William M. Lacy James Kent.

Commentaries on American law, Volume 2 online

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and also within ten days from its publication send two copies of such copy-
right work. Any neglect to fulfil the above renders the party liable to a
penalty of $25. No person can maintain an action for infringement unless
he has given notice by inserting in the copies of his work the following no-
tice: " Entered according the act of Congress, in the year , by A. B., in

the office of the Librarian of Congress at Washington, "or the word ** Copy-
right," together with the date of entry and name in the following form:
"Copyright, 1889, by A. B." See act of June, 1874, ch. 301, U h 18. In
Boucicault v. Hart, 13 Blatch. 47; 4 Am. L. Rec. 726, it was decided that in
order to secure the copy-right in a book, or dramatic composition, three
things must be done: 1st. The title page must be filed with the Librarian of
Congress. 2nd. The work must be published within a reasonable time there-
aAer; and, 3d, within ten days after the publication thereof two copies must
be mailed to the Librarian. For the distinction between taking out a patent
and entering a work for copy-right, see Barrow-Giles Lithographic Co. r.
Barony, 11 1 U. S. 53. The statute only requires " a printed copy of the title,"
not of '' the title page." The enquiry in all cases as to whether the title of
the book has been deposited is, has the book been published under the same
title substantially? If the title has been deposited that fact is sufficient.
Donnelly v. Ives, 18 Fed. Rep. 592; 20 Blatchi. 381. The printed copy may
be either printed or written* See Cbapman v. Ferry, 18 Fed. Rep. 539.

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or proprietor, before publicaiion, deposit a printed copy of the
title of the book, map, chart, musical composition, print, cut, or
engraving, in the clerk's office of the district wherein he resides,
and which copy is to be recorded; and that he cause to be inserted
on the title-page, or the page next following, of each and every
edition of the book, and cause to be impressed on the face of the
map, chart, musical composition, print, cut or engraving, or upon
the title or frontispiece of a volume of the same, the following
words, '* Entered according to the act of Congress, in the year,

, by A- B., in the clerk's office of the district court of ,"

(as the case may be. ) He is then, within three months after pub*
lishing the book, or other work as aforesaid, to cause to be deliv-
ered a copy of the same to the clerk of the said district court, who
is once in every year to transmit a certified list of all such records
of copy-right, and the several books or other works deposited as
aforesaid, to the Secretary of State, to be preserved in his office.
The violation of the copy-right thus duly secured, is guarded
against by adequate penalties an4 forfeitures. »

On the renewal of the copy-right, the title of the work must be
agiiin recorded, and a copy of the work delivered to the clerk of
the district, and the entry of the record noticed as aforesaid at
the beginning of the work; and all these regulations must be
complied with, within six months before the expiration of the first
term. And in addition to these regulations, the author or pro-
prietor must, within two months from the date of the renewal,
cause a copy of the record thereof to be published in one or more
of the public newspapers printed in the United States for the
space of four weeks (a)."

of jastice. The bill, Yre regret to say, did not pass into a lavr. Dr. Lieber,
in a Letter to Mr. Preston, on International Copy-right, (1840,) has urged
the jastice of such a law' with his usual ahility and force.

The earliest instance of a protected copy-right for printing books, was
granted by the Senate of Venice, in 1469; and as early as 1486, a censorship
of the press, or restraint on the sale of printed books, was introduced in
Germany. HcUlam^s InlroducUon io the Literature oj Europe^ vol. i. p. .'{44,

(n) Act or Congress, February 3d, 1831, ch. 16. The rights of authors in
the printing, publishing, protits, and sale of their works, published prior

" If subsequent editions contain no alterations or additions, they have the
same entry as the original; bUt if they have notes or other improvements, they
become new books, and the authors or proprietors must deposit a printed
copy of such work and give information of the copy-right being secured as
if no prior edition had been issued. All improvements require a copy-right
to protect them. Lawrence t*. Dana, 1 Cliff. 1; 2 Am. L. T. N. & 402. As
to renewals, see section 4954 He v. Stat.



