2. Books and pamphlets printed exclusively in languages

other than English.1

3. Books and music in raised print used exclusively by the blind.2

4. Works imported by authority for the use of the U.S. or the Library of Congress.3

5. Books, maps, lithographic prints and charts specially imported, not more than two copies in any one. invoice, in good faith, for the use of societies, schools, colleges, &c.1

6. Books imported for use and not for sale subject to payment of duty, and not more than two copies at any one time.5

7. Newspapers and magazines, if they contain no infringement of U.S. copyright."

CHAPTER V

COMMON LAW RIGHTS

SECTION I.-PUBLISHED WORK.

AFTER a work has been published it has no protection in the nature of copyright except under an Act of Congress.1 If either from the nature of the work, or from the want of conforming with the formalities of the Act, there is no statutory protection, then there can be no exclusive right of copying the work. After a drama or musical piece has been published as a book, not only the copyright in it but also the performing right depends entirely on statutory protection.2 Performance on the stage not being a publication, affects neither the right of copy nor the performing right.

Although there is no right of copy in a published work except under statute, there are certain common-law rights based on fraud or implied contract which are incident thereto, and which neither depend on nor are affected by statutory protection.

Passing off. One man is not entitled so to produce his book as to lead the public to believe it is the work of another. The same or a similar title is the most usual method of passing off. One cannot monopolise a purely descriptive title such as "Latin Grammar" or "Guide to the Alps;" but it was held a passing off to take the title, "The Fram Expedition-Nansen in

1 Wheaton v. Peters (1834), 8 Pet., 591; Banks v. Manchester (1888), 128 U.S. Rep., 244 ; Jeweller's v. Jeweller's (1898), 155 N.Y., 241; Holmes v. Hurst (1898), 174 U.S. Rep., 82; Palmer v. De Witt (1872), 47 N.Y., 532; West v. Lawyer's (1896), 64 Fed. Rep., 360; Parton v. Prang (1872), 3 Cliff., 537; Merrell v. Tice (1881), 104 U.S. Rep., 557; Boucicault v. Hart (1875), 13 Blatchf., 47; Boucicault v. Fox (1862), 5 Blatchf., 87; Boucicault v. Wood (1867), 7 Am. L. R., 550; 2 Bis., 34; Daly v. Walrath (1899), 40 App. Div. N.Y., 220; Carte v. Ford (1883), 15 Fed. Rep., 439; Carte v. Duff (1885), 25 Fed. Rep., 183; Rees v. Peltzer (1874), 75 Ill., 475; Ewer v. Coxe (1824), 4 Wash. C. C., 487.

2 Boucicault v. Hart (1875), 13 Blatchf., 47; Daly v. Walrath (1899), 40 App. Div. N.Y., 220; Carte v. Ford (1883), 15 Fed. Rep., 439; Carte v. Duff (1885), 25 Fed. Rep., 183.

3 M'Lean v. Fleming (1877), 96 U.S. Rep., 245; Estes v. Williams (1884), 21 Fed. Rep., 189; Social Register v. Howard (1894), 60 Fed. Rep., 270.

the Frozen World;"1 so the title "Social Register" to a select list of residents in a certain district was infringed by a similar list bearing the title "Howard's Social Register." It is immaterial in a question of passing off that the book itself is unprotected from copying. Thus an English magazine called "Chatterbox" was largely sold in the United States, but was not copyright. Although it would have been quite legal to have copied the English magazine and sold such copies under its own title, it was not permissible to publish another magazine under the title of "Chatterbox." 3 In another case it was held that one might not adopt the title of another's operetta for his own, even although the songs and vocal scores of the operetta had been published under the title without securing copyright.*

It is not a passing off to reprint another man's book and sell it in his own name, and if the copyright has expired he has no redress.5 He has no property in his own name as such. After the copyright had expired in "Webster's Dictionary," Webster's assignee was held to have no ground for restraining any one from reprinting and selling "Webster's Dictionary" under that title. Even where the name was a pseudonym, "Mark Twain," the author was not entitled to prevent others from printing and selling some non-copyright work of his as "Sketches by Mark Twain."7

A man may prevent the publication under his name of a book of which he is not the author or which has been mutilated

without his authority. Henry Drummond, the evangelist, delivered a series of lectures at Boston, Massachusetts, on "The Evolution of Man." Eight out of twelve lectures were partially printed with the author's consent in the British Weekly, and no copyright was secured in America. It was held that Professor Drummond was entitled to restrain a reprint of these published lectures reproduced with material alterations, and

1 Harper v. Holman (1897), 84 Fed. Rep., 224.

2 Social Register v. Howard (1894), 60 Fed. Rep., 270.

3 Estes v. Williams (1884), 21 Fed. Rep., 189; Estes v. Leslie (1886), 27 Fed. Rep., 22. 4 Aronson v. Fleckenstein (1886), 28 Fed. Rep., 75.

