A very slight variance in the words or the orders of the slight words, if the matter is substantially the same, will not, however, make a bad notice. Thus "1889, Copyrighted by B. J. Falk, N. Y.," has been held a good notice.[1374] So also has "Copyright entered according to Act of Congress, 1889, by T. C. Hefel,[256] civil engineer." It was held to comply with the short alternative notice, viz.: "Copyright, 18—, by A. B.," the superfluous words being disregarded on the doctrine of utile per inutile non vitiatur.[1375]
The name of the proprietor who takes out the copyright is an essential part of the notice. In Osgood v. Aloe[1376] the following notice was printed on the page following the title-page, "Copyright, 1891; all rights reserved." This was held a bad notice, and the name of the publishers, who were also the proprietors, printed on the title-page was insufficient. There was nothing to show that they were proprietors as well as publishers. Copyright may be taken out in the name of a firm or a conventional trade name, and if that name is on the notice it is sufficient.[1377] But it must be the full and proper name under which the proprietors are trading. Thus when The Illustrated American Publishing Company issued a paper entitled The Illustrated American, the following was held an insufficient notice on a crayon drawing published by the Company, viz.: "Copyrighted 1891, by The Illustrated American."[1378] It seems, however, that it is not necessary for an individual to give his full name if what is given is sufficient for the purposes of identity. Thus the surname and the first letter of the Christian name,[1379] and in one case the surname alone have been held sufficient.[1380] The latter case was that of a photographer in Brooklyn. It was shown that there was only one photographer of that name in Brooklyn, and the notice ran "Copyright, '93, by Bolles, Brooklyn."[1381] If the full name is given there is no necessity to give the address of the proprietor, even although he be a foreigner resident abroad.[1382]
It will not do to put the name of an agent on the notice. In Nifflin v. Dutton[1383] the authoress of "The Minister's Wooing" took out a copyright in the whole book in her own name.[257] Subsequently several chapters of the story were published serially in the Atlantic Monthly. The only notice of copyright in that magazine was in the name of the publishers, Ticknor and Fields. It was held that these chapters had not a sufficient notice. Great care must be taken in the case of serial publications. If a story is published in a magazine each part must be treated as a separate book, and must contain a notice of copyright by the author if he is the owner. When the book is published as a whole these notices must be repeated; it will not do merely to copyright the whole book afresh and print a new notice.
Date of Entry.—The date required is the year only; neither the day nor the month is necessary. The statement of a wrong year has been held fatal to the notice. In Baker v. Taylor[1384] the true date of taking out copyright was 1846. The notice stated 1847 as the year, and this was held as bad notice, even although the error arose from mistake. But in Callaghan v. Myers[1385] the notice put an earlier instead of a later date than the actual date of deposit; the true date being 1867, the notice declared copyright to have been entered in 1866. This was held an immaterial error, since it deceived no one, and would only operate to shorten the claimant's copyright by one year. In Schumacher v. Wogram[1386] Wallace, J., doubted whether the declaration in the notice of a date earlier than the true date would not make the notice void. It is immaterial that the date on the notice is abbreviated if it is sufficiently clear what date is meant; thus, "Copyright, '94, by A. B.," is a good notice.[1387]
It is extremely difficult to determine what date the law requires to be placed upon the second or subsequent edition of a book wherein substantial alterations or additions have been made. In the case of a reprint, I think it is clear that the date of the first edition, and that only, is the correct date; and even where alterations or additions have been made I think that that date is necessary, and I doubt whether it is necessary to add another notice giving the date of the revised edition. It would seem that a subsequent edition does not require to be "entered"[258] in the same manner as the original edition; the statute is complied with by the deposit of a copy of every subsequent edition wherein any substantial changes shall be made. If this is done copyright in the alterations seems to have been procured. In Lawrence v. Dana[1388] Clifford, J., held that it was not necessary in a subsequent edition to give the date of the entry of the first edition[1389]; but I doubt if this is sound. On the whole, I think the correct view is that the matter peculiar to the first edition, whether it be printed in the first or any subsequent edition, must bear a notice with the date when that matter was first entered, and that the matter peculiar to any subsequent edition will be protected until the expiry of the copyright in the first edition, if it bears a notice with the date of the first edition only, and if a copy has been sent to the Librarian of Congress. I further think that the matter peculiar to subsequent editions may be protected for the full term of twenty-eight or thirty-two years from the date of the first publication of the edition in which it is first contained, if such edition is separately entered, by two copies of the title-page and of the book being deposited, and if it bears a notice with the date of such separate entry. I think, therefore, in every new edition in which there is a substantial alteration or addition there should as a matter of practice be a separate entry of copyright and separate notices on the title-page, one for each edition of the book.
