Stephen D. (Stephen Dodd) Law.

Copyright and patent laws of the United States, 1790 to 1868 online

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subject of copyright. Little v. Goiddf 2 Blatchf., 362.— Nelson, J. ;
N. Y., 1852.

19. But a reporter may have a copyright in his own marginal notes,
and in the arguments of counsel, as arranged and prepared by him.
Gray v. RusseU, I Story, 21.— Stoey, J. ; Mass., 1839.

20. A work may be the subject of a copyright, if the plan, arrange-
ment, and combination of its materials are new, though the materials
may be drawn from many sources, but are for the first time brought
together in such plan, arrangement, and combination. Gray v. RusseU,
1 Story, 17. — Stoey, J. ; Mass., 1839. Emerson y. Davies, 3 Story, 778.
Stoey, J. ; Mass., 1845.

21. But there can be no copyright of a plan distinct from the work
itself, any more than there can be of an idea. The words in whicli. an
idea is expressed, are a subject of property j and so is the classification
of the subject discussed. Siory^s JSxrs. v. Eokomhe^ 4 McLean, 316. —
McLean, J.; Ohio, 1847.

See alsa Digest Pat. Cases, titles Authoe ; Copyeight, B., 0. ;
Abeidgment; Chaetsj Compilations; Diotionaeies; Reviews;

(6) CoPYBiGHT, What is.

1. The privilege of an author to an exclusive sale of his works, for a
lunited number of years, although a monopoly, is not so in the odious
meaning of the term ; but is but a proper reward for his labor, and to
which he is as much entitled as to the exclusive enjoyment of any
other kind of property. Blunt v. Patten, 2 Paine, 395. — ^Thompson, J. ;
N. Y., 1828.

2. Copyright is an exclusive right to the multiplication of copies, for
the benefit of the author or his assigns, disconnected from the plate, or
any other physical existence. Stephens v. Cady^ 14 How., 330. — Nel-
son, J. ; Sup. Ct, 1852.

3. Before publication, an author has the exclusive possession of the
ideas contained in his book, and the combination of words to represent

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ACT OP 1831, CHAP. 16, §§ 1, 2. IN FOROB.

them. But when he has published his book, and given his thoughts,
sentimentsj knowledge, or information to the world, he can have no
longer an exclusive possession in them. Stowe v. TkomaSy 6 Amer.
Law Reg., 228. — Geieb, J. ; Pa., 1863.

4. When an author has sold his work, the only property which he
reserves to himself, or which the law gives to him, is the exclusive
right to multiply the copies of that particular combination of character
which exhibits to the eyes of anotiier the ideas intended to be pon-
veyed. This is what the law terms copy, or copyright. UncL^ 228.

5. An author's exclusive property in a literary composition, or copy-
right, consists only in a right to multiply copies of his book, and enjoy
the profits therefrom, and not in an exclusive right to his conceptions.
IJnd., 228.

6. The case of MiUar v. Taylor, 4 Burr, 311, has finally settled the
question as to the nature of the property which an author has in his
works ; and it is, that, after publication, his property consists in the
" right of copy," which signifies " the sole right of printing, publid^«
ing, and selUng his literary composition or book ;" not that he has
such a property in his original conceptions, that he alone can use them
in the composition of a new work, or clothe them in a different dress
by translation. Ihid.j 230. '

See also Digest Pat. Oases, title Coptbight, A

(c) Foundation of Coptbight.

1. Congress, in passing the copyright act, did not legislate in
reference to existing rights. Instead of sanCtionmg an exisfing right,
it created it. Whcaton v. PeterSy 8 Pet., 661.— McLean, J. ; Sup. Ct,

2. In the United States an author can have no exclusive property or
copyright in his published production except under the laws of Con-
gress. Ibid.j 662.

3. The author of a literary composition has, at common law, no ex-
clusive right to print and publish it Dudley v. Mayhew, 3 Coms., 12.
—Strong, J. ; N. Y., 1849.

4. Copyright, though formerly considered to be founded on common
law, can now only be viewed as part of the statute law. Clayton v.
Stone, 2 Paine, 383.— Thompson, J. ; N. Y., 1828.

