c. 53) gave effect to a Canadian parliament act respecting copyright

Chapter 881,156 wordsPublic domain

reprints.

{Sidenote: The Royal Commission report of 1878}

"The law of England, as to copyright," says the report of the Royal Copyright Commission, in a blue-book of 1878, "consists partly of the provisions of fourteen Acts of Parliament, which relate in whole or in part to different branches of the subject, and partly of common law principles, nowhere stated in any definite or authoritative way, but implied in a considerable number of reported cases scattered over the law reports." The digest, by Sir James Stephen, appended to this report, is presented by the Commission as "a correct statement of the law as it stands." This digest is one of the most valuable contributions to the literature of copyright, but the frequency with which such phrases occur as "it is probable, but not certain," "it is uncertain," "probably," "it seems," shows the state of the law, "wholly destitute of any sort of arrangement, incomplete, often obscure," as says the report itself. The digest is accompanied, in parallel columns, with alterations suggested by the Commission, and it is much to be regretted that their work failed to reach the expected result of an act of Parliament. The evidence taken by the Commission forms a second blue-book, also of great value.

This report and digest covered legislation through 1875, inclusive of the Canada act. They seem also to have regarded, though the act is not specified in the schedule, the consolidated customs act of 1876 (39 & 40 Victoria, c. 36), which incidentally contained the provisions for the prohibition of the importation of copyright books.

{Sidenote: Later legislation}

Despite the recommendations of the Commission and several later endeavors to pass a comprehensive copyright act,--of which the most important was Lord Monkswell's bill introduced into Parliament on behalf of the British Society of Authors, November 16, 1890, and given in full with an analysis by Walter Besant in George Haven Putnam's "Question of copyright"--later legislation in England has been confined practically to two topics, international copyright and the vexed question of musical compositions.

{Sidenote: International copyright}

The international copyright act of 1886 (49 & 50 Victoria, c. 43), amending and extending, and in part repealing the earlier international copyright acts and provisions, was intended to enable Great Britain, through Orders in Council, to become a party to international agreements, particularly the Berne copyright convention of 1886, ratified in 1887; this was made effective with respect to the eight other countries which were parties to the original Berne convention by the Order in Council of November 28, 1887, taking effect December 6, 1887. The convention was to extend to the British possessions, though with exceptions in some respects. The revenue act of 1889 (52 & 53 Victoria, c. 42) extended the prohibition of importation to foreign works copyrighted under the act of 1886, "printed or reprinted in any country or state" other than that "in which they were first published," if registered as required by the customs authorities.

{Sidenote: Musical copyright}

The protection of musical compositions was in such confused and unsatisfactory condition that special legislation was necessary. The recent laws on this subject, described in detail in the chapter on dramatic and musical copyright, include the copyright (musical compositions) act of 1882 (45 & 46 Victoria, c. 40); the copyright (musical compositions) act of 1888 (51 & 52 Victoria, c. 17); the musical (summary proceedings) copyright act of 1902 (2 Edward VII, c. 15); and the musical copyright act of 1906 (6 Edward VII, c. 36),--following the report of the Musical Copyright Committee of 1904,--which successively met imperfections developed in applying the previous law.

{Sidenote: Committee report of 1909}

After the adoption of the revised international copyright convention signed at Berlin November 13, 1908, modifying the Berne-Paris conventions, a Committee on the law of copyright consisting of seventeen publicists, authors, artists, publishers and others was appointed by minute of March 9, 1909, by the President of the Board of Trade, to consider and report upon the modification of domestic legislation in conformity with the Berlin agreement of 1908. The Committee made a report in December, 1909, strongly advising that domestic legislation be brought into line with international practice and that the copyright term in Great Britain be for life and fifty years. With the report was printed a blue-book of minutes of evidence, containing valuable appendixes which included a _projet de loi type_ (model bill) on copyright, drafted by the International Literary and Artistic Association, and an artistic copyright bill drafted by the Artistic Copyright Society.

{Sidenote: Imperial copyright conference of 1909}

In the early part of 1909 an Imperial copyright conference was also held in London, attended by Crown officials and representatives from all of the self-governing dominions, at which certain resolutions for copyright betterment were adopted. Its minutes and resolutions were also presented to Parliament.

{Sidenote: The pending bill}

As a result of the deliberations and reports of these two bodies, "a bill to amend and consolidate the law relating to copyright" (1 George V) was introduced into the House of Commons July 26, 1910, in the names of Mr. Buxton, Mr. Solicitor-General, Colonel Seely and Mr. Tennant, the adoption of which would provide a copyright code similar in extent to the American code of 1909, and applicable throughout the British dominions, with the proviso that the self-governing dominions may accept or modify the code or legislate separately, and providing also for international copyright. The bill adopted most of the features of the Berlin convention including the term of life and fifty years, covered literary, dramatic, musical and artistic works, including architectural works of art, and while distinguishing between first publication and performance, included under copyright acoustic or visual performance or exhibition and control for mechanical reproduction. The bill, somewhat modified, was reintroduced into the subsequent Parliament March 30, 1911, emerged from committee with important alterations July 13, 1911, and was passed with slight additional changes by the House of Commons August 17, and first read in the House of Lords August 18, 1911. On passage of the House of Lords, it becomes effective July 1, 1912, unless earlier date is provided by Order in Council. The bill repeals by specific schedule all existing laws except specified sections in the fine arts copyright act of 1862, the musical copyright acts of 1902 and 1906, and the copyright provisions in the customs consolidation act of 1876 and the revenue act of 1889. The provisions of the new measure are specifically treated and summarized comprehensively in later chapters and the full text is given in the appendix.

{Sidenote: Design patents}

The bill does not, however, repeal the previous law as to copyright in designs, which had continued to receive consideration during the Victorian reign in laws, later than those cited, of 1858-1861, and thus finally became merged in the protection of patents. Thus "designs capable of being registered under the patents and designs act, 1907," are specifically excepted under clause 22 of the proposed copyright code.

{Sidenote: Common law rights}

It seems possible that, under the precedent of the acts of 1775 and 1801, the common law rights practically taken away by the statute of Anne and specifically abrogated by the proposed bill, could have been restored by legislation. These restrictions have not only ruled the practice of England ever since, but they were embodied in the Constitution of the United States, and have influenced alike our legislators and our courts.

THE HISTORY OF COPYRIGHT IN THE UNITED STATES

{Sidenote: Constitutional provision}

The Constitution of the United States authorized Congress "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." Previous to its adoption, in 1787, the nation had no power to act, but on Madison's motion, Congress, in May, 1783, recommended the States to pass acts securing copyright for fourteen years.

{Sidenote: Early state legislation}

Connecticut in January, 1783, Massachusetts in March, 1783, and Maryland in April, 1783, had already provided for copyright, twenty-one years being the usual period. New Jersey on May 27, 1783, and New Hampshire and Rhode Island in December of the same year, followed Madison's suggestion. Pennsylvania and South Carolina in March, 1784, Virginia and North Carolina in 1785, Georgia and New York in 1786, also passed copyright acts, so that all the thirteen States except Vermont had separately provided for copyright,--thanks to the vigorous copyright crusade of Noah Webster, who traveled from capital to capital,--when the United States statute of 1790 made them unnecessary.

{Sidenote: The act of 1790}

This act followed the precedent of the English act of 1710, and gave to authors who were citizens or residents, their heirs and assigns, copyright in books, maps and charts for fourteen years, with renewal for fourteen years more, if the author were living at expiration of the first term. A printed title must be deposited before publication in the clerk's office of the local United States District Court; notice must be printed four times in a newspaper within two months after publication; a copy must be deposited with the United States Secretary of State within six months after publication; the penalties were forfeiture and a fine of fifty cents for each sheet found, half to go to the United States; a remedy was provided against unauthorized publication of manuscripts.

{Sidenote: 1802-1867}

{Sidenote: The revised act of 1870}

{Sidenote: 1874-1882}

This original and fundamental act was followed by others--in 1802, requiring copyright record to be printed on or next the title-page, and including designs, engravings and etchings; in 1819, giving United States Circuit Courts original jurisdiction in copyright cases; in 1831 (a consolidation of previous acts), including musical compositions, extending the term to twenty-eight years, with renewal for fourteen years to author, widow, or children, doing away with the newspaper notice except for renewals, and providing for the deposit of a copy with the district clerk (for transmission to the Secretary of State) within three months after publication; in 1834, requiring record of assignment in the court of original entry; in 1846 (the act establishing the Smithsonian Institution), requiring one copy to be delivered to that, and one to the Library of Congress; in 1855, a postal provision for free mailing of deposits; in 1856, securing to dramatists the right of performance; in 1859, repealing the provision of 1846 for the deposit of copies, and making the Interior Department instead of the State Department the copyright custodian; in 1861, providing for appeal in all copyright cases to the Supreme Court; in 1865, including photographs and negatives, and again requiring deposit with the Library of Congress, within one month from publication; in 1867, providing $25 penalty for failure to deposit. This makes twelve acts bearing on copyright up to 1870, when a general act took the place of all, including "paintings, drawings, chromos, statues, statuary, and models or designs intended to be perfected as works of the fine arts." This did away with the local District Court system of registry, and made the Librarian of Congress the copyright officer, with whom printed title must be filed before, and two copies deposited within ten days after, publication. In 1873-4 the copyright act was included in the Revised Statutes as sections 4948 to 4971 (also see secs. 629 and 699), and in 1874 an amendatory act made legal a short form of record, "Copyright, 18--, by A. B.," and relegated labels to the Patent Office. In 1879 the Post Office appropriation bill contained a proviso against the transmission of any publication which violates copyright; in 1882 an amendment dealt with the position of the copyright notice on moulded, decorative articles, etc.

{Sidenote: International copyright legislation, 1891}

In 1891 there was passed, after a long campaign, the so-called international copyright act, extending copyright to the citizens of other nations in case of reciprocal grants by such nations, and providing that the copyright on books and certain other articles should be conditioned on manufacture in the United States. In 1893 an amendatory act gave the same effect to copies deposited "on or before publication." In 1895 the public documents bill provided that no government publication should be copyrighted, and another bill imposed penalties in the case of infringement of photographs and of original works of art. In 1897 an act provided that unauthorized representation, wilful and for profit, of any dramatic or musical composition is a misdemeanor punishable by imprisonment; another act provided for the appointment of a Register of Copyrights under the direction and supervision of the Librarian of Congress; and a third act provided penalty for printing false claim of copyright and prohibited the importation of articles bearing a false claim of copyright. In 1904 provision was made for protection to exhibitors of foreign literary, artistic or musical works at the Louisiana Purchase Exposition. A bill of 1905 permitted _ad interim_ copyright for one year of books published abroad if registered here within thirty days publication and bearing notice of reservation.

{Sidenote: Private copyright acts}

A curious incident in American copyright legislation has been the passage of private copyright acts, nine in all, of which the earliest in 1828, as amended in 1830 and 1843, continued the copyright of John Rowlett "in a useful book, called Rowlett's Tables of discount and interest" from its original publication in 1802 till 1858,--curiously the present period of fifty-six years. In 1849 the copyright of Levi H. Corson in a perpetual calendar or almanac was renewed by special act. In 1854 an appropriation of $10,000 was made to Thomas H. Sumner for his new method of ascertaining a ship's position and the copyright was extinguished. In 1859 a special act gave to "Mistress Henry R. Schoolcraft" and her heirs for fourteen years the right to republish her husband's work on the Indian tribes originally published by order of Congress and to make any abridgement thereof, and a similar special copyright was voted in 1866 for Herndon's "Exploration of the Amazon" for his widow. An act of 1874 authorized the validation of William Tod Helmuth's work on surgery which had been imperfectly entered for copyright two years before, and a ninth private act in 1898 validated for like reason the copyright of Judson Jones in a work on orthoepy.

{Sidenote: American possessions}

In 1900 the act for the government of the territory of Hawaii repealed the Hawaiian copyright act of 1888 and extended United States copyright to Hawaii. In the same year the act providing temporary government for Porto Rico extended the copyright laws to that island. In 1904 the Attorney General rendered an opinion that Philippine authors were entitled to United States copyright but that the book must be manufactured within the United States. Hawaii, Porto Rico and the Philippine Islands, as well as Alaska, were later included by name in the jurisdiction of the code of 1909. American copyright was extended to the Canal Zone by War Department order in 1907.

{Sidenote: The American code of 1909}

Finally, in 1909, there was passed the new copyright code repealing all previous legislation and providing comprehensively for the whole subject of copyright, literary, artistic, dramatic, musical, or other. Under this code copyright is effected by publication with the statutory notice of copyright and completed by registration of two deposit copies sent to the Copyright Office promptly after publication. The manufacturing clause is continued and extended to require printing and binding as well as type-setting within the United States. The musical author is given control over mechanical reproductions though under provision for compulsory license in case he permits any such reproduction. The copyright term is for twenty-eight years with a like renewal term, making fifty-six years. Rights of performance are included under copyright, and unpublished works are specifically protected by special registration. These are the salient features of the code which is stated and discussed in detail in succeeding chapters.

{Sidenote: State protection of playright}

In line with the dramatic act of 1897, the dramatic authors between 1895 and 1905 procured state legislation in the States of New Hampshire, New York, Louisiana, Oregon, Pennsylvania, Ohio, New Jersey, Massachusetts, Minnesota, California, Wisconsin, Connecticut and Michigan, differing somewhat in form, to give effect to the federal copyright laws in respect to dramatic performance or to apply the principles of common law through the punishment of dramatic companies disregarding performing rights.

{Sidenote: Citations}

{Sidenote: Trade-Mark act}

Citations of all these laws will be found in Appendix A of the report of copyright legislation from the Register of Copyrights, included in the report of the Librarian of Congress for 1904; and the full text of the United States acts, except the later ones, are given in "Copyright Enactments 1783-1904" issued from the Copyright Office in 1905 as Bulletin No. 3, and in a second revised and enlarged edition, extending to 1906, reissued in 1906. The Trade-Mark act of February 20, 1905, supplemented by an act of May 4, 1906, covers the protection of labels, etc., excluded from copyright by the copyright act, and is given, with a list of trade-mark laws of foreign nations, and trade-mark treaties with them, rules, indexes, etc., in a Government publication, entitled "United States Statutes concerning the registry of trade-marks with the rules of the Patent Office relating thereto."

{Sidenote: Common law relations}

The act of 1790 received an interpretation, in 1834, in the case of Wheaton _v._ Peters (rival law reports), at the bar of the U. S. Supreme Court, which placed copyright in the United States exactly in the _status_ it held in England after the decision of the House of Lords in 1774. The court referred directly to that decision as the ruling precedent, and declared that by the statute of 1790 Congress did not affirm an existing right, but created a right. It stated also that there was no common law of the United States and that (English) common law as to copyright had not been adopted in Pennsylvania, where the case arose. So late as 1880, in Putnam _v._ Pollard, claim was made that this ruling decision did not apply in New York, which, in its statute of 1786, expressly "provided, that nothing in this act shall extend to, affect, prejudice, or confirm the rights which any person may have to the printing or publishing of any books or pamphlets at common law, in cases not mentioned in this act." But the N. Y. Supreme Court decided that the precedent of Wheaton _v._ Peters nevertheless held. During the discussion of the present copyright code, Edward Everett Hale consulted with other veteran authors whose early works were passing out of copyright, with the intention of bringing a test case for the extension of copyright under common law after the expiration of the statutory period. But on proposing such a case to legal counsel he became assured that such a suit could not be maintained.

{Sidenote: Divided opinions}

As in the English case of Donaldson _v._ Becket, the decision in the American ruling case of Wheaton v. Peters came from a divided court. The opinion was handed down by Justice McLean, three other judges agreeing, Justices Thompson and Baldwin dissenting, a seventh judge being absent. The opinions of the dissenting judges, given in Eaton S. Drone's "A treatise on the law of property in intellectual productions," constitute one of the strongest statements ever made of natural rights in literary property, in opposition to the ruling that the right is solely the creature of the statute. "An author's right," says Justice Thompson, "ought to be esteemed an inviolable right established in sound reason and abstract morality." There seems, indeed, to be a sense of natural copyright among the American Indians; an Ojibwa brave will not sing the song belonging to another tribe or singer, and a Chippewa youth may learn his father's songs, on a customary gift of tobacco, but does not inherit the right to sing them.

SCOPE OF COPYRIGHT: RIGHTS AND EXTENT

{Sidenote: General scope}

The scope of copyright, or the nature and extent of the right or privilege, may be said to cover at common law identical rights with those in any other property, to use the phrase which, in Siam, transfers these rights to statutory law, but in statutory law must be taken to depend upon the terms of the statute.

{Sidenote: American provisions}

The new American copyright code, passed March 4, 1909, and in force July 1, 1909, in its fundamental provision broadly sets forth and specifically defines the scope of copyright, by providing (sec. 1): "That any person entitled thereto, upon complying with the provisions of this Act, shall have the exclusive right:

"(a) To print, reprint, publish, copy, and vend the copyrighted work;

"(b) To translate the copyrighted work into other languages or dialects, or make any other version thereof, if it be a literary work; to dramatize it if it be a non-dramatic work; to convert it into a novel or other non-dramatic work if it be a drama; to arrange or adapt it if it be a musical work; to complete, execute, and finish it if it be a model or design for a work of art;

{Sidenote: Oral addresses}

"(c) To deliver or authorize the delivery of the copyrighted work in public for profit if it be a lecture, sermon, address, or similar production;

{Sidenote: Dramas}

"(d) To perform or represent the copyrighted work publicly if it be a drama, or, if it be a dramatic work and not reproduced in copies for sale, to vend any manuscript or any record whatsoever thereof; to make or to procure the making of any transcription or record thereof by or from which, in whole or in part, it may in any manner or by any method be exhibited, performed, represented, produced, or reproduced; and to exhibit, perform, represent, produce, or reproduce it in any manner or by any method whatsoever;

{Sidenote: Music}

{Sidenote: Previous American law}

The American law previously defined the scope of copyright (Rev. Stat. sec. 4952), as "the sole liberty of printing, reprinting, publishing, completing, copying, executing, finishing, and vending the same; and, in the case of a dramatic composition, of publicly performing or representing it, or causing it to be performed or represented by others. And authors may reserve the right to dramatize or to translate their own works." The new code is both broader and more definite.

{Sidenote: Unpublished works}

The new American code is specific in preserving to an author previous to the publication of his work all common law rights in the comprehensive language (sec. 2): "That nothing in this Act shall be construed to annul or limit the right of the author or proprietor of an unpublished work, at common law or in equity, to prevent the copying, publication, or use of such unpublished work without his consent, and to obtain damages therefor."

{Sidenote: Common law scope}

In the Washburn form of the copyright bill it was proposed to include a clause to the effect "that subject to the limitations and conditions of this Act copyright secured hereunder shall be entitled to all the rights and remedies which would be accorded to any other species of property at common law." But this provision was not accepted by the Congressional Committees and does not form part of the copyright code as enacted.

{Sidenote: Common law in U. S. practice}

The common law of England became the common law of its colonies and finally of the sovereign States of the United States, and common law is therefore administered by the state rather than by the federal courts. In the case of Wheaton _v._ Peters, the U. S. Supreme Court went so far as to say "there is no common law of the United States," but federal courts accept and apply in each State the common law as accepted in that State, and in later years the U. S. Supreme Court has held, as in 1901, in Western Union Tel. Co. _v._ Call Pub. Co., that where there is a conflict between the common law as accepted by different States or where the rule adopted is not in accord with federal courts, the United States courts will recognize and enforce the common law of England. This use by the federal courts, as here pointed out by Justice Brewer, is peculiarly applicable to interstate transactions. The effect of section 2 of the copyright code is to give the federal courts the special authority of Congress to accept and enforce the principles of common law and of equity in the case of unpublished works.

{Sidenote: Statutory limitations}

But in the case of a published work, the courts have denied to copyright works some of the rights and remedies applicable previous to publication, because not specifically granted by statute, in accordance with the established rule that no rights or remedies will be allowed by the courts unless specifically granted. But the common law right of the author is recognized by the courts notwithstanding the publication of his work, if that is done without the author's consent. In 1896, in the case of Press Pub. Co. _v._ Monroe, the doctrine was specifically held by the U. S. Circuit Court of Appeals through Judge Lacombe, that the unauthorized publisher may be restrained and damages obtained by civil action, and recovery in such an action will not divest the author of any of his rights or invest any of his rights in the infringer or the public.

{Sidenote: General rights}

Thus the owner of a copyrightable work may (before publication), as with other personal property, preserve his work exclusively for his own use, or he may (1) print, (2) reprint, (3) publish, (4) copy, or (5) vend it; or

If it be a literary work he may (6) translate it, or (7) make any other version thereof, or (8) dramatize it; or

If a work for oral delivery he may (9) deliver or authorize delivery in public for profit; or

If it be a dramatic work he may (10) convert it into a novel or other non-dramatic form or (11) perform or represent it, or (as in 5) vend any manuscript or record thereof, or (12) make or cause to be made any transcription or record thereof; or (13) exhibit, perform, produce, or reproduce it in any manner or by any method; or

If it be a musical work he may (14) arrange or (15) adapt it, or (as in 11) perform it publicly for profit, or (16) make any arrangement or (17) setting of the melody in any notation or by any form of record (the last subject to the license provision of the statute); or

If a design for a work of art, he may (18) complete, execute, and finish it,

--all these being specifically reserved and granted to the author, although in somewhat complex and overlapping phraseology, by the new American code.

{Sidenote: Inferential rights}

Or, in utilizing his rights at common law or as above granted by statute, he may (19) give, (20) lend, (21) grant, (22) sell, (23) manufacture, (24) lease or license, (25) mortgage, or (26) devise his work or the use of it, or (27) it may pass by inheritance,--as pointed out by Arthur Steuart, chairman of the Copyright Committee of the American Bar Association, in his argument before the Congressional Committees.

{Sidenote: Differentiated rights}

Or, as also pointed out by Mr. Steuart, he may "impose upon any of these estates any condition or limit," as by limiting the use (28) for special purposes, (29) at a special price, or (30) for a special time, or (31) in a special locality, or (32) to a special person.

{Sidenote: Court protection}

The rights scheduled, adds Mr. Steuart, the courts will protect (a) "in equity by injunction and the recovery of profits"; or (b) "at law by a civil action for trespass or conversion, with a recovery of special damages for actual injury or punitive damages for injury to reputation, or by replevin for the recovery of possession of the work, as well as by any other form of action known to the common law or statute law and proper to the protection of this class of property."

{Sidenote: Division of rights}

The owner of the copyright of a book may thus publish a limited edition of his book and sell it to whom he may please, or for a specified market. Such specified or divided rights are recognized in Germany as "_getheiltes Verlagsrecht_," in France as "_edition partagee_," and there is specific reference to them in the German copyright law. Some of the specified rights are cognate to the rights of a proprietor of land to sell a piece of land subject to certain restrictions, agreed upon with the purchaser or imposed upon the title in the deed of transfer. As in the frequent practice of restricting use for the purposes of a stable or a shop, or requiring that only one house shall be built on a specified number of lots.

{Sidenote: Analysis of property rights}

In an elaborate discussion of fundamental principles in his opinion in Harper _v._ Donohue, in 1905, affirmed by the Circuit Court of Appeals in 1906, Judge Sanborn analyzed the property rights of an author before publication, after unrestricted publication and after publication under the copyright acts. Among the rights before publication he mentions "the right to sell and assign the author's interest, either absolutely or conditionally, with or without qualification, limitation or restriction, territorial or otherwise, by oral or written transfer. Such literary property is not subject either to execution or taxation, because this might include a forced sale, the very thing the owner has the right to prevent." "Unrestricted publication," he says, "without copyright, is a transfer to the public to do most of the things the author might do, in common with the author, except all right of transfer and sale, which remains to the author; but without advantage, since the work has become, by the publication, common property." "The copyright acts," he concludes, "substantially give the following additional rights: To copyright, and thus secure the sole privilege of unlimited multiplication and sale of copies; to sell or transfer the unlimited right of reproduction, sale and publication, the limited right of serial publication, the right of publication in book form, the right of translation, the right of dramatization or one or more of these rights in specific territory, and the right to secure a copyright either generally, or in one or more countries whose laws permit it, either in the name of the author or assignee. Also the right to the author to license the sale or other restricted enjoyment of some lesser right, without the power to copyright."

The courts have indeed held to very broad principles as to such rights. In the case of Press Pub. Co. _v._ Monroe, the court said:

{Sidenote: Broad interpretation}

"The right of property includes the right to transfer the subject of it or any interest in it by gift, grant, or device. And if the fruits of mental effort are regarded as property, like all other possessions, they descend to the legatees, the executors, and administrators of their creditors; they pass by sale or gift to their transferees; the use of them, limited or unlimited, goes to their licensees, and, logically, the power of the State is bound to protect forever the successive owners in the exclusive use and enjoyment thereof."

{Sidenote: Limits of protection}

Where these latter rights are not specifically granted by statute, the rule has been established by the courts that they will be upheld so far as necessarily inferable from the rights granted and not further. It is under this rule that the greater number of the mooted questions in the application of copyright law have arisen in respect to the scope of copyright. Most of these specific rights are in fact necessary inferences from the statute, in the protection of the property rights therein conferred, but the courts will not go beyond fair construction of the letter of the statute.

{Sidenote: Differentiated contracts}

In respect to the rights to give, lend, grant, manufacture, lease or license, mortgage or devise copyright property, it may be said that these are subsidiary rights conditioned on and essential to the general right of property in copyrightable or copyrighted material. An author may exercise any of these rights in respect to his unpublished work so far as they are applicable to it, or to his copyrighted work after publication; and either the copyrightable manuscript or the copyrighted work may pass by inheritance. Thus an author may manufacture, or cause to be manufactured, his unpublished work, and he may retain exclusive control over the manufactured copies so long as he pleases before publishing the work; and after publication (which involves placing on public sale, or publicly distributing) he may exercise these rights negatively by withdrawing his work from further sale. The English law, however, contains a provision that in certain cases the Crown may require continuance of publication.

{Sidenote: Enforcement in limited grants}

In respect to the right to limit the use of his work under his sale, gift, loan, grant, lease, etc., for a special purpose or at a special price, or for a special time, or in a special locality or to a special person, these powers of limitation, though implied in the grant of copyright, are dependent for their enforcement rather upon the law of contracts than upon copyright law.

There can be no such thing as a copyright for a special purpose or for a special locality, or under other special conditions, for there can be only one copyright, and that a general copyright, in any one work. But specific contracts can be made, enforceable under the law of contracts, as for the sale of a copyrighted book within a certain territory, provided such contracts or limitations are not contrary to other laws. Although record of assignment in the Copyright Office is provided for by the law only for the copyright in general, the separate estates as a right to publish in a periodical and the right to publish as a book may be sold and assigned separately, and the special assignment recorded in the Copyright Office, though this does not convey a right to substitute in the copyright notice a name other than that of the recorded proprietor of the general copyright, which can only be changed as specifically provided in the law under recorded assignment of the entire copyright.

{Sidenote: Copyright as monopoly}

Copyright is a monopoly to which the government assures protection in granting the copyright. It is a monopoly not in the offensive sense, but in the sense of private and personal ownership; the public is not the loser but is the gainer by the protection and encouragement given to the author. The whole aim of copyright protection is to permit the author to sell as he pleases and to transfer his rights collectively or severally to such assigns as he may choose. Copyright is a monopoly only in the sense that any ownership is a monopoly. Says Herbert Spencer: "If I am a monopolist, so also are you; so also is every man. If I have no right to those products of my brain, neither have you to those of your hands. No one can become the sole owner of any article whatever; and all property is 'robbery.'" In the copyright debates of 1891, Senator O. H. Platt rightly said: "The very essence of copyright is the privilege of controlling the market. That is the only way in which a man's property in the work of his brain can be assured." And as Senator Evarts pointed out in the same debate: "The sole question is what we shall do concerning something which is the essential nature of copyright and patent protection, namely, monopoly." In discussing patent monopoly and the law of contracts in Victor Talking Machine Co. _v._ The Fair, the U. S. Circuit Court of Appeals, through Judge Baker, said, in 1903, that "within his domain the patentee is czar. The people must take the invention on the terms he dictates or let it alone for seventeen years." Thus as the government grants and guarantees the monopoly, it is not to be taken as in restraint of trade or otherwise contrary to law. Said Judge Cullen in the case of Murphy _v._ Christian Press Association, in the Appellate Division of the N. Y. Supreme Court, in 1899, decisions as to agreements in restraint of trade "have no application to agreements concerning copyrights and patents, the very object of which is to give monopolies."

{Sidenote: Limit only in term}

Copyright being in essence a monopoly giving to the copyright proprietor "exclusive rights," as the Constitution provides, the only limitation upon it should be that indicated in the Constitution which confines protection to "limited times." The opponents of copyright have frequently taken the course of falling back upon the plea that in the interests of the public the author should not have exclusive right to his writings and to manage his own affairs, but that Congress should prescribe how he should market his property. This commonly takes shape in the licensing scheme known in England as the Farrer plan and in America as the Pearsall-Smith plan, with respect to books; and in the passage of the "international copyright amendment" of 1891 this plan was made the basis of attack upon the measure. An analysis of the scheme as presented by R. Pearsall-Smith of Philadelphia is given by G. H. Putnam, from the book publisher's point of view, in the "Question of copyright." In the work on "The law and history of copyright," by Augustine Birrell, a member of the present British cabinet, this plan is characterized as a "preposterous scheme." In the case of a book, for instance, a publisher often suggests to the author the general idea of the book, so that it would be doubly unjust to permit any other publisher to issue that book on the compulsory license scheme; and this might hold true, although to less extent, in other fields of copyright. In any event, the original publisher makes large investment not only in type-setting, printing, and binding a book, or in the publishing of any other work, but in advertising and making a market, and that a rival publisher should have the benefit of this market without paying the cost is a violation of the very essence of property. This scheme, however, is applied, in a limited way and as a compromise, respecting mechanical music, in the American code of 1909, and constitutes its most serious defect. There is question, indeed, whether the compulsory license and fixed price may not be an unconstitutional provision. This matter is more fully discussed in later chapters.

{Sidenote: Altered theory of copyright}

It should be noted that whereas the previous American law required certain statutory formalities before publication, the new American code somewhat alters the theory of copyright, and more nearly conforms statutory with common law, by making publication with notice the initial copyright act and registration and deposit secondary acts necessary for the completion of the copyright and its protection under the statute.

{Sidenote: Publishing}

The definition of the date of publication (sec. 62) as "the earliest date when copies of the first authorized edition were placed on sale, sold, or publicly distributed by the proprietor of the copyright or under his authority" remedies the vagueness of the previous law and adopts into the statute court decisions to the effect that acts not by the authority of the author or proprietor do not constitute publication in the sense of dedication to the public. In other words, it is made clear that the right to publish inheres in the author and that he cannot be divested of it without his consent. This is the fundamental principle of the new law in the vital matter of protecting the author at the critical point at which an unpublished work, absolutely his own, becomes a published work, subject to statute. In this respect the American code of 1909 comes very close to the acceptance of the right in intellectual property as a natural and inherent right.

{Sidenote: What constitutes publishing}

As to what constitutes publishing, interpretation by the courts based on previous law will in many respects be applicable to the new code. A book which has been sold or leased to subscribers on a contract of restricted use is none the less published, as was set forth in the opinion by Chief Judge Parker of the N. Y. Court of Appeals in Jewellers' Mercantile Agency _v._ Jewellers' Weekly Pub. Co. in 1898, and in the opinion by Judge Putnam of the U. S. Circuit Court in Massachusetts in Ladd _v._ Oxnard in 1896, both having reference to credit-rating books leased to subscribers for their individual use.

{Sidenote: "Privately printed" works}

Publication depends upon sale or offer to the public, and it is a question whether the sale or offer of a copyrightable work, as the proceedings or publications of a society, to the members of that society only, constitutes publication, to be passed upon by the courts in view of the specific facts. A work "privately printed" or with the imprint "printed but not published," given or even sold by the author to his friends, and not sold generally by his authority, would probably not be held to be published; but the courts would probably hold that the sale of a work, though "privately printed," to merely nominal members of a nominal society, made up of the purchasers of the work, would constitute publication and, if without copyright notice, dedication.

{Sidenote: Copying}

As to the right to copy, this word in the broad sense as interpreted by the courts, covers the duplicating or multiplying of copies within the stated scope of the statute. It was argued in the mechanical music cases that the word copy extends to any form or method of duplication by which the thought of the author can be recorded or conveyed, but, as more fully stated in the chapter on mechanical music, the U. S. Supreme Court in White-Smith _v._ Apollo Co. in 1908 upheld the decision below that a perforated roll is not a _copy_ in fact of staff notation, and thus limited the statutory use of the word to duplication by similar or corresponding process. It was for this reason that such specific phrases as "to make any other version," "to convert," "to arrange or adapt," "to make transcription or record" were included in the new code, although these would be included in the broader sense of the right "to copy."

{Sidenote: Vending}

The right to vend covers by a comprehensive word those general rights of sale through which only can the author obtain remuneration for his work. The most important question which has arisen in respect to the application of this word, which is used both in the previous laws and in the present code, has been as to the use of this exclusive right to limit the conditions of sale after the original sale from the author or proprietor as vendor to the immediate vendee. The courts have in general held that the copyright and patent laws, while creating a legal monopoly for the author or original proprietor, do not authorize any continuing control, and have indeed gone so far as to indicate that a sale is absolute and complete unless limited by special contract within the principles of common or statutory law of contracts. In the leading case of Keeler v. Standard Folding Bed Co., the U. S. Supreme Court in 1895, through Justice Shiras, said:

{Sidenote: Control of sale}

"Upon the doctrine of these cases we think it follows that one who buys patented articles of manufacture from one authorized to sell them becomes possessed of an absolute property in such articles, unrestricted in time or place. Whether a patentee may protect himself and his assignees by special contracts brought home to the purchaser is not a question before us and upon which we express no opinion. It is, however, obvious that such a question would arise as a question of contract, and not as one under the inherent meaning and effect of the patent laws."

{Sidenote: Specific relation to copyrights: the Macy cases}

This question in specific relation to copyrights again came before the U. S. Supreme Court in a series of cases, known as the Macy cases, between Isidor and Nathan Straus doing business as R. H. Macy & Co., on the one side, and the Bobbs-Merrill Co. and Charles Scribner's Sons as the respective defendants.

In both cases, the publishers had sought to maintain the retail price of a book, as a right under the copyright law. The Bobbs-Merrill Co. copyrighted the "Castaway" May 18, 1904, and immediately below the copyright notice printed the following in each copy: "The price of this book at retail is one dollar net. No dealer is licensed to sell it at a less price, and a sale at a less price will be treated as an infringement of the copyright."

The Scribners sought to accomplish the same purpose as to their copyright books by printing in their catalogues, invoices and bills of goods the following notice: "Copyrighted net books published after May 1, 1901, and copyrighted fiction published after February 1, 1902, are sold on condition that prices be maintained as provided by the regulations of the American Publishers' Association."

New dealers were required by the American Publishers' Association, in consideration of a discount allowed by the publisher in question, to enter into an agreement as indicated, but this agreement Macy & Co. refused to accept and they bought books as best they could and sold them at "cut rates," thus inducing dealers from whom the purchases were made to violate the agreement with the publishers.

{Sidenote: The Bobbs-Merrill case}

In the leading case of Bobbs-Merrill Co., appellant, _v._ Straus, the opinion of the U. S. Supreme Court was delivered June 1, 1908, by Justice Day, who said: "The precise question in this case is, does the sole right to vend (named in section 4952) secure to the owner of the copyright the right, after a sale of the book to a purchaser, to restrict future sales of the book at retail to the right to sell it at a certain price per copy, because of a notice in the book that a sale at a different price will be treated as an infringement, which notice has been brought home to one undertaking to sell for less than the named sum? We do not think the statute can be given such a construction, and it is to be remembered that this is purely a question of statutory construction. There is no claim in this case of contract limitation, nor license agreement controlling the subsequent sales of the book. In our view the copyright statutes, while protecting the owner of the copyright in his right to multiply and sell his production, do not create the right to impose by notice, such as is disclosed in this case, a limitation at which the book shall be sold at retail by future purchasers, with whom there is no privity of contract."

{Sidenote: The Scribner case}

In the Scribner case the decision delivered on the same day by the same justice, upheld the lower courts in their view, "that there was nothing in any of the notices of a claim of right or reservation under the copyright law," and "that independent of statutory law" the question of relief in equity was not open to the federal courts because there was no diversity of citizenship nor claim above $2000 "requisite to confer jurisdiction of questions of rights independent of the copyright statutes." On the allegations of the bill as to alleged contributory infringement by inducing dealers to sell in violation of agreement, on which the lower courts held that complainants had not proved an agreement based upon their printed notice, the Supreme Court declined to review the question of fact.

{Sidenote: English underselling case}

In the English case of Larby _v._ Love, in 1910, however, Justice Bucknill in the King's Bench held the defendant liable for damages for the sale of certain maps to undersellers in disregard of prohibitions specified in the bill of sale.

{Sidenote: Suits under state law}

The Macy cases included suits in the New York State courts by Straus _v._ American Publishers' Association _et al._, claiming that the action of the publishers in endeavoring to maintain rates constituted a conspiracy in restraint of trade contrary to the statutes. The N. Y. Court of Appeals held, through Chief Judge Parker, that the agreements would have been free from legal objections if confined solely to copyright publications, but were contrary to the statute in affecting the right of a dealer to sell books not copyrighted at the price he chooses. The copyright side of the question was again pressed in the lower courts and reached the Court of Appeals a second time in 1908, when it was passed upon by a divided court, four to three, Judge Gray for the court declining to review its previous action. The dissenting judges, through Judge Bartlett, held that the decision of the U. S. Supreme Court in the Bobbs-Merrill case did apply in the current case and that the State Court of Appeals should therefore conform its decision to the finding of the federal Supreme Court. The question has been brought into the federal courts in a new series of suits, and it has yet to be finally settled by the U. S. Supreme Court, whether the legal monopoly conferred by the copyright statute safeguards the copyright proprietor against certain provisions of the anti-trust laws, state or national.

{Sidenote: Translating}

{Sidenote: "Other version"}

The right "to translate into other languages or dialects" is strengthened in the new American code by the addition of the phrase "or to make any other version thereof," and the author is thus given exclusive right and entire control as to translation of his original work by himself or others, without specific reservation of rights except as implied and included in the general copyright notice. The broad phrase "make any other version thereof" may cover not only translation into another language, but into another literary form as from prose into poetry or _vice versa_. No case involving construction of this phrase seems yet to have arisen to be decided by the courts; but the author of a narrative poem, like Owen Meredith's "Lucile" or Tennyson's "Enoch Arden," could probably prevent the transformation of his poetical work into equivalent prose; and a novelist would have probably a like protection in case of an attempt to duplicate or transform his story as a narrative poem. This view is confirmed by the analogous specific protection of the right to dramatize a work or convert a drama into non-dramatic form.

{Sidenote: Translating term}

The exclusive right "to translate the copyrighted work into other languages or dialects, or make any other version thereof, if it be a literary work; to dramatize it if it be a non-dramatic work" are granted by the act for the same period as the term of original copyright and the renewal term, instead of for a shorter period, as ten years, as is the case in certain foreign legislation. The right to translate or to dramatize is separate from the right to copyright a translation or dramatization, as is shown by the fact that a translation or dramatization can be separately copyrighted for a term extending from its own date of publication and therefore possibly beyond the copyright term of the original work, though on the expiration of the primary copyright any one else may make a translation or dramatization despite the continuing existence of the copyright in the authorized translation or dramatization. These subjects are more specifically discussed for translations under the subject-matter of copyright and for dramatizations under dramatic and musical copyright.

{Sidenote: Oral delivery}

The exclusive right to deliver orally addresses and similar productions is now specifically included in the American law, as in the laws of some other countries, and probably involves the right to register, before publication, any literary production intended for oral delivery before it is printed in a book or periodical. Thus if Mr. Cable desires to include in his readings, especially if in public for profit, chapters from an unpublished novel, or a poet desires to protect his copyright in a poem which he publicly recites, it may be desirable that he should register such unpublished work under the provisions of the act for that purpose; although it is a generally accepted doctrine that oral delivery does not constitute publication, and that the matter orally delivered may thus be protected at common law.

{Sidenote: "Publicly and for profit"}

It should be noted that in the case of a lecture or other work for oral delivery and of a musical composition, the exclusive right is given for its delivery or performance "publicly and for profit," and in the case of a drama, "publicly," the words for profit being, probably by inadvertence, omitted. There is some question, therefore, whether a copyrighted lecture, drama, or musical composition can be given without consent of the author privately, or, except in the case of a drama, gratuitously before the public. In view of the special exception (sec. 28) exempting oratorios, etc., performed for charitable or educational purposes and not for profit, from authorization or payment, as well as on general principles of construction, it would seem probable that the courts would protect the author of a lecture, drama, or musical composition, except in such instances as a private rendering in a private house, to which there was not public admission and at which no fee was charged or collection taken. The cases bearing on this point are given in the later chapter on dramatic and musical copyright.

{Sidenote: Material and immaterial property}

The American code adopts into the law an important distinction as between the property in the material and the immaterial rights, hitherto somewhat uncertain, in the following provision (sec. 41): "That the copyright is distinct from the property in the material object copyrighted, and the sale, or conveyance, by gift or otherwise, of the material object shall not of itself constitute a transfer of the copyright, nor shall the assignment of the copyright constitute a transfer of the title to the material object; but nothing in this Act shall be deemed to forbid, prevent, or restrict the transfer of any copy of a copyrighted work the possession of which has been lawfully obtained."

The negative provision in this section was inserted in the new copyright law apparently to differentiate it from patent law with the intent of preventing the proprietor of a copyrighted work from controlling the conditions of sale after copies had left his possession. It is doubtful what, if any, effect this provision may have, as the phrase "lawfully obtained" would scarcely have the result of limiting and annulling contractual conditions of sale. The innocent purchase of a stolen book would not relieve the purchaser from the necessity of returning the stolen property to its proper owner, although as far as intent, knowledge, and payment are concerned, he would have "lawfully obtained" it.

{Sidenote: Schemes not copyrightable}

The scope of copyright cannot be extended to cover a business or other scheme described in a copyrighted book, as was held in 1906 in Burk _v_. Johnson by the Circuit Court of Appeals in denying relief under copyright protection to the originator of a mutual burial association who copyrighted the articles of association.

{Sidenote: The new British code}

The new British measure defines copyright to mean "the sole right to produce or reproduce the work or any substantial part thereof in any material form whatsoever and in any language," thus assuring rights of translation hitherto imperfect or doubtful; "to perform, or in the case of a lecture to deliver, the work or any substantial part thereof in public; if the work is unpublished, to publish the work"; and specifically includes the sole right of dramatization (from an "artistic," as well as other non-dramatic work), novelization, and reproduction by mechanical means (though with compulsory license provision as to reproduced music). A copyright may be assigned or licensed "either wholly or partially, and either generally or subject to limitations to any particular country, and either for the whole term of the copyright or for any part thereof."

"Copyright or any similar right in any literary dramatic musical or artistic work, whether published or unpublished," is expressly denied "otherwise than under and in accordance with the provisions of this Act" or other statutory enactment; and thus common law seems to be totally abrogated. Hitherto common law property in an unpublished work has been absolute and co-existed with statutory remedies up to publication, as was strongly upheld in 1908 in Mansell _v_. Valley Printing Co. in the English Court of Appeal. As to published works, the new code continues the settled law reiterated as late as 1910 in Monckton _v_. The Gramaphone Co., where Justice Joyce in the Chancery Division denied the common law claim of the author of a song printed with prohibition of mechanical production, on the ground that after publication there was no copyright except as given by statute.

{Sidenote: Foreign statutes}

The statutes of foreign countries are in general of similar scope, though with variations of extent and phraseology in the several countries. The broadest seems to be that of Siam, above cited, translating common law rights into statutory privilege, though that country also contradictorily limits copyright in books by a manufacturing clause. Spain specifically protects works produced or published by "any kind of impression or reproduction known now or subsequently invented," as elsewhere quoted. France specifically gives an author right to assign his property in whole or in part--a right which is probably included in other countries under the general construction of statutory rights in property.

{Sidenote: International provisions}

The international copyright convention, as modified at Berlin, does not define the scope of copyright, but insures for authors the enjoyment of such rights as the domestic laws accord to natives; but in its several articles it makes specific provision as to representation, translation, adaptation, mechanical reproduction, etc., as set forth in the chapter on international copyright conventions.

Common law, or a crude equivalent for it, as enforced by the courts, seems to extend copyright protection, in the absence of specific legislation, in Montenegro, Egypt and Liberia, Honduras, the Dominican Republic, and Uruguay, as formerly in Argentina.

SUBJECT-MATTER OF COPYRIGHT: WHAT MAY BE COPYRIGHTED

{Sidenote: Subject-matter in general}

The subject-matter of copyright should include, in the nature of things, those products of invention, creations of the human brain, which are realized and utilized immaterially through material records, and not, as in the case of patents, materially through the material itself. Copyrightable works, in brief, are those which appeal from the imagination to the imagination, or in which intellectual labor combines immaterial product into new form. What may be copyrighted specifically and practically depends, under present conditions of law, upon the statutory provisions, national or international, of the several nations of the world.

{Sidenote: Classification}

The new American code gives the following classification of copyrightable works:

"(Sec. 5.) That the application for registration shall specify to which of the following classes the work in which copyright is claimed belongs:

"(a) Books, including composite and cyclopaedic works, directories, gazetteers, and other compilations;

"(b) Periodicals, including newspapers;

"(c) Lectures, sermons, addresses, prepared for oral delivery;

"(d) Dramatic or dramatico-musical compositions;

"(e) Musical compositions;

"(f) Maps;

"(g) Works of art; models or designs for works of art;

"(h) Reproductions of a work of art;

"(i) Drawings or plastic works of a scientific or technical character;

"(j) Photographs;

"(k) Prints and pictorial illustrations:

"_Provided, nevertheless_, That the above specifications shall not be held to limit the subject-matter of copyright as defined in section four of this Act, nor shall any error in classification invalidate or impair the copyright protection secured under this Act."

{Sidenote: Prints and labels excluded}

Prints or labels "not connected with the fine arts," but "designed to be used for any other articles of manufacture," are subject only to registration in the Patent Office in accordance with the act of June 18, 1874.

{Sidenote: All the writings of an author}

It is enacted (sec. 4): "That the works for which copyright may be secured under this Act shall include all the writings of an author," thus linking the phraseology of the law with the provision in the Constitution of the United States in which the word "writings" is used, with the effect of construing that word by the classification above cited.

