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CHAPTER XLII.

OF COPYRIGHT.

SECTION 1. For what a Copyright may be Obtained.

LEARNED and interesting discussions have been had as to the exclusive right of an author, at common law, to ownership in his manuscript, and to multiply and publish copies thereof for sale: but this question has become of no practical interest, as whatever the right at common law may have been, it is now modified and limited, in England by the Statute of Anne, and in this country by the Acts of Congress passed in pursuance of the power conferred in Art. 8, Sect. 1, of the Constitution of the United States, "to promote the progress of science and the useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."

The acts of Congress prior to 1819 were repealed by the Act of 1831, and this subject, in the United States, is now regulated by the Acts of 1819, 1831, 1834, 1859, 1861, and 1865. These are easily found in the published volumes of United States Laws, and to them alone we must look to ascertain and define the rights and remedies of authors in the United States.

Under these Statutes, a copyright upon any original, unpublished manuscript, map, chart, dramatic or musical composition, engraving, design, print, cut, or photograph, may be so protected by copyright that the author, inventor, or designer, being a citizen of the United States or resident therein, and his executors, administrators, and assigns, shall have the sole right of printing, reprinting, publishing, and vending the same, and of publicly performing and representing dramatic

compositions, for the period of twenty-eight years from the time of recording the title thereof; and if such author, inventor, or designer, (or any of them, where the work was originally composed, invented, or designed, by more than one person,) be living, a citizen of the United States or resident therein, at the end of such term, or being dead shall have left a widow or child or children, either or all of them then living are entitled to the same exclusive right for a further term of fourteen years, on complying with the provisions of the said Acts of Congress.

Although said acts in terms protect the author or proprietor of all the kinds of property therein named, in its original and exclusive publication, sale, &c., they really secure and protect only such rights as will be enforced by the courts. This excludes from real protection all works, of whatever nature, which conflict with morality or public policy. This is not in pursuance of any provision to that effect in the statutes, but rests upon a principle of common law everywhere recognized, that no man can claim protection for that which is mischievous or immoral. There is not, in England, or in this country, a censorship of the press: but the courts will not render active aid to any man who is in violation of the laws of the land. This rule is applicable not only to books which are of an irreligious, immoral, libellous, or obscene description, but to all sorts of immoral and unchaste designs, cuts, prints, etchings, photographs, or engravings. Neither will the courts protect a book which falsely purports to be written by a deceased author.

The act is designed to protect authorship, invention, &c. It is, therefore, confined to that which is original in the author; and where neither the design nor general arrangement of a print, nor the parts which compose it, are the invention of the plaintiff, but he has employed and paid the artists who have executed it, he is not entitled to a copyright. Binns vs. Woodruff, 4 Wash., C. C., 51. But one may obtain a copyright to a map of a State or country, which he has surveyed, or caused to be compiled from existing materials at his own

expense, or skill, or labor, or money. Emerson vs. Davies, 3 Story, 781.

The mere ownership of the copper-plate of a map, or of the stereotype plates of a book, does not carry with it the exclusive right of printing and publishing: but the incorporeal interest in the copyright subsists independent of, and separate from the plates, and would not pass with them by an adverse sale of such plates on execution, though the plates themselves may be taken and sold as so much metal. Millar vs. Taylor, 4 Burr., 234; Stephens vs. Cady, 14 How., 531; Stevens vs. Gladding, 17 How., 451. In such a case, the rights of the owner of the copyright will be protected against such separate owner of the plates, in the same manner, and to the same extent, as against any other person.

The question has been sometimes raised, whether letters, addressed to real correspondents, may be protected by copyright; and, if so, to whom they belong, whether to the writer or the person to whom they are addressed. It is now settled, both in England and in this country, that they may be so protected in favor of the writer, Pope vs. Curll, 2 Atk., 342; Thompson vs. Stanhope, Ambler, 737; Curtis on Copyrights, 90; Folson vs. Marsh, 2 Story, 100; 2 Story, Equity, pp. 944, 211..

