L2. the copyright thereof shall be the property of such proprietor, &,c. who shall enjoy the same rights as if he were the actual author thereof, and shall have such term of copy- right therein as is given by the act to the authors of books ; except that in the case of essays, articles, &c. forming part of, or first published in reviews, 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 pub- lishing the same in a separate form shall revert to the author for the remainder of the term given by the act, provided, that during the twenty-eight years, the proprietor of the review, magazine, &c. shall not publish any such essay, article, &c. separately or singly, without the consent of the author or his as- signs previously obtained ; and provided also, that these enactments shall not affect the rights of any such author, who, by any contract, express or im- plied, may have reserved, or shall reserve to him- self the right of separate publication ; but that every author, so reserving the right of separate publica- tion, shall have the copyright in his composition, when published, in a separate form, according to the act, without prejudice to the right of the proprietor of the review, magazine, &c.^ There have been several decisions in England, • Act 5 & Vict. c. 45, ^ 18. Sec Appendix, p. 73. 20 230 LAW OF COPYRIGHT. upon contracts between authors and publishers, which may illustrate the subject at present under consideration. Where an author agreed, in writing, to supply a bookseller with the manuscript of a work to be printed by the latter, the profits to be equally divided between them. Lord Ellenborough held that an action could be maintained for damages for refus- ing to supply the manuscript.' But where an au- thor was engaged for a certain sum, to write an arti- cle, to appear among others in a work called " The Juvenile Library," and before he had completed his article, and before any portion of it was published, the work in which it was to appear was discontinued, Lord C. J. Tindall held, that the publishers were not entitled to claim the completion of the article, in order that it might be published in a separate form for general readers, but were bound to pay the au- thor a reasonable sum for the part which he had pre- pared.^ The contract in this case does not appear to have been in writing. AVhere an author sells the copyright of a work published under his own name, and covenants with the purchaser not to publish any other work to pre- judice the sale of it ; it seems, that another pub- ' Gale V. Lcckie, 2 Stark. N. P. other theatre, is lawful, as a similar C. 107. But if the author be justly restraint of a performer would be ; apprehensive that the work, when not resembling a covenant restrain- published, will subject him to pun- ing trade generally. Morris v. Col- ishment, it seems that he may re- man, 18 Ves. 437. fuse to deliver the manuscripts. Ih. * Planch6 v. Colburn, 5 C. & P. A contract with the proprietors of a 58. theatre, not to write pieces for any ASSIGNMENT OF PLAYS, MUSIC, ETC, 231 lisher, wlio has no notice of this covenant, may be restrained from publishing a work subsequently pur- chased by him from the same author, and published under his name, on the same subject, but under a different title, and though there be no piracy of the first book.^ But in an action by several plaintiffs, for piracy of copyright, it appeared that the defendant, the au- thor, had published the work in question pursuant to the conditions of a cognovit given by him to one of the plaintiffs and another person, in an action for not performing an agreement to write the work in ques- tion ; and it was held that this was a sufficient de- fence. - Although the interest in a manuscript does not pass to assignees under a commission of bankruptcy, yet the copyright of a printed book does so pass ; and it seems that it is not necessary that there should be any instrument in writing between the bankrupt and his assignees.^ The provisions of the act 5 and 6 Vict. c. 45, with regard to the assignment of copyright, apply to dra- matic and musical compositions, as well as books. The assignment of the copyright of a play was for- merly held to have carried with it the sole right of representation also, which was secured to the author ' Barfield V. Nicholson, 2 Sim. & ^ Mawman v. Tegg, 2 Russ. R. Stu. 1. 2 Law Journal, 90. 385,392. Keener. Harris, cited * Sweet et al. v. Archbold, 10 17 Ves. .S38. Longman r. Trijip, Bing. H. 133. 2 New R. G7. 232 LAW OF COPYRIGHT. by the 3 Wm. IV. c. 15.^ But in order to obviate the effect of this decision, it is now provided, that no assignment of the copyright of any book consisting of or containing a dramatic piece or musical composi- tion, 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 registry book shall be made of such assignment ; wherein shall be expressed the intention of the par- ties, that such right should pass by the assignment.^ As to prints and engravings, it being enacted by the 8 Geo. II. c. 13, § 1, that before a print can be copied with impunity, the consent of the proprietor must be given in writing, signed in the presence of two witnesses, it is manifestly necessary to a valid assignment, in England, that it should be in writing. The fourth section of the 54 Geo. III. c. 56, pro- vides, that " no person who may purchase the right or property of a new and original sculpture or other matter above mentioned of its proprietor, by deed in writing, signed by such proprietor in the presence of and attested by two witnesses, shall be subject to any action for copying, casting, or vending the same." The assignment of copyright in sculpture must therefore be by deed signed in the presence of two witnesses, and attested by them. In the United States, the act 30th June, 1834, § 1, provides, that all deeds or instruments in writing, ' Cumberland v. Planche, 1 Ad. * Act 5 & 6 Vict. c. 45, § 22. & Ellis, 580. GENERAL ASSIGNMENT. 233 for the transfer or assignment of copyrights, being proved or acknowledged in such manner as deeds for the conveyance of land are required by law to be proved or acknowledged in the same state or dis- trict, shall and may be recorded in the office where the original copyright is deposited and recorded ; and every such deed or instrument that shall in any time hereafter be made and executed, and which shall not be proved or acknowledged and recorded as aforesaid, within sixty days after its execution, shall be judged fraudulent and void against any subsequent purchaser or mortgagee for valuable consideration without notice.^ This statute seems to recognize the doctrine, that transfers or copyright must be in writing, but it does not expressly declare that they shall be so. It ap- plies to all kinds of literary property which can, in this country, be the subjects of copyright. As to what passes by a general assignment of co- pyright, it is to be observed, that, after the publica- tion of a book, the exclusive right to print and reprint it, or the estate of copyright, as it may be called, becomes a right for such term only as is pro- vided by statute. In the United States, as was for- merly the case in England, the statutes secure a resulting or contingent term to the author, in case he shall be living at the time of the expiration of the first term ; and if the author be not living at the ' Act of Congress, 30th June, 1834, ^ 1. See Appendix, p. 100. 20* 234 LAW OF COPYRIGHT. expiration of the first term, the second term goes to his widow, child, or children, if living.^ By a gene- ral assignment of copyright, it is clear that the whole of the author's interest for the first term, passes to his assignee ; but whether the resulting or second term passes, so as to exclude the author and his re- presentatives, and to enable the assignee to secure such term by complying with the directions of the statute concerning the renewal of the copyright, is a question of some difficulty. In England, upon the statute 8 Anne, c. 19, which gave a second term of fourteen years to the author, if living, at the end of the first term, it was held that a general assignment of all the author's "interest" in a copyright con- veyed the contingent as well as the present interest.^ In the United States, in a case where a publisher agreed with an author, that the latter should prepare a certain book for the press, and the publisher en- gaged to pay the author a certain sum " for the copyright of the said book," it was held, that the resulting term, under the statute, did not pass to the publisher, and that the word " copyright" embraced only the term then capable of being secured, which at the time of the contract constituted the copyright of the book.^ ' Act Feb. 3d, 1831, ^ 1, 2. of his surviving the fourteen years, * Carnan v. Bowles, 2 I3ro. C. R. unless the assignment is so express- 80, and Rennet v. Thompson, there ed as to purport to pass it." cited. Godson, p. 429, 2d edit. In ^ Per Woodl)ury, J. in Pierpont Rundell v. Murray, Jacobs R. 315, v. Fowle, Circuit of tlic U. States, Lord Eldon said, "I conceive that at Boston, May Term, 1847. Seel an author will not be taken to have Woodbury's R. assigned his contingent right in case GENERAL ASSIGNMENT. 235 In like manner, the question may arise, whether a general assignment of copyright, by the author, will deprive his representatives of the additional term of fourteen years, given by the act of congress of 3d February, 1831, § 2; or whether the author himself has any power over this additional term, so far as the interests of his representatives are con- cerned. The statute provides that the author, if living at the expiration of the first term of twenty- eight years, shall have a further term of fourteen years, on making a new entry for that purpose. This contingent interest the author may undoubtedly assign. But if the author is not living at the end of the first term, the additional term vests in his widow and child, or children, living at the time. It is not easy to see how the author can dispose of this inter- est. It is not created for him, but for his family ; it vests only in case of his death, and the policy of the statute, it seems to me, has removed it from his con- trol.^ ' See Appendix, p. 93. CHAPTER IX. INFRINGEMENT OF COPYRIGHT. Having considered the nature and duration of that species of property which is protected under the denomination of copyright, we have now to treat of its violation, in the various forms of which the law has taken cognizance, and for which it has provided a remedy. It is obvious, that this species of pro- perty must be exposed to a great variety of injuries, some of which, from their subtle and ingenious char- acter, may elude the meshes of the law. But the principles on which this kind of property depends, and the doctrines which are already well established in English and American jurisprudence, will be found hereafter, when fully carried out, to extend an adequate and just protection to literature, even if such protection is not now administered with all the success that could be desired. In endeavoring to trace the just scope of these principles and doctrines, we must bear in mind that while the primary object of the law of copyright is protection to the product of all literary labor, the interests of knowledge de- INFRINGEMENT OF COPYRIGHT. 237 mand a reasonable freedom in the use of all antece- dent literature. To administer the law in such a manner as not to curtail the fair use of existing ma- terials, in any department of letters, is one of the great tasks of jurisprudence. It proposes to itself, first, the vindication of rights acquired by genius, discovery, invention, and labor, in the productions of the mind ; secondly, the acknowledgment upon motives of public policy, of the right to a ftur use by any writer of all that has been recorded by previous authors. The discovery and application of the rules which are to determine what such a fair use is, in a given case, is one of the most difficult of legal pro- blems. Questions of this nature have justly been said to belong to the metaphysics of the law. But the law would ill deserve the name o'" a science, if its professors were unable to discharge the duties which the interests o" society impose upon them, however subtle the distinctions may be with which they have to deal. It is the boast of the law, through which it claims rank among the sciences, that it is able to regulate the rights of men by principles ; and this ought to be no less true of it, when it deals with subjects of a metaphysical character, than when it adjudicates controversies of the most sim- ple nature. The examination hcr^'ofore made in'o the nature of this property, has shown, that while the public enjoys the right of reading the intellectual contents of a book, to the author belongs the exclusive right 238 LAW OF COPYRIGHT. to take all the profits of publication which the book can, in any form, produce. His exclusive right in- cludes the whole book and every part of it. Hence it follows, that this right may be invaded in several ways ; 1. By reprinting the whole work, verbatim; 2. By reprinting, verbatim, a part of it, either with or without acknowledgment of the source from which the extract or passage is taken ; 3. By imitating the whole or a part, or by reproducing the whole or a part with colorable alterations and disguises, intend- ed to give to it the character of a new work ; 4. By reproducing the whole or a part under an abridged form. With regard to each of these forms of infringement, it is to be observed, that the question of intention does not enter directly into the determination of the question of piracy. The exclusive privilege, which the law secures to authors, may be equally violated, whether the work complained of was written with or without the an'mus furundi — the intention to take what belongs to another, and thereby to do an in- jury. A party may mistake his own rights, or the rights of the author whose book he makes use of in the compilation of his own. The fact of his having made such a mistake, or thj degree of good faith with which h? has acted, cannot settle a question which depends upon other elements.' To decide the question of piracy upon the motives > Emerson v. Davies, 3 Story's R. 768. Folsom v. Marsh, 2 Story's R. 100. INFRINGEMENT OF COrYRIGIIT. 239 of the party charged with the infringement, would reduce the exclusive right secured to authors by the law to a much lower scale of value and efficiency than the law intends to give to it. The most direct and palpable piracies would escape correction, where the party charged could make it appear that he had acted innocently. The privilege of authors would be rendered of no value whatever, where the exist- ence of the right admitted of a reasonable doubt be- fore adjudication ; since the defendant would only have to show that such a doubt existed, and then to claim the benefit of that doubt in establishing his innocent intention. It is necessary, therefore, in every inquiry whether a piracy has been committed, to look at the complex character of the question. It involves, first, an in- quiry into the existence of the exclusive right claim- ed by the author whose book is supposed to have been infringed ; and, secondly, the determination of the question whether this right has been infringed by what has been done by the party charged with an infrinojement. The elements by which the first of these questions is to be determined, have been already pointed out. The second question forms the appropriate subject of discussion in the present chapter. Before consid- ering particular forms and cases of pirijcy, the gene- ral doctrines, on which the , olution of this quc^tion depends, may be here cursorily examined. The statutes which secure the exclusive rights of 240 LAW OF COPYRIGHT. authors, do not define, in any terms, what shall constitute an infringement of copyright. It is left to the tribunals to decide, in each case, upon the cir- cumstances of the case, whether a violation of the right has been committed. On the one hand, the courts must regard the existence of the exclusive right, when established or admitted ; and on the other, the principle of public policy, which admits of some use of all antecedent literature. This last consideration, however, will not sanction direct and palpable injuries to the author, in whom the law has vested the sole right to take the profits of his own book and of every part of it. It becomes, therefore, a most material inquiry, in all cases, to ascertain whether the author has sustained or is likely to sus- tain any injury by the publication of which he com- plains ; and perhaps it will be found that this is the test by which the question of infringement ought to be determined, in nearly all doubtful and difficult cases. I am not aware of any recorded decision, or of any principle of law, which would deny redress to an au- thor who should prove a direct injury, upon the ground that the writer who had caused it had made a justifiable use of his work. It is easy to imagine cases, where the use which a subsequent writer makes of a previous publication is apparently within the limits of the general right of selection, or cita- tion, or tacit adoption ; but if an injury can be prov- ed to be the effect, I know of no rule of law, by PIRACY BY TAKING THE WHOLE WORK. 241 which, consistently with the strict right of the pre- vious author, such use can be pronounced to be ad- missible. The (juestion, whether very trifling inju- ries will be redressed by one class of the public tribunals, is entirely aside from the strict right to redress from some tribunal, which depends upon no considerations of judicial convenience, or limits of jurisdiction. Notwithstanding some dicta in a few cases, and the general principle, (which cannot be established at a fixed line,) by which what is called the fair use of a previous publication is ob- scurely hinted at, I apprehend that the doctrine of our law is and must be, that where an injury is caused, an infringement is, in point of strict right, made out. 1. Piracy, by reprinting the whole work verbatim. In cases of this kind, there can ordinarily be no question to be determined, except the existence of the copyright. The object with which the original work is thus taken, and the form in which it is used, are immaterial. It is equally a violation, whether the whole of a smaller work is inserted in a larsier one, or whether it is reprinted by itself, with notes or additions, if the reprint works an injury to the proprietor.' ' There are some very doubtful Erskine put this case: "Suppose diitn of Lord Ellonborouffh, on this a man tnok Palcy's rhilosophy, and subject. In ilie case of Cary v. copied a wliole essay, vviih obscrva- Kearsly, 4 Esp. N. P. C. 1G8, 170. tionsand notes, or additions at the ai 242 LAW OF COPYRIGHT. 2. Piracy by reprinting any part of a work, verbatim. This class of cases involves the inquiry — What use can lawfully be made of a previous publication, protected by copyright, in the way of quotation ? end of it, would that be piracy?" His lordship is reported to have an- swered, "That would depend on the facts of whether the publication of that essay was to convey to the public the notes and observations fairly, or only to color the publica- tion of the original essay, and make that a pretext for pirating it ; if the latter, it could not be sustained. That part of the work of one author is found in another, is not of itself piracy, or sufficient to support an action ; a man may fairly adopt the work of another ; he may so make use of another's labors for the pro- motion 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 1 " — The motives of public benefit and advancement of the interests of science arc danger- ous grounds on which to allow the taking of another's property ; al- though these great objects are to be so far kept in view, as to justify a fair use of previous publications, that is, a use which does no injury. But whether any use, which works a direct injury, can be justified, is the crux argumenti. We may suppose a perfectly honest and praiseworthy intention to refute a book, believed to be erroneous, by means of com- mentary ; and for this purpose the whole text of the work is republish- ed. What tendency has the inten- tion of the commentator to prove that the original author's copyright has not been infringed? That ques- tion has but two elements : first, whether the work is under the pro- tection of copyright ; second, whe- ther anything has been done to render the exclusive privilege less valuable to the proprietor. If both these questions arc answered affirm- atively, the object or purpose with which the injury was done cannot palliate the responsibility. There is a similar dictum of Lord Erskine's, in Matthewson v. Stock- dale, 12 Ves. 275, where he said, " I admit no man can monopolize such subjects as the English Chan- nel, the Island of St. Domingo, [charts] or the events of the world ; and every man may take what is useful from the original work ; im- prove, add, and give to the public the whole, comprising the original work, with the additions and improve- ments ; and in such a case there is no invasion of any right." This is extravagant ; but it has been equal- led by a dictum of Sir L. Shadwell, V. C. in a recent case, where, how- ever, the point was not involved. " Any person may copy and publish the whole of a literary composition, provided he ivrites notes upon it, so as to present it to the public, connect- ed with matter of his own.''' Martin V. Wright, 6 Simons, 298. Mr. Justice Story has laid down the doc- trine, that if the work of the defend- ant substantially includes the essen- tial parts of the plaintiff's, so as to supersede it. it is a violation of the plaintiff's copyright, although the plan and objects of the defendant's book may be different from those of INFRINGEMENT BY QUOTATION. 243 By quotation, as here used, I mean the transfer of sentences, or passages, . or paragraphs, rUcralim, whether with or without acknowledgment of the source from which they are taken. The first circumstance to which we have to attend, in this inquiry, is, whether the use of matter by quo- tation, in a given case, tends to, or does, in fact, injure the sale of the book from which the extract is taken. The original author of the extract has the exclusive right to publish and sell it ; and it is therefore a very material inquiry, to ascertain how far he is injured, or is likely to be injured, b^' its publication by another person. 'It will be apparent, on reflection, that the quantity of matter taken cannot be decisive of this question. The most material and valuable part of a book, or other publication, may be embraced in a few para- graphs or even sentences, which contain all that is in fact original with the author. If a person, who had made a discovery in science, should choose to enunciate it in a work, of which, by securing the copyright, he intended to reap the profits, and should introduce the statement of his discovery into a general treatise on the branch of science to which it belonged, the matter of his treatise at large might be far from being original, while the portion of the the plaintiff's. Emerson v. Davies, by inserting a smaller in a larger 3 Story's R. 768, 797. Sec also work, or with the addition of notes Mawman v. Tegg, 2 Russ. 365 ; or commentaries, is there treated as Campbell v. Scott, 11 Simons, 31. a piracy, l^cnovinrd, toni. ii. pp. In France, the same principles are 15, 16, 19, 20. Merlin, Questions applied. Any republication, either de Droit, tit. Conlrefagon, ^ iv. 244 laav of copyright. work, containing the description of liis discovery, would be purely and eminently novel. The repub- lication of this part of the book would be a taking of that which constituted its chief value, and yet the proportion which it bore to the rest of the work might, in respect to quantity, be very inconsid- erable. Quantity, therefore, is of itself no test, by which to determine whether a quotation amounts to a piracy ; and it has accordingly been disregarded in some cases. Thus, where it was suggested by coun- sel„that the quantity taken by the defendant from the plaintiff's book would be an unfair quantity, even if the source had been acknowledged. Lord Cot- tenham, C. 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 a small proportion of the book in quantity. It is not only quantity, but value that is always looked to."^ This doctrine is not to be considered as affected by those decisions, in which courts of equity have declined to interfere, on account of the minuteness of the injury occasioned by a short extract. Appli- cations for injunctions have been refused, where the value of the extract and the amount of injury have been so minute and trifling, as to induce the court not to interfere, and so to restrain the practice of occupying its time by applications in which it would ' Bramhall v. Halcombe, 3Mylne & Cr. 737, 738. INFRINGEMENT BY QUOTATION. 245 be di/Ficult to take an account of the alleged injury.' But even in such cases, the infringement might be apparent, and the remedy at the hands of a jury re- mains. " There is, therefore, no material qualifica- tion of the general doctrine, that mere quantity does not determine the question of infringement. Be the quantity large or small, if the extract furnishes a substitute for the book from which it is taken, so as to work an appreciable injury, it is so far an action- able violation of the copyright. The license of what is called fair quotation cannot, I apprehend, be said to furnish any different stand- ard of determination, in cases of quotations or ex- tracts. This license it is very difficult to define.^ On the one hand, there is a class of publications, ' Bell V. Whitehead, 17 Law Journ. 142. Whittingham v. Wool- er, 2 Swanst. 428. Tonson v. Walk- er, 3 Swanst. 672. ^ Ibid. ' In Wilkins v. Aikin, 17 Yes. 422, 421, Lord Eldon said, "There is no doubt that a man cannot, un- der the pretence of quotation, pub- lish the whole or a part of another's book, though he may use, what in all cases it is very diiricull to define, fair quotation." This case suggests the qu(crc, whether the copying of a map, as an illustration, in a fair his- tory of all the maps of a county, would be restrained. Lord Eldon said, " Suppose a publication, pro- fessing to be an account of the im- provement of maps of tiie county of Middlesex ; compiling the history of all the maps of it ever published ; pointing out the peculiarities be- longing to them, and giving copies of them all ; as well those tiie copy- 21* right of which have expired, as those of which it was subsisting ; it is not easy to say with certainty what would be the decision upon such a case. If it was a fair history of the maps of the county, which had been published, and the publication of the individual work was merely an illus- tration of tliat history, that is one way of stating it ; but if a jury could peraive the object to muhc a projit by publishing the map of another man, that would require a different con- sideration" Perhaps this is only an- other form of stating that the ques- tion would be, wheiher the owner of the map is injured by the use made of it. But if his lordship intended to say, that the question would depend on the intention of the party to do an injury, it seems to mc that other authorities do not uphold his doctrine, and that it is not con- sistent with principle. 246 LAW OF COPYRIGHT. the object of which is to give extracts from other works, for the purposes of criticism ; and the notion, that the insertion of such extracts tends to increase the sale of the works from which they are taken, if fairly made, has been judicially recognized, and is admitted to be practically true.^ Any amount of ex- tracts, which the purpose of illustrating fair criticism requires, may be made in such works, with this limi- tation, that the review or critical notice shall not furnish a substitute for the book ; or, in other terms, shall not communicate the same knowledge with the original work. This was the distinction adopted by Lord Ellenborough, when he had occasion to use an illustration drawn from the practice of reviewing.^ ' Bell V. Whitehead, 17 Law Journ. 142. * Roworth V. Wilkes, 1 Campb. 94, 98. In this case the quantity taken from the plaintiff's book and inserted in an encyclopedia, amount- ed to seventy-five pages out of one hundred and eighteen. Lord Ellen- borough said, in instructing the jury, " The question is, whether the de- fendant's publication would serve as a substitute for the plaintiff's? A review will not in general serve as a substitute for the book review- ed ; and even there, if so much is extracted that it communicates the same knowledge with the original work, it is an actionable violation of literary property. The intention to pirate is not necessary in an action of this sort ; it is enough that the publication complained of is in sub- stance a copy, whereby a work vest- ed in another is prejudiced." By substitute is not to be understood a substitute for the whole book, but a substitute quoad hoc. See the re- marks of Sir L. Shadwell, V. C. in Sweet V. Shaw, Jurist, vol. i. p. 212. See also Macklin v. Hichard- son, Ambl. 694. Whittingham v. Wooler, 2 Swanst. 428. The case of Dodsley v. Kinnersley, Ambl. 403, which seems to look the same way, is a very defective report, and the decision, as stated, seems to me quite wrong, upon this point. The defendant printed, in a magazine, part of the narrative of Dr. John- son's Rasselas, leaving out the re- flections. Upon filing the bill, the Lord Keeper Henley refused an injunction, "doubting whether it was such a book as the stat. 2 Anne intended to protect' " The ground of this learned doubt is not stated. When the cause came on to be heard before Sir Thomas Clarke, M. U., two booksellers deposed that the sale of the book was prejudiced by its being printed in the magazine. This was answered INFRINGEMENT BY QUOTATION. 247 On the other hand, instances occur, in whicli ex- tracts from other books are used with or without ac- knowledgment, not for purposes of criticism ; and other instances, in books which are not established journals of criticism, but in which criticism is made the ostensible purpose for which extracts are made. With regard to the first of these classes, the ac- knowledgment or concealment of the fact of quota- tion can have no other bearing than to determine whether it was or was not made with a fraudulent intention. The presence or the absence of such intention will not conclusively determine whether an injury has been done. The legitimate influence of the proof of intention is merely to assist the court, among other circumstances, in determining whether the party has transcended the limits of fair quota- tion. But if he has, with the fairest intentions, published extracts of such a character as to injure the work from which they are taken, his intentions are w^holly immaterial to the issue. One of the most marked cases of this class occur- red in relation to the writings of Washington. The plaintiffs were the proprietors of a large work, con- taining the letters and other writings of Washing- ton, w^ith a life. The defendants published a smaller by evidence of a usage of printing ex- An injunction was thereupon re- tracts of new books in magazines, fused; but ihat it would be granted witliout asking leave of tlie authors, at the present day, under the like and that the plainlifls had tlicm- circumstances, there can be liille eelves printed extracts in the An- doubt, nual Register and in a newspaper. 248 LAW OF COPYRIGHT. work, containing a new and original life ; but with copious extracts from the letters and papers contain- ed in the plaintiffs' work. Mr. Justice Story granted an injunction as to these extracts, admitting at the same time, that the defendants might have acted un- der a mistake as to the plaintiffs' rights.^ * Folsomw. Marsh, 2 Story's R. 100, 115. In this case the learned judge said. " The question, then, is, whethnr this is a jusiifiable use of the original materials, such as the law recognizes as no infringement of the copyright of the plaintiffs. It is said, that the defendant has se- lected only such materials as suited his own limited purpose as a biog- rapher. That is, doubtless, true ; ami he has produced an exceedingly valuable book. But that is no an- swer to the difficulty. It is certain- ly not necessary, to constitute an invasion of copyri>iht, that the whole of a work should be copied, or even a large portion of it. in form or in sub-tance. If so much is taken, that the value of the original is sen- sibly diminished, or the labors of the original author are substaniially to an injurious extent appropriated by anotber, that is sufficient, in point of law, to constituie a piracy ipro tanin The entirety of the copy- right is the property of the author ; and it is no defence, that another person has appropriati'd a part, and not the whole, of any pntperty. Neither does it necessarily depend upon the riuamity t:iken, whether it is an infrin^iement of the copyright, or not It is often affiicted by other con.sideralions, the value of the ma- terials taken, and the importance of it to the sale of the orignial work. Lord Cottenham, in the recent cases of Bramliall v. Ilalcombc, (oMylne & Craig, 737, "38, ) and Saunders V. Smith, (3 Mylne & Craig, 711, 73G, 737,) adverting to this point, said : ' When it comes to a ques- tion 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 pro- portion of the book in quantity. It is not only quantity, but value, that is always looked to. It is useless to refer to any particular cases, as to quantity.' In short, we must often, in deciding questions of this sort, look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in -which the use may prejudice the sale, or diminish the profits, or supersede the objects of the original work. Many mixed ingredients enter into the discussion of such questions. In some cases, a considerable portion of the materials of the original work may be fused, if 1 may use such an expression, into another work, so as to be un- distinguishable in the mass of the latter, which has other professed and obvious objects, and cannot fair- ly be treated as a piracy ; or they may be inserted as a sort of distinct and mosaic work, into the general texture of the second work, and constitute the peculiar excellence thereof, and then it may be a clear piracy. If a person should, under color of publishing ' Elegant Ex- tracts ' of poetry, include all the best pieces at large of a favorite poet, whose volume was secured by INFRINGEMENT BY QUOTATION. 249 In the case of Lewis v. Fullerton, an attempt was made to justify the taking of portio i.> of he plain- tiff's work, under a fair use of a former publication ; but an injunction was granted, the court being satis- fied that the defendant, in the compilation of his book, had habitually made use of all that suited his purpose in the plaintiff's work ' a copyright, it would be difficult to say, why it was not an invasion of that right, since it migiit constitute the entire value of the volume. "In the present case, I have no doubt whatever, that there is an invasion of the plainlilTs' copyritjht ; I do not say designedly, or from bad intentions ; on the contrary, I entertain no doubt, that it was deem- ed a perfectly lawful and jnstifiable use of the plaintills" wurk. But if the defendants may take three hun- dred and nineteen letters, included in the plaintiffs' copyright, and ex- clusively belonging to them, there is no reason why anotlier bookseller may not take other five hundred let- ters, and a thiid, one thousand let- ters, and so on, and thereby the plaintitTs copyright be totally de- stroyed. Besides ; every one must see, that the work of the defendants is mainly founded upon tlicse letters, constituting more than one third of their work, and imparting to it its greatest, nay, its essential value. Witliout those letters, in its present form, the work must fall to the ground. It is not a case, where ab- breviated or" select passages are taken from particular letters; but the entire letters are taken, and those of most interest and value to the public, as illustrating the life, the acts, and the character of Wash- ington. It seems to me, therefore, that it is a clear invasion of the rijjht of property of the plaintiffs, if the copying of parts of a work, not con- stituting a major part, can ever be a violation thereof; as upon principle and authority, I have no doubt it may be. If it had been the case of a fair and l/ona fide abridgment of the work of the plaintiffs, it might have admitted of a very different consideration." See also Mawman V. Tegg, 2 Russ. 383. Sweet v. Shaw, Am. Jurist, vol. i. p. 212. ' Lewis r. Fullerton, 2 Beavan's R. 6, 8. In this case. Lord Lang- dale, M. R. said, " Any man is en- titled to write and publish a topo- graphical dictionary, and to avail himself of the labors of all former writers whose works are not sub- ject to copyright, and of all public sources of information ; but whilst all are entitled to resort to common sources of information, none are en- titled 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 the ques- tion is, whether JMr. Bell did or did not, for the compilation of the work in which he was engaged, avail him- self of the plaintiff's work unlaw- fully, and in violation of the plain- tiff's copyright. For the purpose of ascertaining this, I have read a very considerable nuiuber of articles in both works ; the trouble of com- paring them has been greatly dimin- 250 LAW OF COPYRIGHT. The question has also arisen, whether it is lawful to publish verbatim cases from the Law Reports, upon certain subjects, or a selection of such cases, with annotations. Lord Cottenham, upon the book entitled "Smith's Leading Cases," assuming, but not deciding, the legal question of an infringement, was obliged to refuse an injunction, upon the ground of acquiescence on the part of the plaintiff.^ But in ished by the exhibits which have been prepared on both sides ; and the result of the examination ap- pears to me to show that Mr. Bell, in the compilation of his gazetteer, has extensively, and as far as my exam- ination has gone, it would not be too much to say, habitually, made use of all that suited his purpose in the plaintiff's work ; it is evident, that in a large proportion of the defend- ant's work, no other labor has been applied than in copying the plain- tiff's work, and arranging the mat- ter in the form which best suited the purpose of the compiler. Mr. Bell has evidently thought himself under no restraint, and probably did not think that the plaintiffs were en- titled to any copyright ; and if that which he did could be considered as lawful, it is plain no protection whatever could be given to any work in the nature of a gazetteer, dictionary, road-book, calendar, map or any other work, the subject-mat- ter of which is open to common ob- servation and inquiry ; and that ev- ery man who had bestowed any amount of labor or expense in col- lecting and arranging the informa- tion requisite for the production of such a work, might immediately on its publication, be deprived of the fruit of his industry and ability. Having gone carefully through all the articles commented upon in the argument, and several others, I am of opinion that the defendant's work is, to a very considerable extent, a piracy of the plaintiff" 's copyright." ' Saunders v. Smith, 3 M. & Cr. 711. 