{Sidenote: Component parts}

It is also enacted (sec. 3): "That the copyright provided by this Act shall protect all the copyrightable component parts of the work copyrighted, and all matter therein in which copyright is already subsisting, but without extending the duration or scope of such copyright. The copyright upon composite works or periodicals shall give to the proprietor thereof all the rights in respect thereto which he would have if each part were individually copyrighted under this Act."

{Sidenote: Compilations, new editions, etc.}

It is also enacted (sec. 6): "That compilations or abridgments, adaptations, arrangements, dramatizations, translations, or other versions of works in the public domain, or of copyrighted works when produced with the consent of the proprietor of the copyright in such works, or works republished with new matter, shall be regarded as new works subject to copyright under the provisions of this Act; but the publication of any such new works shall not affect the force or validity of any subsisting copyright upon the matter employed or any part thereof, or be construed to imply an exclusive right to such use of the original works, or to secure or extend copyright in such original works."

{Sidenote: Non-copyrightable works}

The provisions of the law regarding the subject-matter of copyright are completed by the negative provision:

"(Sec. 7.) That no copyright shall subsist in the original text of any work which is in the public domain, or in any work which was published in this country or any foreign country prior to the going into effect of this Act and has not been already copyrighted in the United States, or in any publication of the United States Government, or any reprint, in whole or in part, thereof: _Provided, however_, That the publication or republication by the Government, either separately or in a public document, of any material in which copyright is subsisting shall not be taken to cause any abridgment or annulment of the copyright or to authorize any use or appropriation of such copyright material without the consent of the copyright proprietor."

{Sidenote: Government use}

It is not to be inferred from the provision as to Government publications, that the United States has itself a right to use copyright material without consent of the copyright proprietor. The sovereignty of the nation is not to transgress the rights of private property, unless in the necessary exercise of war or police powers, as the sovereign state cannot take land over which it is theoretically sovereign from a private owner except for public purposes and then only by condemnation proceedings at law and with fair remuneration to the proprietor. No right of eminent domain in respect to copyrights is asserted by the United States, and the provision means only that material, otherwise copyrightable, furnished by a public officer or otherwise to the Government, becoming the property of the Government, is put freely at the service of the people.

{Sidenote: "Author" and "writing" definitions}

The constitutional provision is thus given the broadest interpretation in the act. In the narrow sense the dictionaries define "author" as "one who composes or writes a _book_" (Webster), and "writing" variously as "a record made by _hand_," "a production of the _pen_," "any expression of thought in _visible_ words" (Century); "anything expressed in _letters_" (Webster, Stormonth, Standard); "a written paper," "a legal instrument" (Johnson); "a literary production" (Chambers); "forming by the hand letters or characters on paper or other suitable substance" (Bouvier's Law Dictionary); "words made _legible_ by any device," "a document, whether manuscript or printed, as opposed to mere spoken words" (Rapalje and Lawrence, Law Dict.); "expression of ideas by visible letters" (Anderson's Dict. of Law). For years Massachusetts voters cast a handwriting ballot, until the courts held that a printed ballot fulfilled the "written ballot" requirement of the Massachusetts constitution. But in the wider sense an author is "a creator, an originator" (Webster, Standard), and a writing is the record or expression of a thought or idea.

{Sidenote: Interpretation by Congress and courts}

Congress, upheld by the courts, had specifically included (law of 1870) under "writings" in the Constitution a "statue," "statuary," "model," without requiring the artist to make a preliminary sketch (if that be specifically a writing)--otherwise, as sculptors are not "inventors" making "discoveries," they could not be protected at all; and in other countries protection has been extended to oral delivery of an address presumably but not necessarily written. It might be claimed, under a restrictive interpretation of the Constitution, that only works specifically relating to "science and useful arts" might be protected, although literature and the fine arts are admittedly especial subjects of copyright. While it is for the judiciary and not for the legislature to construe or interpret the Constitution, the right of Congress to pass laws based upon its understanding of the Constitution, subject to the final decision of the federal courts, has not been challenged. And the code of 1909 by its classification (sec. 5) and its inclusive clause (sec. 4) is most comprehensive in this respect.

{Sidenote: Supreme Court decisions}

The U. S. Supreme Court, in 1884, in the decision of Burrow-Giles Lith. Co. _v._ Sarony, extending the principles of the copyright act to cover photographs, said through Justice Miller: "By 'writings' is meant the literary productions of those authors, and Congress very properly has declared these to include all forms of writings, printing, engraving, etching, etc., by which the ideas in the mind of the author are given visible expression. The only reason why photographs were not included in the extended list of 1802 is probably that they did not exist, as photography as an art was then unknown." It seems evident that the phrase "visible expression" as used in this decision was intended to give a broad definition and not to narrow the definition by the exclusion, for instance, of "audible expression," as otherwise the _performance_ of a drama or of a musical composition could not be included under copyright protection. This view is confirmed by the later decision of the same court, in 1899, in Holmes _v._ Hurst: "It is the intellectual production of the author which the copyright protects, and not the particular form which such production ultimately takes; and the word 'book' is not to be understood in its technical sense as a bound volume, but any species of publication which the author selects to embody his literary product."

{Sidenote: Originality and merit}

The courts are disposed to extend copyright to any work involving intellectual labor or brain skill, without emphasizing originality or literary merit. In the important case of Walter _v._ Lane, in which a _verbatim_ report of Lord Rosebery's speeches was protected, by decision of the House of Lords, in 1900, Lord Chancellor Halsbury said: "Although I think in these compositions (_i. e._ the work of the stenographer) there is literary merit and intellectual labor, yet the statute seems to me to require neither--nor originality either in thought or language ... the right in my view is given by the statute to the first producer of a book, whether that book be wise or foolish, accurate or inaccurate, of literary merit, or of no merit whatever."

{Sidenote: "Book" definitions}

The word "book" covers the great body of copyright property, and has been many times the subject of judicial construction giving the most comprehensive meaning to the term. The English judges early held that protection "could not depend upon the form of the publication"; "that a composition on a single sheet might well be a book within the meaning of the legislature"; and that "any composition, whether large or small, is a book within the meaning of this act." The English law of 1842 afterward specifically construed the word "book" "to mean and include every volume, part or division of a volume, pamphlet, sheet of letterpress, sheet of music, map, chart or plan, separately published." The law of the United States makes no definition of the term, except by specifically including as books "composite and cyclopaedic works, directories, gazetteers, and other compilations"; but our judges have agreed with the English view, Judge Thompson holding, in 1828, in Clayton _v._ Stone, that a "book" may be printed "only on one sheet," and that "the literary property intended to be protected by the Act is not to be determined by the size, form or shape ... but by the subject-matter," and Judge Leavitt, in 1862, in Drury v. Ewing, that a diagram for cutting dresses, with directions, printed on a single sheet, being "the product of thought and mental toil," was a "book" within the benefit of the law.

{Sidenote: Inclusions adjudicated}

In fact, though all English and American statutes have been avowedly for "the encouragement of learning" and "the progress of science and useful arts," the courts have construed the laws to cover in the widest sense any "useful book." The courts have indeed denied copyright protection only to works having absolutely no literary quality, such as advertisements (unless they contain original literary matter) and advertising cuts, labels, blank books, or blank forms. Even booksellers' and other trade catalogues, having descriptive notes or distinctive arrangement and combination, can be copyrighted. Compilations of existing materials, from common sources, arranged and combined in an original and useful form, receive the same protection as wholly original matter. Drone schedules English or American judicial constructions extending this principle to: (1) general miscellaneous compilations; (2) annotations consisting of common materials; (3) dictionaries; (4) books of chronology; (5) gazetteers; (6) itineraries, road and guide books; (7) directories; (8) maps and charts; (9) calendars; (10) catalogues; (11) mathematical tables; (12) a list of hounds; (13) abstracts of titles to lands; and collections of (14) statistics, (15) statutory forms, (16) recipes, and (17) designs--several of which classes are now specifically included in the new American statute. Later decisions have confirmed several of these categories and have specified also (18) trotting records; (19) racing charts; (20) newspaper reports of public speeches; (21) telegraphic codes; (22) mining reports; (23) a tradesman's alphabetical list of wares; (24) a list of public documents; (25) mathematical calculations; (26) legal forms; (27) an application form for membership; (28) complications of railroad time-tables; (29) commercial circulars, protected by a Canadian decision; (30) school registers, and (31) stud book list of horses.

{Sidenote: Exclusions adjudicated}

On the other hand, the courts have declined to include as proper subjects of copyright (a) methods or plans, as for compiling credit-ratings or systems, as in the case of (b) shorthand, (c) trading stamps or coupons as described in a copyrighted advertising pamphlet, or (d) of letter-file indexes; (e) a sleeve pattern chart; (f) the face of a barometer; (g) a railway ticket designed for punching; (h) a day's sporting tips; (i) blank books; or (j) blank forms, as a cricket score-card; and (k) monograms.

{Sidenote: Inclusions defined}

In the new Rules and Regulations of the Copyright Office promulgated as approved by the Librarian of Congress in 1910 as Bulletin No. 15, it is said as to books:

"(4, _a_) _Books._--This term includes all printed literary works (except dramatic compositions) whether published in the ordinary shape of a book or pamphlet, or printed as a leaflet, card, or single page. The term 'book' as used in the law includes tabulated forms of information, frequently called charts; tables of figures showing the results of mathematical computations such as logarithmic tables; interest, cost, and wage tables, etc., single poems, and the words of a song when printed and published without music; librettos; descriptions of moving pictures or spectacles; encyclopaedias; catalogues; directories; gazetteers and similar compilations; circulars or folders containing information in the form of reading matter other than mere lists of articles, names and addresses, and literary contributions to periodicals or newspapers."

{Sidenote: Exclusions defined}

On the other hand, definitions are made negatively that:

"(5) The term 'book' can not be applied to--

"Blank books for use in business or in carrying out any system of transacting affairs, such as record books, account books, memorandum books, diaries or journals, bank deposit and check books; forms of contracts or leases which do not contain original copyrightable matter; coupons; forms for use in commercial, legal, or financial transactions, which are wholly or partly blank and whose value lies in their usefulness and not in their merit as literary compositions.

"Directions on scales, or dials, or mathematical or other instruments; puzzles; games; rebuses; labels; wrappers; formulae on boxes, bottles, and other receptacles of articles for sale or meant to accompany such articles.

"Advertisements or catalogues which merely set forth the names, prices, and places where articles are for sale.

"Prefaces or other introductory matter to works not themselves entitled to copyright protection, such as blank books.

"Calendars are not capable of registration as such, but if they contain copyrightable reading matter or pictures they may be registered either as 'books' or as 'prints' according to the nature of the copyrightable matter."

The Rules also make the following negative definitions:

"(12) No copyright exists in toys, games, dolls, advertising novelties, instruments or tools of any kind, glassware, embroideries, garments, laces, woven fabrics, or any similar articles."

The definition of other classes of subject-matter given in the new Rules and Regulations of the Copyright Office, including that of maps, will be found in the chapters on dramatic and musical copyright and on artistic copyright.

{Sidenote: Blank books}

In the case of Everson _v._ Young, then Librarian of Congress, Judge Cole, of the Supreme Court of the District of Columbia, in 1889, refused a mandamus against the copyright officer while admitting that "the librarian had no discretion" on the ground that mandamus "will not be used to order a vain thing to be done" and that a blank book "containing not a single English sentence" is not a subject of copyright.

"The copyright statutes," as is said in Circular Letter no. 32 of the Copyright Office, "in designating the classes of articles which may be registered in this office do not mention blank forms or blank books. The United States courts which have jurisdiction in cases arising under the copyright laws have held that blank forms or blank books or similar articles _for use in themselves_ are not subject to copyright, and hence are not registrable in this office. A bill was introduced in Congress in 1904 proposing to extend the protection of the copyright law to vouchers, certificates, or other business forms, wholly or partly printed. But the measure was not favorably acted upon and did not become law." This exclusion does not refer to such publications as an insurance policy or a legal document, on which blank spaces are to be filled in, which are accepted as proper subject-matter for copyright by the Copyright Office.

{Sidenote: Combinations and arrangements}

The copyright under certain categories above scheduled may be in the combination and arrangement only, or it may be also in any original material included with other material. Quantity is not an essential element in copyright so much as "substantial importance." An English court protected a passage of only sixty words.

{Sidenote: Advertisements}

In respect to advertisements and advertising matter as such, the new American code is silent, and court decisions, mostly English, have been contradictory. In 1863 Vice-Chancellor Page Wood, in Hotten _v._ Arthur, "found no difficulty" in deciding that a catalogue of old books was a subject of copyright "notwithstanding that the catalogues were for the purpose of advertising the plaintiffs' stock-in-trade, and were not in themselves offered for sale"; but in 1872 Lord Romilly, in Cobbett _v._ Woodward, made an absolutely contrary decision, saying: "But at the last, it comes round to this, that there is no copyright in an advertisement. If you copy the advertisement of another, you do him no wrong in doing so, unless you lead the public to believe that you sell the articles of the person whose advertisement you copy." This last decision was definitely overruled and in 1882, in Maple _v._ Junior Army & Navy Stores, the English Court of Appeal, in protecting an advertising catalogue consisting mostly of engravings of furniture, said through Justice Jessel: "The case which has done all the mischief is Cobbett _v._ Woodward.... I think that is not law. I am not aware that the use to which a proprietor puts his book makes any difference in his rights." In 1906, in Davis _v._ Benjamin, the Chancery Division held a sheet of advertising illustrations with headlines and prices a book.

{Sidenote: Undistinctive advertising not protectable}

An advertisement _per se_ of an ordinary character, the courts may decline to protect, either on behalf of the advertiser or of the publisher of the periodical in which it appears; thus possibly ordinary advertisements might be copied by another paper, to give an inflated impression of its advertising patronage unless enjoined for intent to deceive. On the other hand, characteristic advertisements, as those for which department stores pay large sums to advertisement writers, could doubtless be copyrighted to prevent their use by rival firms, though the advertiser would scarcely be interested in preventing the wide diffusion of his advertisement with his name by its gratuitous publication elsewhere. Some street-car advertisements, however, bear copyright notices. Whether the proprietor of a copyrighted periodical could prevent the use of a copyrightable advertisement not protected by specific copyright, in a rival newspaper, would be questionable, though a publisher might be granted an injunction for the combination or arrangement of copyrightable advertisements in his periodical. In 1892, in Lamb _v._ Evans, Lord Justice Lindley, in the English Court of Appeal, said: "I do not see myself the difficulty in the publisher's having a copyright in a sheet of advertisements. I do see a difficulty in his having a copyright in one advertisement, because, as Mr. Justice Chitty pointed out, that might prevent the advertiser from republishing his advertisements in another paper, which is absurd." An advertisement appearing in several publications, some of them not copyrighted, could only be protected in these latter by specific copyright notice, even though covered in the copyrighted periodicals as a component part. The Copyright Office can make no clear line of demarcation in advance as to advertisements, but it has declined in a recent instance to accept for registry recipes printed on tin and inserted in packages of flour to advertise the flour, which could scarcely be accepted as a "book" or other copyrightable matter.

{Sidenote: New editions}

New editions are protected under the American code as new works (sec. 6), to the extent that they include new material; and this is in accord with the whole trend of court decisions. In 1852 Vice-Chancellor Kindersley stated the doctrine that "if a man prints a second edition, not being a mere reprint of the first edition, but containing considerable and material alterations and additions, _quoad_ those, it is a new work." So in 1870, in Black _v._ Murray & Son, Lockhart's edition of Scott's "Border Minstrelsy" was protected, on Lord President Inglis' decision, to the full extent of the notes: "Questions of great nicety and difficulty may arise as to how far a new edition of a work is a proper subject of copyright at all; but that must always depend upon circumstances. A new edition of a book may be a mere reprint of an old edition, and plainly that would not entitle the author to a new term of copyright running from the date of the new edition. On the other hand, the new edition of a book may be so enlarged and improved as to constitute in reality a new work, and that just as clearly will entitle the author to a copyright running from the date of the new edition." A few colorable alterations or unimportant notes may not justify a new copyright; a Scotch justice, however, contended that Walter Scott's change of a single word in "Glenallan's Earl" authorized a copyright for the new edition, though another law lord differed, and the case was decided on other grounds. It is doubtful indeed whether there can be protection of a single word, a question which arose in the _Belgravia_ case, unless having association in the public mind as a trade-mark. In any event, the copyright on a new edition, whether made by rewriting, extending, condensing, annotating, or otherwise altering, runs independently of the term of the original or any other edition, covers only the new parts, and cannot prevent the issue by others of the original or any other edition on which copyright has expired. This is made entirely clear in the new code (sec. 6).

{Sidenote: Copyright comprehensive}

"A book must include every part of the book; it must include every print, design, or engraving which forms part of the book, as well as the letterpress therein, which is another part of it," according to the ruling decision of Vice-Chancellor Parker, in 1852, in the English case of Bogue _v._ Houlston. To the same effect Drone says: "The copyright protects the whole and all the parts and contents of a book: when the book comprises a number of independent compositions, each of the latter is as fully protected as the whole." The copyright under the new law protects (sec. 3) "all the copyrightable component parts of the work copyrighted." The practice of some publishers in copyrighting a magazine and also specific articles or engravings seems, therefore, a work of doubtful expediency. The new law specifically gives to the proprietor of "composite works or periodicals" (sec. 3) "all the rights in respect thereto which he would have if each part were individually copyrighted."

{Sidenote: Non-copyrightable parts excepted}

On the other hand, copyright cannot extend to any part of a book not subject in itself to copyright, even under the old law, and the new law (sec. 3) is perfectly plain. The general copyright is not, however, vitiated as to copyrightable portions by its seeming to cover non-copyrightable portions, as was held by Lord Kenyon, in 1801, in Cary _v._ Longman. But when copyright is claimed on a work partly composed of uncopyrightable matter the courts may require the claimant, on interrogatories, to designate which parts are and which are not original. "If the parts cannot be separated," says Drone, "it would seem that copyright will not vest in any of it." The new code is to the same effect.

{Sidenote: Book illustrations}

The application of these principles to the protection of a "new edition" which is new only with respect to added illustrations, is very simple. It is only the new illustrations which can be copyrighted, and it is matter for question whether the endeavor to protect an edition of unaltered text by a general copyright notice which really covers only a few added illustrations would not be a false use of the copyright notice. A proper copyright notice on an illustrated book will, however, protect the illustrations against indirect as well as direct reproduction; thus in 1908 in Harper _v._ Kalem, Judge Lacombe in the U. S. Circuit Court in New York protected certain illustrations in "Ben Hur" against their reproduction in moving pictures.

{Sidenote: Translations}

In respect to translations, the new American law is specific, not only in its mention of "translations" (sec. 6), but in giving (sec. 1, b) the exclusive right "to translate the copyrighted work into other languages or dialects, or make any other version thereof, if it be a literary work." The early American precedent was the case of "Uncle Tom's cabin," in 1853, in which Mrs. Stowe had copyrighted not only the original work, but a German translation which she had provided; Justice Grier in the U. S. Circuit Court held that she could not recover against one Thomas who was issuing another German translation, since it was not "_copies_ of her _book_." This case was previous to the statute permitting authors to reserve the right of translation, and the new code as above cited fully protects translations. The author of a copyrighted work thus has the exclusive right to translate his work, or license its translation, into any other language, and under such a license the translator with the consent of the author would have the right to copyright his translation. Where the author employs a translator for hire, the copyright in the translation may be secured by the author of the original work, but under ordinary circumstances the copyright in the translation would be secured by or on behalf of the translator. In case of contest on this point, the issue would be a question of contract, and in the absence of contract or specific assent the courts would doubtless base their decisions on the circumstances of the case so far as they could be held to imply contract. The inclusion of the notice of copyright of the original work on a translation, without specific copyright of the translation itself, would be held, it seems probable, to protect the translation under the author's original copyright; but this would limit the copyright term on the translation to the copyright term of the original work, and for this and other reasons a specific copyright on each translation is desirable, in which case the notice of copyright of the original work need not be given on the translation.

{Sidenote: Translator's rights}

In the case of the translation of a copyright work, the author of the original work has the right to prevent other translations, but the translator has no such right to prevent translation by another translator except as exclusive right to translate is conveyed or implied to him by the author of the original work. A work in the public domain, as a non-copyright work or a work on which copyright has expired, may be translated by any one and the translation copyrighted, but such translator would not have the right to prevent translation by another translator.

{Sidenote: English practice}

In England, while the right of translation may be reserved under the international copyright act by notice on the title-page, an English author could reserve his right of translation only by providing such translation, but the new code gives the full right.

{Sidenote: Translations in international relations}

The American provisions as to translations apply with especial importance to international relations. "The original text of a book of foreign origin in a language or languages other than English" is copyrightable in America without manufacture here; and such a work, duly copyrighted, can only be translated into English or any other language by authority of the foreign author or his assigns, and such translation in English or any other language can be copyrighted only when manufactured in this country as provided in the act. If the original text of a foreign work is not duly copyrighted under the American law, then translation is open to any one and copyright can be secured only for the particular translation copyrighted, as above stated, and this cannot prevent independent translation into the same or any other language. Thus, a German original duly copyrighted may not be translated into English, French, or any other language without authority of the copyright proprietor, nor can an English translation be made, for instance, from a French translation of the copyrighted work; but any number of translations of the copyrighted German work into English or any other language may be separately copyrighted under the American law, subject to the manufacturing clause, if duly authorized by the copyright proprietor, and each translator could only prevent the copying of his particular translation or the translation of his own version into another language.

{Sidenote: Foreign translators}

A translation can be copyrighted by a translator only in case he is a citizen of a country with which the United States has copyright relations or is a resident of this country; thus a Swedish translation by a citizen of Sweden not resident in the United States could not be copyrighted unless the translator had been "employed for hire" by the author or proprietor of the original copyrighted work. If the entire copyright of the original work had been sold by the author to a citizen of Sweden, not a resident in the United States, it would seem to follow that the latter could not copyright a translation though he might retain the right to prevent unauthorized translation under the general copyright which he had purchased. In the case of an authorized independent translation made by a Swedish citizen not resident here, the general notice of copyright of the original work might be utilized to protect the translation, but in such case copies not manufactured in the United States could not be imported into this country; while if such authorized translation bore no copyright notice and were imported into the United States by the author or with his consent, it is probable that this translation, but not the original work or another translation from either, would be freed from copyright protection.

{Sidenote: Abridgments}

In respect to abridgments, these are specifically mentioned (sec. 6) as copyrightable works, and by inference from this clause and the provision (sec. 1) giving an author the exclusive right to "make any other version," the author or proprietor of a literary work may prevent abridgment of his work. The courts had held to precedents which the best writers, such as Curtis, Drone and Copinger, declare to be contradictory to the true principles of copyright law. In 1740 Lord Hardwicke, deciding against a mere reprint, "colorably shortened only," of Sir Matthew Hale's "Pleas of the Crown," declared that he would not restrain "a real and fair abridgment," and in 1774 Lord Chancellor Apsley, after consultation with Blackstone, held that an abridgment of Hawkesworth's "Voyages," involving understanding and skill, was not plagiarism or a copyright wrong, but "an allowable and meritorious work." In the leading American case of Story's "Commentaries," Story v. Holcombe, in 1847, in the U. S. Supreme Court, Justice McLean, while expressing his own opinion that "an abridgment, if fairly made, contains the principle of the original work, and this constitutes its value," added, "but a contrary doctrine has long been established in England ... and in this country the same doctrine has prevailed. I am, therefore, bound by precedent, and I yield to it in this instance, more as a principle of law than a rule of reason or justice." Similarly, in Lawrence v. Dana, in 1869, Judge Clifford, in the U. S. Circuit Court, declared that "an abridgment ought to be regarded as an infringement ... but the opposite doctrine has been too long established to be considered open to controversy." The language of the new code frees the courts from these precedents and settles the American law.

{Sidenote: Compilations}

In respect to compilations, these are protected by specific mention (sec. 6) in the new law, and also by the classification as books (sec. 5, a) of "composite and cyclopaedic works, directories, gazetteers, and other compilations." Compilations can be protected even if consisting solely of non-copyright material, "because of the originality, arrangement, selection, abridgment, or amplification of such simple material," as stated in the Scotch Court of Session, in the case of Lennie v. Pillans in 1843, with which later English and American decisions are in accord.

{Sidenote: Collections}

Collections are copyrightable as compilations or otherwise, and where the use of copyrighted poems or other copyright material is permitted, these are protected by general copyright notice on the collection. Permission to use a copyrighted poem, for instance, in a specified collection does not grant a license to use it in other form, though it could be used in a combination of such collections. In 1896, in Gabriel _v._ McCabe, Judge Grosscup in the U. S. Circuit Court in Illinois held that the licensor could not prevent the use of a song licensed for a particular collection in a combination of this collection in another collection or in an abridged edition of the collection, though an "abridgment" involving a reprint of the song by itself would have been an unfair use of the license.

{Sidenote: Titles}

As to titles, which are not mentioned in the new code, both English and American court decisions are broadly and generally, though with some exceptions, to the effect that there is no copyright protection for the title of a book _per se_, but it may be considered an essential part of the book. Judge Shepley held, in 1872, in his elaborate discussion of the question of titles in Osgood _v._ Allen as to the periodical _Our Young Folks_, that "the right secured is the property in the literary composition--the product of the mind and genius of the author--and not in the name or title given to it. The title does not necessarily involve any literary composition; it may not be, and certainly the statute does not require that it should be, the product of the author's mind.... It is a mere appendage, which only identifies, and frequently does not in any way describe, the literary composition itself.... If there were no piracy of the copyrighted book there would be no remedy ... for the use of a title which could not be copyrighted independently of the book." Judge Lacombe accepted this view in his decision of the "Trilby" case, cited beyond.

{Sidenote: Changed titles}

Conversely, the publication of a copyrighted work under a changed title, with the original notice of copyright, would probably not invalidate the copyright, though it would make identification more difficult and prevent the copyright certificate being _prima facie_ proof; and change of title is a practice altogether reprehensible. A new copyright of the same book changed only in title, with a new copyright notice of later date, could scarcely be construed as a new edition and in the absence of the original copyright notice the copyright might thus be abandoned or forfeited and the work be dedicated to the public.

{Sidenote: General titles}

General titles cannot in any way be protected. The publishers of the "_Bibliographie Universelle_," in France, the "Post Office Directory," in England, and of "Irving's Works," in America, were all defeated in attempts to prevent the use of those titles.

{Sidenote: Titles as trade-marks}

Titles are rather to be considered as trade-marks, which may be registered in the United States under the Trade-Mark acts of 1905-6, and protected by the statutory penalties, or may be protected on general principles of equity. This doctrine was early upheld by the English courts, especially in regard to periodicals, as in the titles of _Bell's Life_ and the _London Journal_, and again came before the courts in the important case of Weldon _v._ Dicks, as to the specific title of the novel "Trial and triumph," in which case, in 1878, Vice-Chancellor Malins enjoined quite another book under the same title, though the title was chosen in ignorance of the first book and in entire good faith. So, also, as to the title "Splendid misery," used by Miss Braddon in 1879, Sir James Bacon, in the Chancery suit of Dicks _v._ Yates, in 1881, was inclined to support the claim of C. H. Hazelwood, who had used the title in 1874, until it was shown that a forgotten novelist named Purr had used it in 1801, so that it had become, in a measure, common property.

{Sidenote: "Chatterbox" cases}

In the several American "Chatterbox" cases, Judge Wheeler's early decision restraining the use of this "name or word, or any name or word substantially identical therewith," in or upon any juveniles of the general character of the English book of that name, was followed by Judge Shipman, in 1887, in Estes _v._ Worthington, in the U. S. Circuit Court in New York, who also held that the word "Chatterbox" had become "a well-known trade-mark designating a well-known series," published in a distinctive style and enjoined the rival publication, simulating the external style, but of different contents. These decisions previous to 1891, resting on principles of trade-mark and not of copyright, indirectly assured a measure of international copyright.

{Sidenote: Other title decisions}

In 1888 the publishers of _Life_ and of "The good things of _Life_" obtained an injunction from the N. Y. Supreme Court, in Mitchell & Miller _v._ White & Allen, to restrain the publication of "The spice of life," as seemingly a continuation or counterpart of the authorized collection of extracts from that periodical. In 1904, in Gannet _v._ Rupert, Judge Coxe in the U. S. Circuit Court of Appeals in New York, on suit of the publishers of _Comfort_, restrained the use of the title _Home Comfort_ on a rival periodical "not as a case of unfair competition" but as "founded on a technical common law trade-mark"; and characterized the name as "a badge of origin and genuineness. It is as much a part of the proprietor's property as his counting room or printing press. A rival publisher has no more right to appropriate the name of its owner,"--despite the defence that _Comfort_ is "a standard English word not fanciful or manufactured." This defence had precedent in the doubt expressed by Lord Cairns in 1867 in the _Belgravia_ case, cited beyond, as to copyright protection of a single word, and in the decision of Judge Curtis in Isaacs _v._ Daly, in the N. Y. Superior Court in 1874, as to the drama "Charity," that "the use of the word 'Charity' as a designation for any work of art or literature cannot ordinarily be monopolized by any one person"; but under trade-mark law a single word associated by registry or in the public mind with a well-known product, may undoubtedly be protected as against misleading use of the word otherwise. The courts will go even farther in preventing the use of a title by another person with intent to deceive or to utilize the reputation of another work or author, as a fraud upon the public, or as unfair competition, without reference specifically to trade-mark principles. Thus Judge Newburger of the N. Y. Supreme Court, in 1910, in Eliot and Collier _v._ Jones and the Circle Publishing Company, restrained the issue under the title "Dr. Eliot's five-foot shelf" of books by the defendants of a set of books selected by and issued under the authority of President Eliot of Harvard, under arrangement with the co-plaintiff. The English rulings are to the like effect, that while a title has no copyright protection except as part of a book, the use of a title to attract purchasers on the supposition that they are getting another book previously known by that title is a fraud punishable at common law. Further citations of cases on these points are given in the chapter on infringement.

{Sidenote: Projected titles}

There can be no claim to protection for the title of an unpublished book, as a trade-mark or otherwise, just as there can be no copyright in a projected book. This question was elaborately discussed in the leading English case of Maxwell _v._ Hogg, in 1867, in relation to the magazine _Belgravia_, when the rule was laid down that no matter what expenditure had been made or advertising done, a title was not protectable previous to its association with a work actually before the public. Judge Shepley, in 1872, pointed out that "there is no such thing as property in a trade-mark as an abstract name," for a trade-mark simply shows that certain goods "were manufactured by a certain person." Nor can an abandoned title, in the case of a periodical, be held against a person starting a new periodical of that name, providing it does not purport to be a continuation of the old, according to a French case quoted by English authorities.

{Sidenote: Projected works not copyrightable}

There can be no statutory copyright in a book or other work projected and not yet prepared, despite a very general notion that under the old law a projected book could be protected by registering a title and depositing a title-page of an unwritten or unpublished book. There is nothing in copyright law corresponding to the _caveat_ in patent law. This is not in conflict with the protection of an unpublished work at common law or in equity referred to in the new American code (sec. 2) or the provision in the new law (sec. 11) permitting the registration of "a lecture or similar production or a dramatic or musical composition" or a work of art, before publication, with the deposit of a complete copy or identifying print.

{Sidenote: Immoral works}

There can be no copyright in an immoral book, and Lord Eldon, in Southey _v._ Sherwood, carried this doctrine so far as to deny the common law right of an author in a non-innocent manuscript, because there could be no right to hold what there was no right to sell. His opinion, resulting in the wide sale of a book which the author desired to suppress, has been severely criticised by later authorities. In the American case of Broder _v._ Zeno Mauvais Music Co., Judge Morrow, in the U. S. Circuit Court in California, in 1898, held that as a song which the plaintiff sought to protect contained indecent words, it was not entitled to protection under the copyright law. There can be no copyright in blasphemous, seditious, or libelous books; but though this rule was very strictly enforced by English judges a century ago, the later courts hesitate to rule strictly on this point, lest the rule be perverted to sectarianism or despotism. There can be no copyright in books involving fraud, as those which spuriously obtain salable value by being represented to be the work of writers who did not write them, or to contain matter which they do not contain; but this rule does not extend to books under assumed names or innocently pretending to be what they are not, as when Horace Walpole's "Castle of Otranto" was put forward as a translation from the Italian.

{Sidenote: Periodicals}

In addition to the inclusion of "composite works," the new American law specifically covers (sec. 5, b) "periodicals, including newspapers," and by other provisions of the law above cited, this covers "all copyrightable component parts." It is further provided (sec. 3) that "the copyright upon composite works or periodicals shall give to the proprietor thereof all the rights in respect thereto which he would have if each part were individually copyrighted under this Act." While the American code does not specifically provide as to the separate rights of authors in articles in periodicals or composite works, which must therefore be a matter of contract, or of practice or precedent implying contract, provision for separate copyright is implied in a clause (sec. 12) requiring the deposit of only one copy instead of two in the case of "a contribution to a periodical, for which contribution special registration is requested"--although the specific article is fully protected, as indicated above, by the general copyright.

{Sidenote: Definition of periodicals}

The new Rules and Regulations of the Copyright Office define periodicals as follows:

"(6) This term includes newspapers, magazines, reviews, and serial publications appearing oftener than once a year; bulletins or proceedings of societies, etc., which appear regularly at intervals of less than a year; and, generally, periodical publications which would be registered as second class matter at the post office."

{Sidenote: Periodicals under manufacturing clause}

Periodicals, as well as books, are subject to the manufacturing clause (sec. 15), but affidavit is not required, and the importation of "a foreign newspaper or magazine, although containing matter copyrighted in the United States printed or reprinted by authority of the copyright proprietor," is not prohibited (sec. 31, b), "unless such newspaper or magazine contains also copyright matter printed or reprinted without such authorization"--but these and other conditions are treated in later chapters.

{Sidenote: Periodicals copyrightable by numbers}

The law provides (sec. 19) in the case of a periodical, that the notice of copyright may be "either upon the title-page or upon the first page of text of each separate number or under the title heading," "provided that one notice of copyright in each volume or in each number of a newspaper or periodical published shall suffice." This implies that each issue of a periodical must be separately copyrighted as though a separate work, although the title may be registered as a trade-mark and possibly protected in this way. A daily newspaper may thus be copyrighted day by day at a cost of $365 per year, so as to protect all its original material of substantial literary value. This was done in fact under the American law previous to 1909, though periodicals were not specifically mentioned; a daily price-list of the New York Cotton Exchange was so entered day by day, but the question of maintaining such a copyright under the old law seems never to have been tested in the courts, and New York dailies copyrighted their Sunday cable letters separately.

{Sidenote: News}

In respect to news, there is no provision in the new code. A bill to protect news for twenty-four hours was at one time before Congress, but was never passed. There is, therefore, no copyright protection for news as such, but the general copyright of the newspaper or a special copyright may protect the form of a dispatch, letter, or article containing news. Thus the New York _Herald_ copyrighted without question Dr. Cook's Arctic dispatches, and the question as to the copyright by the New York _Times_ of Commander Peary's dispatches describing his dash for the pole hinged solely on the question of ownership or authority to copyright, as set forth in a later chapter. But any such copyright could not prevent publication by other newspapers of the news that Cook and Peary claimed to have reached the North Pole, at stated dates and under stated circumstances, though their own form of statement of the facts could not lawfully be copied except within "fair use."

In 1892 Justice North in the English Court of Chancery, in Walter _v._ Steinkopff, said that "although it is sometimes said that there is no copyright in news, there could be copyright in the particular form of language or mode of expression by which information is conveyed." The English courts went further in two actions brought by the Exchange Telegraph Co., 1895-97, in the first of which Gregory & Co. were restrained from using information furnished to subscribers first as unpublished matter before publication, second after publication because of copyright on the publication, and third as "unfair competition." In 1902, in Nat. Tel. News Co. _v._ West. Union Tel. Co., the U. S. Circuit Court of Appeals protected news on ticker tapes, and in 1910, in Press Assoc. _v._ Reporting Agency, the English Chancery Division protected election reports on the last-named ground alone.

{Sidenote: British Periodicals}

The statutes of Great Britain have hitherto provided that a work published in parts or a periodical may be fully protected by copyright entry of the first part; the new code covers newspapers and periodicals generally as collective works. When the London _Times'_ memoir of Beaconsfield was reprinted as a penny pamphlet, the _Times_ brought suit as a matter of common law right, but the judge held that a newspaper was copyrightable under the statute, and therefore that a common law suit could not hold.

{Sidenote: Oral works}

The American law now specifically protects oral works by including in the classification (sec. 5, c) "lectures, sermons, addresses, prepared for oral delivery," and by assuring (sec. 1, c) exclusive right "to deliver or authorize the delivery of the copyrighted work in public for profit if it be a lecture, sermon, address, or similar production." The phrase "similar production" and the spirit of the statute suggest that, though the manuscript of a book cannot be copyrighted prior to publication, a "reading" from an unpublished book, as a chapter, scene, or poem, might be registered and protected for oral delivery before publication; and the Copyright Office will make such registry on such application. The former law made no specific provision, but the courts seemed disposed to protect a lecturer on the common law ground that the lecture read is not published by reading, and can be controlled as a manuscript. In the application of common law doctrine to extemporaneous or other oral deliveries, the question of implied contract between the speaker and his auditors enters, and the trend of court decisions is that a hearer who has purchased or obtained a ticket, may make notes for his own use but may not publish them for profit. In the leading English case of Abernethy _v._ Hutchinson, in 1825, Lord Chancellor Eldon protected Dr. Abernethy against the publication of notes of unwritten medical lectures, evidently obtained through a student hearer.

{Sidenote: Newspaper reports}

Newspapers have, however, in practice freely republished lectures, and probably even under the present law the courts would permit, unless report was specifically and entirely forbidden by the speaker, a reasonable report but not a _verbatim_ reproduction of the address, as within the bounds of "fair use." The publication of an unauthorized report by one newspaper would not justify another newspaper in copying the report without consent of the copyright proprietor on the ground of publication, for such unauthorized publication cannot deprive the copyright proprietor of his rights. If a speaker delivers an address, extemporaneously or even from written manuscript without registering the address as an unpublished work or taking other precautions, it is probable that the courts would protect his rights at common law; but it would be hazardous not to take advantage of the statute.

{Sidenote: Lectures in England}

Lectures have hitherto been protected in England in case the lecturer gave notice of reservation in writing two days in advance to two justices at the place of reading, but this complicated proviso caused speakers to rely rather on the common law doctrine that oral delivery is not publication. The new British code specifically provides that delivery is not publication, but permits newspaper report unless the speaker prohibits such report by notice posted near the main entrance and except during public worship near the speaker's position; "newspaper summary" within "fair dealing" is expressly permitted.

{Sidenote: Letters}

Letters are not specified either in English or American statutes under copyright law. A private letter has been held an unpublished manuscript, the right to publish or copyright remaining with the author while living, though the material letter, its paper and ink, has passed to the receiver. Thus in 1741 Pope prevented Curl, an English bookseller, from republishing his letters to Swift, and in 1774, in Thompson _v._ Stanhope, Lord Chesterfield prevented his son's widow from publishing letters which he had made a gift to her. Letters, however, are copyrightable by themselves or as part of a book; and the writer may protect a letter against unauthorized publication by himself publishing and copyrighting it. The U. S. Supreme Court in 1841, in Folsom _v._ Marsh, enjoined the republication of letters of Washington, published by authority in Sparks's "Life of Washington," through Justice Story, who said: "The author of any letter or letters, and his representatives, whether they are literary letters or letters of business, possess the sole and exclusive copyright therein; and no person, neither those to whom they are addressed, nor other persons, have any right or authority to publish the same." But as manuscripts posthumously published, the copyright in letters may belong to the receiver or his assigns; and in Macmillan _v._ Dent, in 1906, the English Court of Appeal held, where the owners of letters of Charles Lamb had sold the copyright to certain publishers, these could not be republished by another who had later bought the material letters even under the authorization of the representative of Lamb's heirs. In Philip _v._ Pennell, Whistler's executrix was denied an injunction to prevent the use of biographical information obtained from the receivers of letters. But _obiter dicta_ indicated that the courts may grant to the writer's representatives an injunction against publication or misuse. The laws of some countries specifically permit the publication of letters in the interest of justice. Unless the letter is of the nature of privileged correspondence, the courts can probably require the production of a letter in court, and in fact do subpoena telegraph companies to produce the originals or transmittal records of telegrams in court, and thus make them _quasi_ public property. The sale of a manuscript letter cannot authorize a vendee to publish it without consent of the writer, and the receiver of a letter is perhaps bound to keep a letter private or destroy it, if so required by the writer, but this is a right difficult of enforcement if not doubtful _in esse_. The receiver of a letter has probably a right to destroy it at his will, unless the writer has required its return to him.

The subject-matter of copyright in respect to musical and dramatic compositions and works of art, is treated specifically in later chapters on dramatic and musical copyright and on artistic copyright.

{Sidenote: Designs patentable}

Designs for use in manufacture are, in the United States, subjects of patent and not copyright. It is provided by the act of May 9, 1902, that "any new, original, and ornamental design for an article of manufacture" may be patented, and this classification inferentially excludes such designs from copyright. This generalized description of design patents replaced, at the suggestion of the Commissioner of Patents, the specific descriptions in the design patents act of December 1, 1873, and adopted instead the more comprehensive phraseology of the act of February 4, 1887, for the punishment of infringement of design patents. In like manner the new British code excludes designs registrable under the patents and designs act, 1907, "except designs which, though capable of being so registered, are not used or intended to be used as models or patterns to be multiplied by any industrial process."

{Sidenote: Foreign practice}

"The foreign copyright legislation," as is stated in Copyright Office Bulletin, No. 9 of 1905, "instead of specifically naming the productions which are subject-matter of copyright, generally uses some inclusive expression, such as 'all writings,' 'every kind of literary work,' 'works of literature,' 'literary and scientific works,' 'every production of literature and science,' and even such inclusive terms as 'every work of the intellect.'" Spain adds the inclusive phrase "produced or published by ... any kind of impression or reproduction known now or subsequently invented." Great Britain, most of her colonies, and some other countries have set forth specific categories. But the new British measure uses the general phrase "every original literary dramatic musical and artistic work"--this replacing the several categories in the several previous laws. In a few countries manuscripts, personal letters and telegraphic messages, mostly in newspaper use, and in Ecuador, titles of periodicals, are specifically scheduled as subjects of copyright.

{Sidenote: International definition}

The Berlin convention uses the general expression "literary and artistic works," which it defines as including "all productions in the literary, scientific or artistic domain, whatever the mode or form of reproduction," then specifying in detail categories of literary, dramatic, musical and other artistic works, as set forth in the chapter on international conventions and arrangements.

VII

OWNERSHIP OF COPYRIGHT: WHO MAY SECURE COPYRIGHT

{Sidenote: Persons named}

The American code of 1909 names (sec. 8) "the author or proprietor of any work made the subject of copyright by this Act, or his executors, administrators, or assigns" as the persons in whom the copyright may lodge. It also provides specifically (sec. 62) that "the word 'author' shall include an employer in the case of works made for hire."

The American law formerly named "the author, inventor, designer, or proprietor of any work, and the executors, administrators, or assigns of any such person" as the persons in whom copyright may lodge. The Librarian of Congress accordingly issued copyright certificates for books as to an "author" or "proprietor" only, assuming usually that an editor was the "author" and a publisher the "proprietor," and never going behind the claim set forth in the application. Under the new law the applicant is designated only as the "claimant," and no such distinction is made, except that the Copyright Office has an index card for proprietor, as well as author, when another than the author makes the application.

{Sidenote: The author primarily}

The author is the person primarily entitled to copyright. He may sell or otherwise transfer his production before it is copyrighted, in which case the new proprietor obtains all the common law rights of property, both in the manuscript and its publication, including the right to copyright. This common law right, including the right to copyright, may extend, Drone argues, to the finder of an unpublished manuscript, provided no one successfully disputes his ownership of his find, if the manuscript be copyrightable; but there are no decisions on this point. If a copyright is taken out by another person (as the publisher of the book), it is done impliedly in trust for the author, as is a usual custom among American publishers. The proprietor is defined to mean "the representative of an artist or author who might himself obtain copyright."

{Sidenote: Claimant's right to register}

The Register of Copyrights is not a _quasi_ judicial officer, as is the Commissioner of Patents, and he does not undertake to make decision as to the right of the claimant, this question being one for determination by the courts in specific instances. In cases of doubt, however, he may in practice, for the sake of convenience and of clearness of record, call the attention of the claimant to such doubt and invite explanation, but he probably would not be justified in refusing to register the application for a claimant who asserted his right to such entry. A former Librarian of Congress, then directly the copyright officer, used to say that he would enter copyright for any one on the Bible in King James' version if formal application were made to him, thus emphasizing the statement that he had no judicial authority. In the case of Everson _v._ John Russell Young, then Librarian of Congress, Judge Cole in 1889, while refusing the mandamus asked for, asserted incidentally that "the Librarian had no discretion." Where a second application is made for the entry of the same copyrightable work by a second party, the copyright officer would not decline to register the second application, if the claimant insisted on his right, after the fact of the first registration had been brought to the second claimant's notice, and the question of ownership would have to be brought before the courts. It is only in the case of works evidently not copyrightable, or in the case of claimants not entitled to apply for registration, as a citizen of a foreign country with which the United States has no copyright relations, or in other cases evidently beyond the scope of the law, that the copyright officer would exercise discretion and decline to make the record.

{Sidenote: Employer as author}

The provision of the new code specifically including as author (sec. 62) "an employer in the case of works made for hire" is new in American law, but it adopts previous decisions of the courts. It does not, however, adjudicate the application or specific definition of this phrase, which remains in large measure a question of contract. Earlier copyright decisions were to the effect that the authorship may inhere in the employer, if the design of the work is so far his as to make him the virtual creator and the actual writer a deputy merely; but that he is not an author who "merely suggests the subject, and has no share in the design or execution of the work." But under the new law, the case turns upon the meaning of "employment," which would be clear in the case of writers paid wages or salary for doing the work on an encyclopaedia, but might not be clear in the case of an author paid in advance or on account by a publisher, though working on a general plan suggested or invented by the publisher. In such cases the proprietary right, including the right to secure copyright, depends upon the contract, implied or express, and the courts will decide this according to the law of contracts. In Boucicault _v._ Fox, in 1862, Judge Shipman, in the U. S. Circuit Court, held, as to the play "The octoroon," that "a man's intellectual productions are peculiarly his own, and he will not be deemed to have parted with his right and transferred it to his employer until a valid agreement to that effect is adduced." It is safer in all cases, for the protection of the employer and for the sake of clear relations with the actual person who does the work, that there should be a definite contract.