The question may be raised as to whether a book is a subsequent edition or an entirely new book. In Banks v. M'Divitt,[1390] the plaintiff had annotated the rules of the Supreme Court of New York. He had published such annotated editions in 1858 and 1871. In 1874 the rules were extensively amended, and the plaintiff published an annotated copy. It was held that this was not a subsequent edition of the original annotated rules, and therefore no notice of the original date of publication was required. I very much doubt whether this is a sound decision. It seems to me that in so far as the new book was the same as the old, it was a subsequent edition, and in order to retain protection required a notice of original publication.[259]
Every published copy of every edition[1391] of a work must have the statutory notice thereon; every proprietor who sues must have printed the notice on every copy published by him. If an assignee of a copyright fail to print a proper notice he will have no remedy even against his assignor for infringement.[1392] From the wording of the Act of June 18, 1874, it seems that the printing of the notice is not now a condition precedent to copyright, but is only a condition of the right of action upon infringement. It is, I think, questionable whether the failure of A to print a proper notice will affect the right of B, his assignee, to sue for an infringement subsequent to the assignment. One who makes an unauthorised copy of a literary or artistic work is not exempt from liability merely because he can show that the copy from which he copied had no notice. His defence must be that such copy left the proprietor's hands without a proper notice.[1393] The question has been raised, but not answered, whether if the proprietor grant a licence, and the licensee omits to insert a proper notice, the proprietor is without a remedy.[1394]
Formerly if a book were published in several volumes at different times, it was sufficient to place the notice on the first volume only,[1395] but now since the Act of 1891[1396] each volume of a book and each number of a periodical is to be considered an independent publication, and the notice must be placed on each volume or part accordingly.
There is no special provision in the law of the United States as to newspapers and other periodical works, therefore each issue must be considered a separate work, and the requisite formalities complied with in each case.
Notice on Painting.—It was contended in one case[1397] that there was no necessity to place the notice on an original painting, the Act only requiring notices to be placed on copies made therefrom. The Court held, however, that the original [260] work was a "copy" within the meaning of the provision in the Act, and must be inscribed with the notice accordingly.
Maps in Atlas.—Each map contained in an atlas does not require to be separately copyrighted, or bear a separate notice of copyright. They are protected by a copyright of the entire work.[1398] The same would, no doubt, apply to a volume of engravings or other works of art.
Publication.—There appears to be some doubt as to whether publication is necessary as a condition precedent to the statutory rights. The duration of copyright is to be measured from the date of the deposit of the title or description with the Librarian of Congress; but probably that in itself gives no proprietary right either in the title or the book. It has been suggested that it gives an "inchoate right," or an "equitable right, which Chancery will protect until the other acts may be done."[1399] It may be that when the formalities have been completed by deposit of copies the right then acquired dates back to the deposit of title so as to give a statutory remedy against an infringement made between the two dates.[1400] When the copies of the book have been deposited, the express conditions precedent of the statute have been performed; but the question has been raised whether there will be copyright unless within a reasonable time thereafter the book or other work is put in circulation among the public. In Boucicault v. Hart[1401] the Court held that although the title-page had been filed there could be no copyright without "a deposit of copies and publication." In The Jewellers' Mercantile Agency v. Jewellers' Publishing Company[1402] the New York Supreme Court, on a question as to whether an action should be founded on the Statute or at Common Law, held that although there had been deposit of title and deposit of copies in accordance with the Acts there could be no copyright, but only a common law right unless there had been a "publication." In Ladd v. Oxnard,[1403] the circuit judge, Putnam, thought that the statutory [261] right was perfected by deposit of copies, and that from then, until "publication," there were concurrent remedies under the Statute and at Common Law. After the decision in Ladd v. Oxnard[1404] the decision in The Jewellers' Mercantile Agency v. Jewellers Publishing Company was reviewed by the Appeal Court of New York.[1405] The Court was unanimous in reversing the judgment below, and holding that the plaintiff's right of action was a statutory right and not a common law right. Three of the judges gave their decision on the ground that the facts proved showed a publication subsequent to deposit; but the other three gave it on the ground that the deposit itself was a publication and completed the statutory copyright. It is submitted that this latter is the correct view, and that, therefore, after deposit of the title-page and deposit of copies in due form nothing further is necessary to acquire copyright.