728. In regard to the legal right, his lordship said, " In' this case, I find the publication com- plained of to be of a character which, whether it be or be not an infringement of the copyright of the plaintiffs, is a course of proceeding which has been pretty largely ad- mitted, and pretty generally adopt- ed. Several cases occurred to me, and several were mentioned to me at the bar, in which a gentleman at the bar, desirous of publishing a work upon a particular subject, has collected the cases upon that sub- ject, and has taken those cases, gen- erally speaking, verbatim, from re- ports which are covered by copy- right. No instance has been repre- sented to me in which those entitled to the copyright have interfeied; no judgment, therefore, has been pro- nounced upon that subject. I am not stating whether the owner of the copyright is entitled to interfere in such a case, or whether that use of published reports is or is not to be permitted. That is a question of legal right, upon which I find, at present, no reason for coming to an adjudication." Mr. Justice Story, referring to this case, said, " Much PIRACY BY EXTRACTS. 251 a similar case, Sir L. Shadwell, V. C. granted an in- junction upon the ground of injury to the plainlilF, where eleven cases only had been copied verbatim ; but a considerable number of what were called abridged cases were, in truth, copies of the plain- tiff's volumes, with slight alterations.^ The same principle is to be applied to books, which, under the ostensible purpose of criticism or illustration, give extracts from other publications ; although it is to be admitted that fair criticism may be illustrated by fair quotation. Thus, where the defendant published a book, giving specimens of Modern English Poetry, with criticisms and biogra- phical notices, and inserted therein entire poems and extracts from poems written by Mr. Campbell, which were under the protection of copyright, an in- junction was granted in his favor against the publi- cation." In this case the animus fur andi was held to be implied by law, from the taking.^ must in such cases depend upon the that the reporter had copyright in nature of the work, tlie value and his marginal notes and in the argu- extent of the copies, and the degree menis of counsel, as prepared and in which the original authors may arranged in his work. See Gray t'. be injured thereby." Folsom v. Russell, 1 Story's R. 11, 21. Marsh, 2 Story's R. 118. * Campbell v. Scott, 11 Simons, ' Sweet r. Shaw, The Jurist, vol. 31. i. p. 212 ; S. C. 17 Law J. 210. ' Ibid. I must here express my This subject came under considcra- dissent from the doctrines laid down tion in the case of Wheaton v. Pe- by Mr. Godson on the sul)joct of ters, 8 Peters S. C. R. 591, in re- quotations. In his work on Patents lation to the Reports of Cases in the and Copyrights, p. 477, Mr. Godson supreme court of the United States; says, "In judging of a quotation, but the court held that there could whether it is fair and candid, or be no copyright in the opinions of whether the person who quotes it has the judges of that court, which arc been swvLycAhyxYm nninnixfnrandi ; pviblished under an act of congress, the quantity taken, and the manner But it was not doubted, it seems, in which it is adopted, of course 252 LAW OF COPYRIGHT. Upon the whole, the doctrine of the law with re- gard to quotations may be thus stated. To forbid to subsequent WTiters the citation of passages from the works of their predecessors, under all circumstances, would be a great obstacle to the progress of science and knowledge. If the extract is acknowledged, the acknowledgment shows that the party did not intend to pass as his own what belongs to another, and thus a presumption arises that he did not make use of the passage for the purpose of turning it to his own pecuniary account. Still, there must be a limit even to the citation of passages which are accom- panied by an acknowledgment of the source from which they are taken ; and there is no more definite and consistent limit than the point where an injury may be perceived, which varies of course in each must he considered. If the work (beinj^ a question of fact for the jury) complained of is in substance a copy, that it was done with a bad intent, then it is not necessary to show the and that the matter which accom- intention to pirate ; lor the greater panies it has been rolorably intro- pan of the matter of the book hav- duced." It is certainly necessary, ing been purloined, the interition is in determining whether the animus apparent, and other proof is super- furamli exists, to look at the quan- fluous. A piracy has undoubtedly tity taken and the manner in which been cominiited. But if only a small it was taken. But the more recent portion of the work be quoted, then authorities, as well as sound princi- it beomes necessary to prove that it pie. do not look at the intention, was done flw/wo/w/Yvri'//; with the in- whether the quantity be large or tentioit ofdepriving the author of his small. If an injury is caused, there justreward, by givinjr liis work to the is no occasion to jirove the intention public in a ciieaper form. And then directly, or to establish it by infer- the mode of doing it becomes a sub- ence from the circumstances. If ject for inquiry. For it is not suffi- part of one author's book is found cient to constitute a piracy, that in that of another, the question will partof one auihor's book is found in be, what effect is it to have? not that of another, unless it be nearly whether it was taken with a bad in- the whole, or so much as will show tent. PIRACY BY COLORABLE ALTERATION. 253 case, and is not by our law supposed to be capable of a distinct announcement by a positive rule.' 3. Piracy by imitation, or by reproducing with colorable alterations and disguises assuming the appearance of a new work. This is, by far, the most frequent form in which the copyright of authors is infringed. 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 piracy. The main question in all such cases is, whether the author of the work, alleged to be a piracy, has resorted to the original sources, alike open to him and to all writers, or whether he has adopted and used the matter or plan of the work with the infringement of which he is charged, with- out resorting to the other sources from which he had a right to borrow. We have seen, in a former chap- ter, what is the just extent of an author's right in his own work. It is there laid down, that no writer ' Til some countries, however, an tion of isolated passages of a work arbitrary limit lias been fixed by le- already printed, and the reproduc- gislation. In Russia, quotalionsare tion of isolated articles, poems, &c. permitted, provided the quantity ta- in works of literary history, or in ken does not exceed one-third of the collections for the use of schools." book from which they are taken ; Upon this text, M. Renouard ob- and provided that the writer's own serves that we may conclude from text is twice as large as the passages the exceptions introduced into the taken by him from anotiier work, law, that more important extracts Renouard, torn. 1, p. 207. The would be deemed piraticaL (Tom. Prussian code excepts from the pc- 2, p. 17- 18.) nallies of piracy " the literal cita- 22 254 LAW OF COPYRIGHT. can acquire an exclusive title to a subject, but that the results and products of his own intellectual labor, however common the subject, and however numer- ous and public the sources from which he has taken his materials, exclusively belong to him. In some cases, these results and products will appear in the new forms and combinations given to old materials, and in other cases they will consist merely in the collection and arrangement of information open to any one to collect, but collected perhaps by the par- ticular writer for the first time. In all cases, the inquiry must start with assuming the general prin- ciple, that every writer is at liberty to treat of any subject whatever, whether it has been previously written upon by others or not ; and then it resolves itself into the question, whether he has made any, and if any, whether he has made a lawful use of the particular work which he is alleged to have infringed.^ Comparison of the two works is, of course, the test to which the question should be brought. Among the proofs of piracy, upon which the courts have been much in the habit of relying, is the occurrence of the same inaccuracies in the two books ; and when the question is, whether the defendant, in preparing his book, had before him and copied or imitated the book > Longman v. Winchester, 16 Moore, 1 East, 361, 362. Trusler Ves. 269. Mathewson v. Stock- v. Murray, 162, n. Gary v. Long- dale, 12 Ves. 270. Gary v. Faden, man, 1 East, .360, Wilkins v. Aikin, 5 Ves. 24. Tonson V. Walker, b 16 Ves. 422. IToggu. Kirby, 8 Ves. Swanst. 672. Garnan v. Bowles, 2 21.5. Gary v. Kearsley, 4 Esp. 169. Bro.Gh.R. 80. Mawraan i;. Tcgg, 170. Gray?;. Russell, 1 Story, 11. 2 Russ. 385, 393. Roworth v. Emerson v. Davies, 3 Story, 7"68. Wilkes, 1 Campb. 94. Sayre v. PROOF OF PIRACY. 255 of the plaiiitifT, it is manifest that this kind of evi- dence is the strongest proof, short of direct evidence, of which the fact is capable. Thus, where the ques- tion was, whether, in a vast proportion of the work of the defendants, any other labor had been applied than copying the plaintiffs' work. Lord Eldon said, that from the identity of the inaccuracies, it was im- possible to deny that the one was copied from the other verbatim ct literatim,} So too, where the ques- tion was, how much of the plaintiff's book had been copied by the defendant, his lordship carried the force of the evidence from identity of inaccuracies so far, as to lay down the principle, that when a con- siderable number of passages are proved to have been copied by the copying of the blunders in them, other passages, which are the same with passages in the original book, must be presumed, prima facic^ to be likewise copied, though no blunders occur in them.^ But this kind of proof is often wanting ; and where it is not found, it is necessary to determine by other results of the comparison, whether an un- lawful use has been made of the plaintiffs' book. In many cases, the occurrence of passages identically the same, or but slightly varied, but not having the ear-mark of inaccuracies, has been held conclusive proof of piracy, even in that class of works in which, from the nature of the subject, there must be strong ' Longman f. Winchester, 16 Ves. 393. See also Gary v. Kearsly, 4 269. Esp. 169, 170. » Ma\vmanr.Tegg,2 Russ. 385, 256 LAW OF COPYRIGHT. resemblances between any two books in which it is treated, such as dictionaries, encyclopedias, calen- dars, road-books, and the like.^ But where the re- semblance does not amount to identity of parallel passages, the question becomes, in substance, this — whether there be such similitude and conformity be- tween the two books, that the person who wrote the one must have used the other, as a model, and must have copied or imitated it ? ~ In these cases, the piracy is to be detected, through what have been called colorable alteration and servile imitation. The doctrines which have been laid down, with re- ference to this class of cases, require here a careful examination. What degree of resemblance will authorize the inference that one book is a copy of another, not- withstanding the diversities that may be found in them, is a question of great nicety, which must de- pend on the circumstances of each case. In a case where the defendant had compiled into one large map four charts belonging to the plaintiff, and the ' Mathewsonr. Stockdale, ISVes. ist of the main design. But if the 270. Carnan v. Bowles, 2 Bro. similitude can be supposed to have Ch. R. 80. Cary v. Longman, 1 arisen from accident, or necessarily East, 360. Mawman v. Tegg, 2 from the nature of the subject, or Ross. 385, 393. Gray v. Russell, 1 from the artist having sketched de- Story, 11. signs merely from reading the let- " In a case concerning prints, Lord ter-press of the plaintiff's work, the Ellenborough said to the jury, "It defendant is not answerable. It is is still to be considered, whether remarkable, however, that he has there be such a similitude and con- given no evidence to explain the formity between the prints, that the similitude, or to repel the presump- person who executed the one set tion which tiiat necessarily causes." must have used the others as a Roworth v. Wilkes, 1 Campb. 94. model. In that case, he is a copy- PROOF OF PIRACY. 257 fact of his having so done was to be ascertained, Lord Mansfield said, " The act that secures copy- right to authors, guards against the piracy of the words and sentiments ; but it does not prohibit writing on the same subject. As in the case of his- tories and dictionaries : In the first, a man may give a relation of the same facts, and in the same order of time ; in the latter, an interpretation is given of the identical same words. In all these cases, the question of fact to come before a jury is, whether the alteration be colorable or not ? There must be such a similitude as to make it probable and reasonable to suppose that one is a transcript of the other, and nothing more than a transcript. So, in the case of prints, no doubt different men may take engravings from the same picture. The same prin- ciple holds with regard to charts, whoever has it in his intention to publish a chart, may take advantage of all prior publications. There is no monopoly of the subject here, any more than in the other in- stances ; but upon any question of this nature, the jury will decide whether it be a servile imitation or not."^ So, also. Lord Kenyon, in an action for pirating a book of chronology, said, " The main question here is, whether in substance the work is a copy and imitation of the other ; for undoubtedly in a chrono- logical work the same facts must be related." - ' Sayrc v. Moore, 1 East, 3G1, * Trusler v. Murray, 1 East, 362, n. 363, n. See also, for applications 22* 258 LAW OF COPYRIGHT. Mr. Justice Story, in a case where the same ques- tion arose, held that the resemblances in the parts and pages which correspond, must be so close, full, uniform and striking, as fairly to lead to the conclu- sion that the one book is a substantial copy of the other, or mainly borrowed from it : in short, that there is a substantial identity between them.^ The of the same doctrine. Gary v. Longman, 1 East, 358. Mathew- son V. Stockdale, 12 Ves 270. Longman v. Winchester, 16 Ves. 269. Wilkins v. Aiken, 17 Ves. 422. ' Emerson v. Davies, 3 Story's R. 768. In this case the court said, " The case, therefore, comes back at last to the naked considera- tion, whether the book of Davies, in the parts complained of, has been copied substantially from that of Emerson, or not. It is not suffi- cient to show, that it may have been suggested by Emerson's, or that some parts and pages of it have resemblances, in method and details and illustrations, to Emer- son's. It must be further shown, that the resemblances in those parts and pages are so close, so full, so uniform, so striking, as fairly to lead to the conclusion that the one is a substantial copy of the other, or mainly borrowed from it. In short, that there is substantial iden- tity between them. A copy is one thing, an imitation or resemblance another. There are many imita- tions of Homer in the iEneid ; 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 plaintiff in the close of his argument. Fades non omnibus una, nee diversa ta- men, sed ijualem debet esse sororum. The question is, therefore, in many cases, a very nice one, what degree of imitation constitutes an infringe- ment of the copyright in a par- ticular work. It is very clear that any use of materials, whether they are figures or drawings, or other things which are well-known and in common use, is not the subject of a copyright, unless there be some new arrangement thereof. Still, even here, it may not always follow, that any person has a right to copy the figures, drawings, or other things, made by another, availing himself solely of his skill and industry, without any resort to such common source." And after commenting on the cases of Bar- field V. Nicholson, (2 Sim. & Stu. 1,) and the other authorities cited in the last preceding note, the learned judge said, "So that, 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 color- able alterations and variations only to disguise the use thereof; or whether his work is the result of his own labor, skill, and use of common materials and common sources of knowledge, open to all PROOF OF PIRACY. 259 question therefore, comes to this, in almost all such cases, whether the defendant has, in substance copied from the plaintiff's work, with merely color- able alterations and devices, to disguise the copying, or whether the resemblances are merely accidental, and naturally or necessarily grew out of the subject, without any use of the plaintiff's work. If the court can see proof that the defendant had the work of the plaintiff before him, and used it as a model for his own, in copying and imitating it, without drawing from common sources or common materials, it will hold the resemblances to be not accidental, and not necessary, notwithstanding the alterations and dis- guises which may have been introduced.^ Many persons seem to labor under the mistake of supposing that books of the character of compila- tions may be used with impunity ; and that, gene- rally, where the materials made use of by an author can be traced to other sources, his copyright cannot prevent the use of those materials by others. The whole distinction, in such cases, which is entirely overlooked by those who set up this kind of defence, is this ; that every subsequent writer has a right to resort to the common sources for the same learning, men, and tlic resemblances are ' Ibid. It is not necessary, to cither accidental or arising from the amount to piracy, that the one work nature of the subject. In other should be a copy of the other, and words, whether the defendant's not an imitation. There may be a book is quoad hoc, a servile or close imitation, so close as to be a evasive imitation of the plaintiff's mere evasion of the copyright, with- work, or a bona fide original com- out being an exact and literal copy, pilation from other common or inde- Ibid. pendent sources." 260 LA.W OF COPYRIGHT. and to make use of it at his pleasure ; but if he takes it from one whose book is protected by copy- right, who has collected and arranged it in a form and method peculiar to himself, and gives it out to the world in that form, without resorting to the original sources, he is guilty of piracy.^ Thus, if a person prepares notes to an old work, the materials of which are selected from various authors who have written at different periods, but are collected and embodied by him for the first time, it is piracy to ' " There is no foundation in law," says Mr. Justice Story, " for the argument, that because the same sources of information are open to all persons, and by the ex- ercise of their own industry and talents and skill, they could, from all these sources, have produced a similar work, one party may at second hand, without any exercise of industry, talents, or skill, bor- row from another all the materials, which have been accumulated and combined together by him. Take the case of a map of a county, or of a state, or an empire ; it is plain, that in proportion to the accuracy of every such map, must be its similarity to, or even its identity with, every other. Now, suppose a person has bestowed his time and skill and attention, and made a large series of topographical surveys in order to perfect such a map, and has therel)y produced one far ex- celling every existing map of the same sort It is clear, that not- withstanding this production, he caimol supersede the rijjht of any other person to use the same means by similar surveys and labors to accomplish the same end. 13ut it is just as clear, that he has no right, without any such surveys and labors, to sit down and copy the whole of the map already produced by the skill and labors of the first party, and thus to rob him of all the fruit of his industry, skill, and expenditures. It would be a down- right piracy." " Neither is it of any consequence in what form the works of another author are used ; whether it be by a simple reprint or by incorporating the whole or a large portion there- of 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 scientific treatise of another author, as, for examjjle, one of Dr. Lard- ner's or Sir John Herschel's, or Mrs. SomerviJle'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." Gray t). Russell, 1 Story's R. 11, 18. See also, Emerson v. Davies, 3 Story's R. 768. Bar- field V. Nicholson, 2 Sim. & Stu. 6. Wyatt V. Barnard, 3 V. & B. 77. Matthewson v. Stockdale, 2 Ves. 270. Wilkins v. Aiken, 17 Ves. 422. Merlin, Rep. de Jurisp, tit. Contrefatjon, vol. 3, p. 701, et seq. TROOF OF PIRACY. 261 transcribe them, and it is no defence to show that any other person miglit have made a similar selec- tion and compilation.^ In such cases, if the same matter is found expressed in the same phraseology, or the same materials are found arranged in the same form and method, in two books, a violent pre- sumption arises that the author of the later coi)ied from the earlier book, and did not resort to the com- mon sources. This presumption will approach more or less near to being conclusive, according to the identity of the two works." Another and more difficult question may arise, where an author has directly made use of the work of a previous writer, with the bona fide intention of adding to and improving the information which the wants of the public may require, upon the particular subject. This question occurs most frequently in relation to all that class of works devoted to statisti- cal or other information. There are dicta of English judges, which seem to recognize the right of using previous publications of this kind, with real improve- ments and additions ;^ and there is one case, at Nisi Prius, where a verdict is reported to have been found upon this principle, under the direction of Lord Mansfield. It was a case of charts ; and his lordship instructed the jury, that i.\hey found the defendant. ' Gray v. Russell, 1 Story's R. ^ The most important of those 11- dicta have been examined, ante, * Ibid. Emerson ('. Davies, 3 Sto- in connection with the subject of ry's R. See also, ante, Chap. II. quotation. 262 LAW OF COPYRIGHT. although he used the plaintiff's chart, had been cor- recting errors, and not servilely copying, they should find a verdict for the defendant ; but that if it was a mere servile imitation, they should find for the plaintiff".^ ' Sayre v. Moore, at Guildhall, 1785. Reported 1 East, 3G1, n. b. It is manifest tliat the verdict was carried upon the strong testimony of the witnesses for the defendant, and, as T conceive, against principle. The following is the report, but the source from which it was derived is not stated. " The charts which had been copied were four in num- ber, which Moore had made into one large map. Tt appeared in evidence that the defendant had taken the bo- dy of his publication from the work of the plaintiffs, but that he had made many alterations and improve- ments thereupon. It was also prov- ed that the plaintiffs had originally been at a great expense in procuring materials for these maps. Delaro- chett, an eminent geographer and engraver, had been employed by the plaintiffs in the engraving of them. He said that the present charts of the plaintiffs were such an improve- ment on those before in use, as made an original work. Besides their having been laid down from all the charts and maps extant, they were improved by many manuscript journals and printed books and man- uscript relations of travellers : he had no doubt the materials must have cost the plaintiffs between 3000/. and 4000/., and that the de- fendant's chart was taken from these of the plaintiffs, with a few altera- tions. In answer to a question from the court, whether the defendant had pirated from the drawings and pa- pers, or from the engravings, he answered, from the engravings. — Winterfelt, an engraver, said he was actually employed by the de- fendant to take a draft of the Gulf Passage (in the West Indies) from the plaintiffs' map. " Many witnesses were called on behalf of the defendant, amongst others a Mr. Stephenson and Admi- ral Campbell. Mr. Stephenson said he had carefully examined the two publications ; that there were very important differences between them, much in favor of the defendant's. That the plaintiffs' maps were founded upon no principle ; neither upon the principle of the Mercator, nor the plain chart, but upon a corrup- tion of both. That near the equator the plain chart would do very well, but that as you go further from the equator, there you must have re- course to the Mercator. That there were very material errors in the plaintiffs' maps. That they were in many places defective in pointing out the latitude and longitude, which is extremely essential in navigating. That most of these, as well as errors in the soundings, were corrected by the defendant. Admiral Campbell observed, that there were only two kinds of charts, one called a plain chart, which was now very little used ; the other, which is the best, called the Mercator, and which is very accurate in the degrees of lati- tude and longitude. That this dis- tinction was very necessary in the higher latitudes, but in places near the equator it made little or no dif- ference. That the plaintiffs' maps were upon no principle recognized CORRECTION OF ERRORS. 2G3 The doctrine which this case, if correctly report- ed, explicitly sanctions, is, that where a work, though protected by statute, is erroneous, any per- son may make a direct use of it, copying the whole, provided he corrects the errors, without resorting to the original sources of information, or without mak- ing a new survey, in the .case of maps or charts. This doctrine may be very convenient in some of its aspects ; but it admits of great doubt, whether it is consistent with the rights of original authors. The question is not, whether the author of the improve- amono- seamen, and no rules of nav- igation could be applied to them ; and they were therefore entirely useless. " Lord Mansfield, C. J. The rule of decision m this case is a matter of great consequence to the cciuniry. In deciding it, we must take care to guard against two extremes, equally prejudicial ; the one, that men of ability, who have employed their time for the service of the commu- nity, may not be deprived of their just merits, and the reward of their ingenuity and labor ; the other, that the world may not bo deprived of improvements, nor the progress of the arts be retarded. The act that secures copyright to authors guards against the piracy of the words and sentiments ; but it docs not prohibit writing on the same subject. As in the case of histories and dietiona- ries. In the first, a man m:iy give a relation of the same facts, and in the same order of time ; in the latter an interpretation is given of the identical same w'ords. In all these cases the question of fact to come before a jury is, whether the altera- tion bo colorable ornoti there must be such a similitude as to make it probable and reasonable to suppose that one is a transcrqit of the other, and nothing more than a transcript. So in the case of prints, no doubt different men may take engravings from the same picture. The same principle holds witii regard to charts. WMioever has it in his intention to publish a chart, may take advant.ige of all prior publications. There is no monopoly of the subject here, any more than in the other instances, but upon any queslion of this nature the jury will decide whether it be a servile imitation or not. If an erro- neous chart be m:idc, God forl)id it should not be corrected even in a small degree, it it thereby become more serviceable and useful for the purposes to which it is applied. But here you are told, that there are va- rious and very iiialerial alterations. This chart of ilie [daintiffs" i;; upon a wrong principle, inapplicable to navigation. The defendant there- fore 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 imi- tation, and pirated from the other, you will find for the plaintiffs." — Verdict for defendant. 264 LAW OF COPYRIGHT. ment and additions to an old work has a copyright in the additions and improvements. Of this, there can be no doubt. ^ But the question is, whether a work, at the time being under the protection of the statute, can be taken as the subject of an improve- ment.- It is quite clear, that every part of the original work is under the protection of the law. Where the defendant takes a part of the original work, without altering it, he takes what requires no improvement, by directly copying it. AVhy should the addition of valuable original matter of his own give him a right to do that which he cannot do, where his alterations and additions are merely colorable ? In the one case, he seeks to disguise the fact of having copied from the plaintiff; in the other, he does not conceal the copy- ing, but says he has added valuable original matter of his own. In both cases, the question must recur, whether he has taken and used what belonged to another ? The general doctrine of the law is, that " none are entitled to save themselves trouble and expense, by availing themselves, for their own profit, of other men's works, still entitled to the protection of copyright ;"^ and the modern course, in courts of ' Gary v. Longman, 1 East, 358. existing grant, the inventor of the Mason v. Murray, cited S. C. improvement must wait until that * In the analogous case of patent grant has expired. But he may rights, the subject of an existing take out a patent for the improve- and valid patent cannot be taken as ment by itself, and sell it. Godson the superstructure of an improve- on Patents, p. 62, 2d edit, ment. If the improvement cannot ' Per Lord Langdale, M. R. in be used without the subject of an Lewis v. Fullerton, 2 Beav. 6. ABRIDGMENTS. 2G5 equity, is, to grant an injunction as to parts of a work pirated, although it contains much that is orisfinal.' 4. Piracy, by reproducing the whole or a part of a book, under an abridged form. We have now to consider luider what circum- stances an ABRIDGMENT will coustitutc a violation of copyright. It has already been intimated, that the general doctrine of the English law on the sub- ject of Abridgments needs revision. I propose here to examine the authorities, and to suggest some rea- sons why the doctrine which they seem to sanction cannot be carried out, consistently with the estab- lished rights of literary property. The earliest case, in which there is a distinct re- cognition of abridgments, is Gyles v. Wilcox, in which the book charged to have been infringed was Sir Matthew Hale's Pleas of the Crown. In this case a distinction was taken between abridgments "fairly made," and works " colorably shortened." The doctrine was recognized, that a real and fair abridg- ment may with propriety be called a new book, because the invention, learning and judgment of the maker- are shown in it. But the book in ques- tion was held not to be a fair abridgment, but merely " colorably shortened," by leaving out cer- ' Ibid. Mawman v. Tegg, 2 Russ. 385. Folsom r. IMarsli, 2 Story, 100. 23 266 LAW OF COPYRIGHT. tain passages and translating Latin and French quo- tations.^ The next was a case relating to no less a book than Dr. Johnson's Rasselas. The defendant printed part of the narrative in a magazine, leaving out the reflections ; and justified upon the ground of a fair abridgment, among other points of defence. Sir Thomas Clarke, M. R. said, that, "no certain line can be drawn, to distinguish a fair abridgment ; but every case must depend on its own circumstances." It appeared that a small quantity only had been ab- stracted, and the plaintiffs had themselves printed a part of the work in a magazine ; a circumstance upon which the court chiefly relied, as showing that they could not be prejudiced by what the defendants had done. The learned judge, however, seems to have recognized the doctrine of fair abridgments, inasmuch as he said that if he were to hold this to be elusory, he must hold every abridgment to be so ; and he seems to have considered, that when a fair ' Gyles V. Wilcox, 2 Atkyns, in them, and in many cases are ex- 141. 143. Lord Hardwicke said, tremely useful. Though in some " Where hooks are colorabiy short- instances prejudicial, by mistaking encd only, they are undoubtedly and curtailing the sense of the au- within the meaning of the act of thor. If 1 should extend the rule parliament, and arc a mere evasion so far as to restrain all abridgments, of the statute, and cannot be called it would be of mischievous corjse- an abridgment. But this must not quence, for the books of the learned, be carried so far as to restrain per- hsJournc/sdes Scavann, and several sons from making a real and fair others that might be mentioned, abridgment, lor ahridjzments may would be brought within the mean- with great propriety be called a new ing of the act of parliament." See book, because not only the paper also the case ot Read v. Hodges, and print, but the invention, learning referred to in I'onson u. Walker, 3 and judgment of the author is shown Svvanston, 672, 679. ABRIDGMENTS. 2G7 abridgment is made, the question of injury to tlie original author cannot be considered.' In the next case, we find for the first time an effort to define a true and proper abridgment. The book in question was an abridgment of Hawksworth's Voyages. The rule was laid down by Lord Chan- cellor Apsley, assisted by Sir William Blackstone ; and it seems to have been adjudged, that where the understanding is employed in retrenching unneces- sary and uninteresting circumstances, which rather deaden the narration, it 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.^ A few years afterwards, Sir Thomas Sewell, M. R. in a case of an abridgment of a biography, said that if it was a fair bona fide abridgment of the larger work, several cases in the court of chancery had de- ' Dodsley t'. Kinnersley, Ambl. an abrklgaient in the nature of a 403. The report is very imperfect, new and a meritorious work. * Anon. Lofft's R. 775. " On a " That this iiad been done by Mr. bill ])r;iyinfj an iiijunciion against Newbery, whose edition mitjht be an edition by Mr. Newbery of an read in the fourth part of the time, abridginonl of Dr. llawkesworth's and all the substance preserved, and Voyases, the Lord Chancellor was conveyed in language as good or of opinion that this abridgment of better than in tlie original, and in a the work was not any violation of more agreeable and useful manner, the author's property whereon to That he had consulted Mr. Justice ground an injunction. That to con- Blackstone, whose knowledge and stitute a true and proper abridgment skill in his profession was univer- of a work, the- whole must be pre- sally known, and who as an author served in its sense : and then the himself had done honor to his coun- act of abridgment is an act of under- try. That they had spent some standing, employed in carrying a hours together, and were agreed large work into a smaller compass, that an abridgment, where the un- and rendering it less expensive and derstanding is employed in retrench- more convenient both to the time ing unnecessary and uninteresting and use of the reader. Which made circumstances, which rather deaden 268 LAW OF COPYRIGHT. cided that an injunction should not be granted ; and he referred to the case of Hawkesworth's Voyages. But it being shown that passages were taken verbatim from the original work, he granted an injunction, until answer and further order. ^ In a subsequent case, an attempt was made to jus- tify a selection of cases from the Term Reports, upon the ground of a fair abridgment ; but it appear- ed that the cases had been arranged under heads and titles, instead of chronologically, and in this way had been copied verbatim. An injunction was accord- ingly granted.^ The foregoing are all the English authorities on this subject, and they show that for a considerable length of time the notion has prevailed, that what is called a bona fide abridgment may be made, without violating tbe right of property of the original author.^ the narrative, is not an act of plagi- cannot be a monopoly of a general arism upon the original work, nor subject, it appears that books them- against any property of the author selves for certain purposes, besides in it, but an allowable and meritori- the mere act of reading them, may ous work. And that this abridg- be used by the public. They are, ment of Mr. Newbery's falls within in fact, general subjects — data — these reasons and descriptions, which may afford opportunites for Therefore the bill praying an in- other persons besides the authors junction ought to be dismissed." to exercise their ingenuity. They > Bell V. Walker, 1 Bro. Ch. R. may be taken as the groundwork of 451. other literary labors. Thus a copy- ^ Bntterworlh ti. Robinson, 5 Ves. right may exist in abridgments or 709. translations of works. Also in the ' Among text-writers, Mr. God- notrs ami additions printed in a new son has laid down a doctrine too edition of a book, over which the broad to be subscribed to, if we are right of the author has expired, to continue any protection to litera- For one man may compose a work, tare. for instance in the Latin language, "Nearly upon the same princi- another abridge it, a third translate pies, by which it is shown that there it, and a fourth write annotations ABRIDGMENTS. 