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the pretensions of the subsequent writer can prevail over the rights of the original author.

It has been recently held, that an author has as much right in his plan, and in his arrangement, and in the combination of his materials, as he has in his thoughts, sentiments, opinions, and his modes of expressing them. If this doctrine be correct, it follows that a subsequent author cannot, by abridgment, acquire a new and independent title in the plan, arrangement, and combination of materials, made use of by a former author, who has secured his title in the due course of law. It would seem to be quite as consistent with sound principle, to hold that a mechanician may acquire a new patent by making a reduced copy of an original machine, previously protected by a patent, as to hold that by the mere act of abridgment, a new title can be acquired in the peculiar matter of a book.”

Emerson v. Davies, 3 Story's R. 768.

: For a further discussion of this subject, see post, Chap. IX.




1. In the United States.

2. In Great Britain. 1. The act of congress of 3d February, 1831, $ 4, requires that a printed copy of the title of any book, or books, map, chart, musical composition, print, cut, or engraving, to be entitled to the benefits of the act, shall, before publication, be deposited in the clerk's office of the district court of the United States for the district where the author or proprietor resides, which title is to be recorded by the clerk, and a certified copy of the title as recorded is to be delivered to the author or proprietor. Within three months from the publication, the author or proprietor is to deliver, or cause to be delivered, a copy of the book, map, &c. to the clerk, which it is made the duty of the clerk to transmit to the secretary of state.

· Act of Cong. Feb. 3, 1831, 94. See Appendix.

The fifth section of the same act makes it necessary to insert in the several copies of each and every edition published during the term secured, on the title-page, or the page immediately following, if it be a book ; or if a map, chart, musical composition, print, cut, or engraving, to impress on the face thereof, or if a volume of maps, charts, music, or engraving, upon the title or frontispiece thereof, the words, “Entered according to act of congress, in the year , by A. B., in the clerk's office of the district court of ," (as the case may be.)?

These steps are all essential to a perfect title, according to a decision made by the supreme court of the United States, upon the former acts, that of 1790 and that of 1802. Upon those acts, it was held by the court, that although the right was vested, when a copy of the title was deposited with the clerk, and a copy of his record was printed, as the act of 1802 required, yet that the performance of the other conditions was essential to a perfect title.?

Sec. 5. See Appendix. The act office, the requisites remain the of 1790, $ 3, required the author same under the act of 1831, as they or proprietor to publish a copy of stood at the time that act was passthe record or certificate of entry in ed. The act of 1790, 04, required one or more newspapers printed in the author or proprietors, within sit the United States, for the space of months of the publication, to deliver four weeks. The act of 1802 re- or cause to be delivered to the secrequired, that the copy of the record, tary of state, a copy of the book, to which by the act of 1790 ihe author be preserved in his office. The act or proprietor was required to pub. of 1831 directs the copy for this purlish, should also be inserted in the pose to be deposited with the clerk page of the book next to the tiile. of the court, within three months (See Appendix, p. 89.) With the from the date of publication. exception of publication in the news- ? Wheaton v. Peters, 8 Peters S. papers, and the time and mode of C. R. 591, 663, 665. Upon this deposit in the secretary of state's point, the court said, “It will be

As the law now stands, there are but three requisites for securing a valid copyright. 1. The deposit of a printed copy of the title, before publication, with

observed, that a right accrues under right who does not substantially the act of 1790, from the time a co- comply with the requisitions of the py of the title of the book is deposit- law. This principle is familiar, as ed in the clerk's office. But the it regards patent rights; and it is act of 1802 adds another requisite to the same in relation to the copyright the accruing of the right, and that is, of a book. If any difference shall that the record made by the clerk be made, as it respects a strict conshall be published in the page next formity to the law, it would seem to to the title-page of the book. be more reasonable to make the re

