No Rights Lost by Parting with Manuscript. When the owner parts with his manuscript, he does not transfer the exclusive right to copy it, unless there be an express or implied agreement to that effect. Where the second Lord Clarendon had given to Mr. Gwynne the manuscript of his father's History of the Reign of Charles II., and said that "he might take a copy thereof, and make use of the same as he should think fit," the court held, "it was not to be presumed that Lord Clarendon, when he gave a copy of the work to Mr. Gwynne, intended that he should have the profit of multiplying it in print; that Mr. Gwynne might make every use of it except that." And so when Lord Chesterfield told Mrs. Stanhope that she might keep certain letters which he had written to his son, whose widow she was, it was held that he "did not mean to give her leave to print and publish them." 2 Southey did not lose his rights in his manuscript by letting it remain twenty-three years in the possession of a bookseller.3 "To make a gift of a copy of the manuscript," said Mr. Justice McLean, "is no more a transfer of the right or abandonment of it, than it would be a transfer or an abandonment of an exclusive right to republish, to give the copy of a printed work." 4 1 inseparable incidents of the property; and the author or proprietor of a manuscript or picture possesses that right as fully, and to the same extent, as the owner of any other personal property, the same being incident to the ownership. Sales may be absolute or conditional, and they may be with or without qualifications, limitations, and restrictions; and the rules of law applicable in such cases to other personal property must be applied in determining the real character of a sale of literary property. Proper attention to these considerations will furnish the true explanation of many, if not all, the cases referred to by the complainant, which are supposed to support the second proposition for which he contends. Beyond doubt the right of first publication is vested in the author; but he may sell and assign the entire property to another; and if he does so, his assignee takes the entire property, and it is a great mistake to suppose that any act of Congress, at the date of the sales of the picture in this case required that such an assignment should be in writing; and the pleadings show that the sale and delivery in each case were absolute and unconditional, and without any qualification, limitation, or restriction, showing that the entire property was transferred from the complainant and became vested in the respondent." 1 Duke of Queensbury v. Shebbeare, 2 Eden, 329. 2 Thompson v. Stanhope, Amb. 737. 3 Southey v. Sherwood, 2 Meriv. 435. The injunction was refused on other grounds. 41. 4 Bartlett v. Crittenden, 5 McLean, But an unconditional sale of a painting is a transfer of the entire property in it.1 Limited Assignment. The owner may make an absolute or a limited assignment of his rights. He may convey the exclusive right to publish his manuscript in one country, and reserve to himself the exclusive right of publication in another.2 So also he may transfer the sole liberty of representing an unpublished drama in any place, without parting with the similar right for any other place. Foreigners' Rights. Whatever may be the disabilities of an alien under the copyright statutes, his rights at common law are the same as those of a citizen. "This incorporeal right or property may be possessed by any one who may acquire or hold personal property in England, as far as the right of property depends upon the common law. The right or property is merely personal; and an alien friend, by the common law, has as much capacity to acquire, possess and enjoy such personal right or property as a natural-born British subject." 5 "The alienage of the author," said the New York Court of Appeals, "is no obstacle to him or his assignee in proceeding in our courts for a violation, or to prevent a violation of his rights of property in his unpublished works.” 6 1 Parton v. Prang, 3 Cliff. 537. See also Turner v. Robinson, 10 Ir. Ch. 121, 510. 2 See Chap. VI. Calvin's case (7 Coke, 17 a), it was held that an alien friend may, by the common-law, have, acquire, and get within the realm by gift, trade, or other 3 See Chap. XV., Transfer of Play- lawful means, any treasure or goods right. 4 Jefferys v. Boosey, 4 H. L. C. 815; Keene v. Wheatley, 9 Am. Law Reg. 33; Crowe v. Aiken, 2 Biss. 208; Palmer v. De Witt, 47 N. Y. 532. 5 Wightman, J., Jefferys v. Boosey, 4 H. L. C. 885. By the common law of England," said Maule, J., "aliens are capable of holding all sorts of personal property and exercising all sorts of personal rights." Ibid. 895. 6 Palmer v. De Witt, 47 N. Y. 540. "Real property," said Allen, J., in delivering the opinion of the court, 538, "is governed by the lex loci rei sitæ, and an alien can only acquire and have title as permitted by the local law. But not so as to personalty. In personal whatsoever, as well as any Englishman, and may maintain action for the same.' This has always been accepted as the common law of the United States. An alien friend may resort to the tribunals of this State for the prosecution of any right recognized by our laws, or the redress of any wrong cognizable by our courts. The right to literary property is as sacred as that to any other species of property. The courts of the State are open to an alien friend pursuing his property, and seeking to recover it from a wrong-doer; and there is nothing in any positive law, or in the policy of the government, which would close the door against the same alien friend VIOLATION OF COMMON-LAW RIGHTS. The owner's common-law rights are invaded when, without his consent, his manuscript is published in print,1 when his dramatic or musical composition is publicly performed, or when copies of his work of art are either publicly circulated or exhibited. He is entitled to prevent or to restrain by injunction the unlawful use of his work, and to recover by an action at law for the damages he has sustained. There is no By Public Reading or Delivery of Lecture. reported case in which it has been expressly held that the unauthorized delivery in public of an unpublished lecture, or the public reading of a manuscript, is a violation of the owner's common-law rights. But the principle is clear that such use of an unpublished production is piratical. It is the same in principle as the unlicensed representation of a manuscript play. When Abernethy, the distinguished surgeon, sought to restrain the publication in the Lancet of unpublished lectures which he had delivered at St. Bartholomew's Hospital in London, Lord Eldon was "clearly of opinion that when