* 257 ac *CHAPTER XIV. OF THE LAW OF COPYRIGHT. SECT. I. What is Protected by Copyright. [THE Revised Statutes of the United States §§ 4948-4971, inclusive, and c. 565 of the Acts of 1891, 26 Stat. at Large, 1106], regulate the law of copyrights. The subjects of copyright may be a book, map, chart, dramatic or musical composition, engraving, cut, print, or photograph, or negative thereof, or a painting, drawing, chromo, statue, statuary, and of models and designs intended to be perfected as works of the fine arts. The copyright may be taken by any one who is a citizen of the United States, or a resident therein, and the author, inventor, designer, or proprietor of the thing to be copyrighted. It is obvious that the foundation on which this law stands, is very similar to that of the law of patents. The State secures to the holder the exclusive right to publish a certain work for a certain time. (x) It gains by this an important and most operative stimulus to literary and artistic invention and labor, in all directions. If there are those who think, that, if the motive of pecuniary profit were entirely withdrawn from all intellectual labor, as in earlier ages, the results of this labor would greatly improve in quality, all must admit that they would be much diminished in quantity. Nor does there seem to be any sufficient reason why the product of this labor should not be adequately paid for in money, as all other labor is, nor any effectual way of securing this except by the law of copyright. It is certain that, until publication, every man has, at common law, the exclusive control of his literary productions, and therefore the exclusive right to their first publication. (a) (a) Yates, J., in Millar v. Taylor, 4 Burr. 2378, says: "Ideas are free. But while the author confines them to his study, they are like birds in a cage, which (x) And its statutes on the subject supersede the common law. Holmes v. none but he can have a right to let fly; for till he thinks proper to emancipate them, they are under his own dominion. It is certain every man has a right to Hurst, 174 U. S. 82, 19 S. Ct. 606, 43 The belief that a man has naturally and always a *257 ad right to what have been called "the children of his brain," led a few years ago to a determined effort, by authors and publishers, to establish, at common law a permanent and exclusive right to their books. And this effort found some sympathy even in courts. (b) this question is now settled, But keep his own sentiments if he pleases; he has certainly a right to judge whether he will make them public, or commit them only to the sight of his friends. In that state, the manuscript is in every sense his peculiar property; and no man can take it from him, or make any use of it which he has not authorized, without being guilty of a violation of his property. And as every author or proprietor of a manuscript has a right to determine whether he will publish it or not, he has a right to the first publication; and whoever deprives him of that priority, is guilty of a manifest wrong, and the court have a right to stop it." In the case of the Duke of Queensbury v. Shebbeare, 2 Eden, 329, an injunction was granted against printing the second part of" Lord Clarendon's History," by one to whom the manuscript had been lent. And in Webb v. Rose, an injunction was granted against the publication of the plaintiff's "Precedents of Conveyancing,' which had been stolen from his chambers and printed. See also Pope v. Carl, 2 Atk. 342; Macklin v. Richardson, Amb. 694; Prince Albert v. Strange, 1 Hall & Tw. 1; s. c. McN. & Gor. 25; Turner v. Robinson, 10 Ir. Ch. R. 510; Gee v. Pritchard, 2 Swanst. 402; Touson v. Walker, 3 Swanst. 673; Little v. Hall, 18 How. 170; Bartlette v. Crittenden, 4 McLean, 300; Woolsey v. Judd, 4 Duer, 379. This right is recognized by a provision in our copyright act, § 102. (b) Whether, after publication, an author has an exclusive copyright at common law, was long a disputed question though now apparently settled in the negative. It was very thoroughly discussed by the Court of King's Bench, in the celebrated case of Millar v. Taylor, 4 Burr. 2303, where Lord Mansfield and two of the other judges affirmed the right, Judge Yates alone dissenting. They also held, that this copyright was not affected by the statute of Anne regulating the matter of copyright. Soon after, this opinion was overruled in the House of Lords, in the equally celebrated case of Donaldson v. Beckett, 4 Burr. 2408, 2 Bro. Parl. Cas. 129. In this case the following questions were propounded to the judges: "First. Whether, at common law, an 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 person who printed, published, and sold the same without his consent?" This question they decided in the affirmative, by a majority of eight to three. "Second. If