When a salaried law reporter had been employed by the State of New York under a law that the copyright of the Reports should vest in the State, Judge Nelson for the Circuit Court of Appeals, in 1852, in Little _v._ Gould, held as valid an entry by the Secretary of State, "in trust for the State of New York," though no formal assignment had been made.

{Sidenote: Implied ownership}

In the absence of specific contract, or even in some cases of specific contract, many cross-questions may arise which the law does not and cannot determine in advance. In the case of a book "with illustrations by John Leech," where Leech retained the copyright of the designs, though the publishers owned the wood on which he had drawn them, an English court held to a distinction between the copyright and the right to the material, and directed the publishers to waive their lesser right and surrender the blocks, in view of the circumstances of the contract.

{Sidenote: Protection outside of copyright}

Most of the cases arising as to ownership are, in fact, issues outside of copyright law, as when in 1883 in Clemens _v._ Belford, in the U. S. Circuit Court in Illinois, Samuel L. Clemens vainly sought to restrain the use of his pen-name, "Mark Twain," in a collection of his uncopyrighted papers, Judge Blodgett holding that whoever has a right to publish has a right to state authorship, though an author can restrain the publication over his name of things he did not write. The same doctrine was upheld in 1910 in Ellis _v._ Hurst, where a publisher had printed with the real name of the author some non-copyright books which Edward S. Ellis had put forth under a pseudonym. Judge Greenbaum, in the N. Y. Supreme Court, held that the law insuring right of privacy does not prevent the use of a writer's name on a book undoubtedly of his writing.

In 1908 Mr. Clemens sought in vain to prevent the use by others of his pseudonym, "Mark Twain," by incorporating a company with this name, planning thus to secure the exclusive use of the name for this corporation and practically obtaining a continuing trade-mark protection for it under this device. But that an author may protect a _nom de plume_ of settled use independent of copyright or trade-mark was held in Landa v. Greenberg in 1908, in Chancery Division.

{Sidenote: Work in cyclopaedias}

When, as in the case of a cyclopaedia, many persons are employed at the offices of an employer, using his materials and facilities, and especially if on salary, the courts would undoubtedly uphold his full proprietorship in their work. Where outside persons contribute special articles, the presumption would probably be that the ownership of the copyright, for that special publication, vested in the employer, but that neither he, without the author's consent, nor the author, without his consent, could publish the article in other competing shape. In Bullen _v._ Aflalo, the House of Lords, in 1903, reversing the lower courts, protected the proprietors of an encyclopaedia who had purchased articles from authors, against reprints of the material elsewhere, by the authors themselves, on the ground "that the right to obtain copyright was intended to pass to the publisher, otherwise he would get nothing from his bargain; and unless the publisher and proprietor of the encyclopaedia stood in the shoes of the actual writer and was the proprietor of the copyright, he would have nothing for his money, because the articles might be published by others and he would have no remedy, not having the copyright."

{Sidenote: Association of author's name}

The right of a contributor to have his name associated with his work in the case of an encyclopaedia, at issue in Basil Jones _v._ American Law Book Co., where the individual writer's name was replaced by that of a distinguished jurist, though upheld in 1905 by Judge McCall in the N. Y. Supreme Court, was denied in the reversal of this decision in 1908 by the Appellate Division through Judge Houghton.

{Sidenote: Added material and alteration}

Where a publisher had affixed additional material to a copyrighted book, the author was denied relief in Holloway _v._ Bradley, in 1886, by Judge Butler in the U. S. Circuit Court; but this decision would not hold where the added material was so placed as to give the false impression that it was written by the author of the copyrighted work. Thus in 1910, in Gilbert _v._ Workman, Sir W. S. Gilbert obtained an order in the Chancery Division through Justice Neville against the interpolation of a song into his copyrighted opera without his consent.

{Sidenote: Separate registration of contributions}

This would hold true to like extent in respect to alterations, which might be permissible when in the nature of proof-reading correction or editorial revision, but contrary to equity when they pervert, obscure, or otherwise misrepresent the author.

In respect to composite works, the new American code indicates (sec. 23) that there may be separate registration of contributions, inferentially in the person of "an individual author," as distinguished from the general entry for copyright of the composite work. This doubtless refers to the practice, for instance, of the entry in his own name of his specific work, by a novelist or other contributor to a periodical, in addition to the general entry of the number of the periodical of which it is a copyrightable component part. The only direct effect is to give to the specific author _prima facie_ evidence of ownership in his specific contribution, as distinguished from the right of the proprietor of the general copyright, and in some respects the clause is ambiguous and perhaps misleading, making it the more desirable that the relation of the individual author should be defined by contract. It is not really in conflict, however, with the principle that there cannot be two copyrights in the same work, as the evident distinction implied is that the proprietor of the general copyright holds the right for publication in the periodical and that the specific author reserves the right of publication in other form, which distinction is sufficiently provided for as a matter of contract and does not depend upon specific entry of the contribution. The wisest course may be for the proprietor of the periodical or other composite work to reassign his interest in the specific contribution, as was done by the proprietors of the _Smart Set_ as adjudicated in the case of Dam _v._ Kirke La Shelle Co., cited in the chapter on dramatic and musical copyright, and thus remove possible doubt as to ownership.

{Sidenote: Anonymous works}

There is no specific reference in the new American code as to anonymous or pseudonymous works, except as to duration of copyright. In practice, the Copyright Office assumes that the applicant for the entry of an anonymous or pseudonymous work is the qualified and legal author or proprietor, and any disputed question of fact would ultimately be decided by the courts.

{Sidenote: Joint authorship}

There may be joint authorship in a work of common design, in which case the joint authors will become owners in common of the undivided property; but mere alterations or work on specific parts could not justify claim to more than such alterations or parts. The copyright would naturally be entered in both names, but as one copyright; it was held in 1902, in Mifflin _v._ Dutton, by the U. S. Supreme Court, that "there cannot be duplicate copyrights of the same book in different names." If one of the joint authors and not the other should apply for entry, the Copyright Office would in practice probably record the copyright claim on the presumption that the author was acting in the common interest; but if two joint authors applied simultaneously and severally, the question of ownership would have to be settled by the courts.

{Sidenote: Corporate bodies}

A corporate body, even though not incorporated under statute, is considered an author in the case of its own proceedings or similar publications, and in 1903 Justice Holmes rendered the decision of the U. S. Supreme Court in the case of Bleistein _v._ Donaldson Lith. Co., though the court was divided on the subject, that a copyright taken in the name of the Courier Lithographing Company, which was only the trade name of the complainant, was valid.

{Sidenote: Posthumous works}

In the case of posthumous works, the person entitled to copyright would be the executor, administrator, or the heirs of the author, and the owner of an unpublished manuscript could probably enter and maintain copyright in the absence of other legal claimant.

{Sidenote: The Peary cases}

{Sidenote: Opposing decisions}

The first important case under the new American code, in September, 1909, dealt with the question who may obtain copyright. On the report of the discovery of the North Pole, the New York _Herald_ procured from Dr. Cook his account of his journey and copyrighted it on its publication in the _Herald_,--which copyright does not seem to have been questioned. Immediately thereafter came Commander Peary's account of his polar journey, for which the New York _Times_ had contracted with him before his departure in the previous year. The Peary report was published simultaneously by the New York _Times_ and the London _Times_, but the difference of five hours enabled the correspondents of the New York _Sun_ and _World_ to cable the report to their respective papers in time for publication at the same hour in America as in the New York _Times_. Anticipating this course, the New York _Times_ had taken the precaution to publish the report in pamphlet or "book" form some hours before newspaper publication, and to copyright this as a book. When an injunction was asked in the U. S. Circuit Court from Judge Hand, that judge granted the injunction, but on the required production of the contract in court, dissolved his injunction on the ground that the contract between Peary and the New York _Times_ gave to the _Times_ only the right to news publication and specifically reserved to Peary magazine and book rights. He inferred thus that the _Times_ had no right to copyright the news report as a book, and was not the agent of the author for that purpose. To the contrary, Judge Grosscup in Chicago, in an exactly similar case against the Chicago _Inter-Ocean_ and other Chicago papers, and with the contract before him, maintained the copyright by the _Times_. The two contradictory decisions have not so far been adjudicated in the higher courts. It will be observed that the question is not strictly one of copyright, but of contract, and that it is not denied that the news report, in the literary form given it by the author, was a proper subject of copyright, though the news of the discovery of the North Pole might not be copyrightable. Judge Hand perhaps erred in assuming that there could be separate copyright for news, magazine, or book publication, overlooking the fact that Peary had conferred on the _Times_ authority to protect the report sent to it by cable, while reserving to himself rights in magazine or book publication of his material, whether in the same or different form.

{Sidenote: Renewal rights}

In the renewal of copyright, the new American code follows the previous law in differentiating the persons entitled to renew the copyright. It provides (sec. 23) that in the case of a posthumous composite or corporate work originally copyrighted by the proprietor thereof or a work made for hire, the proprietor of such copyright shall be entitled to a renewal; but in other cases, including a separately registered contribution by an individual to a composite work, the author or the widow, widower or children, or, if such be not living, the author's executors or next of kin shall be entitled to a renewal. This means that there can be no renewal by an assignee proprietor, and that in the absence of natural heirs of a personal author, no person is entitled to a renewal of his copyright. The new law has been specifically construed to this effect by the Attorney-General in his opinion of February 3, 1910. It should be noted that the word "administrators," included in the provision as to original application (sec. 8), is omitted from the provision as to renewal (sec. 23) including renewal of existing copyrights (sec. 24), indicating that while an author may make bequest of copyright for the renewal term, which right may then be claimed by his executor, the right to renew lapses when he makes no will and has no next of kin to inherit the right of renewal.

{Sidenote: Assignments}

Specific provision as to the method and record of the transfer of copyrights by assignments are contained in the following provisions of the code of 1909:

"(Sec. 42.) That copyright secured under this or previous Acts of the United States may be assigned, granted, or mortgaged by an instrument in writing signed by the proprietor of the copyright, or may be bequeathed by will.

"(Sec. 43.) That every assignment of copyright executed in a foreign country shall be acknowledged by the assignor before a consular officer or secretary of legation of the United States authorized by law to administer oaths or perform notarial acts. The certificate of such acknowledgment under the hand and official seal of such consular officer or secretary of legation shall be _prima facie_ evidence of the execution of the instrument.

{Sidenote: Assignment record}

"(Sec. 44.) That every assignment of copyright shall be recorded in the copyright office within three calendar months after its execution in the United States or within six calendar months after its execution without the limits of the United States, in default of which it shall be void as against any subsequent purchaser or mortgagee for a valuable consideration, without notice, whose assignment has been duly recorded.

"(Sec. 45.) That the register of copyrights shall, upon payment of the prescribed fee, record such assignment, and shall return it to the sender with a certificate of record attached under seal of the copyright office, and upon the payment of the fee prescribed by this Act he shall furnish to any person requesting the same a certified copy thereof under the said seal.

{Sidenote: Substitution of name}

"(Sec. 46). That when an assignment of the copyright in a specified book or other work has been recorded the assignee may substitute his name for that of the assignor in the statutory notice of copyright prescribed by this Act."

It should be noted that this last provision, authorizing the substitution of a name, is applicable only to the general copyright in a work, and not to a divided right; otherwise there would seem to be more than one copyright in the same work. The Copyright Office will, however, record assignments of specific or divided rights without reference to this power of substitution. Further assignment from one assignee to another is permissible to any extent, and in cases of repeated assignment of a general copyright there may be further substitution of names.

{Sidenote: Witnesses}

There is no specific requirement as to the witnessing of assignments, which would therefore follow the usual principles of law. This was, however, an important question in England, and under the early English statute the courts held that assignments must be in writing, attested by two witnesses; the later statute of Victoria modified the language, and the new English code requires assignment in writing signed by the owner or his authorized agent, without specifying witnesses. But assignment of common law rights (as in an unpublished manuscript) may doubtless be by word of mouth.

{Sidenote: "Outrights" and renewal}

Where an author sells his entire rights "outright," he cannot transfer the right to take out renewal, but he may directly or by inference bind himself to apply for such renewal in the interest of the new proprietor. Under such a contract, this proprietor could probably require him by equity proceedings to take this step. Such a contract, however, would not bar the author from his right to renewal under the copyright law and through the Copyright Office, although it is possible that the courts might enjoin an author from renewal or assignment of a renewed copyright in the interest of another than the original assignee. It should be noted that in the case of composite, corporate or like impersonal works, copyrighted under the new code, renewal is not restricted to the _original_ proprietor, though by analogy this should be the practice; but that in the case of renewal of copyrights existing before July 1, 1909, and in extension of the present renewal terms, the use of the phrase "such proprietor," referring back to "the original proprietor," does make such limitation.

{Sidenote: Proof of proprietorship}

Where the copyright proprietor of record is not the author, the courts may require him to prove his rights, in default of which the copyright certificate will be adjudged null and void, as was done in 1909 by the Circuit Court of Appeals both in Bosselman _v._ Richardson, where a son copyrighted paintings by his father and failed to prove that they had not before been published, and in Saake _v._ Lederer, where the court canceled the copyright of the play "Old Heidelberg" because Lederer had obtained from the German author only a license to perform and not a right to copyright.

{Sidenote: Foreign citizens}

As to copyright by others than citizens of the country, the law of 1909 provides (sec. 8) "that the copyright secured by this Act shall extend to the work of an author or proprietor who is a citizen or subject of a foreign state or nation, only:

"(a) When an alien author or proprietor shall be domiciled within the United States at the time of the first publication of his work; or

"(b) When the foreign state or nation of which such author or proprietor is a citizen or subject grants, either by treaty, convention, agreement, or law, to citizens of the United States the benefit of copyright on substantially the same basis as to its own citizens, or copyright protection substantially equal to the protection secured to such foreign author under this Act, or by treaty; or when such foreign state or nation is a party to an international agreement which provides for reciprocity in the granting of copyright, by the terms of which agreement the United States may, at its pleasure, become a party thereto.

"The existence of the reciprocal conditions aforesaid shall be determined by the President of the United States, by proclamation made from time to time, as the purposes of this Act may require."

{Sidenote: Earlier provisions}

The Revised Statutes formerly extended copyright to "a citizen of the United States or _resident therein_ or his widow or children," and the act of 1891 provided for a _quasi_ international copyright on a basis similar to that in subsection (b), cited above, of the law of 1909, _i. e._ on a basis of reciprocity. The new American code practically adopts the features both of the Revised Statutes and the act of 1891, though with verbal and substantial differences. The word "domiciled" is new in the law and has yet to be construed in a copyright case, but it is presumably the equivalent of "resident." The new Rules and Regulations of the Copyright Office use the phrase "(2) a resident alien domiciled in the United States at the time of the first publication of his work."

{Sidenote: Residence}

A resident, under the American decisions, is a person who intends to reside permanently in this country. It is decided by the intention of the resident. A person who is residing here without intention of permanence probably cannot maintain copyright under this clause. For English copyright, on the contrary, a person temporarily residing in His Majesty's dominions has been considered a resident. "The United States" would doubtless be construed to include territories and dependencies, as specific jurisdiction is given (sec. 34) to stated courts in Alaska, Hawaii, the Philippine Islands and Porto Rico, in addition to the general decisions of the U. S. Supreme Court.

Under the statute of Anne the English courts differed persistently on the question whether a non-resident foreigner could obtain British copyright by first publication within the British dominions, until in 1854, in the ultimate case of Jefferys _v._ Boosey, the House of Lords, after consulting the judges, of whom six denied and four sustained the contention, decided unanimously that a non-resident foreigner could not acquire copyright by first publication. Under the law of 1842, the question was again raised, in view of the variation of the language from that in the statute of Anne; in 1868, in the case of Routledge _v._ Low, in which an American author claimed copyright for his work first published in London while he resided for a few days in Canada, the House of Lords held that a foreigner might thus obtain copyright by temporary residence within the British dominions and indicated, but did not decide, that a foreigner could obtain copyright by first publication, even if not temporarily resident within the British dominions. After the passage of the "international copyright amendment" in 1891, the American law authorities consulted with the law officers of the Crown, who rendered a decision that foreign authors were entitled to British copyright on the sole condition of first publication, and on this decision the President based his proclamation of reciprocal relations with Great Britain. The new British measure retains first publication within the included parts of the Empire as the essential condition, except in unpublished works, unless otherwise provided under international copyright, though the Crown may withdraw this privilege from foreigners whose countries do not assure reciprocity.

{Sidenote: Intending citizens}

The provision of subsection (a) is chiefly useful, it would seem, to protect intending citizens who have applied for naturalization papers and incidentally renounced their previous allegiance to another power and thus put themselves beyond the pale of the international conventions.

{Sidenote: Time of first publication}

"First publication" is not limited in terms to the United States, and the "alien author or proprietor," provided he makes application under this clause and is not a citizen of a country with which the United States has a copyright convention, must therefore be domiciled here, it would seem, at the time of first publication, in whatever country that may be.

{Sidenote: Non-qualified authors cannot transfer}

It has twice been decided, both prior to and since the "international copyright amendment" of 1891, that a foreign author not qualified to secure a copyright cannot indirectly obtain one by assignment to an American or other proprietor. In 1890 J. M. Barrie assigned to J. W. Lovell, and he to the U. S. Book Company, his American rights in "The little minister," and after the act of 1891 the latter endeavored to restrain a dramatization of the story. Judge Jenkins held with the lower court that the foreign author could transfer only, prior to the act, the right to publish from advance sheets and not the right to copyright. In the case of Bong _v._ Campbell Art Co., in which it was sought to protect under the act of 1891 a work by a Peruvian painter, Hernandez, whose country had no international relations with the United States, through transfer to a German proprietor, whose country had reciprocal relations, it was held in 1909 by the U. S. Supreme Court, through Justice McKenna, that an author who is a citizen of a country with which the United States has no copyright relations cannot indirectly obtain American copyright by making a citizen of a country with which the United States has copyright relations the proprietor of his work. A proprietor has been construed by the courts to mean merely an assignee of a qualified author. It is evident, therefore, despite the ambiguous phrasing of the statute, that an assignee proprietor, though domiciled in the United States at the time of first publication of a work, could not obtain copyright unless the author were so domiciled, for the contrary ruling would nullify the general purport of the law by permitting an assignee to acquire rights which the non-qualified author could not secure. The evident construction of the word "proprietor" in this clause is as proprietor of an impersonal work and not an assignee proprietor. The Rules and Regulations of the Copyright Office, construing the code of 1909, say specifically (2): "If the author of the work should be a person who could not himself claim the benefit of the copyright act, the proprietor cannot claim it."

{Sidenote: Foreign ownership}

But it seems that a foreigner may enter copyright in the work of a citizen or resident author--it being foreign authorship, not ownership, which the law refuses to protect, though this point has not been judicially determined. Under the provision (sec. 62) of the new American code giving copyright to an employer as author "in the case of works made for hire," it would seem that a person entitled to make copyright entry might, as an employer, obtain copyright on the work of an alien employee not domiciled here and not otherwise entitled to enter copyright; but it is probable that this construction would not extend to a separate or separable work, as this would be contrary to the principles adjudicated as above cited.

The complicated question of the ownership and the right to secure copyright in translations from foreign works or into foreign languages, under this international copyright provision, is covered under translation in the preceding chapter on subject-matter of copyright.

{Sidenote: Proclaimed countries}

Under the provisions of the international copyright clause of 1891 Presidential proclamations have designated as countries with which the United States has copyright relations (July 1, 1891) Belgium, France, Great Britain and her possessions, Switzerland; (April 15, 1892) Germany; (October 31, 1892) Italy; (May 8, 1893) Denmark; (July 20, 1893) Portugal; (July 10, 1895) Spain; (February 27, 1896) Mexico; (May 25, 1896) Chile; (October 19, 1899) Costa Rica; (November 20, 1899) Holland and possessions; (November 17, 1903) Cuba; (January 13, 1904) China--this treaty of October 8, 1903, protecting for ten years books, maps, prints or engravings "especially prepared for the use and education of the Chinese people," or "translation into Chinese of any book," but leaving to Chinese subjects liberty to make "original translations into Chinese"; (July 1, 1905) Norway; (May 17, 1906) Japan--this treaty of November 10, 1905, also excepting translations, and (August 11, 1908) additionally protecting Japanese relations in China and Korea; (September 20, 1907) Austria, not including Hungary; and (April 9, 1908) under the Pan American convention signed in Mexico City, January 27, 1902, effective from July 1, 1908, Guatemala, Salvador, Costa Rica, Honduras and Nicaragua.

{Sidenote: Under act of 1909}

Under the provisions of the act of 1909, the President of the United States issued a general proclamation, dated April 9, 1910, certifying anew to the existence of reciprocal relations with the above-mentioned countries, under the arrangements of the new act, as from its effective date July 1, 1909. This accepted such relations as continuous and uninterrupted, without the necessity of new treaties, with the effect that international copyrights before July 1, 1909, were under the arrangements of the act of 1891 and from and after that date under the arrangements of the code of 1909. Luxemburg was added by proclamation of June 29, 1910, and Sweden by that of May 26, 1911. Proclamations of December 8, 1910, as to Germany, and June 14, 1911, as to Belgium, Luxemburg and Norway, proclaimed reciprocal relations as to mechanical reproductions.

{Sidenote: Buenos Aires convention}

The ratification of the Buenos Aires convention by the U. S. Senate, February 16, 1911, has the effect of authorizing the President to proclaim reciprocal relations with other countries which are parties to that treaty, as each ratifies the convention.

{Sidenote: The new British code}

The new British measure specifies that "the author of a work shall be the first owner of the copyright," except where an engraving, photograph, or portrait is ordered for valuable consideration or where work is done in the course of employment. The owner may assign the copyright in writing, "either wholly or partially, and either generally or subject to limitations to any particular country, and either for the whole term of the copyright or for any part thereof, and may grant any interest in the right by license"; in case of partial assignment, the original owner and the assignee become respectively the owners of the residual and assigned portions of the copyright. But any assignment, except by will, becomes null and void twenty-five years after the death of the author when the entire rights revert to his heirs.

{Sidenote: Foreign practice}

In general the statutes of most of the copyright countries designate "authors" and their "assigns and heirs" as the persons who may obtain copyright. The Australian law of 1905 defines "author" to include "the personal representatives of an author." In certain countries the laws specifically mention as persons who may secure copyright "joint authors," "proprietors" in some countries and "publishers" in other countries of anonymous and pseudonymous, posthumous or unpublished works, periodicals and composite works, "corporate bodies," "translators," "editors, compilers or adapters" and "persons who give a commission for a portrait or photograph."

VIII

DURATION OF COPYRIGHT: TERM AND RENEWAL

{Sidenote: Historic precedent}

The duration of copyright was in the early printers' privileges for a short term, as for seven years, except in France, where copyrights were in perpetuity until the act of the National Assembly; in modern times the copyright term has been lengthened until a term extending through and beyond the life of the author has been adopted by thirty-seven countries, or more than half of those which have copyright laws, of which four assure perpetual copyright. The Constitution imposes only one limitation on the comprehensive rights of authors, in the provision that protection shall be "for limited times" only. This provision has made the discussion of perpetual copyright purely academic in this country. The new American code adopts the double term of twenty-eight and twenty-eight years, making fifty-six years in all, without reference to the life of the author.

{Sidenote: Previous American practice}

The American law previous to 1909 provided for a uniform term of twenty-eight years, dating from the time of recording the title, with a renewal of fourteen years, securable only by the author, or, if he be dead at the expiration of the term, by his widow or children. No other heirs or persons could renew. The new code differs in making the renewal period a second twenty-eight years and extending the right of renewal to the executors or next of kin and to the proprietors of composite or other impersonal works; but it still denies renewal to assignee proprietors of personal works.

{Sidenote: Term in code of 1909}

The American code of 1909 provides (sec. 23) "that the copyright secured by this Act shall endure for twenty-eight years from the date of first publication, whether the copyrighted work bears the author's true name or is published anonymously or under an assumed name," and makes provision also in the cases specified for renewal for a second period of twenty-eight years, provided that renewal application is registered in the Copyright Office "within one year prior to the expiration of the original term of copyright."

{Sidenote: Renewal}

The provisions as to renewal are in full as follows (sec. 23): "_Provided_, That in the case of any posthumous work or of any periodical, cyclopaedic, or other composite work upon which the copyright was originally secured by the proprietor thereof, or of any work copyrighted by a corporate body (otherwise than as assignee or licensee of the individual author) or by an employer for whom such work is made for hire, the proprietor of such copyright shall be entitled to a renewal and extension of the copyright in such work for the further term of twenty-eight years when application for such renewal and extension shall have been made to the copyright office and duly registered therein within one year prior to the expiration of the original term of copyright: _And provided further_, That in the case of any other copyrighted work, including a contribution by an individual author to a periodical or to a cyclopaedic or other composite work when such contribution has been separately registered, the author of such work, if still living, or the widow, widower or children of the author, if the author be not living, or if such author, widow, widower, or children be not living, then the author's executors, or in the absence of a will, his next of kin shall be entitled to a renewal and extension of the copyright in such work for a further term of twenty-eight years when application for such renewal and extension shall have been made to the copyright office and duly registered therein within one year prior to the expiration of the original term of copyright: _And provided further_, That in default of the registration of such application for renewal and extension, the copyright in any work shall determine at the expiration of twenty-eight years from first publication."

{Sidenote: Extension of subsisting copyrights}

The extension of copyrights subsisting July 1, 1909, is provided for as follows (sec. 24): "That the copyright subsisting in any work at the time when this Act goes into effect may, at the expiration of the term provided for under existing law, be renewed and extended by the author of such work if still living, or the widow, widower, or children of the author, if the author be not living, or if such author, widow, widower, or children be not living, then by the author's executors, or in the absence of a will, his next of kin, for a further period such that the entire term shall be equal to that secured by this Act, including the renewal period: _Provided, however_, That if the work be a composite work upon which copyright was originally secured by the proprietor thereof, then such proprietor shall be entitled to the privilege of renewal and extension granted under this section: _Provided_, That application for such renewal and extension shall be made to the copyright office and duly registered therein within one year prior to the expiration of the existing term."

{Sidenote: Assignee of unpublished manuscripts}

In holding with the Attorney-General that an assignee cannot obtain renewal, Judge Brown in the U. S. Circuit Court in Rhode Island, in White Smith _v._ Goff, in 1910, raised but did not decide the "difficult" question whether, if an author sells his unpublished manuscript with right to publish and copyright, the new owner as the original copyright proprietor may claim renewal, or whether the author might reclaim the right.

{Sidenote: Extension of subsisting renewals}

Under the provisions of the renewal clauses (sec. 24), not only may the original copyright term of a subsisting copyright be renewed for the longer term of twenty-eight years instead of fourteen years, but a subsisting copyright renewal may be extended from the added fourteen years to the full renewal term of twenty-eight years, and a separate application form for this latter class of cases is provided by the Copyright Office.

{Sidenote: Publishers' equities}

In the copyright conferences, it was pointed out by publishers that the right of the author to renewal, and the implied denial of that right to an assignee proprietor, placed at serious disadvantage a publisher who had made investment in plates of an author's works, and would be deprived of the use of his investment at the end of the original term in case the author preferred to make arrangements with another publisher for the renewal term. The Congressional Committee failed, however, to provide a remedy for this through the proposed Monroe-Smith amendment, requiring that in such case author and publisher should unite in the application for renewal. No contract on the part of an author can give a publisher the right to claim copyright renewal under the new code, although a contract to make claim for the renewal period and transfer the copyright for the renewal period to the publisher, might be enforced by the courts through a writ requiring the author to enter such claim and assign the renewed copyright in accordance with the contract. When a copyrighted work is sold "outright," it therefore does not include renewal of the copyright, and unless the author registers his renewal claim, the right to renewal lapses.

{Sidenote: Estoppel of renewal}

Where an author has sold "outright" all his right, title and interest in his work, it is possible that this may estop him from application for renewal or invalidate a renewal, but this question must be decided by the courts when a case arises. It is important that any contract between author and publisher should be clear and specific on this vexed question of rights for the renewal term. No provision is made for notification of renewal in the copyright notice, and therefore, after the expiration of the original term, information must be sought from the Copyright Office as to whether there has been renewal extension of the term. As it would be hazardous to omit the original copyright notice or to replace it by one giving the date of renewal, which might be construed to involve claim of a longer term and thus defeat itself, it may prove the wiser course to add to the official original notice, the unofficial notice "Copyright renewed, 19__."

{Sidenote: Life term and beyond}

The international copyright convention, as modified at the Berlin conference of 1908, adopted the term of life and fifty years,--previously in force in France and fourteen other countries,--subject to adoption by domestic legislation. A term of life and a specified number of years after the death of the author, preferably fifty years for personal works, and a term of fifty years for impersonal works, was advocated by the American Copyright leagues and other friends of copyright and was in the early drafts of the new copyright code.

It was pointed out that Emerson, Longfellow, Lowell, Whittier, Holmes and others outlived their earlier copyrights; that Edward Everett Hale, whose "Man without a country" did for this nation a patriotic service scarcely second to that of the great generals of the civil war, had no longer copyright in this work, although private soldiers, their relicts and descendants, were still paid pensions; and that many others of our foremost authors had been, or under the present system would be, deprived of their created property within their lifetime. The term advocated provides for the author and his children's children during the probable minority of the grandchildren, a period to which the entail of realty is limited by our laws. But the final decision of the Congressional Committees was for the simpler, though in other respects less satisfactory, period of twenty-eight years, as heretofore, with a renewal period of a second twenty-eight years, under the limitations above cited. No other countries, except Canada and Newfoundland, following our example, have this double or renewal term.

{Sidenote: Unpublished works}

As a lecture or other work intended for oral delivery or a dramatic or musical work or a work of art, an unpublished dramatic or musical work or a work of art not reproduced in copies for sale is copyrightable without reference to date of publication, it is not altogether certain whether the term extends from the date of registration or the date of first delivery, performance or exhibition, or whether the statutory law now protects such a work under common law as unpublished, pending publication and therefore for an indefinite period if not practically in perpetuity. The Copyright Office issues a certificate for twenty-eight years, but without reference to initial date, which would be presumably the date of the certificate. The Copyright Office will doubtless, under this precedent, issue renewal certificate for the second term of twenty-eight years.

{Sidenote: Publication as date of copyright}

As the new copyright code makes publication with notice the basis of copyright instead of entry and deposit, as formerly, the term of copyright now dates from publication, and "the date of publication" is specifically defined (sec. 62) as "the earliest date when copies of the first authorized edition were placed on sale, sold, or publicly distributed by the proprietor of the copyright or under his authority." Such date is included in the application for registry at the Copyright Office, and on the same day twenty-eight years or fifty-six years thereafter the copyright ends. A provision for terminating copyrights at the end of the calendar year of expiration was included in the early drafts of the code, but was not included in the law as enacted.

{Sidenote: Serial publication}

In the case of works published and copyrighted as serials, as a novel published in parts in a monthly magazine, the copyright runs technically from the first publication of each part; and at the end of the twenty-eight or fifty-six years, each part could be successively published at monthly intervals free from copyright. Practically, however, such a copyrighted serial could not be published complete until twenty-eight or fifty-six years from the publication of the last part. In usual practice a novel is printed in book form a month or two before its completion as a serial in a magazine, and the date of the copyright on the completed work would then terminate at the end of the twenty-eight or fifty-six years from publication in book form.

{Sidenote: Joint authorship}

The use of the date of publication as the beginning of the copyright term and the specification of twenty-eight years and twenty-eight years for its duration, obviates questions as to anonymous and pseudonymous works, composite works or works of joint authorship. The earlier drafts of the bill, providing for a term through and beyond life, made the lifetime of the last surviving author the basis for the term of copyright on works of joint authorship. This method was interestingly applied in the German courts, when it was held as to the opera "Carmen" that Bizet's music was out of copyright, but that the libretto was protected because one of its three joint authors was still living.

{Sidenote: Termination by forfeiture or laches}

A copyright is terminated _ipse facto_ by forfeiture as provided in the act, either because of failure to deposit copies after notice from the Copyright Office (sec. 13), or because of false affidavit of American manufacture (sec. 17). It may also be terminated by _laches_, that is, carelessness in protecting one's rights, as by omission of the notice, unless by accident or mistake, from particular copies (sec. 20).

{Sidenote: Abandonment}

A copyright may be terminated by voluntary abandonment or purposed dedication as well as by expiration, forfeiture or _laches_. Thus in 1854 Congress purchased for $10,000 the copyright of Sumner's new method of ascertaining a ship's position, dedicated the method to general public use, and extinguished the copyright. The Copyright Office has no authority to recognize annulments, but it has noted request for annulment when received on the registry. In 1910 the Oxford University Press, American Branch, formally notified the Treasury Department that they abandoned the copyright on Oxford Cyclopaedic Concordance copyrighted by them in 1903, and collectors of customs were accordingly authorized by circular letter of January 25, 1910, to permit importation "of any copies of the said work with the notice of the copyright obliterated, or a notice of the abandonment of the copyright plainly printed upon the same page with the notice of copyright and adjacent thereto." This last was a curious "boomerang" effect of the manufacturing clause as extended to binding in the act of 1909.

{Sidenote: In England}

In England the term of book copyright has been the life of the author and seven years after his death, or forty-two years from first publication, whichever the longer. The copyright in other articles has varied according to specific laws. The Copyright Commission of 1876 proposed, for all copyright articles as well as books, a term of life and thirty years after the author's death, according to the German precedent, or in case of anonymous and posthumous books and encyclopaedias, thirty years from the date of deposit in the British Museum, an anonymous author to have the right during the thirty years to obtain the full term by publishing an edition with his name. The English law contained a specific provision that in the case of articles in periodicals (but not in an encyclopaedia) the right to publish in separate form should revert to an author after twenty-eight years; the Commission proposed a term of three years, during which time also the author as well as the general owner may bring suit against piracy. The English committee appointed to make recommendations in respect to the adoption of the Berlin provisions of 1908 through domestic legislation, however, reported strongly in favor of a general term of life and fifty years; and this term has been adopted in the new code.

{Sidenote: The new British code}

This general term of "the life of the author and a period of fifty years after his death" holds "unless previously determined by first publication elsewhere." In joint authorship, copyright shall subsist during the life of the author who first dies and fifty years after or during the life of the author who dies last, whichever the longer. In posthumous works, copyright subsists for fifty years from first publication or performance, whichever the earlier. Anonymous and pseudonymous, and corporate works are not named in the act, and the term is presumably fifty years, unless in the former cases identity is disclosed. For photographs and mechanical music reproductions as such, the term is fifty years from the making of the original negative or the original plate. Existing copyrights are extended through the new period; but for the extended term the rights revert to the author, though an assignee may require continuance of the assignment or continue to publish on royalties, as determined by agreement or arbitration. Assignments, except for parts of collective works, terminate in twenty-five years, when rights revert to the heirs.

{Sidenote: Perpetual copyright}

The Crown has held an exclusive and perpetual right to license the printing of the Bible, Book of Common Prayer, ordnance surveys, and possibly the Acts of Parliament; and specified universities and colleges were assured perpetual copyright in works given or bequeathed to them unless given for a limited term, but the right lapsed into the usual copyright term unless the work were printed on their own presses and for their own benefit. Under the new code, "without prejudice to any rights or privileges of the Crown," any work prepared or published for His Majesty or any Government department has copyright for fifty years from first publication--the effect of which provision on Crown perpetual copyrights is not clearly evident. A saving clause protects the universities "in any right they already possess," inferentially limiting their future copyrights to the statutory term. After the death of the author of a literary, dramatic or musical work, on complaint of the withholding of the work from publication or performance, the Judicial Committee of the Privy Council may require the owner to grant a license to reproduce or perform the work in public under conditions determined by the Committee. After twenty-five years, or in the case of existing copyrights thirty years from the author's death, the work may be reproduced by any person on prescribed notice in writing of his intention and payment of ten per cent on the published price in accordance with regulations by the Board of Trade.

{Sidenote: Other countries}

{Sidenote: International standard term}

Perpetual copyright is granted by the laws of other countries, Mexico, Guatemala, Nicaragua and Venezuela, while in Montenegro, Egypt, Liberia, Honduras, the Dominican Republic, Paraguay and Uruguay, which give copyright protection without specific legislation under a crude civil or common law enforced by the courts, the term is indefinite. A copyright term extending eighty years beyond the death of the author is granted by Spain, Cuba, Colombia and Panama. The French precedent of fifty years after the author's death was followed by Belgium, Russia and the Scandinavian countries, Hungary, Portugal and some others, and was adopted by the Berlin convention as the international standard term; the German precedent of thirty years beyond death was followed by Austria, Switzerland and Japan, while the British precedent of seven years beyond death or forty-two years from publication, whichever the longer, was followed in many of the English colonies and in Siam. Italy has a curious term of life or at least forty years after publication, with a second period of forty years during which, though the exclusive rights lapse, the author enjoys a royalty of five per cent on publication price. Haiti has the curious term of the life of the author and twenty additional years for widow or children, or ten years for other heirs. In Holland fifty years or life, in Brazil fifty years from the preceding January 1st, and in Greece fifteen years are specified.

{Sidenote: Special categories}

In many countries there are special terms for special categories of works, as for anonymous, pseudonymous, and corporate works, translations, photographs and telegraphic dispatches--the latter for a stated number of hours.

FORMALITIES OF COPYRIGHT: PUBLICATION, NOTICE, REGISTRATION AND DEPOSIT

{Sidenote: General principles}

Copyright may inhere as a natural right, as under English common law before the statute of Anne, without record or formalities, but also without statutory protection; or formalities may be required only as a prerequisite to protection by actions at law; or formalities may be required to validate and secure the copyright. English formalities belong to the second class. American formalities are of the third class, and without them copyright does not exist.

{Sidenote: Previous American requirements}

The American copyright law of 1909 prescribes exactly the method of securing copyright, and makes clear the cases in which non-compliance invalidates copyright. Previous to 1909 copyright was secured by complying exactly with the statutory requirements of (1) the delivery to the Librarian of Congress on or before the day of publication, in this or any foreign country, of a printed (including typewritten) copy of title or description of the work, (2) the insertion in every copy published of the prescribed copyright notice, and (3) the deposit not later (under the law of 1891) than such day of publication (earlier law allowing ten days after publication) of two copies of the best edition of a book or other article, or a photograph of a work of art (as to date of deposit of which last the law was not explicit); and any failure to comply literally and exactly with these conditions forfeited the copyright.

{Sidenote: Present American basis}

The American code of 1909 substitutes an entirely different basis for securing copyright. Copyright now depends upon (1) publication with the notice of copyright, and (2) deposit of copies, these copies in the case of books and certain other works to be manufactured within the United States. The accidental omission of the copyright notice from "a particular copy or copies" does not invalidate the copyright though it may relieve an innocent trespasser from penalty as an infringer; but failure to deposit within a specified time, or false report as to manufacture, makes the copyright not valid.

{Sidenote: Provisions of 1909}

The general provisions as to formalities are as follows (sec. 9): "That any person entitled thereto by this Act may secure copyright for his work by publication thereof with the notice of copyright required by this Act; and such notice shall be affixed to each copy thereof published or offered for sale in the United States by authority of the copyright proprietor, except in the case of books seeking _ad interim_ protection under section twenty-one of this Act"; and (sec. 10): "That such person may obtain registration of his claim to copyright by complying with the provisions of this Act, including the deposit of copies, and upon such compliance the Register of Copyrights shall issue to him the certificate provided for in section fifty-five of this Act."

{Sidenote: Publication}

The definition in the act (sec. 62) of "the date of publication" as "the earliest date when copies of the first authorized edition were placed on sale, sold, or publicly distributed by the proprietor of the copyright or under his authority" defines publication, and the clause (sec. 9) requiring the copyright notice to be affixed to each copy "published or offered for sale in the United States by authority of the copyright proprietor" confirms the principle that the copyright proprietor cannot be held responsible, nor can copyright be voided because of copies "published," offered, sold or distributed without his authority. The Copyright Office Rules and Regulations (23) add to the definition of publication the parenthetical explanation: "(_i. e._, so that all persons who desire copies may obtain them without restriction or condition other than that imposed by the copyright law)." It is questionable, however, whether this explanation does not go beyond the letter of the law. In Stern _v._ Remick, in 1910, the U. S. Circuit Court protected the copyright of a song, though only one copy had been offered for sale and sold. Advance distribution to the trade or of review copies would not constitute publication. While the law does not prescribe first publication in this country, it is at least doubtful whether a book published in another country prior to publication here, unless protected by international copyright relations, has not fallen into the public domain and thus forfeited copyright protection here.

{Sidenote: Copyright notice}

The first step in securing copyright, being publication "with the notice of copyright" "affixed to each copy published or offered for sale in the United States by authority of the copyright proprietor," the method and form of this notice is of first importance. The act of 1909 provides (sec. 18): "That the notice of copyright required by section nine of this Act shall consist either of the word 'Copyright' or the abbreviation 'Copr.,' accompanied by the name of the copyright proprietor, and if the work be a printed literary, musical, or dramatic work, the notice shall include also the year in which the copyright was secured by publication. In the case, however, of copies of works specified in subsections (f) to (k), inclusive, of section five of this Act, the notice may consist of the letter C inclosed within a circle, thus: (C), accompanied by the initials, monogram, mark, or symbol of the copyright proprietor: _Provided_, That on some accessible portion of such copies or of the margin, back, permanent base, or pedestal, or of the substance on which such copies shall be mounted, his name shall appear. But in the case of works in which copyright is subsisting when this Act shall go into effect, the notice of copyright may be either in one of the forms prescribed herein or in one of those prescribed by the Act of June eighteenth, eighteen hundred and seventy-four."

{Sidenote: Previous statutory form}

Under the law of 1874, the prescribed notice was in the old form (Rev. Stat. 4962), "Entered according to Act of Congress, in the year ----, by A. B., in the office of the Librarian of Congress, at Washington," with the optional alternative of the form "Copyright, 18--, by A. B." Under the new code the latter form is preserved, with the alternative of the provision "Copr.," with date and name, but the longer form may be used on books copyrighted under the earlier acts, even if reprinted after the passage of the later act. Except for books previously copyrighted, the longer form is not now the legal notice, and its use would be dangerous, as it does not contain the specific word copyright, or its abbreviation, now made an obligatory part of the notice. While in Osgood v. Aloe in 1897, the omission of the name from the notice, though on the title-page, and in Record & Guide Co. _v._ Bromley in 1910, the omission of the date, though indicated by the date of the periodical in the line below, were held to void the copyright, such addition as the words "published by" has been held, as in Hills v. Hoover in 1905, a mere superfluity not voiding copyright.

{Sidenote: Exact phraseology required}

The exact phraseology and order of words must be followed, and it has been held that any inaccuracy in the name of the copyright proprietor, as in the English case of Low _v._ Routledge, by Vice-Chancellor Kindersley, in 1864, or in the date of the entry, as in the American case of Baker _v._ Taylor in 1848, when 1847 was put for 1846, makes the copyright invalid.

{Sidenote: Name}

The name in the copyright notice (C. O. Rule 24) must be the real name of a living person or of a firm or corporate body or the trade name in actual use, and may not be a pseudonym or pen-name or other make-believe. A copyright notice should not be in the name of one person for the benefit of another; the beneficiary's name should be the one printed. A publisher may take out a copyright for an author, however, in which case the publisher's name and not the author's name will be given, unless the publisher makes application as the agent of the author-claimant. The name in the copyright notice must correspond fully with the real name as given in the application, but an objection that N. Sarony instead of Napoleon Sarony was not the real name, was quashed in 1884, in Burrow-Giles Lith. Co. _v._ Sarony, by the U. S. Supreme Court.

{Sidenote: Date}

The date of copyright notice, being that of publication, should correspond with the imprint date on the original edition; but on later printings or editions, where the date of imprint is changed, the copyright notice would of course show the earlier date of the original edition. Thus a book first published in 1911 could not bear copyright notice of 1910 date, which would mean that copyright was registered before instead of after publication, which is not possible under the new law; nor should an edition of 1910 bear copyright notice of 1911, as the application and notice should state the actual year of publication; and the date of 1911 in imprint where the copyright notice is of 1910, would be correct only on a later edition, as above stated. A book may be printed, however, in a certain year and not published till a later year, in which case the copyright notice would be of later date than the imprint date; thus the Copyright Office registered in 1910, under the new law, a copyright on a work with the imprint of 1904, on assurance that though printed in 1904, the work was not actually published until 1910. Under the old law, where, as stated above, a copyright notice later than the actual copyright was disallowed as claiming protection beyond the copyright term, a later decision, in 1888, in Callaghan _v._ Myers, held, that where a copyright notice gave the year 1866, while the true date was 1867, there was no harm done to the public, because a year of the copyright, which really ended in 1895 instead of 1894, was given to the public, whereas in the previous case an additional year was claimed. Doubt was thrown upon this decision by Judge Wallace in Schumacher _v._ Wogram, also in 1888. In Snow _v._ Mast in 1895, the substitution for 1894 of the abbreviated '94, and in Stern _v._ Remick in 1910, the use of words or Roman numerals for Arabic, were upheld.

{Sidenote: Accidental omission}

An important safeguard, new in copyright law, is enacted in the provision (sec. 20): "That where the copyright proprietor has sought to comply with the provisions of this Act with respect to notice, the omission by accident or mistake of the prescribed notice from a particular copy or copies shall not invalidate the copyright or prevent recovery for infringement against any person who, after actual notice of the copyright, begins an undertaking to infringe it, but shall prevent the recovery of damages against an innocent infringer who has been misled by the omission of the notice; and in a suit for infringement no permanent injunction shall be had unless the copyright proprietor shall reimburse to the innocent infringer his reasonable outlay innocently incurred if the court, in its discretion, shall so direct."

{Sidenote: Place of notice}

It is further provided (sec. 19): "That the notice of copyright shall be applied, in the case of a book or other printed publication, upon its title-page or the page immediately following, or if a periodical either upon the title-page or upon the first page of text of each separate number or under the title heading, or if a musical work either upon its title-page or the first page of music: _Provided_, That one notice of copyright in each volume or in each number of a newspaper or periodical published shall suffice."

