Part 2 — CHAPTER II WHAT WORKS ARE ENTITLED TO COPYRIGHT

In order to acquire copyright in the United States the work must fulfil the following conditions:

Section I.—An Original Literary or Artistic Work.

In the United States literary and artistic works are treated similarly under the same series of statutes. The works protected are enumerated in section 4952 of the Revised Statutes as amended by the Act of March 3, 1891 (The Chace Act). The protection extends to any book, map, chart, dramatic or musical composition, engraving, cut, print, or photograph or negative thereof, and to any painting, drawing, chromo, statue, statuary, and to models or designs intended to be perfected as works of the fine arts.

The scope of the Constitution.

In considering whether a work is within the protection of the Copyright Acts, not only must the enacting words of the statutes be considered, but also, and perhaps principally, the scope of the provision in the Constitution, which grants power to Congress to secure the protection of authors and artists.[1256] The language of the Act must be read in connection with the Constitutional provision and be so construed as to promote the object and conform to the purpose expressed therein. The power given to Congress by the Constitution is a power "to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." In consideration of this restricted power the earlier decisions[1257] construed the Acts of Congress as including only those works which showed a certain degree of intellectual labour in the arts or sciences. In Clayton v. Stone[1258] protection was refused to a daily price current or review of the markets issued in a newspaper. Thompson, J., in giving judgment, said:

"The Act was passed in execution of the power given by Congress, and the object therefore was the promotion of science; and it would certainly be a pretty extraordinary view of the sciences to consider a daily or weekly publication of the state of the market as falling within any class of them. They are of a more fixed, permanent, and durable character. The term science cannot with any propriety be applied to a work of so fluctuating and fugitive a form as that of a newspaper or price current, the subject-matter of which is daily changing, and is of mere temporary use.... The title of the Act of Congress is for the encouragement of learning, and was not intended for the encouragement of mere industry unconnected with learning and the sciences."

Illustrated Catalogues.

This high standard of intellectual requirement was not, however, strictly maintained. In Brightley v. Littleton[1259] a blank form of application for a licence to sell liquor at retail, drawn in pursuance of the statutes in that behalf, was protected, and it was said that, although the matter claiming copyright must be original and possess some possible utility, "the originality may be of the lowest order and the utility barely perceptible." In Ladd v. Oxnard[1260] the English cases of Lamb v. Evans[1261] and Leslie v. Young[1262] were cited with approval, and the Court agreed that "the quality and grade of original work required by the Courts under the Copyright Statutes are very moderate." Until the case of Mott v. Clow,[1263] the tendency seems to have been to follow the English judges to their extreme view, as expressed by Lord Halsbury in Walter v. Lane,[1264] i. e. "that the copyright law requires neither literary merit nor intellectual labour nor originality either in thought or in language." The Court, however, in Mott v. Clow[1265] refused to follow the English decisions. After reviewing the American, and particularly the earlier American decisions, they say:

"The result of these decisions would seem to place this construction upon the Constitutional provisions under consideration that only such writings and discoveries are included which are the result of intellectual labour; that the term writings may be liberally construed to include designs for engravings and prints that are original and are founded in the creative powers of the mind, the fruits of intellectual labour; that prints upon a single sheet might be considered a book if it otherwise met the spirit of the constitutional provision; and that to be entitled to a copyright, the article must have, by and of itself, some value as a composition, at least to the extent of serving some purpose other than a mere advertisement or designation of the subject to which it is attached."

The "book" before the Court was a catalogue in the form of a bound volume, containing illustrations of household wares offered for sale, and giving the dimensions and price of each. The Court referred to Maple v. Junior Army and Navy Stores[1266] where a similar catalogue in England was protected.

"It is to be observed in this case that it was ruled largely upon the language of the Act of Parliament (5 & 6 Vict. c. 45).... It is to be here remarked that the Parliament of Great Britain, unlike the Congress of the United States, is unlimited in power, and with the construction and effect placed upon the preamble of the Act by the Court, there would seem to be little escape from the conclusion at which the Court arrived. In this country under the Constitution the power lodged with the Congress is not unlimited, but is restricted to the promotion of the progress of science and useful arts. The ruling of the English Court is therefore not pertinent except as it illustrates the subject."

The Court cited with approval Baker v. Selden,[1267] which had expressly approved Cobbett v. Woodward,[1268] an English case overruled in Maple v. Junior Army and Navy Stores;[1269] they further cited and approved the judgment of Thompson, J., in Clayton v. Stone,[1270] quoted above. The judgment concludes with the following paragraph:

"It is possibly not beyond comprehension that pictures of slop-sinks, wash-bowls, and bath-tubs, with or without letterpress statement of dimensions and prices, though intended mainly for advertisement, may in localities where such conveniences are not in common use, be the means of instruction and of advancement in knowledge of the arts, and, when they are the products of original intellectual thought, may possibly come within the scope of the Constitutional provision. It is enough for the present purpose to say that, in our judgment, the Congress has not seen fit to enact a law which can reasonably be given so broad a construction."

Directories. Dictionaries.

Mercantile Statistics.

Forms of Application.

In considering the authority of some of the cases cited below, the judgment in Mott v. Clow[1271] must not be lost sight of. It is probable that some of these cases are not in accordance with it, or with the older cases, such as Clayton v. Stone[1272] and Baker v. Selden[1273] therein expressly approved. Subject to this note of warning, the following may be taken as examples of what have and what have not been accepted as works of art or literature within the scope of the Constitution and the Acts of Congress. Directories[1274] and dictionaries[1275] have both been protected. In the case of the latter, there is copyright in the definitions of the words, however short. A list of the credit ratings of marble, granite, and stone dealers of the United States and Canada was protected in Ladd v. Oxnard.[1276] In Clayton v. Stone,[1277] which has been approved as sound law,[1278] a daily state of the market was refused protection. A racing guide containing a list of race-horses and statistics as to their age and performances was protected in one case,[1279] and in the other case a list of trotting horses and their paces.[1280] In Brightley v. Littleton[1281] a blank form of application for liquor licence was held to be copyright. In Carlisle v. Colusa County[1282] copyright was denied to a blank form of property statement for assessment purposes.

