(Jnrnpll Cam irlynnl ICtbtatg Cornell University Library KF 2995.E47 Copy-right manual :deslgned for men of b 3 1924 019 209 174 Cornell University Library The original of tliis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924019209174 COPY-RIGHT MANUAL: DESIGNED FOR MEN OF BUSINESS, AITTHOES, SCHOLARS, AND MEMBERS OF THE LEGAL PROFESSION. PKEFAEED BY WILLIAM W. ELL SWOETH, LATE JUDGE OP THE SUPREME COURT OP ERRORS OP CONNECTICUT. BOSTON: Oi:iI"VEIi B:iJIiS"WORTII. 18 62. Entered according to Act of Congress, in tbe year 1862, By OLIVER ELLSWORTH, In tlie Cleric's Office of tbe District Conrt of the District of Massachusetts. FBSsa OF Gso. C. Band & Atbbt, 3 Cobnsill. INTRODUCTORY REMARKS. The following Manual has been prepared at the sug- gestion of a gentleman long conversant with copy-right property, and the publication of books secured under the act of Congress. It is suggested by him and others, that something of the nature of this manual — something more brief, compact, and simple, and less expensive than the larger works which treat of literary property, and the steps to be pursued under the acts of Congress for the security and enjoyment of^opy-rights — is needed for men of business, and perhaps for literary and professional gentlemen who wish to avoid laborious research, to see what the laws of Congress require in taking out or assign- ing a copy-right, and what the rights of an author are under the principles of the Common Law, or the decisions of the courts of justice under the Statute Law. The various topics and questions involved in the sub- ject of literary property are briefly stated and discussed in the Manual, and the most important decisions, at home and abroad, are cited and commented upon. The author has embraced in this Manual the essential laws of Congress on this subject, which of itself is a great convenience to persons who have not ready access to the volumes of the United States Laws. THE PUBLISHER. OcTOEEE 8th, 1862. A COPY-EIGHT MANUAL. ' Op the nature and duration of literary property, We do not propose to speak in this brief Manual. These topics have been most fully discussed in the English courts and in Parliament, in the cases of Millar v. Taylor, and Donaldson v. Beckwith, reported in 4 Burr, 2303, until the law is no longer open to dis- pute, although it is quite possible, we may not be altogether satisfied with the views of all the judges. But, however this may be, we suppose the law is absolutely settled in England, and by the more recent case of Wheaton v. Peters, 8 Pet. E. 592, wherein the court adopted the views of the English judges, we suppose the law is equally settled in this country. From these cases it appears, that although an author has, at the common law, an exclusive right to his manuscript, and the same right to publish and multiply copies, for sale (the only way in which he can, to any considerable extent, avail himself of his labor), yet the common law right is held to be modi- fied and limited by the statute of Anne in England, and in this country by the Act of Congress, February 3, 1831. It is curious to see, what refinement and subtlety have been indulged in by grave and learned judges, in their reasonings upon the nature, duration, 1* A COPY-EIGHT MANUAX. and enjoyment of this species of property; and wherein it diflfers from other property which is the result of labor, invention and study ; but a distinction has been eiSFectually established, and we receive the law as promulgated; bowing, as we must, to its supreme authority. Were it true, indeed, as some have intimated, that the common law right is founded in an exclusive appropriation to one's self of ideas or sentiments, there would be force in the views of Lord Camden and Justice Yates, expressed in the English cases, that authors have no exclusive property, after publica- tion ; but this is not the fact. The property of an author, as claimed, is an exclusive right to publish for scde his thoughts and sentiments, peculiarly ar- rangedj and clothed in language of his own. CHAPTER I. TO WHAT CASES DOES THE ACT OF 3 FEBKUART, 1831, EXTEND, OK FOE WHAT MAY A COPY-EIGHT BE OBTAINED? A copy-rigbt may be obtained on an origiruxl, un- puMished maiiuscript, map, chart, musical qompoaition, design, print, or engraving. As the copy-right secures the whole of an original manuscript, it, of course, secures every material part, i. e., every part which is original and hitherto un- published. Although a copy-right is sufficient evidence of property in the author or proprietor who has taken out the copy-right, it does not always follow that a court of justice will become active, and lend its aid to protect the property ; as, if its character is in con- flict with morality or public policy. In such a case the court may refuse its aid, in the exercise of a sound discretion. It will, in a clear case, refuse to injoiu the supposed piracy ; nor will it allow of the recovery of damages at law. This is well settled in England, and, we doubt not, is equally the law of this country ; for it iatbut carrying out a well set. tied principle of the common law, that courts will not actively assist wrong-doers, or recognize a right of property in that which is a violation of law. It ig true, there is no provision to this effect in the Eng- lish statute, or our own ; nor is this necessary ; for no man can claim the protection of what is mis- chievous and immoraL 2 Sto. Eq., p. 936. Lord 8 A COPY-EIGHT MANUAL Chief Justice Abbot, in a case of this kind, the his- tory of the amours of a courtesan, said it would be a disgrace to the common law could a doubt be en- tertained upon the subject. Stockdale i;. Onwhyn, 5 Ba. and Cr., p. 193. Bayley, J., said, " If a work be not innocent, in such a sense as that an action would lie in case of its having been published by the author, and subsequently pirated, courts of equity will not grant an injunction." Hblroyd, J., said, " In my judgment, it would be preposterous for a court of law to say, that a right of action is acquired by being the first publisher of a book, when that publication is liable to be punished as an offence." Not that a court assumes the censorship of the press, and pre- scribes its own notions as the test of truth and morality, but it will not render its active assistance in behalf of authors who violate the law of the land. The same rule is applicable to musical composi- tions, and to all sorts of immoral and unchaste de- signs, prints or engravings. Care must, however, be taken, that this rule of law, indefinite, as from the nature of the subject it must be, is not unreasonably applied by courts in their supervision of public morals, or the public press. Nor is there danger it will be. But the rule itself is most salutary in its«fcharacter, and should be extended to embrace all books, songs, devices and engravings which promote licentiousness or immo- rality of any kind. In England, courts refuse to pro- tect authors whose writings are injurious to the public peace and quiet, such as excite to riots, rebel- lion and treason, or to such as are libellous, or are any way unlawful. The rule may not, as we have A COPy-EIGHT MANUAL. i) just intimated, be carried so far as to embarrass the freedom of the press, or hinder the publication of books of science, history, travels, fiction, and the like. The language of Judge Story is, " No copy- right can exist, consistently with principles of public policy, in any work of a clearly irreligious, immoral, libellous, or obscene description." It has been decided that courts will not actively protect a book which purports to be written by a deceased author, when it is not so ; for it is a species of crimen falsi ; using the name of a person of good fame, to obtain money by selling the book as made by him. But the rule does not embrace books assuming & fictitious authorship, for in such a case no false reliance is placed upon the reputation of a real author, and so the book does not come within the reason of the rule. In Wright v. Tallis, 1 Man. Com. B. Rep. 894, p. 907, Chief Justice Tilden said, " The object of the plaintiff is not merely to conceal the name of the genuine author, and to publish opinions to the world under an innocent disguise, but to deceive the public, by inducing them to believe that the work is the original work of the author whom he names, when he himself knows it not to be so, to obtain from the purchaser a greater price than he would other- wise obtain." • Nothing can be secured which is not original in the person seeking a copy-right; if the author has sold or parted with the manuscript, to an assignee, whether by contract, devise, or operation of law, the assignee may act. The reason of this is too obvious to need extended remarks. Such is the very lan- guage of the act of Congress itself; and, further, it 10 A COPT-KIGHT MANUAL. is the only reason why any law at all is called for to encourage science, literature and art. A mechanical copyist does not need and does not merit any copy- right security of his labors. But what may be said to be original, within the language and spirit of the act, is not so easily settled. As to some manuscripts there can be no question or difficulty ; while as to others, or parts of others, it is quite otherwise, and it is just here that a serious question arises. Now, a verbatim copy of the whole, or of a material part of another's book, map, chart, &c., is obviously wanting in originality; but it is otherwise if the writer has done no more than incorporatiB with his own, the thoughts and sentiments of another, clothing them in his own language ; for there is no exclusive proprietorship in mere thoughts and sentiments. We must look further, — to the form, the dress, the language adopted ; herein we shall find, if anywhere, the originality or intellectual labor which can be secured by law ; for all courts agree, that the exclu- sive property of an author consists in the form or relation of his ideas, as expressed in the language selected by him. Any narrower rule than this, will inevitably embarrass future authors who derive their thoughts from reading and Studying the writings oi other persons ; which all may do with propriety and impunity. It is not easy, in advance, to state with distinct- ness aU the characteristics which belong to this rule of law. This much, however, is certain : mere mechaniccd labor will not suffice ; intellectual labor or invention is indispensable. But as even this, too, A COPY-BIGHT MANUAL. 