5. The object of the acts of Congress, securing to authors the exdu-
sive right, to their writings, was the promotion of science. IbicL, 392.

See also Digest Pat. Cases, title Copymght, A

Section 2. And be it further enctcted^ That if,. at the
expiration of the aforesaid term of years, such author,
inventor, designer, engraver, or any of them, where the
work had been originally composed and made by more

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IN FOROB. ACT OP 1831, CHAP. 16, §§ 2, 3.

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 con-
tinued to such author, designer, or engraver, or, if dead,
then to such widow And child, or children, for the fur-
ther term of fourteen years : Providedy 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 copyrights, be complied with in respect to
stich renewed copyright, and that within six months
before the expiration of the first term^

1. The extension under this act looks entirely to the author and
his family, and not to assignees. Pierpont y. Fowle^ 2 Wood. &, Min.,
42.— WOODBUBT, J. ; Mass., 1846.

2. An assignment of a "copyright" should not, by constructiop, be
extended beyond the first term, unless it seems to be actually meant
by the author to be transferred forever, and including any future con-
tingency. Ihid,, 44.

3. But where it is clear that the author intended to transfer all his
interest in the copyright, as well in the extended as in the original
term, and the assignment is not, in its terms, broad enough to cover
the second term, a court of equity will direct the contract to be re-
formed, so as to embrace all the interest Ccwen y. Barnks^ MS. — ^Nel-
son, J.; N.Y., 1862.

4. An assignee alone cannot take out the second or extended term,
unless he has paid for it, clearly contracted for it, and, in equity, rather
than by any technical law, is to be protected in it. JPierpont v. Fouilej
2 Wood. & Min., 44.— Woodbubt, J.; Mass., 1846.

6. The takmg out a second term of a copyright is not like the
strengthening of a defective title, but rather like a new interest ob-
tained after the general interest had expired. Ibid,^ 46.

See also Digbst Pat. Gasbs; title OoPYBiaHT, E.

Section 3. And be U fwriher enacted^ That in all cases
of renewal of copyright mider this act, such author or
proprietor shall, withm two months from the date of said
renewal, cause a copy of the record thereof to be pub-

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AOT or 1831, CHAP. 16, § 4. nr fobcp.

iished in one or more of the ne\^8papers printed in the
United States, for the space of four weeks.

Section 4. And be it further enacted^ That no person
shall be entitled to the benefit of this act, unless he shall,
belbre publication, deposit a printed copy of the title of
such book, or books, map, chart, musical composition,
print, cut, or engraving, in the clerk's office of the Dis-
trict Court of the district wherein the author or pro-
prietor shall reside, and the clerk of such court is hereby
directed and required to record the same thereof forth-
with, 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 district, 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 where-
of he claims aa author, (or proprietor, as the case maybe,)
in conformity with an act of Congress, entitled * An act
to amend the several acts respecting copyrights.' C. D.,
Clerk of the district" For which record the clerk shall
be entitled to receive, from the person 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 ssdd
book, map, chart, musical composition, print, cut, or en-
graving, deliver, or cause to be delivered, a copy of the
same to the clerk of said district And it shall be the

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nr POBGB. ACT OF 1831, CHAP. 16, §§ 4, 6.

duty of the clerk of each District Court, at least once in
every year, to transmit a certified list of all such records
of copyright, induding the titles so recorded, and the
dates of 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, (a)

Sscnoir 5. And be it further enacted^ That no person
shall be entitled to the benefit of this act, unless he shall
give information of copyright 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
engraving, by causing to be impressed on the face there-
of 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.) (a)

(a) Notes to §§ 4 and 6.

1. The act of 1831 embodies the provisions of l^e acts of 1*790 and
1802, and imposes on the persons claiming the privilege of copyright
the same duties and liabilities which attended the right under the prior
statutes. Baker v. Taylor, 2 Blatchf., 83.— Bbtts, J.; N. T^ 1848.

2. Under sections 4 and 5 -of this act, the depositing the title-page
in the proper clerk's office, publishing a notice according to the act^
and delivering a copy of the book, are conditions, the performance of
which is essential to the title. Ibid., 84.

