Construction of the Statute of Anne.

Assignment must be in

writing.

Musical composition.

It has also been determined upon this statute, that the assignment of the copyright must be in writing (a); and accordingly evidence of the plaintiff having acquiesced for six years in the defendant's publication, was holden not to prove that he had transferred his interest in the copyright (b); and that a receipt given by him for money received for the price of the copyright, would not preclude the plaintiff from maintaining the action (c). But. in a case where a witness stated, in cross examination, that he had heard the plaintiff declare that he had parted with all his interest in the copyright, without mentioning in what manner the transfer had taken place, the plaintiff was nonsuited (d).

It has been determined, upon a case sent out of Chancery, that a musical composition is a writing within the statute of Anne (e). A question has also been considerably agitated, whether a composition published on a single sheet of paper, was privileged as a book within that statute; which, after considerable doubt, and after very ingenious and interesting arguments, has also been decided in the affirmative (f). And it has been further determined, that an allegation, that the plaintiff was the author of a book, being a musical composition called A, is well

(a) Power v. Walker, 4 Campb. 8. 2 M. & S. 7.

(6) Latour v. Bland, 2 Starkie, 382.

(c) Ibid.

(d) Moore v. Walker, 4 Campb. 8. n. Vide post, p. 288. as to the practice of the Court of Chancery upon this subject.

(e) Bach v. Longman, Cowp. 623.

(ƒ) Hime v. Dale, 2 Campb. 28. n. Clementi v. Golding, ib. 25. 11 East. 244.

supported, by showing him to have been the author Construction of a musical composition of that name, comprised in of the Statute of Anne. and occupying only one page of a work with a dif ferent title, which contained several other musical compositions (a). The difficulty in these cases arose from the statute, which in the preamble uses the expression" books and other writings,' speaking in the enacting part only of " book or books."

A common instance of the interposition of a court Unpublished of equity is, to restrain the publication of Unpublished MSS. MSS. (b). Two early precedents of this, are the cases of Mr. Webb, who had his Precedents of Conveyancing stolen out of his chambers, and printed (c); and of Mr. Forrester, whose notes were copied by the clerk of a gentleman to whom he had lent them (d). Upon this ground an injunction was granted to restrain the publication by Dr. Shebbeare and Mr. Gwynne of the second part of Lord Clarendon's History: it had been delivered by Henry, Earl of Clarendon, to an ancestor of the defendant Gwynne, with liberty, as it was stated, to take a copy of it, and make what use of it he thought fit.

(a) White v. Geroch, 2 B. & A. 298.

(b) It has been determined at law, that the 54 Geo. 3. c. 156. does not impose upon authors, as a condition precedent to their deriving any benefit under that act, that the composition should be first printed; and therefore that an author does not lose his copyright by selling his work in MS. before it is printed. White v. Geroch, 2 B. & A. 298.

(c) Webb v. Rose, 24 May, 1732. cit. 2 Bro. P. C. Ed. Toml. 138.

(d) Forrester v. Waller, 13 June, 1741. ib.

of the Statute of Anne.

Construction Lord Northington, however, observed, that it was not to be presumed that Lord Clarendon, when he gave a copy of his father's work to Mr. Gwynne, intended that he should have the profit of multiplying it in print; that Mr. Gwynne might make every use of it except that (a). In Macklin v. Richardson (b), the defendant had employed a short-hand writer to take down the farce of Love à la Mode upon its performance at the theatre, and inserted one act in a magazine, and gave notice that the second act would be published in the magazine of the following month; upon which an injunction was granted.

Matters be-
fore the

Privy
Council.

Injunction to

In the case of the late Dr. Paley, who left certain manuscripts to be given to his own parishioners only, a bookseller, who had obtained possession of them, was restrained from publishing them (c).

A case has been mentioned in argument at the bar (d), in which the Attorney General, on grounds of public policy, obtained an injunction to restrain the publication of matters in the Privy Council.

Upon the same principle the publication of private restrain pub- letters, forming a literary composition, has been restrained. The first instance of this was the case of

lication of

private letters form

ing a literary Pope v. Curl (e). The defendant was attempting to recomposition. publish in England letters of Pope, Swift, and others,

(a) Duke of Queensberry v. Shebbeare, 2 Eden, 829. so the bare delivery of the copy to be printed, does not divest the right out of the author. Knaplock v. Curl, 4 Vin, Ab. 278.

(b) Amb. 694.

(c) Cit. 2 V. & B. 23.

(d) Ib. 21.

(e) 2 Atk. 342.

which had been already surreptitiously published in Construction Ireland. Lord Hardwicke restrained the defendant of the Statute. of Anne. from printing, publishing, and vending those letters, of which the plaintiff asserted himself to be the author. He said that letters, though familiar, might form a literary composition, in which the author retains his copyright, and does not, by sending them to the person to whom they are addressed, authorise him, or a third person, to use them for the purpose of profit, by publishing them against the interest and intention of the author; that by sending the letters, though he parts with the property of the paper, he does not part with the property of copyright in the composition. Upon this authority Lord Bathurst granted an injunction against the widow of Mr. Stanhope, and Dodsley, the bookseller, to restrain the publication of Lord Chesterfield's letters (a).

The question in these cases, as observed by Sir T. Plumer, arose, whether, where letters had the character of literary composition, the transmission of them to the person to whom they were addressed, deprived the author of his power over them as his composition, so far as to authorise a publication without his consent. And it has been decided, observed his Honour, that by sending a letter, the writer does not give the receiver the power of publishing it that whether he is to be considered as a joint proprietor or not, letters may have the character of literary composition stamped upon them, so that they are within the spirit of the act of par

(a) Thompson v. Stanhope, Amb. 737.

of Anne.

Construction liament protecting literary property; and a violation of the Statute of the right in that instance, is attended with the same consequences as in the case of an unpublished manuscript of an original composition of any other description.

Not to restrain all

letters.

Not where publication necessary to

clear the party's cha racter.

His Honour then proceeded to observe, that admitting that private letters might have the character of literary composition, the application of a right to restrain as a universal rule, extending to every letter which any person writes upon any subject, appeared to go a great way, as it included all mercantile letters, all letters passing between individuals, not only upon business, but on every subject that can occur in the intercourse of private life. If in every such instance, the publication might, upon this doctrine, be restrained as a violation of literary property; whatever might be the intention, the effect would frequently be to deprive an individual of his defence, by proving agency, orders for goods, the truth of his assertion, or any other fact, in the proof of which letters might form the chief ingredient.

Upon this principle his Honour, in the case from whence these observations are taken, dissolved an injunction against publishing private letters, alleged to have been obtained from an agent, to whom they were sent in confidence; the answer denying confidence, and avowing the defendant's object in publishing them in a newspaper, of which he was the proprietor, to be not profit, but the vindication of his character from the imputation publicly cast upon him by the plaintiff of giving false intelligence (a).

(a) Lord and Lady Perceval v. Phipps, 2 V. & B. 19,