it is difficult to see how in law they are prejudiced by a mere description in writing of the work.

In what Court Redress Sought. In the United States, actions, and suits for the infringement of common-law rights, must be brought in a State court, unless a federal court has jurisdiction by virtue of the citizenship of the parties; in which case redress may be sought in either tribunal.1

CHARACTER OF THE WORK.

In the case of statutory copyright, the theory of the law is that a work, to be entitled to protection, must be original, and innocent, and have some literary, art, or other value, which will contribute to the information, instruction, or enjoyment of others than the owner. It is true that the requirements of the law as to value are by no means exacting, and that statutory copyright may be secured for a production whose merit is little more than nothing. But the statute was not intended to protect a thing utterly destitute of any value as a literary or art production. The question now arises, whether the same principles govern literary property at common law; and whether all protection is to be denied to a production which is not original, valuable, or innocent.

At common law, the author has two general remedies for the protection of his property in a work which he has not himself made public in any way. He is entitled, 1, to prevent its unauthorized publication; 2, to claim damages which he has sustained by such publication. We shall first consider whether the former remedy exists when the work is without the qualities essential to statutory copyright.

Originality. With respect to originality, the principle seems to be the same whether statutory or common-law protection is claimed. For this consideration affects directly the title of the property. If a person claims to be the owner of an intellectual production, on the ground that it is the creation of his own mind, it is obvious that his title will fail when there is an entire absence of originality, when the production is a mere copy of something else.

1 See Chap. XII.

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Literary Merit. Is it essential that a manuscript, a statue, or a painting shall have literary or art merit, however little, to be entitled to the protection of the common law? The sound doctrine would seem to be that value, at least market or commercial value, is not an essential attribute of this kind of property. What may be the literary or art merit of the work, what value it may have to the public, or how far it may be useful to society, are not legitimate subjects of inquiry in determining the owner's exclusive right to its control before publication. Property may exist in that which has no commercial value. A person may own a useless swamp, a barren crag, or a sterile waste so worthless that he cannot give it away; yet it belongs to him, and the law will aid him in preventing another from appropriating it, or otherwise unlawfully using it. The same is true of intellectual property. A manuscript may be void of literary qualities, a painting destitute of merit, a statue without art excellence. Yet it may be valued by the owner; and, whether it is or not, he has a right to say that it shall not be made public, or used without his consent. It is immaterial for what purpose the work has been produced, or whether the author did or did not intend it for public use. Were the rule otherwise, the author might be wrongly subjected at any moment to humiliation, loss of reputation, or substantial injury, by the publication of his production against his will. "The question, however," said Vice-Chancellor Bruce, “does not turn upon the form or amount of mischief or advantage, loss or gain. The author of manuscripts, whether he is famous or obscure, low or high, has a right to say of them, if innocent, that whether interesting or dull, light or heavy, salable or unsalable, they shall not without his consent be published."1

'Prince Albert v. Strange, 2 De G. & Sm. 694. What, however," continued the same judge, "can be the defendant's right or that of any person but the owners of the plates to this benefit? It is for them to use, or bestow or withhold, nor can a stranger be allowed to say that they do not want it. They alone are entitled to decide whether, and when, and how, and for whose advantage their property shall be made use of." Ibid. 698.

common law of this exclusive right? Does it exist only when the manuscript is intended to be published? or does it depend upon its pecuniary value or intrinsic merits as a literary composition? To each question we think the reply may be confidently given certainly not. In none of the cases is there any reference to these circumstances or any of them as necessary to be averred or proved in order to establish the rights of the author or the "What then is the foundation at jurisdiction of the court; and in some

This doctrine has been fully recognized in the case of letters, which are considered further on in this chapter; and the principles which have been judicially affirmed in such cases are equally applicable to all kinds of unpublished works.

Writings not Innocent. The publication of an immoral, seditious, blasphemous, or libellous work, is looked upon as unlawful; and for that reason it has been held that such a work cannot be the subject of statutory copyright. Hence, when the author has published a work of this kind, he is powerless to prevent any other person from republishing it, and he is not entitled to recover for damages sustained through loss of profits by such unauthorized publication.

