PART I

publishing it. On the part of the defendant it was contended that the poem in question, from its libellous tendency, was of CHAPTER II. such a nature that there could be no copyright in it; and the case of Dr. Priestley and that of Walcot v. Walker were referred to. Lord Eldon, in refusing the injunction, stated that he remained of the same opinion as that which he entertained in deciding the case of Walcot v. Walker. "It is very true," he proceeded, "that in some cases it may operate so as to multiply copies of mischievous publications by the refusal of the Court to interfere by restraining them; but to this my answer is, that, sitting here as a judge upon a mere question of property, I have nothing to do with the nature of the property, nor with the conduct of the parties, except as relates to their civil interests; and if the publication be mischievous, either on the part of the author or of the bookseller, it is not my business to interfere with it."” (a)

One of the most important cases decided on this subject came before Lord Eldon in 1822. In Lawrence v. Smith, (b) the Lord Chancellor dissolved an injunction which had been obtained upon an ex parte motion, to hinder the publication of a pirated edition of certain "Lectures on Physiology,

(a) An American writer (Curtis) on Copyright urges some weighty objections to the doctrine laid down by Lord Eldon in the above case. In the case of Dr. Priestley the owner of the manuscript was seeking damages for the destruction of what might have been the source of pecuniary profit, and the case goes only to this, that a work existing in manuscript may be of such a character that the author cannot make lawful profits by its publication; and in this sense it may be said that there can be no property in such a work. But this cannot justify the very different doctrine that the author of an unpublished manuscript of a character not innocent or doubtful cannot have the interposition of a court of equity to restrain its publication by a person who is about to publish it against his will. There is a wide difference between seeking protection for a published work of a non-innocent character and the mere assertion of a right to possess and control, to publish or not to publish one's own manuscript. There are two kinds or degrees of property in a literary work, one consisting in the right to take the profits of a book when published, the other in the right to the exclusive possession and control of a manuscript, or the right to publish or withhold from publication altogether. In no case has it been considered that the author's right depends on his intention to publish and to make a profit; but the cases proceed upon the ground of a right of property, by which seems to be intended a right to the possession and control of the manuscript, and to publish or to withhold it from publication; and this holds equally in the case of a non-innocent and an innocent work. When, therefore, an author has not published, or does not intend to publish a work existing in manuscript, but, on the contrary, desires and intends to withhold it from publication, the question as to its innocence does not arise, because that question affects only so much of his right of property as consists in the right to take the profits of the publication.

(b) Jac. 471.

PART L

CHAPTER II.

Zoology, and the Natural History of Man," which had been delivered by the plaintiff at the College of Surgeons, and afterwards published by him. In support of the motion to dissolve the injunction, it was urged that the nature and general tendency of the work were such, that it could not be the subject of copyright, as it contained several passages hostile to natural and revealed religion, impugning the doctrines of the immateriality and immortality of the soul. And on this ground Lord Eldon refused to continue the injunction, and left the plaintiff to bring his action at law, if he considered that he had any chance of succeeding there. "Looking," said his lordship, "at the general tenor of the work, and at many particular parts of it, recollecting that the immortality of the soul is one of the doctrines of the Scriptures, considering that the law does not give protection to those who contradict the Scriptures, and entertaining a doubt-I think a rational doubt-whether this book does not violate that law, I cannot continue the injunction. The plaintiff may bring an action, and when that is decided he may apply again." As to the injunction originally granted, ex parte, Lord Eldon said, "I take it for granted that when the motion for the injunction was made, it was opened as quite of course; nothing probably was said as to the general nature of the work, or of any part of it; for we must look not only at the general tenor, but at the different parts; and the question is to be decided, not merely by seeing what is said of materialism, of the immortality of the soul, and of the Scriptures, but by looking at the different parts and inquiring whether there be any which deny, or which appear to deny, the truth of Scripture, or which raises a fair question for a court of law to determine whether they do or do not deny it."

Two later instances of the application of the same doctrine are mentioned in Mr. Jacob's note to the case last cited. In Murray v. Benbow (February, 1822), the Lord Chancellor (Eldon) refused an injunction to restrain the defendant from publishing a pirated edition of Lord Byron's poem "Cain," on the ground of a doubt whether the poem was not intended to bring into discredit that portion of Scripture history to which it relates. And in 1823 ViceChancellor Sir John Leach, on similar principles, dissolved an injunction which had been obtained to restrain the publication of a pirated edition of a portion of the poem of "Don Juan." In this case, however, the Vice-Chancellor ordered that the defendant should keep an account. (a)

(a) See also Hime v. Dale, referred to 2 Camp. 27.

A doubt has been expressed (a) whether the doctrines laid down in these cases would be strictly adhered to in the present day; but, notwithstanding the more enlarged and tolerant views which are now generally entertained on subjects of a religious as well as of a political nature, there seems to be no disposition on the part of our courts of common law to relax the strict rules of former times as to contracts of an irreligious nature. (b) And so long as the test of the propriety of equitable interposition continues to be the ability of the author to sustain an action at law, it should seem that in all respects the author's title to relief against the infringement of his copyright, either at law or in equity, is still dependent on his work being innocent in the sense already described. In Stockdale v. Onwhyn, (c) the Court of King's Bench, in 1826, held that no action could be brought for the infringement of an asserted copyright in a book entitled "Memoirs of Harriett Wilson," the book on examination appearing to be the history of the life and amours of a courtesan, and containing anecdotes either libelling or ridiculing the various persons with whom she professed to have had communication. Holroyd, J., succinctly states the principle on which the courts proceed in dealing with works of this character: (d) "The ground of this action, if any, must be that the defendant has worked an injury to the plaintiff's exclusive right of publishing the book in question; now it is criminal in him to publish such

(a) Phillips on Copyright, p. 25.

