Dramatic
Works.

Law
Reports.

This latter decision appears, however, to have been partly on the ground that as the assessors were obliged to issue a form, it would embarrass their duties if forms drawn up by private persons were entitled to copyright.

A circular in pamphlet form used as an advertisement, and explaining a certain method of distribution of coupons to cash purchasers from certain merchants named in the pamphlet, has been held to be the subject of copyright.1 The circuit judge, however, in his judgment, says: "It requires some stretch of imagination to say that this pamphlet comes within the purpose of Congress, the encouragement of learning, and the increase of useful knowledge, but the official charged with the duty has granted a copyright to this pamphlet, and his decision is accepted." 2

3

Dramatic works have been protected, although not of a very high literary standard. In Henderson v. Tompkins* protection was given to a topical song which was designed merely to amuse. It was sufficient if it accomplished that purpose.

5

Law Reports are protected so far as they consist of original intellectual matter; the protection may thus extend to the title-page, table of cases, the head notes, the statements of facts, the argument of counsel, the index, the order and arrangement of cases, the numbering and pagination of the volumes, the table of cases cited in the opinions, the subdivision of the index into condensed titles, and the cross references. The original work of the reporter is alone protected. In the opinion of the Court there is no copyright; these constitute part of the law of the land open to all to make use of as they please, and neither the state, the judge, nor the reporter can acquire or confer any conclusive

1 Mutual Advertising Co. v. Refo (1896), 76 Fed. Rep., 961.

2 76 Fed. Rep., at p. 963.

3 Aronson v. Fleckenstein (1886), 28 Fed. Rep., 75; Daly v. Webster (1892), 1 U.S. App., 573; Henderson v. Tompkins (1894), 60 Fed. Rep., 758.

4 (1894), 60 Fed. Rep., 758.

8

5 Callaghan v. Myers (1888), 128 U.S. Rep., 617; Wheaton v. Peters (1834), 8 Pet., 591; Little v. Hall (1855), 18 How., 165; Gould v. Banks (1832), 8 Wend., 562; Heine v. Appleton (1853), 4 Blatchf., 125; Cowen v. Banks (1862), 24 How. Pr., 72.

6 Callaghan v. Myers (1888), 128 U.S. Rep., 617.

7 Connecticut v. Gould (1888), 34 Fed. Rep., 319; Gray v. Russell (1839), 1 Story, 11; West v. Lawyers (1896), 51 U.S. App., 216, 64 Fed. Rep., 360.

8 Wheaton v. Peters (1834), 8 Pet., 591; Nash v. Lathrop (1886), 142 Mass.,

29.

2

privilege of copying them. The same rule applies to the head notes in those states where they are prepared by the judge.1 On the same grounds of public policy no one Statutes. can have copyright in the statutes; the legislature of the state cannot confer it on any one.3 There may be copyright in the head notes and arrangement of a digest of the statutes.1

Notes and

Additions.

New Arith

metic.

tions.

The contents of a book do not require to be entirely new; if partially old there will be copyright quoad the new material or new arrangement." Thus there is copyright in notes and Adaptaadditions to an old work, in a new arithmetic combining old material in new form, in translations, in the adaptation of an old drama introducing a new title, new dialogue, minor characters, scenery, and dramatic situations with the orchestration and orchestra part songs and music, and in the dramatization of a novel.10

In one case it was held that the adaptation of a musical Musical Arrangepiece from the notation suitable to one instrument to that ment. suitable to another was not a sufficiently intellectual process to entitle the adapter to copyright in his adaptations." It was said that "a mere mechanic could make the adaptation and accompaniment." Since then, however, it has been held that

a musical arrangement is the subject of copyright. In Thomas v. Lennox 12 an orchestral accompaniment for a non-copyright oratorio by Gounod was held to be the subject of copyright. In Carte v. Evans 13 an arrangement for the pianoforte of the orchestral score of an opera was held to be copyright.