Although the code of 1909 relieves the copyright proprietor from permanent forfeiture in the case of an accidental omission of the copyright notice from certain copies (sec. 20), the statute is otherwise specific, and there seems to be no means of relief where the copyright notice is, however innocently, in the wrong place or in the wrong form. Thus in 1909, in Freeman _v._ Trade Register, the U. S. Circuit Court held that where the copyright notice of a periodical appeared on the editorial page, which was not the first page of text, the copyright was voided. The copyright notice can probably, however, be placed safely and preferably on the first page, being the title-page, of a specially copyrighted part of a book, as an introduction preceding a non-copyright work or an index or appended notes, or upon specific illustrations; and this is perhaps preferable in copyrighting editions with such features of works otherwise in the public domain. In the case of articles in a periodical or parts of a composite work separately copyrighted or registered, the copyright notice should appear on the same page as the title heading.

{Sidenote: One notice sufficient}

The proviso (sec. 19) that one notice of copyright in each volume or in each number of a periodical shall suffice is complementary to the provision (sec. 3) by which a copyright protects all the copyrightable component parts of the work copyrighted, and gives to the proprietor of a composite work or periodical all the rights he would have if each part were individually copyrighted. It means that there need be no repetition of the general copyright notice on different portions of a book or periodical. In West Pub. Co. _v._ Thompson Co., under the old law, Judge Ward, in the U. S. Circuit Court of Appeals in 1910, overruled the defense that the copyright was not valid because the copyright notice did not repeat the several copyright notices originally protecting the several parts of the compilation; and this view, that the general copyright notice protects all copyrighted and copyrightable parts, is now specifically embodied in the statute.

{Sidenote: Separate volumes}

{Sidenote: Different dates}

The proviso (sec. 61) "that only one registration at one fee shall be required in the case of several volumes of the same book deposited at the same time" indicates that one copyright entry suffices for several volumes simultaneously published, but each separate volume should contain the notice. Volumes published separately, not only in successive years but at successive dates within the year, should be separately registered, and if published separately in successive years, must each bear its copyright notice for the year of publication--this being the direct sequence from the provision that copyright runs from the specific date of publication and not from the year or date of registration. The Copyright Office will, however, under the law, register for one fee volumes or parts deposited at the same time, though published at various times. In the case of a book issued in successive parts, of which only the first part includes a title-page or title headings, the law is not specific; but it seems probable that, in default of copyright notice and registration for each part, the parts not bearing copyright notice might be legally reprinted, and that the safer course is to place the copyright notice on the first page of each part and register each part separately, in which case the completed work should have the date or dates of the year or years within which the several parts were published. There seem to be no objections, within the law or from court decisions, to coupling two dates in the same notice, in such cases as "Copyright, 1910, 1911, by A. B.," though there is no specific decision on this point. Under the previous law a book published in more than one volume or part, the portions not complete in themselves, was probably protected by copyright entry of the first part, all parts being of course ultimately deposited; but the change in the new code basing copyright on publication with notice, seems to change this rule of practice. In the case of Dwight _v._ Appleton, in 1840, it was held that as the statute did not expressly prescribe that the copyright notice should appear in successive volumes after the first, this was not necessary; but the application of this doubtful decision under the new code would be more than questionable.

{Sidenote: Notice part of initial step}

It may be emphasized that publication with notice is the first step in copyright under the new code, and that registration on deposit is the secondary and completing act, and therefore that no registry in the Copyright Office is necessary to authorize the printing of the copyright notice, as was formerly the case.

{Sidenote: Extraterritorial notice}

The requirement (sec. 9) that the notice of copyright "shall be affixed to each copy published or offered for sale in the United States by authority of the copyright proprietor" makes clear what was a subject of dispute under the old law. The courts, however, generally held that extraterritorial notice of copyright, _i. e._ on foreign editions, was impracticable and unnecessary; and this view is specifically adopted in the new code. In 1905, in Harper _v._ Donohue, it was held by Judge Sanborn, in the U. S. Circuit Court, that the omission of the American copyright notice from an English edition could not vitiate copyright here, especially in view of the prohibition in the law of the importation of foreign-made copies of copyright works. In 1908, in Merriam _v._ United Dictionary Co., it was held by the U. S. Supreme Court, through Justice Holmes, that even where the omission of the notice on a foreign-made edition was with the assent of the American copyright proprietor, there was no waiver of copyright in this country.

{Sidenote: Successive editions}

In the case of successive printings or editions of a copyrighted book, the original copyright entry must appear in every reprint of the first edition; and it would seem that this entry should also appear in every new edition newly copyrighted, as well as the new notice, so long as it is desired to protect the matter contained in the old edition. Judge Clifford, in the U. S. Circuit Court, in Lawrence _v._ Dana, in 1869, ruled this to be superfluous; but his decision is contrary to the rule that a proprietor may not claim through the copyright notice a longer term than the law permits, since a later date, referring only to new matter, but apparently comprehensive of the whole contents, might be voided under this rule. It is doubtful whether on a new edition with old and new matter one copyright notice with two dates is safe, and the wiser course is to give both the earlier copyright notice and the later notice in proper sequence. In the case of new printings of works published and copyrighted prior to July 1, 1909, no new notice or application is required unless there is added material to be additionally protected and constituting to that extent a new work, in which case a new application and the deposit of two copies is necessary.

{Sidenote: False copyright notice}

Provision is specifically made against false notice of copyright by the enactment (sec. 29): "That any person who, with fraudulent intent, shall insert or impress any notice of copyright required by this Act, or words of the same purport, in or upon any uncopyrighted article, or with fraudulent intent shall remove or alter the copyright notice upon any article duly copyrighted shall be guilty of a misdemeanor, punishable by a fine of not less than one hundred dollars and not more than one thousand dollars. Any person who shall knowingly issue or sell any article bearing a notice of United States copyright which has not been copyrighted in this country, or who shall knowingly import any article bearing such notice or words of the same purport, which has not been copyrighted in this country, shall be liable to a fine of one hundred dollars," and the importation of any article bearing a notice of copyright when no American copyright exists is absolutely prohibited (sec. 30).

{Sidenote: Ad interim protection}

It should be noted that the copyright notice is not required on books published abroad in the English language before publication in this country, entered for _ad interim_ copyright, and therefore that within sixty days after the publication abroad of a book in the English language, such book may be protected by American registration, though containing no notice of copyright; and within this period inquiry at the Copyright Office is necessary to determine the status of the book.

{Sidenote: Substitution of name}

It is provided (sec. 46): "That when an assignment of the copyright in a specified book or other work has been recorded the assignee may substitute his name for that of the assignor in the statutory notice of copyright prescribed by this Act." This applies only where the entire copyright has been assigned and the assignment duly recorded in the Copyright Office as provided by law, and does not permit a change of name in the copyright notice under any other circumstances, as partial assignment. Substitution without authority of law voids copyright, as was held in Record & Guide Co. _v._ Bromley in 1910, where another trade name of the copyright claimant was substituted for the original trade name.

{Sidenote: Registration}

The method of registration, or rather of application therefor, is not specified in the law, for the reason that under the code of 1909 deposit succeeding publication is made the act completing the securing of copyright, and registration is incidental thereto instead of the first requisite. Under the old law it was decided in the U. S. Circuit Court through Judge Colt, in Gottsberger _v._ Estes, that publication before deposit of copies voided the copyright.

{Sidenote: Rules and regulations}

The act provides (sec. 53): "That, subject to the approval of the Librarian of Congress, the Register of Copyrights shall be authorized to make rules and regulations for the registration of claims to copyright as provided by this Act," and (sec. 54) "whenever deposit has been made in the Copyright Office of a copy of any work under the provisions of this Act, he shall make entry thereof."

{Sidenote: Application}

It is provided (sec. 5): "That the application for registration shall specify to which of the [stated] classes the work in which copyright is claimed belongs," but it is also provided "nor shall any error in classification invalidate or impair the copyright protection." In Green _v._ Luby, in 1909, the U. S. Circuit Court protected a vaudeville sketch, though classified as a dramatic instead of a dramatico-musical copyright, against infringement by a mimic performance.

{Sidenote: Certificate}

It is further provided (sec. 55): "That in the case of each entry the person recorded as the claimant of the copyright shall be entitled to a certificate of registration under seal of the Copyright Office, to contain his name and address, the title of the work upon which copyright is claimed, the date of the deposit of the copies of such work, and such marks as to class designation and entry number as shall fully identify the entry. In the case of a book the certificate shall also state the receipt of the affidavit as provided by section sixteen of this Act, the date of the completion of the printing, or the date of the publication of the book, as stated in the said affidavit. The Register of Copyrights shall prepare a printed form for the said certificate, to be filled out in each case as above provided for, which certificate, sealed with the seal of the Copyright Office, shall, upon payment of the prescribed fee, be given to any person making application for the same, and the said certificate shall be admitted in any court as _prima facie_ evidence of the facts stated therein. In addition to such certificate the Register of Copyrights shall furnish, upon request, without additional fee, a receipt for the copies of the work deposited to complete the registration."

{Sidenote: Application requirements}

The application is in general in simple form, and care should be taken in filling out the card that the space at the top intended for use by the Copyright Office should be left blank. The application must be signed with the name and address of the copyright claimant, who may be the author or his representative, as where his publisher is taking out the copyright. In the case of works made for hire, the employer may make application as author. The name of the author should be given on the line provided for that purpose, even though the name of the author as claimant is also given above; but in the case of anonymous or pseudonymous works, the name of the author is not required. The title should be given exactly as on the title-page of the book or on the work, and the other particulars called for in the application should be exactly as indicated by the work itself. The day of publication must be exactly stated, and the application cannot be made, therefore, until _after_ publication. Provision is also made on the card for the name and address of the person to whom the certificate of registration is to be sent and of the remitter of the fee, and in the case of books, the application must be accompanied by the affidavit made either on the reverse of the application card or on the separate card also provided. In applications, as for foreign or _ad interim_ copyright, where the nationality of the author should be stated, information as to citizenship, not race, is required. A person naturalized in the United States is defined as an American. A foreign author claiming copyright because of residence, must state that he is a "permanent resident" of the United States (C. O. Rule 29).

{Sidenote: Illustrations}

The illustrations of a book may be separately registered, and if by lithographic or photo-engraving process must also have affidavit of manufacture in this country.

Maps and charts are classed with works of art, and the formalities in respect to these, as well as in respect to dramatic and musical compositions, are treated specifically in the chapters on those specific subjects.

{Sidenote: Periodicals}

In respect to periodicals, application should be made as for books, but no affidavit is required; separate registration is necessary for each number published, with notice of copyright, and can be made only after publication. It is not possible to register the title of the periodical in advance of publication. (C. O. Rule 36.) Two deposit copies of periodicals are required; but a contribution to a periodical separately registered requires the deposit of only one copy of the periodical. The entire copy should be sent, as a mere clipping does not comply with the statute. (C. O. Rule 37.) The date of publication of a periodical is not necessarily the printed date of issue, and the actual day of publication should be stated in the application, whether for the registration of the periodical itself or a contribution to it.

{Sidenote: Application cards}

The Copyright Office has prepared blank forms in library card shape, which are furnished applicants free of charge, for the several classes of applications mentioned in the law, the cards being in _pink_, except as hereafter stated, lettered and numbered as follows: (A1) book by citizen or resident of the United States; (A1. New ed.) new edition of book by citizen or resident of the United States; (A1 for.) book by citizen or resident of a foreign country, but manufactured in the United States; (A2) edition printed in the United States of book originally published abroad in the English language, all these being double cards including affidavit of American manufacture--supplemented by _blue_ cards providing with specific instructions, (A1) for separate affidavit of American manufacture from type set or plates made in the United States, and (A2) for lithographic or photo-engraving process within the United States; (A3) book by foreign author in foreign language; (A4) _ad interim_ copyright--book published abroad in the English language; (A5) contribution to a newspaper or periodical; (B1) periodical,--for registration of single issue; (B2) periodical,--general application and deposit, supplemented by a _white_ blank for depositing single subsequent issues; (C) lecture, sermon, or address prepared for oral delivery; (D1) published dramatic composition; (D2) dramatic composition not reproduced for sale; (D3) dramatico-musical composition; (E1) published musical composition; (E2) musical composition not reproduced for sale--these supplemented by a _blue_ card (_U_), notice of use on mechanical instruments; (F) published map; (G) work of art (painting, drawing, or sculpture), or model or design for a work of art; (H) reproduction of a work of art; (I) drawing or plastic work of a scientific or technical character; (J1) photograph published for sale; (J2) photograph not reproduced for sale; (K) print or pictorial illustration; (R1) renewal of copyright subsisting in any work; (R2) extension of a renewal copyright subsisting in any work. Thus an applicant for copyright on an American book should send for card (A1), on which he may enter his application and also include affidavit as to American type setting, printing, and binding; if he wishes the affidavit to be separately made he should obtain also the special _blue_ card (_A_1), or if lithographic or photo-engraving is used he should obtain also the special _blue_ card (_A_2). A dramatic applicant should send for card (D1) or card (D3), respectively, for the entry of a dramatic or dramatico-musical composition; or for (D2) if he desires to copyright without reproducing for sale. The applicant for a musical composition, as distinguished from a dramatico-musical work, should send for card (E1) or (E2) respectively. The art applicant should send for card (G) for an original work of art, or card (H) for a reproduction, or for a photograph card (J1) or card (J2) respectively.

{Sidenote: Certificate cards}

Similar certificate cards, also of library size, uniformly _white_, are provided for the several classes of registration, correspondingly lettered and numbered, except in a few cases where one certificate form serves for more than one class or subdivision, with the addition of a general form (Z) to cover anything unprovided for in the other certificate forms. The certificate bears on one side the uniform statement of the deposit of two copies or one copy of the article named herein, and of registration for the first or renewal term, with the name of the claimant (printed in the case of a few of the publishers making most applications), and on the other side the specification (following the wording of the application and the deposit copy) of the title or description, date of publication, receipt of affidavit (where required), receipt of copies and entry number by class, together with the seal of the Copyright Office.

{Sidenote: Fees}

This certificate is sent without charge other than the fees directly provided for in the law (sec. 61), viz., "for the registration of any work subject to copyright, deposited under provisions of this Act, one dollar, which sum is to include a certificate of registration under seal: _Provided_, That in the case of photographs the fee shall be fifty cents where a certificate is not demanded. For every additional certificate of registration made, fifty cents.... For recording the extension or renewal of copyright provided for in sections twenty-three and twenty-four of this Act, fifty cents." The law no longer contemplates record before publication, and it is unnecessary and undesirable to send application or money previous to sending of deposit copies. In fact, as the certificate must show date of publication, publication _cannot_ be anticipated, and money sent in advance, for individual registrations, is only an embarrassment to the Copyright Office. The Office will, however, receive advance deposits from publishers of periodicals or other publishers making frequent registrations, against which each registration will be charged. Fees should be sent by money order, or at the remitter's risk, in currency (but not in stamps). Bank drafts and certified checks are accepted in practice, though the Register of Copyrights cannot legally receive checks except at his personal risk and therefore from persons known to him as in frequent relation with the Copyright Office. Postage must be prepaid on the signed application, as there is no provision for free transmission through the mails, such as applies to deposit copies. In practice the application with remittance and the deposit copies should be simultaneously sent immediately after publication.

{Sidenote: Deposit}

The law provides that deposit copies shall be sent _promptly_ after publication, and that _two complete_ copies of the _best_ edition then published (or one copy in case of a contribution to a periodical or for identification of a work not reproduced for sale) shall be deposited; and if a work is published with notice of copyright, and copies are not promptly deposited, the copyright is voided and the proprietor becomes subject to penalty three months (or in case of outlying possessions or foreign countries six months) after formal demand by the Register of Copyrights for deposit copies. The word "promptly" is indefinite and has been vaguely construed to mean "without unnecessary delay," but this does not mean the very day of publication (C. O. Rule 22). The status of undeposited works published with copyright notice and not formally demanded by the Register of Copyrights, is also not defined by the law. In such case the copyright has not been perfected by the completing act, and it would be impracticable to proceed against an infringer, and the proprietor might be liable to penalty for false notice of copyright. In the event of such a case arising, through carelessness or otherwise, the courts would have to decide the question by definition of the word "promptly" and an interpretation of the implication that copyright is voided, meaning that the right to obtain copyright lapses, if the process is not completed without undue delay.

{Sidenote: Fragment not depositable}

The deposit copy must be the complete work; a fragment is not a work, and a part of a work cannot be copyrighted, especially as this would nullify the manufacturing clause, as set forth in the opinion of the Attorney-General, February 9, 1910.

{Sidenote: Typewriting publication and deposit}

A work may be published and deposited in typewriting copies, as set forth in the opinion of the Attorney-General of May 2, 1910, but this will not operate to avoid the manufacturing clause when the work is published in print.

{Sidenote: Legal provisions}

The completion of the copyright by deposit of copies is covered by the provision (sec. 12): "That after copyright has been secured by publication of the work with the notice of copyright as provided in section nine of this Act, there shall be promptly deposited in the Copyright Office or in the mail addressed to the Register of Copyrights, Washington, District of Columbia, two complete copies of the best edition thereof then published, which copies, if the work be a book or periodical, shall have been produced in accordance with the manufacturing provisions specified in section fifteen of this Act; or if such work be a contribution to a periodical, for which contribution special registration is requested, one copy of the issue or issues containing such contribution; or if the work is not reproduced in copies for sale, there shall be deposited the copy, print, photograph, or other identifying reproduction provided by section eleven of this Act, such copies or copy, print, photograph, or other reproduction to be accompanied in each case by a claim of copyright. No action or proceeding shall be maintained for infringement of copyright in any work until the provisions of this Act with respect to the deposit of copies and registration of such work shall have been complied with."

{Sidenote: Voiding by failure to deposit}

In case of failure to deposit, the law of 1909 provides for penalties and finally voiding of the copyright, as follows (sec. 13): "That should the copies called for by section twelve of this Act not be promptly deposited as herein provided, the Register of Copyrights may at any time after the publication of the work, upon actual notice, require the proprietor of the copyright to deposit them, and after the said demand shall have been made, in default of the deposit copies of the work within three months from any part of the United States, except an outlying territorial possession of the United States, or within six months from any outlying territorial possession of the United States, or from any foreign country, the proprietor of the copyright shall be liable to a fine of one hundred dollars and to pay to the Library of Congress twice the amount of the retail price of the best edition of the work, and the copyright shall become void."

{Sidenote: Forfeiture by false affidavit}

In the case of a printed book or periodical or of a lithograph or photo-engraving, the copies deposited must be manufactured in America, as set forth in the manufacturing provision (sec. 15) as verified in the case of a book by affidavit (sec. 16) separately treated hereafter, and the book copyright is forfeited (sec. 17) in the event of false affidavit. Thus failure to deposit, and, in the case of books, false affidavit as to American manufacture, are the two lapses of formalities which work forfeiture of copyright.

{Sidenote: Works not reproduced}

In the case of works not reproduced for sale, copyright may be secured under the provision (sec. 11): "That copyright may also be had of the works of an author of which copies are not reproduced for sale, by the deposit, with claim of copyright, of one complete copy of such work if it be a lecture or similar production or a dramatic or musical composition; of a photographic print if the work be a photograph; of a photograph or other identifying reproduction thereof if it be a work of art or a plastic work or drawing. But the privilege of registration of copyright secured hereunder shall not exempt the copyright proprietor from the deposit copies under sections twelve and thirteen of this Act where the work is later reproduced in copies for sale." The entire work should in each case be deposited (C. O. Rule 18) and not a mere outline, epitome or scenario; and the copy should be in convenient form, clean and legible, with the leaves securely fastened together, and should bear the title of the work exactly as given in the application.

{Sidenote: Second registration}

It should be noted that in this class of copyright, which is a common law copyright fortified by statutory protection, an ideal example of copyright law, double registration is required in case the unpublished copyrighted work is published, requiring one application fee and deposit of one identifying copy for the unpublished work and a second application fee and deposit of two copies promptly after publication.

{Sidenote: Free transportation in mail}

It should be noted that the deposit copies may be deposited either in the Copyright Office or "in the mail addressed to the register of copyrights," and it is provided (sec. 14): "That the postmaster to whom are delivered the articles deposited as provided in sections eleven and twelve of this Act shall, if requested, give a receipt therefor and shall mail them to their destination without cost to the copyright claimant." Franking labels are not required and are no longer issued by the Copyright Office. Deposit copies, and all mail matter, should be addressed to the "Register of Copyrights, Library of Congress, Washington, D. C.," and not to any person by name.

{Sidenote: Loss in mail}

Thus even if the deposit copies should not reach Washington, as in case they were burned in the mail, the copyright proprietor can validate his claim by production of the postmaster's receipt in lieu of deposit copies.

{Sidenote: Foreign works}

In respect to foreign works, it should be noted that "the original text of a work of foreign origin in a language or languages other than English," may be formally copyrighted and fully protected by registration under the same formalities as domestic works except that the deposit copies need not be manufactured within the United States, thus giving the author the exclusive right of translation. Copies published for use in America must of course bear the copyright notice. A translation into English from such text cannot be copyrighted unless the deposit copies of the English translation are manufactured within the United States; and this holds true also in respect to translations into a language other than English, as it is only "the original text" which can be copyrighted without American manufacture.

{Sidenote: Ad interim deposit}

In respect to books published abroad in the English language, _ad interim_ protection is assured by the provision (sec. 21): "That in the case of a book published abroad in the English language before publication in this country, the deposit in the Copyright Office, not later than thirty days after its publication abroad, of one complete copy of the foreign edition, with a request for the reservation of the copyright and a statement of the name and nationality of the author and of the copyright proprietor and of the date of publication of the said book, shall secure to the author or proprietor an _ad interim_ copyright, which shall have all the force and effect given to copyright by this Act, and shall endure until the expiration of thirty days after such deposit in the Copyright Office."

{Sidenote: Completion of ad interim copyright}

On such works the provisional copyright is made permanent under the provision (sec. 22): "That whenever within the period of such _ad interim_ protection an authorized edition of such book shall be published within the United States, in accordance with the manufacturing provisions specified in section fifteen of this Act, and whenever the provisions of this Act as to deposit of copies, registration, filing of affidavit, and the printing of the copyright notice shall have been duly complied with, the copyright shall be extended to endure in such book for the full term elsewhere provided in this Act."

The _ad interim_ provision requires the same formalities and fee as in the case of domestic works, except that only one copy of the foreign work in English need be deposited, and that this deposit copy need not contain the statutory notice of American copyright. The claimant is given thirty days after publication abroad in which to request reservation and a second thirty days after deposit of the foreign copy within which to publish or cause to be published an edition manufactured in America and thus to complete his copyright. This gives a period of _ad interim_ protection, ranging from thirty days to sixty days, within which to obtain permanent copyright, the exact period depending upon the number of days elapsing after publication before deposit of the foreign copy in the Copyright Office. Thus a copy deposited on the day of publication will have thirty days in all within which to secure permanent copyright by the publication of the American-made edition, while a copy deposited on the thirtieth day after publication will have sixty days in all; but the failure to deposit the foreign copy within thirty days after publication, or the failure to publish an American-made edition within thirty days after such deposit, will forfeit the right to obtain copyright protection and throw the foreign work into the public domain, despite the _ad interim_ registration. When an American-made edition with notice of copyright can be published in America simultaneously with its publication abroad, _ad interim_ protection is of course rendered unnecessary; and such simultaneous publication is the simplest and best practice for publishers to adopt.

{Sidenote: Omission of copyright notice}

It may also be emphasized here that the notice of copyright can be omitted only from foreign-made copies and must be included in the American-made edition. The American publisher desiring to reprint a book published abroad in the English language within sixty days after publication, without consent of the copyright proprietor, must therefore assure himself, by inquiry from the Copyright Office, whether the work has been registered _ad interim_. The printing of an American copyright notice on the foreign edition in anticipation of the publication of an American-made edition and the deposit of copies thereof within the statutory requirements is a questionable practice, as a failure to publish American-made copies in the United States, because of defective publishing arrangements or a printers' or binders' strike, would make such notice a false notice of copyright. The copyright term in the case of such foreign work in the English language dates, it would seem, from the date of publication abroad rather than from the date of publication of the American-made edition; but this would be of importance only toward the expiration of the original term and in connection with the renewal term.

{Sidenote: Books only ad interim}

_Ad interim_ protection seems to be confined exclusively to a book as such, and therefore does not apply to articles in periodicals.

{Sidenote: American authors not thus protected}

It should be noted that an American author publishing his work abroad is not benefited by either of these provisions respecting foreign works. The provision regarding works in other languages is specifically confined to a work of foreign origin, that is, not by an American author; and he gains nothing, if his work is in English, from _ad interim_ protection. Thus an American author publishing his work first in German in Berlin, must copyright and deposit an American-made edition of his German text in this country to obtain American protection, without which his work in German could be imported into this country without his consent, and an independent translation of his text into English and its publication in America could not be prevented.

{Sidenote: Exact conformity required in formalities}

In view of the exact prescription of the method of securing copyright, unless the statute is precisely complied with the copyright is not valid. Said Judge Sawyer, in 1875, in Parkinson _v._ Laselle: "There is no possible room for construction here. The statute says no right shall attach until these acts have been performed; and the court cannot say, in the face of this express negative provision, that a right shall attach unless they are performed. Until the performance as prescribed, there is no right acquired under the statute that can be violated." And in the case of the play "Shaughraun," Boucicault _v._ Hart, in 1875, Justice Hunt held, as regards copyrights in general: "Two acts are by the statute made necessary to be performed, and we can no more take it upon ourselves to say that the latter is not an indispensable requisite to a copyright than we can say it of the former." The Supreme Court laid down this general doctrine in Wheaton _v._ Peters, in reference to the statutes of 1790 and 1802, and the later statutes are most explicit on this point. In the same case of Wheaton _v_. Peters, Justice McLean, in delivering the judgment of the Supreme Court, held that while the right "accrues," so that it may be protected in chancery, on compliance with the first requirement of the prescribed process, it must be perfected by complying with the other requisites before a suit at law for violation of copyright can be maintained.

{Sidenote: Expunging from registry}

A false or unjustifiable entry of copyright may be expunged from the registry by court order, as was done in the English case _Re_ Share Certificate Book in 1908.

{Sidenote: British formalities}

The statutory formalities of copyright in other countries vary greatly. In Great Britain copyright has been secured by first (or simultaneous) publication within the British dominions or under the "international copyright act." The law provided that a copy of the best edition of a book must be deposited in the British Museum, this giving basis for proof of publication, which deposit must be made within one month after publication if published within London, three months elsewhere in the United Kingdom, and one year in other parts of the British dominions; the failure to deposit did not forfeit copyright, but involved a fine; but under the international copyright provisions, deposit in the British Museum of a colonial or foreign work was not required, though useful as _prima facie_ evidence of publication. Four other copies of domestic books must be supplied to the universities of Oxford, Cambridge, Edinburgh and Dublin if demanded within twelve months from publication. Registration at Stationers' Hall was necessary for books only as a prerequisite to an action at law against infringement, but was obligatory in the case of paintings, drawings and photographs. Copyright notice on a book was not required except to reserve the right of representation of a dramatic work, etc., though it has been customary for English publishers to print the phrase "All rights reserved" as the equivalent to the copyright notice. But copyright notice was required to protect sculpture, engravings and musical compositions and in respect to oral lectures.

{Sidenote: The new British code}

The new British code bases copyright for all published works on first publication within "the parts of His Majesty's dominions to which this Act extends" or as provided for in colonial or international arrangements--copyright of unpublished works depending upon British citizenship or residence at the time of making. Delivery of copies to the British Museum and on demand to the other libraries is required from the publisher of every book published in the United Kingdom, but on penalty of five pounds and the value of the book and not of forfeiture of copyright. The National Library of Wales is entitled to a sixth copy, in prescribed classes of books. Registration is no longer made a condition or circumstance of copyright.

Most of the British colonies have followed the precedent of the mother country, with slight variation, in their domestic legislation. Canada and Newfoundland, following the precedent of the United States, require copyright notice in statutory form.

{Sidenote: Other countries}

France requires deposit of two copies upon publication, and registration is required prior to a suit for infringement. Germany requires the registration of the name of the author of anonymous or pseudonymous works as the condition for copyright, but otherwise grants copyright practically as natural right without requiring formalities. The greater number of copyright countries do not impose any formalities except for specific privileges as the right of translation, of representation or of reproduction in the case of periodical contributions; or for special subjects as works of art, musical compositions, telegraphic messages, where these are protected, and oral lectures. Deposit of copies is, however, generally required, either before putting the book on the market or before circulation, or upon publication, or else within a specified time after publication, ranging from ten days in the case of Greece to two years in the case of Brazil, while in several countries no specific time is mentioned. In Italy, if no deposit of a registered work is made within ten years, the copyright is considered to be abandoned. The number of copies required varies in the several countries from one to six. In some countries specific formalities are required to establish the beginning of the term of protection for collective or posthumous works, etc., or in connection with the disclosure of the author's name on anonymous or pseudonymous works. Spain, Colombia and Panama, and Costa Rica have a curious provision that if a work is not registered within one year from publication the copyright is forfeited for ten years, at the end of which period it may be recovered by registration. Canada and Newfoundland, following the United States precedent, Australia, Holland and the Dutch colonies, and Siam require manufacture within the country. In several countries penalty for failure to deposit is provided, the limit being usually the value of a book and a sum not exceeding L5, or in France 300 francs. The deposit of a photograph or sketch of a work of art is in many countries required for purposes of identification.

{Sidenote: International provisions}

International copyright throughout the countries of the International Copyright Union and the Pan American Union, if the Berlin and Buenos Aires conventions are ratified throughout, will depend, as now it depends for most countries, entirely on the formalities in the country of origin.

THE AMERICAN MANUFACTURING PROVISIONS

{Sidenote: Manufacturing provision of 1891}

In the American law of 1891, embodying the "international copyright amendment" which for the first time permitted the copyright in the United States of works by foreign authors not resident in this country, the copyright of books was conditioned on the manufacture within the United States, and this condition was made applicable also to American authors.

{Sidenote: Text in 1909 code}

The American code of 1909 follows this precedent in making manufacture within the United States a _sine qua non_ of copyright for printed books and periodicals, lithographs and photo-engravings, under the following provision (sec. 15), commonly cited as the manufacturing provision: "That of the printed book or periodical specified in section five, subsections (a) and (b) of this Act, except the original text of a book of foreign origin in a language or languages other than English, the text of all copies accorded protection under this Act, except as below provided, shall be printed from type set within the limits of the United States, either by hand or by the aid of any kind of type-setting machine, or from plates made within the limits of the United States from type set therein, or, if the text be produced by lithographic process, or photo-engraving process, then by a process wholly performed within the limits of the United States, and the printing of the text and binding of the said book shall be performed within the limits of the United States; which requirements shall extend also to the illustrations within a book consisting of printed text and illustrations produced by lithographic process, or photo-engraving process, and also to separate lithographs or photo-engravings, except where in either case the subjects represented are located in a foreign country and illustrate a scientific work or reproduce a work of art; but they shall not apply to works in raised characters for the use of the blind, or to books of foreign origin in a language or languages other than English, or to books published abroad in the English language seeking _ad interim_ protection under this Act."

{Sidenote: Scope and exceptions}

This manufacturing provision requires that every "book" except the original text of a book of foreign origin, _i. e._, not by an American writer in a language or languages other than English, or a book published abroad in the English language seeking _ad interim_ protection, or a book in raised characters for the use of the blind, can obtain American copyright whether by an American or foreign author, only in case the type is set, the plates made and lithographic or photo-engraving text or illustrations produced and the work printed and bound within the limits of the United States--inclusive, presumably, of the outlying dependencies. The provision extends to periodicals, though these are not subjected to the affidavit clause, and periodicals containing authorized copyrighted material are not prohibited from importation. The provisions extend also to lithographs or photo-engravings, issued separately as well as for book illustration, unless these represent foreign subjects or illustrate a scientific work or reproduce a work of art.

{Sidenote: Changes 1891-1909}

The provision of 1909 differs from the provision of 1891 in requiring that a book should be from plates type-set as well as made, and be printed and bound, within the United States, in adding periodicals and by omitting photographs and dropping the word chromo, and including photo-engravings as well as lithographs. The inclusion of binding in the manufacturing provision met with especial opposition, on the ground that binding is not an integral part of, but an incidental addition to, a completed book.

{Sidenote: German-American instances}

The effect of these provisions, to cite specific instances, is that an original German text by a non-American author is exempt from the manufacturing provisions, but that a French translation or an English translation is not, and that an original German work by an American author must be manufactured in this country to obtain protection, and that the American author printing his work in English abroad may claim _ad interim_ protection but can obtain no substantial benefit from it. In case a German-American citizen, or German resident of this country, writes a book in the German language and prints it first in Berlin, he can have no American copyright in the German edition; and if copies of such an edition, without copyright notice, should reach the United States previous to manufacture and publication of the work here, any one would have the right to reprint print it, and the work would be practically dedicated to the public, while the copyright notice could not be affixed to such foreign printed edition without violation of the law. If, however, the German work were a translation made by or for the author of a work written in English, the general copyright of the English work would cover the German edition, but the German copies could not then be imported.

{Sidenote: Dramas excepted}

A drama copyrightable as such under subsection (d) is not subject to the manufacturing provision, unless classified as a book under subsection (a). A printed drama was held not to be subject as a book to the manufacturing provision in Hervieu _v._ Ogilvie, in the U. S. Circuit Court, by Judge Martin in 1909, and this decision under the old law is applicable to the new code.

{Sidenote: Exception of foreign original texts}

The exception of "the original text of a book of foreign origin in a language or languages other than English,"--drafted by the author of the present volume, introduced at the instance of the American (Authors) Copyright League, as the McCall bill with the assent of the representatives of the typographical unions responsible for the manufacturing provision,--was included to assure a real reciprocity in copyright with continental and other non-English nations. The exception is repeated toward the close of the section in the somewhat wider phrase "books of foreign origin in a language or languages other than English," which omits restriction to "the original text"; but it is probable that the second phrasing would be construed in conformity with the first, as the evident intention of the law.

{Sidenote: Exception of foreign illustrative subjects}

The exception from lithographs and photo-engravings of subjects which "are located in a foreign country and illustrate a scientific work or reproduce a work of art" is intended to permit the importation, either separately or for book use, of direct reproductions made abroad of scenes or objects which otherwise could be reproduced in this country only indirectly and at second-hand; the confusing and probably careless use of the word "and" might seem to exclude from the exemption a lithograph or photo-engraving of a natural scene, illustrating a work of travel, but the courts might here feel justified in taking the more liberal view.

{Sidenote: Affidavit requirement}

To the manufacturing provision of the previous law has been added a new affidavit requirement (sec. 16) as follows:

"That in the case of the book the copies so deposited shall be accompanied by an affidavit, under the official seal of any officer authorized to administer oaths within the United States, duly made by the person claiming copyright or by his duly authorized agent or representative residing in the United States, or by the printer who has printed the book, setting forth that the copies deposited have been printed from type set within the limits of the United States or from plates made within the limits of the United States from type set therein; or, if the text be produced by lithographic process, or photo-engraving process, that such process was wholly performed within the limits of the United States, and that the printing of the text and binding of the said book have also been performed within the limits of the United States. Such affidavit shall state also the place where and the establishment or establishments in which such type was set or plates were made or lithographic process, or photo-engraving process or printing and binding were performed and the date of the completion of the printing of the book or the date of publication."

{Sidenote: Avoidance of errors}

In preparing the affidavit, which is necessary for books only, the applicant should be careful to note the following points, as to which errors are commonly made. The affidavit should correspond exactly with the application (as that with the title-page or other data in the work itself). The affidavit cannot be made till _after_ publication and must state the exact day of publication or the date of completion, either or both, which last means not necessarily the completion of printing the whole edition, but of the deposit copies. The affidavit must be taken and signed by an individual, not by a corporation, company or firm as such, and the affiant must state whether he is the claimant, agent of the claimant, or printer, striking out the other designations. The name of the printer and binder must be given in the affidavit with city and state (but not street) address; but this means the printing and binding establishment and not the individual type-setter or binder. If the book is not bound but only issued in paper, the word "unbound" should be written into the affidavit. It is necessary to give the _venue_, that is, the county and state in which the affidavit is made, and to take the oath before a notary or other official authorized to take such oath in that locality (not merely a justice of the peace). The affiant's and notary's names should be signed exactly as written into the body of the affidavit, and the seal should correspond exactly with the name of the official and the _venue_. The signature of the affiant and of the notary and the seal are all necessary to validate the affidavit. The names and other writing should be written plainly, and the affiant should make sure to read the affidavit and compare it with the application and with the book.

{Sidenote: Forfeiture by false affidavit}

In case of false affidavit, forfeiture of copyright is provided (sec. 17) as follows:

"That any person who, for the purpose of obtaining registration of a claim to copyright, shall knowingly make a false affidavit as to his having complied with the above conditions shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not more than one thousand dollars, and all of his rights and privileges under said copyright shall thereafter be forfeited."

{Sidenote: Exact compliance necessary}

The affidavit clause is exact and specific. It may be made either by the printer or the publisher. This exacting and drastic addition to the manufacturing clause met with strong opposition from the friends of copyright, particularly authors and book publishers, as unnecessary and unreasonable, but was successfully insisted upon by the representatives of the typographical unions. The voiding of copyright because of a false affidavit by a printer or publisher, which might even be mistakenly made and of which the author would have no cognizance, was opposed as especially unjust to authors and out of keeping with the rest of the law. Under the statute as enacted, this provision must be exactly complied with, and the courts would doubtless enforce it to the letter.

{Sidenote: Importation questions}

The manufacturing provision of 1891 and its extension in the code of 1909 have raised important and difficult questions as to the time at which these provisions become effective in relation with copyrights previously existing. It was claimed by Benziger Brothers, as proprietors of a copyright American edition of the "Key of Heaven," that an edition of sheets printed in America previous to the law of 1909 and sent abroad for binding, could be re-imported notwithstanding the new provision against binding, but the decision of the appraisers at New York against this claim was upheld by the Secretary of the Treasury, under advice of the Attorney-General, and the courts have not yet had occasion to pass on the question. This ruling indicates that since July 1, 1909, copyright could not be maintained on any book unless type-set, printed and bound completely within the limits of the United States, and that any copyrighted books, partly manufactured in the United States, but bound and otherwise completed abroad since July 1, 1909, must be denied importation. It has been decided, however, by the Attorney-General, that the manufacturing requirement as to binding refers only to the original, and that copyright books rebound abroad cannot be denied importation. Also it has been held that a foreign translation of a copyright work, for which translation American copyright is not claimed, cannot be refused importation.

The provisions supplementing the manufacturing clause by prohibiting importation are given in the chapter on importation.

{Sidenote: Foreign manufacturing provisions}

Holland is the only country in Europe which requires that the deposit copies shall be printed within the country and thus makes manufacture a condition of copyright--an inheritance probably from the times when the printer-publishers of the Protestant Netherlands were the only ones printing the books barred in Catholic countries by the _index expurgatorius_, and when deposit was naturally required from them. The law covered the Dutch West Indies, and the precedent was followed in Siam; and in the Transvaal and Orange State the Dutch law continued after they had become English colonies. Otherwise than in these countries, only the British dominions of Canada and Newfoundland and the Commonwealth of Australia have manufacturing provisions. Canada made such provision as to domestic copyright in 1886 and again in the act of May 2, 1889, which last provides that a literary, scientific, musical or artistic work shall, before or simultaneously with publication or production elsewhere, be registered in the office of the Minister of Agriculture, and be printed or published or produced in Canada within one month after publication or production elsewhere. Newfoundland in its statute of 1892, following our own of 1891, provided similarly that the condition for obtaining copyright shall be that the literary, scientific or artistic work shall be printed and published or produced in this colony. Australia, under the new code of 1905, confines domestic copyright to books (inclusive of drama) "printed from type set up in Australia, or plates made therefrom, or from plates or negatives made in Australia in cases where type is not necessarily used," and in an artistic work to those "made in Australia."

{Sidenote: English patent proviso}

Unfortunately, the precedent of our copyright act of 1891 has since been followed in England in the patent and designs act of 1907, which provides (sec. 27) that a patent may be revoked after four years "on the ground that the patented article or process is manufactured or carried on exclusively or mainly outside the United Kingdom." Such a provision had been a feature of the patent laws of Germany, Canada and other countries, but it is new in British law and has evoked strong protest from American patentees, notwithstanding that it is parallel with our manufacturing provision with respect to copyrights.

DRAMATIC AND MUSICAL COPYRIGHT, INCLUDING PLAYRIGHT

{Sidenote: Dramatists' and composers' rights}

The dramatic author and the musical composer receive recompense for their creative labor not so much from publication of their works in the printed form of a book as through their performance or representation, when protected as playright or performing right, as the artist receives remuneration not only for the reproduction and sale of copies, but also from the exhibition as well as sale of his original work. Dramatic and musical copyright, in the wide sense, therefore, covers copyright in the specific sense and playright, as to which latter common law rights especially need statutory protection.

{Sidenote: American provisions}

In the protection of dramatic and musical compositions the new American code specifically provides not only for copyright, but for playright or right of performance. Under subject-matter of copyright (sec. 5) such works are classified as "(d) Dramatic or dramatico-musical compositions; (e) Musical compositions"; and the Copyright Office Rules and Regulations further define these classes as follows:

{Sidenote: Copyright Office definitions}

"8. _(d) Dramatic and dramatico-musical compositions_, such as dramas, comedies, operas, operettas and similar works.

"The designation 'dramatic composition' does not include the following: Dances, ballets, or other choregraphic works; tableaux and moving picture shows; stage settings or mechanical devices by which dramatic effects are produced, or 'stage business'; animal shows, sleight-of-hand performances, acrobatic or circus tricks of any kind; descriptions of moving pictures or of settings for the production of moving pictures. (These, however, when printed and published, are registrable as 'books.')

"9. _Dramatico-musical compositions_ include principally operas, operettas, and musical comedies, or similar productions which are to be acted as well as sung.

"Ordinary songs, even when intended to be sung from the stage in a dramatic manner, or separately published songs from operas and operettas, should be registered as musical compositions, not dramatico-musical compositions.

"10. _(e) Musical compositions_, including other vocal and all instrumental compositions, with or without words.

"But when the text is printed alone it should be registered as a 'book,' not as a 'musical composition.'"

{Sidenote: Rights assured}

To dramatic and musical authors are given (sec. 1) in addition to the general right, granted in subsection "(a) To print, reprint, publish, copy and vend the copyrighted work," the specific exclusive rights:

"(b) ... to dramatize it if it be a non-dramatic work; to convert it into a novel or other non-dramatic work if it be a drama; to arrange or adapt it if it be a musical work;...

{Sidenote: Dramatic rights}

"(d) To perform or represent the copyrighted work publicly if it be a drama or, if it be a dramatic work and not reproduced in copies for sale, to vend any manuscript or any record whatsoever thereof; to make or to procure the making of any transcription or record thereof by or from which, in whole or in part, it may in any manner or by any method be exhibited, performed, represented, produced, or reproduced; and to exhibit, perform, represent, produce, or reproduce it in any manner or by any method whatsoever;

{Sidenote: Musical rights}

{Sidenote: Excepted performance}

An exception to these exclusive rights is, however, made in the proviso (sec. 28) "_Provided, however_: That nothing in this Act shall be so construed as to prevent the performance of religious or secular works, such as oratorios, cantatas, masses, or octavo choruses by public schools, church choirs, or vocal societies, rented, borrowed, or obtained from some public library, public school, church choir, school choir, or vocal society, provided the performance is given for charitable or educational purposes and not for profit."

This proviso is singularly defective in phraseology, as the phrase "octavo choruses" has no musical significance and uses a music-trade term to designate choruses usually but not necessarily published in octavo form; and the duplication of the words "public school," etc., is probably a verbal error in the bill which mistakenly became part of the law. The proviso is doubtless intended and would fairly be construed to permit gratuitous unauthorized performance of religious or secular works such as oratorios, cantatas, masses, and choruses by public schools, church choirs, school choirs or vocal societies, from copies rented, borrowed, or obtained from some public library, provided the performance is given for charitable or educational purposes and not for profit. Curiously the letter of the proviso would seem to provide that the beneficiary organization cannot perform from a purchased copy, but only from copies rented, borrowed or "obtained from" some public source; but this also is an evident error.

{Sidenote: Performance "for profit"}

It should be noted that the omission from subsection (d) as to drama and the inclusion in subsection (e) as to music, of the words "for profit,"--doubtless with the intent of assuring to the individual purchaser of music the right to perform it privately,--have significance here, and serve, it would seem, to give the dramatic author absolute control even over gratuitous performances and to limit the control of the musical author to performances which are not gratuitous, a negative provision covering, and giving much wider latitude than, the proviso (sec. 28) above cited. But as dramatico-musical compositions are classified (sec. 5, d) with dramatic compositions, and an oratorio and possibly a cantata might be considered as a dramatico-musical composition, the proviso (sec. 28) may have a specific effect as to this kind of dramatico-musical compositions. The law is unfortunately defective and confusing by reason of this proviso and will be so difficult of judicial construction as to suggest the omission, by amendment, of this proviso. The use of the word "public" in both cases implies that the author cannot control private representation and opens other questions difficult of judicial interpretation.

{Sidenote: Works not reproduced}

It is provided (sec. 11): "That copyright may also be had of the works of an author of which copies are not reproduced for sale, by the deposit, with claim of copyright, of one complete copy of such work if it be ... a dramatic or musical composition"; provided that the required deposit of two copies shall be made, as in the case of books, on publication thereafter by the multiplication and public sale or distribution of copies.

{Sidenote: Copyright notice}

The notice of copyright must be printed (sec. 18) on each copy, as in the case of a book in the form "Copyright" or the abbreviation "Copr.," "accompanied by the name of the copyright proprietor" and "the year in which the copyright was secured by publication." In the case of a published dramatic work the notice must be placed, as in the case of a book, upon the title-page or the page immediately following, but in the case of a published musical work the law provides that the notice "shall be applied ... either upon its title-page or the first page of music," and this specification makes the copyright notice of doubtful validity if applied in a musical work on the page following the title-page, unless this is the first page of music.

{Sidenote: Dramatico-musical works protected from mechanical reproduction}

The classification of dramatico-musical compositions under subsection (d) as dramatic works and not under subsection (e) as musical compositions, defines an opera and possibly an oratorio or cantata as a dramatic rather than a musical composition. As the dramatic author is given (sec. 1, d) the comprehensive rights over reproduction "in any manner or by any method whatsoever" while the musical author is limited (sec. 1, e) in respect to mechanical reproductions, it would seem to follow that the author of an opera may retain absolute control over mechanical reproduction, as the author of a non-musical drama retains absolute control over phonographic or other reproduction of his drama. This would seem to confine the requirements that the author of a musical composition permitting mechanical reproduction should license any manufacturer, to musical compositions which are not dramatic, _i. e._, to instrumental compositions or to songs and other vocal music not associated with drama. As an overture to an opera is an integral part of the dramatico-musical composition, it would even seem that an overture which is part of an opera, or possibly an orchestral introduction or interlude in an oratorio or cantata, would not be subject to the mandatory license provided as to musical compositions. But this question has not yet come before the courts.