the author had such right originally, did the law take it away upon his printing and publishing such book or literary composition? And might any person afterwards reprint and sell, for his own benefit, such book or literary composition, against the will of the author? This was decided in the negative, by a majority of seven to four. "Third. If such action would have lain at common law, is it taken away by the Statute 8 Anne? And is an author, by said statute, precluded from every remedy, except on the foundation of the said statute, and on the terms and conditions prescribed thereby?" This was answered in the affirmative, six to five. This case therefore decided that, although the author had a copyright in his works at common law, even after publication, the statute had deprived him of that right, and substituted a limited privilege in its place. Subsequently, in Beckford v. Hood, 7 T. R. 620, Lord Kenyon expressed a decided opinion against the existence of a common-law copyright, and Lord Ellenborough inclined to the same opinion in Cambridge University v. Bryer, 16 East, 317. The question has recently undergone another careful consideration, in the case of Jefferys v. Boosey, 4 H. L. C. 815, where the majority of the judges repudiated the doctrine of a common-law copyright, and affirmed the position that the rights of authors depend entirely upon the statute. In the case of Wheaton v. Peters, 8 Pet. 593, a majority of the U. S. Supreme Court were of opinion that the common law of England did not recognize an author's copyright in his works after publication; but that, whether this was so or not, an author in this country has no exclusive property in his published works, except as given by the Federal Constitution and the laws of Congress 257 ae and it is certain that no author has any right in or to his work after it is published, which courts can respect, except that which is given him by statute. It is expressly held that Congress, in the statute of copyright, created a new right, and did not sanction an existing right. (bb) The present statute leaves the former law much as it was, excepting the important change it makes in the manner of securing a copyright. We give, in our notes, the sections defining what may be the subject of a copyright; the length of time during which the copyright is in force; the manner in which the copyright may be obtained; and what the proprietor must do to enable himself to maintain an action for infringement of his right.1 made in pursuance thereof. See also, Stevens v. Gladding, 17 How. 454; Clayton v. Stone, 2 Paine, 382; Stowe v. Thomas, 2 Wall. Jr. 547; Dudley v. Mayhew, 3 Comst. 12; Rees v. Peltzer, 75 Ill. 475. (bb) Wheaton v. Peters, 8 Pet. 593, supra. 1 Rev. Stat. § 4952, as amended by Act of 1891, c. 565: "The author, inventor, designer or proprietor of any book, map, chart, dramatic or musical composition, engraving, cut, print or photograph or negative thereof, or of a painting, drawing, chromo, statue, statuary, and of models or designs intended to be perfected as works of the fine arts, and the executors, administrators, or assigns of any such person shall, upon complying with the provisions of this chapter, have the sole liberty of printing, reprinting, publishing, completing, copying, executing, finishing, and vending the same; and in the case of 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." § 4953. "Copyrights shall be granted for the term of twenty-eight years from the time of recording the title thereof, in the manner hereinafter directed." § 4954 (as amended). "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 copyrights, within six months before the expiration of the first term. And such person shall, within two months from the date of said renewal, cause a copy of the record thereof to be published in one or more newspapers printed in the United States for the space of four weeks." § 4955. "Copyrights shall be assignable in law by any instrument of writing, and such assignment shall be recorded in the office of the Librarian of Congress, within sixty days after its execution, in default of which it shall be void as against any subsequent purchaser or mortgagee for a valuable consideration, without notice." § 4956 (as amended). "No person shall be entitled to a copyright unless he shall on or before the day of publication, in this or any foreign country, deliver at the office of the Librarian of Congress, or deposit in the mail, within the United States, addressed to the Librarian of Congress, at Washington, District of Columbia, a printed copy of the title of the book, map, chart, dramatic or musical composition, engraving, cut, print, photograph or chromo, or a description of the painting, drawing, statue, statuary, or a model or design for a work of the fine arts for which he desires a copyright; nor