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servant to unnecessary or unknown dangers, in employing as his fellow-servants only competent persons, and in employing these in sufficient number. These are the principal duties, though others might be named. If the master exercise ordinary care in discharging his duties, he is not liable, though the servant be injured.

§ 486. Risks assumed by servant.-The servant assumes all risks that he ought to know are incident to the discharge of his duties, all risks from negli gence and wrongs of his fellow-servants, and he is bound to use care himself. To some extent the servant will be excused for incurring a danger under order of the master, but not if the danger be glaring, nor if it is fully known to the servant and voluntarily assumed. As a general rule, where the opportunities of the servant for discovering danger are equal to the master's, the master is not liable.

§ 487. Fellow-servants.-If the master has exercised due care in selecting and retaining servants, he has done his duty. If, nevertheless, injury results to one servant by the wrongful act or omission of another servant, the master is not liable. It is essential, however, that the servants shall have been within the same general employment, for if two servants are engaged in occupations wholly independent of each other, they are not fellow-servants. And it is to be further noted that the fellow-servant rule applies only to the servants personally; so that if the wife or child of a servant be injured by another servant, the master is held liable for both the direct and consequential injury.

§ 488. Vice-principal.-If, however, the person

causing injury to the servant be discharging a duty which was owing from the master himself to the servant, he is regarded to that extent as the master. The name usually given is vice-principal. For any failure to discharge the duties he owes to his servant the master is liable, whether the act or omission which causes the injury be his own or his viceprincipal's. A person may at the same time be a vice-principal and fellow-servant; the character of the act done determines in what capacity he acts.

§ 489. Servant's liability to master.-For any wrongful act, neglect or incompetency of a servant, which causes injury to the master's person or property, the servant is liable to the master, provided the master is not also in fault. If a servant exceeds the authority conferred upon him by the master, and so involves the master in loss the servant is liable. And a servant is liable to the master for any damages which the master has been compelled to pay to a third person on account of the wrongful act or default of the servant, provided the master is himself free from fault.

CHAPTER XXXVII.

WRONGS TO INCORPOREAL PROPERTY.

Incorporeal

§ 490. Incorporeal hereditaments. hereditaments, or inheritable rights issuing out of corporeal property, have been described in a former chapter. These rights partake of the nature of the things out of which they issue, but, since the rights themselves can not be seen or handled, it is evident. that they are incapable of direct injury. Whatever injury is done must be consequential. Hence the remedies for direct wrongs are not applicable to incorporeal hereditaments. If one has a right of way across another's land, and it is interfered with so that he is deprived of its use, his remedy is not by ejectment, but by an action for the consequential damages or by an injunction. But where the conse quence of a wrong to an incorporeal right is also an injury to corporeal property, the remedies as for a direct wrong may be had. For instance, every landowner having an easement for lateral support, if his neighbor willfully and maliciously takes away the support and causes the land to fall, the owner may treat it as a direct wrong done by force to his land.

§ 491. Other incorporeal rights.-There is an important class of incorporeal rights which do not issue out of property in the sense that incorporeal hereditaments do, but on the contrary are the source out of

which the tangible property arises. This class embraces the subjects of copyrights, patents and trademarks. Public policy and the sense of justice dictate that one who creates anything should be permitted to enjoy the fruits of his labors. It is evident that in case of copyrights, patents and trade-marks, the substantial benefit to be derived by the creator of the thing in question lies in his having the exclusive right to reproduce or use it.

§ 492. Statutory provisions.-The constitution of the United States gives power to congress to secure to authors and inventors the benefit from their creations, for a limited time; and congress has passed acts for the purpose. Just what the provisions are as to the steps to be taken, it is not now material to inquire. Whenever the formalities prescribed are observed the writer or inventor has a monopoly for the period provided, and may have his remedy against one who infringes his right. He may procure an injunction, recover damages he has suffered, and recover profits made by others.

§ 493. Patents.-Without entering into the details of patent law, a few general principles may be stated. A patent is given for an invention, namely something created by man. Natural processes and principles can not be patented. The thing must be new and useful. A new method of combining things to produce results may be patented.

Infringement of patents may consist in making, using or selling the thing that is substantially covered by the patent. The person infringing may be held liable, whether he knew or did not know the

article was patented. An exception is made in favor of persons making or using the article for purposes of experiment only.

§ 494. Copyrights.-The copyright laws apply to printing of any kind, pictures, music and statuary, and confer upon the author the exclusive right to make, use or sell copies or the originals. The exclusive right extends to the whole as well as every substantial part of the thing copyrighted. So that, if there is a copy or imitation of any substantial part, it will be an infringement. As to what is a substantial part, the facts in each case must determine. The size of the part taken is not a decisive test, for the true value may be in the small part taken. For purposes of criticism, parts may be quoted, but if the review is a pretense for publishing a substantial copy, it is an infringement.

Whoever infringes the copyright of another is liable, whether it is done innocently or not. The intent is in general immaterial.

§ 495. Rights independent of statutes.-The monopoly granted under the copyright statute is enjoyed by the author after publication. Before publication, however, an author has legal rights in the product of his intellect, and these rights were recognized before the copyright statutes.

At common law, so long as an author did not publish his work to the world or abandon it to the public, he retained the right as property to make such use of it as he saw fit. He might, without losing his right, permit others to make a limited use of it. Whoever without the author's consent used his work

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