{Sidenote: Dramatic and musical works excepted from manufacturing provisions}

Dramatic and musical works are not mentioned in the manufacturing and affidavit provisions (secs. 15, 16, 17) which are specifically confined to "the printed book or periodical specified in section 5, subsections (a) and (b)," while dramatic and musical compositions are classified in subsections (d) and (e). It might be alleged that dramatic or musical compositions in book form or produced as books from type or by lithographic or photo-engraving process should be classified as books and subjected to the manufacturing provisions; but this is distinctly not the letter of the law. This exception was specifically upheld for music in the case of Littleton _v._ Ditson in 1894, by Judge Colt in the U. S. Circuit Court in Massachusetts, where the defense that there was no copyright in certain songs because the music sheets were not from type set or plates made within the United States, was overruled; and for drama in Hervieu _v._ Ogilvie in 1909, where in the U. S. Circuit Court in New York, Judge Martin cited with approval Judge Colt's decision. This ruling was also embodied in Treasury decision No. 21012 of April 17, 1899, permitting the importation of musical compositions copyrighted in the United States and printed abroad.

{Sidenote: British colonial practice}

The Australian law, on the contrary, specifically includes under the definition of "book," a "dramatic work" and a "musical work," and thus subjects both to the manufacturing clause. Printing and publishing are required in Canada ("within one month after publication or production elsewhere") and in Newfoundland to obtain copyright under the local acts; and as drama is not mentioned but included generically as a book or literary composition, and music is specifically included, both dramatic and musical compositions must be manufactured within each country to obtain local, as distinguished from British or Imperial, protection.

{Sidenote: Entry under proper class}

{Sidenote: Applications and certificates}

The author of a dramatic, dramatico-musical, or musical composition should therefore be careful to make application in the United States under class (d) or (e) and not as a book under class (b). The fact that the law classifies under subsection (d) dramatic or dramatico-musical compositions and under subsection (e) musical compositions, has caused the Copyright Office to prepare separate application forms and certificates for (D1) a dramatic composition, (D3) a dramatico-musical composition and (E1) a musical composition, "published"; as also for (D2) a dramatic composition (or a dramatico-musical composition) and (E2) a musical composition, "not reproduced for sale." It would seem advisable therefore that the author of an opera, oratorio or the like, to obtain the fullest protection under the law, should enter such work in class (d) as a dramatico-musical composition rather than in class (e) as a musical composition, and thus safeguard himself against the mechanical music proviso applied exclusively to class (e).

{Sidenote: Right of dramatization}

In regard to dramatization, the new American code is specific (sec. 1, b) in giving to the author of an original work the exclusive right "to dramatize it if it be a non-dramatic work" or "to convert it into a novel or other non-dramatic work if it be a drama." The relations of a maker of a dramatic version of a literary work or of a literary version of a dramatic work, would follow the same rule as in the case of a translator. An author has the exclusive right to dramatize or permit the dramatization of his work, and the dramatization may be copyrighted in the name of the original author or of the dramatizer, but the dramatizer cannot prevent another dramatization of the same work unless by transfer of exclusive right from the original author.

{Sidenote: Dramatization term}

The specific copyright on a published dramatization dates from the publication of the dramatization, which may extend the protection of the dramatization beyond the copyright term of the original work. But on the expiration of the copyright in the original work rival dramatizations can no longer be prevented. All this holds true as to the novelization of a drama.

{Sidenote: Musical arrangements}

In respect to music, the language of the law (sec. 1, e) is thoroughly comprehensive in covering the arrangement or setting of a musical composition or of a melody in any notation or in any form whatever. This gives to the musical author entire control over the use of any part of his work, as for instance the transcription from an orchestral work for piano use, the instrumentation of a vocal work or the use for a song of any melody in an orchestral work. On the other hand, variations, transcriptions and so forth of a copyrighted work, made under authorization from the copyright proprietor, may be separately copyrighted as to that extent original works.

{Sidenote: Copyright Office definitions}

The Copyright Office Rules and Regulations say specifically: "(10) 'Adaptations' and 'arrangements' may be registered as 'new works' under the provisions of section 6. Mere transpositions into different keys are not expressly provided for in the copyright act; but if published with copyright notice and copies are deposited with application, registration will be made."

{Sidenote: Transposition}

In Hein _v._ Harris in 1910, the U. S. Circuit Court awarded damages where the chorus of a song proved on transposition into the key of the copyright song to be practically a copy of the melody.

{Sidenote: Works in the public domain}

It is specifically provided (sec. 6) that "adaptations, arrangements, dramatizations ... or other versions of works in the public domain, ... shall be regarded as new works subject to copyright," and in the case of such versions copyright inheres in the dramatizer, adaptor or maker of a version, as in the case of a translator of a book, in the public domain. Thus a dramatic or musical work in the public domain may be dramatized or adapted freely and any individual dramatization or adaptation may be copyrighted by the dramatizer or adaptor, but he cannot prevent other dramatization or adaptation of the same work.

{Sidenote: Dramatization right protected by courts}

The American courts have fully upheld the control over dramatization under the right "to dramatize" specifically given in the law of 1891 and preserved under the new code. In 1895 in Harper _v._ Ranous, Judge Lacombe, in the U. S. Circuit Court in New York, enjoined a play, "Trilby," on the ground that the drama "presents characters, plot, incidents, dramatic situations and dialogue appropriated from Du Maurier's copyrighted novel," while denying protection against the mere use of the title. In the same year and in respect to the same novel, in Harper _v._ Ganthony, the Harpers, as owners of the copyright of "Trilby," also obtained from Judge Lacombe an injunction against Miss Ganthony, who had presented at the Eden Musee a series of monologues in costume following the plot of the story, which the judge held to constitute a dramatic version and therefore an infringement. A story, "The transmogrification of Dan," purchased by the _Smart Set_ for $85, copyrighted as part of that periodical and assigned back to the author, was dramatized by Paul Armstrong and produced by the defendants under the name of "The heir to the Hoorah," retaining the central incident of the story, though with modification and extension of the characters, situation and dialogue. In 1908 Judge Hazel, in Dam _v._ Kerke La Shelle Co., in the U. S. Circuit Court in New York, awarded the full profits from the dramatic representation as damages to the executor of Dam, the author of the story; which decision was fully upheld in 1910 by the Circuit Court of Appeals through Judge Noyes. Thus the new American code specifically enacts into statute law previous decisions of the American courts.

{Sidenote: English law and practice}

Under English law, on the contrary, the right of dramatization has not been included under copyright; the mere copyrighting of a book could not prevent its dramatization, but the copyrighting of a work in dramatized form before its publication as a novel practically prevented other dramatization of the literary work in so far as the one drama was a reproduction of the features of the other. As stated by Colles and Hardy in their recent work (1906) on "Playright and copyright in all countries," "a novel is not a dramatic piece, ready and fit for representation on the stage. Consequently, the author of a novel has the copyright in his book, but he has no playright according to English law." The general principles were best stated in 1874 by Chief Justice Cockburn in Toole _v._ Young, where Grattan's drama "Glory" was declared not to be an infringement either of Hollingshead's novel "Not above his business," on which it was confessedly founded, nor of the dramatic version made under the title of "Shop" by Hollingshead himself, but never printed or performed and therefore unpublished: "Two persons may dramatize the same novel, for that is common property. It is true that a writer cannot produce and represent a drama, which he has borrowed from a drama written previously by another person; he would then be representing the production of the first dramatist.... I wish to guard myself against being supposed to lay down that, if a writer, while dramatizing a novel, takes the incidents, characters, and dialogue of a previous drama founded upon that novel, and reproduces what is in substance identical with the previous drama, there might not be an infringement of the right of the earlier dramatist if the later drama be represented on the stage."

{Sidenote: The new British code}

The new British measure remedies this defect by specifically including the sole rights to convert a novel or other non-dramatic work, or an artistic work, into a dramatic work, by way of performance in public or otherwise, and to convert a dramatic work into a novel or other non-dramatic work.

{Sidenote: Infringement cases}

A curious early case was that of Reade _v._ Conquest in 1862, in which the son of Charles Reade had made and sold to the defendant, who produced it at his theatre, a dramatic version of "It is never too late to mend" in ignorance of the fact that his father had first written a play called "Gold" and had then transformed that into the novel; in this the defendant was enjoined because the version which he produced infringed the earlier play. In Beere _v._ Ellis in 1889, Baron Pollock enjoined a rival dramatic version of "As in a looking glass" on the ground that while bits of dialogue, presumably copied into the defendant's version, were scarcely substantial, yet a special situation founded on a new incident not in the novel and certain stage business connected with the death of the heroine constituted an infringement. In 1890, in Schlesinger _v._ Turner, the executors of Wilkie Collins obtained an injunction against a rival dramatic version of "The new Magdalen," the judge holding that although the defendant's version had not been copied from the author's own play, it was substantially similar and therefore an infringement. That an independent and different dramatic version can, however, be made, was specifically held in the case of Schlesinger _v._ Bedford in the same year, when Collins's executors failed to obtain an injunction against the defendant's rival dramatic version of "The woman in white," although the novelist himself had previously dramatized his work, the judge holding that the two plays were "essentially different."

{Sidenote: Use of substantial quotations}

But the use in a play of considerable portions of a copyrighted novel would be an infringement. That a dramatization using substantial parts of a novel infringes the novel, was definitely established in 1863 in Tinsley _v._ Lacy, where the proprietor of Miss Braddon's "Lady Audley's secret" and "Aurora Floyd" obtained an injunction against a bookseller who sold dramatizations under the same titles of which a quarter or more of the text was taken bodily from the novels. So in 1888 an injunction was obtained from Judge Stirling, in Warne _v._ Seebohm, in the Court of Chancery, against a dramatization of "Little Lord Fauntleroy" which copied from the novel beyond the limits of fair use and was therefore considered a "copy" from the work.

{Sidenote: Specific scenes or situations}

Where in dramatizing a novel, the dramatic author invents and introduces new scenes, situations or other features, the copying of such added features into another dramatic version of the novel, otherwise independent, constitutes an infringement of the original play. In the case of Nethersole _v._ Bell in 1903, with respect to rival English dramatic versions of Daudet's "Sapho," it was held that while there might lawfully be independent dramatizations of the novel, the circumstances indicated that the Espinasse version of the defendant, said to have been written in Australia, had been so modified consequent to representation of Clyde Fitch's version, as to constitute an infringement of the plaintiff's rights. In Tree _v._ Bowkett in 1896, plaintiff obtained an injunction against the use by the defendant in a rival dramatic version of "Trilby" because of two scenes introduced by the plaintiff into his drama which were not in the novel or in the American dramatization. On the other hand, in Chatterton _v._ Cave in 1876, where the plaintiff had dramatized Eugene Sue's "The wandering Jew" and added two scenes not in the novel, an injunction was denied by Lord Chief Justice Coleridge against an independent dramatization, though it had included similar scenes, on the ground that these were not sufficiently substantial and material in the play to constitute an infringement. And this application of the principle of _de minimis non curat lex_ was affirmed by the House of Lords in 1878.

{Sidenote: What is a dramatic composition}

{Sidenote: Judge Blatchford's opinion}

As to what is a dramatic composition or representation, no definition is given in the American law, and the English laws of 1833 and 1842, quoted beyond, are not explicit. Both English and American courts have therefore been obliged to make or to extend definitions, but the decisions have been somewhat confusing. The most explicit general statement is that made by Judge Blatchford in discussing Daly _v._ Palmer in 1868: "A composition, in the sense in which that word is used in the act of 1856, is a written or literary work invented or set in order. A dramatic composition is such a work in which the narrative is not related, but is represented by dialogue and action. When a dramatic composition is represented in dialogue and action by persons who represent it as real by performing or going through with the various parts or characters assigned to them severally, the composition is acted, performed, or represented; and if the representation is in public, it is a public representation. To act in the sense of the statute is to represent as real by countenance, voice, or gesture that which is not real. A character in a play who goes through with a series of events on the stage without speaking, if such be his part in the play, is none the less an actor in it than one who, in addition to motions and gestures, uses his voice. A pantomime is a species of theatrical entertainment, in which the whole action is represented by gesticulation without the use of words. A written work consisting wholly of directions, set in order for conveying the ideas of the author on a stage or public place by means of characters who represent the narrative wholly by action, is as much a dramatic composition designed or suited for public representation as if language or dialogue were used in it to convey some of the ideas."

{Sidenote: Judicial definitions}

In a recent case of Barnes _v._ Miner in 1903, where an injunction was asked against a vaudeville change artist who had combined songs in costume with a cinematograph representation of scenes in the dressing room during the changes, Judge Ray, in the U. S. Circuit Court in New York, declined to grant relief, adding that as a mere spectacular composition such "sketch" was not properly a dramatic composition. The English law was construed in 1848 in Russell _v_. Smith, when a song "The ship on fire," in which dramatic action was exhibited by the singer alone without costume or scenery, while seated at the piano, was construed to be a "dramatic piece"--the action being "not related but represented." In 1872, in Clark _v._ Bishop, a music hall song "Come to Peckham Rye" was similarly protected as a "dramatic piece." But in 1895, in Fuller _v._ Blackpool Winter Gardens Co., it was held that the song "Daisy Bell," though sung in character costume, was not a "dramatic piece" because its representation did not require acting or dramatic effect. Later decision construed the act of 1833 to cover only spoken words, the English Court of Appeal holding in Scholz _v_. Amasis in 1909, through Lord Chief Justice Farwell, that only substantial copying of written dialogue, and not of a plot or situation, constitutes infringement, and in Tate _v._ Fullbrook in 1908, that the writer of the dialogue is the sole author of the musical sketch though devised and staged by another. But in two cases, one by Moore in 1903 and one by Fraser in 1905, against George Edwardes, English juries gave heavy damages where the scenarios for musical comedies submitted to that theatrical manager had been made the basis for musical comedies by other writers afterward produced at Daly's Theatre, London.

{Sidenote: Moving pictures may be infringements}

The opinion of Judge Blatchford was quoted and followed by the U. S. Circuit Court of Appeals in New York, in 1909, in Harper _v._ Kalem Co., which said through Judge Ward: "The artist's idea of describing by action the story the author has written in words is a dramatization. It is not necessary that there should be both speech and action in dramatic performances although dialogue and action usually characterize them." In this case the defendants had caused persons to represent the action in certain scenes of "Ben Hur" and photographed this representation on a moving picture film, which they reproduced for sale to theatoriums, where public exhibitions were given for profit. The court held under the old law that "moving pictures would be a form of expression infringing the author's exclusive right to dramatize his writings and publicly to perform such dramatization." The contrary view was held in the English case of Karno _v._ Pathe Freres in 1908, where also the Court of Appeal held, in 1909, that not the manufacturer but the exhibitor of such a film would be the responsible party if there were infringement.

{Sidenote: Literary merit not requisite}

The doctrine that copyright does not depend on literary merit, was strengthened in a dramatic case in Henderson _v._ Tompkins in 1894, in the U. S. Circuit Court in Massachusetts by Judge Putnam, who held that a paraphrase of "I wonder if dreams come true," from "Ali Baba," constituted an infringement, though the offending piece had slight literary merit.

{Sidenote: What is a dramatico-musical composition}

As to what is a musical composition, the term defines itself. But the phrase "dramatico-musical compositions," as used in the American code, bristles with perplexities, not altogether solved by the definitions of the Copyright Office Rules, above cited. It means, of course, music and drama in association, but in this combination the definition of the dramatic side is peculiarly difficult. Whether a dance, ballet or other choregraphic work, with or without music, is included, is a mooted question. In 1892, in Fuller _v._ Bemis, where the plaintiff sought to protect a skirt dance of which she had filed a description for copyright as a dramatic composition, Judge Lacombe, in the U. S. Circuit Court in New York, held that: "It is essential for a dramatic composition to tell some story. The plot may be simple, it may be but the representation of a single transaction; but it must repeat or mimic some action, speech, emotion, passion, or character, real or imaginary. A series of graceful movements, combined with an attractive arrangement of drapery, lights, and shadows, telling no story, portraying no character, depicting no emotion, is not a dramatic composition." This view is adopted in the Copyright Office Rules and defines accepted American practice, but is not consonant with English and international views.

{Sidenote: The new British code}

The new British measure is definitely comprehensive and specific in including as a dramatic work "any piece for recitation, choregraphic work or entertainment in dumb show the scenic arrangement or acting form of which is fixed in writing or otherwise, and any cinematograph production where the arrangement or acting form or the combination of incidents represented give the work an original character."

{Sidenote: Protection of playright}

It is evident that the methods for securing copyright for published dramatic and musical works are in general the same, with exceptions noted in this chapter, as for literary works, that is, publication with copyright notice and registration with deposit promptly after publication of two copies of the best edition then published, with a fee of one dollar. Copyright in the specific sense is, however, of less importance to the dramatic or musical author, as has already been pointed out, than playright or performing right, which is also covered and protected specifically by the code of 1909, though in less accurate, definite and satisfactory provisions, involving in some respects serious questions. The right at common law or in equity to prevent the copying, publication or use of an unpublished work and to obtain damages therefor, is specifically confirmed (sec. 2), and this applies especially to unregistered manuscripts.

{Sidenote: Protection of unpublished work}

The method of registration of an unpublished work to secure playright or performing right, as previously stated, is absolutely simple, consisting solely in the registration of a claim and the deposit of one copy of the work in manuscript or other unpublished form, with a fee of one dollar. The law is clear and satisfactory as to the punishment, after such registration, of infringement of playright or performing right, but it is not clear as to the date from which such protection starts, and whether protection is for an indeterminate period up to publication (practically in perpetuity if no publication be made), or for the statutory term. This is because the relations of publication and first performance are inferences only and specifically defined in the law. The Copyright Office issues a certificate for twenty-eight years, but without reference to initial date, which would be presumably the date of the certificate. The Copyright Office will doubtless, under this precedent, issue renewal certificate for the second term of twenty-eight years. The trend, and in several instances the letter of the law, shows publication to mean the multiplication or reproduction of printed or other copies and their public offering, sale and distribution, and indicate that performance, whether privately or publicly and for profit, is not publication. The new Copyright Office Rules specifically hold that: "Representation on the stage of a play is not a publication of it, nor is the public performance of a musical composition publication." Judicial decisions on this point both in England and this country are confusing if not contradictory. In the absence of specific provision in the law for renewal of term in unpublished works, the view that the grant of the statute is for protection under the common law rather than a statutory and limited grant of privilege, is defensible and may be upheld by the courts, should a case arise. No case is likely to arise for twenty-eight years from the time of first copyright, under the act, of an unpublished work; but the dilemma will then present itself to the author whether he should apply for a renewal term and thus accept the limitations of the statute, or rely upon the original registration as a protection in perpetuity up to the time of publication. Possibly before that time this difficult point may be made clear by supplementary legislation.

{Sidenote: Indeterminate protection}

The most serious argument against the view that unpublished works may be protected indeterminately, is founded on the provision of the Constitution authorizing Congress to grant protection for limited terms, as to which the view may be upheld that Congress is not here making a grant, but is offering statutory protection to the inherent right of an author in an unpublished work.

In any event the author has clear rights for twenty-eight years from the date of publication or the date of first performance, whichever the earlier. In case of publication, it is altogether probable that the playright or performing right will be construed by the courts to lapse at the end of the copyright term and renewal thereof of the published work, and in case a "book of the play" or libretto of an opera is printed for sale within a theatre in connection with the performance, that will undoubtedly constitute publication and such copies should be copyrighted.

{Sidenote: Printing and performance}

The doctrine that performance is not publication was upheld by the N. Y. Court of Appeals in Palmer _v._ DeWitt in 1872, in which the assignee of the manuscript and playright of Robertson's drama "Play" was granted an injunction against the printing of the drama, although it had been publicly performed, but not printed, in London. The same doctrine was applied in the Illinois Supreme Court in 1909 in Frohman _v._ Ferris. But publication abroad, by the printing of a drama unless protected under the international copyright provisions, has been held to forfeit the common law playright transferred with an unpublished manuscript, by the decision in Daly _v_. Walrath in 1899, by Judge Bartlett in the N. Y. Supreme Court, when an injunction was refused against the performance of Sudermann's "Die Ehre," translated as "Honor," because the author had printed the play in Germany despite a contract with the American assignee to refrain from publication. In the case of Wagner _v._ Conried in 1903, in the U. S. Circuit Court in New York, Judge Lacombe declined to enjoin a production of "Parsifal," holding that the publication of a printed edition by Schotts in Germany had forfeited playright, since the reservation by Wagner in his contract with Schotts of the acting rights was not applicable in this country. The printing of a dramatic manuscript solely for the use of the players is not publication, as was held in French _v_. Kreling, in 1894, by Judge Hawley in the U. S. Circuit Court in California, where Farnie's opera "Falka," of which the musical score had been published, but the libretto printed only for the singers, was protected as an unpublished manuscript.

{Sidenote: English confusion}

{Sidenote: Specific English provisions}

The English law as to dramatic and musical copyright and playright and performing right, has been most confusing if not contradictory, and authorities differ, as do MacGillivray and Scrutton, in its interpretation. Whether public performance constitutes publication or whether they are separable and separate events has been diversely treated in the laws, by the judges and in legal text-books. The dramatic copyright act of 1833, known as Bulwer-Lytton's act, a clumsy attempt to clear up earlier uncertainty, provided that the author of "any tragedy, comedy, play, opera, farce, or any other dramatic piece or entertainment, composed, and not printed and published," shall have "the sole liberty of representing in any part of the British Dominions"; "and the author of any such production, printed and published," shall, "until the end of twenty-eight years from ... such first publication" or for life, have "the sole liberty of representing ... as aforesaid." The general copyright act of 1842 specifically applied this previous act also to "musical compositions" and enacted "that the sole liberty of representing or performing ... any dramatic piece or musical composition" shall "endure ... for the term in this act provided for ... copyright in books," that is, for forty-two years or life and seven years; and the provisions of the act as to copyright and registration were extended to representing or performing, "save and except that the first public representation or performance of any dramatic piece or musical composition shall be deemed equivalent in the construction of this act to the first publication of any book." The "copyright (musical compositions) act" of 1882 added the requirement, that in the case of a musical composition, to retain the performing right, notice of reservation should be printed on the title-page of every published copy, and the act further provided that the proprietor of the performing right, if the owner of the copyright be another person, may require him to print such notice of reservation, for neglect of which he shall forfeit twenty pounds.

{Sidenote: Probable effect}

Thus common law rights, it would seem, in an unpublished and unperformed dramatic or musical work were given, pending publication, statutory protection, apparently in perpetuity, from the date of composition. Publication of a dramatic or musical composition in printed form ensured copyright protection as a book for forty-two years or life and seven years; and performing right was protected for forty-two years from "the first public representation or performance of any dramatic piece or musical composition" or life and seven years, whichever the longer.

{Sidenote: Publication prior to performance}

It had been the view of many English authorities that publication in printed form as a book before the first public performance forfeited performing rights, which opinion was shared by the Royal Copyright Commission as voiced in the report of 1878 in the digest of Sir James Stephen, who said: "The exclusive right of representing or performing a dramatic piece or musical composition cannot be gained if such dramatic piece or musical composition has been printed and published as a book before the first representation thereof." But in the later case of Chappell _v._ Boosey in 1882, in respect to John Oxenford's play of "The bellringer," which had been printed and published previous to performance, it was held in the Court of Chancery that publication as a book before performance does not take away performing rights. On musical compositions, however, the performing right is forfeited on publication in print unless notice of reservation is printed on the published copies. There remain the difficult questions whether when publication precedes performance the statutory protection of the performing right extends beyond the forty-two years from publication and whether copyright and playright should be separately registered. It has been the practice of English dramatists to give a so-called "copyright performance" at a minor theatre, in which actors walk and talk through the drama and the public is invited to pay a shilling at the box office--and sometimes given half a crown apiece for the purpose; which performance, though probably not necessary to fulfill any legal requirement, permits registration of first performance at Stationers' Hall and gives useful public notice to possible infringers.

{Sidenote: The new British code}

This uncertain and confused situation will be remedied under the new British measure by the inclusion under "copyright" of the right "to perform ... to deliver, in public" and the making of the copyright term the "life of the author and fifty years after his death," which together afford the simplest and most complete protection of playright as incident to copyright.

{Sidenote: British international protection}

The international copyright act of 1844 contained the provision "that neither the author of any book, nor the author or composer of any dramatic piece or musical composition ... which shall ... be first published out of her Majesty's dominions, shall have any copyright therein respectively, or any exclusive right to the public representation or performance thereof, otherwise than such, if any, as he may become entitled to under this act,"--a provision inserted probably for advantage in negotiating reciprocal conventions with other countries. This provision was applied in 1863, in the case of Boucicault _v._ Delafield, to a British author whose play had been first printed and published as well as performed in America. In Boucicault _v._ Chatterton in 1876, the Chancery Division held that the prior performance of "The Shaughraun" in New York was publication and deprived the author of playright in England,--which again seems incompatible with the doctrine upheld in the later case of Chappell _v._ Boosey, above cited. Great Britain is the only country in the International Copyright Union which has declined to accept the declarative interpretation made in Paris in 1896 of the Berne convention of 1886, declaring that performance does not constitute publication. Thus if a dramatic or musical work is first publicly performed outside the British dominions, the performing right is extinguished therein, unless protected under the international copyright acts, though first publication outside the British dominions of a work first publicly performed within them, may not extinguish the performing right.

{Sidenote: Statutory ambiguity}

The confusion of judicial interpretations, as to the relations between performance and publication, in international as well as domestic copyright, was invited by the unfortunate draftsmanship in the copyright act of 1842, in which the clause making first performance "equivalent in the construction of this act to the first publication of any book" may be taken either in a comprehensive sense or merely as defining the starting-point for performing right as well as for copyright in the specific sense.

{Sidenote: What is public performance}

The question of what is public performance is of some importance, especially in Great Britain, where playright is not infringed except by representation in a place of dramatic entertainment and where it has been held that any place in which a dramatic piece is publicly performed is for the time a place of dramatic entertainment. A public performance is probably one to which the public in general is admitted either by sale of tickets or by invitation; and this would probably include a performance given before a society to membership in which the public might be admitted, although a performance limited to a certain class of the public might not be construed as a public representation. Where "Our boys" was performed at Guy's Hospital, London, by an amateur company, for nurses and others connected with the hospital specially invited, it was held in 1884, in Duck _v._ Bates, that though a performance may be public where the public are present, although no money is taken, yet the production in question was not a public representation. In this leading case, important as a precedent for America as well as in England, the decision was made by Justices Brett, M. R., and Bowen, L. J., Justice Fry dissenting, and the Master of the Rolls, in an elaborate opinion, discussed the relations of private and public performance, as a question of fact: "In order to entitle the author to penalties there must be a representation which will injure the author's right to money; such, for instance, as a representation which, although it is not for profit, would attract persons who are willing to pay money, and would induce them not to go and see a performance licensed by the author.... The representation must be other than domestic or private. There must be present a sufficient part of the public who would go also to a performance licensed by the author as a commercial transaction.... I wish to say, by way of warning, that those who go beyond the facts of the present case may incur the penalties of the statute."

{Sidenote: Manuscript rights}

Common law rights in an unpublished manuscript of an unperformed work, cover both copyright and playright. In 1894, in Gilbert _v._ Star, while the comic opera "His Excellency" was in manuscript and under rehearsal, Justice Chitty in the Court of Chancery granted an injunction against a newspaper report of the plot and incidents on the common law ground that its communication to the newspaper involved a breach of contract, thus confirming the right of an author to full control of his manuscript work for copyright as well as playright, upheld in Prince Albert _v._ Strange in 1849. But a dramatic author cannot enjoin a drama, however similar, completed before the publication or performance of his own work, as was decided in the case of Reichardt _v._ Sapte, in 1893, where the author of "The picture dealer" was denied relief against the closely parallel play "A lucky dog," which was proved to have been completed in 1890, though not performed until after the writing and presentation of the author's play in 1892.

{Sidenote: American cases}

The right of control of an unpublished dramatic manuscript under common law was strengthened in Herne _v._ Liebler, in 1902, by the decision of Judge Ingraham in the N. Y. Supreme Court, which upheld the right of the plaintiff to prevent sub-license of a play beyond the terms of the contract by a licensee, who had agreed to keep the manuscript unpublished and use it only under specific limitations. In the case of Maxwell _v._ Goodwin, in 1899, where the plaintiff's play of "Congress" had been rejected by the defendant, who afterward produced a play "Ambition," also founded on scenes in Washington, Judge Seaman in the U. S. Circuit Court in Illinois overruled the defendant's contentions that there was no playright under common law in an unpublished manuscript and that there was no inherent property right in ideas or creations of the imagination apart from the manuscript in which they are contained or the language in which they are clothed; though an injunction was denied on proof that the defendant had not read the plaintiff's manuscript and that the actual author of "Ambition" had no knowledge of the plaintiff's play.

{Sidenote: Unpublished orchestral score}

In 1883, in Thomas _v._ Lennon, where Gounod's "Redemption," of which the orchestral score was unpublished, had been rewritten for orchestra from a published non-copyright piano arrangement, Judge Lowell, in the U. S. Circuit Court in Massachusetts, ruled against this as an infringement of the unpublished work on common law grounds--but this decision has not been considered good law.

{Sidenote: Dramatic work by employee}

Copyright in dramatic work can be obtained, as in the case of encyclopaedic and like works, by the employment for hire of a dramatic author, as was fully established in the case of Mallory _v._ Mackaye in 1898, by Judge Wheeler in the U. S. Circuit Court in New York, where Mackaye had contracted for a salary of $5000, that all inventions and plays by him within the ten years of the contract should belong to Mallory, and was restricted accordingly from the independent production of "Hazel Kirke."

{Sidenote: Copyright term}

The duration of copyright in dramatic and musical compositions is the same as for books, in the United States (twenty-eight years with renewal for twenty-eight years more), in Great Britain (under the new code life and fifty years), in Australia (forty-two years or life and seven years, as hitherto in Great Britain), and in Canada and Newfoundland (twenty-eight years with renewal for fourteen years more),--as also in most other countries, the new term for those in the International Copyright Union which have accepted the convention of Berlin, being life and fifty years. But in the case of a "dramatico-musical" work, where the libretto and the music are by different authors, the respective terms may end at different dates, as was held in 1905, and upheld in 1909, by the German courts as to the opera "Carmen" under the Franco-German convention limiting copyright to thirty years after death. Bizet, author of the music, had died in 1875, but one of the three librettists was still living, on which facts the court held that the musical score, but not the libretto, was free from copyright. Under the new British and Canadian measures, which include the unusual provision that the copyright term in a work of joint authorship shall be determined by the first instead of the last death, the result would be to the contrary effect.

{Sidenote: Registration}

Registration in the United States, as also in Canada and Newfoundland, through the deposit of copies, is entirely the same for a dramatic or musical composition as for a book. Registration in England of a dramatic or musical composition under the act of 1842 (sec. 20) was to be made at Stationers' Hall, as in the case of a book, by recording in statutory form the title, the time and place of first publication, or for performing right, of first public performance, and the name and abode of author and of proprietor. But the same law (sec. 24) provided that protection of performing right in a dramatic piece should not be dependent upon entry in the registry and, by including in the definition of a dramatic piece (sec. 2) a "musical entertainment," evidently included musical compositions in this exemption, and thus made registration optional. This view was upheld in 1848 in Russell _v._ Smith, when the song "The ship on fire" was protected as a "dramatic piece," though it had not been registered. The new British measure omits all requirements for registration of any works. Registration of any copyright, performing right or assignment is required in Australia as a prerequisite for legal action.

{Sidenote: Assignment}

Assignment or grant of a dramatic or musical composition, as of a book, may be made (sec. 42) by an instrument in writing, acknowledged, if in a foreign country, (sec. 43) before a consular or diplomatic officer, and must be recorded (sec. 44) in the Copyright Office within three months, or if made in a foreign country, six months, in default of which it is void as against any subsequent purchaser. Assignment in Great Britain must be in writing, and previous to the new code with entry at Stationers' Hall, in the case of performing right as well as of copyright. It should be noted that playright does not pass with copyright _ipso facto_, though the new code as adopted by the House of Commons has no specific provision on this point. But it is most desirable that in any transfer of copyright or playright the exact nature of the right transferred should be defined in the writing. A partial assignment, or license, of performing right as well as of copyright may be made, and will be protected by the courts. The right to grant a specific license, and to enforce its limitations, was upheld in 1892 in Duck _v._ Mayen, in an English court by Justice Day, who held that where the defendant had obtained license at the price of one guinea to play "Our boys" for charity at a music hall, but performed it elsewhere, though for the same charity, the usual royalty of five guineas must be paid. Assignment in Canada and Newfoundland must be in writing in duplicate copies, of which one must be deposited in the office of copyright.

{Sidenote: Parody}

The general principles as to infringement and fair use, treated fully in another chapter, apply to dramatic and musical compositions, as already illustrated above, but some special applications may here be noted. That a parody or burlesque may not be an infringement, though including some quotations from the work parodied, was decided in 1903, in Bloom _v._ Nixon,--where Fay Templeton had given a parody or imitation of another actress's singing of "Sammy" in the "Wizard of Oz,"--in the U. S. Circuit Court in Pennsylvania by Judge McPherson, who held that as this was essentially an imitation of personality, it was not an infringement of copyright: "Surely a parody would not infringe the copyright of the work parodied merely because a few lines of the original might be textually reproduced." The judge added: "No doubt the good faith of such mimicry is an essential element; a mere attempt to evade the owners' copyright ... would properly be prohibited" as "doing in a roundabout way what could not be done directly."

{Sidenote: Infringement by single situation}

There may be infringement of dramatic copyright in the use of a single scene or situation, as already set forth with respect to novels, provided this is of dramatic character. In 1892, in Daly _v._ Webster, the U. S. Circuit Court of Appeals, through Judge Lacombe, held that the railroad rescue scene in Brady's "After dark" infringed the copyright of Daly's "Under the gaslight," which contained the similar situation of the rescue of a person on a railroad track before an approaching train. Though there was little dialogue in this scene, the court held that while mechanical appliances are not entitled to copyright, a series of events dramatically represented are copyrightable. In the subsequent suit for damages, Daly _v._ Brady, the U. S. Supreme Court in 1899, through Justice Peckham, upheld this decision, and held also that such a situation constituted an integral part of the copyrighted drama and should therefore be protected against infringement. That there may be infringement of a dramatic composition without the use of scenery or costumes was incidentally decided in Russell _v._ Smith, where the song "The ship on fire," sung dramatically without these accessories, was protected as a dramatic piece.

{Sidenote: Protection of title}

While the title of a dramatic or musical composition, like that of a book, cannot be copyrighted as such, the courts seem disposed to emphasize the title as an integral part of a play, perhaps more than in the case of a book because the advertising of another play of like name, especially in the case of one of long run and wide popularity, may mislead the public and involve unfair competition. This protection was upheld as a matter of common law in Aronson _v._ Fleckenstein in 1886, by Judge Blodgett in the U. S. Circuit Court in Illinois, when the use of the title "Erminie" was held to be unlawful, though the operetta originally designated by the title had not been copyrighted. But in Glaser _v._ St. Elmo Co. in 1909, the U. S. Circuit Court denied relief where the title of Miss Evans's novel, then out of copyright, was used for a second and unauthorized dramatization. There may be danger to copyright or playright when a work is published or performed under a title differing from that under which it is copyrighted; but the change of a descriptive sub-title has been held to be immaterial. In the case of Daly's play "Under the gaslight," which in the copyright entry bore the sub-title "A romantic panorama of the streets and homes of New York," but in printed form the changed sub-title "A totally original picturesque drama of life and love in these times," the defendants in Daly _v._ Webster alleged that this change made the copyright invalid, which contention was negatived by the U. S. Circuit Court of Appeals, which held in 1892 that the sub-title was merely descriptive and not an essential part of the title--a principle later applied by Judge Lacombe in Patterson _v._ Ogilvie, in 1902.

{Sidenote: Names of characters}

In the case of Frohman _v._ Weber in 1903, in the N. Y. Supreme Court, where the proprietor of the play entitled "Sherlock Holmes" sought to enjoin another play "The sign of the four," in which the name Sherlock Holmes designated the leading character, Judge Clarke held that this did not constitute unfair competition and denied a preliminary injunction.

{Sidenote: Persons liable for infringement}

{Sidenote: Principal in control}

The question of the person liable for the infringement, especially of playright, is one of some difficulty. In general, while any one participating in a piratical performance, as an actor, is technically guilty of infringement, it is usually the person or persons responsible for and profiting by the performance who should be sued. The question of responsibility is one of fact, and the early English decisions seem confused and even contradictory. The person who has the initiative and control of a performance, particularly if he is directly the employer of the performers and has authority to discharge them, may be, _par excellence_, the infringer even if he does not know that the performance is piratical. In 1886, in Monaghan _v._ Taylor, the defendant was held liable for infringement because a singer employed in his music hall sang a copyright song, though the defendant did not choose or pass upon the number. Thereafter in the "copyright (musical composition) act" of 1888, it was provided that "the proprietor, tenant or occupier of any place of dramatic entertainment" shall not be liable, "unless he shall willfully cause or permit" a performance, "knowing it to be unauthorized." The courts seem disposed to acquit a mere agent of responsibility. In 1893, in French _v._ Day, Gregory, _et al._, it was held by Justice Kennedy as to a performance of "The miner's wife" asserted to be an infringement of "Lost in London," that the proprietor of the theatre, Day, "who merely used Gregory," the manager, "as his mouthpiece," was the responsible defendant. The new British code holds liable any person who for profit permits a place of entertainment to be used for an infringing performance unless he were not aware and had no reasonable grounds for suspecting it to be an infringement.

{Sidenote: Protection against "fly by night" companies}

{Sidenote: State legislation}

In the prevention or punishment of unauthorized performances by irresponsible private companies, the chief obstacle in the United States was the difficulty of reaching the "fly by night" companies, as they were called, as they flitted from state to state, and from one court jurisdiction to another. To remedy this difficulty, an important protection of the performing right in dramatic works was assured by the act of January 6, 1897, obtained largely through the efforts of Bronson Howard, as president of the American Dramatists Club. This act provided penalty of $100 for the first and $50 for each subsequent unlawful performance, and imprisonment for not exceeding one year, when such unlawful performance was willful and for profit; and also that an injunction issued in any one circuit might be enforced by any other circuit in the United States. This was in consonance with successful efforts to obtain the passage of state laws to protect dramatic and musical works, aside from the federal copyright law, obtained by the Dramatists Club between 1895 and 1905 in the states of New Hampshire, New York, Louisiana, Oregon, Pennsylvania, Ohio, New Jersey, Massachusetts, Minnesota, California, Wisconsin, Connecticut, and Michigan. These varied in form in the several states, though of the same general purport. The New York statute, for instance, adds to the penal code a new section as follows: "Sec. 729. Any person who causes to be publicly performed or represented for profit any unpublished, undedicated or copyrighted dramatic composition, or musical composition known as an opera, without the consent of its owner or proprietor, or who, knowing that such dramatic or musical composition is unpublished, undedicated or copyrighted and without the consent of its owner, or proprietor, permits, aids or takes part in such a performance or representation shall be guilty of a misdemeanor." The texts in all the states are given in full in Copyright Office Bulletin No. 3, 1906, "Copyright enactments of the United States," pages 105-115.

{Sidenote: Remedies under present law}

The American code of 1909 enacts (sec. 28) that "any person who willfully and for profit shall infringe any copyright ... or who shall knowingly and willfully aid or abet such infringement, shall be deemed guilty of a misdemeanor," punishable by "imprisonment for not exceeding one year or by a fine of not less than one hundred dollars nor more than one thousand dollars, or both, in the discretion of the court"; and provides (sec. 25, fourth) damages "in the case of dramatic or dramatico-musical or a choral or orchestral composition, one hundred dollars for the first and fifty dollars for every subsequent infringing performance; in the case of other musical compositions, ten dollars for every infringing performance"; and also provides (sec. 36) for injunction operative throughout the United States.

{Sidenote: Musical protection in England}

{Sidenote: Acts of 1902-1906}

In England the protection of musical properties under the acts of 1833-42 and 1882-88, had become so difficult that English music publishers threatened to cease printing new original works because of the freedom with which they could be pirated. Under the provisions of 1833, as reenacted in 1842, every infringing performance of a musical composition, as of a dramatic piece, involved liability to "an amount not less than forty shillings or the full amount of the benefit or advantage arising from such representation, or the injury or loss sustained by the plaintiff therefrom, whichever may be the greater damage," in addition to costs. The "copyright (musical compositions) act" of 1882 (45 & 46 Victoria, c. 40) had required that the right of public performance should be reserved by printed notice on each published copy and provided for a penalty of twenty pounds where the proprietor of the publishing copyright neglected, after requirement from the owner of the performing right, to print such notice. The "copyright (musical compositions) act" of 1888 (51 & 52 Victoria, c. 17) provided that the penalty or damages for every unauthorized performance of any musical composition shall, in the discretion of the court, be "reasonable" and may be less than forty shillings for each such performance, or nominal, and that the proprietor, tenant or occupier should not be liable unless "willfully" causing or permitting such unauthorized performance, "knowing it to be unauthorized,"--but the act specifically excepted "any opera or stage play" from its provisions. The protest of the musical composers and publishers led to the passage of the "musical (summary proceedings copyright) act" of 1902, which authorized a constable to seize without warrant pirated copies hawked or otherwise offered for sale, on the written request and at the risk of the copyright owner or by direction of the court, and provided for their forfeiture and destruction or delivery to the owner on the decision of the court. A Musical Copyright Committee, for the consideration of these vexed questions, was appointed by the Home Office and made a report in 1904; and a further "musical copyright act" of 1906 continued the provisions stated and provided also for the seizure of plates as well as copies of pirated musical compositions and for the summary punishment of the offender by fine not exceeding five pounds and, for a repeated offense, by fine not exceeding ten pounds or imprisonment not exceeding two months, possession being proof of fraudulent intent unless the copies bore the name of a printer or publisher. Both these acts were applicable only within the United Kingdom. These provisions, in addition to those for injunction and adequate costs, have bettered the condition of musical properties in England, and they remain unrepealed, except as to requirement of registration, under the new British code as adopted by the House of Commons.

{Sidenote: Playright in other countries}

In most countries playright in the case of dramatic or musical works is specifically covered in the copyright statutes or protected in connection with copyright, although in Austria, Russia, Denmark and Norway, in the case of music, special notice of reservation is required, while in Australia special reservation of the performing right must be made on publication in print of drama or music.

{Sidenote: International provisions}

In general, performance is differentiated from publication, and while in some countries, as above indicated, publication in printed form, especially of a musical work, may waive the exclusive right of performance, performance is generally held not to constitute publication. This view is expressly set forth in the interpretation made at Paris, 1896, of the Berne convention of 1886, whereby section 2 of the interpretative declaration defines "published works" as "works actually issued to the public." "Consequently, the representation of a dramatic or dramatico-musical work, the performance of a musical work ... do not constitute publication." The Berlin convention of 1908 repeats the same language in article 4, prefacing it with the definition that "by published works ('_oeuvres publiees_') must be understood, according to the present convention, works which have been issued ('_oeuvres editees_')"--the English text here given being the official translation of the U. S. Copyright Office.

{Sidenote: Foreign protection of arrangements}

In most foreign countries which include musical compositions under subjects of copyright either as covered under "literary and artistic works" or by specific mention, the general principles as to arrangements and adaptations hold in such countries. Several countries, as Belgium, specify however "the exclusive right of making arrangements on motives of the original composition," Brazil, Luxemburg, Mexico, Nicaragua and Tunis following this precedent in nearly identical language. Germany specifically protects the "sole right of making extracts from musical works and arranging for orchestra or in parts." Spain specifies among its prohibitions "the total or partial publication of melodies, with or without accompaniment, transposed or arranged for other instruments or with different words." Hungary specifies that "every arrangement of a musical work, published without the consent of the author, which cannot be considered as a composition in itself," is an infringement. Where, however, the author of a work permits or licenses an adaptation or arrangement, or an original adaptation or arrangement is made from a work in the public domain, that is properly a separate subject of copyright, as is specified in the statutes of Colombia, to the effect that "variations, etc., on a theme or air which is public property, constitutes property. Transpositions are similar to translations of literary subjects."

{Sidenote: International definitions}

Dramatic and musical works were specifically included under the protection of the International Copyright Convention of Berne, 1886, by the definition in article IV of "literary and artistic works" as including "dramatic or dramatico-musical works; musical compositions with or without words." In the Berlin convention, 1908, the same general term was defined in article 2 as including "dramatic or dramatico-musical works; choregraphic works and pantomimes, the stage directions ('_mise en scene_') of which are fixed in writing or otherwise; musical compositions with or without words." "Adaptations, arrangements of music, etc., are specially included," in the phraseology of article X of the convention of 1886, "amongst the illicit reproductions to which the present convention applies, when they are only the reproduction of a particular work, in the same form, or in another form, with non-essential alterations, or abridgments, so made as not to confer the character of a new original work"; and practically the same language is repeated in article 12 of the convention of 1908. On the other hand, "adaptations, arrangements of music," etc., are protected as original works without prejudice to the rights of the author of the original work, in article 2 of the convention of 1908.

The German law of 1901 permits, however, extract from or other use of musical compositions in adaptations or arrangement under specified circumstances, as for family, social or other gratuitous performance, under the limitations of the law, which exception seems to be permitted also under the law of 1910.

{Sidenote: National formalities}

Throughout the countries of the International Copyright Union, first publication in any of these countries and compliance with its formalities entitle the author to playright as well as copyright in all the other countries within the Union, with some exceptions to be noted. Thus in Switzerland the conditions of performance must be given at the head of the printed play; and the law stipulates that the author may not require as royalty more than two per cent of the gross profits, and a performance at which the admission fee is reckoned to cover only cost of production or a performance for charitable purposes, is not considered an infringement of playright. In Italy a play performed, but not printed and published, must be submitted in manuscript for inspection within three months of first performance, together with a declaration reserving the playright; a printed book or play should be deposited with accompanying notice of reservation within three months, or the proprietor cannot obtain damages until such deposit, and failure to deposit within ten years abandons copyright protection. Italian proprietors of music sometimes refrain from printing and publishing music, with the intent of maintaining copyright and playright indefinitely.