3. And the notice must be publi^ed in the manner specified in the
act. Ibid., 84.

4. AH the things required by these sections must be done to secure
a copyright JolUe v. Jaques, 1 Blatchf., 620.— Nelson, J.; N. T.,
1850. Struve v. Schwedler, 4 Blatchfl— Nelson, J.; N. Y., 1857.

5. Until all the things required by these sections are done, the copy-
right is not secured; but by taking the incipient step^ a light is ao-

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ACT OP 1831, CHAP. 16, §§ 6, 6. IN FORCE.

quired which chancery will protect, until the other acts may be done.
PuUe V. Derhyj 5 McLean, 332.— McLean, J.; Ohio, 1852.

6. Where a work consists of a number of volumes, the insertion of
the record on the page next following the title-page of the Jirst volume
of the work is a sufficient compliance wfth the statute. Dvnghi y.
Applefons, 1 N. Y. Leg. Obs., 198.— Thompson, J. ; K. Y., 1843.

7. The author may insert the same record in another edition, pub-
lished in a different number of volumes, without impairing the copy-
right. Ibid., 199.

8. The number of volumes in which it was stated the work would
be published, make no part of its title, and may be rejected as sur-
plusage. Jbid.f 199.

9. After such title-page has been deposited, the author can maintain
an action for an infringement or violation of his right, even though the
work may not have been published, or the printed copy deposited.
Bdberts v. Meyers, 13 Mo. Law Rep., 398. — Spragub, J.; Mass., 1860.
Contra, Keene v. WheaUey, 1 Amer. Law Reg., 44. — Cadwalladkh, J.;
Pa,, 1860.

10. The record from the-clerk's office, made in the form prescribed
by section 4, or of the depositing of a title-page, is prima facie evidence
that a printed title was deposited. - Boiberta v. Meyers, 13 Mo. Law Rep.,
398.— Sprague/J.; Mass., 1860.

11. Where the title-page of a book was deposited in 1846, and the
notice of the entry, inserted in the book, stated it to have feeen deposit-
ed in 1847, Hdd, that the error created a fatal defect in the plalntifif's
title. Baker v. Taylcxr, 2 Blatchf , 84. - BBTTS, J.; N. Y., 1848.

12. Even if the error arose from mistake, it will make no difference
as to the result Ibid., 84.

13. Under section 4 a person is not entitled to any.benefit, under the
act, unless he deposits the title-page before the publication of his work.
Ibid., §5.

14. Wheje copies of a book were sold prior to the date of the deposit
of a copy of the title-page, and a printed copy of the book was deposited
in the clerk's office, at the same time the title-page was deposited, Heid,
that these facts warranted an inference of an actual publication of the
book prior tp the date of such deposit. Ibid., 85.

See also Digest Pat. Cases, title Copyright, D.; and notes to sec-
tion 3 of the act of 1790, and to section 1 of the act of 1802.

Section 6. And he 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 (a),
publish, or import, or cause to be printed, published, or

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IN FOBCB. ACT OF 1831, CHAP. 16, § 6.

imported, any copy of such book or books (5), without the
consent of the person legally entitled to the copyright
thereof^ first had and obtained in writing, signed in
presence of two or more credible witnesses, or shall,
knowing the same to be so printed or imported, publish,
sell, or expose to sale, or cause to be published, sold, or
exposed to sale, any copy of such book without such
consent in writing ; then such offender shall forfeit every
copy of such book to the person legally,- at the time,
entitled to the copyright thereof; and shall also forfeit
and pay fifty cents for every such sheet which may be
found in his possession, either printed, or printing, pub-
lished, imported, or exposed to sale, contrary to the
intent of this act, the one moiety thereof to such legal
owner of the copyright 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 there-
of, (c)

(a) 1. The intent with which a work is reprinted cannot be taken
into consideration ; it is the act of reprinting that is prohibited by the
statute. Nichols v. Rugglea^ 3 Day, 158.— Curiam ; Ct., 1808. Story's
Ej^ts v. Holcombe, 4 McLean, 309, 310.— McLean, J.; Ohio, 1847.