This latter decision appears, however, to have been partly on the ground that as the assessors were obliged to issue a form, it would embarrass their duties if forms drawn up by private persons were entitled to copyright.

A circular in pamphlet form used as an advertisement, and explaining a certain method of distribution of coupons to cash purchasers from certain merchants named in the pamphlet, has been held to be the subject of copyright.[1283] The circuit judge, however, in his judgment, says: "It requires some stretch of imagination to say that this pamphlet comes within the purpose of Congress, the encouragement of learning, and the increase of useful knowledge, but the official charged with the duty has granted a copyright to this pamphlet, and his decision is accepted."[1284]

Dramatic Works.

Dramatic works[1285] have been protected, although not of a very high literary standard. In Henderson v. Tompkins[1286] protection was given to a topical song which was designed merely to amuse. It was sufficient if it accomplished that purpose.

Law Reports.

Statutes.

Law Reports are protected so far as they consist of original intellectual matter;[1287] the protection may thus extend to the title-page, table of cases, the head notes, the statements of facts, the argument of counsel, the index, the order and arrangement of cases, the numbering and pagination of the volumes, the table of cases cited in the opinions, the subdivision of the index into condensed titles, and the cross references.[1288] The original work of the reporter is alone protected.[1289] In the opinion of the Court there is no copyright;[1290] these constitute part of the law of the land open to all to make use of as they please, and neither the state, the judge, nor the reporter can acquire or confer any conclusive privilege of copying them. The same rule applies to the head notes in those states where they are prepared by the judge.[1291] On the same grounds of public policy no one can have copyright in the statutes;[1292] the legislature of the state cannot confer it on any one.[1293] There may be copyright in the head notes and arrangement of a digest of the statutes.[1294]

Notes and Additions. New Arithmetic. Adaptations.

The contents of a book do not require to be entirely new; if partially old there will be copyright quoad the new material or new arrangement.[1295] Thus there is copyright in notes and additions to an old work,[1296] in a new arithmetic combining old material in new form,[1297] in translations,[1298] in the adaptation of an old drama introducing a new title, new dialogue, minor characters, scenery, and dramatic situations with the orchestration and orchestra part songs and music,[1299] and in the dramatization of a novel.[1300]

Musical Arrangement.

In one case it was held that the adaptation of a musical piece from the notation suitable to one instrument to that suitable to another was not a sufficiently intellectual process to entitle the adapter to copyright in his adaptations.[1301] It was said that "a mere mechanic could make the adaptation and accompaniment." Since then, however, it has been held that a musical arrangement is the subject of copyright. In Thomas v. Lennox[1302] an orchestral accompaniment for a non-copyright oratorio by Gounod was held to be the subject of copyright. In Carte v. Evans[1303] an arrangement for the pianoforte of the orchestral score of an opera was held to be copyright.

New Editions.

Copyright in new editions runs quoad the new material from the date of the new edition.[1304] The additions or corrections must be of substantial value. A work which is publici juris cannot be reclaimed by colourable and immaterial alterations or additions.[1305]

Form of Publication.

Mechanical Devices.

Letter File.

Account Book.

A book need not be a book in the ordinary sense of the word; the word in the Act is not to be construed by reference to lexicographers: "the literary property to be protected by the Act is not to be determined by the size, form, or shape in which it makes its appearance, but by the subject-matter."[1306] A single sheet containing literary matter will be protected as a book.[1307] No doubt, however, the subject to be protected must be ejusdem generis as a book or leaflet. The subject-matter must convey, and the form must be suitably adapted for conveying, information to the reader. The copyright law embraces those things that are printed and published for information and not for use in themselves. Thus what is really a mechanical instrument, and if original entitled to protection under the patent law, will not be protected by the copyright law. In Amberg File v. Shea[1308] protection was claimed in a letter file. It was said that the spaces between the index letters were adjusted to the average requirements of the correspondent. These average requirements were ascertained by exhaustive research in different directories. Copyright was refused. In Baker v. Selden[1309] blank account books of an original type or pattern were refused protection. The judge in that case drew the distinction between what was a proper subject of the patent laws and what was a proper subject of copyright law—"The object of the one is explanation, the object of the other is use."[1310] In Drury v. Ewing[1311] a "ladies' chart for cutting dresses and basques for ladies, and coats, jackets, &c., for boys" was protected. It is almost certain, however, that this decision would not now be accepted as sound. Mere labels will not be protected as copyright works.[1312] They may be protected by registration in the Patent Office.[1313]

Originality.

Copyright may be obtained for works of the imagination, or for a mere collection and arrangement of material open to all mankind.[1314] What is meant by originality as a requisite of copyright is that what is claimed as the subject of copyright, whether it be the composition or arrangement of matter, must not have been taken from some literary or artistic work already in existence. It need not be the first of its kind; the same thing may have been done before so as to produce identically the same result.[1315] If the second author, artist, or composer goes about his work independently, searching out his material from the original sources, he is equally entitled to copyright with the first. Herein copyright law differs from the law of patents; in the former there may be two concurrent copyrights in what is identically the same creation, in the latter there can only be one patent, the first inventor being entitled.

Letters.