11 is consistent, and often is combined with the senti- ments and labors of other persons, to some extent, we need to know how much invention there must be to satisfy the rule. Now, the narration of one's own travels, observations or experience would be abso- lutely original ; so would any new narrative, biogra- phy, essay, poem, or piece of music. But much less than this will suflSce. An old book may be re-written; it may be enlarged by the addition of new chapters, sections, illustrations, notes, and the like. The origin- ' ality and novelty here consist in what is added to the old book. It is just this new matter, and this new combination, which can be well secured by copy- right ; and a good illustration of the rule is found in a new edition of a book already copy-righted. The old matter, by itself, is not again secured, but only the new, and the combination of the new with the old. Pew men, however original, attempt to write books of any size, without availing themselves of the intel- lectual labors of others. It would be next to impossi- ble to write books of value or compose treatises on any subject of science without doing so. Is the his- torian, the lexicographer, the geographer, and the like, to be absolutely original, taking nothing from the labors of his predecessors ? Certainly, this would be to convert a law designed to encourage literary men, by securing to them the exclusive sale of their works, into the greatest hindrance to the progress and diflfu- sion of knowledge among men. Authors, if they will do the world any good by their books-, must, of neces- sity, seek for knowledge wherever it is to be found, — as from Bacon, Newton, Hooker, Blackstone and others; and may build on such acquirements, when obtained,^ 12 A COPY-KIQHT MANUAL. with entire freedom and propriety. They may even resort to books and treatises secured by copy-right ; provided, however, no more of the particular form and language of the author is taken than is warranted by the nature of the case. By which last expression we mean, the purpose or object for which it is taken ; as for illustration, or criticism, or refutation. But more on this topic in the sequel. Gray v. Eussell, 1 Sto. R. 11. ' The question is often asked whether an abridgment of a book, has the element of originality to such a degree as to be the subject of copy-right ; or is it a piracy, in the case of a copy-righted book, which can be arrested by injunction in equity? Now, if by this term we understand an abridgment of another's ideas and thoughts (which is the true meaning of the word), and not a literal copying of parts of the original work, reducing the original by a facile use of the scissors, still leaving it in a condition to be put to the same general use, in a more cheap and econoifiical form, the abridgment has originality, and may well be secured in its new dress. It is a bona fide abridgment of thought, by the exercise of reason, judgment and taste (which constitutes originality), in a new form and language, and in new combinations. The distinction, though somewhat nice and meta- physical at first view, is nevertheless a true one, and may not be overlooked without confounding well- settled principles of law, and suppressing the efforts of genius and science. In Polsome et al. v. Marsh et cd., 2 Sto. R. 100, the rule of law is laid down in the syllabus as follows : " An abridgment in which there is a substantial condensation of the materials of A COPT-RIGHT MANUAL. 13 the original work, and which requires intellectual labor and judgment, does not constitute a piracy of copy-right ; but an abridgment consisting of extracts of the essential or most valuable parts of the original work is a piracy." So far, then, as it is a piracy, it certainly is not an original work. Sto. Gem, 939 ; 2 Swan E. 428 ; Tomson v. Walker, 3 Swan R. 672 ; Curtis on Copy-Bight, 190, 265, 290. In Emerson v. Davies, 3 Sto. E. p. 778, according to the syllabus, 1^ — and such is the plain doctrine of the entire case, — the learned judge held that any new and original plan, arrangement, or combination of materials will entitle the author to a copy-right therein, whether the materials themselves be new or old ; and, further, that whoever, by his own skill, labor and judgment, writes a new work, may have a copy-right thereon, unless it be directly copied, or evasively imitated, from another work. Curtis, on page 240, sums up his extended remarks on this point by saying that the doctrine ought to be — and we infer, from what he says of the decisions in England and the United States, would be now held to be — as expressed in the decision of Judge Story just cited. Compilations and selections requiring learning, study, taste and judgment, especially accompanied with explanatory remarks, as notes, references, and indexes, constitute originality enough to be secured by copy-right. It is the special combination of the pieces selected, which chiefly imparts this quality to the work; for the separate pieces remain open to com- mon use, as before. Grray v. Eussell, 1 Sto. R. 11. This doctrine is likewise fully established in the PreHch courtsfi, See, further, the opinion of Judge 14 A COPT-BIGHT MANUAL. Story in Folsome v. Marsh, 3 Sto. E. 100, and Emer- son V. Davies, 3 Sto. R. 768. We think the great cri- terion, running through all the cases, seems to be this, expressed in the shortest form, — intellectual hhor, as distinguished from that which is mechanical. Another question, sometimes raised is, whether ie^ ters addressed to real correspondents, as from a tourist giving an account of his travels, letters upon science, politics, religion, business, or of a merely social char- acter, can be secured by copy-right. If so, by which of the parties — the writer, or the person to whom they are addressed? In the case of Folsome v. Marsh, 2 Sto. p. 100, Judge Story held they remained the property of the former, and could by him be secured, but could not by the latter ; that, although sent to a correspondent, for him to read and use as far as he had occasion, they did not become his property, and had not been published by the transmission, so but that they could be secured as the writer's own manuscript. The case before Judge Story arose out of the publication of the letters of General Washing- ton. These letters had been purchased of the execu- tor of General Washington, and published in several volumes by Folsome et al., being first secured by copy-right. Marsh d al. copied or printed verbatim from those volumes, the most important of the letters, in two volumes, upon the idea, that they were not the proper subject-matter of a copy-right, and could not therefore be rightly secured. The copy-right was sustained. At first view, it might seem as if a letter-writer, by transmitting his thoughts to another, had given them wings to escape beyond his control, ^ that anyrfur- A COPY-EIGHT MANUAL. 15 ther circulation of them would be only a further pub- lication, especially if the letters did not partake of the character of a confidential communication ; and that such a right might well be held to vest in the person to whom the letter is addressed. But, as we have said, the law is clearly otherwise in this country and in England. In England this principle was set- tled in the case of Mr. Pope, whose letters to Swift were published by one Curll, a bookseller ; and in the case of Lord Chesterfield's letters to his son. The doctrine is placed on the ground, that transmitting a letter is not an act of publication, — it is using the manuscript for a precise and defined purpose, beyond which it is understood the correspondent is not at liberty to go, any more than one's friend, to whom had been committed a work in manuscript for his inspec- tion and criticism, — he could not lawfully give it greater publicity. Pope v. Curll, 2 Atk. 342. Thomp- son V. Stanhope, Amb. 737. Curtis on Copy-Eight, 90. 