An abridgement of a book, made in good faith, and being in a new form and language and new combinations, and not a mere reduction of the book by the use of scissors, is entitled to protection. It should, however, be a substantial condensation of the materials of the original work, by the exercise of reason, judgment, and taste requiring intellectual labor; and not an abridgement, consisting merely of extracts of the essential or most valuable parts of the original work. See Emerson vs. Davies, 3 Story, 778.

Compilations, especially if accompanied by explanatory remarks, notes, and index, may be sufficiently original to be entitled to a copyright. Gray vs. Russell, 1 Story, 11. The criterion of distinction upon which the cases rest as to abridgements, compilations, and selections, seems to be,

has there been intellectual labor, taste, judgment, and skill bestowed, in contradistinction to mere mechanical work?

Where a book is translated into another language, the translation may be the subject of a copyright; for, while an author may be said to be the inventor, both of the ideas contained in his book and of the combination of words in which he presents them, he has not, after publication, exclusive property in his conceptions and inventions, but they thereby become the common property of the public. The only property exclusively reserved to himself thereafter is, the right to multiply and sell the copies of that particular combination of words which he has employed to convey to others such Stowe vs. Thomas, 2 Am. "conceptions and inventions."

Law Reg., 229, (also 2 Wallace, Jr., 547.)

What is original matter within the purview and protection of the Copyright Laws, it is not easy absolutely to settle and limit. We have seen that an abridgement, compilation, or translation, may be sufficiently original to entitle it to protection, and it must be quite manifest that few men, however original, write books of any size or excellence without availing themselves, more or less, of the intellectual labors of others. In Law, History, Geography, Mathematics, &c., knowledge is to be obtained, not only by discovery, invention, and observation, but wherever it may be found, including, of course, books in which other men have recorded their previous inventions, discoveries and observations; and an author may resort to books or treatises secured by copyright, provided he does not unwarrantably use the language and combinations of the original treatise.

In the case of Stowe vs. Thomas, Judge Grier, in giving the opinion of the court, says: "When a person has given his thoughts to the world, he has no longer an exclusive possession of them: it would be inconsistent with the object of publication. The author's conceptions have become the common property of his readers, who cannot be deprived of the use of them, nor of their right to communicate them to another, clothed in their own language. It follows that, after publication, an author has no exclusive right to his ideas.

sentiments, and creations, though he owns the concrete form of them, and has an exclusive right to multiply copies of that form for sale. And hence, in questions of infringement of copyright, the inquiry is not, whether the defendant has used the thoughts, conceptions, or discoveries promulgated by the original work, but whether his composition may be considered a new book, showing learning, invention, and judgment." In the case last referred to, (Stowe vs. Thomas,) it was held that a translation would be no infringement of a copyright, even when another translation has been published under the author's sanction.

SECTION 2.

By whom should it be taken out.

The Statute provides that any person, being a citizen or resident of the United States, who shall be the author, &c., and the executors, administrators, and assigns of such persons, shall have the right, &c. We have seen, that a person who employs others to design and engrave a composition, not designing and inventing himself, or causing it to be done from his invention, is not entitled to a copyright for such composition. In addition to the case of Binns vs. Woodruff, before cited, this principle is sustained by Pierpont vs. Fowle, 2 Wood. & Min., 46, and Atwill vs. Ferrett, 2 Blatch., 46.

The legal assignee of the author may take out the copyright, under the act of 1831, as such assignee, and it will be immaterial whether he holds it entirely for his own use or in part as trustee for another, Little vs. Gould, 2 Blatch., 366, but no person can obtain such copyright except authors who are citizens or residents of the United States, and proprietors who derive title from such authors. The assignee of a book composed by a non-resident alien cannot take out a copyright for it.

An assignment may, in terms, pass not only the present and existing copyright, but the right to the additional fourteen years, provided the authors shall then be in life: but prima facie, it does not refer to or pass the future contingent interest. It should not by construction be extended beyond

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