Apart from the question as to whether publication is necessary to complete the statutory right, several questions of importance may arise on the fact or date of publication, e. g.:
The essence of publication consists in a disclosure of the thing itself, so that the public without discrimination of persons have an opportunity of enjoying its use.[1406] The most usual method of publication of a literary or artistic work is the offering for sale, selling, or giving away of copies.[1407] It is not necessary that a copy of the book be actually sold, it is sufficient if it be offered to the public. The act of publication is the act of the author, and cannot be dependent on the act of the purchaser.[1408] Gratuitous distribution to members of the public, or leaving copies in a place to which the public [262] have access, such as an hotel, is publication.[1409] The sale or distribution of copies, however, may be so limited to individuals, or particular classes of individuals, as not to amount to publication. When before the advertised date of publication an advance lot of books in quires unbound were sent to different publishers, with a request not to publish until bound copies should be sent, it was held, in the absence of evidence that the request was not complied with, that there had been no publication.[1410] The author of a literary or artistic work may circulate it among his friends, or among a restricted class subject to conditions, and at the same time retain his common law right in unpublished work.[1411] A teacher may circulate copies of his work among the members of his class without publishing the work.[1412] In one case a sheet of miniature copies of engravings was sent round to picture dealers solely for their inspection and to solicit orders. This was held not to be a publication.[1413] Copies of an unpublished opera given to the performers marked "Right of Representation and Reproduction Reserved" is not a publication.[1414] The transmission of news over telegraphic instruments does not constitute a general publication.[1415] In order to protect the common law right the distribution of copies must be strictly confined to individuals or to a class. If the man in the street may buy it there is a publication even although the work is of such a nature (e. g. a trade journal) as will practically be confined to a limited class.[1416] It does not make it the less a publication that every purchaser of, or subscriber to, a literary or artistic work is bound by restrictive conditions as to its use. So long as the work is put within the reach of all and not limited to a class, it matters not what conditions are imposed on the individual subscriber.[1417] Thus the sale of a book to all [263] who paid for a course of instruction in a system for training the memory was held to be a publication notwithstanding that each sale was made under a contract not to disclose the contents to others.[1418] A book may be published although it is not sold but issued on loan to subscribers with an express condition that the copy must be returned on the expiry of the subscription.[1419] Publication of a book in a serial form reserving all other rights to the author, is such a publication as to abandon the copyright to the world, if steps have not been taken to copyright it before such publication.[1420]
I have little doubt, but there is no definite authority, that a book may be published so as to destroy the common law right, although it is not printed. Circulation in manuscript would be enough.[1421]
The public performance of a dramatic piece is not a publication of it so as to deprive the proprietor of his common law right in the manuscript.[1422] The same rule probably applies to the oral delivery of a lecture or sermon, unless there is some act or circumstance from which it can be implied that the speaker intended to abandon the literary matter to the free use of the public.
It has been held by the Circuit Court of Appeals[1423] that the exhibition of a picture in a public gallery is a publication of the picture so as to destroy the owner's rights, unless he has taken steps to secure a copyright. One of the three judges dissented from the judgment, but on what ground does not appear. In a case decided by a district judge,[1424] shortly before the one just cited, the judge thought that the exhibition of a [264] painting in a public saloon did not work a forfeiture of the right to obtain copyright unless the general public was permitted to take copies at pleasure, and such permission would not be assumed in the absence of direct evidence. The same judge decided that neither the sale of a replica in a different size made before the principal picture by way of a study nor the publication of a crayon sketch in an exhibition catalogue was a publication of the picture. It is submitted that the exhibition of a picture in a public gallery is a publication. It seems to afford the public an opportunity of making every legitimate use of the contents of the picture. They could not make any greater use of the contents if they bought an engraving of the picture. It would not even then be lawful for them to make copies of the picture. As to the replica and the rough sketches in the catalogue, no doubt they were not "copies" of the picture, and therefore their publication could not entirely destroy the copyright in the picture; but if these were published without being copyrighted or without statutory notice, clearly the public could copy them, and to that extent the copyright in the design of the original picture would have been forfeited.
An unauthorised publication will not operate to forfeit the common law rights;[1425] but if authorised by the owner it is immaterial that the publication constitutes a breach of contract with a licensee or part assignee.[1426] Thus the author of a German unpublished play conveyed the performing rights in the United States to a citizen of the States, and contracted with him that he would not publish the play as a book. In breach of this contract the play was published in Germany under the authority of the author. It was held that such publication destroyed all literary rights in the United States.[1427] When the defendant relies on previous publication he must definitely prove such publication, and that it was made with the consent of the owner.[1428]
The Library of Congress.—All the copyright records are in [265] the Library of Congress at Washington, and are kept by the Librarian of Congress, who makes an annual report to Congress of the number and description of copyright publications.