2 Sto. Eq. pp. 944 and 211, It must be conceded that, although the above rule of law may seem somewhat peculiar, its origin is to be traced to high moral and social considerations. Most private letters are but the spontaneoxis outpour- ing of sentiments to a confiding friend, which confi- dence is often expressed or obviously apparent in the letters themselves. It is therefore better, on every account, as a general rule, that no further publicity shall be allowed them, without the knowledge and con sent of the author himself, or those to whom, in case of his death, he has committed such discretion. Public and official letters may stand on a different ground. They are the property of the government 16 A COPY-RIGHT MANTJAIr. to whom or whose ageata they were (Mrlginally ad- dressed, and miQst therefore ever reaaain subject to the pleasure of the goTernment, to be^ made public or otherwise, according to its views of the public inter- est. Subject to this; restriction, Judge Story, in Fol- some V. Marsh, expressed an opinion that such letters eould, with the approbiation of the government, be- come the subject of copy-right in the writer. 2 Sta. Bq. p. 949. The same unimpaired right of property is recog- nized in other original writings, though they may have been publicly read or spoken, — as sermons, lectures, addresses, speeches, and the like. Such special use of the manuscript is held not to be a publication, any more than the transmission to a friend of a private let- ter, which we have seen is not. 2 Sto. Eq. p. 949. The same may be said of dramatic pieces and musi- cal composition. Their being acted or sung on the stage is not a publication. In England this is ex- pressly provided by act of Parliament, since the early statute of Anne ; and it would be so without such a provision, we presume, in this country, upon general principles, already discussed. At one time there was not a little dispute whether the word "hook" in the statute of Anne, — and we have the same word in the act of 3 Eebruary, 1831, — in- cluded a sheet of music» It was said not to be a book, and could not therefore be secured ; but the question is no longer of any importance in England or here, for if at first there was force in the objection, it no longer exists. The true doctrine is, that the form of the publication is not the criterion ; for a single sheet is a book within the spirit and language of the A COPY-KIGHT MANtJAIi. 17 law. Besides, the language of the statute is now ex- plicit. Lord Mansfield held, in Bach v. Longman, Cowp. p. 624, that music was a "writing," within the statute of Anne. A copy-right may be had on periodicals, reviews, and original publications relating to science, the arts, ag- riculture, commerce, manufactures, finance, politics, and the like ; so on price-currents, almanacs, registers, directories, guide-books, reports of assemblies and judicial tribunals. These all are the product of in- tellectual labor, and may have as much originality in them as treatises and books of higher pretension. But then a copy-right must be taken out on them, or they are made common, by such publication. The question whether a translation of a book into another language can be the subject of a copy-right, or whether^ if the book translated is itself secured, the translating and selling is mere piracy, subject- ing the offender to damages, has, at times, been very much discussed in courts and elsewhere, though it is now settled that a copyrright may be had in a transla- tion. Both questions, i. e., the originality of a work, and breach of copy-right, may depend very much on the same principle, for if no mere translation possesses originality sufficient to obtain a copy-right, it would seem to follow that to sell the book, in its new dress, must be an infringement of the copy-right of another, if that be still existing. Perhaps the questions may, in certain cases, involve considerations somewhat dif- ferent, which we need not now examine. Certainly, to translate a book requires learning, study, judgment . and taiste^ the very ielements of originality. Besides, the dress or language of the 2* IS A CQP1-EI6HE UANUAL, teanslatGr are entirely hia own. It is true the, thoughts, are not hia own, but thoughts must be embodied in language, to be secured by copy-right. This doctrine was elaborately examined in the late case of &towe v. Thomasi, in the Circuit Court of the United States for PeiiQsylvania Circuit, reported in 2. Wallace, 547. " Uncle Tom's Cabin " had been trans- lated into the German language by the defendant,, and sold in its new dres^. Mrs. Stowe complained &f this as a violation of her copy-right. The court decided it was not so.. Not because the translator did not ruinutely follow the original, for he did with perfect, exactness and UteraUy (if that may be said of a translation at all), in its plan, thought and order^ but because the e&py-right of Mrs. Stowe did not secure to her exclusively her plan, thoughts and order, ir7:e8pective of the language made use of by her in the original. At first, this doctrine appears over-nice and teehnir cal, if not absolutely unreasonable and unfair ; but on second thought, this view may be found to be less severe and most consistent with, if not the unavoid- able consequence of,, the principle, already examined, that the language, garb and dress of the author's tittoughts is an indispensable requisite in obtaining a copy-right. A translation certainly is. not the original book, according to common parlance among men, or within the meaning of the statute law. The transla- tions of Homer, Demosthenes and Virgil are certainly not their books, though, madei out of their books, with more or less original thought on the part, of the trans- lators. In translating, as lalfeady stated, there is necessarily called intO' exercise much, learning, taste A COPT-KIGHI HAITOAL. 19 and judgment, which, togetlier with the language selected to convey the translator's meaning, consti- tute the peculiar property allowed to be vested in him for a copy-right. Besides, a translation need not be, and usually is not, a close imitation of the original, word for word. The effort may, and sometimes does, admit of as high an exercise of genius, as if it were an original work, or as if nothing had preceded the translator's labors, beyond the plan and general thoughts of the author;; tkongli such latitude ia translating is incompatible with a faithful translation of the original book. In the case last cited. Judge Greer, in giving the opinion of the court, held " that when a person has given his thoughts to the world, he has no longer an exclusive possession of them ; it would be inconsistent with the object of publication. The author's conceptions have become the common property of his readers, who cannot be deprived of the use of them, nor of their right to communicate them to another, dothed in their own Icmguage. It follows that after publication an author has no ex- clusive right to his ideas, sentiments and creations, though he owns the concrete form of them, and has an exclusive right to multiply future copies of that form for sale* And hence, in questions of infringe- ment of copy-right, the inquiry is not whether the defendant has used the thoughts, conceptions, or discoveries promulgated by the original work, but whether his composition may be considered a new book, showing learning, invention and judgment." The foregoing views of the nature of literary property and the rights of authors, secured to them by statute law, are traceable to the celebrated discus- 20 A COPY-KIGHI MANUAIi.^ sions which took place in the English courts and the British Parliament, nearly a century ago, in the cases of Millar v. Taylor, and Donaldson v. Beckwith, 4 Burr R. 2311. The same subject has been dis- cussed and passed upon in the Supreme Court of the United States, in Wheatori v. Peters, 8 Pet. R. 591, Few cases in our books evince so much collision of great and acute minds as these, so much refinement and professional metaphysics, or so much research and learning ; and yet, all the principles settled therein have never met with universal acceptance, either in England or this country. The common-law right of authors after publication, in England and here, is regulated by statute ; in England by the statute of Anne and some more modern statutes ; in the United States by the statute of February 3, 1831, and two subsequent statutes, one of June 30, 1834, and one of August 10, 1846. These three statutes are published at the end of this treatise. To them, then, we must look to learn what are the rights and remedies of authors in the United States ; for we suppose it is generally agreed that the power to regulate the entire subject of literary property is, under the Constitution of the United States, exclusively vested in Congress. If it is not so, and the legislatures of the States have concurrent jurisdiction with Congress, there may serious conflict arise between the right and remedies prescribed by the one and those prescribed by the other; and, further, the very object and end of Congressional ac- tion, in recognizing and protecting the rights of au- thors for a term of time, is, that after the term ex- pires their works shall become common to the public. A COPT-RIGHT MANUAL. 21 See Sto. on Com. Law, p. 1149,. 