unless he shall also, not later than the day of publication, deliver at the office of the Librarian of Congress, or deposit in the mail within the United States, addressed to the Librarian of Congress, at Washington, District of Columbia, two copies of such copyright book, map, chart, dramatic or musical composition, engraving, chromo, cut, print, or photograph, or in case of a painting, drawing, statue, statuary, model or design for a work of the fine arts, a photograph of the same: Provided, that in the case of a book, photograph, chromo, or lithograph, the two copies of the same required to be delivered or deposited as above, shall be printed from type set within the limits of the United States, or from plates made therefrom, or from nega CH. XIV.] OF COPYRIGHT. * The statute also provides that the proprietor of every *257 af copyright book "shall" deliver or mail to the Librarian of Congress at Washington, within ten days after its publication, two copies. And then follows a provision which effectually prevents a question which had arisen under analogous provisions in former statutes. It fixes the penalty of one dollar for default in this duty; and thus severs all connection between this duty and the validity of the copyright, leaving that unaffected by any default in this duty. (d) 1 (x) (d) Rev. Stat. §§ 4956-4961. tives or drawings on stone made within the limits of United States, or from transfers made therefrom. During the existence of such copyright the importation into the United States of any book, chromo, lithograph, or photograph, so copyrighted, or any edition or editions thereof, or any plates of the same not made from type set, negatives or drawings on stone made within the limits of the United States, shall be, and it is hereby, prohibited, except in the cases specified in paragraphs five hundred and twelve to five hundred and sixteen inclusive, in section two of the act entitled, 'An act to reduce the revenue and equalize the duties on imports and for other purposes,' approved October first, eighteen hundred and ninety; and except in the case of persons purchasing for use and not for sale, who import subject to the duty thereon, not more than two copies of such book at any one time; and except in the case of newspapers and magazines, not containing in whole or in part matter copyrighted under the provisions of this act, unauthorized by the author, which are hereby exempted from prohibition of importation: Provided nevertheless, that in case of books in foreign languages, of which only translations in English are copyrighted, the prohibition of importation shall apply only to the translation of the same, and the importation of the books in the original language shall be permitted." day of § 4957. "The Librarian of Congress shall record the name of such copyright, book, or other article, forthwith in a book to be kept for that purpose, in the words following: Library of Congress, to wit: Be it remembered that on the hath deposited in this office the title of a book (map, chart or otherA. B., of wise, 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 copyrights. C. D., Librarian of Congress.' And he shall give a copy of the title or description, under the seal of the Librarian of Congress, to said proprietor, whenever he shall require it." § 4962. "No person shall maintain an action for the infringement of his copyright, unless he shall give notice thereof, by inserting several copies of every edition published, on the title-page, or the page immediately following, if it be a book; or, if a map, chart, musical composition, print, cut, engraving, photograph, painting, drawing, chromo, statue, statuary, or model or design intended to be perfected and completed as a work of the fine arts, by inscribing upon some portion of the face or front thereof, or by A. B., in the office of the on the face of the substance on which the same shall be mounted, the following words: 'Entered according to act of Congress, in the year Librarian of Congress at Washington.' Sec. 13 of the Act of 1891 provides that that act shall only apply to the citizens or subjects of a foreign nation if that nation permits to United States citizens copyright on substantially the same basis as its own citizens, or is a party to an international agreement of copyright to which the United States may at its pleasure become a party. The existence of either of these conditions is to be determined by the President of the United States by proclamation from time to time. Since the passage of the act the President has by proclamation declared that Belgium, France, Great Britain, and Switzerland come within this provision.