(b) In the recent case of Cowan v. Milbourn (L. Rep. 2 Ex. 230; 16 L. T. N. S. 290; 36 L. J. 124, Ex.), where an action had been brought for breach of a contract to let rooms to the plaintiff, the defendant set up as a defence, that after contracting to let the rooms he discovered that the plaintiff intended to use them for the purpose of delivering lec"tures of an irreligious, blasphemous, and illegal character-lectures maintaining, amongst other things, that the character of Christ is defective and His teaching misleading, and that the Bible is no more inspired than any other book. The Court of Exchequer held the defence to be a sufficient one, that the publication of such doctrines was blasphemy, and that therefore the purpose for which the plaintiff intended to use the room was illegal, and the contract one which could not be enforced at law. The remarks of Bramwell, B., in giving his judgment, are deserving of attention. "It is strange," he says, "that there should be so much difficulty in making it understood that a thing may be unlawful, in the sense that the law will not aid it, and yet that the law will not immediately punish it. If that only were unlawful to which a penalty is attached, the consequence would be that, inasmuch as no penalty is provided by the law for prostitution, a contract having prostitution for its object would be valid in a court of law."

(c) 5 B. & C. 173; 7 D. & R. 625; 2 C. & P. 163.

(d) 7 D. & R. 629; see also Poplett v. Stockdale (Ry. & M. 337).

PART I.

CHAPTER II

PART I.

a book: then he has no right to publish it, and having no CHAPTER II. right, he has sustained no injury, and has no ground of action."

another's name

deceive.

.

Publication in The analogy of the cases, where it has been held that no with intent to copyright exists in a work subversive of good order, morality, or religion, has been extended (a) to the case of an author publishing a book in the name of another, with a deliberate design to deceive the public, by inducing them to believe that the work is the original work of the author named, and thereby to obtain from the purchaser a greater price than he would otherwise pay. "The publisher," said Tindal, C.J., with reference to such a case, "seeks to obtain money under false pretences; and as not only the original act of publishing the work, but the sale of copies to each individual purchaser falls within the reach of the same objection, we think the plaintiff cannot be considered as having a valid and subsisting copyright in the work, the sale of which produces such consequences, or that he is capable of maintaining an action in respect of its infringement." The book in which the plaintiff claimed copyright in this case was entitled "Evening Devotions, or the Worship of God in Spirit and in Truth, for Every Day in the Year; from the German of C. C. Sturm." The defendant set up as a defence that several of the works of Sturm had been translated into English, and were much valued, and that plaintiff knowing that, and intending to defraud and deceive the public, caused the book in question to be written, and had falsely, fraudulently, and deceitfully published the same to the public, as and for a translation of an original work written in German by C. C. Sturm. On demurrer it was held that the facts stated in the defendant's plea were sufficient to negative the existence of a valid copyright in the plaintiff, and consequently to preclude him from maintaining any action for piracy. The cases," said the Chief Justice, "in which a copyright has been held not to subsist, where the work is subversive of good order, morality, or religion, do not, indeed, bear directly on the case before us; but they have this analogy with the present inquiry, that they prove that the rule which denies the existence of copyright in those cases, is a rule established for the benefit and protection of the public. And we think the best protection that the law can afford to the public against such a fraud as that laid open by this plea, is to make the practice of it unprofitable to its author?"

The case is different, however, where the misrepresenta(a) Wright v. Tallis (1 C. B. Rep. 893).

PART L

tion as to authorship is harmless and innocent, as in the case of many books of instruction and amusement (e.g. Walpole's CHApter II, "Castle of Otranto") which have been published as translations, although in reality original works, or which have been published under an assumed instead of a true name, as has been done in the case of many books of voyages, travels, biography, works of fiction or romance, and even of science and instruction. (a) "There is not found in any one of those cases any serious design on the part of the author to deceive the purchaser, or to make gain and profit from him by the false representation; the purchaser, for anything that appears to the contrary, would have purchased at the same prices if he had known that the name of the author was an assumed and not a genuine name; or had known that the work was original and not translated."

tures, drawings,

The same principle of law which applies to writings of a immoral piclibellous, immoral, or irreligious kind would, of course, apply and photographs equally to pictures, drawings, and photographs of a similar character. Pictures and drawings may be libellous as well as writings, and the same may be said of photographs, which are a species of pictures. And it is to be observed that the term libel includes, besides libels defamatory of individuals, such writings as are of a blasphemous, treasonable, seditious, or immoral kind, the publication of any of which is now a misdemeanor, and subjects the person by whom it was composed, written, printed, or published, to fine and imprisonment. (b) There cannot, of course, be copyright in pictures, drawings, or photographs which are libellous in any of the senses above mentioned. And the same doctrine is applicable to obscene pictures, prints, drawings, or other representations, the public selling or exposing for public sale or to public view of these being punishable with fine or imprisonment, or both, with hard labour at the discretion of the court.(c) It was long since determined (d) that an action would not lie to recover the value of prints of an obscene, immoral, or libellous tendency. And Lord Ellenborough, in Du Bost v. Beresford, (e) held that if a picture destroyed by the defendant was a libel upon the individuals introduced into it, the owner of the picture was at most entitled to recover only the value of the canvas and paint which formed its component parts.

Of innocent productions there is also a species of copy- Letters. right on the part of the writer in the private letters which

(a) 1 C. B. Rep. 906.

(b) 4 Steph. Black. 345.

(c) 14 & 15 Vict. c. 100, s. 29; see also 20 & 21 Vict. c. 83.

(d) Fores v. Johnes (4 Esp. 97).

(e) 2 Camp. 511.