1 Banks v. Manchester (1888), 128 U.S. Rep., 244; Chase v. Sanborn (1874), 4 Cliff., 306.

2 Davidson v. Wheelock (1886), 27 Fed. Rep., 61; Banks v. M'Divitt (1875), 13 Blatchf., 163; Howell v. Miller (1898), 91 Fed. Rep., 129. 4 Ibid.

3 Ibid.

5 Emerson v. Davis (1845), 3 Story, 768; Lawrence v. Dana (1869), 4 Cliff., 1; Black v. Allen (1893), 56 Fed. Rep., 764.

6 Brightley v. Littleton (1888), 37 Fed. Rep., 103; Gray v. Russell (1839), 1 Story, 11; Lawrence v. Dana (1869), 4 Cliff., at p. 79; Mead v. West (1896), 80 Fed. Rep., 380. 7 Emerson v. Davis (1845), 3 Story, 768.

8 Emerson v. Davis (1845), 3 Story, at p. 780; Shook v. Rankin (1875), 6 Biss.,

9 Aronson v. Fleckenstein (1886), 28 Fed. Rep., 75.

10 Boucicault v. Fox (1862), 5 Blatchf., 87, at p. 100.

477.

11 Jollie v. Jacques (1850), 1 Blatchf., 618. See Reed v. Carusi (1845), 8 L. R., 411; 72

Fed. Cas., No. 11, 642.

12 (1883), 14 Fed. Rep., 849.

13 (1886), 27 Fed. Rep., 861.

Q

New

Editions.

Form of

Publication.

Mechani

cal Devices.

Copyright in new editions runs quoad the new material from the date of the new edition. The additions or corrections must be of substantial value. A work which is publici juris cannot be reclaimed by colourable and immaterial alterations or additions.2

A book need not be a book in the ordinary sense of the word; the word in the Act is not to be construed by reference to lexicographers: "the literary property to be protected by the Act is not to be determined by the size, form, or shape in which it makes its appearance, but by the subject-matter." A single sheet containing literary matter will be protected as a book.4 No doubt, however, the subject to be protected must be ejusdem generis as a book or leaflet. The subject-matter must convey, and the form must be suitably adapted for conveying, information to the reader. The copyright law embraces those things that are printed and published for information and not for use in themselves. Thus what is really a mechanical instrument, and if original entitled to protection under the patent law, will not be protected by the copyright law. In Letter File. Amberg File v. Shea protection was claimed in a letter file. It was said that the spaces between the index letters were adjusted to the average requirements of the correspondent. These average requirements were ascertained by exhaustive research in different directories. Copyright was refused. In Baker v. Selden blank account books of an original type or pattern were refused protection. The judge in that case drew the distinction between what was a proper subject of the patent laws and what was a proper subject of copyright law-"The object of the one is explanation, the object of the other is use."7 Drury v. Ewing a "ladies' chart for cutting dresses and basques for ladies, and coats, jackets, &c., for boys" was protected. It is almost certain, however, that this decision would not now be accepted as sound. Mere labels will not

Account
Book.

6

8

1 Lawrence v. Dana (1869), 4 Cliff., 1; Gray v. Russell (1839), 1 Story, 11.

2 Snow v. Laird (1900), 98 Fed. Rep., 813.

In

3 Clayton v. Stone (1828), 2 Paine, 382; Brightley v. Littleton (1888), 37 Fed. Rep., 103; Mott v. Clow (1897), 53 U.S. App., 461.

4 Clayton v. Stone (1828), 2 Paine, 382; Drury v. Ewing (1862), 1 Bʊnd, 541.

5 (1897), 53 U.S. App., 449.

7

101 U.S. Rep., at p. 105.

6 (1879), 101 U.S. Rep., 99.

8 (1862), I Bond, 541.

1

be protected as copyright works. They may be protected by registration in the Patent Office.2

Copyright may be obtained for works of the imagination,

or for a mere collection and arrangement of material open to all mankind. What is meant by originality as a requisite of Originality. copyright is that what is claimed as the subject of copyright, whether it be the composition or arrangement of matter, must not have been taken from some literary or artistic work already in existence. It need not be the first of its kind; the same thing may have been done before so as to produce identically the same result.1 If the second author, artist, or composer goes about his work independently, searching out his material from the original sources, he is equally entitled to copyright with the first. Herein copyright law differs from the law of patents; in the former there may be two concurrent copyrights in what is identically the same creation, in the latter there can only be one patent, the first inventor being entitled.

