of or according to any gift, endowment, or foundation. 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 public 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.1 In the United States, the right of property in lectures depends upon the general principles of the common law, and the statute which protects the owner of manuscripts.2 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 unauthorized 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. pp. 144-149. 2 Act of Cong. 3d Feb. 1831, § 9. But it does not follow that because the information 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 confidence 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 person 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 implied from circumstances.2 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. § 949. Law Journ. 209, 219. 2 Story's Eq. Jurisp. 949. that it is a piracy of a composition in writing, the writing must be produced.1 The act of congress, 3d February, 1831, § 9, gives an action on the case against any person who shall print or publish any manuscript whatever without the consent of the author or proprietor, and empowers the courts of the United States to grant injunctions 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 writing.2 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 represented on the stage.3 1 Ibid. In France, the cour royale of Paris had before it, in 1828, the interesting question, whether, when a course of oral lectures is merely the reproduction of a work previously published by the professor, a person who publishes the lectures from notes taken by a stenographer, can be made responsible for a piracy to the publisher of the work thus reproduced. The decision of the question was given in the affirmative. See Renouard, tom. 2, p. 146. Macklin v. Richardson, Amb. 695. The plaintiff, in this case, was the author of a farce called "Love a la Mode," consisting of two acts, which was performed, by his permission, several times, at the different theatres, in successive years, but was never printed or published by him. When the farce was over, he used to take the copy away from the prompter; and when it was played at the benefits of particular actors, he made them pay a certain sum for the performance. The defendants, who were proprietors of a magazine, employed a short-hand writer to take down the words of the play at the theatre, and thus published the first act, giv ing notice that they would publish Whether the property of an author in a published play includes, at common law, the sole right of representation 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.1 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 Chancellor, certified it as their opinion that an action could not be maintained "for publicly acting and representing the said tragedy, abridged in manner aforesaid." 2 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 exclusive privilege to the more valuable form of representation or performance. This defect in the law led to the enactment of statutes giving this exclusive the second act in their next number. Lord Commissioner Smythe, in granting an injunction, negatived the idea that acting a play is a publication of it. 1 Coleman v. Wathen, 5 T. R. 2 Murray v. Elliston, 5 B. & Ald. 245. right. The 3 Wm. IV. c. 15, sec. 1, gave to the author or his assignee, of any printed and unpublished tragedy, comedy, play, opera, farce, or other dramatic piece or entertainment, the sole right of having it represented in any part of the British dominions; 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 publication, 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 author's life.1 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 duration of copyright in books. The same section extends 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 representation or performance shall be deemed equivalent to the first publication of a book.2 V. Books. The term "Book" is made use of 1 3 Wm. IV. c. 15, sec. 1. See Appendix. 25 and 6 Vict. c. 45, s. 20. See Appendix. |