Letters may be the subject of copyright, whether of a business or private nature, and although never intended by the writer to be published as literary productions. In Folsom v. Marsh[1316] the letters of George Washington were the subject of controversy. Story, J., in giving judgment, laid down the law as to the property in letters at some length:

"There is no small confusion in the books with reference to the question of copyright in letters. Some of the dicta seem to suppose that no copyright can exist except in letters which are professedly literary, while others again recognise a much more enlarged and liberal doctrine upon the whole subject. In the first place I hold that the author of any letter or letters (and his representatives), whether they are literary compositions or familiar letters or letters of business, possess the sole and exclusive copyright therein; and that no persons, neither those to whom they are addressed nor other persons, have any right or authority to publish the same upon their own account or for their own benefit. But consistently with this right the persons to whom they are addressed may have, nay, must by implication possess the right to publish any letter or letters addressed to them upon such occasions as require or justify the publication or public use of them, but this right is strictly limited to such occasions. Thus a person may justifiably use and publish in a suit at law or in equity such letter or letters as are necessary and proper to establish his right to maintain the suit or defend the same. So if he be aspersed or misrepresented by the writer or accused of improper conduct in a public manner, he may publish such parts of such letter or letters, but no more, as may be necessary to vindicate his character and his reputation, or free him from unjust obloquy and reproach. If he attempt to publish such letter or letters on other occasions not justifiable, a Court of Equity will prevent the publication by an injunction as a breach of private confidence or contract or of the rights of the author, and a fortiori if he attempt to publish them for profit, for then it is not a mere breach of confidence or contract, but it is a violation of the exclusive copyright of the writer. In short, the person to whom letters are addressed has but a limited right or special property (if I may so call it) in such letters as a trustee, or bailee for particular purposes, either of information or of protection or of support of his own rights and character. The general property and the general rights incident to property belong to the writer, whether the letters are literary compositions or familiar letters or details of facts or letters of business. The general property in the manuscript remains in the writer and his representatives as well as the general copyright. A fortiori third persons standing in no privity with either party are not entitled to publish them to subserve their own private purposes of interest or curiosity or passion."

It is not quite accurate to say that the receiver of a letter is merely a trustee or bailee for particular purposes. Clearly the receiver of a letter is entitled to destroy it unless there is any express or implied stipulation to the contrary, and probably he can prevent the sender from publishing it by refusing to produce it if it is in his possession.

No Copyright in Titles.

As a rule there can be no copyright in a title.[1317] The deposit of the title-page with the Librarian of Congress does not give the author any exclusive right to the use of that title.[1318] A title can only be protected as a trade mark in connection with a particular literary or artistic production which has become known to the public. The public must be shown to be deceived or to be in danger of being deceived.[1319] A title may be protected by registration as a trade mark.[1320]

Photographs.

Photographs were first protected by the Statute of March 3, 1865; before then protection was refused to them under the head of prints, cuts, or engravings.[1321] It seems to have been doubted at one time whether the protection of photographs was not ultra vires of the powers conferred by the Constitution. There is certainly an apparent difficulty in bringing a photograph within the expression "writings" used in the Constitution; but this word has received an extremely wide and liberal construction, and has been held to be capable of including any literary or artistic production of the intellect. Photographs have been now frequently protected, but it is not every photograph that will be protected, there must be some evidence that the photographer has exercised an intellectual choice of subject-matter, expression, arrangement, light, or other circumstances or conditions which go to the production of an artistic photograph.[1322] It will be a question of fact for the Court or jury whether the photograph is a mere manual reproduction of subject-matter or an original work of art.[1323] In a portrait there may be copyright in so far as the photographer has relied on his own judgment for the choice of light, background, pose, or attitude.[1324] In one case the photograph of a yacht under sail was protected. It required the photographer to select and utilise the best effects of light, cloud, water, and general surroundings, and combine them under favourable conditions for depicting vividly and accurately the view of a yacht under sail.[1325]

A slight colourable alteration in a non-copyright photograph will not entitle it to copyright.[1326]

Engravings.

Engravings, cuts, and prints will be protected,[1327] but there must be at least some merit in them as artistic or instructive productions. Thus the prints of common articles of household use in a tradesmen's catalogue,[1328] drawings of billiard tables in a similar catalogue,[1329] a card of specimen colours and tints of zinc paints,[1330] and a poster with coloured drawings of a circus performance[1331] have all been refused protection. If there is real artistic merit in a drawing it will not be disentitled to protection merely on the ground that it has been used as an advertisement.[1332]

It has been held that playing cards printed in colours are entitled to protection as "prints."[1333]

Pictures.

The Act of June 18, 1874, enacts that the protection of the Copyright Acts conferred on "engravings," "cuts," and "prints" shall not extend to prints or labels designed to be used for any articles of manufacture. This Act cannot be evaded by attempting to copyright the picture or drawing from which the label is designed. In Schumacher v. Wogram[1334] the Court refused protection under the Copyright Acts to a picture representing a young woman holding a bouquet of flowers intended to be reproduced on labels for cigar boxes. The reason for refusing protection of the copyright law to such productions is that their only real value is as a trade mark connected with a particular article of manufacture.[1335] They are not designed in themselves to instruct or amuse. As trade marks they will be protected if registered in the Patent Office. The fact that a picture could be readily lithographed and used as a label does not deprive it of copyright;[1336] it must in order to lose its copyright have been made with the intention of being used as a label. If the painting itself were to be considered a label because copies might be so used, no masterpiece would be entitled to copyright. A painting, engraving, or print in order to be protected must be a pictorial representation of something and not merely a design.[1337]

Section II.—Nationality of the Author.

Unfortunately the Acts of Congress are not clear as to how far the works of foreign authors, or the works of non-residents in the United States are protected.

Until 1891 the works of foreign authors not resident in the United States were denied protection. Sec. 4971 of the Revised Statutes ran as follows:

"Sec. 4971. Nothing in this chapter shall be construed to prohibit the printing, publishing, importation, or sale of any book, map, chart, dramatic or musical composition, print, cut, engraving, or photograph, written, composed, or made by any person not a citizen of the United States nor resident therein."[1338]

By the Act of 1891, the benefits of copyright are extended to the citizens of foreign countries which are proclaimed by the President as conferring reciprocal rights on American citizens. Sec. 4971 of the Revised Statutes is repealed. The Act of March 3, 1891, section 13, enacts—

"That this Act shall only apply to a citizen or subject of a foreign state or nation when such foreign state or nation permits to citizens of the United States of America the benefit of copyright on substantially the same basis as its own citizens, or when such foreign state or nation is a party to an international agreement which provides for reciprocity in the granting of copyright by the terms of which agreement the United States of America may at its pleasure become a party to such agreement. The existence of either of the conditions aforesaid shall be determined by the President of the United States by proclamation made from time to time as the purposes of this Act may require."

