been invaded, and this rule has been adopted to punish the wrong-doer for his unlawful act.23

508. An original title may be acquired by intellectual labor, and under this head we shall consider the rights of an author in his writings called literary property, and of an inventor in his invention.

509. An author has an undoubted right over his unpublished compositions. No man has a right to publish the thoughts of another to the world, or to propagate their publication beyond the points to which he has given consent. But once committed to the public with his consent by printing, he is committed for ever. The questions of the author's right may be considered, first, with regard to the property in his unpublished works, and second, in those which have been published with his consent."

510. A variety of cases may arise as to the right in the author to restrain the publication of his works; these may be classed into those which relate to private letters, to publication by acting or reciting, to the gift or sale of the manuscript, and to books printed or in the printer's hands.

511. Private letters written by one individual to another remain the property of the writer; for some purposes there is a joint property in the right of the writer and the receiver, so that the latter will be restrained from publishing them without the consent of the writer or representatives.25 Their publication will not be restrained, however, when required for the purposes of public justice, nor where the author has authorized the publication.

26

512. Before the year 1856 the copy right laws did not include the acting of dramas on the stage. It was accordingly held that acting or reciting was not a publication, and the author did not thereby dedicate his work to the public, and another person could not take notes of the performance and act it himself. But the whole matter is now regulated by statute.28

2 Sharswood, Blackst. Comm. 405; and see 2 Kent, Comm. 365, 4th ed.; Poph. 38, pl. 2; Ward v. Eyre, 2 Bulstr. 323; 15 Ves. Ch. 442; The Odin, 1 C. Rob. Adm. 208; Brackenridge v. Holland, 2 Blackf. Ind. 377; Willard v. Rice, 11 Metc. Mass. 493; Pratt v. Bryant, 20 Vt. 333; Hesseltine v. Stockwell, 30 Me. 237; Inglebright v. Hammond, 19 Ohio 337; Robinson v. Holt, 39 N. H. 557; Beach v. Schmultz, 20 III. 185.

A distinction is taken between literary property which exists independently of statutes and copy right which is created by statute. Literary property has been defined as the right which entitles an author and his assigns to all the use and profit of his composition, to which no independent right is, through any act or omission on his or their part, vested in another person. It includes more than the right to multiply copies. Keene v. Wheatley, 9 Am. Law Reg. 44, 63.

25

Pope v. Curl, 2 Atk. Ch. 542; Thompson v. Stanhope, Ambl. Ch. 737; Perceval v. Phipps, 2 Ves. & B. Ch. Ir. 13; Gee v. Pritchard, 2 Swanst. Ch. 402; Granard v. Dunkin, 1 Ball & B. Ch. Ir. 207; Dennis v. Leclerk, 1 Mart. La. 297. These cases which restrained the publication of the letters of Pope, Swift and others, seem to rest mainly on the ground that the letters formed a literary composition; and in Wetmore v. Scovell, 3 Edw. Ch. N. Y. 515, an injunction was refused to prevent the publication of private letters of business when they possessed no attribute of literary composition, See also Hoyt v. Mackenzie, 3 Barb. Ch. N. Y. 320. This, however, seems to be too narrow a view. Ordinary business letters seem to be more the property of the receiver than private letters, and there may be cases requiring their public use, and this may have been intended. The true ground seems to be that the writer only confers upon the receiver the right to use the letters for the purpose for which they were manifestly intended at the time. They may be of value as literary compositions; still it is manifest that Pope never sent letters to his friends that they might use them for pecuniary gain. And the publication of private letters is certainly a violation of the confidence and secresy always implied in such correspondence. The courts will therefore restrain any such unwarranted publication, unless called for by interests more important. Story, Eq. Jur. 944–950; Woolsey v. Judd, 4 Duer, N. Y. 379.

Gee v. Pritchard, 2 Swanst. Ch. 427.

Coleman v. Wathen, 5 Term. 245; Macklin v. Richardson, Ambl. Ch. 694; Roberts v. Myers, 13 Law Rep. 397.

Act of 1856, ch. 169, 11 Stat. 138.

513. When compositions intended for publication or fit for it, by accident or donation, or any other title short of an authority to publish, come into the hands of another person, the possessor has no right to publish them, for the law protects the author in his right of reputation, as well as in his proprietary rights.29 514. A book in a printer's hands although printed, if not published, is still in the power of the author; but the printer may have a lien over the book, though he cannot publish it.