3 Yol. p. 50 ; Curtis on Copy-Right, 81, If, then, we hold that statute law alone gives the rule of law in relation to this species of property, as was held by a majority of the judges in England, the common-law right practically becomes of no impor- tance, and we must turn our attention to the statutory provisions, to discover what an author must do, m the United States, to obtain a copy-right on his book. Previous to the formation of the present govern- ment, some of the States had passed laws to protect the rights of authors, but since then they have ceased to legislate on the subject, and no State has, at this time, any statute whatever. Wheaton v. Peters, 8 Peters R. 591. Curtis on Copy-Right, 77. The statute 3 February, 1831, the one of most im- portance, is chiefly distinguished for two new pro- visions, very greatly enlarging the interest of authors in their publications. We mean the extension of the first term to twenty-eight years, instead of fourteen years ; and the right of renewal, in the author or his widow and children, for fourteen years more ; making the whole term of time forty-two years. These pro- visions" are a great and deserved boon to authors, and for it they are more indebted to the late Noah Webster than to any other person, either in or out of Ccmgress. Mr. Webster spent the winter of 1830-31 in Washington, and brought the subject directly before the leading men in both houses of Congress, and, by one or more lectures in the Hall of Represent- atives on this and kindred subjects, in effect secured the passage of the act of that session. When it was passed, and signed by President Jackson, Mr. Webster 22 A COPY-RIGHT MANUAL. said to the writer he was satisfied, and immediately left for his home in New Haven. After this, in 1843, he gave a history of this statute in a book of essays published by Webster & Clark in New York. It may not be amiss, at this place, to mention that before the new parts of the bill were drawn up and reported to the House of Representatives, the laws of foreign governments, touching the period or ex- tent of copy-rights, were carefully examined and compared by the writer, from which he compiled the most favorable provisions which it was believed could be carried through Congress. These laws are, or were, substantially as follows. In England an author may have a copy-right for his life, and for seven years after to his family ; in a certain event it may last forty-two years. In France it may be had for the life of the author or his widow, and, after the death of both, twenty years more for children. In Holland and Belgium it may be had for the author's life, and to his heirs and representatives twenty years. The Germanic Diet directed that, in all the States, it may be had for ten years at least. In Prussia it may be had for life and thirty years after. In Russia, for life and twenty-five years after, and five year's more in a certain event. In Denmark, Norway, Sweden and Spain, it may be had in perpetuity. As our statute relates to manuscripts which are published, being secured according to its provisions, it is obvious, the common-law right of the writer, before publication, to _his manuscript, remains un- touched, and is subject exclusively to his pleasure. As yet, not having given his manuscript to the world, ie alone may decide whether he ever will, and, if so, A COPY-RISHT MANUAL. 23 in what foroij and at what time; because, to use the language of Lord Mansfield, in Millar v. Taylor, the author should reap the profits of his ingenuity and labor. It is just that another should not use his name without consent. It is fit that he should judge when to publish, or whether he ever will. It is fit he should not only choose the time, but the manner of publication, how many, what volume, what to print. It is fit he should choose to whose care he will trust the accuracy and correctness of the im- pression ; to whose honesty he will confide not to foist in additions. 4 Bur. p. 2398. All the books agree that unpublished manuscripts, like other property, may be given by will, and will pass to executors, administrators and assignees, who may take out a copy-right in their own names, for the benefit of those who have the real interest therein. But unpublished manuscripts cannot be taken on execution, nor do they pass under a commission in bankruptcy ; there is no provision in the law to that efi'ect ; and, besides, no man is obliged to have his manuscripts made public. Nor is the publisher's right in a book secured by copy-right taken by creditors seizing the stereotype plates, though the plates are taken, and may be sold as so much metal. So may any printed books on hand, made on said plates, be seized and sold. Millar V. Taylor, 4 Burr, 2311. Godson on Patents and Copy-Right. Stevens v. Gladding ei al., 17 How, 453. Legislatures and courts of justice have a right to control, and, where the public good requires it, pre- vent the publication of their proceedings. Though a copy-right could otherwise have been 24 A, copy-aiaHT manual. obtained, the author of a book may have so con- ducted with it as to have forfeited the benefit of the statute ; as, if he has abandoned it to the world by allowing it to be published first in some public jour- nal, newspaper or repository, that is not secured by copy-right, Having published it, unsecured, it can- not afterwards be reclaimed as an unpublished manu- script, as required by the act of 3 February, 1831. JL copy-right cannot be had on a book -which has been already published in a foreign country. That, likewise, is not an unpublished manuscript; it has become common to the public. This evil, if it be one, can be remedied by an international copy-right law, or, indeed, without it, should it be the pleasure of Congress, by modifying the present law. CHAPTER II. HAVING CONSIDERED IN WHAT CASES A COPY-EIGHT MAY BE TAKEN TJNDEE THE STATUTE, WE WILL NEXT INQUIBE BT WHOM THIS MAY BE DONE. It is obvious, and such is the language of the act, that the author is the proper person, in the first in- stance ; after this, in case of his death, his executor, administrator, or assignee. If, however, the author has made sale of the manuscript before publication, it may be taken out in the name of the purchaser, as proprietor. If, however, it has not been assigned in form, but equitably, it may be taken out in the name of the author, if living, for the benefit of the equi- table owner. It sometimes happens that a book, &c., is got up by one person, at the request and for the benefit of an- other, to become the property of the latter when finished and ready for publication,^ — in which case equity will see that he has the benefit of it, according to the understanding of the parties. How it would be if there is nothing more than an executory agree- ment to prepare and transfer a manuscript, we need not say. Possibly, in such a case, an action at law only would lie to recover damages. A manuscript, in order to be entitled to a copy- right, must belong to a person who is a citizen of the United States by birth, or by adoption under the law of naturalization, or it will suflSce if he be a resident in the United States, — which term is open perhaps 26 A COPY-EIGHT MANUAL. to some criticism and doubt. Strictly, a resident of a country is one who resides in it, irrespective of the place of birth or motive of residency, and will in- clude a person who comes to the United States and lives here for the very purpose of obtaining a copy- right. A liberal construction of the act will certainly include such a resident ; founded, as perhaps was in- tended it should be by the act, upon the idea of favor- ing the publication of manuscripts Jlrst in the United States. We are not aware that this question has, at any time, arisen in the courts of this country. The place where a manuscript is written is of no import- ance, — it may be abroad, it may be in the United States; In all these respects, what has been said of books or manuscripts is equally true of maps, charts, and musical compositions. They must each possess orig- inality, invention, and judgment, and must be care- fully secured, as herein pointed out in relation to books and manuscripts. If anything has been etched or engraved by an artist, the statute requires it should be from the artist's own design. This must be the visible form, whoever has done the manual labor. Binns v. Wood- ruff, 4 Wash. R. 48. CHAPTER III. HOW SHALL A COPT-RIGHT SE TAKEN OUT, AND IN WHAT MANXES SHALL IT BE RENEWED? Op necessity, the particular steps pointed out in the law must be carefully pursued or no copy-right ia acquired under it. Under the old statutes, which are now repealed by the statute of 3 February, 1831, at least one of them, it became a litigated question whether the statute requisites were to be held to be precedent conditions to the vesting of any right by the statutes, or only conditions subsequent ; but no such question can now arise, for by the statute 3 Feb- ruary, 1831, it is expressly provided that the requi- sites therein prescribed shall be held precedent to the acquisition of any interest whatever in a copy-right. The duty of the clerk of the district court, however, is not of this character. If the author does all the statute requires of Mm, that is sufficient to secure to him the full benefit of the statute. 