tain passages and translating Latin and French quotations.1 The next was a case relating to no less a book than Dr. Johnson's Rasselas. The defendant printed part of the narrative in a magazine, leaving out the reflections; and justified upon the ground of a fair abridgment, among other points of defence. Sir Thomas Clarke, M. R. said, that, "no certain line can be drawn, to distinguish a fair abridgment; but every case must depend on its own circumstances." It appeared that a small quantity only had been abstracted, and the plaintiffs had themselves printed a part of the work in a magazine; a circumstance upon which the court chiefly relied, as showing that they could not be prejudiced by what the defendants had done. The learned judge, however, seems to have recognized the doctrine of fair abridgments, inasmuch as he said that if he were to hold this to be elusory, he must hold every abridgment to be so; and he seems to have considered, that when a fair Gyles v. Wilcox, 2 Atkyns, 141, 143. Lord Hardwicke said, "Where books are colorably shortened only, they are undoubtedly within the meaning of the act of parliament, and are a mere evasion of the statute, and cannot be called an abridgment. But this must not be carried so far as to restrain persons from making a real and fair abridgment, for abridgments may with great propriety be called a new ook, because not only the paper nd print, but the invention, learning nd judgment of the author is shown in them, and in many cases are extremely useful. Though in some instances prejudicial, by mistaking and curtailing the sense of the author. If I should extend the rule so far as to restrain all abridgments, it would be of mischievous consequence, for the books of the learned, les Journels des Scavans, and several others that might be mentioned, would be brought within the meaning of the act of parliament." See also the case of Read v. Hodges, referred to in Tonson v. Walker, 3 Swanston, 672, 679. abridgment is made, the question of injury to the original author cannot be considered.1 In the next case, we find for the first time an effort to define a true and proper abridgment. The book in question was an abridgment of Hawksworth's Voyages. The rule was laid down by Lord Chancellor Apsley, assisted by Sir William Blackstone ; and it seems to have been adjudged, that where the understanding is employed in retrenching unnecessary and uninteresting circumstances, which rather deaden the narration, it is not an act of plagiarism upon the original work, nor against any property of the author in it, but an allowable and meritorious work.2 A few years afterwards, Sir Thomas Sewell, M. R. in a case of an abridgment of a biography, said that if it was a fair bona fide abridgment of the larger work, several cases in the court of chancery had de 1 Dodsley v. Kinnersley, Ambl. 403. The report is very imperfect. 2 Anon. Lofft's R. 775. On a bill praying an injunction against an edition by Mr. Newbery of an abridgment of Dr. Hawkesworth's Voyages, the Lord Chancellor was of opinion that this abridgment of the work was not any violation of the author's property whereon to ground an injunction. That to constitute a true and proper abridgment of a work, the whole must be preserved in its sense: and then the act of abridgment is an act of understanding, employed in carrying a large work into a smaller compass, and rendering it less expensive and more convenient both to the time and use of the reader. Which made an abridgment in the nature of a new and a meritorious work. "That this had been done by Mr. Newbery, whose edition might be read in the fourth part of the time, and all the substance preserved, and conveyed in language as good or better than in the original, and in a more agreeable and useful manner. That he had consulted Mr. Justice Blackstone, whose knowledge and skill in his profession was universally known, and who as an author himself had done honor to his country. That they had spent some hours together, and were agreed that an abridgment, where the understanding is employed in retrenching unnecessary and uninteresting circumstances, which rather deaden cided that an injunction should not be granted; and he referred to the case of Hawkesworth's Voyages. But it being shown that passages were taken verbatim from the original work, he granted an injunction, until answer and further order.1 In a subsequent case, an attempt was made to justify a selection of cases from the Term Reports, upon the ground of a fair abridgment; but it appeared that the cases had been arranged under heads and titles, instead of chronologically, and in this way had been copied verbatim. An injunction was accordingly granted.2 The foregoing are all the English authorities on this subject, and they show that for a considerable length of time the notion has prevailed, that what is called a bona fide abridgment may be made, without violating the right of property of the original author.3 the narrative, is not an act of plagiarism upon the original work, nor against any property of the author in it, but an allowable and meritorious work. And that this abridgment of Mr. Newbery's falls within these reasons and descriptions. Therefore the bill praying an injunction ought to be dismissed." 1 Bell v. Walker, 1 Bro. Ch. R. 451. 2 Butterworth v. Robinson, 5 Ves. 709. Among text-writers, Mr. Godson has laid down a doctrine too broad to be subscribed to, if we are to continue any protection to litera ture. "Nearly upon the same principles, by which it is shown that there cannot be a monopoly of a general subject, it appears that books themselves for certain purposes, besides the mere act of reading them, may be used by the public. They are, in fact, general subjects -datawhich may afford opportunites for other persons besides the authors to exercise their ingenuity. They may be taken as the groundwork of other literary labors. Thus a copyright may exist in abridgments or translations of works. Also in the notes and additions printed in a new edition of a book, over which the right of the author has exp red. For one man may compose a work, for instance in the Latin language, another abridge it, a third translate it, and a fourth write annotations In America, the subject has been only incidentally discussed. The authorities referred to in the note below, will fully justify an examination of the question de novo.1 upon it; and every one of them will acquire a copyright in the product of his own ingenuity and labor. "Many valuable works are so voluminous that abridgments of them are extremely useful. To make them, some judgment must be exercised, and some labor employed; and therefore the authors of them ought certainly to be encouraged. In general, an abridgment tends to the advantage of the author, if the composition be good; and may serve the end of an advertisement. The inquiry, whether the work is prejudiced by the manner of making the abridgment, cannot be entertained." Godson, page 344. 