269 In America, the subject has been only incidentally discussed. The authorities referred to in the note below, will fully justify an examination of the ques- tion dc novo} upon it ; and every one of them will acciuiro a copyright in the product of liis own ingenuity and lahor. " Many valuable works are so voluminous that abridgments of them are extremely useful. To make them, some judgment must be exercised, and some labor em- ployed; and therefore the authors of them ought certainly to be en- couraged. In general, an abridg- ment tends to the advantage of the author, if the composition be good ; and may serve the end of an adver- tisement. The inquiry, whether the work is prejudiced by the man- ner of making the abridgment, can- not be entertained." Godson, page 341. ' Mr. Justice Story, in Gray v. Russell, 1 Story's R. 19, 21, said, " In some cases, indeed, it may be a very nice question, what amounts to a piracy of a work, or not. Thus if large extracts are made therefrom in a review, it might be a question, whether those extracts were de- signed bona fide for the mere pur- pose of criticism, or were designed to supersede the original work un- der the pretence of a review, by giving its substance in a fugitive form. The same difilculty may arise in relation to an abridgment of an original work. The question, in such a case, must be compounded of various considerations ; whether it be a bona fide al)ri(lgmont, or only an evasion by the omission of some unimportant parts ; whether it will, in its present form, prejudice or su- persede the original work ; whether it will be adapted to tlie same class of readers ; and many other consid- 23* erations of the same sort, which may enter as elements, in ascertain- ing whether there had been a piracy .or not. Although the doctrine is often laid down in the books, that an abridgment is not a piracy of the oiiginal copyright; yet this propo- sition must be received with many qualifications. In many cases, the question may naturally turn upon the point, not so much of the quan- tity as of the value of the selected materials. As was significantly said on another occasion, Nvn nu- mcrantur, ponderanlur. The quin- tessence of a work may be piratical- ly extracted, so as to leave a mere caput mortuum, by the selection of all the important passages in a com- paratively moderate space. In the recent case of Bramwell v. Hal- comb, (3 Mylne & Craig, 737,) it was held, that the question, whether one author has made a piratical use of another's work, does not neces- sarily depend upon the quantity of that work, which he has quoted or introduced into his own book. On that occasion. Lord Cottenham said, ' When it comes to a question of quantity, it must be ver}' vague. One writer might take all the vital part of another's book, though it might be but a small proportion of the book in quantity. It is not only quantity, but value, which is looked to. It is useless to look to any i)ar- ticular cases about quantity.' The same subject was a pood deal con- sidered by the same learned judge in Saunders r. Smith, (3 Mvlne & Craig K. 711,728, 729,) w'ith re- ference to copyright in Heporis ; and how far anotlier person was at 270 LAW OF COPYRIGHT. The definition of an abridgment given in the case decided by Lord Chancellor Apsley, has certainly come down to us with some weight of authority, from the circumstance that he was assisted by Sir liberty to extract the substance of such reports, or to publish select cases therefrom, even with notes appended. In the case of Wheaton V. Peters, (8 Pcters's R. 591,) the same subject was considered very much at large. It was not doubted by the court, that Mr. Peters's Con- densed Reports would have been an infringement of Mr. Wheaton's co- pyrisrht, (supposing that copyright properly secured under the act,) if the opinions of the court had been, or could be, the proper subject of the private copyright by Mr. Whea- ton. But it was held that the opin- ions of the court, being published under the authority of congress, were not the proper subject of pri- vate copyright. But it was as little doubted by the court, that Mr. Wheaton had a copyright in his own marginal notes, and in the ar- guments of counsel as prepared and arranged in his work. The cause went back to the circuit court for the purpose of further inquiries as to the fact, whether the requisites of the act of congress had been com- plied with or not by Mr. Wheaton. This would have been wholly use- le.ss and nugatory, unless Mr. Wheaton's marginal notes and ab- stracts of arguments could have been the subject of a copyright (for that was all the work which could be the subject of copyright ;) so that if Mr. Peters had violated that right, Mr. Wheaton was entitled to re- dress." In 2 Story's Eq. Jurisp. ^ 939, the learned author says, " But what constitutes a bona fide case of ex- tracts, or a bona fide abridgment, or a bona fide use of common materials, is often a matter of most embarrass- ing inquiry. The true question, in all cases of this sort, is, (it has been said,) whether there has been a le- gitimate use of the copyright publi- cation, in the fair exercise of a men- tal operation, deserving the charac- ter of a new work. If there has been, although it may be prejudicial to the original author, it is not an invasion of his legal rights. If there has not been, then it is treated as a mere colorable curtailment of the original work, and a fraudulent evasion of the copyright. But this is another mode of stating the diffi- culty, rather than a test, affording a clear criterion to discriminate be- tween the cases." Mr. Chancellor Kent, referring to the case of Dodsley v. Kinnersley, says, " This lalitudinary right of abridgment is liable to abuse, and to trench upon the copyright of the author. The question as to a bona fide abridgment may turn not so much upon the quantity as the value of the selected materials." 2 Kent's Com. 382, note. Lord Campbell, in his Life of Lord Hardwickc, referring to the case of Gyles v. Wilcox, says ; "I must own that I much question an- other rule- he laid down with respect to literary property, although it has not yet been upset. . . I confess 1 do not understand why an abridg- ment tending to injure the reputa- tion and lessen the profits of the au- thor, should not be considered an invasion of his property." Camp- bell's Lives of the Chancellors, v. 56. ABRIDGMENTS. 271 William Blackstone, brief as the report of the case is. It is also to be admitted, that the result to which those learned persons came, is in accordance with the doctrine which had been previously recognized by Lord Hardwicke, and which seems, so far as the reported cases show, to have been tacitly received into the English law.^ There can be no doubt that the definition of an abridgment, given in the anonymous case in Lofft, is correct, in a critical sense. That the understand- ing must be employed in the act of "carrying a larger work into a smaller compass, and rendering it less expensive, and more convenient both to the time and use of the reader," and that when this is done, the person who does it exhibits, according to Lord Hardwicke, his own " invention, learning, and judgment," is obvious. But whether this can be done with any work really original and actually un- der the protection of copyright — whether the pro- perty of the original author can be taken, and the taking be justified, by any amount of learning, judg- ment, or invention, shown in the act by him who thus appropriates the property of another — is the great question which seems to be assumed, and not satisfactorily solved by these authorities. There are many modes in which the wrongful taker of another's property may exhibit vast talent and ingenuity, and even genius, both in the act of taking, and in the use ^ There has been no instance in resisted and examined willi refer- which tiie doctrine has been directly ence to principle. 272 LAW OF COPYRIGHT. which he makes of it ; so that he may really be said to have incorporated with it both his own labor and his own intellectual energy. But the question of original title is still apt inconveniently to recur in such cases. In like manner, invention, learning, and judgment are often shown in the appropriation of the literary labors of others ; but the courts have not hesitated, on this account, to ascertain what part of a book, laboring under suspicion, was taken from the complainant ; and if the title of the latter is made out, to grant redress, even to the destruction of all that the piratical author can call his own.^ In the case of a colorable curtailment of the original work, there may be the exercise of a mental operation, as well as in a professed abridgment ; and if the original author is injured by the latter, as well as by the former, it seems to be a very unsatisfactory answer in either case, to say, that his book has been made, by a mental operation, to wear the appearance of a new work. In both cases, the true inquiry is — Has anything been taken which belongs to another ? In either case, the form under which the original mat- ter reappears should be treated as a disguise ; and the extent of the transformation shows only the ex- tent to which the disguise has been carried, as long as anything remains which the original author can show to be justly and exclusively his own. ' See the cases of Gray v. Rus- Lewis v. Fullerton, 2 Beavan's R. sell, 1 Story's R. 11. Emerson v. 6. Mawman u. Tegg, 2 Russ. 385, Davies, 3 fStorys R. 7G8. Bram- 390. well V. Halcomb, 3 M. & Cr. 737. ABRIDGMENTS. 273 It is necessary, therefore, in this inquiry, to look, not to the origin of the right of literary property, for the right is to be assumed, but to what that right in- cludes. When the author of a book, of whatever kind, possessing the legal attributes of originality, has secured his copyright according t) the prevailing law of his country, he has secured the exclusive right to print and publish his own book.' In the jurispru- dence with which we are concerned, this right in- cludes the whole book and every part of it ; for we have seen, that there may be a piratical taking of extracts and passages, and that the quantity thus taken may be immaterial.^ It includes also, or may include, the style, or language, and expression ; the learning, the facts, or the narrative ; the sentiment and ideas, as far as their identity can be traced ; and the form, arrangement and combination which the author has given to his materials. These are, or may be, all distinct objects of the right of property ; and in every work of originality, likely to be abridged, or capable of being abridged, they are all important objects of that right. However im- perfectly the subject may have been regarded in former times, it is now, I think, to be regarded as settled, that whatever is metaphysically part or parcel of the intellectual contents of a book, if in a just sense original, is protected and included under the right of property vested by law in the author ; ' As to the legal stamlard of ori- * Ante, ginalily, see ante Ch. V. 274 LAW OF COPYRIGHT. and it is very material to observe, that the arrange ment, the method, the plan, the course of reasoning, or course of narrative, the exhibition of the subject, or the learning of the book, may be, according to its character, as much objects of the right of property, as the language and the ideas. ^ What then does the maker of an abridgment print, publish and sell, after he has made it ? He has been employed, according to the definition above quoted, " in retrenching unnecessary and uninteresting cir- cumstances, which rather deaden the narration;" that is to say, he has rejected what in his judgment are redundancies. Does this make him the author or proprietor of what remains ? If the work be a history, did he, the person abridging it, compile the materials into their present shape, and describe the course of events, and embody the whole of what constitutes the intellectual contents of the book, or are these things the product of another's labor, re- search and faculty of writing ? If it be a fictitious narrative, whose genius created the characters, and animated them with the sentiments which they utter, and invented the pleasing incidents of their mock existences, and wove the whole into the novel or ' Of course I do not mean to give can avail himself even of the learn- any encouragement to the idea that ing and information collected by the a man may api^ropriate to himself original author, by copying from learning that is open to every one, him without resorting to the com- er that\ny exclusive property can mon sources. See the cases of be acquired in a subject. The po- Gray v. Russell, 1 Story, U ; Em- sition of the text is that of the au- erson v. Davies, 3 Story, 7G8. thorities, that no subsequent writer ABRIDGMENTS. 275 the poem ; which exists as an intellectual whole, after as well as before the process by which " the unnecessary and uninteresting circumstances" are *' retrenched ?" Or if it be a work of science, or a treatise in any branch of knowledge, whose are the ideas, the course of reasoning and illustration, the plan and analysis of the subject, and the collection and arrangement of materials which constitute the identity of the book ? ^ These questions can have but one answer ; and if the abridgment, in any given case, consists solely in the reduction of the bulk of the volume, by the rejection of redundancies, it is a mere republication of a connected series of extracts, in a different juxtaposition from the original author's, to which the party had no title whatever. On the other hand, if the abridgment not only rejects re- dundancies, but also clothes the sentiments and ideas which may be left, in different phraseology, then it falls under the predicament of a colorable alteration, which cannot escape the censure of justice. When we consider the incorporeal nature of lite- ' Take the very case of Dr. John- and the Prince of Abyssinia, and son's Rasselas, and endeavor to ap- placed iheni in tlic Happy Valley, ply 10 ii Lord Apsley's rule, bear- and sent them forth in a series of inff in mind that the author and his gemlo trials and pleasing and sad assia^iis. during the existence of the perplexities, in the world beyond it^ copyright, had the sole right to reap walls ? Who wrote that narrative? the profits of the publication of the iS'ot, certainly, the Grub street hack, whole and every part of it. The who was employed to " leave out moral reflections ate left out, the the reflections." What he took and narrative goes into the CJenih'mans his employers published, was the Magazine Whose genius produced literary property of another, tiie thil sl;itely and immortal fiction? profits of which the law had not Who described and created the char- vested in them, actors of Imlac, and the Princess, 276 LAW OF COPYRIGHT. ra' y property, it will be apparent that no writer can make and publish an abridgment, without taking to himself profits of literary matter w^hich belong to another. It has been stated, in a fo /mer chapter, that literary property is an exclusive right to print a written composition, and to take the profits thereof after publication. The mere definition of an abridg- ment shows that the writer makes use of a compo- sition of which he is not the author ; for whatever he may have rejected as redundant, he does actually print, publish and sell, in an abbreviated form — and in a form abbreviated by the rejection of parts — a certain amount of literary matter, the profits of which exclusively belong to another. Moreover, the very form in which this matter is reproduced, of necessity tends to the injury of the true proprietor. The real object of most abridgments is to undersell the ori- ginal work. Cases are often met with, it is true, for which the apology is urged, that they are not de- signed to supersede the originals, and are not likely in fact to do so. But they are made to be sold; and if sold, it is at least as consistent with principle and analogy, to presume that the sale is injurious to the original author, as to presume that it is not. The argument that a purchaser would not have purchased the original, if the abridgment had not been thrown in his way, rests merely upon conjecture in most cases. The fact is not capable of proof by evidence, but can only be arrived at through the opinions of third persons. In the analogous cases of ABRIDGMENTS. 277 piracy by colorable alterations and disguises, the law does not stop to inquire whether the purchaser of the piratical publication would have bought the genuine work. It presumes damage, to just the ex- tent of the number of copies sold, and decrees the whole profits to the true proprietor. It also stops the piratical publication ; thereby declaring that the true proprietor shall not be exposed to the proba- bility and hazard of injury. In no case, after proof of piracy, has it been permitted to the defendant to show by evidence that his publication is not likely to injure the plaintiff, and therefore that he ought to be allowed to go on.^ * In the cases of extracts and quo- tations, where the amount taken is small, the question of injury may be an element in determining whetiier the court will treat the extract as a piracy ; but even there, as we have seen, if the extract may serve quoad hoc as a substitute for the original book, it is to be treated as a piracy ; and in a case of this kind, Lord Cot- tenham said, that the plaintilf was the person best able to judge of the question of injury himself, and that if the court clearly saw that any- thing had been done which tends to an injury, it being done against a legal right, the court would stop the defendant's publication. (Campbell r. Scott, 11 Simons, 31.) But in cases of piracy by copyinsr, imitation and cidorable alteration, the defence is wholly unavailable, that the pirat- ical pnl)lication is designed for a class of readers who would not have purchased the genuine wm-k, and it is rarely made. (See Folsom v. Marsh, '2 Story's R. 100; Mawman V. Tegg, -2 Russ. R. nS5 ; Campbell V. Scott, ut supra.) The juiisdic- tion of courts of equity, in cases of this kind, is founded upon the fact that the actual damages cannot be traced, and therefore in order to make the legal right effectual, the publication which violates it is pro- hibited altogether. (Wilkins v. Aiken, 17 Ves. 4"24 ) In France, undrr the law of July 19th, 1793, the publisher of a piratical book is condemned to pay to the true pro- prietor a suin equivalent to the price of 3000 copies of tiie original edi- tion. In other countries, there is a similar fixed standard of damages. In Helgium, tlw; number of copies is 300. Merlin Rep. de Jurisp. Tit. Contrefagon, torn. 3, p. 717, 718. In Prussia, the court is required to fix the indemnity, according to the circumstances, at a sum equal to the sales of from 50 to 1000 copies of the lawful edition, where the j)ro- prietor cannot prove that he has suffered greater damages. Renou- ard, Droits D'Auteurs, torn. 1, p. 271. In all these countries, these 278 LAW OF COPYEIGIIT. It is also to be considered, that the publication of an abridgment not only tends to injure the sale of the copies which the true proprietor has already published, but it also interferes with his use of his copyright, and with his power of disposing of it. His property in the original work includes the right to publish it in any form which he may see fit to adopt. He may choose to publish an abridgment himself; and his right to do so is perfect, since he is absolutely the proprietor of the matter embraced in his original work. His copyright must be held to have secured to him the right to avail himself of the profits to be reaped from all classes of readers, both those who would purchase his production in a cheap and condensed form, and those who would purchase it in its more extended and costly shape. To con- strue his right upon any narrower terms, would con- fiine him to the paper and print which he may have selected for the first issue of his work, and would deprive him of the profits on a cheaper form of pub- lication. If, therefore, he sees fit to publish his own work in a condensed form, as well as in its original and more elaborate shape, his right is clearly broad enough to give him the power to do so, and to take the profits of both forms of publication.^ penalties are in addition to the pen- I6ges d'auteur, concluira k recoun- alty of confiscalion ; and they pro- aitre que tons ces droits peuvent ceed upon the presumption of dam- ctrc ramen^s a vm droit unique, age, in all cases. cel\ii d'exploiter seul les produits ' " Un examen d6taill6 des droits v»^naux que I'ouvrafre est susceptible divers dont I'ensemble constitue le de procurer." Eenouard, tom. 2, domaine priv6 confer6 par les prive- p. 10. ABRIDGMENTS. 279 There are very few works, capable of being use- fully abridged, of which the right to publish an abridgment is not a valuable part of the copyright. If, during the existence of the copyright, the work is abridged by a stranger, the copyright is shorn of an incident, the loss of which may greatly affect its value as property. In this sense, therefore, an abridgment, without leave of the proprietor, seems to be a direct usurpation of his rights. The law can never presume that the author or proprietor will not avail himself of his right to publish his own abridg- ment. The correct presumption is, that the owner of any property reserves to himself every right inhe- rent in it, which he has not waived or ceded in some of the forms known to the law ; and in regard to literary property, publication alone is not a dedica- tion to the public of any right attached or incident to the property itself. These considerations are not a little fortified by the argument arising from the fitness of leaving the reputation of an author under his own care, or under the care of those to whom he sees fit to entrust it. An unlimited right to make abridgments deprives the author, while living, and his representatives after his decease, of their just control over his reputation, and consigns his works to reproduction in forms to which his assent is not asked and cannot be presumed, for no other purpose than the accommodation of the ava- rice of individuals and a fancied advantage to the public. Lord Mansfield did not disdain to resort to 280 LAW OF COPYRIGHT. the argument of fitness, with regard to the reputation of an author, in support of his right over his own productions. He held it to be one of the foundations of literary property.^ In short, the publication of a mere and professed abridgment, is an invasion of the rights of an author, in several ways. It pledges and compromises his reputation and responsibility, to the same extent as the republication of the original work. It makes use of his work to raise a competition which must always be dangerous, by bringing it in a contracted form within the reach of a larger number of purchas- ers ; and it creates a direct obstacle to the exercise of his right of giving the work to the public himself, under the form of an abridgment.^ I cannot but think, therefore, that the result to which English and American jurisprudence ought to come, upon this question, is, that an abridgment, in which the text, the plan, the ideas, arguments, nar- rative and discussion of an original author are repro- duced, in a condensed form, is a violation of his right of property.^ This position seems to be sustained by the doc- trine of a recent decision in England ; although some of the remarks which fell from the court apparently recognize the right of making an abridgment of some • Millar v. Taylor, 4 Burr. . ' Such an abridgment falls under See his observations, cited ante p. the class of piracies which the 84. French jurists call " partially iden- * See Renouard, Droits D'Au- tical " — Cuntrefa(jon partielle tden- teurs, torn. 2, p. 30 et seq. tique." Renouard, torn. 2, p, 30. ABRIDGMENTS. 281 kind, in the case of a book, as distinguishable from an abridgment or adaptation o^ music. When examined, however, the reasoning of Lord Lyndhm-st on this point, taken in connection with the point decided in the cause, will be found to give a different view of the general doctrine of abridgments, from that which has loosely prevailed in England for above a century. The defendant in this case had published portions of an opera, (which was under the protection of a copyright,) consisting of entire airs, and other por- tions consisting of whole bars, united with other bars of his own composition, the whole being arranged and adapted for dancing, in the forms of quadrilles and waltzes, and being described on the title-page as having been taken from the opera in question.' The defence involved most of the doctrines usually advanced in defence of abridgments. It was con- tended that the object of the defendant's publication ' " In support of the plaintiff's ed from, an air of the opera called case, the affidavit of Mr. Rodwell, ' Le pauvre Ivan.' He mentioned an experienced musician, was read, the several bars in which alterations With reference to tiie 57ih set of had been made, and stated that in quadrilles published by the defend- one instance there had been a change ant, he deposed that the second qua- of key. lie made similar statements drille was so completely similar to with respect to the other quadrilles an air of the opera called ' Gentille and the waltzes ; observing-, how- Muscovite,' that it was nearly note ever, that in one of the waltzes there for note the same, even to the ac- were sixteen bars which were not in companiments ; that the melody of tlie original air. lie concluded his the fourth quadrille was like another affidavit by saying, that alihough in air of the opera, with some varia- several inst:inces the music of the tions in certain bars, which he spe- quadrilles in question was slightly cified ; and that the melody of the varied from the airs of the operii, yet fifth quadrille was contained in cer- such variation was not more tlian is tain bars of the overture, which he always found to be necessary wiien specified. With reference to the 58lh the music of an opera is arranged in set, he said that the first (luadrille the form of quadrilles.'' 1 Younge was founded on, though much vari- & Coll. 290. 24* 282 LA.W OF COPYRIGHT. was different from that of the plaintiff's; that the defendant had adapted and arranged the music which he had taken from the plaintiff's opera, for dancing, to which it w^as not adapted in the original work ; that such arrangement and adaptation involved much labor, musical knowledge, and skill ; that the de- fendant had only taken certain airs and melodies, whereas the plaintiff's copyright embraced the entire opera, which consists not merely of certain airs and melodies, but of the whole score.^ The court applied to this case the principle which I have endeavored to keep in view in the preceding observations. The air, or melody, in music, is the invention of the author ; it may be the subject of piracy, because in taking it, the taker appropriates what another, and not he, has invented ; and a piracy is committed if so much is taken as constitutes the meritorious part of the invention, whether it be the whole invention or the whole of a distinct part of the invention. Upon the ground that the defendant had taken consecutive bars, forming the entire air or melody, an injunction was granted.^ 1 In music, the form called the entire airs ; and that in one of his score i3 when the work contains the waltzes he has introduced seventeen whole of the music to he used hy all bars in succession, containing the the performers collectively with their whole of the original air, although seA'eral instruments. he adds fifteen other bars which are * D'Almaine ?'. Boosey, 1 Y. & not to be found in it. Now it is Coll. 288, 300, in tlie Exchequer, in said that this is not a piracy, first, Equity. Lord Lyndhurst, L. (3. B. because the whole of each air has said, "It is admitted that the de- not been taken ; and, secondly, be- fendant has published portions of the cause what the plaintiflf purchased opera containing the melodious parts was the entire opera ; and the opera of it ; that he has also published consists, not merely of certain airs ABRIDGMENTS. 283 Lord Lyntlluirst, in his judgment on this occasion, !id not refer to any particular works, or class of and melodies, but of the whole score. But, ill the liist place, piracy may be of part of an air as well as of the whole ; and, in the second place, admittincr that the opera consists of the whole score, yet if the plaintifTs were entitled to the whole, a fortiori they were entitled to publish the melodies which form a part. Ag'ain, it is said, that the present publica- tion is adapted for dancing only, and that some degree of art is needed for the purpose of so adapting it ; and that but a small part of the me- rit belongs to the original composer. That is a nice question. It is a nice question, what shall be deemed such a modification of an original work as shall absorb the merit of the original in the new composition. No doubt such a modification may be allowed in some cases ; as in that of an abridgment or a digest. Such pub- lications are in their nature original. Their compiler intends to make of them a new use ; not that wliich the author proposed to make. Di- gests are of great use to practical men, though not so, comparatively speaking, to students. The same may be said of an abridgment of any study ; but it must be a bona fide abridgment, because if it contains many chapters of the original work, or such as made that work salable, the maker of the abridgment com- mits a piracy. Now it will be said that one author may treat the same subject very dlfTerently from another who wrote before him. That ob- servation is true in many cases. A man may write upon morals in a manner quite distinct from that of others who preceded iiim ; but the subject of music is to be regarded upon very different principles. It is the air or melody which is the in- vention of the author, and which may in sucii case be the subj(;ct of piracy ; and you commit a piracy if, by taking not a single bar, but seve- ral, you incorporate in the new work that in which the whole meritorious - part of the invention consists. I remember in a case of copyrijjht, at nisi pnus, a question arising as to how many bars were necessary 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 compo- sition of an author all those bars consecutively wliich form the entire air or melody, without any material alteration, it is a piracy ; though, on the other hand, you might take them in a diflerent 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- transferring it from one instrument to another, does not, even to com- mon apprehensions, alter the original subject. The ear tells you that it is the same. The original air requires the aid of genius for its construc- tion, but a mere mechanic in music can make the adaptation or accom- paniment. Substantially, the pira- cy is. where the appropriated music, though adapted to a diflerent pur- pose from that of the original, may still be recognized by the ear. The adding variations makes no difier- ence in the principle." 284 LAW OF COPYRIGHT. works, presenting instances of what he would con- sider bona fide and allowable abridgments. Whether he had reference, as would seem, to such works as are called abridgments in the law,^ or to a more nu- merous class, in which some one existing work is reproduced under a merely condensed form, it is clear, that the principle upon which he decided the cause before him brings the doctrine in relation to abridgments, within far more restricted limits than had previously been assigned to it. The broad doc- trine of the case of Gyles v. Wilcox, and the still broader doctrine in the anonymous case in LofFt's Re- ports, would have justified the use which the defendant made of the plaintiff's music, but for the single quali- fication which Lord Lyndhurst has introduced. He admits the general right to use, in the way of abridg- ment or digest, what a previous writer has created ; but if a considerable portion of that which consti- tutes per se the invention of the author, is taken, although it be adapted to a different purpose, a pira- cy is committed. The distinction which he makes between music and a literary composition seems to be merely that an air or melody in music is the pure ' During the argument, upon the ments, it is a piracy, and an action case of Gyles v. Wilcox being cited will lie. This is not like the case of by the defendant's counsel, in sup- an abridgment of a book. The pur- port of the doctrine that an adapla- pose of abridgments is very distinct tion of an original work to new pur- from that of the works from which poses is not a piracy, his lordship they are taken. No one can doubt made the following remarks: "I that Viner's Abridgment and Co- think that if the original air is pub- myn's Digest are original works." lished, though with adaptations and Ibid. p. 296. harmonies, or for different instru- ABRIDGMENTS. 285 invention of the author, and there is no ground of a common subject for a subsequent composer to fall back upon ; whereas, in literature, although the par- ticular composition is original, and exclusively the fruit of the author's mind, the sul)ject is common to all men, and may admit of distinctions between the modes of treating it, whicJi music will not admit of. In literature, therefore, some weight is to be given to the circumstance that the purpose to which a sub- sequent writer adapts the materials which he finds in an original author, is of itself new. But, accord- ing to his lordship, even in literature, if material parts of what constitutes the subject of an author's property be taken, although with a new adaptation, a piracy is committed. If this be so, then it is highly important to inquire how far the supposed right to make what is called a bona fide abridgment is affected by the doctrine laid down by Mr, Justice Story, that an original author may have copyright in the plan of his book. In the case in which this doctrine was laid down, the plaintiff was the author of an arithmetic con- structed upon a peculiar plan. He claimed, as his own invention, the plan of the lessons, which con- sisted in the peculiar arrangement of a set of tables, with a gradation of examples placed in a particular manner, to teach and illustrate the combinations of numbers ; and this plan and arrangement he alleged had been borrowed and imitated by the defendant. The defence consisted in showing, that the materials 286 LAW OF COPYRIGHT. and some of the modes of illustration used by the plaintiff could be found in other books ; but the court held, that this was entirely immaterial, if the mate- rials and modes of illustration had never been before united in one combination, in the manner in which the plaintiff had united and connected them ; and declared, that no person had a right to borrow the same plan and arrangement and illustrations, and servilely to copy them into another work.^ What- ^ Emerson v. Davies, 3 Story's R. 768, 783. This subject of copy- right in the plan or method of a book is so evanescent and metaphys- ical, that it is nearly impossible to state with precision the abstract doc- trine of the law in regard to it, if indeed the law upon this point may yet be considered as developed or settled. Before the case of Emer- son V. Uavies was in print, a mas- ter's report was made, in the same court, in another case, by Charles Sumner, Esq. containing the follow- ing able discussion upon the ques- tion, whether there can be copy- right in a mere plan, independent of materials : " And the first ques- tion that arises is the general ques- tion, whether the plan, combination, or arrangement of a book, indepen- dent of the materials and language, is susceptible of copyright. Import- ant as this question may seem to be, it does not appear to be illustrated by the light of decided cases. The case of Hogg v. Kirby, 8 Yes. 215, has been thought to exclude the conclusion that the plan of a book was the subject of copyright ; but the injunction granted in this case seems not to have been founded on copyright, but on the power of the court to restrain a party from carry- ing on a trade, or from publishing a work, under a fraudulent represen- tation that such trade or work was that of the plaintiff. (See Ibid, note, Sumner's edition.) The case of Gary v. Faden, 5 Ves. 23, recog- nizes a copyright in a road-book ; but it was in the plan in combina- tion with the materials. The case of Gray v-. Russell, 1 Story, says that a work may be the subject of copyright, although the materials which compose it may be found in the works of other authors antece- dently printed, provided the plan, the arrangement, and the combina- tion of those materials be original ; but even this case does not decide the distinct question whether apian, independent of the materials to which it is applied, and on which it is wrought, is a subject of copyright. " In the absence of any govern- ing authority, the question must be regarded in tlie light of principle. It cannot be disguised that the plan of a book is often a peculiar part of its merits. Some authors receive high commendation merely for the arrangement of their subject, de- scending even to such particulars as the division into chapters and sec- tions ; and again even into the fur- ther division of paragraphs. This is applicable to historical compositions as well as to scientific and philo- ABRIDGMENTS. 287 ever may be the case, where a subsequent writer, taking only the plan or method of a previous author, uses different materials and illustrations, and adapts them to some plan, it is obvious that a real abridg- ment of a scientific treatise, for example, must bor- row both the plan and method, and the literary mat- ter, in the same combination and arrangement, from the original work ; otherwise it is not an abridg- ment, and is to be judged upon different rules. It sophic productions. Tt would be difficult, however, if not impossible, to hold a subsequent writer amena- ble to any other tribunal than that of criticism, who should write an- other work on the same subject in language of his own, but cast in the same chapters and sections. In- deed, the law in such a case as I am now supposing, seems to be clearly settled in the matter of abridij- meiUs. An honest abridgment is admitted to be no violation of the copyright of the work aliridged ; but the very idea of an abridgment im[ilies the preservation of llie ori- ginal plan, arrangement and combi- nation, abridged, or reduced to a smaller scale. Indeed, it will cease to 1)0 an abridgment exclusively, if it does not preserve these features; as a miniature would fail to l)e a portrait, if the original proportions and traits of the countenance are not represented. In making an abridg- ment of Mr. Trving's Life of Colum- bus, or Mr. Bancroft's History of the United States, the natural and inevi- table course would be to follow their plan, to walk by their light, to keep firm hold of the thread which ihey have provided in their narratives ; to adopt their mode of developing the subject ; to rely upon their divi- sions ; to lean upon all the land- marks which they have set up ; in short, to abridge their works, by preserving, as far as possible, the original peculiarities in a smaller compass. Perhaps no class of works are subjected to abridgments more than dictionaries, nor has any per- son questioned the lawfulness of such abridgments ; but they cannot fail to preserve the plan, arrange- ment, and combination of the origi- nal dictionary. Take, for instance, the recent extensive and most im- portant dictionary of the English languaofe, by Richardson, which is on a plan entirely new, I believe, as applied to the English language. Can it be doubted that an abridgment of this work might be made, re- ducing its two quartos to a sincrle octavo, in which its peculiar plan should be preserved? Nor does it seem to me that it can be doubted that another dictionary, of another language, or even of the English language, may be made on Richard- son's plan, which shall not be an abridgment, but shall be founded on fresh labor and fresh materials." See Law Reporter, (Boston) vol. x. pp. 15;j-15G, note. Webb and Gray ?•. Powers and Baglev, S. C 1 Wood- bury's R. 288 LAW OF COPYRIGHT. seems to me, that when an author takes a scien- tific subject, however common it may be to all other writers, and upon a peculiar plan and with a distinct classification, produces a treatise novel in its method of teaching and exhibiting the subject, he has a right of property in what may be called, (by a not happy illustration,) the skeleton of his book, which is ne- cessarily invaded by a condensed reproduction of the same treatise. This is what takes place in the making of a real abridgment. To these views should be added the support derived from the laws of several of the continental nations. In France, the question seems to be one of con- struction ; but there can be little doubt that the text of the law of 1793, which secures to authors the ex- clusive right of selling their works, and of ceding the proprietorship, in whole or in part, will author- ize the conclusion that an abridgment is an injury to the proprietorship.