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Page 374, in line three of note 12, for *' printed copy" read
"printed title."

tion and skill in jarispmdenoe. It was deeided, that every
author had a common law right in perpetaity, independent of
statnte, to the exclusive printing and publishing his original com-
positions (a). The court were not unanimous; and a subsequent
decision of the House of Lords, in Donald9on v. Becket in Feb-
ruary, 1774, settled this very litigated question against the opin-
ion of the K B., by establishing that the common law right of
action (if any existed) could not be exercised beyond the time
limited by the statute of Anne (6).

The act of Congresa is declared not to extend to prohibit the
importation or vending, printing or publishing, within the United
States, any map, chart or book, musical composition, print or en-
graving, written, composed, or made, by any person not a citizen
of the United States, nor resident within the jarisdiction thereof.*^

The statute of Anne had a provision against the scarcity of
editions and exorbitancy of price. The act of Congress has no
such provision; and it leaves authors to regulate, in their discre-
tion, the number and price of their books, calculating (and prob-
ably very correctly) that the interest an author has in a rapid
and extensive sale of his work, will be sufficient to keep the price
reasonable, and the market well supplied (c). The act of Con-
to the date of this statute depend Tii>on the Acts of Congress of 1790 and
1802; and ibr the protection of copy-right under those statutes, see jmm^, p.
376, note a — the case of Wheaton r. Peters.

(a) Miller r. Taylor, 4 Burr, Rep. 2303.

{b) Donaldson t). Becket, 4 Burr, Sep. 2408. 7 Bro, P, C. 83, S. C. Beck-
ford V. Hood, 7 Term Bep. 620.

(e) When the copy-right, or the exclusive privilege of printing and selling
books for a limited period, was introduced in Spain, under Isabella, it was
granted, says Mr. Prescott, [Hist, of Ferdinand and I»abdla, vol. ii. 207,) in
consideration of the grantee doing so at a reasonable rate; and foreign books
of every description were allowed to be imported into the kingdom free of
ail duty whatever.

" See Bev. Stat. { 4071

31 VOL. II. KJCNT. i81


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gross, thoagh taken generally from the provisions in the
[ *370 ] statute of 8 Anne, ch. 39, varies from *it in several re-
spects. The statute of Anne does not discriminate, as
the act of Congress does, between natives and foreigners, or re-
quire any previous residence of the latter, but grants the privilege
of copy-right to every author of any book (a). The statute of
Anne renewed the copy-right, at the expiration of the fourteen
years, if the author be then living, for another term of fourteen
years, without any re-entry and republication, as is required with
us. In one respect, authors with us are exempted from an ex-
ceedingly onerous burden imposed upon them by the statute of
Anne. That statute required not only the title of the book to be
entered at stationers' hall, but nine copies to be deposited there
for the use of the libraries of the two universities, and other
libraries; and the statute of 54 Geo. IIL has since enlarged the
number to eleven copies, by requiring two copies for libraries in
the city of Dublin. In the case of splendid and expensive publi-
cations, supporting only a few copies, this requisition is a very
heavy tax upon the author. The statute of 8 Geo, II., ch. 13,
securing the privilege of copy -right for twenty- eight years to the
inventors of prints and engravings, did not require the deposit of
any copies for public uses; whereas the act of Congress requires
the like entry, publication and deposit, in the case of historical
and other prints, as in the case of books. The statute of 54 Geo.
IIL, has greatly improved upon the statute of Anne, and gives to
the author at once the full term of twenty-eight years; and if
he be living at the end of that period, then for the residue of bis
life (6).

(a) See D*Almaine r. Boasy, 1 Young <& Collper, 288.

(b) Under the English statute, of 54 Geo. III., the omission to enter the
work at stationers* hall only deprives the anthor of the penalties given to
him for breach ol the copy-right, and subjects him to certain small forfeit-
ures* and his exclusive copy-right still exists, and he may sue fordamafres
on the violation of it. Beckford v. Hood, 7 Term Rep. 620. The act of Con-
gress is not susceptible of that construction, though the omission to dtposit a
copy of the book in the clerk's office, under the act of Congress of 1831, does
not deprive the author of his vested copy-right, nor of his remedies under
the statute. That provision is merely directory. It has been decided in a
case of copy-right, under the act of Congress of 1790, that after depositing the
title of the book in the clerk's office the exclusive right was vested, and
that the publication of the title, and the deposit of a copy of the book in the
secretary's office, were acts merely directory, and constituted no part of the
essential requisites for securing the copy-right. Nichols v. Ruggles, 3 Day^a
Conn. Rep. 145. But under the act of 1802, the publication was held to be
essential. Ewer v, Coxe, 4 Wash, C. C. Bep, 487. And in Wbeaton v.



