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Drury v. Ewing.

and at the proper time. The point made by the defendant's counsel is, that the chart copyrighted to Mrs. Drury is neither a book, nor a chart, nor a print, within the terms of the act of Congress, and therefore not within its protection. Upon this point, no American authorities have been referred to, nor am I aware that it has been decided in this country. In the English courts I know of but one case in which it has been fully considered. This will be presently referred to as having a direct bearing on the question adverted to.

Section 1 of the act of Congress of February 3, 1881, 4 Statutes of the United States, 436, secures to the author of any book or books, map, chart, or musical composition, or to any one who shall invent, design, etch, engrave, work or cause to be engraved, etched, or worked from his own design, the exclusive right of printing, reprinting, publishing, and vending the same for the term of twenty-eight years, by complying with certain requirements of the statute. The question presented is, whether the chart for which Mrs. Drury has procured a copyright under the statute falls withiu any of the foregoing designations. I do not propose to consider this question at any length. As a first impression, from an inspection of the chart, the mind repudiates the conclusion that it is a book; and when the point was first suggested, it occurred to me it would require a forced construction of the statute to bring it fairly within the meaning of that term. The chart as printed and published for use is contained on one large sheet, representing a series of diagrams, interspersed with printed instructions as to the mode of using them in taking measurements for and cutting certain parts of ladies' dresses. As necessary to the practical use of the diagrams, they are pasted on thick paper or pasteboard, corresponding with and showing precisely the forms of the diagrams. The exact dimension and form of every part of the garment intended to be cut is indicated by a series of numerals placed along the outer edges of the diagrams thus

Drury v. Ewing.

arranged, and by means of dots or marks at the proper fig. ures, the exact size and course of each section of the garment is ascertained with mathematical precision,

Now, it may well be conceded, that the chart as printed on the sheet, or as pasted in parts for practical use, is not a book, according to the more popular sense of the word. But, in giving effect to the statute according to its obvious design and spirit, I can see no necessity for restricting the word to a volume. The origin and derivation of the word book does not justify this restricted sense. Without intending to make any show of learning on this subject, or attempting a critical investigation, I may remark what is well known, that the Latin work liber-book-had no reference to the collection of writings in a volume, but primarily signifies the bark of a tree. Webster, in his dictionary, says our word book is derived from the Saxon, boc, meaning a beech-tree; and in other languages of the north of Europe, it has the same derivation. The supposition is, that either the bark of the beech, or what is more probable, thin polished plates of the wood of that tree, were used for writing. It is a fact well established that the Chinese, before the discovery of the art of making paper, used the latter mode for that purpose. It is also well known to readers of the Bible and other ancient writings that in referring to books the collection of literary materials in a volume is not intended. The papyrus was first used for writing, and at a later period the skins of animals made into parchments; but they are called books, though the manuscripts were in the form of rolls or loose leaves, unbound, and not in volumes according to the modern sense of the term.

But I should certainly have hesitated in adopting this view as a judicial conclusion, if it was not sustained by an authority entitled to high respect. The English courts, after the fullest investigation, have decided this question in a case to which I will now refer. The statute of 8 Anne, on the subject of copyrights, enumerating in section 1 the

Drury v. Ewing.

works intended to be protected by it, contains the words book or books precisely as in our statute. In the case of Clementi v. Golding, 2 Campb. 25, the court held that the form of the publication was not material in determining whether it was or was not a book, within the meaning of the statute. That was a suit for a piracy in reprinting and selling a song, which had been published on a single sheet, and in that form copyrighted. The objection was made, that it was not a book entitled to the protection of the statute. Lord Ellenborough, contrary to his opinion in a previous case, overruled the objection and directed the jury to return a verdict for the plaintiff, with leave to move for a new trial. He is reported to have said: “I do not see at present why a composition printed on a single sheet of paper should not be entitled to the privileges of the statute.”