1. The author or proprietor must deposit a printed copy of the title of his book, map, chart, musical com- position, print, cut or engraving, in the clerk's office of the district court of the district where the author or proprietor resides. Then, the clerk is to make a record of the same, in the words of the printed copy, and give the author or proprietor a certified copy of the record, if he desires it. 2. The author or proprietor must next, within three calendar months from the time oi publication of said book, &c., deliver a copy of the same to the clerk of 28 A COPY-EIGHT MANUAL. the district ; which copy shall by the clerk be trans- mitted, with the title and date of record, to the Secre- tary of State at Washington. By the act of August, 1846, copies of the book, &c., are by the author or proprietor to be sent within six months to the Smith- sonian Institute and to the Library of Congress. This, however, is not deemed to be a prerequisite of title, nor is it so considered or treated practically by the large publishing houses in this country. Such is the opinion of Curtis, expressed in a note in his trea- tise, p. 193, and such was intimated by Nelson J. in Folley V. Jaques, 1 Blatch. E. 618, though both of the learned gentlemen suggest that the book, &c., should be forwarded, so long as this question remains unset- tled by an adjudication. So in renewing a copy-right at the expiration of the first term, care must be taken to follow the steps of the statute, as given in the second section of the statute 3 February, 1831, otherwise the further title may be lost and the work become common; for these likewise are of the nature of precedent conditions. The steps are chiefly the same as those just pointed out in securing a copy-right for the first term. The renewer must be a citizen or resident of the United States ; get his title recorded a second time in the district where he is now residing within the six months before the first term expires ; and within two months from the date of said renewal must cause a copy of the record to be published in some newspaper in the United States for the space of four weeks. And, as in the first instance, the book must be forwarded to the district clerk, to the Smithsonian Institute, and the Library of Congress. 4 COPY-EIGHT MANUAIi. 29 If the author be dead at the time the first term of copy-right expires, his widow and children, or such of them as are living at that time, may jointly renew the copy-right, by pursuing the steps already pointed out. Minority or marriage is no objection to getting a copy-right. The term children does not include grandchildren. After renewal, the renewed term of the copy-right has all the qualities of property in the person or per- sons obtaining the renewal, as fully as the first term had in the author or proprietor who obtained that term. Before the renewal takes efiiect, there is nothr ing but a possibility in the persons or person who shall live to renew ;. which possibility, perhaps, is not capable of being alienated as property, unless, possi- bly, by the author himself, he being the owner of the manuscript ; but if a sale cannot in law be made at that time, those who are anticipating this possible in- terest may bind themselves, by covenant, that what- ever interest they may live to acquire, shall become the proper estate of the person so purchasing, —.- which covenant will be enforced in a court of equity. We may here dispose of a question sometimes made between authors and those who hold under them by purchase of the copy-right. Does a sale of the copy-right carry with it a right to renew at the expiration of the existing, copy-right, or is the effect of the sale to be confined to the first term of the book ? This must depend upon a fair and. just inter- pretation of the agreement between the parties. It may certainly be included, and enforced in equity, but it need not be. included.. This possibility cer- tainly may be contracted for in purchasing the copy- 3* 30 A COPT-KIOHT MANUAL. right, but it is not so of necessity, nor of course, nor prima faxsk. The mere sale of a copy-right already obtained would not seem to embrace anything more than the copy-right mentioned in the sale. That satisfies the terms of the sale, and courts are not inclined to a forced construction, on this delicate point, when it could easily have been made clear and certain, if more than the existing copy-right was intended. Lord Eldon said, in Burr v. Murray, Jacobs E. 315 : "I conceive that an author will not be taken to have assigned his contingent right in case of his surviving the fourteen years, unless the assignment is so expressed as to purport to pass it." The same is held by Woodbury, J., in Pierpont v. Powle, "Woodbury's R. Where a copy-right can no longer be extended, because the whole forty-two years are exhausted, or there is no person in being to renew the second term, a further enjoyment of the property is, in effed, secured to the proprietor by means of a revision of the work, such as a new edition ; this, however, secures only the new combination, not the contents of the old book. If the old book is greatly improved, as it may be, by the addition of new sections, new illustrations, new chapters, new references and notes, or is re- written, bringing down the work to a later period, the old book, though open to common use, will not greatly embarrass the sale of the new work ; still, any person can take the old book and build upon it with impunity. We come next to speak of the notice in the book itself which must be given that a copy-right has been taken. A COPY-RIGHT MANUAL. 31 The taking out of a copy-right will avail nothing, unless notice of that fact is given by inserting on the title-page, or the page next following, of the several copies of each edition, or, if a map, chart, musical composition, print, cut, or engraving, on the face thereof, the words following : " Entered, accord- ing to act of Congress, in the year , by A. B., in the clerk's office of the District Court of ." This is required by the 5th section of the act of February 3, 1831. Nothing need be said on this point, as any person of ordinary understanding can apprehend this re- quisition of the act, and see the necessity of following this statute with exactness. The next question is, how a copy-right may be assigned. Between the parties themselves no formality of transfer is required of the manuscript before publica- tion, or the copy-right afterwards. There should, however, be a writing to that effect, but beyond this nothing more is required than is common in the transfer of personal property at the common law. The agreement between the parties should be clear and explicit. ' But as to third persons, — subse- quent purchasers and mortgagees having no notice of the prior sale, — the act of June 30, 1834, pro- vides that the sale and transfer of an existing copy- right shall be by an instrument under seal, executed, witnessed and acknowledged in the manner deeds of land are required to be, in the State or district where the insirument of assignment is executed. The assignment, when completed and acknowledged, must 32 A COPT-RIGHT MAiniAL. be recorded within sixty days in the office where the original title was deposited.- We will, in this place, remark upon what constitutes an infringement of copy-right. Much controversy has arisen as to what constitutes an unlawful use of another's copy-right. The rule of law, in substanccj may be easily enough laid down ; but its application to cases, as they arise in practice, is often attended with no little difficulty. It clearly is not unlawful for one person to avail him- self of the researches and literary labors of another. Generally speaking, this may be and is done perpetually by the best of men, and no one can object to the prac- tice. A person may inform himself by examining and studying any book, treatise, or narrative, though it be secured to another by copy-right, and may possess himself of the knowledge, ideas and sentimfents of the author. Indeed, any man, to be informed of the pro- gress of science, inventions, or the arts, or of literature and knowledge generally, must do this. That portion of our knowledge which is not derived from persons^ observation and experience cannot be expected to be obtained from any other source; and when it is obtained may be digested aiid incorporated into one's own thoughts and sentiments, and thus the. second book may be the better for the labors and develop^ ments of the first. But then the second cannot b6 copied from the first. The writer must clothe his thoughts in his own language, or his book is not original, but a piracy. It would otherwise, in efiect, be laying another's book open on the table, and mechanically making use of his thoughts and the A COPY-EIGHT MANUAL. 