where any distinct portion of a work under the protection of a copyright is improperly used. It must depend on the existence of an exclusive property in the part thus taken, and on the fact of injury to the exclusive right of the party complaining. Thus, if the titles of two books are identically the same, and the books are dissimilar in all other respects, the question will arise, whether the title of the earlier publication is descriptive of its individuality, and is of a character appropriate to the setting forth that book to the public. If it be such a title, and if the effect of its adoption be to mislead the public in their purchases, then both the elements of a piracy concur, and there seems to be no reason why it should not be regarded as an infringement of the copyright. But if the title be merely a generic description of the subject, or a description consecrated by usage to works of the particular class to which the book belongs, and there is nothing to cause a confusion between the two works, there is no reason for judicial interference, either on the ground of copyright or of good-will in trade.1

There may, indeed, be a third class of cases, where the title is not descriptive of an individual publication, and is ab ante open to any one to adopt, but by long use and possession has come to be the received designation of a particular work. In such cases, the title has become appropriated to the party who has thus used it, and whose profits may be intercepted by its adoption by another. These cases, however, can rarely arise in any other than the class of periodical publications; and in the actual state of our jurisprudence, perhaps redress for such injuries must be sought in that jurisdiction which protects trades, by bringing the case within the principles regulating that branch of the law.1

If a periodical work, that has long worn a particular title, changes it for another, the adoption of the old title by a new periodical, after the lapse of a reasonable time, would ordinarily not be such an interference as the courts of justice should no ice.2

This subject of titles has been much discussed in France, where an ample protection vindicates the just rights of literary property. The remedy is sometimes administered in damages for an unlawful interception of profits, as in cases of trade; and

To cases of this description belong that of "The Bath Chronicle," (cited under the name of Keene v. Harris, 8 Ves. 215.) "Le Constitutionnel," which came before the Tribunal of Commerce at Paris, in 1832; (Renouard, tom. 2, p. 125,) and Hogg v. Kirby, 8 Ves. 215, the case of a magazine.

The Cour Royale at Paris in 1834 sanctioned the publication of a journal under the title of Gazette de Sante, which another journal had formerly worn, but which it had for seven months abandoned for the title Gazette Medicale de Paris. Renouard, tom. 2, p. 128.

sometimes under the law of copyright, as for a piratical infringement, according to the circumstances.1 The rules established by the adjudged cases are the following. 1. That a title intended to mark the individuality of a work, and to set it forth to the public, cannot be used, even for a work of entirely different contents; and that it is a usurpation, when such a title is taken, though it may be used with slight modifications, if there is any chance of confusion, so that the one work is likely to be mistaken for the other. 2. That a title which does not mark the individuality of the work, and the use of which by another book is not likely to do injury to the work which had first adopted it, does not give a right of exclusive possession, 3. That the title of a journal belongs to it, as long as it is worn, through the whole period of its existence; and the longer this period

In a case concerning the Dictionary of the French AcademyDictionnaire de l'Academie Francaise -M. Merlin argued before the Court of Cassation, that the title of the Dictionary of the French Academy is an essential part of the dictionary itself; that to usurp it is to usurp a part of the work; that the law treats the usurpation of part of a literary work as an infringement (contre façon,) and punishes it in a peculiar manner : that if, under the title of Theatre de Racine, a printer were to publish the plays of Bradon, and if Racine were living, and in the enjoyment of all his rights of property, it would be impossible to say that the printer had not committed a piracy, (vol litteraire) and

ought not to be visited with the penalties enacted for that offence. The court adopted this reasoning, and held that the object of the law of 1793 (the copyright law) was to secure to authors, their heirs and assigns, the exclusive right to print, sell and distribute their own works, and consequently to prohibit the printing and distribution of every work, which, by an invasion, more or less extensive, could interfere with this exclusive right; and that the adoption of such a title as that in question was an offence against the law of 1793, inasmuch as it tended directly to injure the proprietors of the genuine work. Merlin, Questions de Droit, Propriete Litteraire, § 1.

has existed, the more importance is acquired to the title, and the more it becomes a distinguishing part of the property.1

The use of the name alone of another person is a wrong that will be prevented by the interference of a court of equity, but not as an infringement of copyright. Lord Eldon granted an injunction to restrain the publication of certain poems under the name of Lord Byron, who was abroad, upon an affidavit of his agent making it highly probable that it was not a genuine work, and on the refusal of the defendant to swear that in his belief Lord Byron was the author.2

The usurpation of an author's name is morally a more reprehensible proceeding than the usurpation of a title. But if it is not accompanied by the reproduction of anything which the imputed author has actually written, it cannot be treated as a piracy.3 But if the adoption of matter really written by an author accompanies the fraudulent use of his name, the whole publication ought to be restrained at once as a piracy, aggravated by the fraud attempted upon the title-page. It has previously been stated, that a

1 Renouard, tom 2, p. 118-128. Merlin, Questions de Droit, Propriété Litteraire, 1. Repertoire de Jurisprudence, v. Livre.

Lord Byron v. Johnson, 2 Me

riv. 29.

3 This species of fraud has frequently been checked in France, but as a fraud of a special nature, and not as the offence denominated contrefaçon, unless there has also been a copying of genuine matter. Renouard, tom. ii. pp. 128-130.

A bookseller in Paris, in 1828, published a spurious edition of the works of Cardinal Maury, in which he had copied the notes of his nephew, (who had edited the genuine edition,) under the following title: Nouvelle édition publiée sur les manuscrits autographes de l'auteur, par LOUIS SIFFREIN MAURY son neveu. The fraud of holding out the name of M. Maury, as the editor of this edition, was justly considered as an element in the infringement of co

work which thus usurps the name of a person who is not the author, cannot enjoy the protection of a copyright.'

As to what constitutes infringement, in the case of dramatic and musical compositions, it has been well settled that representation of a published play is not a violation of the copyright in the book itself. But it seems that where a play is unpublished, and the copyright has been assigned by the author to a particular theatre, an injunction will be granted. against its performance at any other theatre. This implies that there is a common law right of performance, in the case of an unpublished play, capable of being assigned by the author, and existing previously to the statute of 3 Wm. IV. c. 15; and such a right is recognized in the first section of that act, which confirms the right of representation, where the author had consented to or authorized it previously to the passing of the act, to the person to whom he had given such consent or authority.

The second section of this act inflicts a penalty upon the unauthorized representation of any dramatic or musical composition, or any part thereof. What