CHAPTER I INTRODUCTORY THE law of copyright in the United States, especially in relation to literary work, is daily becoming of more interest to the owners of copyright in this country. Since the Act of Congress, 1891, commonly known as the Chace Act, those who are neither citizens of nor resident in the United States can acquire a copyright therein if copies of their books are printed from type set up in the United States and if their books are duly recorded there before publication either within or outside the United States. There is thus created for English authors a property which may be of considerable value if before publishing here they incur the trouble and expense of printing and recording their books in America. Apart from this commercial interest which English authors and publishers have in a knowledge of American copyright law, there is the further interest to English lawyers in the large body of analogous case law to which the American statutes have given rise. These statutes were originally founded on our own statute of Anne, and, although the difference between the Acts now in force in the two countries is very wide in many respects, a great deal remains the same in substance, and the decisions of the American Courts afford us valuable precedents. These cases, however, must not be cited in our Courts at random, as has too frequently been done. In citing from the American reports, it is essential to compare the statutory provisions in America with the statutory provisions in this country, and ascertain whether the decisions are really applicable or not. It is for this reason that I have thought it expedient to keep the American law and the English law entirely separate. The practice of citing American cases promiscuously throughout a treatise on English Copyright Law I have found to be confusing and misleading. The scope of the Constitution. CHAPTER II WHAT WORKS ARE ENTITLED TO COPYRIGHT In order to acquire copyright in the United States the work must fulfil the following conditions: 1. It must be an original literary or artistic work. 2. The /owner ( author must be a citizen of the United States (or resident therein), or of a foreign country proclaimed to that intent by the President.1 3. It must have complied with the formalities prescribed by the statutes of the United States.2 4. It must be innocent.3 SECTION I.AN ORIGINAL LITERARY OR ARTISTIC WORK. In the United States literary and artistic works are treated similarly under the same series of statutes. The works protected are enumerated in section 4952 of the Revised Statutes as amended by the Act of March 3, 1891 (The Chace Act). The protection extends to any book, map, chart, dramatic or musical composition, engraving, cut, print, or photograph or negative thereof, and to any painting, drawing, chromo, statue, statuary, and to models or designs intended to be perfected as works of the fine arts. In considering whether a work is within the protection of the Copyright Acts, not only must the enacting words of the statutes be considered, but also, and perhaps principally, the scope of the provision in the Constitution, which grants power to Congress to secure the protection of authors and artists.* The language of the Act must be read in connection with the Constitutional provision and be so construed as to promote the 1 See p. 247. 2 See pp. 250-264. 4 Bullinger v. MacKay (1879), 15 Blatchf., 550; 382; Brightley v. Littleton (1888), 37 Fed. Rep., 103. 3 See p. 266. Clayton v. Stone (1828), 2 Paine, object and conform to the purpose expressed therein. The power given to Congress by the Constitution is a power "to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." In consideration of this restricted power the earlier decisions construed the Acts of Congress as including only those works which showed a certain degree of intellectual labour in the arts or sciences. In Clayton v. Stone 2 protection was refused to a daily price current or review of the markets issued in a newspaper. Thompson, J., in giving judgment, said :— 1 "The Act was passed in execution of the power given by Congress, and the object therefore was the promotion of science; and it would certainly be a pretty extraordinary view of the sciences to consider a daily or weekly publication of the state of the market as falling within any class of them. They are of a more fixed, permanent, and durable character. The term science cannot with any propriety be applied to a work of so fluctuating and fugitive a form as that of a newspaper or price current, the subject-matter of which is daily changing, and is of mere temporary use. . The title of the Act of Congress is for the encouragement of learning, and was not intended for the encouragement of mere industry unconnected with learning and the sciences." 3 This high standard of intellectual requirement was not, however, strictly maintained. In Brightley v. Littleton a blank form of application for a licence to sell liquor at retail, drawn in pursuance of the statutes in that behalf, was protected, and it was said that, although the matter claiming copyright must be original and possess some possible utility, "the originality may be of the lowest order and the utility barely perceptible." Ladd v. Oxnard the English cases of Lamb v. Evans 5 and Leslie v. Young were cited with approval, and the Court agreed that "the quality and grade of original work required by the Courts under the Copyright Statutes are very moderate." Until the case of Mott v. Clow, the tendency seems to have been to follow 6 4 In 1 Clayton v. Stone (1828), 2 Paine, 382; Baker v. Selden (1879), 101 U.S. Rep., 99; Wheaton v. Peters (1834), 8 Pet., 591. ), 37 Fed. Rep., 103. 