The Act of March 3, 1891, section 5, amending the Revised Statutes, sec. 4959, enacts that—

"... the alterations, revisions, and additions made to books by foreign authors heretofore published, of which new editions shall appear subsequently to the taking effect of this Act, shall be held and deemed capable of being copyrighted as above provided for in this Act, unless they form a part of the series in course of publication at the time this Act shall take effect." (July 1, 1891.)

On these sections two questions seem to be left open:

1. It may be that it would be a sufficient compliance with the requirements of the Act if either the author or his assignee before publication were a citizen of the United States, or a subject or citizen of a proclaimed country. Section 1 amending the Revised Statutes, sec. 4952, gives the sole liberty to "the author, inventor, designer, or proprietor, and to the executors, administrators, or assigns of any such person." Section 13 "applies the Act" to citizens or subjects of certain foreign states or nations. Under the Revised Statutes, section 4971, before 1891 it was the nationality of the author alone that was considered, and it would have been no answer to have said that the assignee before publication was an American citizen or resident in the United States. Perhaps in 1891 the benefit was designedly extended to assignees before publication, who complied with the conditions and who had taken assignments from foreign authors who did not. On the whole, however, I am inclined to the opinion that it will not do merely to allege that the assignee of the uncopyrighted and unpublished work is a citizen of the United States or a subject or citizen of one of the proclaimed countries. It must, I think, be alleged that the author, inventor, designer, or proprietor ab initio has complied with the conditions as to nationality. By proprietor ab initio (and probably this is the true meaning of "proprietor" in section 1 of the Act of March 3, 1891[1339]), I mean one who compiles a work by his servants or agents, for instance, a body corporate, which cannot be said to be an "author, inventor, or designer," and yet is entitled to the whole property in the work of its servants as it grows up from day to day. I have not con sidered the assignee after publication. I think it must be abundantly clear that his nationality cannot be taken as the test, since if he took his assignment from a foreign author who did not comply with the conditions of nationality when the work was published, the work at the time of assignment would have become publici juris. If he took his assignment from one who complied with the conditions of nationality and copyrighted the work, the fact of his being an alien would not prevent him acquiring the copyright already secured.

2. Before 1891 residence in the United States, which was interpreted to mean permanent residence and not merely for the purposes of publication,[1340] was sufficient to entitle an author to the privileges of the Copyright Acts. The provision now, under the Act of March 3, 1891, is that the Act shall only apply to a citizen of a foreign country which has been proclaimed. Reading the Act strictly a foreign resident in the United States but not a citizen thereof is excluded from protection which he formerly had, unless he is a citizen or subject of a proclaimed country. No doubt this was not intended to be the result of the Act of 1891, but the words are plain and unambiguous, and there seems no reason why they should not have effect according to their plain meaning. A fortiori a foreigner resident in, but not a subject of, one of the proclaimed countries would not be entitled to copyright.

The following States have been proclaimed as fulfilling one or other of the required conditions, and their citizens are therefore entitled to acquire copyright in the United States in the same way as an American citizen:

Belgium ⎫

France ⎥ July 1, 1891.

Great Britain ⎥

Switzerland ⎭

Germany April 15, 1892.

Italy October 31, 1892.

Denmark May 8, 1893.

Portugal July 20, 1893.

Spain July 10, 1895.

Mexico Feb. 27, 1896.

Chili May 25, 1896.

Section III.—Necessary Formalities.

No person is entitled to copyright unless he—[1341]

I. In the case of a book, map, chart, dramatic or musical composition, engraving, cut, print, photograph, or chromo—

II. In the case of a painting, drawing, statue, statuary, or a model or design for a work of the fine arts—[1342]

The proprietor of every copyright book or other article must deliver (or mail within the United States) to the Librarian of Congress a copy of every subsequent edition wherein any substantial changes shall be made.[1343] Each volume of a book in two or more volumes, when such volumes are published separately, and the first one has not been issued before July 1, 1891, and each number of a periodical is to be considered an independent publication.[1344] The requirements of the statute as to delivery of title and copies, and printing of notice must therefore be complied with in the case of each volume of a book or number of a periodical.

Conditions Precedent.—The deposit of title and delivery of copies as prescribed by the statutes are conditions precedent to copyright and not merely declaratory.[1345] There is no common law right after publication, and therefore if a work is published without the proper formalities having been observed it becomes publici juris, and any one may make what use of it he pleases.[1346] Ignorance of the law is no excuse even although a new Act has just been passed altering the time within which copies must be delivered.[1347] In an action for infringement the declaration must set out in detail a compliance with the law as to formalities,[1348] and the burden of proof thereof is on the complainant.[1349] He must prove the deposit of title, delivery of copies, notice of copyright, and the date of publication. The latter is essential, as on it depends the validity of the entry.[1350]

Delivery of the Title.—The copy of the title to be delivered must be "printed," i. e. the characters used must be those ordinarily used in printing, but they may be made by hand with a pen.[1351] The work must be published within a reasonable time after the deposit of the title-page, otherwise the formalities will not have been complied with.[1352] Two months' delay in mailing to the Librarian of Congress copies of a photograph after the filing of its title is not unreasonable.[1353]