^ This opinion is maintained by M. Renouard, whose work on the Rights of Authors I have so often cited.^ In Belgium, abridgments are expressly included, by the text of the law, among the rights of authors, which are forbidden to be violated.^ ' " Les auteurs en tout genre, les priet6 en tout ct en partie." Dccret compositeurs de musiquc, les pein- du 1!) Juillel, 1793, art. 1. tres et dessinateurs qui feront nra- * Tom. ii. p. 29-34. ver des tableaux ou dessins, joiiiroul ^ " Le droit de copie ou le droit diirant leur vie cntiere du droit ex- do copier au moyen dc I'impression clusif de vendre, fair vendre, distri- est, pour ce qui coucerne les ouv- buerleursouvrages dans If! territrire rages originaux, soit productions de la r<^ipublique et d'en cedcr la pro- litt6raires ou productions des arts, ABRIDGMENTS. 289 The Prussian law, (the most elaborate code on the subject of literary property in the world,) besides declaring that the exclusive rights of an author in- clude the right of multiplying his work, already published, " in whole or in part," enumerates what shall hot be considered infringements of this right, and does not place abridgments among the excep- tions.^ It seems to be highly probable, therefore, that in Prussia, the license of abridging another man's work is wholly unknown. In Russia there are similar enactments to those of the Prussian code, and among the enumerated offences, it is declared that an edition of a dictionary in which the greater part of the definitions, explana- tions and examples is actually copied from a work of sonmis au droit exclnsivement re- de I'auteur ou de ses ayant-droit : serve ^ leurs auteurs et a leurs a. De manuscrits de tout genre ; b. ayant-cause, de rendre pulilics par De sermons prononc^'s ou de cours la voie de 1' impression, de vendre, profess^'s oralcment, et Merits par un ou de faire vendie ces onvrag-es, en des auditeurs, soit que la piiblica- tout ou en parlie, par abrege ou sur tion ait eu lieu sous le voritalde nom une echelle rediiite. en une ou plu- de Tauteur, soit qu'elle ait ite faite sieurs langufs, orn^s ou non orn<^'s sans son nom. Cette approbation de gravures et autres acnessoires de est meme n^cessaire au possesseur I'art." Law of the 25th Jan. 1817, legal d'un manuscrit ou de sa copie cited Renouard, torn. i. p. 249. (frt/re a) ou de seimons ou cours ' " M- Le droit de lairc imprimcr Merits {Icltre h). ^4. Ne soni point de nouveau ou de faire muliiplicr par consid^rees comme contrefa^ons : 1. un proce le ni^canique quelconque La citation litterale de pas-ages iso- tout on parlie d'un ecrit di'ija public, les d'un ouvrage deja imprini*!; , 2. appartient exclusivt mcnt i son au- La rtproduction d'articles isol«^s, de teur, ou h. ceu.xqni tireiit leurs droits poe.sies. etc , dans les ouvraL'es ayant de Ini. ^ 2 'I'oute multiplication pour objei la critique ou I'histoire nouvelle, si elle a lieu sans lappro- litteraire, ou dans des rccueils i\ hation de Tayant-droit exclnsif, se I'usage dos ^colcs ; 3. La publica- nomme conlrefi^on et est d(*fendne. tion de traductions d'ouvrases d«^jk ^ 3. Est r^put^f enntrcfa^on, et est, imprimes." Law of the Uth June, par consequent, d-ji^alcmcni defendne 1837. Renouard, toni. i. \i. 'jriO. rimpression faite sans Tapprobation 35 290 LAW OF COPYRIGHT. the same kind, enjoying the protection of copyright, shall be deemed a piracy.^ A translation from a work not under the protec- tion of copyright in the country where the transla- tion is made, of course infringes no one's rights ; but it is a very interesting and important question, whether a translation be not an infringement, where the orignal is protected. ' " Est 6galement r6put6 contrc- facteur : 1° quiconque, sous le titre deseconde ou troisitiine, etc. edition, impriiiie un ouvrajre d6j^ public, sans ol)server les conditions ci-dcssus indi(juecs; 2" quiconque, ayant re- impriiue a I'etranger un ouvraa^e put)li6 en Russie, ou avec la permis- sion de la censure russe, meme en y ajoutant une traduction, vendrait en Russie des exemplaires de cette r6- impression sans le consentemcMit par 6crit de T^diteur l^jriiime ; 3" qui- conque, sans le consentenient de I'auteur, imprinic un discours ou toute autre composition prononc6e ou lue en public ; 4 " Ic journaliste qui, j\ litre d'analyse, ou sous tout autre pr6texte, reimprime constam- ment et en entier de petits articles pris dans d'autrcs publications, lors m6me que ces articles ne formcrai- ent pas une feuille d'impression ; mais une r6impression accidentelle d'un article d6tach6 ayant moius d'une feuille d'impression, comme aussi la reimpression de nouvelles politiques, de litt6raiure, de sciences ou d'arts, avec indication des sources, n'est pas interditc. L'insertion, dans les chrestomaties et autrcs liv- res scolaires, d'articles ou extraits quelconques d'autres auteurs, n'est pas r^putfee contrefa Morris v. Kelley, 1 Jac. & W. * Wilkins v. Aiken, 17 Ves. 422. 481. Bramhall v. Ilolcomb, 3 M. & Cr. « Gilliver v. Snaggs, 2 Eq. Abr. 737. 522. 4 Viner's Abr. 278, A. 4. " Ibid. Universities of Oxford and ' Morris v. Kelley, 1 Jac. & W. Cambridge v. Richardson, 6 Ves. 481. 089, 707. * Mawman i). Tegg, SRuss. 385. REMEDY BY INJUNCTION, 317 the legal right, does not grant the injunction before a trial at law, where it would work an irremediable injury to the defendant.^ ' Spottiswoode v. Clarke, 2 Phil- lips's Ch. R. 151. In this case the lord chancellor laid down the prin- ciples which ought to govern the discretion of the court, as follows : " I have often expressed my opinion that unless a case of this kind, de- pending upon a legal right, is very clear, it is the duly of the court to take care that the right he ascer- tained hefore it exercises its juris- diction by injunction. The first question to be determined is as to the legal right, and if the court doubts about that, it may commit great injustice by interfering until that question has been decided. " One objection to that course is, that it compels future litigation, for it orders the plaintiff to bring an ac- tion ; whereas, by adopting the al- ternative course — suspending the injunction, with liberty to the plain- tiff to bring an action — it enables him to pause a little, and consider whether it is worth his while to em- bark in such a course of litigation as will be necessary to establish the right on which he insists. A se- cond objection is, that the court, in granting the injunction, is express- ing a strong opinion upon the legal question, before that question is dis- cussed in the proper tribunal. It is much oettcr, if the legal right is to be litigated, that this court should abstain from expressing any opinion upon it in the mean tiiue. " But the greatest of all objections is, that the court runs the ris-k of do- ing 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 27* sale for the ensuing year. If you restrain the party from selling im- mediately, you proba!)ly make it im- possible 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 indemnify- ing him, by making the defendant keep an account ; whereas, if the defendant be right, and he be re- strained, it is utterly iin possible to give him compensation for the loss he will have sustained. And the effect of the order in that event will be to commit a great and irremedia- ble 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 ex- ercising its jurisdiction till the legal right has been determined. " In the course of the argument cases of trade-marks were referred to ; but trade-marks have nothing to do with this case. Take a piece of steel : the mark of the manufacturer from which it comes is the only in- dication to the eye of the customer of the quality of the article ; so it is of blacking, or any other article of manufacture, the particular quality of which is not discernible by the eye. But these cases arc quite different from the present case, in which, if you are deceived at all, it is not by the eye. The size, the color, the engravings arc all differ- ent in the two works, so that no one who sees the two could mistake the one for the other. At the same time I must say, that there is in the de- scriptions given of the two works a very rcmarkal)le coincidence of ideas in the plaintiff and defendant, if the 318 LAW OF COPYRIGHT. It seems to have been Lord Eldon's practice, not to grant an injunction before trial, where the doubt as to the plaintiff's legal right arose from the char- acter of the work. In one case, having, from in- spection of the book, a doubt whether it would be held entitled to protection at law, because it im- pugned the doctrine of the immortality of the soul, he refused to assist such a doubtful right by injunc- tion.^ So, also, in Mr. Southey's case, he acted upon the same doctrine, without considering it ne- cessary to determine positively whether the work was innocent or not, although the author had never published it, and wished to restrain its publication altogether, having changed his opinions.^ Even in cases where the plaintiff can only have an injunction, and from any cause it should be im- possible to take an account, the plaintiff is entitled to the injunction.^ So, too, where the injury is only threatened, the party has a right to the injunction, to prevent that mischief, if the circumstances war- rant it, though no account is required to be taken.^ two wrappers be supposed to have Therefore the injunction must be been designed independently of each dissolved, the defendant keeping an other. It is difficult to believe that account, and the plaintiff to be at that was pure accident; though if liberty to bring an action." any fraud was intended, it certainly • Lawrence v. Smith, Jacobs R. was a very clumsy one. 471. "I am not, however, so satisfied " Southeyw. Sherwood, 2 Meriv. that this is a case in which the plain- 435. tiff has a legal right against the de- ' Universities of Oxford andCam- fendant as to justify me in restrain- bridge v. Richardson, 6 Ves. C89, ing the latter from the sale of his 707. work, until that right has been es- * Ibid, tablished in the proper tribunal. REMEDY BY INJUNCTION. 319 But wherever an injunction is granted, the plaintiff is entitled to go on and take the account, as incich n- tal relief, in addition to the relief by injunction.^ It has also been suggested, by Lord Eldon, that in some cases it may be proper to direct an issue of quantum damnificatus, where the plaintiff can bhow that the profits handed over to him by the defendant are not a satisfaction for the injury done to him.- The court will not interfere by injunction in the first instance, where the plaintiff has for a long time acquiesced in the violation of his rights, but will leave him to an action at law ;^ and where the con- ' Grierson v. Eyre, 9 Yes. 341. Universities of Oxford and Cam- bridge V. Richardson, 6 Yes. 705, 706. Baily v. Taylor, 1 Russ. & M. 73. Siieriffi'. Coates, 1 Russ. & M. 159. 2 Story's Eq. Jurisp. § 933. Eden on Injunctions, ch. xii. p. 2G1, ch. xiii. p. 304. ' Mauman v. Tegfj, 2 Russ. 385, 400. The following are his lord- ship's observations : "Another way of ascertaining the facts of the case is to send it to a jury ; and, in either of those ways of disposing of it, the cdurt will order the defend- ant to keep an account of the prolits in the mean time. But one dilfi- culty in all these cases is, that though keeping an account of the profits may prevent the defendant from deriving any profit, as he may ultimately be obliged to account to the phiintiir for all his gains, yet if the work which the defendant is publishing in the meantime, 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 sat- isfaction 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 the defend- ant, as compared with the profits which he, the plaintiff, has been improperly prevented from making, could only be in the proportion of eight shillings, the price of a copy of the one book, to one guinea, tlie price of a copy of the other. ]f the principle, upon which the court acts, is, that satisfiiction is to be made to the plaintiff, 1 cannot see, though I never knew it done, why, if a party succeeds at law in proving the piracy, the court should not give him leave to go on to ascertain, if he can, his dainages at law : or if, after applying the profits whicii are handed over to him by the delend- anls, he can show that they were not a satisfaction for the injury done to him, I cannot see why the court might not in such a case direct an issue to try what further damnifica- tion the plaintiffhad sustained." ^ Piatt V. Button, 19 Yes. 147. Rundell V. Murray, Jacobs R. 314. 620 LAW OF COPYRIGHT. duct of the plaintiff has been such as to induce the defendant to believe that the publication of the latter would not be objected to, the court will not interfere by injunction, until after a trial at law.^ Where there is a dispute as to the construction of an agreement between the parties, the court will not grant an injunction, until the effect of the agreement has been established at law." Where the plaintiff states circumstances which are not denied, showing that he is entitled to an equita- ble copyright in a work, the court, in directing an action to be brought by him, to determine the ques- tion of piracy, will direct the defendant, for the pur- poses of the action, to admit a legal copyright in the plaintiff.^ In exercising its jurisdiction, the court has first to decide whether there ought to be an injunction ; and if there is to be an injunction, it has next to deter- mine, whether the injunction shall be against the whole work, or only against a part of it. The ex- tent to which the injunction ought to go, must in each case depend on the particular circumstances of that case.^ The manner in which the injunction is to issue, and the extent to which it is to be applied to the But if the delay in making npplifa- ^ Walcott v. Walker, 7 Ves. 1. lion to the court can be acconnted Lowndes r. Duncombe, 1 Law Jour, for, the plaintiff will lose none of his 51. rights. Mavvman v. Tegg, 2 Russ. '■^ Sweet v. Shaw, 17 Law Journ. 393. 216. ' Saunders v. Smith, 3 M. & Cr. ^ Mawman v. Tegg, 2 Russ. 393. 711. REMEDY BY INJUNCT ON. 321 work of the defendant, may cause some embarrass- ment, where a part only of the defendant's book has been borrowed from that of the plaintiff. The gen- eral principle upon which the court proceeds in the exercise of its jurisdiction, is, that in order to amount to an infringement, so that an injunction ought to be granted, it is not necessary that there should be a complete copy or imitation throughout ; but only that there should be an important and valuable por- tion, which operates injuriously to the copyright of the plaintiff.^ Wherever it appears by sufficient evi- dence that a copyright exists, and that piracy has been committed to an extent which is likely to be seriously prejudicial to the plaintiff, an injunction ought to be granted, the extent of which must de- pend on the amount of the piracy proved, and the nature of the work.~ ' Emerson w. Davics, 3 Story's R. been ascertained that the defend- 768, 795; Wilkins v. Aiken, 17 ant has in any decree violated the Ves. 42-2; Bramhall v. Holcomb, 3 right of the plaintiff, the nature and M. & Cr. 737 ; Campbell v. Scott, extent of the order to be made must 11 Simons, 31 ; Mawman v. Tegg, depend on the circumstances of the 2 Russ. 38.'), 397, 400. In Camp- cases, and the amount and extent of bell I' Scott, Lord Cottcnham said, the evidence adduced. The piracy " If the court clearly sees that there proved may be so inconsiderable, has been anything done which tends and so little likely to injure the plain- to an injury, I cannot but think that tiff, that the court may decline to in- the safest rule is to follow the legal terfere at all, and may leave the right and grant the injunction." plaintiff to his remedy at law; or Sir .1. Leach, .V. C, directed an in- the piracy proved may be extensive junction, to "restrain the publica- in a greater or less degree, such tion of any works or work in which as to leave it extremely doubtful the matter of the plaintiff's publica- whether the parts not examined are tion, or any part thereof, was ver- in any degree piratical, or such as to bally or substantially introduced." make it more or less probable that See Pinnock x\ Rose, cited 2 Bro. they have been coiuposed in the Ch. R. 85, n. same manner, collected from the * Lewis I". Fullerton, 2Bcavan,6. like sources as the parts which have Lord Langdale, M. R., in this case, been examined, and are in an equal said, " I conceive that when it has degree liable to the charge of piracy. 322 LAW OF COPYRIGHT. Notwithstanding the eflfect of an injunction against parts of a book may be to destroy it altogether, if " The hardship of restraining, or doing that which is equivalent to re- straining the whole of a work, when part of it consists of original mat- ter, has always been urged in cases of this nature, and the answer which is given by Lord Eldon, in the case to which I have already referred, seems conclusive : ' If the parts which have been copied cannot be separated from those which are original without destroying the use and value of the original matter, he who has made an improper use of that which did not belong to him must suffer the consequences of so doing ; if a man mixes what belongs to him Avith what belongs to me, and the mixture be forbidden by the law, he must again separate them, and he must bear all the mis- chief and loss which the separation may occasion. If an individual chooses in any work to mix my lit- erary matter with his own, he must be restrained from publishing the literary matter which belongs to me ; and if the other parts of the work cannot be separated, and if by that means the injunction which re- strained the publication of my lite- rary matter prevents also the publi- cation of his own literary matter, he has only himself to blame.' " In cases of this nature, it must be observed, that nothing but an in- junction can sufficiently protect the injured party. In the same case Lord Eldon has observed that, ' though keeping an account of the profits rnay prevent the defendant from deriving any profit, as he may uUimalely be obliged to account to the x>laintiff for all his gains, yet if the work which the defendant is publishing in the meantime 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 the defendant, as compared with the profits which he, the plaintiff, has been improperly prevented from making, could only be in the propor- tion of the price of a copy of the one book to the price of a copy of the other.' On the whole, for the reasons thus stated, it appears to me, 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 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 pub- lishing the whole or any part of the defendant's gazetteer. As it ap- pears from the evidence that there arc parts of the defendant's gazet- teer which are not borrowed from the plaintiff's work, I cannot grant an injunction in those terms ; and it becomes a question, whether an in- junction should be granted in gen- eral terms against such parts as have been pirated, or whether means should be taken to ascertain what particular parts have been pirated, in order that the publication of those particular parts may be restrained. Now it appears to me, not, it must be admitted, by absolute proof and demonstration, for the two works have not been examined in every part, but upon proof and demonstra- REMEDY BY INJUNCTION. 323 the piracy is proved, these consequences will not avert the injunction, even if the other parts of the book be wholly original.^ tion as to part, and as to the rest by strong inference and presumption, arising from the proof given as to those parts to vvhicli tlic proof ap- plies, and from the nature of the work and the circumstances under which it is proved to have been com- posed, 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 cha- racter as a gazetteer. "If the defendant were desirous to avail himself, as he has an un- doubted right to do, of any original matter of his own, or of any matter which he has fairly taken from other sources, he would, I think, be under the necessity of recomposing his work, for the purpose of sepa- rating tbat which appears to me to have been improperly taken from the plaintiff's work. Lord Eldon says, (2 Russ. 399.) ' In the cases which have come before me, my lan- guage has been, that there must be an injunction against such part as has been pirated, but in tliose casps the part of the work which was affected with the character of piracy was so very considerable, that if it were taken away, there would have been nothing left to publish except a few broken sentencjcs ; ' and it was be- cause the evidence before him did not enable him to approach suffi- ciently 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 pending, and having read with great care all the affidavits laid before me, and more particularly tlie affidavits of Mr. Ilolliday and Mr. Cunning- ham, I think that I have reasons on whif'h I ought judicially to act, for considering, that the parts of the works which have been examined and compared, afford fair indications of the nature and character of those parts of tiie works which have not yet been examined and compared; 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 sonlencos. 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 in- junction, to restrain the publication of the parts which are pirated, with- out wailing till all the parts which have been pirated can be distinctly specified ; and therefore the order whicli I shall make will be : Let the defendant, his agents, servants and workincn be restrained from further printing, publishing, selling or otherwise disposing of any copy or copies of a book called ' A New and Comprehensive Gazetteer,' &c., containing any articles or article, passaijps or passage, copied, taken or colorably altered from a book called 'The Topographical Diction- ary of England,' published by the plaintiffs." ' In Mawman v. Tegg. 2 Russ. 390, Lord F.Uion said, " As to the hard consequences which would fol- low from granting an injunction, 324 LAW OF COPYRIGHT. The court, however, seldom grants an injunction against the whole of a work, without having first as- certained, either by inspection or by reference to a master, the quantity of matter pirated. Where the extracts are trifling, the court will not interfere.* But in order to ascertain how the injunction is to be applied, the quantity of matter pirated by the de- fendant ought to be ascertained.^ Where, however, a considerable portion of the defendant's publication has thus proved to be pirated, the court will grant an injunction to restrain the publication of the parts which are pirated, without waiting till all the parts pirated can be ascertained.^ In a later case, the alleged piracy consisted in taking from a periodical work devoted to reports of cases in the courts of law. It was objected that the plaintiff did not specifically point out what were the articles in which he claimed copyright, but the court held that was not necessary, as in voluminous works when a very large proportion of the mix my literary matter with his work is unquestionably original, I own, he must be restrained from can only say, that, if the parts, which publisliing the literary matter which have been copied, cannot be sepa- belongs tome; and if the parts of rated from those which are original, the work cannot be separated, and williout destroying the use and value if by that means the injunction, of the original matter, be who has which restrained the publication of made an improper use of that which my literary matter, prevents also the did not belong to him must suffer publication of his own literary mat- the consequences of so doing. If a ter, he has only himself to blame." man mixes what belongs to him with See also Emerson v. Davies, 3 what belongs to me, and the mixture Story's R. 708,795,796; Folsom be forbidden by ihe law, he must v. Marsh, 2 Story's R. 100, 119. again separate them, and he nuist ' Bell u. Whitehead, 17 Law J. 141. bear all the mischief and loss which * Mawman v. Tegg, 2 Russ. 398. the separation may occasion. If an ^ Lewis v. Fullerton, 17 Law J. individual chooses in any work to 291 ; S. C. 2 Beavan, 6. REMEDY BY INJUNCTION. 325 the practice is to point out some specific acts of pi- racy, as evidence of infringement, and then, if the injunction is granted at all, it is granted gener- ally.^ In general, if the court sees strong ground for sup- posing that the defendant's work is a violation of the plaintiir's copyright, the course is, to grant an injunction ex parte, until answer or further order. Then, in order to ascertain the fact of piracy or no piracy, it is referred to a master to examine into the originality of the wqw book,^ or the court takes upon itself the inspection of both works.^ Where the works are long and of a complex character, contain- ing original matter mixed with much that is common property, they will be referred to a master ; ■* but where they are of a class affording facility for the detection of piracy by immediate inspection, the court will examine them.^ This is the practice in the courts of the United States, as well as in England.*^ When the master reports that the two books are in parts different and in parts the same, an injunc- tion will be granted against those parts of the de- fendant's book, which are similar to parts of the ' Swecl V. Mangham, 9 Law J. * v. Leadbetter, 4 Ves. 681. 323 ; 4 Jurist, 47U. ' Butterworlli v. Robinson, 5 Ves. * Carnan ij. Bowles, 2 Brn. C. R. 709; Whiltingham v. Wooler, 2 80; 1 Cox, 283 ; Bell i\ Walker, I Svvanst. 431. Br. C. R. 451 ; v. Leadbetter, ^ Gray v. Russell, 1 Story's R. 4 Ves. 681. 11 ; Folsom v. M:irsb. 2 Story's R. ' Buttervvorth v. Robinson, 5 Ves. 100 ; Kmerson v. Davies, 3 btory's 709. R. 768. 38 326 LAW OF COPYRIGHT. plaintiff's.^ But where the master reported that the books were not the same, but that one was a de- scription of roads by letter press, and the other a de- scription as to the greater part by maps, and as to the remainder by letter press, but that the roads were in substance the same, the court referred it back to the master, to inquire whether the defendant's was a new and original work." Courts of equity do not redress, by the summary process of injunction, injuries of a very trifling cha- racter, but leave the party to his remedy at law. Thus, where the defendant had, in two numbers of a periodical work of theatrical criticism, inserted de- tached extracts, to the extent of six or seven pages, from a farce, the property of the plaintiff''s, contain- ing forty pages, interspersed with criticisms, a bill for a perpetual injunction and an account of the pro- fits of the numbers, which amounted to not .£3, was dismissed with costs.^ So too, where the defendant had copied from the plaintiff's work, certain tables of calculations, and it was in evidence that the tables might be calculated anew in a very short time and at an expense of about <£7 10s., which would have given him a complete title to publish them, an in- junction was refused.^ ' Carnan v. Bowles, 2 Bro. Ch. transcended the limits of fair qiiota- R. 80. tion for the jnirposcs of criticism. 2 Ibid. See also Webb v. Powers, 10 Law 3 Whittingham v. Wooler, 2 Rep. 152; S. C. 1 Woodbury's Swanst. 428. There was also, in R. this case, ihe additional circumstance, * Baily i». Taylor, 1 Russ. & M. that the defendant had probably not 73. In this case the bill was filed REMEDY BY INJUNCTION. 327 But where an injunction was granted on filing the bill, and afterwards the cause was brought to a hear- ing, and it was contended that on account of the trifling character of the injury, the defendant ought not to pay costs, it was held, that the defendant ought to have tendered the costs after the injunction was granted, and having refused to do so, he must pay the costs of the suit.^ In most cases, the bill seeks an account of the books printed, and of the profits thereof, from the person who has pirated from the plaintiffs work, as well as an injunction. If the cause is brought to a hearing, and a perpetual injunction is decreed, the plaintiff will have a right to have the account de- creed as incidental, in addition to the other relief by injunction, unless the amount would be very trifling.- But in order to obtain an account, it is necessary that the plaintiff should entitle himself to an injunc- tion, since the account is a relief strictly incidental to the injunction.^ The account is in practice gen- aftcr the defendant's work had been ]y i\ Hooper, 1 Y. & Cdl. Ch. R. 197. publislied ten years. - Hogg o. Kirby, 8 Ves. 323-325. ' Fradella v. Weller, 2 Rnss. & Universities of Oxford and Cam- M. 217. In this case, it was held bridge v. Richardson, 6 Ves. 705, not to be necessary, though iisnal, to 70G. Bailey t". Tavlor, 1 Russ & produce the pirated prints, or any of M. 73. Sheritl'y. Coates, 1 Russ. & them, where the fact of ilie prints ]\I. 159. Kelly v. Hooper, 1 Y. & being a piracy was proved, and not Col. Ch. R. 197. 2 Storv's Eq. Ju- denied by the answer. As to the risp. i^ 9.'i3. Mitford's j'iq. IM. by recovery of costs, where the plaintiff Jeremy, 138. Eden on Injunctions, has been compelled to bring the ch. 12, p. 2G1; ch. 13, p. 364. cause to a hearing, notwithstanding ' Baily v. Taylor, 1 Kuss. & M. the defendant's submission, seeKel- 73. 28* 328 LAW OF COPYRIGHT. erally waived ; but where it is not, the court grants it, upon principles which have been thus stated by Sir J. Wigram, V. C. "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 pub- lication 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 approxi- mation 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 ex- pensive book would have been sold, if the injury by the sale of the cheaper book had not been com- mitted. The court of equity, however, does not give anything beyond the account."^ The delivery up of copies of the unlawful publica- tion is supposed to depend entirely upon statute. However it might have been regarded in England, if the common law right of authors had not been abro- gated by the decision in Donaldson v. Beckett, it has been held, that there is now no common law right in the author or proprietor of a book which is pirated, to the delivery up of the copies of the illegal work ; ' Colburn v. Simms, 2 Hare, 560. JURISDICTION OF THE U. S. COURTS. 329 and therefore if such relief is given in equity, it must be under the provisions of some statute.^ The act 54 Geo. III. c. 156, § 4, does not autho- rize the delivery up of the copies of a pirated book, unless the genuine work had been duly registered as well as composed at the time the act is done to which the penalty and forfeiture would attach." The same requisite is contained in the 5 & 6 Vict. c. 45, § 23.^ The jurisdiction of the courts of the United States, in cases of copyright depends upon a statute passed February 15, 1819, by which it is enacted, "That ' Colbuvn V. Simms, 2 Hare, 551. In this case, Sir J. Wigram, V. C. said, "There would be great difficulty in applying to this subject the princi- ples of the coiTimon law, which in certain cases give to the owner of an original material tiieriuht of seiz- ing it, in whatever shape it may be found, if he can prove it it to be his own ; or which relate to wh:it is termed confusion of goods, by which, if one man voluntarily mixes iiis pro- perty wiih that of another, so that the two becomes 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 anotiier, 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 com- position of another, has thereby so mixed his properly with the jiriiper- ty of ihe author whose work he has copied, that he has lost his original title to the material whiidi he has so employed. There might indeed have been some countenance lor such a princiide before the judgment of the house of lonis, in tlie case of Don- aldson V. Beekett. had confined the exchisive right of authors within the limits prescribed by the statute, and thereby negatived the existence of that ab.solnte common law riirht in their works which had been pre- viously supposed to exist, and which the decision of the court of king's bench, in the case of Millar i'. Tay- lor, had tended to affirm. I think, therefore, the case for the plaint itT on this point must be placed on an- other ground, and that his right to a decree of this court for the delivery up of the copies, if ihat rijiht exists, must be found w'thin the provisions of the statutes, and not u[on any common law right independent of them." ' Ibid. ^ See Appendix, p. 76. 330 LAW OF COPYRIGHT. the circuit courts of the United States shall have original cognizance, as well in equity as at law, of all actions, suits, controversies and cases, arising under any law of the United States, granting or confirming to authors or inventors, the exclusive right to their respective writings, inventions, and discoveries; and upon any bill in equity, filed by any party aggrieved in any such cases, shall have authority to grant injunctions, according to the course and principles of courts of equity, to prevent the violation of the rights of any authors or inventors, secured to them by any laws of the United States, on such terms and condi- tions as the said courts may deem fit and reasona- ble : Provided, however, That from all judgments and decrees of any circuit courts, rendered in the premises, a writ of error or appeal, as the case may require, shall lie to the supreme court of the United States, in the same manner and under the same cir- cumstances, as is now provided by law in other judg- ments and decrees of such circuit courts."^ The jurisdiction conferred by this act is ample. It embraces all cases, both at law and in equity, arising under the laws which protect patents and copyrights, without regard to the citizenship of the parties, or the amount in controversy. The act of 1831, which gives a special action on the case for damages, for the unlawful printing or publishing of any manu- script, makes such damages recoverable in any court ' Act of Congress, February 15, 1819, eh. xix. 3 U. S. Statutes at large, p. 481. JURISDICTION OF THE U. S. COURTS. 331 having cognizance thereof; and also empowers the courts of the United States, which are authorized to grant injunctions to prevent the violation of the rights of authors and inventors, to grant injunctions in like manner, according to the principles of equity, to re- strain such publication of manuscripts.^ The circuit courts of the United States, therefore, may entertain actions at law, to recover damages for the unlawful publication of any printed book, under the protection of copyright, or of any manuscript whatever ; and may also entertain bills in equity for injunctions to restrain and prevent such publica- tions ; although both the parties are citizens of the same state, and although the value in controversy may not exceed five hundred dollars. ' Act of Congress, February 3, 1831, ^ 9. APPENDIX. BRITISH STATUTES. 8 Anne, c. 19. — An Act for the Encouragement of Learning, by vesting the Copies of printed Books in the Authors or Purchasers of such Copies, dur- ing the Tinnes therein mentioned. " Whereas printers booksellers and other persons have g Anne, of late frequently taken the liberty of printing reprinting c. 19. and publishincT or causinfj to be printed reprinted and ^-^~y"^^ . ... Seethe published books and other writings without the consent case of of the authors or proprietors of such books and writings ^avlo/in to their very great detriment and too often to the ruin of 4 Bur. 2303 them and their families :" For preventing therefore such practices for the future and for the encouragement of learned men to compose and write useful books ; May it please your Majesty that it may be enacted ; and 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 as- sembled, and by the authority of the same, That from After lo and after the tenth day of April one thousand seven the"autiiors hundred and. ten the author of any book or books already of books printed who hath not transferred to any other the copy primed, or copies of such book or books share or shares thereof, '^^'h° J^^^'^' t^ ' not trans- or the bookseller or booksellers printer or printers or ferred their other person or persons who hath or have purchased or ||,"e (.qoIj. acquired the copy or copies of any book or books in or- ^''?'^^^' '^^" der to print or reprint the same shall have the sole right purchaseil 2 APPENDIX. 8 Anne, and liberty of printing such book and books for the term c. 19. of one-and-twenty years to commence from the said tenth COD hall ^^y °^ April and no longer ; and that the author of any have the book or books already composed and not printed and of priiuinrr published or that shall hereafter be composed and his as- them for simiee or assigns shall have the sole liberty of printing the term of . j r & 21 years, and reprinting such book and books for the term of four- Aud the teen years to commence from the day of the first pub- books not lishing the same and no longer ; and that if any other printed to bookseller printer or other person whatsoever from and have the * . '■ sole right after the tenth day of Ajjril one thousand seven hundred for^fourteea ^"^ *®"' within the times granted and limited by this Act years. as aforesaid, shall print reprint or import or cause to be printed reprinted or imported any such book or books without the consent of the proprietor or proprietors thereof first had and obtained in writing signed in the presence of two or more credible witnesses ; or knowing the same to be so printed or reprinted without the consent of the proprietors, shall sell publish or expose to sale or cause to be sold published or exposed to sale any such book or books without such consent first had and obtained as aforesaid : then such offender or offenders shall forfeit such book or books and all and every sheet or sheets be- ing part of such book or books to the proprietor or pro- prietors of the copy thereof who shall forthwith damask and make waste paper of them ; and further, that every Punish- such offender or offenders shall forfeit one penny for every ment of sheet which shall be found in his her or their custody bookseller, . . . . i v i i / &c. print- either printed or prmting published or exposed to sale consent of ^ contrary to the true intent and meaning of this Act ; the theproprie- one moiety thereof to the Queen's most excellent Majesty her 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 her Majesty'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. " And whereas many persons may through igno- rance offend against this Act, unless some provision be APPENDIX. 