This principle was extended to unpublished works by Lord Eldon, who held that the common law affords no protection for a manuscript which is not innocent. The question was brought before him in 1817, when the poet Southey applied for an injunction to restrain the publication of Wat Tyler. This poem had been written in 1794, and sent by the poet to a bookseller, who decided not to publish it. The manuscript was not returned to the author; and twenty-three years afterward the poem was published for the first time by the defendant, who had by some means obtained the manuscript, or a copy, without the knowledge or consent of the author. The motion for an injunction was opposed on the ground that the poem was seditious, and therefore the author was entitled to no protection. This view of the law was adopted by Lord Eldon, who, misapplying a dictum of Chief Justice Eyre, refused to grant the injunction until Southey should establish his rights at law, and said: "If this publication is an innocent one, I apprehend that I am authorized by decided cases, to say that whether the author did or did not intend to make a profit by its publication, he has a right to an injunction to prevent any

the admitted facts repel the supposition that such proofs could be required. . . . We can perceive no reason for doubt ing that the exclusive property of an author rests exactly upon the same ground as that of a manufacturer or artista painting may be a wretched daub a statue, a lamentable abortion; yet, should either be purloined

by an enemy with the view to secure profits to himself, or to disgrace the artist by its public exhibition, a court of equity would renounce its principles should it refuse to protect the owner, the unfortunate artist, by a peremptory injunction." Duer, J., Woolsey v. Judd, 4 Duer (N. Y.), 386.

1 See Chap. III.

other person from publishing it. If, on the other hand, this is not an innocent publication, in such a sense as that an action would not lie in case of its having been published by the author, and subsequently pirated, I apprehend that this court will not grant an injunction." 1

In holding that an author has no right to prevent the publication of a work which he cannot lawfully publish, Lord Eldon overlooked a vital distinction between literary property at the common law and copyright as regulated by the statute. The latter is a right which exists only in a published work, and which entitles the owner to control the publication of a work after he has himself published it. The right relates solely to publication, which is the foundation of the right. When the publication is unlawful, it is clear that the right cannot be enforced; for the statute will not aid one person in restraining another from publishing what neither has a right to publish. Hence, when the protection of the statute is sought, it is proper to inquire whether the character of the work is such as will render its publication unlawful.

But to apply this principle to unpublished works will be destructive of valuable rights of property therein. For a work whose general publication may be objectionable or unlawful may be put to innocent and legitimate uses without being generally published. This fact is recognized by the common law, which does not restrict the rights of property in an unpublished work to its publication, but protects the owner in every harmless use of it. Even though he may not privately or confidentially communicate it to a limited number of persons, for restricted uses, he has a right to keep it to himself, and to say that no person without his consent shall publish or use it in any way whatever. This right to exclude others from its use is as inviolable as the right to publish.2 The two rights are distinct

and independent. The right to publish may be defeated by the fact that the work cannot be lawfully published; but this consideration cannot prejudice the right to prevent publication.

The theory of Lord Eldon is based on the ground that a work immoral, seditious, or libellous, is unlawful, and therefore entitled to no protection. It rests solely on the assumed unlawful character of the production. But the law takes no cognizance of these obnoxious qualities until the work is published. The violation of the law consists in publishing the offensive matter. Publication is the essence of the wrong. Whatever may be the character of the work, it is innocent and harmless in the eye of the law while the owner keeps it to himself; and, because he cannot make any public use of it, he does not thereby lose the right to possess and enjoy it himself, and to exclude others from its use.

Question of Damage affected by Character of Production. The above considerations apply in determining the right of an author to prevent the unlicensed publication of his work. But the principle is different when he seeks to recover for a loss of profits which he has sustained by such publication. In such case, the market-value of the work will be a legitimate subject of inquiry. For, when the profits of publication are claimed, it must appear that the work can be lawfully published; and it is obvious that the author is not entitled to such profits, when the publication is unlawful by reason of being immoral, seditious, libellous, or blasphemous.1

This doctrine was referred to by Lord Chief Justice Eyre, in a case which is not reported, but was cited by Sir Samuel Romily in his argument in Southey v. Sherwood.2 Dr. Priestley, having lost certain unpublished manuscripts in consequence of a mob in Birmingham, brought an action for damages against the hundred, in which he offered to prove by booksellers that the manuscripts were of great pecuniary value for publication. The defence set up was that Dr. Priestley had been in the habit of publishing works injurious to the administration of the gov

Whether the author may maintain an action for damages, other than the loss of profits, for the unlicensed publication of an obnoxious manuscript,

is a question which will not be examined here. It can hardly be considered a question of property.

2 2 Meriv. 437.