He adds: “I was at first startled at a single sheet of paper being called a book, but I was afterward disposed to think it might be so considered within the meaning of the act of parliament, and when the matter came before the court, the other judges inclined to the same opinion.” After the argument of the motion for a new trial, the reporter adds: “The judges seemed unanimously of opinion that it could not depend on the form of the publication, whether it were entitled to the privileges of the statute or not; that a composition on a single sheet might well be a book within the meaning of the legislature, and that the verdict of the jury ought not to be disturbed.” See same case, 11 East, 244 (new ed. vol. 6, 125); also case of Hime v. Dale, decided in 1803, referred to 2 Camp. 27; Curtis on Copyrights, 105, et seq.; 2 Wat.; Eden on Injunc. 322.

It will be seen by reference to the case of Clementi v. Golding, that the question was very fully and carefully considered by the full court. No case has been referred to, and I am not aware there is any in which the doctrine then settled has been reconsidered or overruled by the English courts. And the construction of the statute of

Drury v. Ewing.

Anne, on the point under consideration, may be regarded as law in England. And I can not perceive on what ground the principle can be impugned as against good sense and reason. I am, therefore, inclined to adopt the liberal construction given by the English courts to their statute, and to hold that Mrs. Drury's chart is within the protection of our statute. She could doubtless have given it to the world in a succession of sheets, bound together and constituting a volume, but it is obvious that the chart for practical purposes is more easily understood, and therefore more useful, printed on a single sheet large enough to exhibit all the diagrams at one view. I can not perceive why her rights as an authoress or inventress should be prejudiced by this form of publication. If the chart, as the court is bound, for reasons before intimated, to presume, is original with herthe product of thought and mental toil-her claims is by no means destitute of merit, and she is justly entitled to all the benefits which the law confers. It is clearly no objection to the validity of her copyright, that her production does not claim a standing as a work of great literary merit. The statute does not make this a necessary element of a legal copyright; and it is well known there are works of great practical utility, having no pretension to literary merit, which are yet within, not only the words, but the scope and design of the statute.

Adopting this view of the law, it is not necessary to decide whether Mrs. Drury's copyright can be sustained as a chart or print. These words are used in the statute as legitimate subjects of a copyright, and it would not imply a very forced construction to hold that the copyrighted work of Mrs. Drury is included in one or both of these terms. The authorities, I think, would fully sustain such a conclusion.

The only question which remains is, whether the complainant's chart and Mrs. Ewing's guide are legally identical. If they are so, it follows necessarily that the use and sale of the latter is an infringement of Mrs. Drury's exclusive right and a violation of the injunction. And here the


Drury v. Ewing.

true inquiry undoubtedly is, not whether the one is a fac simile of the other, but whether there is such a substantial identity as fairly to justify the inference that in getting up the guide, Mrs. Ewing has availed herself of Mrs. Drury's chart and has borrowed from it its essential characteristics. And the decision of this question is in no way affected by the fact—if conceded to be the fact—that the guide is in some respects an improvement of and of superior utility to the chart of the complainants. This would confer no right to appropriate and use the prior invention or discovery of Mrs. Drury. The law on this subject is stated by Judge McLean, * McLean, 308, as follows: “The same rule of

« decision should be applied to a copyright as to a patent for a machine. The construction of any other machine which acts on the same principle, however its structure may be varied, is an infringement of the patent. The second machine may be recommended by its simplicity and cheapness, still if it act on the same principle of the one first patented, the patent is violated.” And in the same case, the learned judge asserts the principle strongly, that in the case of a copyright, if the work alleged to be a piracy is of a character to render the original “ less valuable by superseding its use in any degree, the right of the author is infringed.”

In the case of Folsom v. Marsh, 2 Story, 115, it is decided that it is “not necessary to constitute an evasion of a copyright, that the whole of a work should be copied, or even a large portion of it, in form or substance. If so much is taken that the value of the original is sensibly diminished, or the labors of the original author substantially, to an injurious extent, appropriated by another, that is sufficient in point of law to constitute a piracy pro tanto. The entirety of the copyright is the property of the author, and it is no defense that another has appropriated a part, and not the whole of any property.” To the same effect are the views of Judge Story, in the case of Emerson v. Davies, 3 Story, 795. He says: “To amount to an infringement, it is not necessary that there should be a complete copy or imitation

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