3 made whereby the property in every such book as is in- 8 Anne, tended by this Act to be secured to the proprietor or pro- c. 19. prietors thereof may be ascertained, as likewise the con- ^^ i^g^j- sent of such proprietor or proprietors for the printing or hooks to he reprinting of such book or books may from time to time fore publi- be known ;" Be it therefore further enacted by the au- *=^""" "^, ' •' . the rei(ister thority aforesaid, That nothing in this Act contained book of ihc shall be construed to extend to subject any bookseller of"^^|ion- nrinter or other person whatsoever to the forfeitures or crs ; which penalties therem mentioned for or by reason of the print- spcctLd ai ing or reprinting of any book or books without such con- ^"j^o^^fg^. sent as aforesaid, unless the title to the copy of such book or books hereafter published shall, before such pub- lication, be entered in the register book of the Company of Stationers in such manner as hath been usual, which register book shall at all times be kept at the hall of the said company, and unless such consent of the proprietor or proprietors be in like manner entered as aforesaid, for every of which several entries six pence shall be paid and no more ; which said register-book may at all seasonable and convenient times be resorted to and inspected by any bookseller printer or other person for the purposes before mentioned 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 certificate may take a fee not exceeding six pence. III. Provided nevertheless, That if the clerk of the Penalty of said Company of Stationers for the time being shall re- Jefuslng^o fuse or neglect to register or make such entry or entries to do. or to give such certificate, being thereunto required by the author or proprietor of such copy or copies in the presence of two or more credible witnesses, that then such person and persons so refusing, notice being first duly given of such refusal by an advertisement in the Gazette, shall have the like benefit as if such entry or en- tries certificate or certificates had been duly made and given ; and that the clerks so refusing shall for any such offence forfeit to the proprietor of such copy or copies the APPENDIX. 8 Anne, c. 19. After 25 March, the Arclibishop of Canter- bury, &c. to settle the prices of books, upon complaint made that ihey are UDreasona- ble. sum of twenty pounds, to be recovered in any of her Ma- jesty's courts of record at Westminster by action of debt bill plaint or information, in which no wager of law es- soign privilege or protection or more than one impar- lance shall be allowed. IV. Provided nevertheless and it is hereby further en- acted by the authority aforesaid, That if any bookseller or booksellers printer or printers shall after the said five- and-twentieth day of March one thousand seven hundred and ten set a price upon or sell or expose to sale any book or books at such a price or rate as shall be conceiv- ed by any person or persons to be too high and unreason- able ; it shall and may be lawful for any person or per- sons to make complaint thereof to the Lord Archbishop of Canterlury for the time being the Lord Chancellor or Lord Keeper of the great seal of Great Britain for the time being the Lord Bishop of London for the time being the Lord Chief Justice of the court of Queen's Bench the Lord Chief Justice of the court of Common Pleas the Lord Chief Baron of the court of Exchequer for the time being the Vice-Chancellors of the two universities for the time being in that part of Great Britain called England the Lord President of the sessions for the time being the Lord Justice General for the time being the Lord Chief Baron of the Exchequer for the time being the Rector of the college of Edinburgh for the time being in that part of Great Britain called Scotland ; who or any one of them shall and have hereby full power and authority from time to time to send for summon or call before him or them such bookseller or booksellers printer or printers and to examine and inquire of the reason of the dearness and enhancement of the price or value of such book or books by him or them so sold or exposed to sale ; and if upon such inquiry and examination it shall be found that the price of such book or books is enhanced or any wise too high or unreasonable, then and in such case the said Archbishop of Canterhurxj Lord Chancellor or Lord Keeper Bishop of London two Chief Justices Chief Baron Vice-Chancellors of the universities in that part of Great APPENDIX. 5 Britain called England and the said Lord President of 8 Anne, the sessions Lord Justice General Lord Chief Baron and c. 10. Rector of the College oi Edinburgh in that part o^ Great "^•^^''"'"*^ Britain called Scotland, or any one or more of them so inquiring and examining have hereby full power and au- thority to reform and redress the same and to limit and settle the price of every such printed book and books from time to time according to the best of their judfr- ments and as to them shall seem- just and reasonable ; and in case of alteration of the rate or price from what andifalier- was set or demanded by such bookseller or booksellers price°the"''' printer or printers to award and order such bookseller bookseller and booksellers printer and printers to pay all the costs order him and charges that the person or persons so complainincr 'o pay costs , ,, , o to the party shall be put unto by reason of such complaint and of complain- ' the causing such rate or price to be so limited and '"*' settled; all which shall be done by the said Arch- bishop of Canlerhury Lord Chanceller or Lord Keep- er Bishop of London two Chief Justices Chief Baron Vice-Chancellors of the two universities in that part of Crveat Britain called England and the said Lord Presi- dent of the sessions Lord Justice General Lord Chief Baron and Rector of the college of Edinburgh in ihcH part of Gi'cat Britain called Scotland or any one of them by writing under their hands and seals, and thereof pub- lic notice shall be forthwith given by the said bookseller or booksellers printer or printers by an advertisement in the Gazette ; and if any bookseller or booksellers printer or printers shall after such settlement made of the said rate and price sell or expose to sale any book or books at a higher or greater price than what shall have been so limited and settled as aforesaid, then and in every such case such bookseller and booksellers printer and printers shall forfeit the sum of five pounds for every such book Penalty on so by him her or them sold or exposed to sale ; one moi- scllin" at ety thereof to the dueen's most excellent Majesty her ^'F''^^ . J J rates. heirs and successors, and tlie other moiety to any person This clause or persons that shall sue for the same, to be recovered ""cpcaled bv ... 15 Geo. II. With costs of suit in any of her Majesty's courts of record c. 36. b APPENDIX. 8 Anne, at Westminster by action of debt bill plaint or informa- c. 19. tion, in which no wager of law essoign privilege or pro- tection or more than one imparlance shall be allowed. After 10 v. Provided always and it is hereby enacted, That April, nine . ■ ^ ■ ■ i i i i i ^ copies of nme copies of each book or books upon the best paper shaUbe°de- ^^^^ ^''^™ ^^^ ^^^^^ *^'^ ^^^^ ^^"^'^ ^^^ of ^p'l7 one thou- livered to sand seven hundred and ten shall be printed and publish- housekeep- ed as aforesaid or reprinted and published with additions erofthe g^aij jjy ^\^q printer and printers thereof be delivered to company oi •' ^ . Stationers, the warehouse-keeper of the said Company of Stationers o7the^ "^'^ for the time being at the hall of the said company before university such publication made, for the use of the royal library &c. ' the libraries of the universities of Oxford and Cambridge the libraries of the four universities in Scotland the libra- ry of Sion College in London and the library commonly called the library belonging to the Faculty of Advocates Warehouse at Edinburgh respectively ; which said warehouse-keeper defiver the is hereby required within ten days after demand by the books ten keepers of the respective libraries or any person or per- days after ^, , n ^ ,-ii ju demand. sons by them or any of them authorized to demand the said copy to deliver the same for the use of the aforesaid Penalty of libraries ; and if any proprietor bookseller or printer or ^T^noT"^' *^® warehouse-keeper of the said Company of Stationers observing shall not observe the direction of this Act therein, that tionsof this then he and they so making default in not delivering the ^^^- said printed copies as aforesaid shall forfeit, besides the value of the said printed copies, the sum of five pounds for every copy not so delivered as also the value of the said printed copy not so delivered ; the same to be recov- ered by the Queen's Majesty her heirs and successors and by the chancellor masters and scholars of any of the said universities and by the president and fellows of Sion Col- lege and the said Faculty of Advocates at Edinburgh, with their full costs respectively. Penalties VI. Provided always and be it further enacted. That in Scotland, jf ^ny person or persons incur the penalties contained in how recov- ■' ' » „ . . o 7 j erable. this Act in that part of Great Britain called Scotland they shall be recoverable by any action before the court of session there. APPENDIX. 7 VII. Provided, That nothing in this Act contained do 8 Anne, extend or shall be construed to extend to prohibit the im- c- ^^■ portation vending or selling of any books in Greek Latin „. . or any other foreign language printed beyond the seas ; not to hin- anything in this Act contained to the contrary notwith- poriation, standing. {^^ of ijooks in VIII. And be it further enacted by the authority afore- Greek, &c. said, That if any action or suit shall be commenced or ^""r'L^'^' brought against any person or p.ersons watsoever for do- &c. ing or causing to be done any thing in pursuance of this Act, the defendants in such action may plead the general General issue and give the special matter in evidence ; and if '^^"^• upon such action a verdict be given for the defendant or the plaintiff become nonsuited or 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. IX. Provided, That nothing in this Act contained This act shall extend or be construed to extend either to prejudice j'udice the or confirm any right that the said universities or any of right of the , 1 I • X u X unjversi- them or any person or persons have or claim to have to tj^s. the printing or reprinting any b(||lc or copy already print- ed or hereafter to be printed. X. Provided nevertheless, That all actions suits bills Actions for indictments or informations for any offence that shall be offences ■> against this committed against this Act shall be brought sued and act to be commenced within three months next after such offence ^\^f^,e committed or else the same shall be void and of none months, effect. XI. Provided always, That after the expiration of the After the said term of fourteen years the sole right of printing or ."eYrs^The disposing of copies shall return to the authors thereof, if right of 1 1 1- ■ /• 1 r r priuting, they are then livmg, for another term ol fourteen years, ^^c. to re- turn to the author for other fourteen years. APPENDIX. 8 George 11. c. 13. — An Act for the Encourage- ment of the Arts of Designing, Engraving and Etching Historical and other Prints, by vesting the Properties thereof in the Inventors and En- gravers, during the time therein mentioned. 8 Geo. II. "Whereas divers persons have by their own genius c. 13. industry pains and expense invented and engraved or ,, . , worked in mezzotinto or chiaro oscuro sets of historical Preamble. See 3 Wills, and other prints in hopes to have reaped the sole benefit of their labors : And whereas printsellers and other per- sons have of late, without the consent of the inventors designers and proprietors of such prints, frequently taken the liberty of copying engraving and publishing or caus- ing to be copied engraved and published base copies of such works designs and prints to the very great prejudice and detriment of the inventors designers 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 aq|i 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 which shall be in the year of our Lord one thousand Property of seven hundred and thirty-five every person who shall in- prints vest- ^g^^j ^j^j design engrave etch or work in mezzotinto or ed in the => a inventor for cfdaro oscuro, or from his own works and inventions shall years. cause to be designed and engraved etched or worked in mezzotinto or chiaro oscuro any historical or other print or prints shalt have the sole right and liberty of printing and reprinting the same for the terra of fourteen years to commence from the day of the first publishing thereof. Proprietor's which shall be truly engraved with the name of the pro- afiixed to prietor on each plate, and printed on every such print or each print, prints ; and that if any printseller or other person what- soever, from and after the said twenty-fourth day of June one thousand seven hundred and thirty-five within the APPENDIX. y time limited by this Act shall engrave etch or work as 8 Geo. II. aforesaid or in any other manner copy and sell or cause to c- 13. be engraved 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 proprietor or proprietors thereof first had and ob- tained in writing signed by him or them respectively in the presence of two or more credible witnesses, or know- ing the same to be so printed or reprinted without the consent of the proprietor or proprietors shall publish sell or expose to sale or otherwise or in any other manner dispose of or cause to be published 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 penalty on shall forfeit the plate or plates on which such print or prim sellers prints are or shall be copied, and all and every sheet or pirating the sheets (being part of or whereon such print or prints are same. or shall be so copied or printed) to the proprietor or pro- prietors of such original print or prints, who shall forth- with destroy and damask 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 published 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 JMajesty 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 Majesty'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 impar- lance shall be allowed. II. Provided nevertheless. That it shall and may be Not to ex- lawful for any person or persons who shall hereafter pur- chasers of chase any plate or plates for printing from the original p'^ites. ffom •' f . . . thf original proprietors thereof to print and reprint from the said proprietors. 10 APPENDIX. General issue. 8 Geo. II. plates without incurring any of the penalties in this Act c. 13. mentioned. III. And be it further enacted by the authority afore- said, That if any action or suit shall be commenced or brought against any person or persons whatsoever for doing or causing to be done any thing in pursuance of this Act, the same shall be brought within the space of three months after so doing ; and the defendant or defend- ants in such 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 defendants shall have and recover full costs, for the recovery whereof he shall have the same remedy as any other defendant or defend- ants 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 commenced 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 discov- ery of every such offence and not afterwards ; any thing in this Act contained to the contrary notwithstanding. V. " And whereas John Pine of London engraver doth propose to engrave and publish a set of prints copied from several pieces of tapestry in the House of Lords and his Majesty's wardrobe and other drawings relating to the Spanish invasion in the year of our Lord one thousand five hundred and eighty-eight ;" Be it further enacted by the authority aforesaid, That the said Joh7i Pine shall be entitled to the benefit of this Act to all intents and pur- poses whatsoever in the same manner as if the said John Pine had been the inventor and designer of the said prints. Public act. VI. And be it further enacted by the authority afore- said. That this Act shall be deemed adjudged and taken to be a public Act, and be judicially taken notice of as such by all judges justices and other persons whatsoever without specially pleading the same. Clause relating to J. Pine. APPENDIX. 1 1 12 Geo. II. c. 3G. — An Act for prohibiting the Im- portation of Books reprinted abroad, and first composed or written and printed in Great Britain ; and for repealing so much of an Act made in the eighth year of the reign of her late Majesty Queen Anne, as empowers the limiting the prices of Books. " Whereas tlie duties payable upon paper imported into jo q u this kingdom to be made use of in printing greatly exceed c. 36. the duties payable upon the importation of printed books "-^"^■^"^-^ whereby foreigners and others are encouraged to bring in great numbers of books originally printed and published in this kingdom and reprinted abroad, to the diminution of his Majesty's revenue and the discouragement of the trade and manunicture of this kingdom ;" For the pre- venting thereof for the future, May it please your most excellent Majesty that it may be enacted; and be it en- acted 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 twenty-ninth day of September one thousand seven hun- dred and thirty-nine it shall not be lawful for any person or persons whatsoever to import or bring into this king- dom for sale any book or books first composed or written and printed and published in this kingdom and reprinted in any other place or country whatsoever ; and if any person or persons shall import or bring into this kingdom for sale any printed book or books so first composed or written and printed in this kingdom and reprinted in any other place or country as aforesaid ; or knowing the same to be so reprinted or imported contrary to the true intent and meaning of this Act shall sell publish or expose to sale any such book or books ; then every such person or persons so doing or olTending sliall forfeit the said book or books and all and every sheet or sheets thereof; and the same shall be forthwith damasked and made waste paper ; and further that every such offender or offenders 12 APPENDIX. 12 G. II. shall forfeit the sum of five pounds and double the value of c. 36. every book which he or they shall so import or bring into this kingdom or shall knowingly sell publish or expose to sale or cause to be sold published or exposed to sale con- trary 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 to any person or persons that shall sue for the same ; to be recovered with costs of suit in any of his Majesty's courts of record at Westminster by action of debt bill plaint or informa- tion, in which no wager of law essoign or protection or more than one imparlance shall be allowed ; and if the offence be committed in Scotland to be recovered before the Court of Session there by summary action: Provided that this Act shall not extend to any book that has not been printed or reprinted in this kingdom within twenty years before the same shall be imported. II. Provided always, That nothing in this Act contain- ed shall extend to prevent or hinder the importation of any book first composed or written and printed in this kingdom which shall or may be reprinted abroad and in- serted among other books or tracts to be sold therewith in any collection where the greatest part of such collec- tion shall have been first composed or written and print- ed abroad ; any thing in this Act contained to the con- trary notwithstanding. Clause in f? HI. And be it further enacted by the authority afore- repealeil^^' ^^'^' That SO much of an Act made in the eighth year of the reign of her late Majesty Queen Anne, intituled An Act for the Encouragement of Learning, hy vesting the Copies of printed Books in the Authors or Purchasers of such Copies during the times therein 7nentioned, whereby it is provided and enacted, That if any bookseller or booksellers printer or printers shall after the said five and twentieth day oi March one thousand seven hundred and ten set a price upon or sell or expose to sale any book or books at such a price or rate as shall be conceived by any person or persons to be high and unreasonable ; it shall and may be lawful for any person or persons to make APPENDIX. 13 complaint thereof to the Lord Archbishop of Canterhury 12 G. II. for the time being the Lord Chancellor or Lord Keeper c. 36. of the great seal of Great Britain for the time being the Lord Bishop of London for the time being the Lord Chief Justice of the Court of Queen''s Bench the Lord Chief Justice of the Court of Common Pleas the Lord Chief Baron of the Court of Exchequer for the time be- ing the Vice-Chancellors of the two Universities for the time being in tliat part of Great. Britain called England the Lord President of the Sessions for the time being the Lord Justice General for the time being the Lord Chief Baron of the Exchequer for the time being the Rector of the college of Edinhurgh for the time being in that part of Great Britain called Scotland, who or any one of them shall and have hereby full power and authority from time to time to send for summon or call before him or them such bookseller or booksellers printer or printers and to examine and inquire of the reason of the dearness and enhancement of the price of value of such book or books by him or them so sold or exposed to sale ; and if upon such inquiry and examination it sliall be found that the price of such book or books is enhanced or anyways too high or unreasonable, then and in such case the said Archbishop of Canterhury Lord Chancellor or Lord Keeper Bishop of London two Chief Justices Chief Baron VicoChancellors of the Universities in that part of Great Britain called England and the said Lord President of the Sessions Lord Justice General Lord Chief Baron and Rector, of the College o^ Edinlurgh in that part of Great Britain called Scotland, or any one or more of them so inquiring and examining, have hereby full power and au- thority to reform and redress the same and to limit and settle the price of every such printed book and books from time to time according to the best of their judg- ments and as to them shall seem just and reasonable ; and in case of alteration of the rate or price from what w'as set or demanded by such bookseller or booksellers printer or printers to award and order such bookseller and booksellers printer and printers to pay all the costs b 14 APPENDIX 12 G. II. and charges that the person or persons so complaining c. 3G. shall be put unto by reason of such complaint and of the causing such rate or price to be so limited and settled ; all which shall be done by the said Archbishop of Can- terlury Lord Chancellor or Lord Keeper Bishop of^ Lon- don two Chief Justices Chief Baron Vice Chancellors of the two Universities in that part of Great Britain called England and the said Lord President of the Sessions Lord Justice General Lord Chief Baron and Rector of the college of Edinburgh in that part of Great Britain called Scotland, or any one of them, by writing under their hands and seals, and thereof public notice shall be forthwith given by the said bookseller or booksellers printer or printers by an advertisement in the Gazette ; and if any bookseller or booksellers printer or printers shall after such settlement made of the said rate and price sell or expose to sale any book or books at a higher or greater price than what shall have been so limited and settled as aforesaid, then and in every such case such bookseller or booksellers printer or printers shall forfeit the sum of five pounds for every such book so by him her or them sold or exposed to sale, one moiety thereof to the Queen's most excellent Majesty her heirs and successors, and the other moiety to any person or persons that shall sue for the same, to be recovered with costs of suit in any of her Majesty's courts of record at Westminster by ac- tion of debt bill plaint or information, in which no wager of law essoign privilege or protection or more than one imparlance shall be allowed; and every part of the said clause shall be and the same is hereby repealed. Further IV. And be it further enacted, That this Act (except b°"o^7"p*^ n ^^ much thereof as repeals the before-mentioned clause c. 18, and in the said Act of the eighth year of the reign of the late c. 16. Queen Anne relating to the prices of books) shall con- tinue and be in force from the said twenty-ninth day of September one thousand seven hundred and thirty-nine for and during the space of seven years, and from thence to the end of the then next session of Parliament and no longer. APPENDIX. 15 7 Geo. III. c. 38. — An Act lo amend and render more efTeclual an Act made in tlje Eighlli Year of the Reign of King George the Second, for En- couragement of the Arts of Designing, Engrav- ing and Etching Historical and other Prints ; and for vesting in and securing to Jane Hogarth^ Widow, the Property in certain Prints. " Whereas an Act of Parliament passed in the eighth year 7 q jjj of the reign of his late Majesty King George the Second, c. 38. intituled An Act for the Enccuragcment of the Arts of '-^^/'"^-' Designing, Engraving, and Etching Historical and other c. 13°' Prints, hij vesting the Properties thereof in the Inventors and Engravers during the time therein mentioned has been found inefiectual for the Purposes thereby intended ;" Be it enacted by tlie King's most excellent INIajesty, 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 P"sinal hundred and sixty-seven all and every person and persons &:c. of ' who shall invent or design engrave etch or work in mez- pnnts, &c. " ° . intitled to zotinto or cniaro oscuro, or from his own work dcsio-n or tlie licnefu invention shall cause or procure to be designed engraved and^pretent etched or worked in mezzotinto or chioro oscuro any his- ^^^> &c. torical print or prints, or any print or prints of any por- trait conversation landscape or architectural map chart or plan or any other print or prints whatsoever, shall have and are hereby declared to have the benefit and pro- tection of the said Act and this Act under the restrictions and limitations hereinafter mentioned. II. And be it further enacted by the authority afore- said, That from and after the said first day of January one thousand seven hundred and sixty-seven all and every person and persons who shall engrave etch or work in mezzotinto or chiaro oscuro, or caused to be engraved etched or worked any print taken from any picture draw- ing model or sculpture either ancient or modern, shall 16 APPENDIX. 7 G. III. ^^^'® ^"^ ^^^ hereby declared to have the benefit and c. 38. protection of the said Act and this Act for the time here- ^■^^"•'"^-^ inafter mentioned in like manner as if such print had been graved or drawn from the original design of such graver etcher or draftsman, 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 hereinafter is mentioned. " The sole right of printing and reprinting the late W. Hogartli's prints vested in his widow and executrix for twenty years. Penalty of copying, &c. any of them before expiration of the term ; such copies excepted as were made and exposed to sale after the term of fourteen years for which the said works were first licensed, &c." V. And be it further enacted by the authority afore- said. That all and every the penalties and penalty inflict- ed by the said Act and extended and meant to be extend- ed to the several cases comprised in this Act shall and may be sued for and recovered in like manner and under the like restrictions and limitations as in and by the said Act is declared and appointed ; and the plaintiff or com- mon informer in every such action (in 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 commence his prosecution within the space of six calen- dar months after the offence committed. The riglit VII. And be it further enacted by the authority afore- ves^ted'^in ^^'^' ^^^^ *^^ ^°'® '"'S^t and liberty of printing and re- the proprie- printing intended to be secured and protected by the said yea^rs!"^ ^^ former Act and this Act shall be extended continued and be vested in the respective proprietors for the space of twenty-eight years, to commence from the day of the first publishing of any of the works respectively hereinbefore and in the said former Act mentioned. APPENDIX. 17 VIIT. And be it further enacted by the authority afore- 7 G. III. said, That if any action or suit shall be commenced or c. 38. brought against any person or persons whatsoever for do- j^. ing or causing to be done any thing in pursuance of this of aciioDs. Act, tlie same shall be brought within the space of six calendar months after the fact committed ; and the de- fendant or defendants in any of such action or suit shall or may plead the general issue and give the special mat- General ter 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 non-suited or discontinue his her or their action or actions, then the defendant or defendants shall have and recover full costs; for the re- Full costs. covery whereof he shall have the same remedy as any other defendant or defendants in any other case hath or have by law. 18 APPENDIX. 15 George 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 perpetuity their Copyright in Books, given or bequeathed to the said Universities and Colleges for the Ad- vancement of useful licarning and other purposes of Education : and for amending so much of an Act of the Eighth Year of the Reign of Queen Anne, as relates to the Delivery of Books to the Warehouse-keeper of the Stationers' Company, for the Use of the several Libraries therein men- tioned. 15 G. III. "Whereas authors have heretofore bequeathed or given c. 53. and may hereafter bequeath or give the copies of books ^"^^^'^'^^ composed by them to or in trust for one of the two uni- versities in that part of Great Britain called England, or to or in trust for some of the colleges or houses of learn- ing within the same, or to or in trust for the four univer- sities in Scotland, or to or in trust for the several colleges of Eton Westminster and Winchester, and in and by their several wills or other instruments of donation have direct- ed or may direct that the profits arising from the printing and reprinting such books shall be applied or appropria- ted as a fund for the advancement of learning and other beneficial purposes of education within the said universi- ties and colleges aforesaid : And whereas such useful purposes 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 universi- ties colleges and houses of learning respectively in perpe- tuity :" May it therefore please your Majesty that it may be enacted ; and be it enacted by the King's most excel- lent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal and Commons in this pre- APPENDIX. 19 sent Parliament assembled, and by the authority of the 15 G. III. same, That the said universities and colleges respectively c. 53. shall at their respective presses have for ever the sole lib- j. erty of printing and reprinting all such books as shall at ties, &c. to any time hereafter have been or (having not been hereto- gver the fore published or assigned) shall at any time hereafter be ^"'"^ !]'sht , , , . . 01 printing, bequeathed or otherwise given by the author or authors &c. of the same respectively or the representatives of such author or authors to or in trust for the said universities, or to or in trust for any college or house of learning with- in the same, or to or in trust for the said four universities in Scotland, or to or in trust for the said colleges of Eton Westminster and Winchester or any of them for the pur- poses aforesaid, unless the same shall have been bequeath- ed 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. II. And it is hereby further enacted, That if any book- Persons 11 • 1 /• 1 /- printing or seller printer or other person whatsoever Irom and after selling such the twenty-fourth day of June one thousand seven hun- f "^feft thg^' dred and seventy-five shall print reprint or import or same, and cause to be printed reprinted or imported any such book every or books ; or knowing the same to be so printed or re- ^^'^^^ '• printed 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 forfeit 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 learn- ing 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 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 ; one moiety thereof to the King's most excel- one moiety lent Majesty his heirs and successors, and the other moi- \" '"* ^^?" •" ■' ' jcstv and ety thereof to any person or persons who shall sue for the the other to same ; to be recovered in any of his Majesty's courts of cu'ioJ'"^"^* 20 APPENDIX. 15 G. in. record at Westminster or in the Court of Sessions in c. 53. Scotland 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. III. Provided nevertheless, That nothing in this Act shall extend to grant any exclusive right otherwise than so long as the books or copies belonging to the said uni- versities or colleges are printed only at their own printing presses within the said universities or colleges respec- tively and for their sole benefit and advantage ; and that if any university or college shall delegate grant lease or sell their copy rights or exclusive rights of printing the books hereby granted or any part thereof, or shall allow permit or authorize any person or persons or bodies cor- porate to print or reprint the same, that then the privi- leges 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 nevertheless have a right to sell such copies so bequeath- ed or 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 Q,ueen Anne. IV. " And whereas many persons may through igno- rance offend against this Act unless some provision be made whereby the property of every such book as is in- tended by this Act to be secured to the said universities colleges and houses of learning within the same and to the said universities in Scotland and to the respective colleges of Eton Westminster and Winchester may be as- certained and known ;" Be it therefore 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 forfeitures or penalties herein mentioned for or by reason of the print- ing 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 enter- ed in the register book of the Company of Stationers kept No person subject to penalties unless entered be- fore, &c. APPENDIX. 21 for that purpose in such manner as hath been usual on or 15 G. Ill, before the twenty-fourth day of June one thousand seven c- ^3. hundred and seventy-five ; and of all and every such book or books as may or shall hereafter be bequeathed or given Hooks must - • , , , . , . . , . , ^ l>e entered as atoresaid be entered in such register within the space within two of two months after any such bequest or gift shall have IJ]-"^'^ come to the knowledge of the vice-chancellors of the said bequest. universities or heads of houses and colleges of learning or of the principal of any of the said four universities re- spectively ; 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 seasonable and convenient times be referred to and inspected by any bookseller printer or other person without any fee or re- ward ; and tiie clerk of the said Company of Stationers shall when and as often as thereunto required give a cer- tificate under his hand of such entry or entries, and for every such certificate may take a fee not exceeding six pence. V. And be it further enacted, That if the clerk of the If clerk saidCompany of Stationers for the time being shall refuse mfke^n^ or neglect to register or make such entry or entries or to "■>• ^'^• 1 °r . • -111 proprietor give such certificate, being thereunto required by the to have like agent of either of the said universities or colleges afore- "^ ^' said lawfully authorized for that purpose, then either of the said universities or colleges aforesaid, being the pro- prietor of such copyright or copyrights as aforesaid (no- tice being first given of such refusal by advertisement in the Gazette) shall have the like benefit as if such entry or entries certificate or certificates had been duly made and given ; and the clerk so refusing shall for every such offence forfeit twenty pounds to the proprietor or propri- etors of every such copyright ; to be recovered in any of his Majesty's courts of record at West}nhisler or in the court of Session in ScoiJatid by action of debt bill plaint * or information, in which no wager of law essoign privi- lege protection or more than one imparlance shall be allowed. 22 APPENDIX. 15 G. III. VI. " And whereas in and by an Act of Parliament c. 53. made in the eighth year of the reign of her late Majesty , , Queen Anne^ intituled An Act for the Encouragement of c. 19. Learning hy vesting the Copies of j^rinted Books in the Authors or Purchasers of such Copies during - the times therein mentioned, it is enacted, That nine copies of each book or books upon the best paper that from and after the tenth day oi April one thousand seven hundred and ten should be printed and published as therein mentioned, or reprinted and published with additions, shall by the printer or printers thereof be delivered to the ware- house-keeper of the said Company of Stationers for the time being at the hall of the said Company before such publication made, for the use of the royal library the libraries of the universities of Oxford and Cambridge the libraries of the four universities in Scotland the library of Sion College in London and the library commonly ^ called The Library belonging to the Faculty of Advocates in Edinburgh respectively ; which such warehouse-keeper was thereby required within ten days after demand by the keepers of the respective libraries, or any person or persons by them or any of them authorized to demand the said copy, to deliver the same for the use of the afore- said libraries; and if any proprietor bookseller or printer or the said warehouse-keeper of the said Company of Sta- tioners should not observe the direction of the said Act therein, that then he and they so making default in not delivering the said printed copies as aforesaid should for- feit as therein mentioned : And whereas the said provi- sion has not proved effectual but the same hath been eluded by the entry only of the title to a single volume or of some part of such book or books so printed and pub- No person lished or reprinted and republished as aforesaid;" Beit subject to enacted by the authority aforesaid, That no person or the said act persons whatsoever shall be subject to the penalties in the UUeWt^he ^^"^ ^^^ mentioned for or by reason of the printing or copy of the reprinting importing or exposing to sale any book or SeyL. books without the consent mentioned in the said Act, unless the title to the copy of the whole of such book and APPENDIX. 23 every volume thereof be entered in manner directed by 15 G. III. the said Act in the register book of the Company of Sta- c ."i^. tioners, and unless nine such copies of the whole of such ^-^^''"^-' book or books and every volume thereof printed and pub- lished or reprinted or republished as therein mentioned shall be actually delivered to the warehouse-keeper of the said Company as therein directed for the several uses of the several libraries in the said Act mentioned. VII. And be it further enacted by the authority afore- Limitation said, That if any action or suit shall be commenced or of actions. brought against any person or persons whatsoever for do- ing or causing to be done any thing in pursuance of this Act, the defendants in such action may plead the general General issue and give the special matter in evidence ; and if '^^"'^' upon such action a verdict, 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- public act. said, That this Act shall be adjudged deemed and taken to be a public Act; and shall be judicially taken notice of as such by all judges justices and other persons what- soever without specially pleading the same. 24 ^ APPENDIX. 