{Sidenote: Specific reservations or conditions}

In Luxemburg and Sweden, reservation of playright must be stated on printed copies, as is also the case as to music in these countries and in the other countries elsewhere cited. In Sweden, the term for playright is less than for copyright in the printed work, being for life and thirty years only. In Sweden and Norway, the author protecting his rights by first publication in these countries, must be a citizen of one of the countries within the International Copyright Union or must acquire rights through a publisher therein; though in the other countries of the Union, this question of nationality is immaterial. In Norway and Denmark, there must be reservation of right of recitation, but in Norway this lapses in any event at the end of three years, provided the recitation does not take the shape of a dramatic performance. In Holland and the Dutch Indies, reservation of playright must be given, and printing within the country has hitherto been required to protect a published work. In Hungary, the author of a play must give his name on the title-page or in the announcement of the play, and protection is extended to foreigners who have been for two years rate-payers and residents in Hungary, as well as those whose countries have reciprocal relations. In Finland, the author's name and reservation of playright must be given on the printed copy, and protection is extended to foreigners on condition of residence and publication in Finland.

Most of the smaller European countries and many South American countries, including playright under copyright, base protection on reciprocal protection of their citizens in other countries, while protection of performing rights in Brazil requires notice on printed plays of the reservation of royalty for performance. In many oriental countries, as Egypt, China, etc., protection is afforded to some extent in the consular courts.

{Sidenote: Pan American Union}

In the Pan American Union, the Buenos Aires convention of 1910 specifically includes dramatic and musical works as literary works, without special provisions.

XII

MECHANICAL MUSIC PROVISIONS

{Sidenote: "Canned music" contest}

As the international copyright provision with the manufacturing clause was the central feature of the copyright campaign culminating in the law of 1891, so the provision for the control of mechanical music with the compulsory license clause was the central feature of the contest culminating in the act of 1909. This came to be known as the "canned music" fight, and arguments pro and con consumed the greater part of the hearings before the Committees on Patents. The solution finally reached was in the provisos added to the musical subsection (e) of section 1 of the bill, which in full is as follows:

{Sidenote: Mechanical music provisos}

{Sidenote: Compulsory license}

"(e) To perform the copyrighted work publicly for profit if it be a musical composition and for the purpose of public performance for profit; and for the purposes set forth in subsection (a) hereof, to make any arrangement or setting of it or of the melody of it in any system of notation or any form of record in which the thought of an author may be recorded and from which it may be read or reproduced: _Provided_, That the provisions of this Act, so far as they secure copyright controlling the parts of instruments serving to reproduce mechanically the musical work, shall include only compositions published and copyrighted after this Act goes into effect, and shall not include the works of a foreign author or composer unless the foreign state or nation of which such author or composer is a citizen or subject grants, either by treaty, convention, agreement, or law, to citizens of the United States similar rights: _And_ _provided further, and as a condition of extending the copyright control to such mechanical reproductions_, That whenever the owner of a musical copyright has used or permitted or knowingly acquiesced in the use of the copyrighted work upon the parts of instruments serving to reproduce mechanically the musical work, any other person may make similar use of the copyrighted work upon the payment to the copyright proprietor of a royalty of two cents on each such part manufactured, to be paid by the manufacturer thereof; and the copyright proprietor may require, and if so the manufacturer shall furnish, a report under oath on the twentieth day of each month on the number of parts of instruments manufactured during the previous month serving to reproduce mechanically said musical work, and royalties shall be due on the parts manufactured during any month upon the twentieth of the next succeeding month. The payment of the royalty provided for by this section shall free the articles or devices for which such royalty has been paid from further contribution to the copyright except in case of public performance for profit: _And provided further_, That it shall be the duty of the copyright owner, if he uses the musical composition himself for the manufacture of parts of instruments serving to reproduce mechanically the musical work, or licenses others to do so, to file notice thereof, accompanied by a recording fee, in the copyright office, and any failure to file such notice shall be a complete defense to any suit, action, or proceeding for any infringement of such copyright.

{Sidenote: Damages}

"In case of the failure of such manufacturer to pay to the copyright proprietor within thirty days after demand in writing the full sum of royalties due at said rate at the date of such demand the court may award taxable costs to the plaintiff and a reasonable counsel fee, and the court may, in its discretion, enter judgment therein for any sum in addition over the amount found to be due as royalty in accordance with the terms of this Act, not exceeding three times such amount.

{Sidenote: Public performance}

"The reproduction or rendition of a musical composition by or upon coin-operated machines shall not be deemed a public performance for profit unless a fee is charged for admission to the place where such reproduction or rendition occurs."

This provision, though somewhat involved in form, tells its own story, and there has thus far been no occasion for judicial construction.

{Sidenote: The compromise result}

In the series of discussions before the Committees, the friends of copyright argued for the exclusive and unrestricted right of the musical composer to control absolutely the mechanical reproductions of his work, while the representatives of "canned music" argued at first that mechanical reproduction should be permitted without reference to copyright, and later that there should be entire liberty to make reproductions of a musical work on the sole condition of a specified payment to the copyright proprietor. The provision as actually adopted was a compromise upholding the negative right of the author to prevent mechanical reproduction, but requiring him, in the event of a grant of authority to any one manufacturer to reproduce his work mechanically, to extend that privilege to any other manufacturer on payment of the specified royalty. This scheme is practically modeled on what was known as the Pearsall-Smith royalty plan, which, as proposed for books, was stoutly fought by the proponents of the copyright act of 1891, throughout that memorable copyright campaign.

{Sidenote: Judicial construction}

In the case of the White-Smith Music Pub. Co. _v._ Apollo Co., in which the AEolian Co. was supposed to be the real complainant, the representatives of the musical author were, in 1906, denied protection against the mechanical music rolls made by the defendant, by the Circuit Court of Appeals, where the judges considered themselves "constrained" by the necessity of strict construction to decide that "a perforated roll is not a copy in fact of complainant's staff notation," while saying "that the rights sought to be protected belong to the same class as those covered by the specific provisions of the copyright statutes." It was presumed by many during the copyright campaign that the Supreme Court would make a broad construction of the statute, but that court held, February 24, 1908, in an opinion written by Justice Day, that the considerations adduced "properly address themselves to the legislative and not to the judicial branch of the Government" and that "as the act of Congress now stands, we believe it does not include these records as copies or publications of the copyright music involved in these cases." Justice Holmes, while not dissenting, added a memorandum to the effect that "the result is to give to copyright less scope than its rational significance and the ground on which it is granted seems to me to demand.... On principle, anything that mechanically reproduces that collocation of sounds ought to be held a copy, or if the statute is too narrow, ought to be made so by a further act, except so far as some extraneous consideration of policy may oppose." While the judges thus felt "constrained" to deny relief, their strong language in defense of copyright control doubtless had its effect upon the legislative authorities in the framing and the passage of the new code.

This decision was confirmatory of an earlier decision, in Stern _v._ Rosey in 1901, of Judge Shepard in the Court of Appeals in the District of Columbia, that the mechanical reproduction of two copyrighted songs could not be prevented under the existing law.

{Sidenote: Punishment of infringement}

Specific and elaborate provision is made for the punishment of infringers under the mechanical music proviso (sec. 1, e) by sec. 25, e:

{Sidenote: Notice to proprietor of intention to use}

"Whenever the owner of a musical copyright has used or permitted the use of the copyrighted work upon the parts of musical instruments serving to reproduce mechanically the musical work, then in case of infringement of such copyright by the unauthorized manufacture, use, or sale of interchangeable parts, such as disks, rolls, bands, or cylinders for use in mechanical music-producing machines adapted to reproduce the copyrighted music, no criminal action shall be brought, but in a civil action an injunction may be granted upon such terms as the court may impose, and the plaintiff shall be entitled to recover in lieu of profits and damages a royalty as provided in section one, subsection (e), of this Act: _Provided also_, That whenever any person, in the absence of a license agreement, intends to use a copyrighted musical composition upon the parts of instruments serving to reproduce mechanically the musical work, relying upon the compulsory license provision of this Act, he shall serve notice of such intention, by registered mail, upon the copyright proprietor at his last address disclosed by the records of the copyright office, sending to the copyright office a duplicate of such notice; and in case of his failure so to do the court may, in its discretion, in addition to sums hereinabove mentioned, award the complainant a further sum, not to exceed three times the amount provided by section one, subsection (e), by way of damages, and not as a penalty, and also a temporary injunction until the full award is paid."

{Sidenote: Copyright Office form and fees}

The Copyright Office provides a special form (U) on a blue card for registration of "notice of use on mechanical instruments," in which the copyright owner of a musical composition gives notice that he "has used or has licensed the use of said composition for the manufacture of parts of instruments serving to reproduce mechanically such musical work." The recording fee for such notice, as fixed by the statute (sec. 61), is twenty-five cents for the first fifty words and twenty-five cents additional for each additional hundred words.

For recording and certifying the license referred to (sec. 1, e) the statute provides (sec. 61) for a fee of one dollar for not over three hundred words, two dollars if not over one thousand words and one dollar for each additional one thousand words or fraction thereof over three hundred words.

{Sidenote: The constitutional question}

The actual fixing of a specified price, as that of two cents or a halfpenny on each reproduction, is a feature quite new in law, American or English, and involves a serious constitutional question. Congress has granted to the Interstate Commerce Commission, and state legislatures to specified authorities, as public service commissions, power to regulate prices; and the U. S. Supreme Court, in 1909, confirming the N. Y. Court of Appeals in the Consolidated Gas Co. cases, upheld the application of the sovereign power of the state to limit the price of gas to 80 cents per 1000 cubic feet, as sold by a corporation enjoying a public franchise. In this compulsory license provision of the copyright code, Congress has gone further in two directions: it has fixed a royalty price, not by definition or limitation of a "reasonable" price, but absolutely, and it has applied this provision not to a corporation enjoying franchise privileges, but to the individual owner of property created by his own labor.

{Sidenote: English law}

The English laws had not mentioned mechanical reproduction up to the musical copyright act of 1906, which in section 3 expressly provided that "'pirated copies' and 'plates' shall not, for the purposes of this Act, be deemed to include perforated music rolls used for playing mechanical instruments, or records used for the reproduction of sound waves, or the matrices or other appliances by which such rolls or records respectively are made." The test case meanwhile on this question was that of Boosey v. Whight, which was finally decided in the Court of Appeal in 1900, with respect to the use of copyrighted songs on the perforated rolls of the AEolian. Justice Sterling in the lower court had decided that the perforations were not an infringement of the copyright but that the marginal directions for playing might be such; Justice Lindley, M. R., held with him that the perforated roll was not a "copy" of the sheet music, but overruled him on the second point, holding that the directions, though copied from the printed page, were neither music nor a literary composition.

{Sidenote: The new British code}

The new British measure as prepared in 1910 included as incident to copyright the sole right "in the case of a literary, dramatic or musical work, to make any record, perforated roll, cinematograph film, or other contrivance by means of which the work may be mechanically performed or delivered," thus in the simplest fashion completely covering the control of mechanical reproduction in conformity with the convention of Berlin. But in the Parliament of 1911 the bill emerged from committee stage with an elaborate proviso, based on the American precedent, excepting from the definition of infringement contrivances for the mechanical reproduction of sounds on (1) proof that the copyright owner has previously acquiesced in mechanical reproduction, (2) prescribed notice of intention, and (3) payment of royalty of 2-1/2 or 5 per cent with a minimum of a halfpenny for each record, or in the case of different works on the same record, to each copyright proprietor.

{Sidenote: The Berne situation, 1886}

When the international representatives met at Berne in 1886, the mechanical reproduction of music was confined chiefly if not wholly to Swiss music-boxes and orchestrions and to hand-organs, of comparatively little commercial importance; and, possibly with some thought of the recognition of the hospitality of Switzerland, little emphasis was placed on the protection of musical composers against mechanical reproduction of their works. In fact, the final protocol of the Berne Convention of 1886 contained, as clause 3, the following paragraph: "It is understood that the manufacture and sale of instruments for the mechanical reproduction of musical airs which are copyright, shall not be considered as constituting an infringement of musical copyright."

{Sidenote: Lack of action at Paris, 1896}

Despite strong representations at the congresses of the International Association for the protection of literary property, held at London in 1890, Neufchatel in 1891, and Milan in 1892, and a vigorous endeavor in connection with the Paris convention of 1896 to replace this clause, it was not modified until the convention of Berlin in 1908, in preparation for which a strong resolution was passed at the congress of the International Association at Vevey in 1901.

{Sidenote: The Berlin provision, 1908}

With the increasing development of the phonograph and of the mechanical player, mechanical reproductions became so important a matter to musical composers and publishers, that much of the discussion in respect to the amendatory convention of Berlin of 1908 was upon this subject. In the amended convention, the subject was fully covered by article 13:

"Authors of musical works have the exclusive right to authorize: (1) the adaptation of these works to instruments serving to reproduce them mechanically; (2) the public performance of the same works by means of these instruments.

"The limitations and conditions relative to the application of this article shall be determined by the domestic legislation of each country in its own case; but all limitations and conditions of this nature shall have an effect strictly limited to the country which shall have adopted them.

"The provisions of paragraph 1 have no retroactive effect, and therefore are not applicable in a country of the Union to works which, in that country, shall have been lawfully adapted to mechanical instruments before the going into force of the present Convention.

"The adaptations made by virtue of paragraphs 2 and 3 of this article and imported without the authorization of the parties interested into a country where they are not lawful, may be seized there."

{Sidenote: German precedents}

In Germany, under the general copyright law of 1870, the higher courts gave to musical composers control over mechanical reproductions from which, as the industry grew, the authors or publishers obtained some little return. But succeeding the adoption of the permissive clause in the Berne convention of 1886, it was proposed in the new copyright law to free mechanical reproductions from the control of the composer. A protest was at once made by musical authors and publishers, which resulted in a modification of the form proposed by the government and the addition of a clause giving control where the reproduction involved personal interpretation. In this form the "unfortunate section 22" became part of the law of 1901 relating to copyright in literary and musical works. Section 22 was in the following language:

"Reproduction is permitted when a musical composition is, after publication, transferred to such discs, plates, cylinders, bands and similar parts of instruments for the mechanical rendering of pieces of music. This provision is applicable also to interchangeable parts, provided that they are not applied to instruments by which the work can, as regards strength and duration of tone and tempo, be rendered in a manner resembling a personal performance."

{Sidenote: Law of 1910}

This had the extraordinary and contradictory effect of giving the author control over the finer reproductions of his works but denying to him any control over the cruder reproductions, as on hand-organs, orchestrions, etc. The opposition which developed against this impossible situation was largely influential in bringing about the modification at Berlin in 1908 of the Berne clause. The law of May 22, 1910, amended the previous general laws in conformity with the Berlin convention, especially by extending protection to the mechanical reproduction of music and cinematograph reproduction of artistic works. Section 22 of the law of 1901 was specifically replaced by an elaborate section, modeled on the American compulsory license provision and requiring a composer who permitted mechanical reproduction to grant similar rights on equal terms to any other manufacturers domiciled in Germany, with provisions for reciprocity and for the treatment of non-German composers through the tribunals of Leipzig. This law became effective coordinately with the Berlin convention on September 9, 1910, and in connection with it an ordinance promulgated by the Emperor July 12, 1910, defined the time during which mechanical reproductions already made of copyrighted works should still be permitted. The use of extracts from musical as from other works, as perhaps in _potpourris_, seems however still to be permitted as a result of the law of 1901.

{Sidenote: Germany and the United States}

As a result of the reciprocal provisions of the new German law, the President of the United States on December 8, 1910, proclaimed reciprocal relations between Germany and the United States with reference to mechanical reproductions of music. In the opinion of May 6, 1911, approved by the Attorney-General, a Presidential proclamation is required to determine "the existence of reciprocal conditions" as to the mechanical music provision (sec. 1, e) as in respect to sec. 8; but as the proclamation of December 8 did not recite that reciprocal conditions existed between September 9 and December 8, 1910, it is held that "it would not afford evidence sufficient to sustain an action for infringement between said dates."

{Sidenote: French precedents}

In France the general copyright act of 1793, as considered to cover mechanical music, was interpreted or modified by the act of 1866, which enacted that "the manufacture and sale of instruments serving to reproduce mechanically musical airs which are still in the private domain, does not constitute musical infringement." In the suit of Enoch _v. Societe des phonographes et gramophones_, the Civil Court of the Seine had decided in 1903 that phonographic instruments were excepted from the protection of the law of 1793 by the "general immunities" concerning the mechanical musical instruments in the act of 1866. But in 1905 the Court of Appeals of Paris reversed this decision, holding that the law of 1866 applied solely to musical airs, that is, those involving no words, on the ground that the law of 1793 was enunciatory of the rights of authors, applying to all modes of publication and distribution, and that the word "publication" should be understood broadly "as jurisprudence has applied it to numerous modes of publication discovered since the law of July 19 and 24, 1793, and the Code of 1810, and as nothing prevents its extension, in consequence of scientific progress"; and it therefore concluded that literary works either by themselves or associated with music were practically under the law of 1793 and not exempted by the law of 1866. A more recent case, in the Court of Commerce of the Seine in 1905, resulted, however, in the dismissal of a suit for infringement. France accepted the Berlin convention, June 28, 1910; but its provision in article 13, that "the limitations and conditions" as to mechanical music protection "shall be determined by the domestic legislation of each country in its own case," makes uncertain whether protection becomes effective in the absence of specific legislation.

{Sidenote: Belgian precedents}

In Belgium in 1904, in the suit of Massenet and Puccini _v. Compagnie Generale des phonographes, et al._, it was held by the court of first instance of Brussels that the introduction for sale of discs and cylinders reproducing the musical compositions of the plaintiffs was illegal and liable for damages and punishable as an infringement. This decision was, however, overruled by the Court of Appeals of Brussels in 1905. Belgium accepted the Berlin convention, May 23, 1910, has since protected mechanical reproduction, and was proclaimed as in reciprocal relations with the United States, June 14, 1911.

{Sidenote: Italian precedents}

In Italy the copyright law was considered in relation to mechanical instruments by several court decisions of which the latest and most important seems to be in the case of the _Societa Italiana d. Autori v._ Gramophone Co. of London, in which, in 1906, the Royal Court of Milan held that reproductions of music by gramophone constituted infringement. This decision held that article three of the Berne convention of 1886 could not derogate from or modify the domestic private law of 1882, and as the Italian law specifically covers publication and reproduction "by any method," it includes gramophone discs. "Publication means a process by which the intellectual concept of the artist is revealed, and brought to the knowledge of others." "What the legislature wanted has been this: that the author be the exclusive owner of the external form in which the creation of the mind has been fixed, and, so to speak, materialized; and that the right be reserved to him to get from his studies and his exertions all the economic benefits which he could derive therefrom."

{Sidenote: Other countries}

In the laws of Switzerland of 1883, and Monaco and Tunis of 1889, the fabrication and sale of mechanical instruments or devices for reproducing musical airs were excepted from the definition of piracy. But all these countries have ratified the Berlin convention "without reservation." Luxemburg and Norway have applied the Berlin provision and were proclaimed as in reciprocal relation with the United States on June 14, 1911. Russia has followed American precedent in the new law of 1911, but has no reciprocal relations with the United States.

{Sidenote: Argument for inclusion}

As the opposition to the control by musical composers of mechanical reproductions of their works is still strong in the United States and in several countries, notwithstanding recent conventions and legislation, and is based largely upon restrictive definitions of the words "writings" and "copies" or their equivalent in other languages, it may be well to include here the argument made by the writer as Vice-president of the American (Authors) Copyright League, at the Congressional hearings on the new American code, of which the essential portions are as follows:

"The American Copyright League stands, as it has stood for a quarter of a century, simply and solely for the protection of authors' rights to the fullest extent, and it asserts that a musical composer is as fully entitled as is the author of any other creative work to the exclusive and full benefits of his compositions, in whatever manner reproduced. The opponents of the bill base their objections largely on a restrictive definition of the word 'writings,' and criticise the bill because this word 'writings' is interpreted throughout the bill by the word 'works,' although this accurately reflects the understanding of Congress and the interpretation of the courts. They would, in fact, confine copyright protection specifically, it may be said, to e-y-e-deas, that is, visible records, and exclude as not visible or legible by the eye, copies of musical compositions mechanically made and interpreted.

{Sidenote: Inscribed writings}

{Sidenote: Direct sound-writing}

"The earliest _writing_ which remains to us is in the Assyrian wedge-shaped inscriptions, made by pressing the end of a squared stick into a soft clay cylinder; the phonograph point inscribes its record in exactly the same manner upon the 'wax' or composition of the cylinder or disc, for the mechanism only revolves the roll, and the point is actuated by the sound vibrations. The words 'phonograph,' 'graphophone' and 'gramophone' literally mean 'sound-writing,' for the Greek form _graph-_, the Latin form _scrib-_, and the Saxon form _write_, equally parts of our language, denote exactly the same meaning. It is even probable that a future development of phonograph impressions (the third dimension being translated into breadth of stroke as can be mechanically done) will give ultimately a visual phonograph alphabet even more natural and logical than Professor Bell's remarkable system of 'visible speech,' which, of course, like all alphabets, can be read only when the reader has mastered the significance of the symbols. Mr. Edison has himself made some experiments in this direction, though the confusion from the overtones, which give _quality_ of speech, has so far prevented result. A large share of literary productivity to-day is by voice-dictation recorded mechanically by a stenographer on the typewriter or directly on the phonograph disc, and I may instance from personal experience a further step. As one of the committee for the Edison birthday dinner, commemorating the twenty-fifth anniversary of his invention of the incandescent lamp, I was asked to supply some original verse, and it occurred to me to put this in shape by help of Mr. Edison's inventions, without direct or indirect hand- or typewriting. Accordingly I completed the verses mentally without use of paper and voiced them into an Edison phonograph, verifying this through the telephone, and the lines were set in type by the printer from the sound-record, and thus printed on the _menu_ for the dinner. Thus my formulated ideas were recorded through the nerves and other mechanism of the vocal organs, instead of through the nerves and other mechanism of the hand, directly by the phonograph point on the phonograph cylinder; and it seems a common-sense inference that if I had caused copies of the phonograph cylinder, though not legible in the ordinary sense, to be published instead of the secondary copies in print, I should be as much entitled to copyright protection in the one case as in the other. The 'telegraphone' directly records on a steel tape the sounds of the human voice as sent through the telephone, and by an absolutely invisible re-arrangement of the magnetized particles of steel, makes a writing in which there is no possibility of visual legibility.

{Sidenote: Music transmissal}

"Moreover, invention is now developing a series of reproducing mechanisms such as Dr. Cahill's 'telharmonicon' or 'dynamophone,' in which musical compositions will be translated to the ear without the interposition even of a cylinder or disc sound-record; and it seems a common-sense inference that the musical composer should have as full rights in this as in other forms of copying or reproducing his thought. Buda-Pesth is said to have not only a telephone 'newspaper,' but a system of reading novels and other works of literature to telephone subscribers, and if this should reach such proportions as substantially to reduce the sale of the printed copies of a new novel from which the author would receive benefit, it would also seem a common-sense inference that the same or an equivalent royalty should be paid him.

{Sidenote: Music notation}

"In music writing or notation there are two and only two essentials: relative vertical position, showing pitch, and relative horizontal position, showing duration of notes. The earliest form of our present music writing is the system of the 'large,' 'long,' 'breve' and 'semi-breve' notes, in which the pitch was shown by the vertical relations of the notes, and the length of the note by the length of the black mark, the 'large' mark being twice the length of the 'long' mark. This corresponds closely to the perforated music roll of to-day, which could be read by a practiced eye with and probably without staff lines, to the extent that if every other form of reproduction were destroyed, the melody and harmony of a musical work could be reproduced into the ordinary notation of music writing. I speak from personal knowledge of these music rolls, having had a mechanical instrument for some years. The different kinds of rolls differ in the relative spacing and in distance from the edge of the roll, which gives the standard, but a foreshortened photograph of any, bringing them to the same scale, would pattern closely the early form of music writing above cited. The London postal telegraph system dispatches newspaper material from St. Martin's le Grand throughout the kingdom from continuous perforated ribbons made somewhat in the same way, visible and legible only to an expert, and reproductions by the medium of this device would certainly not vitiate copyright.

{Sidenote: The law prior to 1909}

"It may be observed that the existing law gives to the author or proprietor of a musical composition the sole liberty not only of printing, but of publishing, copying, vending, performing, or representing a musical composition; that the statute does not restrict 'copying' either to a copy of 'staff notation' or from or in any particular form, but prohibits in general any copy of a musical composition; that there is no suggestion in the statute that the copy must be one to be read, _e. g._, a copy of a sculpture; that any sound-record is in the wide sense as truly a copy of a musical composition as a printed sheet, which is not a copy, in fact, of the author's manuscript writing; and that as the roll has for its sole purpose the performing by the aid of a mechanism useless without it, of a musical composition, just as a printed sheet of music has the sole purpose of the performing by the aid of the voice, the piano, or the orchestra, of a musical composition, the maker and vendor of the roll is in exactly the same position as the maker or vendor of a printed sheet of music.

{Sidenote: Manuscript and copies}

"But even if phonograph and perforated records should not be considered, as is sculpture, to be 'writings,' the arguments of the opponents of this bill do not fit the case. The Constitution explicitly provides that authors shall have _exclusive rights_ to their writings. This cannot mean exclusive rights to their written manuscripts, for these are protected by common law and no constitutional provision was necessary. It meant and means evidently that authors shall have exclusive rights to the benefits of their writings, the usufruct of the property they have created, and that means practically a monopoly control over all copies or reproductions from such writings, whether the copies are in handwriting, printing, or any other form. A musical score is definitely a writing, for it is even more than a literary manuscript, originally in the personal handwriting of the composer himself, without the intervention of a stenographer or a typewriting machine. Therefore, if the narrowest meaning of the word 'writings' should be interpreted into the Constitution such as would exclude sculptures and other works which are admittedly proper and legal subjects of copyright, it would still specifically include musical and dramatic as well as literary manuscripts. There is no specification in the Constitution confining the exclusive rights over writings to copies in handwriting or print or any other stated process of reproduction; in fact, the Constitution does not use the word 'copyright' or in any way limit by specification the comprehensiveness of the exclusive rights Congress is thus authorized to secure. Indeed, Congress in the copyright laws has interpreted the Constitution to cover the several artistic or reproductive processes from time to time developed or invented; thus in the law of 1865 the provisions of the copyright laws were extended to include 'photographs,' which did not exist at the time of the adoption of the Constitution--which word specifically means 'light-writings' as phonograph records specifically mean 'sound-writings.'

{Sidenote: Protection of the inventor}

{Sidenote: The counter argument}

"The position taken by the American Copyright League is that an author is literally entitled to the exclusive right, that is, the exclusive _benefit_, in his writings, in whatever form the writings, that is, his recorded thoughts, can be reproduced for sale or gain. If Mark Twain writes a book or Bronson Howard a play or Sousa or Victor Herbert a musical composition or Millet makes a painting or French a statue, each is equally entitled to whatever benefit inures from his creative genius. Mr. Sousa has stated clearly that although Caruso has been paid $3000--and the fact widely advertised--for singing into a phonograph record, and his own band (not under his leadership) has also been paid for playing his compositions and those of others into the phonograph horn, he has never received as a musical composer one cent for such use of his creations, though from twenty to a hundred of his compositions are to be found on the catalogues of the several manufacturers of mechanical instruments. Mr. J. Howlett Davis, who properly appeared as an inventor in defense of his own inventions in mechanical instruments, which he mistakenly believes would be rendered useless if the copyright protection were extended to sound-records, really asked that Congress should protect the thing which he had invented, and compel users to pay for it, but should permit him to use the thought which the musical composer had invented and expressed, without paying for it. His argument analyzed presents an even stronger argument for the proposed copyright bill than for the protection of patented inventions. When Mr. Sousa buys a patented cornet he has paid for the use of it, but Mr. Sousa makes no claim either to make another cornet like it or to play copyrighted musical compositions for profit without payment or permission. A piano, a pianola, a music roll or new form of mechanism, is patentable; a musical composition as played on a piano by hand or by mechanism, whether reproduced on a printed sheet or a mechanical roll, is copyrightable; but each should have like protection. I speak from specific knowledge as one who has taken out patents as well as copyrights and as the active head for some years of the Edison Illuminating Company of New York and a participant in successfully defending the Edison lamp patents. Mr. Edison, both as an inventor and as a manufacturer of his own inventions, has profited much more than a million dollars from his patents, and would naturally be expected to be foremost in upholding the right of authors to payment for their brains."

{Sidenote: Complete protection}

The acceptance by most countries within the International Copyright Union of the Berlin convention, without reservation on this question of mechanical music, sets an example of complete protection of the musical composer which it is hoped may be ultimately adopted by the United States as well as by other countries.

XIII

ARTISTIC COPYRIGHT

{Sidenote: Threefold value in art works}

The artist-author, by the labor of his brain and hand, produces three classes of property right or a threefold value: he receives recompense from the sale of the original work made by his hand, or from the exhibition of it, or from the reproduction and sale of copies. The new American code is perhaps in advance of legislation in any other country in the protection of the artist, for it assures to him separate values in the right to sell his work and the right to reproduce and sell copies, neither one of which rights is necessarily transferred with the other; it enables him to copyright his original work before the reproduction of copies, though it does not make absolutely clear whether the exhibition without restriction of an uncopyrighted work results in dedication; and it protects his right to control and profit from reproductions, with the simplest possible copyright notice, not including date, though as to lithographic and photo-engraving reproductions it requires manufacture in this country. The literary, dramatic or musical author produces no value in the original work itself, except as his fame may ultimately make his manuscript valuable as an autograph, and in this respect the artist-author has an advantage of practical importance in the general provision separating the copyright from the right in the material object. On the other hand, show-right or right of exhibition is not as specifically treated or as clearly defined and protected as is playright or right of performance in the case of drama or music.

{Sidenote: American provisions}

The copyright of works of the fine arts and cognate works is specifically provided for in the code of 1909 by including as subject-matter of copyright (sec. 5) the following divisions: "(f) Maps; (g) Works of art; models or designs for works of art; (h) Reproductions of a work of art; (i) Drawings or plastic works of a scientific or technical character; (j) Photographs; (k) Prints and pictorial illustrations." It is not intended to include under subsection (k) labels or prints of advertising or commercial character which may be registered as trade-marks under the Trade-Mark law in the Patent Office. The proprietor of a work of art is given in addition to the general rights (sec. 1, a) the specific rights (sec. 1, b) "to complete, execute, and finish it if it be a model or design for a work of art."

{Sidenote: Copyright Office classification definitions}

The new Copyright Office Rules and Regulations, promulgated 1910, define these classifications in the following language:

"11. _(f) Maps._--This term includes all cartographical works, such as terrestrial maps, plats, marine charts, star maps, but not diagrams, astrological charts, landscapes, or drawings of imaginary regions which do not have a real existence.

"12. _(g) Works of art._--This term includes all works belonging fairly to the so-called fine arts. (Paintings, drawings, and sculpture.)

"Productions of the industrial arts utilitarian in purpose and character are not subject to copyright registration, even if artistically made or ornamented.

"No copyright exists in toys, games, dolls, advertising novelties, instruments or tools of any kind, glassware, embroideries, garments, laces, woven fabrics, or any similar articles.

"13. _(h) Reproductions of works of art._--This term refers to such reproductions (engravings, woodcuts, etchings, casts, etc.) as contain in themselves an artistic element distinct from that of the original work of art which has been reproduced.

"14. _(i) Drawings or plastic works of a scientific or technical character._--This term includes diagrams or models illustrating scientific or technical works, architects' plans, designs for engineering work, etc.

"15. _(j) Photographs._--This term covers all positive prints from photographic negatives, including those from moving picture films (the entire series being counted as a single photograph), but not photogravures, half tones, and other photo-engravings.

"16. _(k) Prints and pictorial illustrations._--This term comprises all printed pictures not included in the various other classes enumerated above.

"Articles of utilitarian purpose do not become capable of copyright registration because they consist in part of pictures which in themselves are copyrightable, e. g., puzzles, games, rebuses, badges, buttons, buckles, pins, novelties of every description, or similar articles.

"Postal cards cannot be copyrighted as such. The pictures thereon may be registered as 'prints or pictorial illustrations' or as 'photographs.' Text matter on a postal card may be of such a character that it may be registered as a 'book.'

"Mere ornamental scrolls, combinations of lines and colors, decorative borders, and similar designs, or ornamental letters or forms of type are not included in the designation 'prints and pictorial illustrations.' Trademarks cannot be copyrighted nor registered in the Copyright Office."

{Sidenote: The question of exhibition}

The new law does not specifically make clear the relation between the exhibition of works of art and publication, or define whether or not exhibition may constitute dedication to the public and thus prevent the protection of the copyright thereafter. But in making copyright a sequent to publication (sec. 9) and providing (sec. 2) "that nothing in this Act shall be construed to annul or limit the right of the author or proprietor of an unpublished work, at common law or in equity, to prevent the copying, publication, or use of such unpublished work," it makes it at least probable that the author of an artistic or cognate work who simply exhibits, does not surrender the right to copyright. The trend of the courts in recent decisions has been, as in the Werkmeister case, cited below, to protect exhibited works, at least where any reservation of rights could be construed into the circumstances of the exhibition; but it is still uncertain whether the exhibition of a work of art at a public museum where there is no regulation against copying or reservation by the artist, might not constitute a dedication and thus prevent later copyright.

{Sidenote: Protection of unpublished work}

In providing however (sec. 11) specifically "that copyright may also be had of the works of an author of which copies are not reproduced for sale, by the deposit, with claim of copyright ... of a photographic print if the work be a photograph; or of a photograph or other identifying reproduction thereof if it be a work of art or a plastic work or drawing," it gives to the artist or the author of a cognate work an easy means of protecting his production beyond question; and he is not wise who neglects the simple precaution provided in the law.

{Sidenote: Copyright notice}

It is not made absolutely clear in the new law whether the copyright notice must be attached to the original of a work of art; but again the provision for protection is so simple that it is wise to take advantage of the method of the law, by placing the copyright notice on the original. The copyright notice may be in the form (sec. 18) "'Copyright' or the abbreviation 'Copr.' accompanied by the name of the copyright proprietor," the year of publication not being required in the case of an artistic work. It is further provided that "in the case of copies of works specified in subsections (f) to (k), inclusive, of section five of this Act, the notice may consist of the letter C inclosed within a circle, thus: (C), accompanied by the initials, monogram, mark, or symbol of the copyright proprietor: _Provided_, That on some accessible portion of such copies or of the margin, back, permanent base, or pedestal, or of the substance on which such copies shall be mounted, his name shall appear."

If the copyright notice is attached to the original, it is not made clear whether it should be on the face of the work and visible to the casual spectator; but again the wise artist will take an easy precaution.

{Sidenote: Deposit}

It is further required (sec. 12) that "if the work is not reproduced in copies for sale, there shall be deposited the copy, print, photograph, or other identifying reproduction" required as above stated, "accompanied in each case by a claim of copyright."

The new Copyright Office Rules and Regulations schedule (17) among unpublished works that may be registered "(_c_) photographic prints; (_d_) works of art (paintings, drawings, and sculpture), and (_e_) plastic works," and states specifically as to the deposit in such cases:

"19. (2) In the case of photographs, deposit one copy of a positive print of the work. (Photo-engravings or photogravures are not photographs within the meaning of this provision.)

"20. (3) In the case of works of art, models or designs for works of art, or drawings or plastic works of a scientific or technical character, deposit a photographic reproduction."

As deposit in the case of an unpublished work takes the place of publication and deposit in the case of works reproduced for sale, there can be no claim for statutory protection of an unpublished work of art without the deposit of the identifying copy, and the general provision (sec. 13) for fine and for voiding of copyright in the case of non-deposit, has, of course, no bearing on unpublished works. Any action or proceeding in respect to an unpublished work not registered by deposit must therefore be under common law and not under statutory provision.

{Sidenote: Summary of requirements}

To sum up, the author of a work of art, who is exhibiting his painting or statue or other work and not multiplying copies for sale, will assure himself of full protection if before such exhibition he places on the original work, in some visible but not obtrusive fashion, the letter C inclosed in a circle with his name or mark, and deposits a photograph of such work with the Librarian of Congress or in the mails addressed to him, accompanied by a claim of copyright,--for which an application form (J2, "photograph not reproduced for sale") is furnished on request, by the Copyright Office from Washington,--with inclosure of one dollar.

As soon as the artist multiplies copies for sale, or permits reproduction of his work, as in a newspaper report of an exhibition, for instance, he must then take the precaution of depositing two copies of such reproduction as provided in general by the act, and it is further provided (sec. 18) "that on some accessible portion of such copies or of the margin, back, permanent base, or pedestal, or of the substance on which such copies shall be mounted, his name shall appear." In case two copies are not so deposited, it is probable that a fine and forfeiture of copyright would ultimately ensue, as indicated in section 13.

{Sidenote: Material and immaterial properties distinct}

It is specifically provided (sec. 41) that copyright is distinct from the property in the material object, which accomplishes for the artist the important result that when he sells his painting he does not transfer the copyright, but retains that for himself unless he specifically contracts with the buyer to include in the sale the copyright or the right to copyright. This adopts into the law the decision of the courts that copyright does not pass with a painting unless distinctly included in the transfer. The provision (sec. 41) is specific that the copyright "is distinct from the property in the material object copyrighted, and the sale or conveyance, by gift or otherwise, of the material object shall not of itself constitute a transfer of the copyright, nor shall the assignment of the copyright constitute a transfer of the title to the material object." Thus the author of a work of art has two separate properties, the painting, statue or other work in itself, on the one hand, and the copyright or the right to copyright on the other, neither of which is transferred by the transfer of the other unless both are specifically included in the transfer.

{Sidenote: Manufacturing clause covers lithographs and photo-engravings}

{Sidenote: Foreign subjects excepted}

The copyright in certain classes of reproductions of works of art is dependent however on manufacture in this country, as in the case of books. This provision no longer includes photographs as in the preceding law, but is confined specifically (sec. 15) to "text produced by lithographic process, or photo-engraving process," "illustrations within a book consisting of printed text and illustrations produced by lithographic process, or photo-engraving process, and also to separate lithographs or photo-engravings, except where in either case the subjects represented are located in a foreign country and illustrate a scientific work or reproduce a work of art." It is further provided that "in the case of the book ... if the text be produced by lithographic process, or photo-engraving process ... the copies so deposited shall be accompanied by an affidavit ... that such process was wholly performed within the limits of the United States." This affidavit, therefore, is not required in the case of separate lithographs or photo-engravings. The manufacturing provisions chiefly concern the publishers of books, but they imply that artists cannot send works abroad to have reproductions made. But by the opinion of January 9, 1911, approved by the Attorney-General, a design, drawing, or painting made and located abroad intended as "the first step" for lithographic reproduction, may be registered, if a "work of art"--which question of fact is to be determined by the Register of Copyrights; and such lithographic reproductions of it may be imported.

{Sidenote: German post cards}

It was held by the Attorney-General January 27, 1910, that lithographic reproductions of original paintings in the form of illustrated post cards made in Germany, are subject to registration, provided the original paintings may properly be classified as works of art; and thus importation of such post cards would be permissible.

{Sidenote: Artistic merit unimportant}

While there must be originality in a work of art, especially under English law, this means little more than a prohibition of actual copying, and as in the case of literary and dramatic works, artistic merit is of little importance.

{Sidenote: Application forms}

{Sidenote: Certificates}

The Copyright Office furnishes without charge application forms, lettered as indicated, for the following classes of art works: (F) published map; (G) work of art (painting, drawing, or sculpture); or model or design for a work of art; (H) reproduction of a work of art; (I) drawing or plastic work of a scientific or technical character; (J1) photograph published for sale, (J2) photograph not reproduced for sale; (K) print or pictorial illustration. Thus the applicant should send for application blank (G), if for an original work of art, (H), if for a reproduction, or the proper blank in the other specified cases. But it should be noted that it is both unnecessary and undesirable to apply separately under different blanks as (G) and (H), since the single copyright on the original work covers reproductions. Certificates are returned by the Copyright Office on receipt of the application form and of the statutory fee of one dollar, covering the same specified subjects.

{Sidenote: Term in unpublished work}

When an original work of art is copyrighted, but is not published by reproduction of copies for sale or distribution, it is uncertain under the law, as in the case of dramatic and musical compositions, from what date the copyright protection runs and whether the sole right of reproducing copies for sale terminates at the end of a statutory term beginning with the registration of the original work or with its publication by the reproduction of copies for sale. The Copyright Office issues a certificate of the registration of the original work as covering a period of twenty-eight years and will doubtless base a renewal on the termination of this term; and only a court decision will determine whether the copyright of the original unpublished work exists in perpetuity until publication or whether the right to reproduce copies for sale lapses with the termination of twenty-eight or fifty-six years from the registration of the original work.

{Sidenote: Date not required}

{Sidenote: Re-copyright objectionable}

The omission of the requirement of date in the copyright notice in the case of a work of art is significant and important, although it has the disadvantage that knowledge of the expiration of the term of copyright can be had only by specific inquiry from the Copyright Office. It has been the mistaken practice of more than one artist, under the old law, to enter copyright on his original sketch or on his original work under date of its beginning, again on the finished original under date of its completion, and possibly again on reproductions under the date of the first publication of copies; and when also the artist changed the name of his work under these progressions, confusion became worse confounded. From this superfluous zeal and mistaken carefulness, serious results have come, as in Caliga _v. Inter-Ocean_ Newspaper Co., decided in 1909 by the U. S. Supreme Court through Justice Day, wherein an artist failed to protect himself against an infringing reproduction, because he brought suit under a second copyright which he had entered on finishing his picture, instead of under the original and lawful copyright, under which he had originally entered his work. The fact that by this second copyrighting he laid claim to a longer term than the law allowed, made the second copyright void and a suit under it of no avail. Under the new law the author of a work of art is not only given specifically the exclusive right "to complete, execute, and finish it if it be a model or design for a work of art" as in the previous law, so that an artistic work is protected by one copyright from design to completion and reproduction; but he may also protect his original work during its progress or exhibition before publication and thus safeguard his future right to control and benefit from the multiplication of copies.

{Sidenote: Exhibition right transfer}

In case of the sale of the original work of art, the right to exhibit, of course, passes with the original, although the right to copyright and reproduce copies is expressly reserved to the artist. In view of the uncertainty whether the unrestricted public exhibition of a work of art constitutes dedication and prevents copyright thereof, the carelessness of the purchaser of the original might raise question as to the validity of later copyright of reproductions by the artist. It is therefore unwise for an artist to sell the original of a work of art without affixing to it the required copyright notice and depositing one copy of an identifying photograph or print.

{Sidenote: Early English decision}

The leading case under English law as to exhibition is that of Turner _v._ Robinson in the Irish Court of Chancery in 1860, previous to the passage of the act of 1862 which first provided statutory copyright for paintings, and interpretative therefore of common law. Turner's "Death of Chatterton" had been reproduced in a magazine and exhibited at the Royal Academy and in Manchester, and was thereafter exhibited for the purpose of obtaining subscriptions for an engraving, in Dublin, where a photographer copied it and published a stereoscopic reproduction. The Master of the Rolls held that the painting had never been published because the exhibitions were on condition that no copies should be made, and the engraving in the magazine was only a rough representation and not a publication of the picture. The Court of Appeal also held against the defendant, but because of his breach of contract, and declined to decide whether there had been publication in London or Manchester. The Lord Chancellor, however, expressed the opinion that exhibition at the Academy, though conditioned, was publication, though a private view in a studio rather than a picture gallery would not be. The Court of Appeal did not pass on the further opinion of the Master of the Rolls that the publication of a print was not publication of the picture. These confusing opinions left the question in very misty shape and the most important interpretation of English practice has come from an American court.

{Sidenote: The Werckmeister leading case}

The latest and leading case as to exhibition is that of Werckmeister _v._ American Lithograph Co., American Tobacco Co., _et al._, which was decided by the U. S. Supreme Court in 1907, in an opinion written by Justice Day. The English artist Sadler had sold, in 1894, to Werckmeister of the Berlin Photographic Co. the copyright in his picture "Chorus," which he exhibited at the Royal Academy Exhibition of 1894, and the design had been reproduced by the American Lithograph Co. for use on an American Tobacco Co. label, though the photograph had been given protection by copyright. In reply to the claim of the infringers that such exhibition constituted dedication to the public, the Supreme Court's decision quoted from Slater on "The law relating to copyright and trade-marks."

{Sidenote: U. S. Supreme Court opinion}

"It is a fundamental rule that to constitute publication there must be such a dissemination of the work of art itself among the public as to justify the belief that it took place with the intention of rendering such work common property," the court adding, "and that author instances as one of the occasions that does not amount to a general publication the exhibition of a work of art at a public exhibition where there are by-laws against copies or where it is tacitly understood that no copying shall take place, and the public are admitted to view the painting on the implied understanding that no improper advantage will be taken of the privilege. We think this doctrine is sound and the result of the best considered cases." The court said further: "We do not mean to say that the public exhibition of a painting or statue where all might see and freely copy it might not amount to publication within the statute, regardless of the artist's purpose or notice of reservation of rights which he takes no measure to protect."

{Sidenote: Unrestricted exhibition hazardous}

In fact, in Pierce & Bushnell Co. _v._ Werckmeister, in 1896, the U. S. Circuit Court of Appeals, through Judge Colt, had held that the exhibition of Naujok's painting of St. Cecilia, in Berlin and Munich, without copyright notice on the original work, constituted publication and dedication, and therefore denied protection to photographic copies thereafter copyrighted and published.

{Sidenote: Reservation on sale}

That the sale of the original work of art as a material object does not involve the transfer of the copyright is a direct application in the new American code of previous judicial decisions. In Werckmeister _v._ Springer Lith. Co., in 1894, where the defense contended that the purchaser of a painting was the person authorized to become the copyright proprietor, this contention was absolutely overruled, in the U. S. Circuit Court in New York, by Judge Townsend. But it may nevertheless be desirable to include in any contract of sale a specific reservation of copyright, especially in the case of works executed for public authorities or to be exhibited in a public place. In Dielman v. White, in 1900, Judge Lowell in the U. S. Circuit Court in Massachusetts declined to enjoin a photograph of certain mosaics by Dielman in the Library of Congress, the original cartoon for which as sent to Venice, as well as the mosaic work itself, bore copyright notice, on the ground that the correspondence with the government constituting the contract, did not clearly reserve to the artist the right to copyright and prevent copying,--though this decision may be questioned.