33 peculiar dress in which they had been presented to the public. The spirit of the rule is that every author must make use of his own intellectual rather than his mechanical powers, — his reason, his judg- ment, his invention, — and not rely on the language, orderand invention of another, transcribing them into a book of his own composition. Any other meaning of the rule would debar men of genius and capacity from availing themselves of the discoveries and labors of their predecessors, or, on the other hand, rob authors of the aid and protection intended for them by the copy-right law. The rule thus understood, it will be seen, does not discriminate between the copying of the whole or parts of a book, — a distinction, it will be noticed, of some little importance to authors. In case the book copied has never been secured by copy-right, or if it has, and the copy-right has expired, the question is of no kind of importance to any one, since the whole book, being now open and common to the public, may be used without restriction by anybody ; but if the old book is still secured, we must inquire further as to the effect of the rule in such a case ; and in seeking fof a test as to how much in any case may be copied with impunity, we shall perhaps be forced to pass by the inquiry how much is taken, and look chiefly to the value of what is taken, and the effect of the new work upon the sale of the old one. There are here, however, exceptions and circumstances not to be overlooked. The inquiry will be for wha,t pur- pose are the parts of the old book transferred to the new. If for purposes of criticism or comment, the quantity cannot be material, for the criticism may 34 A COPY-EIGHT MANUAL. require large extracts, in order that the criticism itself be understood and appreciated. Thus, a work may be copied by sections or pages in a review, if done for the purpose above mentioned ; but then this may not be done as a cover for pirating the contents' of the work, thereby introducing the work, in its- most important parts, to the public in a more economical form, so as essentially to impair the value' or sale of the entire work. There is generally but little danger of this, since the parts so copied must be very numerous and extendied to equal the entire book itself; but it is what may be done, and perhaps, in an extreme case, with advantage to the public, especially if the entire book be voluminous and costly. It may, however, be carrying the' rule too far, or rather giving it too rigorous an application, to hold that every copying, however small of unimportant, is an infringement of copy-right.- This would be tbrow- ing around authors and literary men- restrictions equally embarrassing' and useless, and judges have- differed somewhat in the coffolusions to which they have come in particular oases under tbe rule. In Wilkins v. Aikin, 17 Ver. 420; p. 424, the Lord Chancellor said, — "There is no doubt that a man cannot, under the pretence of. quotation', publish either the whole or part of another's work, though he may use — what it is' in all cases very diflScult to define — fair quotation." In Folsom v. Marsh, 2 Sto. E. p. 115, Judge Story says, — "It is not necessary, to constitute an invasion of copy-right, that the whole of a work should be copied, or even a large portion' of it, in form or in substance; if so much is taken that A COPY-EIGHT MANUAL. 35 the value of the original is seriously diminished, or the labors of the original author are substantially, to an injurious extent, appropriated by another, that is suflScient, in point of law, to constitute a piracy pro tanto." This question is ably discussed, and cases cited, by Godson in his treatise on patents and copy-rights, and by Curtis in his treatise on copy- rights. We know of no fuller discussion than is to be found in the opinion of Judge Story in Emerson V. Davies, 3 Sto. R. p. 768. We extract a single passage from page 787 : " The case, therefore, comes back at last to the naked consideration whether the book of Davies, in the parts complained of, has been copied substantially from that of Emerson or not. It is not sufficient to show that it may have been sug- gested by Emerson's, or that some parts or pages of it have resemblances in method and details and illustrations to Emerson's. It must be further shown that the resemblances in those parts and pages are so close, so full, so uniform, so striking, as fairly to lead to the conclusion that the one is a substantial copy of the other, or mainly borrowed from it ; in short, that there is substantial identity between them. A copy is one thing, an imitation or resemblance another." To this we would venture to add, to avoid a false inference, the supposed copy must be substantially in the language of the original book. We have already said that since the same sources of information are open alike to all persons, every person may go freely to those sources, and use. them verbatim et literatim, where those sources consist of other writings not secured by copy-right ; for no 86 A COPT-RIGHT MANUAL. author gains a precedence to use them exclusively by having first made use of the extracts. It is obvious a copy-right may be violated by copying from a book in other printed forms than an ordinary book, as in an encyclopedia, volume of biography, history or other series of writings. Such a use of an author's work is inconsistent with an exclusive right in the author himself, although it may possibly be true that the encyclopedia, or collection of biographies, or other series, may not very much interfere with the sale of the original work. The question how far an abridgment of a book is a violation of the copy-right of the book has been noticed in an early part of our comments, and need not here be further discussed. We will only repeat that it is a doctrine of the law attended in practice with some considerable diffictxlty. Certain it is that the mere omission of parts of a work by the use of the scissors, i. e., cutting it down and reducing the book, is not an abridgment in the eye of the law. It is not that kind of intellectual labor — if it deserves to be so called at all — which is intended to be se- cured and encouraged by the copy-right law. A real abridgment requires new combinations of thoughts, new inventions, and new language ; in fact, it must be substantially a new work, designed to fill a new place. We have likewise already expressed our views as to translations, — how far they are or are not a viola- tion of copy-right, — and will not repeat them in this place. CHAPTER IV. Hating considered in what cases a copy-right may be obtained, the manner in which it may be obtaiDed, and what is an infringement of copy-right, we W!l[ next inquire what remedy is afforded the author to protect his property from violation. We do not suppose, since the case of Wheaton & Donaldson v. Peters & Grrigg, 8 Pet. Rep. 591, there is any question that the only remedy for a violation of copy-right is founded on the statutes 3 February, 1831, and an earlier one 15 February, 1819. If there ever was, or otherwise could have been, a common-law right in an author, as it was claimed there was in England, before the decision of Donaldson v. Becket, it is certain no commoDrlaw right is recognized and enforced at the present time. The whole question seems to be referred to the provisions of the statute, both in England and^ this country. By the sixth section of the statute 3 February, 1831, if a person shall, without authority, in writing, obtained from the proprietor, signed in the presence of two witnesses, print, publish, or import a book duly secured in the United States by the statute, or shall, knowing this fact, publish or sell the same, without consent so obtained, then every copy of said book shall be forfeited to said proprietor, and the offender shall forfeit and pay fifty cents for every sheet found in his possession, — the, one moiety there- of to the owner of the copy-right, and the other to 38 A COPT-EIGHT MANUAL. the United States, to be recovered in an action of debt ; and if it be an engraving, map, chart, or musi- cal composition, the offender shall forfeit the plates and every sheet, besides one dollar for every sheet found in his possession. By the ninth section of the act it is provided if any person shall, without consent obtained as afore- said, publish or print another's manuseript, he shall be liable for all damages occasioned by said injury. Equity, too, will doubtless give the needed relief by injunction or otherwise. By the eleventh section it is provided if any one shall insert a false notice on the title-page or the one following, or on his map, chart, &c., of his copy- right, he shall forfeit one hundred dollars. By the thirteenth section it is provided no action for damages shall be brought but within two years after the cause of action shall have occurred. By the sixteenth section it is provided that the benefit of the statute shall be extended to such copy- rights as were unexpired at the passage of this act, — practically extending the term of such copy-rights to twenty-eight years, with right of renewal to the author if alive ; if not, to his widow and cliildren. The most common and only adequate remedy for authors against those who infringe their copy-rights is by an injunction in a court of equity. Damages at law and forfeitures, as already mentioned, have, in most cases, hitherto been found altogether inade- quate, and it is obvious, from examining the pro- visions of this part of the law, that such a result — evasion by a trespasser — is attended with little diflS- culty. A COPY-RIGHT MANUAL. 