The Librarian of Congress must record the name of each copyright work in a book kept for the purpose. The form of entry is as follows:
"Library of Congress, to wit,—Be it remembered that on the day of A. B. of , hath deposited in this office the title of a book (map, chart, or otherwise as the case may be, or description of the article), the title or description of which is in the following words, to wit: (here insert the title or description), the right whereof he claims as author (originator or proprietor as the case may be), in conformity with the laws of the United States respecting copyright.—C. D., Librarian of Congress."
The librarian must give a copy of the title or description under the seal of the Librarian of Congress to the proprietor whenever he requires it.
The Librarian of Congress is entitled to receive from the persons to whom the services are rendered the following fees:[1429]
| 1. For recording title or description | 50 | c. |
| 2. For a copy of such record under seal | 50 | c. |
| 3. For recording and certifying a written consignment | $1 | |
| 4. For a copy of an assignment | $1 |
All fees so received must be paid into the Treasury of the United States.
The charge for recording the title or description of the work of a person not a citizen of, or resident in, the United States is $1.
The Librarian forwards a note of the title-entries to the Secretary of the Treasury, who must prepare and print, at intervals of not more than a week, catalogues of such title-entries for distribution to the collectors of customs of the United States and to the postmasters of all post-offices receiving foreign mails; and such weekly lists as they are [266] issued are furnished to all parties desiring them at a sum not exceeding $5 per annum.[1430]
The Secretary and Postmaster-General are empowered and required to make and enforce such rules and regulations as will prevent the importation into the United States of all articles prohibited by the Copyright Acts.[1431]
The Postmaster to whom a copyright book, title, or other article is delivered for the Librarian of Congress must, if requested, give a receipt therefor, and when so delivered he must mail it to its destination.[1432]
For every failure on the part of the proprietor of any copyright to deliver or deposit in the mail either of the published copies, or description, or photograph, the proprietor of the copyright is liable to a penalty of $25, to be recovered by the Librarian of Congress in the name of the United States in an action in the nature of an action of debt in any district court of the United States, within the jurisdiction of which the delinquent may reside or be found.[1433]
Section IV.—Immoral Works.
A work containing immoral matter will not receive the protection of the Courts.[1434] A song containing the verse, "She's the hottest thing you ever seen," was not protected.[1435] The introduction of obscene, profane, or libellous matter into a literary or artistic work does not render it publici juris; the copyright remains, but the Court will not entertain any action upon it. Thus in Broder v. Zeno[1436] the Court said that their decision to refuse protection would not prevent the complainants from republishing their song, and by omitting the objectionable word thus secure a valid copyright. If an action is brought for the piracy of immoral matter it will be dismissed without costs to either party. The fact that a work such as playing cards [267] may, and probably will, be used for an unlawful purpose, does not disentitle it to protection.[1437] A guide to the turf has been protected,[1438] so has a list of records and trotters and pacers.[1439]
Section V.—Duration of Copyright.
"Copyrights shall be granted for the term of twenty-eight years from the time of recording the title thereof."[1440]
"The author, inventor, or designer, if he be still living, or his widow or children if he be dead, shall have the same exclusive right continued for the further term of fourteen years, upon recording the title of the work or description of the article so secured a second time, and complying with all other regulations in regard to original copyright, within six months before the expiration of the first term: and such persons shall, within two months from the date of said renewal, cause a copy of the record thereof to be published in one or more newspapers printed in the United States for the space of four weeks."[1441]
In Callaghan v. Myers[1442] it was said that if by an error the notice of copyright on a published book bore a date prior to the actual year of publication the result would be not that the notice was bad, but that the term of copyright would date from the year specified in the notice.
Notice that the right to obtain an extended term is not given to the "proprietor;" therefore an employer whose servant did literary of artistic work in his employment would not be entitled to an extension. It seems doubtful whether the servant in such a case, although the actual author, would be entitled to an extension: it is thought not.
If the author, inventor, or designer assigns his copyright, he does not part with his right to an extension unless this is clearly intended by the transfer.[1443] From the terms of the statute one might doubt whether the right to obtain an extension is assignable. No doubt a contract to assign it would be valid, and a document purporting to assign it [268] would be held equivalent to such, so that on the extension being acquired the purchaser could compel an assignment.
If the author of an unpublished work conveys all right, title, and interest in it to another, he certainly cannot take out an extended term to run against his grantee.[1444] It seems doubtful whether he can take it out at all. Certainly his grantee cannot, and probably the author could not for his benefit.
If the original term is invalid there will be no right to a renewal.[1445][269]
CHAPTER III
WHO IS THE OWNER OF THE COPYRIGHT?
Under Section 4952 of the Revised Statutes as amended by the Act of March 3, 1891, the statutory right is vested in "the author, inventor, designer, or proprietor, and the executors, administrators, or assigns of any such person."