"And it is argued with great quirement of the author, rather than earnestness and ability, that these the inventor. The papers of the are the only requisites to the perfec- latter are examined in the departtion of the complainant's title. That ment of state, and require the sancthe requisition of the third section to tion of the attorney-general ; but the give public notice in the newspapers, author takes every step on his own and that contained in the fourth to responsibility, unchecked by the deposit a copy in the department of scrutiny or sanction of any public state, are acts subsequent to the ac- functionary. cruing of the right, and whether “The acts required to be done by they are performed or not, cannot an author, to secure his right, are in materially affect the title.

the order in which they must natu"The case is compared to a grant rally transpire. First, the title of with conditions subsequent, which the book is to be deposited with the can never operate as a forfeiture of clerk, and the record he makes must the title. It is said also that the ob- be inserted in the first or second ject of the publication in the news page; then the public notice in the papers, and the deposit of the copy newspapers is to be given; and in the department of state was mere- within six months after the publicaly to give notice to the public; and tion of the book, a copy must be dethat such acts, not being essential to posited in the department of state. the title, after so great a lapse of “A right undoubtedly accrues on time, may well be presumed. That the record being made with the if neither act had been done, the clerk, and the printing of it as reright of the party having accrued, quired; but what is the nature of before either was required to be that right? Is it perfect? If so, the done, it must remain unshaken. other two requisites are wholly use

" This right, as has been shown, less. How can the author be comdoes not exist at common law — it pelled either to give notice in the originated, if at all, under the acts newspaper, or deposit a copy in of congress. No one can deny that the state department. The statute when the legislature are about to affixes no penalty for a failure to vest an exclusive right in an author perform either of these acts, and it or an inventor, they have the power provides no means by which it may to prescribe the conditions on which be enforced. such right shall be enjoyed; and “But we are told they are unimthat no one can avail himself of such portant acts. If they are indeed

the clerk of the district court ; 2. Notice to the public, by printing, in the place designated, the fact of the entry, in the form prescribed by the statute;



wholly unimportant, congress acted founded claim of authorship asserted. unwisely in requiring them to be But, if doubts could be entertained done. But whether they are impor- whether the notice and deposit of tant or not, is not for the court to the book in the state department, determine, but the legislature; and were essential to the title, under the in what light they were considered act of 1790 ; on which act my opinby the legislature, we can learn only ion is principally founded, though I by their official acts.

consider it in connection with the "Judging then of these acts by other act; there is, in the opinion of this rule, we are not at liberty to three of the judges, no ground for say they are unimportant, and may doubt under the act of 1802. The be dispensed with. They are acts latter act declares that every author, which the law requires to be done, &c. before he shall be entitled to the and may this court dispense with benefit of the former act, shall, in their performance ?

addition to the requisitions enjoined “But the inquiry is made, shall in the third and fourth sections of the non-performance of these subse- said act, if a book, publish,' &c. quent conditions operate as a for- Is not this a clear exposition of the feiture of the right?

first act? Can an author claim the " The answer is, that this is not benefit of the act of 1790, without a technical grant of precedent and performing the requisites enjoined subsequent conditions. All the in the third and fourth sections of it? conditions are important; the law If there be any meaning in language, requires them to be performed, and the act of 1802, the three judges consequently their performance is think, requires these requisites to be essential to a perfect title. On the performed in addition to the one performance of a part of them the required by that act, before an auright vests ; and this was essential thor, &c. shall be entitled to the to its protection under the statute : benefit of the first act.' but other acts are to be done, unless “ The rule by which conditions congress have legislated in vain, to precedent and subsequent are conrender the right perfect.

strued, in a grant, can have no ap“ The notice could not be publish- plication to the case under considered until after the entry with the ation, as every requisite, in both clerk, nor could the book be depos- acts, is essential to the title. ited with the secretary of state until “A renewal of the term of fourit was published. But these are teen years can only be obtained by acts not less important than those having the title-page recorded with which are required to be done pre- the clerk, and the record published viously. They form a part of the on the page next to that of the title, title, and until they are performed and public notice given within six the title is not perfect. The deposit months before the expiration of the of the book in the department of first term.” state, may be important to identify See also Ewer v. Cox, 4 Wash. it at any future period, should the C. C, R. 486. copyright be contested, or an un

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