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* The oognizance of cases arising under the act of [ * 877 ]
Congress secnring to authors the copy-right of their pro-
ductions, belongs to the courts of the United States; but
* there are no decisions in print on the subject, and we [ * 378]

Peters, 8 Peters* U. S. Rep. 591, the question of copy -right was discossed by
counsel with great learning and ability, and a majority of the supreme court
held, that an author had no common law copy-right in his published works;
that if such a common law right ever existed in England, yet there was no
common law of the United States on the subject, and there was no evidence
or presumption that any such common law right had ever been introduced
or adopted in Pennsylvania, where the controversy in that case arose; and
that, as in England, since the statute of 8 Anne, an author's exclusive right
of literary property in his published works, was confined to the period lim-
ited by the statute, so in that ciise the author's right depended upon the
acts of Congress of 1790 and 1 802. It was further held, that the requirements
in the act of 1790, as explained and amended hy the act oi 1802, to deposit a
copy of the title in the clerk's office, and to insert a copy of that record in
the title-page of the work, or in the succeeding page, and to publish the
same for four weeks in a newspaper, and to deposit a copy of the work
within six months, in the office of the secretary of state, were all act^ essen-
tial to the title, and necessary to be performed, to enable the author to claim
the protection and benefit of those statutes. The court likewise declared,
that no reporter had or could have any copy-right in the written opinions
delivered by the judges of that court. The minority of the court held, that
authors had a common law right in their works, which existed independent
of the acts oi Congress, and under the common law of the several states; and
that the statute right and remedy vested upon recording the title-page of
the book, and inserting a copy of the act in the page next to the title-page;
and that the subsequent notice and deposit, were merely directory, accord-
ing to the decision in Nichols r. Ruggles.

M. Renouard, the author of a treatise on patents, as mentioned in a preced-
ing note, has published a dissertation on the rights of authors, in which he
contends that authors have not, upon Just principles, any perpetual copyright,
and are only entitled to the protection and remuneration which statute law
affords. The substance of that dissertation is given in the American Jurist,
No. 43, for October, 1839, and if the reasoning and policy upon which the
opinion of M. Kenouard is founded be not sufficient, we are nevertheless sat-
isfied that the protection of copy-right iu perpetuity, independent of statute
provision, as was once contended for in the great case of Miller <& Taylor, is
visionary and impracticable.

The French law of copy-right is founded on the republican decree of July
19th, 1793, which gave to authorsofwritings of all kinds, composers of music,
painters and engravers, a right for life in their works, and to their heirs, for
ten years after their deaths, with strong provisions against the invasion of
such literary property. One copy was to be deposited in the national library.
The imperial decree of the 5th of February, 1810, made some modifications
of that law, and, gave the right to the author for life, and to his wife, if she
survived, for her life, and to their children for twenty years; and the right
was secured by adequate civil penalties. A number of interesting questions
have been discussed and decided in the French tribunals, under the above
law; and they are reported in the Repertoire de Jurisprudence, par Merlin, tit
Canirefacon, sec 1 — 15; and in his Questions de Droits tit. ProprieiS Litteraire,
sec. 1, 2. In the case of Masson & Besson v. Moutardier & Leclerc, in the
latter work, sec. 1, a new edition of the Dictionary of the French Academy, with
colourable additions only, was adjudged to be a fraudulent violation of the
copy-right; and Merlin has preserved his elaborate and eloquent argument in
support of literary property. In the case of Lahante & Bonnemaiaon v. Sieber,



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mast recur for instruction to principles settled hj the English de-
cisions under the statute of Anne, and yrhich are, no doubt, essen-
tially applicable to the rights of authors under the act of Congress.