By act of congress it is provided that any person or persons who shall print or publish any manuscript whatever, without the consent of the author or legal proprietor first obtained (if such author or proprietor be a citizen of the United States, or resident therein), shall be liable to suffer and pay to the author or proprietor all damages occasioned by such injury, to be recovered by special action on the case, founded on this act, in any court having cognizance thereof; and the several courts of the United States empowered to grant injunctions to prevent the violation of the rights of authors and inventors, are hereby empowered to grant injunctions, in like manner, according to the principles of equity, to restrain such publication of any manuscript as aforesaid.

515. Before the right of an author was secured to him exclusively by statute, it was questionable when once his book was made public, whether he could prevent the publication of it by others.30 Several statutes were passed in England for this purpose. In the United States the right is secured to authors by certain acts of Congress. It extends to the author of a book, map, chart, or musical composition, print, cut, or engraving, for a limited time. The right thus secured is called a copyright.

:

516. In considering the subject of copy right we will take a view of the legislation of the United States; of the persons entitled to a copyright; for what it is granted; nature of the right; duration of the right; proceedings to obtain the right; requisites after the grant.

517. The constitution of the United States 31 authorizes Congress to secure to authors and inventors their respective writings and discoveries. In pursuance of this power several acts were passed which were repealed by the act of February 3, 1831, saving the rights of parties, and by this act and the acts supplementary thereto the subject is now regulated.32

518. The person must be the author and a citizen of the United States or resident therein, and the legal representatives of such person.33

29 Duke of Queensberry v. Shebbeare, 4 Burr. 2330; Southey v. Sherwood, 2 Mer. Ch. 435, 30 Millan v. Taylor, 4 Burr. 2303, 2417. This question has never been settled; but it is now well established that the rights of authors after publication are entirely regulated by statute, and the author has no exclusive rights after publication unless he has protected himself in the manner prescribed: Wheaton v. Peters, 8 Pet. 662; Clayton v. Stone, 2 Paine, C. C. 383; Blunt v. Patten, 2 Paine, C. C. 395; Dudley v. Mayhew, 3 N. Y. 12; Stowe v. Thomas, 2 Am. Law Reg. 228; per Grier, J. A publication of the work before copy right is a dedication to the public: Bartlett v. Crittenden, 5 McLean, C. C. 37; Pulte v. Derby, 5 McLean, C. C. 332.

31 U. S. Const. art. 1, s. 8.

32 Acts of Congr. Feb. 3, 1831, 4 Stat. 436; June 30, 1834, 4 Stat. 728; Aug. 10, 1846, 9 Stat. 106; Aug. 18, 1856, 11 Stat. 138; Feb. 5, 1859, 11 Stat. 379; Feb. 18, 1861, 12 Stat. 130; March 3, 1865, 13 Stat. 540; Feb. 18, 1867, 14 Stat. 395.

33 Act of 1831, sec. 1, 8. A "resident" must be a permanent resident, and a temporary residence is not enough, although the author has declared his intention under oath to become a citizen of the United States. Carey v. Collier, 56 Niles, Reg. 262. And although the legal assignee of the author may take out the copy right. Little v. Gould, 2 Blatchf. C. C. 366; this cannot be done where the author is a non-resident alien. Keene v. Wheatley, 9 Am. Law Reg. 45. The "author" entitled to a copy right must actually use intellectual labor in the preparation of the work copy righted. This may be done by compiling material as well as by original composition, but his own brains must enter into the work. It is not enough that he employ another to do the work, furnishing himself the

519. The copy right is granted for any book or books, map, chart, or musical composition which was made or composed, but not printed and published at the time of the passage of the act, or which may have been made or composed afterward, or any print or engraving which the author has invented, designed, etched, engraved, or worked, or caused to be engraved, etched, or worked from his own design.3

34

It is also granted for photographs.35

36

520. The persons to whom a copy right has been lawfully granted, have the sole right and liberty of printing, reprinting, publishing, and vending the thing for which the exclusive privilege has been given. And if the copy right is granted for any dramatic composition designed or suited for public representation, the author shall have the sole right of acting, performing or representing it, or causing it to be acted, performed or represented, on any stage or public place during the term of the copy right. But this must be understood with this qualification. The copy right is granted upon an implied condition that the work is not of an injurious nature; for if it be clearly inconsistent with the principles of public policy, or undoubtedly irreligious, libellous, or of an immoral and obscene description, the right will not be protected in equity or law. Prima facie, however, the copy right confers title, and the onus is on the other side to show clearly that notwithstanding the copy right there is an intrinsic defect in the title.38

A copy right may be assigned before its issue, and it will then issue to the assignee. Or it may be assigned after its issue in whole or in part. The assignment may include the term of twenty-eight years or this term and the extension. The assignment must be in writing, 40 and must be proved and acknowledged like deeds of land in the same district, and recorded within sixty days in the office where the original copy right is deposited and recorded."