39 Wherever, upon an application in equity for an injunction, the title or right of the complainant, and the fact of infringement itself, are not attended with doubt or difficulty, either as to the facts or law of the case, it is customary for the court to erant an injunc- tion at once, and make it absolute after the hearing, in the discretion of the court ; but if it be otherwise, and the facts are numerous, complicated, or difficult, the . case will be sent to a master in chancery to investigate and report the facts to the court for its future action. STATUTES OF THE UNITED STATES. CHAP. XVI. An Act to amend the severed Acts respecting eopy-rights. [Vol. IV. p. 436, U. S. Statctes at Laboe.} Sec. 1. Be it enacted hy the Senate and House of Representatives of the United States of America, in Congress assemhled, That from and after the passing of this act, any person or persons, being a citizen or citizens of the United States, or resident therein, who shall be the author or authors of any book or books, map, chart, or musical composition, which may be now made or composed, and not printed and published, or shall hereafter be made or composed, or who shall invent, design, etch, engrave, work, or cause to be engraved, etched, or worked from his own design, any print or engraiving, and the executors, administrators, or legal assigns of such person or persons, shall have the sole right and liberty of printing, reprinting, publishing, and vending such book or books, map, chart, musical composition, print, cut, or engraving, in whole or in part, for the term of twenty-eight years from the time of recording the title thereof, in the manner hereinafter directed. Sec. 2. And be it further enacted, That if, at the expiration of the aforesaid term of years, such author, inventor, designer, en- graver, or any of them, where the work had been originally com- posed and made by more than one person, be still living, and a citizen or citizens of the United States, or resident therein, or, being dead, shall have left a widow, or child, or children, either or all then living, the same exclusive right shall be continued to such author, designer, or engraver, or, if dead, then to such widow and child, or children, for the further term of fourteen years : Pro- A COFY-RIGHT MANUAL. 41 vided, That the title of the work so secured shall be a second time recorded, and all such other regulations as are herein required in regard to original copy-rights, be compUed with in respect to such renewed copy-right, and that within six months before the expira- tion of the first term. Sbc. 3. And be it further enacted, That in all cases of renewal ) of copy-right under this act, said author or proprietor shall, within ( /)-/ArJ-->-->^ two months from the date of said renewal, cause a copy of the record thereof to be published in one or more of the newspaper* printed in the United States, for the space of four weeks. Sec. 4. And be it further enacted, That no person shall be entitled to the benefit of this act, unless he shall, before pub- lication, deposit a printed copy of the title of such book, or books, map, chart, musical composition, print, cut, or engrav- ing, in the clerk's office of the district court of the district wherein the author or proprietor shall reside, and the clerk of such court is hereby directed and required to record the same thereof forthwith, in a book to be kept for that purpose, in the words following (giving a copy of the title, under the seal of the court, to the said author or proprietor, whenever he shall require the same) ; " District of to wit : Be it remembered, that on the day of anno domini A. B., of the said dis- trict, hath deposited in this office the title of a book (map, chart, or otherwise, as the case may be), the title of which is in the words following, to wit : (here insert the title) ; the right whereof he claims as author (or proprietor, as the case may be), in conformity with an act of Congress entitled, ' An act to amend the several acts respecting copy-rights.' C. D., clerk of the district." For which record the clerk shall be entitled to receive, from the per- son claiming such right as aforesaid, fifty cents, and the like sum for every copy, under seal, actually given to such person or his assigns. And the author or proprietor of any such book, map, chart, musical composition, print, cut, or engraving, shall, within three months from the publication of said book, map, chart, musi- cal composition, print, cut, or engraving, deliver, or cause to be delivered, a copy of the same to the clerk of said district. And it shall be the duty of the clerk of each district court, at least once in every year, to transmit a certified list of all such records of copy-right, including the titles so recorded, and the dates of 42 A COPT-RIGHT MANUAL. record, and also all the several copies of booKs or other works deposited in his office according to this act, to the Secretary of . State, to be preserved in his office. Sec. 5. And he it further enacted, That no person shall be enti- tled to the benefit of this act, unless he shall give information of iBopy-right being secured, by. causing to be inserted, in the several copies of each and every edition published during the term secured, on the title page, or the page immediately following, if it be a book, or, if a map, chart, musical composition, print, cut, or en- graving, by causing to be impressed on the face thereof, or if a volume of maps, charts, music, or engravings, upon the title or frontispiece thereof, the following words, viz. : " Entered according to act of Congress, in the year by A. B., in the clerk's office of the district court of " (as the case may be). Sec. 6. And be it further enacted, That if any other person or persons, from and after the recording the title of any book or books, according to this act, shall, within the term or terms herein limited, print, publish, or import, or cause to be printed, published, or imported, any copy of such book, or books, without the consent of the person legally entitled to the copy-right thereof, first had and obtained in writing, signed in presence of two or more credi- ble witnesses, or shall, knowing the same to be so printed or im- ported, publish, sell, or expose to sale, or cause to be published, sold, or exposed to sale, any copy of such book without such con- sent in writing; then such offender shall forfeit every copy of such book to the person legally, at the time, entitled to the copy-right thereof; and shall also forfeit and pay fifty cents for every such sheet which may be found in his possession, either printed, or printing, published, imported, or exposed to sale, contrary to the intent of this act, the one moiety thereof to such legal owner of the copy-right as aforesaid, and the other to the use of the United States, to be recovered by action of debt in any court having competent jurisdiction thereof. Sec. 7. And he it further enacted. That if any person or per- sons, after the recording the title of any print, cut, or engraving, map, chart, or musical composition, according to the provisions of this act, shall, within the term or terms limited by this act, en- grave, etch, or work, sell, or copy, or cause to be engraved, etched, worked, or sold, or copied, either on the whole, or by varying, A COPT-KIGHT MANUAt. 43 adding to, or diminishing the main design with intent to evade the law ; or shall print, or import for sale, or cause to be printed, or imported for sale, any such map, chart, musical composition^^ print, cut, or engraving, or any parts thereof, without the consent of the proprietor or proprietors of the copy-right thereof, first ob- tained in writing, signed in the presence of two credible witnesses ; or, knowing the same to be so printed or imported without such consent, shall publish, sell, or expose to sale, or in any manner dis- pose of any such map, chart, musical composition, engraving, cut, or print, w;ithout such consent, as aforesaid; then such ofl'ender or offenders shall forfeit the plate or plates on which such map, chart, musical composition, engraving, cut, or print, shall be cop- ied, and also all and every sheet thereof so copied or printed as aforesaid, to the proprietor or proprietors of the copyright thereof^ and shall further forfeit one dollar for every sheet of such map, chart, musical composition, print, cut, or engraving, which may be found in his or their possession, printed or published, or exposed to sale, contrary to the true intent and meaning of this act ; the one moiety thereof to the proprietor or proprietors, and the other moiety to the use of the United States, to be recovered in any court having competent jurisdiction thereof. Sec. 8. And he it farther enacted, That nothing in this act shall be construed to extend to prohibit the importation or vending, printing, or publishing, of any map, chart, book, musical composi- tion, print, or engraving, written, composed, or made, by any per- son not being a citizen of the United States, nor resident within the jurisdiction thereof. Sec. 9. And be it further enacted. That any person or persons who shall print or publish any manuscript whatever without .the consent of the author or legal proprietor first obtained as afore* said (if such author or proprietor be a citizen . of the United States, or resident therein), shall be liable to suffer and pay to the author or proprietor all damages occasioned by such injuryj to be recovered by a special action on the case fi>unded upon this act, in any court having cognizance thereof; and the several courts of the United States empowered to grant injunctions to prevent the violation of the rights of authors and inventors, are hereby empowered to grant injunctions, in like manner, according to the principles of equity, to restrain such publication of any manuscript as aforesaid. 