the question was concerning the rights of foreign authors; and it was decided,
and settled on appeal, in March, 1810, that the French assignee of a literary
or musical work, not published abroad, acquired in France, after conforming
to the usual terms of the French law, before any publication abroad^ the exclu-
sive copyright under the law of 1793. iSee Queaiiana de Droits tit. PropriHe
Litteraire^ sec. 2. It is understood to be lawful to puhlish in France, with-
out the permission of the author, a work already published in a foreign conn-
try Repertoire^ ub. sup. sec. 10. The French law is much more liberal in
the protection of intellectual productions to authors and their heirs, than
either the English or our American law; and it is a curious fact in the history
of mankind, that the French national convention, in July, 1793, should have
busied themselves with the project of a law of that kind, when the whole re-
public was at that time in the most violent convulsions, and the combined
armies were invading France, and besieging Valenciennes; when Paris waa
one scene of sedition, terror, proscription, imprisonment and judicial massa-
cre, under the forms of the revolutionary tribunal; when the convention bad
just been mutilated by its own denunciation and imprisonment of the depu-
ties of the Gironde party, and the whole nation was preparing to rise in a
mass to expel the invaders. If the production of such a law, at such a crisis,
be not resolvable into mere vanity and affectation, then indeed we may well
say, with Mr. Hume, so inconsistent is buman nature with itself, and so
easily do gentle, pacific and generous sentiments allay both with the most
heroic courage, and the fiercest barbarity!

There is a disposition in France to enlarge still further the term of an
author's property in his works; and the commissioners appointed by the king
to frame a new law on the subject, reported, in the summer of 1826, the draft
of a law, in which they proposed to give to authors and artists of works of
all kinds, property in their works for life, and to their legal representatives,
for fifty years from their deaths: and copy-right in a work to be protected
from piracy by representation) as well as piracy by publication. In Prussia,
by an ordinance of the king, in June, 1837, copy -right endures for the life of
the author, and to his heirs for thirty years after his death, and it is under-
stood, that in 1839, the law in France went to that extent. The rapid and
piratical reprint in Belgium of French books as soon as they are out, and the
consequent diffusion of them all over France, ruins the value of copy-right in
France. There is the same evil as respects French Switzerland. Copy-right
has a fair claim to international protection. In Germany, copy-right is per-
petual; but it cannot be of much value, for there is no one uniform Germanic
legislation on the subject, to protect copy-right among so many independent
states, using a common language. It is said, however, that there is a recip-
rocal security of copy-right by treaty between Prussia and Austria; and by
the act of union of the Germanic confederacy of 1815, the diet was directed
to make uniform decrees for the protection of copy-right. By the Prussian
ordinance of June, 1837, the copy-right law of that kin^om applies generally
to works published in foreign states, provided the copy-right law of such states
applies to and protects works published in the Prussian dominions. So, also,
the English statute of 1 and 2 Victoria, ch. 59, secures to authors, in certain
cases, the international copy-right, by allowing the queen in council to grant
to authors of books, which shall thereafter be published in any foreign conn-
try to be specified in the order, the privilege of copy-right in the British do-
minions, for a term not exceeding that granted to British authors, upon en-
try and deposit of the work with the warehouse keeper of the company of
stationers in London. The grant is to be upon the condition that British
authors have the like protection in the foreign country. This case of Ger-
many shows how important it was in this country, that the law of copy-right


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It was decided ia Coleman v. Wathen (a), that the acting of a
dramatic composition on the stage, was not a pablication within
the statute* The plaintiff had porchased from O'Keefe the copy-
right of an entertainment called the Agreeable Surprise, and the
defendant represented this piece upon the stage. The mere act
of repeating such a performance from memory, was held to be no
pnblication. On the other hand, to take down, from the mouths
of the actors, the words of a dramatic composition, which the
author had occasionally suffered to be acted, but never printed or
published, and to publish it from the notes so taken down, was
deemed a breach of right; and the publication of the copy so
taken down (being tbe faroe entitled Love d la Mode^) was re-
strained by injunction (&). Since the case above mentioned,
injunctions have been granted in chancery even
* against the acting of a dramatic work without the con- [ * 379 ]
sent of the proprietor (c); and the narrow and unrea-
sonable construction given to the claims of an author by the E.
B., seems to have been very properly enlarged by the court of
chancery. But as the lord chancellor, as late as 1822, took the
opinion of the court of EL B. whether an action would lie for pub-
licly acting, and representing for profit, a tragedy altered for the
stage, without the consent of the owner of the copy-right; and as
that opinion was against the action, it is probable that the rule
in chancery will conform to that at law (d). In England there
may be relief granted against the piratical publication for profit,
of lectures delivered orally, and taken down in short hand by the
pupils (e). But relief for such an injury does not seem to come
within any of the provisions of the act of Congress on the subject
of copy-rights; and if it can be afforded at all, it must be upon
the principles of the common law, under the state jurisdic-
tions (gr)."