Letters may be the subject of copyright, whether of a Letters. business or private nature, and although never intended by the writer to be published as literary productions. In Folsom v. Marsh the letters of George Washington were the subject of controversy. Story, J., in giving judgment, laid down the law as to the property in letters at some length :

5

"There is no small confusion in the books with reference to the question of copyright in letters. Some of the dicta seem to suppose that no copyright can exist except in letters which are professedly literary, while others again recognise a much more enlarged and liberal doctrine upon the whole subject. In the first place I hold that the author of any letter or letters (and his representatives), whether they are literary compositions or familiar letters or letters of business, possess the sole and exclusive copyright therein; and that no persons, neither those to whom they are addressed nor other persons, have any right or authority to publish the same upon their own account or for their own benefit. But consistently with this right the persons to whom they are addressed may have,

84.

1 Coffeen v. Brunton (1849), 4 M'Lean, 516; Scoville v. Toland (1848), 6 West Law, J., 2 Rev. St., sec. 4952.

3 Greene v. Bishop (1858), 1 Cliff., 186; Gray v. Russell (1839), 1 Story, 11; Emerson v. Davis (1845), 3 Story, 768.

4 Gray v. Russell (1839), 1 Story, 11; Bullinger v. MacKay (1879), 15 Blatchf., 550; Brightley v. Littleton (1888), 37 Fed. Rep., 103; Johnson v. Donaldson (1880), 3 Fed. Rep., 22. (1841), 2 Story, 100.

5

No Copyright in Titles.

nay, must by implication possess the right to publish any letter or letters addressed to them upon such occasions as require or justify the publication or public use of them, but this right is strictly limited to such occasions. Thus a person may justifiably use and publish in a suit at law or in equity such letter or letters as are necessary and proper to establish his right to maintain the suit or defend the same. So if he be aspersed or misrepresented by the writer or accused of improper conduct in a public manner, he may publish such parts of such letter or letters, but no more, as may be necessary to vindicate his character and his reputation, or free him from unjust obloquy and reproach. If he attempt to publish such letter or letters on other occasions not justifiable, a Court of Equity will prevent the publication by an injunction as a breach of private confidence or contract or of the rights of the author, and a fortiori if he attempt to publish them for profit, for then it is not a mere breach of confidence or contract, but it is a violation of the exclusive copyright of the writer. In short, the person to whom letters are addressed has but a limited right or special property (if I may so call it) in such letters as a trustee, or bailee for particular purposes, either of information or of protection or of support of his own rights and character. The general property and the general rights incident to property belong to the writer, whether the letters are literary compositions or familiar letters or details of facts or letters of business. The general property in the manuscript remains in the writer and his representatives as well as the general copyright. A fortiori third persons standing in no privity with either party are not entitled to publish them to subserve their own private purposes of interest or curiosity or passion."

It is not quite accurate to say that the receiver of a letter is merely a trustee or bailee for particular purposes. Clearly the receiver of a letter is entitled to destory it unless there is any express or implied stipulation to the contrary, and probably he can prevent the sender from publishing it by refusing to produce it if it is in his possession.

As a rule there can be no copyright in a title.' The deposit of the title-page with the Librarian of Congress does not give the author any exclusive right to the use of that title. A title can only be protected as a trade mark in connection with a particular literary or artistic production which has become known to the public.

The public must be shown to be

1 Isaacs v. Daly (1875), 39 N. Y., 511; Osgood v. Allen (1872), 1 Holmes, 185; Corbett

v. Purdy (1897), 80 Fed. Rep., 901; Jollie v. Jacques (1850), 1 Blatchf., 618.

2 Osgood v. Allen (1872), 1 Holmes, 185; see Roberts v. Myers (1860), 13 L. R. (Mass.), 398; Black v. Allen (1893), 56 Fed. Rep., 764.