44 A COPT-BIGHT MANUAI.. Sec. 10. And he it further enacted, That if any person or per- tons shall be sued or prosecuted, for any matter, act, or thing don« londer or by virtue of this act, he or they may plead the general issue and give the special matter in evidence. Sec. 11. And be it further enacted, That if any person or per- sons, from and after the passing of this act, shall print or publish any book, map, chart, musical composition, print, cut, or engrav- ing, not having legally acquired the copy-right thereof, and shall insert or impress that the same bath been catered according to act of Copgress, or ■wwda purportiag the same, every person so offending shall forfeit and pay oiie hundred dcdlars ; one moiety therecrf to the person who shall sue for the same, and the other to the use erf" the United States, te be recovered by action of debt, in any court of record having cognizance thereof. Sec. 12. And be it further enacted, That in all recoveries undCT^ this act, either for damages, forfeitures, or penalties, full C€)sts shall 1)6 allowed thereon, anything in any former act to the contrary notwithstanding. Sec. 13. And be it further enacted, That no action or prosecu- tion shall be maintained, in any case of forfeiture or penalty under this act, unless the same shall have been commenced within two years after the cause of action shall have arisen. Sec. 14. And be it fwrther enacted^ That the ''Act for the ea- couragement of learning, by securing the copies of maps, charts, and books to the auth»s and proprietors of such copies during the times therein aieutioned," passed May thirty-first, one thou- sand seven hundred and ninety, and the act supplementary thereto, passed April twenty-ninth, one thousand eight hundred and two, shall be, and the same are hereby, repealed: saving, always, such rights £is may have been obtained in conformity t* their provisions. Sec. 15. And he it farther enacted. That all and several the provisions of this act, intended for the protection and security of copy-rights, and providing remedies, penalties, and forfeitures in ease of violation therebf, shall be held and construed to extend to the benefit oi the legsil proprietor or proprietors of each and every copy-right heretofore obtained, according to law, during the term thereof, in the same manner as if such copy-right had been entered and secured according to the directions of this act. A COPT-RIGHT MANUAL. 45 Sec. 16. And he Ufurilier enacted. That whenever a copy-right has been heretofore obtained by an author or authors, inventor, designer, or engraver, of any book, map, chart, print, cut, or en-.* graving, or by a proprietor of the same ; if such author or authors, or either of them, such inventor, designer, or engraver, be living at the passage of this act, then such author or authors; or the sur- vivor of them, such inventor, engraver, or designer, shall continue to have the same exclusive right to his book, chart, map, print, cut, or engraving, with the benefit of each and all the provisions of this act, for the security thereof, for such additional period of time as will, together with the time which shall have elapsed from the first entry of such copy-right, make up the term of twenty- eight years, with the same right to his widow, child, or children, to renew the copy-right, at the expiration thereof, as is above pro- vided in relation to copy-rights originally secured under this act. And if such author or authors, inventor, designer, or engraver, shall not be living at the passage of this act, then his or their heirs, executors and administrators shall be entitled to the like exclusive enjoyment of said copy-right, with the benefit of each and all the provisions of this act for the security thereof, for the period of twenty-eight years from the first entry of said copy-right, with the like privilege of renewal to the widow, child, or children, of. author or; authors, designer, inventor, or engraver, as is pro- vided in relation to copy-rights originally secured under this act : Provided, That this act shall not extend to any copy-right hereto- fore .secured, the term of which has already expired. Appboved-, February 3, 1831. CHAP. CLVir. An Act supplementary to the Act to amend the several Acts respecting copy-rights. [Vol. IV., p. 728.] Sec. 1. Be it enacted hy the Senate and House of Representatives of the United States of America, in Congress assembled, That all deeds or instruments in writing for the transfer or assignment of copy-rights, being proved or acknowledged in such manner as deeds for the conveyance of land are required by law to be proved 46 A COPY-RIGHT MANUAL. or acknowledged in the same State or district, shall and may be recorded in the office where the original copy-right is deposited and recorded 5 and every such deed or instrmnent that shall in any time hereafter be made and executed, and which shall not be proved or acknowledged and recorded as aforesaid, within sixty days after its execution, shall be judged fraudulent and void against any subsequent purchaser or mortgagee for valuable consideration without notice. Sec. 2. And he it farther enacted, That the clerk of the district court shall te entitled to such fees for performing the services herein authorized and required as he is entitled to for performing like services under existing laws of the United States. Appkovkd, June 30, 1834, £Ixtract from a Statute approved 10 August, 1846. [Vol. IX., p. 106.J Sec. 10. And he it farther enacted. That the author or proprie- tor of any book, map, chart, musical composition, print, cut, or engraving, for which a copy-right shall be secured under the exist- ing acts of Congress, or those which shall hereafter be enacted respecting copy-rights, shall, within three months from the publica- tion of said book, map, chart, musical composition, print, cut, or engraving, deliver, or cause to be delivered, one copy of the same to the librarian of the Smithsonian Institution, and one copy to the librarian of Congress Library, for the use of the said libraries, /I, ^-u^i ou.^'i^ /f-y— , '^^-^ ^ INDEX. A2Sr ABEIDGMENT. What is it? When has it originality? When is it piracy? When is it lawful ? 12, 13, 36. ASSIGiraiE. Whether by contract, or operation of law, may take out a copy- right in his own name, 9. ASSIGNMENT OP COPY-EIGHT. How made, 31. BOOK. ' Meaning of the term in the statute, 16. CHANCEKY. It alone affords an effectual remedy for violation of copy-right, 38, 39. CHrLDREN. This term does not include grandchildren, under the statute, 29. COMPILATION. What is it ? What is secured by a copy-right upon it ? 13. COPY-RIGHT. When may it be had ? 7, 16, 17. In whose name ? 25. It coyers every part of the book that is original, 7. Cannot be taken out after the author has abandoned his work or manuscript, 24, 15, 16. When is it abandoned ? 24, 15, 16. Cannot be taken out after the book has been published in a for- eign country, 24. Who may take out a copy-right ? 25. COURTS. Do not lend their aid to protect books, works, or productions of any kind, if immoral or illegal, 7, 8, 9. INFRINGEMENT OF COPY-EIGHT. What is it ? What acts amount to it ? The rule of law, 32, 33, 34,36. LAWS OP FOREIGN COITN-TEIES. Copy-right laws of European States, 22. 48 INDEX. LETTERS. When, and by whom, may a copy-right be had on? 14, 15, 16. LITERARY PROPERTY. Nature and duration of, at the common law ; and how afiected by statute, 5, 20. Law of, as laid down in Millar v. Taylor, and Donaldson v. Beckwith, and Wheaton v. Peters, 19, 20. In this country it exists only under, and in conformity to, the acts of Congress, 20, 21. MAiniSCRIPTS. Exclusively the property of the author until published, 23. Pass like other property by sale, 23. Cannot be taken on execution, 23. Do not pass under a commission of bankruptcy, 23. Mast be original and unpublished to allow of a copy-right, 7, 9. Minority and mamage no objection to getting a copy-right, 29. NOTICE. Every edition must contain notice that a copy-right is secured, 30, 31. ORIGINALITY. Necessary in every copy-right, 11, 9, 10, 12. What is it? and what it includes, 10, 11. PUBLICATION. What is it? 16,17. BEMEDY. What given for a violation of copy-right ? 37, 38. Limitation of time for sneing, 38. Chancery affords the best, 38. RENEWAL. Steps necessary to renew a copy-right, 28. REQUISITES OF THE STATUTE. They are precedent conditions ; see the steps required, 27, 28. SALE OF COPY-BIGHT. Does it carry a right to renew ? 29, 30. SPEECHES, LECTURES, ETC. May be secured by copy -right, 14 15, 16. STATUTE OF 3 FEBRUARY, 1831. Its two new provisions. To whom the public are indebted for them, 21, 22. TRANSLATION. It has originality, and is not piracy, 17, 18, 19. WIDOW AND CHILDREN. When may they renew ? 29.