It will not do to publish a book under a substantially different title from that deposited. Immaterial variations in the title, or sub-title, or complete alteration of a description on the title-page will not make the deposit void. In Donnelley v. Ivers[1354] the title deposited was "Over One Thousand Recipes. The Lake Side Cook Book: A Complete Manual of Practical, Economical, Palatable, and Healthful Cookery. Chicago: Donnelley, Lloyd & Company, 1878." The title on the book as published was "The Lake Side Cook Book, No. 1. A Complete Manual of Practical, Economical, Palatable, and Healthful Cookery. By N. A. D." It was held that the requirement as to the deposit of title having been "substantially, in good faith complied with," the objection was not tenable. What is required is, that the deposited title be sufficient to identify the book with substantial certainty. In Carte v. Evans,[1355] the title filed was "Pianoforte Arrangement of the Comic Opera, The Mikado, or the Town of Titipu, by W. S. Gilbert and Sir Arthur Sullivan. By George L. Tracey." The book as published bore the title "Vocal Score of the Mikado, or The Town of Titipu. Arrangement for Pianoforte by George Lowell Tracey (of Boston, U. S. A.) of the above-named opera by W. S. Gilbert and Arthur Sullivan." This was held a sufficient deposit to protect the pianoforte accompaniment. In Black v. Allen[1356] the title deposited was "An Outline of the Political and Economic History of the United States, with Maps and Charts: I. History and Constitution by Alexander Johnson, M. A.; II. Population and Industry by Francis A. Walker, LL. D." The title of the book as deposited was "United States: Part III. Political Geography and Statistics, copyright, 1888, by Francis A. Walker." In the absence of evidence that the defendant was deceived or misled by the change of the title the Court held that it was valid. In Daly v. Brady[1357] the title of a drama deposited was "Under the Gaslight: A Drama of Life and Love in these Times." The actual title as published was "Under the Gaslight: A Romantic Panorama of the Streets and Homes of New York." The Court held that the change of title might deceive the public, and therefore the deposit of title was bad; but this decision was reversed in Daly v. Webster;[1358] the variance was in the description. "The title required may include a sub-title, but it does not include a description of the book upon the title-page."

An author may wish to change his title entirely after he has deposited the title-page. He may do this before the deposit of copies by depositing a fresh title-page; but it is questionable whether the duration of his copyright will run from the first deposit of title or from the deposit of the altered title.[1359]

Delivery of Description.—Probably a short description is all that is required. If the title is in itself descriptive, probably that will be sufficient. The photograph of a painting, or other work of art which is required to be delivered, does not take the place of a description.[1360]

Delivery of Copies.—Under the Revised Statutes before 1891 the printed copies had to be delivered "within ten days from the publication thereof." This was sufficiently complied with by the delivery of two copies on the day before publication.[1361] The Act of 1891 now requires that the two printed copies shall be delivered "not later than the day of publication."

The copies deposited with the Librarian of Congress do not require to bear the statutory notice as to copyright.[1362]

The memorandum given by the librarian is sufficient primâ facie evidence of the fact and date of deposit.[1363] The librarian's date stamp on the book is not conclusive, and may be rebutted by other evidence of the actual date of deposit.[1364] If the copyright matter is ordinarily bound up with other matter, the Librarian of Congress cannot insist on the delivery of the bound volume complete. It is a sufficient delivery to take the volume to pieces and deliver the loose sheets on which the copyright matter is printed.[1365] Before 1891 the two copies deposited had to be of the "best edition," but this appears to be no longer necessary.

Printing in the United States.—In the case of

the two copies required to be delivered must be printed from type set within the limits of the United States or from plates made therefrom, or from negatives or drawings on stone made within the limits of the United States, or from transfers made therefrom.[1366]

This requirement was introduced in 1891, when the privileges of copyright were extended to subjects and citizens of foreign countries. Formerly there was no obligation to print within the United States.

It has been held that a volume of music is not a "book" within the meaning of the provision in the statute enacting that the two copies delivered shall be printed in the United States.[1367] It would seem to follow that the necessity of printing in the United States does not extend either to maps or charts, or even to dramatic compositions in book form. These are all dealt with specifically in the Act, and therefore, on the authority of Littleton v. Oliver,[1368] do not come within the generic term "books."

Retrospective Provision.—By an Act of March 3, 1893, it is enacted—

"That any author, inventor, designer, or proprietor of any book or other article entitled to copyright, who has heretofore failed to deliver in the office of the Librarian of Congress two complete copies of such book, or description or photograph of such article within the time limited by title sixty, chapter three of the Revised Statutes relating to copyrights and the Acts in amendment thereof, and has complied with all other provisions thereof, who has before the 1st day of March 1893 delivered at the office of Librarian of Congress or deposited in the mail addressed to the Librarian of Congress two complete printed copies of such book, or description or photograph of such article, shall be entitled to all the rights and privileges of such title sixty, chapter three of the Revised Statutes and the Acts in amendment thereof."

Notice of Copyright.—No person can maintain an action for infringement of his copyright unless each published copy of his work bears one or other of the following notices:[1369]

"Entered according to Act of Congress in the year ——, by A. B., in the office of the Librarian of Congress at Washington.

Or:

"Copyright, 18—, by A. B."

Books must bear the notice:

"On the title-page or page immediately following."[1370]

Designs for moulded decorative articles, tiles, plaques, or articles of pottery:

"Upon the back or bottom of such articles or on such other place upon them as it has heretofore been usual ... for the placing of manufacturers, merchants, and trade marks thereon."[1371]

Other works, including musical compositions, photographs, pictures, engravings:

"Upon some visible portion thereof, or of the substance upon which the same shall be mounted."[1372]

The statutory requirements as to notice must be strictly complied with, and a departure from the exact words of one or other of the alternative forms may be fatal to the right of action. When the only notice on a book was "Entered according to Act of Congress, in the year 1878, by H. A. Jackson," it was held an insufficient notice as complying with neither of the two alternative forms.[1373]

Slight variation.