2. It is of no consequence in what form the works of another are
used, whether it be a simple reprint or by incorporating it in some
other work.1 If his copyright is violated, he can maintain an action
therefor. Ch'ay v. RusseU, 1 Story, 19. — STORr, J.; Mass., 1839.

3. To entitle a party to an action for the infringement of a copyright,
it is not necessary that the whole or a greater part of his work should
be taken. If so much is taken as to impair the value of the original,
or so that the labors of the original author are substantially appropri-
ated, that is sufficient in point of law to constitute a piracy. Folsom v.
MarsTi, 2 Story, 115. — Story, J.; Mass., 1841.

4. The entirety of the copyright is the property of the author; and
it is no defence that another has appropriated only a part of such prop-
erty and not the whole. IbicL, 116.

5. Nor does it necessarily depend upon the quantity taken, whether
it is an infringement of a copjoight or not. /Wd, 116. Story's Ex'rs
V. Soloombe, 4 McLeAO, 309, 310.— MoLban, J.; Ohio, 1847.

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ACT OP 1831, CHAP. 16, §§ 6, 7. IN FORCE.

6. Intention cannot b^ taken into account in reference to an inMnge-
ment. If a copyright has been invaded, whether the party knew the
work was copyrighted or not, he is liable to the penalty for violation.
Millett V. Snowden, 1 West. L. Jour., 240. - BBTTS, J.; N. Y., 1843.

(b) 1. A book may in one part of it infringe the copyright of another
woik, and in other parts be no infringement; in such a case, the
remedy will not be extended beyond the injury. Story^a Extra, v. JSW-
cow&e, 4 McLean, 316 — .McLeai^, J., Ohio, 1847.

2. A book, within the meaning of the statute, does not include ft
translation of a work. Sio^tfit v. TSmrws, 2 Jlmer. Law Beg., 230.—
Geier, J.; Pa, 1853.

3. A translation may be called a transcript or copy of the author's
thought or conception, but in no correct sense can it be called a copy
of his book. Ibid., 231.

See also Digest Pat. Cases, title Infringement, A-

{c) 1. An actum on the case is the proper form of action to recovw

damages for a violation of a copyright; trespass will not lie. AtwiU y.

FerrtM, 2 Blatchf., 48.— Betts, J.; N. Y., 1846.

2. The penalty of fifty cents per sheet imposed by this section is
incurred for every sheet found to have been in the defendants' poeses-
sion, or which they had sold, or held for sale. Dwight y. Applekms^ 1
N. Y. Leg. Obs., 198.— Thompson, J.; N. Y., 1843.

3. The penalty declared by this section can be a^iudged only for the
sheets found in the possession of the defendant. Backus v. Gcvid, 7
How., 811.— McLean, J.; Sup. Ct, 1848.

4. The penalty imposed by this section is not incurred by printing
and publishing so much of a book as to amount to an infringement of
the copyright Rogers v. JeweU^ 12 Ma Law Rep., 340. — Curtis, J. ;
Mass., 1858.

6. The words **a copy of a book," found in section 6 of the act of
1831, import a transcript or copy of the entire book. /Wrf., 341.

6. Congress did not intend to inflict these penalties upon the unlaw*
ful printing or publication of less than an entire work. Ibid., 341.

Section 7. And he it further enacted^ That if any per-
son or persons, after the recording of the title of any
print, cut, or engraving, map, chart (a), or musical com-
position, according to the provisions of this act, shall,
within the term or terms limited by this act, engrave,
etch, or work, sell, or copy, or caused to be engraved,
etched, worked, or sold, or copied, either on the whole,
or by varying, adding to, or diminishing the main design,
with intent to evade the law ; or shall print or import

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IN rOROB. ACT OF 1831, CHAP. 16, § 7.

for sale, or cause to be printed or imported for sale, any'
such map, chart, musical composition, print, cut, or en-
graving, or any parts thereof, without the consent of the
proprietor or proprietors of the copyright thereof^ first
obtained in writing, signed in the presence of two cred-
ible witnesses; or knowing the same to be printed or
imported without such consent, shall publish, sell, or
expose to sale, or in any manner dispose of any such
map, chart, musical composition, engraving, cut, or print
without such consent, as aforesaid; then such offender
or offenders shall forfeit the plate or plates on which such
map, chart, musical composition, engraving, cut, or print,
shall be copied, and also all and every sheet thereof so
copied or printed as aforesaid, to the proprietor or pro-
prietors of the copyright thereof; and shall further for-
feit 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 ex-
posed 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 competelit
jurisdiction thereofl {b)