Care must be taken in entering a copyright that it is entered by and in the name of the owner of the common law right in the literary or artistic work. The entry does not require to be in the name of the author or to disclose who he is. It must be in the name of the owner, and if entered in the name of any other person it will be a bad entry.[1446] Thus, when a printer in his own name copyrighted a book of which he was not the owner, he could not maintain an action either for his own use or for the use of the owner.[1447] Every action for infringement must be brought in the name of the owner of the copyright for the time being; and it would seem, if he is not the author himself, he must show a derivative title from the author.[1448] The owner of a manuscript by an author unknown would not be entitled to copyright as "proprietor" and first publisher.[1449]
Section I.—The Author.
Primâ facie the author is owner of the copyright. If he is in a position of employment the right in his work may vest on creation in his employer; or he may have contracted in such a way that the property passes to another.[1450] But some relationship [270] or contract must be shown whereby the right passes, otherwise it remains the property of the author. The author who does work on commission does not necessarily part with his copyright, it may be expressly or impliedly reserved;[1451] neither does an author under a publishing agreement necessarily convey his rights to the publisher.[1452] In either case it will depend on a construction of the contract between the parties.
The author of a literary or artistic work is the man who creates it in his mind.[1453] He may employ others in the execution of the details or in the merely manual or mechanical work and yet remain the sole author. The author of a photograph is the man who arranges the subject and makes choice of the time and light. It does not make him any less the sole owner of the work that he employs some one to take off the cap or perform other manual details. A man who compiles a dictionary or a directory may be the sole owner of it, although he has had scores of employees working up the separate parts for him.[1454] But to constitute one an author he must show that his was the "inventive" or "creative" mind; it will not do that he has suggested a scheme and employed or procured some one else to carry it out independently;[1455] he must by his own intellectual labour applied to the material of his composition produce an arrangement or compilation new in itself.[1456] There may be joint authorship resulting in co-ownership.
When an unpublished work or copyright belongs to two or more persons in common, whether as co-authors or co-assignees, either of the two may alone sue a wrongdoer,[1457] and either may at his own expense publish the book without accounting to his co-owner.[1458][271]
Section II.—The Employer.
Probably in the case of a paid servant who does literary or artistic work for his master in the course of his employment, the master is the proprietor of the work even in its embryo state, and no conveyance, transfer, or consent by or on behalf of the servant is necessary to entitle the master to enter the copyright in his own name as proprietor. In such a case he does not require to show that he is the "author" of the work; he is a proprietor, and is entitled to the copyright as such.[1459]
In the case of work done on commission the relationship of the parties is somewhat different. The author is not a servant but an independent contractor, and therefore his work does not ab initio vest in his employer. There is a strong presumption in the case of a commission to execute work not in existence at the time, that the work when executed is to belong unreservedly to the person giving the order.[1460] The question depends, however, entirely on what the actual agreement between the parties was.[1461] An author, although he does work on commission, may well reserve the copyright to himself, giving to his employer a licence for a particular purpose only.[1462] If it has been agreed expressly or impliedly that the employer is to become owner of the copyright, then the delivery of the manuscript or other work in fulfilment of the contract will pass the author's literary or artistic common law right to the employer, and the latter may take the copyright in his own name as proprietor.[1463] If the term of the contract were that the author should retain the copyright, copyright must be entered in the author's name.[272]
Section III.—The State.
It has been questioned whether the Government of the United States or an individual State could take out a copyright for itself.[1464] It does seem doubtful whether the State can ab initio be the proprietor of a copyright. As was pointed out in Banks v. Manchester:[1465]
"The State cannot properly be called a citizen of the United States or a resident therein, nor could it ever be in a condition to fall within the description in the Revised Statutes, section 4952 or section 4954."
A corporation, however, has been held capable of entering itself as the original proprietor of a copyright.[1466] In the case of Heine v. Appleton,[1467] where an artist was employed on a Government expedition to Japan on the terms that all his artistic and scientific work should be the property of the United States Government, and the artistic material was, with the artist's consent, published by order of Congress in the report of the expedition, it was said that the artistic matter had been abandoned to the free use of the public. It does not appear, however, whether Congress, if they had taken steps, could or could not have secured a copyright in the literary or artistic matter in the report. Whether or not the Government of the United States or a State could be lawfully entered as the original proprietors of a work, it cannot be seriously doubted that as assignees they could acquire a copyright in matter already copyrighted by an individual. This they would be entitled to purchase and hold as any other Government property, such as ships, guns, and stores. A copyright might be taken out by an individual minister for the benefit of the people.[1468]
Section IV.—The Assignee.