5 Merriam v. Holloway (1890), 43 Fed. Rep., 450; Merriam v. Famous Shoe (1891), 47 Fed. Rep., 411. 6 Ibid.

7 Clemens v. Belford (1883), 14 Fed. Rep., 728.

8 Clemens v. Belford (1883), 14 Fed. Rep., 728; Drummond v. Altemus (1894), 60 Fed. Rep., 338.

An

represented as being the complete series of lectures.1 author who has parted with or lost his copyright has no right to regulate the manner in which his work may be published, provided that there is no misrepresentation causing injury to the author's name.2

In one case, however, the defendants were restrained from a similar proceeding on the ground of unfair trading. They bought second-hand school books published by the plaintiff, and rebound them so as to have the exact appearance of the plaintiff's books when new. It was held that they were entitled to do this without infringing any right of the plaintiff in their copyright book; but it was also held that it was not fair trading to sell the rebound books without sufficient notice that they were rebound.

If there have been several editions of a book, the copyright in the first of which only has expired, the author may restrain a publisher from reprinting and publishing the first edition so as to lead the public to believe that it is a later edition still copyright. The owner of a series of novels, published in two editions, cannot prevent a third person buying a large quantity of the sixth edition and binding them so as to somewhat resemble the dearer edition." When the "Encyclopædia Britannica" was published, only a few of the articles were copyright in America. It was held that it was permissible for an American publisher to reprint the whole work so far as not copyright, and to substitute new articles for the copyright articles, and so long as there was no attempt to defraud the public to publish it as the "Encyclopædia Britannica" so revised."

SECTION II.-UNPUBLISHED WORK.

Unpublished work is protected from interference by the common law of England, which was brought to and adopted

1 Drummond v. Altemus (1894), 60 Fed. Rep., 338.

2 Kipling v. Fenno (1900), 106 Fed. Rep., 692.

3 Doan v. American Book Co. (1901), 105 Fed. Rep., 772.

Merriam v. Famous Shoe (1891), 47 Fed. Rep., 411; Merriam v. Texas Siftings (1892), 49 Fed. Rep., 944.

Dodd v. Smith (1891), 144 Pa., 340.

6 Black v. Ehrich (1891), 44 Fed. Rep., 793.

2

by the United States.1 When the common law is asserted one must look to the law of the State in which the controversy originated, since although the common law of England was adopted, it was adopted only so far as its principles were suited to the conditions of the colonies at the time, and some States have incorporated with their laws more and some less. The rights at common law in unpublished work were not abrogated by Acts of Congress establishing copyright in published work.

The author of an unfinished work has the right at common law to prevent any one from making any unauthorised use of his work. The author may without publishing make a communication of the contents of his work to a limited number,* and he may prescribe to them what conditions he pleases.5 A play or song is not published by performance nor a lecture by delivery. A work of art is probably published by public exhibition, but not by a private view. A spectator of an unpublished play is not entitled to reproduce substantial parts of it even from memory. Similarly with a musical work or lecture.

An alien author has an equal right with a citizen of the United States to sue at common law for interference with his manuscript. A statutory remedy is given for the unauthorised printing or publishing of any manuscript. The offender is liable "for all damages occasioned by such injury." 10 This statutory remedy neither destroys nor limits the common law

1 Wheaton v. Peters (1834), 8 Pet., 591; Little v. Hall (1855), 18 How., 165; Bartlett v. Crittenden (1847), 4 M'L., 301; Palmer v. De Witt (1872), 47 N.Y., 532.

2 Wheaton v. Peters (1834), 8 Pet., 591; Jones v. Thoms (1843), 1 N. Y. Leg. Obs., 4c8; French v. Maguire (1878), 55 How. (N.Y.) Pr., 471; Oertel v. Wood (1870), 40 How. Pr., 10; Oertel v. Jacoby (1872), 44 How., 179; Rees v. Peltzer (1874), 75 Ill., 475; Crowe v. Aiken (1870), 2 Biss., 208; Carte v. Bailey (1874), 64 Maine, 458.

3 Wheaton v. Peters (1834), 8 Pet., 591; Palmer v. De Witt (1872), 47 N.Y., 532; Goldmark v. Kreling (1885), 25 Fed. Rep., 349; Daly v. Walrath (1899), 40 App. Div. N. Y., 220; 28 Chic. Leg. News, 49.

4 See p. 262, supra.

5 Parton v. Prang (1872), 3 Cliff., 537.

6 See p. 263, supra.

7 Oertel v. Wood (1870), 40 How. Pr., 10; Oertel v. Jacoby (1872), 44 How. Pr., 179.

8 Tompkins v. Halleck (1882), 133 Mass., 32; overruling Keene v. Kimball (1860), 16 Gray, 549; see French v. Maguire (1878), 55 How. (N. Y.) Pr., 471; Crowe v. Aiken (1870), 2 Biss., 208.

9 Palmer v. De Witt (1872), 47 N.Y., 532.

10 Act of March 3, 1891, sec. 9, amending Revised Statutes, 4967.