By the Act of Congress of the 18th of August, 1856, CAP. XVIII. s. 1, it is declared that any copyright thereafter granted, under the laws of the United States, to the author or proprietor of any dramatic composition, designed or suited for public representation, shall be deemed to confer upon the author or proprietor, his heirs, or assigns, along with the sole right to print and publish the said composition, the sole right also to act, perform, or represent the same, or cause it to be acted, performed, or represented, on any stage or public place, during the whole period for which the copyright is obtained. This clause, however, refers only to cases in which copyright is effectively secured under the Act of 1831 (a).

The Act of Congress is declared not to extend to prohibit the importation, or vending, printing, or publishing within the United States, of any map, chart, or book, musical composition, print, or engraving, written, composed, or made by any person not a citizen of the United States, nor resident within the jurisdiction thereof.

The copyright recorded in any State extends to all the other States in the Union.

(a) Keane v. Wheatley, 9 Amer. Law. Reg. 33, 44; Roberts v. Myers, 13 Mo. Law Rep. (Amer.) 397, 400.

between authors and publishers.

CHAPTER XIX.

ARRANGEMENTS BETWEEN AUTHORS AND PUBLISHERS.

Arrangements A FEW remarks may, perhaps, be here advantageously offered on compacts, arrangements, and stipulations between authors and publishers, and we trust they may prove profitable both to the former and the latter.

In these days, when literature and commerce march in open array, and their pace is so rapid and great; when on the one hand a few authors write for fame, some for gain, and many for both; and on the other hand publishers regard their writings purely in a commercial point of view, estimating their worth (at least to them) by the amount of profit likely to accrue from the publication, two antagonistic parties frequently come in contact.

Authors who compose exclusively for fame are, on the assumption that they ever existed, rapidly becoming extinct; while those who write for gain are much on the increase. The spirit of the age is commerce, and almost every transaction of the present day is regarded in a commercial light.

Thus we have two parties in opposition: the one estimating the value of his work in proportion to his toil and labour in its composition, the other computing it in proportion as he conceives the public may become purchasers. The publisher could not undertake to requite or recompense the author according to the degree of exertion employed by him; for what amount of drudgery and toil may not be expended upon a work which would not even cover the expenses of printing and publication? Publishers invariably act like merchants, whose principle is to risk as

little capital as possible, and to replace that with profit as CAP. XIX. early as feasible.

author.

The reward due to an author is thus justly referred to The reward by Mr. Serjeant Talfourd: "We cannot decide the abstract due to the question between genius and money, because there exists no common properties by which they can be tested, if we were dispensing an arbitrary reward; but the question how much the author ought to receive is easily answered: so much as his readers are delighted to pay him. When we say that he has obtained immense wealth by his writing, what do we assert, but that he has multiplied the sources of enjoyment to countless readers, and lightened thousands of else sad, or weary, or dissolute hours? The two propositions are identical, the proof of the one at once establishing the other. Why, then, should we grudge it any more than we would reckon against the soldier, not the pension or the grant, but the very prize-money which attests the splendour of his victories, and in the amount of his gains proves the extent of ours? Complaints have been made by one in the foremost rank in the opposition to this bill [a bill for the extension of copyright], the pioneer of the noble army of publishers, booksellers, printers, and bookbinders, who are arrayed against it, that in selecting the case of Sir Walter Scott as an instance in which the extension of copyright would be just, I had been singularly unfortunate, because that great writer received during the period of subsisting copyright an unprecedented revenue from the immediate sale of his works. But, sir, the question is not one of reward—it is one of justice. How would this gentleman approve of the application of a similar rule to his own honest gains? From small beginnings, this very publisher has, in the fair and honourable course of trade, I doubt not, acquired a splendid fortune, amassed by the sale of works, the property of the public—of works, whose authors have gone to their repose, from the fevers, the disappointments, and the jealousies which await a life of literary toil. Who grudges it to him? Who doubts his title to retain it? And yet this gentleman's fortune is all, every

CAP. XIX. farthing of it, so much taken from the public, in the sense of the publishers' argument; it is all profits on books bought by that public, the accumulation of pence, which, if he had sold his books without profit, would have remained in the pockets of the buyers. On what principle is Mr. Tegg to retain what is denied to Sir Walter? Is it the claim of superior merit? Is it greater toil? Is it larger public service? His course, I doubt not, has been that of an honest, laborious tradesman; but what has been its anxieties compared to the stupendous labour, the sharp agonies, of him whose deadly alliance with those very trades whose members oppose me now, and whose noble resolution to combine the severest integrity with the loftiest genius, brought him to a premature grave,-a grave which, by the operation of the law, extends its chillness even to the results of those labours, and despoils them of the living efficacy to assist those whom he has left to mourn him? Let any man contemplate that heroic struggle, of which the affecting record has just been completed, and turn from the sad spectacle of one who had once rejoiced in the rapid creation of a thousand characters flowing from his brain and stamped with individuality, for ever straining the fibres of the mind till the exercise which was delight became torture, girding himself to the mighty task of achieving his deliverance from the load which pressed upon him, and with brave endeavour, but relaxing strength, returning to the toil, till his faculties give way, the pen falls from his hand on the unmarked paper, and the silent tears of half-conscious imbecility fall upon it-and to some prosperous bookseller in his counting-house, calculating the approach of the time (too swiftly accelerated) when he should be able to publish for his own gain, those works fatal to life; and then tell me, if we are to apportion the reward of the effort, where is the justice of the bookseller's claim? Had Sir Walter Scott been able to see, in the distance, an extension of his own right in his own productions, his estate and his heart had been set free; and the publishers and printers, who are our opponents now, would have been

grateful to him for a continuation of labour and rewards CAP. XIX. which would have impelled and augmented their own” (a).

maintainable

If an author agree in writing to supply a bookseller or An action. publisher with a manuscript of a work to be printed by for not supplythe latter, an action for damages can be maintained for ing a work agreed to be refusing to furnish the same (b), provided the work be furnished. one which, if published, would not subject the author to

punishment (c).

work be stopped the com- author must be paid for been work already

done.

Where, however, the author was engaged for a certain Should the sum to write an article to appear, among others, in a work called The Juvenile Library,' and before he had pleted his article, and before any portion of it had published, the work in which it was to have appeared was discontinued, Lord Chief Justice Tindal 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 author a reasonable sum for the part which he had prepared (d).

An author may bind himself not to write upon a par- An author may bind himticular subject, or only for a particular person; for a bond self not to or covenant to that effect would not resemble one in write upon a restraint of trade.

Thus, where Colman had contracted with the proprietors of the Haymarket Theatre not to write dramatic pieces for any other theatre, the Lord Chancellor maintained that such a contract was not unreasonable upon either construction, whether it was that Mr. Colman should not write for any other theatre without the licence of the proprietors of the Haymarket Theatre, or whether it gave to those proprietors merely a right of pre-emption. If, said he, Mr. Garrick were now living, would it be unreasonable that he should contract with Mr. Colman to perform only at the Haymarket Theatre, and Mr. Colman with him to write for that theatre alone? Why should they not thus engage for the talents of each other? I cannot see anything

(a) Speech in the Commons, April 25, 1838, 42 Parl. Deb. 560. (b) Gale v. Leckie, 2 Stark, N. P. C. 107; the Court of Chancery, however, could not compel him: Clarke v. Price, 2 Wils. C. C. 157. (c) Ibid.

(d) Planche v. Colburn, 5 Car, & Pay. 58.

particular subject.