(a) 1. Though a party cannot have a copyright in the original ele-
ments or materials of his chart, he has a right to the result of his
labors and surveys in making it. Another party may resort to the
original materials of the chart, and survey for himself, but he cannot
avail himself, either in whole or in part, of the surveys of the former.
Blwnt V. Poften, 2 Paine, 395, 396.— Thompson, J. ; N. Y., 1828.

2. The natural objects from which charts ^re made,* being, however,
open to all, a copyright cannot subsist in a charts as a general subject,
but it may in an individual wcirk, and others may be restrained from
copying such work. Ibid.j 400, 401.

3. But a right in such a subject is violated only when another copies
from the chart of him who has secured the copyright, and thereby
^vailed hiiqself of his labor and skill Ibid, 402.

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ACT OP 1831, CHAP. 16, §§ 7-9. nr fobob.

4 In all such cases, it is a proper question for a jury, whether the
one is a copy of the other or not ; if there was some small variance, it
would be a proper subject of inquiry whether the alteration was not
merely colorable. Ibid.^ 402. •

5. But a subsequent compiler has a right to avail himself of all prior
publications which are not copyrighted, and if his chart is compiled
from such publications, it is no infringement, although it may agree
with another's chart. Ibid., 403.

6. One person may publish a map of the same S^ate or country for
which another has a copyright, by using the like means or materials,
and the like skill, labor, and expense, in its preparation. But he has
no right to publish a map, taken substantially and designedly from the.
map of such other person, without any such exercise of skill, labor, or
expense. JSmerson v. DavieSy 3 Story, 781. — Stoey, J. ; Mass., 1845.

See also Digest Pat. Cases, title Charts.

(6) 1. The penalty for an infringement is, under this section, fixed
by law. If the jury find there has been ah infringement, they must
ascertain the number of sheets proved to have been sold, or offfered for
sale (not the number printed), and return a verdict for one dollar for
each sheet so sold, or offered to be sold. MilkU v. Snowderij 1 West.
Law Jour., 240.— Betts, J. ; N. Y., 1843.

2. A defendant is not liable to the penalty imposed by this section,
unless he was guilty of the infraction of the copyright within two
years before action was brought. Heed v. Oanm, 8 Law Rep., 412. —
Taney, Ch. J. ; Md., 1845.

3. The engraving or preparation of plates, where the work is printed
' from plates, may have been more than two years, but every printing

for sale would be a new infraction of the right, and, if such printing
was within two years before suit brought, the defendant is Uable.
Ibid., 412.

4. The penalty is at the rate of one dollar for each sheet the defend-
ant may have caused to be printed for sale, within two years before
suit brought. Ibid., 412.

See also Digest Pat. Gases, title Penalties, A.

Section' 8. And be it further enacted^ That nothing
in this act shall be construed to extend to prohibit the
importatioD, or vending, printing, or pubjishing of any
map, chart, took, musical composition, print, or engra-
ving, written, composed, or made by any person not
being a citizen of the United States, nor resident within
the jurisdiction thereof.

Section 9. And be it further enacted^ That any per-

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IN rOEOB. ACT OF 1831, CHAP. 16, § 9.

son or persons who sliall print or publish any manuscript
whatever without the consent of the author or legal
proprietor first obtained as aforesaid, (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 injury, to be
recovered by a special action on the case founded 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.

1. An author, at common law, has a property m his manuscript, and
may obtain redress against any one who deprives him of it, or by im-
properly obtaining a copy endeavors to realize a profit by its publica-
tion. WheaUm v. Peters, 8 Pet, 657.— McLean, J. ; Sup. Ct., 1834.

2. Notwithstanding the copyright by statute, thei*e remains in an

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Online LibraryStephen D. (Stephen Dodd) LawCopyright and patent laws of the United States, 1790 to 1868 → online text (page 3 of 22)