17 George III. c. 57. — An Act for more effectually securing the Property of Prints to Inventors and Engravers, by enabling them to sue for and re- cover Penalties in certain Cases. " Whereas an Act of Parliament passed in the eighth year of the reign of his late Majesty King George the Second, intituled 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 men- tioned : And whereas by an Act of Parliament 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 things) enacted, That from and after the first day of January one thousand seven hundred and sixty-seven all and every person or persons who should engrave etch or work in mezzotinto or chiaro oscuro, or cause to be en- graved etched or worked any print taken from any pic- ture 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 draughtsman : And whereas the said acts have not effectually answered the purposes for which they were intended, and it is necessary for the en- couragement of artists and for securing to them the pro- perty of and in their works and for the advancement and improvement of the aforesaid arts that such further pro- visions should be made as are herein-after mentioned and If any en- contained ; " May it therefore please your Majesty that it shair'^eii-*^ may be enacted; and be it enacted by the King's most grave, &c. excellent Maiesty, by and with the advice and consent of any print j j ' j • , . without the the Lords Spiritual and Temporal and Commons m this thepTopr^e- present Parliament assembled, and by the authority of the tor, he shall be liable to daniages and double costs. APPENDIX. 25 same, That from and after the twenty-fourth day of June 17 G. III. one thousand seven hundred and seventy-seven if any en- c. o7. graver etcher printseller or other person shall within the time limited hy the aforesaid Acts, or either of them, en- grave etch or work or cause or procure to be engraved etched or worked in viczzolinlo or chiaro oscuro, or other- wise 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 pro- cure to be printed reprinted or imported for sale, or shall publish sell or otherwise dispose of or cause or pro- cure to be published sold or otherwise disposed of any copy or copies of any historical print or prints or any print or prints of any portrait conversation landscape or archi- tecture map chart or plan, or any other print or prints whatsoever which hath or have been or shall be engraved etched drawn or designed in any part of Great Britain without the express consent of the proprietor or proprie- tors thereof first had and obtained in writing signed by him or 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 proprie- tor or proprietors shall and may, by and in a special ac- tion 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 dou- ble costs of suit. 26 ^ APPENDIX. 38 George III. c. 71. — An Act for encouraging the Art of making new Models and Casts of Busts, and other thuigs therein mentioned. — [21st Jime 1798.] " Whereas divers persons have by their own genius industry pains and expence improved and brought the art of making new models and casts of busts and of statues of human figures and of animals to great perfection, in hopes to have reaped the sole benefit of their labours ; but divers persons have (without the consent of the pro- prietors thereof) copied and made moulds from the said models and casts and sold base copies and casts of such new models and casts to the great prejudice and detri- ment of thg original proprietors and to the discourage- ment of the art of making such new models and casts as aforesaid : " For remedy whereof 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 The sole same. That from and after the passing of this Act every property of person who shall make or cause to be made any new inakin^nin- model or Copy or cast made from such new model of any delsorcasts r i i n p i shall lie bust or any part of the human figure or any statue of the throri^'hial '^^^'T^'i" figure or the head of any animal or any part of any proprietor animal or the statue of any animal ; or shall make or cause to be made any new model copy or cast from such new model in alto or basso relievo or any work in which the representation of any human figure or figures or the repre- sentation of any animal or animals shall be introduced, or shall make or cause to be made any new cast from nature of any part or parts of the human figure or of any part or parts of any animal, shall have the sole right and pro- perty in every such new model copy or cast, and also in every such new model copy or cast in alto or basso re- lievo or any work as aforesaid, and also in every such for 14 years. APPENDIX. ^ 27 new c;ist from nature as aforesaid, for and durin^r tlic 3SG.III. term of fourteen years from the time of first publisliing c. 71. tlie same : Provided always, That every person who shall ^-^"^'^'^'^'^ make or cause to be made any such new model copy or cast or any such new model copy or cast in alto or basso relievo or any work as aforesaid, or any new cast from nature as aforesaid, shall cause his or her name to be put thereon with the date of the pui)lication before the same shall be publislicd and exposed to sale. II. And be it further enacted. That if any person shall Person within the said term of fourteen years make or cause to ^pL's^of be made any copy or cast of any such new model copy or ^"5' m"del . Ill • 1 , or cast cast or any such model copy or cast in alto or basso re- without the lievo or any such work as aforesaid, or any such new cast "^^'■"""yc,""- trom nature as aforesaid, either by adding to or diminish- proprietor, ing from any such new model copy or cast or adding to [Trosocuied or diminishing from any such new model copy or cast in ^°'' ^^'"- I. 1 I- 1 1 ;. . , a»es, by a alto or basso relievo or any such work as aforesaid, or special ac- adding to or diminishing from any such new cast from "°J» o" ^^^^ nature or shall cause or procure the same to be done, or shall import any copy or cast of such new model copy or cast, or copy or cast of such new model copy or cast in alto or basso relievo or any such work as aforesaid, or any copy or cast of any such new cast from nature as aforesaid for sale, or shall sell or otherwise dispose of or cause or procure to be sold or exposed to sale or other- wise disposed of any copy or cast of any such new model copy or cast, or any copy or cast of such new model copy or cast in alto or basso relievo or any such work as afore- said, or any copy or cast of any such new cast from na- ture as aforesaid without the express consent of the pro- prietor or proprietors thereof first had and obtained in writing signed by him her or them respectively with his her or their hand or hands in the presence of and attested by two or more credible witnesses, then and in all or any of the cases aforesaid every proprietor or proprietors of any sucli original model copy or cast and every proprie- tor or proprietors of any such original model or copy or cast in alto or basso relievo or any such work as aforesaid, 28 APPENDIX. 38 G. III. or the proprietor or proprietors of any such new cast from c- '1- nature as aforesaid respectively, shall and may by and in a special action upon the cate 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 enquiry thereon shall give or assess together with full cost of suit. Except III Provided nevertheless, That no person who shall such per- _ ' _ _ * sons who hereafter purchase the right either in any such model chase ?lie ^'^PY ^'' ^^^^ ^^^ '" ^"Y ^"^'' model copy or cast in alto or same of the basso relievo or any such work as aforesaid or any such original „ - , ... proprietor, new cast from nature of the original proprietor or pro- prietors thereof shall be subject to any action for vending or selling any cast or copy from the same ; any thing con- tained in this Act to the contrary hereof notwithstanding. Limitation IV. Provided also, That all actions to be brought as of actions. /. • i • , r n- aforesaid agamst any person or persons lor' any offence committed against this Act shall be commenced within six callendar months next after the discovery of every such offence and not afterwards. APPENDIX. 29 41 George III. c. 107. — An Act for the further En- couragement of Learning, in the United Kingdom of Great Britain and Ireland, by securing the Copies and Copyright of printed Books to the Authors of such Books, or their Assigns for the Time herein mentioned. — [2d July 1801.] " Whereas it is expedient that further protection 41 G. III. should be afforded to the authors of books and the pur- c. 107. chasers of the copies and copyright of the same in the '^■^""^'''"^^ United Kingdom of Great Britain and Ireland;" 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 Spir- itual and Temporal and Commons in this present Par- liament assembled, and by the authority of the same. That the author of any book or books already composed Authors of and not printed or published and the author of any book \°°ll^ com- er books which shall hereafter be composed and the as- posed, and ^ , , ■ 1 1 II 1 ii"t ijrinted signee or assigns ot such autliors respectively shall have or publish- the sole liberty of printing and reprinting of such book ^' ,^"^ ^^ and books for the term of fourteen years, to commence iicreafier from the day of first publishing the same and no longer ; ami'Their and that if any other bookseller printer or other person assigns , . - , • 1 TT •. 1 T-- J • shall have whosoever in any part ot the said United Kingdom or in the sole part of the British dominions in Europe shall from and "?^'. "^ . ... printing after the passing of this Act print reprint or import or ihcm for shall cause to be printed reprinted or imported any such years T" book or books without the consent of the proprietor or proprietors of the copyright of and in such book or books ^^8° &c. in first had and obtained in writing, signed in the presence ^"V Rf' °^ ot two or more credible witnesses, or knowing the same Kingdom, to be so printed reprinted or imported without such con- J-'^jronean sent of such proprietor or proprietors shall sell publish or dominions, expose to sale or cause to be sold published or exposed prim, re- print, or im- port, &c. any such book without consent of the proprietor, shall he liable to an action for damages, and shall also forfeit the books to the proprietor, and 3d. per sheet. Half to the King, and half to the informer. 30 APPENDIX. to sale, or shall have in his her or their possession for sale any such book or books without such consent first had and obtained as aforesaid, then such offender or offenders shall be liable to a special action on the case at the suit of the proprietor or proprietors of the copyright of such book or books so unlawfully printed reprinted or imported or published or exposed to sale, or being in the possession of such offender or offenders for sale as afore- said contrary to the true intent and meaning of this Act; and every such proprietor and proprietors shall and may by and in such special action upon the case to be so brought against such offender or offenders in any court of record in that part of the said United Kingdom or of the British dominions in Europe in which the offence shall be committed, recover such damages as the jury on the trial of such action or on the execution of a writ of en- quiry thereon shall give or assess together with double costs of suit ; in which action no wager of law essoign privilege or protection nor more than one imparlance shall be allowed ; and all and every such offender or offenders shall also forfeit such book or books and all and every sheet and sheets being part of such book or books, and shall deliver the same to the proprietor or proprietors of the copyright of such book or books upon order of any court of record in which any action or suit in law or equity shall be commenced or prosecuted by such pro- prietor or proprietors, to be made on motion or petition to the said court ; and the said proprietor or proprietors shall forthwith damask or make waste paper of the said book or books and sheet or sheets respectively ; and all and every such offender or offenders shall also forfeit the sum of three pence for every sheet which shall be found in his or their custody, either printed or printing or pub- lished 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 his heirs and successors, and the other moiety thereof to any person or persons who shall sue for the same in any such court of record by action of debt bill plaint or information, in which no wager of APPENDIX. 31 law essoign privilege or protection nor more than one nn- 41 G. III. parlance shall be allowed : Provided always, That after c. 107. the expiration of the said term of fourteen years the riglit . . of printing or disposing of copies shall return to the au- hnvease- thors thereof, if they are then living, for another term of years' term, fourteen years. if living. II. Provided also and be it further enacted, That no- Act shall thing in this Act contained shall extend or be construed („ i,ooks to e.xtend to any book or books heretofure composed and ^'''.^^.'^.y , J 1 1- 1 1 • ^1 • 1 TT • 1 published, printed or published ni any part of the said United norindem- Kingdom, nor to exempt or indemnify any person or per- pe^pJi^gg"^' sons whomsoever from or against any penalties or actions under for- to which he she or they shall or may have become or force at the shall or may be hereafter liable for or on account of the ""'"" ?/. unlawlul printing reprinting or importing such book or tain and books, or the selling, publishing or exposing the same ^^ to sale or the having the same in his or their posses- sion for sale contrary to the laws and statutes in force respecting the same at the time of the passing an Act in 39 & aoc. the session of Parliament of the thirty-ninth and fortieth years of the reign of his present Majesty, intituled An Act for the Union of Great Britain and Ireland. III. " And whereas authors have heretofore bequeathed Trinity given or assigned and may hereafter bequeath give or as- DuhUn*^' sign the copies or copyrights of and in books composed ^lifiH for by them to or in trust for the college of the Holy Trinity the sole of Dublin ; and in and by their several wills or other in- pr^[|Jin°g^ struments have directed or may direct that tlie profits ''ocl^'s giv- arising from the printing or reprinting such books shall queathed to be applied or appropriated as a fund for the advancement iess"ihe° of learning and other beneficial purposes of education arc given, within the college aforesaid : And whereas such useful limiied^ ^ purposes will frequently be frustrated unless the sole ^''"•^ ""'v right of printing and reprinting of such books, the copies of which shall have been or shall be so bequeathed given or assigned as aforesaid, be preserved and secured to the said college in perpetuity : " Be it therefore further en- acted, That the said college shall at their own printing press within the said college have for ever the sole liberty 32 APPENDIX. 41 G. III. c. 107. Penalty on persons printing such books the same as under § 1. To extend only to books printed at the college press. But the col- lege may sell their copyrights. of printing and reprinting all such books as shall at any time hereafter have been or (not having been heretofore published or assigned) shall at any time hereafter be be- queathed or otherwise given or assigned by the author or authors of the same respectively, or the representatives of such author or authors to or in trust for the said college for the purposes aforesaid, unless the same shall have been bequeathed given or assigned or shall hereafter be bequeathed given or assigned for any term of years or any other limited term ; any law or usage to the contrary thereof in any wise notwithstanding ; and that if any printer bookseller or other person whosoever shall from and after the passing of this Act unlawfully print reprint or import or cause to be printed reprinted or imported, or knowing the same to be so unlawfully printed reprint- ed or imported, shall sell publish or expose to sale or cause to be sold published or exposed to sale, or have in his or their possession for sale any such last-mentioned book or books, such offender or offenders shall be subject and liable to the like actions penalties and forfeitures as are herein-before mentioned and contained with respect to offenders against the copyrights of authors and their as- signs : Provided nevertheless, That nothing in this Act shall extend to grant any exclusive right to the said col- lege of the Holy Trinity oi Dublin otherwise than so long as the books or copies belonging to the said college are and shall be printed only at the printing press of the said college within the said college and for the sole benefit and advantage of the said college ; and that if the said college shall delegate grant lease or sell the copyrights or exclusive rights of printing the books hereby granted or any part thereof, or shall allow permit or authorize any person or persons or bodies coporate to print or reprint the same, then the privilege hereby granted shall become void and of no effect in the same manner as if this Act had not been made ; but the said col- lege shall nevertheless have a right to sell such copies so bequeathed or given as aforesaid in like manner as any author or authors can or may lawfully do under APPENDIX. 33 the provisions of tliis Act or any other Act now in 41 G. III. force. c. 107. IV. Provided also and be it further enacted. Tliat no .V^T^^T!'*^ Hookscll- bookscller printer or other person whosoever shall be ers, tc. liable to the said penalty of three pence per slieet for or tidjlemlie by reason of the printing reprinting importing or selling P*^-"^'')' of of any such book or books or the having the same in his sheet, or their custody for sale without the consent of the pro- prietor or proprietors of the copyright thereof as afore- said, unless before the time of the publication of such unless iho book or books by the proprietor or proprietors tlicreof com-right^ (other than the said college) the right and title of such '"^ entered proprietor or proprietors shall be duly entered in the reg- prieio^r.^c' ister book of the Company of Stationers in London in ^' ?'?!'*??' ' ■' ers' Hall, such manner as hath been usually heretofore done by the London; proprietors of copies and copyrights in Great Britain ; consent' oi nor if the consent of such proprietor or proprietors for ^^^ proprie- , • • • • • • ,,-,,, tor be so en- tne prniting reprmting importnig or sellmg such book or tercd. books shall be in like manner entered ; nor unless the right and title of the said college to the copyright of such book or books as has or have been already bequeathed given or assigned to the said college be entered in the said register book before the twenty-ninth day of Septem- ber one thousand eight hundred and one, and of all and every such book or books as may or shall hereafter be bequeathed given or assigned as aforesaid be entered in the said register bqok within the space of two months after any such bequest gift or assignment shall have come to the knowledge of the provost of the said college ; for every of which several entries six ponce shall be paid and no more; whicli said register book shall at all times be kept at the hall of the said Company and shall and may at all seasonable and convenient times be resorted to and inspected by any bookseller printer or other person for the purposes before mentioned without any fee or reward ; and the clerk of the said Company of Stationers shall Clerk of when and as often as thereto required give a certificate „>• shall"* give certifi- cates of entries, and make a half-yearly list of the books so entered for the use of 'Trinity College. 34 APPENDIX. 41 G. III. under his hand of such entry or entries and for every c. 107. such certificate may take a fee not exceeding sixpence; and the said clerk shall also without fee or reward within fifteen days next after the thirty-first day of Dccemher and the thirtieth day o^ June in each and every year make or cause to be made for the use of the said college a list of the titles of all such books, the copyright to which shall have been so entered in the course of the half year immediately preceding the said thirty-first day of Decern- ber and the thirtieth day of Jitne respectively, and shall upon demand deliver the said lists or cause the same to be delivered to any person or persons duly autho- rized to receive the same for and on behalf of the said college. If the clerk V. Provided also and be it further enacted. That if rci US6S to make en- the clerk of the said Company of Stationers for the time tries, &c. being shall refuse or neglect to register or make such en- try or entries or to give such certificate or certificates being thereupon respectively required by the author or authors proprietor or proprietors of such copies or copy- rights, or by the person or persons to whom such con- sent shall be given or by some person on his or their behalf in the presence of two or more credible witnesses, Parties then such party or parties so refused, notice being first mnfcf ' in *^"^y g'ven by advertisement in the London Gazette, shall the London have the like benefit as if such entry or entries certificate Gazette and the or certificates had been duly made and given ; and the forfeir2o/ ^^^^^^ ^o refusing shall for any such offence forfeit to the author or proprietor of such copy or copies or to the person or persons to whom such consent shall be given the sum of twenty pounds ; or if the said clerk shall re- fuse or neglect to make the list aforesaid or to deliver the same to any person duly authorized to demand the same on behalf of the said college the said clerk shall also forfeit to the said college the like sum of twenty pounds; which said respective penalties shall and may be recovered in any of his Majesty's courts of record in the said United Kingdom by action of debt bill plaint or information, in which no wager of law essoign APPENDIX. . 35 or protection nor more th;in one imparlance shall he 41 G. III. allowed. c. 107. VI. Provided also and he it further enacted, That from ^■^'^'v'"^-' and after trie passmg of this Act, in addition to the nine tional co- copies now required by law to he delivered to the ware- P'^^". house-keeper of the said Company of Stationers of each lered at and every book and books whicli shall be entered in the \i.^\\ ^hM register book of the said Company, one other copy shall I'^f'^hver- be in like manner delivered for the use of the library of ihc use of the said college of the Holy Trinity of Dullin, and also Jl'^fs^'iP" one other copy for the use of the library of the society of ''riniiy the King's Inns Dublin, by the printer or printers of all aiul the and every such book and books as shall hereafter be j^'"a's •' Inus, Dub- printed and published and the title to the copyright lia. whereof shall be entered in the said register book of the said Company; and that the said college and the said society shall have the like remedies for enfi>rcing the de- livery of the said copies ; and that all proprietors book- sellers and printers and the warehouse-keeper of the said Company shall be liable to the like penalties for making default in delivering the said copies for the use of the said college and the said society as are now in force with respect to the delivering or making default in de- livering the nine copies now required by law to be de- livered in manner aforesaid. VII. And be it further enacted, That from and after No person the passing of this Act it shall not be lawful for any per- p,,^^ iJ,"!!,' son or person whomsoever to import or brins into any ^">' P'"'' °^ /- 1 TT • 1 T-- 1 ,' r^ -n . ' , T the United part ot the United Kingdom of Ureat lintain and Ire- Kingdom land for sale any printed book or books first composed ^ t" fi^"t^ written or printed and published in any part of the said composed, United Kingdom and reprinted in any other, country or ihe United place whatsoever: and if any person or persons shall im- Kini^dom, port or bring or cause to be imported or brought for sale ed else- any such printed book or books into any part of the said ^^"'^'^^• United Kingdom contrary to tiie true intent and meaning of this Act, or shall knowingly sell publish or expose to sale or have in his or their ])ossession for sale any such book or books, then every such book or books shall be 36 . APPENDIX. 41 G. III. forfeited and shall and may be seized by any officer or c. 107. officers of Customs or Excise and the same shall be forth- ., ■ ^ with made waste paper ; and all and every person and importing, persons so offending, being duly convicted thereof, shall keepin'' for ^^^^ ^^^ every such offisnce forfeit the sum of ten pounds sale any and double the value of each and every copy of such such books, , , , , 1 • 1 1 1 1 111 forfeiture booK or booKS which he she or they shall so import or *^^'^^°m^"'^ bring or cause to be imported or brought into any part of and double the said United Kingdom, or shall knowingly sell publish the value. ^^ expose to sale or shall cause to be sold published or exposed to sale, or shall have in his or their possession for sale contrary to the true intent and meaning of this Books may Act ; and the commissioners of Customs in England by officers Scotland and Ireland respectively (in case the same shall of customs be seized by any officer or officers of Customs), and the or CXC1S6 J 'f / who shii'll commissioners of Excise in England Scotland and Ire- be reward- ^^^^ respectively (in case the same shall be seized by any officer or officers of Excise) shall also reward the officer or officers who shall seize any books which shall be so made waste paper of with such sum or sums of money as they the said respective commissioners shall think fit, not exceeding the value of such books; such reward respectively to be paid by the said respective commissioners out of any money in their hands respect- ively 'arising from the duties of Customs and Excise : Exceptions Provided, that no person or persons shall be liable to notliavinff ^"y ^^ ^^^ last-mentioned penalties or forfeitures for or by been print- reason or means of the importation of any book or books United Avliich has not been printed or reprinted in some part of Kingdom j]-,g gj^jj United Kincrdom within twenty years next before lor20years, , ° ■' •' &c. the same shall be imported, or of any book or books re- printed abroad and inserted among other books or tracts to be sold therewith in any collection where the greatest part of such collection shall have been first composed or written abroad. General is- VIII. And be it further 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 any thing in pursuance of this Act, the defendants in sue. APPENDIX. 37 such action may plead tlic general issue and give the 41 G. III. special matter in evidence; and if upon such action a c. 107. verdict shall be given for the defendant, or the plaintiff become non-suited or discontinue his action, then the de- fendant shall have and recover his full costs, for which he shall have the same remedy as a defendant in any case by law hath ; and that all actions suits bills indict- Limiiation •' . . - „ 1 1 11 i_ "t actions ments or informations for any offence that shall be com- under this mitted against this Act shall be brought sued and com- ''*^' f."' menced within six months next after such offence com- mitted, or else the same shall be void and of none effect. 38 APPENDIX. 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 mention- ed ; and for giving further Encouragement to such Arts. — [ISth May 1814.] 54 G. III. " Whereas by an Act passed in the thirty-eighth year of c. 56. the reign of his present Majesty, intituled, Ari Act for ^-^'^-y^*^ encouraging the Art. of making new Models and Casts of c. 1, § 1. Busts, and other Things therein menlioned ; 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 ineffectual for the pur- poses thereby intended, it is expedient to amend the same and to make other provisions and regulations for the en- couragement 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 excel- lent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal and Commons in this pre- sent Parliament assembled, and by the authority of the Sole ri-^ht same, That from and after the passing of tliis Act every and proper- person or persons who shall make or cause to he made ly ofall 1 • ■ 1 1 11 » new and any new and origmal sculpture or model or copy or cast original ^f ^|jg human figure or human figures or of any bust or sculpture, = =' r- i i j models, busts, or of any part or parts of the human figure clothed castrve"st- '" drapery or otherwise, or of any animal or animals or ed in pro- of any part or parts of any animal combined with the hu- prietors lor ^ ' ^ ■ r i • i ■ 14 years, man figure or Otherwise, or oi 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 repre- senting any of the matters and things herein-before men- APPENDIX. 39 tioncd, whether separate or combined, shall have the sole 54 G. III. right and property of all and in every such new and ori- c. 56. ginal sculpture model copy and cast of the human figure and 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 drapery or otherwise, and of all and in every such new and original sculpture model copy and cast representing any animal or animals, and of all and in every such work representing 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 in- vention 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 na- ture, for the term of fourteen years from first putting forth or publishing the same ; provided, in all and every case, the proprietor 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 a„j jj,Jg be put forth or published.* aflixed. II. And be it further enacted. That the sole right and Works property of all works which have been put forth or pub- uUdc'r Act lished under the protection of the said recited Act shall nested in I 111 1 11 proprietors be extended continued to and vested in the respective for 14 years. proprietors thereof for the term of fourteen years to com- mence 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 Putting persons shall within such term of fourteen years make or ^"^'^ P'' ' •' rated copies import or cause to be made or imported or exposed to or pirated sale or otherwise disposed of any pirated copy or pirated seemed™ cast of any such new and original sculpture or model or copy or cast of the human figure or human figures or of any such bust or busts, or of any such part or parts of the human human figure clothed in drapery or otherwise, or of any such work of any animal or animals or of any 40 APPENDIX. Damages. Double costs. Purchasers of copyright secured in the same. Limitation of actions. such part or parts of any animal or animals combined with the human figure or otherwise, or of any such sub- ject 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 such cast from nature as aforesaid, whether such pirated copy or pirated cast be produced by moulding or copying from or imita- ting in any way any of the matters or things put forth or published under the protection of this Act, or of any works which have been put forth or published under the 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 proprietor or proprietors of any such works so pirated ; then and in all such cases the said proprietor or proprietors or their as- signee or assignees shall and may, by and in a special action upon the case to be brought against the person or persons so offending, receive such damages as a jury on a trial of such action shall give or assess together with double costs of suit. IV. Provided nevertheless, That no person or persons who shall or may hereafter purchase the right or property of any new and original sculpture or model or copy or cast, or of any 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 sub- ject to any action for copying or casting or vending the same ; any thing contained in this Act to the contrary notwithstanding. V. Provided always and be it further enacted, That all actions to be brought as aforesaid against any person or persons for any offence committed against this Act shall be commenced within six calendar months next after the discovery of every such offence and not afterwards. APPENDIX. 41 VI. Provided always and be it further enacted, That 54 G. Ill from and immediately after the expiration of the said term c. 5G. of fourteen years the sole right of making and disposing of ^jj^ionai such new and original sculpture or model or copy or cast term of 14 of any of the matters or things herein-before mentioned f..j^^,. maker shall return to the person or persons who originally made cf'jn^'nal ' ^ o J sculpture, or caused to be made the same, if he or they shall be then &c. shall living, for the further term of fourteen years, excepting in "^ '^'"" the case or cases where such person or persons shall by sale or otherwise have divested himself herself or them- selves of such right of making or disposing of any new and original sculpture or model or copy or cast of any of the matters or things herein-before mentioned previous to the passing of this Act. i» 42 APPENDIX. 54 George III. c. 156. — An Act to amend the sev- eral Acts for the Encouragement of Learning, by secnring the Copies and Copyright of printed Books to the Authors of such Books, or their As- signs.— [29//t July 1814.] " Whereas by an Act made in the eighth year of the reign of her late Majesty Queen Anne, intituled An Act ' for the Encouragement ofLearnmg^ hy vesting the Copies of printed Books in the Authors or Purchasers of such Copies during the times therein mentioned, it was among other things provided and enacted, That nine copies of each book or books upon the best paper that from and after the said tenth day o^ April one thousand seven hun- dred and ten should be printed and published as in the said Act mentioned, or reprinted and published with additions, should by the printer and printers thereof be delivered to the warehouse-keeper of the Company of Stationers for the time being at the hall of the said Com- pany before such publication made for the use of the royal library, the libraries of the universities of Oxford and Cambridge, the libraries of the four universities in Scotland the library of Sion College in London, and library of the Faculty of Advocates at Edinhurgh ; which said warehouse-keeper is by the said Act required to de- liver such copies for the use of the said libraries ; and that if any proprietor bookseller or printer or the said warehouse-keeper should not observe the directions of the said Act therein, that then he or they so making default in not delivering the said printed copies should forfeit be- sides the value of the said printed copies the sum of five 41 G. III. pounds for every copy not so delivered : And whereas by ^^in^ s an Act made in the forty-first year of the reign of his pre- sent Majesty, intituled An Act for the further Encourage- ment of Learning in the United Kingdom of Great Brit- ain and Ireland, hy securing the Copies and Copyright of printed Books to the Authors of such Books or their as- signs for the time herein mentioned, it is amongst other APPENDIX. 43 things provided and enacted, That in addition to the nine o4G.III. copies required by law to be delivered to the warehouse- c- 156. keeper of the said Company of Stationers of each and every book and books which sliall be entered in the re- gister books of the said company two other copies shall in like manner be delivered for the use of the library of the college of the Holy Trinity and the library of the society of the King's Inns in Dublin by the printer and printers of all and every such book and books as should thereafter be printed and published and the title of the copyright whereof should be entered in the said register book of the said Company : And whereas it is expedient that co- pies of books hereafter printed or published should be delivered to the libraries herein-after mentioned with the modifications that sliall be provided by this Act ;" 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 so much of the said several recited Acts of the eighth year of Queen Anne and of the forty-first year of his present Majesty as re ' use ol pub- liclibraries. 44 APPENDIX. 54 G. III. published on demand thereof being made in writing to or c. 156. left at the place of abode of the publisher or publishers thereof at any time within twelve months next after the publication thereof under the hand of the warehouse- keeper of the Company of Stationers or the librarian or other person thereto authorized by the persons or body politic and corporate proprietors or managers of the libra- ries following, videlicet the British Museum Sion College the Bodleian Library at Oxford the Public Library at Cambridge the library of the Faculty of Advocates at Edinburgh, the libraries of the four universities of Scot- land Trinity College Library and the King's Inns Li- brary at Dublin, or so many of such eleven copies as shall be respectively demanded on behalf of such libraries respectively, shall be delivered by the publisher or pub- lishers thereof respectively within one month after de- mand made thereof in writing as aforesaid to the ware- house-keeper of the said Company of Stationers for the time being ; which copies the said warehouse-keeper shall and he is hereby required to receive at the hall of the said Company for the use of the library for which such demand shall be made within such twelve months as aforesaid ; and the said warehouse-keeper is hereby re- quired within one month after any such book or volume shall be so delivered to him as aforesaid to deliver the same for the use of such library : and if any publisher or the warehouse-keeper of the said Company of Stationers shall not observe the directions of this Act therein, that then he and they so making default in not delivering or receiving the said eleven printed copies as aforesaid shall forfeit besides the value of the said printed copies the sum of five pounds for each copy not so delivered or re- ceived together with the full costs of suit ; the same to be recovered by the person or persons or body politic or corporate proprietors or managers of the library for the use whereof such copy or copies ought to have been de- livered or received ; for which penalties and value such person or persons body politic or corporate is or are now hereby authorized to sue by action of debt or other Publishers, &c. neg- lecting. Penalty. APPENDIX. 