should rest on the broad basis of federal jarisdiction. By the law in Russia,
as established in 1828, copy-right in books and translations is secured to an
anthor for life, and to his heirs, after his death, for twenty-five years, and
no such right can be sold for debt.

(a) 5 Term Rep. 245.

Wi Macklin v. Richardson, Ai^h, Rep. 694.

\c) Morris V. Harris, and Morris v. Kelly, cited in Edenonlnjuneiiona, 198.

{d) Murray v. Elliston, 5 Bamw. & Aid. 657.

(e) Abemethey v. Hutchinson, reported in Maugham on Literary Property,

{g) In Clayton v. Stone, decided in the circuit court of the United States,
at New York, December, 1828, it was held, that a price current^ published in

» Approved in Baker v. Selden, 101 U. S. 99, 105.



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If an author first publishes abroad, and does not nse due dili-
gence to publish, in England, and another fairly publishes his
work in England, it is held, that he cannot sue for a breach of
copy-right Whether the act of printing and publishing abroad
makes the work publici juris, is not decided. It becomes so if
the author does not promptly print and publish in England; and
the statute of Anne had a reference to publications in England^
and it was them only that it intended to protect (a).

An injunction to restrain the publication of unpub-
[ * 380 ] lished * manuscripts has been frequently granted in
England (6); and on the ground that the author had a
property in an unpublished work independent of the statute (c).
Literary property is the ownership to which an author is entitled
in the original manuscript of his literary work; and the identity
of the work consists in the sentiment and language (d). It is
clearly the author's exclusive right, inasmuch as it is created by
his own labour and invention; and the reason and moral sense of
mankind acquiesce in the solidity of the title. The act of Con-
gress says, that no person shall be entitled to the benefit of the
act, unless he shall, before publication, record the book in the
clerk's office of the district court, by depositing a printed copy of
the title with the clerk; but there is another section of the act
which declares, that if any person shall print or publish any
manuscript, without the consent of the author or proprietor, (he
being a citizen or resident of the United States,) he shall be re-

a semi-weekly newspaper, was not a book^ within the act of Ck)ngres8, because
not a work of science or learning, but of mere industry.

(a) Clementi v. Walker, 2 Bamw, <fe Oeas. 861.

(6) Eden on Injunctions^ 199, 200.

(c) Duke of Queensbury v. Shebbeare, 2 Eden's Rep. 329. Southey v. Shei^
wood, 2 MerivaWs Rep, 435. Macklin v. Richardson, Amh. Rep. 694. White
V. Gerock, 2 Bamw. <fe Aid. 298.

(d) The identity of a literary composition, says Sir Wm. Blackstone, con-
sists entirely in the sentiment and the language. The same conceptions,
clothed in the same words, must necessarily be the same composition, i
Blacks. Ck>mm. 406. The copy-right applies to the peculiar expression of
ideas which the authority has used, and a work may be the subject of copy-
right, although the materials which compose it may be found in the works of
other authors antecedently printed, provided the plan, the arrangement, and
the combination of those materials be original, and which must necessarily
be the result of intellectual exertion and skill. It is of no consequence
whether the invasion of the copy -right be a simple reprint, or by incorporat-
ing the whole, or a large portion thereof, in some larger work. The form
in which the piracy is effected, is not material. Gray v. Russell, C. C. U. S,
for Marsachusetts, Ootober, 1839.


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sponsible in damages by a special action on the case.^* The courts

Online LibraryWilliam M. Lacy James KentCommentaries on American law, Volume 2 → online text (page 61 of 108)