Before copyright has been secured the common law rights in a manuscript or other unpublished work may be conveyed [273] by parol; no writing or evidence in writing is required.[1469] If a publisher takes a copyright in his own name with the knowledge and acquiescence of the author, the publisher is the lawful owner of the copyright subject to his accounting to the author in terms of the contract between them.[1470] Under the Act of 1831, and until the Revised Statutes, 1874, were passed, it would seem that a manuscript could not be assigned except by writing.[1471] Although the common law exclusive right of first production may pass by parol or delivery, it does not necessarily pass with possession or even with the ownership of the manuscript or other work. An author or other proprietor may sell documents, pictures, or other literary or artistic articles, reserving to himself the right of publication and right to acquire copyright and subsequently multiply copies.[1472] If an author's manuscripts are sold in execution, the purchaser does not acquire the right of publication.
After copyright has been secured the assignment is governed by statute. Section 4955 of the Revised Statutes, 1874, provides that copyrights are assignable in law by any instrument in writing, and such assignment must be recorded in the office of the Librarian of Congress within sixty days after its execution; in default of which it is void as against any subsequent purchaser or mortgagee for a valuable consideration without notice.
It must be considered at least doubtful whether this section affects a question between the parties or between the assignee and one who does not claim through the assignor.[1473] Mr. Drone, in his work on copyright, expresses an opinion that the first part of the section is merely permissive, and intended to [274] show that if the assignment is in writing no formalities are required. I doubt if this is sound. I think that even as between assignor and the assignee the assignment must be in writing; but I think the assignee can, without recording the assignment, sue his assignor or any third person, except those who claim a title through the assignor.
An agreement to assign may be made by parol, and where there was no subsequent assignment in proper form damages could be recovered for breach of the agreement.[1474]
Any alien friend may be an assignee of a copyright in the United States.[1475]
The assignee appears to take with the copyright an assignment of the assignor's choses in action; he has been held entitled to sue in respect of infringements committed prior to assignment.[1476]
An assignment need not necessarily be made by conveying the author's entire right to one person. It may be conveyed to two or more persons in common, or an undivided interest may be conveyed to one or more persons.[1477] We have seen that the statutory right of reproduction is divisible from the right of property in the concrete work.[1478] Thus an author may sell his painting or manuscript and retain the right to multiply copies. Further, the various rights of copyright may be split up as the holder pleases;[1479] one may have the right of printing, another the right of translating, and a third the right of performing. The assignment may also be limited as to a particular country or countries,[1480] the right to perform or print in America may be given to A, and the right to perform or print in Great Britain to B. Probably an assignment cannot be limited to a portion of the United States.[1481] I do not think that a copyright could be assigned for a limited time.[1482]
As a rule a licensee cannot sue in respect of an infringement; [275] but a licensee has been held the proper party to sue when he was an exclusive licensee, and by the terms of his licence was to bring all necessary suits.[1483] Copyright passes by bequest or on intestacy to the executors or administrators of the owner.[1484] On bankruptcy the bankrupt's copyrights may be applied for the benefit of the estate; but it would probably be necessary for the Court to order a transfer in conformity with the requirements of the Copyright Acts.[1485] Probably a bankrupt's manuscripts and other private matter could not be published for the benefit of the estate without the consent of the bankrupt.[276]
CHAPTER IV
INFRINGEMENT OF COPYRIGHT
The exclusive right given by the statute is "the sole liberty of printing, reprinting, publishing, completing, copying, executing, finishing, and vending ... and, in the case of a dramatic composition, of publicly performing or representing it or causing it to be performed or represented by others; and authors or their assigns shall have exclusive right to dramatize and translate any of their works for which copyright shall have been obtained under the laws of the United States."[1486]
Section I.—What is a Piratical Copy.
A copy of a literary or artistic work is such a reproduction of the original as will serve in whole or in part as a substitute for the original. Thus the plate from which a piratical engraving is intended to be struck is not a copy of the original engraving amounting to an infringement.[1487] Neither when several stones are required to produce a lithograph is an impression of the first stone only giving a mere outline an infringement.[1488] But a lithograph may be an infringement of a photograph if it produces the general conception even although the artistic detail and peculiar merit of the photograph are not reproduced.[1489] It has also been held that a photograph may be infringed by the design thereof being stamped on leather for a chair seat.[1490] A perforated scroll used for a mechanical musical instrument, such as a pianola or æolian, is not a piratical copy of the original music.[1491][277]
It is equally an infringement to make copies of a copyright work for a private distribution as it is to make them for sale.[1492] Strictly, even a single copy made for private use would be an infringement.