2 (1828), 2 Paine, 382. 4 (1896), 75 Fed. Rep., 703. 5 [1893], I Ch., 218 (headings in trades directory). 6 [1894], A. C., 335 (circular tours in time-tables). 7 (1897), 53 U.S. App., 461. 3 (1888), the English judges to their extreme view, as expressed by Lord Halsbury in Walter v. Lane, i.e. " that the copyright law requires neither literary merit nor intellectual labour nor originality either in thought or in language." The Court, however, in Illustrated Mott v. Clow refused to follow the English decisions. After Catalogues reviewing the American, and particularly the earlier American decisions, they say : "The result of these decisions would seem to place this construction upon the Constitutional provisions under consideration that only such writings and discoveries are included which are the result of intellectual labour; that the term writings may be liberally construed to include designs for engravings and prints that are original and are founded in the creative powers of the mind, the fruits of intellectual labour; that prints upon a single sheet might be considered a book if it otherwise met the spirit of the constitutional provision; and that to be entitled to a copyright, the article must have, by and of itself, some value as a composition, at least to the extent of serving some purpose other than a mere advertisement or designation of the subject to which it is attached.' The "book" before the Court was a catalogue in the form of a bound volume, containing illustrations of household wares offered for sale, and giving the dimensions and price of each. The Court referred to Maple v. Junior Army and Navy Stores 3 where a similar catalogue in England was protected. "It is to be observed in this case that it was ruled largely upon the language of the Act of Parliament (5 & 6 Vict. c. 45). . . . It is to be here remarked that the Parliament of Great Britain, unlike the Congress of the United States, is unlimited in power, and with the construction and effect placed upon the preamble of the Act by the Court, there would seem to be little escape from the conclusion at which the Court arrived. In this country under the Constitution the power lodged with the Congress is not unlimited, but is restricted to the promotion of the progress of science and useful arts. The ruling of the English Court is therefore not pertinent except as it illustrates the subject." 4 The Court cited with approval Baker v. Selden, which had expressly approved Cobbett v. Woodward, an English case overruled in Maple v. Junior Army and Navy Stores; they further cited and approved the judgment of Thompson, J., in 1 [1900], A. C., 539. 3 (1882), 21 Ch. D., 369. 2 (1897), 53 U.S. App., 461. + (1879), IOI U.S. Rep., 99. 6 (1882), 21 Ch. D., 369. 6 Clayton v. Stone,' quoted above. The judgment concludes with the following paragraph : "It is possibly not beyond comprehension that pictures of slop-sinks, wash-bowls, and bath-tubs, with or without letterpress statement of dimensions and prices, though intended mainly for advertisement, may in localities where such conveniences are not in common use, be the means of instruction and of advancement in knowledge of the arts, and, when they are the products of original intellectual thought, may possibly come within the scope of the Constitutional provision. It is enough for the present purpose to say that, in our judgment, the Congress has not seen fit to enact a law which can reasonably be given so broad a construction." 4 5 6 Diction In considering the authority of some of the cases cited below, the judgment in Mott v. Clow must not be lost sight of. It is probable that some of these cases are not in accordance with it, or with the older cases, such as Clayton v. Stone 3 and Baker v. Selden therein expressly approved. Subject to this note of warning, the following may be taken as examples of what have and what have not been accepted as works of art or literature within the scope of the Constitution and the Acts of Congress. Directories and dictionaries have both Directories. been protected. In the case of the latter, there is copyright in aries. the definitions of the words, however short. A list of the credit ratings of marble, granite, and stone dealers of the United States Mercantile and Canada was protected in Ladd v. Oxnard.' In Clayton v. Stone, which has been approved as sound law, a daily state of the market was refused protection. A racing guide containing a list of race-horses and statistics as to their age and performances was protected in one case,10 and in the other case a list of trotting horses and their paces." In Brightley v. Littleton 12 a Forms of blank form of application for liquor licence was held to be tion copyright. In Carlisle v. Colusa County 13 copyright was denied to a blank form of property statement for assessment purposes. 1 (1828), 2 Paine, 382. 3 (1828), 2 Paine, 382. 5 Bullinger v. MacKay (1879), 15 Blatchf., 550. 6 Chils v. Gronland (1890), 41 Fed. Rep., 145. 7 (1896), 75 Fed. Rep., 703. 9 Mott v. Clow (1897), 53 U.S. App., 461. 10 Egbert v. Greenberg (1900), 100 Fed. Rep., 447. 9 2 (1897), 53 U.S. App., 461. 4 (1879), 101 U.S. Rep., 99. 8 (1828), 2 Paine, 382. 11 American Trotting v. Gocher (1895), 70 Fed. Rep., 237. 13 (1893), 57 Fed. Rep., 979. Statistics. Applica |