A very slight variance in the words or the orders of the slight words, if the matter is substantially the same, will not, however, make a bad notice. Thus "1889, Copyrighted by B. J. Falk, N. Y.," has been held a good notice.[1374] So also has "Copyright entered according to Act of Congress, 1889, by T. C. Hefel, civil engineer." It was held to comply with the short alternative notice, viz.: "Copyright, 18—, by A. B.," the superfluous words being disregarded on the doctrine of utile per inutile non vitiatur.[1375]

The name of the proprietor who takes out the copyright is an essential part of the notice. In Osgood v. Aloe[1376] the following notice was printed on the page following the title-page, "Copyright, 1891; all rights reserved." This was held a bad notice, and the name of the publishers, who were also the proprietors, printed on the title-page was insufficient. There was nothing to show that they were proprietors as well as publishers. Copyright may be taken out in the name of a firm or a conventional trade name, and if that name is on the notice it is sufficient.[1377] But it must be the full and proper name under which the proprietors are trading. Thus when The Illustrated American Publishing Company issued a paper entitled The Illustrated American, the following was held an insufficient notice on a crayon drawing published by the Company, viz.: "Copyrighted 1891, by The Illustrated American."[1378] It seems, however, that it is not necessary for an individual to give his full name if what is given is sufficient for the purposes of identity. Thus the surname and the first letter of the Christian name,[1379] and in one case the surname alone have been held sufficient.[1380] The latter case was that of a photographer in Brooklyn. It was shown that there was only one photographer of that name in Brooklyn, and the notice ran "Copyright, '93, by Bolles, Brooklyn."[1381] If the full name is given there is no necessity to give the address of the proprietor, even although he be a foreigner resident abroad.[1382]

It will not do to put the name of an agent on the notice. In Nifflin v. Dutton[1383] the authoress of "The Minister's Wooing" took out a copyright in the whole book in her own name. Subsequently several chapters of the story were published serially in the Atlantic Monthly. The only notice of copyright in that magazine was in the name of the publishers, Ticknor and Fields. It was held that these chapters had not a sufficient notice. Great care must be taken in the case of serial publications. If a story is published in a magazine each part must be treated as a separate book, and must contain a notice of copyright by the author if he is the owner. When the book is published as a whole these notices must be repeated; it will not do merely to copyright the whole book afresh and print a new notice.

Date of Entry.—The date required is the year only; neither the day nor the month is necessary. The statement of a wrong year has been held fatal to the notice. In Baker v. Taylor[1384] the true date of taking out copyright was 1846. The notice stated 1847 as the year, and this was held as bad notice, even although the error arose from mistake. But in Callaghan v. Myers[1385] the notice put an earlier instead of a later date than the actual date of deposit; the true date being 1867, the notice declared copyright to have been entered in 1866. This was held an immaterial error, since it deceived no one, and would only operate to shorten the claimant's copyright by one year. In Schumacher v. Wogram[1386] Wallace, J., doubted whether the declaration in the notice of a date earlier than the true date would not make the notice void. It is immaterial that the date on the notice is abbreviated if it is sufficiently clear what date is meant; thus, "Copyright, '94, by A. B.," is a good notice.[1387]

It is extremely difficult to determine what date the law requires to be placed upon the second or subsequent edition of a book wherein substantial alterations or additions have been made. In the case of a reprint, I think it is clear that the date of the first edition, and that only, is the correct date; and even where alterations or additions have been made I think that that date is necessary, and I doubt whether it is necessary to add another notice giving the date of the revised edition. It would seem that a subsequent edition does not require to be "entered" in the same manner as the original edition; the statute is complied with by the deposit of a copy of every subsequent edition wherein any substantial changes shall be made. If this is done copyright in the alterations seems to have been procured. In Lawrence v. Dana[1388] Clifford, J., held that it was not necessary in a subsequent edition to give the date of the entry of the first edition[1389]; but I doubt if this is sound. On the whole, I think the correct view is that the matter peculiar to the first edition, whether it be printed in the first or any subsequent edition, must bear a notice with the date when that matter was first entered, and that the matter peculiar to any subsequent edition will be protected until the expiry of the copyright in the first edition, if it bears a notice with the date of the first edition only, and if a copy has been sent to the Librarian of Congress. I further think that the matter peculiar to subsequent editions may be protected for the full term of twenty-eight or thirty-two years from the date of the first publication of the edition in which it is first contained, if such edition is separately entered, by two copies of the title-page and of the book being deposited, and if it bears a notice with the date of such separate entry. I think, therefore, in every new edition in which there is a substantial alteration or addition there should as a matter of practice be a separate entry of copyright and separate notices on the title-page, one for each edition of the book.

The question may be raised as to whether a book is a subsequent edition or an entirely new book. In Banks v. M'Divitt,[1390] the plaintiff had annotated the rules of the Supreme Court of New York. He had published such annotated editions in 1858 and 1871. In 1874 the rules were extensively amended, and the plaintiff published an annotated copy. It was held that this was not a subsequent edition of the original annotated rules, and therefore no notice of the original date of publication was required. I very much doubt whether this is a sound decision. It seems to me that in so far as the new book was the same as the old, it was a subsequent edition, and in order to retain protection required a notice of original publication.

Every published copy of every edition[1391] of a work must have the statutory notice thereon; every proprietor who sues must have printed the notice on every copy published by him. If an assignee of a copyright fail to print a proper notice he will have no remedy even against his assignor for infringement.[1392] From the wording of the Act of June 18, 1874, it seems that the printing of the notice is not now a condition precedent to copyright, but is only a condition of the right of action upon infringement. It is, I think, questionable whether the failure of A to print a proper notice will affect the right of B, his assignee, to sue for an infringement subsequent to the assignment. One who makes an unauthorised copy of a literary or artistic work is not exempt from liability merely because he can show that the copy from which he copied had no notice. His defence must be that such copy left the proprietor's hands without a proper notice.[1393] The question has been raised, but not answered, whether if the proprietor grant a licence, and the licensee omits to insert a proper notice, the proprietor is without a remedy.[1394]

Formerly if a book were published in several volumes at different times, it was sufficient to place the notice on the first volume only,[1395] but now since the Act of 1891[1396] each volume of a book and each number of a periodical is to be considered an independent publication, and the notice must be placed on each volume or part accordingly.