'Mr. Justice Story, in Gray v. Russell, 1 Story's R. 19, 21, said, "In some cases, indeed, it may be a very nice question, what amounts to a piracy of a work, or not. Thus if large extracts are made therefrom in a review, it might be a question, whether those extracts were designed bona fide for the mere purpose of criticism, or were designed to supersede the original work under the pretence of a review, by giving its substance in a fugitive form. The same difficulty may arise in relation to an abridgment of an original work. The question, in such a case, must be compounded of various considerations; whether it be a bona fide abridgment, or only an evasion by the omission of some unimportant parts; whether it will, in its present form, prejudice or supersede the original work; whether it will be adapted to the same class of readers; and many other consid erations of the same sort, which may enter as elements, in ascertaining whether there had been a piracy or not. Although the doctrine is often laid down in the books, that an abridgment is not a piracy of the original copyright; yet this proposition must be received with many qualifications. In many cases, the question may naturally turn upon the point, not so much of the quantity as of the value of the selected materials. As was significantly said on another occasion, Non numerantur, ponderantur. The quintessence of a work may be piratically extracted, so as to leave a mere caput mortuum, by the selection of all the important passages in a comparatively moderate space. In the recent case of Bramwell v. Halcomb, (3 Mylne & Craig, 737,) it was held, that the question, whether one author has made a piratical use of another's work, does not necessarily depend upon the quantity of that work, which he has quoted or introduced into his own book. On that occasion, Lord Cottenham said, When it comes to a question of quantity, it must be very vague. One writer might take all the vital part of another's book, though it might be but a small proportion of the book in quantity. It is not only quantity, but value, which is looked to. It is useless to look to any particular cases about quantity.' The same subject was a good deal considered by the same learned judge in Saunders v. Smith, (3 Mylne & Craig R. 711, 728, 729,) with reference to copyright in Reports; and how far another person was at The definition of an abridgment given in the case decided by Lord Chancellor Apsley, has certainly come down to us with some weight of authority, from the circumstance that he was assisted by Sir liberty to extract the substance of such reports, or to publish select cases therefrom, even with notes appended. In the case of Wheaton v. Peters, (8 Peters's R. 591,) the same subject was considered very much at large. It was not doubted by the court, that Mr. Peters's Condensed Reports would have been an infringement of Mr. Wheaton's copyright, (supposing that copyright properly secured under the act,) if the opinions of the court had been, or could be, the proper subject of the private copyright by Mr. Wheaton. But it was held that the opinions of the court, being published under the authority of congress, were not the proper subject of private copyright. But it was as little doubted by the court, that Mr. Wheaton had a copyright in his own marginal notes, and in the arguments of counsel as prepared and arranged in his work. The cause went back to the circuit court for the purpose of further inquiries as to the fact, whether the requisites of the act of congress had been complied with or not by Mr. Wheaton. This would have been wholly useless and nugatory, unless Mr. Wheaton's marginal notes and abstracts of arguments could have been the subject of a copyright (for that was all the work which could be the subject of copyright ;) so that if Mr. Peters had violated that right, Mr. Wheaton was entitled to redress." In 2 Story's Eq. Jurisp. § 939, the learned author says, "But what constitutes a bona fide case of extracts, or a bona fide abridgment, or a bona fide use of common materials, is often a matter of most embarrassing inquiry. The true question, in all cases of this sort, is, (it has been said,) whether there has been a legitimate use of the copyright publication, in the fair exercise of a mental operation, deserving the character of a new work. If there has been, although it may be prejudicial to the original author, it is not an invasion of his legal rights. If there has not been, then it is treated as a mere colorable curtailment of the original work, and a fraudulent evasion of the copyright. But this is another mode of stating the difficulty, rather than a test, affording a clear criterion to discriminate between the cases." Mr. Chancellor Kent, referring to the case of Dodsley v. Kinnersley, says, "This latitudinary right of abridgment is liable to abuse, and to trench upon the copyright of the author. The question as to a bona fide abridgment may turn not so much upon the quantity as the value of the selected materials." 2 Kent's Com. 382, note. Lord Campbell, in his Life of Lord Hardwicke, referring to the case of Gyles v. Wilcox, says; “I must own that I much question another rule he laid down with respect to literary property, although it has not yet been upset. . I confess I do not understand why an abridgment tending to injure the reputation and lessen the profits of the author, should not be considered an invasion of his property." Campbell's Lives of the Chancellors, v. 56. |