{Sidenote: Publication construed}

The courts are disposed to limit the definition of publication to insure the fullest protection of an author's right. In Werckmeister _v._ Springer Lith. Co. it was further held by Judge Townsend that the printing in an exhibition catalogue of a cut of a painting was for the information of patrons and was not publication. In the same case the defense contended that the sale of an earlier replica of the plaintiff's painting constituted a publication and forfeited copyright, but the court held that the replica was not a copy but was made beforehand to assist in the preparation of the painting afterward copyrighted, and that there was no publication.

In Falk _v._ Gast, in 1893, where the defense claimed that the copyright notice was omitted from published copies, referring to a sample sheet of miniature reproductions sent to dealers for their information and convenience, the U. S. Circuit Court of Appeals, through Judge Shipman, held that this issue of sample sheets did not constitute publication. This doctrine of limitation had a curious application in Harper _v._ Shoppell, in 1886, in which Judge Wallace, in the U. S. District Court, held, where an electrotyper had sold to a third party an unauthorized electrotype of a copyrighted illustration, that the copyright law was not violated because the illustration had not been printed or published.

{Sidenote: Danger of forfeiture}

The artist-author or the proprietor of an artistic copyright should be most careful to comply with the statutory requirements as to notice and other formalities, as otherwise copyright may be forfeited. Several court decisions indicate that the copyright notice should be placed on the original when exhibited, even if copies are not then reproduced for sale; and as the question is not made quite clear in the new code, it is wise to follow this indication. In the original trial in 1902 of the Werckmeister case, Judge Thomas in the U. S. Circuit Court held that the omission of copyright notice from the exhibited original waived the copyright, but his decision of the case was reversed by the U. S. Supreme Court on other grounds as previously stated, and this particular point remains unsettled.

Copyright is not forfeited where a notice properly affixed has been omitted in later use beyond the control of the copyright proprietor. "If copied afterwards or put upon a new mount the complainant should not suffer," said Judge Coxe in Falk _v._ Gast in reference to copies from which the notice had been separated. In Bennett _v._ Carr, in 1899, the U. S. Circuit Court of Appeals, through Judge Thomas, non-suited the complainant because he had not deposited a written description, in addition to filing identifying copies, both formalities being required under the old law.

{Sidenote: Limited use and license}

The principle is especially important regarding works of art that a copyright proprietor may grant specific license for the limited use of his work; and this has many times been upheld by judicial decisions. In the American courts, such cases have usually been settled by preliminary injunction, without further trial, so that most of the cases are unreported in the law digests, as in that of Miles _v._ American News Co., in 1898, where General Miles obtained a preliminary injunction restraining the distribution by the defendants of "Remington's frontier sketches," including illustrations made for and copyrighted in General Miles' "Personal recollections." In the English case of Nicholls _v._ Parker, in 1901, it was held that a license to print illustrations in the _Graphic_ did not permit their use in another periodical of the defendant despite the defense of "custom of the trade," which the judge characterized as "ridiculous." In the important case of Green _v. Irish Independent_, the Court of Appeal held that the newspaper, though acting "in good faith and without knowledge," was guilty of infringement in printing an illustration sent to it as an advertisement which the proprietor had not licensed for such use. Where, in Guggenheim _v._ Leng, in 1896, the periodical _Sports_ printed and sold as a separate sheet an illustration licensed for use in the periodical, it was held in the Queen's Bench Division that publication and sale of the supplement separately from the paper was beyond the terms of the license and therefore an infringement.

{Sidenote: Character, not method of use}

Copyright in a work of art is dependent upon character rather than use. "A picture is none the less a picture and none the less a subject of copyright that it is used for an advertisement," said Justice Holmes in the U. S. Supreme Court, in Bleistein _v._ Donaldson Lith. Co., in 1903, the leading case on this subject, in which three lithographs designed for a circus poster were protected. In Mott _v._ Clow, in 1896, Judge Grosscup in the U. S. Circuit Court in Illinois had held that illustrations, in this instance of bathtubs in a trade catalogue, which "are mere advertisements," are not entitled to copyright; and in Schumacher _v._ Wogram, in 1888, it had been held by Judge Wallace that a picture of a young woman holding a bouquet intended for a cigar label could not be protected as copyright, but should be registered as a trade-mark. "The distinction here," said Judge Wallace, "seems to be that a picture expressly intended as a label should be considered a trade-mark, though a picture which may be used for a label is not for this reason excluded from copyright." An artistic design for paper-box covers was held copyrightable in 1910 in De Jonge _v._ Breuker & Kessler, in the U. S. Circuit Court, by Judge McPherson, who also held that the same subject could not be protected both under copyright and as trade-mark.

{Sidenote: Illustration}

That an illustration of a person, incident or scene in a copyright work is not an infringement of its copyright, was indicated in 1909 in Harper _v._ Kalem Co., in the opinion of the U. S. Circuit Court of Appeals in New York, through Judge Ward, who said: "As pictures only represent the artist's idea of what the author has expressed in words, they do not infringe a copyrighted book or drama and should not be enjoined." That illustrations may be protected as part of a book without reference to the engravings act, was held in Marshall _v._ Bull, in 1901, in the English Court of Appeal, which held also that though electrotype blocks had been legally sold, unauthorized reproduction from such blocks constituted infringement.

{Sidenote: Description of artistic work}

Likewise, a description in words of a copyrighted work of art is probably permissible without infringement of copyright, when the work is published or publicly exhibited. But this does not hold good in the case of an unpublished or privately exhibited work, as was held in 1849 in the case of Prince Albert _v._ Strange, where a descriptive catalogue of unpublished etchings by Queen Victoria and the Prince Consort was enjoined, as well as the exhibition of prints therefrom unlawfully obtained.

{Sidenote: Portraits}

In the case of portraits, whether by painting, sculpture or photography, an important question as to ownership arises. A portrait paid for by the subject or a person other than the artist is the property, for copyright as well as other purposes, exclusively of that person; but if an artist produces a portrait at his own expense, even if by the suggestion of another person, the right to copyright remains with the artist. The general principle was best stated by Judge Wheeler in 1894, in the U. S. Circuit Court in New York, in Press Pub. Co. _v._ Falk, where the _World_ was held to have infringed the copyright in the photograph of an actress, copyrighted by the photographer and not paid for by her, though a complimentary copy, given to the actress, had been sent by her to the newspaper. "When a person has a negative taken and photograph made, for pay, in the usual course, the work is done for the person so procuring it to be done, and the negative, so far as it is a picture or capable of producing pictures of that person, and all photographs made from it, belong to that person; and neither the artist nor any one else has any right to make pictures from the negative or copy the photographs, if not otherwise published, for any one else. But when a person submits himself or herself as a public character to a photographer for the taking of a negative, and the making of photographs therefrom for the photographer, the negative and the right to make photographs from it belong to him. He is the author and proprietor of the photograph, and may perfect the exclusive right to make copies by copyright." The same principle was upheld in the closely similar English case of Ellis _v._ Ogden, in 1894, by Justice Collins in the Queen's Bench Division. But in the case of Ellis _v._ Marshall, in 1895, Justice Charles in the same court held that where two actors had been invited by a photographer to sit for him in costume and some photographs had also been taken in plain clothes, of which the actors purchased copies, they were entitled to authorize publication in a magazine. It may be noted that New York and other states have statutes forbidding portraiture of persons without their consent; but this prohibition would probably not apply to photographing of a crowd, unless the portrait of a special person were lifted out or made prominent. A photographer may not exhibit a photograph of a patron, as in his shop window, without the sitter's consent.

{Sidenote: Right of employer}

The employer of an artist in other work as well as portraiture may become _ipse facto_ the copyright proprietor. In 1871, in Stannard _v._ Harrison, where a wall map had been made by an engraver from rough sketch and material and from directions given by the plaintiff, the English Court of Chancery, through Vice-Chancellor Bacon, held: "That the plaintiff cannot draw himself is a matter wholly unimportant if he has caused other persons to draw for him. He invents the subject of the design beyond all question ... this is a work of diligence, industry, and for aught I know of genius on the part of the plaintiff." This case, which arose under the engravings acts in England, where an engraving may be copyrighted by an employer,--though the engraver of his own original design is the only person entitled to copyright,--is of wide bearing throughout artistic copyright. On the other hand, in 1898, in Bolton _v._ London Exhibitions Co., Justice Mathew in the Queen's Bench Division held that the employer, who had given to the engraver only a "general idea" of what he desired, was not the party liable for infringement.

{Sidenote: Photographs}

Photographs, a modern development since the early copyright laws, were first included with negatives in the American act of 1865, in respect to which the action of Congress was upheld by the U. S. Supreme Court in 1884 in the decisive case of Burrow-Giles Lith. Co. _v._ Sarony, and in the English fine arts copyright act of 1862. They are specifically named (sec. 5, j) in the new American code, and are included specifically or impliedly under copyright protection in most countries. The peculiar circumstance that the skill of the photographic artist is not necessarily shown in the composition of the picture taken, but more usually in the selection of subject or point of view and treatment in the process, leads to complexities as to authorship, ownership, etc. It is unnecessary and indeed undesirable to copyright separately a photograph of a copyrighted work, of which the general copyright is comprehensive of all reproductions, but the original copyright notice including the name of the artist must appear on each photograph or its mount. An original photograph of an uncopyrighted or uncopyrightable subject may be copyrighted as a photograph, as was held with respect to natural scenery in 1903, in Cleland _v._ Thayer, in the U. S. Circuit Court of Appeals, where a colored photograph of a Colorado pass was protected. Where a photographer had posed a woman and a child characteristically, Judge Wheeler in the U. S. Circuit Court in New York held, in 1891, in Falk _v._ Brett Lith. Co., where defendant had merely reversed the photograph in a lithographic reprint, that the photograph was copyrightable and that the photographer was the author. And this doctrine, that the posing and treatment of a photograph subject gave justification for copyright, was also upheld in the case of a portrait of an actress in the same year in Falk _v._ Gast by Judge Coxe. In the English case of Bolton _v._ Aldin _et al._, in 1895, Justice Grantham in the Queen's Bench Division held that the photograph of a tiger was infringed by a drawing from the photograph published in the _Sketch_ magazine. But the copyrighting of a photograph of an uncopyrighted subject cannot prevent the photographing of the same subject independently by others, nor can the use of a "general idea" be prevented. Under the new American code, the fee for registering a photograph is but fifty cents, if a certificate is not desired, and the new Copyright Office Rules hold that in moving picture films only one registration is requisite, "the entire series being counted as a single photograph."

{Sidenote: Tableaux vivants and moving pictures}

Whether living pictures, _tableaux vivants_, infringe a work of art, is a difficult question, determinable only by the circumstances of each case. Moving pictures telling a dramatic story may infringe a dramatic or even literary work, as well as possibly a work of art, as was decided in the case of Harper _v._ Kalem Co. But the House of Lords, in 1894, in the case of Hanfstaengl _v._ Baines, where the proprietor of the copyright in paintings sued the proprietors of the _Graphic_ for reproducing by sketches living pictures exhibited at a music hall, patterned after the paintings, decided that the word "design" in the English law did not cover the _tableaux_ at the music hall. It is probable, however, that an exact reproduction, as nearly as may be, of a painting at a public place, might be held an infringement. In 1903 the Circuit Court of Appeals through Judge Buffington, in Edison _v._ Lubin, overruled the defense that each picture making up a moving picture series should be separately registered for copyright. But separable parts of a composite design, when used separately, must bear separate copyright notice, as was held in 1910 in De Jonge _v._ Breuker & Kessler by Judge McPherson in the U. S. Circuit Court.

{Sidenote: Exclusions and inclusions construed}

A shadow-trick perforated card, giving an outline of the picture "Ecce Homo" when held between a light and a screen, was held by Vice-Chancellor Bacon, in Cable _v._ Marks, in 1882, not to be subject of copyright. Playing cards have been included as prints by an English decision.

{Sidenote: Architectural works}

Architectural works are not protected as such under the American code, the decision of the Congressional Committees being adverse to this proposal. They are specifically included in the new British code. It is possible that they might be included under the general designation of works of art, and drawings or models for buildings might be copyrighted as "drawings or plastic works of a scientific or technical character." The question, however, is one of much doubt. In 1903, in Wright _v._ Eisle, the Appellate Division of the N. Y. Supreme Court, through Judge Woodward, held, where an architect had filed plans with the building department which he claimed were copied in a house of the defendant, which plans had not been copyrighted, that the filing of the plans in a public office constituted publication and as there were no copyrighted copies, there was no case at common or copyright law.

{Sidenote: Copy of a copy}

A copy of a copy is an infringement of the original work and incidentally of the direct copy, unless the latter is published without proper copyright notice by authority of the proprietor of copyright in the original. This was held in 1892, in Lucas _v._ Williams, by the Queen's Bench, where a photograph from an engraving was held an infringement of the original painting; and the decision of Judge McPherson in the U. S. Circuit Court in Pennsylvania non-suiting, in Champney _v._ Haag, in 1903, the proprietor of a copyright painting because the offending photograph infringed only the copyrighted photograph from which it was directly taken, is not considered good law. A photograph may infringe the copyright in statuary, as was held in 1907, in Bracken _v._ Rosenthal, in the U. S. Circuit Court.

{Sidenote: Alterations}

As to altered copies and alterations, there have been many judicial decisions, the gist of which is that a copy is not less an infringement because it alters details, provided there is copying of a substantial part; that a copy in another medium not exactly reproducing the original or a copy of it, is nevertheless an infringement; that a substantial alteration, or adaptation of an existing work, may in itself be copyrightable, but that slight alterations will not justify the copyrighting of a work in the public domain; and that an artist has the right to prevent alteration of his original work by a subsequent owner, as involving damage to his professional reputation. Where a copyrighted portrait of Lillian Russell was combined with a portrait of another actress, the composite photograph was held to be a violation of the copyright, in Springer Lith. Co. _v._ Falk, in 1894, by the U. S. Circuit Court of Appeals, through Judge Lacombe. So in the English case of Bolton _v._ London Exhibitions Co., in 1898, where a lithographer copied the outline of a lion from a copyrighted photograph, and filled in details from natural histories in making a circus poster, Justice Mathew in the Queen's Bench Division held that there had been reproduction of the photograph and that a work of art had been "vulgarized unlawfully." Where certain etchings and engravings had been copied by the Brooklyn Photogravure Co., omitting the tints, plate mark and title, it was held in 1892, in Fishel _v._ Lueckel, by Judge Townsend in the U. S. Circuit Court in New York that this was an infringement; said Judge Townsend: "The appropriation of a part of the work is no less an infringement than the appropriation of the whole, provided 'the alleged infringing part contains any substantial repetitions of any material parts which are original and distinctive." And where a photograph of Julia Marlowe was reproduced in a lithograph, with many points of dissimilarity, some of them because of difference in process, it was held in Falk _v._ Donaldson Lith. Co., in 1893, by Judge Townsend in the U. S. Circuit Court in New York, that the differences did not constitute a defense. In Dr. Gaunsaulus's book, "The Man of Galilee," well-known pictures were altered substantially and artistically, as by the omission of a spinning wheel from a picture of the Nativity. Copies made from these illustrations were enjoined, though the original pictures were non-copyrighted, in Monarch Book Co. _v._ Neil, in 1900, by Judge Grosscup in the U. S. Circuit Court in Illinois. But a slight alteration, by the addition on the negative of a cane, thus put into the hands of a person in a photograph not copyrighted in its original form, was held not to justify copyright, in Snow _v._ Laird, in 1900, by Judge Woods in the U. S. Circuit Court of Appeals. In the N. Y. Supreme Court, in the common law case of Dodge _v._ Allied Arts Co., in 1903, where the plaintiff had painted four historical scenes on commission which the defendants proposed to have altered, an injunction pending suit was granted by Judge McCall, thus upholding the common law or equity right of an artist to be protected against such misuse of his work.

{Sidenote: Remedies}

For the infringement of a work of art the copyright proprietor is entitled (sec. 25) to an injunction, the forfeiture of infringing copies and to damages "as well as all the profits ... or in lieu of actual damages and profits such damages as to the court shall appear to be just," not less than $250 nor more than $5000, except that "in the case of a newspaper reproduction of a copyrighted photograph such damages shall not exceed $200 nor be less than $50." These damages, within the limits stated, may be assessed by the court in the case of painting, statue or sculpture at ten dollars, and in the case of any other works at one dollar, "for every infringing copy made or sold by or found in the possession of the infringer or his agents or employees." Under the old law, damages were confined to copies found in possession, and the courts were constrained to apply this literally though in several recorded cases with evident injustice.

{Sidenote: Artistic copyright term}

Copyright in artistic works in the United States has always been covered under the general copyright acts, including the code of 1909 providing for copyright for twenty-eight and renewal for a second twenty-eight years, and this is true also in Canada and Newfoundland, where the term is for twenty-eight with renewal for fourteen years. The Australian code of 1905 covers artistic copyright specifically in part IV of the act, which provides for the general term of forty-two years from "the making of the work" or life and seven years, whichever the longer, but confines it to artistic work "which is made in Australia."

{Sidenote: British practice}

Artistic copyright in Great Britain, on the contrary, has been protected by several concurrent acts beginning with the engraving copyright acts of 1734 and 1767 and including the prints copyright act of 1777, the sculpture copyright act of 1814, the prints and engravings copyright (Ireland) act of 1836 and the fine arts copyright act of 1862 covering paintings, drawings and photographs, previously unprotected,--all forming part of the English law until repealed by the new code. Under these several laws, the copyright term for paintings, drawings and photographs has been the life of the author and seven years, for engravings twenty-eight years from first publication and for sculpture fourteen years from first publishing and renewal for fourteen years. Under the act of 1862--which did not afford protection outside the United Kingdom, as was affirmed by the Privy Council in 1903, upholding a Canadian decision, in Graves _v._ Gorrie--copyright in artistic works began with the making of the work wherever made (except that a foreigner must be resident in England apparently at the time of making) and did not depend upon publication; but the international copyright act of 1844 nevertheless denied protection in Great Britain where a work was first published in a country outside of treaty relations. Registration at Stationers' Hall, at a cost of one shilling, has been a prerequisite to protection. The right to copyright lapsed when the original work was sold by the artist without previous registration or written reservation, a provision applied in 1909 in Hunter _v._ Clifford.

{Sidenote: Sculpture provisions}

An original work of sculpture was protected only if first published within the British dominions, if by a British subject or resident, provided it bore the proprietor's name and date of first publication; and renewal for a second fourteen years was possible only if the author was then alive and held the copyright. Toy soldiers, artistically modeled, were protected in England as a work of sculpture by Justice Wright in Britain _v._ Hanks, in 1902. Common law protected until and statute law after publication, _i. e._ when the public in general is first permitted to view the work.

{Sidenote: Engraving provisions}

An engraving was protected in Great Britain and Ireland, if first published (and probably also made) within the British dominions, provided it bore the proprietor's name and date of publication. Prints, as by lithography or otherwise, were included with engravings; maps, charts and plans were, however, included as books under the general copyright act. Also engravings which are part of a book enjoy the wider protection of the general copyright act. The sale of the plate of an engraving probably does not transfer the copyright, unless intention to do so is clearly evident.

{Sidenote: The new British code}

The new British code includes as an "artistic work" under the general copyright provisions, "works of painting, drawing, sculpture and artistic craftsmanship, and architectural works of art and engravings and photographs." Architectural works are protected only as regards artistic character or design as distinguished from process or methods of construction. Photographs have the exceptional term of fifty years from the making of the original negative, and the owner of such negative at the time of making is considered the author. Registration is no longer required.

{Sidenote: Foreign countries}

Works of art are protected in most foreign countries either impliedly or specifically under general copyright legislation, although sometimes by special laws. France covers artistic works "whatever may be the merit, use or destination of the work"; the Scandinavian countries include specifically drawings, etc., "not works of the fine arts"; in India copyright is extended in industrial designs to "some peculiar shape or form given an article, but not the article itself." Architectural works are protected in France, Luxemburg and Brazil, but in most countries only architectural plans, drawings, designs, figures, or models and not buildings are covered. Geographical and topographical drawings and technical drawings, maps and charts, illustrations, engravings, in some cases lithographs, photographs, and negatives are among classes specified in many countries. In some countries the term of copyright is different in the case of artistic works. Luxemburg has the peculiar provision that portraits may not be reproduced until twenty years after the death of the person portrayed. Photographs are in several countries protected for a shorter term, frequently five years from taking, publication or registration as the case may be; in Norway the copyright may not extend beyond the death of the photographer.

{Sidenote: Berne convention, 1886}

When the International Copyright Union was created at Berne in 1886, artistic works were conjoined with literary works under like protection throughout the convention and they were specified (art. IV) as covering "works of design, painting, sculpture, and engraving; lithographs, illustrations, geographical charts; plans, sketches, and plastic works relative to geography, topography, architecture, or science in general; in fact, every production whatsoever in the ... artistic domain which can be published by any mode of impression or reproduction." In the final protocol it was specifically provided: "(1) As regards article IV, it is agreed that those countries of the Union where the character of artistic works is not refused to photographs, engage to admit them to the benefits of the Convention, from the date of its coming into effect. They are, however, not bound to protect the authors of such works further than is permitted by their own legislation, except in the case of international engagements already existing, or which may hereafter be entered into by them. It is understood that an authorized photograph of a protected work of art shall enjoy legal protection in all the countries of the Union, as contemplated by the said Convention, for the same period as the principal right of reproduction of the work itself subsists, and within the limits of private arrangements between those who have legal rights."

{Sidenote: Paris declaration; 1896}

In the amendatory act adopted at Paris in 1896, the final protocol of 1886 was modified respecting architectural and photographic works as follows (1, a, b): "In the countries of the Union in which protection is accorded not only to architectural designs, but to the actual works of architecture, those works are admitted to the benefit of the provisions of the Convention of Berne and of the present additional act.

"Photographic works, and those obtained by similar processes, are admitted to the benefit of the provisions of these acts, in so far as the domestic legislation allows this to be done, and according to the measure of protection which it gives to similar national works.

"It is understood that the authorized photograph of a protected work of art enjoys legal protection in all the countries of the Union, within the meaning of the Convention of Berne and the present additional act, as long as the principal right of reproduction of this work itself lasts, and within the limits of private conventions between those who have legal rights."

{Sidenote: Berlin convention, 1908}

In the Berlin convention of 1908, artistic works were defined (art. 2, par. 1) by specification as "drawings, paintings; works of architecture and sculpture; engravings and lithographs; illustrations; geographical charts; plans, sketches and plastic works relating to geography, topography, architecture, or the sciences,"--thus covering architectural works under general copyright. It was further provided by the convention of 1908 (art. 2, par. 4) that "works of art applied to industry are protected so far as the domestic legislation of each country allows." And article 3 provided: "The present Convention applies to photographic works and to works obtained by any process analogous to photography. The contracting countries are pledged to guarantee protection to such works."

{Sidenote: Exhibition not publication}

By the interpretative declaration adopted at Paris in 1896, it was specifically provided (sec. 2): "By _published_ works must be understood works actually issued to the public in one of the countries of the Union. Consequently,... the exhibition of a work of art, does not constitute publication in the sense of the aforementioned Acts." In the Berlin convention of 1908 it was similarly provided (art. 4, par. 4) that "the exhibition of a work of art and the construction of a work of architecture do not constitute publication."

{Sidenote: Pan American Union}

In the Pan American Union, the Buenos Aires convention of 1910 covers artistic works on the same basis as literary works, without special provisions.

XIV

INFRINGEMENT OF COPYRIGHT: PIRACY, "FAIR USE" AND "UNFAIR COMPETITION"

{Sidenote: Piracy}

The word "piracy," since that gentle craft has disappeared from the high seas, has come commonly into use to mean free-booting with reference to literary property. In this sense it is used as early as 1771 by Luckombe in his history of printing, in which he says: "They ... would suffer by this act of piracy, since it was likely to prove a very bad edition." It was especially applied in America more or less jocularly in the days when there was no legal protection for works by English authors, to the reprinting chiefly of English novels without authority from or payment to their authors, when publishers whose imprints were chiefly on such reprints were commonly known as pirates. This secondary meaning has been accepted by the dictionary makers, and the use by English law authorities, and now in the new American code, of the phrases "pirated works" and "piratical copies," gives the word specific legal _status_. It is the comprehensive term now in common and legal use to mean the stealing of an author's work by reprinting it in full or in substantial part without the authority of the copyright proprietor, and is in fact an infringement at wholesale or otherwise of the author's exclusive right. This is of course prohibited by the law to the full extent of its jurisdiction and is punishable as prescribed in the law.

{Sidenote: Test of piracy}

"The true test of piracy," said Judge Shipman in the U. S. Circuit Court in 1875, in Banks _v._ McDivitt, is "whether the defendant has in fact used the plan, arrangements and illustrations as the model of his own book, with colorable alterations and variations, or whether his work is the result of his own labor, skill and use of common materials and common sources." Judge Story said in 1841, in Folsom _v._ Marsh: "If so much is taken that the value of the original is sensibly diminished, or the labours of the original author are 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 defence that another person has appropriated a part and not the whole of any property."

{Sidenote: Infringement in specific meaning}

Infringement is commonly taken to mean specific invasion of the author's rights rather than wholesale piracy; and the question of what is infringement or "literary larceny" is more often a question of the interpretation of the facts than the construction of the statute. The legal cases arising under infringement constitute a very large proportion of copyright litigation, demanding as they do judicial determination as to the acts complained of in each particular case. It is therefore impossible in this volume to give citations or references for the hundreds of cases recorded in the law reports or in the various works on copyright, but it may be noted that the foot-note citations in MacGillivray's "Law of copyright" cover a very large number of American as well as English cases. No treatise on copyright can apply, however, in advance, the general principles of copyright to the infinite variety of possible cases; and only generalizations and a few illustrative cases can here be given.

{Sidenote: Questions of fact and intent}

Infringement is a question of fact rather than of intent. It is not a valid defense that the infringer is ignorant; nor, on the other hand, can any one be held for intention to infringe, where the act of infringement has not been accomplished. The new American code, nevertheless, recognizes knowledge and intent in certain cases of punishment or damages by the use of the words "willfully" and "knowingly." The letter of the law is in general that the infringer must be held responsible and must make good any damages suffered by the copyright proprietor, but proof that he had no guilty knowledge or intent may effect mitigation of punitive damages. The trend of court decisions and of judicial opinion does not seem to be evident and consistent in this development; but it may perhaps be said that while copyright law is more closely applied from the letter of the statutes, in the legal aspect, the principles of equity have been given freer play where the statute is not specific and definite. In 1899, in Green _v. Irish Independent_, the English Court of Appeal held that the proprietors of a newspaper who had printed an advertisement containing an illustration which the advertiser had license to use only for specified purposes, were liable for penalties, though they did not know that the illustration was copyrighted; and in 1902, in American Press Assoc. _v._ Daily Story Pub. Co., the U. S. Circuit Court of Appeals held the defendants liable, though they had innocently copied from a newspaper reprint which had inadvertently omitted the copyright notice. But in 1898 Justice Mathew, in Bolton _v_. London Exhibitions, declined to hold the defendants punishable, because they did not know that the lithographer from whom they had ordered a poster had infringed the copyright of a photograph.

{Sidenote: "Fair use"}

"Fair use" means quotation from or other use of an author's work within the evident meaning or judicial construction of the copyright statute, and is the usual answer of the defendant to a complaint that he has taken without authority some portion of the author's work or utilized in some way the result of the author's labors. The borderland between infringement and "fair use" is peculiarly and necessarily one of uncertainty, not so much because of ambiguity in the statute as of difficulty in determining the extent of use within which it is said _non curat lex_. No statute can be so clear or so complete as to obviate questions of this kind. In general there must be copying of a material or substantial part. What is a material or substantial part, constituting infringement, is a difficult question of fact.

{Sidenote: Principle of infringement}

"Copying is not confined to literal repetition," said Judge Clifford, in Lawrence _v._ Dana, in the U. S. Circuit Court in 1869, "but includes also the various modes in which the matter of any publication may be adopted, imitated, or transferred, with more or less colorable alterations to disguise the source from which the material was derived; nor is it necessary that the whole, or even the larger portion of the work, should be taken in order to constitute an invasion of copyright." The Chancery Division, through Lord Chief Justice Alverstone, took the extreme course in Trengrouse _v._ "Sol" Syndicate, in 1901, of holding a work an infringement, though less than a page was taken from the plaintiff's football guide.

{Sidenote: Infringement by indirect copying}

Infringement may be by indirect as well as by direct copying. In the case of Cate _v._ Devon in 1889, in the Chancery Court, the defense that the copying was not from the original copyright work but from a newspaper reprint, was rejected. Infringement may be through quite a different medium from the original; thus a shorthand reproduction of a lecture on "The dog as the friend of man," published in a text-book of shorthand, was held in the Chancery case of Nichols _v._ Pitman, in 1884, to be an infringement of the lecture as much as if in ordinary type.

{Sidenote: Exceptions from infringement}

The doctrine of infringement cannot be invoked to obtain monopoly of any particular subject, and the authorized biographer of President Garfield was denied relief in 1889, in Gilmore _v._ Anderson, when he sought to prevent the publication of a life of Garfield by another writer. Nor will mere similarity of treatment of the same subject constitute infringement. A copyright owner cannot prevent another person from publishing the matter contained in his book, if invented or collected independently, or from making "fair use" of its contents. Two map-makers, collecting at first hand the same _data_, would naturally make the same map, and each would equally be entitled to copyright. In this respect, copyright law differs from patent law, where a first use bars others from the same field. It has even been held that the collected material might be used by a second compiler as a guide in a second compilation, if subjected to original verification, as in the case of a street directory. But in the case of rival Boston directories in 1905, the U. S. Circuit Court of Appeals held, in Sampson & Murdock Co. _v._ Seaver Radford Co., that a verification by actual canvass from a list of discrepancies made up from the earlier work was beyond fair use.

{Sidenote: Infringement by abridgment and compilation}

Abridgments were construed by early English decisions not to be infringements, and this precedent was followed, reluctantly and often with protest, in later cases by English and American judges, as set forth in the chapter on subject-matter. Later copyright provisions,--as by use of the word "_retranchements_" in the Berne-Berlin conventions, and the specific authorization in the American code "to make any other version thereof," and for copyright of an abridgment of a work in the public domain,--directly or by implication, make abridgment an infringement and free the courts to take this view. Compilations also constitute infringement if they extract substantial parts of a copyright work, beyond the limits of "fair use," or even if they adopt the plan or arrangement or bodily transfer the material of a copyright compilation of non-copyright matter.

{Sidenote: Abridged compilations}

A curious complaint of infringement by abridgment was made in Gabriel _v._ McCabe, in 1896, before Judge Grosscup in the U. S. Circuit Court in Illinois, where the plaintiff had licensed the use of a copyright song, "When the roll is called up yonder," in a collection of religious poetry, "The finest of the wheat, no. 2," published by the defendant, who included the song also in an abridged edition of this collection and in a combined edition of this and another collection. Judge Grosscup held that: "Future editions of a book may contain a composition published in an earlier edition by license, even though parts of the earlier edition are omitted.... To hold otherwise would practically forbid any new editions of books of compilations, for the consent of all the authors contributing could not, in many instances, be obtained." But if the collection had been so abridged as to result in the publication of the song alone as sheet music, it would have been an unfair use under the license.

{Sidenote: Separation of infringing parts}

The general principles as to quotation beyond "fair use" were well laid down by Lord Chancellor Eldon, in the early English case of Mawman _v._ Tegg, in 1826: "If the parts which have been copied cannot be separated from those which are original, without destroying the use and value of the original matter, he who has made an improper use of that which did not belong to him must suffer the consequences of so doing. If a man mixes what belongs to him with what belongs to me, and the mixture be forbidden by law, he must again separate them, and he must bear all the mischief and loss which the separation may occasion. If an individual chooses in any work to mix my literary matter with his own, he must be restrained from publishing the literary matter which belongs to me; and if the parts of the work cannot be separated, and if by that means the injunction, which restrained the publication of my literary matter, prevents also the publication of his own literary matter, he has only himself to blame."

{Sidenote: Law digests}

The difficult question of the extent to which a compiler may utilize the materials of another has come especially to the front in the American courts with reference to law digests and reports, within recent years. In 1896, in Mead _v._ West Pub. Co., concerning rival annotated editions of "Stephen on pleading," then out of copyright, where the defendant's editor admitted having clipped the text from the complainant's edition and having obtained some ideas or suggestions from it, Judge Lochren, in the U. S. Circuit Court in Minnesota, held that there was no infringement because non-copyright matter could not be protected in a copyright work from such clipping, because the defendant's notes were original even though suggested from the other, and because the few errors and citations in common were immaterial since there were many new citations and the work was on the whole the result of original research. That bodily transfer of citations is beyond "fair use" was emphasized by Judge Ray in White _v._ Bender, in 1911.

{Sidenote: Proof from common errors}

As to proof from common errors, it had been held in 1895, in the case of Chicago Dollar Directory Co. _v._ Chicago Directory Co., that the later work, containing sixty-seven errors found in the other, was evidently an infringement of the earlier compilation. In Bisel _v._ Welsh, _Re_ Brightly Pennsylvania reports, in 1904, the U. S. Circuit Court held that repetitions of errors in citations were evidence of infringement by the author of his own reports published under an earlier contract by the plaintiffs; and in 1911, in Shepard _v._ Taylor, Judge Hazel held that common errors were _prima facie_ proof of infringement.

{Sidenote: Infringement in part}

{Sidenote: No infringement of piracies or frauds}

In the important case of West Pub. Co. _v._ Lawyers' Pub. Co., where a collection of selected cases and a general digest were alleged to be infringements of the plaintiff's reports and monthly digests, Judge Coxe in the U. S. Circuit Court enjoined 303 proved "instances of piracy" but not the remaining portions of the digest, but in 1897 the U. S. Circuit Court of Appeals, through Judge Lacombe, held that under such circumstances the burden of proof must be on the unfair user and broadened the decision by issuing an injunction against the work as a whole, excepting those parts which were public property. In 1910, in Park & Pollard _v._ Kellerstrass, Judge Philips enjoined the whole work because the infringing parts were not separable. In 1903, in Thompson Co. _v._ American Law Book Co., where the editor of the defendant's law encyclopaedia had made a list of cases cited in complainant's work, which included material "pirated" by the complainant from copyright works, the Circuit Court of Appeals, reversing the lower court, held through Judge Coxe that there was no infringement, because the only use made of the list was to guide the defendant to the reports and because the complainant had no standing in equity. "If the defendant was guilty of piracy, so was the complainant; and equity will not protect a pirate from infringements of his piratical work." To like effect in Slingsby _v._ Bradford Co., in 1905, Justice Warrington, in the Chancery Division, held that the plaintiff could not recover against an evident copying because his own catalogue was fraudulent in advertising as patented articles not so protected, and a fraud will not be protected. In the later case of West Pub. Co. _v_. Thompson Co., where the publishers of the original reports and digests sought to restrain the Thompson encyclopaedias, the Circuit Court of Appeals held that while a compiler may use a copyright digest by making lists from which to run down cases, which is "fair use," extensive copying or paraphrasing of the language of the digest, whether to save literary work or mechanical labor, constitutes an infringement. The case was sent back to the lower court for rehearing and assessment of damages and was settled in 1911 by an agreement involving transfer of the encyclopaedia to the plaintiff. Reference to a copyright work giving pagination is not an infringement, as was decided in 1909, in Banks Law Pub. Co. _v._ Lawyers Co-operative Pub. Co., in the U. S. Circuit Court of Appeals.

{Sidenote: Quotation}

Whether simple quotation constitutes an infringement or is "fair use," depends upon extent and in some respects upon purpose. In 1892 Justice North, in the English Court of Chancery, in Walter _v._ Steinkopff, held that the use by the _St. James Gazette_ of two fifths of an article by Kipling, copyrighted by the _Times_, was beyond "fair use" of quotations, notwithstanding the newspaper custom of copying from one another. On the other hand, quotations in a review of a book made to reasonable extent for the purposes of criticism, have usually been considered "fair use," provided they do not go to the extent of a description or abridgment which would be measurably a substitute for the book.

{Sidenote: Private use}

The multiplication of copies by handwriting or other process for private use, as among the members of an orchestra or in a business office, has been held an infringement in English decisions, though prohibition of the making of a single copy for personal use would be an extreme application of this doctrine, and such use is specifically permitted in the new English code.

{Sidenote: The doctrine of "unfair competition"}

Beyond the purview of copyright law, there is a means of legal remedy for the copyright proprietor which can be enforced by state as well as by federal courts, resting either upon statutes outside the copyright law, or on the general principles of equity. This is the application of the doctrine of "unfair competition" especially in cases involving "fraud" or fraudulent representation, direct or implied, leading the purchaser to buy something other than what he supposes he is buying. Thus if a publisher prints and binds a book with a title and in a style that leads a purchaser to suppose that it is another book which he is buying, the publisher of the other book has the right to obtain equitable relief by an injunction from the transgressor on the ground of unfair competition without any reference to copyright law, although this doctrine is more applied in the case of patents, trade-marks and copyrights than perhaps any other field.

{Sidenote: The doctrine of deceptive intent}

There is also evident a growing tendency on the part of the courts to protect the public from possible deception especially if done with fraudulent intent, where some distinctive name or symbol or form associated with some line of product is used for another line of product of different origin and character, though there may be here no direct competition; but this comparatively new doctrine is more likely to be used in regard to trade-mark articles than in respect to literary and like property. It might, however, apply in a case where a well-known publishing house had published, for instance, a popular series of school books as Smith's Arithmetical Readers and another firm containing the same name had started to publish a Smith's Algebraic Readers--but the application would be extremely doubtful.

{Sidenote: The "Chatterbox" cases}

In the Chatterbox cases, 1884-1887, previously referred to, the final decision of Judge Shipman emphasized the view that the use of the title "Chatterbox" on a similar publication was misleading to the public, thus bringing both trade-mark law and common law protection to the rescue against unfair competition.

{Sidenote: Encyclopaedia Britannica cases}

In the series of Encyclopaedia Britannica cases, 1890-1904, the English publishers Black or their American representatives Scribner sought to protect in this country the English edition, or an American authorized edition, under the copyright law previous to 1891, copyrighted articles by Americans being included, and under common law because of the alleged fraudulent misuse of the name to mislead the public. In 1893, in Black _v._ Allen, Judge Townsend held that the use of copyrighted material in a non-copyright work did not vitiate the copyright, that the American author was entitled to secure and protect copyright even though the right to use was assigned to an English house which could not directly secure copyright, and that the fact of discrepancy in the title of the copyrighted articles as registered for copyright on separate publication and deposit and in the cyclopaedia, did not endanger the copyright. In 1904, in Encyclopaedia Britannica Co. _v._ Tribune Association, Judge Lacombe in the U. S. Circuit Court enjoined condensations of the copyrighted American articles. But in Black _v._ Ehrich and other cases, the complainants were not successful in obtaining an injunction against the use of the title Encyclopaedia Britannica on reprints of non-copyright material which did not mislead the public.

{Sidenote: Webster Dictionary cases}

In the Webster Dictionary cases in 1890-1909, a long litigation between the Merriams, as authorized publishers of Webster, and Ogilvie and other defendants, the courts held that the use of the name Webster or the title Webster's Dictionary could not be restrained when used in connection with a reprint of the original Webster Dictionary, then out of copyright, or otherwise in a manner not likely to mislead the public; but injunctions were granted and sustained against the use of these names on dictionaries issued in form so like the Merriam editions as to deceive the public, or in connection with misleading advertisements or circulars.

{Sidenote: "Old sleuth" cases}

In 1888-1890 George Munro, publisher of the "Old sleuth" detective series, sought in actions against several defendants to protect the use of the name "Sleuth" and was upheld in the N. Y. Supreme Court in separate decisions by Judges Andrews, O'Brien, and Patterson, while in one of the cases Judge Ingraham held that "sleuth" was a dictionary word and could not be protected; in 1889 the N. Y. Court of Appeals through Chief Judge Parker decided that the name "Sleuth" was protectable, and in 1890 Judge Macomber of the N. Y. Supreme Court held that "Sleuth" was properly a subject of trade-mark. But in 1890 also, Judge Shipman in the U. S. District Court dismissed the complaint in another Munro case, as to an illustration picturing "Old Sleuth," on the ground that though of the same subject it was not of the same character. These cases illustrate the difficulty of decisions in this borderland of equity.

{Sidenote: Other title decisions}

In 1894 Judge Green, in the U. S. Circuit Court in New Jersey, in Social Register Association _v._ Howard, protected on grounds of equity the title "Social register" as descriptive of a social directory covering Orange, N. J., and enjoined the use of "Howard's Social register" as unfair competition. In 1887 the Harper house, as publishers of the _Franklin Square Library_, obtained from the U. S. Circuit Court, through Judge Waite, an injunction against the Franklin Square Library Company for violation of their trade-mark rights in the name.

{Sidenote: Rebound copies}

Where the American Book Co. brought suit against Doan & Hanson, who had restored and rebound used copies of school books, the U. S. Circuit Court of Appeals held in 1901 that there was no violation of law, but required notice that the books were second-hand copies by conspicuous stamp on the cover. In 1891 the Pennsylvania Supreme Court, in Dodd _v._ Smith, declined to grant Dodd, Mead & Co. an injunction against rebinders who had purchased from them sheets of a fifty-cent paper-covered edition of a novel by E. P. Roe and bound these in cloth to sell at sixty cents in competition with the plaintiff's $1.50 cloth edition.

{Sidenote: The Kipling case}

In 1899 G. P. Putnam's Sons purchased from Kipling's authorized publishers sheets of twelve volumes, added three volumes of non-copyright or otherwise authorized material and published the fifteen volumes, "Brushwood edition," of Kipling's works, with the design of an elephant's head on the binding. Kipling sought an injunction for infringement of copyright, use of trade-mark and unfair competition with the "Outward bound edition" of his works, which also bore an elephant's head. In 1903 the U. S. Circuit Court of Appeals, through Judge Coxe, affirmed a decision holding as "a well-recognized principle of law" that "the defendants, having purchased unbound copyrighted volumes, were at liberty, so far as the copyright statute is concerned, to bind and resell them"; that the elephant's head, not being a registered trade-mark, could not be protected as a trade-mark; and that there was no similarity of editions constituting unfair competition. But in 1907, in Dutton _v._ Cupples & Leon, the plaintiffs obtained damages for a series of books closely imitating the get-up of their "Gem" or "Dainty" series. Passing off, however, cannot be made ground of action when material protectable by copyright has not been copyrighted, as was held in 1908, in Bamforth _v._ Douglas Post Card Co., by Judge McPherson in the U. S. Circuit Court.

{Sidenote: Burlesqued title}

The suit to enjoin the use of a reversed or burlesque title, when the _Boston Herald_ printed, under the title of "Letters of a son to his self-made father," a skit on Lorimer's "Letters of a self-made merchant to his son," was denied by Judge Morton in the Massachusetts Supreme Court in 1903 as involving no deception.

{Sidenote: The Drummond case}

In 1894 Henry Drummond, a British subject, obtained from Judge Dallas, in the U. S. Circuit Court, an injunction restraining Henry Altemus from publishing what purported to be exact reports of twelve lectures, of which eight only had been imperfectly reported in the _British Weekly_, on the ground that the author had a common law right to restrain the publication "of any literary matter as the plaintiff's, which was not actually his creation, and to prevent fraud."

{Sidenote: The new British code}

The new British measure comprehensively defines infringement as the doing without consent of the owner of the copyright of "anything the sole right to do which is by this act conferred on the owner of the copyright," but specifically excepts (1) fair dealing for private study, research, criticism, review or newspaper summary; (2) use by an artist of sketches, etc., made for a work of which he has sold the copyright, provided he does not repeat or imitate that work; (3) graphic reproduction of objects, or photographing of paintings, etc., in a public place; (4) limited extracts for use in school books; (5) report of lectures unless prohibited by placard; (6) reading or recitation of reasonable extracts.

REMEDIES AND PROCEDURE

{Sidenote: Protection and procedure}

It was for the protection of copyrights that the statute of Anne was passed and that statutory law thus began to replace English common law--a gain to authors sadly offset by its losses. But it was undoubtedly true that without statutory provision the proprietor of literary and similar property could not obtain the protection necessary for the enforcement of his rights. The new American code is comprehensive, detailed and specific in its legal provisions for protection and procedure, and in respect to punishment far beyond any copyright legislation on the statute books of any other nation.

{Sidenote: Injunction}

The first protection given by the statute is the injunction usual in equity proceedings, following the precedent of early legislation.

{Sidenote: Damages}

Under previous American law, damages were levied primarily on infringing copies found in possession of the infringer or his agents, with the unfortunate result that when an infringer was successful in selling his edition, few, if any, copies were found on which to levy damages. The new code thoroughly corrects this defect by providing for specified damages on infringing copies "made or sold by or found in the possession of the infringer or his agents or employees." The plaintiff is entitled to damages and all profits and is required only to prove sales, while the defendant is required to prove the elements of cost. The damages--assessed as such and not as penalties so as to free copyright litigation from the restrictions of penal proceedings--are stated as one dollar for each infringing copy, except copies of a painting, statue or sculpture on which they are ten dollars per copy; fifty dollars for each infringing delivery of an oral work; one hundred dollars for the first and fifty dollars for each subsequent infringing performance of a dramatic, dramatico-musical, choral or orchestral work; and ten dollars for each infringing performance of any other musical work. These damages shall not be less than $250 or more than $5000 in any one case, with the exception that for a newspaper reproduction of a photograph the minimum shall be fifty dollars and the maximum two hundred dollars, a concession insisted upon by newspaper proprietors.

{Sidenote: One suit sufficing}

Injunction, damages and profits, and delivery of infringing copies or means of production, are covered in the single suit to protect the copyright.

{Sidenote: Deposit of infringing articles}

During the pendency of an action the defendant may be required to deposit all articles alleged to infringe copyright, making oath that he has deposited all such, under regulations for his protection prescribed, as the law directs, by the Supreme Court, which regulations are given in full in the appendix of this volume; and when such articles are adjudged to be infringements, he must deliver up for destruction not only such infringing copies or devices, but also all plates, molds, matrices or other means for making such infringing copies as the court may order, making oath that he has delivered up all such.