There is no special provision in the law of the United States as to newspapers and other periodical works, therefore each issue must be considered a separate work, and the requisite formalities complied with in each case.

Notice on Painting.—It was contended in one case[1397] that there was no necessity to place the notice on an original painting, the Act only requiring notices to be placed on copies made therefrom. The Court held, however, that the original work was a "copy" within the meaning of the provision in the Act, and must be inscribed with the notice accordingly.

Maps in Atlas.—Each map contained in an atlas does not require to be separately copyrighted, or bear a separate notice of copyright. They are protected by a copyright of the entire work.[1398] The same would, no doubt, apply to a volume of engravings or other works of art.

Publication.—There appears to be some doubt as to whether publication is necessary as a condition precedent to the statutory rights. The duration of copyright is to be measured from the date of the deposit of the title or description with the Librarian of Congress; but probably that in itself gives no proprietary right either in the title or the book. It has been suggested that it gives an "inchoate right," or an "equitable right, which Chancery will protect until the other acts may be done."[1399] It may be that when the formalities have been completed by deposit of copies the right then acquired dates back to the deposit of title so as to give a statutory remedy against an infringement made between the two dates.[1400] When the copies of the book have been deposited, the express conditions precedent of the statute have been performed; but the question has been raised whether there will be copyright unless within a reasonable time thereafter the book or other work is put in circulation among the public. In Boucicault v. Hart[1401] the Court held that although the title-page had been filed there could be no copyright without "a deposit of copies and publication." In The Jewellers' Mercantile Agency v. Jewellers' Publishing Company[1402] the New York Supreme Court, on a question as to whether an action should be founded on the Statute or at Common Law, held that although there had been deposit of title and deposit of copies in accordance with the Acts there could be no copyright, but only a common law right unless there had been a "publication." In Ladd v. Oxnard,[1403] the circuit judge, Putnam, thought that the statutory right was perfected by deposit of copies, and that from then, until "publication," there were concurrent remedies under the Statute and at Common Law. After the decision in Ladd v. Oxnard[1404] the decision in The Jewellers' Mercantile Agency v. Jewellers Publishing Company was reviewed by the Appeal Court of New York.[1405] The Court was unanimous in reversing the judgment below, and holding that the plaintiff's right of action was a statutory right and not a common law right. Three of the judges gave their decision on the ground that the facts proved showed a publication subsequent to deposit; but the other three gave it on the ground that the deposit itself was a publication and completed the statutory copyright. It is submitted that this latter is the correct view, and that, therefore, after deposit of the title-page and deposit of copies in due form nothing further is necessary to acquire copyright.

Apart from the question as to whether publication is necessary to complete the statutory right, several questions of importance may arise on the fact or date of publication, e. g.:

The essence of publication consists in a disclosure of the thing itself, so that the public without discrimination of persons have an opportunity of enjoying its use.[1406] The most usual method of publication of a literary or artistic work is the offering for sale, selling, or giving away of copies.[1407] It is not necessary that a copy of the book be actually sold, it is sufficient if it be offered to the public. The act of publication is the act of the author, and cannot be dependent on the act of the purchaser.[1408] Gratuitous distribution to members of the public, or leaving copies in a place to which the public have access, such as an hotel, is publication.[1409] The sale or distribution of copies, however, may be so limited to individuals, or particular classes of individuals, as not to amount to publication. When before the advertised date of publication an advance lot of books in quires unbound were sent to different publishers, with a request not to publish until bound copies should be sent, it was held, in the absence of evidence that the request was not complied with, that there had been no publication.[1410] The author of a literary or artistic work may circulate it among his friends, or among a restricted class subject to conditions, and at the same time retain his common law right in unpublished work.[1411] A teacher may circulate copies of his work among the members of his class without publishing the work.[1412] In one case a sheet of miniature copies of engravings was sent round to picture dealers solely for their inspection and to solicit orders. This was held not to be a publication.[1413] Copies of an unpublished opera given to the performers marked "Right of Representation and Reproduction Reserved" is not a publication.[1414] The transmission of news over telegraphic instruments does not constitute a general publication.[1415] In order to protect the common law right the distribution of copies must be strictly confined to individuals or to a class. If the man in the street may buy it there is a publication even although the work is of such a nature (e. g. a trade journal) as will practically be confined to a limited class.[1416] It does not make it the less a publication that every purchaser of, or subscriber to, a literary or artistic work is bound by restrictive conditions as to its use. So long as the work is put within the reach of all and not limited to a class, it matters not what conditions are imposed on the individual subscriber.[1417] Thus the sale of a book to all who paid for a course of instruction in a system for training the memory was held to be a publication notwithstanding that each sale was made under a contract not to disclose the contents to others.[1418] A book may be published although it is not sold but issued on loan to subscribers with an express condition that the copy must be returned on the expiry of the subscription.[1419] Publication of a book in a serial form reserving all other rights to the author, is such a publication as to abandon the copyright to the world, if steps have not been taken to copyright it before such publication.[1420]

I have little doubt, but there is no definite authority, that a book may be published so as to destroy the common law right, although it is not printed. Circulation in manuscript would be enough.[1421]

The public performance of a dramatic piece is not a publication of it so as to deprive the proprietor of his common law right in the manuscript.[1422] The same rule probably applies to the oral delivery of a lecture or sermon, unless there is some act or circumstance from which it can be implied that the speaker intended to abandon the literary matter to the free use of the public.

