be employed in playing the different parts of the piece, or many of them. The plaintiff owns for this country whatever exclusive rights Gounod retained or could retain after the publication of the book. The defendant applied to the plaintiff to buy the exclusive right of performing the oratorio in Boston, but was told that negotiations were pending with the Handel and Haydn Society, of this city, for that right. These negotiations resulted in a purchase by that suciety. The defendant appears to have gathered, from something which was said to him by the plaintiff, that the negotiations with the Handel and Haydn Society were likely to fall through, and to have begun his preparations as if this were already sure. When he heard that the bargain was made, he undertook to proceed, and to advance his performance so as to bring out Gounod's "Redemption" before the time fixed by the society for their first performance, and accordingly advertised his own for next Sunday, January 21st. Thereupon this bill was filed, and the defendant modified his advertisement, by advice of counsel, so that, in the part material to this case, it read thus: BOSTON THEATER. SUNDAY EVENING, JANUARY 21, 1883, GOUNOD'S REDEMPTION, With New Orchestration arranged from indications in the published Piano-forte Score. It is admitted, for the purposes of this motion, that the defendant has not copied Gounod's score, but has procured the band parts to be made by some unnamed composer or arranger of music. Two questions have been ably argued before us: First, whether the publication of the book, with the score for the piano and the marginal notes, gives to every one the right to reproduce or copy the orchestral score if he can; second, whether a new orchestration, not copied from the original by memory, report, or otherwise, but made. from the book, is an infringement of the plaintiff's rights. These were the points argued, for it was admitted that a performance on the stage is not such a publication as will destroy the exclusive common-law right of the author and his assigns to a dramatic or lyrical composition of this sort, though the composer is an alien, not entitled to the benefits of our law of statutory copyright. Keene v. Wheatley, 4 Phil. 157; Boucicault v. Fox, 5 Blatchf. 87; Crowe v. Aiken, 2 Biss. 208; Palmer v. De Witt, 47 N. Y. 532; Tompkins v. Halleck, 133 Mass. 32.. 1. It is clear that the book is common property in the United States. What does it dedicate to the public? It was to instruct us upon this point that experts were examined; and their opinions were unanimous that the score for the piano contains all the substance of the oratorio, but that the limitations of the instrument are such that it is impossible to express in such a score what the orchestra expresses with its various instruments, and that any one who adapts such a score for an orchestra must add a great deal to it, not in the way of new harmonies and melodies, but in the way of carrying out and applying them to produce the proper effects upon notes and combinations impossible for the piano. An orchestration can be made from the score by a competent arranger, and several such may be found in Boston, but the precise effects, called by the witnesses "color," which a composer gives to the orchestral parts cannot be reproduced, because the possible variations which may be produced by slight changes in the use of the several instruments are infinite. Twelve composers would make 12 different orchestrations. It may be doubted whether Gounod himself could reproduce it, if we can suppose him to have no aid from memory. We understand by this evidence that all the oratorios thus made would be somewhat like the original, and all would differ more or less from it. It is conceivable that some one might be considered better than Gounod's, if made by an abler composer than he; but the chances are that they would be much worse; and all might be, properly enough, called imitations of his work. These being the facts, we consider it to be clear that a dedication to the public of the arrangement for the piano does not dedicate what it does not contain, and what cannot be reproduced from it. Therefore, the defendant does not in fact possess, and has no right to perform Gounod's "Redemption" as set for an orchestra. If he should have the opportunity to copy it he would not be permitted to perform it. 2. We find more difficulty in deciding whether the plaintiff's rights are infringed by a new orchestration. It is held in England that the publication of precisely such a book as this does not authorize a person, without license, to do precisely what this defendant has done. This was the law of England when the book was published. Boosey v. Fairlie, L. R. 7 Ch. Div. 301; affirmed, 4 App. Cas. 711. A similar decision was announced in this country in 1882, in a very able and The ar vigorous opinion by Chancellor TULEY, of the circuit court of Cook county, Illinois. Goldmark v. Collmer, (printed by itself in a pamphlet.) In the English case there was no dissent in either the court of appeal or the house of lords, and the decision of the vice-chancellor, which was reversed, was on a technical point of registration, though he did intimate that any one might take the music by memory, if there were no copyright, which is not the law of this country. Still, in that case, the infringement was almost taken for granted. gument against it, which was urged here, and is given by his able and suggestive work on Copyright, 609, is this: ordinary law, applying to books, any one may make such use as he can of what he finds in a copyrighted work, if he does not copy from it; a fortiori, if he can reconstruct an opera or oratorio from a book" which is common property, without copying the orchestral score which is protected, he is blameless." Drone in "By the This argument has a logical and consistent appearance, but, as applied to a musical work of this kind, the practical objections are very great. Such