persons were admitted as pupils or otherwise to hear these lectures, although they were orally delivered, and although the parties might go to the extent, if they were able to do so, of putting down the whole by means of shorthand, yet they could do seeking protection for the fruits of his mental labor, by restraining its publication against his wishes. The protection offered by the common law to literary labor is very slight at the best; but, such as it is, it is accorded to an alien friend and citizen alike, and both are regarded with equal favor. "In declaring the rules of law and applying legal remedies for the redress or prevention of wrong, there is no distinction between the right of the banker to his bills and bonds, embezzled and found here in the possession of a wrong-doer, and the right of an author to his manuscript clandestinely or surreptitiously taken and brought here for publication, to his prejudice and the destruction of all its value as property. Both resort to the courts for the protection of acknowledged rights of property, and are entitled to the remedies given by law." 1 Br. Webb v. Rose, cited 4 Burr. 2330; Forrester v. Waller, Ibid. 2331; Duke of Queensbury v. Shebbeare, 2 Eden, 329; Macklin v. Richardson, Amb. 694; Millar v. Taylor, 4 Burr. 2303; Abernethy v. Hutchinson, 1 Hall & Tw. 28. Am. Bartlett v. Crittenden, 4 McLean, 300, 5 Id. 32; Palmer v. De Witt, 47 N. Y. 532; Boucicault v. Hart, 13 Blatchf. 47. To the same effect are the cases in which the publication of letters has been enjoined, cited post, p. 128, notes 1, 2, 3. 2 See Chap. XIII. 3 Prince Albert v. Strange, 2 De G. & Sm. 652; on ap. 1 Mac. & G. 25; Turner v. Robinson, 10 Ir. Ch. 121, 510. that only for the purposes of their own information, and could not publish for profit that which they had not obtained the right of selling." 1 By Copying Works of Art. In Turner v. Robinson,2 the defendant was charged with piracy, in having made for sale copies of a painting representing the death of Chatterton. He denied direct copying, but admitted that he had seen the original while on exhibition, and said that he had made his photographs from an arrangement of figures, objects, and scenery, which he had prepared in his own gallery. He further admitted that he had made the arrangement from his recollection of the painting, and with a view of presenting a stereoscopic photograph of the same representation as that given by the painting. The court did not hesitate to declare that this was an unlawful use of the plaintiff's property. "The Stereoscopic Slides," said the Lord Justice of Appeal, "are not photographs taken directly from the picture, in the ordinary mode of copying; but, they are photographic pictures of a model itself copied from, and accurately imitating in its design and outline, the petitioner's painting. It is through this medium that the photograph has been made a perfect representation of the painting. Thus the object contrived and achieved, and the consequent injury, are the very same as if the copy had, in 1 Abernethy ". Hutchinson, 1 Hall & Tw. 40. Lord Eldon, however, doubted whether there could be property in lectures which had not been reduced to writing, and granted an injunction on the ground of breach of confidence. In Keene v. Kimball, 16 Gray (82 Mass.), 551, Hoar, J., said: "We do not intend in this decision to intimate that there is any right to report, phonographically or otherwise, a lecture or other written discourse which its author delivers before a public audience, and which he desires again to use in like manner for his own profit, and to publish it without his consent, or to make any use of a copy thus obtained. The student who attends a medical lecture may have a perfect right to remember as much as he can, and afterward to use the information thus acquired in his own medical practice, or to communicate it to students or classes of his own, without involving the right to commit the lecture to writing, for the purpose of subsequent publication in print or by oral delivery. So any one of the audience at a concert or opera may play a tune which his ear has enabled him to catch, or sing a song which he may carry away in his memory, for his own entertainment or that of others, for compensation or gratuitously, while he would have no right to copy or publish the musical composition." See also language of McLean, J., Bartlett v. Crittenden, 4 McLean, 303, 304, quoted post, p. 122. 2 10 Ir. Ch. 121, 510. breach of confidence, been made on the view, and by the eye; and no court of justice can admit that an act illegal in itself can be justified by a novel or circuitous mode of effecting it. If it is illegal, so must the contrivance be by means of which it was effected." 1 By Exhibiting Copies. In Prince Albert v. Strange, the defendant was enjoined not only from exhibiting copies of etchings which he had taken from plates unlawfully obtained, but also from selling descriptive catalogues of such etchings. It was contended on behalf of the defendant, that while the owner might prevent the sale or public exhibition of copies of the drawings, it was no violation of any rights of property to publish a mere description of them. The soundness of this distinction was not recognized by the court. "It being admitted," said Lord Cottenham, "that the defendant could not publish a copy, that is an impression of the etching, how in principle does a catalogue, list, or description differ? A copy or impression of the etching would only be a means of communicating knowledge and information of the original, and does not a list and description do the same? The means are different, but the object and effect are similar; for in both the object and effect is to make known to the public more or less of the unpublished work and composition of the author, which he is entitled to keep wholly for his private use and pleasure, and to withhold altogether, or so far as he may please, from the knowledge of others." 3 This ruling was doubtless correct in this case, because the etchings had been kept wholly private by the owners, and had in no sense been published. But when drawings, paintings, statues, or any works of art, have been published by being publicly exhibited, there seems to be no principle of property which will enable the owner to prevent another from publishing a verbal description of them. When a thing is kept in strict privacy, the owner may have a right to say that even a description of it shall not be made public; but when the thing itself is published, as it may be by being publicly exhibited, though the owner's rights of property are not lost by such publication, 2 2 De G. & Sm. 652; on ap. 1 Mac. & G. 25. 1 10 Ir. Ch. 521. |