It has been held by the Circuit Court of Appeals[1423] that the exhibition of a picture in a public gallery is a publication of the picture so as to destroy the owner's rights, unless he has taken steps to secure a copyright. One of the three judges dissented from the judgment, but on what ground does not appear. In a case decided by a district judge,[1424] shortly before the one just cited, the judge thought that the exhibition of a painting in a public saloon did not work a forfeiture of the right to obtain copyright unless the general public was permitted to take copies at pleasure, and such permission would not be assumed in the absence of direct evidence. The same judge decided that neither the sale of a replica in a different size made before the principal picture by way of a study nor the publication of a crayon sketch in an exhibition catalogue was a publication of the picture. It is submitted that the exhibition of a picture in a public gallery is a publication. It seems to afford the public an opportunity of making every legitimate use of the contents of the picture. They could not make any greater use of the contents if they bought an engraving of the picture. It would not even then be lawful for them to make copies of the picture. As to the replica and the rough sketches in the catalogue, no doubt they were not "copies" of the picture, and therefore their publication could not entirely destroy the copyright in the picture; but if these were published without being copyrighted or without statutory notice, clearly the public could copy them, and to that extent the copyright in the design of the original picture would have been forfeited.

An unauthorised publication will not operate to forfeit the common law rights;[1425] but if authorised by the owner it is immaterial that the publication constitutes a breach of contract with a licensee or part assignee.[1426] Thus the author of a German unpublished play conveyed the performing rights in the United States to a citizen of the States, and contracted with him that he would not publish the play as a book. In breach of this contract the play was published in Germany under the authority of the author. It was held that such publication destroyed all literary rights in the United States.[1427] When the defendant relies on previous publication he must definitely prove such publication, and that it was made with the consent of the owner.[1428]

The Library of Congress.—All the copyright records are in the Library of Congress at Washington, and are kept by the Librarian of Congress, who makes an annual report to Congress of the number and description of copyright publications.

The Librarian of Congress must record the name of each copyright work in a book kept for the purpose. The form of entry is as follows:

"Library of Congress, to wit,—Be it remembered that on the day of A. B. of , hath deposited in this office the title of a book (map, chart, or otherwise as the case may be, or description of the article), the title or description of which is in the following words, to wit: (here insert the title or description), the right whereof he claims as author (originator or proprietor as the case may be), in conformity with the laws of the United States respecting copyright.—C. D., Librarian of Congress."

The librarian must give a copy of the title or description under the seal of the Librarian of Congress to the proprietor whenever he requires it.

The Librarian of Congress is entitled to receive from the persons to whom the services are rendered the following fees:[1429]

1. For recording title or description 50 c.

2. For a copy of such record under seal 50 c.

3. For recording and certifying a written consignment $1

4. For a copy of an assignment $1

All fees so received must be paid into the Treasury of the United States.

The charge for recording the title or description of the work of a person not a citizen of, or resident in, the United States is $1.

The Librarian forwards a note of the title-entries to the Secretary of the Treasury, who must prepare and print, at intervals of not more than a week, catalogues of such title-entries for distribution to the collectors of customs of the United States and to the postmasters of all post-offices receiving foreign mails; and such weekly lists as they are issued are furnished to all parties desiring them at a sum not exceeding $5 per annum.[1430]

The Secretary and Postmaster-General are empowered and required to make and enforce such rules and regulations as will prevent the importation into the United States of all articles prohibited by the Copyright Acts.[1431]

The Postmaster to whom a copyright book, title, or other article is delivered for the Librarian of Congress must, if requested, give a receipt therefor, and when so delivered he must mail it to its destination.[1432]

For every failure on the part of the proprietor of any copyright to deliver or deposit in the mail either of the published copies, or description, or photograph, the proprietor of the copyright is liable to a penalty of $25, to be recovered by the Librarian of Congress in the name of the United States in an action in the nature of an action of debt in any district court of the United States, within the jurisdiction of which the delinquent may reside or be found.[1433]

Section IV.—Immoral Works.

A work containing immoral matter will not receive the protection of the Courts.[1434] A song containing the verse, "She's the hottest thing you ever seen," was not protected.[1435] The introduction of obscene, profane, or libellous matter into a literary or artistic work does not render it publici juris; the copyright remains, but the Court will not entertain any action upon it. Thus in Broder v. Zeno[1436] the Court said that their decision to refuse protection would not prevent the complainants from republishing their song, and by omitting the objectionable word thus secure a valid copyright. If an action is brought for the piracy of immoral matter it will be dismissed without costs to either party. The fact that a work such as playing cards may, and probably will, be used for an unlawful purpose, does not disentitle it to protection.[1437] A guide to the turf has been protected,[1438] so has a list of records and trotters and pacers.[1439]

Section V.—Duration of Copyright.

"Copyrights shall be granted for the term of twenty-eight years from the time of recording the title thereof."[1440]

"The author, inventor, or designer, if he be still living, or his widow or children if he be dead, shall have the same exclusive right continued for the further term of fourteen years, upon recording the title of the work or description of the article so secured a second time, and complying with all other regulations in regard to original copyright, within six months before the expiration of the first term: and such persons shall, within two months from the date of said renewal, cause a copy of the record thereof to be published in one or more newspapers printed in the United States for the space of four weeks."[1441]

In Callaghan v. Myers[1442] it was said that if by an error the notice of copyright on a published book bore a date prior to the actual year of publication the result would be not that the notice was bad, but that the term of copyright would date from the year specified in the notice.

Notice that the right to obtain an extended term is not given to the "proprietor;" therefore an employer whose servant did literary of artistic work in his employment would not be entitled to an extension. It seems doubtful whether the servant in such a case, although the actual author, would be entitled to an extension: it is thought not.

If the author, inventor, or designer assigns his copyright, he does not part with his right to an extension unless this is clearly intended by the transfer.[1443] From the terms of the statute one might doubt whether the right to obtain an extension is assignable. No doubt a contract to assign it would be valid, and a document purporting to assign it would be held equivalent to such, so that on the extension being acquired the purchaser could compel an assignment.

If the author of an unpublished work conveys all right, title, and interest in it to another, he certainly cannot take out an extended term to run against his grantee.[1444] It seems doubtful whether he can take it out at all. Certainly his grantee cannot, and probably the author could not for his benefit.

If the original term is invalid there will be no right to a renewal.[1445]