521. The right extends for the term of twenty-eight years from the time of recording the title of the book, etc., in the office of the clerk of the court, as directed by law.42 But this right may be extended under certain regulations, for the further term of fourteen years. 43

522. The proceedings to obtain a copy right are very simple. The author, or his representative is only required to deposit a printed copy of the title of the book, etc., in the clerk's office of the district court of the district where the author or proprietor may reside. The clerk makes a record of it for the fee of fifty cents, and delivers to the party a copy under seal for the like fee.

523. The person to whom the copy right is granted is required to cause to be inserted in the several copies of each and every edition published, during the term secured, on the title page or on the page immediately following, if it be a book, or if a map, chart, musical composition, print, cut, or engraving, by

general scope of the work and the materials. One who employs an artist to make a picture cannot copy right it. A copy right is prima facie evidence that the owner is the author, and upon the whole evidence, the question of authorship is for the jury to decide. Binns v. Woodruff, 4 Wash. C. C. 53; Pierpont v. Fowle, 2 Woodb. & M. C. C. 46; Atwill v. Ferrett, 2 Blatchf. C. C. 46; De Witt v. Brooks, MS. Nelson J. 1861; Reed v. Carusi, 8 Law Rep. 411.

Act of 1831, s. 1.

36 Act of 1831, s. 1.

35 Act of March 3, 1865, s. 1.

Act of Aug. 18, 1856. Before this act authors did not have the exclusive right of acting. Roberts v. Myers, 13 Law Rep. 397.

See Lawrence v. Smith, Jac. Ch. 472.

40 Gould v. Banks, 8 Wend. N. Y. 565.

39 Roberts v. Myers, 13 Law Rep. 401.

"Act of June 30, 1834. The record is notice to all the world, and an unrecorded assignment is void as to subsequent purchasers without notice. Little v. Hall, 18 How. 171; but good between the parties; Webb v. Powers, 2 Woodb. & M. C. C. 510.

42 Act of 1831, s. 1.

43 Act of 1831, s. 2, 3, 16.

causing to be impressed on the face thereof, or if a volume of maps, charts, music, or engravings, upon the title or frontispiece thereof, the following words, viz.: "Entered according to act of Congress, in the year, by A B, in the Clerk's Office of the District Court of (as the case may be.)

524. The author or proprietor of any such book, etc., shall, within three months from the publication of said book, etc., deliver or cause to be delivered a copy of the same to the clerk of said district, and the clerk shall once a year transmit lists of all the records and all the books received by him to the secretary of the interior, to be preserved in his office.

The author or proprietor must within one month of the date of publication transmit a copy of the book, etc., copy righted to the library of Congress at Washington. If he fails to do this he is liable to a penalty of twenty-five dollars, and it is the duty of the librarian to make a demand in writing, and if it is not delivered within one month after such demand, the right of exclusive publication shall be forfeited."

The proceedings in relation to recording, etc., must be repeated when a copy right is renewed; and a copy of the record published for four weeks in some newspaper; and a copy of a subsequent edition, if it has additions, must be sent to the library of congress.

45

525. A man's invention is as much his property as any thing he could acquire in any way whatever, and he may therefore sell it, and in equity he is entitled to all the benefits arising from it. But unless it has been secured to him by law, others may use it and receive all the benefit of his genius and his labor. To prevent this, most governments have given to inventors the exclusive right of making, and vending to others to be used, their inventions. In the United States this right is secured by certain acts of congress. In the examination of this subject we will consider: the legislation of the United States; who may be a patentee; for what invention a patent is granted; the proceedings to obtain a patent; the patent; the duty or tax on patents; the requisites after the patent; duration of the right.

47

526. The power to regulate the subject of inventions is vested in congress," and it rests in the sound discretion of the legislature to say when, and for what length of time, and under what circumstances the patents for inventions shall be granted. Congress may, therefore, grant a patent which shall operate retrospectively by securing to the inventor, for the future, the use of his invention, though it was in public use and enjoyed by the community at the time the act was passed.48

The first act of the national legislature on the subject of patents was passed on the 10th of April, 1790; several supplements soon followed; the acts of the 7th of February, 1793, of 7th of June, 1794, of 18th of April, 1800, of 3d of July, 1832, and of 13th of July, 1832, were intended to amend the system. But these having created some confusion, and the subject requiring new provisions, the act of 4th of July, 1836, repealed the whole of them, leaving them in force only so far as to save rights acquired under them, and for completing incipient proceedings. This act and those passed since now regulate the subject."