-W. 1 The deposit of the copies required is still a condition precedent to the validity of March 2, 1895, ch. 194 (28 St. 965), to read as follows: (c) See now §§ 5-12 of the abovequoted act of 1891, of which statute § 8 (or § 4965) was again amended by the Act "SEC. 4965. If any person, after the 333 As the title of the book or other article must be deposited in the mail before the publication, it is important to determine what is publication in this sense. The delivery of a lecture to an of a copyright. Merrell v. Tice, 104 U. S. 557; Thompson v. Hubbard, 131 U. S. 123, 150.-W. recording of the title of any map, chart, dramatic or musical composition, print, cut, engraving, or photograph, or chromo, or of the description of any painting, drawing, statue, statuary, or model or design intended to be perfected and executed as a work of the fine arts, as provided by this Act, shall, within the term limited, contrary to the provisions of this Act, and without the consent of the proprietor of the copyright first obtained in writing, signed in presence of two or more witnesses, engrave, etch, work, copy, print, publish, dramatize, translate, or import, either in whole or in part, or by varying the main design, with intent to evade the law, or, knowing the same to be so printed, published, dramatized, translated, or imported, shall sell or expose to sale any copy of such map or other article, as aforesaid, he shall forfeit to the proprietor all the plates on which the same shall be copied, and every sheet thereof, either copied or printed, and shall further forfeit one dollar for every sheet of the same found in his possession, either printing, printed, copied, published, imported, or exposed for sale; and in case of a painting, statue, or statuary, he shall forfeit ten dollars for every copy of the same in his possession, or by him sold or exposed for sale: Provided, however, That in case of any such infringement of the copyright of a photograph made from any object not a work of fine arts, the sum to be recovered in any action brought under the provisions of this section shall be not less than one hundred dollars, nor more than five thousand dollars, and: Provided, further, That in case of any such infringement of the copyright of a painting, drawing, statue, engraving, etching, print, or model or design for a work of the fine arts or of a photograph of a work of the fine arts, the sum to be recovered in any action brought through the provisions of this section shall be not less than two hundred and fifty dollars, and not more than ten thousand dollars. One-half of all the foregoing penalties shall go to the proprietors of the copyright and the other half to the use of the United States." Sec. 4963 was amended by the Act of March 3, 1897, ch. 392 (29 St. 694), to read as follows: "SEC. 4963. Every person who shall insert or impress such notice, or words of the same purport, in or upon any book, map, chart, dramatic or musical composition, print, cut, engraving or photograph, or other article, whether such article be subject to copyright or otherwise, for which he has not obtained a copyright, or shall knowingly issue or sell any article bearing a notice of United States copyright which has not been copyrighted in this country; or shall import any book, photograph, chromo, or litho graph or other article bearing such notice of copyright or words of the same purport, which is not copyrighted in this country, shall be liable to a penalty of one hundred dollars, recoverable one-half for the person who shall sue for such penalty and onehalf to the use of the United States; and the importation into the United States of any book, chromo, lithograph, or photograph, or other article bearing such notice of copyright, when there is no existing copyright thereon in the United States, is prohibited; and the circuit courts of the United States sitting in equity are hereby authorized to enjoin the issuing, publishing, or selling of any article marked or imported in violation of the United States copyright laws, at the suit of any person complaining of such violation: Provided, That this Act shall not apply to any importation of or sale of such goods or articles brought into the United States prior to the passage thereof." " Sec. 4966 was amended by the Act of Jan. 6, 1897, ch. 4 (29 St. 481), to read as follows: SEC. 4966. Any person publicly performing or representing any dramatic or musical composition for which a copyright has been obtained, without the consent of the proprietor of said dramatic or musical composition, or his heirs or assigns, shall be liable for damages therefor, such damages in all cases to be assessed at such sum, not less than one hundred dollars for the first and fifty dollars for every subsequent performance, as to the court shall appear to be just. If the unlawful performance and representation be wilful and for profit, such person or persons shall be guilty of a misdemeanor and upon conviction be imprisoned for a period not ex |