45 proper action in any court of record in the United King- ."J'lG.III. doni. c. 150. III. Provided always and be it further enacted, That ^^'"'^"'*^ •' ' ISo copies no such printed copy or copies shall be demanded by or of scconil, delivered to or for the use of any of the libraries herein- without'"" before mentioned of the second edition or of any subse- ajl«l'''o.n ">" ,. . ^ , , , , , , , , alteration, quent edition ot any book or books so demanded and demanded. delivered as aforesaid, unless the same shall contain addi- tions or alterations : and in case any edition after the first of any book so demanded and delivered as aforesaid shall contain any addition or alteration no printed copy or Additions copies thereof shall be demanded or delivered as afore- printed and ciGlivcrGci said, if a printed copy of such additions or alterations separate. only printed in an uniform manner with the former edi- tion of such book be delivered to each of the libraries aforesaid, for whose use a copy of the former edition shall have been demanded and delivered as aforesaid : Provi- ded also, that the copy of every book that shall be de- Proviso for manded by the British Museum shall be delivered of the ^Juseilm best paper on which such work shall be printed. IV. "And whereas by the said recited Acts of the s Anne, eighth year of Queen Anne and the forty-first year of his ^^ ^^%li 41 VT, HI. present Majesty's reign it is enacted that the author of (U. K.) any book or books and the assignee or assigns of such '^' ^'-''^ ^• author respectively, should have the sole liberty of print- Inst'^afl of ing and reprinting such book or books for the term of for u years fourteen years, to commence from the day of first pub- ^"ntiy^fo"'' lishiug the same and no longer; and it was provided, that i' more. r. .1 • ■ c 1 "• 1 ^ r , aiithors,&c. alter tiie expiration ot the said term of fourteen years, the shall have right of printiniT or disposing of copies should return to -^ years' , '^ ° r 3 r copyrisjht the authors thereof, if they were then living, for another in works, term of fourteen years: And whereas it will alTord further dueofhfe' encouragement to literature if the duration of such copy- right were extended in manner herein-after mentioned ;" Be it further enacted. That from and after the passing of this Act the author of any book or books composed and not printed and published, or which shall hereafter be composed and be printed and published and his assignee or assigns shall have the sole liberty of printing and 46 APPENDIX. 54 G. III. c. 15G. Booksel- lers, &c. in any part of United Kingdom, or British dominions, who shall print, &c. any book, •without consent of firoprietor, iable to action for damages. Penalty. 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 shall be living at the end of that period for the residue of his natural life ; and that if any bookseller or printer or other person whatsoever in any part of the United Kingdom of Great. Britain and Ireland in the Isles of Man Jersey or Guernsey or in any other part of the British dominions shall from and after the passing of this Act, within the terms and times grant- ed and limited l)y this Act as aforesaid, print reprint or import or shall cause to be printed reprinted or imported any such book or books without the consent of the author or authors or other proprietor or proprietors of the copy- ricrht of and in such book and books first had and obtain- ed in writing ; or knowing the same to be so printed re- printed or imported without such consent of such author or authors or other proprietor or proprietors, shall sell, publish or expose to sale or cause to be sold published or exposed to sale or shall have in his or their possession for sale any such book or books without such consent first had and obtained as aforesaid, then such offender or offenders shall be liable to a special action on the case at the suit of the author or authors or other proprietor or proprietors of the copyright of such book or books so unlawfully printed reprinted or imported or published or exposed to sale or being in the possession of such offender or offenders for sale as aforesaid contrary to the true intent and meaning of this Act : and every such author or authors or other proprietor or proprietors shall and may by and in such special action upon the case to be so brought against such offender or offenders in any court of record in that part of the said United Kingdom or of the British dominions in which the ofience shall be committed, recover such damages as the jury on the trial of such action or on the execution of a writ of enquiry thereon, shall give give or assess together with double costs of suit; in which action no wager of law essoign privilege or protection nor more tlian one imparlance shall be allowed ; and all and every such offender and APPENDIX. 47 offenders shall also forfeit such book or books and all and 54 G. III. every sheet being part of such book or books, and shall c. loG. deliver the same to the author or authors or other propri- etor or proprietors of the copyright of such book or books upon order of any court of record in which any action or suit in law or equity shall be commenced or prosecuted by such author or authors or other proprietor or proprie- tors to be made on motion or petition to the said court; and the said author or authors or other proprietor or pro- prietors shall forthwith damask or njake waste paper of the said book or books and sheet or sheets ; and all and every such offender or offenders shall also forfeit the Penalty, sum of three pence for every sheet thereof either printed or printing or 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 his heirs and successors, and the other moiety thereof to any per- son or persons who shall sue for the same, in any such court of record by action of debt bill plaint or informa- tion, in which no wager of law essoign privilege or pro- tection nor more than one imparlance shall be allowed : Provided always, that in Scotla7id such offender or offend- offenders ers shall be liable to an action of damages in the court of '"^'^°^^^'^'^- session in Scolland, which shall and may be brought and prosecuted in the same manner in which any other action of damages to the like amount may be brought and pro- secuted there ; and in any such action where damages shall be awarded double costs of suit or expenses of pro- cess shall be allowed. V. And in order to ascertain what books shall be from Within time to time publi.-^hed, Beit enacted, That the publisher tiiie of or publishers of any and every book demanduble under l'<»>l>aretiouse val tlian tnree montlis, tran.«mit to the librarian or other keeper of person authorized on behalf of the libraries before men- Halrtr"^*' tioned correct lists of all books entered in the books of ""^"sni'i to .1 • 1 /-, 1 ^ ... - ,. , librarians the said Company and not contained in former lists; and lists of that on beintr retiuired so to do by tlie said librarians or books en- ° ' -•' tered ; and other authorized person or either of them, he shall call callon pub- on the publisher or publishers of such books for as many copies. °' of the said copies as may have been demanded of them. VII. Provided always and be it further enacted. That Publishers if any publisher shall be desirous of delivering the copy {.oo^s'^T of such book or volume as aforesaid as shall be demanded library. on behalf of any of the said libraries at such library, it shall and may be lawful for him to deliver the same at such library to the librarian or other person authorized to receive the same (who is hereby required to receive and to give a receipt in writing for the same) : and such ^vhat delivery shall to all intents and i)urposes of this Act be as deemed de- I 11- 1-1 1 . livery, equivalent to a delivery to the said warehouse-keeper. VIII. And whereas it is reasonable that authors of Authors of books already published and who are now livinor should I'ooks pub- 11 ii.'f.i • ,. ° lished, now also have the benefit of the extension of copyright ; Be it livinj?, lo further enacted, That if the author of any book or books Jreiea-^^ which shall not have been published fourteen years at the sion of time of passing this Act shall be living at the said time, '^°*'^'^'^ *' and if such author shall afterwards die before the expira- tion of the said fourteen years, then the personal repre- sentative of the said author and the assignees or assigns of such personal representative shall have the sole right of printing and publishing the said book or books for the further term of fourteen years after the expiration of the first fourteen years : Provided that nothing in this Act p^^^jg^ contained jhall affect the right of the assignee or assioms of such author to sell any copies of the said book or books vvhicii shall have been printed by such assignee or assiirns within the first fourteen years or the terms of any con- tract between such author and such assignee or assio^ns. o o e 50 APPENDIX. 54 G. III. c. 156. Authors living at end of 23 years sole right of publication for life. Limitation of actions. IX. And be it also further enacted, That if the author of any book or books whicli have been already published shall be living at the end of twenty-eight years after the first publication of the said book or books, he or she shall for the remainder of his or her life have the sole right of printing and publishing the same : Provided that this shall not affect the right of the assignee or assigns of such author to sell any copies of the said book or books which shall have been printed by such assignee or assigns within the said twenty-eight years or the terms of any contract between such author and such assignee or assigns. X. Provided nevertheless and be it further enacted, That all actions suits bills indictments or informations for any offence that shall be committed against this Act shall be brought sued and commenced within twelve months next after such offence committed, or else the same shall be void and of no effect. APPENDIX. 51 3 Will. IV. c. l''j. — An Act to amend the Laws relating to Dramatic and Ijitcrary Property. — [10/A June 1833.] Whereas by an Act passed in the fifty-fourth year of the 3 "\V. IV reign of his late Majesty King George the Third, intituled c. 15. " An Act to amend the several Acts for the Encourage- ment 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 en- acted, 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 pe- riod, 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 assembled, and by the authority of the same, That from The author and after the passing of this act the author of any trage- of^nydra- r o J s malic piece dy, comedy, play, opera, farce, or any other dramatic shall have piece or entertainment, composed, and not printed and f,erty^ihe published by the author thereof or his assignee, or which ^"'^^ liherty hereafter shall be composed, and not printed or published scmingit, by the author thereof or his assignee, or the assicrnee of "/' ^""s'ng •' . o It to be re- such author, shall have as his own property the sole lib- presented, erty of representing, or causing to be represented, at any of dramatk place or places of dramatic entertainment whatsoever, in ^'itertain- any part of the United Kingdom of Great Britain and Ire- land, 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 52 APPENDIX. 3W. IV. proprietor thereof; and that the author of any such pro- c. 15. duction, printed and published within ten years before the passing of this act by the author thereof or his as- signee, or which shall hereafter be so printed and publish- ed, or the assignee of such author, shall, from the time of passing this act, or from the time of such publication re- spectively, until the end of twenty-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 there- Proviso as of: provided nevertheless, that nothing in this act con- to cases tained shall prejudice, alter, or affect the right or author- where, pre- 1 J ' » o vious to the ity of any person to represent or cause to be represented, thfs^aH a ^^ ^"y pJfice or places of dramatic entertainment whatso- consent has ever, any such production as aforesaid, in all cases in been '^ivcn. " ' 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. Penalty on II. And be it further enacted. That if any person shall, performing' during the continuance of such sole liberty as aforesaid, pieces con- contrary to the intent of this act, or right of the author or trarytolhis •' , j • , act. his assignee, represent, or cause to be represented, with- out the consent in writing of the author or other proprie- tor first had and obtained, at any place of dramatic enter- tainment 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 the greater damages, to the author or other proprietor of such pro- duction so represented contrary to the true intent and APPENDIX. 53 meaning of this act, to be recovered, togctlier with double 3 W. IV. costs of suit, by such autlior or other proprietors, in any ^- l'^- court having jurisdiction in such cases in that part of the said United Kingdom or of the British dominions in which the ofiencc shall be committed ; and in every such pro- ceeding where the sole liberty of sucli author or his as- signee as aforesaid shall be subject to such right or au- thority as aforesaid, it shall be sufficient for the plaintiff to state tliat he has such sole liberty, without stating the same to be subject to such right or authority, or other- wise mentioning the same. III. Provided nevertheless, and be it further enacted, Limitation That all actions or proceedings for any offence or injury ^ actions, 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 shall be void and of no effect. IV. And be it further enacted, That whenever authors, E^cplana- persons, offenders, or others are spoken of in this act in words, the singular number or in the masculine gender, the same shall extend to any number of persons and to either sex. 54 APPENDIX. 5 & 6 W. IV. — An Act for preventing the Publica- tion of Lectures without Consent. — [9lh Septem- ber 1SS5.] 5 & 6 Whereas printers, publishers, and other persons have Will. IV. frequently taken the liberty of printing and publishing '^"^"^''''"^^ lectures delivered upon divers subjects, without the con- sent of the authors of such lectures, or the persons de- livering the same in public, to the great detriment of such Authors of authors and lecturers: Be it enacted, &c., That from their as- and after the first day of September one thousand eight signs to hundred and thirty-five the author of any lecture or lec- have the •' i i i • sole right tures, or the person to whom he hath sold or otherwise theni^''^^ conveyed the copy thereof, in order to deliver the same in any school, seminary, institution, or other place, or for any other purpose, shall have the sole right and liberty Penalty on ^^f printinor and publishing such lecture or lectures; and other per- r a i o sons puh- that if any person shall, by taking down the same in short ye^c'tln-es^'^" ^^"^ ^^ Otherwise in writing, or in any other way, ob- without tain or 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 the au- thor thereof, or of the person to whom the author thereof hath sold or otherwise conveyed the same, and every per- son 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, published, 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, litho- graphed, 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 APPENDIX. 55 Westminstor by action of debt, bill, plaint, or informa- 5 & 6 tion, in which no wager of law, essoign, privilege, or pro- Will. IV. tection, or more than one imparlance, shall be allowed. n. That any printer or publisher of any newspaper Penalty on who shall, without such leave as aforesaid, print and pub- pui"i,*^|ferJ lish in such newspaper any lecture or lectures, shall be oinewspa- , pprs pub- deemed and taken to be a person printing and publish- fishing icc- ing without leave within the provisions of this act, and "^".'jl ^^*^" liable to the aforesaid forfeitures and penalties in respect of such printing and publishing. III. That no person allowed for certain fee and reward, Persons or otherwise, to attend and be present at any lecture de- jea^v" *to at- livered in any place, shall be deemed and taken to be tend lec- ,. , , , . 111-11 tures not on licensed or to have leave to print, copy, and publish such that ac- lectures only because of having leave to attend such lee- count licen- ■' " sed to pub- ture or lectures. lish them. IV. Provided always, That nothing in this act shall Act not to .... ^ . . . , prohibit the extend to prohibit any person Irom printing, copying, and pui.lishing publishing any lecture or lectures which have or shall °[J^'^^'"he* have been printed and published with leave of the au- expiration thors thereof or their assignees, and whereof the time "iglit*^'^''^'^ 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 queen Anne, intituled An s Anne, Act for the Encouragement of Learning, hij vesting the Copies of Printed Books in the Authors or Purchaser's of such Copies during the Times therein mentioned, and by another passed in the fifty-fourth year of the reign of kin<: Geortre the tliird, intituled An Act to amend the sev- 54 G. III. c. 156. eral 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. V. Provided further. That nothing in this act shall ex- Act not to tend to any lecture or lectures, or the printing, copying, jp^ctures de- or publishincr any lecture or lectures, or parts thereof, of livercd in 111- - / 1 - 1 - - 1 11 u unlicensed the delivering of which notice in writing shall not have places, &c. been given to two justices living within five miles from 56 APPENDIX. ^5 & G the place where such lecture or lectures shall be deliver- "Will. IV. ed two days at the least before delivering the same, or 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, endowment, or foundation ; and that the law relating thereto shall remain the same as if this act had not been passed. APPENDIX. 57 1 & 2 Vict. c. 59. — An Act for securing to Authors, in certain Cases, the Benefit of International Copy- right. — [Sist July 1838.] Whereas it is desirable to afford protection within lier I & 2 Majesty's dominions to the authors of books first publish- Vict. ed in foreign countries, and their assigns, in cases where ^- •^"• protection shall be afforded in such foreign countries to HerMaies- the authors of books first published in her Majesty's do- ly, l>y order , , . 1 • 1 c J 1 in council, minions, and their assigns ; be it therefore enacted by ^ay direct the dueen's most excellent Majesty, by and with the ad- that authors vice and consent of the lords spiritual and temporal, and first pub- commons, in this present parliament assembled, and by fo%Ln'" the autliority of the same, Tliat it shall be lawful for her countries, ,, . , , ,- 1 1 T • -1 1- ''"'fl their Majesty, by any order of lier Majesty in council, to direct assigns, that the authors of books which shall, after a future time *''"'^ ^^^l.. . . * copyright to be specified in such order in council, be published in in such any foreign country to be specified in such order in coun- j^ j,pf j^l^/ cil, and their executors, administrators, and assigns, shall jcstys L 111 n • ■ 111 dominions. nave tlie sole liberty of printing and reprinting such books within the United Kingdom of Great Britain and Ireland, and every other part of the British dominions, for such term as her Majesty shall by such order in council direct, not exceeding the term which authors being British sub- jects are now by law entitled to in respect of books first publislied within the United Kingdom; provided that no such author or his assigns shall be entitled to the benefit of this act unless, within a time to be in that behalf pre- scribed by such order in council, the title to the copy of .pj,]^ ^^ every such book, and the name and place of abode of the book to be author thereof, and the time and place of the first publi- stationers' cation thereof in such foreign country, shall be entered Hall, and o J J one copy in the register book of the Company of Stationers in delivered to London ; and unless, within a time to be also prescribed i,ouse by such order in council, one printed copy of the whole keeper, of such book and of every volume thereof, upon the best paper upon which the largest number or impressions of such book sliall have been printed for sale, together with 58 APPENDIX. 1 &, 2 all maps and prints relating thereto, shall be delivered to Vict, the warehouse-keeper of the Company of Stationers at c. o9. ^]^Q }jjjji of ilie said company, la case of ^^- Provided always, and be it enacted, That if a book books pub- be published anonymously it shall be sufficient to insert lished anon- . , i ^ • i • i i i j ymously, m the entry thereot in such register book the name and the name of pj^ce of abode of the first publisher thereof, instead of the publish- ' ' ' er to be the name and place of abode of the author thereof, toge- su cien . ^Y^Qj ^yjth a declaration that such entry is made either on behalf of the author or on behalf of such first publisher, as the case may require. Wrongful III. And be it enacted, That every such entry shall be first pubh- pyijyifi facie proof of a rightful first publication ; but if cation may ^ J i . . be amended there be a wrongful first publication, and any party have cJhancery." availed himself thereof to obtain an entry of a spurious work, the author or his first publisher may apply by peti- tion or on motion to the Court of Chancery to order such entry to be amended ; but no such order shall be made unless it be proved to the satisfaction of the said court, first with respect to a wrongful publication in a country to which the 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 pub- lisher, as the case requires; second, with respect to a wrongful first publication either in the country where a rightful first publication has taken place, or in regard to which there subsists with this country a treaty of interna- tional copyright, that a court of competent jurisdiction in any such country where such wrongful first publication has taken place has given judgment in favor of the right of the party claiming to be the author or first publisher. Register IV. And be it enacted, That such register book shall kept at ^ ^* ^'' times be kept at the hall of the said company, and Stationers' for every such entry the sum of two sliillinjrs, and no Hall, and to /„ ^ • , , , • , , b* open to more, shall be paid, and the same register book may at inspection, j^]] seasonable and convenient times be inspected by any person on payment of the sum of one shilling, and no more, to the warehouse keeper of the said Company of APPENDIX. 59 Stationers ; and such warehouse keeper shall, when and 1 6i, 2 as often as thereto required, give a certificate under his Vict. liand of every or any sucli entry and delivery, and of the c. oJ. time of making the same respectively, and for every such certificate certificate the sum of one shilling shall be paid : and such ''V ^^f^- . . house certificate, upon proof of the handwriting of the person keeper. signing the same, and that sucli person was in fact the warehouse keeper of the said company, shall without fur- ther proof be admitted in all courts as evidence of such entry and delivery, and of the time of making the same respectively. V. And be it enacted, That the said warehouse keeper Warehouse shall receive at the hall of the said company every book JjeposiV* or volume so to be delivered as aforesaid, and within one books in calendar month after receiving such book or volume shall Museum. deposit the same in the library of the British Museum. VI. Provided always, and be it enacted, that it shall Second or not be requisite to deliver to the warehouse keeper of the edl'tlons^"' said Stationers' Company any printed copy of the second or of any subsequent edition of any book or books so de- livered as aforesaid, unless the same shall contain addi- tions or alterations ; and in case any edition after the first of any book so delivered as aforesaid shall contain any addition or alteration, it shall not be requisite to de- liver any printed copies thereof, if one printed copy of such additions or alterations only, printed in an uniform manner with the former edition of such book, be, within a time in that behalf to be prescribed by any such order in council as aforesaid, delivered to the warehouse keeper of the said Company of Stationers. VII. And be it enacted. That the respective terms to Orders in , r I I II- 1 • 1 <- 1 coiitKJlmay be specined by such orders in council respectively tor tiie specify continuance of the privilecre to be granted to the authors ^^'^crent ^ ' •=. . '^ . periods for of books to be first published in foreign countries, and different their respective assigns, may be difierent for books first t-ounmes published in ditFereiit foreign countries, and that the ^'^• times to be prescril)ed for the entry of the titles to the copies of such books, and the delivery to the said ware- house keeper of the aforesaid copy, may be dilVorent for 60 APPENDIX. different foreign countries and for different classes of books. VIII. And be it enacted, That if any bookseller or printer, or other person whatsoever, in any part of the United Kingdom of Great Britain and Ireland, or in any other part of the British dominions, shall, within the term wYidi'orde'r ^^ ^® limited by any such order in council, print, reprint, in council or import for sale, or cause to be printed, reprinted, or without ' imported for sale, any book to which such order in coun- consent of ^.jj g\^^\\ extend, without the consent of the author or proprietor, ' liable to Other proprietor of the copyright of and in. such book first pena ties. ^^^ ^^^ obtained in writing, or, knowing the same to be so printed, reprinted, or imported for sale without such consent of such author or other proprietor, shall sell, pub- lish, or expose to sale, or cause to be sold, published, or exposed to sale, or have in his possession for sale, any such book without such consent first had and obtained as aforesaid, then every such offender shall be liable to a special action on the case, at the suit of the author or other proprietor of the copyright of and in such book so unlawfully printed, reprinted, imported, or published or exposed to sale, or being in the possession of such offend- er for sale as aforesaid, contrary to the true intent and meaning of this act; and every such author or other pro- prietor shall and may, by and in such special action on the case to be so brought against such offender in any court of record in that part of the said United Kingdom or of the British dominions in which the offence shall be committed, recover such damages as the 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, in which action no privilege or protection shall be allowed ; and every such offender shall also forfeit such book, and every sheet being part of such book, and shall upon order of any court of record in which any action at law or suit in equity shall be commenced or prosecuted by such author or other proprietor, to be made on motion or petition to the said court, deliver the same to the author or other proprietor of the copyright of such book, or to his APPENDIX. 61 attorney or agent to be thereto lawfully authorized, and he 1 (St. 2 shall forthwith damask or make waste paper of the same ; Vict. and every such ofiender shall also forfeit the sura of three- ^^^^jL, pence for every sheet thereof, either printed or printing, or published or exposed to sale contrary to the true in- 4 tent and meaning of this act ; the one moiety thereof to her Majesty, and the other moiety thereof to any person who shall sue for the same in any such court of record by action of debt, bill, plaint, or information, in which no privilege or protection shall be allowed : provided always, that in Scotland such offender shall be liable to an action of damages in the court of Session in Scotland, which shall and may be brought and prosecuted in the same manner in which any other action of damages to the like amount may be brought and prosecuted there, and in any such action where damages shall be awarded double costs of suit or expenses of process shall be allowed. IX. Provided always, and be it enacted. That no such No order in order in council shall have any effect unless it shall be havrany" therein stated, as the ground for issuincr the same, that ^^'^^^ ^^' due protection for the benefit of the authors of printed states that books first published in the dominions of her Majesty, '''^ciprocal and their assigns, has been secured by the foreign power is secured, in whose dominions the books to which such order in council shall relate shall be first published. X. And be it enacted. That it shall be lawful for her Orders ia •.,.., ,. 1/- council may Majesty, by an order m council, Irom time to time to re- be revoked. voke or alter any order in council previously made under the authority of this act, but nevertheless without preju- dice to any rights acquired previously to such revocation or alteration. XI. And be it enacted. That every order in council to Orders in be made under the authority of this act shall, as soon as be'publish- may be after the making thereof by her Majesty in coun- ^'^ ^'^ ^^- cil, be published in the London Gazette, and from the to have time of such publication shall have the same effect as if ^^"li'.cfloct ' . as tins act. every part thereof were included in this act. Orders in XII. And be it enacted. That a copy of every order of "^'^*^" '" ' * J J council to be laid before pi liament. her Majesty in council made under this act shall be laid be laid r before par- 62 APPENDIX. 1&,2 Vict, c. 59. Transla- lions'if books first published abroad. Foreign au- thors not entitled to copyright except un- der this act Limitation of actions. Interpreta- tion clause. 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. XIII. Provided always, and be it enacted, that nothing 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. XIV. And be it enacted, That the author of any book to be after the passing of this act first published out of her Majesty's dominions, or his assigns, shall have no copyright therein within her Majesty's dominions other- wise than such (if any) as he may become entitled to under this act. XV. Provided nevertheless, and be it enacted, that all actions, suits, bills, indictments, or informations for any ofience that shall be committed against this act shall be brought, sued, and commenced within twelve months next after such offence committed, and not afterwards. XVI. And be it enacted, That in the construction of this act the word " book" shall be construed to include " volume," " pamphlet," " sheet of letter-press," " sheet of music," " map," " chart," or " plan" ; and the words "printing" and "reprinting" shall include engraving and any other method of multiplying copies ; and the ex- pression " her Majesty " shall include the heirs and suc- cessors of her Majesty ; and the expressions " order of her Majesty in council " and " order in council " shall respectively mean order of her Majesty, acting by and with the advice of her Majesty's most honourable privy council ; and in describing any persons or things any word importing the plural number shall mean also one person or thing, and any word importing the singular number shall include several persons or things, and any word importing the masculine shall include also the femi- nine gender ; unless in any of such cases there shall be something in the subject or context repugnant to such construction. APPENDIX. 63 XVII. And be it enacted, That this act may be amend- 1 &, 2 ed or repealed by any act to be passed in this present Vict session of parliament. ^- ^^• Act niay*bc- amended 64 APPENDIX. 5 & 6 Vict. c. 45. — An Act to amend the Law of Copyright. — [1^^ July, 1842.] 5&6 Whereas it is expedient to amend the law relating to Vict. copyright, and to afford greater encouragement to the c. 45. production of literary works of lasting benefit to the ^■^"'^''"^^ world ; be it enacted by the Queen's most excellent Ma- jesty, 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, Repeal of That from the passing of this act, an act passed in the former acts; gjgj^jjj yg^j. of the reign of her Majesty Queen Anne, in- 8 Anne, tituled " An Act for the Encouragement of Learning, by C. 19. . . . a' J vesting the copies of printed books in the authors or pur- chasers of such copies during the times therein mention- ed ;" and also an Act passed in the forty-first year of the reign of his Majesty King George the Third, intituled G III " ^^ ^^* ^^^^ ^^^ further Encouragement of Learning in c. 107. the United Kingdom of Great Britain and Ireland, by se- curing the copies and copyright of printed books to the authors of such books, or their assigns, for the time therein mentioned ;" and also an act passed in the fifty-fourth year of the reign of his Majesty King George the Third, 54 Geo. III. intituled " An Act to amend the several Acts for the En- couragement of Learning, by securing the copies and copyright of printed books to the authors of such books, or their assigns," be and the same are hereby repealed, except so far as the continuance of either of them may be necessary for carrying on or giving effect to any proceed- ings at law or in equity pending at the time of passing this act, or for enforcing any cause of action or suit, or any right or contract, then subsisting. Interpreta- II. And be it enacted, That in the construction of tionofact. ^jjjg act, the word "book" shall be construed to mean and include every volume, part or division of a volume, pamphlet, sheet of letter-press, sheet of music, map, chart, or plan separately published ; that the words " dramatic piece " shall be construed to mean and include every APPENDIX. 65 tragedy, comedy, play, opera, farce, or other scenic, niu- 5 &. (» sical, or dramatic entertainment ; that the word " copy- Vict, right" shall be construed to mean the sole and exclusive ^' 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 acquir- ed by sale, gift, bequest, or by operation of law, or other- wise ; that the words " British dominions " shall be con- strued to mean and include all parts of the United King- dom of Gre.1t 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 whenever 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 under- stood to include 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 there shall be something in the sub- ject or context repugnant to such construction. III. And be it enacted. That the copyright in every tniluranc book which shall after the passing of this act be published copyright in the lifetime of its author shall endure for the natural inanv book hereafter to life of such author, and for the further term of seven be publish years, commencing at the time of his death, and shall be ufe't^me'^of the property of such author and his assigns : provided th*? auilior ; always, that if tlie 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 if published every book which shall be published after the death of its ''"•^'" ^^e L 1 11 1 z' 1 ■ n r author's author shall endure tor the term ol forty-two years from deatli 66 APPENDIX. 5 & G the first publication thereof, and shall be the property of ^^'^l' the proprietor of the author's manuscript from which ^^^1.^^* such book shall be first published, and his assigns. In cases of IV. And whereas it is just to extend the benefits of this co^^r^Tf act to authors of books published before the passing the term to thereof, and in which copyright still subsists; be it enact- ed, elccepi ^^> That the copyright which at the time of the passing when it of this act shall subsist in any book theretofore published shall be- , , . ^ • ix , ,i i i i j long to an (except as heremafter mentioned) shall be extended and otheTcon-"^ endure for the full term provided by this act in cases of sideration books thereafter published, and shall be the property of love and the person who at the time of passing of this act shall be affection ; ^jjg proprietor of such copyright : provided always, that case it shall in all cases in which such copyright shall belong in whole expkaUola^ or in part to a publisher or other person who shall have of the pre- acquired it for other consideration than that of natural unless its' love and affection, such copyright shall not be extended extension j^ ^j^j ^^^ ^^^^ gj^^jj g^dure for the term which shall sub- be agreed to ^ ' between the sist therein at the time of passing of this act, and no and''the° longer, unless the author of such book, if he shall be liv- author. i^g, or the personal representative of such author, if he shall be dead, and the proprietor of such copyright, 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 entered in the book of registry hereinafter 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 shall be the property of such person or persons as in such minute shall be expressed. Judicial V. And whereas it is expedient to provide against the of Th'e privy suppression of books of importance to the public ; be it council may enacted. That it shall be lawful for the Judicial Commit- license the ^i ht ■ i t. • ^ -i i • i . republica- tee of her Majesty s rnvy Council, on complaint made to iion^of them that the proprietor of the copyright in any book which the after the death of its author has refused to republish or proprietor refuses to republish after death of the author APPENDIX. 67 to allow the republication of the same, and that by reason 5 &l of such refusal such book may be withheld from the pub- Vict, lie, to grant a licence to such complainant to publish ^- ^'^• such book, in such manner and subject to such condi- tions 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, Thai a printed copy of the Copies of whole of every book which shall be published after the iished aSr passing of this act, together with all maps, prints, or other the pssing engravings belonging thereto, finished and coloured inaiuiofall the same manner as the best copies of the same shall be cdh*i,Tn"^"/„ published, and also of any second or subsequent edition be delivered which shall be so published with any additions or altera- tain timer tions, whether the same shall be in letter-press, or in the ^} ^'^^ '■ ' British maps, prmts, or other engravings belonging thereto, and Museum 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 delivered 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 calen- dar 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 calandar months if the same shall first be sold, published or offered for sale in any other part of the United Kingdom, or within twelve cal- endar months after the same shall first be sold, published, or offered for sale in any other part of the British domin- ions, be delivered, on behalf of the publisher thereof, at the British Museum. VII. And be it enacted, That every copy of any book Mode of de- which under the provisions of this act ought to be deliv- tiR^ilmish ered as aforesaid shall be delivered at the British Museum Museum. between the hours of ten in the forenoon and four in the afternoon on any day except Sunday, Ash Wednesday, Good Friday, and Christmas Day, to one of the officers of the said Museum, or to some person authorized by the 68 APPENDIX. 5&,6 trustees of the said Museum to receive the same ; and Vict, such officer or other person receiving such copy is here- c. 4o. ^y required to o J Books may justices of the peace for the county or place in which be seized such book shall be found, shall also for every such offence oi^ customs forfeit the sum of ten pounds, and double the value of or excise, every copy of such book which he shall so import or cause to be imported into any part of the British domin- ions, or shall knowingly sell, publish, or expose to sale or let to hire, or shall cause to be sold, published, or ex- posed to sale or let to hire, or shall have in his posses- sion 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 as to the or other person shall, before or at the time of the passing copyright ^ ' . * =» in encyclo- of this act, have projected, conducted, and carried on, or pa'dias, pc- shall hereafter project, conduct and carry on, or be the "ml works proprietor of any cncyclopajdia, review, magazine, peri- punished odical work, or work published in a series of books or rcviuw-s, or' parts, or any book whatsoever, and shall have employed "lagazincs. or shall employ any persons to compose the same, or any volumes, parts, essays, articles, or portions thereof, for g 74 APPENDIX. 