44 Act of March 3, 1865, s. 2, 3; Act of February 18, 1867.

45 Act of February 3, 1831, s. 2, 3.

46 Act of March 3, 1865, sec. 4. As to the violation of copy rights, see beyond, 23162320. As to the remedies for such violation, see beyond, 3785–3789.

47 U. S. Const. Art. 1, s. 8, n. 8.

48 Blanchard v. Sprague, 3 Sumn. C. C. 535, 2 Stor. C. C. 164.

49 Acts of Congress July 4, 1836, 5 Stat. 117; March 3, 1837, 5 Stat. 191; March 3, 1839, 5 Stat. 353; Aug. 29, 1842, 5 Stat. 543; Aug. 6, 1846, 9 Stat. 62; May 27, 1848, 9 Stat. 231; March 3, 1849, 9 Stat. 395; March 3, 1851, 9 Stat. 617; Aug. 30, 1852, 10 Stat. 75; Fcb. 18, 1861, 12 Stat. 130; March 2, 1861, 12 Stat. 246; March 3, 1863, 12 Stat. 796; June 25, 1864, 13 Stat. 194; March 3, 1865, 13 Stat. 533; June 27, 1866, 14 Stat. 76.

527. The patentee may be any person or persons having discovered or invented the thing to be patented; whether he be a citizen of the United States or an alien, he has a right to a patent on fulfilling the requirements of the law.50 Patents for designs are issued to citizens or to aliens who have resided one year in the United States, and taken the oath of intention to become citiTo entitle a party to a patent he must not only be an inventor, but the original inventor-that is, the first inventor who reduces his invention to practice.52

zens. 51

528. On the death of the inventor before the patent is issued, it shall be granted to the executor or administrator of such person in trust for the heirs at law of the deceased, in case he shall have died intestate; but if otherwise, in trust for his devisees.53

54

529. If the inventor assigns his right, the patent shall be granted to his assignee, on his recording the assignment and fulfilling other requirements of the law.

530. A patent will be granted for the invention or discovery of any new and useful art, machine, manufacture or composition of matter, or any new and useful improvement on any art, machine, manufacture or composition of matter not known or used before such discovery or invention, and not, at the time of the application for a patent, in public use or on sale with the consent or allowance of the inventor or discoverer.55

The thing to be patented must be an invention or discovery; it must be new and useful.

To make an invention useful, it must be one not injurious or mischievous to society and not frivolous or insignificant, but it must benefit the public in some degree, though the degree of utility is immaterial.56

The invention or discovery must be something which the inventor has found out; it must be new, but not every new thing can be patented. There must be sufficient novelty to have called for an exercise of the inventive faculty. It makes no difference whether the inventive faculty was actually exercised or whether the invention was the result of accident; but the character of the invention must be such that the inventive faculty may have been exercised. A man cannot patent the application of old materials or machines to new uses analogous to the old uses. The new uses must be different in general character. In many cases the utility of the invention may prove it to be new and the product of invention, for it is concluded that any thing of great utility would not remain undiscovered unless it required intellectual effort to discover it. Upon

50 Act of July 4, 1836, s. 6.

51 Act of March 2, 1861, s. 11.

52 Woodcock v. Parker, 1 Gall. C. C. 438; Read v. Cutter, 1 Stor. C. C. 590.

53

Act of July 4, 1836, s. 10.

54 Act of March 3, 1837, s. 6.

5 Act of July 4, 1836, s. 6. The term art is used where the patentee has invented a new process of operation, either by the use of original or of old contrivances. It is principally used where there is nothing peculiar in the devices employed, which may be varied indefinitely; but the patentee must show some particular device for carrying out his invention, but his patent includes all modes of carrying out the art. Hall v. Jarvis, 1 Webst. Pat. Cas. 100; Kneass v. Schuylkill Bank, 4 Wash. C. C. 9; McClurg v. Kingsland, 1 How. 204. A patentable machine is a new mechanical device or a new combination of old mechanical devices for the purpose of effecting a result, whether the result be new or old. The process performed by the machine may be the subject of one patent, and the machine of another. Corning v. Burden, 15 How. 267. A manufacture is a combination of materials to produce an article of value not a machine. A composition of matter includes medicines and compositions used in the mechanical arts.

Lowell v. Lewis, 1 Mas. C. C. 182; Langdon v. DeGroot, 1 Paine C. C. 203; Curtis, Pat. 106.