Copying may be Indirect.—A piratical taking need not necessarily be made direct from an authorised copy of the work alleged to be infringed. It may be taken from a derivative work, for instance, a painting may be infringed by copying an engraving made from it;[1493] or it may be taken from another unauthorised work. It would seem that it is not considered an infringement of copyright to publish and sell copies taken from the work before it was copyrighted, even although published and sold after it was copyrighted.[1494] It might be a breach of contract or common law right.
The Intention need not be Bad.—There is no necessity for the plaintiff in an action for infringement to show either that the defendant when he took the matter knew that it was protected by copyright, or that he believed the use which he was making of the plaintiff's work was an unfair one.[1495] The defendant may have been equally ignorant of fact and law, and yet he will be responsible for the result of his actions. Conversely, if in fact the defendant has not made an unfair use of the plaintiff's copyright work, it is immaterial to show either that he thought he was infringing the plaintiff's copyright or that he intended to carry his work further and actually to infringe the plaintiff's rights.[1496] The intention of the defendant, however, may be material as evidence in a doubtful case.[1497]
Proof of Copying.—The onus of proving an infringement is on the party making the charge.[1498] Mere similarity is not [278] sufficient; he must show that the work charged as a piracy was taken from his copyright work. The strongest evidence is usually in the coincidence of errors; but a few solitary instances are not conclusive. In a question between the authors of two rival law works,[1499] it was held that the duplication of a few errors in citations was not sufficient evidence of piracy where there was obviously a great deal of further work and labour expended in the preparation of the alleged infringing work. In a question of an alleged infringing digest,[1500] it was held that the mere verbal identity of the summary of one case where a large number of cases had been digested was not sufficient proof.
No Monopoly in Subject-Matter.—The right of copyright is an exclusive right of reproducing the whole or any part of an original literary or artistic work. It differs from a right of patent in that it does not prohibit another from producing and reproducing a work identically the same as the protected work, provided that he does so by going to the common sources of information and not by copying the protected work. Copyright creates no monopoly in the subject-matter. One man may compile tables of shipping and railway statistics; another may, without infringing the former's copyright, collect the same material and work it up for himself, producing, if accurately done and on the same principle, a very similar result.[1501] In the same way arithmetics,[1502] translations,[1503] school grammars,[1504] maps of a particular country,[1505] biographies,[1506] lithographs,[1507] law books,[1508] and other works[1509] do not entitle their author to say to a subsequent worker in the same field that as he was there first he has a right to exclude others from competition. In one case[1510] it was attempted to set up a monopoly in the biography of President Garfield, on the ground that the President had [279] selected a particular person for the work. The contention was rejected by the Court. Probably the only case in which an argument in favour of monopoly in a certain subject-matter has been sustained is that of Thomas v. Lennox.[1511] The subject of the action was Gounod's Oratorio The Redemption. A pianoforte arrangement had been published without acquiring copyright, but the orchestral score had never been published. The defendants procured a composer to compose an orchestral score from the pianoforte arrangement. This they publicly performed. In an action for infringement of the common law right in the plaintiff's unpublished orchestral score, the Court, in granting an injunction, said:
"In this respect an opera is more like a patented invention than a common book; he who shall obtain similar results, better or worse, by similar means, though the opportunity is furnished by an unprotected book, should be held to infringe the rights of the composer."
It is almost certain that this is bad law;[1512] it is contrary to the whole principle of copyright, and there is no substantial reason why an exception should be made in favour of a musical adaptation and not in that of a map or any other literary or musical work.
Taking a Substantial Part.—In Lawrence v. Dana, Clifford, J., said:
"Copying is not confined to literal repetition, but includes also the various modes in which the matter of any publication may be adopted, imitated, or transferred, with more or less colourable alterations to disguise the source from which the material was derived; nor is it necessary that the whole, or even the larger portion of the work, should be taken in order to constitute an invasion of copyright."[1513]
In Folsom v. Marsh, Story, J., said:
"If so much is taken that the value of the original is sensibly diminished, or the labours of the original author are substantially, to an [280] injurious extent, appropriated by another, that is sufficient in point of law to constitute a piracy pro tanto. The entirety of the copyright is the property of the author, and it is no defence that another person has appropriated a part and not the whole of any property."[1514]
To constitute an infringement there must be a taking of a material part of the original matter from another's work.[1515] To determine what is a material part is often a question of extreme difficulty and nicety. It depends on the quantity and quality of the matter taken, the object with which it is taken, the relation of the works to one another, the proportion of the matter taken to the complete works, but more particularly to the work of the borrower, the extent to which the work borrowed from is injured, and the extent to which the borrower makes profit from the introduction of the borrowed matter.[1516] In the case of Morrison v. Pettibone,[1517] a district judge held that the taking of the mere outline of a copyright photograph was not a copying within the meaning of the statutes. In this case it had been intended by the defendant to make an entire reproduction of the photograph by the process of lithography. The stones were all in actual readiness, but only one had been used, giving the initial colour and exterior lines of the intended lithograph. In one case where a few references had been taken by the author of one law book from another, a preliminary injunction was refused on the ground of small amount.[1518] The alleged infringement of a copyright photograph need not, however, be substantially identical in order to ensure conviction; it is sufficient if a substantial portion of the main design, distinctive ideas, or characteristic features are taken.[1519] Taking the boundaries of townships from a copyright map has been held to be an infringement.[1520] The taking of a single scene from [281] the drama of another may be an infringement.[1521] It is no answer to an action for infringement to say that the defendant's book in no way rivals or competes with the plaintiff's work.[1522] That is merely a question of damages.