The text covering these provisions, with the exception of subsection (e), referring to mechanical musical reproductions, given in the chapter on that subject, is as follows:

"(Sec. 25.) That if any person shall infringe the copyright in any work protected under the copyright laws of the United States such person shall be liable:

{Sidenote: Remedies specified}

"(a) To an injunction restraining such infringement;

"(b) To pay to the copyright proprietor such damages as the copyright proprietor may have suffered due to the infringement, as well as all the profits which the infringer shall have made from such infringement, and in proving profits the plaintiff shall be required to prove sales only and the defendant shall be required to prove every element of cost which he claims, or in lieu of actual damages and profits such damages as to the court shall appear to be just, and in assessing such damages the court may, in its discretion, allow the amounts as hereinafter stated, but in the case of a newspaper reproduction of a copyrighted photograph such damages shall not exceed the sum of two hundred dollars nor be less than the sum of fifty dollars, and such damages shall in no other case exceed the sum of five thousand dollars nor be less than the sum of two hundred and fifty dollars, and shall not be regarded as a penalty:

"First. In the case of a painting, statue, or sculpture, ten dollars for every infringing copy made or sold by or found in the possession of the infringer or his agents or employees;

"Second. In the case of any work enumerated in section five of this Act, except a painting, statue, or sculpture, one dollar for every infringing copy made or sold by or found in the possession of the infringer or his agents or employees;

"Third. In the case of a lecture, sermon, or address, fifty dollars for every infringing delivery;

"Fourth. In the case of dramatic or dramatico-musical or a choral or orchestral composition, one hundred dollars for the first and fifty dollars for every subsequent infringing performance; in the case of other musical compositions, ten dollars for every infringing performance;

{Sidenote: Impounding}

"(c) To deliver up on oath, to be impounded during the pendency of the action, upon such terms and conditions as the court may prescribe, all articles alleged to infringe a copyright;

"(d) To deliver up on oath for destruction all the infringing copies or devices, as well as all plates, molds, matrices, or other means for making such infringing copies as the court may order;

{Sidenote: Supreme Court rules}

"Rules and regulations for practice and procedure under this section shall be prescribed by the Supreme Court of the United States," for which see appendix.

{Sidenote: Court jurisdiction}

The Circuit Court, or District or other courts having circuit jurisdiction, of the United States, have original jurisdiction "of all suits at law or in equity arising under the patent or copyright laws of the United States" with appeal or writ of error to the Supreme Court of the United States. Copyright cases are brought in the first instance before a single judge sitting in Circuit Court or District Court, and thence are appealed to the Circuit Court of Appeals consisting of three or more circuit judges, and thence again to the United States Supreme Court, the final authority. These federal courts have sole jurisdiction under the copyright law as such; but copyright cases are often adjudicated in State courts on questions arising under the law of contracts or other statute or common law, regard being always given to the decisions of the federal courts as to copyright questions proper which may be involved. In other words, the State courts do not pass upon copyright law, but may apply, within the respective states, the copyright decisions of federal courts. Thus in Hoyt _v._ Bates, in 1897, Judge Putnam in the U. S. Circuit Court in Massachusetts remanded the case back to the State courts because the question was not under the copyright law as such, but regarding the ownership of copyright property. In this case the author of a play "A black sheep," containing a song "Sweet Daisy Stokes," licensed the defendant to print the song. The defendant copyrighted the song and the plaintiff sued to compel him to assign his copyright. The case illustrates the respective jurisdictions of federal and State courts in copyright matters.

{Sidenote: Limitation}

The United States courts have authority to enter the decrees necessary to enforce the remedies provided by the law. Important provisions of the new code provide that civil action in copyright cases may be brought "in the district of which the defendant or his agent is an inhabitant or in which he may be found"--thus preventing avoidance by the defendant possible under earlier law; and also that any injunction granted in any one district may be operative throughout the United States--a provision adopted into the law from recent legislation intended to prevent the evasion of injunctions, particularly by "fly by night" dramatic companies passing from one state or court jurisdiction into another, but usefully applicable also throughout the whole range of copyright infringements. Criminal proceedings under the copyright act may not be brought after three years from the commission of the offense.

Under the former laws the District courts also had certain--or uncertain--jurisdiction. The distinction between the District courts and the Circuit courts of the United States, both of which are courts of first instance, has been so complicated and uncertain as to be practically impossible of statement--a situation which has led to a measure for the abolition of the distinction and the provision of a single court in each federal district having original jurisdiction in the first instance, from which appeal will go to the Circuit Court of Appeals and thence to the U. S. Supreme Court, or in certain cases direct to the Supreme Court.

{Sidenote: Text of procedure provisions}

The text of these provisions is as follows:

"(Sec. 26.) That any court given jurisdiction under section thirty-four of this Act may proceed in any action, suit, or proceeding instituted for violation of any provision hereof to enter a judgment or decree enforcing the remedies herein provided.

{Sidenote: Proceedings united in one action}

"(Sec. 27.) That the proceedings for an injunction, damages, and profits, and those for the seizure of infringing copies, plates, molds, matrices, and so forth, aforementioned, may be united in one action."

{Sidenote: Jurisdiction in copyright cases}

"(Sec. 34.) That all actions, suits, or proceedings arising under the copyright laws of the United States shall be originally cognizable by the circuit courts of the United States, the district court of any Territory, the supreme court of the District of Columbia, the district courts of Alaska, Hawaii, and Porto Rico, and the courts of first instance of the Philippine Islands.

"(Sec. 35.) That civil actions, suits, or proceedings arising under this Act may be instituted in the district of which the defendant or his agent is an inhabitant, or in which he may be found.

{Sidenote: Injunction provisions}

"(Sec. 36.) That any such court or judge thereof shall have power, upon bill in equity filed by any party aggrieved, to grant injunctions to prevent and restrain the violation of any right secured by said laws, according to the course and principles of courts of equity, on such terms as said court or judge may deem reasonable. Any injunction that may be granted restraining and enjoining the doing of anything forbidden by this Act may be served on the parties against whom such injunction may be granted anywhere in the United States, and shall be operative throughout the United States and be enforceable by proceedings in contempt or otherwise by any other court or judge possessing jurisdiction of the defendants.

"(Sec. 37.) That the clerk of the court, or judge granting the injunction, shall, when required so to do by the court hearing the application to enforce said injunction, transmit without delay to said court a certified copy of all the papers in said cause that are on file in his office.

{Sidenote: Appeal}

"(Sec. 38.) That the orders, judgments, or decrees of any court mentioned in section thirty-four of this Act arising under the copyright laws of the United States may be reviewed on appeal or writ of error in the manner and to the extent now provided by law for the review of cases determined in said courts, respectively.

{Sidenote: No criminal proceedings after three years}

"(Sec. 39.) That no criminal proceeding shall be maintained under the provisions of this Act unless the same is commenced within three years after the cause of action arose."

{Sidenote: Strict compliance requisite}

The copyright statutes are construed strictly, by the letter of the law, in respect to procedure as well as to other features. This is especially the case in respect to forfeiture and penalties, as where, in Falk _v._ Heffron, in 1893, 2400 copies of a copyright portrait of Lillian Russell had been lithographed, twenty-one on a sheet. Judge Wheeler in the U. S. Circuit Court in New York held with the jury that only one dollar per sheet could be recovered as penalty, because the law specified "sheets." In McDonald _v._ Hearst, in 1899, in the U. S. Circuit Court in California, Judge DeHaven held that the proprietor of the San Francisco _Examiner_ could not be held liable for copyright penalties because an employer could not be held to penal responsibility for the act of his agent. In a suit to obtain damages based on forfeiture, in Wheeler _v._ Cobbey, in 1895, Judge Shiras in the U. S. Circuit Court in Nebraska sustained a demurrer on the ground that the damages asked for depended on forfeiture and could not be obtained unless the actual forfeiture was had within the statutory limit of two years. In Morrison _v_. Pettibone, in 1897, in the U. S. Circuit Court in Illinois, Judge Seaman held that certain sheets, seized during the process of lithographing, when only one color had been printed, were not exact copies and therefore could not be forfeited. In Bennett _v._ Boston _Traveler_ Co., in 1900, the Circuit Court of Appeals, through Judge Colt, refused relief because the plaintiff had alleged infringement of a cartoon published in the New York _Herald_, which was not specifically copyrighted, instead of alleging infringement of the copyrighted newspaper of which it was a part. An extreme case was that of Child _v._ N. Y. _Times_ Co., in 1901, where the plaintiff had purchased infringing copies from the defendant, in which case Judge Hazel in the U. S. Circuit Court in New York held that as these were not literally "found in possession" of defendant, a penalty could not be collected. Several of these cases illustrate escapes from justice which will not be possible under the code of 1909, which uses broader phraseology. In Walker _v._ Globe Newspaper Co., in 1908, where no copies of a pirated map were found in possession of the defendants, the U. S. Supreme Court held that outside of statutory remedies no suit for damages could be maintained.

{Sidenote: Damage not penalty}

On the other hand, in the case of Brady _v._ Daly, which came before the U. S. Supreme Court in 1899, the defendants, on a question of jurisdiction, raised the issue that the old law provided for a penalty and not for damages, in denying which Justice Peckham held that: "The statute in using the word 'damages' did not mean a forfeiture or penalty, as it is difficult to prove the exact amount which the proprietor of a play may suffer by reason of an infringement. It is probable that Congress intended to provide a remedy so that the proprietor could recover a certain amount of damages without proof of what his actual loss had been. In the face of the difficulty of determining the amount of damages, a minimum sum is provided in any case, with the possibility of recovering a larger amount on proof of greater damage. The idea of punishment is not so much suggested as the desire to provide for compensation to the proprietor." This rule was applied by Judge Lacombe in Patterson _v_. Ogilvie, in 1902.

{Sidenote: Other procedure decisions}

In the case of Falk _v._ Curtis Pub. Co., which came before the U. S. Circuit Court in Pennsylvania twice in 1900, some important decisions or indications as to copyright procedure were given. The defense that under the copyright act the words "any person" did not include a corporation was overruled by Judge Dallas on the ground that the general statute specifically construed the word "person" to extend to partnerships and corporations. In this case an action to recover penalties and an action to replevin copies in possession were started independently and simultaneously, and the Circuit Court of Appeals through Judge Buffington affirmed the decision that as the penalties under the old act were restricted to copies "found in possession," the suit for penalties was premature. In the later case of Rinehart _v._ Smith, also in the Pennsylvania circuit, it was pointed out that an action for replevin was not the proper form of suit because in such actions bonds might be given and the forfeiture of copies thus be barred; and in Hegeman _v._ Springer, the Circuit Court in New York held, in 1901, that a replevin suit, involving prior demand, was not necessary and that the copyright statute itself gave authority for an action for seizure without previous demand, as would be necessary in replevin proceedings. It was held, however, in the Illinois circuit in an earlier case, that a suit of replevin will lie to enforce forfeiture under the copyright act. Several of these perplexities, however, are removed by the code of 1909, which expressly (sec. 27) authorizes the bringing together of all the remedies in one action.

{Sidenote: Preventive action}

That there can be no infringement of copyright by acts committed before the copyright was obtained, was decided in 1900 in the U. S. Circuit Court in the case of Maloney _v._ Foote, where the two parties were jointly engaged in preparing directories, and the plaintiff obtained the copyright and brought suit for infringement for the prior use of material, the question being of contract and not of copyright. On the other hand, as far as practicable, "it is the policy of the law to arrest the pirate before he actually makes off with the plunder," said Judge Coxe in the U. S. Circuit Court of Appeals, in Gannet _v._ Rupert, in 1904.

{Sidenote: Party in suit}

In 1903, in Champney _v._ Haag, it was held in the U. S. Circuit Court in Pennsylvania, that though a copy of a photograph of a copyright painting was an infringement, it was not the owner of the original copyright but the owner of the photograph who must sue--but this is contrary to the English ruling case of Lucas _v._ Williams, and is probably not good law.

{Sidenote: Suit for injury to reputation}

A curious case arose in England in 1892 as to the rights of an author after publication and transfer of copyright, in Lee _v._ Gibbings, where the plaintiff had prepared for the defendant, a publisher, at an agreed price, an edition with introduction of Lord Herbert's autobiography, which the defendant reissued in a condensed edition without the introduction and other matter by the author, though retaining his name. The author sued to restrain the condensation as an injury to his reputation, but Justice Kekewich in the Chancery Division held that this should be a suit for libel and not under copyright, and declined to enjoin the defendant before the question whether this was actually a libel was settled.

{Sidenote: Damages in willful case}

In a case of evident bad faith in wholesale copying, the U. S. Circuit Court in Hartford Printing Co. _v._ Hartford Directory Co. awarded as damages the gross receipts less estimated cost.

{Sidenote: Penal provisions}

The provisions for collecting damages and profits are supplemented in case of infringement, willfully and for profit, by penal provisions which make the offense a misdemeanor punishable by imprisonment not exceeding one year or fine not less than $100 or more than $1000, or both, in the discretion of the court, according to the following provision (sec. 28):

{Sidenote: Penalty for willful infringement}

"That any person who willfully and for profit shall infringe any copyright secured by this Act, or who shall knowingly and willfully aid or abet such infringement, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by imprisonment for not exceeding one year or by a fine of not less than one hundred dollars nor more than one thousand dollars, or both, in the discretion of the court."

This provision (sec. 28) includes however a proviso exempting from prevention or punishment the performance of certain musical works for charitable or educational purposes and not for profit, which proviso is given in full in the chapter on dramatic and musical copyright.

{Sidenote: Penalty for false notice of copyright}

Provision is also made in the new statute for the punishment by fine, but not by imprisonment, of any person who with fraudulent intent affixes a copyright notice or its equivalent on an uncopyrighted work, or removes or alters the copyright notice in a copyrighted work, the fine being not less than $100 nor more than $1000; and of any person who shall knowingly issue, sell or import any article bearing notice of United States copyright which has not been copyrighted in this country, the fine in this case being $100, according to these provisions:

"(Sec. 29.) That any person who, with fraudulent intent, shall insert or impress any notice of copyright required by this Act, or words of the same purport, in or upon any uncopyrighted article, or with fraudulent intent shall remove or alter the copyright notice upon any article duly copyrighted shall be guilty of a misdemeanor, punishable by a fine of not less than one hundred dollars and not more than one thousand dollars. Any person who shall knowingly issue or sell any article bearing a notice of United States copyright which has not been copyrighted in this country, or who shall knowingly import any article bearing such notice or words of the same purport, which has not been copyrighted in this country, shall be liable to a fine of one hundred dollars."

Further provisions as to importation are given in the chapter on that subject.

{Sidenote: Allowance of costs}

In addition to injunction, damages and profits, delivery of copies, etc., the courts may allow costs inclusive of attorney's fees as provided:

"(Sec. 40.) That in all actions, suits, or proceedings under this Act, except when brought by or against the United States or any officer thereof, full costs shall be allowed, and the court may award to the prevailing party a reasonable attorney's fee as part of the costs."

It seems impracticable and undesirable to attempt in this chapter a statement of the procedure under former copyright laws in this country, or under the legal methods in vogue in other countries, for which the legal authorities on local procedure and practice should be consulted.

{Sidenote: The new British code}

The new British measure provides the usual civil remedies of injunction, damages, account and costs in the discretion of the court. The author, or if no author the publisher whose name is indicated on the work, is _prima facie_ recognized as owner unless the contrary is proved. Infringing copies or plates become the property of the copyright owner. If the infringer proves ignorance, only an injunction will hold. In architectural works, after construction has been commenced, damages and not an injunction are provided for. Actions must be commenced within three years. Summary conviction is provided for in the case of any person knowingly and for profit or trade making, offering, distributing, exhibiting or importing infringing copies or making or having in possession infringing plates with penalty of a fine not exceeding fifty pounds, or in case of a second offense, imprisonment not exceeding two months, as also destruction or delivery up to owner of the copyright. The summary provisions of the musical copyright acts of 1902 and 1906 remain unrepealed.

Under previous law there had been two notable cases of criminal punishment for conspiracy. In 1906, _Re_ Willets against a combination among cheap music publishers, where the Common Serjeant sentenced the vendors to nine months' imprisonment, and in 1910, _Re_ Bokenham, where pirates who had conspired to print surreptitiously obtained copies of Oscar Wilde's poem "De Profundis," were also sentenced to six months and lesser periods.

XVI

IMPORTATION OF COPYRIGHTED WORKS

{Sidenote: Copyright and importation}

The right to import a copyrighted book and, conversely, the right to exclude importation are rights incident to the general "exclusive right" of an author or copyright proprietor. This is recognized, in terms or inferentially, in the copyright law of most countries; and the American copyright code is exceptional and almost without precedent, save that of the preceding American law of 1891, in specifically permitting the importation of copyrighted books in stated cases, without the consent or authority of the copyright proprietor.

{Sidenote: Fundamental right of exclusion}

As Senator O. H. Platt in the copyright debate of 1891 said: "The fundamental idea of a copyright is exclusive right to vend, and the prohibition against importation from a foreign nation is necessary to the enjoyment of that right. The privilege of controlling the market is indeed essential." The copyright laws of foreign countries, and our own copyright legislation previous to 1891, carefully safeguard this right. When an author cannot assure to an American publisher the American market he cannot get from that publisher the price he would otherwise secure. In the "international copyright amendment" of 1891, Congress accompanied the manufacturing clause, which prohibited the importation of foreign copies even with the consent of the author, by a proviso permitting certain importations even without the consent of the author--on the homoeopathic principle of off-setting one restriction upon authors' rights by another restriction upon authors' rights.

{Sidenote: General prohibitions}

{Sidenote: Exceptions permitted}

In general the law prohibits absolutely the importation of "piratical copies" or of works bearing a false notice of United States copyright; it also prohibits, even though with consent of the author and the copyright proprietor, the importation in the case of works subject to the manufacturing clause, of any copies not manufactured in this country--but this prohibition does not apply to books in raised characters for use of the blind; to foreign-made periodicals containing authorized copyright matter; to authorized copies of a work in a foreign language of which only an English translation has been copyrighted here; or to authorized copies published abroad when imported under specified exceptional circumstances. These exceptions permit the importation of authorized copies for individual use and not for sale, not more than one copy at a time (excepting a foreign reprint of a book by an American author); or by or for the United States; or by or for stated educational institutions, including libraries, not more than one copy at one time; or when parts of collections or libraries purchased and imported _en bloc_, or of personal baggage. Books imported under these exceptions cannot be adduced in defense of infringements, as the law specifically provides, _e.g._, as when such a book contains no proper United States copyright notice. Copies unlawfully imported may be seized and forfeited like other contraband importations under regulations of the United States Treasury, but it is provided that importations through the mails or otherwise may be returned to the country from which the importation is made on petition to the Secretary of the Treasury when there is no evidence of negligence or fraud. The Secretary of the Treasury and the Postmaster-General are jointly required to make regulations against unlawful importation through the mails.

These provisions, it may be noted, are a singular mixture, almost without precedent, of acceptance and denial of the "exclusive right" of the author or copyright proprietor.

{Sidenote: Text provisions}

In respect to the importation of books in relation with copyright, the provisions of the American code as to prohibition and limited permission are specific and detailed, as follows:

{Sidenote: Prohibition of piratical copies}

"(Sec. 30.) That the importation into the United States of any article bearing a false notice of copyright when there is no existing copyright thereon in the United States, or of any piratical copies of any work copyrighted in the United States, is prohibited.

{Sidenote: Permitted importations}

"(Sec. 31.) That during the existence of the American copyright in any book the importation into the United States of any piratical copies thereof or of any copies thereof (although authorized by the author or proprietor) which have not been produced in accordance with the manufacturing provisions specified in section fifteen of this Act, or any plates of the same not made from type set within the limits of the United States, or any copies thereof produced by lithographic or photo-engraving process not performed within the limits of the United States, in accordance with the provisions of section fifteen of this Act, shall be, and is hereby, prohibited: _Provided, however_, That, except as regards piratical copies, such prohibition shall not apply:

"(a) To works in raised characters for the use of the blind;

"(b) To a foreign newspaper or magazine, although containing matter copyrighted in the United States printed or reprinted by authority of the copyright proprietor, unless such newspaper or magazine contains also copyright matter printed or reprinted without such authorization;

"(c) To the authorized edition of a book in a foreign language or languages of which only a translation into English has been copyrighted in this country;

"(d) To any book published abroad with the authorization of the author or copyright proprietor when imported under the circumstances stated in one of the four subdivisions following, that is to say:

"First. When imported, not more than one copy at one time, for individual use and not for sale; but such privilege of importation shall not extend to a foreign reprint of a book by an American author copyrighted in the United States;

"Second. When imported by the authority or for the use of the United States;

{Sidenote: Library importations}

"Third. When imported, for use and not for sale, not more than one copy of any such book in any one invoice, in good faith, by or for any society or institution incorporated for educational, literary, philosophical, scientific, or religious purposes, or for the encouragement of the fine arts, or for any college, academy, school, or seminary of learning, or for any State, school, college, university, or free public library in the United States;

"Fourth. When such books form parts of libraries or collections purchased en bloc for the use of societies, institutions, or libraries designated in the foregoing paragraph, or form parts of the libraries or personal baggage belonging to persons or families arriving from foreign countries and are not intended for sale: _Provided_, That copies imported as above may not lawfully be used in any way to violate the rights of the proprietor of the American copyright or annul or limit the copyright protection secured by this Act, and such unlawful use shall be deemed an infringement of copyright.

{Sidenote: Seizure}

{Sidenote: Return of importations}

"(Sec. 32.) That any and all articles prohibited importation by this Act which are brought into the United States from any foreign country (except in the mails) shall be seized and forfeited by like proceedings as those provided by law for the seizure and condemnation of property imported into the United States in violation of the customs revenue laws. Such articles when forfeited shall be destroyed in such manner as the Secretary of the Treasury or the court, as the case may be, shall direct: _Provided, however_, That all copies of authorized editions of copyright books imported in the mails or otherwise in violation of the provisions of this Act may be exported and returned to the country of export whenever it is shown to the satisfaction of the Secretary of the Treasury, in a written application, that such importation does not involve willful negligence or fraud.

{Sidenote: Rules against unlawful importation}

"(Sec. 33.) That the Secretary of the Treasury and the Postmaster-General are hereby empowered and required to make and enforce such joint rules and regulations as shall prevent the importation into the United States in the mails of articles prohibited importation by this Act, and may require notice to be given to the Treasury Department or Post Office Department, as the case may be, by copyright proprietors or injured parties, of the actual or contemplated importation of articles prohibited importation by this Act, and which infringe the rights of such copyright proprietors or injured parties."

Customs regulations as to importation of copyright articles and joint customs and postal regulations as to such importation through the mails, were issued under the law of 1909 under date of July 17, 1911, and are given in the appendix. As the copyright law forbids importation of copyright books not manufactured in this country, even with consent of the copyright proprietor, the customs regulations provide that copies imported with the copyright proprietor's assent shall be seized and destroyed by the government, while copies imported without the copyright proprietor's consent, being forfeited under the law to such proprietor, must be held by the customs authorities pending suit for forfeiture by the copyright owner or his abandonment of his right to such copies. Duties collected on books thus unlawfully imported are not refunded.

{Sidenote: Supersedure of previous provisions}

In relation especially to questions of importation, and in general, it is of first importance to note that the present code superseded by repeal, from July 1, 1909, all conflicting provisions, which practically means all previous copyright legislation, and that except as to infringement cases actionable at that date, the present code is the only copyright law.

The provision to this effect is (sec. 63): "That all laws or parts of laws in conflict with the provisions of this Act are hereby repealed, but nothing in this Act shall affect causes of action for infringement of copyright heretofore committed now pending in courts of the United States, or which may hereafter be instituted; but such causes shall be prosecuted to a conclusion in the manner heretofore provided by law."

{Sidenote: Manufacturing clause affects earlier copyrights}

This principle as construed by the Treasury Department (Treas. dec. no. 30316) especially affects copies whose _status_ has been changed by the new form of the manufacturing proviso (sec. 15). A modification adds the condition that books must be printed from plates made from type set within the United States and printed and bound in this country. The Treasury Department has held in the case of an American edition of the "Key of Heaven" copyrighted under the law of 1891, by Benziger Brothers, of which sheets were sent abroad for binding, that the edition as bound abroad cannot be re-imported into the United States, although the sheets were manufactured here under the provisions of the law of 1891, previous to July 1, 1909. These books were accordingly denied importation and had to be returned to the country whence they were exported as bound. The opinion of Attorney-General Wickersham of November 17, 1909, on which the Treasury ruling was based, says:

"This language [of sec. 31] clearly embraces every American copyright in a book, regardless of whether that copyright was obtained under the copyright laws embodied in the Revised Statutes, or the act of 1891, or the copyright act of 1909. If the statute were otherwise, it would have produced the anomalous condition that books copyrighted prior to March 3, 1891, would not be prohibited from importation by any manufacturing provision; that books copyrighted after March 3, 1891, and prior to July 1, 1909, the date upon which the act of March 4, 1909, became effective, would be prohibited unless printed from type set in the United States or from plates made from type set in the United States, while books copyrighted after July 1, 1909, would be prohibited if not printed from type set in the United States or from plates made from type set therein, and the printing and _binding_ both performed within the limits of the United States."

{Sidenote: Importation of foreign texts}

Where a work in a foreign language is copyrighted in the United States, it was held by the Secretary of the Treasury (Treas. dec. no. 22751) in 1901, on advice of the Attorney-General, under the act of 1891, in the case of Rostand's "L'Aiglon," that the original French edition must be denied importation under the prohibition feature of the manufacturing clause; but, as under the new code of 1909, "the original text of a work of foreign origin in a language other than English," is excepted from the manufacturing clause, it follows that such original text cannot be denied importation on copyright grounds, though importation might be restrained as a matter of equity by an assignee who had bought for the American market the right to publish here. In the case, however, of Liddel and Scott's Greek-English Lexicon, of which an American edition was copyrighted previous to the law of 1891, on a question raised by the American Book Co., the Secretary of the Treasury held in 1901 (Treas. dec. no. 22781) that the English edition could not be denied importation, as the law previous to 1891 did not contain the prohibition incident to the manufacturing clause. The Attorney-General in this case considered that while the clause against importation, being remedial, might affect prior copyright, yet as it particularly applied to books "so copyrighted" as not to be imported during the existence of "such copyright," it should be inferred that only books copyrighted under that act should be denied importation--the law in general being prospective in its effect. These two earlier opinions were taken into consideration in the opinion in 1909 by Attorney-General Wickersham, who held that the language of the new code did not warrant the same construction.

{Sidenote: Printing within country}

Under the law of 1891, the Secretary of the Treasury held in 1903 (Treas. dec. no. 24742) that books printed abroad from type set or plates made within the United States could not be prohibited importation under the manufacturing clause; but the clause has been so amended in the code of 1909 that printing in this country from type set within the United States or from plates made within the country from type thus set, is required as a condition of copyright, and copyright does not hold if any of these three conditions be neglected. It follows that in the case of books so copyrighted and manufactured, any other edition must be prohibited importation.

{Sidenote: Innocent importation}

An English decision holds that an importer is not innocent because he does not know that an importation includes copyright matter; and the wording of our law implies the same, though an American decision held that a partner or employer is not chargeable with statute penalties for acts done without his knowledge by a partner or agent.

{Sidenote: Books not claiming copyright}

An indirect and significant effect of the manufacturing proviso, in the nature of a "boomerang" to American industries, is to prevent the copyrighting of works which might otherwise be partly manufactured in America. Thus the American versions of the Book of Common Prayer and of Church Hymnals no longer seek American copyright, because the thin paper editions, as on "Oxford paper," are necessarily printed abroad and could not be imported if there were copyright on other editions which might be made in America. Baedeker's "United States," though dealing exclusively with and chiefly sold in this country, is not copyrighted, being protected rather by the cost of reproducing its German-made maps and text, and by its repute as a guide book and characteristic form, which might under the doctrine of "fair use" give its American publishers some common law protection against imitators.

{Sidenote: Periodicals may be imported}

{Sidenote: Composite books not admitted}

The code of 1909 permits the importation of periodicals containing copyright matter authorized by the copyright proprietor, though not manufactured in the United States, but this permissive exception does not extend to composite books; and under the law of 1891 the Treasury Department held that in the case of a book of poems, some of which were copyrighted in the United States, the book could not be imported unless the parts containing copyrighted poems had been printed from type set within the United States. Under this ruling, applied to the present law, foreign-made copies of books containing American copyrighted poems or other articles, must be denied importation, because these copyrighted portions were not type-set, printed and bound in this country. It is possible, however, that under the rule "_de minimis non curat lex_," a court might not justify the prohibition of books incidentally containing in small proportion poems, extracts or other negligible items of American copyright. Thus if an English cyclopaedia contained copyrighted contributions by American authors, such cyclopaedia would be denied admission unless such contributions might be adjudged a negligible proportion of the work.

{Sidenote: Rebinding abroad}

The prohibition of importation under the manufacturing proviso of copyrighted books not bound in this country, has been construed by the Attorney-General, in an opinion of March 1, 1910 (given in Treas. dec. no. 30414), to refer to original bindings and not to rebindings. "Manifestly a book is produced within the meaning of section 31 when it is printed and bound; and the binding required to be done in the United States is the original binding, the one which enters into the original production of the book. When the manufacture of the book is thus completed it is entitled to all the protection offered by the copyright laws, and it may be exported and thereafter imported at the pleasure of the owner. There is, furthermore, nothing in the act to indicate any intention that a book may be deprived of this protection or right of importation when it has once been acquired. If it shall become necessary or proper that the book be rebound it is not thereby made a new book, but remains the same book, the one that was printed and originally bound in the United States as required by the statute."

{Sidenote: Importation of non-copyright translation}

A curious question as to the prohibition of importation arose in connection with a Swedish translation of the "purity" books of the "Self and sex" series, by Dr. Sylvanus Stall, of Philadelphia, author and publisher of this series. The original works in this series are by an American author written and printed in English and manufactured and copyrighted in America; and there are translations into twenty or more languages authorized by the author but not copyrighted in the United States. The copyright proprietor made an importation of the Swedish translation without question, but the second importation was stopped by the customs authorities at Philadelphia on the ground that the Swedish translation was a copy of the American copyrighted work and must therefore be denied admission because not manufactured in America. On appeal, the Treasury Department, June 23, 1910, overruled the local authorities and admitted the translation made in Sweden, and bearing no copyright notice, as a work "of foreign origin in a language other than English."

{Sidenote: Books dutiable}

Copyright protection and tariff "protection" are often spoken of as related with each other, chiefly because in this country the importation of books for libraries is, to a limited extent, free from tariff duties as well as from copyright restrictions. There is no real relation between them, but the sections of the American tariff of 1910 dealing with books and works of art may be cited for the convenience of importers:

"(416) Books of all kinds, bound or unbound, including blank books, slate books and pamphlets, engravings, photographs, etchings, maps, charts, music in books or sheets, and printed matter, all the foregoing wholly or in chief value of paper, and not specially provided for in this section, twenty-five per centum ad valorem; views of any landscape, scene, building, place, or locality in the United States on cardboard or paper, not thinner than eight one-thousandths of one inch, by whatever process printed or produced, including those wholly or in part produced by either lithographic or photogelatin process (except show cards), occupying thirty-five square inches or less of surface per view, bound or unbound, or in any other form, fifteen cents per pound and twenty-five per centum ad valorem; thinner than eight one-thousandths of one inch, two dollars per thousand: Provided, That the rate or rates of duty provided in the tariff Act approved July twenty-fourth, eighteen hundred and ninety-seven, shall remain in force until October first, nineteen hundred and nine, on all views of any landscape, scene, building, place, or locality, provided for in this paragraph, which shall have, prior to July first, nineteen hundred and nine, been ordered or contracted to be delivered to bona fide purchasers in the United States, and the Secretary of the Treasury shall make proper regulations for the enforcement of this provision."

{Sidenote: Books on free list}

The following are included in the "free list" and are therefore free from any duties:

"(516) Books, engravings, photographs, etchings, bound or unbound, maps and charts imported by authority or for the use of the United States or for the use of the Library of Congress.

"(517) Books, maps, music, engravings, photographs, etchings, bound or unbound, and charts, which shall have been printed more than twenty years at the date of importation, and all hydrographic charts and publications issued for their subscribers or exchanges by scientific and literary associations or academies, or publications of individuals for gratuitous private circulation, and public documents issued by foreign governments.

"(518) Books and pamphlets printed chiefly in languages other than English; also books and music, in raised print, used exclusively by the blind.

"(519) Books, maps, music, photographs, etchings, lithographic prints, and charts, specially imported, not more than two copies in any one invoice, in good faith, for the use and by order of any society or institution incorporated or established solely for religious, philosophical, educational, scientific, or literary purposes, or for the encouragement of the fine arts, or the use and by order of any college, academy, school, or seminary of learning in the United States, or any state or public library, and not for sale, subject to such regulations as the Secretary of the Treasury shall prescribe.

"(520) Books, libraries, usual and reasonable furniture, and similar household effects of persons or families from foreign countries, all the foregoing if actually used abroad by them not less than one year, and not intended for any other person or persons, nor for sale."

{Sidenote: Library free importation}

The provisions as to importation for libraries are made unnecessarily onerous by Treasury regulations intended to insure the identification of the actual copies so imported. In practice such copies are usually imported by library agents acting for the library and not only must these agents make oaths and present evidence of authorization from the library authorities, but the librarian must certify to the receipt of the individual copy, before it can be technically cleared from the custom house through which it is imported, and the importer relieved from further liability. Blank forms for these purposes are prescribed and provided by the Treasury Department.

{Sidenote: Copyrights and the free list}

The question whether copyrighted works could be imported because they were included under the free list of the tariff came before the Treasury Department in 1901. With respect to copyrighted music, the Attorney-General considered the two questions whether the copyright law prohibits the importation of copyright music and whether the free list in the tariff constitutes an exception to the copyright law. He held as to the latter that the tariff is to prescribe certain duties on importations; it is not designed to authorize importation. It simply provides when and under what circumstances certain articles are exempt from duty. Accordingly copyrighted musical compositions are not taken out of the effect of the copyright law. The Secretary of the Treasury ruled (Treas. dec. no. 23225), in accordance with this advice, that copyrighted music was prohibited importation,--but this refers to importation without consent of the copyright proprietor.

{Sidenote: The duty on books}

Although not of copyright bearing, the significance in respect to importations of books of the newly added phrase "wholly or in chief value of paper" in the tariff act of 1909, which otherwise continued the 25 per cent duty on books, may here be mentioned, as of importance to importers. It was included in the Payne tariff, apparently at the instance of the bookbinding interests, and was at first construed by the local customs authorities at New York to make books bound in leather subject to the 40 per cent duty on leather, and books bound in silk subject to the 50 per cent duty on silk, as the component parts of chief value. The Secretary of the Treasury has, however, overruled this view and admitted books thus bound under the 25 per cent duty on the ground that "the limitation placed upon the paragraph by the addition of the words not found in the previous law was intended to exclude from that rate, books bound in such fancy or costly bindings as to be imported not on account of their intrinsic literary merit or their value as books." The Board of General Appraisers has since, however, rendered a decision supporting the local appraisers.

{Sidenote: British prohibition of importation}

In Great Britain the copyright act of 1842 (sec. 17) provided that any printed books, copyright in the United Kingdom, imported "for sale or hire" as reprinted out of the British dominions otherwise than by "the proprietor of the copyright or some person authorized by him" should be forfeited, seized and destroyed by any customs or excise officer, and the Customs act of 1843, setting forth that "great abuse had prevailed with respect to introduction for private use," prohibited importation for use as well as for sale or hire. The international copyright act of 1844 (sec. 10) excepted importations from the country "in which such books were first published," but this act did not in terms repeal the provisions of the acts of 1842 and 1843, and in the leading case of Pitt Pitts _v._ George, in 1896, the Court of Appeal, two judges to one, decided that this exception was inconsistent with the previous acts and not good law. In this case an English music publisher who had purchased British copyright in Raff's "La Fileuse," sued to restrain the importation of the original German edition. The lower court, relying on the statute of 1844, refused relief, but the Court of Appeal granted an injunction, holding, through Judge Lindley, that the complete exclusion given to the British proprietor by the act of 1842 "is most in accordance with legal principles and good sense." It was further held that where the copyright had been divided, the words "the proprietor of the copyright" indicate the owner of the English rights, and that if he had to "submit to an unlimited importation of books lawfully printed in any part of Germany itself," the British copyright "would be absolutely worthless, and the beneficial object frustrated," and protection by covenant with the original proprietor is by no means adequate.

{Sidenote: Foreign reprints}

The colonial copyright act of 1847, usually known as the foreign reprints act, authorized suspension by the Crown of the prohibition of importation of foreign reprints, in any colony enacting "reasonable protection to British authors"--which protection, in the twenty colonies in which the act was availed of, usually took the shape of a stated duty to be paid as royalty to the British copyright proprietor. The customs consolidation act of 1876 continued the general prohibition, on condition of notice by the proprietor of the British copyright to the Commissioners of Customs.

{Sidenote: Divided market}

Thus the British copyright and customs law recognizes the subdivision of copyright territory for the exclusive control of a market, and excludes accordingly foreign reprints whether piratical copies or authorized foreign editions like the Tauchnitz series, and the original foreign edition as well. In theory, if not in practice, a Tauchnitz copy in the pocket of a traveler is subject to seizure, and written authority from the copyright proprietor is technically necessary for the importation of a single copy, apparently without exception in favor of the British Government or the libraries.

{Sidenote: The new British code}

The new British measure continues these provisions as embodied in the customs consolidation act of 1876 and the revenue act of 1889 and in the text of the new act. Copyright is infringed by any person who "imports for sale or hire any work ... which to his knowledge infringes copyright." Importation is prohibited of copies made out of the United Kingdom, which if made therein would infringe copyright and as to which the owner of the copyright gives written notice to the Commissioners of Customs in accordance with regulations by the Commissioners, which regulations may apply to all works or to different classes. The Isle of Man is specifically excepted from the United Kingdom in respect to this section. But the section is made applicable with the necessary modifications to any included British possession in respect to copies made out of that possession. The text of the new measure, retaining the phrase "for sale or hire" from the act of 1842 and reaffirming the customs act of 1876, which makes no such exception, continues an unfortunate ambiguity as to the importation of copies for private use, but precedent and court decisions favor the complete control of the market by the copyright proprietor through the complete exclusion of foreign copies.

{Sidenote: Canadian practice}

Canada had, in an act of 1850, availed itself of the foreign reprints act by imposing a duty "not exceeding 20 per cent" on foreign reprints of English works, and under this act the Dominion later became "flooded" with cheap American reprints, while the royalty to British authors, fixed at 12-1/2 percent, was so inadequately collected that only L1084 was paid in the ten years ending 1876. Canada accordingly passed its copyright act of 1875, providing for the reprinting of English copyright works in Canada under Canadian copyright and prohibiting importation of such works except in the original edition from the United Kingdom, and this act, although opposed as an invasion of the exclusive control of their works by British authors, was accepted by the British Parliament in the Canada copyright act of the same year, with the proviso that Canadian reprints should be prohibited importation into the United Kingdom except with assent of the copyright proprietor. It has since provided in the Fisher act of 1900 for the prohibition of importation of an original edition of an English work licensed for reprint in Canada, except two copies for libraries and one copy through demand on the Canadian licensee by an individual for use and not for sale--a provision considered _ultra vires_ by English authorities.

{Sidenote: Australian provision}

The Australian code of 1905 prohibits the importation of all pirated books or artistic works in which copyright is subsisting in Australia, "whether under this act or otherwise," and provides for the forfeiture of such works, on condition of written notice by the owner of the copyright to the Minister, directly or through the Commissioners of Customs of the United Kingdom, of the existence of the copyright and of its term. These provisions do not seem to make clear whether original editions of English works, of which an Australian edition is copyrighted, are held to be contraband.

{Sidenote: Foreign practice}

The legislation of France and Germany and other countries seems to provide against importation inferentially rather than specifically, Russia and Peru being exceptional in their specific prohibitions. But the treaties and conventions between the several countries are for the most part specific on this point, as are those of France providing that "when the author of a work of which the property rights are guaranteed by the present treaty shall have assigned his right of publication or of reproduction to a publisher in the territory of either of the high contracting parties with the reservation that the copies or editions of this work thus published or reproduced cannot be sold in the other country, these copies or editions shall be considered and treated, respectively, in that country as illicit reproductions"; and the treaties of Germany are especially specific with respect to musical compositions.

The authorities as to the prohibition of importation in other countries are fully given in a statement from the Librarian of Congress made part of the printed record of the third hearing before the Patents Committees at Washington, March 26-28, 1908, which includes the text of the opinion in Pitt Pitts _v_. George as the leading English case.

{Sidenote: International practice}

The Berne convention of 1886 provided (art. XII) that "every infringing (_contrefait_) work may be seized on importation into those countries of the Union where the original work has right to legal protection," which was modified by the amendatory act of Paris, 1896, to read "may be seized by the competent authorities of the countries of the Union." The Berlin convention continues in article 16 the later phraseology, and adds, "in these countries seizure may also be made of reproductions coming from a country where the work is not protected or protection has ceased." All three conventions include also the proviso that the seizure shall take place conformably to the domestic legislation of each country. This phraseology apparently leaves the prohibition of editions authorized for other countries as an open question to be determined under the domestic legislation or practice of each country. The Pan American convention of Buenos Aires, 1910, provides (art. 14): "Every publication infringing a copyright may be confiscated in the signatory countries in which the original work had the right to be legally protected, without prejudice to the indemnities or penalties which the counterfeiters may have incurred according to the laws of the country in which the fraud may have been committed."

XVII

{Sidenote: History of Copyright Office}

Under the early American copyright laws, copyright entries and deposits were made in the clerk's office of the respective District courts and there was no central copyright office. The deposit copies were not properly cared for, but what remained were collected into the vaults of the national Capitol when copyright administration was centralized in the Library of Congress. Under the law of 1870, the Librarian of Congress was made the copyright officer, and for many years Ainsworth R. Spofford, occupying that position, personally recorded entries and did much of the work. Before the close of his administration of the Library, and while it was still housed in the Capitol, the copyright business required the services of a staff including at the last twenty-four persons. By a special act of 1897, the office of Register of Copyrights was created, subject to the authority of the Librarian of Congress, who remains the ultimate administrative authority. The code of 1909 provided also for an assistant register of copyrights. The Copyright Office now occupies the southern end of the ground floor in the new Library building and the staff has increased to eighty-four persons.

{Sidenote: Routine of registration}

When a book is deposited for registration, accompanied by the claim for copyright, preferably on the application form gratuitously provided by the Copyright Office, its class designation, with its accession or sequence number in that class, is at once stamped upon the deposit copy or copies, with the date of receipt, and also upon a green record slip on which all details in the progress of the work through the Copyright Office are recorded with exact time of each act and the initials of the respective clerks. This record, when completed, shows, besides the class number and the title of the work, the date and hour of the receipt of deposit copies and of the receipt of application, affidavit and fee, with memorandum of the disposition of the fee if out of the ordinary course; the examination of the application and affidavit, the preparation of the white card for printer's copy, and the clearance of the work. Thus cleared, the book is ready for examination by the Library Commission, the delivery of one copy to the Catalogue Division of the Library of Congress, the making of the certificate and its record and the making of the index cards, all of which acts are performed usually on the day of receipt, or otherwise as early as practicable on the following day. The record slip also provides for noting and notifying claimants of defects as to the deposit copies or the application for copyright, and for noting also the reference to other departments, and the disposition of second deposit copies.

{Sidenote: Treatment of deposits}

The deposit copies, as entered on day of receipt and stamped with date, group and accession number, are placed on a table for inspection by what is known as the Library Commission of the Library of Congress, consisting of the Assistant Librarian, the Superintendent of the Reading Room and the Chief of the Catalogue Division, who decide which books are desired for the Library of Congress, and whether one or two copies thereof are required; one copy not so required is retained as part of the records of the Copyright Office. Accumulations of the past years and current accessions were until recently stored in the sub-basement of the Library of Congress building, but a new stack now furnishes abundant and well-lighted space for deposit copies and gradually all deposit articles will be removed to this stack. The new provision for the destruction of useless material happily prevents the continuing storage of such material to an indefinite future.

{Sidenote: Destruction of useless material}

The Librarian of Congress and the Register of Copyrights jointly are authorized "at suitable intervals" to determine what articles received during any period of years and remaining undisposed of, are useful for permanent preservation, and in their discretion to provide for the destruction of others, after a statement of the years of receipt of such articles and notice to permit any lawful claimant to claim and remove them has been printed in the catalogue of copyright entries from February to November, permitting their reclamation within the month of December. There is a special proviso that no manuscript of an unpublished work shall be destroyed during the term of copyright without specific notice to the copyright proprietor of record, permitting him to claim and remove it.

{Sidenote: Register of Copyrights}

The Register of Copyrights, originally appointed by the Librarian of Congress under the act of February 19, 1897, is made by the new code of 1909 a permanent administrative officer, appointed by and under the direction and supervision of the Librarian of Congress at a salary of $4000 per year and under bonds of $20,000. He is authorized under the law to make rules and regulations for the registration of claims to copyright, subject to the approval of the Librarian of Congress; is required to make an annual report to the Librarian of Congress to be printed in the annual report on the Library of Congress; to cover all fees into the Treasury and report as to the same to the Secretary of the Treasury and to the Librarian of Congress, and to provide and keep the necessary record books, indexes, etc. He is authorized to affix the seal of the Copyright Office provided for by law, and is happily relieved by the new code from the necessity of formal signature of certificates, etc., which under the old law wasted precious and difficult hours in small routine work, the affixing of the seal being the sufficient and sensible substitute for the personal signature. An assistant register of copyrights at a salary of $3000 was provided for in the new act, also to be appointed by the Librarian of Congress, with authority during the absence of the Register to attach the seal and perform other necessary functions.

{Sidenote: Catalogues and indexes}

The law directs that the Register of Copyrights "shall print at periodic intervals a catalogue of the titles of articles ... together with suitable indexes, and at stated intervals ... complete and indexed catalogues for each class of copyright entries, "which shall be admitted in any court as _prima facie_ evidence," shall be promptly distributed to collectors of customs and postmasters of all exchange offices and shall be furnished to others at a price not exceeding $5 per annum for the complete catalogue or $1 for the catalogues issued during the year for any one class.

The practice of the Copyright Office is to make for each copyrighted book an index card, in conformity with the printed catalogue card of the Library of Congress, and to utilize the linotype slugs set for this purpose, with some modification, as the basis for the "Catalogue of copyright entries" for books. The catalogue for books proper, Part I, Group 1, is printed weekly with an annual index, which, together with