5 & 6 publication in or as part of the same, and such work, Vict. volumes, parts, essays, articles, or portions shall have ^J^J^ been or shall hereafter be composed under such employ- ment, on the terms that the copyright therein shall be- long to such proprietor, projector, publisher, or conductor, and paid for by such proprietor, projector, publisher, or conductor, the copyright in every such encyclopsedia, re- view, magazine, periodical work, and work published in a series of books or parts, and in every volume, part, es- say, article, and portion so composed and paid for, shall be the property of such proprietor, projector, publisher, or other conductor, who shall enjoy the 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 reviews, 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, publisher, or conductor shall not publish any such essay, article, or portion separately or singly without the consent previously obtained of the Proviso for author thereof, or his assigns : provided also, that nothing vvho°hav6 herein contained shall alter or affect the right of any reserved person who shall have been or who shall be so employed the right of *^ „ . , , ,. , ... ... puhlishiiig as aforesaid to publish any such his composition m a sep- their arti- jjrate form, who by any contract, express or implied, may separate have reserved or may hereafter reserve to himself such right; but every author reserving, retaining, or having such right shall be entitled to the copyright in such com- position when published in a separate form, according to this act, without prejudice to the right of such proprietor, projector, publisher, or conductor as aforesaid. Proprietors XIX. And be it enacted. That the proprietor of the ofencyclo- copyright in any encyclopaedia, review, magazine, period- rioclical's, ical work, or other work published in a series of books APPENDIX. iO or parts, shall be entitled to all the benefits of the regis- tration a Stationers' Hall under this act, on entering in the said book of registry the title of such cnc}'cl()i);udia, review, periodical work, or other work published in a .^^ JoruT series of books or parts, the time of the first publication pui'lisheii of the first volume, number, or part thereof, or of the first niajfiiter number or \olume first published after the i)a.«sinl'j:'e- maps, charts, and books, to the authors and proprietors niaps, of such copies, during the time therein mentioned," he books.' ""^ shall, in addition to the requisites enjoined in the third i^so. c. 15. and fourth sections of said act, if a book or books, give information by causing the copy of the record, which, by said act he is re(iuired to publish in one or more of the newspapers, to be inserted at full length in the title-page or in the page immediately following the title of every such book or books ; and if a map or chart, shall cause the following words to be impressed on the face thereof, viz : " Entered according to act of Congress, the day of 18 [here insert the date when the same was deposited in the office] hi/ A. B. of the state of [here insert the author's or proprietor's name and the state in which he resides.] Sec. 2. And be it further enacted, That from and after Same rules the first day of January next, every person being a citi- whh^^e- zen of the United States, or resident within the same. "P'^'^^' '" u 1 11 • 1 > ■ persons wtio shall invent and design, engrave, etch or work, or who shall invent, and design, engrave, etch, or work historical or other prinu h* 90 APPENDIX. Stat. from his own works and inventions, shall cause to be de- April 29, signed and engraved, etched or worked, any historical or ^ other print or prints, shall have the sole right and lib- erty of printing, re-printing, publishing and vending such print or prints, for the term of fourteen years from the recording the title thereof in the clerk's office, as pre- scribed by law for maps, charts, book or books : Pro- vided, he shall perform all the requisites in relation to such print or prints, as are directed in relation to maps, charts, book or books, in the third and fourth sections of the act to which this is a supplement, and shall moreover cause the same entry to be duly engraved on such plate, with the name of the proprietor, and printed on every such print or prints as is herein before required to be Penalties rnade on maps or charts. fngf°ftX Sec. 3. And be it further enacted, That if any printsell- ing or Qj. Qf other person whatsoever, from and after the said first working, or '^ .,., ■ i--ili,- copyingand day of January next, withm the time limited by this act, selling a j jj gn^j-ave, etch or work, as aforesaid, or in any other print or s> ' ' j i j prints, manner copy or sell, or cause to be engraved, etched, Consent ^of copied or sold, in the whole or in part, by varying, ad- the owner ^[^„ ^q or diminishing from the main design, or shall or owners, ° . . ^ , ^i-.j in writing, print, re-print, or import for sale, or cause to be printed, C c'^R reprinted, or imported for sale, any such print or prints, 48. or any parts thereof, without the consent of the proprie- tor or proprietors thereof, first had and obtained, in writ- ing, signed by him or them respectively, in the presence of two or more eredible witnesses ; or knowing the same to be so printed or re-printed, without the consent of tne proprietor or proprietors, shall publish, sell, or expose to sale or otherwise, or in any other manner dispose 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 copied or printed) to the proprietor or pro- prietors of such original print or prints, who shall forth- with destroy the same; and further, that every such APPENDIX. 91 offender or offenders shall forfeit one dollar for every print Stat, wiiich shall be found in his, her, or their custody ; either April 29, printed, published, or exposed to sale, or otherwise dis- I''"*'- posed of, contrary to the true intent and meaning of this a moiety of act, the one moiety thereof to any person who shall sue ''"^ forfeit- for the same, and the other moiety thereof to and for the one who use of the United States, to be recovered in any court f^'j thg"^ having competent jurisdiction thereof same. Sec. 4. And be it further enacted. That if any person ^,r"pui||ish- or persons from and after the passing of this act, shall ing maps, print or publish any map, chart, book or books, print or [,„ok|'or prints, who have not legally acquired the copyright of prims, but such map, chart, book or books, print or prints, and shall, prescribed contrary to the true intent and meaning of this act, insert ^y '^^• therein or impress thereon that the same has been en- tered according to act of Congress, or words purporting the same, or purporting that the copyright thereof has been acquired ; every person so offending shall forfeit and pay the sum of one hundred dollars, one moiety thereof to the person who shall sue for the same, and the other moiety thereof to and for the use of the United States, to be recovered by action of debt in any court of record in the United States, having cognizance thereof Limitation Provided always, that in every case for forfeitures herein o' action in before given, the action be commenced within two years feiture. from the time the cause of action may have arisen. Approved, April 29, 1802. 92 APPENDIX. III. An Act to extend the jurisdiction of the circuit courts of the United States to cases arising under the law relating to patents. Stat. Be it enacted by the Senate and House of Rcpresenta- Feb, 15, lives of the United Slates of America, in Congress assem- ^1£; bled, That the circuit courts of the United States shall have original cognizance, as well in equity as at law, of all actions, suits, controversies, and cases arising under any law of the United States, granting or confirming to authors or inventors the exclusive right to their respect- ive writings, inventions, and discoveries : and upon any bill in equity, filed by any party aggrieved in any such cases, shall have authority to grant injunctions, according to the course and principles of courts of equity, to pre- vent the violation of the rights of any authors or invent- ActofFeb. ors, secured to them by any laws of the United States, 21, 1793, c. ^^ ^^^j^ terms and conditions as the said courts may Act of May deem fit and reasonable : Provided, however. That from 31 1790 c. 'i5. ' all judgments and decrees of any circuit courts, rendered Proviso. jj^ ^]^g premises, a writ of error or appeal, as the case may require, shall lie to the Supreme Court of the United States, in the same manner, and under the same circum- stances, as is now provided by law in other judgments and decrees of such circuit courts. Approved, February 15, 1819. ATPENDIX. 93 An Act to amend the several acts respecting copy- rights. Be it enacted by the Senate and House of Representa- Stat. lives of the United Stales of America, in Congress ossein- Feb. 3, bled. That from and after the passing of this act, any l^-'^l- person or persons, being a citizen or citizens of the Authors of United States, or resident therein, who shall be the au- l^ooks &c. tnor or autriors ot any book or books, map, chart, or mu- execuiors, sical composition, which may be now made or composed, s^*Je^°ii'|Jt^^ and not printed and published, or shall hereafter be made for twemy- or composed, or who shall invent, design, etch, engrave, ^'^ 5 ears, work, or cause to be engraved, etched, or worked from his own design, any print or engraving, and the execu- tors, administrators, or legal assigns of such person or persons, shall have the sole right and liberty of printing, reprinting, publishing, and vending such book or books, map, chart, musical composition, print, cut, or engrav- ing, in whole or in part, for the term of twenty-eight years from the time of recording the title thereof, in the manner hereinafter directed. Sec. 2. And be it further enacted, That if, at the expira- Renewal of tion of the aforesaid term of years, such author, inventor, F'^'l^'g^ ^or designer, engraver, or any of them, where the work had years, been originally composed and made by more than one person, be still living, and a citizen or citizens of the United States, or resident therein, or being dead, shall have left a widow, or child, or children, either or all then living, the same exclusive right shall be continued to such author, designer, or engraver, or, if dead, then to such widow and child, or children, for the further term of fourteen years : Provided, That the title of the work so Conditions, secured shall be a second time recorded, and all such other regulations as are herein required in regard to ori- ginal copyrights, be complied with in respect to such re- newed copyright, and that within six months before the expiration of the first term. 94 APPENDIX. Stat. Sec. 3. And be it further enacted, That in all cases of Feb. 3, renewal of copyright under this act, such author or pro- ^^'^^- prietor shall, within two months from the date of said Publication renewal, cause a copy of the record thereof to be pub- of renewal. Jished in one or more of the newspapers printed in the United States, for the space of four weeks. Copy of Sec. 4. And be it further enacted, That no person title to be gj^j^ii i^g entitled to the benefit of this act, unless he shall, deposited. . . r i • i r before publication, deposit a pruited copy ot the title ot such book, or books, map, chart, musical composition, print, cut, or engraving, in the clerk's office of the dis- trict court of the district wherein the author or proprie- tor shall reside, and the clerk of such court is hereby To be re- directed and required to record the same thereof forth- corded, ^ith, in a book to be kept for that purpose, in the words following (giving a copy of the title, under the seal of the court, to the said author or proprietor, whenever he Form of re- shall require the same:) " District of to wit: Be ^°^^- it remembered, that on the day of anno domini, A. B., of the said district, halh deposited in this office the title of a book, (map, chart, or otherwise, as the case may be,) the title of which is in the words fol- lowing, to wit : (here insert the title ;) the right whereof he claims as author (or proprietor as the case may be ;) in conformity with an act of Congress, entitled ' An act to amend the several acts respecting copyrights,' C. D. clerk Fee. of the district." For which record, the clerk shall be entitled to receive, from the person claiming such right as aforesaid, fifty cents; and the like sum for every copy, under seal, actually given to such person or his assigns. Copy of And the author or proprietor of any such book, map, chart, de°posited^'^ musical composition, print, cut, or engraving, shall, within three months from the publication of said book, map, chart, musical composition, print, cut, or engraving, de- r liver or cause to be delivered a copy of the same to the works and clerk of said district. And it shall be the duty of the trTnsmitied clerk of each district court, at least once in every year, to the Se- ^^ transmit a certified list of all such records of copy- S?a\e7 ° right, including the titles so recorded, and the dates of APPENDIX. 95 record, and also all the several copies of books or other Stat, works deposited in his office according to this act, to the I'^fh. 3, Secretary of State, to be preserved in his office. ln.il. Sec. 5. And be it further enacted, That no person ^•olice of shall be entitled to the benefit of this act, unless he shall copyright ■ r r • 1 I • . to l)C prillt- give mtorination of copyright being secured, by causing cd, &c. to be inserted in the several copies of each and every edition published during the term secured on the title- page, or the page immediately following, if it be a book, or, if a map, cliart, musical composition, print, cut, or engraving, by causing to be impressed on the face thereof, or if a volume of maps, charts, music, or engravings, up- on the title or frontispiece thereof, the following words, viz : " Entered according to act of Congress, in the year , by A. B., in the clerk's office of the district court of ," (as the case may be.) Sec. 6. And be it further enacted, That if any other Infringe- person or persons, from and after the recording the title copyri''h» of any book or books, according to this act, shall, within lo Ijool^s. the term or terms herein limited, print, publish, or im- port, or cause to be printed, published, or imported, any copy of such book, or books, without the consent of the person legally entitled to the copyright thereof, first had and obtained in writing, signed in presence of two or more credible witnesses, or shall, knowing the same to be so printed or imported, publish, sell, or expose to sale, or cause to be published, sold, or exposed to sale, any copy of such book without such consent in writing; then Penalty, such ofiender shall forfeit every copy of such book to the person legally, at the time, entitled to the copyright thereof; and shall also forfeit and pay fifty cents for every such sheet which may be found in his possession, either printed, or printing, published, imported, or exposed to sale, contrary to the intent of this act, the one moiety thereof to such legal owner of the copyright as aforesaid, and tl:e other to the use of the United States, to be re- covered by action of debt in any court having competent jurisdiction thereof. Sec. 7. And be it further enacted. That, if any person 96 APPENDIX. Stat. Feb. 3, 1831. Infringe- ment of copyright, to prints, maps, &c. Penalty. Privilege restricted to citizens or residents. or persons, after the recording the title of any print, cut, or engraving, map, chart, or musical composition, ac- cording to the provisions of this act, shall, vvitliin the term or terms limited by this act, engrave, etch, or work, sell, or copy, or cause to be engraved, etched, worked, or sold, or copied, either on the whole, or by varying, add- ing to, or diminishing the main design with intent to evade the law; or shall print or import for sale, or cause to be printed, or imported for sale, any such map, chart, musical composition, print, cut or engraving, or any parts thereof, without the consent of the proprietor or proprie- tors of the copyright thereof, first obtained in writing, signed in the presence of two credible witnesses ; or, knowing the same to be so printed or imported without such consent, shall publish, sell, or expose to sale, or in any manner dispose of any such map, chart, musical composition, engraving, cut, or print, without such con- sent, as aforesaid ; then such offender or offenders shall forfeit the plate or plates on which such map, chart, mu- sical composition, engraving, cut, or print, shall be cop- ied, and also all and every sheet thereof so copied or printed as aforesaid, to the proprietor or proprietors of the copyright thereof; and shall further forfeit one dol- lar for every sheet of such map, chart, musical composi- tion, print, cut, or engraving, which may be found in his or their possession, printed or published, or exposed to sale, contrary to the true intent and meaning of this act; the one moiety thereof to the proprietor or proprietors, and the other moiety to the use of the United States, to be recovered in any court having competent jurisdiction thereof. Sec. 8. And be it further enacted. That nothing in this act shall be construed to extend to prohibit the im- portation or vending, printing, or publishing, of any map, chart, book, musical composition, print or engraving, written, composed, or made, by any person not being a citizen of the United States, nor resident within the jurisdiction thereof. Sec. 9. And be it further enacted. That any person or APPENDIX. 97 persons who slinll print or publish any manuscript what- Stat. II. ever without the consent of the author or legal proprietor ^ ^^^- 3, first obt;iine(I as aforesaid, (if sucli author or proprietor '^'»1- bfi a citizen of the United States, or resident therein,) puMicaiiou shall be liable to suffer and pay to the author or proprie- »' '"^'nu- * II 1 11 1 • • , scripts tor, all damages occasioned by such injury, to be re- wniioui covered by a special action on the case founded upon this ^"^''"'' act, in any court having cognizance thereof; and the Ucmedy. several courts of the United States empowered to grant injunctions to prevent the violation of the rights of au- injunction thors and inventors, are hereby empowered to grant *" prevent. injunctions, in like manner, according to the principles of equity, to restrain such publication of any manuscript as aforesaid. Sec. 10. And he it further enacted, That, if any per- General son or persons shall be sued or prosecuted, for any mat- 'ssue, &c. ter, act, or thing done under or by virtue of this act, he or they may plead the general issue and give the special matter in evidence. Sec. 11. And be it further enacted, That, if any per- False entry son or persons, from and after the passing of this act, "-^ . "^"l'^" shall print or publish any book, map, chart, musical com- " position, print, cut, or engraving, not having legally ac- quired the copyright thereof, and shall insert or impress that the same hath been entered according to act of Con- gress, or words purporting the same, every person so offending shall forfeit and pay one hundred dollars : one Penalty, moiety thereof to the person who shall sue for the same, and the other to the use of the United States, to be re- covered by action of debt, in any court of record having cognizance thereof. Sec. 12. And he it further enacted, That, in all re- q^^^^ coveries under this act, either for damages, forfeitures, or penalties, full costs shall be allowed thereon, any thing in any former act to the contrary notwithstanding. Sec. 13. And be it further enacted. That no action or Limitation prosecution shall be maintained, in any case of forfeiture "faction. or penalty under this act, unless the same shall have been i 98 APPENDIX. Stat. II. commenced within two years after the cause of action Feb. 3, shall have arisen. 1831. Sec. 14. And be it further enacted^ That the " Act for J, , J. the encouragement of learning, by securing the copies of act of Maj' maps, charts, and books, to the authors and proprietors c. 'i5. ' of such copies during the times therein mentioned," passed May thirty-first, one thousand seven hundred and Act of April ninety, and the act supplementary thereto, passed April c. 36. ' twenty-ninth, one thousand eight hundred and two, shall be, and the same are hereby, repealed : saving, always, such rights as may have been obtained in conformity to their provisions. Provisions gj-p, 15, ji^^i jg ii further enacted. That all and sev- of tills act ... for security eral the provisions of this act, intended for the protection riffhts^^&c '^"'^ security of copyrights, and providing remedies, pen- to extend to allies, and forfeitures, in case of violation thereof, shall cxistin" copyrights, be held and construed to extend to the benefit of the legal proprietor or proprietors of each and every copy- right heretofore obtained, according to law, during the term thereof, in the same manner as if such copyright had been entered and secured according to the directions of this act. Extension Sec. 16. And he it further enacted. That, whenever a copyrights, Copyright has been heretofore obtained by an author or authors, inventor, designer, or engraver, of any book, map, chart, print, cut, or engraving, or by a proprietor of the same : if such author or authors, or either of them, such inventor, designer, or engraver, be living at the passage of this act, then such author or authors, or the survivor of them, such inventor, engraver, or designer, shall continue to have the same exclusive right to his book, chart, map, print, cut, or engraving, with the bene- fit of each and all the provisions of this act, for the secu- rity thereof, for such additional period of time as will, together with the time which shall have elapsed from the first entry of such copyright, make up the term of twenty- eight years, with the same right to his widow, child, or children, to renew the copyright, at the expiration thereof, as is above provided in relation to copyrights originally APPENDIX. 99 secured under this act. And if such author or authors, gj^ jj inventor, designer, or engraver, shall not be living at Feb. 3, the passage of this act, then, his or their heirs, execu- 1831. tors and administrators, shall be entitled to the like '-^'"^^'"^-' exclusive enjoyment of said copyriglit, with the benefit of each and all the pro\isions of tiiis act for the security thereof, for the period of twenty-eight years from the first entry of said copyright, with the like privilege of re- newal to the widow, child, or children, of author or au- thors, designer, inventor, or engraver, as is provided in relation to copyrights originally secured under this act: Provided, That tliis act shall not extend to any copy- Proviso, right heretofore secured, the term of which has already expired. Approved, February 3, 1831. 100 APPENDIX. An Act supplementary to the act to amend the sev- eral acts respecting copyrights. Stat. 1. ^^ *^ enacted by the Senate and House of Representa- June 30, fives of the United States of America in Congress assem- 1834. bled, That all deeds or instruments in writing for the J, P t ansfer or assignment of copyrights, being proved or ac- transfer to knovvledged in such manner as deeds for the conveyance bejecor e , ^^ j^^^^ ^^^ required by law to be proved or acknow- ledged in the same state or district, shall and may be re- corded in the office where the original copyright is de- posited and recorded ; and every such deed or instru- ment that shall in any time hereafter be made and exe- cuted, and which shall not be proved or acknowledged and recorded as aforesaid, within sixty days after its exe- cution, shall be judged fraudulent and void against any subsequent purchaser or mortgagee for valuable consid- eration without notice. Fees of Sec 2. And le it further enacted, That the clerk of trici court." the district court shall be entitled to such fees for per- forming the services herein authorized and required, as he is entitled to for performing like services under exist- ing laws of the United States. Approved, June 30, 1834. APPENDIX. 101 An Act in addition to an act to promote the progress of the useful arts, and to repeal all acts and parts of acts heretofore made for that purpose. Sec. 3. Be it further enacted. That any citizen or cit- Stat. II. izens, or alieii or aliens, liaving resided one year in the Aug. 29, United States and taken the oath of his or their intention 1842. to become a citizen or citizens, who by his, her, or their ,, . ' J ■> 1 Citizens, own industry, genius, efforts, and expense, may have in- &c. may vented or produced any new and original design for a t'eiu'how.^ manufacture, whether of metal or other material or mate- rials, or any new and original design for the printing of woollen, silk, cotton, or other fabrics, or any new and original design for a bust, statue, or has relief or compo- sition in alto or basso relievo, or any new and original impression or ornament, or to be placed on any article of manufacture, the same being formed in marble or other material, or any new and useful pattern, or print, or pic- ture, to be either worked into or worked on, or printed or painted or cast or otherwise fixed on, any article of manufacture, or any new and original shape or configu- ration of any article of manufacture not known or used by others, before his, her or their invention or production thereof, and prior to the time of his, her, or their appli- cation for a patent therefor, and who shall desire to obtain an exclusive property or right therein to make, and use, and sell and vend the same, or copies of the same, to others, by them to be made, used, and sold, may make application in writing to the commissioner of patents, ex- pressing such desire, and the commissioner, on due pro- ceedinrrs had, may grant a patent therefor, as in the case now of application for a patent. Provided, That the fee Proviso, in such cases which by the now existing laws would be required of the particular applicant shall be one half the sum, and that the duration of said patent shall be seven years, and that all the regulations and provisions which k 102 APPENDIX. Stat. II. now apply to the obtaining or protection of patents not Aug. 29, inconsistent with the provisions of this act, shall apply to ^ applications under this section. Sec. 4. And he it furlhei- enacted, That the oath re- quired for applicants for patents may be taken, when the applicant is not, for the time being, residing in the United States, before any minister, plenipotentiary^ charge d'affaires, consul, or commercial agent holding commission under the government of the United States, or before any notary public of the foreign country in which such applicant may be. Penalty for Sec. 5. And he it further enacted. That if any person infringing persons shall paint or print, or mould, cast, carve, or Iherighlsot l ^ , . i j u u a patentee, entrrave, or stamp, upon anythmg made, used, or sold, by Sarkuig. ^im, for the sole making or selling which he hath not or shall not have obtained letters patent, the name or any imitation of the name of any other person who hath or shall have obtained letters patent for the sole making and vending of such thing, without consent of such patentee, or his assigns or legal representatives ; or if any person, upon any such thing not having been purchased, from the patentee, or some person who purchased it from or under such patentee, or not having the license or consent of such patentee, or his assigns or legal representatives, shall write, paint, print, mould, cast, carve, engrave, stamp, or otherwise make or affix the word "patent," or the words " letters patent," or the word " patentee," or any word or words of like kind, meaning, or import, with the view or intent of imitating or counterfeiting the stamp, mark, or other device of the patentee, or shall affix the same or any word, stamp, or device, of like import, on any unpatented article, for the purpose of deceiving the public, he, she, or they, so offending, shall be liable for such offence, to a penalty of not less than one hun- How recov- dred dollars, with costs, to be recovered by action in any erable, &c. of the circuit courts of the United States, or in any of the district courts of the United States, having the powers and jurisdiction of a circuit court; one half of which APPENDIX. 103 penalty, as recovered, shall be paid to the patent fund, Stat. II. and the other half to any person or persons who shall sue Aug. 29, for the same. «,.J^5^^ Sec. 6. And he it further enacted^ That all patentees pmentees, and assignees of patents hereafter granted, are hereby re- *^|^- rcquir- quired to stamp, engrave, or cause to be stamped or en- articles graved, on each article vended, or offered for sale, the ^^^^^ date of the patent ; and if any person or persons, pa- tentees or assignees, shall neglect to do so, he, she, or Pcnahy for they, shall be liable to the same penalty, to be recovered "*^^ ^^ ' and disposed of in the manner specified in the foregoing fifth section of this act. Approved, August 29, 1842. INDEX. A. Page ABANDONMENT of copyright 222 ABRIDGI\IENT, whether a new work 190 definition of 190, 191 whether allowable .... 265-290 ACCOUNT, when not to be taken, party still entitled to an injunction ....... 319 when ordered to be kept . . . 319 note when it is not a satisfaction .... Jbid. always incident to the injunction, as matter of right 319, 327 but plaintiff must entitle himself to an injunction . 327 principles on which it should be granted . . 328 ACTION, when directed in equity . . . 316, 317, 319, 320 ACTION ON THE CASE, hcs for infringement, at common law . 306 given by statute, 51 Geo. III. c. 156 . 307 given by statute, 5 and Vict. c. 15 . . Il,i({, ADDITIONS to an old work. See Piracy. ALIEN FRIEND, first publishing in England, semble entitled to copyright . . . 135,136 may convey a copyright to a British publisher 136 rights of, in England, when he first publishes abroad . 137, 133 I 438 INDEX. Page ALIEN FRIEND, engravings designed by, not pro- tected in England . ALMANACS, belonged formerly to the king . foundation of the claim declared to be jou6/id^'?id. Trinity College, Dublin . IbiJ. the Smithsonian Institute . 197 policy of establishing . . 202 note LICENSE TO PUBLISH by parol 219 when inferred . . . 225, 226 LICENSING ACT of 1643 32 Milton's denunciation of . . . 33 of 1602 35 expired ....... 30 revived ....... 38 finally expired . . Jlnd. LIMITATION OF ACTIONS, in England, for books, &c. . 311 444 INDEX. LIMITATION OF ACTIONS, in England for dramatic and mu- sical compositions 311 for sculpture 312 in the United States, in all cases 313 LITERARY PROPERTY, foundation of in natural law . . 1-25 origin of ... . 13 what constitutes 13 in different countries 25 history of, at common law 26 belonging to the crown 39-44 history of, from and after the Act of Anne 44-7 in America . 74-82 depends on the Fed- eral Constitution 74 state of, before the Constitution 74-81 subjects of ... 83 M. MAGAZINES. &e Periodicals. MANSFIELD, Lord, his views of crown copies . . i3 note of the old injunctions 48 note, 49 of literary property, after publication . . 49, 54-57 • of the effect of the statute 57, 84, 85 omission to defend his judgment in the lords . . . .59, 60 note encounters with Lord Camden 60, 61 note his views of property in manuscripts 84-87 MANUSCRIPTS common law right in ... 49-42, 82 cannot be seized by creditors . . 85, 218 descend to representatives .... 86 when authority to publish implied . • 87 in United States protected by statute . 89, 314 incorporeal property in .... 216 inheritable right in 217 do not pass to assignees in bankruptcy . 218 whether the possession carries the right to print ...... 219 INDEX. 445 MAPS, how protected in the Tnitcd States in England , infringement of ...... . included under " Books," in Stat. 5 & G Vict. c. 45 MASSACHUSETTS, copyright in, before the federal con- stitution .... MASTER reference to, to ascertain quantity of matter pirated to ascertain originality to inspect both works reference back to . MILTON, on unlicensed printing Paradise Lost, infringed notes on sale of MUSIC, sole right of performance secured by statute was within the Stat, of Anne as a " Writing " how protected in the United States assignment of in England .... infringement of ..... N. NAME OF AUTHOR need not appear on the book . usurpation of ... . NATURAL LAW, rights of authors under . NOTICE OF DEFENCE required by 5 and 6 Vict. c. 45 Page 111 115 305 115 77 324, 325 325 Ibid. 326 33-35 47 Ilnd. 62 note 105 108 109 232 201 19' ', 198 299 1-25 309 ORIGINALITY essential to a valid copyright . 169 legal standard of . 170 does not include utility . 172 novelty of subjoct 173 novelty of materials 177 what constitutes .... 177, 254 description of .... 177 note is consistent with want of novelty in materials 178-186 in translation . . . . . . . 186 OXFORD, University of, right to print bibles 117 note, 118 note, 128 right to prim the statutes . 128 446 INDEX. p. Page PENALTIES, in England, for infringing copyright of books 307, 308, 309, 311 dramatic and musical compositions 311 prints and engravings . . . 312 sculpture ..... Ibid. in the United States, for infringing copyright of books . . 313 maps, charts, musical com- positions, and prints . 313, 314 manuscripts . . . . 314 PERIODICAL PUBLICATIONS, how protected in equity, irrespective of copyright 109 how protected under the statute .... Ibid. rights of writers in ..... 110,226 rights of publishers in articles in . . . 227 et seq. PERPETUAL COPYRIGHT, objections to ... . 24 in what countries allowed 25 note semble, formerly existed in England . . . 27, 66 PILGRIM'S PROGRESS 36 note PIRACY, complex character of 237, 239 not a question of intent 238, 247 policy of the law as to 239,240 depends on injury caused .... 240, 241 by reprinting the whole work . . . . . 241 part, in the way of quotation or extract 242 where quotation is injurious . . . 243, 251, 252 quantity immaterial ...... 243, 245 fair quotation 245, 246 in reviews ........ 246 intent of the quotation ..-..• 247 fair use of previous works .... 240, 249 by republishing cases from the Law Reports . . 250 under cover of extracts ...... 251 by imitation ........ 253 by colorable alteration ...... Ibid. when original sources have not been resorted to 253 ct scq. how detected ........ 254 INDEX. 447 Page PIRACY, how detected by copyini? errors .... 255 by substantial similitude . . 250 to what extent resemblance must be carried 250-259 in cases of compilations, &c. ..... 259 by undertaking to add to or improve a work . 2G 1-205 by abridgment 265-290 review of tlic English cases . 905-208 by translation . . ' . . 290-293 by usurpation of title 293-299 of name of author . . . 299, 300 of dramatic and musical compositions . . 300, 301 by adapting music ....... 301 of prints and engravings .... 301-301,305 PLAN, whether subject of copyright . 285, 280 note, 180 PLAY, license to act not a license to publish .... 87, 103 property in 103-105 whether it includes sole right of per- formance 101, 139 amendment of the law in this respect . ll'id. duration of the sole right of performance 105, 139 assignee of, whether entitled to re- presentation ..... 139, 140 POPE, letters of 50, 90 PRAYER BOOK, a crown copy 40 PREROGATIVE COPIES, history of 39,116 what are 40, 116 doctrine recognized in mo- dern times . . . 119 note PRINTS, ^e Engravings. PRIVY COUNCIL. Judicial committee may authorize the publication of books design- edly kept out of piint ... 209 PROPERTY, origin of 3 existence of ...... . 4 qualities of ...... . 5-9 PUBLICATION, not an abandonment of the author's rights 14-16 PUBLIC LIBR.\RY, at Cambridge, entitled to a copy of every book . . 204 448 INDEX. Q. QUEEN'S PRINTER. See Prerogative Copies. QUOTATION, how for lawful quantity immaterial . fair, how far the license extends in reviews .... influence of intent Page 242 243-245 245, 246, 249 246 247, 251 note injury by, is the true test 247, 249, 250, 251 , 252 R. REGISTRATION, mi/je f/m'CeJ^'^ato, how to be made . . 193 essential to a perfect title . 194-197 when the copyright is renewed . 197 in England, not essential to a perfect title . 198 how to be made .... Ibid. affects the remedy . . . Ibid. of periodicals .... Ibid. of dramatic and musical compositions 200 of prints and engravings . . 201 of sculpture ..... 202 REMEDY, at law 306-314 in equity 314-329 REPORTS OF JUDICIAL PROCEEDINGS. in Un^-Zant/, formerly crown copies .... 40,41 in the house of lords, practice respecting . . . 129 publication of, may be restrained .... Ibid. ancient practice of affixing the imprimatur of the judges 130 how far they become subjects of private copyright . 131 In America, no private copyright in the opinions of the supreme court of the United States . . 132 REVIEWS. See Periodical Publications. RUSSIA, copyright in 25 S. SCULPTURE, entitled by statute to copyright in the United States 115 protected in England . . . . . 115 property in, in whom vested . . . 14] INDEX. 449 Page SEDITIOUS PUBLICATIONS not subjects of copyright 155e^icg. SMITHSONIAN INSTITUTE entitled to a copy of every book entered for copyright 197 note SOUTHEY, " Wat Tyler" surreptitiously published 8S, 137 SPAIN, copyright in ....... . 25 SPECTATOR, copyright of • 52 STAR CHAMBER, decrees of 28,29 abolished ...... 30 STATIONERS' COMPANY, powers of ... . 27-29 ancient entries ... 31 ordinance of 16S1 ... 36 STATUTES (in England) right to print belongs to the queen 125-128 origin of the right 125 how it is now supported ..... 126 may be printed by others than the queen's printer, with bona fide notes . . . 127, 128 right to print, vested in the universities and the queen's patentees 128 STORY, Mr. Justice, his views of property in letters, &c. SS 89, 96-99 SWEDEN, copyright in 25 T. TALFOURD, Serjeant, exertions of, to extend the term of copyright ...... 69 TERM OF COPYRIGHT in Austria . . 25 note Denmark . Ibid. England Ibid. France . Ibid. Holland and Belgium Ibid. Norway Ibid. Prussia Ibid. Russia Ibid. Spain Ibid. Sweden . Ibid. The United States Ibid. 214 England, as to books 206-210 plays and music 210-213 engravings . Il'id. sculpture . Ibid. 450 INDEX. THOMSON'S SEASONS, copyright of TITLE, usurpation of ... . relief in equity .... TRANSLATIONS, how far original works when piratical TRINITY COLLEGE, Dublin, entitled to a copy of every book . . . . . Page 54 293-299 294 186-190 290-293 204 U. UNIVERSITIES, perpetual copyright of . . . 67, 68 UNIVERSITY AND COLLEGIATE COPYRIGHT, in England, in books, is a perpetuity 200, 201 W. WASHINGTON, manuscripts of 87-89 WIDOW of author, rights of 25 " WRITING " music within the term 108 6^k ^'^^"';'\''"9/>, .oxlOS-A^Cflfj:; ,^ J o s° cp ^:f .OF-CAIIP ■3; ..^^ ; i c: i^^ ^-Tii^ONVso^^' "^/Aji3AiNn-3WV^ ^>&Aiivaan#' yA,VCafj> — V 3* V- ]/\!Nn-3WV \ >s^ IJIlVOjO ^5% ) I 5 University of California SOUTHERN REGIONAL LIBRARY FACILITY 305 De Neve Drive - Parking Lot 17 • Box 951388 LOS ANGELES, CALIFORNIA 90095-1388 Return this material to the library from which it was borrowed. 4s^ Li^ '^ - ^ ^yoMymwi"^ ^", "^ r AIN I tALIF I3AIN SS»Kf^'2^'^^'5BAR.ur„,r. AA 000 744 368