Fair Use.—Although a man is not permitted to take the whole or part of another's work in the compilation of his own, he is entitled to make of that other's work what is known as a "fair use," for the purpose of a new work. One may use another's book as a guide to authorities;[1523] for supplying suggestions as to treatment of a subject;[1524] and for the purpose of checking the accuracy[1525] of a completed work. One may use it as a storehouse of information; but in a rival work it will be an infringement to take any of the facts as arranged, or to take any of the language of the other's book, except for the purposes of criticism.
Shipman, J., says in Banks v. M'Divitt:[1526]
"I do not understand that the rule prohibits an examination of previous works by the compiler before he has finished his own book, or the mere obtaining of ideas from such previous works.
"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 colourable alterations and variations only to disguise the use thereof; or whether his work is the result of his own labour, skill, and use of common materials and common sources of knowledge open to all men, and the resemblances are either accidental or arising from the nature of the subject."[1527]
A dramatist must not take the plot, the characters, the scenes, or situations from the drama of another.[1528] A musician must not take his melody from that of another composer.[1529] The compiler of a digest must not borrow verbatim from the [282] headnotes in the reports.[1530] The compiler of a directory must discover and make his own selection of the matter to be comprised in it.[1531] The designer of a map must not take the position of his towns and boundaries from a copyright map.[1532] The compiler of a dictionary must not take his definitions from another's copyright dictionary.[1533] The writer of a law book must not take his citations and references from the work of another.[1534] It is no answer to a charge of infringement for the defendant to say he could have produced the same result with a little extra trouble. He is not thereby entitled to appropriate the plaintiff's labours.[1535] A man may take ideas from the work of another and put his own material into a similar form.[1536] If one man writes a book on physiognomy on a new system, another may adopt his system and from his own research write a similar book. So the copyrighting of tables showing the standing and credit of the citizens of a state does not prevent another from compiling similar tables.[1537] The sketch of a detective which was said to convey an original idea was held not to have been infringed by another drawing carrying out the same idea but differently executed.[1538] There is no copyright in a method of advertising,[1539] so that if a tradesman issues a circular describing a particular method of obtaining goods by collecting discount coupons, although another tradesman may not copy his circular he may adopt the same system and issue a catalogue of his own, describing the system in his own words.[1540] There is no infringement of a drama in adopting from it a mechanical contrivance, such as a tank filled with water to represent a river on the stage.[1541] In [283] the case of Bullinger v. MacKay[1542] it is suggested by Benedict, J., in his judgment that there might be copyright in a novel system of arranging matter in a statistical work. It is submitted that this is wrong, and that even if the arrangement was an original one there would be no infringement in taking the method of arrangement and applying it independently.
Improvement no Excuse.—It is no answer to an action for infringement for the defendant to say that he has made a good work out of a bad one, and so benefited the literary or artistic world.[1543] Even although I correct errors and make necessary additions so as to create from a worthless a useful book, I am not entitled so to deal with another author's work without his permission. Good or bad, an author is entitled to do what he likes with his own work and to prevent others making an unfair use of his labours.[1544]
Different Object.—When a subsequent book is written with a different object from a previous publication it may be legitimate to take considerable extracts from the earlier work. To what extent this will be permitted must depend upon the relative value of the matter taken, and the purpose for which it is taken.[1545] It is not an absolute answer to an action for infringement to say that the matter was taken for an entirely different purpose from that for which it was used in the original work. If the taking in any way supersedes the uses to which the matter taken might have been put by its original author there is an infringement.[1546] Thus where the main design of a photograph was reproduced on stamped leather,[1547] and where the author of a life of Garfield for the young borrowed largely from a biography of Garfield written for political campaigns,[1548] there was held to be infringement. It is the nature and value of the extracts more than their length or number that must determine whether it was legitimate to take them or not.[284]