a work is a single creation, of which the orchestration is an essential part; every reproduction of it from something else is necessarily an imperfect imitation, which, nevertheless, occupies the same field, and may ruin the original. In this respect an opera is more like a patented invention than like a common book; he who shall obtain similar results, better or worse, by similar means, though the opportunity is furnished by an unprotected book, should be held to infringe the rights of the composer. very well stated by Chancellor TULEY.. some importance is that it would be very cases, whether memory had not had some part in the reproduction. If necessary to the logic of the argument, we might, perhaps, hold that the publication of the piano score is a restricted dedication of that and nothing more. This seems to be the opinion of the English judges, for they appear to have thought that the exact orchestration could be written from the book by any skilled arranger. This view of the subject is Another practical point of difficult to prove, in many Lastly. It is plain that the defendant has undertaken to represent Gounod's full score. Even his modified advertisement, while it may notify experts that the reproduction cannot be exact, is calculated to express to the public that Gounod's work in its entirety is to be performed by him for the first time in Boston; and he hastened his preparations and changed the day to an earlier one for the very purpose of anticipating the performance by the plaintiff's assigns. Under these circumstances infringement appears to us to be sufficiently ad 1 mitted for the purposes of this motion, even if it were otherwise doubtful. Motion granted. " Case, See Hubbard v. Thompson, 14 FED. REP. 689; The "Mark Twain Id. 728; Yuengling v. Schile, 12 FED. REP. 97; Mackaye v. Mallory, Id. 328; Chapman v. Ferry, Id. 693, and note, 696; Ehret v. Pierce, 10 FED. REP. 553; Burton v. Stratton, 12 FED. REP. 696, and note, 704; Shaw Stocking Co. v. Mack, Id. 707, and note, 717. THE CHASE. (District Court, 8. D. Florida. December, 1882.) 1. STATE PILOTAGE LAWS. State laws conferring upon local boards power to fix rates of pilotage are not void as granting powers which may not be delegated. 2. SAME. They are enacted by a power originally within the states and not by that conferred by the United States. 3. SAME. They need not be general and uniform throughout the state, but may be regulated according to local needs. 4. SAME-POWER TO FIX RATES. The power to fix and determine rates also authorizes the determining what proportion of the regular rates may be demanded when services are tendered and not accepted. 5. STATUTE-REPEALING CLAUSE. It is not necessary that a repealing clause be embodied in an act; if the substance of the previous act is inconsistent with that of the subsequent one it is repealed by implication. LOCKE, D. J. The legislature of Florida, by the act of February 27, 1872, established a certain schedule of rates of pilotage, which should be paid a pilot by any vessel entering any port of the state, when spoken, whether his services were accepted or not; but by the act of March 7, 1879, it subsequently declared that the several boards of pilot commissioners for the several ports of the state should determine the rates of pilotage which should be paid by any vessel at their ports, such rate not to be greater than those then provided. Under this act the pilot commissioners of the port of Key West established a set of rules and regulations fixing a schedule of rates, and providing that whenever a vessel was spoken, and the services of a pilot were not accepted, the vessel should be compelled to pay but one-half the regular rates. It is alleged, and not denied, that the libeled vessel in this case was spoken while leaving port on a foreign voyage, but did not accept the services of the pilot, and the only question is whether the pilot libeling is entitled to full rates, under the first act of the legislature, or but half the amount, under the regulations of the board of the pilot commissioners. It has been earnestly contended in behalf of the libelant that the state has acted by authority delegated by congress, and the legislature had no power to redelegate it to any inferior body; that the constitution of the state requires that all laws shall be general and not local; and that since the original act was not repealed by any positive repealing clause it is still in force and takes precedence. The act of congress of August, 1789, re-enacted in section 4235, Rev. St., declares that "all pilots in the ports of the United States shall continue to be regulated in conformity with the existing laws of the states, respectively, or with such laws as the states may re spectively enact for the purpose.' Questions involving this same subject, if not the exact point, have been before the supreme court in several cases, and frequently referred to in opinions upon kindred matters. The question which has brought the matter of pilotage legislation at all under the jurisdiction or control of the federal government has been that it was a regulation of commerce, and the power of making such regulations had been by the constitution delegated to congress. The first case in which the question was discussed was Gibbons v. Ogden, 9 Wheat. 207. The language of the court there was: "Although congress cannot enable a state to legislate, congress may adopt the provisions of a state on any subject. When the government of the Union was brought into existence it found a system for the regulations of its pilots in full force in every state. The act which has been mentioned adopts this system, and gives it the same validity as if its provisions had been specially made by congress. The act unquestionably manifests an intention to leave this subject entirely to the states until congress should think proper to interfere." Again, in Cooley v. The Board of Port Wardens of Philadelphia, 12 How. 299, it is declared: |